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Gun Rights

Caetano v. Massachusetts

https://supreme.justia.com/cases/federal/us/577/14-10078/

SUPREME COURT OF THE UNITED STATES JAIME CAETANO v. MASSACHUSETTS on petition for writ of certiorari to the supreme judicial court of massachusetts No. 14–10078. Decided March 21, 2016 Per Curiam. The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller , 554 U. S. 570, 582 (2008) , and that this “ Second Amendment right is fully applicable to the States,” McDonald v. Chicago , 561 U. S. 742, 750 (2010) . In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015). The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” Id., at 781, 26 N. E. 3d, at 693. This is inconsistent with Heller ’s clear statement that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” 554 U. S., at 582. The court next asked whether stun guns are “dangerous per se at common law and unusual,” 470 Mass., at 781, 26 N. E. 3d, at 694, in an attempt to apply one “important limitation on the right to keep and carry arms,” Heller , 554 U. S., at 627; see ibid. (referring to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’ ”). In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” 470 Mass., at 781, 26 N. E. 3d, at 693–694. By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason. Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” 470 Mass., at 781, 26 N. E. 3d, at 694. But Heller rejected the proposition “that only those weapons useful in warfare are protected.” 554 U. S., at 624–625. For these three reasons, the explanation the Massachusetts court offered for upholding the law contradicts this Court’s precedent. Consequently, the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. SUPREME COURT OF THE UNITED STATES JAIME CAETANO v. MASSACHUSETTS on petition for writ of certiorari to the supreme judicial court of massachusetts No. 14–10078. Decided March 21, 2016 Justice Alito, with whom Justice Thomas joins, concurring in the judgment. After a “bad altercation” with an abusive boyfriend put her in the hospital, Jaime Caetano found herself homeless and “in fear for [her] life.” Tr. 31, 38 (July 10, 2013). She obtained multiple restraining orders against her abuser, but they proved futile. So when a friend offered her a stun gun “for self-defense against [her] former boy friend,” 470 Mass. 774, 776, 26 N. E. 3d 688, 690 (2015), Caetano accepted the weapon. It is a good thing she did. One night after leaving work, Caetano found her ex-boyfriend “waiting for [her] outside.” Tr. 35. He “started screaming” that she was “not gonna [expletive deleted] work at this place” any more because she “should be home with the kids” they had together. Ibid. Caetano’s abuser towered over her by nearly a foot and outweighed her by close to 100 pounds. But she didn’t need physical strength to protect herself. She stood her ground, displayed the stun gun, and announced: “I’m not gonna take this anymore. . . . I don’t wanna have to [use the stun gun on] you, but if you don’t leave me alone, I’m gonna have to.” Id., at 35–36. The gambit worked. The ex-boyfriend “got scared and he left [her] alone.” Id., at 36. It is settled that the Second Amendment protects an individual right to keep and bear arms that applies against both the Federal Government and the States. District of Columbia v. Heller , 554 U. S. 570 (2008) ; McDonald v. Chicago , 561 U. S. 742 (2010) . That right vindicates the “basic right” of “individual self-defense.” Id. , at 767; see Heller , supra , at 599, 628. Caetano’s encounter with her violent ex-boyfriend illustrates the connection between those fundamental rights: By arming herself, Caetano was able to protect against a physical threat that restraining orders had proved useless to prevent. And, commendably, she did so by using a weapon that posed little, if any, danger of permanently harming either herself or the father of her children. Under Massachusetts law, however, Caetano’s mere possession of the stun gun that may have saved her life made her a criminal. See Mass. Gen. Laws, ch. 140, §131J (2014). When police later discovered the weapon, she was arrested, tried, and convicted. The Massachusetts Supreme Judicial Court affirmed the conviction, holding that a stun gun “is not the type of weapon that is eligible for Second Amendment protection” because it was “not in common use at the time of [the Second Amendment’s] enactment.” 470 Mass., at 781, 26 N. E. 3d, at 693. This reasoning defies our decision in Heller , which rejected as “bordering on the frivolous” the argument “that only those arms in existence in the 18th century are protected by the Second Amendment.” 554 U. S., at 582. The decision below also does a grave disservice to vulnerable individuals like Caetano who must defend themselves because the State will not. I The events leading to Caetano’s prosecution occurred sometime after the confrontation between her and her ex-boyfriend. In September 2011, police officers responded to a reported shoplifting at an Ashland, Massachusetts, supermarket. The store’s manager had detained a suspect, but he identified Caetano and another person in the parking lot as potential accomplices. Police approached the two and obtained Caetano’s consent to search her purse. They found no evidence of shoplifting, but saw Caetano’s stun gun. Caetano explained to the officers that she had acquired the weapon to defend herself against a violent ex-boyfriend. The officers believed Caetano, but they arrested her for violating Mass. Gen. Laws, ch. 140, §131J, “which bans entirely the possession of an electrical weapon,” 470 Mass., at 775, 26 N. E. 3d, at 689.[ 1 ] When Caetano moved to dismiss the charge on Second Amendment grounds, the trial court denied the motion. A subsequent bench trial established the following undisputed facts. The parties stipulated that Caetano possessed the stun gun and that the weapon fell within the statute’s prohibition.[ 2 ] The Commonwealth also did not challenge Caetano’s testimony that she possessed the weapon to defend herself against the violent ex-boyfriend. Indeed, the prosecutor urged the court “to believe the defendant.” Tr. 40. The trial court nonetheless found Caetano guilty, and she appealed to the Massachusetts Supreme Judicial Court. The Supreme Judicial Court rejected Caetano’s Second Amendment claim, holding that “a stun gun is not the type of weapon that is eligible for Second Amendment protection.” 470 Mass., at 775, 26 N. E. 3d, at 689. The court reasoned that stun guns are unprotected because they were “not ‘in common use at the time’ of enactment of the Second Amendment,” id., at 781, 26 N. E. 3d, at 693 (quoting Heller , supra , at 627), and because they fall within the “traditional prohibition against carrying dangerous and unusual weapons,” 470 Mass. , at 779, 26 N. E. 3d, at 692 (citing Heller , supra , at 627). II Although the Supreme Judicial Court professed to apply Heller , each step of its analysis defied Heller ’s reasoning. A The state court repeatedly framed the question before it as whether a particular weapon was “ ‘in common use at the time’ of enactment of the Second Amendment.” 470 Mass., at 781, 26 N. E. 3d, at 693; see also id., at 779, 780, 781, 26 N. E. 3d, at 692, 693, 694. In Heller , we emphatically rejected such a formulation. We found the argument “that only those arms in existence in the 18th century are protected by the Second Amendment” not merely wrong, but “bordering on the frivolous.” 554 U. S., at 582. Instead, we held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding .” Ibid. (emphasis added).[ 3 ] It is hard to imagine language speaking more directly to the point. Yet the Supreme Judicial Court did not so much as mention it. Instead, the court seized on language, originating in United States v. Miller , 307 U. S. 174 (1939) , that “ ‘the sorts of weapons protected were those “in common use at the time.” ’ ” 470 Mass., at 778, 26 N. E. 3d, at 692 (quoting Heller , supra , at 627, in turn quoting Miller , supra , at 179). That quotation does not mean, as the court below thought, that only weapons popular in 1789 are covered by the Second Amendment. It simply reflects the reality that the founding-era militia consisted of citizens “who would bring the sorts of lawful weapons that they possessed at home to militia duty,” Heller , 554 U. S., at 627, and that the Second Amendment accordingly guarantees the right to carry weapons “typically possessed by law-abiding citizens for lawful purposes,” id., at 625. While stun guns were not in existence at the end of the 18th century, the same is true for the weapons most commonly used today for self-defense, namely, revolvers and semiautomatic pistols. Revolvers were virtually unknown until well into the 19th century,[ 4 ] and semiautomatic pistols were not invented until near the end of that century.[ 5 ] Electronic stun guns are no more exempt from the Second Amendment’s protections, simply because they were unknown to the First Congress, than electronic communications are exempt from the First Amendment, or electronic imaging devices are exempt from the Fourth Amendment. Id., at 582 (citing Reno v. American Civil Liberties Union , 521 U. S. 844, 849 (1997) , and Kyllo v. United States , 533 U. S. 27 –36 (2001)). As Heller aptly put it: “We do not interpret constitutional rights that way.” 554 U. S., at 582. B The Supreme Judicial Court’s holding that stun guns may be banned as “dangerous and unusual weapons” fares no better. As the per curiam opinion recognizes, this is a conjunctive test: A weapon may not be banned unless it is both dangerous and unusual. Because the Court rejects the lower court’s conclusion that stun guns are “unusual,” it does not need to consider the lower court’s conclusion that they are also “dangerous.” See ante , at 1–2. But make no mistake—the decision below gravely erred on both grounds. 1 As to “dangerous,” the court below held that a weapon is “dangerous per se” if it is “ ‘designed and constructed to produce death or great bodily harm’ and ‘for the purpose of bodily assault or defense.’ ” 470 Mass., at 779, 26 N. E. 3d, at 692 (quoting Commonwealth v. Appleby , 380 Mass. 296, 303, 402 N. E. 2d 1051, 1056 (1980)). That test may be appropriate for applying statutes criminalizing assault with a dangerous weapon. See ibid. , 402 N. E. 2d, at 1056. But it cannot be used to identify arms that fall outside the Second Amendment. First, the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes. See Heller , supra , at 627 (contrasting “ ‘dangerous and unusual weapons’ ” that may be banned with protected “weapons . . . ‘in common use at the time’ ”). Second, even in cases where dangerousness might be relevant, the Supreme Judicial Court’s test sweeps far too broadly. Heller defined the “Arms” covered by the Second Amendment to include “ ‘any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.’ ” 554 U. S., at 581. Under the decision below, however, virtually every covered arm would qualify as “dangerous.” Were there any doubt on this point, one need only look at the court’s first example of “dangerous per se” weapons: “firearms.” 470 Mass., at 779, 26 N. E. 3d, at 692. If Heller tells us anything, it is that firearms cannot be categorically prohibited just because they are dangerous. 554 U. S., at 636. A fortiori , stun guns that the Commonwealth’s own witness described as “non-lethal force,” Tr. 27, cannot be banned on that basis. 2 The Supreme Judicial Court’s conclusion that stun guns are “unusual” rested largely on its premise that one must ask whether a weapon was commonly used in 1789. See 470 Mass., at 780–781, 26 N. E. 3d, at 693–694. As already discussed, that is simply wrong. See supra, at 4–6. The court also opined that a weapon’s unusualness depends on whether “it is a weapon of warfare to be used by the militia.” 470 Mass., at 780, 26 N. E. 3d, at 693. It asserted that we followed such an approach in Miller and “approved its use in Heller .” 470 Mass., at 780, 26 N. E. 3d, at 693. But Heller actually said that it would be a “startling reading” of Miller to conclude that “only those weapons useful in warfare are protected.” 554 U. S., at 624. Instead, Miller and Heller recognized that militia members traditionally reported for duty carrying “the sorts of lawful weapons that they possessed at home,” and that the Second Amendment therefore protects such weapons as a class, regardless of any particular weapon’s suitability for military use. 554 U. S. , at 627; see id., at 624–625. Indeed, Heller acknowledged that advancements in military technology might render many commonly owned weapons ineffective in warfare. Id., at 627–628. But such “modern developments . . . cannot change our interpretation of the right.” Ibid. In any event, the Supreme Judicial Court’s assumption that stun guns are unsuited for militia or military use is untenable. Section 131J allows law enforcement and correctional officers to carry stun guns and Tasers, presumably for such purposes as nonlethal crowd control. Subduing members of a mob is little different from “suppress[ing] Insurrections,” a traditional role of the militia. U. S. Const., Art. I, §8, cl. 15; see also ibid. (militia may be called forth “to execute the Laws of the Union”). Additionally, several branches of the U. S. armed services equip troops with electrical stun weapons to “incapacitate a target without permanent injury or known side effects.” U. S. Army, Project Manager Close Combat Systems, PD Combat Munitions: Launched Electrode Stun Device (LESD), http://www.pica.army.mil/pmccs/combatmunitions/nonlethalsys/taserx26e.html (all Internet materials as last visited Mar. 18, 2016); see U. S. Marine Corps Admin-istrative Message 560/08 (Oct. 2, 2008) (Marine Corps guidance for use of Tasers), http://www.marines.mil/News / Messages / MessagesDisplay /tabid/13286/Article/113024/marine-corps-training-and-use-of-human-electro-muscular-incapacitation-hemi-dev.aspx; Joint Non-Lethal Weapons Directorate, Non-Lethal Weapons (NLW) Reference Book 3 (2012) (Department of Defense report stating that “[m]ultiple Services employ” Tasers), http://dtic.mil/dtic/‌tr/fulltext/u2/a565971.pdf. C As the foregoing makes clear, the pertinent Second Amendment inquiry is whether stun guns are commonly possessed by law-abiding citizens for lawful purposes today . The Supreme Judicial Court offered only a cursory discussion of that question, noting that the “ ‘number of Tasers and stun guns is dwarfed by the number of firearms.’ ” 470 Mass., at 781, 26 N. E. 3d, at 693. This observation may be true, but it is beside the point. Otherwise, a State would be free to ban all weapons except handguns, because “handguns are the most popular weapon chosen by Americans for self-defense in the home.” Heller , supra , at 629. The more relevant statistic is that “[h]undreds of thousands of Tasers and stun guns have been sold to private citizens,” who it appears may lawfully possess them in 45 States. People v. Yanna , 297 Mich. App. 137, 144, 824 N. W. 2d 241, 245 (2012) (holding Michigan stun gun ban unconstitutional); see Volokh, Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights To Keep and Bear Arms and Defend Life, 62 Stan. L. Rev. 199, 244 (2009) (citing stun gun bans in seven States); Wis. Stat. §941.295 (Supp. 2015) (amended Wisconsin law permitting stun gun possession); see also Brief in Opposition 11 (acknowledging that “approximately 200,000 civilians owned stun guns” as of 2009). While less popular than handguns, stun guns are widely owned and accepted as a legitimate means of self-defense across the country. Massachusetts’ categorical ban of such weapons therefore violates the Second Amendment. III The lower court’s ill treatment of Heller cannot stand. The reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense. The Supreme Judicial Court suggested that Caetano could have simply gotten a firearm to defend herself. 470 Mass., at 783, 26 N. E. 3d, at 695. But the right to bear other weapons is “no answer” to a ban on the possession of protected arms. Heller , 554 U. S., at 629. Moreover, a weapon is an effective means of self-defense only if one is prepared to use it, and it is presumptuous to tell Caetano she should have been ready to shoot the father of her two young children if she wanted to protect herself. Courts should not be in the business of demanding that citizens use more force for self-defense than they are comfortable wielding.[ 6 ] Countless people may have reservations about using deadly force, whether for moral, religious, or emotional reasons—or simply out of fear of killing the wrong person. See Brief for Arming Women Against Rape & Endangerment as Amicus Curiae 4–5. “Self-defense,” however, “is a basic right.” McDonald , 561 U. S. , at 767. I am not prepared to say that a State may force an individual to choose between exercising that right and following her conscience, at least where both can be accommodated by a weapon already in widespread use across the Nation. *  *  * A State’s most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsiest of grounds. This Court’s grudging per curiam now sends the case back to that same court. And the consequences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self-defense. See Pet. for Cert. 14. If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe. Notes 1 Specifically, the statute prohibits the possession of any “portable device or weapon from which an electrical current, impulse, wave or beam may be directed, which current, impulse, wave or beam is designed to incapacitate temporarily, injure or kill.” Mass. Gen. Laws, ch. 140, §131J (2014). The statute includes exceptions for law-enforcement officers and weapon suppliers, who may possess electrical weapons “designed to incapacitate temporarily.” Ibid. Violations are punishable by a fine of $500 to $1,000, imprisonment of 6 months to 2½ years, or both. Ibid. 2 Stun guns like Caetano’s “are designed to stun a person with an electrical current” by running a current between two metal prongs on the device and placing the prongs in direct contact with the person. 470 Mass. 774, 775, n. 2, 26 N. E. 3d 688, 689, n. 2 (2015). A similar device, popularly known by the brand name “Taser,” shoots out wires tipped with electrodes that can deliver an electrical current from a distance. Tr. 25–26. Tasers can also be used like a stun gun without deploying the electrodes—a so-called “dry stun.” Id., at 26. As the Commonwealth’s witness testified at trial, these sorts of electrical weapons are “non-lethal force” “designed to incapacitate”—“not kill”—a target. Id., at 27. 3 Stun guns are plainly “bearable arms.” As Heller explained, the term includes any “[w]eapo[n] of offence” or “thing that a man wears for his defence, or takes into his hands,” that is “carr[ied] . . . for the purpose of offensive or defensive action.” 554 U. S., at 581, 584 (internal quotation marks omitted). 4 See J. Bilby, A Revolution in Arms: A History of the First Repeating Rifles 23 (2006). Samuel Colt did not patent his famous revolver until 1836. Ibid. 5 See Firearms: An Illustrated History 166 (2014); see also W. Greener, The Gun and Its Development 524–529, 531–534 (9th ed. 1910) (discussing revolvers and self-loading semiautomatic pistols as “modern pistols”). 6 The court below also noted that Massachusetts no longer requires a license to possess mace or pepper spray. 470 Mass., at 783, 26 N. E. 3d, at 695. But the law was changed in 2014, after Caetano was convicted. A spray can also be foiled by a stiff breeze, while a stun gun cannot.

The Supreme Court of the United States ruled that the Second Amendment protects the right to possess stun guns, rejecting the argument that only weapons commonly used at the time of the Second Amendment's enactment are protected. The Court vacated the judgment of the Supreme Judicial Court of Massachusetts, which had upheld a state law prohibiting stun gun possession, and remanded the case for further proceedings.

Lawsuits & Legal Procedures

Hansberry v. Lee

https://supreme.justia.com/cases/federal/us/311/32/

U.S. Supreme Court Hansberry v. Lee, 311 U.S. 32 (1940) Hansberry v. Lee No. 29 Argued October 25, 1940 Decided November 12, 1940 311 U.S. 32 CERTIORARI TO THE SUPREME COURT OF ILLINOIS Syllabus Numerous owners of lots in a particular area agreed in writing, each severally with each of the others, that their lots should not be sold to or occupied by Negroes, the effectiveness of the agreement being conditioned, however, upon signing by owners of a specified percentage of the lot frontage. In a case in a state court, tried upon an agreed statement of facts, in which it was stipulated (erroneously) that this condition had been complied with, and in which the issue litigated was whether the agreement had ceased to be enforceable in equity by reason of changes in the restricted area, an owner of one of the lots, suing in behalf of himself and of others in like situation, obtained a decree enjoining violation of the agreement by four individuals, who asserted an interest in the restricted land through another signer of the agreement, but who were not treated by the pleadings or decree as representing others or as foreclosing by their defense the rights of others, and whose interest in defeating the contract did not appear to outweigh their interest in sustaining it. Held: 1. That others who were privy to the agreement, but not made parties to the litigation, and whose substantial interest was in resisting performance of the agreement, could not be bound by the decree upon the theory that the suit was a class suit in which they were duly represented. Pp. 311 U. S. 39 , 311 U. S. 44 . 2. That a decree of the state court in a second, similar suit, adjudging such other persons estopped by the former decree as res judicata from defending upon the ground that the condition precedent of the agreement had not been fulfilled, was in violation of the due process clause of the Fourteenth Amendment. Pp. 311 U. S. 40 , 311 U. S. 44 . 372 Ill. 369; 24 N.E.2d 37, reversed. Page 311 U. S. 33 Certiorari, 309 U.S. 652, to review the affirmance of a decree in equity enjoining a violation of an agreement of lot owners restricting the sale and use of lots in a particular area. Page 311 U. S. 37 MR. JUSTICE STONE delivered the opinion of the Court. The question is whether the Supreme Court of Illinois, by its adjudication that petitioners in this case are bound by a judgment rendered in an earlier litigation to which they were not parties, has deprived them of the due process of law guaranteed by the Fourteenth Amendment. Respondents brought this suit in the Circuit Court of Cook County, Illinois, to enjoin the breach by petitioners of an agreement restricting the use of land within a described area of the City of Chicago, which was alleged to have been entered into by some five hundred of the land owners. The agreement stipulated, that for a specified period, no part of the land should be "sold, leased to or permitted to be occupied by any person of the colored Page 311 U. S. 38 race," and provided that it should not be effective unless signed by the "owners of 95 percentum of the frontage" within the described area. The bill of complaint set up that the owners of 95 percent of the frontage had signed; that respondents are owners of land within the restricted area who have either signed the agreement or acquired their land from others who did sign, and that petitioners Hansberry, who are Negroes, have, with the alleged aid of the other petitioners and with knowledge of the agreement, acquired and are occupying land in the restricted area formerly belonging to an owner who had signed the agreement. To the defense that the agreement had never become effective because owners of 95 percent of the frontage had not signed it, respondents pleaded that that issue was res judicata by the decree in an earlier suit. Burke v. Kleiman, 277 Ill.App. 519. To this petitioners pleaded, by way of rejoinder, that they were not parties to that suit or bound by its decree, and that denial of their right to litigate, in the present suit, the issue of performance of the condition precedent to the validity of the agreement would be a denial of due process of law guaranteed by the Fourteenth Amendment. It does not appear, nor is it contended that any of petitioners is the successor in interest to or in privity with any of the parties in the earlier suit. The circuit court, after a trial on the merits, found that owners of only about 54 percent of the frontage had signed the agreement, and that the only support of the judgment in the Burke case was a false and fraudulent stipulation of the parties that 95 percent had signed. But it ruled that the issue of performance of the condition precedent to the validity of the agreement was res judicata as alleged, and entered a decree for respondents. The Supreme Court of Illinois affirmed. 372 Ill. 369, 24 N.E.2d 37. We granted certiorari to resolve the constitutional question. 309 U.S. 652. Page 311 U. S. 39 The Supreme Court of Illinois, upon an examination of the record in Burke v. Kleiman, supra, found that that suit in the Superior Court of Cook County was brought by a landowner in the restricted area to enforce the agreement, which had been signed by her predecessor in title in behalf of herself and other property owners in like situation against four named individuals who had acquired or asserted an interest in a plot of land formerly owned by another signer of the agreement; that, upon stipulation of the parties in that suit that the agreement had been signed by owners of 95 percent of all the frontage, the court had adjudged that the agreement was in force, that it was a covenant running with the land and binding all the land within the described area in the hands of the parties to the agreement and those claiming under them including defendants, and had entered its decree restraining the breach of the agreement by the defendants and those claiming under them, and that the appellate court had affirmed the decree. It found that the stipulation was untrue, but held, contrary to the trial court, that it was not fraudulent or collusive. It also appears from the record in Burke v. Kleiman that the case was tried on an agreed statement of facts which raised only a single issue -- whether by reason of changes in the restricted area, the agreement had ceased to be enforceable in equity. From this, the Supreme Court of Illinois concluded in the present case that Burke v. Kleiman was a "class" or "representative" suit, and that, in such a suit, "where the remedy is pursued by a plaintiff who has the right to represent the class to which he belongs, other members of the class are bound by the results in the case unless it is reversed or set aside on direct proceedings;" (372 Ill. 369, 24 N.E.2d 39), that petitioners in the present suit were members of the class represented by the plaintiffs in the earlier suit and consequently were bound by its decree which had rendered Page 311 U. S. 40 the issue of performance of the condition precedent to the restrictive agreement res judicata so far as petitioners are concerned. The court thought that the circumstance that the stipulation in the earlier suit that owners of 95 percent of the frontage had signed the agreement was contrary to the fact, as found in the present suit, did not militate against this conclusion, since the court in the earlier suit had jurisdiction to determine the fact as between the parties before it, and that its determination, because of the representative character of the suit, even though erroneous, was binding on petitioners until set aside by a direct attack on the first judgment. State courts are free to attach such descriptive labels to litigations before them as they may choose, and to attribute to them such consequences as they think appropriate under state constitutions and laws, subject only to the requirements of the Constitution of the United States. But when the judgment of a state court, ascribing to the judgment of another court the binding force and effect of res judicata, is challenged for want of due process, it becomes the duty of this Court to examine the course of procedure in both litigations to ascertain whether the litigant whose rights have thus been adjudicated has been afforded such notice and opportunity to be heard as are requisite to the due process which the Constitution prescribes. Western Life Indemnity Co. v. Rupp, 235 U. S. 261 , 235 U. S. 273 . It is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process. Pennoyer v. Neff, 95 U. S. 714 ; 1 Freeman on Judgments, 5th Ed., § 407. A judgment rendered in such circumstances is not entitled to the full faith and credit which the Constitution and statute of the United States, R.S. § 905, 28 U.S.C. § 687, prescribe, Page 311 U. S. 41 Pennoyer v. Neff, supra; 59 U. S. Co. v. French, 18 How. 404; Hall v. Lanning, 91 U. S. 160 ; Baker v. Baker, E. & Co., 242 U. S. 394 , and judicial action enforcing it against the person or property of the absent party is not that due process which the Fifth and Fourteenth Amendments requires. Postal Telegraph-Cable Co. v. Neport, 247 U. S. 464 ; Old Wayne Mut.L. Assn. v. McDonough, 204 U. S. 8 . To these general rules there is a recognized exception -- that, to an extent not precisely defined by judicial opinion, the judgment in a "class" or "representative" suit, to which some members of the class are parties, may bind members of the class or those represented who were not made parties to it. Smith v. Swormstedt , 16 How. 288; Royal Arcanum v. Green, 237 U. S. 531 ; Hartford L. Ins. Co. v. Ibs, 237 U. S. 662 ; Hartford Life Ins. Co. v. Barber, 245 U. S. 146 ; Supreme Tribe of Ben-Hur v. Cauble, 255 U. S. 356 ; cf. Christopher v. Brusselback, 302 U. S. 500 . The class suit was an invention of equity to enable it to proceed to a decree in suits where the number of those interested in the subject of the litigation is so great that their joinder as parties in conformity to the usual rules of procedure is impracticable. Courts are not infrequently called upon to proceed with causes in which the number of those interested in the litigation is so great as to make difficult or impossible the joinder of all because some are not within the jurisdiction, or because their whereabouts is unknown, or where, if all were made parties to the suit, its continued abatement by the death of some would prevent or unduly delay a decree. In such cases, where the interests of those not joined are of the same class as the interests of those who are, and where it is considered that the latter fairly represent the former in the prosecution of the litigation of the issues in which all have a common interest, the court will Page 311 U. S. 42 proceed to a decree. Brown v. Vermuden, 1 Ch.Cas. 272; City of London v. Richmond, 2 Vern. 421; Cockburn v. Thompson, 161 Ves.Jr. 321; West v. Randall, Fed.Cas. No. 17,724, 2 Mason 181; Beatty v. Kurtz , 2 Pet. 566; Smith v. Swormstedt, supra; Supreme Tribe of Ben-Hur v. Cauble, supra; Story, Equity Pleading (2d Ed.) § 98. It is evident that the considerations which may induce a court thus to proceed, despite a technical defect of parties, may differ from those which must be taken into account in determining whether the absent parties are bound by the decree or, if it is adjudged that they are, in ascertaining whether such an adjudication satisfies the requirements of due process and of full faith and credit. Nevertheless, there is scope within the framework of the Constitution for holding in appropriate cases that a judgment rendered in a class suit is res judicata as to members of the class who are not formal parties to the suit. Here, as elsewhere, the Fourteenth Amendment does not compel state courts or legislatures to adopt any particular rule for establishing the conclusiveness of judgments in class suits; cf. Brown v. New Jersey, 175 U. S. 172 ; Brown v. Mississippi, 297 U. S. 278 ; United Gas Public Service Co. v. Texas, 303 U. S. 123 ; Avery v. Alabama, 308 U. S. 444 , 308 U. S. 446 -447, nor does it compel the adoption of the particular rules thought by this court to be appropriate for the federal courts. With a proper regard for divergent local institutions and interests, cf. Jackson County v. United States, 308 U. S. 343 , 308 U. S. 351 , this Court is justified in saying that there has been a failure of due process only in those cases where it cannot be said that the procedure adopted, fairly insures the protection of the interests of absent parties who are to be bound by it. Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 , 166 U. S. 235 . It is familiar doctrine of the federal courts that members of a class not present as parties to the litigation Page 311 U. S. 43 may be bound by the judgment where they are in fact adequately represented by parties who are present, or where they actually participate in the conduct of the litigation in which members of the class are present as parties, Plumb v. Goodnow's Administrator, 123 U. S. 560 ; Confectioners' Machinery Co. v. Racine Engine & Mach. Co., 163 F. 914; 170 F. 1021; Bryant El. Co. v. Marshall, 169 F. 426, or where the interest of the members of the class, some of whom are present as parties, is joint, or where for any other reason the relationship between the parties present and those who are absent is such as legally to entitle the former to stand in judgment for the latter. Smith v. Swormstedt, supra; cf. Christopher v. Brusselback, supra, 302 U.S. at 302 U. S. 503 -504, and cases cited. In all such cases, so far as it can be said that the members of the class who are present are, by generally recognized rules of law, entitled to stand in judgment for those who are not, we may assume for present purposes that such procedure affords a protection to the parties who are represented though absent, which would satisfy the requirements of due process and full faith and credit. See Bernheimer v. Converse, 206 U. S. 516 ; Marin v. Augedahl, 247 U. S. 142 ; Chandler v. Peketz, 297 U. S. 609 . Nor do we find it necessary for the decision of this case to say that, when the only circumstance defining the class is that the determination of the rights of its members turns upon a single issue of fact or law, a state could not constitutionally adopt a procedure whereby some of the members of the class could stand in judgment for all, provided that the procedure were so devised and applied as to insure that those present are of the same class as those absent and that the litigation is so conducted as to insure the full and fair consideration of the common issue. Compare New England Divisions Case, 261 U. S. 184 , 261 U. S. 197 ; Taggart v. Bremner, 236 F. 544. Page 311 U. S. 44 We decide only that the procedure and the course of litigation sustained here by the plea of res judicata do not satisfy these requirements. The restrictive agreement did not purport to create a joint obligation or liability. If valid and effective, its promises were the several obligations of the signers and those claiming under them. The promises ran severally to every other signer. It is plain that, in such circumstances, all those alleged to be bound by the agreement would not constitute a single class in any litigation brought to enforce it. Those who sought to secure its benefits by enforcing it could not be said to be in the same class with or represent those whose interest was in resisting performance, for the agreement, by its terms, imposes obligations and confers rights on the owner of each plot of land who signs it. If those who thus seek to secure the benefits of the agreement were rightly regarded by the state Supreme Court as constituting a class, it is evident that those signers or their successors who are interested in challenging the validity of the agreement and resisting its performance are not of the same class in the sense that their interests are identical, so that any group who had elected to enforce rights conferred by the agreement could be said to be acting in the interest of any others who were free to deny its obligation. Because of the dual and potentially conflicting interests of those who are putative parties to the agreement in compelling or resisting its performance, it is impossible to say, solely because they are parties to it, that any two of them are of the same class. Nor, without more, and with the due regard for the protection of the rights of absent parties which due process exacts, can some be permitted to stand in judgment for all. It is one thing to say that some members of a class may represent other members in a litigation where the sole and common interest of the class in the litigation is either to assert a common right or to challenge an Page 311 U. S. 45 asserted obligation. Smith v. Swormstedt, supra; Supreme Tribe of Ben-Hur v. Cauble, supra; Groves v. Farmers State Bank, 368 Ill. 35, 12 N.E.2d 618. It is quite another to hold that all those who are free alternatively either to assert rights or to challenge them are of a single class, so that any group merely because it is of the class so constituted, may be deemed adequately to represent any others of the class in litigating their interests in either alternative. Such a selection of representatives for purposes of litigation, whose substantial interests are not necessarily or even probably the same as those whom they are deemed to represent, does not afford that protection to absent parties which due process requires. The doctrine of representation of absent parties in a class suit has not hitherto been thought to go so far. See Terry v. Bank of Cape Fear, 20 F. 777, 781; Weidenfeld v. Northern Pac. Ry. Co., 129 F. 305, 310; McQuillen v. National Cash Register Co., 22 F. Supp. 867 , 873, aff'd, 112 F.2d 877, 882; Brenner v. Title Guarantee & Trust Co., 276 N.Y. 230, 11 N.E.2d 890; cf. Wabash R. Co. v. Adelbert College, 208 U. S. 38 ; Coe v. Armour Fertilizer Works, 237 U. S. 413 . Apart from the opportunities it would afford for the fraudulent and collusive sacrifice of the rights of absent parties, we think that the representation in this case no more satisfies the requirements of due process than a trial by a judicial officer who is in such situation that he may have an interest in the outcome of the litigation in conflict with that of the litigants. Tumey v. Ohio, 273 U. S. 510 . The plaintiffs in the Burke case sought to compel performance of the agreement in behalf of themselves and all others similarly situated. They did not designate the defendants in the suit as a class or seek any injunction or other relief against others than the named defendants, and the decree which was entered did not purport to bind others. In seeking to enforce the agreement, the plaintiffs Page 311 U. S. 46 in that suit were not representing the petitioners here whose substantial interest is in resisting performance. The defendants in the first suit were not treated by the pleadings or decree as representing others or as foreclosing by their defense the rights of others, and, even though nominal defendants, it does not appear that their interest in defeating the contract outweighed their interest in establishing its validity. For a court in this situation to ascribe to either the plaintiffs or defendants the performance of such functions on behalf of petitioners here is to attribute to them a power that it cannot be said that they had assumed to exercise, and a responsibility which, in view of their dual interests it does not appear that they could rightly discharge. Reversed. MR. JUSTICE McREYNOLDS, MR. JUSTICE ROBERTS, and MR. JUSTICE REED concur in the result.

The Supreme Court ruled that a group of landowners who were not parties to a previous lawsuit could not be bound by the decision in that case, as they were not adequately represented by the defendants in the original suit, and their interests in resisting the performance of the agreement were not adequately protected. The Court held that due process requires that absent parties have a sufficient opportunity to protect their own interests, and that the representation in this case did not meet that standard.

Lawsuits & Legal Procedures

Erie Railroad Co. v. Tompkins

https://supreme.justia.com/cases/federal/us/304/64/

U.S. Supreme Court Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) Erie Railroad Co. v. Tompkins No. 367 Argued January 31, 1938 Decided April 25, 1938 304 U.S. 64 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus 1. The liability of a railroad company for injury caused by negligent operation of its train to a pedestrian on a much-used, beaten path on its right-of-way along and near the rails depends, in the absence of a federal or state statute, upon the unwritten law of the State where the accident occurred. Pp. 304 U. S. 71 et seq. 2. A federal court exercising jurisdiction over such a case on the ground of diversity of citizenship, is not free to treat this question as one of so-called "general law," but must apply the state law as declared by the highest state court. Swift v. Tyson , 16 Pet. 1, overruled. Id. 3. There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or "general," whether they be commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts. Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its legislature in a statute or by its highest court in a decision is not a matter of federal concern. P. 304 U. S. 78 . 4. In disapproving the doctrine of Swift v. Tyson, the Court does not hold unconstitutional § 34 of the Federal Judiciary Act of 1789 or any other Act of Congress. It merely declares that, by applying the doctrine of that case, rights which are reserved by the Constitution to the several States have been invaded. P. 304 U. S. 79 . 90 F.2d 603, reversed. Page 304 U. S. 65 CERTIORARI, 302 U.S. 671, to review the affirmance of a judgment recovered against the railroad company in an action for personal injuries. The accident was in Pennsylvania. The action was in New York, jurisdiction being based on diversity of citizenship Page 304 U. S. 69 MR. JUSTICE BRANDEIS delivered the opinion of the Court. The question for decision is whether the oft-challenged doctrine of Swift v. Tyson [ Footnote 1 ] shall now be disapproved. Tompkins, a citizen of Pennsylvania, was injured on a dark night by a passing freight train of the Erie Railroad Company while walking along its right of way at Hughestown in that State. He claimed that the accident occurred through negligence in the operation, or maintenance, of the train; that he was rightfully on the premises as licensee because on a commonly used beaten footpath which ran for a short distance alongside the tracks, and that he was struck by something which looked like a door projecting from one of the moving cars. To enforce that claim, he brought an action in the federal court for southern New York, which had jurisdiction because the company is a corporation of that State. It denied liability, and the case was tried by a jury. Page 304 U. S. 70 The Erie insisted that its duty to Tompkins was no greater than that owed to a trespasser. It contended, among other things, that its duty to Tompkins, and hence its liability, should be determined in accordance with the Pennsylvania law; that, under the law of Pennsylvania, as declared by its highest court, persons who use pathways along the railroad right of way -- that is, a longitudinal pathway, as distinguished from a crossing -- are to be deemed trespassers, and that the railroad is not liable for injuries to undiscovered trespassers resulting from its negligence unless it be wanton or willful. Tompkins denied that any such rule had been established by the decisions of the Pennsylvania courts, and contended that, since there was no statute of the State on the subject, the railroad's duty and liability is to be determined in federal courts as a matter of general law. The trial judge refused to rule that the applicable law precluded recovery. The jury brought in a verdict of $30,000, and the judgment entered thereon was affirmed by the Circuit Court of Appeals, which held, 90 F.2d 603, 604, that it was unnecessary to consider whether the law of Pennsylvania was as contended, because the question was one not of local, but of general, law, and that, "upon questions of general law, the federal courts are free, in the absence of a local statute, to exercise their independent judgment as to what the law is, and it is well settled that the question of the responsibility of a railroad for injuries caused by its servants is one of general law. . . . Where the public has made open and notorious use of a railroad right of way for a long period of time and without objection, the company owes to persons on such permissive pathway a duty of care in the operation of its trains. . . . It is likewise generally recognized law that a jury may find that negligence exists toward a pedestrian using a permissive path on the railroad right of way if he is hit by some object projecting from the side of the train. " Page 304 U. S. 71 The Erie had contended that application of the Pennsylvania rule was required, among other things, by § 34 of the Federal Judiciary Act of September 24, 1789, c. 20, 28 U.S.C. § 725, which provides: "The laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply." Because of the importance of the question whether the federal court was free to disregard the alleged rule of the Pennsylvania common law, we granted certiorari. First. Swift v. Tyson , 16 Pet. 1, 41 U. S. 18 , held that federal courts exercising jurisdiction on the ground of diversity of citizenship need not, in matters of general jurisprudence, apply the unwritten law of the State as declared by its highest court; that they are free to exercise an independent judgment as to what the common law of the State is -- or should be, and that, as there stated by Mr. Justice Story: "the true interpretation of the thirty-fourth section limited its application to state laws strictly local, that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character. It never has been supposed by us that the section did apply, or was intended to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies what is the true exposition of the contract or Page 304 U. S. 72 instrument, or what is the just rule furnished by the principles of commercial law to govern the case." The Court, in applying the rule of § 34 to equity cases, in Mason v. United States, 260 U. S. 545 , 260 U. S. 559 , said: "The statute, however, is merely declarative of the rule which would exist in the absence of the statute." [ Footnote 2 ] The federal courts assumed, in the broad field of "general law," the power to declare rules of decision which Congress was confessedly without power to enact as statutes. Doubt was repeatedly expressed as to the correctness of the construction given § 34, [ Footnote 3 ] and as to the soundness of the rule which it introduced. [ Footnote 4 ] But it was the more recent research of a competent scholar, who examined the original document, which established that the construction given to it by the Court was erroneous, and that the purpose of the section was merely to make certain that, in all matters except those in which some federal law is controlling, Page 304 U. S. 73 the federal courts exercising jurisdiction in diversity of citizenship cases would apply as their rules of decision the law of the State, unwritten as well as written. [ Footnote 5 ] Criticism of the doctrine became widespread after the decision of Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U. S. 518 . [ Footnote 6 ] There, Brown and Yellow, a Kentucky corporation owned by Kentuckians, and the Louisville and Nashville Railroad, also a Kentucky corporation, wished that the former should have the exclusive privilege of soliciting passenger and baggage transportation at the Bowling Green, Kentucky, railroad station, and that the Black and White, a competing Kentucky corporation, should be prevented from interfering with that privilege. Knowing that such a contract would be void under the common law of Kentucky, it was arranged that the Brown and Yellow reincorporate under the law of Tennessee, and that the contract with the railroad should be executed there. The suit was then brought by the Tennessee corporation in the federal court for western Kentucky to enjoin competition by the Black and White; an injunction issued by the District Court Page 304 U. S. 74 was sustained by the Court of Appeals, and this Court, citing many decisions in which the doctrine of Swift v. Tyson had been applied, affirmed the decree. Second. Experience in applying the doctrine of Swift v. Tyson had revealed it defects, political and social, and the benefits expected to flow from the rule did not accrue. Persistence of state courts in their own opinions on questions of common law prevented uniformity; [ Footnote 7 ] and the impossibility of discovering a satisfactory line of demarcation between the province of general law and that of local law developed a new well of uncertainties. [ Footnote 8 ] On the other hand, the mischievous results of the doctrine had become apparent. Diversity of citizenship jurisdiction was conferred in order to prevent apprehended discrimination in state courts against those not citizens of the State. Swift v. Tyson introduced grave discrimination by noncitizens against citizens. It made rights enjoyed under the unwritten "general law" vary according to whether enforcement was sought in the state Page 304 U. S. 75 or in the federal court, and the privilege of selecting the court in which the right should be determined was conferred upon the noncitizen. [ Footnote 9 ] Thus, the doctrine rendered impossible equal protection of the law. In attempting to promote uniformity of law throughout the United States, the doctrine had prevented uniformity in the administration of the law of the State. The discrimination resulting became, in practice, far-reaching. This resulted in part from the broad province accorded to the so-called "general law" as to which federal courts exercised an independent judgment. [ Footnote 10 ] In addition to questions of purely commercial law, "general law" was held to include the obligations under contracts entered into and to be performed within the State, [ Footnote 11 ] the extent to which a carrier operating within a State may stipulate for exemption from liability for his own negligence or that of his employee; [ Footnote 12 ] the liability for torts committed within the State upon person resident or property located there, even where the question of liability Page 304 U. S. 76 depended upon the scope of a property right conferred by the State [ Footnote 13 ] and the right to exemplary or punitive damages. [ Footnote 14 ] Furthermore, state decisions construing local deeds, [ Footnote 15 ] mineral conveyances, [ Footnote 16 ] and even devises of real estate [ Footnote 17 ] were disregarded. [ Footnote 18 ] In part, the discrimination resulted from the wide range of persons held entitled to avail themselves of the federal rule by resort to the diversity of citizenship jurisdiction. Through this jurisdiction, individual citizens willing to remove from their own State and become citizen of another might avail themselves of the federal rule. [ Footnote 19 ] And, without even change of residence, a corporate citizen of Page 304 U. S. 77 the State could avail itself of the federal rule by reincorporating under the laws of another State, as was done in the Taxicab case. The injustice and confusion incident to the doctrine of Swift v. Tyson have been repeatedly urged as reasons for abolishing or limiting diversity of citizenship jurisdiction. [ Footnote 20 ] Other legislative relief has been proposed. [ Footnote 21 ] If only a question of statutory construction were involved, we should not be prepared to abandon a doctrine so widely applied throughout nearly a century. [ Footnote 22 ] But the unconstitutionality Page 304 U. S. 78 of the course pursued has now been made clear, and compels us to do so. Third. Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State, whether they be local in their nature or "general," be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts. As stated by Mr. Justice Field when protesting in Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368 , 149 U. S. 401 , against ignoring the Ohio common law of fellow servant liability: "I am aware that what has been termed the general law of the country -- which is often little less than what the judge advancing the doctrine thinks at the time should be the general law on a particular subject -- has been often advanced in judicial opinions of this court to control a conflicting law of a State. I admit that learned judges have fallen into the habit of repeating this doctrine as a convenient mode of brushing aside the law of a State in conflict with their views. And I confess that, moved and governed by the authority of the great names of those judges, I have, myself, in many instances, unhesitatingly and confidently, but I think now erroneously, repeated the same doctrine. But, notwithstanding the great names which may be cited in favor of the doctrine, and notwithstanding the frequency with which the doctrine has been reiterated, there stands, as a perpetual protest against its repetition, the Constitution of the United States, which recognizes and preserves the autonomy and independence of the States -- independence in their legislative and independence Page 304 U. S. 79 in their judicial departments. Supervision over either the legislative or the judicial action of the States is in no case permissible except as to matters by the Constitution specifically authorized or delegated to the United States. Any interference with either, except as thus permitted, is an invasion of the authority of the State and, to that extent, a denial of its independence." The fallacy underlying the rule declared in Swift v. Tyson is made clear by Mr. Justice Holmes. [ Footnote 23 ] The doctrine rests upon the assumption that there is "a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute," that federal courts have the power to use their judgment as to what the rules of common law are, and that, in the federal courts, "the parties are entitled to an independent judgment on matters of general law": "but law in the sense in which courts speak of it today does not exist without some definite authority behind it. The common law so far as it is enforced in a State, whether called common law or not, is not the common law generally, but the law of that State existing by the authority of that State without regard to what it may have been in England or anywhere else. . . ." "the authority and only authority is the State, and, if that be so, the voice adopted by the State as its own [whether it be of its Legislature or of its Supreme Court] should utter the last word." Thus, the doctrine of Swift v. Tyson is, as Mr. Justice Holmes said, "an unconstitutional assumption of powers by courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct." In disapproving that doctrine, we do not hold Page 304 U. S. 80 unconstitutional § 34 of the Federal Judiciary Act of 1789 or any other Act of Congress. We merely declare that, in applying the doctrine, this Court and the lower courts have invaded rights which, in our opinion, are reserved by the Constitution to the several States. Fourth. The defendant contended that, by the common law of Pennsylvania as declared by its highest court in Falchetti v. Pennsylvania R. Co., 307 Pa. 203; 160 A. 859, the only duty owed to the plaintiff was to refrain from willful or wanton injury. The plaintiff denied that such is the Pennsylvania law. [ Footnote 24 ] In support of their respective contentions the parties discussed and cited many decisions of the Supreme Court of the State. The Circuit Court of Appeals ruled that the question of liability is one of general law, and on that ground declined to decide the issue of state law. As we hold this was error, the judgment is reversed and the case remanded to it for further proceedings in conformity with our opinion. Reversed. MR. JUSTICE CARDOZO took no part in the consideration or decision of this case. [ Footnote 1 ] 16 Pet. 1 (1842). Leading cases applying the doctrine are collected in Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U. S. 518 , 276 U. S. 530 , 276 U. S. 531 . Dissent from its application or extension was expressed as early as 1845 by Mr. Justice McKinley (and Mr. Chief Justice Taney) in Lane v. Vick , 3 How. 464, 44 U. S. 477 . Dissenting opinions were also written by Mr. Justice Daniel in Rowan v. Runnels , 5 How. 134, 46 U. S. 140 ; by Mr. Justice Nelson in Williamson v. Berry , 8 How. 495, 49 U. S. 550 , 49 U. S. 558 ; by Mr. Justice Campbell in Pease v. Peck , 18 How. 595, 59 U. S. 599 , 59 U. S. 600 , and by Mr. Justice Miller in Gelpcke v. City of Dubuque , 1 Wall. 175, 68 U. S. 207 , and Butz v. City of Muscatine , 8 Wall. 575, 75 U. S. 585 . Vigorous attack upon the entire doctrine was made by Mr. Justice Field in Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368 , 149 U. S. 390 , and by Mr. Justice Holmes in Kuhn v. Fairmont Coal Co., 215 U. S. 349 , 215 U. S. 370 , and in the Taxicab Case, 276 U.S. at 276 U. S. 532 . [ Footnote 2 ] In Hawkins v. Barney's Lessee , 5 Pet. 457, 30 U. S. 464 , it was stated that § 34 "has been uniformly held to be no more than a declaration of what the law would have been without it: to-wit, that the lex loci must be the governing rule of private right, under whatever jurisdiction private right comes to be examined." See also Bank of Hamilton v. Dudley's Lessee , 2 Pet. 492, 27 U. S. 525 . Compare Jackson v. Chew, 12 Wheat. 153, 25 U. S. 162 , 25 U. S. 168 ; Livingston v. Moore , 7 Pet. 469, 32 U. S. 542 . [ Footnote 3 ] Pepper, The Border Land of Federal and State Decisions (1889) 57; Gray, The Nature and Sources of Law (1909 ed.) §§ 533-34; Trickett, Non-Federal Law Administered in Federal Courts (1906) 40 Am.L.Rev. 819, 821-24. [ Footnote 4 ] Street, Is There a General Commercial Law of the United States (1873) 21 Am.L.Reg. 473; Hornblower, Conflict between State and Federal Decisions (1880) 14 Am.L.Rev. 211; Meigs, Decisions of the Federal Courts on Questions of State Law (1882) 8 So.L.Rev. (n.s.) 452, (1911) 45 Am.L.Rev. 47; Heiskell, Conflict between Federal and State Decisions (1882) 16 Am.L.Rev. 743; Rand, Swift v. Tyson versus Gelpcke v. Dubuque (1895) 8 Harv.L.Rev. 328, 341-43; Mills, Should Federal Courts Ignore State Laws (1900) 34 Am.L.Rev. 51; Carpenter, Court Decisions and the Common Law (1917) 17 Col.L.Rev. 593, 602-603. [ Footnote 5 ] Charles Warren, New Light on the History of the Federal Judiciary Act of 1789 (1923) 37 Harv.L.Rev. 49, 51-52, 81-88, 108. [ Footnote 6 ] Shelton, Concurrent Jurisdiction -- Its Necessity and its Dangers (1928) 15 Va.L.Rev. 137; Frankfurter, Distribution of Judicial Power Between Federal and State Courts (1928) 13 Corn.L.Q. 499, 524-30; Johnson, State Law and the Federal Courts (1929) 17 Ky.L.J. 355; Fordham, The Federal Courts and the Construction of Uniform State Laws (1929) 7 N.C.L.Rev. 423; Dobie, Seven Implications of Swift v. Tyson (1930) 16 Va.L.Rev. 225; Dawson, Conflict of Decisions between State and Federal Courts in Kentucky, and the Remedy (1931) 20 Ky.L.J. 1; Campbell, Is Swift v. Tyson an Argument for or against Abolishing Diversity of Citizenship Jurisdiction (1932) 18 A.B.A.J. 809; Ball, Revision of Federal Diversity Jurisdiction (1933) 28 Ill.L.Rev. 356, 362-64; Fordham, Swift v. Tyson and the Construction of State Statutes (1935) 41 W.Va. L.Q. 131. [ Footnote 7 ] Compare Mr. Justice Miller in Gelpcke v. City of Dubuque , 1 Wall. 175, 68 U. S. 209 . The conflicts listed in Holt, The Concurrent Jurisdiction of the Federal and State Courts (1888) 160 et seq. cover twenty-eight pages. See also Frankfurter, supra, note 6 at 524-530; Dawson, supra, note 6; Note Aftermath of the Supreme Court's Stop, Look and Listen Rule (1930) 43 Harv.L.Rev. 926; cf. Yntema and Jaffin, Preliminary Analysis of Concurrent Jurisdiction (1931) 79 U. of Pa.L.Rev. 869, 881-86. Moreover, as pointed out by Judge Augustus N. Hand in Cole v. Pennsylvania R. Co., 43 F.2d 953, 956-57, decisions of this Court on common law questions are less likely than formerly to promote uniformity. [ Footnote 8 ] Compare 2 Warren, The Supreme Court in United States History (rev. ed.1935) 89: "Probably no decision of the Court has ever given rise to more uncertainty as to legal rights, and though doubtless intended to promote uniformity in the operation of business transactions, its chief effect has been to render it difficult for business men to know in advance to what particular topic the Court would apply the doctrine. . . ." The Federal Digest, through the 1937 volume, lists nearly 1000 decisions involving the distinction between questions of general and of local law. [ Footnote 9 ] It was even possible for a nonresident plaintiff defeated on a point of law in the highest court of a State nevertheless to win out by taking a nonsuit and renewing the controversy in the federal court. Compare Gardner v. Michigan Cent. R. Co., 150 U. S. 349 ; Harrison v. Foley, 206 Fed. 57 (C.C.A. 8); Interstate Realty & Inv. Co. v. Bibb County, 293 Fed. 721 (C.C.A. 5); see Mills, supra, note 4 at 52. [ Footnote 10 ] For a recent survey of the scope of the doctrine, see Sharp & Brennan, The Application of the Doctrine of Swift v. Tyson since 1900 (1929) 4 Ind.L.J. 367. [ Footnote 11 ] Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U. S. 518 ; Rowan v. Runnels , 5 How. 134, 46 U. S. 139 ; Boyce v. Tabb , 18 Wall. 546, 85 U. S. 548 ; Johnson v. Chas. D. Norton Co., 159 Fed. 361 (C.C.A. 6); Keene Five Cent Sav. Bank v. Reid, 123 Fed. 221 (C.C.A. 8). [ Footnote 12 ] Railroad Co. v. Lockwood , 17 Wall. 357, 84 U. S. 367 -368; Liverpool & G. W. Stearn Co. v. Phenix Ins. Co., 129 U. S. 397 , 129 U. S. 443 ; Eels v. St. Louis, K. & N.W. Ry. Co., 52 Fed. 903 (C.C.S.D. Iowa); Fowler v. Pennsylvania R. Co., 229 Fed. 373 (C.C.A. 2). [ Footnote 13 ] Chicago v. Robbins , 2 Black 418, 67 U. S. 428 . Compare 77 U. S. Milwaukee, 10 Wall. 497, 77 U. S. 506 -507; Yeates v. Illinois Cent. R. Co., 137 Fed. 943 (C.C.N.D.Ill.); Curtis v. Cleveland, C.C. & St. L. Ry. Co., 140 Fed. 777 (C. G. E.D.Ill.). See also Hough v. Railway Co., 100 U. S. 213 , 100 U. S. 226 ; Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368 ; Gardner v. Michigan Cent. R. Co., 150 U. S. 349 , 150 U. S. 358 ; Beutler v. Grand Trunk Junction Ry. Co., 224 U. S. 85 ; Baltimore & Ohio R. Co. v. Goodman, 275 U. S. 66 ; Pokora v. Wabash Ry. Co., 292 U. S. 98 ; Cole v. Pennsylvania R. Co., 43 F. (2d) 953 (C.C.A. 2). [ Footnote 14 ] Lake Shore & M. S. Ry. Co. v. Prentice, 147 U. S. 101 , 147 U. S. 106 ; Norfolk & P. Traction Co. v. Miller, 174 Fed. 607 (C.C.A. 4); Greene v. Keithley, 86 F. (2d) 239 (C.C.A. 8). [ Footnote 15 ] Foxcroft v. Mallet , 4 How. 353, 45 U. S. 379 ; Midland Valley R. Co. v. Sutter, 28 F. (2d) 163 (C.C.A. 8); Midland Valley R. Co. v. Jarvis, 29 F. (2d) 539 (C.C.A. 8). [ Footnote 16 ] Kuhn v. Fairmont Coal Co., 215 U. S. 349 ; Mid-Continent Petroleum Corp. v. Sauder, 67 F. (2d) 9, 12 (G. C.A. 10), reversed on other grounds, 292 U. S. 272 . [ Footnote 17 ] Lane v. Vick , 3 How. 464, 44 U. S. 476 ; Barber v. Pittsburgh, F. W. & C. R. Co., 166 U. S. 83 , 166 U. S. 99 -100; Messinger v. Anderson, 171 Fed. 785, 791-792 (C.C.A. 6), reversed on other grounds, 225 U. S. 225 U.S. 436; Knox & Lewis v. Alwood, 228 Fed. 753 (S.D.Ga.). [ Footnote 18 ] Compare, also, 49 U. S. Berry, 8 How. 495; Watson v. Tarpley , 18 How. 517; Gelpcke v. City of Dubuqe , 1 Wall. 175. [ Footnote 19 ] See Cheever v. Wilson , 9 Wall. 108, 76 U. S. 123 ; Robertson v. Carson , 19 Wall. 94, 86 U. S. 106 -107; Morris v. Gilmer, 129 U. S. 315 , 129 U. S. 328 ; Dickerman v. Northern Trust Co., 176 U. S. 181 , 176 U. S. 192 ; Williamson v. Osenton, 232 U. S. 619 , 232 U. S. 625 . [ Footnote 20 ] See, e.g., Hearings Before a Subcommittee of the Senate Committee on the Judiciary on S. 937, S. 939, and S. 3243, 72d Cong., 1st Sess. (1932) 6-8; Hearing Before the House Committee on the Judiciary on H.R. 10594, H.R. 4526, and H.R. 11508, 72d Cong., 1st Sess., ser. 12 (1932) 97-104; Sen.Rep. No. 530, 72d Cong., 1st Sess. (1932) 4-6; Collier, A Plea Against Jurisdiction Because of Diversity (1913) 76 Cent.L.J. 263, 264, 266; Frankfurter, supra, note 6; Ball supra, note 6; Warren Corporations and Diversity of Citizenship (1933) 19 Va.L.Rev. 661, 686. [ Footnote 21 ] Thus, bills which would abrogate the doctrine of Swift v. Tyson have been introduced. S. 4333, 70th Cong., 1st Sess.; S. 96, 71st Cong., 1st Sess.; H.R. 8094, 72d Cong., 1st Sess. See also Mills, supra, note 4 at 68-69; Dobie, supra, note 6 at 241; Frankfurter, supra, note 6 at 530; Campbell, supra, note 6 at 811. State statutes on conflicting questions of "general law" have also been suggested. See Heiskell, supra, note 4 at 760; Dawson, supra, note 6; Dobie supra, note 6 at 241. [ Footnote 22 ] The doctrine has not been without defenders. See Eliot, The Common Law of the Federal Courts (1902) 36 Am.L.Rev. 498, 523-25; A. B. Parker, The Common Law Jurisdiction of the United States Courts (1907) 17 Yale L.J. 1; Schofield, Swift v. Tyson: Uniformity of Judge-Made State Law in State and Federal Courts (1910) 4 Ill.L.Rev. 533; Brown, The Jurisdiction of the Federal Courts Based on Diversity of Citizenship (1929) 78 U. of Pa.L.Rev. 179, 189-91; J. J. Parker, The Federal Jurisdiction and Recent Attacks Upon It (1932) 18 A.B.A.J. 433, 438; Yntema, The Jurisdiction of the Federal Courts in Controversies Between Citizens of Different States (1933) 19 A.B.A.J. 71, 74-75; Beutel, Common Law Judicial Technique and the Law of Negotiable Instruments -- Two Unfortunate Decisions (1934) 9 Tulane L.Rev. 64. [ Footnote 23 ] Kuhn v. Fairmont Coal Co., 215 U. S. 349 , 215 U. S. 370 -372; Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U. S. 518 , 276 U. S. 532 -536. [ Footnote 24 ] Tompkins also contended that the alleged rule of the Falchetti case is not, in any event, applicable here because he was struck at the intersection of the longitudinal pathway and a transverse crossing. The court below found it unnecessary to consider this contention, and we leave the question open. MR. JUSTICE BUTLER. The case presented by the evidence is a simple one. Plaintiff was severely injured in Pennsylvania. While walking on defendant's right of way along a much-used path at the end of the crossties of its main track, he came into collision with an open door swinging from the side of a car in a train going in the opposite direction. Having been warned by whistle and headlight, he saw the locomotive Page 304 U. S. 81 approaching and had time and space enough to step aside and so avoid danger. To justify his failure to get out of the way, he says that, upon many other occasions he had safely walked there while trains passed. Invoking jurisdiction on the ground of diversity of citizenship, plaintiff, a citizen and resident of Pennsylvania, brought this suit to recover damages against defendant, a New York corporation, in the federal court for the southern district of that State. The issues were whether negligence of defendant was a proximate cause of his injuries and whether negligence of plaintiff contributed. He claimed that, by hauling the car with the open door, defendant violated a duty to him. The defendant insisted that it violated no duty and that plaintiff's injuries were caused by his own negligence. The jury gave him a verdict on which the trial court entered judgment; the circuit court of appeals affirmed. 90 F (2d) 603. Defendant maintained, citing Falchetti v. Pennsylvania R. Co., 307 Pa. 203, 160 A. 859, and Koontz v. B. & O. R. Co., 309 Pa. 122, 163 A. 212, that the only duty owed plaintiff was to refrain from willfully or wantonly injuring him; it argued that the courts of Pennsylvania had so ruled with respect to persons using a customary longitudinal path, as distinguished from one crossing the track. The plaintiff insisted that the Pennsylvania decisions did not establish the rule for which the defendant contended. Upon that issue, the circuit court of appeals said (p. 604): "We need not go into this matter since the defendant concedes that the great weight of authority in other states is to the contrary. This concession is fatal to its contention, for upon questions of general law the federal courts are free, in absence of a local statute, to exercise their independent judgment as to what the law is, and it is well settled that the question of the responsibility of a railroad for injuries caused by its servants is one of general law. Page 304 U. S. 82 Upon that basis the court held the evidence sufficient to sustain a finding that plaintiff's injuries were caused by the negligence of defendant. It also held the question of contributory negligence one for the jury." Defendant's petition for writ of certiorari presented two questions: whether its duty toward plaintiff should have been determined in accordance with the law as found by the highest court of Pennsylvania, and whether the evidence conclusively showed plaintiff guilty of contributory negligence. Plaintiff contends that, as always heretofore held by this Court, the issues of negligence and contributory negligence are to be determined by general law against which local decisions may not be held conclusive; that defendant relies on a solitary Pennsylvania case of doubtful applicability and that, even if the decisions of the courts of that State were deemed controlling, the same result would have to be reached. No constitutional question was suggested or argued below or here. And as a general rule, this Court will not consider any question not raised below and presented by the petition. Olson v. United States, 292 U. S. 246 , 292 U. S. 262 . Johnson v. Manhattan Ry. Co., 289 U. S. 479 , 289 U. S. 494 . Gunning v. Cooley, 281 U. S. 90 , 281 U. S. 98 . Here it does not decide either of the questions presented but, changing the rule of decision in force since the foundation of the Government, remands the case to be adjudged according to a standard never before deemed permissible. The opinion just announced states that "the question for decision is whether the oft-challenged doctrine of Swift v. Tyson [1842, 16 Pet. 1] shall now be disapproved." That case involved the construction of the Judiciary Act of 1789, § 34: "The laws of the several states, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of Page 304 U. S. 83 the United States in cases where they apply." Expressing the view of all the members of the Court, Mr. Justice Story said (p. 18): "In the ordinary use of language it will hardly be contended that the decisions of Courts constitute laws. They are, at most, only evidence of what the laws are, and not of themselves laws. They are often reexamined, reversed, and qualified by the Courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect. The laws of a state are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long established local customs having the force of laws. In all the various cases, which have hitherto come before us for decision, this Court have uniformly supposed that the true interpretation of the thirty-fourth section limited its application to state laws strictly local, that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character. It never has been supposed by us that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case. And we have not now the slightest difficulty in holding that this section, upon its true intendment and construction, is strictly limited to local statutes and local usages of the character Page 304 U. S. 84 before stated, and does not extend to contracts and other instruments of a commercial nature, the true interpretation and effect whereof are to be sought not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence. Undoubtedly, the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate attention and respect of this Court; but they cannot furnish positive rules, or conclusive authority, by which our own judgments are to be bound up and governed." (Italics added.) The doctrine of that case has been followed by this Court in an unbroken line of decisions. So far as appears, it was not questioned until more than 50 years later, and then by a single judge. [ Footnote 2/1 ] Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368 , 149 U. S. 390 . In that case, Mr. Justice Brewer, speaking for the Court, truly said (p. 149 U. S. 373 ): "Whatever differences of opinion may have been expressed have not been on the question whether a matter of general law should be settled by the independent judgment of this court, rather than through an adherence to the decisions of the state courts, but upon the other question, whether a given matter is one of local or of general law." And since that decision, the division of opinion in this Court has been one of the same character as it was before. In 1910, Mr. Justice Holmes, speaking for himself and two other Justices, dissented from the holding that a Page 304 U. S. 85 court of the United States was bound to exercise its own independent judgment in the construction of a conveyance made before the state courts had rendered an authoritative decision as to its meaning and effect. Kuhn v. Fairmont Coal Co., 215 U. S. 349 . But that dissent accepted (p. 215 U. S. 371 ) as "settled" the doctrine of Swift v. Tyson, and insisted (p. 215 U. S. 372 ) merely that the case under consideration was, by nature and necessity, peculiarly local. Thereafter, as before, the doctrine was constantly applied. [ Footnote 2/2 ] In Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U. S. 518 , three judges dissented. The writer of the dissent, Mr. Justice Holmes, said, however (p. 276 U. S. 535 ): "I should leave Swift v. Tyson undisturbed, as I indicated in Kuhn v. Fairmont Coal Co., but I would not allow it to spread the assumed dominion into new fields." No more unqualified application of the doctrine can be found than in decisions of this Court speaking through Mr. Justice Holmes. United Zinc Co. v. Britt, 258 U. S. 268 . Baltimore & Ohio R. Co. v. Goodman, 275 U. S. 66 , 275 U. S. 70 . Without in the slightest departing from that doctrine, but implicitly applying it, the strictness of the rule laid down in the Goodman case was somewhat ameliorated by Pokora v. Wabash Ry. Co., 292 U. S. 98 . Whenever possible, consistently with standards sustained by reason and authority constituting the general law, this Court has followed applicable decisions of state courts. Mutual Life Ins. Co. v. Johnson, 293 U. S. 335 , 293 U. S. 339 . See Burgess v. Seligman, 107 U. S. 20 , 107 U. S. 34 . Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., supra, 276 U. S. 530 . Unquestionably the issues of negligence and contributory negligence upon which decision of this case Page 304 U. S. 86 depends are questions of general law. Hough v. Railway Co., 100 U. S. 213 , 100 U. S. 226 . Lake Shore & M. S. Ry. Co. v. Prentice, 147 U. S. 101 . Baltimore & Ohio R. Co. v. Baugh, supra. Gardner v. Michigan Central R. Co., 150 U. S. 349 , 150 U. S. 358 . Central Vermont Ry. Co. v. White, 238 U. S. 507 , 238 U. S. 512 . Baltimore & Ohio R. Co. v. Goodman, supra. Pokora v. Wabash Ry. Co., supra. While amendments to § 34 have from time to time been suggested, the section stands as originally enacted. Evidently Congress has intended throughout the years that the rule of decision as construed should continue to govern federal courts in trials at common law. The opinion just announced suggests that Mr. Warren's research has established that, from the beginning, this Court has erroneously construed § 34. But that author's "New Light on the History of the Federal Judiciary Act of 1789" does not purport to be authoritative, and was intended to be no more than suggestive. The weight to be given to his discovery has never been discussed at this bar. Nor does the opinion indicate the ground disclosed by the research. In his dissenting opinion in the Taxicab case, Mr. Justice Holmes referred to Mr. Warren's work, but failed to persuade the Court that "laws" as used in § 34 included varying and possibly ill-considered rulings by the courts of a State on questions of common law. See, e.g., Swift v. Tyson, supra, 117 [argument of counsel -- omitted]. It well may be that, if the Court should now call for argument of counsel on the basis of Mr. Warren's research, it would adhere to the construction it has always put upon § 34. Indeed, the opinion in this case so indicates. For it declares: "If only a question of statutory construction were involved, we should not be prepared to abandon a doctrine so widely applied throughout a century. But the unconstitutionality of the course pursued has now been made clear, and compels us to do so." This means that, so far as concerns the rule of decision now condemned, the Judiciary Act of 1789, passed to establish judicial Page 304 U. S. 87 courts to exert the judicial power of the United States, and especially § 34 of that Act as construed, is unconstitutional; that federal courts are now bound to follow decisions of the courts of the State in which the controversies arise, and that Congress is powerless otherwise to ordain. It is hard to foresee the consequences of the radical change so made. Our opinion in the Taxicab case cites numerous decisions of this Court which serve in part to indicate the field from which it is now intended forever to bar the federal courts. It extends to all matters of contracts and torts not positively governed by state enactments. Counsel searching for precedent and reasoning to disclose common law principles on which to guide clients and conduct litigation are, by this decision, told that, as to all of these questions, the decisions of this Court and other federal courts are no longer anywhere authoritative. This Court has often emphasized its reluctance to consider constitutional questions, and that legislation will not be held invalid as repugnant to the fundamental law if the case may be decided upon any other ground. In view of grave consequences liable to result from erroneous exertion of its power to set aside legislation, the Court should move cautiously, seek assistance of counsel, act only after ample deliberation, show that the question is before the Court, that its decision cannot be avoided by construction of the statute assailed or otherwise, indicate precisely the principle or provision of the Constitution held to have been transgressed, and fully disclose the reasons and authorities found to warrant the conclusion of invalidity. These safeguards against the improvident use of the great power to invalidate legislation are so well grounded and familiar that statement of reasons or citation of authority to support them is no longer necessary. But see, e.g.: 36 U. S. Warren Bridge, 11 Pet. 420, 36 U. S. 553 ; Township of Pine Grove v. Talcott , 19 Wall. 666, 86 U. S. 673 ; Chicago & G. T. Ry. Co. v. Wellman, 143 U. S. 339 , 143 U. S. 345 ; Page 304 U. S. 88 Baker v. Grice, 169 U. S. 284 , 169 U. S. 292 ; Martin v. District of Columbia, 205 U. S. 135 , 205 U. S. 140 . So far as appears, no litigant has ever challenged the power of Congress to establish the rule as construed. It has so long endured that its destruction now without appropriate deliberation cannot be justified. There is nothing in the opinion to suggest that consideration of any constitutional question is necessary to a decision of the case. By way of reasoning, it contains nothing that requires the conclusion reached. Admittedly, there is no authority to support that conclusion. Against the protest of those joining in this opinion, the Court declines to assign the case for reargument. It may not justly be assumed that the labor and argument of counsel for the parties would not disclose the right conclusion and aid the Court in the statement of reasons to support it. Indeed, it would have been appropriate to give Congress opportunity to be heard before divesting it of power to prescribe rules of decision to be followed in the courts of the United States. See Myers v. United States, 272 U. S. 52 , 272 U. S. 176 . The course pursued by the Court in this case is repugnant to the Act of Congress of August 24, 1937, 50 Stat. 751. It declares: "That whenever the constitutionality of any Act of Congress affecting the public interest is drawn in question in any court of the United States in any suit or proceeding to which the United States, or any agency thereof, or any officer or employee thereof, as such officer or employee, is not a party, the court having jurisdiction of the suit or proceeding shall certify such fact to the Attorney General. In any such case, the court shall permit the United States to intervene and become a party for presentation of evidence (if evidence is otherwise receivable in such suit or proceeding) and argument upon the question of the constitutionality of such Act. In any such suit or proceeding, the United States shall, subject to the applicable provisions of law, have all the rights of a Page 304 U. S. 89 party and the liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the constitutionality of such Act." That provision extends to this Court. § 5. If defendant had applied for and obtained the writ of certiorari upon the claim that, as now held, Congress has no power to prescribe the rule of decision, § 34 as construed, it would have been the duty of this Court to issue the prescribed certificate to the Attorney General in order that the United States might intervene and be heard on the constitutional question. Within the purpose of the statute and its true intent and meaning, the constitutionality of that measure has been "drawn in question." Congress intended to give the United States the right to be heard in every case involving constitutionality of an Act affecting the public interest. In view of the rule that, in the absence of challenge of constitutionality, statutes will not here be invalidated on that ground, the Act of August 24, 1937, extends to cases where constitutionality is first "drawn in question" by the Court. No extraordinary or unusual action by the Court after submission of the cause should be permitted to frustrate the wholesome purpose of that Act. The duty it imposes ought here to be willingly assumed. If it were doubtful whether this case is within the scope of the Act, the Court should give the United States opportunity to intervene and, if so advised, to present argument on the constitutional question, for undoubtedly it is one of great public importance. That would be to construe the Act according to its meaning. The Court's opinion in its first sentence defines the question to be whether the doctrine of Swift v. Tyson shall now be disapproved; it recites (p. 304 U. S. 72 ) that Congress is without power to prescribe rules of decision that have been followed by federal courts as a result of the construction of § 34 in Swift v. Tyson, and since; after discussion, it declares (pp. 304 U. S. 77 -78) that "the unconstitutionality of the course pursued [meaning the rule of decision Page 304 U. S. 90 resulting from that construction] compels" abandonment of the doctrine so long applied, and then near the end of the last page the Court states that it does not hold § 34 unconstitutional, but merely that, in applying the doctrine of Swift v. Tyson construing it, this Court and the lower courts have invaded rights which are reserved by the Constitution to the several States. But, plainly through the form of words employed, the substance of the decision appears; it strikes down as unconstitutional § 34 as construed by our decisions; it divests the Congress of power to prescribe rules to be followed by federal courts when deciding questions of general law. In that broad field it compels this and the lower federal courts to follow decisions of the courts of a particular State. I am of opinion that the constitutional validity of the rule need not be considered, because under the law, as found by the courts of Pennsylvania and generally throughout the country, it is plain that the evidence required a finding that plaintiff was guilty of negligence that contributed to cause his injuries and that the judgment below should be reversed upon that ground. MR. JUSTICE McREYNOLDS concurs in this opinion. [ Footnote 2/1 ] Mr. Justice Field filed a dissenting opinion, several sentences of which are quoted in the decision just announced. The dissent failed to impress any of his associates. It assumes that adherence to § 34 as construed involves a supervision over legislative or judicial action of the states. There is no foundation for that suggestion. Clearly, the dissent of the learned Justice rests upon misapprehension of the rule. He joined in applying the doctrine for more than a quarter of a century before his dissent. The reports do not disclose that he objected to it in any later case. Cf. Oakes v. Mase, 165 U. S. 363 . [ Footnote 2/2 ] In Salem Trust Co. v. Manufacturers' Finance Co., 264 U. S. 182 , Mr. Justice Holmes and Mr. Justice Brandeis concurred (p. 264 U. S. 200 ) in the judgment of the Court upon a question of general law on the ground that the rights of the parties were governed by state law. MR. JUSTICE REED. I concur in the conclusion reached in this case, in the disapproval of the doctrine of Swift v. Tyson, and in the reasoning of the majority opinion except insofar as it relies upon the unconstitutionality of the "course pursued" by the federal courts. The "doctrine of Swift v. Tyson, " as I understand it, is that the words "the laws," as used in § 34, line one, of the Federal Judiciary Act of September 24, 1789, do not include in their meaning "the decisions of the local tribunals." Mr. Justice Story, in deciding that point, said (16 Pet. 41 U. S. 19 ): Page 304 U. S. 91 "Undoubtedly, the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate attention and respect of this Court; but they cannot furnish positive rules, or conclusive authority, by which our own judgments are to be bound up and governed." To decide the case now before us and to "disapprove" the doctrine of Swift v. Tyson requires only that we say that the words "the laws" include in their meaning the decisions of the local tribunals. As the majority opinion shows, by its reference to Mr. Warren's researches and the first quotation from Mr. Justice Holmes, that this Court is now of the view that "laws" includes "decisions," it is unnecessary to go further and declare that the "course pursued" was "unconstitutional," instead of merely erroneous. The "unconstitutional" course referred to in the majority opinion is apparently the ruling in Swift v. Tyson that the supposed omission of Congress to legislate as to the effect of decisions leaves federal courts free to interpret general law for themselves. I am not at all sure whether, in the absence of federal statutory direction, federal courts would be compelled to follow state decisions. There was sufficient doubt about the matter in 1789 to induce the first Congress to legislate. No former opinions of this Court have passed upon it. Mr. Justice Holmes evidently saw nothing "unconstitutional" which required the overruling of Swift v. Tyson, for he said in the very opinion quoted by the majority, "I should leave Swift v. Tyson undisturbed, as I indicated in Kuhn v. Fairmont Coal Co., but I would not allow it to spread the assumed dominion into new fields." Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U. S. 518 , 276 U. S. 535 . If the opinion commits this Court to the position that the Congress is without power to declare what rules of substantive law shall govern the federal courts, that conclusion also seems questionable. The line between procedural and substantive law is hazy, but no one doubts federal power over procedure. Wayman v. Southard , 10 Wheat. 1. The Judiciary Article and the "necessary and proper" clause of Article One may fully authorize legislation, such as this section of the Judiciary Act. In this Court, stare decisis, in statutory construction, is a useful rule, not an inexorable command. Burnett v. Coronado Oil & Gas Co., 285 U. S. 393 , dissent, p. 285 U. S. 406 , note 1. Compare Read v. Bishop of Lincoln, [1892] A.C. 644, 655; London Street Tramways Co. v. London County Council, [1898] A.C. 375, 379. It seems preferable to overturn an established construction of an Act of Congress, rather than, in the circumstances of this case, to interpret the Constitution. Cf. United States v. Delaware & Hudson Co., 213 U. S. 366 . There is no occasion to discuss further the range or soundness of these few phrases of the opinion. It is sufficient now to call attention to them and express my own nonacquiescence.

Here is a summary of the verdict in the Supreme Court case Erie Railroad Co. v. Tompkins: In this case, the Supreme Court decided that a federal court hearing a case based on diversity of citizenship must apply the state's law, including its common law as declared by the state's highest court, rather than its own interpretation of general law. The Court overruled the previous doctrine established in Swift v. Tyson, which allowed federal courts to treat certain questions as matters of "general law" and make their own decisions without regard to state law. The Court clarified that there is no federal general common law and that Congress has no power to declare substantive rules of common law applicable in a state. The decision upholds the principle that, except in matters governed by the Constitution or Acts of Congress, the law to be applied in any case is the law of the state where the incident occurred.

Lawsuits & Legal Procedures

Klaxon Co. v. Stentor Electric Manufacturing Co., Inc.

https://supreme.justia.com/cases/federal/us/313/487/

U.S. Supreme Court Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487 (1941) Klaxon Company v. Stentor Electric Manufacturing Co., Inc. No. 741 Argued May 1, 2, 1941 Decided June 2, 1941 313 U.S. 487 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT Syllabus 1. In diversity of citizenship cases, the federal courts, when deciding questions of conflict of laws, must follow the rules prevailing in the States in which they sit. Erie R. Co. v. Tompkins, 304 U. S. 64 . P. 313 U. S. 496 . 2. In an action in a federal court. in Delaware, for breach of a New York contract, the applicability of a New York statute directing that interest be added to the recovery in contract cases is a question of conflict of laws, which the federal court must determine by the law of Delaware. P. 313 U. S. 496 . 3. The Full Faith and Credit Clause does not require that a State, contrary to its own policy, shall give effect in actions brought locally on contracts made in other States, to laws of those States relating, not to the validity of such contracts, but to the right to add interest to the recovery as an incidental item of damages. Page 313 U. S. 488 § 480 N.Y.Civ.Prac. Act. John Hancock Mutual Life Inc. Co. v. Yates, 299 U. S. 178 , distinguished. P. 313 U. S. 497 . 115 F.2d 268, reversed. Certiorari, 312 U.S. 674, to review the affirmance of a judgment recovered for breach of a contract, 30 F. Supp. 425 . The review in this Court was limited to the question whether § 480 of the New York Civil Practice Act is applicable to an action in the federal court in Delaware. Page 313 U. S. 494 MR. JUSTICE REED delivered the opinion of the Court. The principal question in this case is whether, in diversity cases, the federal courts must follow conflict of laws rules prevailing in the states in which they sit. We left this open in Ruhlin v. New York Life Insurance Co., 304 U. S. 202 , 304 U. S. 208 , note 2. The frequent recurrence of the problem, as well as the conflict of approach to the problem between the Third Circuit's opinion here and that of the First Circuit in Sampson v. Channell, 110 F.2d 754, 759-762, led us to grant certiorari. In 1918, respondent, a New York corporation, transferred its entire business to petitioner, a Delaware corporation. Petitioner contracted to use its best efforts to further the manufacture and sale of certain patented devices covered by the agreement, and respondent was to have a share of petitioner's profits. The agreement was executed in New York, the assets were transferred there, and petitioner began performance there although later it moved its operations to other states. Respondent was voluntarily dissolved under New York law in 1919. Ten years later, it instituted this action in the United States District Court for the District of Delaware, alleging that petitioner had failed to perform its agreement to use its best efforts. Jurisdiction rested on diversity of citizenship. In 1939, respondent recovered a jury verdict of $100,000, upon which judgment was entered. Respondent then moved to correct the judgment by adding interest Page 313 U. S. 495 at the rate of six percent from June 1, 1929, the date the action had been brought. The basis of the motion was the provision in section 480 of the New York Civil Practice Act directing that, in contract actions, interest be added to the principal sum "whether theretofore liquidated or unliquidated." [ Footnote 1 ] The District Court granted the motion, taking the view that the rights of the parties were governed by New York law and that, under New York law, the addition of such interest was mandatory. 30 F. Supp. 425 , 431. The Circuit Court of Appeals affirmed, 115 F.2d 268, 275, and we granted certiorari, limited to the question whether section 480 of the New York Civil Practice Act is applicable to an action in the federal court in Delaware. 312 U.S. 674. The Circuit Court of Appeals was of the view that, under New York law, the right to interest before verdict under section 480 went to the substance of the obligation, and that proper construction of the contract in suit fixed New York as the place of performance. It then concluded that section 480 was applicable to the case because "it is clear by what we think is undoubtedly the better view of the law that the rules for ascertaining the measure of damages are not a matter of procedure at all, but are Page 313 U. S. 496 matters of substance which should be settled by reference to the law of the appropriate state according to the type of case being tried in the forum. The measure of damages for breach of a contract is determined by the law of the place of performance; Restatement, Conflict of Laws § 413." The court referred also to section 418 of the Restatement, which makes interest part of the damages to be determined by the law of the place of performance. Application of the New York statute apparently followed from the court's independent determination of the "better view," without regard to Delaware law, for no Delaware decision or statute was cited or discussed. We are of opinion that the prohibition declared in Erie R. Co. v. Tompkins, 304 U. S. 64 , against such independent determinations by the federal courts extends to the field of conflict of laws. The conflict of laws rules to be applied by the federal court in Delaware must conform to those prevailing in Delaware's state courts. [ Footnote 2 ] Otherwise, the accident of diversity of citizenship would constantly disturb equal administration of justice in coordinate state and federal courts sitting side by side. See Erie R. Co. v. Tompkins, supra, at 304 U. S. 74 -77. Any other ruling would do violence to the principle of uniformity within a state upon which the Tompkins decision is based. Whatever lack of uniformity this may produce between federal courts in different states is attributable to our federal system, which leaves to a state, within the limits permitted by the Constitution, the right to pursue local policies diverging from those of its neighbors. It is not for the federal courts to thwart such local policies by enforcing an independent "general law" of conflict of laws. Subject only to review by this Court Page 313 U. S. 497 on any federal question that may arise, Delaware is free to determine whether a given matter is to be governed by the law of the forum or some other law. Cf. Milwaukee County v. White Co., 296 U. S. 268 , 296 U. S. 272 . This Court's views are not the decisive factor in determining the applicable conflicts rule. Cf. Funkhouser v. J. B. Preston Co., 290 U. S. 163 . And the proper function of the Delaware federal court is to ascertain what the state law is, not what it ought to be. Besides these general considerations, the traditional treatment of interest in diversity cases brought in the federal courts points to the same conclusion. Section 966 of the Revised Statutes, 28 U.S.C. § 811, relating to interest on judgments, provides that it be calculated from the date of judgment at such rate as is allowed by law on judgments recovered in the courts of the state in which the court is held. In Massachusetts Benefit Association v. Miles, 137 U. S. 689 , this Court held that section 966 did not exclude the allowance of interest on verdicts as well as judgments, and the opinion observed that "the courts of the state and the federal courts sitting within the state should be in harmony upon this point." (P. 137 U. S. 691 .) Looking, then, to the Delaware cases, petitioner relies on one group to support his contention that the Delaware state courts would refuse to apply § 480 of the New York Civil Practice Act, and respondent on another to prove the contrary. We make no analysis of these Delaware decisions, but leave this for the Circuit Court of Appeals when the case is remanded. Respondent makes the further argument that the judgment must be affirmed because, under the full faith and credit clause of the Constitution, Art. 4, § 1, the state courts of Delaware would be obliged to give effect to the New York statute. The argument rests mainly on the decision of this Court in John Hancock Mutual Life Ins. Co. v. Yates , Page 313 U. S. 498 299 U. S. 178 , where a New York statute was held such an integral part of a contract of insurance that Georgia was compelled to sustain the contract under the full faith and credit clause. Here, however, section 480 of the New York Civil Practice Act is in no way related to the validity of the contract in suit, but merely to an incidental item of damages, interest, with respect to which courts at the forum have commonly been free to apply their own or some other law as they see fit. Nothing in the Constitution ensures unlimited extraterritorial recognition of all statutes or of any statute under all circumstances. Pacific Employers Insurance Co. v. Industrial Accident Comm'n, 306 U. S. 493 ; Kryger v. Wilson, 242 U. S. 171 . The full faith and credit clause does not go so far as to compel Delaware to apply section 480 if such application would interfere with its local policy. Accordingly, the judgment is reversed and the case remanded to the Circuit Court of Appeals for decision in conformity with the law of Delaware. Reversed. [ Footnote 1 ] Section 480, New York Civil Practice Act: "Interest to be included in recovery. Where in any action, except as provided in section four hundred eighty-a, final judgment is rendered for a sum of money awarded by a verdict, report, or decision, interest upon the total amount awarded, from the time when the verdict was rendered or the report or decision was made to the time of entering judgment, must be computed by the clerk, added to the total amount awarded, and included in the amount of the judgment. In every action wherein any sum of money shall be awarded by verdict, report, or decision upon a cause of action for the enforcement of or based upon breach of performance of a contract, express or implied, interest shall be recovered upon the principal sum, whether theretofore liquidated or unliquidated, and shall be added to and be a part of the total sum awarded." [ Footnote 2 ] An opinion in Sampson v. Channell, 110 F.2d 754, 759-762, reaches the same conclusion, as does an opinion of the Third Circuit handed down subsequent to the case at bar, Waggaman v. General Finance Co., 116 F.2d 254, 257. See also Goodrich, Conflict of Laws, § 12.

In Klaxon Co. v. Stentor Electric Manufacturing Co., the US Supreme Court ruled that federal courts must apply the conflict of laws rules of the states in which they are located when hearing cases based on diversity of citizenship jurisdiction. The Court also clarified that the Full Faith and Credit Clause does not require a state to apply another state's laws relating to incidental items of damages, such as interest on a contract breach judgment, if doing so would conflict with the forum state's local policy.

Equal Protection

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College

https://supreme.justia.com/cases/federal/us/600/20-1199/

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. SUPREME COURT OF THE UNITED STATES _________________ Nos. 20–1199 and 21–707 _________________ STUDENTS FOR FAIR ADMISSIONS, INC., PETITIONER 20–1199 v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE on writ of certiorari to the united states court of appeals for the first circuit STUDENTS FOR FAIR ADMISSIONS, INC., PETITIONER 21–707 v. UNIVERSITY OF NORTH CAROLINA, et al. on writ of certiorari before judgment to the united states court of appeals for the fourth circuit [June 29, 2023] Chief Justice Roberts delivered the opinion of the Court. In these cases we consider whether the admissions systems used by Harvard College and the University of North Carolina, two of the oldest institutions of higher learning in the United States, are lawful under the Equal Protection Clause of the Fourteenth Amendment. I A Founded in 1636, Harvard College has one of the most selective application processes in the country. Over 60,000 people applied to the school last year; fewer than 2,000 were admitted. Gaining admission to Harvard is thus no easy feat. It can depend on having excellent grades, glowing recommendation letters, or overcoming significant adversity. See 980 F.3d 157, 166–169 (CA1 2020). It can also depend on your race. The admissions process at Harvard works as follows. Every application is initially screened by a “first reader,” who assigns scores in six categories: academic, extracurricular, athletic, school support, personal, and overall. Ibid. A rating of “1” is the best; a rating of “6” the worst. Ibid. In the academic category, for example, a “1” signifies “near-perfect standardized test scores and grades”; in the extracurricular category, it indicates “truly unusual achievement”; and in the personal category, it denotes “outstanding” attributes like maturity, integrity, leadership, kindness, and courage. Id. , at 167–168. A score of “1” on the overall rating—a composite of the five other ratings—“signifies an exceptional candidate with >90% chance of admission.” Id. , at 169 (internal quotation marks omitted). In assigning the overall rating, the first readers “can and do take an applicant’s race into account.” Ibid. Once the first read process is complete, Harvard convenes admissions subcommittees. Ibid . Each subcommittee meets for three to five days and evaluates all applicants from a particular geographic area. Ibid. The subcommittees are responsible for making recommendations to the full admissions committee. Id. , at 169–170. The subcommittees can and do take an applicant’s race into account when making their recommendations. Id. , at 170. The next step of the Harvard process is the full committee meeting. The committee has 40 members, and its discussion centers around the applicants who have been recommended by the regional subcommittees. Ibid. At the beginning of the meeting, the committee discusses the relative breakdown of applicants by race. The “goal,” according to Harvard’s director of admissions, “is to make sure that [Harvard does] not hav[e] a dramatic drop-off ” in minority admissions from the prior class. 2 App. in No. 20–1199, pp. 744, 747–748. Each applicant considered by the full committee is discussed one by one, and every member of the committee must vote on admission. 980 F. 3d, at 170. Only when an applicant secures a majority of the full committee’s votes is he or she tentatively accepted for admission. Ibid. At the end of the full committee meeting, the racial composition of the pool of tentatively admitted students is disclosed to the committee. Ibid. ; 2 App. in No. 20–1199, at 861. The final stage of Harvard’s process is called the “lop,” during which the list of tentatively admitted students is winnowed further to arrive at the final class. Any applicants that Harvard considers cutting at this stage are placed on a “lop list,” which contains only four pieces of information: legacy status, recruited athlete status, financial aid eligibility, and race. 980 F. 3d, at 170. The full committee decides as a group which students to lop. 397 F. Supp. 3d 126, 144 (Mass. 2019). In doing so, the committee can and does take race into account. Ibid. Once the lop process is complete, Harvard’s admitted class is set. Ibid. In the Harvard admissions process, “race is a determinative tip for” a significant percentage “of all admitted African American and Hispanic applicants.” Id. , at 178. B Founded shortly after the Constitution was ratified, the University of North Carolina (UNC) prides itself on being the “nation’s first public university.” 567 F. Supp. 3d 580, 588 (MDNC 2021). Like Harvard, UNC’s “admissions process is highly selective”: In a typical year, the school “receives approximately 43,500 applications for its freshman class of 4,200.” Id. , at 595. Every application the University receives is initially reviewed by one of approximately 40 admissions office readers, each of whom reviews roughly five applications per hour. Id. , at 596, 598. Readers are required to consider “[r]ace and ethnicity . . . as one factor” in their review. Id. , at 597 (internal quotation marks omitted). Other factors include academic performance and rigor, standardized testing results, extracurricular involvement, essay quality, personal factors, and student background. Id. , at 600. Readers are responsible for providing numerical ratings for the academic, extracurricular, personal, and essay categories. Ibid. During the years at issue in this litigation, underrepresented minority students were “more likely to score [highly] on their personal ratings than their white and Asian American peers,” but were more likely to be “rated lower by UNC readers on their academic program, academic performance, . . . extracurricular activities,” and essays. Id. , at 616–617. After assessing an applicant’s materials along these lines, the reader “formulates an opinion about whether the student should be offered admission” and then “writes a comment defending his or her recommended decision.” Id. , at 598 (internal quotation marks omitted). In making that decision, readers may offer students a “plus” based on their race, which “may be significant in an individual case.” Id. , at 601 (internal quotation marks omitted). The admissions decisions made by the first readers are, in most cases, “provisionally final.” Students for Fair Admissions, Inc. v. University of N. C. at Chapel Hill , No. 1:14–cv–954 (MDNC, Nov. 9, 2020), ECF Doc. 225, p. 7, ¶52. Following the first read process, “applications then go to a process called ‘school group review’ . . . where a committee composed of experienced staff members reviews every [initial] decision.” 567 F. Supp. 3d, at 599. The review committee receives a report on each student which contains, among other things, their “ class rank, GPA, and test scores; the ratings assigned to them by their initial readers; and their status as residents, legacies, or special recruits.” Ibid. (footnote omitted). The review committee either approves or rejects each admission recommendation made by the first reader, after which the admissions decisions are finalized. Ibid. In making those decisions, the review committee may also consider the applicant’s race. Id. , at 607; 2 App. in No. 21–707, p. 407.[ 1 ] C Petitioner, Students for Fair Admissions (SFFA), is a nonprofit organization founded in 2014 whose purpose is “to defend human and civil rights secured by law, including the right of individuals to equal protection under the law.” 980 F. 3d, at 164 (internal quotation marks omitted). In November 2014, SFFA filed separate lawsuits against Harvard College and the University of North Carolina, arguing that their race-based admissions programs violated, respectively, Title VI of the Civil Rights Act of 1964, 78Stat. 252, 42 U. S. C. §2000d et seq. , and the Equal Protection Clause of the Fourteenth Amendment.[ 2 ] See 397 F. Supp. 3d, at 131–132; 567 F. Supp. 3d, at 585–586. The District Courts in both cases held bench trials to evaluate SFFA’s claims. See 980 F. 3d, at 179; 567 F. Supp. 3d, at 588. Trial in the Harvard case lasted 15 days and included testimony from 30 witnesses, after which the Court concluded that Harvard’s admissions program comported with our precedents on the use of race in college admissions. See 397 F. Supp. 3d, at 132, 183. The First Circuit affirmed that determination. See 980 F. 3d, at 204. Similarly, in the UNC case, the District Court concluded after an eight-day trial that UNC’s admissions program was permissible under the Equal Protection Clause. 567 F. Supp. 3d, at 588, 666. We granted certiorari in the Harvard case and certiorari before judgment in the UNC case. 595 U. S. ___ (2022). II Before turning to the merits, we must assure ourselves of our jurisdiction. See Summers v. Earth Island Institute , 555 U.S. 488 , 499 (2009). UNC argues that SFFA lacks standing to bring its claims because it is not a “genuine” membership organization. Brief for University Respondents in No. 21–707, pp. 23–26. Every court to have considered this argument has rejected it, and so do we. See Students for Fair Admissions, Inc. v. University of Tex. at Austin , 37 F. 4th 1078, 1084–1086, and n. 8 (CA5 2022) (collecting cases). Article III of the Constitution limits “[t]he judicial power of the United States” to “cases” or “controversies,” ensuring that federal courts act only “as a necessity in the determination of real, earnest and vital” disputes. Muskrat v. United States , 219 U.S. 346 , 351, 359 (1911) (internal quotation marks omitted). “To state a case or controversy under Article III, a plaintiff must establish standing.” Arizona Christian School Tuition Organization v. Winn , 563 U.S. 125 , 133 (2011). That, in turn, requires a plaintiff to demonstrate that it has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins , 578 U.S. 330, 338 (2016). In cases like these, where the plaintiff is an organization, the standing requirements of Article III can be satisfied in two ways. Either the organization can claim that it suffered an injury in its own right or, alternatively, it can assert “standing solely as the representative of its members.” Warth v. Seldin , 422 U.S. 490 , 511 (1975). The latter approach is known as representational or organizational standing. Ibid. ; Summers , 555 U. S., at 497–498. To invoke it, an organization must demonstrate that “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Washington State Apple Advertising Comm’n , 432 U.S. 333 , 343 (1977). Respondents do not contest that SFFA satisfies the three-part test for organizational standing articulated in Hunt , and like the courts below, we find no basis in the record to conclude otherwise. See 980 F. 3d, at 182–184; 397 F. Supp. 3d, at 183–184; No. 1:14–cv–954 (MDNC, Sept. 29, 2018), App. D to Pet. for Cert. in No. 21–707, pp. 237–245 (2018 DC Opinion). Respondents instead argue that SFFA was not a “genuine ‘membership organization’ ” when it filed suit, and thus that it could not invoke the doctrine of organizational standing in the first place. Brief for University Respondents in No. 21–707, at 24. According to respondents, our decision in Hunt established that groups qualify as genuine membership organizations only if they are controlled and funded by their members. And because SFFA’s members did neither at the time this litigation commenced, respondents’ argument goes, SFFA could not represent its members for purposes of Article III standing. Brief for University Respondents in No. 21–707, at 24 (citing Hunt , 432 U. S., at 343). Hunt involved the Washington State Apple Advertising Commission, a state agency whose purpose was to protect the local apple industry. The Commission brought suit challenging a North Carolina statute that imposed a labeling requirement on containers of apples sold in that State. The Commission argued that it had standing to challenge the requirement on behalf of Washington’s apple industry. See id. , at 336–341. We recognized, however, that as a state agency, “the Commission [wa]s not a traditional voluntary membership organization . . . , for it ha[d] no members at all.” Id. , at 342. As a result, we could not easily apply the three-part test for organizational standing, which asks whether an organization’s members have standing. We nevertheless concluded that the Commission had standing because the apple growers and dealers it represented were effectively members of the Commission. Id. , at 344. The growers and dealers “alone elect[ed] the members of the Commission,” “alone . . . serve[d] on the Commission,” and “alone finance[d] its activities”—they possessed, in other words, “all of the indicia of membership.” Ibid. The Commission was therefore a genuine membership organization in substance, if not in form. And it was “clearly” entitled to rely on the doctrine of organizational standing under the three-part test recounted above. Id. , at 343. The indicia of membership analysis employed in Hunt has no applicability in these cases. Here, SFFA is indisputably a voluntary membership organization with identifiable members—it is not, as in Hunt , a state agency that concededly has no members. See 2018 DC Opinion 241–242. As the First Circuit in the Harvard litigation observed, at the time SFFA filed suit, it was “a validly incorporated 501(c)(3) nonprofit with forty-seven members who joined voluntarily to support its mission.” 980 F. 3d, at 184. Meanwhile in the UNC litigation, SFFA represented four members in particular—high school graduates who were denied admission to UNC. See 2018 DC Opinion 234. Those members filed declarations with the District Court stating “that they have voluntarily joined SFFA; they support its mission; they receive updates about the status of the case from SFFA’s President; and they have had the opportunity to have input and direction on SFFA’s case.” Id. , at 234–235 (internal quotation marks omitted). Where, as here, an organization has identified members and represents them in good faith, our cases do not require further scrutiny into how the organization operates. Because SFFA complies with the standing requirements demanded of organizational plaintiffs in Hunt , its obligations under Article III are satisfied. III A In the wake of the Civil War, Congress proposed and the States ratified the Fourteenth Amendment, providing that no State shall “deny to any person . . . the equal protection of the laws.” Amdt. 14, §1. To its proponents, the Equal Protection Clause represented a “foundation[al] principle”—“the absolute equality of all citizens of the United States politically and civilly before their own laws.” Cong. Globe, 39th Cong., 1st Sess., 431 (1866) (statement of Rep. Bingham) (Cong. Globe). The Constitution, they were determined, “should not permit any distinctions of law based on race or color,” Supp. Brief for United States on Reargument in Brown v. Board of Education , O. T. 1953, No. 1 etc., p. 41 (detailing the history of the adoption of the Equal Protection Clause), because any “law which operates upon one man [should] operate equally upon all,” Cong. Globe 2459 (statement of Rep. Stevens). As soon-to-be President James Garfield observed, the Fourteenth Amendment would hold “over every American citizen, without regard to color, the protecting shield of law.” Id. , at 2462. And in doing so, said Senator Jacob Howard of Michigan, the Amendment would give “to the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.” Id. , at 2766. For “[w]ithout this principle of equal justice,” Howard continued, “there is no republican government and none that is really worth maintaining.” Ibid. At first, this Court embraced the transcendent aims of the Equal Protection Clause. “What is this,” we said of the Clause in 1880, “but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States?” Strauder v. West Virginia , 100 U.S. 303 , 307–309. “[T]he broad and benign provisions of the Fourteenth Amendment” apply “to all persons,” we unanimously declared six years later; it is “hostility to . . . race and nationality” “which in the eye of the law is not justified.” Yick Wo v. Hopkins , 118 U.S. 356 , 368–369, 373–374 (1886); see also id. , at 368 (applying the Clause to “aliens and subjects of the Emperor of China”); Truax v. Raich , 239 U.S. 33 , 36 (1915) (“a native of Austria”); semble Strauder , 100 U. S., at 308–309 (“Celtic Irishmen”) (dictum). Despite our early recognition of the broad sweep of the Equal Protection Clause, this Court—alongside the country—quickly failed to live up to the Clause’s core commitments. For almost a century after the Civil War, state-mandated segregation was in many parts of the Nation a regrettable norm. This Court played its own role in that ignoble history, allowing in Plessy v. Ferguson the separate but equal regime that would come to deface much of America. 163 U.S. 537 (1896). The aspirations of the framers of the Equal Protection Clause, “[v]irtually strangled in [their] infancy,” would remain for too long only that—aspirations. J. Tussman & J. tenBroek, The Equal Protection of the Laws, 37 Cal. L. Rev. 341, 381 (1949). After Plessy , “American courts . . . labored with the doctrine [of separate but equal] for over half a century.” Brown v. Board of Education , 347 U.S. 483 , 491 (1954). Some cases in this period attempted to curtail the perniciousness of the doctrine by emphasizing that it required States to provide black students educational opportunities equal to—even if formally separate from—those enjoyed by white students. See, e.g. , Missouri ex rel. Gaines v. Canada , 305 U.S. 337 , 349–350 (1938) (“The admissibility of laws separating the races in the enjoyment of privileges afforded by the State rests wholly upon the equality of the privileges which the laws give to the separated groups . . . .”). But the inherent folly of that approach—of trying to derive equality from inequality—soon became apparent. As the Court subsequently recognized, even racial distinctions that were argued to have no palpable effect worked to subordinate the afflicted students. See, e.g. , McLaurin v. Oklahoma State Regents for Higher Ed. , 339 U.S. 637 , 640–642 (1950) (“It is said that the separations imposed by the State in this case are in form merely nominal. . . . But they signify that the State . . . sets [petitioner] apart from the other students.”). By 1950, the inevitable truth of the Fourteenth Amendment had thus begun to reemerge: Separate cannot be equal. The culmination of this approach came finally in Brown v. Board of Education . In that seminal decision, we overturned Plessy for good and set firmly on the path of invalidating all de jure racial discrimination by the States and Federal Government. 347 U. S., at 494–495. Brown concerned the permissibility of racial segregation in public schools. The school district maintained that such segregation was lawful because the schools provided to black students and white students were of roughly the same quality. But we held such segregation impermissible “ even though the physical facilities and other ‘tangible’ factors may be equal.” Id. , at 493 (emphasis added). The mere act of separating “children . . . because of their race,” we explained, itself “generate[d] a feeling of inferiority.” Id. , at 494. The conclusion reached by the Brown Court was thus unmistakably clear: the right to a public education “must be made available to all on equal terms.” Id. , at 493. As the plaintiffs had argued, “no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Tr. of Oral Arg. in Brown I , O. T. 1952, No. 8, p. 7 (Robert L. Carter, Dec. 9, 1952); see also Supp. Brief for Appellants on Reargument in Nos. 1, 2, and 4, and for Respondents in No. 10, in Brown v. Board of Education , O. T. 1953, p. 65 (“That the Constitution is color blind is our dedicated belief.”); post , at 39, n. 7 (Thomas, J., concurring). The Court reiterated that rule just one year later, holding that “full compliance” with Brown required schools to admit students “on a racially nondiscriminatory basis.” Brown v. Board of Education , 349 U.S. 294 , 300–301 (1955). The time for making distinctions based on race had passed. Brown , the Court observed, “declar[ed] the fundamental principle that racial discrimination in public education is unconstitutional.” Id. , at 298. So too in other areas of life. Immediately after Brown , we began routinely affirming lower court decisions that invalidated all manner of race-based state action. In Gayle v. Browder , for example, we summarily affirmed a decision invalidating state and local laws that required segregation in busing. 352 U.S. 903 (1956) ( per curiam ). As the lower court explained, “[t]he equal protection clause requires equality of treatment before the law for all persons without regard to race or color.” Browder v. Gayle , 142 F. Supp. 707 , 715 (MD Ala. 1956). And in Mayor and City Council of Baltimore v. Dawson , we summarily affirmed a decision striking down racial segregation at public beaches and bathhouses maintained by the State of Maryland and the city of Baltimore. 350 U.S. 877 (1955) ( per curiam ). “It is obvious that racial segregation in recreational activities can no longer be sustained,” the lower court observed. Dawson v. Mayor and City Council of Baltimore , 220 F.2d 386, 387 (CA4 1955) ( per curiam ). “[T]he ideal of equality before the law which characterizes our institutions” demanded as much. Ibid. In the decades that followed, this Court continued to vindicate the Constitution’s pledge of racial equality. Laws dividing parks and golf courses; neighborhoods and businesses; buses and trains; schools and juries were undone, all by a transformative promise “stemming from our American ideal of fairness”: “ ‘the Constitution . . . forbids . . . discrimination by the General Government, or by the States, against any citizen because of his race.’ ” Bolling v. Sharpe , 347 U.S. 497 , 499 (1954) (quoting Gibson v. Mississippi , 162 U.S. 565 , 591 (1896) (Harlan, J., for the Court)). As we recounted in striking down the State of Virginia’s ban on interracial marriage 13 years after Brown , the Fourteenth Amendment “proscri[bes] . . . all invidious racial discriminations.” Loving v. Virginia , 388 U.S. 1 , 8 (1967). Our cases had thus “consistently denied the constitutionality of measures which restrict the rights of citizens on account of race.” Id. , at 11–12; s ee also Yick Wo , 118 U. S., at 373–375 (commercial property); Shelley v. Kraemer , 334 U.S. 1 (1948) (housing covenants); Hernandez v. Texas , 347 U.S. 475 (1954) (composition of juries); Dawson , 350 U. S., at 877 (beaches and bathhouses); Holmes v. Atlanta , 350 U.S. 879 (1955) ( per curiam ) (golf courses); Browder , 352 U. S., at 903 (busing); New Orleans City Park Improvement Assn. v. Detiege , 358 U.S. 54 (1958) ( per curiam ) (public parks); Bailey v. Patterson , 369 U.S. 31 (1962) ( per curiam ) (transportation facilities); Swann v. Charlotte-Mecklenburg Bd. of Ed. , 402 U.S. 1 (1971) (education); Batson v. Kentucky , 476 U.S. 79 (1986) (peremptory jury strikes). These decisions reflect the “core purpose” of the Equal Protection Clause: “do[ing] away with all governmentally imposed discrimination based on race.” Palmore v. Sidoti , 466 U.S. 429 , 432 (1984) (footnote omitted). We have recognized that repeatedly. “The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.” Loving , 388 U. S., at 10; see also Washington v. Davis , 426 U.S. 229 , 239 (1976) (“The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race.”); McLaughlin v. Florida , 379 U.S. 184 , 192 (1964) (“[T]he historical fact [is] that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination.”). Eliminating racial discrimination means eliminating all of it. And the Equal Protection Clause, we have accordingly held, applies “without regard to any differences of race, of color, or of nationality”—it is “universal in [its] application.” Yick Wo , 118 U. S., at 369. For “[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.” Regents of Univ. of Cal. v. Bakke , 438 U.S. 265 , 289–290 (1978) (opinion of Powell, J.). “If both are not accorded the same protection, then it is not equal.” Id. , at 290. Any exception to the Constitution’s demand for equal protection must survive a daunting two-step examination known in our cases as “strict scrutiny.” Adarand Constructors, Inc. v. Peña , 515 U.S. 200 , 227 (1995). Under that standard we ask, first, whether the racial classification is used to “further compelling governmental interests.” Grutter v. Bollinger , 539 U.S. 306 , 326 (2003). Second, if so, we ask whether the government’s use of race is “narrowly tailored”—meaning “necessary”—to achieve that interest. Fisher v. University of Tex. at Austin , 570 U.S. 297 , 311–312 (2013) ( Fisher I ) (internal quotation marks omitted). Outside the circumstances of these cases, our precedents have identified only two compelling interests that permit resort to race-based government action. One is remediating specific, identified instances of past discrimination that violated the Constitution or a statute. See, e.g. , Parents Involved in Community Schools v. Seattle School Dist. No. 1 , 551 U.S. 701 , 720 (2007); Shaw v. Hunt , 517 U.S. 899 , 909–910 (1996); post , at 19–20, 30–31 (opinion of Thomas, J.). The second is avoiding imminent and serious risks to human safety in prisons, such as a race riot. See Johnson v. California , 543 U.S. 499 , 512–513 (2005).[ 3 ] Our acceptance of race-based state action has been rare for a reason. “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Rice v. Cayetano , 528 U.S. 495 , 517 (2000) (quoting Hirabayashi v. United States , 320 U.S. 81 , 100 (1943)). That principle cannot be overridden except in the most extraordinary case. B These cases involve whether a university may make admissions decisions that turn on an applicant’s race. Our Court first considered that issue in Regents of University of California v. Bakke , which involved a set-aside admissions program used by the University of California, Davis, medical school. 438 U. S., at 272–276. Each year, the school held 16 of its 100 seats open for members of certain minority groups, who were reviewed on a special admissions track separate from those in the main admissions pool. Id. , at 272–275. The plaintiff, Allan Bakke, was denied admission two years in a row, despite the admission of minority applicants with lower grade point averages and MCAT scores. Id. , at 276–277. Bakke subsequently sued the school, arguing that its set-aside program violated the Equal Protection Clause. In a deeply splintered decision that produced six different opinions—none of which commanded a majority of the Court—we ultimately ruled in part in favor of the school and in part in favor of Bakke. Justice Powell announced the Court’s judgment, and his opinion—though written for himself alone—would eventually come to “serv[e] as the touchstone for constitutional analysis of race-conscious admissions policies.” Grutter , 539 U. S., at 323. Justice Powell began by finding three of the school’s four justifications for its policy not sufficiently compelling. The school’s first justification of “reducing the historic deficit of traditionally disfavored minorities in medical schools,” he wrote, was akin to “[p]referring members of any one group for no reason other than race or ethnic origin.” Bakke , 438 U. S., at 306–307 (internal quotation marks omitted). Yet that was “discrimination for its own sake,” which “the Constitution forbids.” Id. , at 307 (citing, inter alia , Loving , 388 U. S., at 11). Justice Powell next observed that the goal of “remedying . . . the effects of ‘societal discrimination’ ” was also insufficient because it was “an amorphous concept of injury that may be ageless in its reach into the past.” Bakke , 438 U. S., at 307. Finally, Justice Powell found there was “virtually no evidence in the record indicating that [the school’s] special admissions program” would, as the school had argued, increase the number of doctors working in underserved areas. Id. , at 310. Justice Powell then turned to the school’s last interest asserted to be compelling—obtaining the educational benefits that flow from a racially diverse student body. That interest, in his view, was “a constitutionally permissible goal for an institution of higher education.” Id. , at 311–312. And that was so, he opined, because a university was entitled as a matter of academic freedom “to make its own judgments as to . . . the selection of its student body.” Id. , at 312. But a university’s freedom was not unlimited. “Racial and ethnic distinctions of any sort are inherently suspect,” Justice Powell explained, and antipathy toward them was deeply “rooted in our Nation’s constitutional and demographic history.” Id. , at 291. A university could not employ a quota system, for example, reserving “a specified number of seats in each class for individuals from the preferred ethnic groups.” Id. , at 315. Nor could it impose a “multitrack program with a prescribed number of seats set aside for each identifiable category of applicants.” Ibid. And neither still could it use race to foreclose an individual “from all consideration . . . simply because he was not the right color.” Id. , at 318. The role of race had to be cabined. It could operate only as “a ‘plus’ in a particular applicant’s file.” Id. , at 317. And even then, race was to be weighed in a manner “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant.” Ibid. Justice Powell derived this approach from what he called the “illuminating example” of the admissions system then used by Harvard College. Id. , at 316. Under that system, as described by Harvard in a brief it had filed with the Court, “the race of an applicant may tip the balance in his favor just as geographic origin or a life [experience] may tip the balance in other candidates’ cases.” Ibid. (internal quotation marks omitted). Harvard continued: “A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer.” Ibid. (internal quotation marks omitted). The result, Harvard proclaimed, was that “race has been”—and should be—“a factor in some admission decisions.” Ibid. (internal quotation marks omitted). No other Member of the Court joined Justice Powell’s opinion. Four Justices instead would have held that the government may use race for the purpose of “remedying the effects of past societal discrimination.” Id. , at 362 (joint opinion of Brennan, White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part). Four other Justices, meanwhile, would have struck down the Davis program as violative of Title VI. In their view, it “seem[ed] clear that the proponents of Title VI assumed that the Constitution itself required a colorblind standard on the part of government.” Id. , at 416 (Stevens, J., joined by Burger, C. J., and Stewart and Rehnquist, JJ., concurring in judgment in part and dissenting in part). The Davis program therefore flatly contravened a core “principle imbedded in the constitutional and moral understanding of the times”: the prohibition against “racial discrimination.” Id. , at 418, n. 21 (internal quotation marks omitted). C In the years that followed our “fractured decision in Bakke ,” lower courts “struggled to discern whether Justice Powell’s” opinion constituted “binding precedent.” Grutter , 539 U. S., at 325. We accordingly took up the matter again in 2003, in the case Grutter v. Bollinger , which concerned the admissions system used by the University of Michigan law school. Id. , at 311. There, in another sharply divided decision, the Court for the first time “endorse[d] Justice Powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions.” Id. , at 325. The Court’s analysis tracked Justice Powell’s in many respects. As for compelling interest, the Court held that “[t]he Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer.” Id. , at 328. In achieving that goal, however, the Court made clear—just as Justice Powell had—that the law school was limited in the means that it could pursue. The school could not “establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks.” Id. , at 334. Neither could it “insulate applicants who belong to certain racial or ethnic groups from the competition for admission.” Ibid. Nor still could it desire “some specified percentage of a particular group merely because of its race or ethnic origin.” Id. , at 329–330 (quoting Bakke , 438 U. S., at 307 (opinion of Powell, J.)). These limits, Grutter explained, were intended to guard against two dangers that all race-based government action portends. The first is the risk that the use of race will devolve into “illegitimate . . . stereotyp[ing].” Richmond v. J. A. Croson Co. , 488 U.S. 469 , 493 (1989) (plurality opinion). Universities were thus not permitted to operate their admissions programs on the “belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.” Grutter , 539 U. S., at 333 (internal quotation marks omitted). The second risk is that race would be used not as a plus, but as a negative—to discriminate against those racial groups that were not the beneficiaries of the race-based preference. A university’s use of race, accordingly, could not occur in a manner that “unduly harm[ed] nonminority applicants.” Id. , at 341. But even with these constraints in place, Grutter expressed marked discomfort with the use of race in college admissions. The Court stressed the fundamental principle that “there are serious problems of justice connected with the idea of [racial] preference itself.” Ibid. (quoting Bakke , 438 U. S., at 298 (opinion of Powell, J.)). It observed that all “racial classifications, however compelling their goals,” were “dangerous.” Grutter , 539 U. S., at 342. And it cautioned that all “race-based governmental action” should “remai[n] subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit.” Id. , at 341 (internal quotation marks omitted). To manage these concerns, Grutter imposed one final limit on race-based admissions programs. At some point, the Court held, they must end. Id. , at 342. This requirement was critical, and Grutter emphasized it repeatedly. “[A]ll race-conscious admissions programs [must] have a termination point”; they “must have reasonable durational limits”; they “must be limited in time”; they must have “sunset provisions”; they “must have a logical end point”; their “deviation from the norm of equal treatment” must be “a temporary matter.” Ibid. (internal quotation marks omitted). The importance of an end point was not just a matter of repetition. It was the reason the Court was willing to dispense temporarily with the Constitution’s unambiguous guarantee of equal protection. The Court recognized as much: “[e]nshrining a permanent justification for racial preferences,” the Court explained, “would offend this fundamental equal protection principle.” Ibid. ; see also id., at 342–343 (quoting N. Nathanson & C. Bartnik, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, 58 Chi. Bar Rec. 282, 293 (May–June 1977), for the proposition that “[i]t would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life”). Grutter thus concluded with the following caution: “It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. . . . We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” 539 U. S., at 343. IV Twenty years later, no end is in sight. “Harvard’s view about when [race-based admissions will end] doesn’t have a date on it.” Tr. of Oral Arg. in No. 20–1199, p. 85; Brief for Respondent in No. 20–1199, p. 52. Neither does UNC’s. 567 F. Supp. 3d, at 612. Yet both insist that the use of race in their admissions programs must continue. But we have permitted race-based admissions only within the confines of narrow restrictions. University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end. Respondents’ admissions systems—however well intentioned and implemented in good faith—fail each of these criteria. They must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.[ 4 ] A Because “[r]acial discrimination [is] invidious in all contexts,” Edmonson v. Leesville Concrete Co. , 500 U.S. 614 , 619 (1991), we have required that universities operate their race-based admissions programs in a manner that is “sufficiently measurable to permit judicial [review]” under the rubric of strict scrutiny, Fisher v. University of Tex. at Austin , 579 U.S. 365, 381 (2016) ( Fisher II ). “Classifying and assigning” students based on their race “requires more than . . . an amorphous end to justify it.” Parents Involved , 551 U. S., at 735. Respondents have fallen short of satisfying that burden. First, the interests they view as compelling cannot be subjected to meaningful judicial review. Harvard identifies the following educational benefits that it is pursuing: (1) “training future leaders in the public and private sectors”; (2) preparing graduates to “adapt to an increasingly pluralistic society”; (3) “better educating its students through diversity”; and (4) “producing new knowledge stemming from diverse outlooks.” 980 F. 3d, at 173–174. UNC points to similar benefits, namely, “(1) promoting the robust exchange of ideas; (2) broadening and refining understanding; (3) fostering innovation and problem-solving; (4) preparing engaged and productive citizens and leaders; [and] (5) enhancing appreciation, respect, and empathy, cross-racial understanding, and breaking down stereotypes.” 567 F. Supp. 3d, at 656. Although these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny. At the outset, it is unclear how courts are supposed to measure any of these goals. How is a court to know whether leaders have been adequately “train[ed]”; whether the exchange of ideas is “robust”; or whether “new knowledge” is being developed? Ibid. ; 980 F. 3d, at 173–174. Even if these goals could somehow be measured, moreover, how is a court to know when they have been reached, and when the perilous remedy of racial preferences may cease? There is no particular point at which there exists sufficient “innovation and problem-solving,” or students who are appropriately “engaged and productive.” 567 F. Supp. 3d, at 656. Finally, the question in this context is not one of no diversity or of some : it is a question of degree. How many fewer leaders Harvard would create without racial preferences, or how much poorer the education at Harvard would be, are inquiries no court could resolve. Comparing respondents’ asserted goals to interests we have recognized as compelling further illustrates their elusive nature. In the context of racial violence in a prison, for example, courts can ask whether temporary racial segregation of inmates will prevent harm to those in the prison. See Johnson , 543 U. S., at 512–513. When it comes to workplace discrimination, courts can ask whether a race-based benefit makes members of the discriminated class “whole for [the] injuries [they] suffered.” Franks v. Bowman Transp. Co. , 424 U.S. 747 , 763 (1976) (internal quotation marks omitted). And in school segregation cases, courts can determine whether any race-based remedial action produces a distribution of students “compar[able] to what it would have been in the absence of such constitutional violations.” Dayton Bd. of Ed. v. Brinkman , 433 U.S. 406 , 420 (1977). Nothing like that is possible when it comes to evaluating the interests respondents assert here. Unlike discerning whether a prisoner will be injured or whether an employee should receive backpay, the question whether a particular mix of minority students produces “engaged and productive citizens,” sufficiently “enhance[s] appreciation, respect, and empathy,” or effectively “train[s] future leaders” is standardless. 567 F. Supp. 3d, at 656; 980 F. 3d, at 173–174. The interests that respondents seek, though plainly worthy, are inescapably imponderable. Second, respondents’ admissions programs fail to articulate a meaningful connection between the means they employ and the goals they pursue. To achieve the educational benefits of diversity, UNC works to avoid the underrepresentation of minority groups, 567 F. Supp. 3d, at 591–592, and n. 7, while Harvard likewise “guard[s ] against inadvertent drop-offs in representation” of certain minority groups from year to year, Brief for Respondent in No. 20–1199, at 16. To accomplish both of those goals, in turn, the universities measure the racial composition of their classes using the following categories: (1) Asian; (2) Native Hawaiian or Pacific Islander; (3) Hispanic; (4) White; (5) African-American; and (6) Native American. See, e.g. , 397 F. Supp. 3d, at 137, 178; 3 App. in No. 20–1199, at 1278, 1280–1283; 3 App. in No. 21–707, at 1234–1241. It is far from evident, though, how assigning students to these racial categories and making admissions decisions based on them furthers the educational benefits that the universities claim to pursue. For starters, the categories are themselves imprecise in many ways. Some of them are plainly overbroad: by grouping together all Asian students, for instance, respondents are apparently uninterested in whether South Asian or East Asian students are adequately represented, so long as there is enough of one to compensate for a lack of the other. Meanwhile other racial categories, such as “Hispanic,” are arbitrary or undefined. See, e.g. , M. Lopez, J. Krogstad, & J. Passel, Pew Research Center, Who is Hispanic? (Sept. 15, 2022) (referencing the “long history of changing labels [and] shifting categories . . . reflect[ing] evolving cultural norms about what it means to be Hispanic or Latino in the U. S. today”). And still other categories are underinclusive. When asked at oral argument “how are applicants from Middle Eastern countries classified, [such as] Jordan, Iraq, Iran, [and] Egypt,” UNC’s counsel responded, “[I] do not know the answer to that question.” Tr. of Oral Arg. in No. 21–707, p. 107; cf. post , at 6–7 (Gorsuch, J., concurring) (detailing the “incoherent” and “irrational stereotypes” that these racial categories further). Indeed, the use of these opaque racial categories undermines, instead of promotes, respondents’ goals. By focusing on underrepresentation, respondents would apparently prefer a class with 15% of students from Mexico over a class with 10% of students from several Latin American countries, simply because the former contains more Hispanic students than the latter. Yet “[i]t is hard to understand how a plan that could allow these results can be viewed as being concerned with achieving enrollment that is ‘broadly diverse.’ ” Parents Involved , 551 U. S., at 724 (quoting Grutter , 539 U. S., at 329). And given the mismatch between the means respondents employ and the goals they seek, it is especially hard to understand how courts are supposed to scrutinize the admissions programs that respondents use. The universities’ main response to these criticisms is, essentially, “trust us.” None of the questions recited above need answering, they say, because universities are “owed deference” when using race to benefit some applicants but not others. Brief for University Respondents in No. 21–707, at 39 (internal quotation marks omitted). It is true that our cases have recognized a “tradition of giving a degree of deference to a university’s academic decisions.” Grutter , 539 U. S., at 328. But we have been unmistakably clear that any deference must exist “within constitutionally prescribed limits,” ibid. , and that “deference does not imply abandonment or abdication of judicial review,” Miller–El v. Cockrell , 537 U.S. 322 , 340 (2003). Universities may define their missions as they see fit. The Constitution defines ours. Courts may not license separating students on the basis of race without an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review. As this Court has repeatedly reaffirmed, “[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.” Gratz v. Bollinger , 539 U.S. 244 , 270 (2003) (internal quotation marks omitted). The programs at issue here do not satisfy that standard.[ 5 ] B The race-based admissions systems that respondents employ also fail to comply with the twin commands of the Equal Protection Clause that race may never be used as a “negative” and that it may not operate as a stereotype. First, our cases have stressed that an individual’s race may never be used against him in the admissions process. Here, however, the First Circuit found that Harvard’s consideration of race has led to an 11.1% decrease in the number of Asian-Americans admitted to Harvard. 980 F. 3d, at 170, n. 29. And the District Court observed that Harvard’s “policy of considering applicants’ race . . . overall results in fewer Asian American and white students being admitted.” 397 F. Supp. 3d, at 178. Respondents nonetheless contend that an individual’s race is never a negative factor in their admissions programs, but that assertion cannot withstand scrutiny. Harvard, for example, draws an analogy between race and other factors it considers in admission. “[W]hile admissions officers may give a preference to applicants likely to excel in the Harvard-Radcliffe Orchestra,” Harvard explains, “that does not mean it is a ‘negative’ not to excel at a musical instrument.” Brief for Respondent in No. 20–1199, at 51. But on Harvard’s logic, while it gives preferences to applicants with high grades and test scores, “that does not mean it is a ‘negative’ ” to be a student with lower grades and lower test scores. Ibid. This understanding of the admissions process is hard to take seriously. College admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter. Respondents also suggest that race is not a negative factor because it does not impact many admissions decisions. See id. , at 49; Brief for University Respondents in No. 21–707, at 2. Yet, at the same time, respondents also maintain that the demographics of their admitted classes would meaningfully change if race-based admissions were abandoned. And they acknowledge that race is determinative for at least some—if not many—of the students they admit. See, e.g. , Tr. of Oral Arg. in No. 20–1199, at 67; 567 F. Supp. 3d, at 633. How else but “negative” can race be described if, in its absence, members of some racial groups would be admitted in greater numbers than they otherwise would have been? The “[e]qual protection of the laws is not achieved through indiscriminate imposition of inequalities.” Shelley , 334 U. S., at 22.[ 6 ] Respondents’ admissions programs are infirm for a second reason as well. We have long held that universities may not operate their admissions programs on the “belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.” Grutter , 539 U. S., at 333 (internal quotation marks omitted). That requirement is found throughout our Equal Protection Clause jurisprudence more generally. See, e.g. , Schuette v. BAMN , 572 U.S. 291 , 308 (2014) (plurality opinion) (“In cautioning against ‘impermissible racial stereotypes,’ this Court has rejected the assumption that ‘members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike . . . .’ ” (quoting Shaw v. Reno , 509 U.S. 630 , 647 (1993))). Yet by accepting race-based admissions programs in which some students may obtain preferences on the basis of race alone, respondents’ programs tolerate the very thing that Grutter foreswore: stereotyping. The point of respondents’ admissions programs is that there is an inherent benefit in race qua race—in race for race’s sake. Respondents admit as much. Harvard’s admissions process rests on the pernicious stereotype that “a black student can usually bring something that a white person cannot offer.” Bakke , 438 U. S., at 316 (opinion of Powell, J.) (internal quotation marks omitted); see also Tr. of Oral Arg. in No. 20–1199, at 92. UNC is much the same. It argues that race in itself “says [something] about who you are.” Tr. of Oral Arg. in No. 21–707, at 97; see also id. , at 96 (analogizing being of a certain race to being from a rural area). We have time and again forcefully rejected the notion that government actors may intentionally allocate preference to those “who may have little in common with one another but the color of their skin.” Shaw , 509 U. S., at 647. The entire point of the Equal Protection Clause is that treating someone differently because of their skin color is not like treating them differently because they are from a city or from a suburb, or because they play the violin poorly or well. “One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.” Rice , 528 U. S., at 517. But when a university admits students “on the basis of race, it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike,” Miller v. Johnson , 515 U.S. 900 , 911–912 (1995) (internal quotation marks omitted)—at the very least alike in the sense of being different from nonminority students. In doing so, the university furthers “stereotypes that treat individuals as the product of their race, evaluating their thoughts and efforts—their very worth as citizens—according to a criterion barred to the Government by history and the Constitution.” Id. , at 912 (internal quotation marks omitted). Such stereotyping can only “cause[ ] continued hurt and injury,” Edmonson , 500 U. S., at 631, contrary as it is to the “core purpose” of the Equal Protection Clause, Palmore , 466 U. S., at 432. C If all this were not enough, respondents’ admissions programs also lack a “logical end point.” Grutter , 539 U. S., at 342. Respondents and the Government first suggest that respondents’ race-based admissions programs will end when, in their absence, there is “meaningful representation and meaningful diversity” on college campuses. Tr. of Oral Arg. in No. 21–707, at 167. The metric of meaningful representation, respondents assert, does not involve any “strict numerical benchmark,” id. , at 86; or “precise number or percentage,” id. , at 167; or “specified percentage,” Brief for Respondent in No. 20–1199, at 38 (internal quotation marks omitted). So what does it involve? Numbers all the same. At Harvard, each full committee meeting begins with a discussion of “how the breakdown of the class compares to the prior year in terms of racial identities.” 397 F. Supp. 3d, at 146. And “if at some point in the admissions process it appears that a group is notably underrepresented or has suffered a dramatic drop off relative to the prior year, the Admissions Committee may decide to give additional attention to applications from students within that group.” Ibid. ; see also id. , at 147 (District Court finding that Harvard uses race to “trac[k] how each class is shaping up relative to previous years with an eye towards achieving a level of racial diversity”); 2 App. in No. 20–1199, at 821–822. The results of the Harvard admissions process reflect this numerical commitment. For the admitted classes of 2009 to 2018, black students represented a tight band of 10.0%–11.7% of the admitted pool. The same theme held true for other minority groups: Brief for Petitioner in No. 20–1199 etc., p. 23. Harvard’s focus on numbers is obvious.[ 7 ] UNC’s admissions program operates similarly. The University frames the challenge it faces as “the admission and enrollment of underrepresented minorities,” Brief for University Respondents in No. 21–707, at 7, a metric that turns solely on whether a group’s “percentage enrollment within the undergraduate student body is lower than their percentage within the general population in North Carolina,” 567 F. Supp. 3d, at 591, n. 7; see also Tr. of Oral Arg. in No. 21–707, at 79. The University “has not yet fully achieved its diversity-related educational goals,” it explains, in part due to its failure to obtain closer to proportional representation. Brief for University Respondents in No. 21–707, at 7; see also 567 F. Supp. 3d, at 594. The problem with these approaches is well established. “[O]utright racial balancing” is “patently unconstitutional.” Fisher I , 570 U. S., at 311 (internal quotation marks omitted). That is so, we have repeatedly explained, because “[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller, 515 U. S., at 911 (internal quotation marks omitted). By promising to terminate their use of race only when some rough percentage of various racial groups is admitted, respondents turn that principle on its head. Their admissions programs “effectively assure[ ] that race will always be relevant . . . and that the ultimate goal of eliminating” race as a criterion “will never be achieved.” Croson , 488 U. S., at 495 (internal quotation marks omitted). Respondents’ second proffered end point fares no better. Respondents assert that universities will no longer need to engage in race-based admissions when, in their absence, students nevertheless receive the educational benefits of diversity. But as we have already explained, it is not clear how a court is supposed to determine when stereotypes have broken down or “productive citizens and leaders” have been created. 567 F. Supp. 3d, at 656. Nor is there any way to know whether those goals would adequately be met in the absence of a race-based admissions program. As UNC itself acknowledges, these “qualitative standard[s]” are “difficult to measure.” Tr. of Oral Arg. in No. 21–707, at 78; but see Fisher II , 579 U. S., at 381 (requiring race-based admissions programs to operate in a manner that is “sufficiently measurable”). Third, respondents suggest that race-based preferences must be allowed to continue for at least five more years, based on the Court’s statement in Grutter that it “expect[ed] that 25 years from now, the use of racial preferences will no longer be necessary.” 539 U. S., at 343. The 25-year mark articulated in Grutter , however, reflected only that Court’s view that race-based preferences would, by 2028, be unnecessary to ensure a requisite level of racial diversity on college campuses. Ibid. That expectation was oversold. Neither Harvard nor UNC believes that race-based admissions will in fact be unnecessary in five years, and both universities thus expect to continue using race as a criterion well beyond the time limit that Grutter suggested. See Tr. of Oral Arg. in No. 20–1199, at 84–85; Tr. of Oral Arg. in No. 21–707, at 85–86. Indeed, the high school applicants that Harvard and UNC will evaluate this fall using their race-based admissions systems are expected to graduate in 2028—25 years after Grutter was decided. Finally, respondents argue that their programs need not have an end point at all because they frequently review them to determine whether they remain necessary. See Brief for Respondent in No. 20–1199, at 52; Brief for University Respondents in No. 21–707, at 58–59. Respondents point to language in Grutter that, they contend, permits “the durational requirement [to] be met” with “periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity.” 539 U. S., at 342. But Grutter never suggested that periodic review could make unconstitutional conduct constitutional. To the contrary, the Court made clear that race-based admissions programs eventually had to end—despite whatever periodic review universities conducted. Ibid. ; see also supra , at 18. Here, however, Harvard concedes that its race-based admissions program has no end point. Brief for Respondent in No. 20–1199, at 52 (Harvard “has not set a sunset date” for its program (internal quotation marks omitted)). And it acknowledges that the way it thinks about the use of race in its admissions process “is the same now as it was” nearly 50 years ago. Tr. of Oral Arg. in No. 20–1199, at 91. UNC’s race-based admissions program is likewise not set to expire any time soon—nor, indeed, any time at all. The University admits that it “has not set forth a proposed time period in which it believes it can end all race-conscious admissions practices.” 567 F. Supp. 3d, at 612. And UNC suggests that it might soon use race to a greater extent than it currently does. See Brief for University Respondents in No. 21–707, at 57. In short, there is no reason to believe that respondents will—even acting in good faith—comply with the Equal Protection Clause any time soon. V The dissenting opinions resist these conclusions. They would instead uphold respondents’ admissions programs based on their view that the Fourteenth Amendment permits state actors to remedy the effects of societal discrimination through explicitly race-based measures. Although both opinions are thorough and thoughtful in many respects, this Court has long rejected their core thesis. The dissents’ interpretation of the Equal Protection Clause is not new. In Bakke , four Justices would have permitted race-based admissions programs to remedy the effects of societal discrimination. 438 U. S., at 362 (joint opinion of Brennan, White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part). But that minority view was just that—a minority view. Justice Powell, who provided the fifth vote and controlling opinion in Bakke , firmly rejected the notion that societal discrimination constituted a compelling interest. Such an interest presents “an amorphous concept of injury that may be ageless in its reach into the past,” he explained. Id ., at 307. It cannot “justify a [racial] classification that imposes disadvantages upon persons . . . who bear no responsibility for whatever harm the beneficiaries of the [race-based] admissions program are thought to have suffered.” Id. , at 310. The Court soon adopted Justice Powell’s analysis as its own. In the years after Bakke , the Court repeatedly held that ameliorating societal discrimination does not constitute a compelling interest that justifies race-based state action. “[A]n effort to alleviate the effects of societal discrimination is not a compelling interest,” we said plainly in Hunt , a 1996 case about the Voting Rights Act. 517 U. S., at 909–910. We reached the same conclusion in Croson , a case that concerned a preferential government contracting program. Permitting “past societal discrimination” to “serve as the basis for rigid racial preferences would be to open the door to competing claims for ‘remedial relief ’ for every disadvantaged group.” 488 U. S., at 505. Opening that door would shutter another—“[t]he dream of a Nation of equal citizens . . . would be lost,” we observed, “in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs.” Id. , at 505–506. “[S]uch a result would be contrary to both the letter and spirit of a constitutional provision whose central command is equality.” Id. , at 506. The dissents here do not acknowledge any of this. They fail to cite Hunt . They fail to cite Croson . They fail to mention that the entirety of their analysis of the Equal Protection Clause—the statistics, the cases, the history—has been considered and rejected before. There is a reason the principal dissent must invoke Justice Marshall’s partial dissent in Bakke nearly a dozen times while mentioning Justice Powell’s controlling opinion barely once (Justice Jackson’s opinion ignores Justice Powell altogether). For what one dissent denigrates as “rhetorical flourishes about colorblindness,” post , at 14 (opinion of Sotomayor, J.), are in fact the proud pronouncements of cases like Loving and Yick Wo , like Shelley and Bolling —they are defining statements of law. We understand the dissents want that law to be different. They are entitled to that desire. But they surely cannot claim the mantle of stare decisis while pursuing it.[ 8 ] The dissents are no more faithful to our precedent on race-based admissions. To hear the principal dissent tell it, Grutter blessed such programs indefinitely, until “racial inequality will end.” Post , at 54 (opinion of Sotomayor, J.). But Grutter did no such thing. It emphasized—not once or twice, but at least six separate times—that race-based admissions programs “must have reasonable durational limits” and that their “deviation from the norm of equal treatment” must be “a temporary matter.” 539 U. S., at 342. The Court also disclaimed “[e]nshrining a permanent justification for racial preferences.” Ibid. Yet the justification for race-based admissions that the dissent latches on to is just that—unceasing. The principal dissent’s reliance on Fisher II is similarly mistaken. There, by a 4-to-3 vote, the Court upheld a “ sui generis ” race-based admissions program used by the University of Texas, 579 U. S., at 377, whose “goal” it was to enroll a “critical mass” of certain minority students, Fisher I , 570 U. S., at 297. But neither Harvard nor UNC claims to be using the critical mass concept—indeed, the universities admit they do not even know what it means. See 1 App. in No. 21–707, at 402 (“[N]o one has directed anybody to achieve a critical mass, and I’m not even sure we would know what it is.” (testimony of UNC administrator)); 3 App. in No. 20–1199, at 1137–1138 (similar testimony from Harvard administrator). Fisher II also recognized the “enduring challenge” that race-based admissions systems place on “the constitutional promise of equal treatment.” 579 U. S., at 388. The Court thus reaffirmed the “continuing obligation” of universities “to satisfy the burden of strict scrutiny.” Id. , at 379. To drive the point home, Fisher II limited itself just as Grutter had—in duration. The Court stressed that its decision did “ not necessarily mean the University may rely on the same policy” going forward. 579 U. S., at 388 (emphasis added); see also Fisher I , 570 U. S., at 313 (recognizing that “ Grutter . . . approved the plan at issue upon concluding that it . . . was limited in time”). And the Court openly acknowledged that its decision offered limited “prospective guidance.” Fisher II , 579 U. S., at 379.[ 9 ] The principal dissent wrenches our case law from its context, going to lengths to ignore the parts of that law it does not like. The serious reservations that Bakke , Grutter , and Fisher had about racial preferences go unrecognized. The unambiguous requirements of the Equal Protection Clause—“the most rigid,” “searching” scrutiny it entails—go without note. Fisher I , 570 U. S., at 310. And the repeated demands that race-based admissions programs must end go overlooked—contorted, worse still, into a demand that such programs never stop. Most troubling of all is what the dissent must make these omissions to defend: a judiciary that picks winners and losers based on the color of their skin. While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit. Separate but equal is “ inherently unequal,” said Brown . 347 U. S., at 495 (emphasis added). It depends, says the dissent. That is a remarkable view of the judicial role—remarkably wrong. Lost in the false pretense of judicial humility that the dissent espouses is a claim to power so radical, so destructive, that it required a Second Founding to undo. “Justice Harlan knew better,” one of the dissents decrees. Post , at 5 (opinion of Jackson, J . ). Indeed he did: “[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy , 163 U. S., at 559 (Harlan, J., dissenting). VI For the reasons provided above, the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today. At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. See, e.g. , 4 App. in No. 21–707, at 1725–1726, 1741; Tr. of Oral Arg. in No. 20–1199, at 10. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.) “[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows,” and the prohibition against racial discrimination is “levelled at the thing, not the name.” Cummings v. Missouri , 4 Wall. 277, 325 (1867). A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race. Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice. The judgments of the Court of Appeals for the First Circuit and of the District Court for the Middle District of North Carolina are reversed. It is so ordered. Justice Jackson took no part in the consideration or decision of the case in No. 20–1199. Notes 1 Justice Jackson attempts to minimize the role that race plays in UNC’s admissions process by noting that, from 2016–2021, the school accepted a lower “percentage of the most academically excellent in-state Black candidates”—that is, 65 out of 67 such applicants (97.01%)—than it did similarly situated Asian applicants—that is, 1118 out of 1139 such applicants (98.16%). Post , at 20 (dissenting opinion); see also 3 App. in No. 21–707, pp. 1078–1080. It is not clear how the rejection of just two black applicants over five years could be “indicative of a genuinely holistic [admissions] process,” as Justice Jackson contends. Post , at 20–21. And indeed it cannot be, as the overall acceptance rates of academically excellent applicants to UNC illustrates full well. According to SFFA’s expert, over 80% of all black applicants in the top academic decile were admitted to UNC, while under 70% of white and Asian applicants in that decile were admitted. 3 App. in No. 21–707, at 1078–1083. In the second highest academic decile, the disparity is even starker: 83% of black applicants were admitted, while 58% of white applicants and 47% of Asian applicants were admitted. Ibid. And in the third highest decile, 77% of black applicants were admitted, compared to 48% of white applicants and 34% of Asian applicants. Ibid. The dissent does not dispute the accuracy of these figures. See post , at 20, n. 94 (opinion of Jackson, J.). And its contention that white and Asian students “receive a diversity plus” in UNC’s race-based admissions system blinks reality. Post , at 18. The same is true at Harvard. See Brief for Petitioner 24 (“[A]n African American [student] in [the fourth lowest academic] decile has a higher chance of admission (12.8%) than an Asian American in the top decile (12.7%).” (emphasis added)); see also 4 App. in No. 20–1199, p. 1793 (black applicants in the top four academic deciles are between four and ten times more likely to be admitted to Harvard than Asian applicants in those deciles). 2 Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U. S. C. §2000d. “We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.” Gratz v. Bollinger , 539 U.S. 244 , 276, n. 23 (2003). Although Justice Gorsuch questions that proposition, no party asks us to reconsider it. We accordingly evaluate Harvard’s admissions program under the standards of the Equal Protection Clause itself. 3 The first time we determined that a governmental racial classification satisfied “the most rigid scrutiny” was 10 years before Brown v. Board of Education , 347 U.S. 483 (1954), in the infamous case Korematsu v. United States , 323 U.S. 214 , 216 (1944). There, the Court upheld the internment of “all persons of Japanese ancestry in prescribed West Coast . . . areas” during World War II because “the military urgency of the situation demanded” it. Id. , at 217, 223. We have since overruled Korematsu , recognizing that it was “gravely wrong the day it was decided.” Trump v. Hawaii , 585 U. S. ___, ___ (2018) (slip op., at 38). The Court’s decision in Korematsu nevertheless “demonstrates vividly that even the most rigid scrutiny can sometimes fail to detect an illegitimate racial classification” and that “[a]ny retreat from the most searching judicial inquiry can only increase the risk of another such error occurring in the future.” Adarand Constructors, Inc. v. Peña , 515 U.S. 200 , 236 (1995) (internal quotation marks omitted). The principal dissent, for its part, claims that the Court has also permitted “the use of race when that use burdens minority populations.” Post , at 38–39 (opinion of Sotomayor, J.). In support of that claim, the dissent cites two cases that have nothing to do with the Equal Protection Clause. See ibid. (citing United States v. Brignoni-Ponce , 422 U.S. 873 (1975) ( Fourth Amendment case), and United States v. Martinez-Fuerte , 428 U.S. 543 (1976) (another Fourth Amendment case)). 4 The United States as amicus curiae contends that race-based admissions programs further compelling interests at our Nation’s military academies. No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context. This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present. 5 For that reason, one dissent candidly advocates abandoning the demands of strict scrutiny. See post , at 24, 26–28 (opinion of Jackson, J.) (arguing the Court must “get out of the way,” “leav[e] well enough alone,” and defer to universities and “experts” in determining who should be discriminated against). An opinion professing fidelity to history (to say nothing of the law) should surely see the folly in that approach. 6 Justice Jackson contends that race does not play a “determinative role for applicants” to UNC. Post , at 24. But even the principal dissent acknowledges that race—and race alone—explains the admissions decisions for hundreds if not thousands of applicants to UNC each year. Post , at 33, n. 28 (opinion of Sotomayor, J.); see also Students for Fair Admissions, Inc. v. University of N. C. at Chapel Hill , No. 1:14–cv–954 (MDNC, Dec. 21, 2020), ECF Doc. 233, at 23–27 (UNC expert testifying that race explains 1.2% of in state and 5.1% of out of state admissions decisions); 3 App. in No. 21–707, at 1069 (observing that UNC evaluated 57,225 in state applicants and 105,632 out of state applicants from 2016–2021). The suggestion by the principal dissent that our analysis relies on extra-record materials, see post , at 29–30, n. 25 (opinion of Sotomayor, J.), is simply mistaken. 7 The principal dissent claims that “[t]he fact that Harvard’s racial shares of admitted applicants varies relatively little . . . is unsurprising and reflects the fact that the racial makeup of Harvard’s applicant pool also varies very little over this period.” Post , at 35 (opinion of Sotomayor, J.) (internal quotation marks omitted). But that is exactly the point: Harvard must use precise racial preferences year in and year out to maintain the unyielding demographic composition of its class. The dissent is thus left to attack the numbers themselves, arguing they were “handpicked” “from a truncated period.” Ibid. , n. 29 (opinion of Sotomayor, J.). As supposed proof, the dissent notes that the share of Asian students at Harvard varied significantly from 1980 to 1994—a 14-year period that ended nearly three decades ago. 4 App. in No. 20–1199, at 1770. But the relevance of that observation—handpicked and truncated as it is—is lost on us. And the dissent does not and cannot dispute that the share of black and Hispanic students at Harvard—“the primary beneficiaries” of its race-based admissions policy—has remained consistent for decades. 397 F. Supp. 3d, at 178; 4 App. in No. 20–1199, at 1770. For all the talk of holistic and contextual judgments, the racial preferences at issue here in fact operate like clockwork. 8 Perhaps recognizing as much, the principal dissent at one point attempts to press a different remedial rationale altogether, stating that both respondents “have sordid legacies of racial exclusion.” Post , at 21 (opinion of Sotomayor, J.). Such institutions should perhaps be the very last ones to be allowed to make race-based decisions, let alone be accorded deference in doing so. In any event, neither university defends its admissions system as a remedy for past discrimination—their own or anyone else’s. See Tr. of Oral Arg. in No. 21–707, at 90 (“[W]e’re not pursuing any sort of remedial justification for our policy.”). Nor has any decision of ours permitted a remedial justification for race-based college admissions. Cf. Bakke , 438 U. S., at 307 (opinion of Powell, J.). 9 The principal dissent rebukes the Court for not considering adequately the reliance interests respondents and other universities had in Grutter . But as we have explained, Grutter itself limited the reliance that could be placed upon it by insisting, over and over again, that race-based admissions programs be limited in time. See supra , at 20. Grutter indeed went so far as to suggest a specific period of reliance—25 years—precluding the indefinite reliance interests that the dissent articulates. Cf. post , at 2–4 (Kavanaugh, J., concurring). Those interests are, moreover, vastly overstated on their own terms. Three out of every five American universities do not consider race in their admissions decisions. See Brief for Respondent in No. 20–1199, p. 40. And several States—including some of the most populous (California, Florida, and Michigan)—have prohibited race-based admissions outright. See Brief for Oklahoma et al. as Amici Curiae 9, n. 6. SUPREME COURT OF THE UNITED STATES _________________ Nos. 20–1199 and 21–707 _________________ STUDENTS FOR FAIR ADMISSIONS, INC., PETITIONER 20–1199 v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE on writ of certiorari to the united states court of appeals for the first circuit STUDENTS FOR FAIR ADMISSIONS, INC., PETITIONER 21–707 v. UNIVERSITY OF NORTH CAROLINA, et al. on writ of certiorari before judgment to the united states court of appeals for the fourth circuit [June 29, 2023] Justice Thomas, concurring. In the wake of the Civil War, the country focused its attention on restoring the Union and establishing the legal status of newly freed slaves. The Constitution was amended to abolish slavery and proclaim that all persons born in the United States are citizens, entitled to the privileges or immunities of citizenship and the equal protection of the laws. Amdts. 13, 14. Because of that second founding, “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v. Ferguson , 163 U.S. 537 , 559 (1896) (Harlan, J., dissenting). This Court’s commitment to that equality principle has ebbed and flowed over time. After forsaking the principle for decades, offering a judicial imprimatur to segregation and ushering in the Jim Crow era, the Court finally corrected course in Brown v. Board of Education , 347 U.S. 483 (1954), announcing that primary schools must either desegregate with all deliberate speed or else close their doors. See also Brown v. Board of Education , 349 U.S. 294 (1955) ( Brown II ). It then pulled back in Grutter v. Bollinger , 539 U.S. 306 (2003), permitting universities to discriminate based on race in their admissions process (though only temporarily) in order to achieve alleged “educational benefits of diversity.” Id. , at 319. Yet, the Constitution continues to embody a simple truth: Two discriminatory wrongs cannot make a right. I wrote separately in Grutter , explaining that the use of race in higher education admissions decisions—regardless of whether intended to help or to hurt—violates the Fourteenth Amendment. Id. , at 351 (opinion concurring in part and dissenting in part). In the decades since, I have repeatedly stated that Grutter was wrongly decided and should be overruled. Fisher v. University of Tex. at Austin , 570 U.S. 297 , 315, 328 (2013) (concurring opinion) ( Fisher I ); Fisher v. University of Tex. at Austin , 579 U.S. 365, 389 (2016) (dissenting opinion). Today, and despite a lengthy interregnum, the Constitution prevails. Because the Court today applies genuine strict scrutiny to the race-conscious admissions policies employed at Harvard and the University of North Carolina (UNC) and finds that they fail that searching review, I join the majority opinion in full. I write separately to offer an originalist defense of the colorblind Constitution; to explain further the flaws of the Court’s Grutter jurisprudence; to clarify that all forms of discrimination based on race—including so-called affirmative action—are prohibited under the Constitution; and to emphasize the pernicious effects of all such discrimination. I In the 1860s, Congress proposed and the States ratified the Thirteenth and Fourteenth Amendments. And, with the authority conferred by these Amendments, Congress passed two landmark Civil Rights Acts. Throughout the debates on each of these measures, their proponents repeatedly affirmed their view of equal citizenship and the racial equality that flows from it. In fact, they held this principle so deeply that their crowning accomplishment—the Fourteenth Amendment—ensures racial equality with no textual reference to race whatsoever . The history of these measures’ enactment renders their motivating principle as clear as their text: All citizens of the United States, regardless of skin color, are equal before the law. I do not contend that all of the individuals who put forth and ratified the Fourteenth Amendment universally believed this to be true. Some Members of the proposing Congress, for example, opposed the Amendment. And, the historical record—particularly with respect to the debates on ratification in the States—is sparse. Nonetheless, substantial evidence suggests that the Fourteenth Amendment was passed to “establis[h] the broad constitutional principle of full and complete equality of all persons under the law,” forbidding “all legal distinctions based on race or color.” Supp. Brief for United States on Reargument in Brown v. Board of Education , O. T. 1953, No. 1 etc., p. 115 (U. S. Brown Reargument Brief ). This was Justice Harlan’s view in his lone dissent in Plessy , where he observed that “[o]ur Constitution is color-blind.” 163 U. S., at 559. It was the view of the Court in Brown , which rejected “ ‘any authority . . . to use race as a factor in affording educational opportunities.’ ” Parents Involved in Community Schools v. Seattle School Dist. No. 1 , 551 U.S. 701 , 747 (2007). And, it is the view adopted in the Court’s opinion today, requiring “the absolute equality of all citizens” under the law. Ante , at 10 (internal quotation marks omitted). A In its 1864 election platform, the Republican Party pledged to amend the Constitution to accomplish the “utter and complete extirpation” of slavery from “the soil of the Republic.” 2 A. Schlesinger, History of U. S. Political Parties 1860–1910, p. 1303 (1973). After their landslide victory, Republicans quickly moved to make good on that promise. Congress proposed what would become the Thirteenth Amendment to the States in January 1865, and it was ratified as part of the Constitution later that year. The new Amendment stated that “[n]either slavery nor involuntary servitude . . . shall exist” in the United States “except as a punishment for crime whereof the party shall have been duly convicted.” §1. It thus not only prohibited States from themselves enslaving persons, but also obligated them to end enslavement by private individuals within their borders. Its Framers viewed the text broadly, arguing that it “allowed Congress to legislate not merely against slavery itself, but against all the badges and relics of a slave system.” A. Amar, America’s Constitution: A Biography 362 (2005) (internal quotation marks omitted). The Amendment also authorized “Congress . . . to enforce” its terms “by appropriate legislation”—authority not granted in any prior Amendment. §2. Proponents believed this enforcement clause permitted legislative measures designed to accomplish the Amendment’s broader goal of equality for the freedmen. It quickly became clear, however, that further amendment would be necessary to safeguard that goal. Soon after the Thirteenth Amendment’s adoption, the reconstructed Southern States began to enact “Black Codes,” which circumscribed the newly won freedoms of blacks. The Black Code of Mississippi, for example, “imposed all sorts of disabilities” on blacks, “including limiting their freedom of movement and barring them from following certain occupations, owning firearms, serving on juries, testifying in cases involving whites, or voting.” E. Foner, The Second Founding 48 (2019). Congress responded with the landmark Civil Rights Act of 1866, 14Stat. 27, in an attempt to pre-empt the Black Codes. The 1866 Act promised such a sweeping form of equality that it would lead many to say that it exceeded the scope of Congress’ authority under the Thirteenth Amendment. As enacted, it stated: “ Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled , That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.” The text of the provision left no doubt as to its aim: All persons born in the United States were equal citizens entitled to the same rights and subject to the same penalties as white citizens in the categories enumerated. See M. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 958 (1995) (“Note that the bill neither forbade racial discrimination generally nor did it guarantee particular rights to all persons. Rather, it required an equality in certain specific rights”). And, while the 1866 Act used the rights of “white citizens” as a benchmark, its rule was decidedly colorblind, safeguarding legal equality for all citizens “of every race and color” and providing the same rights to all. The 1866 Act’s evolution further highlights its rule of equality. To start, Dred Scott v. Sandford , 19 How. 393 (1857), had previously held that blacks “were not regarded as a portion of the people or citizens of the Government” and “had no rights which the white man was bound to respect.” Id ., at 407, 411. The Act, however, would effectively overrule Dred Scott and ensure the equality that had been promised to blacks. But the Act went further still. On January 29, 1866, Senator Lyman Trumbull, the bill’s principal sponsor in the Senate, proposed text stating that “all persons of African descent born in the United States are hereby declared to be citizens.” Cong. Globe, 39th Cong., 1st Sess., 474. The following day, Trumbull revised his proposal, removing the reference to “African descent” and declaring more broadly that “all persons born in the United States, and not subject to any foreign Power,” are “citizens of the United States.” Id. , at 498. “In the years before the Fourteenth Amendment’s adoption, jurists and legislators often connected citizenship with equality,” where “the absence or presence of one entailed the absence or presence of the other.” United States v. Vaello Madero , 596 U. S. ___, ___ (2022) (Thomas, J., concurring) (slip op., at 6). The addition of a citizenship guarantee thus evidenced an intent to broaden the provision, extending beyond recently freed blacks and incorporating a more general view of equality for all Americans. Indeed, the drafters later included a specific carveout for “Indians not taxed,” demonstrating the breadth of the bill’s otherwise general citizenship language. 14Stat. 27.[ 1 ] As Trumbull explained, the provision created a bond between all Americans; “any statute which is not equal to all , and which deprives any citizen of civil rights which are secured to other citizens,” was “an unjust encroachment upon his liberty” and a “badge of servitude” prohibited by the Constitution. Cong. Globe, 39th Cong., 1st Sess., at 474 (emphasis added). Trumbull and most of the Act’s other supporters identified the Thirteenth Amendment as a principal source of constitutional authority for the Act’s nondiscrimination provisions. See, e.g. , id ., at 475 (statement of Sen. Trumbull); id. , at 1152 (statement of Rep. Thayer); id. , at 503–504 (statement of Sen. Howard). In particular, they explained that the Thirteenth Amendment allowed Congress not merely to legislate against slavery itself, but also to counter measures “which depriv[e] any citizen of civil rights which are secured to other citizens.” Id. , at 474. But opponents argued that Congress’ authority did not sweep so broadly. President Andrew Johnson, for example, contended that Congress lacked authority to pass the measure, seizing on the breadth of the citizenship text and emphasizing state authority over matters of state citizenship. See S. Doc. No. 31, 39th Cong., 1st Sess., 1, 6 (1866) (Johnson veto message). Consequently, “doubts about the constitutional authority conferred by that measure led supporters to supplement their Thirteenth Amendment arguments with other sources of constitutional authority.” R. Williams, Originalism and the Other Desegregation Decision, 99 Va. L. Rev. 493, 532–533 (2013) (describing appeals to the naturalization power and the inherent power to protect the rights of citizens). As debates continued, it became increasingly apparent that safeguarding the 1866 Act, including its promise of black citizenship and the equal rights that citizenship entailed, would require further submission to the people of the United States in the form of a proposed constitutional amendment. See, e.g. , Cong. Globe, 39th Cong., 1st Sess., at 498 (statement of Sen. Van Winkle). B Critically, many of those who believed that Congress lacked the authority to enact the 1866 Act also supported the principle of racial equality. So, almost immediately following the ratification of the Thirteenth Amendment, several proposals for further amendments were submitted in Congress. One such proposal, approved by the Joint Committee on Reconstruction and then submitted to the House of Representatives on February 26, 1866, would have declared that “[t]he Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.” Id. , at 1033–1034. Representative John Bingham, its drafter, was among those who believed Congress lacked the power to enact the 1866 Act. See id. , at 1291. Specifically, he believed the “very letter of the Constitution” already required equality, but the enforcement of that requirement “is of the reserved powers of the States.” Cong. Globe, 39th Cong., 1st Sess., at 1034, 1291 (statement of Rep. Bingham). His proposed constitutional amendment accordingly would provide a clear constitutional basis for the 1866 Act and ensure that future Congresses would be unable to repeal it. See W. Nelson, The Fourteenth Amendment 48–49 (1988). Discussion of Bingham’s initial draft was later postponed in the House, but the Joint Committee on Reconstruction continued its work. See 2 K. Lash, The Reconstruction Amendments 8 (2021). In April, Representative Thaddeus Stevens proposed to the Joint Committee an amendment that began, “[n]o discrimination shall be made by any State nor by the United States as to the civil rights of persons because of race, color, or previous condition of servitude.” S. Doc. No. 711, 63d Cong., 1st Sess., 31–32 (1915) (reprinting the Journal of the Joint Committee on Reconstruction for the Thirty-Ninth Congress). Stevens’ proposal was later revised to read as follows: “ ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.’ ” Id. , at 39. This revised text was submitted to the full House on April 30, 1866. Cong. Globe, 39th Cong., 1st Sess., at 2286–2287. Like the eventual first section of the Fourteenth Amendment, this proposal embodied the familiar Privileges or Immunities, Due Process, and Equal Protection Clauses. And, importantly, it also featured an enforcement clause—with text borrowed from the Thirteenth Amendment—conferring upon Congress the power to enforce its provisions. Ibid. Stevens explained that the draft was intended to “allo[w] Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all.” Id. , at 2459. Moreover, Stevens’ later statements indicate that he did not believe there was a difference “in substance between the new proposal and” earlier measures calling for impartial and equal treatment without regard to race. U. S. Brown Reargument Brief 44 (noting a distinction only with respect to a suffrage provision). And, Bingham argued that the need for the proposed text was “one of the lessons that have been taught . . . by the history of the past four years of terrific conflict” during the Civil War. Cong. Globe, 39th Cong., 1st Sess., at 2542. The proposal passed the House by a vote of 128 to 37. Id. , at 2545. Senator Jacob Howard introduced the proposed Amendment in the Senate, powerfully asking, “Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste, both castes being alike citizens of the United States, both bound to obey the same laws, to sustain the burdens of the same Government, and both equally responsible to justice and to God for the deeds done in the body?” Id. , at 2766. In keeping with this view, he proposed an introductory sentence, declaring that “ ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.’ ” Id. , at 2869. This text, the Citizenship Clause, was the final missing element of what would ultimately become §1 of the Fourteenth Amendment. Howard’s draft for the proposed citizenship text was modeled on the Civil Rights Act of 1866’s text, and he suggested the alternative language to “remov[e] all doubt as to what persons are or are not citizens of the United States,” a question which had “long been a great desideratum in the jurisprudence and legislation of this country.” Id. , at 2890. He further characterized the addition as “simply declaratory of what I regard as the law of the land already.” Ibid. The proposal was approved in the Senate by a vote of 33 to 11. Id. , at 3042. The House then reconciled differences between the two measures, approving the Senate’s changes by a vote of 120 to 32. See id. , at 3149. And, in June 1866, the amendment was submitted to the States for their consideration and ratification. Two years later, it was ratified by the requisite number of States and became the Fourteenth Amendment to the United States Constitution. See 15Stat. 706–707; id. , at 709–711. Its opening words instilled in our Nation’s Constitution a new birth of freedom: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” §1. As enacted, the text of the Fourteenth Amendment provides a firm statement of equality before the law. It begins by guaranteeing citizenship status, invoking the “longstanding political and legal tradition that closely associated the status of citizenship with the entitlement to legal equality.” Vaello Madero , 596 U. S., at ___ (Thomas, J., concurring) (slip op., at 6) (internal quotation marks omitted). It then confirms that States may not “abridge the rights of national citizenship, including whatever civil equality is guaranteed to ‘citizens’ under the Citizenship Clause.” Id. , at ___, n. 3 (slip op., at 13, n. 3). Finally, it pledges that even noncitizens must be treated equally “as individuals, and not as members of racial, ethnic, or religious groups.” Missouri v. Jenkins , 515 U.S. 70 , 120–121 (1995) (Thomas, J., concurring). The drafters and ratifiers of the Fourteenth Amendment focused on this broad equality idea, offering surprisingly little explanation of which term was intended to accomplish which part of the Amendment’s overall goal. “The available materials . . . show,” however, “that there were widespread expressions of a general understanding of the broad scope of the Amendment similar to that abundantly demonstrated in the Congressional debates, namely, that the first section of the Amendment would establish the full constitutional right of all persons to equality before the law and would prohibit legal distinctions based on race or color.” U. S. Brown Reargument Brief 65 (citation omitted). For example, the Pennsylvania debate suggests that the Fourteenth Amendment was understood to make the law “what justice is represented to be, blind” to the “color of [one’s] skin.” App. to Pa. Leg. Record XLVIII (1867) (Rep. Mann). The most commonly held view today—consistent with the rationale repeatedly invoked during the congressional debates, see, e.g. , Cong. Globe, 39th Cong., 1st Sess., at 2458–2469—is that the Amendment was designed to remove any doubts regarding Congress’ authority to enact the Civil Rights Act of 1866 and to establish a nondiscrimination rule that could not be repealed by future Congresses. See, e.g. , J. Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L. J. 1385, 1388 (1992) (noting that the “primary purpose” of the Fourteenth Amendment “was to mandate certain rules of racial equality, especially those contained in Section 1 of the Civil Rights Act of 1866”).[ 2 ] The Amendment’s phrasing supports this view, and there does not appear to have been any argument to the contrary predating Brown . Consistent with the Civil Rights Act of 1866’s aim, the Amendment definitively overruled Chief Justice Taney’s opinion in Dred Scott that blacks “were not regarded as a portion of the people or citizens of the Government” and “had no rights which the white man was bound to respect.” 19 How., at 407, 411. And, like the 1866 Act, the Amendment also clarified that American citizenship conferred rights not just against the Federal Government but also the government of the citizen’s State of residence. Unlike the Civil Rights Act, however, the Amendment employed a wholly race-neutral text, extending privileges or immunities to all “citizens”—even if its practical effect was to provide all citizens with the same privileges then enjoyed by whites. That citizenship guarantee was often linked with the concept of equality. Vaello Madero , 596 U. S., at ___ (Thomas, J., concurring) (slip op., at 10). Combining the citizenship guarantee with the Privileges or Immunities Clause and the Equal Protection Clause, the Fourteenth Amendment ensures protection for all equal citizens of the Nation without regard to race. Put succinctly, “[o]ur Constitution is color-blind.” Plessy , 163 U. S., at 559 (Harlan, J., dissenting). C In the period closely following the Fourteenth Amendment’s ratification, Congress passed several statutes designed to enforce its terms, eliminating government-based Black Codes—systems of government-imposed segregation—and criminalizing racially motivated violence. The marquee legislation was the Civil Rights Act of 1875, ch. 114, 18Stat. 335–337, and the justifications offered by proponents of that measure are further evidence for the colorblind view of the Fourteenth Amendment. The Civil Rights Act of 1875 sought to counteract the systems of racial segregation that had arisen in the wake of the Reconstruction era. Advocates of so-called separate-but-equal systems, which allowed segregated facilities for blacks and whites, had argued that laws permitting or requiring such segregation treated members of both races precisely alike: Blacks could not attend a white school, but symmetrically, whites could not attend a black school. See Plessy , 163 U. S., at 544 (arguing that, in light of the social circumstances at the time, racial segregation did not “necessarily imply the inferiority of either race to the other”). Congress was not persuaded. Supporters of the soon-to-be 1875 Act successfully countered that symmetrical restrictions did not constitute equality, and they did so on colorblind terms. For example, they asserted that “free government demands the abolition of all distinctions founded on color and race.” 2 Cong. Rec. 4083 (1874). And, they submitted that “[t]he time has come when all distinctions that grew out of slavery ought to disappear.” Cong. Globe, 42d Cong., 2d Sess., 3193 (1872) (“[A]s long as you have distinctions and discriminations between white and black in the enjoyment of legal rights and privileges[,] you will have discontent and parties divided between black and white”). Leading Republican Senator Charles Sumner compellingly argued that “any rule excluding a man on account of his color is an indignity, an insult, and a wrong.” Id. , at 242; see also ibid. (“I insist that by the law of the land all persons without distinction of color shall be equal before the law”). Far from conceding that segregation would be perceived as inoffensive if race roles were reversed, he declared that “[t]his is plain oppression, which you . . . would feel keenly were it directed against you or your child.” Id. , at 384. He went on to paraphrase the English common-law rule to which he subscribed: “[The law] makes no discrimination on account of color.” Id. , at 385. Others echoed this view. Representative John Lynch declared that “[t]he duty of the law-maker is to know no race, no color, no religion, no nationality, except to prevent distinctions on any of these grounds, so far as the law is concerned.” 3 Cong. Rec. 945 (1875). Senator John Sherman believed that the route to peace was to “[w]ipe out all legal discriminations between white and black [and] make no distinction between black and white.” Cong. Globe, 42d Cong., 2d Sess., at 3193. And, Senator Henry Wilson sought to “make illegal all distinctions on account of color” because “there should be no distinction recognized by the laws of the land.” Id ., at 819; see also 3 Cong. Rec., at 956 (statement of Rep. Cain) (“[M]en [are] formed of God equally . . . . The civil-rights bill simply declares this: that there shall be no discriminations between citizens of this land so far as the laws of the land are concerned”). The view of the Legislature was clear: The Constitution “neither knows nor tolerates classes among citizens.” Plessy , 163 U. S., at 559 (Harlan, J., dissenting). D The earliest Supreme Court opinions to interpret the Fourteenth Amendment did so in colorblind terms. Their statements characterizing the Amendment evidence its commitment to equal rights for all citizens, regardless of the color of their skin. See ante , at 10–11. In the Slaughter-House Cases , 16 Wall. 36 (1873), the Court identified the “pervading purpose” of the Reconstruction Amendments as “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.” Id ., at 67–72. Yet, the Court quickly acknowledged that the language of the Amendments did not suggest “that no one else but the negro can share in this protection.” Id. , at 72. Rather, “[i]f Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, [the Thirteenth Amendment] may safely be trusted to make it void.” Ibid . And, similarly, “if other rights are assailed by the States which properly and necessarily fall within the protection of these articles, that protection will apply, though the party interested may not be of African descent.” Ibid . The Court thus made clear that the Fourteenth Amendment’s equality guarantee applied to members of all races, including Asian Americans, ensuring all citizens equal treatment under law. Seven years later, the Court relied on the Slaughter-House view to conclude that “[t]he words of the [Fourteenth A]mendment . . . contain a necessary implication of a positive immunity, or right, most valuable to the colored race,—the right to exemption from unfriendly legislation against them distinctively as colored.” Strauder v. West Virginia , 100 U.S. 303 , 307–308 (1880). The Court thus found that the Fourteenth Amendment banned “expres[s]” racial classifications, no matter the race affected, because these classifications are “a stimulant to . . . race prejudice.” Id. , at 308. See also ante , at 10–11. Similar statements appeared in other cases decided around that time. See Virginia v. Rives , 100 U.S. 313 , 318 (1880) (“The plain object of these statutes [enacted to enforce the Fourteenth Amendment], as of the Constitution which authorized them, was to place the colored race, in respect of civil rights, upon a level with whites. They made the rights and responsibilities, civil and criminal, of the two races exactly the same”); Ex parte Virginia , 100 U.S. 339 , 344–345 (1880) (“One great purpose of [the Thirteenth and Fourteenth Amendments] was to raise the colored race from that condition of inferiority and servitude in which most of them had previously stood, into perfect equality of civil rights with all other persons within the jurisdiction of the States”). This Court’s view of the Fourteenth Amendment reached its nadir in Plessy , infamously concluding that the Fourteenth Amendment “could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either.” 163 U. S., at 544. That holding stood in sharp contrast to the Court’s earlier embrace of the Fourteenth Amendment’s equality ideal, as Justice Harlan emphasized in dissent: The Reconstruction Amendments had aimed to remove “the race line from our systems of governments.” Id. , at 563 . For Justice Harlan, the Constitution was colorblind and categorically rejected laws designed to protect “a dominant race—a superior class of citizens,” while imposing a “badge of servitude” on others. Id. , at 560–562. History has vindicated Justice Harlan’s view, and this Court recently acknowledged that Plessy should have been overruled immediately because it “betrayed our commitment to ‘equality before the law.’ ” Dobbs v. Jackson Women’s Health Organization , 597 U. S. ___, ___ (2022) (slip op., at 44). Nonetheless, and despite Justice Harlan’s efforts, the era of state-sanctioned segregation persisted for more than a half century. E Despite the extensive evidence favoring the colorblind view, as detailed above, it appears increasingly in vogue to embrace an “antisubordination” view of the Fourteenth Amendment: that the Amendment forbids only laws that hurt, but not help, blacks. Such a theory lacks any basis in the original meaning of the Fourteenth Amendment. Respondents cite a smattering of federal and state statutes passed during the years surrounding the ratification of the Fourteenth Amendment. And, Justice Sotomayor’s dissent argues that several of these statutes evidence the ratifiers’ understanding that the Equal Protection Clause “permits consideration of race to achieve its goal.” Post , at 6. Upon examination, however, it is clear that these statutes are fully consistent with the colorblind view. Start with the 1865 Freedmen’s Bureau Act. That Act established the Freedmen’s Bureau to issue “provisions, clothing, and fuel . . . needful for the immediate and temporary shelter and supply of destitute and suffering refugees and freedmen and their wives and children” and the setting “apart, for the use of loyal refugees and freedmen,” abandoned, confiscated, or purchased lands, and assigning “to every male citizen, whether refugee or freedman, . . . not more than forty acres of such land.” Ch. 90, §§2, 4, 13Stat. 507. The 1866 Freedmen’s Bureau Act then expanded upon the prior year’s law, authorizing the Bureau to care for all loyal refugees and freedmen. Ch. 200, 14Stat. 173–174. Importantly, however, the Acts applied to freedmen (and refugees), a formally race-neutral category, not blacks writ large. And, because “not all blacks in the United States were former slaves,” “ ‘freedman’ ” was a decidedly under-inclusive proxy for race. M. Rappaport, Originalism and the Colorblind Constitution, 89 Notre Dame L. Rev. 71, 98 (2013) (Rappaport). Moreover, the Freedmen’s Bureau served newly freed slaves alongside white refugees. P. Moreno, Racial Classifications and Reconstruction Legislation, 61 J. So. Hist. 271, 276–277 (1995); R. Barnett & E. Bernick, The Original Meaning of the Fourteenth Amendment 119 (2021). And, advocates of the law explicitly disclaimed any view rooted in modern conceptions of antisubordination. To the contrary, they explicitly clarified that the equality sought by the law was not one in which all men shall be “six feet high”; rather, it strove to ensure that freedmen enjoy “equal rights before the law” such that “each man shall have the right to pursue in his own way life, liberty, and happiness.” Cong. Globe, 39th Cong., 1st Sess., at 322, 342. Several additional federal laws cited by respondents appear to classify based on race, rather than previous condition of servitude. For example, an 1866 law adopted special rules and procedures for the payment of “colored” servicemen in the Union Army to agents who helped them secure bounties, pensions, and other payments that they were due. 14Stat. 367–368. At the time, however, Congress believed that many “black servicemen were significantly overpaying for these agents’ services in part because [the servicemen] did not understand how the payment system operated.” Rappaport 110; see also S. Siegel, The Federal Government’s Power To Enact Color-Conscious Laws: An Originalist Inquiry, 92 Nw. U. L. Rev. 477, 561 (1998). Thus, while this legislation appears to have provided a discrete race-based benefit, its aim—to prohibit race-based exploitation—may not have been possible at the time without using a racial screen. In other words, the statute’s racial classifications may well have survived strict scrutiny. See Rappaport 111–112. Another law, passed in 1867, provided funds for “freedmen or destitute colored people” in the District of Columbia. Res. of Mar. 16, 1867, No. 4, 15Stat. 20. However, when a prior version of this law targeting only blacks was criticized for being racially discriminatory, “it was defended on the grounds that there were various places in the city where former slaves . . . lived in densely populated shantytowns.” Rappaport 104–105 (citing Cong. Globe, 39th Cong., 1st Sess., at 1507). Congress thus may have enacted the measure not because of race, but rather to address a special problem in shantytowns in the District where blacks lived. These laws—even if targeting race as such—likely were also constitutionally permissible examples of Government action “undo[ing] the effects of past discrimination in [a way] that do[es] not involve classification by race,” even though they had “a racially disproportionate impact.” Richmond v. J. A. Croson Co. , 488 U.S. 469 , 526 (1989) (Scalia, J., concurring in judgment) (internal quotation marks omitted). The government can plainly remedy a race-based injury that it has inflicted—though such remedies must be meant to further a colorblind government, not perpetuate racial consciousness. See id ., at 505 (majority opinion). In that way, “[r]ace-based government measures during the 1860’s and 1870’s to remedy state-enforced slavery were . . . not inconsistent with the colorblind Constitution.” Parents Involved , 551 U. S., at 772, n. 19 (Thomas, J., concurring). Moreover, the very same Congress passed both these laws and the unambiguously worded Civil Rights Act of 1866 that clearly prohibited discrimination on the basis of race.[ 3 ] And, as noted above, the proponents of these laws explicitly sought equal rights without regard to race while disavowing any antisubordination view. Justice Sotomayor argues otherwise, pointing to “a number of race-conscious” federal laws passed around the time of the Fourteenth Amendment’s enactment. Post , at 6 (dissenting opinion). She identifies the Freedmen’s Bureau Act of 1865, already discussed above, as one such law, but she admits that the programs did not benefit blacks exclusively. She also does not dispute that legislation targeting the needs of newly freed blacks in 1865 could be understood as directly remedial. Even today, nothing prevents the States from according an admissions preference to identified victims of discrimination. See Croson , 488 U. S., at 526 (opinion of Scalia, J.) (“While most of the beneficiaries might be black, neither the beneficiaries nor those disadvantaged by the preference would be identified on the basis of their race ” (emphasis in original)); see also ante , at 39. Justice Sotomayor points also to the Civil Rights Act of 1866, which as discussed above, mandated that all citizens have the same rights as those “enjoyed by white citizens.” 14Stat. 27. But these references to the station of white citizens do not refute the view that the Fourteenth Amendment is colorblind. Rather, they specify that, in meeting the Amendment’s goal of equal citizenship, States must level up. The Act did not single out a group of citizens for special treatment—rather, all citizens were meant to be treated the same as those who, at the time, had the full rights of citizenship. Other provisions of the 1866 Act reinforce this view, providing for equality in civil rights. See Rappaport 97. Most notably, §14 stated that the basic civil rights of citizenship shall be secured “without respect to race or color.” 14Stat. 176–177. And, §8 required that funds from land sales must be used to support schools “without distinction of color or race, . . . in the parishes of ” the area where the land had been sold. Id. , at 175. In addition to these federal laws, Harvard also points to two state laws: a South Carolina statute that placed the burden of proof on the defendant when a “colored or black” plaintiff claimed a violation, 1870 S. C. Acts pp. 387–388, and Kentucky legislation that authorized a county superintendent to aid “negro paupers” in Mercer County, 1871 Ky. Acts pp. 273–274. Even if these statutes provided race-based benefits, they do not support respondents’ and Justice Sotomayor’s view that the Fourteenth Amendment was contemporaneously understood to permit differential treatment based on race, prohibiting only caste legislation while authorizing antisubordination measures. Cf., e.g. , O. Fiss, Groups and the Equal Protection Clause, 5 Philos. & Pub. Aff. 107, 147 (1976) (articulating the antisubordination view); R. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown , 117 Harv. L. Rev. 1470, 1473, n. 8 (2004) (collecting scholarship). At most, these laws would support the kinds of discrete remedial measures that our precedents have permitted. If services had been given only to white persons up to the Fourteenth Amendment’s adoption, then providing those same services only to previously excluded black persons would work to equalize treatment against a concrete baseline of government-imposed inequality. It thus may have been the case that Kentucky’s county-specific, race-based public aid law was necessary because that particular county was not providing certain services to local poor blacks. Similarly, South Carolina’s burden-shifting framework (where the substantive rule being applied remained notably race neutral) may have been necessary to streamline litigation around the most commonly litigated type of case: a lawsuit seeking to remedy discrimination against a member of the large population of recently freed black Americans. See 1870 S. C. Acts, at 386 (documenting “persist[ent]” racial discrimination by state-licensed entities). Most importantly, however, there was a wide range of federal and state statutes enacted at the time of the Fourteenth Amendment’s adoption and during the period thereafter that explicitly sought to discriminate against blacks on the basis of race or a proxy for race. See Rappaport 113–115. These laws, hallmarks of the race-conscious Jim Crow era, are precisely the sort of enactments that the Framers of the Fourteenth Amendment sought to eradicate. Yet, proponents of an antisubordination view necessarily do not take those laws as evidence of the Fourteenth Amendment’s true meaning. And rightly so. Neither those laws, nor a small number of laws that appear to target blacks for preferred treatment, displace the equality vision reflected in the history of the Fourteenth Amendment’s enactment. This is particularly true in light of the clear equality requirements present in the Fourteenth Amendment’s text. See New York State Rifle & Pistol Assn. , Inc. v. Bruen , 597 U. S. ___, ___–___ (2022) (slip op., at 26–27) (noting that text controls over inconsistent postratification history). II Properly understood, our precedents have largely adhered to the Fourteenth Amendment’s demand for colorblind laws.[ 4 ] That is why, for example, courts “must subject all racial classifications to the strictest of scrutiny.” Jenkins , 515 U. S., at 121 (Thomas, J., concurring); see also ante , at 15, n. 4 (emphasizing the consequences of an insufficiently searching inquiry). And, in case after case, we have employed strict scrutiny vigorously to reject various forms of racial discrimination as unconstitutional. See Fisher I , 570 U. S., at 317–318 (Thomas, J., concurring). The Court today rightly upholds that tradition and acknowledges the consequences that have flowed from Grutter ’s contrary approach. Three aspects of today’s decision warrant comment: First, to satisfy strict scrutiny, universities must be able to establish an actual link between racial discrimination and educational benefits. Second, those engaged in racial discrimination do not deserve deference with respect to their reasons for discriminating. Third, attempts to remedy past governmental discrimination must be closely tailored to address that particular past governmental discrimination. A To satisfy strict scrutiny, universities must be able to establish a compelling reason to racially discriminate. Grutter recognized “only one” interest sufficiently compelling to justify race-conscious admissions programs: the “educational benefits of a diverse student body.” 539 U. S., at 328, 333. Expanding on this theme, Harvard and UNC have offered a grab bag of interests to justify their programs, spanning from “ ‘training future leaders in the public and private sectors’ ” to “ ‘enhancing appreciation, respect, and empathy,’ ” with references to “ ‘better educating [their] students through diversity’ ” in between. Ante , at 22–23. The Court today finds that each of these interests are too vague and immeasurable to suffice, ibid. , and I agree. Even in Grutter , the Court failed to clearly define “the educational benefits of a diverse student body.” 539 U. S., at 333. Thus, in the years since Grutter , I have sought to understand exactly how racial diversity yields educational benefits. With nearly 50 years to develop their arguments, neither Harvard nor UNC—two of the foremost research institutions in the world—nor any of their amici can explain that critical link. Harvard, for example, offers a report finding that meaningful representation of racial minorities promotes several goals. Only one of those goals—“producing new knowledge stemming from diverse outlooks,” 980 F.3d 157, 174 (CA1 2020)—bears any possible relationship to educational benefits. Yet, it too is extremely vague and offers no indication that, for example, student test scores increased as a result of Harvard’s efforts toward racial diversity. More fundamentally, it is not clear how racial diversity, as opposed to other forms of diversity, uniquely and independently advances Harvard’s goal. This is particularly true because Harvard blinds itself to other forms of applicant diversity, such as religion. See 2 App. in No. 20–1199, pp. 734–743. It may be the case that exposure to different perspectives and thoughts can foster debate, sharpen young minds, and hone students’ reasoning skills. But, it is not clear how diversity with respect to race, qua race, furthers this goal. Two white students, one from rural Appalachia and one from a wealthy San Francisco suburb, may well have more diverse outlooks on this metric than two students from Manhattan’s Upper East Side attending its most elite schools, one of whom is white and other of whom is black. If Harvard cannot even explain the link between racial diversity and education, then surely its interest in racial diversity cannot be compelling enough to overcome the constitutional limits on race consciousness. UNC fares no better. It asserts, for example, an interest in training students to “live together in a diverse society.” Brief for University Respondents in No. 21–707, p. 39. This may well be important to a university experience, but it is a social goal, not an educational one. See Grutter , 539 U. S., at 347–348 (Scalia, J., concurring in part and dissenting in part) (criticizing similar rationales as divorced from educational goals). And, again, UNC offers no reason why seeking a diverse society would not be equally supported by admitting individuals with diverse perspectives and backgrounds, rather than varying skin pigmentation. Nor have amici pointed to any concrete and quantifiable educational benefits of racial diversity. The United States focuses on alleged civic benefits, including “increasing tolerance and decreasing racial prejudice.” Brief for United States as Amicus Curiae 21–22. Yet, when it comes to educational benefits, the Government offers only one study purportedly showing that “college diversity experiences are significantly and positively related to cognitive development” and that “interpersonal interactions with racial diversity are the most strongly related to cognitive development.” N. Bowman, College Diversity Experiences and Cognitive Development: A Meta-Analysis, 80 Rev. Educ. Research 4, 20 (2010). Here again, the link is, at best, tenuous, unspecific, and stereotypical. Other amici assert that diversity (generally) fosters the even-more nebulous values of “creativity” and “innovation,” particularly in graduates’ future workplaces. See, e.g. , Brief for Major American Business Enterprises as Amici Curiae 7–9; Brief for Massachusetts Institute of Technology et al. as Amici Curiae 16–17 (describing experience at IBM). Yet, none of those assertions deals exclusively with racial diversity—as opposed to cultural or ideological diversity. And, none of those amici demonstrate measurable or concrete benefits that have resulted from universities’ race-conscious admissions programs. Of course, even if these universities had shown that racial diversity yielded any concrete or measurable benefits, they would still face a very high bar to show that their interest is compelling. To survive strict scrutiny, any such benefits would have to outweigh the tremendous harm inflicted by sorting individuals on the basis of race. See Cooper v. Aaron , 358 U.S. 1 , 16 (1958) (following Brown , “law and order are not here to be preserved by depriving the Negro children of their constitutional rights”). As the Court’s opinions in these cases make clear, all racial stereotypes harm and demean individuals. That is why “only those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a pressing public necessity” sufficient to satisfy strict scrutiny today. Grutter , 539 U. S . , at 353 (opinion of Thomas, J.) (internal quotations marks omitted). Cf. Lee v. Washington , 390 U.S. 333 , 334 (1968) (Black, J., concurring) (protecting prisoners from violence might justify narrowly tailored discrimination); Croson , 488 U. S., at 521 (opinion of Scalia, J.) (“At least where state or local action is at issue, only a social emergency rising to the level of imminent danger to life and limb . . . can justify [racial discrimination]”). For this reason, “just as the alleged educational benefits of segregation were insufficient to justify racial discrimination [in the 1950s], see Brown v. Board of Education , the alleged educational benefits of diversity cannot justify racial discrimination today.” Fisher I , 570 U. S., at 320 (Thomas, J., concurring) (citation omitted). B The Court also correctly refuses to defer to the universities’ own assessments that the alleged benefits of race- conscious admissions programs are compelling. It instead demands that the “interests [universities] view as compelling” must be capable of being “subjected to meaningful judicial review.” Ante , at 22. In other words, a court must be able to measure the goals asserted and determine when they have been reached. Ante , at 22–24. The Court’s opinion today further insists that universities must be able to “articulate a meaningful connection between the means they employ and the goals they pursue.” Ante , at 24. Again, I agree. Universities’ self-proclaimed righteousness does not afford them license to discriminate on the basis of race. In fact, it is error for a court to defer to the views of an alleged discriminator while assessing claims of racial discrimination. See Grutter , 539 U. S., at 362–364 (opinion of Thomas, J.); see also Fisher I , 570 U. S., at 318–319 (Thomas, J., concurring); United States v. Virginia , 518 U.S. 515 , 551, n. 19 (1996) (refusing to defer to the Virginia Military Institute’s judgment that the changes necessary to accommodate the admission of women would be too great and characterizing the necessary changes as “manageable”). We would not offer such deference in any other context. In employment discrimination lawsuits under Title VII of the Civil Rights Act, for example, courts require only a minimal prima facie showing by a complainant before shifting the burden onto the shoulders of the alleged-discriminator employer. See McDonnell Douglas Corp. v. Green , 411 U.S. 792 , 803–805 (1973). And, Congress has passed numerous laws—such as the Civil Rights Act of 1875—under its authority to enforce the Fourteenth Amendment, each designed to counter discrimination and each relying on courts to bring a skeptical eye to alleged discriminators. This judicial skepticism is vital. History has repeatedly shown that purportedly benign discrimination may be pernicious, and discriminators may go to great lengths to hide and perpetuate their unlawful conduct. Take, for example, the university respondents here. Harvard’s “holistic” admissions policy began in the 1920s when it was developed to exclude Jews. See M. Synnott, The Half-Opened Door: Discrimination and Admission at Harvard, Yale, and Princeton, 1900–1970, pp. 58–59, 61, 69, 73–74 (2010). Based on de facto quotas that Harvard quietly implemented, the proportion of Jews in Harvard’s freshman class declined from 28% as late as 1925 to just 12% by 1933. J. Karabel, The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton 172 (2005). During this same period, Harvard played a prominent role in the eugenics movement. According to then-President Abbott Lawrence Lowell, excluding Jews from Harvard would help maintain admissions opportunities for Gentiles and perpetuate the purity of the Brahmin race—New England’s white, Protestant upper crust. See D. Okrent, The Guarded Gate 309, and n. * (2019). UNC also has a checkered history, dating back to its time as a segregated university. It admitted its first black undergraduate students in 1955—but only after being ordered to do so by a court, following a long legal battle in which UNC sought to keep its segregated status. Even then, UNC did not turn on a dime: The first three black students admitted as undergraduates enrolled at UNC but ultimately earned their bachelor’s degrees elsewhere. See M. Beauregard, Column: The Desegregation of UNC, The Daily Tar Heel, Feb. 16, 2022. To the extent past is prologue, the university respondents’ histories hardly recommend them as trustworthy arbiters of whether racial discrimination is necessary to achieve educational goals. Of course, none of this should matter in any event; courts have an independent duty to interpret and uphold the Constitution that no university’s claimed interest may override. See ante , at 26, n. 5. The Court today makes clear that, in the future, universities wishing to discriminate based on race in admissions must articulate and justify a compelling and measurable state interest based on concrete evidence. Given the strictures set out by the Court, I highly doubt any will be able to do so. C In an effort to salvage their patently unconstitutional programs, the universities and their amici pivot to argue that the Fourteenth Amendment permits the use of race to benefit only certain racial groups—rather than applicants writ large. Yet, this is just the latest disguise for discrimination. The sudden narrative shift is not surprising, as it has long been apparent that “ ‘diversity [was] merely the current rationale of convenience’ ” to support racially discriminatory admissions programs. Grutter , 539 U. S., at 393 (Kennedy, J., dissenting). Under our precedents, this new rationale is also lacking. To start, the case for affirmative action has emphasized a number of rationales over the years, including: (1) restitution to compensate those who have been victimized by past discrimination, (2) fostering “diversity,” (3) facilitating “integration” and the destruction of perceived racial castes, and (4) countering longstanding and diffuse racial prejudice. See R. Kennedy, For Discrimination: Race, Affirmative Action, and the Law 78 (2013); see also P. Schuck, Affirmative Action: Past, Present, and Future, 20 Yale L. & Pol’y Rev. 1, 22–46 (2002). Again, this Court has only recognized one interest as compelling: the educational benefits of diversity embraced in Grutter . Yet, as the universities define the “diversity” that they practice, it encompasses social and aesthetic goals far afield from the education-based interest discussed in Grutter . See supra , at 23. The dissents too attempt to stretch the diversity rationale, suggesting that it supports broad remedial interests. See, e.g. , post , at 23, 43, 67 (opinion of Sotomayor, J.) (noting that UNC’s black admissions percentages “do not reflect the diversity of the State”; equating the diversity interest under the Court’s precedents with a goal of “integration in higher education” more broadly; and warning of “the dangerous consequences of an America where its leadership does not reflect the diversity of the People”); post , at 23 (opinion of Jackson, J.) (explaining that diversity programs close wealth gaps). But language—particularly the language of controlling opinions of this Court—is not so elastic. See J. Pieper, Abuse of Language—Abuse of Power 23 (L. Krauth transl. 1992) (explaining that propaganda, “in contradiction to the nature of language, intends not to communicate but to manipulate” and becomes an “[i]nstrument of power” (emphasis deleted)). The Court refuses to engage in this lexicographic drift, seeing these arguments for what they are: a remedial rationale in disguise. See ante , at 34–35. As the Court points out, the interest for which respondents advocate has been presented to and rejected by this Court many times before. In Regents of University of California v. Bakke , 438 U.S. 265 (1978), the University of California made clear its rationale for the quota system it had established: It wished to “counteract effects of generations of pervasive discrimination” against certain minority groups. Brief for Petitioner, O. T. 1977, No. 76–811, p. 2. But, the Court rejected this distinctly remedial rationale, with Justice Powell adopting in its place the familiar “diversity” interest that appeared later in Grutter . See Bakke , 438 U. S., at 306 (plurality opinion). The Court similarly did not adopt the broad remedial rationale in Grutter ; and it rejects it again today. Newly and often minted theories cannot be said to be commanded by our precedents. Indeed, our precedents have repeatedly and soundly distinguished between programs designed to compensate victims of past governmental discrimination from so-called benign race-conscious measures, such as affirmative action. Croson , 488 U. S., at 504–505; Adarand Constructors , Inc. v. Peña , 515 U.S. 200 , 226–227 (1995). To enforce that distinction, our precedents explicitly require that any attempt to compensate victims of past governmental discrimination must be concrete and traceable to the de jure segregated system, which must have some discrete and continuing discriminatory effect that warrants a present remedy. See United States v. Fordice , 505 U.S. 717 , 731 (1992). Today’s opinion for the Court reaffirms the need for such a close remedial fit, hewing to the same line we have consistently drawn. Ante , at 24–25. Without such guardrails, the Fourteenth Amendment would become self-defeating, promising a Nation based on the equality ideal but yielding a quota- and caste-ridden society steeped in race-based discrimination. Even Grutter itself could not tolerate this outcome. It accordingly imposed a time limit for its race-based regime, observing that “ ‘a core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.’ ” 539 U. S., at 341–342 (quoting Palmore v. Sidoti , 466 U.S. 429 , 432 (1984); alterations omitted). The Court today enforces those limits. And rightly so. As noted above, both Harvard and UNC have a history of racial discrimination. But, neither have even attempted to explain how their current racially discriminatory programs are even remotely traceable to their past discriminatory conduct. Nor could they; the current race-conscious admissions programs take no account of ancestry and, at least for Harvard, likely have the effect of discriminating against some of the very same ethnic groups against which Harvard previously discriminated ( i.e. , Jews and those who are not part of the white elite). All the while, Harvard and UNC ask us to blind ourselves to the burdens imposed on the millions of innocent applicants denied admission because of their membership in a currently disfavored race. The Constitution neither commands nor permits such a result. “Purchased at the price of immeasurable human suffering,” the Fourteenth Amendment recognizes that classifications based on race lead to ruinous consequences for individuals and the Nation. Adarand Constructors , Inc. , 515 U. S., at 240 (Thomas, J., concurring in part and concurring in judgment). Consequently, “ all ” racial classifications are “inherently suspect,” id. , at 223–224 (majority opinion) (emphasis added; internal quotation marks omitted), and must be subjected to the searching inquiry conducted by the Court, ante , at 21–34. III Both experience and logic have vindicated the Constitution’s colorblind rule and confirmed that the universities’ new narrative cannot stand. Despite the Court’s hope in Grutter that universities would voluntarily end their race-conscious programs and further the goal of racial equality, the opposite appears increasingly true. Harvard and UNC now forthrightly state that they racially discriminate when it comes to admitting students, arguing that such discrimination is consistent with this Court’s precedents. And they, along with today’s dissenters, defend that discrimination as good . More broadly, it is becoming increasingly clear that discrimination on the basis of race—often packaged as “affirmative action” or “equity” programs—are based on the benighted notion “that it is possible to tell when discrimination helps, rather than hurts, racial minorities.” Fisher I , 570 U. S., at 328 (Thomas, J., concurring). We cannot be guided by those who would desire less in our Constitution, or by those who would desire more. “The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.” Grutter , 539 U. S., at 353 (opinion of Thomas, J.). A The Constitution’s colorblind rule reflects one of the core principles upon which our Nation was founded: that “all men are created equal.” Those words featured prominently in our Declaration of Independence and were inspired by a rich tradition of political thinkers, from Locke to Montesquieu, who considered equality to be the foundation of a just government. See, e.g. , J. Locke, Second Treatise of Civil Government 48 (J. Gough ed. 1948); T. Hobbes, Leviathan 98 (M. Oakeshott ed. 1962); 1 B. Montesquieu, The Spirit of Laws 121 (T. Nugent transl., J. Prichard ed. 1914). Several Constitutions enacted by the newly independent States at the founding reflected this principle. For example, the Virginia Bill of Rights of 1776 explicitly affirmed “[t]hat all men are by nature equally free and independent, and have certain inherent rights.” Ch. 1, §1. The State Constitutions of Massachusetts, Pennsylvania, and New Hampshire adopted similar language. Pa. Const., Art. I (1776), in 2 Federal and State Constitutions 1541 (P. Poore ed. 1877); Mass. Const., Art. I (1780), in 1 id ., at 957; N. H. Const., Art. I (1784), in 2 id ., at 1280.[ 5 ] And, prominent Founders publicly mused about the need for equality as the foundation for government. E.g. , 1 Cong. Register 430 (T. Lloyd ed. 1789) (Madison, J.); 1 Letters and Other Writings of James Madison 164 (J. Lippincott ed. 1867); N. Webster, The Revolution in France, in 2 Political Sermons of the Founding Era, 1730–1805, pp. 1236–1299 (1998). As Jefferson declared in his first inaugural address, “the minority possess their equal rights, which equal law must protect.” First Inaugural Address (Mar. 4, 1801), in 8 The Writings of Thomas Jefferson 4 (Washington ed. 1854). Our Nation did not initially live up to the equality principle. The institution of slavery persisted for nearly a century, and the United States Constitution itself included several provisions acknowledging the practice. The period leading up to our second founding brought these flaws into bold relief and encouraged the Nation to finally make good on the equality promise. As Lincoln recognized, the promise of equality extended to all people —including immigrants and blacks whose ancestors had taken no part in the original founding. See Speech at Chicago, Ill. (July 10, 1858), in 2 The Collected Works of Abraham Lincoln 488–489, 499 (R. Basler ed. 1953). Thus, in Lincoln’s view, “ ‘the natural rights enumerated in the Declaration of Independence’ ” extended to blacks as his “ ‘equal,’ ” and “ ‘the equal of every living man.’ ” The Lincoln-Douglas Debates 285 (H. Holzer ed. 1993). As discussed above, the Fourteenth Amendment reflected that vision, affirming that equality and racial discrimination cannot coexist. Under that Amendment, the color of a person’s skin is irrelevant to that individual’s equal status as a citizen of this Nation. To treat him differently on the basis of such a legally irrelevant trait is therefore a deviation from the equality principle and a constitutional injury. Of course, even the promise of the second founding took time to materialize. Seeking to perpetuate a segregationist system in the wake of the Fourteenth Amendment’s ratification, proponents urged a “separate but equal” regime. They met with initial success, ossifying the segregationist view for over a half century. As this Court said in Plessy : “A statute which implies merely a legal distinction between the white and colored races—a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color—has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude.” 163 U. S . , at 543. Such a statement, of course, is precisely antithetical to the notion that all men, regardless of the color of their skin, are born equal and must be treated equally under the law. Only one Member of the Court adhered to the equality principle; Justice Harlan, standing alone in dissent, wrote: “Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” Id. , at 559. Though Justice Harlan rightly predicted that Plessy would, “in time, prove to be quite as pernicious as the decision made . . . in the Dred Scott case,” the Plessy rule persisted for over a half century. Ibid. While it remained in force, Jim Crow laws prohibiting blacks from entering or utilizing public facilities such as schools, libraries, restaurants, and theaters sprang up across the South. This Court rightly reversed course in Brown v. Board of Education . The Brown appellants—those challenging segregated schools—embraced the equality principle, arguing that “[a] racial criterion is a constitutional irrelevance, and is not saved from condemnation even though dictated by a sincere desire to avoid the possibility of violence or race friction.” Brief for Appellants in Brown v. Board of Education , O. T. 1952, No. 1, p. 7 (citation omitted).[ 6 ] Embracing that view, the Court held that “in the field of public education the doctrine of ‘separate but equal’ has no place” and “[s]eparate educational facilities are inherently unequal.” Brown , 347 U. S., at 493, 495. Importantly, in reaching this conclusion, Brown did not rely on the particular qualities of the Kansas schools. The mere separation of students on the basis of race—the “ segregation complained of,” id. , at 495 (emphasis added)—constituted a constitutional injury. See ante , at 12 (“Separate cannot be equal”). Just a few years later, the Court’s application of Brown made explicit what was already forcefully implied: “[O]ur decisions have foreclosed any possible contention that . . . a statute or regulation” fostering segregation in public facilities “may stand consistently with the Fourteenth Amendment.” Turner v. Memphis , 369 U.S. 350 , 353 (1962) ( per curiam ); cf. A. Blaustein & C. Ferguson, Desegregation and the Law: The Meaning and Effect of the School Segregation Cases 145 (rev. 2d ed. 1962) (arguing that the Court in Brown had “adopt[ed] a constitutional standard” declaring “that all classification by race is unconstitutional per se ”). Today, our precedents place this principle beyond question. In assessing racial segregation during a race- motivated prison riot, for example, this Court applied strict scrutiny without requiring an allegation of unequal treatment among the segregated facilities. Johnson v. California , 543 U.S. 499 , 505–506 (2005). The Court today reaffirms the rule, stating that, following Brown , “[t]he time for making distinctions based on race had passed.” Ante , at 13. “What was wrong” when the Court decided Brown “in 1954 cannot be right today.” Parents Involved , 551 U. S., at 778 (Thomas, J., concurring). Rather, we must adhere to the promise of equality under the law declared by the Declaration of Independence and codified by the Fourteenth Amendment. B Respondents and the dissents argue that the universities’ race-conscious admissions programs ought to be permitted because they accomplish positive social goals. I would have thought that history had by now taught a “greater humility” when attempting to “distinguish good from harmful uses of racial criteria.” Id. , at 742 (plurality opinion). From the Black Codes, to discriminatory and destructive social welfare programs, to discrimination by individual government actors, bigotry has reared its ugly head time and again. Anyone who today thinks that some form of racial discrimination will prove “helpful” should thus tread cautiously, lest racial discriminators succeed (as they once did) in using such language to disguise more invidious motives. Arguments for the benefits of race-based solutions have proved pernicious in segregationist circles. Segregated universities once argued that race-based discrimination was needed “to preserve harmony and peace and at the same time furnish equal education to both groups.” Brief for Respondents in Sweatt v. Painter , O. T. 1949, No. 44, p. 94; see also id. , at 79 (“ ‘[T]he mores of racial relationships are such as to rule out, for the present at least, any possibility of admitting white persons and Negroes to the same institutions’ ”). And, parties consistently attempted to convince the Court that the time was not right to disrupt segregationist systems. See Brief for Appellees in McLaurin v. Oklahoma State Regents for Higher Ed. , O. T. 1949, No. 34, p. 12 (claiming that a holding rejecting separate but equal would “necessarily result . . . [i]n the abandoning of many of the state’s existing educational establishments” and the “ crowding of other such establishments”); Brief for State of Kansas on Reargument in Brown v. Board of Education , O. T. 1953, No. 1, p. 56 (“We grant that segregation may not be the ethical or political ideal. At the same time we recognize that practical considerations may prevent realization of the ideal”); Tr. of Oral Arg. in Davis v. School Bd. of Prince Edward Cty. , O. T. 1954, No. 3, p. 208 (“We are up against the proposition: What does the Negro profit if he procures an immediate detailed decree from this Court now and then impairs or mars or destroys the public school system in Prince Edward County”). Litigants have even gone so far as to offer straight-faced arguments that segregation has practical benefits. Brief for Respondents in Sweatt v. Painter , at 77–78 (requesting deference to a state law, observing that “ ‘the necessity for such separation [of the races] still exists in the interest of public welfare, safety, harmony, health, and recreation . . .’ ” and remarking on the reasonableness of the position); Brief for Appellees in Davis v. County School Bd. of Prince Edward Cty. , O. T. 1952, No. 3, p. 17 (“Virginia has established segregation in certain fields as a part of her public policy to prevent violence and reduce resentment. The result, in the view of an overwhelming Virginia majority, has been to improve the relationship between the different races”); id. , at 25 (“If segregation be stricken down, the general welfare will be definitely harmed . . . there would be more friction developed” (internal quotation marks omitted)). In fact, slaveholders once “argued that slavery was a ‘positive good’ that civilized blacks and elevated them in every dimension of life,” and “segregationists similarly asserted that segregation was not only benign, but good for black students.” Fisher I , 570 U. S., at 328–329 (Thomas, J., concurring). “Indeed, if our history has taught us anything, it has taught us to beware of elites bearing racial theories.” Parents Involved , 551 U. S., at 780–781 (Thomas, J., concurring). We cannot now blink reality to pretend, as the dissents urge, that affirmative action should be legally permissible merely because the experts assure us that it is “good” for black students. Though I do not doubt the sincerity of my dissenting colleagues’ beliefs, experts and elites have been wrong before—and they may prove to be wrong again. In part for this reason, the Fourteenth Amendment outlaws government-sanctioned racial discrimination of all types. The stakes are simply too high to gamble.[ 7 ] Then, as now, the views that motivated Dred Scott and Plessy have not been confined to the past, and we must remain ever vigilant against all forms of racial discrimination. C Even taking the desire to help on its face, what initially seems like aid may in reality be a burden, including for the very people it seeks to assist. Take, for example, the college admissions policies here. “Affirmative action” policies do nothing to increase the overall number of blacks and Hispanics able to access a college education. Rather, those racial policies simply redistribute individuals among institutions of higher learning, placing some into more competitive institutions than they otherwise would have attended. See T. Sowell, Affirmative Action Around the World 145–146 (2004). In doing so, those policies sort at least some blacks and Hispanics into environments where they are less likely to succeed academically relative to their peers. Ibid. The resulting mismatch places “many blacks and Hispanics who likely would have excelled at less elite schools . . . in a position where underperformance is all but inevitable because they are less academically prepared than the white and Asian students with whom they must compete.” Fisher I , 570 U. S., at 332 (Thomas, J., concurring). It is self-evident why that is so. As anyone who has labored over an algebra textbook has undoubtedly discovered, academic advancement results from hard work and practice, not mere declaration. Simply treating students as though their grades put them at the top of their high school classes does nothing to enhance the performance level of those students or otherwise prepare them for competitive college environments. In fact, studies suggest that large racial preferences for black and Hispanic applicants have led to a disproportionately large share of those students receiving mediocre or poor grades once they arrive in competitive collegiate environments. See, e.g. , R. Sander, A Systemic Analysis of Affirmative Action in American Law Schools, 57 Stan. L. Rev. 367, 371–372 (2004); see also R. Sander & R. Steinbuch, Mismatch and Bar Passage: A School-Specific Analysis (Oct. 6, 2017), https://ssrn.com/ abstract=3054208. Take science, technology, engineering, and mathematics (STEM) fields, for example. Those students who receive a large admissions preference are more likely to drop out of STEM fields than similarly situated students who did not receive such a preference. F. Smith & J. McArdle, Ethnic and Gender Differences in Science Graduation at Selective Colleges With Implications for Admission Policy and College Choice, 45 Research in Higher Ed. 353 (2004). “Even if most minority students are able to meet the normal standards at the ‘average’ range of colleges and universities, the systematic mismatching of minority students begun at the top can mean that such students are generally overmatched throughout all levels of higher education.” T. Sowell, Race and Culture 176–177 (1994).[ 8 ] These policies may harm even those who succeed academically. I have long believed that large racial preferences in college admissions “stamp [blacks and Hispanics] with a badge of inferiority.” Adarand , 515 U. S., at 241 (opinion of Thomas, J.). They thus “tain[t] the accomplishments of all those who are admitted as a result of racial discrimination” as well as “all those who are the same race as those admitted as a result of racial discrimination” because “no one can distinguish those students from the ones whose race played a role in their admission.” Fisher I , 570 U. S., at 333 (opinion of Thomas, J.). Consequently, “[w]hen blacks” and, now, Hispanics “take positions in the highest places of government, industry, or academia, it is an open question . . . whether their skin color played a part in their advancement.” Grutter , 539 U. S., at 373 (Thomas, J., concurring). “The question itself is the stigma—because either racial discrimination did play a role, in which case the person may be deemed ‘otherwise unqualified,’ or it did not, in which case asking the question itself unfairly marks those . . . who would succeed without discrimination.” Ibid. Yet, in the face of those problems, it seems increasingly clear that universities are focused on “aesthetic” solutions unlikely to help deserving members of minority groups. In fact, universities’ affirmative action programs are a particularly poor use of such resources. To start, these programs are overinclusive, providing the same admissions bump to a wealthy black applicant given every advantage in life as to a black applicant from a poor family with seemingly insurmountable barriers to overcome. In doing so, the programs may wind up helping the most well-off members of minority races without meaningfully assisting those who struggle with real hardship. Simultaneously, the programs risk continuing to ignore the academic underperformance of “the purported ‘beneficiaries’ ” of racial preferences and the racial stigma that those preferences generate. Grutter , 539 U. S., at 371 (opinion of Thomas, J.). Rather than performing their academic mission, universities thus may “see[k] only a facade—it is sufficient that the class looks right, even if it does not perform right.” Id. , at 372. D Finally, it is not even theoretically possible to “help” a certain racial group without causing harm to members of other racial groups. “It should be obvious that every racial classification helps, in a narrow sense, some races and hurts others.” Adarand , 515 U. S., at 241, n. * (opinion of Thomas, J.). And, even purportedly benign race-based discrimination has secondary effects on members of other races. The antisubordination view thus has never guided the Court’s analysis because “whether a law relying upon racial taxonomy is ‘benign’ or ‘malign’ either turns on ‘whose ox is gored’ or on distinctions found only in the eye of the beholder.” Ibid. (citations and some internal quotation marks omitted). Courts are not suited to the impossible task of determining which racially discriminatory programs are helping which members of which races—and whether those benefits outweigh the burdens thrust onto other racial groups. As the Court’s opinion today explains, the zero-sum nature of college admissions—where students compete for a finite number of seats in each school’s entering class—aptly demonstrates the point. Ante , at 27.[ 9 ] Petitioner here represents Asian Americans who allege that, at the margins, Asian applicants were denied admission because of their race. Yet, Asian Americans can hardly be described as the beneficiaries of historical racial advantages. To the contrary, our Nation’s first immigration ban targeted the Chinese, in part, based on “worker resentment of the low wage rates accepted by Chinese workers.” U. S. Commission on Civil Rights, Civil Rights Issues Facing Asian Americans in the 1990s, p. 3 (1992) (Civil Rights Issues); Act of May 6, 1882, ch. 126, 22Stat. 58–59. In subsequent years, “strong anti-Asian sentiments in the Western States led to the adoption of many discriminatory laws at the State and local levels, similar to those aimed at blacks in the South,” and “segregation in public facilities, including schools, was quite common until after the Second World War.” Civil Rights Issues 7; see also S. Hinnershitz, A Different Shade of Justice: Asian American Civil Rights in the South 21 (2017) (explaining that while both Asians and blacks have at times fought “against similar forms of discrimination,” “[t]he issues of citizenship and immigrant status often defined Asian American battles for civil rights and separated them from African American legal battles”). Indeed, this Court even sanctioned this segregation—in the context of schools, no less. In Gong Lum v. Rice , 275 U.S. 78 , 81–82, 85–87 (1927), the Court held that a 9-year-old Chinese-American girl could be denied entry to a “white” school because she was “a member of the Mongolian or yellow race.” Also, following the Japanese attack on the U. S. Navy base at Pearl Harbor, Japanese Americans in the American West were evacuated and interned in relocation camps. See Exec. Order No. 9066, 3 CFR 1092 (1943). Over 120,000 were removed to camps beginning in 1942, and the last camp that held Japanese Americans did not close until 1948. National Park Service, Japanese American Life During Internment, www.nps.gov/articles/japanese-american-internment-archeology.htm. In the interim, this Court endorsed the practice. Korematsu v. United States , 323 U.S. 214 (1944). Given the history of discrimination against Asian Americans, especially their history with segregated schools, it seems particularly incongruous to suggest that a past history of segregationist policies toward blacks should be remedied at the expense of Asian American college applicants.[ 10 ] But this problem is not limited to Asian Americans; more broadly, universities’ discriminatory policies burden millions of applicants who are not responsible for the racial discrimination that sullied our Nation’s past. That is why, “[i]n the absence of special circumstances, the remedy for de jure segregation ordinarily should not include educational programs for students who were not in school (or even alive) during the period of segregation.” Jenkins , 515 U. S., at 137 (Thomas, J., concurring). Today’s 17-year-olds, after all, did not live through the Jim Crow era, enact or enforce segregation laws, or take any action to oppress or enslave the victims of the past. Whatever their skin color, today’s youth simply are not responsible for instituting the segregation of the 20th century, and they do not shoulder the moral debts of their ancestors. Our Nation should not punish today’s youth for the sins of the past. IV Far from advancing the cause of improved race relations in our Nation, affirmative action highlights our racial differences with pernicious effect. In fact, recent history reveals a disturbing pattern: Affirmative action policies appear to have prolonged the asserted need for racial discrimination. Parties and amici in these cases report that, in the nearly 50 years since Bakke , 438 U.S. 265 , racial progress on campuses adopting affirmative action admissions policies has stagnated, including making no meaningful progress toward a colorblind goal since Grutter . See ante , at 21–22. Rather, the legacy of Grutter appears to be ever increasing and strident demands for yet more racially oriented solutions. A It has become clear that sorting by race does not stop at the admissions office. In his Grutter opinion, Justice Scalia criticized universities for “talk[ing] of multiculturalism and racial diversity,” but supporting “tribalism and racial segregation on their campuses,” including through “minority only student organizations, separate minority housing opportunities, separate minority student centers, even separate minority-only graduation ceremonies.” 539 U. S., at 349 (opinion concurring in part and dissenting in part). This trend has hardly abated with time, and today, such programs are commonplace. See Brief for Gail Heriot et al. as Amici Curiae 9. In fact, a recent study considering 173 schools found that 43% of colleges offered segregated housing to students of different races, 46% offered segregated orientation programs, and 72% sponsored segregated graduation ceremonies. D. Pierre & P. Wood, Neo-Segregation at Yale 16–17 (2019); see also D. Pierre, Demands for Segregated Housing at Williams College Are Not News, Nat. Rev., May 8, 2019. In addition to contradicting the universities’ claims regarding the need for interracial interaction, see Brief for National Association of Scholars as Amicus Curiae 4–12, these trends increasingly encourage our Nation’s youth to view racial differences as important and segregation as routine. Meanwhile, these discriminatory policies risk creating new prejudices and allowing old ones to fester. I previously observed that “[t]here can be no doubt” that discriminatory affirmative action policies “injur[e] white and Asian applicants who are denied admission because of their race.” Fisher I , 570 U. S., at 331 (concurring opinion). Petitioner here clearly demonstrates this fact. Moreover, “no social science has disproved the notion that this discrimination ‘engenders attitudes of superiority or, alternatively, provokes resentment among those who believe that they have been wronged by the government’s use of race.’ ” Grutter , 539 U. S., at 373 (opinion of Thomas, J.) (quoting Adarand , 515 U. S., at 241 (opinion of Thomas, J.) (alterations omitted)). Applicants denied admission to certain colleges may come to believe—accurately or not—that their race was responsible for their failure to attain a life-long dream. These individuals, and others who wished for their success, may resent members of what they perceive to be favored races, believing that the successes of those individuals are unearned. What, then, would be the endpoint of these affirmative action policies? Not racial harmony, integration, or equality under the law. Rather, these policies appear to be leading to a world in which everyone is defined by their skin color, demanding ever-increasing entitlements and preferences on that basis. Not only is that exactly the kind of factionalism that the Constitution was meant to safeguard against, see The Federalist No. 10 (J. Madison), but it is a factionalism based on ever-shifting sands. That is because race is a social construct; we may each identify as members of particular races for any number of reasons, having to do with our skin color, our heritage, or our cultural identity. And, over time, these ephemeral, socially constructed categories have often shifted. For example, whereas universities today would group all white applicants together, white elites previously sought to exclude Jews and other white immigrant groups from higher education. In fact, it is impossible to look at an individual and know definitively his or her race; some who would consider themselves black, for example, may be quite fair skinned. Yet, university admissions policies ask individuals to identify themselves as belonging to one of only a few reductionist racial groups. With boxes for only “black,” “white,” “Hispanic,” “Asian,” or the ambiguous “other,” how is a Middle Eastern person to choose? Someone from the Philippines? See post , at 5–7 (Gorsuch, J., concurring). Whichever choice he makes (in the event he chooses to report a race at all), the form silos him into an artificial category. Worse, it sends a clear signal that the category matters. But, under our Constitution, race is irrelevant, as the Court acknowledges. In fact, all racial categories are little more than stereotypes, suggesting that immutable characteristics somehow conclusively determine a person’s ideology, beliefs, and abilities. Of course, that is false. See ante , at 28–30 (noting that the Court’s Equal Protection Clause jurisprudence forbids such stereotyping). Members of the same race do not all share the exact same experiences and viewpoints; far from it. A black person from rural Alabama surely has different experiences than a black person from Manhattan or a black first-generation immigrant from Nigeria, in the same way that a white person from rural Vermont has a different perspective than a white person from Houston, Texas. Yet, universities’ racial policies suggest that racial identity “ alone constitutes the being of the race or the man.” J. Barzun, Race: A Study in Modern Superstition 114 (1937). That is the same naked racism upon which segregation itself was built. Small wonder, then, that these policies are leading to increasing racial polarization and friction. This kind of reductionist logic leads directly to the “disregard for what does not jibe with preconceived theory,” providing a “cloa[k] to conceal complexity, argumen[t] to the crown for praising or damning without the trouble of going into details”—such as details about an individual’s ideas or unique background. Ibid. Rather than forming a more pluralistic society, these policies thus strip us of our individuality and undermine the very diversity of thought that universities purport to seek. The solution to our Nation’s racial problems thus cannot come from policies grounded in affirmative action or some other conception of equity. Racialism simply cannot be undone by different or more racialism. Instead, the solution announced in the second founding is incorporated in our Constitution: that we are all equal, and should be treated equally before the law without regard to our race. Only that promise can allow us to look past our differing skin colors and identities and see each other for what we truly are: individuals with unique thoughts, perspectives, and goals, but with equal dignity and equal rights under the law. B Justice Jackson has a different view. Rather than focusing on individuals as individuals, her dissent focuses on the historical subjugation of black Americans, invoking statistical racial gaps to argue in favor of defining and categorizing individuals by their race. As she sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today. Post , at 1–26 (dissenting opinion). The panacea, she counsels, is to unquestioningly accede to the view of elite experts and reallocate society’s riches by racial means as necessary to “level the playing field,” all as judged by racial metrics. Post , at 26. I strongly disagree. First, as stated above, any statistical gaps between the average wealth of black and white Americans is constitutionally irrelevant. I, of course, agree that our society is not, and has never been, colorblind. Post , at 2 (Jackson, J., dissenting); see also Plessy , 163 U. S., at 559 (Harlan, J., dissenting). People discriminate against one another for a whole host of reasons. But, under the Fourteenth Amendment, the law must disregard all racial distinctions: “[I]n view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.” Ibid . With the passage of the Fourteenth Amendment, the people of our Nation proclaimed that the law may not sort citizens based on race. It is this principle that the Framers of the Fourteenth Amendment adopted in the wake of the Civil War to fulfill the promise of equality under the law. And it is this principle that has guaranteed a Nation of equal citizens the privileges or immunities of citizenship and the equal protection of the laws. To now dismiss it as “two-dimensional flatness,” post , at 25 (Jackson, J., dissenting), is to abdicate a sacred trust to ensure that our “honored dead . . . shall not have died in vain.” A. Lincoln, Gettysburg Address (1863). Yet, Justice Jackson would replace the second Founders’ vision with an organizing principle based on race. In fact, on her view, almost all of life’s outcomes may be unhesitatingly ascribed to race. Post , at 24–26. This is so, she writes, because of statistical disparities among different racial groups. See post , at 11–14. Even if some whites have a lower household net worth than some blacks, what matters to Justice Jackson is that the average white household has more wealth than the average black household. Post , at 11. This lore is not and has never been true. Even in the segregated South where I grew up, individuals were not the sum of their skin color. Then as now, not all disparities are based on race; not all people are racist; and not all differences between individuals are ascribable to race. Put simply, “the fate of abstract categories of wealth statistics is not the same as the fate of a given set of flesh-and-blood human beings.” T. Sowell, Wealth, Poverty and Politics 333 (2016). Worse still, Justice Jackson uses her broad observations about statistical relationships between race and select measures of health, wealth, and well-being to label all blacks as victims. Her desire to do so is unfathomable to me. I cannot deny the great accomplishments of black Americans, including those who succeeded despite long odds. Nor do Justice Jackson’s statistics regarding a correlation between levels of health, wealth, and well-being between selected racial groups prove anything. Of course, none of those statistics are capable of drawing a direct causal link between race—rather than socioeconomic status or any other factor—and individual outcomes. So Justice Jackson supplies the link herself: the legacy of slavery and the nature of inherited wealth. This, she claims, locks blacks into a seemingly perpetual inferior caste. Such a view is irrational; it is an insult to individual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victimhood. If an applicant has less financial means (because of generational inheritance or otherwise), then surely a university may take that into account. If an applicant has medical struggles or a family member with medical concerns, a university may consider that too. What it cannot do is use the applicant’s skin color as a heuristic, assuming that because the applicant checks the box for “black” he therefore conforms to the university’s monolithic and reductionist view of an abstract, average black person. Accordingly, Justice Jackson’s race-infused world view falls flat at each step. Individuals are the sum of their unique experiences, challenges, and accomplishments. What matters is not the barriers they face, but how they choose to confront them. And their race is not to blame for everything—good or bad—that happens in their lives. A contrary, myopic world view based on individuals’ skin color to the total exclusion of their personal choices is nothing short of racial determinism. Justice Jackson then builds from her faulty premise to call for action, arguing that courts should defer to “experts” and allow institutions to discriminate on the basis of race. Make no mistake: Her dissent is not a vanguard of the innocent and helpless. It is instead a call to empower privileged elites, who will “tell us [what] is required to level the playing field” among castes and classifications that they alone can divine. Post , at 26; see also post , at 5–7 (Gorsuch, J., concurring) (explaining the arbitrariness of these classifications). Then, after siloing us all into racial castes and pitting those castes against each other, the dissent somehow believes that we will be able—at some undefined point—to “march forward together” into some utopian vision. Post , at 26 (opinion of Jackson, J.). Social movements that invoke these sorts of rallying cries, historically, have ended disastrously. Unsurprisingly, this tried-and-failed system defies both law and reason. Start with the obvious: If social reorganization in the name of equality may be justified by the mere fact of statistical disparities among racial groups, then that reorganization must continue until these disparities are fully eliminated, regardless of the reasons for the disparities and the cost of their elimination. If blacks fail a test at higher rates than their white counterparts (regardless of whether the reason for the disparity has anything at all to do with race), the only solution will be race-focused measures. If those measures were to result in blacks failing at yet higher rates, the only solution would be to double down. In fact, there would seem to be no logical limit to what the government may do to level the racial playing field—outright wealth transfers, quota systems, and racial preferences would all seem permissible. In such a system, it would not matter how many innocents suffer race-based injuries; all that would matter is reaching the race-based goal. Worse, the classifications that Justice Jackson draws are themselves race-based stereotypes. She focuses on two hypothetical applicants, John and James, competing for admission to UNC. John is a white, seventh-generation legacy at the school, while James is black and would be the first in his family to attend UNC. Post , at 3. Justice Jackson argues that race-conscious admission programs are necessary to adequately compare the two applicants. As an initial matter, it is not clear why James’s race is the only factor that could encourage UNC to admit him; his status as a first-generation college applicant seems to contextualize his application. But, setting that aside, why is it that John should be judged based on the actions of his great-great-great-grandparents? And what would Justice Jackson say to John when deeming him not as worthy of admission: Some statistically significant number of white people had advantages in college admissions seven generations ago, and you have inherited their incurable sin? Nor should we accept that John or James represent all members of their respective races. All racial groups are heterogeneous, and blacks are no exception—encompassing northerners and southerners, rich and poor, and recent immigrants and descendants of slaves. See, e.g. , T. Sowell, Ethnic America 220 (1981) (noting that the great success of West Indian immigrants to the United States—disproportionate among blacks more broadly—“seriously undermines the proposition that color is a fatal handicap in the American economy”). Eschewing the complexity that comes with individuality may make for an uncomplicated narrative, but lumping people together and judging them based on assumed inherited or ancestral traits is nothing but stereotyping.[ 11 ] To further illustrate, let’s expand the applicant pool beyond John and James. Consider Jack, a black applicant and the son of a multimillionaire industrialist. In a world of race-based preferences, James’ seat could very well go to Jack rather than John—both are black, after all. And what about members of the numerous other racial and ethnic groups in our Nation? What about Anne, the child of Chinese immigrants? Jacob, the grandchild of Holocaust survivors who escaped to this Nation with nothing and faced discrimination upon arrival? Or Thomas, the great- grandchild of Irish immigrants escaping famine? While articulating her black and white world (literally), Justice Jackson ignores the experiences of other immigrant groups (like Asians, see supra , at 43–44) and white communities that have faced historic barriers. Though Justice Jackson seems to think that her race-based theory can somehow benefit everyone, it is an immutable fact that “every time the government uses racial criteria to ‘bring the races together,’ someone gets excluded, and the person excluded suffers an injury solely because of his or her race.” Parents Involved , 551 U. S., at 759 (Thomas, J., concurring) (citation omitted). Indeed, Justice Jackson seems to have no response—no explanation at all—for the people who will shoulder that burden. How, for example, would Justice Jackson explain the need for race-based preferences to the Chinese student who has worked hard his whole life, only to be denied college admission in part because of his skin color? If such a burden would seem difficult to impose on a bright-eyed young person, that’s because it should be. History has taught us to abhor theories that call for elites to pick racial winners and losers in the name of sociological experimentation. Nor is it clear what another few generations of race- conscious college admissions may be expected to accomplish. Even today, affirmative action programs that offer an admissions boost to black and Hispanic students discriminate against those who identify themselves as members of other races that do not receive such preferential treatment. Must others in the future make sacrifices to re-level the playing field for this new phase of racial subordination? And then, out of whose lives should the debt owed to those further victims be repaid? This vision of meeting social racism with government-imposed racism is thus self-defeating, resulting in a never-ending cycle of victimization. There is no reason to continue down that path. In the wake of the Civil War, the Framers of the Fourteenth Amendment charted a way out: a colorblind Constitution that requires the government to, at long last, put aside its citizens’ skin color and focus on their individual achievements. C Universities’ recent experiences confirm the efficacy of a colorblind rule. To start, universities prohibited from engaging in racial discrimination by state law continue to enroll racially diverse classes by race-neutral means. For example, the University of California purportedly recently admitted its “most diverse undergraduate class ever,” despite California’s ban on racial preferences. T. Watanabe, UC Admits Largest, Most Diverse Class Ever, But It Was Harder To Get Accepted, L. A. Times, July 20, 2021, p. A1. Similarly, the University of Michigan’s 2021 incoming class was “among the university’s most racially and ethnically diverse classes, with 37% of first-year students identifying as persons of color.” S. Dodge, Largest Ever Student Body at University of Michigan This Fall, Officials Say, MLive.com (Oct. 22, 2021), https://www.mlive.com/news/ann-arbor/ 2021/10/largest-ever-student-body-at-university-of-michigan- this-fall-officials-say.html. In fact, at least one set of studies suggests that, “when we consider the higher education system as a whole, it is clear that the vast majority of schools would be as racially integrated, or more racially integrated, under a system of no preferences than under a system of large preferences.” Brief for Richard Sander as Amicus Curiae 26. Race-neutral policies may thus achieve the same benefits of racial harmony and equality without any of the burdens and strife generated by affirmative action policies. In fact, meritocratic systems have long refuted bigoted misperceptions of what black students can accomplish. I have always viewed “higher education’s purpose as imparting knowledge and skills to students, rather than a communal, rubber-stamp, credentialing process.” Grutter , 539 U. S., at 371–372 (opinion concurring in part and dissenting in part). And, I continue to strongly believe (and have never doubted) that “blacks can achieve in every avenue of American life without the meddling of university administrators.” Id. , at 350. Meritocratic systems, with objective grading scales, are critical to that belief. Such scales have always been a great equalizer—offering a metric for achievement that bigotry could not alter. Racial preferences take away this benefit, eliminating the very metric by which those who have the most to prove can clearly demonstrate their accomplishments—both to themselves and to others. Schools’ successes, like students’ grades, also provide objective proof of ability. Historically Black Colleges and Universities (HBCUs) do not have a large amount of racial diversity, but they demonstrate a marked ability to improve the lives of their students. To this day, they have proved “to be extremely effective in educating Black students, particularly in STEM,” where “HBCUs represent seven of the top eight institutions that graduate the highest number of Black undergraduate students who go on to earn [science and engineering] doctorates.” W. Wondwossen, The Science Behind HBCU Success, Nat. Science Foundation (Sept. 24, 2020), https://beta.nsf.gov/science-matters/science-behind-hbcu-success. “HBCUs have produced 40% of all Black engineers.” Presidential Proclamation No. 10451, 87 Fed. Reg. 57567 (2022). And, they “account for 80% of Black judges, 50% of Black doctors, and 50% of Black lawyers.” M. Hammond, L. Owens, & B. Gulko, Social Mobility Outcomes for HBCU Alumni, United Negro College Fund 4 (2021) (Hammond), https://cdn.uncf.org/wp-content/uploads/ Social-Mobility-Report-FINAL.pdf; see also 87 Fed. Reg. 57567 (placing the percentage of black doctors even higher, at 70%). In fact, Xavier University, an HBCU with only a small percentage of white students, has had better success at helping its low-income students move into the middle class than Harvard has. See Hammond 14; see also Brief for Oklahoma et al. as Amici Curiae 18. And, each of the top 10 HBCUs have a success rate above the national average. Hammond 14.[ 12 ] Why, then, would this Court need to allow other universities to racially discriminate? Not for the betterment of those black students, it would seem. The hard work of HBCUs and their students demonstrate that “black schools can function as the center and symbol of black communities, and provide examples of independent black leadership, success, and achievement.” Jenkins , 515 U. S., at 122 (Thomas, J., concurring) (citing Fordice , 505 U. S., at 748 (Thomas, J., concurring)). And, because race-conscious college admissions are plainly not necessary to serve even the interests of blacks, there is no justification to compel such programs more broadly. See Parents Involved , 551 U. S., at 765 (Thomas, J., concurring). *  *  * The great failure of this country was slavery and its progeny. And, the tragic failure of this Court was its misinterpretation of the Reconstruction Amendments, as Justice Harlan predicted in Plessy . We should not repeat this mistake merely because we think, as our predecessors thought, that the present arrangements are superior to the Constitution. The Court’s opinion rightly makes clear that Grutter is, for all intents and purposes, overruled. And, it sees the universities’ admissions policies for what they are: rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes. Those policies fly in the face of our colorblind Constitution and our Nation’s equality ideal. In short, they are plainly—and boldly—unconstitutional. See Brown II , 349 U. S., at 298 (noting that the Brown case one year earlier had “declare[d] the fundamental principle that racial discrimination in public education is unconstitutional”). While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination, I hold out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States: that all men are created equal, are equal citizens, and must be treated equally before the law. Notes 1 In fact, Indians would not be considered citizens until several decades later. Indian Citizenship Act of 1924, ch. 233, 43Stat. 253 (declaring that all Indians born in the United States are citizens). 2 There is “some support” in the history of enactment for at least “four interpretations of the first section of the proposed amendment, and in particular of its Privileges [or] Immunities Clause: it would authorize Congress to enforce the Privileges and Immunities Clause of Article IV; it would forbid discrimination between citizens with respect to fundamental rights; it would establish a set of basic rights that all citizens must enjoy; and it would make the Bill of Rights applicable to the states.” D. Currie, The Reconstruction Congress, 75 U. Chi. L. Rev. 383, 406 (2008) (citing sources). Notably, those four interpretations are all colorblind. 3 UNC asserts that the Freedmen’s Bureau gave money to Berea College at a time when the school sought to achieve a 50–50 ratio of black to white students. Brief for University Respondents in No. 21–707, p. 32. But, evidence suggests that, at the relevant time, Berea conducted its admissions without distinction by race. S. Wilson, Berea College: An Illustrated History 2 (2006) (quoting Berea’s first president’s statement that the school “would welcome ‘all races of men, without distinction’ ”). 4 The Court has remarked that Title VI is coextensive with the Equal Protection Clause. See Gratz v. Bollinger , 539 U.S. 244 , 276, n. 23 (2003) (“We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI”); Regents of Univ. of Cal. v. Bakke , 438 U.S. 265 , 287 (1978) (opinion of Powell, J.) (“Title VI . . . proscribe[s] only those racial classifications that would violate the Equal Protection Clause”). As Justice Gorsuch points out, the language of Title VI makes no allowance for racial considerations in university admissions. See post , at 2–3 (concurring opinion). Though I continue to adhere to my view in Bostock v. Clayton County , 590 U. S. ___, ___–___ (2020) (Alito, J., dissenting) (slip op., at 1–54), I agree with Justice Gorsuch’s concurrence in this case. The plain text of Title VI reinforces the colorblind view of the Fourteenth Amendment. 5 In fact, the Massachusetts Supreme Court in 1783 declared that slavery was abolished in Massachusetts by virtue of the newly enacted Constitution’s provision of equality under the law. See The Quock Walker Case , in 1 H. Commager, Documents of American History 110 (9th ed. 1973) (Cushing, C. J.) (“[W]hatever sentiments have formerly prevailed in this particular or slid in upon us by the example of others, a different idea has taken place with the people of America, more favorable to the natural rights of mankind, and to that natural, innate desire of Liberty . . . . And upon this ground our Constitution of Government . . . sets out with declaring that all men are born free and equal . . . and in short is totally repugnant to the idea of being born slaves”). 6 Briefing in a case consolidated with Brown stated the colorblind position forthrightly: Classifications “[b]ased [s]olely on [r]ace or [c]olor” “can never be” constitutional. Juris. Statement in Briggs v. Elliott , O. T. 1951, No. 273, pp. 20–21, 25, 29; see also Juris. Statement in Davis v. County School Bd. of Prince Edward Cty. , O. T. 1952, No. 191, p. 8 (“Indeed, we take the unqualified position that the Fourteenth Amendment has totally stripped the state of power to make race and color the basis for governmental action. . . . For this reason alone, we submit, the state separate school laws in this case must fall”). 7 Indeed, the lawyers who litigated Brown were unwilling to take this bet, insisting on a colorblind legal rule. See, e.g. , Supp. Brief for Appellants on Reargument in Nos. 1, 2, and 4, and for Respondents in No. 10, in Brown v. Board of Education , O. T. 1953, p. 65 (“That the Constitution is color blind is our dedicated belief ”); Brief for Appellants in Brown v. Board of Education , O. T. 1952, No. 1, p. 5 (“The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone”). In fact, Justice Marshall viewed Justice Harlan’s Plessy dissent as “a ‘Bible’ to which he turned during his most depressed moments”; no opinion “buoyed Marshall more in his pre- Brown days.” In Memoriam: Honorable Thurgood Marshall, Proceedings of the Bar and Officers of the Supreme Court of the United States, p. X (1993) (remarks of Judge Motley). 8 Justice Sotomayor rejects this mismatch theory as “debunked long ago,” citing an amicus brief. Post , at 56. But, in 2016, the Journal of Economic Literature published a review of mismatch literature—coauthored by a critic and a defender of affirmative action—which concluded that the evidence for mismatch was “fairly convincing.” P. Arcidiacono & M. Lovenheim, Affirmative Action and the Quality-Fit Tradeoff, 54 J. Econ. Lit. 3, 20 (Arcidiacono & Lovenheim). And, of course, if universities wish to refute the mismatch theory, they need only release the data necessary to test its accuracy. See Brief for Richard Sander as Amicus Curiae 16–19 (noting that universities have been unwilling to provide the necessary data concerning student admissions and outcomes); accord, Arcidiacono & Lovenheim 20 (“Our hope is that better datasets soon will become available”). 9 Justice Sotomayor apparently believes that race-conscious admission programs can somehow increase the chances that members of certain races (blacks and Hispanics) are admitted without decreasing the chances of admission for members of other races (Asians). See post , at 58–59. This simply defies mathematics. In a zero-sum game like college admissions, any sorting mechanism that takes race into account in any way, see post , at 27 (opinion of Jackson, J.) (defending such a system), has discriminated based on race to the benefit of some races and the detriment of others. And, the universities here admit that race is determinative in at least some of their admissions decisions. See, e.g. , Tr. of Oral Arg. in No. 20–1199, at 67; 567 F. Supp. 3d 580, 633 (MDNC 2021); see also 397 F. Supp. 3d 126, 178 (Mass. 2019) (noting that, for Harvard, “race is a determinative tip for” a significant percentage “of all admitted African American and Hispanic applicants”); ante , at 5, n. 1 (describing the role that race plays in the universities’ admissions processes). 10 Even beyond Asian Americans, it is abundantly clear that the university respondents’ racial categories are vastly oversimplistic, as the opinion of the Court and Justice Gorsuch’s concurrence make clear. See ante , at 24–25; post , at 5–7 (opinion of Gorsuch, J.). Their “affirmative action” programs do not help Jewish, Irish, Polish, or other “white” ethnic groups whose ancestors faced discrimination upon arrival in America, any more than they help the descendants of those Japanese-American citizens interned during World War II. 11 Again, universities may offer admissions preferences to students from disadvantaged backgrounds, and they need not withhold those preferences from students who happen to be members of racial minorities. Universities may not, however, assume that all members of certain racial minorities are disadvantaged. 12 Such black achievement in “racially isolated” environments is neither new nor isolated to higher education. See T. Sowell, Education: Assumptions Versus History 7–38 (1986). As I have previously observed, in the years preceding Brown , the “most prominent example of an exemplary black school was Dunbar High School,” America’s first public high school for black students. Parents Involved in Community Schools v. Seattle School Dist. No. 1 , 551 U.S. 701 , 763 (2007) (concurring opinion). Known for its academics, the school attracted black students from across the Washington, D. C., area. “[I]n the period 1918–1923, Dunbar graduates earned fifteen degrees from Ivy League colleges, and ten degrees from Amherst, Williams, and Wesleyan.” Sowell, Education: Assumptions Versus History, at 29. Dunbar produced the first black General in the U. S. Army, the first black Federal Court Judge, and the first black Presidential Cabinet member. A. Stewart, First Class: The Legacy of Dunbar 2 (2013). Indeed, efforts towards racial integration ultimately precipitated the school’s decline. When the D. C. schools moved to a neighborhood-based admissions model, Dunbar was no longer able to maintain its prior admissions policies—and “[m]ore than 80 years of quality education came to an abrupt end.” T. Sowell, Wealth, Poverty and Politics 194 (2016). SUPREME COURT OF THE UNITED STATES _________________ Nos. 20–1199 and 21–707 _________________ STUDENTS FOR FAIR ADMISSIONS, INC., PETITIONER 20–1199 v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE on writ of certiorari to the united states court of appeals for the first circuit STUDENTS FOR FAIR ADMISSIONS, INC., PETITIONER 21–707 v. UNIVERSITY OF NORTH CAROLINA, et al. on writ of certiorari before judgment to the united states court of appeals for the fourth circuit [June 29, 2023] Justice Gorsuch, with whom Justice Thomas joins, concurring. For many students, an acceptance letter from Harvard or the University of North Carolina is a ticket to a brighter future. Tens of thousands of applicants compete for a small number of coveted spots. For some time, both universities have decided which applicants to admit or reject based in part on race. Today, the Court holds that the Equal Protection Clause of the Fourteenth Amendment does not tolerate this practice. I write to emphasize that Title VI of the Civil Rights Act of 1964 does not either. I “[F]ew pieces of federal legislation rank in significance with the Civil Rights Act of 1964.” Bostock v. Clayton County , 590 U. S. ___, ___ (2020) (slip op., at 2). Title VI of that law contains terms as powerful as they are easy to understand: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U. S. C. §2000d. The message for these cases is unmistakable. Students for Fair Admissions (SFFA) brought claims against Harvard and UNC under Title VI. That law applies to both institutions, as they elect to receive millions of dollars of federal assistance annually. And the trial records reveal that both schools routinely discriminate on the basis of race when choosing new students—exactly what the law forbids. A When a party seeks relief under a statute, our task is to apply the law’s terms as a reasonable reader would have understood them at the time Congress enacted them. “After all, only the words on the page constitute the law adopted by Congress and approved by the President.” Bostock , 590 U. S., at ___ (slip op., at 4). The key phrases in Title VI at issue here are “subjected to discrimination” and “on the ground of.” Begin with the first. To “discriminate” against a person meant in 1964 what it means today: to “trea[t] that individual worse than others who are similarly situated.” Id. , at ___ (slip op., at 7); see also Webster’s New International Dictionary 745 (2d ed. 1954) (“[t]o make a distinction” or “[t]o make a difference in treatment or favor (of one as compared with others)”); Webster’s Third New International Dictionary 648 (1961) (“to make a difference in treatment or favor on a class or categorical basis”). The provision of Title VI before us, this Court has also held, “prohibits only intentional discrimination.” Alexander v. Sandoval , 532 U.S. 275 , 280 (2001). From this, we can safely say that Title VI forbids a recipient of federal funds from intentionally treating one person worse than another similarly situated person on the ground of race, color, or national origin. What does the statute’s second critical phrase—“on the ground of ”—mean? Again, the answer is uncomplicated: It means “because of.” See, e.g., Webster’s New World Dictionary 640 (1960) (“because of ”); Webster’s Third New International Dictionary, at 1002 (defining “grounds” as “a logical condition, physical cause, or metaphysical basis”). “Because of ” is a familiar phrase in the law, one we often apply in cases arising under the Civil Rights Act of 1964, and one that we usually understand to invoke “the ‘simple’ and ‘traditional’ standard of but-for causation.” Bostock , 590 U. S., at ___ (slip op., at 5) (quoting University of Tex. Southwestern Medical Center v. Nassar , 570 U.S. 338 , 346, 360 (2013); some internal quotation marks omitted). The but-for-causation standard is a “sweeping” one too. Bostock , 590 U. S., at ___ (slip op., at 5). A defendant’s actions need not be the primary or proximate cause of the plaintiff ’s injury to qualify. Nor may a defendant avoid liability “just by citing some other factor that contributed to” the plaintiff ’s loss. Id ., at ___ (slip op., at 6). All that matters is that the plaintiff ’s injury would not have happened but for the defendant’s conduct. Ibid. Now put these pieces back together and a clear rule emerges. Title VI prohibits a recipient of federal funds from intentionally treating one person worse than another similarly situated person because of his race, color, or national origin. It does not matter if the recipient can point to “some other . . . factor” that contributed to its decision to disfavor that individual. Id., at ___–___ (slip op., at 14–15). It does not matter if the recipient discriminates in order to advance some further benign “intention” or “motivation.” Id., at ___ (slip op., at 13); see also Automobile Workers v. Johnson Controls, Inc. , 499 U.S. 187 , 199 (1991) (“the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect” or “alter [its] intentionally discriminatory character”) . Nor does it matter if the recipient discriminates against an individual member of a protected class with the idea that doing so might “favor” the interests of that “class” as a whole or otherwise “promot[e] equality at the group level.” Bostock , 590 U. S., at ___, ___ (slip op., at 13, 15). Title VI prohibits a recipient of federal funds from intentionally treating any individual worse even in part because of his race, color, or national origin and without regard to any other reason or motive the recipient might assert. Without question, Congress in 1964 could have taken the law in various directions. But to safeguard the civil rights of all Americans, Congress chose a simple and profound rule. One holding that a recipient of federal funds may never discriminate based on race, color, or national origin—period. If this exposition of Title VI sounds familiar, it should. Just next door, in Title VII, Congress made it “unlawful . . . for an employer . . . to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a)(1). Appreciating the breadth of this provision, just three years ago this Court read its essentially identical terms the same way. See Bostock , 590 U. S., at ___–___ (slip op., at 4–9). This Court has long recognized, too, that when Congress uses the same terms in the same statute, we should presume they “have the same meaning.” IBP, Inc. v. Alvarez , 546 U.S. 21 , 34 (2005). And that presumption surely makes sense here, for as Justice Stevens recognized years ago, “[b]oth Title VI and Title VII” codify a categorical rule of “individual equality, without regard to race.” Regents of Univ. of Cal. v. Bakke , 438 U.S. 265 , 416, n. 19 (1978) (opinion concurring in judgment in part and dissenting in part) (emphasis deleted). B Applying Title VI to the cases now before us, the result is plain. The parties debate certain details of Harvard’s and UNC’s admissions practices. But no one disputes that both universities operate “program[s] or activit[ies] receiving Federal financial assistance.” §2000d. No one questions that both institutions consult race when making their admissions decisions. And no one can doubt that both schools intentionally treat some applicants worse than others at least in part because of their race. 1 Start with how Harvard and UNC use race. Like many colleges and universities, those schools invite interested students to complete the Common Application. As part of that process, the trial records show, applicants are prompted to tick one or more boxes to explain “how you identify yourself.” 4 App. in No. 21–707, p. 1732. The available choices are American Indian or Alaska Native; Asian; Black or African American; Native Hawaiian or Other Pacific Islander; Hispanic or Latino; or White. Applicants can write in further details if they choose. Ibid. ; see also 397 F. Supp. 3d 126, 137 (Mass. 2019); 567 F. Supp. 3d 580, 596 (MDNC 2021). Where do these boxes come from? Bureaucrats. A federal interagency commission devised this scheme of classifications in the 1970s to facilitate data collection. See D. Bernstein, The Modern American Law of Race, 94 S. Cal. L. Rev. 171, 196–202 (2021); see also 43 Fed. Reg. 19269 (1978). That commission acted “without any input from anthropologists, sociologists, ethnologists, or other experts.” Brief for David E. Bernstein as Amicus Curiae 3 (Bernstein Amicus Brief ). Recognizing the limitations of their work, federal regulators cautioned that their classifications “should not be interpreted as being scientific or anthropological in nature, nor should they be viewed as determinants of eligibility for participation in any Federal program .” 43 Fed. Reg. 19269 (emphasis added). Despite that warning, others eventually used this classification system for that very purpose—to “sor[t] out winners and losers in a process that, by the end of the century, would grant preference[s] in jobs . . . and university admissions.” H. Graham, The Origins of Official Minority Designation, in The New Race Question: How the Census Counts Multiracial Individuals 289 (J. Perlmann & M. Waters eds. 2002). These classifications rest on incoherent stereotypes. Take the “Asian” category. It sweeps into one pile East Asians ( e.g., Chinese, Korean, Japanese) and South Asians ( e.g., Indian, Pakistani, Bangladeshi), even though together they constitute about 60% of the world’s population. Bernstein Amicus Brief 2, 5. This agglomeration of so many peoples paves over countless differences in “language,” “culture,” and historical experience. Id ., at 5–6. It does so even though few would suggest that all such persons share “similar backgrounds and similar ideas and experiences.” Fisher v. University of Tex. at Austin , 579 U.S. 365, 414 (2016) (Alito, J., dissenting). Consider, as well, the development of a separate category for “Native Hawaiian or Other Pacific Islander.” It seems federal officials disaggregated these groups from the “Asian” category only in the 1990s and only “in response to political lobbying.” Bernstein Amicus Brief 9–10. And even that category contains its curiosities. It appears, for example, that Filipino Americans remain classified as “Asian” rather than “Other Pacific Islander.” See 4 App. in No. 21–707, at 1732. The remaining classifications depend just as much on irrational stereotypes. The “Hispanic” category covers those whose ancestral language is Spanish, Basque, or Catalan—but it also covers individuals of Mayan, Mixtec, or Zapotec descent who do not speak any of those languages and whose ancestry does not trace to the Iberian Peninsula but bears deep ties to the Americas. See Bernstein Amicus Brief 10–11. The “White” category sweeps in anyone from “Europe, Asia west of India, and North Africa.” Id. , at 14. That includes those of Welsh, Norwegian, Greek, Italian, Moroccan, Lebanese, Turkish, or Iranian descent. It embraces an Iraqi or Ukrainian refugee as much as a member of the British royal family. Meanwhile, “Black or African American” covers everyone from a descendant of enslaved persons who grew up poor in the rural South, to a first-generation child of wealthy Nigerian immigrants, to a Black-identifying applicant with multiracial ancestry whose family lives in a typical American suburb. See id., at 15–16. If anything, attempts to divide us all up into a handful of groups have become only more incoherent with time. American families have become increasingly multicultural, a fact that has led to unseemly disputes about whether someone is really a member of a certain racial or ethnic group. There are decisions denying Hispanic status to someone of Italian-Argentine descent, Marinelli Constr. Corp. v. New York , 200 App. Div. 2d 294, 296–297, 613 N.Y.S.2d 1000, 1002 (1994), as well as someone with one Mexican grandparent, Major Concrete Constr., Inc. v. Erie County , 134 App. Div. 2d 872, 873, 521 N.Y.S.2d 959, 960 (1987). Yet there are also decisions granting Hispanic status to a Sephardic Jew whose ancestors fled Spain centuries ago, In re Rothschild-Lynn Legal & Fin. Servs. , SBA No. 499, 1995 WL 542398, *2–*4 (Apr. 12, 1995), and bestowing a “sort of Hispanic” status on a person with one Cuban grandparent, Bernstein, 94 S. Cal. L. Rev., at 232 (discussing In re Kist Corp. , 99 F. C. C. 2d 173, 193 (1984)). Given all this, is it any surprise that members of certain groups sometimes try to conceal their race or ethnicity? Or that a cottage industry has sprung up to help college applicants do so? We are told, for example, that one effect of lumping so many people of so many disparate backgrounds into the “Asian” category is that many colleges consider “Asians” to be “overrepresented” in their admission pools. Brief for Asian American Coalition for Education et al. as Amici Curiae 12–14, 18–19. Paid advisors, in turn, tell high school students of Asian descent to downplay their heritage to maximize their odds of admission. “ ‘We will make them appear less Asian when they apply,’ ” one promises. Id., at 16. “ ‘If you’re given an option, don’t attach a photograph to your application,’ ” another instructs. Ibid. [ 1 ] It is difficult to imagine those who receive this advice would find comfort in a bald (and mistaken) assurance that “race-conscious admissions benefit . . . the Asian American community,” post , at 60 (Sotomayor, J., dissenting). See 397 F. Supp. 3d, at 178 (district court finding that “overall” Harvard’s race-conscious admissions policy “results in fewer Asian American[s]” being admitted). And it is hard not to wonder whether those left paying the steepest price are those least able to afford it—children of families with no chance of hiring the kind of consultants who know how to play this game.[ 2 ] 2 Just as there is no question Harvard and UNC consider race in their admissions processes, there is no question both schools intentionally treat some applicants worse than others because of their race. Both schools frequently choose to award a “tip” or a “plus” to applicants from certain racial groups but not others. These tips or plusses are just what they sound like—“factors that might tip an applicant into [an] admitted class.” 980 F.3d 157, 170 (CA1 2020). And in a process where applicants compete for a limited pool of spots, “[a] tip for one race” necessarily works as “a penalty against other races.” Brief for Economists as Amici Curiae 20. As the trial court in the Harvard case put it: “Race conscious admissions will always penalize to some extent the groups that are not being advantaged by the process.” 397 F. Supp. 3d, at 202–203. Consider how this plays out at Harvard. In a given year, the university’s undergraduate program may receive 60,000 applications for roughly 1,600 spots. Tr. of Oral Arg. in No. 20–1199, p. 60. Admissions officers read each application and rate students across several categories: academic, extracurricular, athletic, school support, personal, and overall. 980 F. 3d, at 167. Harvard says its admissions officers “should not” consider race or ethnicity when assigning the “personal” rating. Id., at 169 (internal quotation marks omitted). But Harvard did not make this instruction explicit until after SFFA filed this suit. Ibid . And, in any event, Harvard concedes that its admissions officers “ can and do take an applicant’s race into account when assigning an overall rating.” Ibid . (emphasis added). At that stage, the lower courts found, applicants of certain races may receive a “tip” in their favor. Ibid. The next step in the process is committee review. Regional subcommittees may consider an applicant’s race when deciding whether to recommend admission. Id. , at 169–170. So, too, may the full admissions committee. Ibid. As the Court explains, that latter committee “discusses the relative breakdown of applicants by race.” Ante , at 2–3. And “if at some point in the admissions process it appears that a group is notably underrepresented or has suffered a dramatic drop off relative to the prior year, the [committee] may decide to give additional attention to applications from students within that group.” 397 F. Supp. 3d, at 146. The last step is “lopping,” where the admissions committee trims the list of “prospective admits” before settling on a final class. Id., at 144 (internal quotation marks omitted). At this stage, again, the committee considers the “characteristics of the admitted class,” including its “racial composition.” Ibid. Once more, too, the committee may consider each applicant’s race in deciding whom to “lop off.” Ibid. All told, the district court made a number of findings about Harvard’s use of race-based tips. For example: “[T]he tip[s] given for race impac[t] who among the highly-qualified students in the applicant pool will be selected for admission.” Id. , at 178. “At least 10% of Harvard’s admitted class . . . would most likely not be admitted in the absence of Harvard’s race-conscious admissions process.” Ibid. Race-based tips are “determinative” in securing favorable decisions for a significant percentage of “African American and Hispanic applicants,” the “primary beneficiaries” of this system. Ibid. There are clear losers too. “[W]hite and Asian American applicants are unlikely to receive a meaningful race-based tip,” id., at 190, n. 56, and “overall” the school’s race-based practices “resul[t] in fewer Asian American and white students being admitted,” id. , at 178. For these reasons and others still, the district court concluded that “Harvard’s admissions process is not facially neutral” with respect to race. Id., at 189–190; see also id. , at 190, n. 56 (“The policy cannot . . . be considered facially neutral from a Title VI perspective.”). Things work similarly at UNC. In a typical year, about 44,000 applicants vie for 4,200 spots. 567 F. Supp. 3d, at 595. Admissions officers read each application and rate prospective students along eight dimensions: academic programming, academic performance, standardized tests, extracurriculars, special talents, essays, background, and personal. Id., at 600. The district court found that “UNC’s admissions policies mandate that race is taken into consideration” in this process as a “ ‘plus’ facto[r].” Id., at 594–595. It is a plus that is “sometimes” awarded to “underrepresented minority” or “URM” candidates—a group UNC defines to include “ ‘those students identifying themselves as African American or [B]lack; American Indian or Alaska Native; or Hispanic, Latino, or Latina,’ ” but not Asian or white students. Id ., at 591–592, n. 7, 601. At UNC, the admissions officers’ decisions to admit or deny are “ ‘provisionally final.’ ” Ante , at 4 (opinion for the Court). The decisions become truly final only after a committee approves or rejects them. 567 F. Supp. 3d, at 599. That committee may consider an applicant’s race too. Id. , at 607. In the end, the district court found that “race plays a role”—perhaps even “a determinative role”—in the decision to admit or deny some “URM students.” Id., at 634; see also id., at 662 (“race may tip the scale”). Nor is this an accident. As at Harvard, officials at UNC have made a “deliberate decision” to employ race-conscious admissions practices. Id., at 588–589. While the district courts’ findings tell the full story, one can also get a glimpse from aggregate statistics. Consider the chart in the Court’s opinion collecting Harvard’s data for the period 2009 to 2018. Ante, at 31. The racial composition of each incoming class remained steady over that time—remarkably so. The proportion of African Americans hovered between 10% and 12%; the proportion of Hispanics between 8% and 12%; and the proportion of Asian Americans between 17% and 20%. Ibid. Might this merely reflect the demographics of the school’s applicant pool? Cf. post , at 35 (opinion of Sotomayor, J.). Perhaps—at least assuming the applicant pool looks much the same each year and the school rather mechanically admits applicants based on objective criteria. But the possibility that it instead betrays the school’s persistent focus on numbers of this race and numbers of that race is entirely consistent with the findings recounted above. See, e.g., 397 F. Supp. 3d, at 146 (“if at some point in the admissions process it appears that a group is notably underrepresented or has suffered a dramatic drop off relative to the prior year, the [committee] may decide to give additional attention to applications from students within that group”); cf. ante, at 31–32, n. 7 (opinion for the Court). C Throughout this litigation, the parties have spent less time contesting these facts than debating other matters. For example, the parties debate how much of a role race plays in admissions at Harvard and UNC. Both schools insist that they consider race as just one of many factors when making admissions decisions in their self-described “holistic” review of each applicant. SFFA responds with trial evidence showing that, whatever label the universities use to describe their processes, they intentionally consult race and, by design, their race-based tips and plusses benefit applicants of certain groups to the detriment of others. See Brief for Petitioner 20–35, 40–45. The parties also debate the reasons both schools consult race. SFFA observes that, in the 1920s, Harvard began moving away from “test scores” and toward “plac[ing] greater emphasis on character, fitness, and other subjective criteria.” Id. , at 12–13 (internal quotation marks omitted). Harvard made this move, SFFA asserts, because President A. Lawrence Lowell and other university leaders had become “alarmed by the growing number of Jewish students who were testing in,” and they sought some way to cap the number of Jewish students without “ ‘stat[ing] frankly’ ” that they were “ ‘directly excluding all [Jews] beyond a certain percentage.’ ” Id., at 12; see also 3 App. in No. 20–1199, pp. 1131–1133. SFFA contends that Harvard’s current “holistic” approach to admissions works similarly to disguise the school’s efforts to assemble classes with a particular racial composition—and, in particular, to limit the number of Asian Americans it admits. Brief for Petitioner 12–14, 25–32. For its part, Harvard expresses regret for its past practices while denying that they resemble its current ones. Tr. of Oral Arg. in No. 20–1199, at 51. And both schools insist that their student bodies would lack sufficient diversity without race-conscious admissions. Brief for Respondent in No. 20–1199, pp. 52–54; Brief for University Respondents in No. 21–707, pp. 54–59. When it comes to defining and measuring diversity, the parties spar too. SFFA observes that the racial categories the universities employ in the name of diversity do not begin to reflect the differences that exist within each group. See Part I–B–1, supra . Instead, they lump together white and Asian students from privileged backgrounds with “Jewish, Irish, Polish, or other ‘white’ ethnic groups whose ancestors faced discrimination” and “descendants of those Japanese-American citizens interned during World War II.” Ante , at 45, n. 10 (Thomas, J., concurring). Even putting all that aside, SFFA stresses that neither Harvard nor UNC is willing to quantify how much racial and ethnic diversity they think sufficient. And, SFFA contends, the universities may not wish to do so because their stated goal implies a desire to admit some fixed number (or quota) of students from each racial group. See Brief for Petitioner 77, 80; Tr. of Oral Arg. in No. 21–707, p. 180. Besides, SFFA asks, if it is diversity the schools are after, why do they exhibit so little interest in other (non-racial) markers of it? See Brief for Petitioner 78, 83–86. While Harvard professes interest in socioeconomic diversity, for example, SFFA points to trial testimony that there are “23 times as many rich kids on campus as poor kids.” 2 App. in No. 20–1199, p. 756.[ 3 ] Even beyond all this, the parties debate the availability of alternatives. SFFA contends that both Harvard and UNC could obtain significant racial diversity without resorting to race-based admissions practices. Many other universities across the country, SFFA points out, have sought to do just that by reducing legacy preferences, increasing financial aid, and the like. Brief for Petitioner 85–86; see also Brief for Oklahoma et al. as Amici Curiae 9–19.[ 4 ] As part of its affirmative case, SFFA also submitted evidence that Harvard could nearly replicate the current racial composition of its student body without resorting to race-based practices if it: (1) provided socioeconomically disadvantaged applicants just half of the tip it gives recruited athletes; and (2) eliminated tips for the children of donors, alumni, and faculty. Brief for Petitioner 33–34, 81; see 2 App. in No. 20–1199, at 763–765, 774–775. Doing these two things would barely affect the academic credentials of each incoming class. Brief for Petitioner 33–34. And it would not require Harvard to end tips for recruited athletes, who as a group are much weaker academically than non-athletes.[ 5 ] At trial, however, Harvard resisted this proposal. Its preferences for the children of donors, alumni, and faculty are no help to applicants who cannot boast of their parents’ good fortune or trips to the alumni tent all their lives. While race-neutral on their face, too, these preferences undoubtedly benefit white and wealthy applicants the most. See 980 F. 3d, at 171. Still, Harvard stands by them. See Brief for Respondent in No. 20–1199, at 52–54; Tr. of Oral Arg. in No. 21–1199, at 48–49. As a result, athletes and the children of donors, alumni, and faculty—groups that together “make up less than 5% of applicants to Harvard”—constitute “around 30% of the applicants admitted each year.” 980 F. 3d, at 171. To be sure, the parties’ debates raise some hard-to-answer questions. Just how many admissions decisions turn on race? And what really motivates the universities’ race-conscious admissions policies and their refusal to modify other preferential practices? Fortunately, Title VI does not require an answer to any of these questions. It does not ask how much a recipient of federal funds discriminates. It does not scrutinize a recipient’s reasons or motives for discriminating. Instead, the law prohibits covered institutions from intentionally treating any individual worse even in part because of race. So yes, of course, the universities consider many non-racial factors in their admissions processes too. And perhaps they mean well when they favor certain candidates over others based on the color of their skin. But even if all that is true, their conduct violates Title VI just the same. See Part I–A, supra ; see also Bostock , 590 U. S., at ___, ___–___ (slip op., at 6, 12–15) . D The principal dissent contends that this understanding of Title VI is contrary to precedent. Post , at 26–27, n. 21 (opinion of Sotomayor, J.). But the dissent does not dispute that everything said here about the meaning of Title VI tracks this Court’s precedent in Bostock interpreting materially identical language in Title VII. That raises two questions: Do the dissenters think Bostock wrongly decided? Or do they read the same words in neighboring provisions of the same statute—enacted at the same time by the same Congress—to mean different things? Apparently, the federal government takes the latter view. The Solicitor General insists that there is “ambiguity in the term ‘discrimination’ ” in Title VI but no ambiguity in the term “discriminate” in Title VII. Tr. of Oral Arg. in No. 21–707, at 164. Respectfully, I do not see it. The words of the Civil Rights Act of 1964 are not like mood rings; they do not change their message from one moment to the next. Rather than engage with the statutory text or our precedent in Bostock , the principal dissent seeks to sow confusion about the facts. It insists that all applicants to Harvard and UNC are “eligible” to receive a race-based tip. Post , at 32, n. 27 (opinion of Sotomayor, J.); cf. post , at 17 (Jackson, J., dissenting). But the question in these cases is not who could hypothetically receive a race-based tip. It is who actually receives one. And on that score the lower courts left no doubt. The district court in the Harvard case found that the school’s admissions policy “cannot . . . be considered facially neutral from a Title VI perspective given that admissions officers provide [race-based] tips to African American and Hispanic applicants, while white and Asian American applicants are unlikely to receive a meaningful race-based tip.” 397 F. Supp. 3d, at 190, n. 56; see also id., at 189–190 (“Harvard’s admissions process is not facially neutral.”). Likewise, the district court in the UNC case found that admissions officers “sometimes” award race-based plusses to URM candidates—a category that excludes Asian American and white students. 567 F. Supp. 3d, at 591–592, n. 7, 601.[ 6 ] Nor could anyone doubt that these cases are about intentional discrimination just because Harvard in particular “ ‘does not explicitly prioritize any particular racial group over any other.’ ” Post, at 32, n. 27 (opinion of Sotomayor, J.) (emphasis added). Forget for a moment the universities’ concessions about how they deliberately consult race when deciding whom to admit. See supra, at 12–13.[ 7 ] Look past the lower courts’ findings recounted above about how the universities intentionally give tips to students of some races and not others. See supra, at 8–12, 16–17. Put to the side telling evidence that came out in discovery.[ 8 ] Ignore, too, our many precedents holding that it does not matter how a defendant “label[s]” its practices, Bostock , 590 U. S., at ___ (slip op., at 14); that intentional discrimination between individuals is unlawful whether “motivated by a wish to achieve classwide equality” or any other purpose, id. , at ___ (slip op., at 13); and that “the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a [merely] discriminatory effect,” Johnson Controls , 499 U. S., at 199. Consider just the dissents in these cases. From start to finish and over the course of nearly 100 pages, they defend the universities’ purposeful discrimination between applicants based on race. “[N]eutrality,” they insist, is not enough. Post, at 12, 68 (opinion of Sotomayor, J.); cf. post , at 21 (opinion of Jackson, J.). “[T]he use of race,” they stress, “is critical.” Post, at 59–60 (opinion of Sotomayor, J.); see id., at 2, 33, 39, 43–45; cf. post, at 2, 26 (opinion of Jackson, J.). Plainly, Harvard and UNC choose to treat some students worse than others in part because of race. To suggest otherwise—or to cling to the fact that the schools do not always say the quiet part aloud—is to deny reality.[ 9 ] II So far, we have seen that Title VI prohibits a recipient of federal funds from discriminating against individuals even in part because of race. We have seen, too, that Harvard and UNC do just what the law forbids. One might wonder, then, why the parties have devoted years and fortunes litigating other matters, like how much the universities discriminate and why they do so. The answer lies in Bakke . A Bakke concerned admissions to the medical school at the University of California, Davis. That school set aside a certain number of spots in each class for minority applicants. See 438 U. S., at 272–276 (opinion of Powell, J.). Allan Bakke argued that the school’s policy violated Title VI and the Equal Protection Clause of the Fourteenth Amendment. Id., at 270. The Court agreed with Mr. Bakke. In a fractured decision that yielded six opinions, a majority of the Court held that the school’s set-aside system went too far. At the same time, however, a different coalition of five Justices ventured beyond the facts of the case to suggest that, in other circumstances not at issue, universities may sometimes permissibly use race in their admissions processes. See ante , at 16–19 (opinion for the Court). As important as these conclusions were some of the interpretive moves made along the way. Justice Powell (writing only for himself ) and Justice Brennan (writing for himself and three others) argued that Title VI is coterminous with the Equal Protection Clause. Put differently, they read Title VI to prohibit recipients of federal funds from doing whatever the Equal Protection Clause prohibits States from doing. Justice Powell and Justice Brennan then proceeded to evaluate racial preferences in higher education directly under the Equal Protection Clause. From there, however, their paths diverged. Justice Powell thought some racial preferences might be permissible but that the admissions program at issue violated the promise of equal protection. 438 U. S., at 315–320. Justice Brennan would have given a wider berth to racial preferences and allowed the challenged program to proceed. Id. , at 355–379. Justice Stevens (also writing for himself and three others) took an altogether different approach. He began by noting the Court’s “settled practice” of “avoid[ing] the decision of a constitutional issue if a case can be fairly decided on a statutory ground.” Id., at 411. He then turned to the “broad prohibition” of Title VI, id., at 413, and summarized his views this way: “The University . . . excluded Bakke from participation in its program of medical education because of his race. The University also acknowledges that it was, and still is, receiving federal financial assistance. The plain language of the statute therefore requires” finding a Title VI violation. Id., at 412 (footnote omitted). In the years following Bakke , this Court hewed to Justice Powell’s and Justice Brennan’s shared premise that Title VI and the Equal Protection Clause mean the same thing. See Gratz v. Bollinger , 539 U.S. 244 , 276, n. 23 (2003); Grutter v. Bollinger , 539 U.S. 306 , 343 (2003). Justice Stevens’s statute-focused approach receded from view. As a result, for over four decades, every case about racial preferences in school admissions under Title VI has turned into a case about the meaning of the Fourteenth Amendment. And what a confused body of constitutional law followed. For years, this Court has said that the Equal Protection Clause requires any consideration of race to satisfy “strict scrutiny,” meaning it must be “narrowly tailored to further compelling governmental interests.” Grutter , 539 U. S., at 326 (internal quotation marks omitted). Outside the context of higher education, “our precedents have identified only two” interests that meet this demanding standard: “remediating specific, identified instances of past discrimination that violated the Constitution or a statute,” and “avoiding imminent and serious risks to human safety in prisons.” Ante, at 15 (opinion for the Court). Within higher education, however, an entirely distinct set of rules emerged. Following Bakke , this Court declared that judges may simply “defer” to a school’s assertion that “diversity is essential” to its “educational mission.” Grutter , 539 U. S., at 328. Not all schools, though—elementary and secondary schools apparently do not qualify for this deference. See Parents Involved in Community Schools v. Seattle School Dist. No. 1 , 551 U.S. 701 , 724–725 (2007). Only colleges and universities, the Court explained, “occupy a special niche in our constitutional tradition.” Grutter , 539 U. S., at 329. Yet even they (wielding their “special niche” authority) cannot simply assert an interest in diversity and discriminate as they please. Fisher , 579 U. S., at 381. Instead, they may consider race only as a “plus” factor for the purpose of “attaining a critical mass of underrepresented minority students” or “a diverse student body.” Grutter , 539 U. S., at 335–336 (internal quotation marks omitted). At the same time, the Court cautioned, this practice “must have a logical end point.” Id., at 342. And in the meantime, “outright racial balancing” and “quota system[s]” remain “patently unconstitutional.” Id. , at 330, 334. Nor may a college or university ever provide “mechanical, predetermined diversity bonuses.” Id ., at 337 (internal quotation marks omitted). Only a “tip” or “plus” is constitutionally tolerable, and only for a limited time. Id. , at 338–339, 341. If you cannot follow all these twists and turns, you are not alone. See, e.g., Fisher , 579 U. S., at 401–437 (Alito, J., dissenting); Grutter , 539 U. S., at 346–349 (Scalia, J., joined by Thomas, J., concurring in part and dissenting in part); 1 App. in No. 21–707, pp. 401–402 (testimony from UNC administrator: “[M]y understanding of the term ‘critical mass’ is that it’s a . . . I’m trying to decide if it’s an analogy or a metaphor[.] I think it’s an analogy. . . . I’m not even sure we would know what it is.”); 3 App. in No. 20–1199, at 1137–1138 (similar testimony from a Harvard administrator). If the Court’s post- Bakke higher-education precedents ever made sense, they are by now incoherent. Recognizing as much, the Court today cuts through the kudzu. It ends university exceptionalism and returns this Court to the traditional rule that the Equal Protection Clause forbids the use of race in distinguishing between persons unless strict scrutiny’s demanding standards can be met. In that way, today’s decision wakes the echoes of Justice John Marshall Harlan: “The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.” Plessy v. Ferguson , 163 U.S. 537 , 559 (1896) (dissenting opinion). B If Bakke led to errors in interpreting the Equal Protection Clause, its first mistake was to take us there. These cases arise under Title VI and that statute is “more than a simple paraphrasing” of the Equal Protection Clause. 438 U. S., at 416 (opinion of Stevens, J.). Title VI has “independent force, with language and emphasis in addition to that found in the Constitution.” Ibid. That law deserves our respect and its terms provide us with all the direction we need. Put the two provisions side by side. Title VI says: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” §2000d. The Equal Protection Clause reads: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Amdt. 14, §1. That such differently worded provisions should mean the same thing is implausible on its face. Consider just some of the obvious differences. The Equal Protection Clause operates on States. It does not purport to regulate the conduct of private parties. By contrast, Title VI applies to recipients of federal funds—covering not just many state actors, but many private actors too. In this way, Title VI reaches entities and organizations that the Equal Protection Clause does not. In other respects, however, the relative scope of the two provisions is inverted. The Equal Protection Clause addresses all manner of distinctions between persons and this Court has held that it implies different degrees of judicial scrutiny for different kinds of classifications. So, for example, courts apply strict scrutiny for classifications based on race, color, and national origin; intermediate scrutiny for classifications based on sex; and rational-basis review for classifications based on more prosaic grounds. See, e.g. , Fisher , 579 U. S., at 376; Richmond v. J. A. Croson Co ., 488 U.S. 469 , 493–495 (1989) (plurality opinion); United States v. Virginia , 518 U.S. 515 , 555–556 (1996); Board of Trustees of Univ. of Ala. v. Garrett , 531 U.S. 356 , 366–367 (2001). By contrast, Title VI targets only certain classifications—those based on race, color, or national origin. And that law does not direct courts to subject these classifications to one degree of scrutiny or another. Instead, as we have seen, its rule is as uncomplicated as it is momentous. Under Title VI, it is always unlawful to discriminate among persons even in part because of race, color, or national origin. In truth, neither Justice Powell’s nor Justice Brennan’s opinion in Bakke focused on the text of Title VI. Instead, both leapt almost immediately to its “voluminous legislative history,” from which they proceeded to divine an implicit “congressional intent” to link the statute with the Equal Protection Clause. 438 U. S., at 284–285 (opinion of Powell, J.); id., at 328–336 ( joint opinion of Brennan, White, Marshall, and Blackmun, JJ.). Along the way, as Justice Stevens documented, both opinions did more than a little cherry-picking from the legislative record. See id. , at 413–417. Justice Brennan went so far as to declare that “any claim that the use of racial criteria is barred by the plain language of the statute must fail in light of the remedial purpose of Title VI and its legislative history.” Id., at 340. And once liberated from the statute’s firm rule against discrimination based on race, both opinions proceeded to devise their own and very different arrangements in the name of the Equal Protection Clause. The moves made in Bakke were not statutory interpretation. They were judicial improvisation. Under our Constitution, judges have never been entitled to disregard the plain terms of a valid congressional enactment based on surmise about unenacted legislative intentions. Instead, it has always been this Court’s duty “to give effect, if possible, to every clause and word of a statute,” Montclair v. Ramsdell , 107 U.S. 147 , 152 (1883), and of the Constitution itself, see Knowlton v. Moore , 178 U.S. 41 , 87 (1900). In this country, “[o]nly the written word is the law, and all persons are entitled to its benefit.” Bostock , 590 U. S., at ___ (slip op., at 2). When judges disregard these principles and enforce rules “inspired only by extratextual sources and [their] own imaginations,” they usurp a lawmaking function “reserved for the people’s representatives.” Id ., at ___ (slip op., at 4). Today, the Court corrects course in its reading of the Equal Protection Clause. With that, courts should now also correct course in their treatment of Title VI. For years, they have read a solo opinion in Bakke like a statute while reading Title VI as a mere suggestion. A proper respect for the law demands the opposite. Title VI bears independent force beyond the Equal Protection Clause. Nothing in it grants special deference to university administrators. Nothing in it endorses racial discrimination to any degree or for any purpose. Title VI is more consequential than that. * In the aftermath of the Civil War, Congress took vital steps toward realizing the promise of equality under the law. As important as those initial efforts were, much work remained to be done—and much remains today. But by any measure, the Civil Rights Act of 1964 stands as a landmark on this journey and one of the Nation’s great triumphs. We have no right to make a blank sheet of any of its provisions. And when we look to the clear and powerful command Congress set forth in that law, these cases all but resolve themselves. Under Title VI, it is never permissible “ ‘to say “yes” to one person . . . but to say “no” to another person’ ” even in part “ ‘because of the color of his skin.’ ” Bakke , 438 U. S., at 418 (opinion of Stevens, J.). Notes 1 See also A. Qin, Aiming for an Ivy and Trying to Seem ‘Less Asian,’ N. Y. Times, Dec. 3, 2022, p. A18, col. 1 (“[T]he rumor that students can appear ‘too Asian’ has hardened into a kind of received wisdom within many Asian American communities,” and “college admissions consultants [have] spoke[n] about trying to steer their Asian American clients away from so-called typically Asian activities such as Chinese language school, piano and Indian classical instruments.”). 2 Though the matter did not receive much attention in the proceedings below, it appears that the Common Application has evolved in recent years to allow applicants to choose among more options to describe their backgrounds. The decisions below do not disclose how much Harvard or UNC made use of this further information (or whether they make use of it now). But neither does it make a difference. Title VI no more tolerates discrimination based on 60 racial categories than it does 6. 3 See also E. Bazelon, Why Is Affirmative Action in Peril? One Man’s Decision, N. Y. Times Magazine, Feb. 15, 2023, p. 41 (“In the Ivy League, children whose parents are in the top 1 percent of the income distribution are 77 times as likely to attend as those whose parents are in the bottom 20 percent of the income bracket.”); ibid. (“[A] common critique . . . is that schools have made a bargain with economic elites of all races, with the exception of Asian Americans, who are underrepresented compared with their level of academic achievement.”). 4 The principal dissent chides me for “reach[ing] beyond the factfinding below” by acknowledging SFFA’s argument that other universities have employed various race-neutral tools. Post, at 29–30, n. 25 (opinion of Sotomayor, J.). Contrary to the dissent’s suggestion, however, I do not purport to find facts about those practices; all I do here is recount what SFFA has argued every step of the way. See, e.g., Brief for Petitioner 55, 66–67; 1 App. in No. 20–1199, pp. 415–416, 440; 2 App. in No. 21–707, pp. 551–552. Nor, of course, is it somehow remarkable to acknowledge the parties’ arguments. The principal dissent itself recites SFFA’s arguments about Harvard’s and other universities’ practices too. See, e.g., post, at 30–31, 50 (opinion of Sotomayor, J.). In truth, it is the dissent that reaches beyond the factfinding below when it argues from studies recited in a dissenting opinion in a different case decided almost a decade ago. Post, at 29–30, n. 25 (opinion of Sotomayor, J.); see also post, at 18–21 (opinion of Sotomayor, J.) (further venturing beyond the trial records to discuss data about employment, income, wealth, home ownership, and healthcare). 5 See Brief for Defense of Freedom Institute for Policy Studies as Amicus Curiae 11 (recruited athletes make up less than 1% of Harvard’s applicant pool but represent more than 10% of the admitted class); P. Arcidiacono, J. Kinsler, & T. Ransom, Legacy and Athlete Preferences at Harvard, 40 J. Lab. Econ. 133, 141, n. 17 (2021) (recruited athletes were the only applicants admitted with the lowest possible academic rating and 79% of recruited athletes with the next lowest rating were admitted compared to 0.02% of other applicants with the same rating). 6 The principal dissent suggests “some Asian American applicants are actually advantaged by Harvard’s use of race.” Post, at 60 (opinion of Sotomayor, J.) (internal quotation marks omitted). What is the dissent’s basis for that claim? The district court’s finding that “considering applicants’ race may improve the admission chances of some Asian Americans who connect their racial identities with particularly compelling narratives .” 397 F. Supp. 3d, at 178 (emphasis added). The dissent neglects to mention those key qualifications. Worse, it ignores completely the district court’s further finding that “ overall ” Harvard’s race-conscious admissions policy “results in fewer Asian American[s] . . . being admitted.” Ibid . (emphasis added). So much for affording the district court’s “careful factfinding” the “deference it [is] owe[d].” Post, at 29–30, n. 25 (opinion of Sotomayor, J.). 7 See also, e.g. , Tr. of Oral Arg. in No. 20–1199, at 67, 84, 91; Tr. of Oral Arg. in No. 21–707, at 70–71, 81, 84, 91–92, 110. 8 Messages among UNC admissions officers included statements such as these: “[P]erfect 2400 SAT All 5 on AP one B in 11th [grade].” “Brown?!” “Heck no. Asian.” “Of course. Still impressive.”; “If it[’]s brown and above a 1300 [SAT] put them in for [the] merit/Excel [scholarship].”; “I just opened a brown girl who’s an 810 [SAT].”; “I’m going through this trouble because this is a bi-racial (black/white) male.”; “[S]tellar academics for a Native Amer[ican]/African Amer[ican] kid.” 3 App. in No. 21–707, pp. 1242–1251. 9 Left with no reply on the statute or its application to the facts, the principal dissent suggests that it violates “principles of party presentation” and abandons “judicial restraint” even to look at the text of Title VI. Post , at 26–27, n. 21 (opinion of Sotomayor, J.). It is a bewildering suggestion. SFFA sued Harvard and UNC under Title VI. And when a party seeks relief under a statute, our task is to apply the law’s terms as a reasonable reader would have understood them when Congress enacted them. Bostock v. Clayton County , 590 U. S. ___, ___ (2020) (slip op., at 4). To be sure, parties are free to frame their arguments. But they are not free to stipulate to a statute’s meaning and no party may “waiv[e]” the proper interpretation of the law by “fail[ing] to invoke it.” EEOC v. FLRA , 476 U.S. 19 , 23 (1986) ( per curiam ) (internal quotation marks omitted); see also Young v. United States , 315 U.S. 257 , 258–259 (1942). SUPREME COURT OF THE UNITED STATES _________________ Nos. 20–1199 and 21–707 _________________ STUDENTS FOR FAIR ADMISSIONS, INC., PETITIONER 20–1199 v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE on writ of certiorari to the united states court of appeals for the first circuit STUDENTS FOR FAIR ADMISSIONS, INC., PETITIONER 21–707 v. UNIVERSITY OF NORTH CAROLINA, et al. on writ of certiorari before judgment to the united states court of appeals for the fourth circuit [June 29, 2023] Justice Kavanaugh, concurring. I join the Court’s opinion in full. I add this concurring opinion to further explain why the Court’s decision today is consistent with and follows from the Court’s equal protection precedents, including the Court’s precedents on race-based affirmative action in higher education. Ratified in 1868 in the wake of the Civil War, the Equal Protection Clause of the Fourteenth Amendment provides: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U. S. Const., Amdt. 14, §1. In accord with the Fourteenth Amendment’s text and history, this Court considers all racial classifications to be constitutionally suspect. See Grutter v. Bollinger , 539 U.S. 306 , 326 (2003); Strauder v. West Virginia , 100 U.S. 303 , 306–308 (1880). As a result, the Court has long held that racial classifications by the government, including race-based affirmative action programs, are subject to strict judicial scrutiny. Under strict scrutiny, racial classifications are constitutionally prohibited unless they are narrowly tailored to further a compelling governmental interest. Grutter , 539 U. S., at 326–327. Narrow tailoring requires courts to examine, among other things, whether a racial classification is “necessary”—in other words, whether race-neutral alternatives could adequately achieve the governmental interest. Id., at 327, 339–340; Richmond v. J. A. Croson Co. , 488 U.S. 469 , 507 (1989). Importantly, even if a racial classification is otherwise narrowly tailored to further a compelling governmental interest, a “deviation from the norm of equal treatment of all racial and ethnic groups” must be “a temporary matter”—or stated otherwise, must be “limited in time.” Id., at 510 (plurality opinion of O’Connor, J.); Grutter , 539 U. S., at 342. In 1978, five Members of this Court held that race-based affirmative action in higher education did not violate the Equal Protection Clause or Title VI of the Civil Rights Act, so long as universities used race only as a factor in admissions decisions and did not employ quotas. See Regents of Univ. of Cal. v. Bakke , 438 U.S. 265 , 325–326 (1978) (joint opinion of Brennan, White, Marshall, and Blackmun, JJ.); id., at 287, 315–320 (opinion of Powell, J.). One Member of the Court’s five-Justice majority, Justice Blackmun, added that race-based affirmative action should exist only as a temporary measure. He expressed hope that such programs would be “unnecessary” and a “relic of the past” by 1988—within 10 years “at the most,” in his words—although he doubted that the goal could be achieved by then. Id., at 403 (opinion of Blackmun, J.). In 2003, 25 years after Bakke , five Members of this Court again held that race-based affirmative action in higher education did not violate the Equal Protection Clause or Title VI. Grutter , 539 U. S., at 343. This time, however, the Court also specifically indicated—despite the reservations of Justice Ginsburg and Justice Breyer—that race-based affirmative action in higher education would not be constitutionally justified after another 25 years, at least absent something not “expect[ed].” Ibid. And various Members of the Court wrote separate opinions explicitly referencing the Court’s 25-year limit. Justice O’Connor’s opinion for the Court stated: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Ibid. Justice Thomas expressly concurred in “the Court’s holding that racial discrimination in higher education admissions will be illegal in 25 years.” Id., at 351 (opinion concurring in part and dissenting in part). Justice Thomas, joined here by Justice Scalia, reiterated “the Court’s holding” that race-based affirmative action in higher education “will be unconstitutional in 25 years” and “that in 25 years the practices of the Law School will be illegal,” while also stating that “they are, for the reasons I have given, illegal now.” Id., at 375–376. Justice Kennedy referred to “the Court’s pronouncement that race-conscious admissions programs will be unnecessary 25 years from now.” Id., at 394 (dissenting opinion). Justice Ginsburg, joined by Justice Breyer, acknowledged the Court’s 25-year limit but questioned it, writing that “one may hope, but not firmly forecast, that over the next generation’s span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.” Id., at 346 (concurring opinion). In allowing race-based affirmative action in higher education for another generation—and only for another generation—the Court in Grutter took into account competing considerations. The Court recognized the barriers that some minority applicants to universities still faced as of 2003, notwithstanding the progress made since Bakke . See Grutter , 539 U. S., at 343. The Court stressed, however, that “there are serious problems of justice connected with the idea of preference itself.” Id., at 341 (internal quotation marks omitted). And the Court added that a “core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.” Ibid. (internal quotation marks omitted). The Grutter Court also emphasized the equal protection principle that racial classifications, even when otherwise permissible, must be a “ ‘temporary matter,’ ” and “must be limited in time.” Id., at 342 (quoting Croson , 488 U. S., at 510 (plurality opinion of O’Connor, J.)). The requirement of a time limit “reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle.” Grutter , 539 U. S., at 342. Importantly, the Grutter Court saw “no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point.” Ibid. The Court reasoned that the “requirement that all race-conscious admissions programs have a termination point assures all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself.” Ibid. (internal quotation marks and alteration omitted). The Court therefore concluded that race-based affirmative action programs in higher education, like other racial classifications, must be “limited in time.” Ibid. The Grutter Court’s conclusion that race-based affirmative action in higher education must be limited in time followed not only from fundamental equal protection principles, but also from this Court’s equal protection precedents applying those principles. Under those precedents, racial classifications may not continue indefinitely. For example, in the elementary and secondary school context after Brown v. Board of Education , 347 U.S. 483 (1954), the Court authorized race-based student assignments for several decades—but not indefinitely into the future. See, e.g., Board of Ed. of Oklahoma City Public Schools v. Dowell , 498 U.S. 237 , 247–248 (1991); Pasadena City Bd. of Ed. v. Spangler , 427 U.S. 424 , 433–434, 436 (1976); Swann v. Charlotte-Mecklenburg Bd. of Ed. , 402 U.S. 1 , 31–32 (1971); cf. McDaniel v. Barresi , 402 U.S. 39 , 41 (1971). In those decisions, this Court ruled that the race-based “injunctions entered in school desegregation cases” could not “operate in perpetuity.” Dowell , 498 U. S., at 248. Consistent with those decisions, the Grutter Court ruled that race-based affirmative action in higher education likewise could not operate in perpetuity. As of 2003, when Grutter was decided, many race-based affirmative action programs in higher education had been operating for about 25 to 35 years. Pointing to the Court’s precedents requiring that racial classifications be “temporary,” Croson , 488 U. S., at 510 (plurality opinion of O’Connor, J.), the petitioner in Grutter , joined by the United States, argued that race-based affirmative action in higher education could continue no longer. See Brief for Petitioner 21–22, 30–31, 33, 42, Brief for United States 26–27, in Grutter v. Bollinger , O. T. 2002, No. 02–241. The Grutter Court rejected those arguments for ending race-based affirmative action in higher education in 2003. But in doing so, the Court struck a careful balance. The Court ruled that narrowly tailored race-based affirmative action in higher education could continue for another generation. But the Court also explicitly rejected any “permanent justification for racial preferences,” and therefore ruled that race-based affirmative action in higher education could continue only for another generation. 539 U. S., at 342–343. Harvard and North Carolina would prefer that the Court now ignore or discard Grutter ’s 25-year limit on race-based affirmative action in higher education, or treat it as a mere aspiration. But the 25-year limit constituted an important part of Justice O’Connor’s nuanced opinion for the Court in Grutter . Indeed, four of the separate opinions in Grutter discussed the majority opinion’s 25-year limit, which belies any suggestion that the Court’s reference to it was insignificant or not carefully considered. In short, the Court in Grutter expressly recognized the serious issues raised by racial classifications—particularly permanent or long-term racial classifications. And the Court “assure[d] all citizens” throughout America that “the deviation from the norm of equal treatment” in higher education could continue for another generation, and only for another generation. Ibid . (internal quotation marks omitted). A generation has now passed since Grutter , and about 50 years have gone by since the era of Bakke and DeFunis v. Odegaard , 416 U.S. 312 (1974), when race-based affirmative action programs in higher education largely began. In light of the Constitution’s text, history, and precedent, the Court’s decision today appropriately respects and abides by Grutter ’s explicit temporal limit on the use of race-based affirmative action in higher education.[ 1 ] Justice Sotomayor, Justice Kagan, and Justice Jackson disagree with the Court’s decision. I respect their views. They thoroughly recount the horrific history of slavery and Jim Crow in America, cf. Bakke , 438 U. S., at 395–402 (opinion of Marshall, J.), as well as the continuing effects of that history on African Americans today. And they are of course correct that for the last five decades, Bakke and Grutter have allowed narrowly tailored race-based affirmative action in higher education. But I respectfully part ways with my dissenting colleagues on the question of whether, under this Court’s precedents, race-based affirmative action in higher education may extend indefinitely into the future. The dissents suggest that the answer is yes. But this Court’s precedents make clear that the answer is no. See Grutter , 539 U. S., at 342–343; Dowell , 498 U. S., at 247–248; Croson , 488 U. S., at 510 (plurality opinion of O’Connor, J.). To reiterate: For about 50 years, many institutions of higher education have employed race-based affirmative action programs. In the abstract, it might have been debatable how long those race-based admissions programs could continue under the “temporary matter”/“limited in time” equal protection principle recognized and applied by this Court. Grutter , 539 U. S., at 342 (internal quotation marks omitted); cf. Dowell , 498 U. S., at 247–248. But in 2003, the Grutter Court applied that temporal equal protection principle and resolved the debate: The Court declared that race-based affirmative action in higher education could continue for another generation, and only for another generation, at least absent something unexpected. Grutter , 539 U. S., at 343. As I have explained, the Court’s pronouncement of a 25-year period—as both an extension of and an outer limit to race-based affirmative action in higher education—formed an important part of the carefully constructed Grutter decision. I would abide by that temporal limit rather than discarding it, as today’s dissents would do. To be clear, although progress has been made since Bakke and Grutter , racial discrimination still occurs and the effects of past racial discrimination still persist. Federal and state civil rights laws serve to deter and provide remedies for current acts of racial discrimination. And governments and universities still “can, of course, act to undo the effects of past discrimination in many permissible ways that do not involve classification by race.” Croson , 488 U. S., at 526 (Scalia, J., concurring in judgment) (internal quotation marks omitted); see id., at 509 (plurality opinion of O’Connor, J.) (“the city has at its disposal a whole array of race-neutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races”); ante, at 39–40; Brief for Petitioner 80–86; Reply Brief in No. 20–1199, pp. 25–26; Reply Brief in No. 21–707, pp. 23–26. In sum, the Court’s opinion today is consistent with and follows from the Court’s equal protection precedents, and I join the Court’s opinion in full. Notes 1 The Court’s decision will first apply to the admissions process for the college class of 2028, which is the next class to be admitted. Some might have debated how to calculate Grutter ’s 25-year period—whether it ends with admissions for the college class of 2028 or instead for the college class of 2032. But neither Harvard nor North Carolina argued that Grutter ’s 25-year period ends with the class of 2032 rather than the class of 2028. Indeed, notwithstanding the 25-year limit set forth in Grutter , neither university embraced any temporal limit on race-based affirmative action in higher education, or identified any end date for its continued use of race in admissions. Ante, at 30–34. SUPREME COURT OF THE UNITED STATES _________________ Nos. 20–1199 and 21–707 _________________ STUDENTS FOR FAIR ADMISSIONS, INC., PETITIONER 20–1199 v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE on writ of certiorari to the united states court of appeals for the first circuit STUDENTS FOR FAIR ADMISSIONS, INC., PETITIONER 21–707 v. UNIVERSITY OF NORTH CAROLINA, et al. on writ of certiorari before judgment to the united states court of appeals for the fourth circuit [June 29, 2023] Justice Sotomayor, with whom Justice Kagan and Justice Jackson join,[ 1 ]* dissenting. The Equal Protection Clause of the Fourteenth Amendment enshrines a guarantee of racial equality. The Court long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colorblind. In Brown v . Board of Education , 347 U.S. 483 (1954), the Court recognized the constitutional necessity of racially integrated schools in light of the harm inflicted by segregation and the “importance of education to our democratic society.” Id. , at 492–495. For 45 years, the Court extended Brown ’s transformative legacy to the context of higher education, allowing colleges and universities to consider race in a limited way and for the limited purpose of promoting the important benefits of racial diversity. This limited use of race has helped equalize educational opportunities for all students of every race and background and has improved racial diversity on college campuses. Although progress has been slow and imperfect, race-conscious college admissions policies have advanced the Constitution’s guarantee of equality and have promoted Brown ’s vision of a Nation with more inclusive schools. Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society. Because the Court’s opinion is not grounded in law or fact and contravenes the vision of equality embodied in the Fourteenth Amendment, I dissent. I A Equal educational opportunity is a prerequisite to achieving racial equality in our Nation. From its founding, the United States was a new experiment in a republican form of government where democratic participation and the capacity to engage in self-rule were vital. At the same time, American society was structured around the profitable institution that was slavery, which the original Constitution protected. The Constitution initially limited the power of Congress to restrict the slave trade, Art. I, §9, cl. 1, accorded Southern States additional electoral power by counting three-fifths of their enslaved population in apportioning congressional seats, §2, cl. 3, and gave enslavers the right to retrieve enslaved people who escaped to free States, Art. IV, §2, cl. 3. Because a foundational pillar of slavery was the racist notion that Black people are a subordinate class with intellectual inferiority, Southern States sought to ensure slavery’s longevity by prohibiting the education of Black people, whether enslaved or free. See H. Williams, Self-Taught: African American Education in Slavery and Freedom 7, 203–213 (2005) (Self-Taught). Thus, from this Nation’s birth, the freedom to learn was neither colorblind nor equal. With time, and at the tremendous cost of the Civil War, abolition came. More than two centuries after the first African enslaved persons were forcibly brought to our shores, Congress adopted the Thirteenth Amendment to the Constitution, which abolished “slavery” and “involuntary servitude, except as a punishment for crime.” §1. “Like all great historical transformations,” emancipation was a movement, “not a single event” owed to any single individual, institution, or political party. E. Foner, The Second Founding 21, 51–54 (2019) (The Second Founding). The fight for equal educational opportunity, however, was a key driver. Literacy was an “instrument of resistance and liberation.” Self-Taught 8. Education “provided the means to write a pass to freedom” and “to learn of abolitionist activities.” Id. , at 7. It allowed enslaved Black people “to disturb the power relations between master and slave,” which “fused their desire for literacy with their desire for freedom.” Ibid . Put simply, “[t]he very feeling of inferiority which slavery forced upon [Black people] fathered an intense desire to rise out of their condition by means of education.” W. E. B. Du Bois, Black Reconstruction in America 1860–1880, p. 638 (1935); see J. Anderson, The Education of Blacks in the South 1860–1935, p. 7 (1988). Black Americans thus insisted, in the words of Frederick Douglass, “that in a country governed by the people, like ours, education of the youth of all classes is vital to its welfare, prosperity, and to its existence.” Address to the People of the United States (1883), in 4 P. Foner, The Life and Writings of Frederick Douglass 386 (1955). Black people’s yearning for freedom of thought, and for a more perfect Union with educational opportunity for all, played a crucial role during the Reconstruction era. Yet emancipation marked the beginning, not the end, of that era. Abolition alone could not repair centuries of racial subjugation. Following the Thirteenth Amendment’s ratification, the Southern States replaced slavery with “a system of ‘laws which imposed upon [Black people] onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value.’ ” Regents of Univ. of Cal. v. Bakke , 438 U.S. 265 , 390 (1978) (opinion of Marshall, J.) (quoting Slaughter-House Cases , 16 Wall. 36, 70 (1873)). Those so-called “Black Codes” discriminated against Black people on the basis of race, regardless of whether they had been previously enslaved. See, e.g ., 1866 N. C. Sess. Laws pp. 99, 102. Moreover, the criminal punishment exception in the Thirteenth Amendment facilitated the creation of a new system of forced labor in the South. Southern States expanded their criminal laws, which in turn “permitted involuntary servitude as a punishment” for convicted Black persons. D. Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans From the Civil War to World War II, pp. 7, 53 (2009) (Slavery by Another Name). States required, for example, that Black people “sign a labor contract to work for a white employer or face prosecution for vagrancy.” The Second Founding 48. State laws then forced Black convicted persons to labor in “plantations, mines, and industries in the South.” Id. , at 50. This system of free forced labor provided tremendous benefits to Southern whites and was designed to intimidate, subjugate, and control newly emancipated Black people. See Slavery by Another Name 5–6, 53 . The Thirteenth Amendment, without more, failed to equalize society. Congress thus went further and embarked on months of deliberation about additional Reconstruction laws. Those efforts included the appointment of a Committee, the Joint Committee on Reconstruction, “to inquire into the condition of the Confederate States.” Report of the Joint Committee on Reconstruction, S. Rep. No. 112, 39th Cong., 1st Sess., 1 (1866) (hereinafter Joint Comm. Rep.). Among other things, the Committee’s Report to Congress documented the “deep-seated prejudice” against emancipated Black people in the Southern States and the lack of a “general disposition to place the colored race, constituting at least two-fifths of the population, upon terms even of civil equality.” Id. , at 11. In light of its findings, the Committee proposed amending the Constitution to secure the equality of “rights, civil and political.” Id. , at 7. Congress acted on that recommendation and adopted the Fourteenth Amendment. Proponents of the Amendment declared that one of its key goals was to “protec[t] the black man in his fundamental rights as a citizen with the same shield which it throws over the white man.” Cong. Globe, 39th Cong., 1st Sess., 2766 (1866) (Cong. Globe) (statement of Sen. Howard). That is, the Amendment sought “to secure to a race recently emancipated, a race that through many generations [was] held in slavery, all the civil rights that the superior race enjoy.” Plessy v. Ferguson , 163 U.S. 537 , 555–556 (1896) (Harlan, J., dissenting) (internal quotation marks omitted). To promote this goal, Congress enshrined a broad guarantee of equality in the Equal Protection Clause of the Amendment. That Clause commands that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Amdt. 14, §1. Congress chose its words carefully, opting for expansive language that focused on equal protection and rejecting “proposals that would have made the Constitution explicitly color-blind.” A. Kull, The Color-Blind Constitution 69 (1992); see also, e.g. , Cong. Globe 1287 (rejecting proposed language providing that “no State . . . shall . . . recognize any distinction between citizens . . . on account of race or color”). This choice makes it clear that the Fourteenth Amendment does not impose a blanket ban on race-conscious policies. Simultaneously with the passage of the Fourteenth Amendment, Congress enacted a number of race-conscious laws to fulfill the Amendment’s promise of equality, leaving no doubt that the Equal Protection Clause permits consideration of race to achieve its goal. One such law was the Freedmen’s Bureau Act, enacted in 1865 and then expanded in 1866, which established a federal agency to provide certain benefits to refugees and newly emancipated freedmen. See Act of Mar. 3, 1865, ch. 90, 13Stat. 507; Act of July 16, 1866, ch. 200, 14Stat. 173. For the Bureau, education “was the foundation upon which all efforts to assist the freedmen rested.” E. Foner, Reconstruction: America’s Unfinished Revolution 1863–1877, p. 144 (1988). Consistent with that view, the Bureau provided essential “funding for black education during Reconstruction.” Id. , at 97. Black people were the targeted beneficiaries of the Bureau’s programs, especially when it came to investments in education in the wake of the Civil War. Each year surrounding the passage of the Fourteenth Amendment, the Bureau “educated approximately 100,000 students, nearly all of them black,” and regardless of “degree of past disadvantage.” E. Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 Va. L. Rev. 753, 781 (1985). The Bureau also provided land and funding to establish some of our Nation’s Historically Black Colleges and Universities (HBCUs). Ibid. ; see also Brief for HBCU Leaders et al. as Amici Curiae 13 (HBCU Brief ). In 1867, for example, the Bureau provided Howard University tens of thousands of dollars to buy property and construct its campus in our Nation’s capital. 2 O. Howard, Autobiography 397–401 (1907). Howard University was designed to provide “special opportunities for a higher education to the newly enfranchised of the south,” but it was available to all Black people, “whatever may have been their previous condition.” Bureau Refugees, Freedmen and Abandoned Lands, Sixth Semi-Annual Report on Schools for Freedmen 60 (July 1, 1868).[ 2 ] The Bureau also “expended a total of $407,752.21 on black colleges, and only $3,000 on white colleges” from 1867 to 1870. Schnapper, 71 Va. L. Rev., at 798, n. 149. Indeed, contemporaries understood that the Freedmen’s Bureau Act benefited Black people. Supporters defended the law by stressing its race-conscious approach. See, e.g. , Cong. Globe 632 (statement of Rep. Moulton) (“[T]he true object of this bill is the amelioration of the condition of the colored people”); Joint Comm. Rep. 11 (reporting that “the Union men of the south” declared “with one voice” that the Bureau’s efforts “protect[ed] the colored people”). Opponents argued that the Act created harmful racial classifications that favored Black people and disfavored white Americans. See, e.g. , Cong. Globe 397 (statement of Sen. Willey) (the Act makes “a distinction on account of color between the two races”), 544 (statement of Rep. Taylor) (the Act is “legislation for a particular class of the blacks to the exclusion of all whites”), App. to Cong. Globe, 39th Cong., 1st Sess., 69–70 (statement of Rep. Rousseau) (“You raise a spirit of antagonism between the black race and the white race in our country, and the law-abiding will be powerless to control it”). President Andrew Johnson vetoed the bill on the basis that it provided benefits “to a particular class of citizens,” 6 Messages and Papers of the Presidents 1789–1897, p. 425 (J. Richardson ed. 1897) (Messages & Papers) (A. Johnson to House of Rep. July 16, 1866), but Congress overrode his veto. Cong. Globe 3849–3850. Thus, rejecting those opponents’ objections, the same Reconstruction Congress that passed the Fourteenth Amendment eschewed the concept of colorblindness as sufficient to remedy inequality in education. Congress also debated and passed the Civil Rights Act of 1866 contemporaneously with the Fourteenth Amendment. The goal of that Act was to eradicate the Black Codes enacted by Southern States following ratification of the Thirteenth Amendment. See id. , at 474. Because the Black Codes focused on race, not just slavery-related status, the Civil Rights Act explicitly recognized that white citizens enjoyed certain rights that non-white citizens did not. Section 1 of the Act provided that all persons “of every race and color . . . shall have the same right[s]” as those “enjoyed by white citizens.” Act of Apr. 9, 1866, 14Stat. 27. Similarly, Section 2 established criminal penalties for subjecting racial minorities to “different punishment . . . by reason of . . . color or race, than is prescribed for the punishment of white persons.” Ibid . In other words, the Act was not colorblind. By using white citizens as a benchmark, the law classified by race and took account of the privileges enjoyed only by white people. As he did with the Freedmen’s Bureau Act, President Johnson vetoed the Civil Rights Act in part because he viewed it as providing Black citizens with special treatment. See Messages and Papers 408, 413 (the Act is designed “to afford discriminating protection to colored persons,” and its “distinction of race and color . . . operate[s] in favor of the colored and against the white race”). Again, Congress overrode his veto. Cong. Globe 1861. In fact, Congress reenacted race-conscious language in the Civil Rights Act of 1870, two years after ratification of the Fourteenth Amendment, see Act of May 31, 1870, §16, 16Stat. 144, where it remains today, see 42 U. S. C. §§1981(a) and 1982 (Rev. Stat. §§1972, 1978). Congress similarly appropriated federal dollars explicitly and solely for the benefit of racial minorities. For example, it appropriated money for “ ‘the relief of destitute colored women and children,’ ” without regard to prior enslavement. Act of July 28, 1866, 14Stat. 317. Several times during and after the passage of the Fourteenth Amendment, Congress also made special appropriations and adopted special protections for the bounty and prize money owed to “colored soldiers and sailors” of the Union Army. 14Stat. 357, Res. No. 46, June 15, 1866; Act of Mar. 3, 1869, ch. 122, 15Stat. 301; Act of Mar. 3, 1873, 17Stat. 528. In doing so, it rebuffed objections to these measures as “class legislation” “applicable to colored people and not . . . to the white people.” Cong. Globe, 40th Cong., 1st Sess., 79 (1867) (statement of Sen. Grimes). This history makes it “inconceivable” that race-conscious college admissions are unconstitutional. Bakke , 438 U. S., at 398 (opinion of Marshall, J.).[ 3 ] B The Reconstruction era marked a transformational point in the history of American democracy. Its vision of equal opportunity leading to an equal society “was short-lived,” however, “with the assistance of this Court.” Id. , at 391. In a series of decisions, the Court “sharply curtailed” the “substantive protections” of the Reconstruction Amendments and the Civil Rights Acts. Id. , at 391–392 (collecting cases). That endeavor culminated with the Court’s shameful decision in Plessy v. Ferguson , 163 U.S. 537 (1896), which established that “equality of treatment” exists “when the races are provided substantially equal facilities, even though these facilities be separate.” Brown , 347 U. S., at 488. Therefore, with this Court’s approval, government-enforced segregation and its concomitant destruction of equal opportunity became the constitutional norm and infected every sector of our society, from bathrooms to military units and, crucially, schools. See Bakke , 438 U. S., at 393–394 (opinion of Marshall, J.); see also generally R. Rothstein, The Color of Law 17–176 (2017) (discussing various federal policies that promoted racial segregation). In a powerful dissent, Justice Harlan explained in Plessy that the Louisiana law at issue, which authorized segregation in railway carriages, perpetuated a “caste” system. 163 U. S., at 559–560. Although the State argued that the law “prescribe[d] a rule applicable alike to white and colored citizens,” all knew that the law’s purpose was not “to exclude white persons from railroad cars occupied by blacks,” but “to exclude colored people from coaches occupied by or assigned to white persons.” Id. , at 557. That is, the law “proceed[ed] on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens.” Id. , at 560. Although “[t]he white race deems itself to be the dominant race . . . in prestige, in achievements, in education, in wealth, and in power,” Justice Harlan explained, there is “no superior, dominant, ruling class of citizens” in the eyes of the law. Id. , at 559. In that context, Justice Harlan thus announced his view that “[o]ur constitution is color-blind.” Ibid. It was not until half a century later, in Brown , that the Court honored the guarantee of equality in the Equal Protection Clause and Justice Harlan’s vision of a Constitution that “neither knows nor tolerates classes among citizens.” Ibid . Considering the “effect[s] of segregation” and the role of education “in the light of its full development and its present place in American life throughout the Nation,” Brown overruled Plessy . 347 U. S., at 492–495. The Brown Court held that “[s]eparate educational facilities are inherently unequal,” and that such racial segregation deprives Black students “of the equal protection of the laws guaranteed by the Fourteenth Amendment.” Id. , at 494–495. The Court thus ordered segregated schools to transition to a racially integrated system of public education “with all deliberate speed,” “ordering the immediate admission of [Black children] to schools previously attended only by white children.” Brown v. Board of Education , 349 U.S. 294 , 301 (1955). Brown was a race-conscious decision that emphasized the importance of education in our society. Central to the Court’s holding was the recognition that, as Justice Harlan emphasized in Plessy , segregation perpetuates a caste system wherein Black children receive inferior educational opportunities “solely because of their race,” denoting “inferiority as to their status in the community.” 347 U. S., at 494, and n. 10. Moreover, because education is “the very foundation of good citizenship,” segregation in public education harms “our democratic society” more broadly as well. Id. , at 493. In light of the harmful effects of entrenched racial subordination on racial minorities and American democracy, Brown recognized the constitutional necessity of a racially integrated system of schools where education is “available to all on equal terms.” Ibid . The desegregation cases that followed Brown confirm that the ultimate goal of that seminal decision was to achieve a system of integrated schools that ensured racial equality of opportunity, not to impose a formalistic rule of race-blindness. In Green v. School Bd. of New Kent Cty. , 391 U.S. 430 (1968), for example, the Court held that the New Kent County School Board’s “freedom of choice” plan, which allegedly allowed “every student, regardless of race, . . . ‘freely’ [to] choose the school he [would] attend,” was insufficient to effectuate “the command of [ Brown ].” Id. , at 437, 441–442. That command, the Court explained, was that schools dismantle “well-entrenched dual systems” and transition “to a unitary, nonracial system of public education.” Id. , at 435–436. That the board “opened the doors of the former ‘white’ school to [Black] children and the [‘Black’] school to white children” on a race-blind basis was not enough. Id. , at 437. Passively eliminating race classifications did not suffice when de facto segregation persisted. Id. , at 440–442 (noting that 85% of Black children in the school system were still attending an all-Black school). Instead, the board was “clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” Id. , at 437–438. Affirmative steps, this Court held, are constitutionally necessary when mere formal neutrality cannot achieve Brown ’s promise of racial equality. See Green , 391 U. S . , at 440–442; see also North Carolina Bd. of Ed. v . Swann , 402 U.S. 43 , 45–46 (1971) (holding that North Carolina statute that forbade the use of race in school busing “exploits an apparently neutral form to control school assignment plans by directing that they be ‘colorblind’; that requirement, against the background of segregation, would render illusory the promise of Brown ”); Dayton Bd. of Ed. v. Brinkman , 443 U.S. 526 , 538 (1979) (school board “had to do more than abandon its prior discriminatory purpose”; it “had an affirmative responsibility” to integrate); Keyes v. School Dist. No. 1, Denver , 413 U.S. 189 , 200 (1973) (“[T]he State automatically assumes an affirmative duty” under Brown to eliminate the vestiges of segregation).[ 4 ] In so holding, this Court’s post- Brown decisions rejected arguments advanced by opponents of integration suggesting that “restor[ing] race as a criterion in the operation of the public schools” was at odds with “the Brown decisions.” Brief for Respondents in Green v. School Bd. of New Kent Cty. , O. T. 1967, No. 695, p. 6 ( Green Brief ). Those opponents argued that Brown only required the admission of Black students “to public schools on a racially nondiscriminatory basis.” Id. , at 11 (emphasis deleted). Relying on Justice Harlan’s dissent in Plessy , they argued that the use of race “is improper” because the “ ‘Constitution is colorblind.’ ” Green Brief 6, n. 6 (quoting Plessy , 163 U. S., at 559 (Harlan, J., dissenting)). They also incorrectly claimed that their views aligned with those of the Brown litigators, arguing that the Brown plaintiffs “understood” that Brown ’s “mandate” was colorblindness. Green Brief 17. This Court rejected that characterization of “the thrust of Brown .” Green , 391 U. S., at 437. It made clear that indifference to race “is not an end in itself ” under that watershed decision. Id ., at 440. The ultimate goal is racial equality of opportunity. Those rejected arguments mirror the Court’s opinion today. The Court claims that Brown requires that students be admitted “ ‘on a racially nondiscriminatory basis.’ ” Ante , at 13. It distorts the dissent in Plessy to advance a colorblindness theory. Ante , at 38–39; see also ante , at 22 (Gorsuch, J., concurring) (“[T]oday’s decision wakes the echoes of Justice John Marshall Harlan [in Plessy ]”); ante , at 3 (Thomas, J., concurring) (same). The Court also invokes the Brown litigators, relying on what the Brown “plaintiffs had argued.” Ante , at 12; ante , at 35–36, 39, n. 7 (opinion of Thomas, J.). If there was a Member of this Court who understood the Brown litigation, it was Justice Thurgood Marshall, who “led the litigation campaign” to dismantle segregation as a civil rights lawyer and “rejected the hollow, race-ignorant conception of equal protection” endorsed by the Court’s ruling today. Brief for NAACP Legal Defense and Educational Fund, Inc., et al. as Amici Curiae 9. Justice Marshall joined the Bakke plurality and “applaud[ed] the judgment of the Court that a university may consider race in its admissions process.” 438 U. S., at 400. In fact, Justice Marshall’s view was that Bakke ’s holding should have been even more protective of race-conscious college admissions programs in light of the remedial purpose of the Fourteenth Amendment and the legacy of racial inequality in our society. See id. , at 396–402 (arguing that “a class-based remedy” should be constitutionally permissible in light of the hundreds of “years of class-based discrimination against [Black Americans]”). The Court’s recharacterization of Brown is nothing but revisionist history and an affront to the legendary life of Justice Marshall, a great jurist who was a champion of true equal opportunity, not rhetorical flourishes about colorblindness. C Two decades after Brown , in Bakke , a plurality of the Court held that “the attainment of a diverse student body” is a “compelling” and “constitutionally permissible goal for an institution of higher education.” 438 U. S., at 311–315. Race could be considered in the college admissions process in pursuit of this goal, the plurality explained, if it is one factor of many in an applicant’s file, and each applicant receives individualized review as part of a holistic admissions process. Id. , at 316–318. Since Bakke , the Court has reaffirmed numerous times the constitutionality of limited race-conscious college admissions. First, in Grutter v. Bollinger , 539 U.S. 306 (2003), a majority of the Court endorsed the Bakke plurality’s “view that student body diversity is a compelling state interest that can justify the use of race in university admissions,” 539 U. S., at 325, and held that race may be used in a narrowly tailored manner to achieve this interest, id. , at 333–344; see also Gratz v. Bollinger , 539 U.S. 244 , 268 (2003) (“for the reasons set forth [the same day] in Grutter ,” rejecting petitioners’ arguments that race can only be considered in college admissions “to remedy identified discrimination” and that diversity is “ ‘too open-ended, ill-defined, and indefinite to constitute a compelling interest’ ”). Later, in the Fisher litigation, the Court twice reaffirmed that a limited use of race in college admissions is constitutionally permissible if it satisfies strict scrutiny. In Fisher v. University of Texas at Austin , 570 U.S. 297 (2013) ( Fisher I ), seven Members of the Court concluded that the use of race in college admissions comports with the Fourteenth Amendment if it “is narrowly tailored to obtain the educational benefits of diversity.” Id. , at 314, 337. Several years later, in Fisher v. University of Texas at Austin , 579 U.S. 365, 376 (2016) ( Fisher II ), the Court upheld the admissions program at the University of Texas under this framework. Id. , at 380–388. Bakke , Grutter , and Fisher are an extension of Brown ’s legacy. Those decisions recognize that “ ‘experience lend[s] support to the view that the contribution of diversity is substantial.’ ” Grutter , 539 U. S., at 324 (quoting Bakke , 438 U. S., at 313). Racially integrated schools improve cross-racial understanding, “break down racial stereotypes,” and ensure that students obtain “the skills needed in today’s increasingly global marketplace . . . through exposure to widely diverse people, cultures, ideas, and viewpoints.” 539 U. S., at 330. More broadly, inclusive institutions that are “visibly open to talented and qualified individuals of every race and ethnicity” instill public confidence in the “legitimacy” and “integrity” of those institutions and the diverse set of graduates that they cultivate. Id. , at 332. That is particularly true in the context of higher education, where colleges and universities play a critical role in “maintaining the fabric of society” and serve as “the training ground for a large number of our Nation’s leaders.” Id. , at 331–332. It is thus an objective of the highest order, a “compelling interest” indeed, that universities pursue the benefits of racial diversity and ensure that “the diffusion of knowledge and opportunity” is available to students of all races. Id. , at 328–333. This compelling interest in student body diversity is grounded not only in the Court’s equal protection jurisprudence but also in principles of “academic freedom,” which “ ‘long [have] been viewed as a special concern of the First Amendment.’ ” Id. , at 324 (quoting Bakke , 438 U. S., at 312). In light of “the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment,” this Court’s precedents recognize the imperative nature of diverse student bodies on American college campuses. 539 U. S., at 329. Consistent with the First Amendment, student body diversity allows universities to promote “th[e] robust exchange of ideas which discovers truth out of a multitude of tongues [rather] than through any kind of authoritative selection. ” Bakke , 438 U. S., at 312 (internal quotation marks omitted). Indeed, as the Court recently reaffirmed in another school case, “learning how to tolerate diverse expressive activities has always been ‘part of learning how to live in a pluralistic society’ ” under our constitutional tradition. Kennedy v. Bremerton School Dist. , 597 U. S. ___, ___ (2022) (slip op., at 29); cf. Khorrami v. Arizona , 598 U. S. ___, ___ (2022) (Gorsuch, J., dissenting from denial of certiorari) (slip op., at 8) (collecting research showing that larger juries are more likely to be racially diverse and “deliberate longer, recall information better, and pay greater attention to dissenting voices”). In short, for more than four decades, it has been this Court’s settled law that the Equal Protection Clause of the Fourteenth Amendment authorizes a limited use of race in college admissions in service of the educational benefits that flow from a diverse student body. From Brown to Fisher , this Court’s cases have sought to equalize educational opportunity in a society structured by racial segregation and to advance the Fourteenth Amendment’s vision of an America where racially integrated schools guarantee students of all races the equal protection of the laws. D Today, the Court concludes that indifference to race is the only constitutionally permissible means to achieve racial equality in college admissions. That interpretation of the Fourteenth Amendment is not only contrary to precedent and the entire teachings of our history, see supra , at 2–17, but is also grounded in the illusion that racial inequality was a problem of a different generation. Entrenched racial inequality remains a reality today. That is true for society writ large and, more specifically, for Harvard and the University of North Carolina (UNC), two institutions with a long history of racial exclusion. Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality. 1 After more than a century of government policies enforcing racial segregation by law, society remains highly segregated. About half of all Latino and Black students attend a racially homogeneous school with at least 75% minority student enrollment.[ 5 ] The share of intensely segregated minority schools ( i.e. , schools that enroll 90% to 100% racial minorities) has sharply increased.[ 6 ] To this day, the U. S. Department of Justice continues to enter into desegregation decrees with schools that have failed to “eliminat[e] the vestiges of de jure segregation.” [ 7 ] Moreover, underrepresented minority students are more likely to live in poverty and attend schools with a high concentration of poverty.[ 8 ] When combined with residential segregation and school funding systems that rely heavily on local property taxes, this leads to racial minority students attending schools with fewer resources. See San Antonio Independent School Dist. v . Rodriguez , 411 U.S. 1 , 72–86 (1973) (Marshall, J., dissenting) (noting school funding disparities that result from local property taxation).[ 9 ] In turn, underrepresented minorities are more likely to attend schools with less qualified teachers, less challenging curricula, lower standardized test scores, and fewer extracurricular activities and advanced placement courses.[ 10 ] It is thus unsurprising that there are achievement gaps along racial lines, even after controlling for income differences.[ 11 ] Systemic inequities disadvantaging underrepresented racial minorities exist beyond school resources. Students of color, particularly Black students, are disproportionately disciplined or suspended, interrupting their academic progress and increasing their risk of involvement with the criminal justice system.[ 12 ] Underrepresented minorities are less likely to have parents with a postsecondary education who may be familiar with the college application process.[ 13 ] Further, low-income children of color are less likely to attend preschool and other early childhood education programs that increase educational attainment.[ 14 ] All of these interlocked factors place underrepresented minorities multiple steps behind the starting line in the race for college admissions. In North Carolina, the home of UNC, racial inequality is deeply entrenched in K–12 education. State courts have consistently found that the State does not provide underrepresented racial minorities equal access to educational opportunities, and that racial disparities in public schooling have increased in recent years, in violation of the State Constitution. See, e.g. , Hoke Cty. Bd. of Ed. v. State , 2020 WL 13310241, *6, *13 (N. C. Super. Ct., Jan. 21, 2020); Hoke Cty. Bd. of Ed. v . State , 382 N. C. 386, 388–390, 879 S.E.2d 193, 197–198 (2022). These opportunity gaps “result in fewer students from underrepresented backgrounds even applying to” college, particularly elite universities. Brief for Massachusetts Institute of Technology et al. as Amici Curiae 32. “Because talent lives everywhere, but opportunity does not, there are undoubtedly talented students with great academic potential who have simply not had the opportunity to attain the traditional indicia of merit that provide a competitive edge in the admissions process.” Brief for Harvard Student and Alumni Organizations as Amici Curiae 16. Consistent with this reality, Latino and Black students are less likely to enroll in institutions of higher education than their white peers.[ 15 ] Given the central role that education plays in breaking the cycle of racial inequality, these structural barriers reinforce other forms of inequality in communities of color. See E. Wilson, Monopolizing Whiteness, 134 Harv. L. Rev. 2382, 2416 (2021) (“[E]ducational opportunities . . . allow for social mobility, better life outcomes, and the ability to participate equally in the social and economic life of the democracy”). Stark racial disparities exist, for example, in unemployment rates,[ 16 ] income levels,[ 17 ] wealth and homeownership,[ 18 ] and healthcare access.[ 19 ] See also Schuette v . BAMN , 572 U.S. 291 , 380–381 (2014) (Sotomayor, J., dissenting) (noting the “persistent racial inequality in society”); Gratz , 539 U. S., at 299–301 (Ginsburg, J., dissenting) (cataloging racial disparities in employment, poverty, healthcare, housing, consumer transactions, and education). Put simply, society remains “inherently unequal.” Brown , 347 U. S., at 495. Racial inequality runs deep to this very day. That is particularly true in education, the “ ‘most vital civic institution for the preservation of a democratic system of government.’ ” Plyler v . Doe , 457 U.S. 202 , 221, 223 (1982). As I have explained before, only with eyes open to this reality can the Court “carry out the guarantee of equal protection.” Schuette , 572 U. S., at 381 (dissenting opinion). 2 Both UNC and Harvard have sordid legacies of racial exclusion. Because “[c]ontext matters” when reviewing race-conscious college admissions programs, Grutter , 539 U. S., at 327, this reality informs the exigency of respondents’ current admissions policies and their racial diversity goals. i For much of its history, UNC was a bastion of white supremacy. Its leadership included “slaveholders, the leaders of the Ku Klux Klan, the central figures in the white supremacy campaigns of 1898 and 1900, and many of the State’s most ardent defenders of Jim Crow and race-based Social Darwinism in the twentieth century.” 3 App. 1680. The university excluded all people of color from its faculty and student body, glorified the institution of slavery, enforced its own Jim Crow regulations, and punished any dissent from racial orthodoxy. Id. , at 1681–1683. It resisted racial integration after this Court’s decision in Brown , and was forced to integrate by court order in 1955. 3 App. 1685. It took almost 10 more years for the first Black woman to enroll at the university in 1963. See Karen L. Parker Collection, 1963–1966, UNC Wilson Special Collections Library. Even then, the university admitted only a handful of underrepresented racial minorities, and those students suffered constant harassment, humiliation, and isolation. 3 App. 1685. UNC officials openly resisted racial integration well into the 1980s, years after the youngest Member of this Court was born.[ 20 ] Id. , at 1688–1690. During that period, Black students faced racial epithets and stereotypes, received hate mail, and encountered Ku Klux Klan rallies on campus. 2 id. , at 781–784; 3 id. , at 1689. To this day, UNC’s deep-seated legacy of racial subjugation continues to manifest itself in student life. Buildings on campus still bear the names of members of the Ku Klux Klan and other white supremacist leaders. Id. , at 1683. Students of color also continue to experience racial harassment, isolation, and tokenism.[ 21 ] Plus, the student body remains predominantly white: approximately 72% of UNC students identify as white, while only 8% identify as Black. Id. , at 1647. These numbers do not reflect the diversity of the State, particularly Black North Carolinians, who make up 22% of the population. Id. , at 1648. ii UNC is not alone. Harvard, like other Ivy League universities in our country, “stood beside church and state as the third pillar of a civilization built on bondage.” C. Wilder, Ebony & Ivy: Race, Slavery, and the Troubled History of America’s Universities 11 (2013). From Harvard’s founding, slavery and racial subordination were integral parts of the institution’s funding, intellectual production, and campus life. Harvard and its donors had extensive financial ties to, and profited from, the slave trade, the labor of enslaved people, and slavery-related investments. As Harvard now recognizes, the accumulation of this wealth was “vital to the University’s growth” and establishment as an elite, national institution. Harvard & the Legacy of Slavery, Report by the President and Fellows of Harvard College 7 (2022) (Harvard Report). Harvard suppressed antislavery views, and enslaved persons “served Harvard presidents and professors and fed and cared for Harvard students” on campus. Id. , at 7, 15. Exclusion and discrimination continued to be a part of campus life well into the 20th century. Harvard’s leadership and prominent professors openly promoted “ ‘race science,’ ” racist eugenics, and other theories rooted in racial hierarchy. Id. , at 11. Activities to advance these theories “took place on campus,” including “intrusive physical examinations” and “photographing of unclothed” students. Ibid. The university also “prized the admission of academically able Anglo-Saxon students from elite backgrounds—including wealthy white sons of the South.” Id. , at 44. By contrast, an average of three Black students enrolled at Harvard each year during the five decades between 1890 and 1940. Id. , at 45. Those Black students who managed to enroll at Harvard “excelled academically, earning equal or better academic records than most white students,” but faced the challenges of the deeply rooted legacy of slavery and racism on campus. Ibid . Meanwhile, a few women of color attended Radcliffe College, a separate and overwhelmingly white “women’s annex” where racial minorities were denied campus housing and scholarships. Id. , at 51. Women of color at Radcliffe were taught by Harvard professors, but “women did not receive Harvard degrees until 1963.” Ibid. ; see also S. Bradley, Upending the Ivory Tower: Civil Rights, Black Power, and the Ivy League 17 (2018) (noting that the historical discussion of racial integration at the Ivy League “is necessarily male-centric,” given the historical exclusion of women of color from these institutions). Today, benefactors with ties to slavery and white supremacy continue to be memorialized across campus through “statues, buildings, professorships, student houses, and the like.” Harvard Report 11. Black and Latino applicants account for only 20% of domestic applicants to Harvard each year. App. to Pet. for Cert. in No. 20–1199, p. 112. “Even those students of color who beat the odds and earn an offer of admission” continue to experience isolation and alienation on campus. Brief for 25 Harvard Student and Alumni Organizations as Amici Curiae 30–31; 2 App. 823, 961. For years, the university has reported that inequities on campus remain. See, e.g. , 4 App. 1564–1601. For example, Harvard has reported that “far too many black students at Harvard experience feelings of isolation and marginalization,” 3 id. , at 1308, and that “student survey data show[ed] that only half of Harvard undergraduates believe that the housing system fosters exchanges between students of different backgrounds,” id. , at 1309. *  *  * These may be uncomfortable truths to some, but they are truths nonetheless. “Institutions can and do change,” however, as societal and legal changes force them “to live up to [their] highest ideals.” Harvard Report 56. It is against this historical backdrop that Harvard and UNC have reckoned with their past and its lingering effects. Acknowledging the reality that race has always mattered and continues to matter, these universities have established institutional goals of diversity and inclusion. Consistent with equal protection principles and this Court’s settled law, their policies use race in a limited way with the goal of recruiting, admitting, and enrolling underrepresented racial minorities to pursue the well-documented benefits of racial integration in education. II The Court today stands in the way of respondents’ commendable undertaking and entrenches racial inequality in higher education. The majority opinion does so by turning a blind eye to these truths and overruling decades of precedent, “content for now to disguise” its ruling as an application of “established law and move on.” Kennedy , 597 U. S., at ___ (Sotomayor, J., dissenting) (slip op., at 29). As Justice Thomas puts it, “ Grutter is, for all intents and purposes, overruled.” Ante , at 58. It is a disturbing feature of today’s decision that the Court does not even attempt to make the extraordinary showing required by stare decisis . The Court simply moves the goalposts, upsetting settled expectations and throwing admissions programs nationwide into turmoil. In the end, however, it is clear why the Court is forced to change the rules of the game to reach its desired outcome: Under a faithful application of the Court’s settled legal framework, Harvard and UNC’s admissions programs are constitutional and comply with Title VI of the Civil Rights Act of 1964, 42 U. S. C. §2000d et seq .[ 22 ] A Answering the question whether Harvard’s and UNC’s policies survive strict scrutiny under settled law is straightforward, both because of the procedural posture of these cases and because of the narrow scope of the issues presented by petitioner Students for Fair Admissions, Inc. (SFFA).[ 23 ] These cases arrived at this Court after two lengthy trials. Harvard and UNC introduced dozens of fact witnesses, expert testimony, and documentary evidence in support of their admissions programs. Brief for Petitioner 20, 40. SFFA, by contrast, did not introduce a single fact witness and relied on the testimony of two experts. Ibid . After making detailed findings of fact and conclusions of law, the District Courts entered judgment in favor of Harvard and UNC. See 397 F. Supp. 3d 126, 133–206 (Mass. 2019) ( Harvard I ); 567 F. Supp. 3d 580, 588–667 (MDNC 2021) ( UNC ). The First Circuit affirmed in the Harvard case, finding “no error” in the District Court’s thorough opinion. 980 F.3d 157, 204 (2020) ( Harvard II ). SFFA then filed petitions for a writ of certiorari in both cases, which the Court granted. 595 U. S. ___ (2022).[ 24 ] The Court granted certiorari on three questions: (1) whether the Court should overrule Bakke , Grutter , and Fisher ; or, alternatively, (2) whether UNC’s admissions program is narrowly tailored, and (3) whether Harvard’s admissions program is narrowly tailored. See Brief for Petitioner in No. 20–1199, p. i; Brief for Respondent in No. 20–1199, p. i; Brief for University Respondents in No. 21–707, p. i. Answering the last two questions, which call for application of settled law to the facts of these cases, is simple: Deferring to the lower courts’ careful findings of fact and credibility determinations, Harvard’s and UNC’s policies are narrowly tailored. B 1 As to narrow tailoring, the only issue SFFA raises in the UNC case is that the university cannot use race in its admissions process because race-neutral alternatives would promote UNC’s diversity objectives. That issue is so easily resolved in favor of UNC that SFFA devoted only three pages to it at the end of its 87-page brief. Brief for Petitioner 83–86. The use of race is narrowly tailored unless “workable” and “available” race-neutral approaches exist, meaning race-neutral alternatives promote the institution’s diversity goals and do so at “ ‘tolerable administrative expense.’ ” Fisher I , 570 U. S., at 312 (quoting Wygant v. Jackson Bd. of Ed ., 476 U.S. 267 , 280, n. 6 (1986) (plurality opinion)). Narrow tailoring does not mean perfect tailoring. The Court’s precedents make clear that “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative.” Grutter , 539 U. S., at 339. “Nor does it require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups.” Ibid. As the District Court found after considering extensive expert testimony, SFFA’s proposed race-neutral alternatives do not meet those criteria. UNC , 567 F. Supp. 3d, at 648. All of SFFA’s proposals are methodologically flawed because they rest on “ ‘terribly unrealistic’ ” assumptions about the applicant pools. Id. , at 643–645, 647. For example, as to one set of proposals, SFFA’s expert “unrealistically assumed” that “all of the top students in the candidate pools he use[d] would apply, be admitted, and enroll.” Id. , at 647. In addition, some of SFFA’s proposals force UNC to “abandon its holistic approach” to college admissions, id. , at 643–645, n. 43, a result “in deep tension with the goal of educational diversity as this Court’s cases have defined it,” Fisher II , 579 U. S., at 386–387. Others are “largely impractical—not to mention unprecedented—in higher education.” 567 F. Supp. 3d, at 647. SFFA’s proposed top percentage plans,[ 25 ] for example, are based on a made-up and complicated admissions index that requires UNC to “access . . . real-time data for all high school students.” Ibid. UNC is then supposed to use that index, which “would change every time any student took a standardized test,” to rank students based on grades and test scores. Ibid. One of SFFA’s top percentage plans would even “nearly erase the Native American incoming class” at UNC. Id ., at 646. The courts below correctly concluded that UNC is not required to adopt SFFA’s unrealistic proposals to satisfy strict scrutiny.[ 26 ] 2 Harvard’s admissions program is also narrowly tailored under settled law. SFFA argues that Harvard’s program is not narrowly tailored because the university “has workable race-neutral alternatives,” “does not use race as a mere plus,” and “engages in racial balancing.” Brief for Petitioner 75–83. As the First Circuit concluded, there was “no error” in the District Court’s findings on any of these issues. Harvard II , 980 F. 3d, at 204.[ 27 ] Like UNC, Harvard has already implemented many of SFFA’s proposals, such as increasing recruitment efforts and financial aid for low-income students. Id. , at 193. Also like UNC, Harvard “carefully considered” other race-neutral ways to achieve its diversity goals, but none of them are “workable.” Id. , at 193–194. SFFA’s argument before this Court is that Harvard should adopt a plan designed by SFFA’s expert for purposes of trial, which increases preferences for low-income applicants and eliminates the use of race and legacy preferences. Id. , at 193; Brief for Petitioner 81. Under SFFA’s model, however, Black representation would plummet by about 32%, and the admitted share of applicants with high academic ratings would decrease, as would the share with high extracurricular and athletic ratings. 980 F. 3d, at 194. SFFA’s proposal, echoed by Justice Gorsuch, ante , at 14–15, requires Harvard to “make sacrifices on almost every dimension important to its admissions process,” 980 F. 3d, at 194, and forces it “to choose between a diverse student body and a reputation for academic excellence,” Fisher II , 579 U. S., at 385. Neither this Court’s precedents nor common sense impose that type of burden on colleges and universities. The courts below also properly rejected SFFA’s argument that Harvard does not use race in the limited way this Court’s precedents allow. The Court has explained that a university can consider a student’s race in its admissions process so long as that use is “contextual and does not operate as a mechanical plus factor.” Id ., at 375. The Court has also repeatedly held that race, when considered as one factor of many in the context of holistic review, “can make a difference to whether an application is accepted or rejected.” Ibid . After all, race-conscious admissions seek to improve racial diversity. Race cannot, however, be “ ‘decisive’ for virtually every minimally qualified underrepresented minority applicant.” Gratz , 539 U. S., at 272 (quoting Bakke , 438 U. S., at 317). That is precisely how Harvard’s program operates. In recent years, Harvard has received about 35,000 applications for a class with about 1,600 seats. 980 F. 3d, at 165. The admissions process is exceedingly competitive; it involves six different application components. Those components include interviews with alumni and admissions officers, as well as consideration of a whole range of information, such as grades, test scores, recommendation letters, and personal essays, by several committees. Id. , at 165–166. Consistent with that “individualized, holistic review process,” admissions officers may, but need not, consider a student’s self-reported racial identity when assigning overall ratings. Id. , at 166, 169, 180. Even after so many layers of competitive review, Harvard typically ends up with about 2,000 tentative admits, more students than the 1,600 or so that the university can admit. Id. , at 170. To choose among those highly qualified candidates, Harvard considers “plus factors,” which can help “tip an applicant into Harvard’s admitted class.” Id. , at 170, 191. To diversify its class, Harvard awards “tips” for a variety of reasons, including geographic factors, socioeconomic status, ethnicity, and race. Ibid. There is “no evidence of any mechanical use of tips.” Id. , at 180. Consistent with the Court’s precedents, Harvard properly “considers race as part of a holistic review process,” “values all types of diversity,” “does not consider race exclusively,” and “does not award a fixed amount of points to applicants because of their race.” Id. , at 190.[ 28 ] Indeed, Harvard’s admissions process is so competitive and the use of race is so limited and flexible that, as “SFFA’s own expert’s analysis” showed, “Harvard rejects more than two-thirds of Hispanic applicants and slightly less than half of all African-American applicants who are among the top 10% most academically promising applicants.” Id. , at 191. The courts below correctly rejected SFFA’s view that Harvard’s use of race is unconstitutional because it impacts overall Hispanic and Black student representation by 45%. See Brief for Petitioner 79. That 45% figure shows that eliminating the use of race in admissions “would reduce African American representation . . . from 14% to 6% and Hispanic representation from 14% to 9%.” Harvard II , 980 F. 3d, at 180, 191. Such impact of Harvard’s limited use of race on the makeup of the class is less than this Court has previously upheld as narrowly tailored. In Grutter , for example, eliminating the use of race would have reduced the underrepresented minority population by 72%, a much greater effect. 539 U. S., at 320. And in Fisher II , the use of race helped increase Hispanic representation from 11% to 16.9% (a 54% increase) and African-American representation from 3.5% to 6.8% (a 94% increase). 579 U. S., at 384.[ 29 ] Finally, the courts below correctly concluded that Harvard complies with this Court’s repeated admonition that colleges and universities cannot define their diversity interest “as ‘some specified percentage of a particular group merely because of its race or ethnic origin.’ ” Fisher I , 570 U. S., at 311 (quoting Bakke , 438 U. S., at 307). Harvard does not specify its diversity objectives in terms of racial quotas, and “SFFA did not offer expert testimony to support its racial balancing claim.” Harvard II , 980 F. 3d, at 180, 186–187. Harvard’s statistical evidence, by contrast, showed that the admitted classes across racial groups varied considerably year to year, a pattern “inconsistent with the imposition of a racial quota or racial balancing.” Harvard I , 397 F. Supp. 3d, at 176–177; see Harvard II , 980 F. 3d, at 180, 188–189. Similarly, Harvard’s use of “one-pagers” containing “a snapshot of various demographic characteristics of Harvard’s applicant pool” during the admissions review process is perfectly consistent with this Court’s precedents. Id. , at 170–171, 189. Consultation of these reports, with no “specific number firmly in mind,” “does not transform [Harvard’s] program into a quota.” Grutter , 539 U. S., at 335–336. Rather, Harvard’s ongoing review complies with the Court’s command that universities periodically review the necessity of the use of race in their admissions programs. Id ., at 342; Fisher II , 579 U. S., at 388. The Court ignores these careful findings and concludes that Harvard engages in racial balancing because its “focus on numbers is obvious.” Ante , at 31. Because SFFA failed to offer an expert and to prove its claim below, the majority is forced to reconstruct the record and conduct its own factual analysis. It thus relies on a single chart from SFFA’s brief that truncates relevant data in the record. Compare ibid. (citing Brief for Petitioner in No. 20–1199, p. 23) with 4 App. in No. 20–1199, p. 1770. That chart cannot displace the careful factfinding by the District Court, which the First Circuit upheld on appeal under clear error review. See Harvard II , 980 F. 3d, at 180–182, 188–189. In any event, the chart is misleading and ignores “the broader context” of the underlying data that it purports to summarize. Id. , at 188. As the First Circuit concluded, what the data actually show is that admissions have increased for all racial minorities, including Asian American students, whose admissions numbers have “increased roughly five-fold since 1980 and roughly two-fold since 1990.” Id. , at 180, 188. The data also show that the racial shares of admitted applicants fluctuate more than the corresponding racial shares of total applicants, which is “the opposite of what one would expect if Harvard imposed a quota.” Id. , at 188. Even looking at the Court’s truncated period for the classes of 2009 to 2018, “the same pattern holds.” Ibid . The fact that Harvard’s racial shares of admitted applicants “varies relatively little in absolute terms for [those classes] is unsurprising and reflects the fact that the racial makeup of Harvard’s applicant pool also varies very little over this period.” Id. , at 188–189. Thus, properly understood, the data show that Harvard “does not utilize quotas and does not engage in racial balancing.” Id. , at 189.[ 30 ] III The Court concludes that Harvard’s and UNC’s policies are unconstitutional because they serve objectives that are insufficiently measurable, employ racial categories that are imprecise and overbroad, rely on racial stereotypes and disadvantage nonminority groups, and do not have an end point. Ante , at 21–34, 39. In reaching this conclusion, the Court claims those supposed issues with respondents’ programs render the programs insufficiently “narrow” under the strict scrutiny framework that the Court’s precedents command. Ante , at 22 . In reality, however, “the Court today cuts through the kudzu” and overrules its “higher-education precedents” following Bakke. Ante , at 22 (Gorsuch, J., concurring). There is no better evidence that the Court is overruling the Court’s precedents than those precedents themselves. “Every one of the arguments made by the majority can be found in the dissenting opinions filed in [the] cases” the majority now overrules. Payne v. Tennessee , 501 U.S. 808 , 846 (1991) (Marshall, J., dissenting); see, e.g. , Grutter , 539 U. S., at 354 (Thomas, J., concurring in part and dissenting in part) (“Unlike the majority, I seek to define with precision the interest being asserted”); Fisher II , 579 U. S., at 389 (Thomas, J., dissenting) (race-conscious admissions programs “res[t] on pernicious assumptions about race”); id. , at 403 (Alito, J., joined by Roberts, C. J., and Thomas, J., dissenting) (diversity interests “are laudable goals, but they are not concrete or precise”); id. , at 413 (race-conscious college admissions plan “discriminates against Asian-American students”); id. , at 414 (race-conscious admissions plan is unconstitutional because it “does not specify what it means to be ‘African-American,’ ‘Hispanic,’ ‘Asian American,’ ‘Native American,’ or ‘White’ ”); id. , at 419 (race-conscious college admissions policies rest on “pernicious stereotype[s]”). Lost arguments are not grounds to overrule a case. When proponents of those arguments, greater now in number on the Court, return to fight old battles anew, it betrays an unrestrained disregard for precedent. It fosters the People’s suspicions that “bedrock principles are founded . . . in the proclivities of individuals” on this Court, not in the law, and it degrades “the integrity of our constitutional system of government.” Vasquez v. Hillery , 474 U.S. 254 , 265 (1986). Nowhere is the damage greater than in cases like these that touch upon matters of representation and institutional legitimacy. The Court offers no justification, much less “a ‘special justification,’ ” for its costly endeavor. Dobbs v. Jackson Women’s Health Organization , 597 U. S. ___, ___ (2022) (joint opinion of Breyer, Sotomayor, and Kagan, JJ., dissenting) (slip op., at 31) (quoting Gamble v. United States , 587 U. S. ___, ___ (2019) (slip op., at 11)). Nor could it. There is no basis for overruling Bakke , Grutter , and Fisher . The Court’s precedents were correctly decided, the opinion today is not workable and creates serious equal protection problems, important reliance interests favor respondents, and there are no legal or factual developments favoring the Court’s reckless course. See 597 U. S., at ___ (joint opinion of Breyer, Sotomayor, and Kagan, JJ., dissenting) (slip op., at 31); id. , at ___–___ (Kavanaugh, J., concurring) (slip op., at 6–7). At bottom, the six unelected members of today’s majority upend the status quo based on their policy preferences about what race in America should be like, but is not, and their preferences for a veneer of colorblindness in a society where race has always mattered and continues to matter in fact and in law. A 1 A limited use of race in college admissions is consistent with the Fourteenth Amendment and this Court’s broader equal protection jurisprudence. The text and history of the Fourteenth Amendment make clear that the Equal Protection Clause permits race-conscious measures. See supra , at 2–9. Consistent with that view, the Court has explicitly held that “race-based action” is sometimes “within constitutional constraints.” Adarand Constructors , Inc. v. Peña , 515 U.S. 200 , 237 (1995). The Court has thus upheld the use of race in a variety of contexts. See, e.g. , Parents Involved in Community Schools v. Seattle School Dist. No. 1 , 551 U.S. 701 , 737 (2007) (“[T]he obligation to disestablish a school system segregated by law can include race-conscious remedies—whether or not a court had issued an order to that effect”); Johnson v. California , 543 U.S. 499 , 512 (2005) (use of race permissible to further prison’s interest in “ ‘security’ ” and “ ‘discipline’ ”); Cooper v. Harris , 581 U.S. 285, 291–293 (2017) (use of race permissible when drawing voting districts in some circumstances).[ 31 ] Tellingly, in sharp contrast with today’s decision, the Court has allowed the use of race when that use burdens minority populations. In United States v. Brignoni-Ponce , 422 U.S. 873 (1975), for example, the Court held that it is unconstitutional for border patrol agents to rely on a person’s skin color as “a single factor” to justify a traffic stop based on reasonable suspicion, but it remarked that “Mexican appearance” could be “a relevant factor” out of many to justify such a stop “at the border and its functional equivalents.” Id. , at 884–887; see also id. , at 882 (recognizing that “the border” includes entire metropolitan areas such as San Diego, El Paso, and the South Texas Rio Grande Valley).[ 32 ] The Court thus facilitated racial profiling of Latinos as a law enforcement tool and did not adopt a race-blind rule. The Court later extended this reasoning to border patrol agents selectively referring motorists for secondary inspection at a checkpoint, concluding that “even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry, [there is] no constitutional violation.” United States v . Martinez-Fuerte , 428 U.S. 543 , 562–563 (1976) (footnote omitted). The result of today’s decision is that a person’s skin color may play a role in assessing individualized suspicion, but it cannot play a role in assessing that person’s individualized contributions to a diverse learning environment. That indefensible reading of the Constitution is not grounded in law and subverts the Fourteenth Amendment’s guarantee of equal protection. 2 The majority does not dispute that some uses of race are constitutionally permissible. See ante , at 15. Indeed, it agrees that a limited use of race is permissible in some college admissions programs. In a footnote, the Court exempts military academies from its ruling in light of “the potentially distinct interests” they may present. Ante , at 22, n. 4 . To the extent the Court suggests national security interests are “distinct,” those interests cannot explain the Court’s narrow exemption, as national security interests are also implicated at civilian universities. See infra , at 64–65. The Court also attempts to justify its carveout based on the fact that “[n]o military academy is a party to these cases.” Ante , at 22, n. 4. Yet the same can be said of many other institutions that are not parties here, including the religious universities supporting respondents, which the Court does not similarly exempt from its sweeping opinion. See Brief for Georgetown University et al. as Amici Curiae 18–29 (Georgetown Brief ) (Catholic colleges and universities noting that they rely on the use of race in their holistic admissions to further not just their academic goals, but also their religious missions); see also Harvard II , 980 F. 3d, at 187, n. 24 (“[S]chools that consider race are diverse on numerous dimensions, including in terms of religious affiliation, location, size, and courses of study offered”). The Court’s carveout only highlights the arbitrariness of its decision and further proves that the Fourteenth Amendment does not categorically prohibit the use of race in college admissions. The concurring opinions also agree that the Constitution tolerates some racial classifications. Justice Gorsuch agrees with the majority’s conclusion that racial classifications are constitutionally permissible if they advance a compelling interest in a narrowly tailored way. Ante , at 23. Justice Kavanaugh, too, agrees that the Constitution permits the use of race if it survives strict scrutiny. Ante , at 2 . [ 33 ] Justice Thomas offers an “originalist defense of the colorblind Constitution,” but his historical analysis leads to the inevitable conclusion that the Constitution is not, in fact, colorblind. Ante , at 2 . Like the majority opinion, Justice Thomas agrees that race can be used to remedy past discrimination and “to equalize treatment against a concrete baseline of government-imposed inequality.” Ante , at 18–21. He also argues that race can be used if it satisfies strict scrutiny more broadly, and he considers compelling interests those that prevent anarchy, curb violence, and segregate prisoners. Ante , at 26. Thus, although Justice Thomas at times suggests that the Constitution only permits “directly remedial” measures that benefit “identified victims of discrimination,” ante , at 20, he agrees that the Constitution tolerates a much wider range of race-conscious measures. In the end, when the Court speaks of a “colorblind” Constitution, it cannot really mean it, for it is faced with a body of law that recognizes that race-conscious measures are permissible under the Equal Protection Clause. Instead, what the Court actually lands on is an understanding of the Constitution that is “colorblind” sometimes , when the Court so chooses. Behind those choices lie the Court’s own value judgments about what type of interests are sufficiently compelling to justify race-conscious measures. Overruling decades of precedent, today’s newly constituted Court singles out the limited use of race in holistic college admissions. It strikes at the heart of Bakke , Grutter , and Fisher by holding that racial diversity is an “inescapably imponderable” objective that cannot justify race-conscious affirmative action, ante , at 24, even though respondents’ objectives simply “mirror the ‘compelling interest’ this Court has approved” many times in the past. Fisher II , 579 U. S., at 382; see, e.g. , UNC , 567 F. Supp. 3d, at 598 (“the [university’s admissions policy] repeatedly cites Supreme Court precedent as guideposts”).[ 34 ] At bottom, without any new factual or legal justification, the Court overrides its longstanding holding that diversity in higher education is of compelling value. To avoid public accountability for its choice, the Court seeks cover behind a unique measurability requirement of its own creation. None of this Court’s precedents, however, requires that a compelling interest meet some threshold level of precision to be deemed sufficiently compelling. In fact, this Court has recognized as compelling plenty of interests that are equally or more amorphous, including the “intangible” interest in preserving “public confidence in judicial integrity,” an interest that “does not easily reduce to precise definition.” Williams-Yulee v. Florida Bar , 575 U.S. 433, 447, 454 (2015) (Roberts, C. J., for the Court); see also, e.g. , Ramirez v. Collier , 595 U. S. ___, ___ (2022) (Roberts, C. J., for the Court) (slip op., at 18) (“[M]aintaining solemnity and decorum in the execution chamber” is a “compelling” interest); United States v. Alvarez , 567 U.S. 709 , 725 (2012) (plurality opinion) (“[P]rotecting the integrity of the Medal of Honor” is a “compelling interes[t]”); Sable Communications of Cal. , Inc. v. FCC , 492 U.S. 115 , 126 (1989) (“[P]rotecting the physical and psychological well-being of minors” is a “compelling interest”). Thus, although the Members of this majority pay lip service to respondents’ “commendable” and “worthy” racial diversity goals, ante , at 23–24, they make a clear value judgment today: Racial integration in higher education is not sufficiently important to them. “Today, the proclivities of individuals rule.” Dobbs , 597 U. S., at ___ (dissenting opinion) (slip op., at 6). The majority offers no response to any of this. Instead, it attacks a straw man, arguing that the Court’s cases recognize that remedying the effects of “societal discrimination” does not constitute a compelling interest. Ante , at 34–35. Yet as the majority acknowledges, while Bakke rejected that interest as insufficiently compelling, it upheld a limited use of race in college admissions to promote the educational benefits that flow from diversity. 438 U. S., at 311–315. It is that narrower interest, which the Court has reaffirmed numerous times since Bakke and as recently as 2016 in Fisher II , see supra , at 14–15, that the Court overrules today. B The Court’s precedents authorizing a limited use of race in college admissions are not just workable—they have been working. Lower courts have consistently applied them without issue, as exemplified by the opinions below and SFFA’s and the Court’s inability to identify any split of authority. Today, the Court replaces this settled framework with a set of novel restraints that create troubling equal protection problems and share one common purpose: to make it impossible to use race in a holistic way in college admissions, where it is much needed. 1 The Court argues that Harvard’s and UNC’s programs must end because they unfairly disadvantage some racial groups. According to the Court, college admissions are a “zero-sum” game and respondents’ use of race unfairly “advantages” underrepresented minority students “at the expense of ” other students. Ante , at 27. That is not the role race plays in holistic admissions. Consistent with the Court’s precedents, respondents’ holistic review policies consider race in a very limited way. Race is only one factor out of many. That type of system allows Harvard and UNC to assemble a diverse class on a multitude of dimensions. Respondents’ policies allow them to select students with various unique attributes, including talented athletes, artists, scientists, and musicians. They also allow respondents to assemble a class with diverse viewpoints, including students who have different political ideologies and academic interests, who have struggled with different types of disabilities, who are from various socioeconomic backgrounds, who understand different ways of life in various parts of the country, and—yes—students who self-identify with various racial backgrounds and who can offer different perspectives because of that identity. That type of multidimensional system benefits all students. In fact, racial groups that are not underrepresented tend to benefit disproportionately from such a system. Harvard’s holistic system, for example, provides points to applicants who qualify as “ALDC,” meaning “athletes, legacy applicants, applicants on the Dean’s Interest List [primarily relatives of donors], and children of faculty or staff.” Harvard II , 980 F. 3d, at 171 (noting also that “SFFA does not challenge the admission of this large group”). ALDC applicants are predominantly white: Around 67.8% are white, 11.4% are Asian American, 6% are Black, and 5.6% are Latino. Ibid. By contrast, only 40.3% of non-ALDC applicants are white, 28.3% are Asian American, 11% are Black, and 12.6% are Latino. Ibid. Although “ALDC applicants make up less than 5% of applicants to Harvard,” they constitute “around 30% of the applicants admitted each year.” Ibid. Similarly, because of achievement gaps that result from entrenched racial inequality in K–12 education, see infra , at 18–21, a heavy emphasis on grades and standardized test scores disproportionately disadvantages underrepresented racial minorities. Stated simply, race is one small piece of a much larger admissions puzzle where most of the pieces disfavor underrepresented racial minorities. That is precisely why underrepresented racial minorities remain under represented. The Court’s suggestion that an already advantaged racial group is “disadvantaged” because of a limited use of race is a myth. The majority’s true objection appears to be that a limited use of race in college admissions does, in fact, achieve what it is designed to achieve: It helps equalize opportunity and advances respondents’ objectives by increasing the number of underrepresented racial minorities on college campuses, particularly Black and Latino students. This is unacceptable, the Court says, because racial groups that are not underrepresented “would be admitted in greater numbers” without these policies. Ante , at 28. Reduced to its simplest terms, the Court’s conclusion is that an increase in the representation of racial minorities at institutions of higher learning that were historically reserved for white Americans is an unfair and repugnant outcome that offends the Equal Protection Clause. It provides a license to discriminate against white Americans, the Court says, which requires the courts and state actors to “pic[k ] the right races to benefit.” Ante , at 38. Nothing in the Fourteenth Amendment or its history supports the Court’s shocking proposition, which echoes arguments made by opponents of Reconstruction-era laws and this Court’s decision in Brown . Supra , at 2–17. In a society where opportunity is dispensed along racial lines, racial equality cannot be achieved without making room for underrepresented groups that for far too long were denied admission through the force of law, including at Harvard and UNC. Quite the opposite: A racially integrated vision of society, in which institutions reflect all sectors of the American public and where “the sons of former slaves and the sons of former slave owners [are] able to sit down together at the table of brotherhood,” is precisely what the Equal Protection Clause commands. Martin Luther King “I Have a Dream” Speech (Aug. 28, 1963). It is “essential if the dream of one Nation, indivisible, is to be realized.” Grutter , 539 U. S., at 332.[ 35 ] By singling out race, the Court imposes a special burden on racial minorities for whom race is a crucial component of their identity. Holistic admissions require “truly individualized consideration” of the whole person. Id. , at 334. Yet, “by foreclosing racial considerations, colorblindness denies those who racially self-identify the full expression of their identity” and treats “racial identity as inferior” among all “other forms of social identity.” E. Boddie, The Indignities of Colorblindness, 64 UCLA L. Rev. Discourse, 64, 67 (2016). The Court’s approach thus turns the Fourteenth Amendment’s equal protection guarantee on its head and creates an equal protection problem of its own. There is no question that minority students will bear the burden of today’s decision. Students of color testified at trial that racial self-identification was an important component of their application because without it they would not be able to present a full version of themselves. For example, Rimel Mwamba, a Black UNC alumna, testified that it was “really important” that UNC see who she is “holistically and how the color of [her] skin and the texture of [her] hair impacted [her] upbringing.” 2 App. in No. 21–707, p. 1033. Itzel Vasquez-Rodriguez, who identifies as Mexican-American of Cora descent, testified that her ethnoracial identity is a “core piece” of who she is and has impacted “every experience” she has had, such that she could not explain her “potential contributions to Harvard without any reference” to it. 2 App. in No. 20–1199, at 906, 908. Sally Chen, a Harvard alumna who identifies as Chinese American, explained that being the child of Chinese immigrants was “really fundamental to explaining who” she is. Id. , at 968–969. Thang Diep, a Harvard alumnus, testified that his Vietnamese identity was “such a big part” of himself that he needed to discuss it in his application. Id. , at 949. And Sarah Cole, a Black Harvard alumna, emphasized that “[t]o try to not see [her] race is to try to not see [her] simply because there is no part of [her] experience, no part of [her] journey, no part of [her] life that has been untouched by [her] race.” Id. , at 932. In a single paragraph at the end of its lengthy opinion, the Court suggests that “nothing” in today’s opinion prohibits universities from considering a student’s essay that explains “how race affected [that student’s] life.” Ante , at 39. This supposed recognition that universities can, in some situations, consider race in application essays is nothing but an attempt to put lipstick on a pig. The Court’s opinion circumscribes universities’ ability to consider race in any form by meticulously gutting respondents’ asserted diversity interests. See supra , at 41–43. Yet, because the Court cannot escape the inevitable truth that race matters in students’ lives, it announces a false promise to save face and appear attuned to reality. No one is fooled. Further, the Court’s demand that a student’s discussion of racial self-identification be tied to individual qualities, such as “courage,” “leadership,” “unique ability,” and “determination,” only serves to perpetuate the false narrative that Harvard and UNC currently provide “preferences on the basis of race alone.” Ante , at 28–29, 39; see also ante , at 28, n. 6 (claiming without support that “race alone . . . explains the admissions decisions for hundreds if not thousands of applicants”). The Court’s precedents already require that universities take race into account holistically, in a limited way, and based on the type of “individualized” and “flexible” assessment that the Court purports to favor. Grutter , 539 U. S., at 334; see Brief for Students and Alumni of Harvard College as Amici Curiae 15–17 (Harvard College Brief ) (describing how the dozens of application files in the record “uniformly show that, in line with Harvard’s ‘whole-person’ admissions philosophy, Harvard’s admissions officers engage in a highly nuanced assessment of each applicant’s background and qualifications”). After extensive discovery and two lengthy trials, neither SFFA nor the majority can point to a single example of an underrepresented racial minority who was admitted to Harvard or UNC on the basis of “race alone.” In the end, the Court merely imposes its preferred college application format on the Nation, not acting as a court of law applying precedent but taking on the role of college administrators to decide what is better for society. The Court’s course reflects its inability to recognize that racial identity informs some students’ viewpoints and experiences in unique ways. The Court goes as far as to claim that Bakke ’s recognition that Black Americans can offer different perspectives than white people amounts to a “stereotype.” Ante , at 29. It is not a stereotype to acknowledge the basic truth that young people’s experiences are shaded by a societal structure where race matters. Acknowledging that there is something special about a student of color who graduates valedictorian from a predominantly white school is not a stereotype. Nor is it a stereotype to acknowledge that race imposes certain burdens on students of color that it does not impose on white students. “For generations, black and brown parents have given their children ‘the talk’—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them.” Utah v . Strieff , 579 U.S. 232, 254 (2016) (Sotomayor, J., dissenting). Those conversations occur regardless of socioeconomic background or any other aspect of a student’s self-identification. They occur because of race. As Andrew Brennen, a UNC alumnus, testified, “running down the neighborhood . . . people don’t see [him] as someone that is relatively affluent; they see [him] as a black man.” 2 App. in No. 21–707, at 951–952. The absence of racial diversity, by contrast, actually contributes to stereotyping. “[D]iminishing the force of such stereotypes is both a crucial part of [respondents’] mission, and one that [they] cannot accomplish with only token numbers of minority students.” Grutter , 539 U. S., at 333. When there is an increase in underrepresented minority students on campus, “racial stereotypes lose their force” because diversity allows students to “learn there is no ‘minority viewpoint’ but rather a variety of viewpoints among minority students.” Id. , at 319–320. By preventing respondents from achieving their diversity objectives, it is the Court’s opinion that facilitates stereotyping on American college campuses. To be clear, today’s decision leaves intact holistic college admissions and recruitment efforts that seek to enroll diverse classes without using racial classifications. Universities should continue to use those tools as best they can to recruit and admit students from different backgrounds based on all the other factors the Court’s opinion does not, and cannot, touch. Colleges and universities can continue to consider socioeconomic diversity and to recruit and enroll students who are first-generation college applicants or who speak multiple languages, for example. Those factors are not “interchangeable” with race. UNC , 567 F. Supp. 3d, at 643; see, e.g. , 2 App. in No. 21–707, at 975–976 (Laura Ornelas, a UNC alumna, testifying that her Latina identity, socioeconomic status, and first-generation college status are all important but different “parts to getting a full picture” of who she is and how she “see[s] the world”). At SFFA’s own urging, those efforts remain constitutionally permissible. See Brief for Petitioner 81–86 (emphasizing “race-neutral” alternatives that Harvard and UNC should implement, such as those that focus on socioeconomic and geographic diversity, percentage plans, plans that increase community college transfers, and plans that develop partnerships with disadvantaged high schools); see also ante , at 51, 53, 55–56 (Thomas, J., concurring) (arguing universities can consider “[r]ace-neutral policies” similar to those adopted in States such as California and Michigan, and that universities can consider “status as a first-generation college applicant,” “financial means,” and “generational inheritance or otherwise”); ante , at 8 (Kavanaugh, J., concurring) (citing SFFA’s briefs and concluding that universities can use “race-neutral” means); ante , at 14, n. 4 (Gorsuch, J., concurring) (“recount[ing] what SFFA has argued every step of the way” as to “race-neutral tools”). The Court today also does not adopt SFFA’s suggestion that college admissions should be a function of academic metrics alone. Using class rank or standardized test scores as the only admissions criteria would severely undermine multidimensional diversity in higher education. Such a system “would exclude the star athlete or musician whose grades suffered because of daily practices and training. It would exclude a talented young biologist who struggled to maintain above-average grades in humanities classes. And it would exclude a student whose freshman-year grades were poor because of a family crisis but who got herself back on track in her last three years of school, only to find herself just outside of the top decile of her class.” Fisher II , 579 U. S., at 386. A myopic focus on academic ratings “does not lead to a diverse student body.” Ibid. [ 36 ] 2 As noted above, this Court suggests that the use of race in college admissions is unworkable because respondents’ objectives are not sufficiently “measurable,” “focused,” “concrete,” and “coherent.” Ante , at 23, 26, 39. How much more precision is required or how universities are supposed to meet the Court’s measurability requirement, the Court’s opinion does not say. That is exactly the point. The Court is not interested in crafting a workable framework that promotes racial diversity on college campuses. Instead, it announces a requirement designed to ensure all race-conscious plans fail. Any increased level of precision runs the risk of violating the Court’s admonition that colleges and universities operate their race-conscious admissions policies with no “ ‘specified percentage[s]’ ” and no “specific number[s] firmly in mind.” Grutter , 539 U. S., at 324, 335. Thus, the majority’s holding puts schools in an untenable position. It creates a legal framework where race-conscious plans must be measured with precision but also must not be measured with precision. That holding is not meant to infuse clarity into the strict scrutiny framework; it is designed to render strict scrutiny “ ‘fatal in fact.’ ” Id ., at 326 (quoting Adarand Constructors , Inc. , 515 U. S., at 237). Indeed, the Court gives the game away when it holds that, to the extent respondents are actually measuring their diversity objectives with any level of specificity (for example, with a “focus on numbers” or specific “numerical commitment”), their plans are unconstitutional. Ante , at 30–31; see also ante , at 29 (Thomas, J., concurring) (“I highly doubt any [university] will be able to” show a “measurable state interest”). 3 The Court also holds that Harvard’s and UNC’s race-conscious programs are unconstitutional because they rely on racial categories that are “imprecise,” “opaque,” and “arbitrary.” Ante , at 25. To start, the racial categories that the Court finds troubling resemble those used across the Federal Government for data collection, compliance reporting, and program administration purposes, including, for example, by the U. S. Census Bureau. See, e.g. , 62 Fed. Reg. 58786–58790 (1997). Surely, not all “ ‘federal grant-in-aid benefits, drafting of legislation, urban and regional planning, business planning, and academic and social studies’ ” that flow from census data collection, Department of Commerce v. New York , 588 U. S. ___, ___ (2019) (slip op., at 2), are constitutionally suspect. The majority presumes that it knows better and appoints itself as an expert on data collection methods, calling for a higher level of granularity to fix a supposed problem of overinclusiveness and underinclusiveness. Yet it does not identify a single instance where respondents’ methodology has prevented any student from reporting their race with the level of detail they preferred. The record shows that it is up to students to choose whether to identify as one, multiple, or none of these categories. See Harvard I , 397 F. Supp. 3d, at 137; UNC , 567 F. Supp. 3d, at 596. To the extent students need to convey additional information, students can select subcategories or provide more detail in their personal statements or essays. See Harvard I , 397 F. Supp. 3d, at 137. Students often do so. See, e.g. , 2 App. in No. 20–1199, at 906–907 (student respondent discussing her Latina identity on her application); id. , at 949 (student respondent testifying he “wrote about [his] Vietnamese identity on [his] application”). Notwithstanding this Court’s confusion about racial self-identification, neither students nor universities are confused. There is no evidence that the racial categories that respondents use are unworkable.[ 37 ] 4 Cherry-picking language from Grutter , the Court also holds that Harvard’s and UNC’s race-conscious programs are unconstitutional because they do not have a specific expiration date. Ante , at 30–34. This new durational requirement is also not grounded in law, facts, or common sense. Grutter simply announced a general “expect[ation]” that “the use of racial preferences [would] no longer be necessary” in the future. 539 U. S., at 343. As even SFFA acknowledges, those remarks were nothing but aspirational statements by the Grutter Court. Tr. of Oral Arg. in No. 21–707, p. 56. Yet this Court suggests that everyone, including the Court itself, has been misreading Grutter for 20 years. Grutter , according to the majority, requires that universities identify a specific “end point” for the use of race. Ante , at 33 . Justice Kavanaugh, for his part, suggests that Grutter itself automatically expires in 25 years, after either “the college class of 2028” or “the college class of 2032.” Ante , at 7, n. 1. A faithful reading of this Court’s precedents reveals that Grutter held nothing of the sort. True, Grutter referred to “25 years,” but that arbitrary number simply reflected the time that had elapsed since the Court “first approved the use of race” in college admissions in Bakke . Grutter , 539 U. S., at 343. It is also true that Grutter remarked that “race-conscious admissions policies must be limited in time,” but it did not do so in a vaccum, as the Court suggests. Id ., at 342. Rather than impose a fixed expiration date, the Court tasked universities with the responsibility of periodically assessing whether their race-conscious programs “are still necessary.” Ibid. Grutter offered as examples sunset provisions, periodic reviews, and experimenting with “race-neutral alternatives as they develop.” Ibid. That is precisely how this Court has previously interpreted Grutter ’s command. See Fisher II , 579 U. S., at 388 (“It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies”). Grutter ’s requirement that universities engage in periodic reviews so the use of race can end “as soon as practicable” is well grounded in the need to ensure that race is “employed no more broadly than the interest demands.” 539 U. S., at 343. That is, it is grounded in strict scrutiny. By contrast, the Court’s holding is based on the fiction that racial inequality has a predictable cutoff date. Equality is an ongoing project in a society where racial inequality persists. See supra , at 17–25. A temporal requirement that rests on the fantasy that racial inequality will end at a predictable hour is illogical and unworkable. There is a sound reason why this Court’s precedents have never imposed the majority’s strict deadline: Institutions cannot predict the future. Speculating about a day when consideration of race will become unnecessary is arbitrary at best and frivolous at worst. There is no constitutional duty to engage in that type of shallow guesswork . [ 38 ] Harvard and UNC engage in the ongoing review that the Court’s precedents demand. They “use [their] data to scrutinize the fairness of [their] admissions program[s]; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures [they] dee[m] necessary.” Fisher II , 579 U. S., at 388. The Court holds, however, that respondents’ attention to numbers amounts to unconstitutional racial balancing. Ante , at 30–32. But “ ‘[s]ome attention to numbers’ ” is both necessary and permissible. Grutter , 539 U. S., at 336 (quoting Bakke , 438 U. S., at 323). Universities cannot blindly operate their limited race-conscious programs without regard for any quantitative information. “Increasing minority enrollment [is] instrumental to th[e] educational benefits” that respondents seek to achieve, Fisher II , 579 U. S., at 381, and statistics, data, and numbers “have some value as a gauge of [respondents’] ability to enroll students who can offer underrepresented perspectives.” Id. , at 383–384. By removing universities’ ability to assess the success of their programs, the Court obstructs these institutions’ ability to meet their diversity goals. 5 Justice Thomas, for his part, offers a multitude of arguments for why race-conscious college admissions policies supposedly “burden” racial minorities. Ante , at 39. None of them has any merit. He first renews his argument that the use of race in holistic admissions leads to the “inevitable” “underperformance” by Black and Latino students at elite universities “because they are less academically prepared than the white and Asian students with whom they must compete.” Fisher I , 570 U. S., at 332 (concurring opinion). Justice Thomas speaks only for himself. The Court previously declined to adopt this so-called “mismatch” hypothesis for good reason: It was debunked long ago. The decades-old “studies” advanced by the handful of authors upon whom Justice Thomas relies, ante , at 40–41, have “major methodological flaws,” are based on unreliable data, and do not “meet the basic tenets of rigorous social science research.” Brief for Empirical Scholars as Amici Curiae 3, 9–25. By contrast, “[m]any social scientists have studied the impact of elite educational institutions on student outcomes, and have found, among other things, that attending a more selective school is associated with higher graduation rates and higher earnings for [underrepresented minority] students—conclusions directly contrary to mismatch.” Id. , at 7–9 (collecting studies). This extensive body of research is supported by the most obvious data point available to this institution today: The three Justices of color on this Court graduated from elite universities and law schools with race-conscious admissions programs, and achieved successful legal careers, despite having different educational backgrounds than their peers. A discredited hypothesis that the Court previously rejected is no reason to overrule precedent. Justice Thomas claims that the weight of this evidence is overcome by a single more recent article published in 2016. Ante , at 41, n. 8. That article, however, explains that studies supporting the mismatch hypothesis “yield misleading conclusions,” “overstate the amount of mismatch,” “preclude one from drawing any concrete conclusions,” and rely on methodologically flawed assumptions that “lea[d] to an upwardly-biased estimate of mismatch.” P. Arcidiacono & M. Lovenheim, Affirmative Action and the Quality-Fit Trade-off, 54 J. Econ. Lit. 3, 17, 20 (2016); see id. , at 6 (“economists should be very skeptical of the mismatch hypothesis”). Notably, this refutation of the mismatch theory was coauthored by one of SFFA’s experts, as Justice Thomas seems to recognize. Citing nothing but his own long-held belief, Justice Thomas also equates affirmative action in higher education with segregation, arguing that “racial preferences in college admissions ‘stamp [Black and Latino students] with a badge of inferiority.’ ” Ante , at 41 (quoting Adarand , 515 U. S., at 241 (Thomas, J., concurring in part and concurring in judgment)). Studies disprove this sentiment, which echoes “tropes of stigma” that “were employed to oppose Reconstruction policies.” A. Onwuachi-Willig, E. Houh, & M. Campbell, Cracking the Egg: Which Came First—Stigma or Affirmative Action? 96 Cal. L. Rev. 1299, 1323 (2008); see, e.g. , id. , at 1343–1344 (study of seven law schools showing that stigma results from “racial stereotypes that have attached historically to different groups, regardless of affirmative action’s existence”). Indeed, equating state-sponsored segregation with race-conscious admissions policies that promote racial integration trivializes the harms of segregation and offends Brown ’s transformative legacy. School segregation “has a detrimental effect” on Black students by “denoting the inferiority” of “their status in the community” and by “ ‘depriv[ing] them of some of the benefits they would receive in a racial[ly] integrated school system.’ ” 347 U. S., at 494. In sharp contrast, race-conscious college admissions ensure that higher education is “visibly open to” and “inclusive of talented and qualified individuals of every race and ethnicity.” Grutter , 539 U. S., at 332. These two uses of race are not created equal. They are not “equally objectionable.” Id. , at 327. Relatedly, Justice Thomas suggests that race-conscious college admissions policies harm racial minorities by increasing affinity-based activities on college campuses. Ante , at 46. Not only is there no evidence of a causal connection between the use of race in college admissions and the supposed rise of those activities, but Justice Thomas points to no evidence that affinity groups cause any harm. Affinity-based activities actually help racial minorities improve their visibility on college campuses and “decreas[e] racial stigma and vulnerability to stereotypes” caused by “conditions of racial isolation” and “tokenization.” U. Jayakumar, Why Are All Black Students Still Sitting Together in the Proverbial College Cafeteria?, Higher Education Research Institute at UCLA (Oct. 2015); see also Brief for Respondent-Students in No. 21–707, p. 42 (collecting student testimony demonstrating that “affinity groups beget important academic and social benefits” for racial minorities); 4 App. in No. 20–1199, at 1591 (Harvard Working Group on Diversity and Inclusion Report) (noting that concerns “that culturally specific spaces or affinity-themed housing will isolate” student minorities are misguided because those spaces allow students “to come together . . . to deal with intellectual, emotional, and social challenges”). Citing no evidence, Justice Thomas also suggests that race-conscious admissions programs discriminate against Asian American students. Ante , at 43–44. It is true that SFFA “allege[d]” that Harvard discriminates against Asian American students. Ante , at 43 . Specifically, SFFA argued that Harvard discriminates against Asian American applicants vis-à-vis white applicants through the use of the personal rating, an allegedly “highly subjective” component of the admissions process that is “susceptible to stereotyping and bias.” Harvard II , 980 F. 3d, at 196; see Brief for Professors of Economics as Amici Curiae 24. It is also true, however, that there was a lengthy trial to test those allegations, which SFFA lost. Justice Thomas points to no legal or factual error below, precisely because there is none. To begin, this part of SFFA’s discrimination claim does not even fall under the strict scrutiny framework in Grutter and its progeny, which concerns the use of racial classifications. The personal rating is a facially race- neutral component of Harvard’s admissions policy.[ 39 ] Therefore, even assuming for the sake of argument that Harvard engages in racial discrimination through the personal rating, there is no connection between that rating and the remedy that SFFA sought and that the majority grants today: ending the limited use of race in the entire admissions process. In any event, after assessing the credibility of fact witnesses and considering extensive documentary evidence and expert testimony, the courts below found “no discrimination against Asian Americans.” Harvard II , 980 F. 3d, at 195, n. 34, 202; see id. , at 195–204. There is no question that the Asian American community continues to struggle against potent and dehumanizing stereotypes in our society. It is precisely because racial discrimination persists in our society, however, that the use of race in college admissions to achieve racially diverse classes is critical to improving cross-racial understanding and breaking down racial stereotypes. See supra , at 16. Indeed, the record shows that some Asian American applicants are actually “advantaged by Harvard’s use of race,” Harvard II , 980 F. 3d, at 191, and “eliminating consideration of race would significantly disadvantage at least some Asian American applicants,” Harvard I , 397 F. Supp. 3d, at 194. Race-conscious holistic admissions that contextualize the racial identity of each individual allow Asian American applicants “who would be less likely to be admitted without a comprehensive understanding of their background” to explain “the value of their unique background, heritage, and perspective.” Id. , at 195. Because the Asian American community is not a monolith, race-conscious holistic admissions allow colleges and universities to “consider the vast differences within [that] community.” AALDEF Brief 4–14. Harvard’s application files show that race-conscious holistic admissions allow Harvard to “valu[e ] the diversity of Asian American applicants’ experiences.” Harvard College Brief 23. Moreover, the admission rates of Asian Americans at institutions with race-conscious admissions policies, including at Harvard, have “been steadily increasing for decades.” Harvard II , 980 F. 3d, at 198.[ 40 ] By contrast, Asian American enrollment declined at elite universities that are prohibited by state law from considering race. See AALDEF Brief 27; Brief for 25 Diverse, California-Focused Bar Associations et al. as Amici Curiae 19–20, 23. At bottom, race-conscious admissions benefit all students, including racial minorities. That includes the Asian American community. Finally, Justice Thomas belies reality by suggesting that “experts and elites” with views similar to those “that motivated Dred Scott and Plessy ” are the ones who support race conscious admissions. Ante , at 39. The plethora of young students of color who testified in favor of race-consciousness proves otherwise. See supra , at 46–47; see also infra , at 64–67 (discussing numerous amici from many sectors of society supporting respondents’ policies). Not a single student—let alone any racial minority—affected by the Court’s decision testified in favor of SFFA in these cases. C In its “radical claim to power,” the Court does not even acknowledge the important reliance interests that this Court’s precedents have generated. Dobbs , 597 U. S., at ___ (dissenting opinion) (slip op., at 53). Significant rights and expectations will be affected by today’s decision nonetheless. Those interests supply “added force” in favor of stare decisis . Hilton v. South Carolina Public Railways Comm’n , 502 U.S. 197 , 202 (1991). Students of all backgrounds have formed settled expectations that universities with race-conscious policies “will provide diverse, cross-cultural experiences that will better prepare them to excel in our increasingly diverse world.” Brief for Respondent-Students in No. 21–707, at 45; see Harvard College Brief 6–11 (collecting student testimony). Respondents and other colleges and universities with race-conscious admissions programs similarly have concrete reliance interests because they have spent significant resources in an effort to comply with this Court’s precedents. “Universities have designed courses that draw on the benefits of a diverse student body,” “hired faculty whose research is enriched by the diversity of the student body,” and “promoted their learning environments to prospective students who have enrolled based on the understanding that they could obtain the benefits of diversity of all kinds.” Brief for Respondent in No. 20–1199, at 40–41 (internal quotation marks omitted). Universities also have “expended vast financial and other resources” in “training thousands of application readers on how to faithfully apply this Court’s guardrails on the use of race in admissions.” Brief for University Respondents in No. 21–707, p. 44. Yet today’s decision abruptly forces them “to fundamentally alter their admissions practices.” Id. , at 45; see also Brief for Massachusetts Institute of Technology et al. as Amici Curiae 25–26; Brief for Amherst College et al. as Amici Curiae 23–25 (Amherst Brief ). As to Title VI in particular, colleges and universities have relied on Grutter for decades in accepting federal funds. See Brief for United States as Amicus Curiae in No. 20–1199, p. 25 (United States Brief ); Georgetown Brief 16. The Court’s failure to weigh these reliance interests “is a stunning indictment of its decision.” Dobbs , 597 U. S., at ___ (dissenting opinion) (slip op., at 55). IV The use of race in college admissions has had profound consequences by increasing the enrollment of underrepresented minorities on college campuses. This Court presupposes that segregation is a sin of the past and that race-conscious college admissions have played no role in the progress society has made. The fact that affirmative action in higher education “has worked and is continuing to work” is no reason to abandon the practice today. Shelby County v . Holder , 570 U.S. 529 , 590 (2013) (Ginsburg, J., dissenting) (“[It] is like throwing away your umbrella in a rainstorm because you are not getting wet”). Experience teaches that the consequences of today’s decision will be destructive. The two lengthy trials below simply confirmed what we already knew: Superficial colorblindness in a society that systematically segregates opportunity will cause a sharp decline in the rates at which underrepresented minority students enroll in our Nation’s colleges and universities, turning the clock back and undoing the slow yet significant progress already achieved. See Schuette , 572 U. S., at 384–390 (Sotomayor, J., dissenting) (collecting statistics from States that have banned the use of race in college admissions); see also Amherst Brief 13 (noting that eliminating the use of race in college admissions will take Black student enrollment at elite universities back to levels this country saw in the early 1960s). After California amended its State Constitution to prohibit race-conscious college admissions in 1996, for example, “freshmen enrollees from underrepresented minority groups dropped precipitously” in California public universities. Brief for President and Chancellors of the University of California as Amici Curiae 4, 9, 11–13. The decline was particularly devastating at California’s most selective campuses, where the rates of admission of underrepresented groups “dropped by 50% or more.” Id. , at 4, 12. At the University of California, Berkeley, a top public university not just in California but also nationally, the percentage of Black students in the freshman class dropped from 6.32% in 1995 to 3.37% in 1998. Id. , at 12–13. Latino representation similarly dropped from 15.57% to 7.28% during that period at Berkeley, even though Latinos represented 31% of California public high school graduates. Id. , at 13. To this day, the student population at California universities still “reflect[s] a persistent inability to increase opportunities” for all racial groups. Id. , at 23. For example, as of 2019, the proportion of Black freshmen at Berkeley was 2.76%, well below the pre-constitutional amendment level in 1996, which was 6.32%. Ibid . Latinos composed about 15% of freshmen students at Berkeley in 2019, despite making up 52% of all California public high school graduates. Id. , at 24; see also Brief for University of Michigan as Amicus Curiae 21–24 (noting similar trends at the University of Michigan from 2006, the last admissions cycle before Michigan’s ban on race-conscious admissions took effect, through present); id. , at 24–25 (explaining that the university’s “experience is largely consistent with other schools that do not consider race as a factor in admissions,” including, for example, the University of Oklahoma’s most prestigious campus). The costly result of today’s decision harms not just respondents and students but also our institutions and democratic society more broadly. Dozens of amici from nearly every sector of society agree that the absence of race-conscious college admissions will decrease the pipeline of racially diverse college graduates to crucial professions. Those amici include the United States, which emphasizes the need for diversity in the Nation’s military, see United States Brief 12–18, and in the federal workforce more generally, id. , at 19–20 (discussing various federal agencies, including the Federal Bureau of Investigation and the Office of the Director of National Intelligence). The United States explains that “the Nation’s military strength and readiness depend on a pipeline of officers who are both highly qualified and racially diverse—and who have been educated in diverse environments that prepare them to lead increasingly diverse forces.” Id. , at 12. That is true not just at the military service academies but “at civilian universities, including Harvard, that host Reserve Officers’ Training Corps (ROTC) programs and educate students who go on to become officers.” Ibid. Top former military leaders agree. See Brief for Adm. Charles S. Abbot et al. as Amici Curiae 3 (noting that in amici ’s “professional judgment, the status quo—which permits service academies and civilian universities to consider racial diversity as one factor among many in their admissions practices—is essential to the continued vitality of the U. S. military”). Indeed, history teaches that racial diversity is a national security imperative. During the Vietnam War, for example, lack of racial diversity “threatened the integrity and performance of the Nation’s military” because it fueled “perceptions of racial/ethnic minorities serving as ‘cannon fodder’ for white military leaders.” Military Leadership Diversity Comm’n, From Representation to Inclusion: Diversity Leadership for the 21st-Century Military xvi, 15 (2011); see also, e.g. , R. Stillman, Racial Unrest in the Military: The Challenge and the Response, 34 Pub. Admin. Rev. 221, 221–222 (1974) (discussing other examples of racial unrest). Based on “lessons from decades of battlefield experience,” it has been the “longstanding military judgment” across administrations that racial diversity “is essential to achieving a mission-ready” military and to ensuring the Nation’s “ability to compete, deter, and win in today’s increasingly complex global security environment.” United States Brief 13 (internal quotation marks omitted). The majority recognizes the compelling need for diversity in the military and the national security implications at stake, see ante , at 22, n. 4, but it ends race-conscious college admissions at civilian universities implicating those interests anyway. Amici also tell the Court that race-conscious college admissions are critical for providing equitable and effective public services. State and local governments require public servants educated in diverse environments who can “identify, understand, and respond to perspectives” in “our increasingly diverse communities.” Brief for Southern Governors as Amici Curiae 5–8 (Southern Governors Brief ). Likewise, increasing the number of students from underrepresented backgrounds who join “the ranks of medical professionals” improves “healthcare access and health outcomes in medically underserved communities.” Brief for Massachusetts et al. as Amici Curiae 10; see Brief for Association of American Medical Colleges et al. as Amici Curiae 5 (noting also that all physicians become better practitioners when they learn in a racially diverse environment). So too, greater diversity within the teacher workforce improves student academic achievement in primary public schools. Brief for Massachusetts et al. as Amici Curiae 15–17; see Brief for American Federation of Teachers as Amicus Curiae 8 (“[T]here are few professions with broader social impact than teaching”). A diverse pipeline of college graduates also ensures a diverse legal profession, which demonstrates that “the justice system serves the public in a fair and inclusive manner.” Brief for American Bar Association as Amicus Curiae 18; see also Brief for Law Firm Antiracism Alliance as Amicus Curiae 1, 6 (more than 300 law firms in all 50 States supporting race-conscious college admissions in light of the “influence and power” that lawyers wield “in the American system of government”). Examples of other industries and professions that benefit from race-conscious college admissions abound. American businesses emphasize that a diverse workforce improves business performance, better serves a diverse consumer marketplace, and strengthens the overall American economy. Brief for Major American Business Enterprises as Amici Curiae 5–27. A diverse pipeline of college graduates also improves research by reducing bias and increasing group collaboration. Brief for Individual Scientists as Amici Curiae 13–14. It creates a more equitable and inclusive media industry that communicates diverse viewpoints and perspectives. Brief for Multicultural Media, Telecom and Internet Council, Inc., et al. as Amici Curiae 6. It also drives innovation in an increasingly global science and technology industry. Brief for Applied Materials, Inc., et al. as Amici Curiae 11–20. Today’s decision further entrenches racial inequality by making these pipelines to leadership roles less diverse. A college degree, particularly from an elite institution, carries with it the benefit of powerful networks and the opportunity for socioeconomic mobility. Admission to college is therefore often the entry ticket to top jobs in workplaces where important decisions are made. The overwhelming majority of Members of Congress have a college degree.[ 41 ] So do most business leaders.[ 42 ] Indeed, many state and local leaders in North Carolina attended college in the UNC system. See Southern Governors Brief 8. More than half of judges on the North Carolina Supreme Court and Court of Appeals graduated from the UNC system, for example, and nearly a third of the Governor’s cabinet attended UNC. Ibid. A less diverse pipeline to these top jobs accumulates wealth and power unequally across racial lines, exacerbating racial disparities in a society that already dispenses prestige and privilege based on race. The Court ignores the dangerous consequences of an America where its leadership does not reflect the diversity of the People. A system of government that visibly lacks a path to leadership open to every race cannot withstand scrutiny “in the eyes of the citizenry.” Grutter , 539 U. S., at 332. “[G]ross disparity in representation” leads the public to wonder whether they can ever belong in our Nation’s institutions, including this one, and whether those institutions work for them. Tr. of Oral Arg. in No. 21–707, p. 171 (“The Court is going to hear from 27 advocates in this sitting of the oral argument calendar, and two are women, even though women today are 50 percent or more of law school graduates. And I think it would be reasonable for a woman to look at that and wonder, is that a path that’s open to me, to be a Supreme Court advocate?” (remarks of Solicitor General Elizabeth Prelogar)).[ 43 ] By ending race-conscious college admissions, this Court closes the door of opportunity that the Court’s precedents helped open to young students of every race. It creates a leadership pipeline that is less diverse than our increasingly diverse society, reserving “positions of influence, affluence, and prestige in America” for a predominantly white pool of college graduates. Bakke , 438 U. S., at 401 (opinion of Marshall, J.). At its core, today’s decision exacerbates segregation and diminishes the inclusivity of our Nation’s institutions in service of superficial neutrality that promotes indifference to inequality and ignores the reality of race. *  *  * True equality of educational opportunity in racially diverse schools is an essential component of the fabric of our democratic society. It is an interest of the highest order and a foundational requirement for the promotion of equal protection under the law. Brown recognized that passive race neutrality was inadequate to achieve the constitutional guarantee of racial equality in a Nation where the effects of segregation persist. In a society where race continues to matter, there is no constitutional requirement that institutions attempting to remedy their legacies of racial exclusion must operate with a blindfold. Today, this Court overrules decades of precedent and imposes a superficial rule of race blindness on the Nation. The devastating impact of this decision cannot be overstated. The majority’s vision of race neutrality will entrench racial segregation in higher education because racial inequality will persist so long as it is ignored. Notwithstanding this Court’s actions, however, society’s progress toward equality cannot be permanently halted. Diversity is now a fundamental American value, housed in our varied and multicultural American community that only continues to grow. The pursuit of racial diversity will go on. Although the Court has stripped out almost all uses of race in college admissions, universities can and should continue to use all available tools to meet society’s needs for diversity in education. Despite the Court’s unjustified exercise of power, the opinion today will serve only to highlight the Court’s own impotence in the face of an America whose cries for equality resound. As has been the case before in the history of American democracy, “the arc of the moral universe” will bend toward racial justice despite the Court’s efforts today to impede its progress. Martin Luther King “Our God is Marching On!” Speech (Mar. 25, 1965). Notes 1 *Justice Jackson did not participate in the consideration or decision of the case in No. 20–1199 and joins this opinion only as it applies to the case in No. 21–707. 2 As Justice Thomas acknowledges, the HBCUs, including Howard University, account for a high proportion of Black college graduates. Ante , at 56–57 (concurring opinion). That reality cannot be divorced from the history of anti-Black discrimination that gave rise to the HBCUs and the targeted work of the Freedmen’s Bureau to help Black people obtain a higher education. See HBCU Brief 13–15. 3 By the time the Fourteenth Amendment was ratified by the States in 1868, “education had become a right of state citizenship in the constitution of every readmitted state,” including in North Carolina. D. Black, The Fundamental Right to Education, 94 Notre Dame L. Rev. 1059, 1089 (2019); see also Brief for Black Women Scholars as Amici Curiae 9 (“The herculean efforts of Black reformers, activists, and lawmakers during the Reconstruction Era forever transformed State constitutional law; today, thanks to the impact of their work, every State constitution contains language guaranteeing the right to public education”). 4 The majority suggests that “it required a Second Founding to undo” programs that help ensure racial integration and therefore greater equality in education. Ante , at 38 . At the risk of stating the blindingly obvious, and as Brown recognized, the Fourteenth Amendment was intended to undo the effects of a world where laws systematically subordinated Black people and created a racial caste system. Cf. Dred Scott v. Sandford , 19 How. 393, 405 (1857). Brown and its progeny recognized the need to take affirmative, race-conscious steps to eliminate that system. 5 See GAO, Report to the Chairman, Committee on Education and Labor, House of Representatives, K–12 Education: Student Population Has Significantly Diversified, but Many Schools Remain Divided Along Racial, Ethnic, and Economic Lines 13 (GAO–22–104737, June 2022) (hereinafter GAO Report). 6 G. Orfield, E. Frankenberg, & J. Ayscue, Harming Our Common Future: America’s Segregated Schools 65 Years After Brown 21 (2019). 7 E.g. , Bennett v. Madison Cty. Bd. of Ed. , No. 5:63–CV–613 (ND Ala., July 5, 2022), ECF Doc. 199, p. 19; id. , at 6 (requiring school district to ensure “the participation of black students” in advanced courses). 8 GAO Report 6, 13 (noting that 80% of predominantly Black and Latino schools have at least 75% of their students eligible for free or reduced-price lunch—a proxy for poverty). 9 See also L. Clark, Barbed Wire Fences: The Structural Violence of Education Law, 89 U. Chi. L. Rev. 499, 502, 512–517 (2022); Albert Shanker Institute, B. Baker, M. DiCarlo, & P. Greene, Segregation andSchool Funding: How Housing Discrimination Reproduces Unequal Opportunity 17–19 (Apr. 2022). 10 See Brief for 25 Harvard Student and Alumni Organizations as Amici Curiae 6–15 (collecting sources). 11 GAO Report 7; see also Brief for Council of the Great City Schools as Amicus Curiae 11–14 (collecting sources). 12 See J. Okonofua & J. Eberhardt, Two Strikes: Race and the Disciplining of Young Students, 26 Psychol. Sci. 617 (2015) (a national survey showed that “Black students are more than three times as likely to be suspended or expelled as their White peers”); Brief for Youth Advocates and Experts on Educational Access as Amici Curiae 14–15 (describing investigation in North Carolina of a public school district, which found that Black students were 6.1 times more likely to be suspended than white students). 13 See, e.g ., Dept. of Education, National Center for Education Statistics, Digest of Education Statistics (2021) (Table 104.70) (showing that 59% of white students and 78% of Asian students have a parent with a bachelor’s degree or higher, while the same is true for only 25% of Latino students and 33% of Black students). 14 R. Crosnoe, K. Purtell, P. Davis-Kean, A. Ansari, & A. Benner, The Selection of Children From Low-Income Families into Preschool, 52 J. Developmental Psychology 11 (2016); A. Kenly & A. Klein, Early Childhood Experiences of Black Children in a Diverse Midwestern Suburb, 24 J. African American Studies 130, 136 (2020). 15 Dept. of Education, National Center for Education, Institute of Educational Science, The Condition of Education 2022, p. 24 (2020) (fig. 16). 16 ProQuest Statistical Abstract of the United States: 2023, p. 402 (Table 622) (noting Black and Latino adults are more likely to be unemployed). 17 Id. , at 173 (Table 259). 18 A. McCargo & J. Choi, Closing the Gaps: Building Black Wealth Through Homeownership (2020) (fig. 1). 19 Dept. of Commerce, Census Bureau, Health Insurance Coverage in the United States: 2021, p. 9 (fig. 5); id. , at 29 (Table C–1), https://www.census.gov/library/publications/2022/demo/p60-278.html (noting racial minorities, particularly Latinos, are less likely to have health insurance coverage). 20 In 1979, prompted by lawsuits filed by civil rights lawyers under Title VI, the U. S. Department of Health, Education, and Welfare “revoked UNC’s federal funding for its continued noncompliance” with Brown . 3 App. 1688; see Adams v . Richardson , 351 F. Supp. 636 , 637 (DC 1972); Adams v . Califano , 430 F. Supp. 118 , 121 (DC 1977). North Carolina sued the Federal Government in response, and North Carolina Senator Jesse Helms introduced legislation to block federal desegregation efforts. 3 App. 1688 . UNC praised those actions by North Carolina public officials. Ibid. The litigation ended in 1981, after the Reagan administration settled with the State. See North Carolina v . Department of Education , No. 79–217–CIV–5 (EDNC, July 17, 1981) (Consent Decree). 21 See 1 App. 20–21 (campus climate survey showing inter alia that “91 percent of students heard insensitive or disparaging racial remarks made by other students”); 2 id. , at 1037 (Black student testifying that a white student called him “the N word” and, on a separate occasion at a fraternity party, he was “told that no slaves were allowed in”); id. , at 955 (student testifying that he was “the only African American student in the class,” which discouraged him from speaking up about racially salient issues); id. , at 762–763 (student describing that being “the only Latina” made it “hard to speak up” and made her feel “foreign” and “an outsider”). 22 The same standard that applies under the Equal Protection Clause guides the Court’s review under Title VI, as the majority correctly recognizes . See ante , at 6, n. 2; see also Regents of Univ. of Cal. v. Bakke , 438 U.S. 265 , 325 (1978) (Brennan, J., concurring). Justice Gorsuch argues that “Title VI bears independent force” and holds universities to an even higher standard than the Equal Protection Clause. Ante , at 25. Because no party advances Justice Gorsuch’s argument, see ante , at 6, n. 2, the Court properly declines to address it under basic principles of party presentation. See United States v. Sineneng-Smith , 590 U. S. ___, ___ (2020) (slip op., at 3). Indeed, Justice Gorsuch’s approach calls for even more judicial restraint. If petitioner could prevail under Justice Gorsuch’s statutory analysis, there would be no reason for this Court to reach the constitutional question. See Escambia County v . McMillan , 466 U.S. 48 , 51 (1984) ( per curiam ). In a statutory case, moreover, stare decisis carries “enhanced force,” as it would be up to Congress to “correct any mistake it sees” with “our interpretive decisions.” Kimble v . Marvel Entertainment, LLC , 576 U.S. 446, 456 (2015). Justice Gorsuch wonders why the dissent, like the majority, does not “engage” with his statutory arguments. Ante , at 16 . The answer is simple: This Court plays “the role of neutral arbiter of matters the parties present.” Greenlaw v. United States , 554 U.S. 237 , 243 (2008). Petitioner made astrategic litigation choice, and in our adversarial system, it is not up to this Court to come up with “wrongs to right” on behalf of litigants. Id. , at 244 (internal quotation marks omitted). 23 SFFA is a 501(c)(3) nonprofit organization founded after this Court’s decision in Fisher I , 570 U.S. 297 (2013). App. to Pet. for Cert. in No. 20–1199, p. 10. Its original board of directors had three self-appointed members: Edward Blum, Abigail Fisher (the plaintiff in Fisher ), and Richard Fisher. See ibid. 24 Bypassing the Fourth Circuit’s opportunity to review the District Court’s opinion in the UNC case, SFFA sought certiorari before judgment, urging that, “[p]aired with Harvard ,” the UNC case would “allow the Court to resolve the ongoing validity of race-based admissions under both Title VI and the Constitution.” Pet. for Cert. in No. 21–707, p. 27. 25 Generally speaking, top percentage plans seek to enroll a percentage of the graduating high school students with the highest academic credentials. See, e.g. , Fisher II , 579 U. S., at 373 (describing the University of Texas’ Top Ten Percent Plan). 26 SFFA and Justice Gorsuch reach beyond the factfinding below and argue that universities in States that have banned the use of race in college admissions have achieved racial diversity through efforts such as increasing socioeconomic preferences, so UNC could do the same. Brief for Petitioner 85–86; ante , at 14. Data from those States disprove that theory. Institutions in those States experienced “ ‘an immediate and precipitous decline in the rates at which underrepresented-minority students applied . . . were admitted . . . and enrolled.’ ” Schuette v. BAMN , 572 U.S. 291 , 384–390 (2014) (Sotomayor, J., dissenting); see infra , at 63–64. In addition, UNC “already engages” in race-neutral efforts focused on socioeconomic status, including providing “exceptional levels of financial aid” and “increased and targeted recruiting.” UNC , 567 F. Supp. 3d, at 665. Justice Gorsuch argues that he is simply “recount[ing] what SFFA has argued.” Ante , at 14, n. 4 . That is precisely the point: SFFA’s arguments were not credited by the court below. “[W]e are a court of review, not of first view.” Cutter v. Wilkinson , 544 U.S. 709 , 718, n. 7 (2005). Justice Gorsuch also suggests it is inappropriate for the dissent to respond to the majority by relying on materials beyond the findings of fact below. Ante , at 14, n. 4 . There would be no need for the dissent to do that if the majority stuck to reviewing the District Court’s careful factfinding with the deference it owes to the trial court. Because the majority has made a different choice, the dissent responds. 27 SFFA also argues that Harvard discriminates against Asian American students. Brief for Petitioner 72–75. As explained below, this claim does not fit under Grutter ’s strict scrutiny framework, and the courts below did not err in rejecting that claim. See infra , at 59–60. 28 Justice Gorsuch suggests that only “applicants of certain races may receive a ‘tip’ in their favor.” Ante , at 9. To the extent Justice Gorsuch means that some races are not eligible to receive a tip based on their race, there is no evidence in the record to support this statement. Harvard “does not explicitly prioritize any particular racial group over any other and permits its admissions officers to evaluate the racial and ethnic identity of every student in the context of his or her background and circumstances.” Harvard I , 397 F. Supp. 3d 126, 190, n. 56 (Mass. 2019). 29 Relying on a single footnote in the First Circuit’s opinion, the Court claims that Harvard’s program is unconstitutional because it “has led to an 11.1% decrease in the number of Asian-Americans admitted to Harvard.” Ante , at 27. The Court of Appeals, however, merely noted that the United States, at the time represented by a different administration, argued that “absent the consideration of race, [Asian American] representation would increase from 24% to 27%,” an 11% increase. Harvard II , 980 F. 3d, at 191, n. 29. Taking those calculations as correct, the Court of Appeals recognized that such an impact from the use of race on the overall makeup of the class is consistent with the impact that this Court’s precedents have tolerated. Ibid . The Court also notes that “race is determinative for at least some—if not many—of the students” admitted at UNC. Ante , at 27 . The District Court in the UNC case found that “race plays a role in a very small percentage of decisions: 1.2% for in-state students and 5.1% for out-of-state students.” 567 F. Supp. 3d 580, 634 (MDNC 2021). The limited use of race at UNC thus has a smaller effect than at Harvard and is also consistent with the Court’s precedents. In addition, contrary to the majority’s suggestion, such effect does not prove that “race alone . . . explains the admissions decisions for hundreds if not thousands of applicants to UNC each year.” Ante, at 28, n. 6. As the District Court found, UNC (like Harvard) “engages a highly individualized, holistic review of each applicant’s file, which considers race flexibly as a ‘plus factor’ as one among many factors in its individualized consideration of each and every applicant.” 567 F. Supp. 3d, at 662; see id., at 658 (finding that UNC “rewards different kinds of diversity, and evaluates a candidate withinthe context of their lived experience”); id., at 659 (“The parties stipulated, and the evidence shows, that readers evaluate applicants by taking into consideration dozens of criteria,” and even SFFA’s expert “concede[d] that the University’s admissions process is individualized and holistic”). Stated simply, race is not “a defining feature of any individual application.” Id., at 662; see also infra , at 48. 30 The majority does not dispute that it has handpicked data from a truncated period, ignoring the broader context of that data and what the data reflect. Instead, the majority insists that its selected data prove that Harvard’s “precise racial preferences” “operate like clockwork.” Ante , at 31–32, n. 7. The Court’s conclusion that such racial preferences must be responsible for an “unyielding demographic composition of [the]class,” ibid. , misunderstands basic principles of statistics. A number of factors (most notably, the demographic composition of the applicant pool) affect the demographic composition of the entering class. Assume, for example, that Harvard admitted students based solely on standardized test scores. If test scores followed a normal distribution (even with different averages by race) and were relatively constant over time, and if the racial shares of total applicants were also relatively constant over time, one would expect the same “unyielding demographic composition of [the] class.” Ibid. That would be true even though, under that hypothetical scenario, Harvard does not consider race in admissions at all. In other words, the Court’s inference that precise racial preferences must be the cause of relatively constant racial shares of admitted students is specious. 31 In the context of policies that “benefit rather than burden the minority,” the Court has adhered to a strict scrutiny framework despite multiple Members of this Court urging that “the mandate of the Equal Protection Clause” favors applying a less exacting standard of review. Schuette , 572 U. S., at 373–374 (Sotomayor, J., dissenting) (collecting cases). 32 The Court’s “dictum” that Mexican appearance can be one of many factors rested on now-outdated quantitative premises. United States v. Montero-Camargo , 208 F.3d 1122 , 1132 (CA9 2000). 33 Justice Kavanaugh agrees that the effects from the legacy of slav-ery and Jim Crow continue today, citing Justice Marshall’s opinion in Bakke . Ante , at 7 (citing 438 U. S., at 395–402). As explained above, Justice Marshall’s view was that Bakke covered only a portion of the Fourteenth Amendment’s sweeping reach, such that the Court’s higher education precedents must be expanded, not constricted. See 438 U. S.,at 395–402 (opinion dissenting in part). Justice Marshall’s reading of the Fourteenth Amendment does not support Justice Kavanaugh’s and the majority’s opinions. 34 There is no dispute that respondents’ compelling diversity objectives are “substantial, long-standing, and well documented.” UNC , 567 F. Supp. 3d, at 655; Harvard II , 980 F. 3d, at 186–187. SFFA did not dispute below that respondents have a compelling interest in diversity. See id. , at 185; Harvard I , 397 F. Supp. 3d, at 133; Tr. of Oral Arg. in No. 21–707, p. 121. And its expert agreed that valuable educational benefits flow from diversity, including richer and deeper learning, reduced bias, and more creative problem solving. 2 App. in No. 21–707, p. 546. SFFA’s counsel also emphatically disclaimed the issue at trial. 2 App. in No. 20–1199, p. 548 (“Diversity and its benefits are not on trial here”). 35 The Court suggests that promoting the Fourteenth Amendment’s vision of equality is a “radical” claim of judicial power and the equivalent of “pick[ing] winners and losers based on the color of their skin.” Ante , at 38 . The law sometimes requires consideration of race to achieve racial equality. Just like drawing district lines that comply with the Voting Rights Act may require consideration of race along with other demographic factors, achieving racial diversity in higher education requires consideration of race along with “age, economic status, religious and political persuasion, and a variety of other demographic factors.” Shaw v . Reno , 509 U.S. 630 , 646 (1993) (“[R]ace consciousness does not lead inevitably to impermissible race discrimination”). Moreover, in ordering the admission of Black children to all-white schools “with all deliberate speed” in Brown v. Board of Education , 349 U.S. 294 , 301 (1955), this Court did not decide that the Black children should receive an “advantag[e] . . . at the expense of” white children. Ante , at 27 . It simply enforced the Equal Protection Clause by leveling the playing field. 36 Today’s decision is likely to generate a plethora of litigation by disappointed college applicants who think their credentials and personal qualities should have secured them admission. By inviting those challenges, the Court’s opinion promotes chaos and incentivizes universities to convert their admissions programs into inflexible systems focused on mechanical factors, which will harm all students. 37 The Court suggests that the term “Asian American” was developed by respondents because they are “uninterested” in whether Asian American students “are adequately represented.” Ante , at 25; see also ante , at 5 (Gorsuch, J., concurring) (suggesting that “[b]ureaucrats” devised a system that grouped all Asian Americans into a single racial category). That argument offends the history of that term. “The term ‘Asian American’ was coined in the late 1960s by Asian American activists—mostly college students—to unify Asian ethnic groups that shared common experiences of race-based violence and discrimination and to advocate for civil rights and visibility.” Brief for Asian American Legal Defense and Education Fund et al. as Amici Curiae 9 (AALDEF Brief ). 38 Justice Kavanaugh’s reading, in particular, is quite puzzling. Unlike the majority, which concludes that respondents’ programs should have an end point, Justice Kavanaugh suggests that Grutter itself has an expiration date. He agrees that racial inequality persists, ante , at 7–8, but at the same time suggests that race-conscious affirmative action was only necessary in “another generation,” ante , at 4. He attempts to analogize expiration dates of court-ordered injunctions in desegregation cases, ante , at 5, but an expiring injunction does not eliminate the underlying constitutional principle. His musings about different college classes, ante , at 7, n. 1, are also entirely beside the point. Nothing in Grutter ’s analysis turned on whether someone was applying for the class of 2028 or 2032. That reading of Grutter trivializes the Court’s precedent by reducing it to an exercise in managing academic calendars. Grutter is no such thing. 39 Before 2018, Harvard’s admissions procedures were silent on the use of race in connection with the personal rating. Harvard II , 980 F. 3d, at 169. Harvard later modified its instructions to say explicitly that “ ‘an applicant’s race or ethnicity should not be considered in assigning the personal rating.’ ” Ibid. 40 At Harvard, “Asian American applicants are accepted at the same rate as other applicants and now make up more than 20% of Harvard’s admitted classes,” even though “only about 6% of the United States population is Asian American.” Harvard I , 397 F. Supp. 3d, at 203. 41 K. Schaeffer, Pew Research Center, The Changing Face of Congress in 8 Charts (Feb. 7, 2023). 42 See J. Martelli & P. Abels, The Education of a Leader: Educational Credentials and Other Characteristics of Chief Executive Officers, J. of Educ. for Bus. 216 (2010); see also J. Moody, Where the Top Fortune 500 CEOs Attended College, U. S. News & World Report (June 16, 2021). 43 Racial inequality in the pipeline to this institution, too, will deepen. See J. Fogel, M. Hoopes, & G. Liu, Law Clerk Selection and Diversity: Insights From Fifty Sitting Judges of the Federal Courts of Appeals 7–8(2022) (noting that from 2005 to 2017, 85% of Supreme Court law clerks were white, 9% were Asian American, 4% were Black, and 1.5% were Latino, and about half of all clerks during that period graduated from two law schools: Harvard and Yale); Brief for American Bar Association as Amicus Curiae 25 (noting that more than 85% of lawyers, more than 70% of Article III judges, and more than 80% of state judges in the United States are white, even though white people represent about 60% of the population). SUPREME COURT OF THE UNITED STATES _________________ Nos. 20–1199 and 21–707 _________________ STUDENTS FOR FAIR ADMISSIONS, INC., PETITIONER 20–1199 v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE on writ of certiorari to the united states court of appeals for the first circuit STUDENTS FOR FAIR ADMISSIONS, INC., PETITIONER 21–707 v. UNIVERSITY OF NORTH CAROLINA, et al. on writ of certiorari before judgment to the united states court of appeals for the fourth circuit [June 29, 2023] Justice Jackson, with whom Justice Sotomayor and Justice Kagan join, dissenting.[ 1 ]* Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the generations. Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—the “self-evident” truth that all of us are created equal. Yet, today, the Court determines that holistic admissions programs like the one that the University of North Carolina (UNC) has operated, consistent with Grutter v. Bollinger , 539 U.S. 306 (2003), are a problem with respect to achievement of that aspiration, rather than a viable solution (as has long been evident to historians, sociologists, and policymakers alike). Justice Sotomayor has persuasively established that nothing in the Constitution or Title VI prohibits institutions from taking race into account to ensure the racial diversity of admits in higher education. I join her opinion without qualification. I write separately to expound upon the universal benefits of considering race in this context, in response to a suggestion that has permeated this legal action from the start. Students for Fair Admissions (SFFA) has maintained, both subtly and overtly, that it is unfair for a college’s admissions process to consider race as one factor in a holistic review of its applicants. See, e.g. , Tr. of Oral Arg. 19. This contention blinks both history and reality in ways too numerous to count. But the response is simple: Our country has never been colorblind. Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally ad- vantaged its applicants fails to acknowledge the well- documented “intergenerational transmission of inequality” that still plagues our citizenry.[ 2 ] It is that inequality that admissions programs such as UNC’s help to address, to the benefit of us all. Because the majority’s judgment stunts that progress without any basis in law, history, logic, or justice, I dissent. I A Imagine two college applicants from North Carolina, John and James. Both trace their family’s North Carolina roots to the year of UNC’s founding in 1789. Both love their State and want great things for its people. Both want to honor their family’s legacy by attending the State’s flagship educational institution. John, however, would be the seventh generation to graduate from UNC. He is White. James would be the first; he is Black. Does the race of these applicants properly play a role in UNC’s holistic merits-based admissions process? To answer that question, “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner , 256 U.S. 345 , 349 (1921). Many chapters of America’s history appear necessary, given the opinions that my colleagues in the majority have issued in this case. Justice Thurgood Marshall recounted the genesis: “Three hundred and fifty years ago, the Negro was dragged to this country in chains to be sold into slavery. Uprooted from his homeland and thrust into bondage for forced labor, the slave was deprived of all legal rights. It was unlawful to teach him to read; he could be sold away from his family and friends at the whim of his master; and killing or maiming him was not a crime. The system of slavery brutalized and dehumanized both master and slave.” Regents of Univ. of Cal. v. Bakke , 438 U.S. 265 , 387–388 (1978). Slavery should have been (and was to many) self- evidently dissonant with our avowed founding principles. When the time came to resolve that dissonance, eleven States chose slavery. With the Union’s survival at stake, Frederick Douglass noted, Black Americans in the South “were almost the only reliable friends the nation had,” and “but for their help . . . the Rebels might have succeeded in breaking up the Union.”[ 3 ] After the war, Senator John Sherman defended the proposed Fourteenth Amendment in a manner that encapsulated our Reconstruction Framers’ highest sentiments: “We are bound by every obligation, by [Black Americans’] service on the battlefield, by their heroes who are buried in our cause, by their patriotism in the hours that tried our country, we are bound to protect them and all their natural rights.”[ 4 ] To uphold that promise, the Framers repudiated this Court’s holding in Dred Scott v. Sandford , 19 How. 393 (1857), by crafting Reconstruction Amendments (and associated legislation) that transformed our Constitution and society.[ 5 ] Even after this Second Founding—when the need to right historical wrongs should have been clear beyond cavil—opponents insisted that vindicating equality in this manner slighted White Americans. So, when the Reconstruction Congress passed a bill to secure all citizens “the same [civil] right[s]” as “enjoyed by white citizens,” 14Stat. 27, President Andrew Johnson vetoed it because it “discriminat[ed] . . . in favor of the negro.”[ 6 ] That attitude, and the Nation’s associated retreat from Reconstruction, made prophesy out of Congressman Thaddeus Stevens’s fear that “those States will all . . . keep up this discrimination, and crush to death the hated freedmen.”[ 7 ] And this Court facilitated that retrenchment.[ 8 ] Not just in Plessy v. Ferguson , 163 U.S. 537 (1896), but “in almost every instance, the Court chose to restrict the scope of the second founding.”[ 9 ] Thus, thirteen years pre- Plessy , in the Civil Rights Cases , 109 U.S. 3 (1883), our predecessors on this Court invalidated Congress’s attempt to enforce the Reconstruction Amendments via the Civil Rights Act of 1875, lecturing that “there must be some stage . . . when [Black Americans] tak[e] the rank of a mere citizen, and ceas[e] to be the special favorite of the laws.” Id ., at 25. But Justice Harlan knew better. He responded: “What the nation, through Congress, has sought to accomplish in reference to [Black people] is—what had already been done in every State of the Union for the white race—to secure and protect rights belonging to them as freemen and citizens; nothing more.” Id. , at 61 (dissenting opinion). Justice Harlan dissented alone. And the betrayal that this Court enabled had concrete effects. Enslaved Black people had built great wealth, but only for enslavers.[ 10 ] No surprise, then, that freedmen leapt at the chance to control their own labor and to build their own financial security.[ 11 ] Still, White southerners often “simply refused to sell land to blacks,” even when not selling was economically foolish.[ 12 ] To bolster private exclusion, States sometimes passed laws forbidding such sales.[ 13 ] The inability to build wealth through that most American of means forced Black people into sharecropping roles, where they somehow always tended to find themselves in debt to the landowner when the growing season closed, with no hope of recourse against the ever-present cooking of the books.[ 14 ] Sharecropping is but one example of race-linked obstacles that the law (and private parties) laid down to hinder the progress and prosperity of Black people. Vagrancy laws criminalized free Black men who failed to work for White landlords.[ 15 ] Many States barred freedmen from hunting or fishing to ensure that they could not live without entering de facto reenslavement as sharecroppers.[ 16 ] A cornucopia of laws ( e.g. , banning hitchhiking, prohibiting encouraging a laborer to leave his employer, and penalizing those who prompted Black southerners to migrate northward) ensured that Black people could not freely seek better lives elsewhere.[ 17 ] And when statutes did not ensure compliance, state-sanctioned (and private) violence did.[ 18 ] Thus emerged Jim Crow—a system that was, as much as anything else, a comprehensive scheme of economic exploitation to replace the Black Codes, which themselves had replaced slavery’s form of comprehensive economic exploitation.[ 19 ] Meanwhile, as Jim Crow ossified, the Federal Government was “giving away land” on the western frontier, and with it “the opportunity for upward mobility and a more secure future,” over the 1862 Homestead Act’s three-quarter-century tenure.[ 20 ] Black people were exceedingly unlikely to be allowed to share in those benefits, which by one calculation may have advantaged approximately 46 million Americans living today.[ 21 ] Despite these barriers, Black people persisted. Their so-called Great Migration northward accelerated during and after the First World War.[ 22 ] Like clockwork, American cities responded with racially exclusionary zoning (and similar policies).[ 23 ] As a result, Black migrants had to pay disproportionately high prices for disproportionately subpar housing.[ 24 ] Nor did migration make it more likely for Black people to access home ownership, as banks would not lend to Black people, and in the rare cases banks would fund home loans, exorbitant interest rates were charged.[ 25 ] With Black people still locked out of the Homestead Act giveaway, it is no surprise that, when the Great Depression arrived, race-based wealth, health, and opportunity gaps were the norm.[ 26 ] Federal and State Governments’ selective intervention further exacerbated the disparities. Consider, for example, the federal Home Owners’ Loan Corporation (HOLC), created in 1933.[ 27 ] HOLC purchased mortgages threatened with foreclosure and issued new, amortized mortgages in their place.[ 28 ] Not only did this mean that recipients of these mortgages could gain equity while paying off the loan, successful full payment would make the recipient a homeowner.[ 29 ] Ostensibly to identify (and avoid) the riskiest recipients, the HOLC “created color-coded maps of every metropolitan area in the nation.”[ 30 ] Green meant safe; red meant risky. And, regardless of class, every neighborhood with Black people earned the red designation.[ 31 ] Similarly, consider the Federal Housing Administration (FHA), created in 1934, which insured highly desirable bank mortgages. Eligibility for this insurance required an FHA appraisal of the property to ensure a low default risk.[ 32 ] But, nationwide, it was FHA’s established policy to provide “no guarantees for mortgages to African Americans, or to whites who might lease to African Americans,” irrespective of creditworthiness.[ 33 ] No surprise, then, that “[b]etween 1934 and 1968, 98 percent of FHA loans went to white Americans,” with whole cities (ones that had a disproportionately large number of Black people due to housing segregation) sometimes being deemed ineligible for FHA intervention on racial grounds.[ 34 ] The Veterans Administration operated similarly.[ 35 ] One more example: the Federal Home Loan Bank Board “chartered, insured, and regulated savings and loan associations from the early years of the New Deal.”[ 36 ] But it did “not oppose the denial of mortgages to African Americans until 1961” (and even then opposed discrimination ineffectively).[ 37 ] The upshot of all this is that, due to government policy choices, “[i]n the suburban-shaping years between 1930 and 1960, fewer than one percent of all mortgages in the nation were issued to African Americans.”[ 38 ] Thus, based on their race, Black people were “[l]ocked out of the greatest mass-based opportunity for wealth accumulation in American history.”[ 39 ] For present purposes, it is significant that, in so excluding Black people, government policies affirmatively operated—one could say, affirmatively acted—to dole out preferences to those who, if nothing else, were not Black. Those past preferences carried forward and are reinforced today by (among other things) the benefits that flow to homeowners and to the holders of other forms of capital that are hard to obtain unless one already has assets.[ 40 ] This discussion of how the existing gaps were formed is merely illustrative, not exhaustive. I will pass over Congress’s repeated crafting of family-, worker-, and retiree-protective legislation to channel benefits to White people, thereby excluding Black Americans from what was otherwise “a revolution in the status of most working Americans.”[ 41 ] I will also skip how the G. I. Bill’s “creation of . . . middle-class America” (by giving $95 billion to veterans and their families between 1944 and 1971) was “deliberately designed to accommodate Jim Crow.”[ 42 ] So, too, will I bypass how Black people were prevented from partaking in the consumer credit market—a market that helped White people who could access it build and protect wealth.[ 43 ] Nor will time and space permit my elaborating how local officials’ racial hostility meant that even those benefits that Black people could formally obtain were unequally distributed along racial lines.[ 44 ] And I could not possibly discuss every way in which, in light of this history, facially race-blind policies still work race-based harms today ( e.g. , racially disparate tax-system treatment; the disproportionate location of toxic-waste facilities in Black communities; or the deliberate action of governments at all levels in designing interstate highways to bisect and segregate Black urban communities).[ 45 ] The point is this: Given our history, the origin of persistent race-linked gaps should be no mystery. It has never been a deficiency of Black Americans’ desire or ability to, in Frederick Douglass’s words, “stand on [their] own legs.”[ 46 ] Rather, it was always simply what Justice Harlan recognized 140 years ago—the persistent and pernicious denial of “what had already been done in every State of the Union for the white race.” Civil Rights Cases , 109 U. S., at 61 (dissenting opinion). B History speaks. In some form, it can be heard forever. The race-based gaps that first developed centuries ago are echoes from the past that still exist today. By all accounts, they are still stark. Start with wealth and income. Just four years ago, in 2019, Black families’ median wealth was approximately $24,000.[ 47 ] For White families, that number was approximately eight times as much (about $188,000).[ 48 ] These wealth disparities “exis[t] at every income and education level,” so, “[o]n average, white families with college degrees have over $300,000 more wealth than black families with college degrees.”[ 49 ] This disparity has also accelerated over time—from a roughly $40,000 gap between White and Black household median net worth in 1993 to a roughly $135,000 gap in 2019.[ 50 ] Median income numbers from 2019 tell the same story: $76,057 for White households, $98,174 for Asian households, $56,113 for Latino households, and $45,438 for Black households.[ 51 ] These financial gaps are unsurprising in light of the link between home ownership and wealth. Today, as was true 50 years ago, Black home ownership trails White home ownership by approximately 25 percentage points.[ 52 ] Moreover, Black Americans’ homes (relative to White Americans’) constitute a greater percentage of household wealth, yet tend to be worth less, are subject to higher effective property taxes, and generally lost more value in the Great Recession.[ 53 ] From those markers of social and financial unwellness flow others. In most state flagship higher educational institutions, the percentage of Black undergraduates is lower than the percentage of Black high school graduates in that State.[ 54 ] Black Americans in their late twenties are about half as likely as their White counterparts to have college degrees.[ 55 ] And because lower family income and wealth force students to borrow more, those Black students who do graduate college find themselves four years out with about $50,000 in student debt—nearly twice as much as their White compatriots.[ 56 ] As for postsecondary professional arenas, despite being about 13% of the population, Black people make up only about 5% of lawyers.[ 57 ] Such disparity also appears in the business realm: Of the roughly 1,800 chief executive officers to have appeared on the well-known Fortune 500 list, fewer than 25 have been Black (as of 2022, only six are Black).[ 58 ] Furthermore, as the COVID–19 pandemic raged, Black-owned small businesses failed at dramatically higher rates than White-owned small businesses, partly due to the disproportionate denial of the forgivable loans needed to survive the economic downturn.[ 59 ] Health gaps track financial ones. When tested, Black children have blood lead levels that are twice the rate of White children—“irreversible” contamination working irremediable harm on developing brains.[ 60 ] Black (and Latino) children with heart conditions are more likely to die than their White counterparts.[ 61 ] Race-linked mortality-rate disparity has also persisted, and is highest among infants.[ 62 ] So, too, for adults: Black men are twice as likely to die from prostate cancer as White men and have lower 5-year cancer survival rates.[ 63 ] Uterine cancer has spiked in recent years among all women—but has spiked highest for Black women, who die of uterine cancer at nearly twice the rate of “any other racial or ethnic group.”[ 64 ] Black mothers are up to four times more likely than White mothers to die as a result of childbirth.[ 65 ] And COVID killed Black Americans at higher rates than White Americans.[ 66 ] “Across the board, Black Americans experience the highest rates of obesity, hypertension, maternal mortality, infant mortality, stroke, and asthma.”[ 67 ] These and other disparities—the predictable result of opportunity disparities—lead to at least 50,000 excess deaths a year for Black Americans vis-à-vis White Americans.[ 68 ] That is 80 million excess years of life lost from just 1999 through 2020.[ 69 ] Amici tell us that “race-linked health inequities pervad[e] nearly every index of human health” resulting “in an overall reduced life expectancy for racial and ethnic minorities that cannot be explained by genetics.”[ 70 ] Meanwhile—tying health and wealth together—while she lays dying, the typical Black American “pay[s] more for medical care and incur[s] more medical debt.”[ 71 ] C We return to John and James now, with history in hand. It is hardly John’s fault that he is the seventh generation to graduate from UNC. UNC should permit him to honor that legacy. Neither, however, was it James’s (or his family’s) fault that he would be the first. And UNC ought to be able to consider why. Most likely, seven generations ago, when John’s family was building its knowledge base and wealth potential on the university’s campus, James’s family was enslaved and laboring in North Carolina’s fields. Six generations ago, the North Carolina “Redeemers” aimed to nullify the results of the Civil War through terror and violence, marauding in hopes of excluding all who looked like James from equal citizenship.[ 72 ] Five generations ago, the North Carolina Red Shirts finished the job.[ 73 ] Four (and three) generations ago, Jim Crow was so entrenched in the State of North Carolina that UNC “enforced its own Jim Crow regulations.”[ 74 ] Two generations ago, North Carolina’s Governor still railed against “ ‘integration for integration’s sake’ ”—and UNC Black enrollment was minuscule.[ 75 ] So, at bare minimum, one generation ago, James’s family was six generations behind because of their race, making John’s six generations ahead. These stories are not every student’s story. But they are many students’ stories. To demand that colleges ignore race in today’s admissions practices—and thus disregard the fact that racial disparities may have mattered for where some applicants find themselves today—is not only an affront to the dignity of those students for whom race matters.[ 76 ] It also condemns our society to never escape the past that explains how and why race matters to the very concept of who “merits” admission. Permitting (not requiring) colleges like UNC to assess merit fully, without blinders on, plainly advances (not thwarts) the Fourteenth Amendment’s core promise. UNC considers race as one of many factors in order to best assess the entire unique import of John’s and James’s individual lives and inheritances on an equal basis . Doing so involves acknowledging (not ignoring) the seven generations’ worth of historical privileges and disadvantages that each of these applicants was born with when his own life’s journey started a mere 18 years ago. II Recognizing all this, UNC has developed a holistic review process to evaluate applicants for admission. Students must submit standardized test scores and other conventional information.[ 77 ] But applicants are not required to submit demographic information like gender and race.[ 78 ] UNC considers whatever information each applicant submits using a nonexhaustive list of 40 criteria grouped into eight categories: “academic performance, academic program, standardized testing, extracurricular activity, special talent, essay criteria, background, and personal criteria.”[ 79 ] Drawing on those 40 criteria, a UNC staff member evaluating John and James would consider, with respect to each, his “engagement outside the classroom; persistence of commitment; demonstrated capacity for leadership; contributions to family, school, and community; work history; [and his] unique or unusual interests.”[ 80 ] Relevant, too, would be his “relative advantage or disadvantage, as indicated by family income level, education history of family members, impact of parents/guardians in the home, or formal education environment; experience of growing up in rural or center-city locations; [and his] status as child or step-child of Carolina alumni.”[ 81 ] The list goes on. The process is holistic, through and through. So where does race come in? According to UNC’s admissions-policy document, reviewers may also consider “the race or ethnicity of any student” (if that information is provided) in light of UNC’s interest in diversity.[ 82 ] And, yes, “the race or ethnicity of any student may—or may not—receive a ‘plus’ in the evaluation process depending on the individual circumstances revealed in the student’s application.”[ 83 ] Stephen Farmer, the head of UNC’s Office of Undergraduate Admissions, confirmed at trial (under oath) that UNC’s admissions process operates in this fashion.[ 84 ] Thus, to be crystal clear: Every student who chooses to disclose his or her race is eligible for such a race-linked plus, just as any student who chooses to disclose his or her unusual interests can be credited for what those interests might add to UNC. The record supports no intimation to the contrary. Eligibility is just that; a plus is never automatically awarded, never considered in numerical terms, and never automatically results in an offer of admission.[ 85 ] There are no race-based quotas in UNC’s holistic review process.[ 86 ] In fact, during the admissions cycle, the school prevents anyone who knows the overall racial makeup of the admitted-student pool from reading any applications.[ 87 ] More than that, every applicant is also eligible for a diversity-linked plus (beyond race) more generally.[ 88 ] And, notably, UNC understands diversity broadly, including “socioeconomic status, first-generation college status . . . political beliefs, religious beliefs . . . diversity of thoughts, experiences, ideas, and talents.”[ 89 ] A plus, by its nature, can certainly matter to an admissions case. But make no mistake: When an applicant chooses to disclose his or her race, UNC treats that aspect of identity on par with other aspects of applicants’ identity that affect who they are (just like, say, where one grew up, or medical challenges one has faced).[ 90 ] And race is considered alongside any other factor that sheds light on what attributes applicants will bring to the campus and whether they are likely to excel once there.[ 91 ] A reader of today’s majority opinion could be forgiven for misunderstanding how UNC’s program really works, or for missing that, under UNC’s holistic review process, a White student could receive a diversity plus while a Black student might not.[ 92 ] UNC does not do all this to provide handouts to either John or James. It does this to ascertain who among its tens of thousands of applicants has the capacity to take full advantage of the opportunity to attend, and contribute to, this prestigious institution, and thus merits admission.[ 93 ] And UNC has concluded that ferreting this out requires understanding the full person, which means taking seriously not just SAT scores or whether the applicant plays the trumpet, but also any way in which the applicant’s race-linked experience bears on his capacity and merit. In this way, UNC is able to value what it means for James, whose ancestors received no race-based advantages, to make himself competitive for admission to a flagship school nevertheless. Moreover, recognizing this aspect of James’s story does not preclude UNC from valuing John’s legacy or any obstacles that his story reflects. So, to repeat: UNC’s program permits, but does not require, admissions officers to value both John’s and James’s love for their State, their high schools’ rigor, and whether either has overcome obstacles that are indicative of their “persistence of commitment.”[ 94 ] It permits, but does not require, them to value John’s identity as a child of UNC alumni (or, perhaps, if things had turned out differently, as a first-generation White student from Appalachia whose family struggled to make ends meet during the Great Recession). And it permits, but does not require, them to value James’s race—not in the abstract, but as an element of who he is, no less than his love for his State, his high school courses, and the obstacles he has overcome. Understood properly, then, what SFFA caricatures as an unfair race-based preference cashes out, in a holistic system, to a personalized assessment of the advantages and disadvantages that every applicant might have received by accident of birth plus all that has happened to them since. It ensures a full accounting of everything that bears on the individual’s resilience and likelihood of enhancing the UNC campus. It also forecasts his potential for entering the wider world upon graduation and making a meaningful contribution to the larger, collective, societal goal that the Equal Protection Clause embodies (its guarantee that the United States of America offers genuinely equal treatment to every person, regardless of race). Furthermore, and importantly, the fact that UNC’s holistic process ensures a full accounting makes it far from clear that any particular applicant of color will finish ahead of any particular nonminority applicant. For example, as the District Court found, a higher percentage of the most academically excellent in-state Black candidates (as SFFA’s expert defined academic excellence) were denied admission than similarly qualified White and Asian American applicants.[ 95 ] That, if nothing else, is indicative of a genuinely holistic process; it is evidence that, both in theory and in practice, UNC recognizes that race—like any other aspect of a person—may bear on where both John and James start the admissions relay, but will not fully determine whether either eventually crosses the finish line. III A The majority seems to think that race blindness solves the problem of race-based disadvantage. But the irony is that requiring colleges to ignore the initial race-linked opportunity gap between applicants like John and James will inevitably widen that gap, not narrow it. It will delay the day that every American has an equal opportunity to thrive, regardless of race. SFFA similarly asks us to consider how much longer UNC will be able to justify considering race in its admissions process. Whatever the answer to that question was yesterday, today’s decision will undoubtedly extend the duration of our country’s need for such race consciousness, because the justification for admissions programs that account for race is inseparable from the race-linked gaps in health, wealth, and well-being that still exist in our society (the closure of which today’s decision will forestall). To be sure, while the gaps are stubborn and pernicious, Black people, and other minorities, have generally been doing better.[ 96 ] But those improvements have only been made possible because institutions like UNC have been willing to grapple forthrightly with the burdens of history. SFFA’s complaint about the “indefinite” use of race-conscious admissions programs, then, is a non sequitur. These programs respond to deep-rooted, objectively measurable problems; their definite end will be when we succeed, together, in solving those problems. Accordingly, while there are many perversities of today’s judgment, the majority’s failure to recognize that programs like UNC’s carry with them the seeds of their own destruction is surely one of them. The ultimate goal of recognizing James’s full story and (potentially) admitting him to UNC is to give him the necessary tools to contribute to closing the equity gaps discussed in Part I, supra , so that he, his progeny—and therefore all Americans—can compete without race mattering in the future. That intergenerational project is undeniably a worthy one. In addition, and notably, that end is not fully achieved just because James is admitted. Schools properly care about preventing racial isolation on campus because research shows that it matters for students’ ability to learn and succeed while in college if they live and work with at least some other people who look like them and are likely to have similar experiences related to that shared characteristic.[ 97 ] Equally critical, UNC’s program ensures that students who don’t share the same stories (like John and James) will interact in classes and on campus, and will thereby come to understand each other’s stories, which amici tell us improves cognitive abilities and critical- thinking skills, reduces prejudice, and better prepares students for postgraduate life.[ 98 ] Beyond campus, the diversity that UNC pursues for the betterment of its students and society is not a trendy slogan. It saves lives. For marginalized communities in North Carolina, it is critically important that UNC and other area institutions produce highly educated professionals of color. Research shows that Black physicians are more likely to accurately assess Black patients’ pain tolerance and treat them accordingly (including, for example, prescribing them appropriate amounts of pain medication).[ 99 ] For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.[ 100 ] Studies also confirm what common sense counsels: Closing wealth disparities through programs like UNC’s—which, beyond diversifying the medical profession, open doors to every sort of opportunity—helps address the aforementioned health disparities (in the long run) as well.[ 101 ] Do not miss the point that ensuring a diverse student body in higher education helps everyone , not just those who, due to their race, have directly inherited distinct disadvantages with respect to their health, wealth, and well- being. Amici explain that students of every race will come to have a greater appreciation and understanding of civic virtue, democratic values, and our country’s commitment to equality.[ 102 ] The larger economy benefits, too: When it comes down to the brass tacks of dollars and cents, ensuring diversity will, if permitted to work, help save hundreds of billions of dollars annually (by conservative estimates).[ 103 ] Thus, we should be celebrating the fact that UNC, once a stronghold of Jim Crow, has now come to understand this. The flagship educational institution of a former Confederate State has embraced its constitutional obligation to afford genuine equal protection to applicants, and, by extension, to the broader polity that its students will serve after graduation. Surely that is progress for a university that once engaged in the kind of patently offensive race- dominated admissions process that the majority decries. With its holistic review process, UNC now treats race as merely one aspect of an applicant’s life, when race played a totalizing, all-encompassing, and singularly determinative role for applicants like James for most of this country’s history: No matter what else was true about him, being Black meant he had no shot at getting in (the ultimate race-linked uneven playing field). Holistic programs like UNC’s reflect the reality that Black students have only relatively recently been permitted to get into the admissions game at all. Such programs also reflect universities’ clear-eyed optimism that, one day, race will no longer matter. So much upside. Universal benefits ensue from holistic admissions programs that allow consideration of all factors material to merit (including race), and that thereby facilitate diverse student populations. Once trained, those UNC students who have thrived in the university’s diverse learning environment are well equipped to make lasting contributions in a variety of realms and with a variety of colleagues, which, in turn, will steadily decrease the salience of race for future generations. Fortunately, UNC and other institutions of higher learning are already on this beneficial path. In fact, all that they have needed to continue moving this country forward (toward full achievement of our Nation’s founding promises) is for this Court to get out of the way and let them do their jobs. To our great detriment, the majority cannot bring itself to do so. B The overarching reason the majority gives for becoming an impediment to racial progress—that its own conception of the Fourteenth Amendment’s Equal Protection Clause leaves it no other option—has a wholly self-referential, two-dimensional flatness. The majority and concurring opinions rehearse this Court’s idealistic vision of racial equality, from Brown forward, with appropriate lament for past indiscretions. See, e.g. , ante , at 11. But the race-linked gaps that the law (aided by this Court) previously founded and fostered—which indisputably define our present reality—are strangely absent and do not seem to matter. With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces “colorblindness for all” by legal fiat. But deeming race irrelevant in law does not make it so in life. And having so detached itself from this country’s actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems. No one benefits from ignorance. Although formal race-linked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes things worse, not better. The best that can be said of the majority’s perspective is that it proceeds (ostrich-like) from the hope that preventing consideration of race will end racism. But if that is its motivation, the majority proceeds in vain. If the colleges of this country are required to ignore a thing that matters, it will not just go away. It will take longer for racism to leave us. And, ultimately, ignoring race just makes it matter more.[ 104 ] The only way out of this morass—for all of us—is to stare at racial disparity unblinkingly, and then do what evidence and experts tell us is required to level the playing field and march forward together, collectively striving to achieve true equality for all Americans. It is no small irony that the judgment the majority hands down today will forestall the end of race-based disparities in this country, making the colorblind world the majority wistfully touts much more difficult to accomplish. *  *  * As the Civil War neared its conclusion, General William T. Sherman and Secretary of War Edwin Stanton convened a meeting of Black leaders in Savannah, Georgia. During the meeting, someone asked Garrison Frazier, the group’s spokesperson, what “freedom” meant to him. He answered, “ ‘placing us where we could reap the fruit of our own labor, and take care of ourselves . . . to have land, and turn it and till it by our own labor.’ ”[ 105 ] Today’s gaps exist because that freedom was denied far longer than it was ever afforded. Therefore, as Justice Sotomayor correctly and amply explains, UNC’s holistic review program pursues a righteous end—legitimate “ ‘because it is defined by the Constitution itself. The end is the maintenance of freedom.’ ” Jones v. Alfred H. Mayer Co. , 392 U.S. 409 , 443–444 (1968) (quoting Cong. Globe, 39th Cong., 1st Sess., 1118 (1866) (Rep. Wilson)). Viewed from this perspective, beleaguered admissions programs such as UNC’s are not pursuing a patently unfair, ends-justified ideal of a multiracial democracy at all. Instead, they are engaged in an earnest effort to secure a more functional one. The admissions rubrics they have constructed now recognize that an individual’s “merit”—his ability to succeed in an institute of higher learning and ultimately contribute something to our society—cannot be fully determined without understanding that individual in full. There are no special favorites here. UNC has thus built a review process that more accurately assesses merit than most of the admissions programs that have existed since this country’s founding. Moreover, in so doing, universities like UNC create pathways to upward mobility for long excluded and historically disempowered racial groups. Our Nation’s history more than justifies this course of action. And our present reality indisputably establishes that such programs are still needed—for the general public good—because after centuries of state- sanctioned (and enacted) race discrimination, the aforementioned intergenerational race-based gaps in health, wealth, and well-being stubbornly persist. Rather than leaving well enough alone, today, the majority is having none of it. Turning back the clock (to a time before the legal arguments and evidence establishing the soundness of UNC’s holistic admissions approach existed), the Court indulges those who either do not know our Nation’s history or long to repeat it. Simply put, the race-blind admissions stance the Court mandates from this day forward is unmoored from critical real-life circumstances. Thus, the Court’s meddling not only arrests the noble generational project that America’s universities are attempting, it also launches, in effect, a dismally misinformed sociological experiment. Time will reveal the results. Yet the Court’s own missteps are now both eternally memorialized and excruciatingly plain. For one thing—based, apparently, on nothing more than Justice Powell’s initial say so—it drastically discounts the primary reason that the racial-diversity objectives it excoriates are needed, consigning race-related historical happenings to the Court’s own analytical dustbin. Also, by latching onto arbitrary timelines and professing insecurity about missing metrics, the Court sidesteps unrefuted proof of the compelling benefits of holistic admissions programs that factor in race (hard to do, for there is plenty), simply proceeding as if no such evidence exists. Then, ultimately, the Court surges to vindicate equality, but Don Quixote style—pitifully perceiving itself as the sole vanguard of legal high ground when, in reality, its perspective is not constitutionally compelled and will hamper the best judgments of our world-class educational institutions about who they need to bring onto their campuses right now to benefit every American, no matter their race.[ 106 ] The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom (a particularly awkward place to land, in light of the history the majority opts to ignore).[ 107 ] It would be deeply unfortunate if the Equal Protection Clause actually demanded this perverse, ahistorical, and counterproductive outcome. To impose this result in that Clause’s name when it requires no such thing, and to thereby obstruct our collective progress toward the full realization of the Clause’s promise, is truly a tragedy for us all. Notes 1 *Justice Jackson did not participate in the consideration or decision of the case in No. 20–1199, and issues this opinion with respect to the case in No. 21–707. 2 M. Oliver & T. Shapiro, Black Wealth/White Wealth: A New Perspective on Racial Inequality 128 (1997) (Oliver & Shapiro) (emphasis deleted). 3 An Appeal to Congress for Impartial Suffrage, Atlantic Monthly (Jan. 1867), in 2 The Reconstruction Amendments: The Essential Documents 324 (K. Lash ed. 2021) (Lash). 4 Speech of Sen. John Sherman (Sept. 28, 1866) (Sherman), in id ., at 276; see also W. Du Bois, Black Reconstruction in America 162 (1998) (Du Bois). 5 See Sherman 276; M. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 48, 71–75, 91, 173 (1986). 6 Message Accompanying Veto of the Civil Rights Bill (Mar. 27, 1866), in Lash 145. 7 Speech Introducing the [Fourteenth] Amendment (May 8, 1866), in id. , at 159; see Du Bois 670–710. 8 E. Foner, The Second Founding 125–167 (2019) (Foner). 9 Id ., at 128. 10 M. Baradaran, The Color of Money: Black Banks and the Racial Wealth Gap 9–11 (2017) (Baradaran). 11 Foner 179; see also Baradaran 15–16; I. Wilkerson, The Warmth of Other Suns: The Epic Story of America’s Great Migration 37 (2010) (Wilkerson). 12 Baradaran 18. 13 Ibid. 14 R. Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America 154 (2017) (Rothstein); Baradaran 33–34; Wilkerson 53–55. 15 Baradaran 20–21; Du Bois 173–179, 694–696, 698–699; R. Goluboff, The Thirteenth Amendment and the Lost Origins of Civil Rights, 50 Duke L. J. 1609, 1656–1659 (2001) (Goluboff ); Wilkerson 152 (noting persistence of this practice “well into the 1940s”). 16 Baradaran 20. 17 Goluboff 1656–1659 (recounting presence of these practices well into the 20th century); Wilkerson 162–163. 18 Rothstein 154. 19 C. Black, The Lawfulness of the Segregation Decisions, 69 Yale L. J. 421, 424 (1960); Foner 47–48; Du Bois 179, 696; Baradaran 38–39. 20 T. Shanks, The Homestead Act: A Major Asset-Building Policy in American History, in Inclusion in the American Dream: Assets, Poverty, and Public Policy 23–25 (M. Sherraden ed. 2005) (Shanks); see also Baradaran 18. 21 Shanks 32–37; Oliver & Shapiro 37–38. 22 Wilkerson 8–10; Rothstein 155. 23 Id ., at 43–50; Baradaran 90–92. 24 Ibid. ; Rothstein 172–173; Wilkerson 269–271. 25 Baradaran 90. 26 I. Katznelson, When Affirmative Action Was White: An Untold History of Racial Inequality in Twentieth-Century America 29–35 (2005) (Katznelson). 27 D. Massey & N. Denton, American Apartheid: Segregation and the Making of the Underclass 51–53 (1993); Oliver & Shapiro 16–18. 28 Rothstein 63. 29 Id ., at 63–64. 30 Id. , at 64; see Oliver & Shapiro 16–18; Baradaran 105. 31 Rothstein 64. 32 Ibid. 33 Id ., at 67. 34 Baradaran 108; see Rothstein 69–75. 35 Id. , at 9, 13, 70. 36 Id. , at 108. 37 Ibid . 38 R. Schragger, The Limits of Localism, 100 Mich. L. Rev. 371, 411, n. 144 (2001); see also Rothstein 182–183. 39 Oliver & Shapiro 18. 40 Id ., at 43–44; Baradaran 109, 253–254; A. Dickerson, Shining a Bright Light on the Color of Wealth, 120 Mich. L. Rev. 1085, 1100 (2022) (Dickerson). 41 Katznelson 53; see id. , at 22, 29, 42–48, 53–61; Rothstein 31, 155–156. 42 Katznelson 113–114; see id. , at 113–141; see also, e.g. , id. , at 139–140 (Black veterans, North and South, were routinely denied loans that White veterans received); Rothstein 167. 43 Baradaran 112–113. 44 Katznelson 22–23; Rothstein 167. 45 Id. , at 54–56, 65, 127–131, 217; Stanford Institute for Economic Policy Research, Measuring and Mitigating Disparities in Tax Audits 1–7 (2023); Dickerson 1096–1097. 46 What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, in 4 The Frederick Douglass Papers 68 (J. Blassingame & J. McKivigan eds. 1991). 47 Dickerson 1086 (citing data from 2019 Federal Reserve Survey of Consumer Finances); see also Rothstein 184 (reporting, in 2017, even lower median-wealth number of $11,000). 48 Dickerson 1086; see also Rothstein 184 (reporting even larger relative gap in 2017 of $134,000 to $11,000). 49 Baradaran 249; see also Dickerson 1089–1090; Oliver & Shapiro 94–95, 100–101, 110–111, 197. 50 See Brief for National Academy of Education as Amicus Curiae 14–15 (citing U. S. Census Bureau statistics). 51 Id. , at 14 (citing U. S. Census Bureau statistics); Rothstein 184 (reporting similarly stark White/Black income gap numbers in 2017). Early returns suggest that the COVID–19 pandemic exacerbated these disparities. See E. Derenoncourt, C. Kim, M. Kuhn, & M. Schularick, Wealth of Two Nations: The U. S. Racial Wealth Gap, 1860–2020, p. 22 (Fed. Reserve Bank of Minneapolis, Opportunity & Inclusive Growth Inst., Working Paper No. 59, June 2022) (Wealth of Two Nations); L. Bollinger & G. Stone, A Legacy of Discrimination: The Essential Constitutionality of Affirmative Action 103 (2023) (Bollinger & Stone). 52 Id. , at 87; Wealth of Two Nations 77–79. 53 Id ., at 78, 89; Bollinger & Stone 94–95; Dickerson 1101. 54 Bollinger & Stone 99–100. 55 Id. , at 99, and n. 58. 56 Dickerson 1088; Bollinger & Stone 100, and n. 63. 57 ABA, Profile of the Legal Profession 33 (2020). 58 Bollinger & Stone 106; Brief for HR Policy Association as Amicus Curiae 18–19. 59 Dickerson 1102. 60 Rothstein 230. 61 Brief for Association of American Medical Colleges et al. as Amici Curiae 8 (AMC Brief ). 62 C. Caraballo et al., Excess Mortality and Years of Potential Life Lost Among the Black Population in the U. S., 1999–2020, 329 JAMA 1662, 1663, 1667 (May 16, 2023) (Caraballo). 63 Bollinger & Stone 101. 64 S. Whetstone et al., Health Disparities in Uterine Cancer: Report From the Uterine Cancer Evidence Review Conference, 139 Obstetrics & Gynecology 645, 647–648 (2022). 65 AMC Brief 8–9. 66 Bollinger & Stone 101; Caraballo 1663–1665, 1668. 67 Bollinger & Stone 101 (footnotes omitted). 68 Caraballo 1667. 69 Ibid. 70 AMC Brief 9. 71 Bollinger & Stone 100. 72 See Report on the Alleged Outrages in the Southern States, S. Rep. No. 1, 42d Cong., 1st Sess., I–XXXII (1871). 73 See D. Tokaji, Realizing the Right To Vote: The Story of Thornburg v. Gingles , in Election Law Stories 133–139 (J. Douglas & E. Mazo eds. 2016); see Foner xxii. 74 3 App. 1683. 75 Id ., at 1687–1688. 76 See O. James, Valuing Identity, 102 Minn. L. Rev. 127, 162 (2017); P. Karlan & D. Levinson, Why Voting Is Different, 84 Cal. L. Rev. 1201, 1217 (1996). 77 567 F. Supp. 3d 580, 595 (MDNC 2021). 78 Id. , at 596; 1 App. 348; Decl. of J. Rosenberg in No. 1:14–cv–954 (MDNC, Jan. 18, 2019), ECF Doc. 154–7, ¶10 (Rosenberg). 79 1 App. 350; see also 3 id. , at 1414–1415. 80 Id. , at 1414. 81 Id ., at 1415. 82 Id. , at 1416; see also 2 id. , at 706; Rosenberg ¶22. 83 3 App. 1416 (emphasis added); see also 2 id. , at 631–639. 84 567 F. Supp. 3d, at 591, 595; 2 App. 638 (Farmer, when asked how race could “b[e] a potential plus” for “students other than underrepresented minority students,” pointing to a North Carolinian applicant, originally from Vietnam, who identified as “Asian and Montagnard”); id. , at 639 (Farmer stating that “the whole of [that student’s] background was appealing to us when we evaluated her applicatio[n],” and noting how her “story reveals sometimes how hard it is to separate race out from other things that we know about a student. That was integral to that student’s story. It was part of our understanding of her, and it played a role in our deciding to admit her”). 85 3 id. , at 1416; Rosenberg ¶25. 86 2 App. 631. 87 Id. , at 636–637, 713. 88 3 id. , at 1416; 2 id. , at 699–700. 89 Id. , at 699; see also Rosenberg ¶24. 90 2 App. 706, 708; 3 id. , at 1415–1416. 91 2 id. , at 706, 708; 3 id. , at 1415–1416. 92 A reader might miss this because the majority does not bother todrill down on how UNC’s holistic admissions process operates. Perhaps that explains its failure to apprehend (by reviewing the evidence presented at trial) that everyone, no matter their race, is eligible for a diversity-linked plus. Compare ante , at 5, and n. 1, with 3 App. 1416, and supra , at 17. The majority also repeatedly mischaracterizes UNC’s holistic admissions-review process as a “race-based admissions system,” and insists that UNC’s program involves “separating students on the basis of race” and “pick[ing only certain] races to benefit.” Ante , at 5, and n. 1, 26, 38. These claims would be concerning if they had any basis in the record. The majority appears to have misunderstood (or categorically rejected) the established fact that UNC treats race as merely one of the many aspects of an applicant that, in the real world, matter to understanding the whole person. Moreover, its holistic review process involves reviewing a wide variety of personal criteria, not just race. Every applicant competes against thousands of other applicants, each of whom has personal qualities that are taken into account and that other applicants do not—and could not—have. Thus, the elimination of the race-linked plus would still leave SFFA’s members competing against thousands of other applicants to UNC, each of whom has potentially plus-conferring qualities that a given SFFA member does not. 93 See 3 App. 1409, 1414, 1416. 94 Id. , at 1414–1415. 95 See 567 F. Supp. 3d, at 617, 619; 3 App. 1078–1080. The majority cannot deny this factual finding. Instead, it conducts its own back-of-the-envelope calculations (its numbers appear nowhere in the District Court’s opinion) regarding “the overall acceptance rates of academically excellent applicants to UNC,” in an effort to trivialize the District Court’s conclusion. Ante , at 5, n. 1. I am inclined to stick with the District Court’s findings over the majority’s unauthenticated calculations. Even when the majority’s ad hoc statistical analysis is taken at face value, it hardly supports what the majority wishes to intimate: that Black students are being admitted based on UNC’s myopic focus on “race—and race alone.” Ante , at 28, n. 6. As the District Court observed, if these Black students “were largely defined in the admissions process by their race, one would expect to find that every ” such student “demonstrating academic excellence . . . would be admitted.” 567 F. Supp. 3d, at 619 (emphasis added). Contrary to the majority’s narrative, “race does not even act as a tipping point for some students with otherwise exceptional qualifications.” Ibid. Moreover, as the District Court also found, UNC does not even use the bespoke “academic excellence” metric that SFFA’s expert “ ‘invented’ ” for this litigation. Id. , at 617, 619; see also id. , at 624–625. The majority’s calculations of overall acceptance rates by race on that metric bear scant relationship to, and thus are no indictment of, how UNC’s admissions process actually works (a recurring theme in its opinion). 96 See Bollinger & Stone 86, 103. 97 See, e.g. , Brief for University of Michigan as Amicus Curiae 6, 24; Brief for President and Chancellors of University of California as Amici Curiae 20–29; Brief for American Psychological Association et al. as Amici Curiae 14–16, 21–23 (APA Brief ). 98 Id. , at 14–20, 23–27. 99 AMC Brief 4, 14; see also Brief for American Federation of Teachers as Amicus Curiae 10 (AFT Brief ) (collecting further studies on the “tangible benefits” of patients’ access to doctors who look like them). 100 AMC Brief 4. 101 National Research Council, New Horizons in Health: An Integrative Approach 100–111 (2001); Pollack et al., Should Health Studies Measure Wealth? A Systematic Review, 33 Am. J. Preventative Med. 250, 252, 261–263 (2007); see also Part I–B, supra . 102 See APA Brief 14–20, 23–27 (collecting studies); AFT Brief 11–12 (same); Brief for National School Boards Association et al. as Amici Curiae 6–11 (same); see also 567 F. Supp. 3d, at 592–593, 655–656 (factual findings in this case with respect to these benefits). 103 LaVeist et al., The Economic Burden of Racial, Ethnic, and Educational Health Inequities in the U. S., 329 JAMA 1682, 1683–1684, 1689, 1691 (May 16, 2023). 104 Justice Thomas’s prolonged attack, ante , at 49–55 (concurring opinion), responds to a dissent I did not write in order to assail an admissions program that is not the one UNC has crafted. He does not dispute any historical or present fact about the origins and continued existence of race-based disparity (nor could he), yet is somehow persuaded that these realities have no bearing on a fair assessment of “individual achievement,” ante , at 51. Justice Thomas’s opinion also demonstrates an obsession with race consciousness that far outstrips my or UNC’s holistic understanding that race can be a factor that affects applicants’ unique life experiences. How else can one explain his detection of “an organizing principle based on race,” a claim that our society is “fundamentally racist,” and a desire for Black “victimhood” or racial “silo[s],” ante , at 49–52, in this dissent’s approval of an admissions program that advances all Americans’ shared pursuit of true equality by treating race “on par with” other aspects of identity, supra , at 18? Justice Thomas ignites too many more straw men to list, or fully extinguish, here. The takeaway is that those who demand that no one think about race (a classic pink-elephant paradox) refuse to see, much less solve for, the elephant in the room—the race-linked disparities that continue to impede achievement of our great Nation’s full potential. Worse still, by insisting that obvious truths be ignored, they prevent our problem-solving institutions from directly addressing the real import and impact of “social racism” and “government-imposed racism,” ante , at 55 (Thomas, J., concurring), thereby deterring our collective progression toward becoming a society where race no longer matters. 105 Foner 179. 106 Justice Sotomayor has fully explained why the majority’s analysis is legally erroneous and how UNC’s holistic review program is entirely consistent with the Fourteenth Amendment. My goal here has been to highlight the interests at stake and to show that holistic admissions programs that factor in race are warranted, just, and universally beneficial. All told, the Court’s myopic misunderstanding of what the Constitution permits will impede what experts and evidence tell us is required (as a matter of social science) to solve for pernicious race-based inequities that are themselves rooted in the persistent denial of equal protection. “[T]he potential consequences of the [majority’s] approach, as measured against the Constitution’s objectives . . . provides further reason to believe that the [majority’s] approach is legally unsound.” Parents Involved in Community Schools v. Seattle School Dist. No. 1 , 551 U.S. 701 , 858 (2007) (Breyer, J., dissenting). I fear that the Court’s folly brings our Nation to the brink of coming “full circle” once again. Regents of Univ. of Cal. v. Bakke , 438 U.S. 265 , 402 (1978) (opinion of Marshall, J.). 107 Compare ante , at 22, n. 4, with ante , at 22–30, and supra , at 3–4, and nn. 2–3.

The Supreme Court considered the admissions processes of Harvard College and the University of North Carolina, which take race into account as one of several factors. The Court evaluated the legality of these processes under the Equal Protection Clause of the Fourteenth Amendment. The Court's opinion, delivered by Chief Justice Roberts, acknowledged the highly selective nature of Harvard's admissions, where an applicant's race can influence their chances of admission. The Court's decision addressed the use of race as a factor in university admissions, with Justice Thomas dissenting and Justice Sotomayor providing a counterargument.

Lawsuits & Legal Procedures

Lavender v. Kurn

https://supreme.justia.com/cases/federal/us/327/645/

U.S. Supreme Court Lavender v. Kurn, 327 U.S. 645 (1946) Lavender v. Kurn No. 550 Argued March 6, 7, 1946 Decided March 25, 1946 327 U.S. 645 CERTIORARI TO THE SUPREME COURT OF MISSOURI Syllabus 1. In this action under the Federal Employers' Liability Act, the evidence of the defendants' negligence (detailed in the opinion) was sufficient to justify submission of the case to the jury, and the judgment of the appellate court setting aside the verdict for the plaintiff cannot be sustained. P. 327 U. S. 652 . 2. There being a reasonable basis in the record for an inference by the jury that the injury resulted from the defendants' negligence, it is not within the province of the appellate court to weigh the conflicting evidence, judge the credibility of witnesses, and arrive at a conclusion opposite from that reached by the jury. P. 327 U. S. 652 . 3. In suits under the Federal Employers' Liability Act, the appellate court's function is exhausted when the evidentiary basis for the jury's verdict becomes apparent, it being immaterial that the court might draw a contrary inference or consider another conclusion more reasonable. P. 327 U. S. 653 . 4. Only when there is a complete absence of probative facts to support the conclusion reached by the jury does reversible error appear. P. 327 U. S. 653 . 5. The jury could reasonably have inferred from the evidence in this case that the place at which the employee of the carrier was working, though technically a public street, was unsafe, and that this circumstance contributed in part to the employee's death. P. 327 U. S. 653 . 6. In actions under the Federal Employers' Liability Act, rulings on the admissibility of evidence must normally be left to the sound discretion of the trial judge. P. 327 U. S. 654 . 354 Mo.196, 189 S.W.2d 253, reversed. In a suit brought in a state court under the Federal Employers' Liability Act by petitioner against the respondents, Page 327 U. S. 646 a judgment for the petitioner was reversed by the Supreme Court of the State. This Court granted certiorari. 326 U.S. 713. Reversed, p. 327 U. S. 654 . MR. JUSTICE MURPHY delivered the opinion of the Court. The Federal Employers' Liability Act permits recovery for personal injuries to an employee of a railroad engaged in interstate commerce if such injuries result "in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." 45 U.S.C. § 51. Petitioner, the administrator of the estate of L. E. Haney, brought this suit under the Act against the respondent trustees of the St. Louis-San Francisco Railway Company (Frisco) and the respondent Illinois Central Railroad Company. It was charged that Haney, while employed as a switchtender by the respondents in the switchyard of the Grand Central Station in Memphis, Tennessee, was killed as a result of respondents' negligence. Following a trial in the Circuit Court of the City of St. Louis, Missouri, the jury returned a verdict in favor of petitioner, and awarded damages in the amount of Page 327 U. S. 647 $30,000. Judgment was entered accordingly. On appeal, however, the Supreme Court of Missouri reversed the judgment, holding that there was no substantial evidence of negligence to support the submission of the case to the jury. 189 S.W.2d 253. We granted certiorari, 326 U.S. 713, to review the propriety of the Supreme Court's action under the circumstances of this case. It was admitted that Haney was employed by the Illinois Central, or a subsidiary corporation thereof, as a switchtender in the railroad yards near the Grand Central Station, which was owned by the Illinois Central. His duties included the throwing of switches for the Illinois Central, as well as for the Frisco and other railroads using that station. For these services, the trustees of Frisco paid the Illinois Central two-twelfths of Haney's wages; they also paid two-twelfths of the wages of two other switch-tenders who worked at the same switches. In addition, the trustees paid Illinois Central $1.87 1/2 for each passenger car switched into Grand Central Station, which included all the cars in the Frisco train being switched into the station at the time Haney was killed. The Illinois Central tracks run north and south directly past and into the Grand Central Station. About 2,700 feet south of the station, the Frisco tracks cross at right angles to the Illinois Central tracks. A westbound Frisco train wishing to use the station must stop some 250 feet or more west of this crossing and back into the station over a switch line curving east and north. The events in issue center about the switch several feet north of the main Frisco tracks at the point where the switch line branches off. This switch controls the tracks at this point. It was very dark on the evening of December 21, 1939. At about 7:30 p.m., a westbound interstate Frisco passenger train stopped on the Frisco main line, its rear some 20 or 30 feet west of the switch. Haney, in the performance of his duties, threw or opened the switch to permit Page 327 U. S. 648 the train to back into the station. The respondents claimed that Haney was then required to cross to the south side of the track before the train passed the switch, and the conductor of the train testified that he saw Haney so cross. But there was also evidence that Haney's duties required him to wait at the switch north of the track until the train had cleared, close the switch, return to his shanty near the crossing, and change the signals from red to green to permit trains on the Illinois Central tracks to use the crossing. The Frisco train cleared the switch, backing at the rate of 8 or 10 miles per hour. But the switch remained open, and the signals still were red. Upon investigation, Haney was found north of the track near the switch lying face down on the ground, unconscious. An ambulance was called, but he was dead upon arrival at the hospital. Haney had been struck in the back of the head, causing a fractured skull from which he died. There were no known eyewitnesses to the fatal blow. Although it is not clear, there is evidence that his body was extended north and south, the head to the south. Apparently he had fallen forward to the south; his face was bruised on the left side from hitting the ground, and there were marks indicating that his toes had dragged a few inches southward as he fell. His head was about 5 1/2 feet north of the Frisco tracks. Estimates ranged from 2 feet to 14 feet as to how far west of the switch he lay. The injury to Haney's head was evidenced by a gash about two inches long from which blood flowed. The back of Haney's white cap had a corresponding black mark about an inch and a half long and an inch wide, running at an angle downward to the right of the center of the back of the head. A spot of blood was later found at a point 3 or 4 feet north of the tracks. The conclusion following an autopsy was that Haney's skull was fractured by "some fast-moving small round object." One of the Page 327 U. S. 649 examining doctors testified that such an object might have been attached to a train backing at the rate of 8 or 10 miles per hour. But he also admitted that the fracture might have resulted from a blow from a pipe or club, or some similar round object, in the hands of an individual. Petitioner's theory is that Haney was struck by the curled end or tip of a mail hook hanging down loosely on the outside of the mail car of the backing train. This curled end was 73 inches above the top of the rail, which was 7 inches high. The overhang of the mail car in relation to the rails was about 2 to 2 1/2 feet. The evidence indicated that, when the mail car swayed or moved around a curve, the mail hook might pivot, its curled end swinging out as much as 12 to 14 inches. The curled end could thus be swung out to a point 3 to 3 1/2 feet from the rail, and about 73 inches above the top of the rail. Both east and west of the switch, however, was an uneven mound of cinders and dirt rising at its highest points 18 to 24 inches above the top of the rails. Witnesses differed as to how close the mound approached the rails, the estimates varying from 3 to 15 feet. But, taking the figures most favorable to the petitioner, the mound extended to a point 6 to 12 inches north of the overhanging side of the mail car. If the mail hook end swung out 12 to 14 inches, it would be 49 to 55 inches above the highest parts of the mound. Haney was 67 1/2 inches tall. If he had been standing on the mound about a foot from the side of the mail car, he could have been hit by the end of the mail hook, the exact point of contact depending upon the height of the mound at the particular point. His wound was about 4 inches below the top of his head, or 63 1/2 inches above the point where he stood on the mound -- well within the possible range of the mail hook end. Respondents' theory is that Haney was murdered. They point to the estimates that the mound was 10 to 15 feet north of the rail, making it impossible for the mail Page 327 U. S. 650 hook end to reach a point of contact with Haney's head. Photographs were placed in the record to support the claim that the ground was level north of the rail for at least 10 feet. Moreover, it appears that the area immediately surrounding the switch was quite dark. Witnesses stated that it was so dark that it was impossible to see a 3-inch pipe 25 feet away. It also appears that many hoboes and tramps frequented the area at night in order to get rides on freight trains. Haney carried a pistol to protect himself. This pistol was found loose under his body by those who came to his rescue. It was testified, however, that the pistol had apparently slipped out of his pocket or scabbard as he fell. Haney's clothes were not disarranged, and there was no evidence of a struggle or fight. No rods, pipes, or weapons of any kind, except Haney's own pistol, were found near the scene. Moreover, his gold watch and diamond ring were still on him after he was struck. Six days later, his unsoiled billfold was found on a high board fence about a block from the place where Haney was struck, and near the point where he had been placed in an ambulance. It contained his social security card and other effects, but no money. His wife testified that he "never carried much money, not very much more than $10." Such were the facts in relation to respondents' theory of murder. Finally, one of the Frisco foremen testified that he arrived at the scene shortly after Haney was found injured. He later examined the fireman's side of the train very carefully, and found nothing sticking out or in disorder. In explaining why he examined this side of the train so carefully, he stated that, while he was at the scene of the accident, "someone said they thought that train No. 106 backing in to Grand Central Station is what struck this man," and that Haney "was supposed to have been struck by something protruding on the side of the train." The foreman testified that these statements were made by an Page 327 U. S. 651 unknown Illinois Central switchman standing near the fallen body of Haney. The foreman admitted that the switchman "didn't see the accident." This testimony was admitted by the trial court over the strenuous objections of respondents' counsel that it was mere hearsay falling outside the res gestae rule. The jury was instructed that Frisco's trustees were liable if it was found that they negligently permitted a rod or other object to extend out from the side of the train as it backed past Haney, and that Haney was killed as the direct result of such negligence, if any. The jury was further told that Illinois Central was liable if it was found that the company negligently maintained an unsafe and dangerous place for Haney to work, in that the ground was high and uneven and the light insufficient and inadequate, and that Haney was injured and killed as a direct result of the said place's being unsafe and dangerous. This latter instruction as to Illinois Central did not require the jury to find that Haney was killed by something protruding from the train. The Supreme Court, in upsetting the jury's verdict against both the Frisco trustees and the Illinois Central, admitted that "It could be inferred from the facts that Haney could have been struck by the mail hook knob if he were standing on the south side of the mound and the mail hook extended out as far as 12 or 14 inches." But it held that "all reasonable minds would agree that it would be mere speculation and conjecture to say that Haney was struck by the mail hook," and that "plaintiff failed to make a submissible case on that question." It also ruled that there "was no substantial evidence that the uneven ground and insufficient light were cause or contributing causes of the death of Haney." Finally, the Supreme Court held that the testimony of the foreman as to the statement made to him by the unknown switchmen was inadmissible under the res gestae rule, since the switchman spoke from what he had heard, rather than from his own knowledge. Page 327 U. S. 652 We hold, however, that there was sufficient evidence of negligence on the part of both the Frisco trustee and the Illinois Central to justify the submission of the case to the jury and to require appellate courts to abide by the verdict rendered by the jury. The evidence we have already detailed demonstrates that there was evidence from which it might be inferred that the end of the mail hook struck Haney in the back of the head -- an inference that the Supreme Court admitted could be drawn. That inference is not rendered unreasonable by the fact that Haney apparently fell forward toward the main Frisco track, so that his head was 5 1/2 feet north of the rail. He may well have been struck and then wandered in a daze to the point where he fell forward. The testimony as to blood marks some distance away from his head lends credence to that possibility, indicating that he did not fall immediately upon being hit. When that is added to the evidence most favorable to the petitioner as to the height and swing-out of the hook, the height and location of the mound, and the nature of Haney's duties, the inference that Haney was killed by the hook cannot be said to be unsupported by probative facts, or to be so unreasonable as to warrant taking the case from the jury. It is true that there is evidence tending to show that it was physically and mathematically impossible for the hook to strike Haney. And there are facts from which it might reasonably be inferred that Haney was murdered. But such evidence has become irrelevant upon appeal, there being a reasonable basis in the record for inferring that the hook struck Haney. The jury having made that inference, the respondents were not free to relitigate the factual dispute in a reviewing court. Under these circumstances, it would be an undue invasion of the jury's historic function for an appellate court to weigh the conflicting evidence, judge the credibility of witnesses, and Page 327 U. S. 653 arrive at a conclusion opposite from the one reached by the jury. See Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54 , 318 U. S. 67 -68; Bailey v. Central Vermont R.R. Co., 319 U. S. 350 , 319 U. S. 353 -354; Tennant v. Peoria & P.U. R. Co., 321 U. S. 29 , 321 U. S. 35 . See also Moore, "Recent Trends in Judicial Interpretation in Railroad Cases Under the Federal Employers' Liability Act," 29 Marquette L.Rev. 73. It is no answer to say that the jury's verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court's function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable. We are unable therefore to sanction a reversal of the jury's verdict against Frisco's trustees. Nor can we approve any disturbance in the verdict as to Illinois Central. The evidence was uncontradicted that it was very dark at the place where Haney was working, and the surrounding ground was high and uneven. The evidence also showed that this area was entirely within the domination and control of Illinois Central, despite the fact that the area was technically located in a public street of the City of Memphis. It was not unreasonable to conclude that these conditions constituted an unsafe and dangerous working place, and that such conditions contributed in part to Haney's death, assuming that it resulted primarily from the mail hook striking his head. Page 327 U. S. 654 In view of the foregoing disposition of the case, it is unnecessary to decide whether the allegedly hearsay testimony was admissible under the res gestae rule. Rulings on the admissibility of evidence must normally be left to the sound discretion of the trial judge in action under the Federal Employers' Liability Act. But inasmuch as there is adequate support in the record for the jury's verdict apart from the hearsay testimony, we need not determine whether that discretion was abused in this instance. The judgment of the Supreme Court of Missouri is reversed, and the case is remanded for whatever further proceedings may be necessary not inconsistent with this opinion. Reversed. THE CHIEF JUSTICE and MR. JUSTICE FRANKFURTER concur in the result. MR. JUSTICE REED dissents. MR. JUSTICE JACKSON took no part in the consideration or decision of this case.

In Lavender v. Kurn, the U.S. Supreme Court ruled that the evidence of the defendants' negligence was sufficient to justify a jury trial and that appellate courts should not overturn jury verdicts if there is reasonable evidence to support them. The case involved a suit under the Federal Employers' Liability Act, where the plaintiff argued that the defendants' negligence led to unsafe working conditions and contributed to the employee's death. The Court held that the jury's verdict should not be disturbed, as there was evidentiary support for their conclusion, even if another conclusion could also be reasonable.

Lawsuits & Legal Procedures

International Shoe Co. v. Washington

https://supreme.justia.com/cases/federal/us/326/310/

U.S. Supreme Court International Shoe v. State of Washington, 326 U.S. 310 (1945) International Shoe v. State of Washington No. 107 Argued November 14, 1945 Decided December 3, 1945 326 U.S. 310 APPEAL FROM THE SUPREME COURT OF WASHINGTON Syllabus Activities within a State of salesmen in the employ of a foreign corporation, exhibiting samples of merchandise and soliciting orders from prospective buyers to be accepted or rejected by the corporation at a point outside the State, were systematic and continuous, and resulted in a large volume of interstate business. A statute of the State requires employers to pay into the state unemployment compensation fund a specified percentage of the wages paid for the services of employees within the State. Held: 1. In view of 26 U.S.C. § 1606(a) , providing that no person shall be relieved from compliance with a state law requiring payments to an unemployment fund on the ground that he is engaged in interstate commerce, the fact that the corporation is engaged in interstate commerce does not relieve it from liability for payments to the state unemployment compensation fund. P. 326 U. S. 315 . 2. The activities in behalf of the corporation render it amenable to suit in courts of the State to recover payments due to the state unemployment compensation fund. P. 326 U. S. 320 . (a) The activities in question established between the State and the corporation sufficient contacts or ties to make it reasonable and just, and in conformity to the due process requirements of the Fourteenth Amendment, for the State to enforce against the corporation an obligation arising out of such activities. P. 326 U. S. 320 . (b) In such a suit to recover payments due to the unemployment compensation fund, service of process upon one of the corporation's salesmen within the State, and notice sent by registered mail to the corporation at its home office, satisfies the requirements of due process. P. 326 U. S. 320 . Page 326 U. S. 311 3. The tax imposed by the state unemployment compensation statute -- construed by the state court, in its application to the corporation, as a tax on the privilege of employing salesmen within the State -- does not violate the due process clause of the Fourteenth Amendment. P. 326 U. S. 321 . 22 Wash. 2d 146, 154 P.2d 801, affirmed. APPEAL from a judgment upholding the constitutionality of a state unemployment compensation statute as applied to the appellant corporation. MR. CHIEF JUSTICE STONE delivered the opinion of the Court. The questions for decision are (1) whether, within the limitations of the due process clause of the Fourteenth Amendment, appellant, a Delaware corporation, has, by its activities in the State of Washington, rendered itself amenable to proceedings in the courts of that state to recover unpaid contributions to the state unemployment compensation fund exacted by state statutes, Washington Unemployment Compensation Act, Washington Revised Statutes, § 9998-103a through § 9998-123a, 1941 Supp., and (2) whether the state can exact those contributions consistently with the due process clause of the Fourteenth Amendment. The statutes in question set up a comprehensive scheme of unemployment compensation, the costs of which are defrayed by contributions required to be made by employers to a state unemployment compensation fund. Page 326 U. S. 312 The contributions are a specified percentage of the wages payable annually by each employer for his employees' services in the state. The assessment and collection of the contributions and the fund are administered by appellees. Section 14(c) of the Act (Wash.Rev.Stat., 1941 Supp., § 9998-114c) authorizes appellee Commissioner to issue an order and notice of assessment of delinquent contributions upon prescribed personal service of the notice upon the employer if found within the state, or, if not so found, by mailing the notice to the employer by registered mail at his last known address. That section also authorizes the Commissioner to collect the assessment by distraint if it is not paid within ten days after service of the notice. By §§ 14e and 6b, the order of assessment may be administratively reviewed by an appeal tribunal within the office of unemployment upon petition of the employer, and this determination is, by § 6i, made subject to judicial review on questions of law by the state Superior Court, with further right of appeal in the state Supreme Court, as in other civil cases. In this case, notice of assessment for the years in question was personally served upon a sales solicitor employed by appellant in the State of Washington, and a copy of the notice was mailed by registered mail to appellant at its address in St. Louis, Missouri. Appellant appeared specially before the office of unemployment, and moved to set aside the order and notice of assessment on the ground that the service upon appellant's salesman was not proper service upon appellant; that appellant was not a corporation of the State of Washington, and was not doing business within the state; that it had no agent within the state upon whom service could be made; and that appellant is not an employer, and does not furnish employment within the meaning of the statute. The motion was heard on evidence and a stipulation of facts by the appeal tribunal, which denied the motion Page 326 U. S. 313 and ruled that appellee Commissioner was entitled to recover the unpaid contributions. That action was affirmed by the Commissioner; both the Superior Court and the Supreme Court affirmed. 22 Wash. 2d 146, 154 P.2d 801. Appellant in each of these courts assailed the statute as applied, as a violation of the due process clause of the Fourteenth Amendment, and as imposing a constitutionally prohibited burden on interstate commerce. The cause comes here on appeal under § 237(a) of the Judicial Code, 28 U.S.C. § 344(a), appellant assigning as error that the challenged statutes, as applied, infringe the due process clause of the Fourteenth Amendment and the commerce clause. The facts, as found by the appeal tribunal and accepted by the state Superior Court and Supreme Court, are not in dispute. Appellant is a Delaware corporation, having its principal place of business in St. Louis, Missouri, and is engaged in the manufacture and sale of shoes and other footwear. It maintains places of business in several states other than Washington, at which its manufacturing is carried on and from which its merchandise is distributed interstate through several sales units or branches located outside the State of Washington. Appellant has no office in Washington, and makes no contracts either for sale or purchase of merchandise there. It maintains no stock of merchandise in that state, and makes there no deliveries of goods in intrastate commerce. During the years from 1937 to 1940, now in question, appellant employed eleven to thirteen salesmen under direct supervision and control of sales managers located in St. Louis. These salesmen resided in Washington; their principal activities were confined to that state, and they were compensated by commissions based upon the amount of their sales. The commissions for each year totaled more than $31,000. Appellant supplies its salesmen with a line of samples, each consisting of one shoe of a pair, which Page 326 U. S. 314 they display to prospective purchasers. On occasion, they rent permanent sample rooms, for exhibiting samples, in business buildings, or rent rooms in hotels or business buildings temporarily for that purpose. The cost of such rentals is reimbursed by appellant. The authority of the salesmen is limited to exhibiting their samples and soliciting orders from prospective buyers, at prices and on terms fixed by appellant. The salesmen transmit the orders to appellant's office in St. Louis for acceptance or rejection, and, when accepted, the merchandise for filling the orders is shipped f.o.b. from points outside Washington to the purchasers within the state. All the merchandise shipped into Washington is invoiced at the place of shipment, from which collections are made. No salesman has authority to enter into contracts or to make collections. The Supreme Court of Washington was of opinion that the regular and systematic solicitation of orders in the state by appellant's salesmen, resulting in a continuous flow of appellant's product into the state, was sufficient to constitute doing business in the state so as to make appellant amenable to suit in its courts. But it was also of opinion that there were sufficient additional activities shown to bring the case within the rule, frequently stated, that solicitation within a state by the agents of a foreign corporation plus some additional activities there are sufficient to render the corporation amenable to suit brought in the courts of the state to enforce an obligation arising out of its activities there. International Harvester Co. v. Kentucky, 234 U. S. 579 , 234 U. S. 587 ; People's Tobacco Co. v. American Tobacco Co., 246 U. S. 79 , 246 U. S. 87 ; Frene v. Louisville Cement Co., 77 U.S.App.D.C. 129, 134 F.2d 511, 516. The court found such additional activities in the salesmen's display of samples sometimes in permanent display rooms, and the salesmen's residence within the state, continued over a period of years, all resulting in a Page 326 U. S. 315 substantial volume of merchandise regularly shipped by appellant to purchasers within the state. The court also held that the statute, as applied, did not invade the constitutional power of Congress to regulate interstate commerce, and did not impose a prohibited burden on such commerce. Appellant's argument, renewed here, that the statute imposes an unconstitutional burden on interstate commerce need not detain us. For 53 Stat. 1391, 26 U.S.C. § 1606(a) provides that "No person required under a State law to make payments to an unemployment fund shall be relieved from compliance therewith on the ground that he is engaged in interstate or foreign commerce, or that the State law does not distinguish between employees engaged in interstate or foreign commerce and those engaged in intrastate commerce." It is no longer debatable that Congress, in the exercise of the commerce power, may authorize the states, in specified ways, to regulate interstate commerce or impose burdens upon it. Kentucky Whip & Collar Co. v. Illinois Central R. Co., 299 U. S. 334 ; Perkins v. Pennsylvania, 314 U.S. 586; Standard Dredging Corp. v. Murphy, 319 U. S. 306 , 319 U. S. 308 ; Hooven & Allison Co. v. Evatt, 324 U. S. 652 , 324 U. S. 679 ; Southern Pacific Co. v. Arizona, 325 U. S. 761 , 325 U. S. 769 . Appellant also insists that its activities within the state were not sufficient to manifest its "presence" there, and that, in its absence, the state courts were without jurisdiction, that, consequently, it was a denial of due process for the state to subject appellant to suit. It refers to those cases in which it was said that the mere solicitation of orders for the purchase of goods within a state, to be accepted without the state and filled by shipment of the purchased goods interstate, does not render the corporation seller amenable to suit within the state. See Green v. Chicago, B. & Q. R. Co., 205 U. S. 530 , 205 U. S. 533 ; International Harvester Co. v. Kentucky, supra, 234 U. S. 586 -587; Philadelphia Page 326 U. S. 316 & Reading R. Co. v. McKibbin, 243 U. S. 264 , 243 U. S. 268 ; People's Tobacco Co. v. American Tobacco Co., supra, 246 U. S. 87 . And appellant further argues that, since it was not present within the state, it is a denial of due process to subject it to taxation or other money exaction. It thus denies the power of the state to lay the tax or to subject appellant to a suit for its collection. Historically, the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant's person. Hence, his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U. S. 714 , 95 U. S. 733 . But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that, in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice." Milliken v. Meyer, 311 U. S. 457 , 311 U. S. 463 . See Holmes, J., in McDonald v. Mabee, 243 U. S. 90 , 243 U. S. 91 . Compare Hoopeston Canning Co. v. Cullen, 318 U. S. 313 , 318 U. S. 316 , 318 U. S. 319 . See Blackmer v. United States, 284 U. S. 421 ; Hess v. Pawloski, 274 U. S. 352 ; Young v. Masci, 289 U. S. 253 . , Since the corporate personality is a fiction, although a fiction intended to be acted upon as though it were a fact, Klein v. Board of Supervisors, 282 U. S. 19 , 282 U. S. 24 , it is clear that, unlike an individual, its "presence" without, as well as within, the state of its origin can be manifested only by activities carried on in its behalf by those who are authorized to act for it. To say that the corporation is so far "present" there as to satisfy due process requirements, for purposes of taxation or the maintenance of suits against it in the courts of the state, is to beg the question to be decided. For the terms "present" or "presence" are Page 326 U. S. 317 used merely to symbolize those activities of the corporation's agent within the state which courts will deem to be sufficient to satisfy the demands of due process. L. Hand, J., in Hutchinson v. Chase & Gilbert, 45 F.2d 139, 141. Those demands may be met by such contacts of the corporation with the state of the forum as make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there. An "estimate of the inconveniences" which would result to the corporation from a trial away from its "home" or principal place of business is relevant in this connection. Hutchinson v. Chase & Gilbert, supra, 141. "Presence" in the state in this sense has never been doubted when the activities of the corporation there have not only been continuous and systematic, but also give rise to the liabilities sued on, even though no consent to be sued or authorization to an agent to accept service of process has been given. St. Clair v. Cox, 106 U. S. 350 , 106 U. S. 355 ; Connecticut Mutual Co. v. Spratley, 172 U. S. 602 , 172 U. S. 610 -611; Pennsylvania Lumbermen's Ins. Co. v. Meyer, 197 U. S. 407 , 197 U. S. 414 -415; Commercial Mutual Co. v. Davis, 213 U. S. 245 , 213 U. S. 255 -256; International Harvester Co. v. Kentucky, supra; cf. St. Louis S.W. R. Co. v. Alexander, 227 U. S. 218 . Conversely, it has been generally recognized that the casual presence of the corporate agent, or even his conduct of single or isolated items of activities in a state in the corporation's behalf, are not enough to subject it to suit on causes of action unconnected with the activities there. St. Clair v. Cox, supra, 106 U. S. 359 , 106 U. S. 360 ; Old Wayne Life Assn. v. McDonough, 204 U. S. 8 , 204 U. S. 21 ; Frene v. Louisville Cement Co., supra, 515, and cases cited. To require the corporation in such circumstances to defend the suit away from its home or other jurisdiction where it carries on more substantial activities has been thought to lay too great and unreasonable a burden on the corporation to comport with due process. Page 326 U. S. 318 While it has been held, in cases on which appellant relies, that continuous activity of some sorts within a state is not enough to support the demand that the corporation be amenable to suits unrelated to that activity, Old Wayne Life Assn. v. McDonough, supra; Green v. Chicago, B. & Q. R. Co., supra; Simon v. Southern R. Co., 236 U. S. 115 ; People's Tobacco Co. v. American Tobacco Co., supra; cf. Davis v. Farmers Co-operative Co., 262 U. S. 312 , 262 U. S. 317 , there have been instances in which the continuous corporate operations within a state were thought so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities. See Missouri, K. & T. R. Co. v. Reynolds, 255 U.S. 565; Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 115 N.E. 915; cf. St. Louis S.W. R. Co. v. Alexander, supra. Finally, although the commission of some single or occasional acts of the corporate agent in a state sufficient to impose an obligation or liability on the corporation has not been thought to confer upon the state authority to enforce it, Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U. S. 516 , other such acts, because of their nature and quality and the circumstances of their commission, may be deemed sufficient to render the corporation liable to suit. Cf. Kane v. New Jersey, 242 U. S. 160 ; Hess v. Pawloski, supra; Young v. Masci, supra. True, some of the decisions holding the corporation amenable to suit have been supported by resort to the legal fiction that it has given its consent to service and suit, consent being implied from its presence in the state through the acts of its authorized agents. Lafayette Insurance Co. v. French , 18 How. 404, 59 U. S. 407 ; St. Clair v. Cox, supra, 106 U. S. 356 ; Commercial Mutual Co. v. Davis, supra, 213 U. S. 254 ; Washington v. Superior Court, 289 U. S. 361 , 289 U. S. 364 -365. But, more realistically, it may be said that those authorized acts were of such a nature as to justify the fiction. Smolik v. Philadelphia & Page 326 U. S. 319 Reading Co., 222 F. 148, 151. Henderson, The Position of Foreign Corporations in American Constitutional Law, 94-95. It is evident that the criteria by which we mark the boundary line between those activities which justify the subjection of a corporation to suit and those which do not cannot be simply mechanical or quantitative. The test is not merely, as has sometimes been suggested, whether the activity, which the corporation has seen fit to procure through its agents in another state, is a little more or a little less. St. Louis S.W. R. Co. v. Alexander, supra, 227 U. S. 228 ; International Harvester Co. v. Kentucky, supra, 234 U. S. 587 . Whether due process is satisfied must depend, rather, upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations. Cf. Pennoyer v. Neff, supra; Minnesota Commercial Assn. v. Benn, 261 U. S. 140 . But, to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations, and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue. Compare International Harvester Co. v. Kentucky, supra, with Green v. Chicago, B. & Q. R. Co., supra, and People's Tobacco Co. v. American Tobacco Co., supra. Compare Connecticut Mutual Co. v. Spratley, supra, 172 U. S. 619 , 172 U. S. 620 , and Commercial Mutual Co. v. Davis, supra, with Old Wayne Life Assn. v. McDonough, supra. See 29 Columbia Law Review, 187-195. Page 326 U. S. 320 Applying these standards, the activities carried on in behalf of appellant in the State of Washington were neither irregular nor casual. They were systematic and continuous throughout the years in question. They resulted in a large volume of interstate business, in the course of which appellant received the benefits and protection of the laws of the state, including the right to resort to the courts for the enforcement of its rights. The obligation which is here sued upon arose out of those very activities. It is evident that these operations establish sufficient contacts or ties with the state of the forum to make it reasonable and just, according to our traditional conception of fair play and substantial justice, to permit the state to enforce the obligations which appellant has incurred there. Hence, we cannot say that the maintenance of the present suit in the State of Washington involves an unreasonable or undue procedure. We are likewise unable to conclude that the service of the process within the state upon an agent whose activities establish appellant's "presence" there was not sufficient notice of the suit, or that the suit was so unrelated to those activities as to make the agent an inappropriate vehicle for communicating the notice. It is enough that appellant has established such contacts with the state that the particular form of substituted service adopted there gives reasonable assurance that the notice will be actual. Connecticut Mutual Co. v. Spratley, supra, 172 U. S. 618 , 172 U. S. 619 ; Board of Trade v. Hammond Elevator Co., 198 U. S. 424 , 198 U. S. 437 -438; Commercial Mutual Co. v. Davis, supra, 213 U. S. 254 -255. Cf. Riverside Mills v. Menefee, 237 U. S. 189 , 237 U. S. 194 , 237 U. S. 195 ; See Knowles v. Gaslight & Coke Co. , 19 Wall. 58, 86 U. S. 61 ; McDonald v. Mabee, supra; Milliken v. Meyer, supra. Nor can we say that the mailing of the notice of suit to appellant by registered mail at its home office was not reasonably calculated to apprise appellant of the suit. Compare Hess v. Pawloski, supra, with McDonald v. Mabee, supra, Page 326 U. S. 321 243 U. S. 92 , and Wuchter v. Pizzutti, 276 U. S. 13 , 276 U. S. 19 , 276 U. S. 24 ; cf. Becquet v. MacCarthy, 2 B. & Ad. 951; Maubourquet v. Wyse, 1 Ir.Rep.C.L. 471. See Washington v. Superior Court, supra, 289 U. S. 365 . Only a word need be said of appellant's liability for the demanded contributions to the state unemployment fund. The Supreme Court of Washington, construing and applying the statute, has held that it imposes a tax on the privilege of employing appellant's salesmen within the state measured by a percentage of the wages, here, the commissions payable to the salesmen. This construction we accept for purposes of determining the constitutional validity of the statute. The right to employ labor has been deemed an appropriate subject of taxation in this country and England, both before and since the adoption of the Constitution. Steward Machine Co. v. Davis, 301 U. S. 548 , 301 U. S. 579 , et seq. And such a tax imposed upon the employer for unemployment benefits is within the constitutional power of the states. Carmichael v. Southern Coal Co., 301 U. S. 495 , 301 U. S. 508 , et seq. Appellant having rendered itself amenable to suit upon obligations arising out of the activities of its salesmen in Washington, the state may maintain the present suit in personam to collect the tax laid upon the exercise of the privilege of employing appellant's salesmen within the state. For Washington has made one of those activities which, taken together, establish appellant's "presence" there for purposes of suit the taxable event by which the state brings appellant within the reach of its taxing power. The state thus has constitutional power to lay the tax and to subject appellant to a suit to recover it. The activities which establish its "presence" subject it alike to taxation by the state and to suit to recover the tax. Equitable Life Society v. Pennsylvania, 238 U. S. 143 , 238 U. S. 146 ; cf. International Harvester Co. v. Department of Taxation, 322 U. S. 435 , 322 U. S. 442 , et seq.; Hoopeston Canning Co. v. Cullen, Page 326 U. S. 322 supra, 318 U. S. 316 -319; see General Trading Co. v. Tax Comm'n, 322 U. S. 335 . Affirmed. MR. JUSTICE JACKSON took no part in the consideration or decision of this case. MR. JUSTICE BLACK delivered the following opinion. Congress, pursuant to its constitutional power to regulate commerce, has expressly provided that a State shall not be prohibited from levying the kind of unemployment compensation tax here challenged. 26 U.S.C. 1600. We have twice decided that this Congressional consent is an adequate answer to a claim that imposition of the tax violates the Commerce Clause. Perkins v. Pennsylvania, 314 U.S. 586, affirming 342 Pa. 529; Standard Dredging Corp. v. Murphy, 319 U. S. 306 , 319 U. S. 308 . Two determinations by this Court of an issue so palpably without merit are sufficient. Consequently, that part of this appeal which again seeks to raise the question seems so patently frivolous as to make the case a fit candidate for dismissal. Fay v. Crozer, 217 U. S. 455 . Nor is the further ground advanced on this appeal, that the State of Washington has denied appellant due process of law, any less devoid of substance. It is my view, therefore, that we should dismiss the appeal as unsubstantial, [ Footnote 1 ] Seaboard Air Line R. Co. v. Watson, 287 U. S. 86 , 287 U. S. 90 , 287 U. S. 92 , and decline the invitation to formulate broad rules as to the meaning of due process, which here would amount to deciding a constitutional question "in advance of the necessity for its decision." Federation of Labor v. McAdory, 325 U. S. 450 , 325 U. S. 461 . Page 326 U. S. 323 Certainly appellant cannot, in the light of our past decisions, meritoriously claim that notice by registered mail and by personal service on its sales solicitors in Washington did not meet the requirements of procedural due process. And the due process clause is not brought in issue any more by appellant's further conceptualistic contention that Washington could not levy a tax or bring suit against the corporation because it did not honor that State with its mystical "presence." For it is unthinkable that the vague due process clause was ever intended to prohibit a State from regulating or taxing a business carried on within its boundaries simply because this is done by agents of a corporation organized and having its headquarters elsewhere. To read this into the due process clause would, in fact, result in depriving a State's citizens of due process by taking from the State the power to protect them in their business dealings within its boundaries with representatives of a foreign corporation. Nothing could be more irrational, or more designed to defeat the function of our federative system of government. Certainly a State, at the very least, has power to tax and sue those dealing with its citizens within its boundaries, as we have held before. Hoopeston Canning Co. v. Cullen, 318 U. S. 313 . Were the Court to follow this principle, it would provide a workable standard for cases where, as here, no other questions are involved. The Court has not chosen to do so, but instead has engaged in an unnecessary discussion, in the course of which it has announced vague Constitutional criteria applied for the first time to the issue before us. It has thus introduced uncertain elements confusing the simple pattern and tending to curtail the exercise of State powers to an extent not justified by the Constitution. The criteria adopted, insofar as they can be identified, read as follows: Due Process does permit State courts to "enforce the obligations which appellant has incurred" if Page 326 U. S. 324 it be found "reasonable and just according to our traditional conception of fair play and substantial justice." And this, in turn, means that we will "permit" the State to act if, upon "an 'estimate of the inconveniences' which would result to the corporation from a trial away from its 'home' or principal place of business," we conclude that it is "reasonable" to subject it to suit in a State where it is doing business. It is true that this Court did use the terms "fair play" and "substantial justice" in explaining the philosophy underlying the holding that it could not be "due process of law" to render a personal judgment against a defendant without notice and an opportunity to be heard. Milliken v. Meyer, 311 U. S. 457 . In McDonald v. Mabee, 243 U. S. 90 , 243 U. S. 91 , cited in the Milliken, case, Mr. Justice Holmes, speaking for the Court, warned against judicial curtailment of this opportunity to be heard, and referred to such a curtailment as a denial of "fair play," which even the common law would have deemed "contrary to natural justice." And previous cases had indicated that the ancient rule against judgments without notice had stemmed from "natural justice" concepts. These cases, while giving additional reasons why notice under particular circumstances is inadequate, did not mean thereby that all legislative enactments which this Court might deem to be contrary to natural justice ought to be held invalid under the due process clause. None of the cases purport to support or could support a holding that a State can tax and sue corporations only if its action comports with this Court's notions of "natural justice." I should have thought the Tenth Amendment settled that. I believe that the Federal Constitution leaves to each State, without any "ifs" or "buts," a power to tax and to open the doors of its courts for its citizens to sue corporations whose agents do business in those States. Believing that the Constitution gave the States that power, I think it a judicial deprivation to condition its exercise upon this Page 326 U. S. 325 Court's notion of "fair play," however appealing that term may be. Nor can I stretch the meaning of due process so far as to authorize this Court to deprive a State of the right to afford judicial protection to its citizens on the ground that it would be more "convenient" for the corporation to be sued somewhere else. There is a strong emotional appeal in the words "fair play," "justice," and "reasonableness." But they were not chosen by those who wrote the original Constitution or the Fourteenth Amendment as a measuring rod for this Court to use in invalidating State or Federal laws passed by elected legislative representatives. No one, not even those who most feared a democratic government, ever formally proposed that courts should be given power to invalidate legislation under any such elastic standards. Express prohibitions against certain types of legislation are found in the Constitution, and, under the long-settled practice, courts invalidate laws found to conflict with them. This requires interpretation, and interpretation, it is true, may result in extension of the Constitution's purpose. But that is no reason for reading the due process clause so as to restrict a State's power to tax and sue those whose activities affect persons and businesses within the State, provided proper service can be had. Superimposing the natural justice concept on the Constitution's specific prohibitions could operate as a drastic abridgment of democratic safeguards they embody, such as freedom of speech, press and religion, [ Footnote 2 ] and the right to counsel. This Page 326 U. S. 326 has already happened. Betts v. Brady, 316 U. S. 455 . Compare Feldman v. United States, 322 U. S. 487 , 322 U. S. 494 -503. For application of this natural law concept, whether under the terms "reasonableness," "justice," or "fair play," makes judges the supreme arbiters of the country's laws and practices. Polk Co. v. Glover, 305 U. S. 5 , 305 U. S. 17 -18; Federal Power Commission v. Natural Gas Pipeline Co., 315 U. S. 575 , 315 U. S. 600 , n. 4. This result, I believe, alters the form of government our Constitution provides. I cannot agree. True, the State's power is here upheld. But the rule announced means that tomorrow's judgment may strike down a State or Federal enactment on the ground that it does not conform to this Court's idea of natural justice. I therefore find myself moved by the same fears that caused Mr. Justice Holmes to say in 1930: "I have not yet adequately expressed the more than anxiety that I feel at the ever-increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable." Baldwin v. Missouri, 281 U. S. 586 , 281 U. S. 595 . [ Footnote 1 ] This Court has, on several occasions, pointed out the undesirable consequences of a failure to dismiss frivolous appeals. Salinger v. United States, 272 U. S. 542 , 272 U. S. 544 ; United Surety Co. v. American Fruit Product Co., 238 U. S. 140 ; De Bearn v. Safe Deposit & Trust Co., 233 U. S. 24 , 233 U. S. 33 -34. [ Footnote 2 ] These First Amendment liberties -- freedom of speech, press and religion -- provide a graphic illustration of the potential restrictive capacity of a rule under which they are protected at a particular time only because the Court, as then constituted, believes them to be a requirement of fundamental justice. Consequently, under the same rule, another Court, with a different belief as to fundamental justice, could, at least as against State action, completely or partially withdraw Constitutional protection from these basic freedoms, just as though the First Amendment had never been written.

Here is a summary of the verdict in the case of International Shoe v. State of Washington: The U.S. Supreme Court ruled that a company's sales activities within a state can establish sufficient contacts for that state to exercise jurisdiction over the company, provided the activities are systematic and continuous and result in a substantial volume of business. In this case, International Shoe Co., a Delaware corporation, employed salesmen in Washington State who exhibited samples and solicited orders, which were then accepted or rejected outside the state. The Court held that these activities rendered International Shoe amenable to a lawsuit in Washington State to recover unpaid contributions to the state's unemployment compensation fund. The Court also upheld the state's unemployment compensation statute as applied to the company and found that the service of process and notice satisfied due process requirements.

Lawsuits & Legal Procedures

Gulf Oil Corp. v. Gilbert

https://supreme.justia.com/cases/federal/us/330/501/

U.S. Supreme Court Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) Gulf Oil Corp. v. Gilbert No. 93 Argued December 18, 19, 1946 Decided March 10, 1947 330 U.S. 501 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus 1. A federal district court has power to dismiss an action at law pursuant to the doctrine of forum non conveniens -- at least where its jurisdiction is based on diversity of citizenship and the state courts have such power. Pp. 330 U. S. 502 -509, 330 U. S. 512 . 2. A resident of Virginia brought an action in a federal district court in New York City against a Pennsylvania corporation qualified to do business in both Virginia and New York (where it had designated agents to receive service of process) to recover damages for destruction of plaintiff's public warehouse and its contents in Virginia by fire resulting from defendant's negligence. The court had jurisdiction (based solely on diversity of citizenship), and the venue was correct, but all events in litigation had taken place in Virginia, most of the witnesses resided there, and both state and federal courts in Virginia were available to plaintiff and were able to obtain jurisdiction of defendant. Applying the doctrine of forum non conveniens, the court dismissed the suit. Held: it did not abuse its discretion in doing so. Pp. 330 U. S. 509 -512. 3. Important considerations in the application of the doctrine of forum non conveniens, from the standpoint of litigants, are relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling witnesses, cost of obtaining attendance Page 330 U. S. 502 of willing witnesses, possibility of view of the premises if that be appropriate, and all other practical problems that make trial of a case easy, expeditious, and inexpensive. P. 330 U. S. 508 . 4. Considerations of public interest in applying the doctrine include the undesirability of piling up litigation in congested centers, the burden of jury duty on people of a community having no relation to the litigation, the local interest in having localized controversies decided at home, and the unnecessary injection of problems in conflict of laws. Pp. 330 U. S. 508 -509. 153 F.2d 883, reversed. Applying the doctrine of forum non conveniens, a district court dismissed a tort action in New York arising out of events occurring in Virginia. 62 F. Supp. 291 . The Circuit Court of Appeals reversed. 153 F.2d 883. This Court granted certiorari. 328 U.S. 830. Reversed, p. 330 U. S. 512 . MR. JUSTICE JACKSON delivered the opinion of the Court. The questions are whether the United States District Court has inherent power to dismiss a suit pursuant to the doctrine of forum non conveniens and, if so, whether that power was abused in this case. The respondent-plaintiff brought this action in the Southern District of New York, but resides at Lynchburg, Virginia, where he operated a public warehouse. He alleges that the petitioner-defendant, in violation of the ordinances of Lynchburg, so carelessly handled a delivery of gasoline to his warehouse tanks and pumps as to cause Page 330 U. S. 503 an explosion and fire which consumed the warehouse building to his damage of $41,889.10, destroyed merchandise and fixtures to his damage of $3,602.40, caused injury to his business and profits of $20,038.27, and burned the property of customers in his custody under warehousing agreements to the extent of $300,000. He asks judgment of $365,529.77, with costs and disbursements, and interest from the date of fire. The action clearly is one in tort. The petitioner-defendant is a corporation organized under the laws of Pennsylvania, qualified to do business in both Virginia and New York, and it has designated officials of each state as agents to receive service of process. When sued in New York, the defendant, invoking the doctrine of forum non conveniens, claimed that the appropriate place for trial is Virginia, where the plaintiff lives and defendant does business, where all events in litigation took place, where most of the witnesses reside, and where both state and federal courts are available to plaintiff, and are able to obtain jurisdiction of the defendant. The case, on its merits, involves no federal question, and was brought in the United States District Court solely because of diversity in citizenship of the parties. Because of the character of its jurisdiction and the holdings of and under Erie Railroad Co. v. Tompkins, 304 U. S. 64 , the District Court considered that the law of New York as to forum non conveniens applied, and that it required the case to be left to Virginia courts. [ Footnote 1 ] It therefore dismissed. The Circuit Court of Appeals disagreed as to the applicability of New York law, took a restrictive view of the application of the entire doctrine in federal courts, and, one judge dissenting, reversed. [ Footnote 2 ] The case is here on certiorari. 328 U.S. 830. Page 330 U. S. 504 I It is conceded that the venue statutes of the United States permitted the plaintiff to commence his action in the Southern District of New York, and empower that court to entertain it. [ Footnote 3 ] But that does not settle the question whether it must do so. Indeed, the doctrine of forum non conveniens can never apply if there is absence of jurisdiction or mistake of venue. This Court, in one form of words or another, has repeatedly recognized the existence of the power to decline jurisdiction in exceptional circumstances. As formulated by Mr. Justice Brandeis, the rule is: "Obviously, the proposition that a court having jurisdiction must exercise it is not universally true -- else the admiralty court could never decline jurisdiction on the ground that the litigation is between foreigners. Nor is it true of courts administering other systems of our law. Courts of equity and of law also occasionally decline, in the interest of justice, to exercise jurisdiction where the suit is between aliens or nonresidents, or where, for kindred reasons, the litigation can more appropriately be conducted in a foreign tribunal." Canada Malting Co., Ltd. v. Paterson Steamships, Ltd., 285 U. S. 413 , 285 U. S. 422 -423. We later expressly said that a state court "may, in appropriate cases, apply the doctrine of forum non conveniens. " Broderick v. Rosner, 294 U. S. 629 , 294 U. S. 643 ; Williams v. North Carolina, 317 U. S. 287 , 317 U. S. 294 , n. 5. Even where federal rights binding on state courts under the Constitution are sought to be adjudged, this Court has sustained state courts in a refusal to entertain a litigation between a nonresident and a foreign corporation or between two foreign corporations. Douglas v. New York, N.H. & H. R. Co., 279 U. S. 377 ; Anglo-American Provision Co. v. Page 330 U. S. 505 Davis Provision Co. No. 1, 191 U. S. 373 . It has held the use of an inappropriate forum in one case an unconstitutional burden on interstate commerce. Davis v. Farmers' Cooperative Equity Co., 262 U. S. 312 . On substantially forum non conveniens grounds, we have required federal courts to relinquish decision of cases within their jurisdiction where the court would have to participate in the administrative policy of a state. Railroad Commission v. Rowan & Nichols Oil Co., 311 U. S. 570 ; Burford v. Sun Oil Co., 319 U. S. 315 ; but cf. Meredith v. Winter Haven, 320 U. S. 228 . And, most recently, we decided Williams v. Green Bay & Western R. Co., 326 U. S. 549 , in which the Court, without questioning the validity of the doctrine, held it had been applied in that case without justification. [ Footnote 4 ] It is true that, in cases under the Federal Employers' Liability Act, we have held that plaintiff's choice of a forum cannot be defeated on the basis of forum non conveniens. But this was because the special venue act under which those cases are brought was believed to require it. Baltimore & Ohio R. Co. v. Kepner, 314 U. S. 44 ; Miles v. Illinois Central R. Co., 315 U. S. 698 . Those decisions do not purport to modify the doctrine as to other cases governed by the general venue statutes. Page 330 U. S. 506 But the court below says that "The Kepner case . . . warned against refusal of jurisdiction in a particular case controlled by congressional act; here, the only difference is that congressional act, plus judicial interpretation (under the Neirbo case), spells out the result." 153 F.2d at 885. The Federal Employers' Liability Act, however, which controlled decision in the Kepner case, specifically provides where venue may be had in any suit on a cause of action arising under that statute. What the court below refers to as "congressional act, plus judicial interpretation" is the general statute of venue in diversity suits, plus our decision that it gives the defendant "a personal privilege respecting the venue, or place of suit, which he may assert, or may waive at his election," Neirbo Co. v. Bethlehem Shipbuilding Corp., Ltd., 308 U. S. 165 , 308 U. S. 168 . The Federal Employers' Liability Act, as interpreted by Kepner, increases the number of places where the defendant may be sued, and makes him accept the plaintiff's choice. The Neirbo case is only a declaration that, if the defendant, by filing consent to be sued, waives its privilege to be sued at its place of residence, it may be sued in the federal courts at the place where it has consented to be sued. But the general venue statute plus the Neirbo interpretation do not add up to a declaration that the court must respect the choice of the plaintiff, no matter what the type of suit or issues involved. The two, taken together, mean only that the defendant may consent to be sued, and it is proper for the federal court to take jurisdiction, not that the plaintiff's choice cannot be questioned. The defendant's consent to be sued extends only to give the court jurisdiction of the person; it assumes that the court, having the parties before it, will apply all the applicable law, including, in those cases where it is appropriate, its discretionary judgment as to whether the suit should be entertained. In all cases in which the doctrine of forum non conveniens comes into Page 330 U. S. 507 play, it presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them. II The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute. These statutes are drawn with a necessary generality, and usually give a plaintiff a choice of courts, so that he may be quite sure of some place in which to pursue his remedy. But the open door may admit those who seek not simply justice, but perhaps justice blended with some harassment. A plaintiff sometimes is under temptation to resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself. Many of the states have met misuse of venue by investing courts with a discretion to change the place of trial on various grounds, such as the convenience of witnesses and the ends of justice. [ Footnote 5 ] The federal law contains no such express criteria to guide the district court in exercising its power. But the problem is a very old one affecting the administration of the courts as well as the rights of litigants, and, both in England and in this country, the common law worked out techniques and criteria for dealing with it. [ Footnote 6 ] Page 330 U. S. 508 Wisely, it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy. The doctrine leaves much to the discretion of the court to which plaintiff resorts, and experience has not shown a judicial tendency to renounce one's own jurisdiction so strong as to result in many abuses. [ Footnote 7 ] If the combination and weight of factors requisite to given results are difficult to forecast or state, those to be considered are not difficult to name. An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action, and all other practical problems that make trial of a case easy, expeditious, and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, "vex," "harass," or "oppress" the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. [ Footnote 8 ] But, unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community Page 330 U. S. 509 which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach, rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself. The law of New York as to the discretion of a court to apply the doctrine of forum non conveniens, and as to the standards that guide discretion is, so far as here involved, the same as the federal rule. Murnan v. Wabash Ry. Co., 246 N.Y. 244, 158 N.E. 508; Wedemann v. United States Trust Co.. 258 N.Y. 315, 179 N.E. 712; see Gregonis v. Philadelphia & Reading Coal & Iron Co., 235 N.Y. 152, 139 N.E. 223. It would not be profitable therefore to pursue inquiry as to the source from which our rule must flow. III Turning to the question whether this is one of those rather rare cases where the doctrine should be applied, we look first to the interests of the litigants. The plaintiff himself is not a resident of New York, nor did any event connected with the case take place there, nor does any witness with the possible exception of experts live there. No one connected with that side of the case save counsel for the plaintiff resides there, and he has candidly told us that he was retained by insurance companies interested presumably because of subrogation. His affidavits and argument are devoted to controverting claims as to defendant's inconvenience, rather than to showing that the present forum serves any convenience Page 330 U. S. 510 of his own, with one exception. The only justification for trial in New York advanced here is one rejected by the district court and is set forth in the brief as follows: "This Court can readily realize that an action of this type, involving as it does a claim for damages in an amount close to $400,000, is one which may stagger the imagination of a local jury which is surely unaccustomed to dealing with amounts of such a nature. Furthermore, removed from Lynchburg, the respondent will have an opportunity to try this case free from local influences and preconceived notions which make it difficult to procure a jury which has no previous knowledge of any of the facts herein." This unproven premise that jurors of New York live on terms of intimacy with $400,000 transactions is not an assumption we easily make. Nor can we assume that a jury from Lynchburg and vicinity would be "staggered" by contemplating the value of a warehouse building that stood in their region, or of merchandise and fixtures such as were used there, nor are they likely to be staggered by the value of chattels which the people of that neighborhood put in storage. It is a strange argument on behalf of a Virginia plaintiff that the community which gave him patronage to make his business valuable is not capable of furnishing jurors who know the value of the goods they store, the building they are stored in, or the business their patronage creates. And there is no specification of any local influence, other than accurate knowledge of local conditions, that would make a fair trial improbable. The net of this is that we cannot say the District Court was bound to entertain a provincial fear of the provincialism of a Virginia jury. That leaves the Virginia plaintiff without even a suggested reason for transporting this suit to New York. Page 330 U. S. 511 Defendant points out that not only the plaintiff, but every person who participated in the acts charged to be negligent, resides in or near Lynchburg. It also claims a need to interplead an alleged independent contractor which made the delivery of the gasoline and which is a Virginia corporation domiciled in Lynchburg, that it cannot interplead in New York. There also are approximately 350 persons residing in and around Lynchburg who stored with plaintiff the goods for the damage to which he seeks to recover. The extent to which they have left the community since the fire and the number of them who will actually be needed is in dispute. The complaint alleges that defendant's conduct violated Lynchburg ordinances. Conditions are said to require proof by firemen and by many others. The learned and experienced trial judge was not unaware that litigants generally manage to try their cases with fewer witnesses than they predict in such motions as this. But he was justified in concluding that this trial is likely to be long, and to involve calling many witnesses, and that Lynchburg, some 400 miles from New York, is the source of all proofs for either side, with possible exception of experts. Certainly to fix the place of trial at a point where litigants cannot compel personal attendance and may be forced to try their cases on deposition is to create a condition not satisfactory to court, jury, or most litigants. Nor is it necessarily cured by the statement of plaintiff's counsel that he will see to getting many of the witnesses to the trial, and that some of them "would be delighted to come to New York to testify." There may be circumstances where such a proposal should be given weight. In others, the offer may not turn out to be as generous as defendant or court might suppose it to be. Such matters are for the District Court to decide in exercise of a sound discretion. The court likewise could well have concluded that the task of the trial court would be simplified by trial in Virginia. Page 330 U. S. 512 If trial was in a state court, it could apply its own law to events occurring there. If in federal court by reason of diversity of citizenship, the court would apply the law of its own state in which it is likely to be experienced. The course of adjudication in New York federal court might be beset with conflict of laws problems all avoided if the case is litigated in Virginia, where it arose. We are convinced that the District Court did not exceed its powers or the bounds of its discretion in dismissing plaintiff's complaint and remitting him to the courts of his own community. The Circuit Court of Appeals took too restrictive a view of the doctrine as approved by this Court. Its judgment is Reversed. MR. JUSTICE REED and MR. JUSTICE BURTON dissent. They do not set out the factual reasons for their dissent, since the Court's affirmance of Koster v. Lumbermens Mutual casualty Co., 330 U. S. 518 , would control. [ Footnote 1 ] Gilbert v. Gulf Oil Corp., 62 F. Supp. 291 . [ Footnote 2 ] Gilbert v. Gulf Oil Corp., 153 F.2d 883. [ Footnote 3 ] See 28 U.S.C. § 112; Neirbo Co. v. Bethlehem Shipbuilding Corp., Ltd., 308 U. S. 165 . [ Footnote 4 ] The doctrine did not originate in federal, but in state, courts. This Court, in recognizing and approving it by name, has never indicated that it was rejecting application of the doctrine to law actions which had been an integral and necessary part of evolution of the doctrine. And cf. Slater v. Mexican National R. Co., 194 U. S. 120 . Wherever it is applied in courts of other jurisdictions, its application does not depend on whether the action is at law, Collard v. Beach, 93 App.Div. 339, 87 N.Y.S. 884; Murnan v. Wabash Ry. Co., 246 N.Y. 244, 158 N.E. 508; Jackson & Sons v. Lumbermen's Mutual Casualty Co., 86 N.H. 341, 168 A. 895; or in equity, Langfelder v. Universal Laboratories, 293 N.Y. 200, 56 N.E.2d 550; Egbert v. Short, 2 Ch. 250. See footnote 1, Koster v. (American) Lumbermens Mutual Casualty Co., post, 330 U. S. 518 . [ Footnote 5 ] See Foster, Place of Trial -- Interstate Application of Intrastate Methods of Adjustment, 44 Harv.L.Rev. 41, 47, 62. [ Footnote 6 ] See Logan v. Bank of Scotland, [1906] 1 K.B. 141; cf. La Societe du Gaz de Paris v. La Societe Anonyme de Navigation "Les Armateurs Francais," [1926] Sess.Cas. (H.L.) 13. Collard v. Beach, 93 App.Div. 339, 87 N.Y.S. 884; Jackson & Sons v. Lumbermen's Mutual Casualty Co., 86 N.H. 341, 168 A. 895; see Pietraroia v. New Jersey & Hudson R. & Ferry Co., 197 N.Y. 434, 91 N.E. 120; Great Western Railway Co. of Canada v. Miller, 19 Mich. 305. [ Footnote 7 ] See Dainow, The Inappropriate Forum, 29 Ill.L.Rev. 867, 889. [ Footnote 8 ] See Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Col.L.Rev. 1. MR. JUSTICE BLACK, dissenting. The defendant corporation is organized under the laws of Pennsylvania, but is qualified to do business and maintains an office in New York. Plaintiff is an individual residing and doing business in Virginia. The accident in which plaintiff alleges to have been damaged occurred in Lynchburg, Virginia. Plaintiff brought this action in the Federal District Court in New York. Section 11 of the Judiciary Act of 1789, 1 Stat. 78, carried over into the Judicial Code, § 24, 28 U.S.C. § 41(1), confers jurisdiction upon federal district courts of all actions at law between citizens of different states. The Court does not suggest that the federal district court in New York lacks jurisdiction under this statute, or that the venue was improper in this case. 28 U.S.C. § 112. Cf. 308 U. S. v. Page 330 U. S. 513 Bethlehem Shipbuilding Corp., 308 U. S. 165 . But it holds that a district court may abdicate its jurisdiction when a defendant shows to the satisfaction of a district court that it would be more convenient and less vexatious for the defendant if the trial were held in another jurisdiction. Neither the venue statute nor the statute which has governed jurisdiction since 1789 contains any indication or implication that a federal district court, once satisfied that jurisdiction and venue requirements have been met, may decline to exercise its jurisdiction. Except in relation to the exercise of the extraordinary admiralty and equity powers of district courts, this Court has never before held contrary to the general principle that "the courts of the United States are bound to proceed to judgment and to afford redress to suitors before them in every case to which their jurisdiction extends. They cannot abdicate their authority or duty in any case in favor of another jurisdiction." Hyde v. Stone , 20 How. 170, 61 U. S. 175 , quoted with approval in Chicot County v. Sherwood, 148 U. S. 529 , 148 U. S. 534 . See also Dennick v. Railroad Co., 103 U. S. 11 ; Baltimore & O. R. Co. v. Kepner, 314 U. S. 44 ; Evey v. Mexican Cent. R. Co., 81 F. 294. [ Footnote 2/1 ] Never until today has this Court held, in actions for money damages for violations of common law or statutory rights, that a district court can abdicate its statutory duty to exercise its jurisdiction for the alleged convenience of the defendant to a lawsuit. Compare Slater v. Mexican National R. Co., 194 U. S. 120 . For reasons peculiar to the special problems of admiralty and to the extraordinary remedies of equity, the courts exercising admiralty and equity powers have been permitted Page 330 U. S. 514 at times to decline to exercise their jurisdiction. Canada Malting Co. v. Paterson S.S. Co., 285 U. S. 413 ; Rogers v. Guaranty Trust Co., 288 U. S. 123 ; cf. Williams v. Green Bay & W. R. Co., 326 U. S. 549 . This exception is rooted in the kind of relief which these courts grant and the kinds of problems which they solve. See Meredith v. Winter Haven, 320 U. S. 228 , 320 U. S. 235 ; Burford v. Sun Oil Co., 319 U. S. 315 , 319 U. S. 333 n. 29. Courts of equity developed to afford relief where a money judgment in the common law courts provided no adequate remedy for an injured person. [ Footnote 2/2 ] From the beginning of equitable jurisdiction up to now, the chancery courts have generally granted or withheld their special remedies at their discretion, and "courts of admiralty . . . act upon enlarged principles of equity." O'Brien v. Miller, 168 U. S. 287 , 168 U. S. 297 . But this Court has, on many occasions, severely restricted the discretion of district courts to decline to grant even the extraordinary equitable remedies. Meredith v. Winter Haven, supra, and cases there cited, 320 U.S. at 320 U. S. 234 -235. Previously, federal courts have not generally been allowed the broad and indefinite discretion to dispose even of equity cases solely on a trial court's judgment of the relative convenience of the forum for the parties themselves. For a major factor in these equity decisions has been the relative ability of the forum to shape and execute its equitable remedy. Cf. Rogers v. Guaranty Trust Co., supra. Page 330 U. S. 515 No such discretionary authority to decline to decide a case, however, has, before today, been vested in federal courts in actions for money judgments deriving from statutes or the common law. [ Footnote 2/3 ] To engraft the doctrine of forum non conveniens upon the statutes fixing jurisdiction and proper venue in the district courts in such actions seems to me to be far more than the mere filling in of the interstices of those statutes. [ Footnote 2/4 ] It may be that a statute should be passed authorizing the federal district courts to decline to try so-called common law cases according to the convenience of the parties. But whether there should be such a statute, and determination of its scope and the safeguards which should surround it, are, in my judgment, questions of policy which Congress should decide. There are strong arguments presented by the Court in its opinion why federal courts exercising their common law jurisdiction should have the discretionary powers which equity courts have always possessed in dispensing equitable relief. I think equally strong arguments could be advanced to show that they should not. For any individual or corporate defendant who does part of his business in states other than the one in which he Page 330 U. S. 516 is sued will almost invariably be put to some inconvenience to defend himself. It will be a poorly represented multistate defendant who cannot produce substantial evidence and good reasons fitting the rule now adopted by this Court tending to establish that the forum of action against him is most inconvenient. The Court's new rule will thus clutter the very threshold of the federal courts with a preliminary trial of fact concerning the relative convenience of forums. The preliminary disposition of this factual question will, I believe, produce the very kind of uncertainty, confusion, and hardship which stalled and handicapped persons seeking compensation for maritime injuries following this Court's decision in Southern Pacific Co. v. Jensen, 244 U. S. 205 . The broad and indefinite discretion left to federal courts to decide the question of convenience from the welter of factors which are relevant to such a judgment will inevitably produce a complex of close and indistinguishable decisions from which accurate prediction of the proper forum will become difficult, if not impossible. Yet plaintiffs will be asked "to determine with certainty before bringing their actions that factual question over which courts regularly divide among themselves and within their own membership. As penalty for error, the injured individual may not only suffer serious financial loss through the delay and expense of litigation, but discover that his claim has been barred by the statute of limitations in the proper forum while he was erroneously pursuing it elsewhere." Davis v. Department of Labor & Industries, 317 U. S. 249 , 317 U. S. 254 . This very case illustrates the hazards of delay. It must be begun anew in another forum after the District Court, the Circuit Court of Appeals, and now this Court have had their time-consuming say as to the relative convenience of the forum in which the plaintiff chose to seek redress. Whether the statute of limitations has run Page 330 U. S. 517 against the plaintiff we do not know. The convenience which the individual defendant will enjoy from the Court's new rule of forum non conveniens in law actions may be thought to justify its inherent delays, uncertainties, administrative complications, and hardships. But, in any event, Congress has not yet said so, and I do not think that this Court should, 150 years after the passage of the Judiciary Act, fill in what it thinks is a deficiency in the deliberate policy which Congress adopted. [ Footnote 2/5 ] Whether the doctrine of forum non conveniens is good or bad, I should wait for Congress to adopt it. MR. JUSTICE RUTLEDGE joins in this opinion. [ Footnote 2/1 ] In Mondou v. New York, N.H. & H. R. Co., 223 U. S. 1 , 223 U. S. 58 , it was stated that: "The existence of the jurisdiction creates an implication of duty to exercise it, and that its exercise may be onerous, does not militate against that implication." Cf. Douglas v. New York, N.H. & H. R. Co., 279 U. S. 377 , 279 U. S. 388 . [ Footnote 2/2 ] Although the distinction between actions at law and suits in equity in federal courts has been abolished by the adoption of the single form of civil action, Rule 2, F.R.C.P., see 1 Moore, Federal Practice (1938) c. 2, there remains to federal courts the same discretion, no more and no less, in the exercise of special equitable remedies as existed before the adoption of the federal rules. Neither the rules, the statutes, tradition, nor practical considerations justify application of equitable discretion to actions for money judgments based on common law or statutory rights. [ Footnote 2/3 ] This Court, whose jurisdiction is primarily appellate, has held that it need not exercise its constitutionally granted original jurisdiction even at common law where there is another suitable forum. Georgia v. Pennsylvania R. Co., 324 U. S. 439 , 324 U. S. 464 -465. But the Constitution, not Congress, fixes this Court's jurisdiction. And it was this Court's duty to interpret its constitutional jurisdiction. It is the duty of Congress to fix the jurisdiction of the district courts by statute. It did so. It is not the duty of this Court to amend that statute. [ Footnote 2/4 ] "I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions." Holmes, J., dissenting in Southern Pacific Co. v. Jensen, 244 U. S. 205 , 244 U. S. 218 . See also dissenting opinion, State Tax Commission v. Aldrich, 316 U. S. 174 , 316 U. S. 185 , and authorities there collected. [ Footnote 2/5 ] The very law review articles which are relied upon to document this theory of a federal rule of forum non conveniens reveal that judicial adoption of this theory without a new act of Congress would be an unwarranted judicial innovation. Foster, Place of Trial -- Interstate Application of Intrastate Methods of Adjustment, 44 Harv.L.Rev. 41, 52; Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Col.L.Rev. 1, 18. For Instance, it is stated that, "No matter how little dispute there is as to the desirability of such legislation, there is comparatively little chance of overcoming legislative inertia and securing its passage unless some accident happens to focus attention upon it. The best hope is that the courts will feel free to take appropriate action without specific legislation authorizing them to do so." Foster, supra, at 52.

Question: Does a federal district court have the power to dismiss an action at law under the doctrine of forum non conveniens, and if so, was this power abused in this case? Verdict: Yes, a federal district court has the power to dismiss an action at law under the doctrine of forum non conveniens, and the court did not abuse its discretion in doing so in this case. Summary: A Virginia resident sued a Pennsylvania corporation in a New York federal court for damages resulting from a fire in Virginia. The New York federal court applied the doctrine of forum non conveniens and dismissed the case, as all events occurred in Virginia, most witnesses resided there, and Virginia courts had jurisdiction. The Supreme Court upheld the dismissal, citing ease of access to proof, availability of witnesses, and cost considerations as important factors. The Court also noted public interest considerations, including reducing litigation congestion and recognizing local interests in deciding localized controversies.

Lawsuits & Legal Procedures

Hickman v. Taylor

https://supreme.justia.com/cases/federal/us/329/495/

U.S. Supreme Court Hickman v. Taylor, 329 U.S. 495 (1947) Hickman v. Taylor No. 47 Argued November 13, 1946 Decided January 13, 1947 329 U.S. 495 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT Syllabus Under the Federal Rules of Civil Procedure, plaintiff in a suit in a federal district court against certain tug owners to recover for the death of a seaman in the sinking of the tug filed numerous interrogatories directed to the defendants, including one inquiring whether any statements of members of the crew were taken in connection with the accident and requesting that exact copies of all such written statements be attached and that the defendant "set forth in detail the exact provisions of any such oral statements or reports." There was no showing of necessity or other justification for these requests. A public hearing had been held before the United States Steamboat Inspectors at which the survivors of the accident had been examined and their testimony recorded and made available to all interested parties. Defendants answered all other interrogatories, stating objective facts and giving the names and addresses of witnesses, but declined to summarize or set forth the statements taken from witnesses, on the ground that they were "privileged matter obtained in preparation for litigation." After a hearing on objections to the interrogatories, the District Court held that the requested matters were not privileged and decreed that they be produced and that memoranda of defendants' counsel containing statements of fact by witnesses either be produced or submitted to the court for determination of those portions which should be revealed to plaintiff. Defendants and their counsel refused, and were adjudged guilty of contempt. Held: 1. In these circumstances, Rules 26, 33 and 34 of the Federal Rules of Civil Procedure do not require the production as of right of oral and written statements of witnesses secured by an adverse party's counsel in the course of preparation for possible litigation after a claim has arisen. Pp. 329 U. S. 509 -514. 2. Since plaintiff addressed simple interrogatories to adverse parties, did not direct them to such parties or their counsel by way of deposition under Rule 26, and it does not appear that he filed a Page 329 U. S. 496 motion under Rule 34 for a court order directing the production of the documents in question, he was proceeding primarily under Rule 33, relating to interrogatories to parties. P. 329 U. S. 504 . 3. Rules 33 and 34 are limited to parties, thereby excluding their counsel or agents. P. 329 U. S. 504 . 4. Rule 33 did not permit the plaintiff to obtain, as adjuncts to interrogatories addressed to defendants, memoranda and statements prepared by their counsel after a claim had arisen. P. 329 U. S. 504 . 5. The District Court erred in holding defendants in contempt for failure to produce that which was in the possession of their counsel, and in holding their counsel in contempt for failure to produce that which he could not be compelled to produce under either Rule 33 or Rule 34. P. 329 U. S. 505 . 6. Memoranda, statements, and mental impressions prepared or obtained from interviews with witnesses by counsel in preparing for litigation after a claim has arisen are not within the attorney-client privilege, and are not protected from discovery on that basis. P. 329 U. S. 508 . 7. The general policy against invading the privacy of an attorney's course of preparation is so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order. P. 329 U. S. 512 . 8. Rule 30(b) gives the trial judge the requisite discretion to make a judgment as to whether discovery should be allowed as to written statements secured from witnesses; but, in this case, there was no ground for the exercise of that discretion in favor of plaintiff. P. 329 U. S. 512 . 9. Under the circumstances of this case, no showing of necessity could be made which would justify requiring the production of oral statements made by witnesses to defendants' counsel, whether presently in the form of his mental impressions or in the form of memoranda. P. 329 U. S. 512 . 153 F.2d 212 affirmed. A District Court adjudged respondents guilty of contempt for failure to produce, in response to interrogatories, copies of certain written statements and memoranda prepared by counsel in connection with pending litigation. 4 F.R.D. 479. The Circuit Court of Appeals reversed. 153 F.2d 212. This Court granted certiorari. 328 U.S. 876. Affirmed, p. 329 U. S. 514 . Page 329 U. S. 497 MR. JUSTICE MURPHY delivered the opinion of the Court. This case presents an important problem under the Federal Rules of Civil Procedure as to the extent to which a party may inquire into oral and written statements of witnesses, or other information, secured by an adverse party's counsel in the course of preparation for possible litigation after a claim has arisen. Examination into a person's files and records, including those resulting from the professional activities of an attorney, must be judged with care. It is not without reason that various safeguards have been established to preclude unwarranted excursions into the privacy of a man's work. At the same time, public policy supports reasonable and necessary inquiries. Properly to balance these competing interests is a delicate and difficult task. Page 329 U. S. 498 On February 7, 1943, the tug "J. M. Taylor" sank while engaged in helping to tow a car float of the Baltimore & Ohio Railroad across the Delaware River at Philadelphia. The accident was apparently unusual in nature, the cause of it still being unknown. Five of the nine crew members were drowned. Three days later, the tug owners and the underwriters employed a law firm, of which respondent Fortenbaugh is a member, to defend them against potential suits by representatives of the deceased crew members and to sue the railroad for damages to the tug. A public hearing was held on March 4, 1943, before the United States Steamboat Inspectors at which the four survivors were examined. This testimony was recorded and made available to all interested parties. Shortly thereafter, Fortenbaugh privately interviewed the survivors and took statements from them with an eye toward the anticipated litigation; the survivors signed these statements on March 29. Fortenbaugh also interviewed other persons believed to have some information relating to the accident, and in some cases he made memoranda of what they told him. At the time when Fortenbaugh secured the statements of the survivors, representatives of two of the deceased crew members had been in communication with him. Ultimately claims were presented by representatives of all five of the deceased; four of the claims, however, were settled without litigation. The fifth claimant, petitioner herein, brought suit in a federal court under the Jones Act on November 26, 1943, naming as defendants the two tug owners, individually and as partners, and the railroad. One year later, petitioner filed 39 interrogatories directed to the tug owners. The 38th interrogatory read: "State whether any statements of the members of the crews of the Tugs 'J. M. Taylor' and 'Philadelphia' or of any other vessel were taken in connection with the towing of the car float and the sinking of the Tug 'John M. Taylor.' Page 329 U. S. 499 Attach hereto exact copies of all such statements if in writing, and if oral, set forth in detail the exact provisions of any such oral statements or reports." Supplemental interrogatories asked whether any oral or written statements, records, reports, or other memoranda had been made concerning any matter relative to the towing operation, the sinking of the tug, the salvaging and repair of the tug, and the death of the deceased. If the answer was in the affirmative, the tug owners were then requested to set forth the nature of all such records, reports, statements, or other memoranda. The tug owners, through Fortenbaugh, answered all of the interrogatories except No. 38 and the supplemental ones just described. While admitting that statements of the survivors had been taken, they declined to summarize or set forth the contents. They did so on the ground that such requests called "for privileged matter obtained in preparation for litigation," and constituted "an attempt to obtain indirectly counsel's private files." It was claimed that answering these requests "would involve practically turning over not only the complete files, but also the telephone records and, almost, the thoughts, of counsel." In connection with the hearing on these objections, Fortenbaugh made a written statement and gave an informal oral deposition explaining the circumstances under which he had taken the statements. But he was not expressly asked in the deposition to produce the statements. The District Court for the Eastern District of Pennsylvania, sitting en banc, held that the requested matters were not privileged. 4 F.R.D. 479. The court then decreed that the tug owners and Fortenbaugh, as counsel and agent for the tug owners forthwith "answer Plaintiff's 38th interrogatory and supplemental interrogatories; produce all written statements of witnesses obtained by Mr. Fortenbaugh, as counsel and agent for Defendants; Page 329 U. S. 500 state in substance any fact concerning this case which Defendants learned through oral statements made by witnesses to Mr. Fortenbaugh, whether or not included in his private memoranda, and produce Mr. Fortenbaugh's memoranda containing statements of fact by witnesses or to submit these memoranda to the Court for determination of those portions which should be revealed to Plaintiff." Upon their refusal, the court adjudged them in contempt and ordered them imprisoned until they complied. The Third Circuit Court of Appeals, also sitting en banc, reversed the judgment of the District Court. 153 F.2d 212. It held that the information here sought was part of the "work product of the lawyer," and hence privileged from discovery under the Federal Rules of Civil Procedure. The importance of the problem, which has engendered a great divergence of views among district courts, [ Footnote 1 ] led us to grant certiorari. 328 U.S. 876. The pretrial deposition-discovery mechanism established by Rules 26 to 37 is one of the most significant innovations of the Federal Rules of Civil Procedure. Under the prior federal practice, the pretrial functions of notice-giving, issue-formulation, and fact-revelation were performed primarily and inadequately by the pleadings. [ Footnote 2 ] Inquiry into the issues and the facts before trial was Page 329 U. S. 501 narrowly confined, and was often cumbersome in method. [ Footnote 3 ] The new rules, however, restrict the pleadings to the task of general notice-giving, and invest the deposition-discovery process with a vital role in the preparation for trial. The various instruments of discovery now serve (1) as a device, along with the pretrial hearing under Rule 16, to narrow and clarify the basic issues between the parties, and (2) as a device for ascertaining the facts, or information as to the existence or whereabouts of facts, relative to those issues. Thus, civil trials in the federal courts no longer need be carried on in the dark. The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before trial. [ Footnote 4 ] There is an initial question as to which of the deposition-discovery rules is involved in this case. Petitioner, in filing his interrogatories, thought that he was proceeding under Rule 33. That rule provides that a party may serve upon any adverse party written interrogatories to be answered by the party served. [ Footnote 5 ] The District Court proceeded Page 329 U. S. 502 on the same assumption in its opinion, although its order to produce and its contempt order stated that both Rules 33 and 34 were involved. Rule 34 establishes a procedure whereby, upon motion of any party showing good cause therefor and upon notice to all other parties, the court may order any party to produce and permit the inspection and copying or photographing of any designated documents, etc., not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody, or control. [ Footnote 6 ] The Circuit Court of Appeals, however, felt that Rule 26 was the crucial one. Petitioner, it said, was proceeding by interrogatories, and, in connection with those interrogatories, wanted copies of memoranda and statements secured from witnesses. While the court believed that Rule 33 was involved at least as to the defending tug owners, it stated that this rule could not be used as the basis for condemning Fortenbaugh's failure to disclose or produce Page 329 U. S. 503 the memoranda and statements, since the rule applies only to interrogatories addressed to adverse parties, not to their agents or counsel. And Rule 34 was said to be inapplicable since petitioner was not trying to see an original document and to copy or photograph it, within the scope of that rule. The court then concluded that Rule 26 must be the one really involved. That provides that the testimony of any person, whether a party or not, may be taken by any party by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence, and that the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether relating to the claim or defense of the examining party or of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things. [ Footnote 7 ] Page 329 U. S. 504 The matter is not without difficulty in light of the events that transpired below. We believe, however, that petitioner was proceeding primarily under Rule 33. He addressed simple interrogatories solely to the individual tug owners, the adverse parties, as contemplated by that rule. He did not, and could not under Rule 33, address such interrogatories to their counsel, Fortenbaugh. Nor did he direct these interrogatories either to the tug owners or to Fortenbaugh by way of deposition; Rule 26 thus could not come into operation. And it does not appear from the record that petitioner filed a motion under Rule 34 for a court order directing the production of the documents in question. Indeed, such an order could not have been entered as to Fortenbaugh, since Rule 34, like Rule 33, is limited to parties to the proceeding, thereby excluding their counsel or agents. Thus, to the extent that petitioner was seeking the production of the memoranda and statements gathered by Fortenbaugh in the course of his activities as counsel, petitioner misconceived his remedy. Rule 33 did not permit him to obtain such memoranda and statements as adjuncts to the interrogatories addressed to the individual tug owners. A party clearly cannot refuse to answer interrogatories on the ground that the information sought is solely within the knowledge of his attorney. But that is not this case. Here, production was sought of documents prepared by a party's attorney after the claim has arisen. Rule 33 does not make provision for such production, even when sought in connection with permissible interrogatories. Moreover, since petitioner was also foreclosed from securing them through an order under Rule 34, his only recourse was to take Fortenbaugh's deposition under Rule 26 and to attempt to force Fortenbaugh to produce the materials by use of a subpoena duces tecum in accordance with Rule 45. Holtzoff, "Instruments of Discovery under the Federal Rules of Civil Procedure," 41 Page 329 U. S. 505 Mich.L.Rev. 205, 220. But, despite petitioner's faulty choice of action, the District Court entered an order, apparently under Rule 34, commanding the tug owners and Fortenbaugh, as their agent and counsel, to produce the materials in question. Their refusal led to the anomalous result of holding the tug owners in contempt for failure to produce that which was in the possession of their counsel, and of holding Fortenbaugh in contempt for failure to produce that which he could not be compelled to produce under either Rule 33 or Rule 34. But, under the circumstances, we deem it unnecessary and unwise to rest our decision upon this procedural irregularity, an irregularity which is not strongly urged upon us and which was disregarded in the two courts below. It matters little at this later stage whether Fortenbaugh fails to answer interrogatories filed under Rule 26 or under Rule 33 or whether he refuses to produce the memoranda and statements pursuant to a subpoena under Rule 45 or a court order under Rule 34. The deposition-discovery rules create integrated procedural devices. And the basic question at stake is whether any of those devices may be used to inquire into materials collected by an adverse party's counsel in the course of preparation for possible litigation. The fact that the petitioner may have used the wrong method does not destroy the main thrust of his attempt. Nor does it relieve us of the responsibility of dealing with the problem raised by that attempt. It would be inconsistent with the liberal atmosphere surrounding these rules to insist that petitioner now go through the empty formality of pursuing the right procedural device only to reestablish precisely the same basic problem now confronting us. We do not mean to say, however, that there may not be situations in which the failure to proceed in accordance with a specific rule would be important or decisive. But, in the present circumstances, for the purposes of this decision, the procedural Page 329 U. S. 506 irregularity is not material. Having noted the proper procedure, we may accordingly turn our attention to the substance of the underlying problem. In urging that he has a right to inquire into the materials secured and prepared by Fortenbaugh, petitioner emphasizes that the deposition-discovery portions of the Federal Rules of Civil Procedure are designed to enable the parties to discover the true facts, and to compel their disclosure wherever they may be found. It is said that inquiry may be made under these rules, epitomized by Rule 26, as to any relevant matter which is not privileged, and, since the discovery provisions are to be applied as broadly and liberally as possible, the privilege limitation must be restricted to its narrowest bounds. On the premise that the attorney-client privilege is the one involved in this case, petitioner argues that it must be strictly confined to confidential communications made by a client to his attorney. And, since the materials here in issue were secured by Fortenbaugh from third persons, rather than from his clients, the tug owners, the conclusion is reached that these materials are proper subjects for discovery under Rule 26. As additional support for this result, petitioner claims that to prohibit discovery under these circumstances would give a corporate defendant a tremendous advantage in a suit by an individual plaintiff. Thus, in a suit by an injured employee against a railroad or in a suit by an insured person against an insurance company, the corporate defendant could pull a dark veil of secrecy over all the pertinent facts it can collect after the claim arises merely on the assertion that such facts were gathered by its large staff of attorneys and claim agents. At the same time, the individual plaintiff, who often has direct knowledge of the matter in issue and has no counsel until some time after his claim arises, could be compelled to disclose all the intimate details of his case. By endowing with Page 329 U. S. 507 immunity from disclosure all that a lawyer discovers in the course of his duties, it is said, the rights of individual litigants in such cases are drained of vitality, and the lawsuit becomes more of a battle of deception than a search for truth. But framing the problem in terms of assisting individual plaintiffs in their suits against corporate defendants is unsatisfactory. Discovery concededly may work to the disadvantage as well as to the advantage of individual plaintiffs. Discovery, in other words, is not a one-way proposition. It is available in all types of cases at the behest of any party, individual or corporate, plaintiff or defendant. The problem thus far transcends the situation confronting this petitioner. And we must view that problem in light of the limitless situations where the particular kind of discovery sought by petitioner might be used. We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of "fishing expedition" serve to preclude a party from inquiring into the facts underlying his opponent's case. [ Footnote 8 ] Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession. The deposition-discovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, thus reducing the possibility of surprise. But discovery, like all matters of procedure, has ultimate and necessary boundaries. As indicated by Rules 30(b) and (d) and 31(d), limitations inevitably arise when it can be shown Page 329 U. S. 508 that the examination is being conducted in bad faith or in such a manner as to annoy, embarrass, or oppress the person subject to the inquiry. And, as Rule 26(b) provides, further limitations come into existence when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege. We also agree that the memoranda, statements, and mental impressions in issue in this case fall outside the scope of the attorney-client privilege, and hence are not protected from discovery on that basis. It is unnecessary here to delineate the content and scope of that privilege as recognized in the federal courts. For present purposes, it suffices to note that the protective cloak of this privilege does not extend to information which an attorney secures from a witness while acting for his client in anticipation of litigation. Nor does this privilege concern the memoranda, briefs, communications, and other writings prepared by counsel for his own use in prosecuting his client's case, and it is equally unrelated to writings which reflect an attorney's mental impressions, conclusions, opinions, or legal theories. But the impropriety of invoking that privilege does not provide an answer to the problem before us. Petitioner has made more than an ordinary request for relevant, nonprivileged facts in the possession of his adversaries or their counsel. He has sought discovery as of right of oral and written statements of witnesses whose identity is well known and whose availability to petitioner appears unimpaired. He has sought production of these matters after making the most searching inquiries of his opponents as to the circumstances surrounding the fatal accident, which inquiries were sworn to have been answered to the best of their information and belief. Interrogatories were directed toward all the events prior to, during, and subsequent to the sinking of the tug. Full and honest answers to such broad inquiries would necessarily have included all Page 329 U. S. 509 pertinent information gleaned by Fortenbaugh through his interviews with the witnesses. Petitioner makes no suggestion, and we cannot assume, that the tug owners or Fortenbaugh were incomplete or dishonest in the framing of their answers. In addition, petitioner was free to examine the public testimony of the witnesses taken before the United States Steamboat Inspectors. We are thus dealing with an attempt to secure the production of written statements and mental impressions contained in the files and the mind of the attorney Fortenbaugh without any showing of necessity or any indication or claim that denial of such production would unduly prejudice the preparation of petitioner's case or cause him any hardship or injustice. For aught that appears, the essence of what petitioner seeks either has been revealed to him already through the interrogatories or is readily available to him direct from the witnesses for the asking. The District Court, after hearing objections to petitioner's request, commanded Fortenbaugh to produce all written statements of witnesses and to state in substance any facts learned through oral statements of witnesses to him. Fortenbaugh was to submit any memoranda he had made of the oral statements, so that the court might determine what portions should be revealed to petitioner. All of this was ordered without any showing by petitioner, or any requirement that he make a proper showing, of the necessity for the production of any of this material or any demonstration that denial of production would cause hardship or injustice. The court simply ordered production on the theory that the facts sought were material and were not privileged as constituting attorney-client communications. In our opinion, neither Rule 26 nor any other rule dealing with discovery contemplates production under such circumstances. That is not because the subject matter is privileged or irrelevant, as those concepts are used in these Page 329 U. S. 510 rules. [ Footnote 9 ] Here is simply an attempt, without purported necessity or justification, to secure written statements, private memoranda, and personal recollections prepared or formed by an adverse party's counsel in the course of his legal duties. As such, it falls outside the arena of discovery and contravenes the public policy underlying the orderly prosecution and defense of legal claims. Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney. Historically, a lawyer is an officer of the court, and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Page 329 U. S. 511 Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories, and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients' interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways -- aptly though roughly termed by the Circuit Court of Appeals in this case as the "work product of the lawyer." Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness, and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. We do not mean to say that all written materials obtained or prepared by an adversary's counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and nonprivileged facts remain hidden in an attorney's file, and where production of those facts is essential to the preparation of one's case, discovery may properly be had. Such written statements and documents might, under certain circumstances, be admissible in evidence, or give clues as to the existence or location of relevant facts. Or they might be useful for purposes of impeachment or corroboration. And production might be justified where the witnesses are no longer available or can be reached only with difficulty. Were production of written statements and documents to be precluded under Page 329 U. S. 512 such circumstances, the liberal ideals of the deposition-discovery portions of the Federal Rules of Civil Procedure would be stripped of much of their meaning. But the general policy against invading the privacy of an attorney's course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order. That burden, we believe, is necessarily implicit in the rules as now constituted. [ Footnote 10 ] Rule 30(b), as presently written, gives the trial judge the requisite discretion to make a judgment as to whether discovery should be allowed as to written statements secured from witnesses. But, in the instant case, there was no room for that discretion to operate in favor of the petitioner. No attempt was made to establish any reason why Fortenbaugh should be forced to produce the written statements. There was only a naked, general demand for these materials as of right, and a finding by the District Court that no recognizable privilege was involved. That was insufficient to justify discovery under these circumstances, and the court should have sustained the refusal of the tug owners and Fortenbaugh to produce. But, as to oral statements made by witnesses to Fortenbaugh, whether presently in the form of his mental impressions or memoranda, we do not believe that any showing of necessity can be made under the circumstances of this case so as to justify production. Under ordinary conditions, forcing an attorney to repeat or write out all that witnesses have told him and to deliver the account Page 329 U. S. 513 to his adversary gives rise to grave dangers of inaccuracy and untrustworthiness. No legitimate purpose is served by such production. The practice forces the attorney to testify as to what he remembers or what he saw fit to write down regarding witnesses' remarks. Such testimony could not qualify as evidence, and to use it for impeachment or corroborative purposes would make the attorney much less an officer of the court and much more an ordinary witness. The standards of the profession would thereby suffer. Denial of production of this nature does not mean that any material, nonprivileged facts can be hidden from the petitioner in this case. He need not be unduly hindered in the preparation of his case, in the discovery of facts, or in his anticipation of his opponents' position. Searching interrogatories directed to Fortenbaugh and the tug owners, production of written documents and statements upon a proper showing, and direct interviews with the witnesses themselves all serve to reveal the facts in Fortenbaugh's possession to the fullest possible extent consistent with public policy. Petitioner's counsel frankly admits that he wants the oral statements only to help prepare himself to examine witnesses and to make sure that he has overlooked nothing. That is insufficient under the circumstances to permit him an exception to the policy underlying the privacy of Fortenbaugh's professional activities. If there should be a rare situation justifying production of these matters, petitioner's case is not of that type. We fully appreciate the widespread controversy among the members of the legal profession over the problem raised by this case. [ Footnote 11 ] It is a problem that rests on what Page 329 U. S. 514 has been one of the most hazy frontiers of the discovery process. But, until some rule or statute definitely prescribes otherwise, we are not justified in permitting discovery in a situation of this nature as a matter of unqualified right. When Rule 26 and the other discovery rules were adopted, this Court and the members of the bar in general certainly did not believe or contemplate that all the files and mental processes of lawyers were thereby opened to the free scrutiny of their adversaries. And we refuse to interpret the rules at this time so as to reach so harsh and unwarranted a result. We therefore affirm the judgment of the Circuit Court of Appeals. Affirmed. [ Footnote 1 ] See cases collected by Advisory Committee on Rules for Civil Procedure in its Report of Proposed Amendments (June, 1946), pp. 40-47; 5 F.R.D. 433, 457-460. See also 2 Moore's Federal Practice (1945 Cum.Supp.), § 26.12, pp. 155-159; Holtzoff, "Instruments of Discovery under Federal Rules of Civil Procedure," 41 Mich.L.Rev. 205, 210-212; Pike and Willis, "Federal Discovery in Operation," 7 Univ. of Chicago L.Rev. 297, 301-307. [ Footnote 2 ] "The great weakness of pleading as a means for developing and presenting issues of fact for trial lay in its total lack of any means for testing the factual basis for the pleader's allegations and denials." Sunderland, "The Theory and Practice of Pre-Trial Procedure," 36 Mich.L.Rev. 215, 216. See also Ragland, Discovery Before Trial (1932), ch. I. [ Footnote 3 ] 2 Moore's Federal Practice (1938), § 26.02, pp. 2445, 2455. [ Footnote 4 ] Pike and Willis, "The New Federal Deposition-Discovery Procedure," 38 Col.L.Rev. 1179, 1436; Pike, "The New Federal Deposition-Discovery Procedure and the Rules of Evidence," 34 Ill.L.Rev. 1. [ Footnote 5 ] Rule 33 reads: "Any party may serve upon any adverse party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf. The interrogatories shall be answered separately and fully in writing under oath. The answers shall be signed by the person making them, and the party upon whom the interrogatories have been served shall serve a copy of the answers on the party submitting the interrogatories within 15 days after the delivery of the interrogatories, unless the court, on motion and notice and for good cause shown, enlarges or shortens the time. Objections to any interrogatories may be presented to the court within 10 days after service thereof, with notice as in case of a motion, and answers shall be deferred until the objections are determined, which shall be at as early a time as is practicable. No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party." [ Footnote 6 ] Rule 34 provides: "Upon motion of any party showing good cause therefor and upon notice to all other parties, the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody, or control; or (2) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. The order shall specify the time, place, and manner of making the inspection and taking the copies and photographs, and may prescribe such terms and conditions as are just." [ Footnote 7 ] The relevant portions of Rule 26 provide as follows: "(a) WHEN DEPOSITIONS MAY BE TAKEN. By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action or without such leave after an answer has been served, the testimony of any person, whether a party or not, may be taken at the instance of any party by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes. The attendance of witnesses may be compelled by the use of subpoena as provided in Rule 45. Depositions shall be taken only in accordance with these rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes." "(b) SCOPE OF EXAMINATION. Unless otherwise ordered by the court as provided by Rule 30(b) or (d), the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether relating to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts." [ Footnote 8 ] "One of the chief arguments against the 'fishing expedition' objection is the idea that discovery is mutual -- that, while a party may have to disclose his case, he can at the same time tie his opponent down to a definite position." Pike and Willis, "Federal Discovery in Operation," 7 Univ. of Chicago L.Rev. 297, 303. [ Footnote 9 ] The English courts have developed the concept of privilege to include all documents prepared by or for counsel with a view to litigation. "All documents which are called into existence for the purpose -- but not necessarily the sole purpose -- of assisting the deponent or his legal advisers in any actual or anticipated litigation are privileged from production. . . . Thus, all proofs, briefs, draft pleadings, etc., are privileged; but not counsel's indorsement on the outside of his brief . . . nor any deposition or notes of evidence given publicly in open Court. . . . So are all papers prepared by any agent of the party bona fide for the use of his solicitor for the purposes of the action, whether in fact so used or not. . . . Reports by a company's servant, if made in the ordinary course of routine, are not privileged, even though it is desirable that the solicitor should have them and they are subsequently sent to him; but if the solicitor has requested that such documents shall always be prepared for his use and this was one of the reasons why they were prepared, they need not by disclosed." Odgers on Pleading and Practice (12th ed., 1939), p. 264. See Order 31, rule 1, of the Rules of the Supreme Court, 1883, set forth in The Annual Practice, 1945, p. 519, and the discussion following that rule. For a compilation of the English cases on the matter, see 8 Wigmore on Evidence (3d ed., 1940), § 2319, pp. 618-622, notes. [ Footnote 10 ] Rule 34 is explicit in its requirements that a party show good cause before obtaining a court order directing another party to produce documents. See Report of Proposed Amendments by Advisory Committee on Rules for Civil Procedure (June, 1946); 5 F.R.D. 433. [ Footnote 11 ] See Report of Proposed Amendments by Advisory Committee on Rules for Civil Procedure (June, 1946), pp. 44-47; 5 F.R.D. 433, 459, 460; Discovery Procedure Symposium before the 1946 Conference of the Third United States Circuit Court of Appeals, 5 F.R.D. 403; Armstrong, "Report of the Advisory Committee on Federal Rules of Civil Procedure Recommending Amendments," 5 F.R.D. 339, 353-357. MR. JUSTICE JACKSON, concurring. The narrow question in this case concerns only one of thirty-nine interrogatories which defendants and their counsel refused to answer. As there was persistence in refusal after the court ordered them to answer it, counsel and clients were committed to jail by the district court until they should purge themselves of contempt. The interrogatory asked whether statements were taken from the crews of the tugs involved in the accident, or of any other vessel, and demanded, "Attach hereto exact copies of all such statements if in writing, and if oral, set forth in detail the exact provisions of any such oral statements or reports." The question is simply whether such a demand is authorized by the rules relating to various aspects of "discovery." The primary effect of the practice advocated here would be on the legal profession itself. But it too often is overlooked Page 329 U. S. 515 that the lawyer and the law office are indispensable parts of our administration of justice. Law-abiding people can go nowhere else to learn the ever changing and constantly multiplying rules by which they must behave and to obtain redress for their wrongs. The welfare and tone of the legal profession is therefore of prime consequence to society, which would feel the consequences of such a practice as petitioner urges secondarily, but certainly. "Discovery" is one of the working tools of the legal profession. It traces back to the equity bill of discovery in English Chancery practice, and seems to have had a forerunner in Continental practice. See Ragland, Discovery Before Trial (1932) 13-16. Since 1848, when the draftsmen of New York's Code of Procedure recognized the importance of a better system of discovery, the impetus to extend and expand discovery, as well as the opposition to it, has come from within the Bar itself. It happens in this case that it is the plaintiff's attorney who demands such unprecedented latitude of discovery and, strangely enough, amicus briefs in his support have been filed by several labor unions representing plaintiffs as a class. It is the history of the movement for broader discovery, however, that, in actual experience, the chief opposition to its extension has come from lawyers who specialize in representing plaintiffs, because defendants have made liberal use of it to force plaintiffs to disclose their cases in advance. See Report of the Commission on the Administration of Justice in New York State (1934) 330, 331; Ragland, Discovery Before Trial (1932) 35, 36. Discovery is a two-edged sword, and we cannot decide this problem on any doctrine of extending help to one class of litigants. It seems clear, and long has been recognized, that discovery should provide a party access to anything that is evidence in his case. Cf. Report of Commission on the Administration of Justice in New York State (1934) 41, 42. Page 329 U. S. 516 It seems equally clear that discovery should not nullify the privilege of confidential communication between attorney and client. But those principles give us no real assistance here, because what is being sought is neither evidence nor is it a privileged communication between attorney and client. To consider first the most extreme aspect of the requirement in litigation here, we find it calls upon counsel, if he has had any conversations with any of the crews of the vessels in question or of any other, to "set forth in detail the exact provision of any such oral statements or reports." Thus, the demand is not for the production of a transcript in existence, but calls for the creation of a written statement not in being. But the statement by counsel of what a witness told him is not evidence when written plaintiff could not introduce it to prove his case. What, then, is the purpose sought to be served by demanding this of adverse counsel? Counsel for the petitioner candidly said on argument that he wanted this information to help prepare himself to examine witnesses, to make sure he overlooked nothing. He bases his claim to it in his brief on the view that the Rules were to do away with the old situation where a law suit developed into "a battle of wits between counsel." But a common law trial is and always should be an adversary proceeding. Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary. The real purpose and the probable effect of the practice ordered by the district court would be to put trials on a level even lower than a "battle of wits." I can conceive of no practice more demoralizing to the Bar than to require a lawyer to write out and deliver to his adversary an account of what witnesses have told him. Even if his recollection were perfect, the statement would be his language Page 329 U. S. 517 permeated with his inferences. Everyone who has tried it knows that it is almost impossible so fairly to record the expressions and emphasis of a witness that, when he testifies in the environment of the court and under the influence of the leading question, there will not be departures in some respects. Whenever the testimony of the witness would differ from the "exact" statement the lawyer had delivered, the lawyer's statement would be whipped out to impeach the witness. Counsel producing his adversary's "inexact" statement could lose nothing by saying, "Here is a contradiction, gentlemen of the jury. I do not know whether it is my adversary or his witness who is not telling the truth, but one is not." Of course, if this practice were adopted, that scene would be repeated over and over again. The lawyer who delivers such statements often would find himself branded a deceiver afraid to take the stand to support his own version of the witness' conversation with him, or else he will have to go on the stand to defend his own credibility -- perhaps against that of his chief witness, or possibly even his client. Every lawyer dislikes to take the witness stand, and will do so only for grave reasons. This is partly because it is not his role; he is almost invariably a poor witness. But he steps out of professional character to do it. He regrets it; the profession discourages it. But the practice advocated here is one which would force him to be a witness not as to what he has seen or done, but as to other witnesses' stories, and not because he wants to do so, but in self-defense. And what is the lawyer to do who has interviewed one whom he believes to be a biased, lying, or hostile witness to get his unfavorable statements and know what to meet? He must record and deliver such statements even though he would not vouch for the credibility of the witness by calling him. Perhaps the other side would not want to Page 329 U. S. 518 call him either, but the attorney is open to the charge of suppressing evidence at the trial if he fails to call such a hostile witness even though he never regarded him as reliable or truthful. Having been supplied the names of the witnesses, petitioner's lawyer gives no reason why he cannot interview them himself. If an employee-witness refuses to tell his story, he, too, may be examined under the Rules. He may be compelled on discovery as fully as on the trial to disclose his version of the facts. But that is his own disclosure -- it can be used to impeach him if he contradicts it, and such a deposition is not useful to promote an unseemly disagreement between the witness and the counsel in the case. It is true that the literal language of the Rules would admit of an interpretation that would sustain the district court's order. So the literal language of the Act of Congress which makes "any writing or record . . . made as a memorandum or record of any . . . occurrence, or event" admissible as evidence would have allowed the railroad company to put its engineer's accident statements in evidence. Cf. Palmer v. Hoffman, 318 U. S. 109 , 318 U. S. 111 . But all such procedural measures have a background of custom and practice which was assumed by those who wrote and should be by those who apply them. We reviewed the background of the Act and the consequences on the trial of negligence cases of allowing railroads and others to put in their statements and thus to shield the crew from cross-examination. We said, "Such a major change which opens wide the door to avoidance of cross-examination should not be left to implication." 318 U.S. at 318 U. S. 114 . We pointed out that there, as here, the "several hundred years of history behind the Act . . . indicate the nature of the reforms which it was designed to effect." Page 329 U. S. 519 318 U.S. at 318 U. S. 115 . We refused to apply it beyond that point. We should follow the same course of reasoning here. Certainly nothing in the tradition or practice of discovery up to the time of these Rules would have suggested that they would authorize such a practice as here proposed. The question remains as to signed statements or those written by witnesses. Such statements are not evidence for the defendant. Palmer v. Hoffman, 318 U. S. 109 . Nor should I think they ordinarily could be evidence for the plaintiff. But such a statement might be useful for impeachment of the witness who signed it, if he is called, and if he departs from the statement. There might be circumstances, too, where impossibility or difficulty of access to the witness or his refusal to respond to requests for information or other facts would show that the interests of justice require that such statements be made available. Production of such statements are governed by Rule 34 and on "Showing good cause therefor" the court may order their inspection, copying or photographing. No such application has here been made; the demand is made on the basis of right, not on showing of cause. I agree to the affirmance of the judgment of the Circuit Court of Appeals which reversed the district court. MR. JUSTICE FRANKFURTER joins in this opinion.

In Hickman v. Taylor, the U.S. Supreme Court held that under the Federal Rules of Civil Procedure, a party is not entitled to obtain oral and written statements of witnesses secured by their adversary's counsel during the preparation for possible litigation. The Court emphasized the importance of protecting an attorney's work product and preserving the integrity of the adversarial system. While witness statements may be useful for impeachment purposes, the proper procedure to obtain them is through Rule 34, which requires a showing of good cause. The Court also clarified that Rules 33 and 34 are limited to parties and do not extend to their counsel or agents.

Health Care

Vacco v. Quill

https://supreme.justia.com/cases/federal/us/521/793/

OCTOBER TERM, 1996 Syllabus VACCO, ATTORNEY GENERAL OF NEW YORK, ET AL. v. QUILL ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 95-1858. Argued January 8, 1997-Decided June 26,1997 In New York, as in most States, it is a crime to aid another to commit or attempt suicide, but patients may refuse even lifesaving medical treatment. Respondent New York physicians assert that, although it would be consistent with the standards of their medical practices to prescribe lethal medication for mentally competent, terminally ill patients who are suffering great pain and desire a doctor's help in taking their own lives, they are deterred from doing so by New York's assisted-suicide ban. They, and three gravely ill patients who have since died, sued the State's Attorney General, claiming that the ban violates the Fourteenth Amendment's Equal Protection Clause. The Federal District Court disagreed, but the Second Circuit reversed, holding (1) that New York accords different treatment to those competent, terminally ill persons who wish to hasten their deaths by self-administering prescribed drugs than it does to those who wish to do so by directing the removal of life-support systems, and (2) that this supposed unequal treatment is not rationally related to any legitimate state interests. Held: New York's prohibition on assisting suicide does not violate the Equal Protection Clause. Pp. 799-809. (a) The Equal Protection Clause embodies a general rule that States must treat like cases alike but may treat unlike cases accordingly. E. g., Plyler v. Doe, 457 U. S. 202 , 216. The New York statutes outlawing assisted suicide neither infringe fundamental rights nor involve suspect classifications, e. g., Washington v. Glucksberg, ante, at 719-728, and are therefore entitled to a strong presumption of validity, Heller v. Doe, 509 U. S. 312, 319. On their faces, neither the assisted-suicide ban nor the law permitting patients to refuse medical treatment treats anyone differently from anyone else or draws any distinctions between persons. Everyone, regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide. Generally, laws that apply evenhandedly to all unquestionably comply with equal protection. E. g., New York City Transit Authority v. Beazer, 440 U. S. 568 , 587. This Court disagrees with the Second Circuit's submission that ending or refusing lifesaving medical treatment "is nothing more nor less than assisted suicide." The distinc- 794 Syllabus tion between letting a patient die and making that patient die is important, logical, rational, and well established: It comports with fundamental legal principles of causation, see, e. g., People v. Kevorkian, 447 Mich. 436, 470-472, 527 N. W. 2d 714, 728, cert. denied, 514 U. S. 1083, and intent, see, e. g., United States v. Bailey, 444 U. S. 394 , 403-406; has been recognized, at least implicitly, by this Court in Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261 , 278-280; id., at 287-288 (O'CONNOR, J., concurring); and has been widely recognized and endorsed in the medical profession, the state courts, and the overwhelming majority of state legislatures, which, like New York's, have permitted the former while prohibiting the latter. The Court therefore disagrees with respondents' claim that the distinction is "arbitrary" and "irrational." The line between the two acts may not always be clear, but certainty is not required, even were it possible. Logic and contemporary practice support New York's judgment that the two acts are different, and New York may therefore, consistent with the Constitution, treat them differently. Pp. 799-808. (b) New York's reasons for recognizing and acting on the distinction between refusing treatment and assisting a suicide-including prohibiting intentional killing and preserving life; preventing suicide; maintaining physicians' role as their patients' healers; protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide toward euthanasia-are valid and important public interests that easily satisfy the constitutional requirement that a legislative classification bear a rational relation to some legitimate end. See Glucksberg, ante. Pp. 808-809. 80 F.3d 716 , reversed. REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. O'CONNOR, J., filed a concurring opinion, in which GINSBURG and BREYER, JJ., joined in part, ante, p. 736. STEVENS, J., ante, p. 738, SOUTER, J., post, p. 809, GINSBURG, J., ante, p. 789, and BREYER, J., ante, p. 789, filed opinions concurring in the judgment. Dennis C. Vacco, Attorney General of New York, pro se, argued the cause for petitioners. With him on the briefs were Barbara Gott Billet, Solicitor General, and Daniel Smirlock and Michael S. Popkin, Assistant Attorneys General. Acting Solicitor General Dellinger argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Hunger, Deputy Solicitor General Waxman, Deputy Assistant 795 Attorney General Preston, Barbara C. Biddle, and Ann Hubbard. Laurence H. Tribe argued the cause for respondents. With him on the brief were Peter J. Rubin, Kathryn L. Tucker, David J. Burman, Kari Anne Smith, and Carla A. Kerr. * *Briefs of amici curiae urging reversal were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, Robert L. Mukai, Chief Assistant Attorney General, Alvin J. Korobkin, Senior Assistant Attorney General, and Thomas S. Lazar, Deputy Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Jeff Sessions of Alabama, Gale A. Norton of Colorado, Robert A. Butterworth of Florida, Michael J. Bowers of Georgia, James E. Ryan of Illinois, Thomas J. Miller of Iowa, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Jeffrey R. Howard of New Hampshire, Drew Edmondson of Oklahoma, Pedro R. Pierluisi of Puerto Rico, Charles Molony Condon of South Carolina, Mark W Barnett of South Dakota, Charles W Burson of Tennessee, James S. Gilmore III of Virginia, and Christine O. Gregoire of Washington; for Wayne County, Michigan, by John D. O'Hair and Timothy A. Baughman; for Agudath Israel of America by David Zwiebel and Morton M. Avigdor; for the American Association of Homes and Services for the Aging et al. by Joel G. Chefitz and Robert K. Niewijk; for the American Center for Law and Justice by Jay Alan Sekulow, James M. Henderson, Sr., Walter M. Weber, Keith A. Fournier, John G. Stepanovich, and Thomas P. Monaghan; for the American Geriatrics Society by John H. Pickering and Joseph E. Schmitz; for the American Hospital Association by Michael K. Kellogg and Margaret J. Hardy; for the American Medical Association et al. by Carter G. Phillips, Mark E. Haddad, Paul E. Kalb, Katherine L. Adams, Newton N. Minow, Jack R. Bierig, Kirk B. Johnson, and Michael L. Ile; for the Catholic Health Association of the United States by James A. Serritella, James C. Geoly, Kevin R. Gustafson, Thomas C. Shields, Peter M. Leibold, and Charles S. Gilham; for the Catholic Medical Association by Joseph J. Frank, Sergio Alvarez-Mena III, and Peter Buscemi; for the Christian Legal Society et al. by Edward J. Larson, Kimberlee Wood Colby, and Steven T. McFarland; for the Clarendon Foundation by Ronald D. Maines; for the Evangelical Lutheran Church in America by Edward McGlynn Gaffney, Jr., Susan D. Reece Martyn, Henry J. Bourguignon, and Phillip H. Harris; for the Family Research Council by Cathleen A. Cleaver, Mark A. Rothe, and Edward R. Grant; for the Institute for Public Affairs of the Union of Orthodox Jewish 796 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. In New York, as in most States, it is a crime to aid another to commit or attempt suicide,l but patients may refuse even Congregations of America et al. by Richard B. Stone; for the Medical Society of New Jersey by Paul W Armstrong and R. Bruce Crelin; for the National Association of Prolife Nurses et al. by Jacqulyn Kay Hall; for the National Catholic Office for Persons with Disabilities et al. by James Bopp, Jr., Thomas J. Marzen, Daniel Avila, and Jane E. T. Brockmann; for the National Hospice Organization by E. Barrett Prettyman, Jr.; for the National Legal Center for the Medically Dependent & Disabled, Inc., et al. by James Bopp, Jr., Thomas J. Marzen, Daniel Avila, and Jane E. T. Brockmann; for the Project on Death in America et al. by Robert A. Burt; for the United States Catholic Conference et al. by Mark E. Chopko; for Senator Orrin Hatch et al. by Michael W McConnell; for Members of the New York and Washington State Legislatures by Paul Benjamin Linton and Clarke D. Forsythe; for Bioethics Professors by George J. Annas; for Jerome J. De Cosse et al. by Michael P. Tierney; for Gary Lee, M. D., et al. by James Bopp, Jr., Bary A. Bostrom, and Richard E. Coleson; and for Richard Thompson by Mr. Thompson, pro se, and Richard H. Browne. Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Cameron Clark, Karen E. Boxx, and Steven R. Shapiro; for Americans for Death with Dignity et al. by John R. Reese and Page R. Barnes; for the American Medical Student Association et al. by John H. Hall; for the Coalition of Hospice Professionals by Gerald A. Rosenberg and Frances Kulka Browne; for Gay Men's Health Crisis et al. by Andrew I. Batavia; for the National Women's Health Network et al. by Sylvia A. Law; for 36 Religious Organizations, Leaders, and Scholars by Barbara McDowell and Gregory A. Castanias; for the Washington State Psychological Association et al. by Edward C. DuMont; for Bioethicists by Martin R. Gold and Robert P. Mulvey; for Law Professors by Charles H. Baron, David A. Hoffman, and Joshua M. Davis; for State Legislators by Sherry F. Colb; and for Julian M. Whitaker, M. D., by Jonathan W Emord. Briefs of amici curiae were filed for the American College of Legal Medicine by Miles J. Zaremski, Bruce C. Nelson, and Ila S. Rothschild; for the American Life League, Inc., by Charles E. Rice; for Choice in Dying, Inc., by Henry Putzel III; for the International Anti-Euthanasia Task Force by Wesley J. Smith; for Not Dead Yet et al. by Stephen F. Gold; for Surviving Family Members in Support of Physician-Assisted Dying by Katrin E. Frank, Robert A. Free, and Kathleen Wareham; and for [Footnote 1 is on p. 797J 797 lifesaving medical treatment.2 The question presented by this case is whether New York's prohibition on assisting suicide therefore violates the Equal Protection Clause of the Fourteenth Amendment. We hold that it does not. Petitioners are various New York public officials. Respondents Timothy E. Quill, Samuel C. Klagsbrun, and Howard A. Grossman are physicians who practice in New York. They assert that although it would be "consistent with the standards of [their] medical practice[s]" to prescribe lethal medication for "mentally competent, terminally ill patients" who are suffering great pain and desire a doctor's help in taking their own lives, they are deterred from doing so by New York's ban on assisting suicide. App. 25-26.3 Respondents, and three gravely ill patients who have since died,4 sued the State's Attorney General in the United States Ronald Dworkin et al. by Mr. Dworkin, pro se, Peter L. Zimroth, Philip H. Curtis, Kent A. Yalowitz, Anand Agneshwar, and Abe Krash. 1 New York Penal Law § 125.15 (McKinney 1987) ("Manslaughter in the second degree") provides: "A person is guilty of manslaughter in the second degree when ... (3) He intentionally causes or aids another person to commit suicide. Manslaughter in the second degree is a class C felony." Section 120.30 ("Promoting a suicide attempt") states: "A person is guilty of promoting a suicide attempt when he intentionally causes or aids another person to attempt suicide. Promoting a suicide attempt is a class E felony." See generally Washington v. Glucksberg, ante, at 710-719. 2"It is established under New York law that a competent person may refuse medical treatment, even if the withdrawal of such treatment will result in death." Quill v. Koppell, 870 F. Supp. 78, 84 (SDNY 1994); see N. Y. Pub. Health Law, §§ 2960-2979 (McKinney 1993 and Supp. 1997) ("Orders Not to Resuscitate") (regulating right of "adult with capacity" to direct issuance of orders not to resuscitate); id., §§ 2980-2994 ("Health Care Agents and Proxies") (allowing appointment of agents "to make ... health care decisions on the principal's behalf," including decisions to refuse lifesaving treatment). 3 Declaration of Timothy E. Quill, M. D., App. 42-49; Declaration of Samuel C. Klagsbrun, M. D., id., at 68-74; Declaration of Howard A. Grossman, M. D., id., at 84-89; 80 F.3d 716 , 719 (CA2 1996). 4 These three patients stated that they had no chance of recovery, faced the "prospect of progressive loss of bodily function and integrity and increasing pain and suffering," and desired medical assistance in ending 798 District Court. They urged that because New York permits a competent person to refuse life-sustaining medical treatment, and because the refusal of such treatment is "essentially the same thing" as physician-assisted suicide, New York's assisted-suicide ban violates the Equal Protection Clause. Quill v. Koppell, 870 F. Supp. 78, 84-85 (SDNY 1994). The District Court disagreed: "[I]t is hardly unreasonable or irrational for the State to recognize a difference between allowing nature to take its course, even in the most severe situations, and intentionally using an artificial deathproducing device." Id., at 84. The court noted New York's "obvious legitimate interests in preserving life, and in protecting vulnerable persons," and concluded that "[u]nder the United States Constitution and the federal system it establishes, the resolution of this issue is left to the normal democratic processes within the State." Id., at 84-85. The Court of Appeals for the Second Circuit reversed. 80 F.3d 716 (1996). The court determined that, despite the assisted-suicide ban's apparent general applicability, "New York law does not treat equally all competent persons who are in the final stages of fatal illness and wish to hasten their deaths," because "those in the final stages of terminal illness who are on life-support systems are allowed to hasten their deaths by directing the removal of such systems; but those who are similarly situated, except for the previous attachment of life-sustaining equipment, are not allowed to hasten death by self-administering prescribed drugs." Id., at 727, 729. In the court's view, "[t]he ending of life by [the withdrawal of life-support systems] is nothing more nor less than assisted suicide." Id., at 729 (emphasis added). The Court of Appeals then examined whether this supposed unequal treatment was rationally related to any legitimate state their lives. App. 25-26; Declaration of William A. Barth, id., at 96-98; Declaration of George A. Kingsley, id., at 99-102; Declaration of Jane Doe, id., at 105-109. 799 interests,5 and concluded that "to the extent that [New York's statutes] prohibit a physician from prescribing medications to be self-administered by a mentally competent, terminally-ill person in the final stages of his terminal illness, they are not rationally related to any legitimate state interest." Id., at 731. We granted certiorari, 518 U. S. 1055 (1996), and now reverse. The Equal Protection Clause commands that no State shall "deny to any person within its jurisdiction the equal protection of the laws." This provision creates no substantive rights. San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1 , 33 (1973); id., at 59 (Stewart, J., concurring). Instead, it embodies a general rule that States must treat like cases alike but may treat unlike cases accordingly. Plyler v. Doe, 457 U. S. 202 , 216 (1982) (" '[T]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same''') (quoting Tigner v. Texas, 310 U. S. 141 , 147 (1940)). If a legislative classification or distinction "neither burdens a fundamental right nor targets a suspect class, we will uphold [it] so long as it bears a rational relation to some legitimate end." Romer v. Evans, 517 U. S. 620 , 631 (1996). New York's statutes outlawing assisting suicide affect and address matters of profound significance to all New Yorkers alike. They neither infringe fundamental rights nor involve suspect classifications. Washington v. Glucksberg, ante, at 719-728; see 80 F. 3d, at 726; San Antonio School Dist., 411 U. S., at 28 ("The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness"); id., at 33-35 (courts must look to the Constitution, not the "importance" of the asserted right, when deciding whether an asserted right is "fundamental"). These laws 5 The court acknowledged that because New York's assisted-suicide statutes "do not impinge on any fundamental rights [or] involve suspect classifications," they were subject only to rational-basis judicial scrutiny. 80 F. 3d, at 726-727. 800 are therefore entitled to a "strong presumption of validity." Heller v. Doe, 509 U. S. 312 , 319 (1993). On their faces, neither New York's ban on assisting suicide nor its statutes permitting patients to refuse medical treatment treat anyone differently from anyone else or draw any distinctions between persons. Everyone, regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide. Generally speaking, laws that apply evenhandedly to all "unquestionably comply" with the Equal Protection Clause. New York City Transit Authority v. Beazer, 440 U. S. 568 , 587 (1979); see Personnel Administrator of Mass. v. Feeney, 442 U. S. 256 , 271-273 (1979) ("[M]any [laws] affect certain groups unevenly, even though the law itself treats them no differently from all other members of the class described by the law"). The Court of Appeals, however, concluded that some terminally ill people-those who are on life-support systemsare treated differently from those who are not, in that the former may "hasten death" by ending treatment, but the latter may not "hasten death" through physician-assisted suicide. 80 F. 3d, at 729. This conclusion depends on the submission that ending or refusing lifesaving medical treatment "is nothing more nor less than assisted suicide." Ibid. Unlike the Court of Appeals, we think the distinction between assisting suicide and withdrawing life-sustaining treatment, a distinction widely recognized and endorsed in the medical profession 6 and in our legal traditions, is both important and 6 The American Medical Association emphasizes the "fundamental difference between refusing life-sustaining treatment and demanding a lifeending treatment." American Medical Association, Council on Ethical and Judicial Affairs, Physician-Assisted Suicide, 10 Issues in Law & Medicine 91, 93 (1994); see also American Medical Association, Council on Ethical and Judicial Affairs, Decisions Near the End of Life, 267 JAMA 2229, 2230-2231,2233 (1992) ("The withdrawing or withholding of life-sustaining treatment is not inherently contrary to the principles of beneficence and nonmaleficence," but assisted suicide "is contrary to the prohibition 801 logical; it is certainly rational. See Feeney, supra, at 272 ("When the basic classification is rationally based, uneven effects upon particular groups within a class are ordinarily of no constitutional concern"). The distinction comports with fundamental legal principles of causation and intent. First, when a patient refuses lifesustaining medical treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication. See, e. g., People v. Kevorkian, 447 Mich. 436, 470-472, 527 N. W. 2d 714, 728 (1994), cert. denied, 514 U. S. 1083 (1995); Matter of Conroy, 98 N. J. 321, 355, 486 A. 2d 1209, 1226 (1985) (when feeding tube is removed, death "result[s] ... from [the patient's] underlying medical condition"); In re Colyer, 99 Wash. 2d 114, 123, 660 P. 2d 738, 743 (1983) ("[D]eath which occurs after the removal of life sustaining systems is from natural causes"); American Medical Association, Council on Ethical and Judicial Affairs, PhysicianAssisted Suicide, 10 Issues in Law & Medicine 91, 93 (1994) ("When a life-sustaining treatment is declined, the patient dies primarily because of an underlying disease"). Furthermore, a physician who withdraws, or honors a patient's refusal to begin, life-sustaining medical treatment purposefully intends, or may so intend, only to respect his patient's wishes and "to cease doing useless and futile or degrading things to the patient when [the patient] no longer stands to benefit from them." Assisted Suicide in the against using the tools of medicine to cause a patient's death"); New York State Task Force on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context 108 (1994) ("[Professional organizations] consistently distinguish assisted suicide and euthanasia from the withdrawing or withholding of treatment, and from the provision of palliative treatments or other medical care that risk fatal side effects"); Brief for American Medical Association et al. as Amici Curiae 18-25. Of course, as respondents' lawsuit demonstrates, there are differences of opinion within the medical profession on this question. See New York Task Force, supra, at 104-109. 802 United States, Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong., 2d Sess., 368 (1996) (testimony of Dr. Leon R. Kass). The same is true when a doctor provides aggressive palliative care; in some cases, painkilling drugs may hasten a patient's death, but the physician's purpose and intent is, or may be, only to ease his patient's pain. A doctor who assists a suicide, however, "must, necessarily and indubitably, intend primarily that the patient be made dead." Id., at 367. Similarly, a patient who commits suicide with a doctor's aid necessarily has the specific intent to end his or her own life, while a patient who refuses or discontinues treatment might not. See, e. g., Matter of Conroy, supra, at 351, 486 A. 2d, at 1224 (patients who refuse life-sustaining treatment "may not harbor a specific intent to die" and may instead "fervently wish to live, but to do so free of unwanted medical technology, surgery, or drugs"); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 743, n. 11,370 N. E. 2d 417, 426, n. 11 (1977) ("[I]n refusing treatment the patient may not have the specific intent to die"). The law has long used actors' intent or purpose to distinguish between two acts that may have the same result. See, e. g., United States v. Bailey, 444 U. S. 394 , 403-406 (1980) ("[T]he ... common law of homicide often distinguishes ... between a person who knows that another person will be killed as the result of his conduct and a person who acts with the specific purpose of taking another's life"); Morissette v. United States, 342 U. S. 246 , 250 (1952) (distinctions based on intent are "universal and persistent in mature systems of law"); M. Hale, 1 Pleas of the Crown 412 (1847) ("If A. with an intent to prevent a gangrene beginning in his hand doth without any advice cut off his hand, by which he dies, he is not thereby felo de se for tho it was a voluntary act, yet it was not with an intent to kill himself"). Put differently, the law distinguishes actions taken "because of" a given end 803 from actions taken "in spite of" their unintended but foreseen consequences. Feeney, 442 U. S., at 279; Compassion in Dying v. Washington, 79 F.3d 790 , 858 (CA9 1996) (Kleinfeld, J., dissenting) ("When General Eisenhower ordered American soldiers onto the beaches of Normandy, he knew that he was sending many American soldiers to certain death His purpose, though, was to ... liberate Europe from the Nazis"). Given these general principles, it is not surprising that many courts, including New York courts, have carefully distinguished refusing life-sustaining treatment from suicide. See, e. g., Fosmire v. Nicoleau, 75 N. Y. 2d 218, 227, and n. 2, 551 N. E. 2d 77, 82, and n. 2 (1990) ("[M]erely declining medical care ... is not considered a suicidal act").7 In fact, the first state-court decision explicitly to authorize withdrawing lifesaving treatment noted the "real distinction between the self-infliction of deadly harm and a self-determination against artificial life support." In re Quinlan, 70 N. J. 10, 43,52, and n. 9, 355 A. 2d 647,665,670, and n. 9, cert. denied sub nom. Garger v. New Jersey, 429 U. S. 922 (1976). And recently, the Michigan Supreme Court also rejected the argument that the distinction "between acts that artificially sustain life and acts that artificially curtail life" is merely a "distinction without constitutional significance-a meaning- 7Thus, the Second Circuit erred in reading New York law as creating a "right to hasten death"; instead, the authorities cited by the court recognize a right to refuse treatment, and nowhere equate the exercise of this right with suicide. Schloendorff v. Society of New York Hospital, 211 N. Y. 125, 129-130, 105 N. E. 92, 93 (1914), which contains Justice Cardozo's famous statement that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body," was simply an informed-consent case. See also Rivers v. Katz, 67 N. Y. 2d 485, 495,495 N. E. 2d 337, 343 (1986) (right to refuse antipsychotic medication is not absolute, and may be limited when "the patient presents a danger to himself"); Matter of Storar, 52 N. Y. 2d 363, 377, n. 6, 420 N. E. 2d 64, 71, n. 6, cert. denied, 454 U. S. 858 (1981). 804 less exercise in semantic gymnastics," insisting that "the Cruzan majority disagreed and so do we." Kevorkian, 447 Mich., at 471,527 N. W. 2d, at 728.8 Similarly, the overwhelming majority of state legislatures have drawn a clear line between assisting suicide and with- 8 Many courts have recognized this distinction. See, e. g., Kevorkian v. Thompson, 947 F. Supp. 1152, 1178, and nn. 20-21 (ED Mich. 1997); In re Fiori, 543 Pa. 592, 602, 673 A. 2d 905, 910 (1996); Singletary v. Costello, 665 So. 2d 1099, 1106 (Fla. App. 1996); Laurie v. Senecal, 666 A. 2d 806, 808-809 (R. I. 1995); State ex rel. Schuetzle v. Vogel, 537 N. W. 2d 358, 360 (N. D. 1995); Thor v. Superior Court, 5 Cal. 4th 725, 741-742, 855 P. 2d 375, 385-386 (1993); DeGrella v. Elston, 858 S. W. 2d 698, 707 (Ky. 1993); People v. Adams, 216 Cal. App. 3d 1431, 1440,265 Cal. Rptr. 568,573-574 (1990); Guardianship of Jane Doe, 411 Mass. 512, 522-523, 583 N. E. 2d 1263, 1270, cert. denied sub nom. Doe v. Gross, 503 U. S. 950 (1992); In re L. W, 167 Wis. 2d 53, 83, 482 N. W. 2d 60, 71 (1992); In re Rosebush, 195 Mich. App. 675, 681, n. 2, 491 N. W. 2d 633, 636, n. 2 (1992); Donaldson v. Van de Kamp, 2 Cal. App. 4th 1614, 1619-1625, 4 Cal. Rptr. 2d 59, 61-64 (1992); In re Lawrance, 579 N. E. 2d 32, 40, n. 4 (Ind. 1991); McKay v. Bergstedt, 106 Nev. 808, 822-823, 801 P. 2d 617, 626-627 (1990); In re Browning, 568 So. 2d 4, 14 (Fla. 1990); McConnell v. Beverly EnterprisesConnecticut, Inc., 209 Conn. 692, 710, 553 A. 2d 596, 605 (1989); State v. McAfee, 259 Ga. 579, 581, 385 S. E. 2d 651, 652 (1989); In re Grant, 109 Wash. 2d 545, 563, 747 P. 2d 445, 454-455 (1987); In re Gardner, 534 A. 2d 947, 955-956 (Me. 1987); Matter of Farrell, 108 N. J. 335, 349-350, 529 A. 2d 404, 411 (1987); Rasmussen v. Fleming, 154 Ariz. 207, 218, 741 P. 2d 674, 685 (1987); Bouvia v. Superior Court, 179 Cal. App. 3d 1127, 11441145,225 Cal. Rptr. 297, 306 (1986); Von Holden v. Chapman, 87 App. Div. 2d 66, 70, 450 N. Y. S. 2d 623, 627 (1982); Bartling v. Superior Court, 163 Cal. App. 3d 186, 196-197, 209 Cal. Rptr. 220, 225-226 (1984); Foody v. Manchester Memorial Hospital, 40 Conn. Supp. 127, 137,482 A. 2d 713, 720 (1984); In re P. V. W, 424 So. 2d 1015, 1022 (La. 1982); Leach v. Akron General Medical Center, 68 Ohio Misc. 1, 10, 426 N. E. 2d 809, 815 (Ohio Comm. Pleas 1980); In re Severns, 425 A. 2d 156, 161 (Del. Ch. 1980); Satz v. Perlmutter, 362 So. 2d 160, 162-163 (Fla. App. 1978); Application of the President and Directors of Georgetown College, 331 F.2d 1000 , 1009 (CADC), cert. denied, 377 U. S. 978 (1964); Brophy v. New England Sinai Hospital, 398 Mass. 417, 439, 497 N. E. 2d 626, 638 (1986). The British House of Lords has also recognized the distinction. Airedale N. H. S. Trust v. Bland, 2 W. L. R. 316, 368 (1993). 805 drawing or permitting the refusal of unwanted lifesaving medical treatment by prohibiting the former and permitting the latter. Glucksberg, ante, at 710-711, 716-719. And "nearly all states expressly disapprove of suicide and assisted suicide either in statutes dealing with durable powers of attorney in health-care situations, or in 'living will' statutes." Kevorkian, supra, at 478-479, and nn. 53-54, 527 N. W. 2d, at 731-732, and nn. 53-54.9 Thus, even as the 9See Ala. Code §22-8A-1O (1990); Alaska Stat. Ann. §§ 18. 12.080(a), (f) (1996); Ariz. Rev. Stat. Ann. § 36-3210 (Supp. 1996); Ark. Code Ann. §§ 2013-905(a), (f), 20-17-210(a), (g) (1991 and Supp. 1995); Cal. Health & Safety Code Ann. §§ 7191.5(a), (g) (West Supp. 1997); Cal. Prob. Code Ann. § 4723 (West Supp. 1997); Colo. Rev. Stat. §§ 15-14-504(4),15-18-112(1),15-18.5101(3), 15-18.6-108 (1987 and Supp. 1996); Conn. Gen. Stat. § 19a-575 (Supp. 1996); Del. Code Ann., Tit. 16, § 2512 (Supp. 1996); D. C. Code Ann. §§ 6-2430,21-2212 (1995 and Supp. 1996); Fla. Stat. §§ 765.309(1), (2) (Supp. 1997); Ga. Code Ann. §§31-32-11(b), 31-36-2(b) (1996); Haw. Rev. Stat. §327D-13 (1996); Idaho Code §39-152 (Supp. 1996); Ill. Compo Stat., ch. 755, §§35/9(f), 40/5, 40/50, 45/2-1 (1992); Ind. Code §§ 16-36-1-13, 16-364-19,30-5-5-17 (1994 and Supp. 1996); Iowa Code §§ 144A.11.1-144A.11.6, 144B.12.2 (1989 and Supp. 1997); Kan. Stat. Ann. § 65-28,109 (1985); Ky. Rev. Stat. Ann. §311.638 (Baldwin Supp. 1992); La. Rev. Stat. Ann. §§ 40: 1299.58.10(A), (B) (West 1992); Me. Rev. Stat. Ann., Tit. 18-A, §§ 5813(b), (c) (Supp. 1996); Md. Health Code Ann. § 5-611(c) (1994); Mass. Gen. Laws 20m, § 12 (Supp. 1997); Mich. Compo Laws Ann. § 700.496(20) (West 1995); Minn. Stat. §§ 145B.14, 145C.14 (Supp. 1997); Miss. Code Ann. §§4141-117(2),41-41-119(1) (Supp. 1992); Mo. Rev. Stat. §§459.015.3, 459.055(5) (1992); Mont. Code Ann. §§ 50-9-205(1), (7), 50-10-104(1), (6) (1995); Neb. Rev. Stat. §§ 20-412(1), (7), 30-3401(3) (1995); Nev. Rev. Stat. § 449.670(2) (1996); N. H. Rev. Stat. Ann. §§ 137-H:10, 137-H:13, 137-J:1 (1996); N. J. Stat. Ann. §§26:2H-54(d), (e), 26:2H-77 (West 1996); N. M. Stat. Ann. §§24-7A-13(B)(1), (C) (Supp. 1995); N. Y. Pub. Health Law §2989(3) (McKinney 1993); N. C. Gen. Stat. §§ 90-320(b), 90-321(f) (1993); N. D. Cent. Code §§ 23-06.4-01, 23-06.5-01 (1991); Ohio Rev. Code Ann. §§ 2133.12(A), (D) (Supp. 1996); Okla. Stat., Tit. 63, §§ 3101.2(C), 3101.12(A), (G) (1997); 20 Pa. Cons. Stat. § 5402(b) (Supp. 1996); R. I. Gen. Laws §§ 23-4.10-9(a), (f), 23-4. l1-1O(a), (f) (1996); S. C. Code Ann. §§44-77-130, 44-78-50(A), (C), 62-5-504(0) (Supp. 1996); S. D. Codified Laws §§34-12D-14, 34-12D-20 (1994); Tenn. Code Ann. §§32-11-110(a), 39-13-216 (Supp. 1996); Tex. 806 States move to protect and promote patients' dignity at the end of life, they remain opposed to physician-assisted suicide. New York is a case in point. The State enacted its current assisted-suicide statutes in 1965.10 Since then, New York has acted several times to protect patients' commonlaw right to refuse treatment. Act of Aug. 7, 1987, ch. 818, § 1, 1987 N. Y. Laws 3140 ("Do Not Resuscitate Orders") (codified as amended at N. Y. Pub. Health Law §§ 2960-2979 (McKinney 1993 and Supp. 1997)); Act of July 22, 1990, ch. 752, § 2, 1990 N. Y. Laws 3547 ("Health Care Agents and Proxies") (codified as amended at N. Y. Pub. Health Law §§ 2980-2994 (McKinney 1993 and Supp. 1997)). In so doing, however, the State has neither endorsed a general right to "hasten death" nor approved physician-assisted suicide. Quite the opposite: The State has reaffirmed the line between "killing" and "letting die." See N. Y. Pub. Health Law § 2989(3) (McKinney 1993) ("This article is not intended to permit or promote suicide, assisted suicide, or euthanasia"); New York State Task Force on Life and the Law, LifeSustaining Treatment: Making Decisions and Appointing a Health Care Agent 36-42 (July 1987); Do Not Resuscitate Orders: The Proposed Legislation and Report of the New York State Task Force on Life and the Law 15 (Apr. 1986). More recently, the New York State Task Force on Life and Health & Safety Code Ann. §§ 672.017, 672.020, 672.021 (1992); Utah Code Ann. §§ 75-2-1116,75-2-1118 (1993); Vt. Stat. Ann., Tit. 18, § 5260 (1987); Va. Code Ann. § 54.1-2990 (1994); V. I. Code Ann., Tit. 19, §§ 198(a), (g) (1995); Wash. Rev. Code §§ 70.122.070(1), 70.122.100 (Supp. 1997); W. Va. Code §§ 16-30-10, 16-30A-16(a), 16-30B-2(b), 16-30B-13, 16-30C-14 (1995); Wis. Stat. §§ 154.11(1), (6), 154.25(7), 155.70(7) (Supp. 1996); Wyo. Stat. §§3-5-211, 35-22-109, 35-22-208 (1994 and Supp. 1996). See also 42 U. S. C. §§ 14402(b)(1), (2), (4) (1994 ed., Supp. III) ("Assisted Suicide Funding Restriction Act of 1997"). 10 It has always been a crime, either by statute or under the common law, to assist a suicide in New York. See Marzen, O'Dowd, Crone, & Balch, Suicide: A Constitutional Right?, 24 Duquesne L. Rev. 1, 205-210 (1985) (App.). 807 the Law studied assisted suicide and euthanasia and, in 1994, unanimously recommended against legalization. When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context vii (1994). In the Task Force's view, "allowing decisions to forgo life-sustaining treatment and allowing assisted suicide or euthanasia have radically different consequences and meanings for public policy." Id., at 146. This Court has also recognized, at least implicitly, the distinction between letting a patient die and making that patient die. In Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261 , 278 (1990), we concluded that "[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions," and we assumed the existence of such a right for purposes of that case, id., at 279. But our assumption of a right to refuse treatment was grounded not, as the Court of Appeals supposed, on the proposition that patients have a general and abstract "right to hasten death," 80 F. 3d, at 727-728, but on well-established, traditional rights to bodily integrity and freedom from unwanted touching, Cruzan, 497 U. S., at 278-279; id., at 287288 (O'CONNOR, J., concurring). In fact, we observed that "the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide." Id., at 280. Cruzan therefore provides no support for the notion that refusing life-sustaining medical treatment is "nothing more nor less than suicide." For all these reasons, we disagree with respondents' claim that the distinction between refusing lifesaving medical treatment and assisted suicide is "arbitrary" and "irrational." Brief for Respondents 44.11 Granted, in some cases, 11 Respondents also argue that the State irrationally distinguishes between physician-assisted suicide and "terminal sedation," a process respondents characterize as "induc[ing] barbiturate coma and then starv[ing] the person to death." Brief for Respondents 48-50; see 80 F. 3d, 808 the line between the two may not be clear, but certainty is not required, even were it possible.12 Logic and contemporary practice support New York's judgment that the two acts are different, and New York may therefore, consistent with the Constitution, treat them differently. By permitting everyone to refuse unwanted medical treatment while prohibiting anyone from assisting a suicide, New York law follows a longstanding and rational distinction. N ew York's reasons for recognizing and acting on this distinction-including prohibiting intentional killing and preserving life; preventing suicide; maintaining physicians' role as their patients' healers; protecting vulnerable people from at 729. Petitioners insist, however, that "'[a]lthough proponents of physician-assisted suicide and euthanasia contend that terminal sedation is covert physician-assisted suicide or euthanasia, the concept of sedating pharmacotherapy is based on informed consent and the principle of double effect.''' Reply Brief for Petitioners 12 (quoting P. Rousseau, Terminal Sedation in the Care of Dying Patients, 156 Archives Internal Med. 1785, 1785-1786 (1996)). Just as a State may prohibit assisting suicide while permitting patients to refuse unwanted lifesaving treatment, it may permit palliative care related to that refusal, which may have the foreseen but unintended "double effect" of hastening the patient's death. See New York Task Force, When Death is Sought, supra n. 6, at 163 ("It is widely recognized that the provision of pain medication is ethically and professionally acceptable even when the treatment may hasten the patient's death, if the medication is intended to alleviate pain and severe discomfort, not to cause death"). 12We do not insist, as JUSTICE STEVENS suggests, ante, at 750 (opinion concurring in judgments), that "in all cases there will in fact be a significant difference between the intent of the physicians, the patients, or the families [in withdrawal-of-treatment and physician-assisted-suicide cases]." See supra, at 801-802 ("[A] physician who withdraws, or honors a patient's refusal to begin, life-sustaining medical treatment purposefully intends, or may so intend, only to respect his patient's wishes ... The same is true when a doctor provides aggressive palliative care; ... the physician's purpose and intent is, or may be, only to ease his patient's pain" (emphasis added)). In the absence of omniscience, however, the State is entitled to act on the reasonableness of the distinction. 809 indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide towards euthanasia-are discussed in greater detail in our opinion in Glucksberg, ante. These valid and important public interests easily satisfy the constitutional requirement that a legislative classification bear a rational relation to some legitimate end.13 The judgment of the Court of Appeals is reversed. It is so ordered. [For concurring opinion of JUSTICE O'CONNOR, see ante, p. 736; for opinions concurring in the judgments of JUSTICE STEVENS, see ante, p. 738, JUSTICE GINSBURG, see ante, p. 789, and JUSTICE BREYER, see ante, p. 789.] JUSTICE SOUTER, concurring in the judgment. Even though I do not conclude that assisted suicide is a fundamental right entitled to recognition at this time, I accord the claims raised by the patients and physicians in this case and Washington v. Glucksberg a high degree of importance, requiring a commensurate justification. See Washington v. Glucksberg, ante, at 782 (SOUTER, J., concurring in judgment). The reasons that lead me to conclude in Glucksberg that the prohibition on assisted suicide is not arbitrary under the due process standard also support the distinction between assistance to suicide, which is banned, and 13JUSTICE STEVENS observes that our holding today "does not foreclose the possibility that some applications of the New York statute may impose an intolerable intrusion on the patient's freedom." Ante, at 751-752 (opinion concurring in judgments). This is true, but, as we observe in Glucks berg, ante, at 735, n. 24, a particular plaintiff hoping to show that New York's assisted-suicide ban was unconstitutional in his particular case would need to present different and considerably stronger arguments than those advanced by respondents here. 810 SOUTER, J., concurring in judgment practices such as termination of artificial life support and death-hastening pain medication, which are permitted. I accordingly concur in the judgment of the Court.

New York's ban on assisted suicide does not violate the Equal Protection Clause of the Fourteenth Amendment. The ban treats all people equally, regardless of physical condition, and allows competent individuals to refuse life-saving medical treatment. The distinction between letting a patient die and actively causing their death is important, rational, and well-established, and the state has a legitimate interest in protecting vulnerable people, maintaining ethical standards, and preventing a slide towards euthanasia.

Health Care

Whalen v. Roe

https://supreme.justia.com/cases/federal/us/429/589/

U.S. Supreme Court Whalen v. Roe, 429 U.S. 589 (1977) Whalen v. Roe No. 75-839 Argued October 13, 1976 Decided February 22, 1977 429 U.S. 589 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK Syllabus Responding to a concern that drugs were being diverted into unlawful channels, the New York Legislature, in 1972, enacted a statutory scheme to correct defects in the previous law. The 1972 statute classifies potentially harmful drugs and provides that prescriptions for the category embracing the most dangerous legitimate drugs (Schedule II) be prepared on an official form. One copy of the form, which requires identification of the prescribing physician, dispensing pharmacy, drug and dosage, and the patient's name, address, and age, must be filed with the State Health Department, where pertinent data are recorded on tapes for computer processing. All forms are retained for a five-year period under a system to safeguard their security, and are thereafter destroyed. Public disclosure of the patient's identity is prohibited, and access to the files is confined to a limited number of health department and investigatory personnel. Appellees, including a group of patients regularly receiving Schedule II drugs and prescribing doctors, brought this action challenging the constitutionality of the Schedule II patient identification requirements. Holding that "the doctor-patient relationship is one of the zones of privacy accorded constitutional protection" and that the Act's patient identification provisions invaded that zone with "a needlessly broad sweep," since appellant had been unable to demonstrate the need for those requirements, a three-judge District Court enjoined the enforcement of the challenged provisions. Held: 1. The patient identification requirement is a reasonable exercise of the State's broad police powers, and the District Court's finding that the necessity for the requirement had not been proved is not a sufficient reason for holding the statute unconstitutional. Pp. 429 U. S. 596 -598. 2. Neither the immediate nor the threatened impact of the patient identification requirement on either the reputation or the independence of patients for whom Schedule II drugs are medically indicated suffices to constitute an invasion of any right or liberty protected by the Fourteenth Amendment. Pp. 429 U. S. 598 -604. (a) The possibility that a doctor or pharmacist may voluntarily Page 429 U. S. 590 reveal information on a prescription form, which existed under prior law, is unrelated to the computerized data bank. Pp. 429 U. S. 600 -601. (b) There is no support in the record or in the experience of the two States that the New York program emulates for assuming that the statute's security provisions will be improperly administered. P. 429 U. S. 601 . (c) The remote possibility that judicial supervision of the evidentiary use of particular items of stored information will not provide adequate protection against unwarranted disclosure is not a sufficient reason for invalidating the entire patient identification program. Pp. 429 U. S. 601 -602. (d) Though it is argued that concern about disclosure may induce patients to refuse needed medication, the 1972 statute does not deprive the public of access to Schedule II drugs, as is clear from the fact that about 100,000 prescriptions for such drugs were filed each month before the District Court's injunction was entered. Pp. 429 U. S. 602 -603. 3. Appellee doctors' contention that the 1972 statute impairs their right to practice medicine free from unwarranted state interference is without merit, whether it refers to the statute's impact on their own procedures, which is no different from the impact of the prior statute, or refers to the patients' concern about disclosure that the Court has rejected ( see 2(d), supra ). P. 429 U. S. 604 . 403 F. Supp. 931 , reversed. STEVENS, J., delivered the opinion for a unanimous Court. BRENNAN, J., post, p. 429 U. S. 606 , and STEWART, J., post, p. 429 U. S. 607 , filed concurring opinions. Page 429 U. S. 591 MR. JUSTICE STEVENS delivered the opinion of the Court. The constitutional question presented is whether the State of New York may record, in a centralized computer file, the names and addresses of all persons who have obtained, pursuant to a doctor's prescription, certain drugs for which there is both a lawful and an unlawful market. The District Court enjoined enforcement of the portions of the New York State Controlled Substances Act of 1972 [ Footnote 1 ] which require such recording on the ground that they violate appellees' constitutionally protected rights of privacy. [ Footnote 2 ] We noted probable jurisdiction of the appeal by the Commissioner of Health, 424 U.S. 907, and now reverse. [ Footnote 3 ] Many drugs have both legitimate and illegitimate uses. In response to a concern that such drugs were being diverted into unlawful channels, in 1970, the New York Legislature created a special commission to evaluate the State's drug control laws. [ Footnote 4 ] The commission found the existing laws deficient Page 429 U. S. 592 in several respects. There was no effective way to prevent the use of stolen or revised prescriptions, to prevent unscrupulous pharmacists from repeatedly refilling prescriptions, to prevent users from obtaining prescriptions from more than one doctor, or to prevent doctors from overprescribing, either by authorizing an excessive amount in one prescription or by giving one patient multiple prescriptions. [ Footnote 5 ] In drafting new legislation to correct such defects, the commission consulted with enforcement officials in California and Illinois where central reporting systems were being used effectively. [ Footnote 6 ] The new New York statute classified potentially harmful drugs in five schedules. [ Footnote 7 ] Drugs, such as heroin, which are highly abused and have no recognized medical use, are in Schedule I; they cannot be prescribed. Schedules II through V include drugs which have a progressively lower potential for abuse, but also have a recognized medical use. Our Page 429 U. S. 593 concern is limited to Schedule II, which includes the most dangerous of the legitimate drugs. [ Footnote 8 ] With an exception for emergencies, the Act requires that all prescriptions for Schedule II drugs be prepared by the physician in triplicate on an official form. [ Footnote 9 ] The completed form identifies the prescribing physician; the dispensing pharmacy; the drug and dosage; and the name, address, and age of the patient. One copy of the form is retained by the physician, the second by the pharmacist, and the third is forwarded to the New York State Department of Health in Albany. A prescription made on an official form may not exceed a 30-day supply, and may not be refilled. [ Footnote 10 ] The District Court found that about 100,000 Schedule II prescription forms are delivered to a receiving room at the Department of Health in Albany each month. They are sorted, coded, and logged and then taken to another room where the data on the forms is recorded on magnetic tapes for processing by a computer. Thereafter, the forms are returned to the receiving room to be retained in a vault for a five-year period, and then destroyed as required by the statute. [ Footnote 11 ] Page 429 U. S. 594 The receiving room is surrounded by a locked wire fence and protected by an alarm system. The computer tapes containing the prescription data are kept in a locked cabinet. When the tapes are used, the computer is run "off-line," which means that no terminal outside of the computer room can read or record any information. Public disclosure of the identity of patients is expressly prohibited by the statute and by a Department of Health regulation. [ Footnote 12 ] Willful violation Page 429 U. S. 595 of these prohibitions is a crime punishable by up to one year in prison and a $2,000 fine. [ Footnote 13 ] At the time of trial, there were 17 Department of Health employees with access to the files; in addition, there were 24 investigators with authority to investigate cases of overdispensing which might be identified by the computer. Twenty months after the effective date of the Act, the computerized data had only been used in two investigations involving alleged overuse by specific patients. A few days before the Act became effective, this litigation was commenced by a group of patients regularly receiving prescriptions for Schedule II drugs, by doctors who prescribe such drugs, and by two associations of physicians. [ Footnote 14 ] After various preliminary proceedings, [ Footnote 15 ] a three-judge District Court conducted a one-day trial. Appellees offered evidence tending to prove that persons in need of treatment with Schedule II drugs will from time to time decline such treatment because of their fear that the misuse of the computerized data will cause them to be stigmatized as "drug addicts." [ Footnote 16 ] Page 429 U. S. 596 The District Court held that "the doctor-patient relationship is one of the zones of privacy accorded constitutional protection," and that the patient identification provisions of the Act invaded this zone with "a needlessly broad sweep," and enjoined enforcement of the provisions of the Act which deal with the reporting of patients' names and addresses. [ Footnote 17 ] I The District Court found that the State had been unable to demonstrate the necessity for the patient identification requirement on the basis of its experience during the first 20 months of administration of the new statute. There was a time when that alone would have provided a basis for invalidating the statute. Lochner v. New York, 198 U. S. 45 , involved legislation. making it a crime for a baker to permit his employees to work more than 60 hours in a week. In an opinion no longer regarded as authoritative, the Court held the statute unconstitutional as "an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty. . . ." Id. at 198 U. S. 56 . Page 429 U. S. 597 The holding in Lochner has been implicitly rejected many times. [ Footnote 18 ] State legislation which has some effect on individual liberty or privacy may not be held unconstitutional simply because a court finds it unnecessary, in whole or in pat. [ Footnote 19 ] For we have frequently recognized that individual States have broad latitude in experimenting with possible solutions to problems of vital local concern. [ Footnote 20 ] The New York statute challenged in this case represents a considered attempt to deal with such a problem. It is manifestly the product of an orderly and rational legislative decision. It was recommended by a specially appointed commission which held extensive hearings on the proposed legislation, and drew on experience with similar programs in other States. There surely was nothing unreasonable in the assumption that the patient identification requirement might Page 429 U. S. 598 aid in the enforcement of laws designed to minimize the misuse of dangerous drugs. For the requirement could reasonably be expected to have a deterrent effect on potential violators, [ Footnote 21 ] as well as to aid in the detection or investigation of specific instances of apparent abuse. At the very least, it would seem clear that the State's vital interest in controlling the distribution of dangerous drugs would support a decision to experiment with new techniques for control. [ Footnote 22 ] For if an experiment fails -- if, in this case, experience teaches that the patient identification requirement results in the foolish expenditure of funds to acquire a mountain of useless information -- the legislative process remains available to terminate the unwise experiment. It follows that the legislature's enactment of the patient identification requirement was a reasonable exercise of New York's broad police powers. The District Court's finding that the necessity for the requirement had not been proved is not, therefore, a sufficient reason for holding the statutory requirement unconstitutional. II Appellees contend that the statute invades a constitutionally protected "zone of privacy." [ Footnote 23 ] The cases sometimes Page 429 U. S. 599 characterized as protecting "privacy" have in fact involved at least two different kinds of interests. [ Footnote 24 ] One is the individual interest in avoiding disclosure of personal matters, [ Footnote 25 ] and another is the interest in independence in making certain Page 429 U. S. 600 kinds of important decisions. [ Footnote 26 ] Appellees argue that both of these interests are impaired by this statute. The mere existence in readily available form of the information about patients' use of Schedule II drugs creates a genuine concern that the information will become publicly known and that it will adversely affect their reputations. This concern makes some patients reluctant to use, and some doctors reluctant to prescribe, such drugs even when their use is medically indicated. It follows, they argue, that the making of decisions about matters vital to the care of their health is inevitably affected by the statute. Thus, the statute threatens to impair both their interest in the nondisclosure of private information and also their interest in making important decisions independently. We are persuaded, however, that the New York program does not, on its face, pose a sufficiently grievous threat to either interest to establish a constitutional violation. Public disclosure of patient information can come about in three ways. Health Department employees may violate the statute by failing, either deliberately or negligently, to maintain proper security. A patient or a doctor may be accused of a violation and the stored data may be offered in evidence in a judicial proceeding. Or, thirdly, a doctor, a pharmacist, or the patient may voluntarily reveal information on a prescription form. The third possibility existed under the prior law and is entirely unrelated to the existence of the computerized Page 429 U. S. 601 data bank. Neither of the other two possibilities provides a proper ground for attacking the statute as invalid on its face. There is no support in the record, or in the experience of the two States that New York has emulated, for an assumption that the security provisions of the statute will be administered improperly. [ Footnote 27 ] And the remote possibility that judicial supervision of the evidentiary use of particular items of stored information will provide inadequate protection Page 429 U. S. 602 against unwarranted disclosures is surely not a sufficient reason for invalidating the entire patient identification program. [ Footnote 28 ] Even without public disclosure, it is, of course, true that private information must be disclosed to the authorized employees of the New York Department of Health. Such disclosures, however, are not significantly different from those that were required under the prior law. Nor are they meaningfully distinguishable from a host of other unpleasant invasions of privacy that are associated with many facets of health care. Unquestionably, some individuals' concern for their own privacy may lead them to avoid or to postpone needed medical attention. Nevertheless, disclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to public health agencies are often an essential part of modern medical practice even when the disclosure may reflect unfavorably on the character of the patient. [ Footnote 29 ] Requiring such disclosures to representatives of the State having responsibility for the health of the community, does not automatically amount to an impermissible invasion of privacy. Appellees also argue, however, that even if unwarranted disclosures do not actually occur, the knowledge that the information is readily available in a computerized file creates a genuine concern that causes some persons to decline needed Page 429 U. S. 603 medication. The record supports the conclusion that some use of Schedule II drugs has been discouraged by that concern; it also is clear, however, that about 100,000 prescriptions for such drugs were being filled each month prior to the entry of the District Court's injunction. Clearly, therefore, the statute did not deprive the public of access to the drugs. Nor can it be said that any individual has been deprived of the right to decide independently, with the advice of his physician, to acquire and to use needed medication. Although the State no doubt could prohibit entirely the use of particular Schedule II drugs, [ Footnote 30 ] it has not done so. This case is therefore unlike those in which the Court held that a total prohibition of certain conduct was an impermissible deprivation of liberty. Nor does the State require access to these drugs to be conditioned on the consent of any state official or other third party. [ Footnote 31 ] Within dosage limits which appellees do not challenge, the decision to prescribe, or to use, is left entirely to the physician and the patient. We hold that neither the immediate nor the threatened impact of the patient identification requirements in the New York State Controlled Substances Act of 1972 on either the reputation or the independence of patients for whom Schedule II drugs are medically indicated is sufficient to constitute an Page 429 U. S. 604 invasion of any right or liberty protected by the Fourteenth Amendment. [ Footnote 32 ] III The appellee doctors argue separately that the statute impairs their right to practice medicine free of unwarranted state interference. If the doctors' claim has any reference to the impact of the 1972 statute on their own procedures, it is clearly frivolous. For even the prior statute required the doctor to prepare a written prescription identifying the name and address of the patient and the dosage of the prescribed drug. To the extent that their claim has reference to the possibility that the patients' concern about disclosure may induce them to refuse needed medication, the doctors' claim is derivative from, and therefore no stronger than, the patients'. [ Footnote 33 ] Our rejection of their claim therefore disposes of the doctors' as well. Page 429 U. S. 605 A final word about issues we have not decided. We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. [ Footnote 34 ] The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces, and the enforcement of the criminal laws all require the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed. The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures. Recognizing that, in some circumstances, that duty arguably has its roots in the Constitution, nevertheless New York's statutory scheme, and its implementing administrative procedures, evidence a proper concern with, and protection of, the individual's interest in privacy. We therefore need not, and do not, decide any question which might be presented by the unwarranted disclosure Page 429 U. S. 606 of accumulated private data -- whether intentional or unintentional -- or by a system that did not contain comparable security provisions. We simply hold that this record does not establish an invasion of any right or liberty protected by the Fourteenth Amendment. Reversed. [ Footnote 1 ] 1972 N.Y.Laws, c. 878; N.Y.Pub.Health Law § 3300 et seq. (McKinney, Supp. 1971977) (hereafter Pub.Health Law, except as indicated in n 13, infra ). [ Footnote 2 ] Roe v. Ingraham, 403 F. Supp. 931 (SDNY 1975). Earlier, the District Court had dismissed the complaint for want of a substantial federal question. Roe v. Ingraham, 357 F. Supp. 1217 (1973). The Court of Appeals reversed, holding that a substantial constitutional question was presented, and therefore a three-judge court was required. Roe v. Ingraham, 480 F.2d 102 (CA2 1973). [ Footnote 3 ] Jurisdiction is conferred by 28 U.S.C. §§ 1253, 2101(b). [ Footnote 4 ] 1970 N.Y.Laws, c. 474, amended by 1971 N.Y.Laws, c. 7. The Temporary State Commission to Evaluate the Drug Laws (hereafter T.S.C.) issued two reports which, it is stipulated, constitute part of the legislative history of the Act. The reports are the Interim Report of the Temporary State Commission to Evaluate the Drug Laws (State of New York, Legislative Doc. No. 10, Jan.1972); and the Second Interim Report of the Temporary State Commission to Evaluate the Drug Laws (Albany, N.Y. Apr. 5, 1971). [ Footnote 5 ] Id. at 3-5. [ Footnote 6 ] The Chairman of the T.S.C. summarized its findings: "Law enforcement officials in both California and Illinois have been consulted in considerable depth about the use of multiple prescriptions, since they have been using them for a considerable period of time. They indicate to us that they are not only a useful adjunct to the proper identification of culpable professional and unscrupulous drug abusers, but that they also give a reliable statistical indication of the pattern of drug flow throughout their states: information sorely needed in this state to stem the tide of diversion of lawfully manufactured controlled substances." Memorandum of Chester R. Hardt, App. 87a-88a. T.S.C. Interim Report 21; T.S.C. Second Interim Report 27-44. Cal.Health & Safety Code §§ 11158, 11160, 11167 (West, 1975 and Supp. 1976); Ill.Ann.Stat., c. 562, §§ 1308, 1311, 1312(a) (Supp. 1977). [ Footnote 7 ] These five schedules conform in all material aspects with the drug schedules in the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970. 21 U.S.C. § 801 et seq. [ Footnote 8 ] These include opium and opium derivatives, cocaine, methadone, amphetamines, and methaqualone. Pub.Health Law § 3306. These drugs have accepted uses in the amelioration of pain and in the treatment of epilepsy, narcolepsy, hyperkinesia, schizo-affective disorders, and migraine headaches. [ Footnote 9 ] Pub.Health Law §§ 3334, 3338. These forms are prepared and issued by the Department of Health, numbered serially, in groups of 100 forms at $10 per group (10 cents per triplicate form). New York State Health Department -- Official New York State Prescription, Form N77 (8/72). [ Footnote 10 ] Pub.Health Law §§ 3331-3333, 3339. The pharmacist normally forwards the prescription to Albany after filling it. If the physician dispenses the drug himself, he must forward two copies of the prescription to the Department of Health, § 3331(6). [ Footnote 11 ] Pub.Health Law § 3370(3) , 1974 N.Y.Laws, c. 965, § 16. The physician and the pharmacist are required to retain their copies for five years also, Pub. Health Law §§ 3331(6), 3332(4), 3333(4), but they are not required to destroy then. [ Footnote 12 ] Section 3371 of the Pub.Health Law states: "1. No person, who has knowledge by virtue of his office of the identity of a particular patient or research subject, a manufacturing process, a trade secret or a formula shall disclose such knowledge, or any report or record thereof, except:" "(a) to another person employed by the department, for purposes of executing provisions of this article; or" "(b) pursuant to judicial subpoena or court order in a criminal investigation or proceeding; or" "(c) to an agency, department of government, or official board authorized to regulate, license or otherwise supervise a person who is authorized by this article to deal in controlled substances, or in the course of any investigation or proceeding by or before such agency, department or board; or" "(d) to a central registry established pursuant to this article." "2. In the course of any proceeding where such information is disclosed, except when necessary to effectuate the rights of a party to the proceeding, the court or presiding officer shall take such action as is necessary to insure that such information, or record or report of such information is not made public." Pursuant to its statutory authority, the Department of Health has promulgated regulations in respect of confidentiality as follows: "No person who has knowledge by virtue of his office of the identity of a particular patient or research subject, a manufacturing process, a trade secret or a formula shall disclose such knowledge, or any report or record thereof, except:" "(a) to another person who by virtue of his office as an employee of the department is entitled to obtain such information; or" "(b) pursuant to judicial subpoena or court order in a criminal investigation or proceedings; or" "(c) to an agency, department of government, or official board authorized to regulate, license or otherwise supervise a person who is authorized by article 33 of the Public Health Law to deal in controlled substances, or in the course of any investigation or proceeding by or before such agency, department or board; or" "(d) to a central registry established pursuant to article 33 of the Public Health Law." 10 N.Y.C.R.R. § 80.107 (1973). [ Footnote 13 ] N.Y.Pub.Health Law § 12-b(2) (McKinney 1971). [ Footnote 14 ] The physicians' associations, Empire State Physicians Guild, Inc. and the American Federation of Physicians and Dentists, articulate no claims which are severable from the claims of the named physicians. We therefore find it unnecessary to consider whether the organizations themselves may have standing to maintain these suits. [ Footnote 15 ] In addition to the appeal from the original dismissal of the complaint, the parties took depositions which were made a part of the record and entered into a stipulation of facts. [ Footnote 16 ] Two parents testified that they were concerned that their children would be stigmatized by the State's central filing system. One child had been taken off his Schedule II medication because of this concern. Three adult patients testified that they feared disclosure of their names would result from central filing of patient identifications. One of them now obtains his drugs in another State. The other two continue to receive Schedule II prescriptions in New York, but continue to fear disclosure and stigmatization. Four physicians testified that the prescription system entrenches on patients' privacy, and that each had observed a reaction of shock, fear, and concern on the part of their patients whom they had informed of the plan. One doctor refuses to prescribe Schedule II drugs for his patients. On the other hand, over 100,000 patients per month have been receiving Schedule II drug prescriptions without their objections, if any, to central filing having come to the attention of the District Court. The record shows that the provisions of the Act were brought to the attention of the section on psychiatry of the New York State Medical Society (App. 166a), but that body apparently declined to support this suit. [ Footnote 17 ] Pub.Health Law §§ 3331(6), 3332(2)(a), 3333(4). [ Footnote 18 ] Roe v. Wade, 410 U. S. 113 , 410 U. S. 117 ; Griswold v. Connecticut, 381 U. S. 479 , 381 U. S. 481 -482; Ferguson v. Skrupa, 372 U. S. 726 , 372 U. S. 729 -730; FHA v. The Darlington, Inc., 358 U. S. 84 , 358 U. S. 91 -92. [ Footnote 19 ] "We are not concerned, however, with the wisdom, need, or appropriateness of the legislation." Olsen v. Nebraska ex rel. Western Reference & Bond Assn., 313 U. S. 236 , 313 U. S. 246 . [ Footnote 20 ] Mr. Justice Brandeis' classic statement of the proposition merits reiteration: "To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious or unreasonable. We have power to do this, because the due process clause has been held by the Court applicable to matters of substantive law as well as to matters of procedure. But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold." New State Ice Co. v. Liebmann, 285 U. S. 262 , 285 U. S. 311 (dissenting opinion) (footnote omitted). [ Footnote 21 ] The absence of detected violations does not, of course, demonstrate that a statute has no significant deterrent effect. "From the beginning of civilized societies, legislators and judges have acted on various unprovable assumptions. Such assumptions underlie much lawful state regulation of commercial and business affairs. . . ." Paris Adult Theatre I v. Slaton, 413 U. S. 49 , 413 U. S. 61 (citations omitted). "Nothing in the Constitution prohibits a State from reaching . . . a conclusion and acting on it legislatively simply because there is no conclusive evidence or empirical data." Id. at 413 U. S. 63 . [ Footnote 22 ] "Such regulation, it can be assumed, could take a variety of valid forms." Robinson v. California, 370 U. S. 660 , 370 U. S. 664 . Cf. Minnesota ex rel. Whipple v. Martinson, 256 U. S. 41 , 256 U. S. 45 ; Beauharnais v. Illinois, 343 U. S. 250 , 343 U. S. 261 -262. [ Footnote 23 ] As the basis for the constitutional claim, they rely on the shadows cast by a variety of provisions in the Bill of Rights. Language in prior opinions of the Court or its individual Justices provides support for the view that some personal rights "implicit in the concept of ordered liberty" ( see Palko v. Connecticut, 302 U. S. 319 , 302 U. S. 325 , quoted in Roe v. Wade, 410 U.S. at 410 U. S. 152 ), are so "fundamental" that an undefined penumbra may provide them with an independent source of constitutional protection. In Roe v. Wade, however, after carefully reviewing those cases, the Court expressed the opinion that the "right of privacy" is founded in the Fourteenth Amendment's concept of personal liberty, id. at 410 U. S. 152 -153. "This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Id. at 410 U. S. 153 (emphasis added). See also id. at 410 U. S. 168 -171 (STEWART, J., concurring); Griswold v. Connecticut, 381 U. S. 479 , 381 U. S. 500 (Harlan, J., concurring in judgment). [ Footnote 24 ] Professor Kurland has written: "The concept of a constitutional right of privacy still remains largely undefined. There are at least three facets that have been partially revealed, but their form and shape remain to be fully ascertained. The first is the right of the individual to be free in his private affairs from governmental surveillance and intrusion. The second is the right of an individual not to have his private affairs made public by the government. The third is the right of an individual to be free in action, thought, experience, and belief from governmental compulsion." The private I, the University of Chicago Magazine 7, 8 (autumn 1976). The first of the facets which he describes is directly protected by the Fourth Amendment; the second and third correspond to the two kinds of interests referred to in the text. [ Footnote 25 ] In his dissent in Olmstead v. United States, 277 U. S. 438 , 277 U. S. 478 , Mr. Justice Brandeis characterized "the right to be let alone" as "the right most valued by civilized men"; in Griswold v. Connecticut, 381 U. S. 479 , 381 U. S. 483 , the Court said: "[T]he First Amendment has a penumbra where privacy is protected from governmental intrusion." See also Stanley v. Georgia, 394 U. S. 557 ; California Bankers Assn. v. Shultz, 416 U. S. 21 , 416 U. S. 79 (Douglas, J., dissenting); id. at 416 U. S. 78 (POWELL, J., concurring). [ Footnote 26 ] Roe v. Wade, supra; Doe v. Bolton, 410 U. S. 179 ; Loving v. Virginia, 388 U. S. 1 ; Griswold v. Connecticut, supra; Pierce v. Society of Sisters, 268 U. S. 510 ; Meyer v. Nebraska, 262 U. S. 390 ; Allgeyer v. Louisiana, 165 U. S. 578 . In Paul v. Davis, 424 U. S. 693 , 424 U. S. 713 , the Court characterized these decisions as dealing with "matters relating to marriage, procreation, contraception, family relationships, and childrearing and education. In these areas, it has been held that there are limitations on the States' power to substantively regulate conduct." [ Footnote 27 ] The T.S.C.'s independent investigation of the California and Illinois central filing systems failed to reveal a single case of invasion of a patient's privacy. T.S.C. Memorandum of Chester R. Hardt, Chairman, Re: Triplicate Prescriptions, New York State Controlled Substances Act, effective Apr. 1, 1973 (reproduced at App. 88a). Just last Term, in Buckley v. Valeo, 424 U. S. 1 , we rejected a contention that the reporting requirements of the Federal Election Campaign Act of 1971 violated the First Amendment rights of those who contribute to minority parties: "But no appellant in this case has tendered record evidence. . . . Instead, appellants primarily rely on 'the clearly articulated fears of individuals, well experienced in the political process.'. . . At best, they offer the testimony of several minor party officials that one or. two persons refused to make contributions because of the possibility of disclosure. On this record, the substantial public interest in disclosure identified by the legislative history of this Act outweighs the harm generally alleged." 424 U.S. at 424 U. S. 71 -72 (footnote omitted) Here, too, appellees urge on us "clearly articulated fears" about the pernicious effects of disclosure. But this requires us to assume even more than that we refused to do in Buckley. There, the disclosures were to be made in accordance with the statutory scheme. Appellees' disclosures could only be made if the statutory scheme were violated as described, supra at 429 U. S. 594 -595. The fears of parents on behalf of their pre-adolescent children who are receiving amphetamines in the treatment of hyperkinesia are doubly premature. Not only must the Act's nondisclosure provisions be violated in order to stigmatize the children as they enter adult life, but the provisions requiring destruction of all prescription records after five years would have to be ignored, see n 11, supra, and accompanying text. [ Footnote 28 ] The physician-patient evidentiary privilege is unknown to the common law. In States where it exists by legislative enactment, it is subject to many exceptions and to waiver for many reasons. C. McCormick, Evidence §§ 98, 101-104 (2d ed.1972); 8 J. Wigmore, Evidence § 2380, nn. 3, 5, 6, §§ 2388-2391 (McNaughton rev. ed.1961). [ Footnote 29 ] Familiar examples are statutory reporting requirements relating to venereal disease, child abuse, injuries caused by deadly weapons, and certifications of fetal death. Last Term we upheld the recordkeeping requirements of the Missouri abortion laws against a challenge based on the protected interest in making the abortion decision free of governmental intrusion, Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52 , 428 U. S. 79 -81. [ Footnote 30 ] It is, of course, well settled that the State has broad police powers in regulating the administration of drug by the health professions. Robinson v. California, 370 U.S. at 370 U. S. 664 -665; Minnesota ex rel. Whipple v. Martinson, 256 U.S. at 256 U. S. 45 ; Barsky v. Board of Regents, 347 U. S. 442 , 347 U. S. 449 . [ Footnote 31 ] In Doe v. Bolton, 410 U. S. 179 , for instance, the constitutionally defective statute required the written concurrence of two state-licensed physicians, other than the patient's personal physician, before an abortion could be performed, and the advance approval of a committee of not less than three members of the hospital staff where the procedure was to be performed, regardless of whether the committee members had a physician-patient relationship with the woman concerned. [ Footnote 32 ] The Roe appellees also claim that a constitutional privacy right emanates from the Fourth Amendment, citing language in Terry v. Ohio, 392 U. S. 1 , 392 U. S. 9 , at a point where it quotes from Katz v. United States, 389 U. S. 347 . But those cases involve affirmative, unannounced, narrowly focused intrusions into individual privacy during the course of criminal investigations. We have never carried the Fourth Amendment's interest in privacy as far as the Roe appellees would have us. We decline to do so now. Likewise the Patient appellees derive a right to individual anonymity from our freedom of association cases such as Bates v. Little Rock, 361 U. S. 516 , 361 U. S. 522 -523, and NAACP v. Alabama, 357 U. S. 449 , 357 U. S. 462 . But those cases protect "freedom of association for the purpose of advancing ideas and airing grievances," Bates v. Little Rock, supra at 357 U. S. 523 , not anonymity in the course of medical treatment. Also, in those cases there was an uncontroverted showing of past harm through disclosure, NAACP v. Alabama, supra at 361 U. S. 462 , an element which is absent here. Cf. Schulman v. New York City Health & Hospitals Corp., 38 N.Y.2d 234, 342 N.E.2d 501 (1975). [ Footnote 33 ] The doctors rely on two references to a physician's right to administer medical care in the opinion in Doe v. Bolton, 410 U.S. at 410 U. S. 197 -198, and 199. Nothing in that case suggests that a doctor's right to administer medical care has any greater strength than his patient's right to receive such care. The constitutional right vindicated in Doe was the right of a pregnant woman to decide whether or not to bear a child without unwarranted state interference. The statutory restrictions on the abortion procedures were invalid because they encumbered the woman's exercise of that constitutionally protected right by placing obstacles in the path of the doctor upon whom she was entitled to rely for advice in connection with her decision. If those obstacles had not impacted upon the woman's freedom to make a constitutionally protected decision, if they had merely made the physician's work more laborious or less independent without any impact on the patient, they would not have violated the Constitution. [ Footnote 34 ] Boyer, Computerized Medical Records and the Right to Privacy: The Emerging Federal Response, 25 Buffalo L.Rev. 37 (1975); Miller, Computers, Data Banks and Individual Privacy: An Overview, 4 Colum. Human Rights L.Rev. 1 (1972); A. Miller, The Assault on Privacy (1971). See also Utz v. Cullinane, 172 U.S.App.D.C. 67, 78-82, 520 F.2d 467, 478-482 (1975). MR. JUSTICE BRENNAN, concurring. I write only to express my understanding of the opinion of the Court, which I join. The New York statute under attack requires doctors to disclose to the State information about prescriptions for certain drugs with a high potential for abuse, and provides for the storage of that information in a central computer file. The Court recognizes that an individual's "interest in avoiding disclosure of personal matters" is an aspect of the right of privacy, ante at 429 U. S. 598 -600, and nn. 24-25, but holds that in this case, any such interest has not been seriously enough invaded by the State to require a showing that its program was indispensable to the State's effort to control drug abuse. The information disclosed by the physician under this program is made available only to a small number of public health officials with a legitimate interest in the information. As the record makes clear, New York has long required doctors to make this information available to its officials on request, and that practice is not challenged here. Such limited reporting requirements in the medical field are familiar, ante at 429 U. S. 602 n. 29, and are not generally regarded as an invasion of privacy. Broad dissemination by state officials of such information, however, would clearly implicate constitutionally protected privacy rights, and would presumably be justified only by compelling state interests. See, e.g., Roe v. Wade, 410 U. S. 113 , 410 U. S. 155 -156 (1973). What is more troubling about this scheme, however, is the central computer storage of the data thus collected. Obviously, as the State argues, collection and storage of data Page 429 U. S. 607 by the State that is, in itself, legitimate is not rendered unconstitutional simply because new technology makes the State's operations more efficient. However, as the example of the Fourth Amendment shows, the Constitution puts limits not only on the type of information the State may gather, but also on the means it may use to gather it. The central storage and easy accessibility of computerized data vastly increase the potential for abuse of that information, and I am not prepared to say that future developments will not demonstrate the necessity of some curb on such technology. In this case, as the Court's opinion makes clear, the State's carefully designed program includes numerous safeguard intended to forestall the danger of indiscriminate disclosure. Given this serious and, so far as the record shows, successful effort to prevent abuse and limit access to the personal information at issue, I cannot say that the statute's provisions for computer storage, on their face, amount to a deprivation of constitutionally protected privacy interests, any more than the more traditional reporting provisions. In the absence of such a deprivation, the State was not required to prove that the challenged statute is absolutely necessary to its attempt to control drug abuse. Of course, a statute that did effect such a deprivation would only be consistent with the Constitution if it were necessary to promote a compelling state interest. Roe v. Wade, supra; Eisenstadt v. Baird, 405 U. S. 438 , 405 U. S. 464 (1972) (WHITE, J., concurring in result). MR. JUSTICE STEWART, concurring. In Katz v. United States, 389 U. S. 347 , the Court made clear that although the Constitution affords protection against certain kinds of government intrusions into personal and private matters, * there is no "general constitutional 'right to Page 429 U. S. 608 privacy.' . . . [T]he protection of a person's general right to privacy -- his right to be let alone by other people -- is, like the protection of his property and of his very life, left largely to the law of the individual States." Id. at 389 U. S. 350 -351 (footnote omitted). MR. JUSTICE BRENNAN's concurring opinion states that "[b]road dissemination by state officials of [the information collected by New York State] . . . would clearly implicate constitutionally protected privacy rights. . . ." Ante at 429 U. S. 606 . The only possible support in his opinion for this statement is its earlier reference to two footnotes in the Court's opinion, ibid., citing ante at 429 U. S. 599 -600, and nn. 24-25 (majority opinion). The footnotes, however, cite to only two Court opinions, and those two cases do not support the proposition advanced by MR. JUSTICE BRENNAN. The first case referred to, Griswold v. Connecticut, 381 U. S. 479 , held that a State cannot constitutionally prohibit a married couple from using contraceptives in the privacy of their home. Although the broad language of the opinion includes a discussion of privacy, see id. at 381 U. S. 484 -485, the constitutional protection there discovered also related to (1) marriage, see id. at 381 U. S. 485 -486; id. at 381 U. S. 495 (Goldberg, J., concurring); id. at Page 429 U. S. 609 381 U. S. 500 (Harlan, J., concurring in judgment), citing Poe v. Ullman, 367 U. S. 497 , 367 U. S. 522 (Harlan, J., dissenting); 381 U.S. at 381 U. S. 502 -503 (WHITE, J., concurring in judgment); (2) privacy in the home, see id. at 381 U. S. 484 -485 (majority opinion); id. at 381 U. S. 495 (Goldberg, J., concurring); id. at 381 U. S. 500 (Harlan, J., concurring in judgment), citing Poe v. Ullman, supra at 367 U. S. 522 (Harlan, J., dissenting); and (3) the right to use contraceptives, see 381 U.S. at 381 U. S. 503 (WHITE, J., concurring in judgment); see also Roe v. Wade, 410 U. S. 113 , 410 U. S. 169 -170 (STEWART, J., concurring). Whatever the ratio decidendi of Griswold, it does not recognize a general interest in freedom from disclosure of private information. The other case referred to, Stanley v. Georgia, 394 U. S. 557 , held that an individual cannot constitutionally be prosecuted for possession of obscene materials in his home. Although Stanley makes some reference to privacy rights, id. at 394 U. S. 564 , the holding there was simply that the First Amendment -- as made applicable to the States by the Fourteenth -- protects a person's right to read what he chooses in circumstances where that choice poses no threat to the sensibilities or welfare of others, id. at 394 U. S. 565 -568. Upon the understanding that nothing the Court says today is contrary to the above views, I join its opinion and judgment. * See 389 U.S. at 389 U. S. 350 n. 5: "The First Amendment, for example, imposes limitation upon governmental abridgment of 'freedom to associate and privacy in one's association." NAACP v. Alabama, 357 U. S. 449 , 357 U. S. 462 . The Third Amendment's prohibition against the unconsented peacetime quartering of soldiers protects another aspect of privacy from governmental intrusion. To some extent, the Fifth Amendment too "reflects the Constitution's concern for . . . . . . the right of each individual "to a private enclave where he may lead a private life.'" Tehan v. Shott, 382 U. S. 406 , 382 U. S. 416 . Virtually every governmental action interferes with personal privacy to some degree. The question in each case is whether that interference violates a command of the United States Constitution. As the Court note, ante at 429 U. S. 599 -600, and n. 26, there is also a line of authority, often characterized as involving "privacy," affording constitutional protection to the autonomy of an individual or a family unit in making decisions generally relating to marriage, procreation, and raising children.

In Whalen v. Roe, the Supreme Court upheld a New York law requiring doctors to disclose patient information for certain prescription drugs, finding that the law was a reasonable exercise of the state's police powers and did not violate the Fourteenth Amendment. The Court rejected arguments that the law invaded patients' privacy or posed a threat to their reputation or independence. Justices Brennan and Marshall concurred, emphasizing the limited nature of the decision and distinguishing it from previous privacy cases like Griswold v. Connecticut and Stanley v. Georgia.

Health Care

Cruzan v. Director, Missouri Dept. of Health

https://supreme.justia.com/cases/federal/us/497/261/

U.S. Supreme Court Cruzan v. Director, MDH, 497 U.S. 261 (1990) Cruzan by Cruzan v. Director, Missouri Department of Health No. 88-1503 Argued Dec. 6, 1989 Decided June 25, 1990 497 U.S. 261 CERTIORARI TO THE SUPREME COURT OF MISSOURI Syllabus Petitioner Nancy Cruzan is incompetent, having sustained severe injuries in an automobile accident, and now lies in a Missouri state hospital in what is referred to as a persistent vegetative state: generally, a condition in which a person exhibits motor reflexes but evinces no indications of significant cognitive function. The State is bearing the cost of her care. Hospital employees refused, without court approval, to honor the request of Cruzan's parents, copetitioners here, to terminate her artificial nutrition and hydration, since that would result in death. A state trial court authorized the termination, finding that a person in Cruzan's condition has a fundamental right under the State and Federal Constitutions to direct or refuse the withdrawal of death-prolonging procedures, and that Cruzan's expression to a former housemate that she would not wish to continue her life if sick or injured unless she could live at least halfway normally suggested that she would not wish to continue on with her nutrition and hydration. The State Supreme Court reversed. While recognizing a right to refuse treatment embodied in the common-law doctrine of informed consent, the court questioned its applicability in this case. It also declined to read into the State Constitution a broad right to privacy that would support an unrestricted right to refuse treatment and expressed doubt that the Federal Constitution embodied such a right. The court then decided that the State Living Will statute embodied a state policy strongly favoring the preservation of life, and that Cruzan's statements to her housemate were unreliable for the purpose of determining her intent. It rejected the argument that her parents were entitled to order the termination of her medical treatment, concluding that no person can assume that choice for an incompetent in the absence of the formalities required by the Living Will statute or clear and convincing evidence of the patient's wishes. Held: 1. The United States Constitution does not forbid Missouri to require that evidence of an incompetent's wishes as to the withdrawal of life-sustaining treatment be proved by clear and convincing evidence. Pp. 497 U. S. 269 -285. Page 497 U. S. 262 (a) Most state courts have based a right to refuse treatment on the common law right to informed consent, see, e.g., In re Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64, or on both that right and a constitutional privacy right, see, e.g., Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 . In addition to relying on state constitutions and the common law, state courts have also turned to state statutes for guidance, see, e.g., Conservatorship of Drabick, 200 Cal. App. 3d 185 , 245 Cal. Rptr. 840 . However, these sources are not available to this Court, where the question is simply whether the Federal Constitution prohibits Missouri from choosing the rule of law which it did. (b) A competent person has a liberty interest under the Due Process Clause in refusing unwanted medical treatment. Cf., e.g., Jacobson v. Massachusetts, 197 U. S. 11 , 197 U. S. 24 -30. However, the question whether that constitutional right has been violated must be determined by balancing the liberty interest against relevant state interests. For purposes of this case, it is assumed that a competent person would have a constitutionally protected right to refuse lifesaving hydration and nutrition. This does not mean that an incompetent person should possess the same right, since such a person is unable to make an informed and voluntary choice to exercise that hypothetical right or any other right. While Missouri has in effect recognized that, under certain circumstances, a surrogate may act for the patient in electing to withdraw hydration and nutrition and thus cause death, it has established a procedural safeguard to assure that the surrogate's action conforms as best it may to the wishes expressed by the patient while competent. Pp. 497 U. S. 280 -285, (c) It is permissible for Missouri, in its proceedings, to apply a clear and convincing evidence standard, which is an appropriate standard when the individual interests at stake are both particularly important and more substantial than mere loss of money, Santosky v. Kramer, 455 U. S. 745 , 455 U. S. 756 . Here, Missouri has a general interest in the protection and preservation of human life, as well as other, more particular interests, at stake. It may legitimately seek to safeguard the personal element of an individual's choice between life and death. The State is also entitled to guard against potential abuses by surrogates who may not act to protect the patient. Similarly, it is entitled to consider that a judicial proceeding regarding an incompetent's wishes may not be adversarial, with the added guarantee of accurate factfinding that the adversary process brings with it. The State may also properly decline to make judgments about the "quality" of a particular individual's life, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual. It is self-evident that these interests are more substantial, both on Page 497 U. S. 263 an individual and societal level, than those involved in a common civil dispute. The clear and convincing evidence standard also serves as a societal judgment about how the risk of error should be distributed between the litigants. Missouri may permissibly place the increased risk of an erroneous decision on those seeking to terminate life-sustaining treatment. An erroneous decision not to terminate results in a maintenance of the status quo, with at least the potential that a wrong decision will eventually be corrected or its impact mitigated by an event such as an advancement in medical science or the patient's unexpected death. However, an erroneous decision to withdraw such treatment is not susceptible of correction. Although Missouri's proof requirement may have frustrated the effectuation of Cruzan's not-fully-expressed desires, the Constitution does not require general rules to work flawlessly. Pp. 497 U. S. 280 -285. 2. The State Supreme Court did not commit constitutional error in concluding that the evidence adduced at trial did not amount to clear and convincing proof of Cruzan's desire to have hydration and nutrition withdrawn. The trial court had not adopted a clear and convincing evidence standard, and Cruzan's observations that she did not want to live life as a "vegetable" did not deal in terms with withdrawal of medical treatment or of hydration and nutrition. P. 497 U. S. 285 . 3. The Due Process Clause does not require a State to accept the "substituted judgment" of close family members in the absence of substantial proof that their views reflect the patient's. This Court's decision upholding a State's favored treatment of traditional family relationships, Michael H. v. Gerald D., 491 U. S. 110 , may not be turned into a constitutional requirement that a State must recognize the primacy of these relationships in a situation like this. Nor may a decision upholding a State's right to permit family decisionmaking, Parham v. J.R., 442 U. S. 584 , be turned into a constitutional requirement that the State recognize such decisionmaking. Nancy Cruzan's parents would surely be qualified to exercise such a right of "substituted judgment" were it required by the Constitution. However, for the same reasons that Missouri may require clear and convincing evidence of a patient's wishes, it may also choose to defer only to those wishes, rather than confide the decision to close family members. Pp. 497 U. S. 285 -287. 760 S.W.2d 408 , affirmed. REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. O'CONNOR, J., post, p. 497 U. S. 287 , and SCALIA, J., post, p. 497 U. S. 292 , filed concurring opinions. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, Page 497 U. S. 264 JJ., joined, post, p. 497 U. S. 301 . STEVENS, J., filed a dissenting opinion, post, p. 497 U. S. 330 . Page 497 U. S. 265 Chief Justice REHNQUIST delivered the opinion of the Court. Petitioner Nancy Beth Cruzan was rendered incompetent as a result of severe injuries sustained during an automobile accident. Copetitioners Lester and Joyce Cruzan, Nancy's parents and coguardians, sought a court order directing the withdrawal of their daughter's artificial feeding and hydration equipment after it became apparent that she had virtually no chance of recovering her cognitive faculties. The Supreme Court of Missouri held that, because there was no clear and convincing evidence of Nancy's desire to have life-sustaining treatment withdrawn under such circumstances, her parents lacked authority to effectuate such a request. We granted certiorari, 492 U.S. 917 (1989), and now affirm. Page 497 U. S. 266 On the night of January 11, 1983, Nancy Cruzan lost control of her car as she traveled down Elm Road in Jasper County, Missouri. The vehicle overturned, and Cruzan was discovered lying face down in a ditch without detectable respiratory or cardiac function. Paramedics were able to restore her breathing and heartbeat at the accident site, and she was transported to a hospital in an unconscious state. An attending neurosurgeon diagnosed her as having sustained probable cerebral contusions compounded by significant anoxia (lack of oxygen). The Missouri trial court in this case found that permanent brain damage generally results after 6 minutes in an anoxic state; it was estimated that Cruzan was deprived of oxygen from 12 to 14 minutes. She remained in a coma for approximately three weeks, and then progressed to an unconscious state in which she was able to orally ingest some nutrition. In order to ease feeding and further the recovery, surgeons implanted a gastrostomy feeding and hydration tube in Cruzan with the consent of her then husband. Subsequent rehabilitative efforts proved unavailing. She now lies in a Missouri state hospital in what is commonly referred to as a persistent vegetative state: generally, a condition in which a person exhibits motor reflexes but evinces no indications of significant cognitive function. [ Footnote 1 ] The State of Missouri is bearing the cost of her care. Page 497 U. S. 267 After it had become apparent that Nancy Cruzan had virtually no chance of regaining her mental faculties, her parents asked hospital employees to terminate the artificial nutrition and hydration procedures. All agree that such a Page 497 U. S. 268 removal would cause her death. The employees refused to honor the request without court approval. The parents then sought and received authorization from the state trial court for termination. The court found that a person in Nancy's condition had a fundamental right under the State and Federal Constitutions to refuse or direct the withdrawal of "death prolonging procedures." App. to Pet. for Cert. A99. The court also found that Nancy's "expressed thoughts at age twenty-five in somewhat serious conversation with a housemate friend that, if sick or injured, she would not wish to continue her life unless she could live at least halfway normally suggests that, given her present condition, she would not wish to continue on with her nutrition and hydration." Id. at A97-A98. The Supreme Court of Missouri reversed by a divided vote. The court recognized a right to refuse treatment embodied in the common law doctrine of informed consent, but expressed skepticism about the application of that doctrine in the circumstances of this case. Cruzan v. Harmon, 760 S.W.2d 408 , 416-417 (Mo.1988) (en banc). The court also declined to read a broad right of privacy into the State Constitution which would "support the right of a person to refuse medical treatment in every circumstance," and expressed doubt as to whether such a right existed under the United States Constitution. Id. at 417-418. It then decided that the Missouri Living Will statute, Mo.Rev.Stat. § 459.010 et seq. (1986), embodied a state policy strongly favoring the preservation of life. 760 S.W.2d, at 419-420. The court found that Cruzan's statements to her roommate regarding her desire to live or die under certain conditions were "unreliable for the purpose of determining her intent," id. at 424, "and thus insufficient to support the coguardians claim to exercise substituted judgment on Nancy's behalf." Id. at 426. It rejected the argument that Cruzan's parents were entitled to order the termination of her medical treatment, Page 497 U. S. 269 concluding that "no person can assume that choice for an incompetent in the absence of the formalities required under Missouri's Living Will statutes or the clear and convincing, inherently reliable evidence absent here." Id. at 425. The court also expressed its view that "[b]road policy questions bearing on life and death are more properly addressed by representative assemblies" than judicial bodies. Id. at 426. We granted certiorari to consider the question of whether Cruzan has a right under the United States Constitution which would require the hospital to withdraw life-sustaining treatment from her under these circumstances. At common law, even the touching of one person by another without consent and without legal justification was a battery. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 9, pp. 39-42 (5th ed. 1984). Before the turn of the century, this Court observed that "[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Union Pacific R. Co. v. Botsford, 141 U. S. 250 , 141 U. S. 251 (1891). This notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment. Justice Cardozo, while on the Court of Appeals of New York, aptly described this doctrine: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages." Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914). The informed consent doctrine has become firmly entrenched in American tort law. See Dobbs, Keeton, & Owen, supra, § 32, pp. 189-192; F. Rozovsky, Consent to Treatment, A Practical Guide 1-98 (2d ed. 1990). Page 497 U. S. 270 The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment. Until about 15 years ago and the seminal decision in In re Quinlan, 70 N.J. 10, 355 A.2d 647 , cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976), the number of right-to-refuse-treatment decisions were relatively few. [ Footnote 2 ] Most of the earlier cases involved patients who refused medical treatment forbidden by their religious beliefs, thus implicating First Amendment rights as well as common law rights of self-determination. [ Footnote 3 ] More recently, however, with the advance of medical technology capable of sustaining life well past the point where natural forces would have brought certain death in earlier times, cases involving the right to refuse life-sustaining treatment have burgeoned. See 760 S.W.2d at 412, n. 4 (collecting 54 reported decisions from 1976-1988). In the Quinlan case, young Karen Quinlan suffered severe brain damage as the result of anoxia, and entered a persistent vegetative state. Karen's father sought judicial approval to disconnect his daughter's respirator. The New Jersey Supreme Court granted the relief, holding that Karen had a right of privacy grounded in the Federal Constitution to terminate treatment. In re Quinlan, 70 N.J. at 38-42, 355 A.2d at 662-664. Recognizing that this right was not absolute, however, the court balanced it against asserted state interests. Noting that the State's interest "weakens and the individual's right to privacy grows as the degree of bodily invasion increases and the prognosis dims," the court concluded that the state interests had to give way in that case. Id. at Page 497 U. S. 271 41, 355 A.2d at 664. The court also concluded that the "only practical way" to prevent the loss of Karen's privacy right due to her incompetence was to allow her guardian and family to decide "whether she would exercise it in these circumstances." Ibid. After Quinlan, however, most courts have based a right to refuse treatment either solely on the common law right to informed consent or on both the common law right and a constitutional privacy right. See L. Tribe, American Constitutional Law § 15-11, p. 1365 (2d ed. 1988). In Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977), the Supreme Judicial Court of Massachusetts relied on both the right of privacy and the right of informed consent to permit the withholding of chemotherapy from a profoundly-retarded 67-year-old man suffering from leukemia. Id. at 737-738, 370 N.E.2d at 424. Reasoning that an incompetent person retains the same rights as a competent individual "because the value of human dignity extends to both," the court adopted a "substituted judgment" standard whereby courts were to determine what an incompetent individual's decision would have been under the circumstances. Id. at 745, 752-753, 757-758, 370 N.E.2d at 427, 431, 434. Distilling certain state interests from prior case law -- the preservation of life, the protection of the interests of innocent third parties, the prevention of suicide, and the maintenance of the ethical integrity of the medical profession -- the court recognized the first interest as paramount and noted it was greatest when an affliction was curable, "as opposed to the State interest where, as here, the issue is not whether, but when, for how long, and at what cost to the individual [a] life may be briefly extended." Id. at 742, 370 N.E.2d at 426. In In re Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64, cert. denied, 464 U.S. 858 (1981), the New York Court of Appeals declined to base a right to refuse treatment on a constitutional privacy right. Instead, it found such a right "adequately Page 497 U. S. 272 supported" by the informed consent doctrine. Id. at 376-377, 438 N.Y.S.2d at 272, 420 N.E.2d at 70. In In re Eichner (decided with In re Storar, supra ), an 83-year-old man who had suffered brain damage from anoxia entered a vegetative state and was thus incompetent to consent to the removal of his respirator. The court, however, found it unnecessary to reach the question of whether his rights could be exercised by others, since it found the evidence clear and convincing from statements made by the patient when competent that he "did not want to be maintained in a vegetative coma by use of a respirator." Id. at 380, 438 N.Y.S.2d at 274, 420 N.E.2d at 72. In the companion Storar case, a 52-year-old man suffering from bladder cancer had been profoundly retarded during most of his life. Implicitly rejecting the approach taken in Saikewicz, supra, the court reasoned that, due to such life-long incompetency, "it is unrealistic to attempt to determine whether he would want to continue potentially life-prolonging treatment if he were competent." 52 N.Y.2d at 380, 438 N.Y.S.2d at 275, 420 N.E.2d at 72. As the evidence showed that the patient's required blood transfusions did not involve excessive pain and, without them, his mental and physical abilities would deteriorate, the court concluded that it should not "allow an incompetent patient to bleed to death because someone, even someone as close as a parent or sibling, feels that this is best for one with an incurable disease." Id. at 382, 438 N.Y.S.2d at 275, 420 N.E.2d at 73. Many of the later cases build on the principles established in Quinlan, Saikewicz and Storar/Eichner. For instance, in In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985), the same court that decided Quinlan considered whether a nasogastric feeding tube could be removed from an 84-year-old incompetent nursing-home resident suffering irreversible mental and physical ailments. While recognizing that a federal right of privacy might apply in the case, the court, contrary to its approach in Quinlan, decided to base its decision on the common law right to self-determination and informed consent. Page 497 U. S. 273 98 N.J. at 348, 486 A.2d at 1223. "On balance, the right to self-determination ordinarily outweighs any countervailing state interests, and competent persons generally are permitted to refuse medical treatment, even at the risk of death. Most of the cases that have held otherwise, unless they involved the interest in protecting innocent third parties, have concerned the patient's competency to make a rational and considered choice." Id. at 353-354, 486 A.2d at 1225. Reasoning that the right of self-determination should not be lost merely because an individual is unable to sense a violation of it, the court held that incompetent individuals retain a right to refuse treatment. It also held that such a right could be exercised by a surrogate decisionmaker using a "subjective" standard when there was clear evidence that the incompetent person would have exercised it. Where such evidence was lacking, the court held that an individual's right could still be invoked in certain circumstances under objective "best interest" standards. Id. at 361-368, 486 A.2d at 1229-1233. Thus, if some trustworthy evidence existed that the individual would have wanted to terminate treatment, but not enough to clearly establish a person's wishes for purposes of the subjective standard, and the burden of a prolonged life from the experience of pain and suffering markedly outweighed its satisfactions, treatment could be terminated under a "limited-objective" standard. Where no trustworthy evidence existed, and a person's suffering would make the administration of life-sustaining treatment inhumane, a "pure-objective" standard could be used to terminate treatment. If none of these conditions obtained, the court held it was best to err in favor of preserving life. Id. at 364-368, 486 A.2d at 1231-1233. The court also rejected certain categorical distinctions that had been drawn in prior refusal-of-treatment cases as lacking substance for decision purposes: the distinction between actively hastening death by terminating treatment and passively Page 497 U. S. 274 allowing a person to die of a disease; between treating individuals as an initial matter versus withdrawing treatment afterwards; between ordinary versus extraordinary treatment; and between treatment by artificial feeding versus other forms of life-sustaining medical procedures. Id. . at 369-374, 486 A.2d at 1233-1237. As to the last item, the court acknowledged the "emotional significance" of food, but noted that feeding by implanted tubes is a "medical procedur[e] with inherent risks and possible side effects, instituted by skilled healthcare providers to compensate for impaired physical functioning" which analytically was equivalent to artificial breathing using a respirator. Id. at 373, 486 A.2d at 1236. [ Footnote 4 ] In contrast to Conroy, the Court of Appeals of New York recently refused to accept less than the clearly expressed wishes of a patient before permitting the exercise of her right to refuse treatment by a surrogate decisionmaker. In re Westchester County Medical Center on behalf of O'Connor, 72 N.Y.2d 517, 534 N.Y.S.2d 886, 531 N.E.2d 607 (1988) ( O'Connor ). There, the court, over the objection of the patient's family members, granted an order to insert a feeding tube into a 77-year-old Page 497 U. S. 275 woman rendered incompetent as a result of several strokes. While continuing to recognize a common law right to refuse treatment, the court rejected the substituted judgment approach for asserting it "because it is inconsistent with our fundamental commitment to the notion that no person or court should substitute its judgment as to what would be an acceptable quality of life for another. Consequently, we adhere to the view that, despite its pitfalls and inevitable uncertainties, the inquiry must always be narrowed to the patient's expressed intent, with every effort made to minimize the opportunity for error." Id. at 530, 534 N.Y.S.2d at 892, 531 N.E.2d at 613 (citation omitted). The court held that the record lacked the requisite clear and convincing evidence of the patient's expressed intent to withhold life-sustaining treatment. Id. at 531-534, 534 N.Y.S.2d at 892-894, 531 N.E.2d at 613-615. Other courts have found state statutory law relevant to the resolution of these issues. In Conservatorship of Drabick, 200 Cal. App. 3d 185 , 245 Cal. Rptr. 840 , cert. denied, 488 U.S. 958 (1988), the California Court of Appeal authorized the removal of a nasogastric feeding tube from a 44-year-old man who was in a persistent vegetative state as a result of an auto accident. Noting that the right to refuse treatment was grounded in both the common law and a constitutional right of privacy, the court held that a state probate statute authorized the patient's conservator to order the withdrawal of life-sustaining treatment when such a decision was made in good faith based on medical advice and the conservatee's best interests. While acknowledging that "to claim that [a patient's] right to choose' survives incompetence is a legal fiction at best," the court reasoned that the respect society accords to persons as individuals is not lost upon incompetence, and is best preserved by allowing others "to make a decision that reflects [a patient's] interests more closely than would a purely technological decision to do whatever is possible." [ Footnote 5 ] Page 497 U. S. 276 Id., 200 Cal.App.3d, at 208, 246 Cal.Rptr., at 854-855. See also In re Conservatorship of Torres, 357 N.W.2d 332 (Minn.1984) (Minnesota court had constitutional and statutory authority to authorize a conservator to order the removal of an incompetent individual's respirator since in patient's best interests). In In re Estate of Longeway, 133 Ill. 2d 33 , 139 Ill.Dec. 780, 549 N.E.2d 292 (1989), the Supreme Court of Illinois considered whether a 76-year-old woman rendered incompetent from a series of strokes had a right to the discontinuance of artificial nutrition and hydration. Noting that the boundaries of a federal right of privacy were uncertain, the court found a right to refuse treatment in the doctrine of informed consent. Id. at 43-45, 139 Ill.Dec. at 784-785, 549 N.E.2d at 296-297. The court further held that the State Probate Act impliedly authorized a guardian to exercise a ward's right to refuse artificial sustenance in the event that the ward was terminally ill and irreversibly comatose. Id. at 45-47, 139 Ill.Dec. at 786, 549 N.E.2d at 298. Declining to adopt a best interests standard for deciding when it would be appropriate to exercise a ward's right because it "lets another make a determination of a patient's quality of life," the court opted instead for a substituted judgment standard. Id. at 49, 139 Ill.Dec. at 787, 549 N.E.2d at 299. Finding the "expressed intent" standard utilized in O'Connor, supra, too rigid, the court noted that other clear and convincing evidence of the patient's intent could be considered. 133 Ill. 2d at 50-51, 139 Ill.Dec. at 787, 549 N.E.2d at 300. The court also adopted the "consensus opinion [that] treats artificial nutrition and hydration as medical treatment." Id. at 42, 139 Ill.Dec. at 784, 549 N.E.2d at 296. Cf. McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 705, Page 497 U. S. 277 553 A.2d 596, 603 (1989) (right to withdraw artificial nutrition and hydration found in the Connecticut Removal of Life Support Systems Act, which "provid[es] functional guidelines for the exercise of the common law and constitutional rights of self-determination"; attending physician authorized to remove treatment after finding that patient is in a terminal condition, obtaining consent of family, and considering expressed wishes of patient). [ Footnote 6 ] As these cases demonstrate, the common law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment. Beyond that, these decisions demonstrate both similarity and diversity in their approach to decision of what all agree is a perplexing question with unusually strong moral and ethical overtones. State courts have available to them for decision a number of sources -- state constitutions, statutes, and common law -- which are not available to us. In this Court, the question is simply and starkly whether the United States Constitution prohibits Missouri from choosing the rule of decision which it did. This is the first case in which we have been squarely presented with the issue of whether the United States Constitution grants what is in common parlance referred to as a "right to die." We follow the judicious counsel of our decision in Twin City Bank v. Nebeker, 167 U. S. 196 , 167 U. S. 202 (1897), where we said that, in deciding "a question Page 497 U. S. 278 of such magnitude and importance . . . it is the [better] part of wisdom not to attempt, by any general statement, to cover every possible phase of the subject." The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions. In Jacobson v. Massachusetts, 197 U. S. 11 , 197 U. S. 24 -30 (1905), for instance, the Court balanced an individual's liberty interest in declining an unwanted smallpox vaccine against the State's interest in preventing disease. Decisions prior to the incorporation of the Fourth Amendment into the Fourteenth Amendment analyzed searches and seizures involving the body under the Due Process Clause and were thought to implicate substantial liberty interests. See, e.g., Breithaupt v. Abram, 352 U. S. 432 , 352 U. S. 439 (1957) ("As against the right of an individual that his person be held inviolable . . . must be set the interests of society. . . .") Just this Term, in the course of holding that a State's procedures for administering antipsychotic medication to prisoners were sufficient to satisfy due process concerns, we recognized that prisoners possess "a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment." Washington v. Harper, 494 U. S. 210 , 494 U. S. 221 -222 (1990); see also id. at 494 U. S. 229 ("The forcible injection of medication into a nonconsenting person's body represents a substantial interference with that person's liberty"). Still other cases support the recognition of a general liberty interest in refusing medical treatment. Vitek v. Jones, 445 U. S. 480 , 445 U. S. 494 (1980) (transfer to mental hospital coupled with mandatory behavior modification treatment implicated liberty interests); Parham v. J.R., 442 U. S. 584 , 442 U. S. 600 (1979) ("a child, in common with adults, has a substantial liberty Page 497 U. S. 279 interest in not being confined unnecessarily for medical treatment"). But determining that a person has a "liberty interest" under the Due Process Clause does not end the inquiry; [ Footnote 7 ] "whether respondent's constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests." Youngberg v. Romeo, 457 U. S. 307 , 457 U. S. 321 (1982). See also Mills v. Rogers, 457 U. S. 291 , 457 U. S. 299 (1982). Petitioners insist that, under the general holdings of our cases, the forced administration of life-sustaining medical treatment, and even of artificially-delivered food and water essential to life, would implicate a competent person's liberty interest. Although we think the logic of the cases discussed above would embrace such a liberty interest, the dramatic consequences involved in refusal of such treatment would inform the inquiry as to whether the deprivation of that interest is constitutionally permissible. But for purposes of this case, we assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition. Petitioners go on to assert that an incompetent person should possess the same right in this respect as is possessed by a competent person. They rely primarily on our decisions in Parham v. J.R., supra, and Youngberg v. Romeo, 457 U. S. 307 (1982). In Parham, we held that a mentally disturbed minor child had a liberty interest in "not being confined unnecessarily for medical treatment," 442 U.S. at 442 U. S. 600 , but we certainly did not intimate that such a minor child, after commitment, would have a liberty interest in refusing treatment. In Youngberg, we held that a seriously retarded adult had a liberty Page 497 U. S. 280 interest in safety and freedom from bodily restraint, 457 U.S. at 457 U. S. 320 . Youngberg, however, did not deal with decisions to administer or withhold medical treatment. The difficulty with petitioners' claim is that, in a sense, it begs the question: an incompetent person is not able to make an informed and voluntary choice to exercise a hypothetical right to refuse treatment or any other right. Such a "right" must be exercised for her, if at all, by some sort of surrogate. Here, Missouri has in effect recognized that, under certain circumstances, a surrogate may act for the patient in electing to have hydration and nutrition withdrawn in such a way as to cause death, but it has established a procedural safeguard to assure that the action of the surrogate conforms as best it may to the wishes expressed by the patient while competent. Missouri requires that evidence of the incompetent's wishes as to the withdrawal of treatment be proved by clear and convincing evidence. The question, then, is whether the United States Constitution forbids the establishment of this procedural requirement by the State. We hold that it does not. Whether or not Missouri's clear and convincing evidence requirement comports with the United States Constitution depends in part on what interests the State may properly seek to protect in this situation. Missouri relies on its interest in the protection and preservation of human life, and there can be no gainsaying this interest. As a general matter, the States -- indeed, all civilized nations -- demonstrate their commitment to life by treating homicide as serious crime. Moreover, the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide. [ Footnote 8 ] We do not think a State is required to remain neutral in the face of an informed and voluntary decision by a physically able adult to starve to death. Page 497 U. S. 281 But in the context presented here, a State has more particular interests at stake. The choice between life and death is a deeply personal decision of obvious and overwhelming finality. We believe Missouri may legitimately seek to safeguard the personal element of this choice through the imposition of heightened evidentiary requirements. It cannot be disputed that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment. Not all incompetent patients will have loved ones available to serve as surrogate decisionmakers. And even where family members are present, "[t]here will, of course, be some unfortunate situations in which family members will not act to protect a patient." In re Jobes, 108 N.J. 394, 419, 529 A.2d 434 , 477 (1987). A State is entitled to guard against potential abuses in such situations. Similarly, a State is entitled to consider that a judicial proceeding to make a determination regarding an incompetent's wishes may very well not be an adversarial one, with the added guarantee of accurate factfinding that the adversary process brings with it. [ Footnote 9 ] See Ohio v. Akron Center for Reproductive Page 497 U. S. 282 Health, post at 497 U. S. 515 -516 (1990). Finally, we think a State may properly decline to make judgments about the "quality" of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual. In our view, Missouri has permissibly sought to advance these interests through the adoption of a "clear and convincing" standard of proof to govern such proceedings. "The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to" "instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication." Addington v. Texas, 441 U. S. 418 , 441 U. S. 423 (1979) (quoting In re Winship, 397 U. S. 358 , 397 U. S. 370 (1970) (Harlan, J., concurring)). "This Court has mandated an intermediate standard of proof -- 'clear and convincing evidence' -- when the individual interests at stake in a state proceeding are both 'particularly important' and 'more substantial than mere loss of money.'" Santosky v. Kramer, 455 U. S. 745 , 455 U. S. 756 (1982) (quoting Addington, supra, at 441 U. S. 424 ). Thus, such a standard has been required in deportation proceedings, Woodby v. INS, 385 U. S. 276 (1966), in denaturalization proceedings, Schneiderman v. United States, 320 U. S. 118 (1943), in civil commitment proceedings, Addington, supra, and in proceedings for the termination of parental rights. Santosky, supra. [ Footnote 10 ] Further, Page 497 U. S. 283 this level of proof, "or an even higher one, has traditionally been imposed in cases involving allegations of civil fraud, and in a variety of other kinds of civil cases involving such issues as . . . lost wills, oral contracts to make bequests, and the like." Woodby, supra, 385 U.S. at 385 U. S. 285 , n. 18. We think it self-evident that the interests at stake in the instant proceedings are more substantial, both on an individual and societal level, than those involved in a run-of-the-mine civil dispute. But not only does the standard of proof reflect the importance of a particular adjudication, it also serves as "a societal judgment about how the risk of error should be distributed between the litigants." Santosky, supra, 455 U.S. at 455 U. S. 755 ; Addington, supra, 441 U.S. at 441 U. S. 423 . The more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision. We believe that Missouri may permissibly place an increased risk of an erroneous decision on those seeking to terminate an incompetent individual's life-sustaining treatment. An erroneous decision not to terminate results in a maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient's intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment, at least create the potential that a wrong decision will eventually be corrected or its impact mitigated. An erroneous decision to withdraw life-sustaining treatment, however, is not susceptible of correction. In Santosky, one of the factors which led the Court to require proof by clear and convincing evidence in a proceeding to terminate parental rights was that a decision in such a case was final and irrevocable. Santosky, supra, 455 U.S. at 455 U. S. 759 . The same must surely be said of the decision to discontinue hydration and nutrition of a patient such as Nancy Cruzan, which all agree will result in her death. Page 497 U. S. 284 It is also worth noting that most, if not all, States simply forbid oral testimony entirely in determining the wishes of parties in transactions which, while important, simply do not have the consequences that a decision to terminate a person's life does. At common law and by statute in most States, the parol evidence rule prevents the variations of the terms of a written contract by oral testimony. The statute of frauds makes unenforceable oral contracts to leave property by will, and statutes regulating the making of wills universally require that those instruments be in writing. See 2 A. Corbin, Contracts § 398, pp. 360-361 (1950); 2 W. Page, Law of Wills §§ 19.3-19.5, pp. 61-71 (1960). There is no doubt that statutes requiring wills to be in writing, and statutes of frauds which require that a contract to make a will be in writing, on occasion frustrate the effectuation of the intent of a particular decedent, just as Missouri's requirement of proof in this case may have frustrated the effectuation of the not-fully-expressed desires of Nancy Cruzan. But the Constitution does not require general rules to work faultlessly; no general rule can. In sum, we conclude that a State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state. We note that many courts which have adopted some sort of substituted judgment procedure in situations like this, whether they limit consideration of evidence to the prior expressed wishes of the incompetent individual, or whether they allow more general proof of what the individual's decision would have been, require a clear and convincing standard of proof for such evidence. See, e.g., Longeway, 133 Ill. 2d at 50-51, 139 Ill.Dec. at 787, 549 N.E.2d at 300; McConnell, 209 Conn., at 707-710, 553 A.2d at 604-605; O'Connor, 72 N.Y.2d at 529-530, 531 N.E.2d at 613; In re Gardner, 534 A.2d 947 , 952-953 (Me.1987); In re Jobes, 108 N.J. at 412-413, 529 A.2d Page 497 U. S. 285 at 443; Leach v. Akron General Medical Center, 68 Ohio Misc. 1, 11, 426 N.E.2d 809, 815 (1980). The Supreme Court of Missouri held that, in this case, the testimony adduced at trial did not amount to clear and convincing proof of the patient's desire to have hydration and nutrition withdrawn. In so doing, it reversed a decision of the Missouri trial court, which had found that the evidence "suggest[ed]" Nancy Cruzan would not have desired to continue such measures, App. to Pet. for Cert. A98, but which had not adopted the standard of "clear and convincing evidence" enunciated by the Supreme Court. The testimony adduced at trial consisted primarily of Nancy Cruzan's statements, made to a housemate about a year before her accident, that she would not want to live should she face life as a "vegetable," and other observations to the same effect. The observations did not deal in terms with withdrawal of medical treatment or of hydration and nutrition. We cannot say that the Supreme Court of Missouri committed constitutional error in reaching the conclusion that it did. [ Footnote 11 ] Petitioners alternatively contend that Missouri must accept the "substituted judgment" of close family members even in the absence of substantial proof that their views reflect Page 497 U. S. 286 the views of the patient. They rely primarily upon our decisions in Michael H. v. Gerald D., 491 U. S. 110 (1989), and Parham v. J.R., 442 U. S. 584 (1979). But we do not think these cases support their claim. In Michael H., we upheld the constitutionality of California's favored treatment of traditional family relationships; such a holding may not be turned around into a constitutional requirement that a State must recognize the primacy of those relationships in a situation like this. And in Parham, where the patient was a minor, we also upheld the constitutionality of a state scheme in which parents made certain decisions for mentally ill minors. Here again, petitioners would seek to turn a decision which allowed a State to rely on family decisionmaking into a constitutional requirement that the State recognize such decisionmaking. But constitutional law does not work that way. No doubt is engendered by anything in this record but that Nancy Cruzan's mother and father are loving and caring parents. If the State were required by the United States Constitution to repose a right of "substituted judgment" with anyone, the Cruzans would surely qualify. But we do not think the Due Process Clause requires the State to repose judgment on these matters with anyone but the patient herself. Close family members may have a strong feeling -- a feeling not at all ignoble or unworthy, but not entirely disinterested, either -- that they do not wish to witness the continuation of the life of a loved one which they regard as hopeless, meaningless, and even degrading. But there is no automatic assurance that the view of close family members will necessarily be the same as the patient's would have been had she been confronted with the prospect of her situation while competent. All of the reasons previously discussed for allowing Missouri to require clear and convincing evidence of the patient's wishes lead us to conclude that the State may Page 497 U. S. 287 choose to defer only to those wishes, rather than confide the decision to close family members. [ Footnote 12 ] The judgment of the Supreme Court of Missouri is Affirmed. [ Footnote 1 ] The State Supreme Court, adopting much of the trial court's findings, described Nancy Cruzan's medical condition as follows: ". . . (1) [H]er respiration and circulation are not artificially maintained and are within the normal limits of a thirty-year-old female; (2) she is oblivious to her environment except for reflexive responses to sound and perhaps painful stimuli; (3) she suffered anoxia of the brain, resulting in a massive enlargement of the ventricles filling with cerebrospinal fluid in the area where the brain has degenerated and [her] cerebral cortical atrophy is irreversible, permanent, progressive and ongoing; (4) her highest cognitive brain function is exhibited by her grimacing perhaps in recognition of ordinarily painful stimuli, indicating the experience of pain and apparent response to sound; (5) she is a spastic quadriplegic; (6) her four extremities are contracted with irreversible muscular and tendon damage to all extremities; (7) she has no cognitive or reflexive ability to swallow food or water to maintain her daily essential needs and . . . she will never recover her ability to swallow sufficient [sic] to satisfy her needs. In sum, Nancy is diagnosed as in a persistent vegetative state. She is not dead. She is not terminally ill. Medical experts testified that she could live another thirty years." Cruzan v. Harmon, 760 S.W.2d 408 , 411 (Mo.1988) (en banc) (quotations omitted; footnote omitted). In observing that Cruzan was not dead, the court referred to the following Missouri statute: "For all legal purposes, the occurrence of human death shall be determined in accordance with the usual and customary standards of medical practice, provided that death shall not be determined to have occurred unless the following minimal conditions have been met:" "(1) When respiration and circulation are not artificially maintained, there is an irreversible cessation of spontaneous respiration and circulation; or" "(2) When respiration and circulation are artificially maintained, and there is total and irreversible cessation of all brain function, including the brain stem and that such determination is made by a licensed physician." Mo.Rev.Stat. § 194.005 (1986). Since Cruzan's respiration and circulation were not being artificially maintained, she obviously fit within the first proviso of the statute. Dr. Fred Plum, the creator of the term "persistent vegetative state" and a renowned expert on the subject, has described the "vegetative state" in the following terms: "'Vegetative state' describes a body which is functioning entirely in terms of its internal controls. It maintains temperature. It maintains heart beat and pulmonary ventilation. It maintains digestive activity. It maintains reflex activity of muscles and nerves for low level conditioned responses. But there is no behavioral evidence of either self-awareness or awareness of the surroundings in a learned manner." In re Jobes, 108 N.J. 394, 403, 529 A.2d 434 , 438 ( 1987). See also Brief for American Medical Association et al., as Amici Curiae 6 ("The persistent vegetative state can best be understood as one of the conditions in which patients have suffered a loss of consciousness"). [ Footnote 2 ] See generally Karnezis, Patient's Right to Refuse Treatment Allegedly Necessary to Sustain Life, 93 A.L.R.3d 67 (1979) (collecting cases); Cantor, A Patient's Decision to Decline Life-Saving Medical Treatment: Bodily Integrity Versus the Preservation of Life, 26 Rutgers L.Rev. 228, 229, and n. 5 (1973) (noting paucity of cases). [ Footnote 3 ] See Chapman, The Uniform Rights of the Terminally Ill Act: Too Little, Too Late?, 42 Ark.L.Rev. 319, 324, n. 15 (1989); see also F. Rozovsky, Consent to Treatment, A Practical Guide 415-423 (2d ed. 1984). [ Footnote 4 ] In a later trilogy of cases, the New Jersey Supreme Court stressed that the analytic framework adopted in Conroy was limited to elderly, incompetent patients with shortened life expectancies, and established alternative approaches to deal with a different set of situations. See In re Farrell, 108 N.J. 335, 529 A.2d 404 (1987) (37-year-old competent mother with terminal illness had right to removal of respirator based on common law and constitutional principles which overrode competing state interests); In re Peter, 108 N.J. 365, 529 A.2d 419 (1987) (65-year-old woman in persistent vegetative state had right to removal of nasogastric feeding tube -- under Conroy subjective test, power of attorney and hearsay testimony constituted clear and convincing proof of patient's intent to have treatment withdrawn); In re Jobes, 108 N.J. 394, 529 A.2d 434 (1987) (31-year-old woman in persistent vegetative state entitled to removal of jejunostomy feeding tube -- even though hearsay testimony regarding patient's intent insufficient to meet clear and convincing standard of proof, under Quinlan, family or close friends entitled to make a substituted judgment for patient). [ Footnote 5 ] The Drabick court drew support for its analysis from earlier, influential decisions rendered by California courts of appeal. See Bouvia v. Superior Court, 179 Cal. App. 3d 1127 , 225 Cal. Rptr. 297 (1986) (competent 28-year-old quadriplegic had right to removal of nasogastric feeding tube inserted against her will); Bartling v. Superior Court, 163 Cal. App. 3d 186 , 209 Cal. Rptr. 220 (1984) (competent 70-year-old, seriously-ill man had right to the removal of respirator); Barber v. Superior Court, 147 Cal. App. 3d 1006 , 195 Cal. Rptr. 484 (1983) (physicians could not be prosecuted for homicide on account of removing respirator and intravenous feeding tubes of patient in persistent vegetative state). [ Footnote 6 ] Besides the Missouri Supreme Court in Cruzan and the courts in McConnell, Longeway, Drabick, Bouvia, Barber, O'Connor, Conroy, Jobes, and Peter, supra, appellate courts of at least four other States and one Federal District Court have specifically considered and discussed the issue of withholding or withdrawing artificial nutrition and hydration from incompetent individuals. See Gray v. Romeo, 697 F. Supp. 580 (RI 1988); In re Gardner, 534 A.2d 947 (Me.1987); In re Grant, 109 Wash. 2d 545 , 747 P.2d 445 (1987); Brophy v. New England Sinai Hospital, Inc., 398 Mass. 417, 497 N.E.2d 626 (1986); Corbett v. D'Alessandro, 487 So. 2d 368 (Fla.App. 1986). All of these courts permitted or would permit the termination of such measures based on rights grounded in the common law, or in the State or Federal Constitution. [ Footnote 7 ] Although many state courts have held that a right to refuse treatment is encompassed by a generalized constitutional right of privacy, we have never so held. We believe this issue is more properly analyzed in terms of a Fourteenth Amendment liberty interest. See Bowers v. Hardwick, 478 U. S. 186 , 478 U. S. 194 -195 (1986). [ Footnote 8 ] See Smith, All's Well That Ends Well: Toward a Policy of Assisted Rational Suicide or Merely Enlightened Self-Determination?, 22 U.C. Davis L.Rev. 275, 290-291, n. 106 (1989) (compiling statutes). [ Footnote 9 ] Since Cruzan was a patient at a state hospital when this litigation commenced, the State has been involved as an adversary from the beginning. However, it can be expected that many of these types of disputes will arise in private institutions, where a guardian ad litem or similar party will have been appointed as the sole representative of the incompetent individual in the litigation. In such cases, a guardian may act in entire good faith, and yet not maintain a position truly adversarial to that of the family. Indeed, as noted by the court below, "[t]he guardian ad litem [in this case] finds himself in the predicament of believing that it is in Nancy's 'best interest to have the tube feeding discontinued,' but 'feeling that an appeal should be made because our responsibility to her as attorneys and guardians ad litem was to pursue this matter to the highest court in the state in view of the fact that this is a case of first impression in the State of Missouri.'" 760 S.W.2d at 410, n. 1. Cruzan's guardian ad litem has also filed a brief in this Court urging reversal of the Missouri Supreme Court's decision. None of this is intended to suggest that the guardian acted the least bit improperly in this proceeding. It is only meant to illustrate the limits which may obtain on the adversarial nature of this type of litigation. [ Footnote 10 ] We recognize that these cases involved instances where the government sought to take action against an individual. See Price Waterhouse v. Hopkins, 490 U. S. 228 , 490 U. S. 253 (1989) (plurality opinion). Here, by contrast, the government seeks to protect the interests of an individual as well as its own institutional interests, in life. We do not see any reason why important individual interests should be afforded less protection simply because the government finds itself in the position of defending them. "[W]e find it significant that . . . the defendant rather than the plaintiff seeks the clear and convincing standard of proof -- suggesting that this standard ordinarily serves as a shield rather than . . . a sword." Id. at 490 U. S. 253 . That it is the government that has picked up the shield should be of no moment. [ Footnote 11 ] The clear and convincing standard of proof has been variously defined in this context as "proof sufficient to persuade the trier of fact that the patient held a firm and settled commitment to the termination of life supports under the circumstances like those presented," In re Westchester County Medical Center on behalf of O'Connor, 72 N.Y.2d 517, 534 N.Y.S.2d 886, 892, 531 N.E.2d 607, 613 (1988) ( O'Connor ), and as evidence which "produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." In re Jobes, 108 N.J. at 407-408, 529 A.2d at 441 (quotation omitted). In both of these cases, the evidence of the patient's intent to refuse medical treatment was arguably stronger than that presented here. The New York Court of Appeals and the Supreme Court of New Jersey, respectively, held that the proof failed to meet a clear and convincing threshold. See O'Connor, supra, 72 N.Y.2d at 526-534, 534 N.Y.S.2d at 889-894, 531 N.E.2d at 610-615; Jobes, supra, 108 N.J. at 442-443, 529 A.2d 434 . [ Footnote 12 ] We are not faced in this case with the question of whether a State might be required to defer to the decision of a surrogate if competent and probative evidence established that the patient herself had expressed a desire that the decision to terminate life sustaining treatment be made for her by that individual. Petitioners also adumbrate in their brief a claim based on the Equal Protection Clause of the Fourteenth Amendment to the effect that Missouri has impermissibly treated incompetent patients differently from competent ones, citing the statement in Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 , 473 U. S. 439 (1985), that the clause is "essentially a direction that all persons similarly situated should be treated alike." The differences between the choice made by a competent person to refuse medical treatment and the choice made for an incompetent person by someone else to refuse medical treatment are so obviously different that the State is warranted in establishing rigorous procedures for the latter class of cases which do not apply to the former class. Justice O'CONNOR, concurring. I agree that a protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions, see ante at 497 U. S. 278 -279, and that the refusal of artificially delivered food and water is encompassed within that liberty interest. See ante at 497 U. S. 279 . I write separately to clarify why I believe this to be so. As the Court notes, the liberty interest in refusing medical treatment flows from decisions involving the State's invasions into the body. See ante at 497 U. S. 278 -279. Because our notions of liberty are inextricably entwined with our idea of physical freedom and self-determination, the Court has often deemed state incursions into the body repugnant to the interests protected by the Due Process Clause. See, e.g., Rochin v. California, 342 U. S. 165 , 342 U. S. 172 (1952) ("Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his Page 497 U. S. 288 stomach's contents . . . is bound to offend even hardened sensibilities"); Union Pacific R. C.o. v. Botsford, 141 U. S. 250 , 141 U. S. 251 (1891). Our Fourth Amendment jurisprudence has echoed this same concern. See Schmerber v. California, 384 U. S. 757 , 384 U. S. 772 (1966) ("The integrity of an individual's person is a cherished value of our society"); Winston v. Lee, 470 U. S. 753 , 470 U. S. 759 (1985) ("A compelled surgical intrusion into an individual's body for evidence . . . implicates expectations of privacy and security of such magnitude that the intrusion may be unreasonable' even if likely to produce evidence of a crime"). The State's imposition of medical treatment on an unwilling competent adult necessarily involves some form of restraint and intrusion. A seriously ill or dying patient whose wishes are not honored may feel a captive of the machinery required for life-sustaining measures or other medical interventions. Such forced treatment may burden that individual's liberty interests as much as any state coercion. See, e.g., Washington v. Harper, 494 U. S. 210 , 494 U. S. 221 (1990); Parham v. J.R., 442 U. S. 584 , 442 U. S. 600 (1979) ("It is not disputed that a child, in common with adults, has a substantial liberty interest in not being confined unnecessarily for medical treatment"). The State's artificial provision of nutrition and hydration implicates identical concerns. Artificial feeding cannot readily be distinguished from other forms of medical treatment. See, e.g., Council on Ethical and Judicial Affairs, American Medical Association, AMA Ethical Opinion 2.20, Withholding or Withdrawing Life-Prolonging Medical Treatment, Current Opinions 13 (1989); The Hastings Center, Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying 59 (1987). Whether or not the techniques used to pass food and water into the patient's alimentary tract are termed "medical treatment," it is clear they all involve some degree of intrusion and restraint. Feeding a patient by means of a nasogastric tube requires a physician to pass a long flexible tube through the patient's Page 497 U. S. 289 nose, throat and esophagus and into the stomach. Because of the discomfort such a tube causes, "[m]any patients need to be restrained forcibly, and their hands put into large mittens to prevent them from removing the tube." Major, The Medical Procedures for Providing Food and Water: Indications and Effects, in By No Extraordinary Means: The Choice to Forgo Life-Sustaining Food and Water 25 (J. Lynn ed. 1986). A gastrostomy tube (as was used to provide food and water to Nancy Cruzan, see ante at 497 U. S. 266 ) or jejunostomy tube must be surgically implanted into the stomach or small intestine. Office of Technology Assessment Task Force, Life-Sustaining Technologies and the Elderly 282 (1988). Requiring a competent adult to endure such procedures against her will burdens the patient's liberty, dignity, and freedom to determine the course of her own treatment. Accordingly, the liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual's deeply personal decision to reject medical treatment, including the artificial delivery of food and water. I also write separately to emphasize that the Court does not today decide the issue whether a State must also give effect to the decisions of a surrogate decisionmaker. See ante at 497 U. S. 287 , n. 12. In my view, such a duty may well be constitutionally required to protect the patient's liberty interest in refusing medical treatment. Few individuals provide explicit oral or written instructions regarding their intent to refuse medical treatment should they become incompetent. [ Footnote 2/1 ] Page 497 U. S. 290 States which decline to consider any evidence other than such instructions may frequently fail to honor a patient's intent. Such failures might be avoided if the State considered an equally probative source of evidence: the patient's appointment of a proxy to make health care decisions on her behalf. Delegating the authority to make medical decisions to a family member or friend is becoming a common method of planning for the future. See, e.g., Green, The Legal Status of Consent Obtained from Families of Adult Patients to Withhold or Withdraw Treatment, 258 JAMA 229, 230 (1987). Several States have recognized the practical wisdom of such a procedure by enacting durable power of attorney statutes that specifically authorize an individual to appoint a surrogate to make medical treatment decisions. [ Footnote 2/2 ] Some state courts have suggested that an agent appointed pursuant to a general durable power of attorney statute would also be empowered to make health care decisions on behalf of the patient. [ Footnote 2/3 ] See, e.g., In re Peter, 108 N.J. 365, 378-379, 529 Page 497 U. S. 291 A.2d 419, 426 (1987); see also 73 Op.Md. Atty.Gen. No. 88-046 (1988) (interpreting Md.Est. & Trusts Code Ann. §§ 13-601 to 13-602 (1974), as authorizing a delegatee to make health care decisions). Other States allow an individual to designate a proxy to carry out the intent of a living will. [ Footnote 2/4 ] These procedures for surrogate decisionmaking, which appear to be rapidly gaining in acceptance, may be a Page 497 U. S. 292 valuable additional safeguard of the patient's interest in directing his medical care. Moreover, as patients are likely to select a family member as a surrogate, see 2 President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions 240 (1982), giving effect to a proxy's decisions may also protect the "freedom of personal choice in matters of . . . family life." Cleveland Board of Education v. LaFleur, 414 U. S. 632 , 414 U. S. 639 (1974). Today's decision, holding only that the Constitution permits a State to require clear and convincing evidence of Nancy Cruzan's desire to have artificial hydration and nutrition withdrawn, does not preclude a future determination that the Constitution requires the States to implement the decisions of a patient's duly appointed surrogate. Nor does it prevent States from developing other approaches for protecting an incompetent individual's liberty interest in refusing medical treatment. As is evident from the Court's survey of state court decisions, see ante at 497 U. S. 271 -277, no national consensus has yet emerged on the best solution for this difficult and sensitive problem. Today we decide only that one State's practice does not violate the Constitution; the more challenging task of crafting appropriate procedures for safeguarding incompetents' liberty interests is entrusted to the "laboratory" of the States, New State Ice Co. v. Liebmann, 285 U. S. 262 , 285 U. S. 311 (1932) (Brandeis, J., dissenting), in the first instance. [ Footnote 2/1 ] See 2 President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions 241-242 (1982) (36% of those surveyed gave instructions regarding how they would like to be treated if they ever became too sick to make decisions; 23% put those instructions in writing) (Lou Harris Poll, September 1982); American Medical Association Surveys of Physician and Public Opinion on Health Care Issues 29-30 (1988) (56% of those surveyed had told family members their wishes concerning the use of life-sustaining treatment if they entered an irreversible coma; 15% had filled out a living will specifying those wishes). [ Footnote 2/2 ] At least 13 states and the District of Columbia have durable power of attorney statutes expressly authorizing the appointment of proxies for making health care decisions. See Alaska Stat. Ann. §§ 13.26.335, 13.26.344( l ) (Supp.1989); Cal.Civ.Code § 2500 (Supp.1990), D.C.Code § 21-2205 (1989); Idaho Code § 39-4505 (Supp. 1989); Ill.Rev.Stat., ch. 110 1/2, � 804-1 to 804-12 (Supp.1988), Kan.Stat.Ann. § 58-625 (Supp. 1989); Me.Rev.Stat.Ann., Tit. 18-A, § 5-501 (Supp.1989); Nev.Rev.Stat. § 449.800 (Supp. 1989); Ohio Rev.Code Ann. § 1337.11 et seq. (Supp.1989); Ore.Rev.Stat. § 127.510 (1989); Pa.Con.Stat.Ann., Tit. 20, § 5603(h) (Purdon Supp.1989); R.I.Gen.Laws § 23-4.10-1 et seq. (1989); Tex.Rev.Civ.Stat.ann. § 4590h-1 (Vernon Supp.1990); Vt.Stat.Ann., Tit. 14, § 3451 et seq. (1989). [ Footnote 2/3 ] All 50 states and the District of Columbia have general durable power of attorney statutes. See Ala.Code § 26-1-2 (1986); Alaska Stat.Ann. §§ 13.26.350 to 13.26.356 (Supp. 1989); Ariz.Rev.Stat.Ann. § 14-5501 (1975); Ark.Code Ann. §§ 28-68-201 to 28-68-203 (1987); Cal.Civ.Code Ann. § 2400 (West Supp.1990); Colo.Rev.Stat. § 15-14-501 et seq. (1987); Conn.Gen.Stat. § 45-690 (Supp.1989); Del.Code Ann., Tit. 12, §§ 4901-4905 (1987); D.C.Code § 21-2081 et seq. (1989); Fla.Stat. § 709.08 (1989); Ga.Code Ann. § 10-6-36 (1989); Haw.Rev.Stat. §§ 551D-1 to 551D-7 (Supp.1989); Idaho Code § 15-5-501 et seq. (Supp.1989); Ill.Rev.Stat., ch. 110 1/2, � 802-6 (1987); Ind.Code §§ 30-2-11-1 to 30-2-11-7 (1988); Iowa Code § 633.705 (Supp.1989); Kan.Stat.Ann. § 58-610 (1983); Ky.Rev.Stat.Ann. § 386.093 (Baldwin 1983); La. Civ.Code Ann. § 3027 (West Supp.1990); Me. Rev.Stat.Ann., Tit. 18-A, § 5-501 et seq. (Supp. 1989); Md.Est. & Trusts Code Ann. §§ 13-601 to 13-602 (1974) (as interpreted by the Attorney General, see 73 Op.Md.Atty.Gen. No. 88-046 (Oct. 17, 1988)); Mass.Gen.Laws ch. 201B, § 1 to 201B, § 7 (1988); Mich.Comp.Laws § 700.495, 700.497 (1980); Minn.Stat. § 523.01 et seq. (1988); Miss.Code Ann. § 87-3-13 (Supp. 1989); Mo.Rev.Stat. § 404.700 (Supp.1990); Mont.Code Ann. §§ 72-5-501 to 72-5-502 (1989); Neb.Rev.Stat. §§ 30-2664 to 30-2672, 30-2667 (1985); Nev.Rev.Stat. § 111.460 et seq. (1986); N.H.Rev.Stat.Ann. § 506:6 et seq. (Supp. 1989); N.J.Stat.Ann. § 46:2B-8 (1989); N.M. Stat.Ann. § 45-5-501 et seq. (1989); N.Y.Gen. Oblig.Law § 5-1602 (McKinney 1989); N.C.Gen. Stat. § 32A-1 et seq. (1987); N.D.Cent.Code §§ 30.1-30-01 to 30.1-30-05 (Supp.1989); Ohio Rev.Code Ann. § 1337.09 (Supp.1989); Okla. Stat., Tit. 58, §§ 1071-1077 (Supp.1989); Ore. Rev.Stat. § 127.005 (1989); Pa.Con.Stat.Ann., Tit. 20, §§ 5601 et seq., 5602(a)(9) (Purdon Supp.1989); R.I.Gen.Laws § 34-22-6.1 (1984); S.C.Code §§ 62-5-501 to 62-5-502 (1987); S.D. Codified Laws § 59-7-2.1 (1978); Tenn.Code Ann. § 346-101 et seq. (1984); Tex.Prob.Code Ann. § 36A (Supp.1990); Utah Code Ann. § 75-5-501 et seq. (1978); Vt.Stat.Ann., Tit. 14, § 3051 et seq. (1989); Va.Code § 11-9.1 et seq. (1989); Wash.Rev.Code § 11.94.020 (1989); W.Va.Code § 39-4-1 et seq. (Supp.1989); Wis. Stat. § 243.07 (1987-1988) (as interpreted by the Attorney General, see Wis.Op.Atty.Gen. 35-88 (1988)); Wyo.Stat. § 3-5-101 et seq. (1985). [ Footnote 2/4 ] Thirteen states have living will statutes authorizing the appointment of healthcare proxies. See Ark.Code Ann. § 20-17-202 (Supp.1989); Del.Code Ann., Tit. 16, § 2502 (1983); Fla.Stat. § 765.05(2) (1989); Idaho Code § 39-4504 (Supp.1989); Ind.Code § 16-8-11-14(g)(2) (1988); Iowa Code § 144A.7(1)(a) (1989); La.R. S.Ann., 40:1299.58.1, 40:1299.58.3(C) (West Supp.1990); Minn.Stat. § 145B.01 et seq. (Supp. 1989); Texas Health & Safety Code Ann. § 672.003(d) (Supp.1990); Utah Code Ann. §§ 75-2-1105, 75-2-1106 (Supp.1989); Va.Code § 54.1-2986(2) (1988); 1987 Wash.Laws, ch. 162 § 1, Sec. (1)(b); Wyo.Stat. § 35-22-102 (1988). Justice SCALIA, concurring. The various opinions in this case portray quite clearly the difficult, indeed agonizing, questions that are presented by the constantly increasing power of science to keep the human body alive for longer than any reasonable person would want to inhabit it. The States have begun to grapple with these problems through legislation. I am concerned, from the tenor of today's opinions, that we are poised to confuse that Page 497 U. S. 293 enterprise as successfully as we have confused the enterprise of legislating concerning abortion -- requiring it to be conducted against a background of federal constitutional imperatives that are unknown because they are being newly crafted from Term to Term. That would be a great misfortune. While I agree with the Court's analysis today, and therefore join in its opinion, I would have preferred that we announce, clearly and promptly, that the federal courts have no business in this field; that American law has always accorded the State the power to prevent, by force if necessary, suicide -- including suicide by refusing to take appropriate measures necessary to preserve one's life; that the point at which life becomes "worthless," and the point at which the means necessary to preserve it become "extraordinary" or "inappropriate," are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory; and hence, that even when it is demonstrated by clear and convincing evidence that a patient no longer wishes certain measures to be taken to preserve her life, it is up to the citizens of Missouri to decide, through their elected representatives, whether that wish will be honored. It is quite impossible (because the Constitution says nothing about the matter) that those citizens will decide upon a line less lawful than the one we would choose; and it is unlikely (because we know no more about "life-and-death" than they do) that they will decide upon a line less reasonable. The text of the Due Process Clause does not protect individuals against deprivations of liberty simpliciter. It protects them against deprivations of liberty "without due process of law." To determine that such a deprivation would not occur if Nancy Cruzan were forced to take nourishment against her will, it is unnecessary to reopen the historically recurrent debate over whether "due process" includes substantive restrictions. Compare 59 U. S. Hoboken Land and Improvement Co., 18 How. 272 (1856), with 60 U. S. S. 294� v. Sandford, 19 How. 393, 60 U. S. 450 (1857); compare Tyson & Bro. v. United Theatre Ticket Offices, Inc., 273 U. S. 418 (1927), with Olsen v. Nebraska ex rel. Western Reference & Bond Assn., Inc., 313 U. S. 236 , 313 U. S. 246 -247 (1941); compare Ferguson v. Skrupa, 372 U. S. 726 , 372 U. S. 730 (1963), with Moore v. East Cleveland, 431 U. S. 494 (1977) (plurality opinion); see Easterbrook, Substance and Due Process, 1982 S.Ct.Rev 85; Monaghan, Our Perfect Constitution, 56 N.Y.U.L.Rev. 353 (1981). It is at least true that no "substantive due process" claim can be maintained unless the claimant demonstrates that the State has deprived him of a right historically and traditionally protected against State interference. Michael H. v. Gerald D., 491 U. S. 110 , 491 U. S. 122 (1989) (plurality opinion); Bowers v. Hardwick, 478 U. S. 186 , 478 U. S. 192 (1986); Moore, supra, 431 U.S. at 431 U. S. 502 -503 (plurality opinion). That cannot possibly be established here. At common law in England, a suicide -- defined as one who "deliberately puts an end to his own existence, or commits any unlawful malicious act, the consequence of which is his own death," 4 W. Blackstone, Commentaries *189 -- was criminally liable. Ibid. Although the States abolished the penalties imposed by the common law ( i.e., forfeiture and ignominious burial), they did so to spare the innocent family, and not to legitimize the act. Case law at the time of the Fourteenth Amendment generally held that assisting suicide was a criminal offense. See Marzen, O'Dowd, Crone, & Balch, Suicide: A Constitutional Right?, 24 Duquesne L.Rev. 1, 76 (1985) ("In short, twenty-one of the thirty-seven states, and eighteen of the thirty ratifying states, prohibited assisting suicide. Only eight of the states, and seven of the ratifying states, definitely did not"); see also 1 F. Wharton, Criminal Law § 122 (6th rev. ed. 1868). The System of Penal Law presented to the House of Representatives by Representative Livingston in 1828 would have criminalized assisted suicide. E. Livingston, A System of Penal Law, Penal Code 122 (1828). The Field Penal Code, Page 497 U. S. 295 adopted by the Dakota Territory in 1877, proscribed attempted suicide and assisted suicide. Marzen, O'Dowd, Crone, & Balch, 24 Duquesne L.Rev. at 76-77. And most States that did not explicitly prohibit assisted suicide in 1868 recognized, when the issue arose in the 50 years following the Fourteenth Amendment's ratification, that assisted and (in some cases) attempted suicide were unlawful. Id. at 77-100; 148-242 (surveying development of States' laws). Thus, "there is no significant support for the claim that a right to suicide is so rooted in our tradition that it may be deemed 'fundamental' or 'implicit in the concept of ordered liberty.'" Id. at 100 (quoting Palko v. Connecticut, 302 U. S. 319 , 302 U. S. 325 (1937)) Petitioners rely on three distinctions to separate Nancy Cruzan's case from ordinary suicide: (1) that she is permanently incapacitated and in pain; (2) that she would bring on her death not by any affirmative act but by merely declining treatment that provides nourishment; and (3) that preventing her from effectuating her presumed wish to die requires violation of her bodily integrity. None of these suffices. Suicide was not excused even when committed "to avoid those ills which [persons] had not the fortitude to endure." 4 Blackstone, supra, at *189. "The life of those to whom life has become a burden -- of those who are hopelessly diseased or fatally wounded -- nay, even the lives of criminals condemned to death, are under the protection of the law, equally as the lives of those who are in the full tide of life's enjoyment, and anxious to continue to live." Blackburn v. State, 23 Ohio St. 146, 163 (1873). Thus, a man who prepared a poison, and placed it within reach of his wife, "to put an end to her suffering" from a terminal illness was convicted of murder, People v. Roberts, 211 Mich. 187, 178 N.W. 690, 693 (1920); the "incurable suffering of the suicide, as a legal question, could hardly affect the degree of criminality. . . . " Note, 30 Yale L.J. 408, 412 (1921) (discussing Roberts ). Nor would the imminence of the patient's death have Page 497 U. S. 296 affected liability. "The lives of all are equally under the protection of the law, and under that protection to their last moment. . . . [Assisted suicide] is declared by the law to be murder, irrespective of the wishes or the condition of the party to whom the poison is administered. . . ." Blackburn, supra, at 163; see also Commonwealth v. Bowen, 13 Mass. 356, 360 (1816). The second asserted distinction -- suggested by the recent cases canvassed by the Court concerning the right to refuse treatment, ante at 497 U. S. 270 -277 -- relies on the dichotomy between action and inaction. Suicide, it is said, consists of an affirmative act to end one's life; refusing treatment is not an affirmative act "causing" death, but merely a passive acceptance of the natural process of dying. I readily acknowledge that the distinction between action and inaction has some bearing upon the legislative judgment of what ought to be prevented as suicide -- though even there it would seem to me unreasonable to draw the line precisely between action and inaction, rather than between various forms of inaction. It would not make much sense to say that one may not kill oneself by walking into the sea, but may sit on the beach until submerged by the incoming tide; or that one may not intentionally lock oneself into a cold storage locker, but may refrain from coming indoors when the temperature drops below freezing. Even as a legislative matter, in other words, the intelligent line does not fall between action and inaction, but between those forms of inaction that consist of abstaining from "ordinary" care and those that consist of abstaining from "excessive" or "heroic" measures. Unlike action vs. inaction, that is not a line to be discerned by logic or legal analysis, and we should not pretend that it is. But to return to the principal point for present purposes: the irrelevance of the action-inaction distinction. Starving oneself to death is no different from putting a gun to one's temple as far as the common law definition of suicide is concerned; the cause of death in both cases is the suicide's conscious Page 497 U. S. 297 decision to "pu[t] an end to his own existence." 4 Blackstone, supra, at *189. See In re Caulk, 125 N.H. 226, 232, 480 A.2d 93, 97 (1984); State ex rel. White v. Narick, 170 W.Va. 195, 292 S.E.2d 54 (1982); Von Holden v. Chapman, 87App.Div.2d 66, 450 N.Y.S.2d 623 (1982). Of course, the common law rejected the action-inaction distinction in other contexts involving the taking of human life as well. In the prosecution of a parent for the starvation death of her infant, it was no defense that the infant's death was "caused" by no action of the parent, but by the natural process of starvation, or by the infant's natural inability to provide for itself. See Lewis v. State, 72 Ga. 164 (1883); People v. McDonald, 49 Hun. 67, 1 N.Y.S. 703 (1888); Commonwealth v. Hall, 322 Mass. 523, 528, 78 N.E.2d 644, 647 (1948) (collecting cases); F. Wharton, Law of Homicide §§ 134-135, 304 (2d ed. 1875); 2 J. Bishop, Commentaries on the Criminal Law § 686 (5th ed. 1872); J. Hawley & M. McGregor, Criminal Law 152 (3d ed. 1899). A physician, moreover, could be criminally liable for failure to provide care that could have extended the patient's life, even if death was immediately caused by the underlying disease that the physician failed to treat. Barrow v. State, 17 Okl.Cr. 340, 188 P. 351 (1920); People v. Phillips, 64 Cal. 2d 574 , 414 P.2d 353 (1966). It is not surprising, therefore, that the early cases considering the claimed right to refuse medical treatment dismissed as specious the nice distinction between "passively submitting to death and actively seeking it. The distinction may be merely verbal, as it would be if an adult sought death by starvation instead of a drug. If the State may interrupt one mode of self-destruction, it may with equal authority interfere with the other." John F. Kennedy Memorial Hosp. v. Heston, 58 N.J. 576, 581-582, 279 A.2d 670 , 672-673 (1971); see also Application of President & Directors of Georgetown College, Inc., 118 U.S.App.D.C. 80, 88-89, 331 F.2d 1000, Page 497 U. S. 298 1008-1009 (Wright, J., in chambers), cert. denied, 377 U.S. 978 (1964). The third asserted basis of distinction -- that frustrating Nancy Cruzan's wish to die in the present case requires interference with her bodily integrity -- is likewise inadequate, because such interference is impermissible only if one begs the question whether her refusal to undergo the treatment on her own is suicide. It has always been lawful not only for the State, but even for private citizens, to interfere with bodily integrity to prevent a felony. See Phillips v. Trull, 11 Johns. 486 (N.Y.1814); City Council v. Payne, 2 Nott & McCord 475 (S.C.1821); Vandeveer v. Mattocks, 3 Ind. 479 (1852); T. Cooley, Law of Torts 174-175 (1879); Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 673 (1924); Restatement of Torts § 119 (1934). That general rule has of course been applied to suicide. At common law, even a private person's use of force to prevent suicide was privileged. Colby v. Jackson, 12 N.H. 526, 530-531 (1842); Look v. Choate, 108 Mass. 116, 120 (1871); Commonwealth v. Mink, 123 Mass. 422, 429 (1877); In re Doyle, 16 R.I. 537, 539, 18 A. 159, 159-160 (1889); Porter v. Ritch, 70 Conn. 235, 255, 39 A. 169, 175 (1898); Emmerich v. Thorley, 54 N.Y.S. 791, 793-794 (1898); State v. Hembd, 305 Minn. 120, 130, 232 N.W.2d 872 , 878 (1975); 2 C. Addison, Law of Torts § 819 (1876); Cooley, supra, at 179-180. It is not even reasonable, much less required by the Constitution, to maintain that, although the State has the right to prevent a person from slashing his wrists, it does not have the power to apply physical force to prevent him from doing so, nor the power, should he succeed, to apply, coercively if necessary, medical measures to stop the flow of blood. The state-run hospital, I am certain, is not liable under 42 U.S.C. § 1983 for violation of constitutional rights, nor the private hospital liable under general tort law, if, in a State where suicide is unlawful, it pumps out the stomach of a person who has intentionally Page 497 U. S. 299 taken an overdose of barbiturates, despite that person's wishes to the contrary. The dissents of Justices BRENNAN and STEVENS make a plausible case for our intervention here only by embracing -- the latter explicitly and the former by implication -- a political principle that the States are free to adopt, but that is demonstrably not imposed by the Constitution. "The State," says Justice BRENNAN, "has no legitimate general interest in someone's life, completely abstracted from the interest of the person living that life, that could outweigh the person's choice to avoid medical treatment. " Post at 497 U. S. 313 (emphasis added). The italicized phrase sounds moderate enough, and is all that is needed to cover the present case -- but the proposition cannot logically be so limited. One who accepts it must also accept, I think, that the State has no such legitimate interest that could outweigh "the person's choice to put an end to her life. " Similarly, if one agrees with Justice BRENNAN that "the State's general interest in life must accede to Nancy Cruzan's particularized and intense interest in self-determination in her choice of medical treatment, " ibid. (emphasis added), he must also believe that the State must accede to her "particularized and intense interest in self-determination in her choice whether to continue living or to die. " For insofar as balancing the relative interests of the State and the individual is concerned, there is nothing distinctive about accepting death through the refusal of "medical treatment," as opposed to accepting it through the refusal of food, or through the failure to shut off the engine and get out of the car after parking in one's garage after work. Suppose that Nancy Cruzan were in precisely the condition she is in today, except that she could be fed and digest food and water without artificial assistance. How is the State's "interest" in keeping her alive thereby increased, or her interest in deciding whether she wants to continue living reduced? It seems to me, in other words, that Justice BRENNAN's position ultimately rests upon the proposition that it is none of the State's Page 497 U. S. 300 business if a person wants to commit suicide. Justice STEVENS is explicit on the point: "Choices about death touch the core of liberty. . . . [N]ot much may be said with confidence about death unless it is said from faith, and that alone is reason enough to protect the freedom to conform choices about death to individual conscience." Post at 497 U. S. 343 . This is a view that some societies have held, and that our States are free to adopt if they wish. But it is not a view imposed by our constitutional traditions, in which the power of the State to prohibit suicide is unquestionable. What I have said above is not meant to suggest that I would think it desirable, if we were sure that Nancy Cruzan wanted to die, to keep her alive by the means at issue here. I assert only that the Constitution has nothing to say about the subject. To raise up a constitutional right here, we would have to create out of nothing (for it exists neither in text nor tradition) some constitutional principle whereby, although the State may insist that an individual come in out of the cold and eat food, it may not insist that he take medicine; and although it may pump his stomach empty of poison he has ingested, it may not fill his stomach with food he has failed to ingest. Are there, then, no reasonable and humane limits that ought not to be exceeded in requiring an individual to preserve his own life? There obviously are, but they are not set forth in the Due Process Clause. What assures us that those limits will not be exceeded is the same constitutional guarantee that is the source of most of our protection -- what protects us, for example, from being assessed a tax of 100% of our income above the subsistence level, from being forbidden to drive cars, or from being required to send our children to school for 10 hours a day, none of which horribles is categorically prohibited by the Constitution. Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me. This Court need not, and has no authority to, inject itself into every field of human activity Page 497 U. S. 301 where irrationality and oppression may theoretically occur, and if it tries to do so, it will destroy itself. Justice BRENNAN, with whom Justice MARSHALL and Justice BLACKMUN join, dissenting. "Medical technology has effectively created a twilight zone of suspended animation where death commences while life, in some form, continues. Some patients, however, want no part of a life sustained only by medical technology. Instead, they prefer a plan of medical treatment that allows nature to take its course and permits them to die with dignity. [ Footnote 3/1 ]" Nancy Cruzan has dwelt in that twilight zone for six years. She is oblivious to her surroundings and will remain so. Cruzan v. Harmon, 760 S.W.2d 408 , 411 (Mo.1988). Her body twitches only reflexively, without consciousness. Ibid. The areas of her brain that once thought, felt, and experienced sensations have degenerated badly, and are continuing to do so. The cavities remaining are filling with cerebrospinal fluid. The " cerebral cortical atrophy is irreversible, permanent, progressive and ongoing.'" Ibid. "Nancy will never interact meaningfully with her environment again. She will remain in a persistent vegetative state until her death." Id. at 422. [ Footnote 3/2 ] Because she cannot swallow, her nutrition and hydration are delivered through a tube surgically implanted in her stomach. A grown woman at the time of the accident, Nancy had previously expressed her wish to forgo continuing medical care under circumstances such as these. Her family and her Page 497 U. S. 302 friends are convinced that this is what she would want. See n. | 497 U.S. 261 fn3/20|20, infra. A guardian ad litem appointed by the trial court is also convinced that this is what Nancy would want. See 760 S.W.2d at 444 (Higgins, J., dissenting from denial of rehearing). Yet the Missouri Supreme Court, alone among state courts deciding such a question, has determined that an irreversibly vegetative patient will remain a passive prisoner of medical technology -- for Nancy, perhaps for the next 30 years. See id. at 424, 427. Today the Court, while tentatively accepting that there is some degree of constitutionally protected liberty interest in avoiding unwanted medical treatment, including life-sustaining medical treatment such as artificial nutrition and hydration, affirms the decision of the Missouri Supreme Court. The majority opinion, as I read it, would affirm that decision on the ground that a State may require "clear and convincing" evidence of Nancy Cruzan's prior decision to forgo life-sustaining treatment under circumstances such as hers in order to ensure that her actual wishes are honored. See ante at 497 U. S. 282 -283, 497 U. S. 286 -287. Because I believe that Nancy Cruzan has a fundamental right to be free of unwanted artificial nutrition and hydration, which right is not outweighed by any interests of the State, and because I find that the improperly biased procedural obstacles imposed by the Missouri Supreme Court impermissibly burden that right, I respectfully dissent. Nancy Cruzan is entitled to choose to die with dignity. I A "[T]he timing of death -- once a matter of fate -- is now a matter of human choice." Office of Technology Assessment Task Force, Life Sustaining Technologies and the Elderly 41 (1988). Of the approximately two million people who die each year, 80% die in hospitals and long-term care institutions, [ Footnote 3/3 ] Page 497 U. S. 303 and perhaps 70% of those after a decision to forgo life-sustaining treatment has been made. [ Footnote 3/4 ] Nearly every death involves a decision whether to undertake some medical procedure that could prolong the process of dying. Such decisions are difficult and personal. They must be made on the basis of individual values, informed by medical realities, yet within a framework governed by law. The role of the courts is confined to defining that framework, delineating the ways in which government may and may not participate in such decisions. The question before this Court is a relatively narrow one: whether the Due Process Clause allows Missouri to require a now-incompetent patient in an irreversible persistent vegetative state to remain on life-support absent rigorously clear and convincing evidence that avoiding the treatment represents the patient's prior, express choice. See ante at 497 U. S. 277 -278. If a fundamental right is at issue, Missouri's rule of decision must be scrutinized under the standards this Court has always applied in such circumstances. As we said in Zablocki v. Redhail, 434 U. S. 374 , 434 U. S. 388 (1978), if a requirement imposed by a State "significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests." The Constitution imposes on this Court the obligation to "examine carefully . . . the extent to which [the legitimate government interests advanced] are served by the challenged regulation." Moore v. East Cleveland, 431 U. S. 494 , 431 U. S. 499 (1977). See also Carey v. Population Services International, 431 U. S. 678 , 431 U. S. 690 (1977) (invalidating a requirement that bore "no relation to the State's interest"). An evidentiary rule, just as a substantive prohibition, must meet these standards if it significantly burdens a fundamental liberty interest. Fundamental Page 497 U. S. 304 rights "are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference." Bates v. Little Rock, 361 U. S. 516 , 361 U. S. 523 (1960). B The starting point for our legal analysis must be whether a competent person has a constitutional right to avoid unwanted medical care. Earlier this Term, this Court held that the Due Process Clause of the Fourteenth Amendment confers a significant liberty interest in avoiding unwanted medical treatment. Washington v. Harper, 494 U. S. 210 , 494 U. S. 221 -222 (1990). Today, the Court concedes that our prior decisions "support the recognition of a general liberty interest in refusing medical treatment." See ante at 497 U. S. 278 . The Court, however, avoids discussing either the measure of that liberty interest or its application by assuming, for purposes of this case only, that a competent person has a constitutionally protected liberty interest in being free of unwanted artificial nutrition and hydration. See ante at 497 U. S. 279 . Justice O'CONNOR's opinion is less parsimonious. She openly affirms that "the Court has often deemed state incursions into the body repugnant to the interests protected by the Due Process Clause," that there is a liberty interest in avoiding unwanted medical treatment, and that it encompasses the right to be free of "artificially delivered food and water." See ante at 497 U. S. 287 . But if a competent person has a liberty interest to be free of unwanted medical treatment, as both the majority and Justice O'CONNOR concede, it must be fundamental. "We are dealing here with [a decision] which involves one of the basic civil rights of man." Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 , 316 U. S. 541 (1942) (invalidating a statute authorizing sterilization of certain felons). Whatever other liberties protected by the Due Process Clause are fundamental, "those liberties that are deeply rooted in this Nation's history and tradition'" are among them. Bowers v. Hardwick , Page 497 U. S. 305 478 U. S. 186 , 478 U. S. 192 (1986) (quoting Moore v. East Cleveland, supra, 431 U.S. at 431 U. S. 503 (plurality opinion)). "Such a tradition commands respect in part because the Constitution carries the gloss of history." Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555 , 448 U. S. 589 (1980) (BRENNAN, J., concurring in judgment). The right to be free from medical attention without consent, to determine what shall be done with one's own body, is deeply rooted in this Nation's traditions, as the majority acknowledges. See ante at 497 U. S. 270 . This right has long been "firmly entrenched in American tort law" and is securely grounded in the earliest common law. Ibid. See also Mills v. Rogers, 457 U. S. 291 , 457 U. S. 294 , n. 4 (1982) ("the right to refuse any medical treatment emerged from the doctrines of trespass and battery, which were applied to unauthorized touchings by a physician"). "Anglo-American law starts with the premise of thorough-going self-determination. It follows that each man is considered to be master of his own body, and he may, if he be of sound mind, expressly prohibit the performance of lifesaving surgery or other medical treatment." Natanson v. Kline, 186 Kan. 393, 406-407, 350 P.2d 1093 , 1104 (1960). "The inviolability of the person" has been held as "sacred" and "carefully guarded" as any common law right. Union Pacific R. Co. v. Botsford, 141 U. S. 250 , 141 U. S. 251 -252 (1891). Thus, freedom from unwanted medical attention is unquestionably among those principles "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U. S. 97 , 291 U. S. 105 (1934). [ Footnote 3/5 ] Page 497 U. S. 306 That there may be serious consequences involved in refusal of the medical treatment at issue here does not vitiate the right under our common law tradition of medical self-determination. It is "a well-established rule of general law . . . that it is the patient, not the physician, who ultimately decides if treatment -- any treatment -- is to be given at all. . . . The rule has never been qualified in its application by either the nature or purpose of the treatment, or the gravity of the consequences of acceding to or foregoing it." Tune v. Walter Reed Army Medical Hospital, 602 F. Supp. 1452 , 1455 (DC 1985). See also Downer v. Veilleux, 322 A.2d 82 , 91 (Me.1974) ("The rationale of this rule lies in the fact that every competent adult has the right to forego treatment, or even cure, if it entails what for him are intolerable consequences or risks, however unwise his sense of values may be to others"). [ Footnote 3/6 ] Page 497 U. S. 307 No material distinction can be drawn between the treatment to which Nancy Cruzan continues to be subject -- artificial nutrition and hydration -- and any other medical treatment. See ante at 497 U. S. 288 -289 (O'CONNOR, J., concurring). The artificial delivery of nutrition and hydration is undoubtedly medical treatment. The technique to which Nancy Cruzan is subject -- artificial feeding through a gastrostomy tube -- involves a tube implanted surgically into her stomach through incisions in her abdominal wall. It may obstruct the intestinal tract, erode and pierce the stomach wall, or cause leakage of the stomach's contents into the abdominal cavity. See Page, Andrassy, & Sandler, Techniques in Delivery of Liquid Diets, in Nutrition in Clinical Surgery 66-67 (M. Deitel 2d ed. 1985). The tube can cause pneumonia from reflux of the stomach's contents into the lung. See Bernard & Forlaw, Complications and Their Prevention, in Enteral and Tube Feeding 553 (J. Rombeau & M. Caldwell eds. 1984). Typically, and in this case (see Tr. 377), commercially prepared formulas are used, rather than fresh food. See Matarese, Enteral Alimentation, in Surgical Nutrition 726 (J. Fischer ed. 1983). The type of formula and method of administration must be experimented with to avoid gastrointestinal problems. Id. at 748. The patient must be monitored daily by medical personnel as to weight, fluid intake and fluid output; blood tests must be done weekly. Id. at 749, 751. Artificial delivery of food and water is regarded as medical treatment by the medical profession and the Federal Government. [ Footnote 3/7 ] According to the American Academy of Neurology: Page 497 U. S. 308 "[t]he artificial provision of nutrition and hydration is a form of medical treatment . . . analogous to other forms of life-sustaining treatment, such as the use of the respirator. When a patient is unconscious, both a respirator and an artificial feeding device serve to support or replace normal bodily functions that are compromised as a result of the patient's illness." Position of the American Academy of Neurology on Certain Aspects of the Care and Management of the Persistent Vegetative State Patient, 39 Neurology 125 (Jan.1989). See also Council on Ethical and Judicial Affairs of the American Medical Association, Current Opinions, Opinion 2.20 (1989) ("Life-prolonging medical treatment includes medication and artificially or technologically supplied respiration, nutrition or hydration"); President's Commission 88 (life-sustaining treatment includes respirators, kidney dialysis machines, special feeding procedures). The Federal Government permits the cost of the medical devices and formulas used in enteral feeding to be reimbursed under Medicare. See Pub.L. 99509, § 9340, note following 42 U.S.C. § 1395u, p. 592 (1982 ed., Supp. V). The formulas are regulated by the Federal Drug Administration as "medical foods," see 21 U.S.C. § 360ee, and the feeding tubes are regulated as medical devices, 21 CFR § 876.5980 (1989). Nor does the fact that Nancy Cruzan is now incompetent deprive her of her fundamental rights. See Youngberg v. Romeo, 457 U. S. 307 , 457 U. S. 315 , 457 U. S. 316 , 457 U. S. 319 (1982) (holding that severely retarded man's liberty interests in safety, freedom from bodily restraint and reasonable training survive involuntary commitment); Parham v. J.R., 442 U. S. 584 , 442 U. S. 600 (1979) (recognizing a child's substantial liberty interest in not being confined unnecessarily for medical treatment); Jackson v. Indiana, 406 U. S. 715 , 406 U. S. 730 , 406 U. S. 738 (1972) (holding that Indiana could not violate the due process and equal protection rights of a mentally retarded deaf mute by committing him for an indefinite amount of time simply because he was incompetent to stand trial on the criminal charges filed against Page 497 U. S. 309 him). As the majority recognizes, ante at 497 U. S. 280 , the question is not whether an incompetent has constitutional rights, but how such rights may be exercised. As we explained in Thompson v. Oklahoma, 487 U. S. 815 (1988), "[t]he law must often adjust the manner in which it affords rights to those whose status renders them unable to exercise choice freely and rationally. Children, the insane, and those who are irreversibly ill with loss of brain function, for instance, all retain 'rights,' to be sure, but often such rights are only meaningful as they are exercised by agents acting with the best interests of their principals in mind." Id. at 487 U. S. 825 , n. 23 (emphasis added). "To deny [its] exercise because the patient is unconscious or incompetent would be to deny the right." Foody v. Manchester Memorial Hospital, 40 Conn.Supp. 127, 133, 482 A.2d 713, 718 (1984). II A The right to be free from unwanted medical attention is a right to evaluate the potential benefit of treatment and its possible consequences according to one's own values and to make a personal decision whether to subject oneself to the intrusion. For a patient like Nancy Cruzan, the sole benefit of medical treatment is being kept metabolically alive. Neither artificial nutrition nor any other form of medical treatment available today can cure or in any way ameliorate her condition. [ Footnote 3/8 ] Irreversibly vegetative patients are devoid of thought, Page 497 U. S. 310 emotion and sensation; they are permanently and completely unconscious. See | 497 U.S. 261 fn3/2|n. 2, supra. [ Footnote 3/9 ] As the President's Commission concluded in approving the withdrawal of life support equipment from irreversibly vegetative patients: "[T]reatment ordinarily aims to benefit a patient through preserving life, relieving pain and suffering, protecting against disability, and returning maximally effective functioning. If a prognosis of permanent unconsciousness is correct, however, continued treatment cannot confer such benefits. Pain and suffering are absent, as are joy, satisfaction, and pleasure. Disability is total, and no return to an even minimal level of social or human functioning is possible." President's Commission 181-182. There are also affirmative reasons why someone like Nancy might choose to forgo artificial nutrition and hydration under these circumstances. Dying is personal. And it is profound. For many, the thought of an ignoble end, steeped in decay, is abhorrent. A quiet, proud death, bodily integrity Page 497 U. S. 311 intact, is a matter of extreme consequence. "In certain, thankfully rare, circumstances the burden of maintaining the corporeal existence degrades the very humanity it was meant to serve." Brophy v. New England Sinai Hospital, Inc., 398 Mass. 417, 434, 497 N.E.2d 626 , 635-636 (1986) (finding the subject of the proceeding "in a condition which [he] has indicated he would consider to be degrading and without human dignity" and holding that "[t]he duty of the State to preserve life must encompass a recognition of an individual's right to avoid circumstances in which the individual himself would feel that efforts to sustain life demean or degrade his humanity"). Another court, hearing a similar case, noted: "It is apparent from the testimony that what was on [the patient's] mind was not only the invasiveness of life-sustaining systems, such as the [nasogastric] tube, upon the integrity of his body. It was also the utter helplessness of the permanently comatose person, the wasting of a once strong body, and the submission of the most private bodily functions to the attention of others." In re Gardner, 534 A.2d 947 , 953 (Me.1987). Such conditions are, for many, humiliating to contemplate, [ Footnote 3/10 ] as is visiting a prolonged and anguished vigil on one's parents, spouse, and children. A long, drawn-out death can have a debilitating effect on family members. See Carnwath & Johnson, Psychiatric Morbidity Among Spouses of Patients With Stroke, 294 Brit.Med.J. 409 (1987); Livingston, Families Who Care, 291 Brit.Med.J. 919 (1985). For some, the idea of being remembered in their persistent vegetative Page 497 U. S. 312 states, rather than as they were before their illness or accident, may be very disturbing. [ Footnote 3/11 ] B Although the right to be free of unwanted medical intervention, like other constitutionally protected interests, may not be absolute, [ Footnote 3/12 ] no State interest could outweigh the rights of an individual in Nancy Cruzan's position. Whatever a State's possible interests in mandating life-support treatment under other circumstances, there is no good to be obtained here by Missouri's insistence that Nancy Cruzan remain on life-support systems if it is indeed her wish not to do so. Missouri does not claim, nor could it, that society as a whole will be benefited by Nancy's receiving medical treatment. Page 497 U. S. 313 No third party's situation will be improved, and no harm to others will be averted. Cf. nn. | 497 U.S. 261 fn3/6|6 and | 497 U.S. 261 fn3/8|8, supra. [ Footnote 3/13 ] The only state interest asserted here is a general interest in the preservation of life. [ Footnote 3/14 ] But the State has no legitimate general interest in someone's life, completely abstracted from the interest of the person living that life, that could outweigh the person's choice to avoid medical treatment. "[T]he regulation of constitutionally protected decisions . . . must be predicated on legitimate state concerns other than disagreement with the choice the individual has made. . . . Otherwise, the interest in liberty protected by the Due Process Clause would be a nullity." Hodgson v. Minnesota, post, Page 497 U. S. 314 at 497 U. S. 435 (1990) (Opinion of STEVENS, J.) (emphasis added). Thus, the State's general interest in life must accede to Nancy Cruzan's particularized and intense interest in self-determination in her choice of medical treatment. There is simply nothing legitimately within the State's purview to be gained by superseding her decision. Moreover, there may be considerable danger that Missouri's rule of decision would impair rather than serve any interest the State does have in sustaining life. Current medical practice recommends use of heroic measures if there is a scintilla of a chance that the patient will recover, on the assumption that the measures will be discontinued should the patient improve. When the President's Commission in 1982 approved the withdrawal of life support equipment from irreversibly vegetative patients, it explained that "[a]n even more troubling wrong occurs when a treatment that might save life or improve health is not started because the health care personnel are afraid that they will find it very difficult to stop the treatment if, as is fairly likely, it proves to be of little benefit and greatly burdens the patient." President's Commission 75. A New Jersey court recognized that families as well as doctors might be discouraged by an inability to stop life-support measures from "even attempting certain types of care [which] could thereby force them into hasty and premature decisions to allow a patient to die." In re Conroy, 98 N.J. 321, 370, 486 A.2d 1209 , 1234 (1985). See also Brief for American Academy of Neurology as Amicus Curiae 9 (expressing same concern). [ Footnote 3/15 ] Page 497 U. S. 315 III This is not to say that the State has no legitimate interests to assert here. As the majority recognizes, ante at 497 U. S. 281 -282, Missouri has a parens patriae interest in providing Nancy Cruzan, now incompetent, with as accurate as possible a determination of how she would exercise her rights under these circumstances. Second, if and when it is determined that Nancy Cruzan would want to continue treatment, the State may legitimately assert an interest in providing that treatment. But until Nancy's wishes have been determined, Page 497 U. S. 316 the only state interest that may be asserted is an interest in safe-guarding the accuracy of that determination. Accuracy, therefore, must be our touchstone. Missouri may constitutionally impose only those procedural requirements that serve to enhance the accuracy of a determination of Nancy Cruzan's wishes or are at least consistent with an accurate determination. The Missouri "safeguard" that the Court upholds today does not meet that standard. The determination needed in this context is whether the incompetent person would choose to live in a persistent vegetative state on life-support or to avoid this medical treatment. Missouri's rule of decision imposes a markedly asymmetrical evidentiary burden. Only evidence of specific statements of treatment choice made by the patient when competent is admissible to support a finding that the patient, now in a persistent vegetative state, would wish to avoid further medical treatment. Moreover, this evidence must be clear and convincing. No proof is required to support a finding that the incompetent person would wish to continue treatment. A The majority offers several justifications for Missouri's heightened evidentiary standard. First, the majority explains that the State may constitutionally adopt this rule to govern determinations of an incompetent's wishes in order to advance the State's substantive interests, including its unqualified interest in the preservation of human life. See ante at 497 U. S. 282 -283 and n. 10. Missouri's evidentiary standard, however, cannot rest on the State's own interest in a particular substantive result. To be sure, courts have long erected clear and convincing evidence standards to place the greater risk of erroneous decisions on those bringing disfavored claims. [ Footnote 3/16 ] In such cases, however, the choice to discourage Page 497 U. S. 317 certain claims was a legitimate, constitutional policy choice. In contrast, Missouri has no such power to disfavor a choice by Nancy Cruzan to avoid medical treatment, because Missouri has no legitimate interest in providing Nancy with treatment until it is established that this represents her choice. See supra at 497 U. S. 312 -314. Just as a State may not override Nancy's choice directly, it may not do so indirectly through the imposition of a procedural rule. Second, the majority offers two explanations for why Missouri's clear and convincing evidence standard is a means of enhancing accuracy, but neither is persuasive. The majority initially argues that a clear and convincing evidence standard is necessary to compensate for the possibility that such proceedings will lack the "guarantee of accurate factfinding that the adversary process brings with it," citing Ohio v. Akron Center for Reproductive Health, post at 497 U. S. 515 -516 (upholding a clear and convincing evidence standard for an ex parte proceeding). Ante at 497 U. S. 281 -282. Without supporting the Court's decision in that case, I note that the proceeding to determine an incompetent's wishes is quite different from a proceeding to determine whether a minor may bypass notifying her parents before undergoing an abortion on the ground that she is mature enough to make the decision or that the abortion is in her best interests. Page 497 U. S. 318 An adversarial proceeding is of particular importance when one side has a strong personal interest which needs to be counterbalanced to assure the court that the questions will be fully explored. A minor who has a strong interest in obtaining permission for an abortion without notifying her parents may come forward whether or not society would be satisfied that she has made the decision with the seasoned judgment of an adult. The proceeding here is of a different nature. Barring venal motives, which a trial court has the means of ferreting out, the decision to come forward to request a judicial order to stop treatment represents a slowly and carefully considered resolution by at least one adult and more frequently several adults that discontinuation of treatment is the patient's wish. In addition, the bypass procedure at issue in Akron, supra, is ex parte and secret. The court may not notify the minor's parents, siblings or friends. No one may be present to submit evidence unless brought forward by the minor herself. In contrast, the proceeding to determine Nancy Cruzan's wishes was neither ex parte nor secret. In a hearing to determine the treatment preferences of an incompetent person, a court is not limited to adjusting burdens of proof as its only means of protecting against a possible imbalance. Indeed, any concern that those who come forward will present a one-sided view would be better addressed by appointing a guardian ad litem, who could use the State's powers of discovery to gather and present evidence regarding the patient's wishes. A guardian ad litem's task is to uncover any conflicts of interest and ensure that each party likely to have relevant evidence is consulted and brought forward -- for example, other members of the family, friends, clergy, and doctors. See, e.g., In re Colyer, 99 Wash. 2d 114 , 133, 660 P.2d 738 , 748-749 (1983). Missouri's heightened evidentiary standard attempts to achieve balance by discounting evidence; the guardian ad litem technique achieves balance by probing for additional evidence. Where, as here, the family members, Page 497 U. S. 319 friends, doctors and guardian ad litem agree, it is not because the process has failed, as the majority suggests. See ante at 497 U. S. 281 , n. 9. It is because there is no genuine dispute as to Nancy's preference. The majority next argues that where, as here, important individual rights are at stake, a clear and convincing evidence standard has long been held to be an appropriate means of enhancing accuracy, citing decisions concerning what process an individual is due before he can be deprived of a liberty interest. See ante at 497 U. S. 283 . In those cases, however, this Court imposed a clear and convincing standard as a constitutional minimum on the basis of its evaluation that one side's interests clearly outweighed the second side's interests, and therefore the second side should bear the risk of error. See Santosky v. Kramer, 455 U. S. 745 , 455 U. S. 753 , 455 U. S. 766 -767 (1982) (requiring a clear and convincing evidence standard for termination of parental rights because the parent's interest is fundamental, but the State has no legitimate interest in termination unless the parent is unfit, and finding that the State's interest in finding the best home for the child does not arise until the parent has been found unfit); Addington v. Texas, 441 U. S. 418 , 441 U. S. 426 -427 (1979) (requiring clear and convincing evidence in an involuntary commitment hearing because the interest of the individual far outweighs that of a State, which has no legitimate interest in confining individuals who are not mentally ill and do not pose a danger to themselves or others). Moreover, we have always recognized that shifting the risk of error reduces the likelihood of errors in one direction at the cost of increasing the likelihood of errors in the other. See Addington, supra, at 441 U. S. 423 (contrasting heightened standards of proof to a preponderance standard in which the two sides "share the risk of error in roughly equal fashion" because society does not favor one outcome over the other). In the cases cited by the majority, the imbalance imposed by a heightened evidentiary standard was not only acceptable, but required because the standard was deployed to protect an individual's Page 497 U. S. 320 exercise of a fundamental right, as the majority admits, ante at 497 U. S. 282 -283, n. 10. In contrast, the Missouri court imposed a clear and convincing standard as an obstacle to the exercise of a fundamental right. The majority claims that the allocation of the risk of error is justified because it is more important not to terminate life-support for someone who would wish it continued than to honor the wishes of someone who would not. An erroneous decision to terminate life-support is irrevocable, says the majority, while an erroneous decision not to terminate "results in a maintenance of the status quo. " See ante at 497 U. S. 283 . [ Footnote 3/17 ] But, from the point of view of the patient, an erroneous decision in either direction is irrevocable. An erroneous decision to terminate artificial nutrition and hydration, to be sure, will lead to failure of that last remnant of physiological life, the brain stem, and result in complete brain death. An erroneous decision not to terminate life-support, however, robs a patient of the very qualities protected by the right to avoid unwanted medical treatment. His own degraded existence is perpetuated; his family's suffering is protracted; the memory he leaves behind becomes more and more distorted. Even a later decision to grant him his wish cannot undo the intervening harm. But a later decision is unlikely in any event. "[T]he discovery of new evidence," to which the majority Page 497 U. S. 321 refers, ibid., is more hypothetical than plausible. The majority also misconceives the relevance of the possibility of "advancements in medical science," ibid., by treating it as a reason to force someone to continue medical treatment against his will. The possibility of a medical miracle is indeed part of the calculus, but it is a part of the patient's calculus. If current research suggests that some hope for cure or even moderate improvement is possible within the life-span projected, this is a factor that should be and would be accorded significant weight in assessing what the patient himself would choose. [ Footnote 3/18 ] B Even more than its heightened evidentiary standard, the Missouri court's categorical exclusion of relevant evidence dispenses with any semblance of accurate factfinding. The court adverted to no evidence supporting its decision, but held that no clear and convincing, inherently reliable evidence had been presented to show that Nancy would want to avoid further treatment. In doing so, the court failed to consider statements Nancy had made to family members and a close friend. [ Footnote 3/19 ] The court also failed to consider testimony Page 497 U. S. 322 from Nancy's mother and sister that they were certain that Nancy would want to discontinue to artificial nutrition and hydration, [ Footnote 3/20 ] even after the court found that Nancy's family was loving and without malignant motive. See 760 S.W.2d at 412. The court also failed to consider the conclusions of the guardian ad litem, appointed by the trial court, that there was clear and convincing evidence that Nancy would want to Page 497 U. S. 323 discontinue medical treatment and that this was in her best interests. Id. at 444 (Higgins, J., dissenting from denial of rehearing); Brief for Respondent Guardian ad litem 2-3. The court did not specifically define what kind of evidence it would consider clear and convincing, but its general discussion suggests that only a living will or equivalently formal directive from the patient when competent would meet this standard. See 760 S.W.2d at 424-425. Too few people execute living wills or equivalently formal directives for such an evidentiary rule to ensure adequately that the wishes of incompetent persons will be honored. [ Footnote 3/21 ] While it might be a wise social policy to encourage people to furnish such instructions, no general conclusion about a patient's choice can be drawn from the absence of formalities. The probability of becoming irreversibly vegetative is so low that many people may not feel an urgency to marshal formal evidence of their preferences. Some may not wish to dwell on their own physical deterioration and mortality. Even someone with a resolute determination to avoid life-support under circumstances such as Nancy's would still need to know that such things as living wills exist and how to execute one. Often legal help would be necessary, especially given the majority's apparent willingness to permit States to insist that a person's wishes are not truly known unless the particular medical treatment is specified. See ante at 497 U. S. 285 . Page 497 U. S. 324 As a California appellate court observed: "The lack of generalized public awareness of the statutory scheme and the typically human characteristics of procrastination and reluctance to contemplate the need for such arrangements however makes this a tool which will all too often go unused by those who might desire it." Barber v. Superior Court, 147 Cal. App. 3d 1006 , 1015, 195 Cal. Rptr. 484 , 489 (1983). When a person tells family or close friends that she does not want her life sustained artificially, she is "express[ing] her wishes in the only terms familiar to her, and . . . as clearly as a lay person should be asked to express them. To require more is unrealistic, and for all practical purposes, it precludes the rights of patients to forego life-sustaining treatment." In re O'Connor, 72 N.Y.2d 517, 551, 534 N.Y.S.2d 886, 905, 531 N.E.2d 607, 626 (1988) (Simons, J., dissenting). [ Footnote 3/22 ] When Missouri enacted a living will statute, it specifically provided that the absence of a living will does not warrant a presumption that a patient wishes continued medical treatment. See | 497 U.S. 261 fn3/15|n. 15, supra. Page 497 U. S. 325 Thus, apparently not even Missouri's own legislature believes that a person who does not execute a living will fails to do so because he wishes continuous medical treatment under all circumstances. The testimony of close friends and family members, on the other hand, may often be the best evidence available of what the patient's choice would be. It is they with whom the patient most likely will have discussed such questions and they who know the patient best. "Family members have a unique knowledge of the patient which is vital to any decision on his or her behalf." Newman, Treatment Refusals for the Critically and Terminally Ill: Proposed Rules for the Family, the Physician, and the State, 3 N.Y.L.S. Human Rights Annual 35, 46 (1985). The Missouri court's decision to ignore this whole category of testimony is also at odds with the practices of other States. See, e.g., In re Peter, 108 N.J. 365, 529 A.2d 419 (1987); Brophy v. New England Sinai Hospital, Inc., 398 Mass. 417, 497 N.E.2d 626 (1986); In re Severns, 425 A.2d 156 (Del.Ch.1980). The Missouri court's disdain for Nancy's statements in serious conversations not long before her accident, for the opinions of Nancy's family and friends as to her values, beliefs and certain choice, and even for the opinion of an outside objective factfinder appointed by the State, evinces a disdain for Nancy Cruzan's own right to choose. The rules by which an incompetent person's wishes are determined must represent every effort to determine those wishes. The rule that the Missouri court adopted and that this Court upholds, however, skews the result away from a determination that as accurately as possible reflects the individual's own preferences and beliefs. It is a rule that transforms human beings into passive subjects of medical technology. "[M]edical care decisions must be guided by the individual patient's interests and values. Allowing persons to determine their own medical treatment is an important way in which society respects persons as individuals. Page 497 U. S. 326 Moreover, the respect due to persons as individuals does not diminish simply because they have become incapable of participating in treatment decisions. . . . [I]t is still possible for others to make a decision that reflects [the patient's] interests more closely than would a purely technological decision to do whatever is possible. Lacking the ability to decide, [a patient] has a right to a decision that takes his interests into account." In re Drabick, 200 Cal. App. 3d 185 , 208, 245 Cal. Rptr. 840 , 854-855 (1988). C I do not suggest that States must sit by helplessly if the choices of incompetent patients are in danger of being ignored. See ante at 497 U. S. 281 . Even if the Court had ruled that Missouri's rule of decision is unconstitutional, as I believe it should have, States would nevertheless remain free to fashion procedural protections to safeguard the interests of incompetents under these circumstances. The Constitution provides merely a framework here: protections must be genuinely aimed at ensuring decisions commensurate with the will of the patient, and must be reliable as instruments to that end. Of the many States which have instituted such protections, Missouri is virtually the only one to have fashioned a rule that lessens the likelihood of accurate determinations. In contrast, nothing in the Constitution prevents States from reviewing the advisability of a family decision by requiring a court proceeding or by appointing an impartial guardian ad litem. There are various approaches to determining an incompetent patient's treatment choice in use by the several States today, and there may be advantages and disadvantages to each, and other approaches not yet envisioned. The choice, in largest part, is and should be left to the States, so long as each State is seeking, in a reliable manner, to discover what the patient would want. But with such momentous interests in the balance, States must avoid procedures that will prejudice Page 497 U. S. 327 the decision. "To err either way -- to keep a person alive under circumstances under which he would rather have been allowed to die, or to allow that person to die when he would have chosen to cling to life -- would be deeply unfortunate." In re Conroy, 98 N.J. at 343, 486 A.2d at 1 220. D Finally, I cannot agree with the majority that where it is not possible to determine what choice an incompetent patient would make, a State's role as parens patriae permits the State automatically to make that choice itself. See ante at 497 U. S. 286 (explaining that the Due Process Clause does not require a State to confide the decision to "anyone but the patient herself"). Under fair rules of evidence, it is improbable that a court could not determine what the patient's choice would be. Under the rule of decision adopted by Missouri and upheld today by this Court, such occasions might be numerous. But in neither case does it follow that it is constitutionally acceptable for the State invariably to assume the role of deciding for the patient. A State's legitimate interest in safeguarding a patient's choice cannot be furthered by simply appropriating it. The majority justifies its position by arguing that, while close family members may have a strong feeling about the question, "there is no automatic assurance that the view of close family members will necessarily be the same as the patient's would have been had she been confronted with the prospect of her situation while competent." Ibid. I cannot quarrel with this observation. But it leads only to another question: Is there any reason to suppose that a State is more likely to make the choice that the patient would have made than someone who knew the patient intimately? To ask this is to answer it. As the New Jersey Supreme Court observed: "Family members are best qualified to make substituted judgments for incompetent patients not only because of their peculiar grasp of the patient's approach to life, but also Page 497 U. S. 328 because of their special bonds with him or her. . . . It is . . . they who treat the patient as a person, rather than a symbol of a cause." In re Jobes, 108 N.J. 394, 416, 529 A.2d 434 , 445 (1987). The State, in contrast, is a stranger to the patient. A State's inability to discern an incompetent patient's choice still need not mean that a State is rendered powerless to protect that choice. But I would find that the Due Process Clause prohibits a State from doing more than that. A State may ensure that the person who makes the decision on the patient's behalf is the one whom the patient himself would have selected to make that choice for him. And a State may exclude from consideration anyone having improper motives. But a State generally must either repose the choice with the person whom the patient himself would most likely have chosen as proxy or leave the decision to the patient's family. [ Footnote 3/23 ] IV As many as 10,000 patients are being maintained in persistent vegetative states in the United States, and the number is expected to increase significantly in the near future. See Cranford, supra, n. 2, at 27, 31. Medical technology, developed over the past 20 or so years, is often capable of resuscitating people after they have stopped breathing or their hearts have stopped beating. Some of those people are brought fully back to life. Two decades ago, those who were not and could not swallow and digest food died. Intravenous solutions could not provide sufficient calories to maintain people for more than a short time. Today, various forms of artificial feeding have been developed that are able to keep people metabolically alive for years, even decades. See Spencer & Palmisano, Specialized Nutritional Support of Page 497 U. S. 329 Patients -- A Hospital's Legal Duty?, 11 Quality Rev.Bull. 160, 160-161 (1985). In addition, in this century, chronic or degenerative ailments have replaced communicable diseases as the primary causes of death. See R. Weir, Abating Treatment with Critically Ill Patients 12-13 (1989); President's Commission 15-16. The 80% of Americans who die in hospitals are "likely to meet their end . . . 'in a sedated or comatose state; betubed nasally, abdominally and intravenously; and far more like manipulated objects than like moral subjects.' [ Footnote 3/24 ] A fifth of all adults surviving to age 80 will suffer a progressive dementing disorder prior to death. See Cohen & Eisdorfer, Dementing Disorders, in The Practice of Geriatrics 194 (E. Calkins, P. Davis, & A, Ford eds. 1986)." "[L]aw, equity and justice must not themselves quail and be helpless in the face of modern technological marvels presenting questions hitherto unthought-of." In re Quinlan, 70 N.J. 10, 44, 355 A.2d 647 , 665, cert. denied, 429 U.S. 922 (1976). The new medical technology can reclaim those who would have been irretrievably lost a few decades ago and restore them to active lives. For Nancy Cruzan, it failed, and for others with wasting incurable disease it may be doomed to failure. In these unfortunate situations, the bodies and preferences and memories of the victims do not escheat to the State; nor does our Constitution permit the State or any other government to commandeer them. No singularity of feeling exists upon which such a government might confidently rely as parens patriae. The President's Commission, after years of research, concluded: "In few areas of health care are people's evaluations of their experiences so varied and uniquely personal as in their assessments of the nature and value of the processes associated with dying. For some, every moment of life is of inestimable value; for others, life without Page 497 U. S. 330 some desired level of mental or physical ability is worthless or burdensome. A moderate degree of suffering may be an important means of personal growth and religious experience to one person, but only frightening or despicable to another." President's Commission 276. Yet Missouri and this Court have displaced Nancy's own assessment of the processes associated with dying. They have discarded evidence of her will, ignored her values, and deprived her of the right to a decision as closely approximating her own choice as humanly possible. They have done so disingenuously in her name, and openly in Missouri's own. That Missouri and this Court may truly be motivated only by concern for incompetent patients makes no matter. As one of our most prominent jurists warned us decades ago: "Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. . . . The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding." Olmstead v. United States, 277 U. S. 438 , 479(1928) (Brandeis, J., dissenting). I respectfully dissent. [ Footnote 3/1 ] Rasmussen v. Fleming, 154 Ariz. 207, 211, 741 P.2d 674 , 678 (1987) (en banc). [ Footnote 3/2 ] Vegetative state patients may react reflexively to sounds, movements and normally painful stimuli, but they do not feel any pain or sense anybody or anything. Vegetative state patients may appear awake, but are completely unaware. See Cranford, The Persistent Vegetative State: The Medical Reality, 18 Hastings Ctr.Rep. 27, 28, 31 (1988). [ Footnote 3/3 ] See President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life Sustaining Treatment 15, n. 1, and 17-18 (1983) (hereafter President's Commission). [ Footnote 3/4 ] See Lipton, Do-Not-Resuscitate Decisions in a Community Hospital: Incidence, Implications and Outcomes, 256 JAMA 1164, 1168 (1986). [ Footnote 3/5 ] See e.g, Canterbury v. Spence, 150 U.S.App.D.C. 263, 271, 464 F.2d 772, 780, cert. denied, 409 U.S. 1064 (1972) ("The root premise" of informed consent "is the concept, fundamental in American jurisprudence, that [e]very human being of adult years and sound mind has a right to determine what shall be done with his own body'") (quoting Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129-130, 105 N.E. 92, 93 (1914) (Cardozo, J.)). See generally Washington v. Harper, 494 U. S. 210 , 494 U. S. 241 (1990) (STEVENS, J., dissenting) ("There is no doubt . . . that a competent individual's right to refuse [psychotropic] medication is a fundamental liberty interest deserving the highest order of protection") . [ Footnote 3/6 ] Under traditional tort law, exceptions have been found only to protect dependent children. See Cruzan v. Harmon, 760 S.W.2d 408 , 422, n. 17 (Mo.1988) (citing cases where Missouri courts have ordered blood transfusions for children over the religious objection of parents); see also Winthrop University Hospital v. Hess, 128 Misc.2d 804, 490 N.Y.S.2d 996 (Sup.Ct. Nassau Co. 1985) (court ordered blood transfusion for religious objector because she was the mother of an infant and had explained that her objection was to the signing of the consent, not the transfusion itself); Application of President & Directors of Georgetown College, Inc., 118 U.S.App.D.C. 80, 88, 331 F.2d 1000, 1008, cert. denied, 377 U.S. 978 (1964) (blood transfusion ordered for mother of infant). Cf. In re Estate of Brooks, 32 Ill. 2d 361 , 373, 205 N.E.2d 435 , 441-442 (1965) (finding that lower court erred in ordering a blood transfusion for a woman -- whose children were grown -- and concluding: "Even though we may consider appellant's beliefs unwise, foolish or ridiculous, in the absence of an overriding danger to society we may not permit interference therewith in the form of a conservatorship established in the waning hours of her life for the sole purpose of compelling her to accept medical treatment forbidden by her religious principles, and previously refused by her with full knowledge of the probable consequences"). [ Footnote 3/7 ] The Missouri court appears to be alone among state courts to suggest otherwise, 760 S.W.2d at 419 and 423, although the court did not rely on a distinction between artificial feeding and other forms of medical treatment. Id. at 423. See, e.g., Delio v. Westchester County Medical Center, 129 App.Div.2d 1, 19, 516 N.Y.S.2d 677, 689 (1987) ("review of the decisions in other jurisdictions . . . failed to uncover a single case in which a court confronted with an application to discontinue feeding by artificial means has evaluated medical procedures to provide nutrition and hydration differently from other types of life-sustaining procedures"). [ Footnote 3/8 ] While brain stem cells can survive 15 to 20 minutes without oxygen, cells in the cerebral hemispheres are destroyed if they are deprived of oxygen for as few as 4 to 6 minutes. See Cranford & Smith, Some Critical Distinctions Between Brain Death and the Persistent Vegetative State, 6 Ethics Sci. & Med. 199, 203 (1979). It is estimated that Nancy's brain was deprived of oxygen from 12 to 14 minutes. See ante at 497 U. S. 266 . Out of the 100,000 patients who, like Nancy, have fallen into persistent vegetative states in the past 20 years due to loss of oxygen to the brain, there have been only three even partial recoveries documented in the medical literature. Brief for American Medical Association et al. as Amici Curiae 11-12. The longest any person has ever been in a persistent vegetative state and recovered was 22 months. See Snyder, Cranford, Rubens, Bundlic, & Rockswold, Delayed Recovery from Postanoxic Persistent Vegetative State, 14 Annals Neurol. 156 (1983). Nancy has been in this state for seven years. [ Footnote 3/9 ] The American Academy of Neurology offers three independent bases on which the medical profession rests these neurological conclusions: "First, direct clinical experience with these patients demonstrates that there is no behavioral indication of any awareness of pain or suffering." "Second, in all persistent vegetative state patients studied to date, post-mortem examination reveals overwhelming bilateral damage to the cerebral hemispheres to a degree incompatible with consciousness. . . . " "Third, recent data utilizing positron emission tomography indicates that the metabolic rate for glucose in the cerebral cortex is greatly reduced in persistent vegetative state patients, to a degree incompatible with consciousness." Position of the American Academy of Neurology on Certain Aspects of the Care and Management of the Persistent Vegetative State Patient, 39 Neurology 125 (Jan.1989). [ Footnote 3/10 ] Nancy Cruzan, for instance, is totally and permanently disabled. All four of her limbs are severely contracted; her fingernails cut into her wrists. App. to Pet. for Cert. A93. She is incontinent of bowel and bladder. The most intimate aspects of her existence are exposed to and controlled by strangers. Brief for Respondent Guardian Ad Litem 2. Her family is convinced that Nancy would find this state degrading. See n. | 497 U.S. 261 fn3/20|20, infra. [ Footnote 3/11 ] What general information exists about what most people would choose or would prefer to have chosen for them under these circumstances also indicates the importance of ensuring a means for now-incompetent patients to exercise their right to avoid unwanted medical treatment. A 1988 poll conducted by the American Medical Association found that 80% of those surveyed favored withdrawal of life support systems from hopelessly ill or irreversibly comatose patients if they or their families requested it. New York Times, June 5, 1988, p. 14, col. 4 (citing American Medical News, June 3, 1988, p. 9, col. 1). Another 1988 poll conducted by the Colorado University Graduate School of Public Affairs showed that 85% of those questioned would not want to have their own lives maintained with artificial nutrition and hydration if they became permanently unconscious. The Coloradoan, Sept. 29, 1988, p. 1. Such attitudes have been translated into considerable political action. Since 1976, 40 States and the District of Columbia have enacted natural death acts, expressly providing for self-determination under some or all of these situations. See Brief for Society for the Right to Die, Inc. as Amicus Curiae 8; Weiner, Privacy Family, and Medical Decision Making for Persistent Vegetative Patients, 11 Cardozo L.Rev. 713, 720 (1990). Thirteen States and the District of Columbia have enacted statutes authorizing the appointment of proxies for making health care decisions. See ante at 497 U. S. 290 , n. 2 (O'CONNOR, J., concurring). [ Footnote 3/12 ] See Jacobson v. Massachusetts, 197 U. S. 11 , 197 U. S. 26 -27 (1905) (upholding a Massachusetts law imposing fines or imprisonment on those refusing to be vaccinated as "of paramount necessity" to that State's fight against a smallpox epidemic). [ Footnote 3/13 ] Were such interests at stake, however, I would find that the Due Process Clause places limits on what invasive medical procedures could be forced on an unwilling comatose patient in pursuit of the interests of a third party. If Missouri were correct that its interests outweigh Nancy's interest in avoiding medical procedures as long as she is free of pain and physical discomfort, see 760 S.W.2d at 424, it is not apparent why a State could not choose to remove one of her kidneys without consent on the ground that society would be better off if the recipient of that kidney were saved from renal poisoning. Nancy cannot feel surgical pain. See | 497 U.S. 261 fn3/2|n. 2, supra. Nor would removal of one kidney be expected to shorten her life expectancy. See The American Medical Association Family Medical Guide 506 (J. Kunz ed. 1982). Patches of her skin could also be removed to provide grafts for burn victims, and scrapings of bone marrow to provide grafts for someone with leukemia. Perhaps the State could lawfully remove more vital organs for transplanting into others who would then be cured of their ailments, provided the State placed Nancy on some other life-support equipment to replace the lost function. Indeed, why could the State not perform medical experiments on her body, experiments that might save countless lives, and would cause her no greater burden than she already bears by being fed through the gastrostomy tube? This would be too brave a new world for me and, I submit, for our Constitution . [ Footnote 3/14 ] The Missouri Supreme Court reviewed the state interests that had been identified by other courts as potentially relevant -- prevention of homicide and suicide, protection of interests of innocent third parties, maintenance of the ethical integrity of the medical profession, and preservation of life -- and concluded that: "In this case, only the state's interest in the preservation of life is implicated." 760 S.W.2d at 419. [ Footnote 3/15 ] In any event, the State interest identified by the Missouri Supreme Court -- a comprehensive and "unqualified" interest in preserving life, id. at 420, 424 is not even well supported by that State's own enactments. In the first place, Missouri has no law requiring every person to procure any needed medical care nor a state health insurance program to underwrite such care. Id. at 429 (Blackmar, J., dissenting). Second, as the state court admitted, Missouri has a living will statute which specifically "allows and encourages the pre-planned termination of life." Ibid.; see Mo.Rev.Stat. § 459.015.1 (1986). The fact that Missouri actively provides for its citizens to choose a natural death under certain circumstances suggests that the State's interest in life is not so unqualified as the court below suggests. It is true that this particular statute does not apply to nonterminal patients and does not include artificial nutrition and hydration as one of the measures that may be declined. Nonetheless, Missouri has also not chosen to require court review of every decision to withhold or withdraw life-support made on behalf of an incompetent patient. Such decisions are made every day, without state participation. See 760 S.W.2d at 428 (Blackmar, J., dissenting) . In addition, precisely what implication can be drawn from the statute's limitations is unclear, given the inclusion of a series of "interpretive" provisions in the Act. The first such provision explains that the Act is to be interpreted consistently with the following: "Each person has the primary right to request or refuse medical treatment subject to the state's interest in protecting innocent third parties, preventing homicide and suicide and preserving good ethical standards in the medical profession." Mo.Rev.Stat. § 459.055(1) (1986). The second of these subsections explains that the Act's provisions are cumulative, and not intended to increase or decrease the right of a patient to make decisions or lawfully effect the withholding or withdrawal of medical care. § 459.055(2). The third subsection provides that "no presumption concerning the intention of an individual who has not executed a declaration to consent to the use or withholding of medical procedures" shall be created. § 459.055(3). Thus, even if it were conceivable that a State could assert an interest sufficiently compelling to overcome Nancy Cruzan's constitutional right, Missouri law demonstrates a more modest interest at best. See generally Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691 , 467 U. S. 715 (1984) (finding that state regulations narrow in scope indicated that State had only a moderate interest in its professed goal). [ Footnote 3/16 ] See Colorado v. New Mexico, 467 U. S. 310 (1984) (requiring clear and convincing evidence before one State is permitted to divert water from another to accommodate society's interests in stable property rights and efficient use of resources); New York v. New Jersey, 256 U. S. 296 (1921) (promoting federalism by requiring clear and convincing evidence before using Court's power to control the conduct of one State at the behest of another); Maxwell Land-Grant Case, 121 U. S. 325 (1887) (requiring clear, unequivocal, and convincing evidence to set aside, annul or correct a patent or other title to property issued by the Government in order to secure settled expectations concerning property rights); Marcum v. Zaring, 406 P.2d 970 (Okla.1965) (promoting stability of marriage by requiring clear and convincing evidence to prove its invalidity); Stevenson v. Stein, 412 Pa. 478, 195 A.2d 268 (1963)(promoting settled expectations concerning property rights by requiring clear and convincing evidence to prove adverse possession). [ Footnote 3/17 ] The majority's definition of the " status quo, " of course, begs the question. Artificial delivery of nutrition and hydration represents the " status quo " only if the State has chosen to permit doctors and hospitals to keep a patient on life-support systems over the protests of his family or guardian. The " status quo " absent that state interference would be the natural result of his accident or illness (and the family's decision). The majority's definition of status quo, however, is "to a large extent a predictable, yet accidental confluence of technology, psyche, and inertia. The general citizenry . . . never said that it favored the creation of coma wards where permanently unconscious patients would be tended for years and years. Nor did the populace as a whole authorize the preeminence of doctors over families in making treatment decisions for incompetent patients." Rhoden, Litigating Life and Death, 102 Harv.L.Rev. 375, 433-434 (1988). [ Footnote 3/18 ] For Nancy Cruzan, no such cure or improvement is in view. So much of her brain has deteriorated and been replaced by fluid, see App. to Pet. for Cert. A94, that apparently the only medical advance that could restore consciousness to her body would be a brain transplant. Cf. n. | 497 U.S. 261 fn3/22|22, infra. [ Footnote 3/19 ] The trial court had relied on the testimony of Athena Comer, a long-time friend, coworker and a housemate for several months, as sufficient to show that Nancy Cruzan would wish to be free of medical treatment under her present circumstances. App. to Pet. for Cert. A94. Ms. Comer described a conversation she and Nancy had while living together concerning Ms. Comer's sister, who had become ill suddenly and died during the night. The Comer family had been told that, if she had lived through the night, she would have been in a vegetative state. Nancy had lost a grandmother a few months before. Ms. Comer testified that: "Nancy said she would never want to live [as a vegetative state] because if she couldn't be normal or even, you know, like half way, and do things for yourself, because Nancy always did, that she didn't want to live . . . and we talked about it a lot." Tr. 388-389. She said "several times" that "she wouldn't want to live that way because if she was going to live, she wanted to be able to live, not to just lay in a bed and not be able to move because you can't do anything for yourself." Id. at 390, 396. "[S]he said that she hoped that [all the] people in her family knew that she wouldn't want to live [as a vegetable] because she knew it was usually up to the family whether you lived that way or not." Id. at 399. The conversation took place approximately a year before Nancy's accident, and was described by Ms. Comer as a "very serious" conversation that continued for approximately half an hour without interruption. Id. at 390. The Missouri Supreme Court dismissed Nancy's statement as "unreliable" on the ground that it was an informally expressed reaction to other people's medical conditions. 760 S.W.2d at 424. The Missouri Supreme Court did not refer to other evidence of Nancy's wishes or explain why it was rejected. Nancy's sister Christy, to whom she was very close, testified that she and Nancy had had two very serious conversations about a year and a half before the accident A day or two after their niece was stillborn (but would have been badly damaged if she had lived), Nancy had said that maybe it was part of a "greater plan" that the baby had been stillborn and did not have to face "the possible life of mere existence." Tr. 537. A month later, after their grandmother had died after a long battle with heart problems, Nancy said that "it was better for my grandmother not to be kind of brought back and forth [by] medical [treatment], brought back from a critical near point of death. . . ." Id. at 541. [ Footnote 3/20 ] Nancy's sister Christy, Nancy's mother, and another of Nancy's friends testified that Nancy would want to discontinue the hydration and nutrition. Christy said that "Nancy would be horrified at the state she is in." Id. at 535. She would also "want to take that burden away from [her family]." Id. at 544. Based on "a lifetime of experience, [I know Nancy's wishes] are to discontinue the hydration and the nutrition." Id. at 542. Nancy's mother testified: "Nancy would not want to be like she is now. [I]f it were me up there or Christy or any of us, she would be doing for us what we are trying to do for her. I know she would, . . . as her mother." Id. at 526. [ Footnote 3/21 ] Surveys show that the overwhelming majority of Americans have not executed such written instructions. See Emmanuel & Emmanuel, The Medical Directive: A New Comprehensive Advance Care Document, 261 JAMA 3288 (1989) (only 9% of Americans execute advance directives about how they would wish treatment decisions to be handled if they became incompetent); American Medical Association Surveys of Physician and Public Opinion on Health Care Issues 29-30 (1988) (only 15% of those surveyed had executed living wills); 2 President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions 241-242 (1982) (23% of those surveyed said that they had put treatment instructions in writing). [ Footnote 3/22 ] New York is the only State besides Missouri to deny a request to terminate life support on the ground that clear and convincing evidence of prior, expressed intent was absent, although New York did so in the context of very different situations. Mrs. O'Connor, the subject of In re O'Connor, had several times expressed her desire not to be placed on life-support if she were not going to be able to care for herself. However, both of her daughters testified that they did not know whether their mother would want to decline artificial nutrition and hydration under her present circumstances. Cf. | 497 U.S. 261 fn3/13|n. 13, supra. Moreover, despite damage from several strokes, Mrs. O'Connor was conscious and capable of responding to simple questions and requests, and the medical testimony suggested she might improve to some extent. Cf. supra, at 497 U. S. 301 . The New York Court of Appeals also denied permission to terminate blood transfusions for a severely retarded man with terminal cancer because there was no evidence of a treatment choice made by the man when competent, as he had never been competent. See In re Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64, cert. denied, 454 U.S. 858 (1981). Again, the court relied on evidence that the man was conscious, functioning in the way he always had, and that the transfusions did not cause him substantial pain (although it was clear he did not like them). [ Footnote 3/23 ] Only in the exceedingly rare case where the State cannot find any family member or friend who can be trusted to endeavor genuinely to make the treatment choice the patient would have made does the State become the legitimate surrogate decisionmaker. [ Footnote 3/24 ] Fadiman, The Liberation of Lolly and Gronky, Life Magazine, Dec. 1986, p. 72 (quoting medical ethicist Joseph Fletcher). Justice STEVENS, dissenting. Our Constitution is born of the proposition that all legitimate governments must secure the equal right of every person to "Life, Liberty, and the pursuit of Happiness." [ Footnote 4/1 ] In the ordinary case, we quite naturally assume that these three Page 497 U. S. 331 ends are compatible, mutually enhancing, and perhaps even coincident. The Court would make an exception here. It permits the State's abstract, undifferentiated interest in the preservation of life to overwhelm the best interests of Nancy Beth Cruzan, interests which would, according to an undisputed finding, be served by allowing her guardians to exercise her constitutional right to discontinue medical treatment. Ironically, the Court reaches this conclusion despite endorsing three significant propositions which should save it from any such dilemma. First, a competent individual's decision to refuse life-sustaining medical procedures is an aspect of liberty protected by the Due Process Clause of the Fourteenth Amendment. See ante at 497 U. S. 278 -279. Second, upon a proper evidentiary showing, a qualified guardian may make that decision on behalf of an inCompetent ward. See, e.g., ante at 497 U. S. 284 -285. Third, in answering the important question presented by this tragic case, it is wise "not to attempt by any general statement, to cover every possible phase of the subject." see ante at 497 U. S. 278 (citation omitted). Together, these considerations suggest that Nancy Cruzan's liberty to be free from medical treatment must be understood in light of the facts and circumstances particular to her. I would so hold: in my view, the Constitution requires the State to care for Nancy Cruzan's life in a way that gives appropriate respect to her own best interests. I This case is the first in which we consider whether, and how, the Constitution protects the liberty of seriously ill patients to be free from life-sustaining medical treatment. So put, the question is both general and profound. We need not, however, resolve the question in the abstract. Our responsibility as judges both enables and compels us to treat the problem as it is illuminated by the facts of the controversy before us. Page 497 U. S. 332 The most important of those facts are these: "clear and convincing evidence" established that Nancy Cruzan is "oblivious to her environment except for reflexive responses to sound and perhaps to painful stimuli"; that "she has no cognitive or reflexive ability to swallow food or water"; that "she will never recover" these abilities; and that her "cerebral cortical atrophy is irreversible, permanent, progressive and ongoing." App. to Pet. for Cert. A94-A95. Recovery and consciousness are impossible; the highest cognitive brain function that can be hoped for is a grimace in "recognition of ordinarily painful stimuli" or an "apparent response to sound." Id. at A95. [ Footnote 4/2 ] After thus evaluating Nancy Cruzan's medical condition, the trial judge next examined how the interests of third parties would be affected if Nancy's parents were allowed to withdraw the gastrostomy tube that had been implanted in Page 497 U. S. 333 their daughter. His findings make it clear that the parents' request had no economic motivation, [ Footnote 4/3 ] and that granting their request would neither adversely affect any innocent third parties nor breach the ethical standards of the medical profession. [ Footnote 4/4 ] He then considered, and rejected, a religious objection to his decision, [ Footnote 4/5 ] and explained why he concluded that the ward's constitutional "right to liberty" outweighed the general public policy on which the State relied: "There is a fundamental natural right, expressed in our Constitution as the 'right to liberty,' which permits an individual to refuse or direct the withholding or withdrawal of artificial death prolonging procedures when the person has no more cognitive brain function than our Ward and all the physicians agree there is no hope of further recovery while the deterioration of the brain continues with further overall worsening physical contractures. To the extent that the statute or public policy prohibits withholding or withdrawal of nutrition and hydration or euthanasia or mercy killing, if such be the definition, under all circumstances, arbitrarily and with no exceptions, it is in violation of our Ward's constitutional rights by depriving her of liberty without due process of Page 497 U. S. 334 law. To decide otherwise that medical treatment once undertaken must be continued irrespective of its lack of success or benefit to the patient in effect gives one's body to medical science without their consent." " * * * *" "The Co-guardians are required only to exercise their legal authority to act in the best interests of their Ward as they discharge their duty and are free to act or not with this authority as they may determine." Id. at A98-A99 (footnotes omitted). II Because he believed he had a duty to do so, the independent guardian ad litem appealed the trial court's order to the Missouri Supreme Court. In that appeal, however, the guardian advised the court that he did not disagree with the trial court's decision. Specifically, he endorsed the critical finding that "it was in Nancy Cruzan's best interests to have the tube feeding discontinued." [ Footnote 4/6 ] That important conclusion thus was not disputed by the litigants. One might reasonably suppose that it would be dispositive: if Nancy Cruzan has no interest in continued treatment, and if she has a liberty interest in being free from unwanted treatment, and if the cessation of treatment would have no adverse impact on third parties, and if no reason exists to doubt the good faith of Nancy's parents, then what possible basis could the State have for insisting upon continued medical treatment? Yet, instead of questioning or endorsing the trial court's conclusions about Nancy Cruzan's interests, the State Supreme Court largely ignored them. Page 497 U. S. 335 The opinion of that court referred to four different state interests that have been identified in other somewhat similar cases, but acknowledged that only the State's general interest in "the preservation of life" was implicated by this case. [ Footnote 4/7 ] It defined that interest as follows: "The state's interest in life embraces two separate concerns: an interest in the prolongation of the life of the individual patient and an interest in the sanctity of life itself." Cruzan v. Harmon, 760 S.W.2d 408 , 419 (1988). Although the court did not characterize this interest as absolute, it repeatedly indicated that it outweighs any countervailing interest that is based on the "quality of life" of any individual patient. [ Footnote 4/8 ] In the view of the state-court majority, Page 497 U. S. 336 that general interest is strong enough to foreclose any decision to refuse treatment for an incompetent person unless that person had previously evidenced, in clear and convincing terms, such a decision for herself. The best interests of the incompetent individual who had never confronted the issue -- or perhaps had been incompetent since birth -- are entirely irrelevant and unprotected under the reasoning of the State Supreme Court's four-judge majority. The three dissenting judges found Nancy Cruzan's interests compelling. They agreed with the trial court's evaluation of state policy. In his persuasive dissent, Judge Blackmar explained that decisions about the care of chronically ill patients were traditionally private: "My disagreement with the principal opinion lies fundamentally in its emphasis on the interest of and the role of the state, represented by the Attorney General. Decisions about prolongation of life are of recent origin. For most of the world's history, and presently in most parts of the world, such decisions would never arise, because the technology would not be available. Decisions about medical treatment have customarily been made by the patient, or by those closest to the patient if the patient, because of youth or infirmity, is unable to make the decisions. This is nothing new in substituted decisionmaking. The state is seldom called upon to be the decisionmaker." "I would not accept the assumption, inherent in the principal opinion, that, with our advanced technology, the state must necessarily become involved in a decision about using extraordinary measures to prolong life. Decisions of this kind are made daily by the patient or relatives, on the basis of medical advice and their conclusion as to what is best. Very few cases reach court, and Page 497 U. S. 337 I doubt whether this case would be before us but for the fact that Nancy lies in a state hospital. I do not place primary emphasis on the patient's expressions, except possibly in the very unusual case, of which I find no example in the books, in which the patient expresses a view that all available life supports should be made use of. Those closest to the patient are best positioned to make judgments about the patient's best interest." Id. at 428. Judge Blackmar then argued that Missouri's policy imposed upon dying individuals and their families a controversial and objectionable view of life's meaning: "It is unrealistic to say that the preservation of life is an absolute, without regard to the quality of life. I make this statement only in the context of a case in which the trial judge has found that there is no chance for amelioration of Nancy's condition. The principal opinion accepts this conclusion. It is appropriate to consider the quality of life in making decisions about the extraordinary medical treatment. Those who have made decisions about such matters without resort to the courts certainly consider the quality of life, and balance this against the unpleasant consequences to the patient. There is evidence that Nancy may react to pain stimuli. If she has any awareness of her surroundings, her life must be a living hell. She is unable to express herself or to do anything at all to alter her situation. Her parents, who are her closest relatives, are best able to feel for her and to decide what is best for her. The state should not substitute its decisions for theirs. Nor am I impressed with the crypto-philosophers cited in the principal opinion, who declaim about the sanctity of any life without regard to its quality. They dwell in ivory towers." Id. at 429. Page 497 U. S. 338 Finally, Judge Blackmar concluded that the Missouri policy was illegitimate because it treats life as a theoretical abstraction, severed from, and indeed opposed to, the person of Nancy Cruzan. "The Cruzan family appropriately came before the court seeking relief. The circuit judge properly found the facts and applied the law. His factual findings are supported by the record, and his legal conclusions by overwhelming weight of authority. The principal opinion attempts to establish absolutes, but does so at the expense of human factors. In so doing, it unnecessarily subjects Nancy and those close to her to continuous torture which no family should be forced to endure." Id. at 429-430. Although Judge Blackmar did not frame his argument as such, it propounds a sound constitutional objection to the Missouri majority's reasoning: Missouri's regulation is an unreasonable intrusion upon traditionally private matters encompassed within the liberty protected by the Due Process Clause. The portion of this Court's opinion that considers the merits of this case is similarly unsatisfactory. It, too, fails to respect the best interests of the patient. [ Footnote 4/9 ] It, too, relies on what is tantamount to a waiver rationale: the dying patient's best interests are put to one side, and the entire inquiry is focused on her prior expressions of intent. [ Footnote 4/10 ] An innocent person's constitutional right to be free from unwanted medical treatment is thereby categorically limited to those patients who had the foresight to make an unambiguous statement Page 497 U. S. 339 of their wishes while competent. The Court's decision affords no protection to children, to young people who are victims of unexpected accidents or illnesses, or to the countless thousands of elderly persons who either fail to decide, or fail to explain, how they want to be treated if they should experience a similar fate. Because Nancy Beth Cruzan did not have the foresight to preserve her constitutional right in a living will, or some comparable "clear and convincing" alternative, her right is gone forever, and her fate is in the hands of the state legislature instead of in those of her family, her independent neutral guardian ad litem, and an impartial judge -- all of whom agree on the course of action that is in her best interests. The Court's willingness to find a waiver of this constitutional right reveals a distressing misunderstanding of the importance of individual liberty. III It is perhaps predictable that courts might undervalue the liberty at stake here. Because death is so profoundly personal, public reflection upon it is unusual. As this sad case shows, however, such reflection must become more common if we are to deal responsibly with the modern circumstances of death. Medical advances have altered the physiological conditions of death in ways that may be alarming: highly invasive treatment may perpetuate human existence through a merger of body and machine that some might reasonably regard as an insult to life, rather than as its continuation. But those same advances, and the reorganization of medical care accompanying the new science and technology, have also transformed the political and social conditions of death: people are less likely to die at home, and more likely to die in relatively public places such as hospitals or nursing homes. [ Footnote 4/11 ] Page 497 U. S. 340 Ultimate questions that might once have been dealt with in intimacy by a family and its physician [ Footnote 4/12 ] have now become the concern of institutions. When the institution is a state hospital, Page 497 U. S. 341 as it is in this case, the government itself becomes involved. [ Footnote 4/13 ] Dying nonetheless remains a part of "the life which characteristically has its place in the home," Poe v. Ullman, 367 U. S. 497 , 367 U. S. 551 (1961) (Harlan, J., dissenting). The "integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right," id. at 367 U. S. 551 -552, and our decisions have demarcated a "private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U. S. 158 , 321 U. S. 166 -167 (1944). The physical boundaries of the home, of course, remain crucial guarantors of the life within it. See, e.g., Payton v. New York, 445 U. S. 573 , 445 U. S. 589 (1980); Stanley v. Georgia, 394 U. S. 557 , 394 U. S. 565 (1969). Nevertheless, this Court has long recognized that the liberty to make the decisions and choices constitutive of private life is so fundamental to our "concept of ordered liberty," Palko v. Connecticut, 302 U. S. 319 , 302 U. S. 325 (1937), that those choices must occasionally be afforded more direct protection. Page 497 U. S. 342 See, e.g., Meyer v. Nebraska, 262 U. S. 390 (1923); Griswold v. Connecticut, 381 U. S. 479 (1965); Roe v. Wade, 410 U. S. 113 (1973); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747 , 476 U. S. 772 -782 (1986) (STEVENS, J., concurring). Respect for these choices has guided our recognition of rights pertaining to bodily integrity. The constitutional decisions identifying those rights, like the common law tradition upon which they built, [ Footnote 4/14 ] are mindful that the "makers of our Constitution . . . recognized the significance of man's spiritual nature." Olmstead v. United States, 277 U. S. 438 , 277 U. S. 478 (1928) (Brandeis, J., dissenting). It may truly be said that "our notions of liberty are inextricably entwined with our idea of physical freedom and self-determination." Ante at 497 U. S. 287 (O'CONNOR, J., concurring). Thus we have construed the Due Process Clause to preclude physically invasive recoveries of evidence not only because such procedures are "brutal" but also because they are "offensive to human dignity." Rochin v. California, 342 U. S. 165 , 342 U. S. 174 (1952). We have interpreted the Constitution to interpose barriers to a State's efforts to sterilize some criminals not only because the proposed punishment would do "irreparable injury" to bodily integrity, but because "[m]arriage and procreation" concern "the basic civil rights of man." Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 , 316 U. S. 541 (1942). The sanctity, and individual privacy, of the human body is obviously fundamental to liberty. "Every violation of a person's bodily integrity is an invasion of his or her liberty." Washington v. Harper, 494 U. S. 210 , 494 U. S. 237 , (1990) (STEVENS, J., concurring in part and dissenting in part). Yet, just as the constitutional protection for the "physical curtilage of the home . . . is surely Page 497 U. S. 343 . . . a result of solicitude to protect the privacies of the life within," Poe v. Ullman, 367 U.S. at 367 U. S. 551 (Harlan, J., dissenting), so too the constitutional protection for the human body is surely inseparable from concern for the mind and spirit that dwell therein. It is against this background of decisional law, and the constitutional tradition which it illuminates, that the right to be free from unwanted life-sustaining medical treatment must be understood. That right presupposes no abandonment of the desire for life. Nor is it reducible to a protection against batteries undertaken in the name of treatment, or to a guarantee against the infliction of bodily discomfort. Choices about death touch the core of liberty. Our duty, and the concomitant freedom, to come to terms with the conditions of our own mortality are undoubtedly "so rooted in the traditions and conscience of our people as to be ranked as fundamental," Snyder v. Massachusetts, 291 U. S. 97 , 291 U. S. 105 (1934), and indeed are essential incidents of the unalienable rights to life and liberty endowed us by our Creator. See Meachum v. Fano, 427 U. S. 215 , 427 U. S. 230 (1976) (STEVENS, J., dissenting). The more precise constitutional significance of death is difficult to describe; not much may be said with confidence about death unless it is said from faith, and that alone is reason enough to protect the freedom to conform choices about death to individual conscience. We may also, however, justly assume that death is not life's simple opposite, or its necessary terminus, [ Footnote 4/15 ] but rather its completion. Our ethical tradition has long regarded an appreciation of mortality as essential to understanding life's significance. It may, in fact, be impossible to live for anything without being prepared to die for something. Certainly there was no disdain for life in Nathan Hale's most famous declaration or in Patrick Henry's; Page 497 U. S. 344 their words instead bespeak a passion for life that forever preserves their own lives in the memories of their countrymen. [ Footnote 4/16 ] From such "honored dead we take increased devotion to that cause for which they gave the last full measure of devotion." [ Footnote 4/17 ] These considerations cast into stark relief the injustice, and unconstitutionality, of Missouri's treatment of Nancy Beth Cruzan. Nancy Cruzan's death, when it comes, cannot be an historic act of heroism; it will inevitably be the consequence of her tragic accident. But Nancy Cruzan's interest in life, no less than that of any other person, includes an interest in how she will be thought of after her death by those whose opinions mattered to her. There can be no doubt that her life made her dear to her family, and to others. How she dies will affect how that life is remembered. The trial court's order authorizing Nancy's parents to cease their daughter's treatment would have permitted the family that cares for Nancy to bring to a close her tragedy and her death. Missouri's objection to that order subordinates Nancy's body, her family, and the lasting significance of her life to the State's own interests. The decision we review thereby interferes with constitutional interests of the highest order. To be constitutionally permissible, Missouri's intrusion upon these fundamental liberties must, at a minimum, bear a reasonable relationship to a legitimate state end. See, e.g., Meyer v. Nebraska, 262 U.S. at 262 U. S. 400 ; Doe v. Bolton, 410 U. S. 179 , 410 U. S. 194 -195, 410 U. S. 199 (1973). Missouri asserts that its policy is related to a state interest in the protection of life. In my view, however, it is an effort to define life, rather than to protect it, that is the heart of Missouri's policy. Missouri insists, without regard to Nancy Cruzan's own interests, upon Page 497 U. S. 345 equating her life with the biological persistence of her bodily functions. Nancy Cruzan, it must be remembered, is not now simply incompetent. She is in a persistent vegetative state, and has been so for seven years. The trial court found, and no party contested, that Nancy has no possibility of recovery, and no consciousness. It seems to me that the Court errs insofar as it characterizes this case as involving "judgments about the quality' of life that a particular individual may enjoy," ante at 497 U. S. 282 . Nancy Cruzan is obviously " alive " in a physiological sense. But for patients like Nancy Cruzan, who have no consciousness and no chance of recovery, there is a serious question as to whether the mere persistence of their bodies is " life " as that word is commonly understood, or as it is used in both the Constitution and the Declaration of Independence. [ Footnote 4/18 ] The State's unflagging determination to perpetuate Nancy Cruzan's physical existence is comprehensible only as an effort to define life's meaning, not as an attempt to preserve its sanctity. This much should be clear from the oddity of Missouri's definition alone. Life, particularly human life, is not commonly thought of as a merely physiological condition or function. [ Footnote 4/19 ] Page 497 U. S. 346 Its sanctity is often thought to derive from the impossibility of any such reduction. When people speak of life, they often mean to describe the experiences that comprise a person's history, as when it is said that somebody "led a good life." [ Footnote 4/20 ] They may also mean to refer to the practical manifestation of the human spirit, a meaning captured by the familiar observation that somebody "added life" to an assembly. If there is a shared thread among the various opinions on this subject, it may be that life is an activity which is at once the matrix for and an integration of a person's interests. In Page 497 U. S. 347 any event, absent some theological abstraction, the idea of life is not conceived separately from the idea of a living person. Yet, it is by precisely such a separation that Missouri asserts an interest in Nancy Cruzan's life in opposition to Nancy Cruzan's own interests. The resulting definition is uncommon indeed. The laws punishing homicide, upon which the Court relies, ante at 497 U. S. 280 , do not support a contrary inference. Obviously, such laws protect both the life and interests of those who would otherwise be victims. Even laws against suicide presuppose that those inclined to take their own lives have some interest in living, and, indeed, that the depressed people whose lives are preserved may later be thankful for the State's intervention. Likewise, decisions that address the "quality of life" of incompetent, but conscious, patients rest upon the recognition that these patients have some interest in continuing their lives, even if that interest pales in some eyes when measured against interests in dignity or comfort. Not so here. Contrary to the Court's suggestion, Missouri's protection of life in a form abstracted from the living is not commonplace; it is aberrant. Nor does Missouri's treatment of Nancy Cruzan find precedent in the various state law cases surveyed by the majority. Despite the Court's assertion that state courts have demonstrated "both similarity and diversity in their approach" to the issue before us, none of the decisions surveyed by the Court interposed an absolute bar to the termination of treatment for a patient in a persistent vegetative state. For example, In re Westchester County Medical Center on behalf of O'Connor, 72 N.Y.2d 517, 534 N.Y.S.2d 886, 531 N.E.2d 607 (1988), pertained to an incompetent patient who "was not in a coma or vegetative state. She was conscious, and capable of responding to simple questions or requests sometimes by squeezing the questioner's hand and sometimes verbally. Page 497 U. S. 348 Id. at 524-525, 534 N.Y.S.2d at 888-889, 531 N.E.2d at 609-610. Likewise, In re Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64 (1981), involved a conscious patient who was incompetent because 'profoundly retarded with a mental age of about 18 months.' Id. at 373, 438 N.Y.S.2d at 270, 420 N.E.2d at 68. When it decided In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985), the New Jersey Supreme Court noted that 'Ms. Conroy was not brain dead, comatose, or in a chronic vegetative state,' 98 N.J. at 337, 486 A.2d at 1217, and then distinguished In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976), on the ground that Karen Quinlan had been in a 'persistent vegetative or comatose state.' 98 N.J. at 358-359, 486 A.2d at 1228. By contrast, an unbroken stream of cases has authorized procedures for the cessation of treatment of patients in persistent vegetative states. [ Footnote 4/21 ] Considered Page 497 U. S. 349 against the background of other cases involving patients in persistent vegetative states, instead of against the broader -- and inapt -- category of cases involving chronically ill incompetent patients, Missouri's decision is anomalous. " Page 497 U. S. 350 In short, there is no reasonable ground for believing that Nancy Beth Cruzan has any personal interest in the perpetuation of what the State has decided is her life. As I have already suggested, it would be possible to hypothesize such an interest on the basis of theological or philosophical conjecture. But even to posit such a basis for the State's action is to condemn it. It is not within the province of secular government to circumscribe the liberties of the people by regulations designed wholly for he purpose of establishing a sectarian definition of life. See Webster v. Reproductive Services, 492 U. S. 490 , 497 U. S. 566 -572 (1989) (STEVENS, J., dissenting). My disagreement with the Court is thus unrelated to its endorsement of the clear and convincing standard of proof for cases of this kind. Indeed, I agree that the controlling facts must be established with unmistakable clarity. The critical question, however, is not how to prove the controlling facts but rather what proven facts should be controlling. In my view, the constitutional answer is clear: the best interests of the individual, especially when buttressed by the interests of all related third parties, must prevail over any general state policy that simply ignores those interests. [ Footnote 4/22 ] Indeed, the only apparent secular basis for the State's interest in life is the policy's persuasive impact upon people other than Nancy and her family. Yet, "[a]lthough the State may properly perform a teaching function," and although that teaching may foster respect for the sanctity of life, the State may not pursue its project by infringing constitutionally protected interests Page 497 U. S. 351 for "symbolic effect." Carey v. Population Services International, 431 U. S. 678 , 431 U. S. 715 (1977) (STEVENS, J., concurring in part and concurring in judgment). The failure of Missouri's policy to heed the interests of a dying individual with respect to matters so private is ample evidence of the policy's illegitimacy. Only because Missouri has arrogated to itself the power to define life, and only because the Court permits this usurpation, are Nancy Cruzan's life and liberty put into disquieting conflict. If Nancy Cruzan's life were defined by reference to her own interests, so that her life expired when her biological existence ceased serving any of her own interests, then her constitutionally protected interest in freedom from unwanted treatment would not come into conflict with her constitutionally protected interest in life. Conversely, if there were any evidence that Nancy Cruzan herself defined life to encompass every form of biological persistence by a human being, so that the continuation of treatment would serve Nancy's own liberty, then once again there would be no conflict between life and liberty. The opposition of life and liberty in this case are thus not the result of Nancy Cruzan's tragic accident, but are instead the artificial consequence of Missouri's effort and this Court's willingness, to abstract Nancy Cruzan's life from Nancy Cruzan's person. IV Both this Court's majority and the state court's majority express great deference to the policy choice made by the state legislature. [ Footnote 4/23 ] That deference is, in my view, based Page 497 U. S. 352 upon a severe error in the Court's constitutional logic. The Court believes that the liberty interest claimed here on behalf of Nancy Cruzan is peculiarly problematic because "an incompetent person is not able to make an informed and voluntary choice to exercise a hypothetical right to refuse treatment or any other right." Ante at 497 U. S. 280 . The impossibility of such an exercise affords the State, according to the Court, some discretion to interpose "a procedural requirement" that effectively compels the continuation of Nancy Cruzan's treatment. There is, however, nothing "hypothetical" about Nancy Cruzan's constitutionally protected interest in freedom from unwanted treatment, and the difficulties involved in ascertaining what her interests are do not in any way justify the State's decision to oppose her interests with its own. As this case comes to us, the crucial question -- and the question addressed by the Court -- is not what Nancy Cruzan's interests are, but whether the State must give effect to them. There is certainly nothing novel about the practice of permitting a next friend to assert constitutional rights on behalf of an incompetent patient who is unable to do so. See, e.g., Youngberg v. Romeo, 457 U. S. 307 , 310 (1982); Whitmore v. Arkansas, 495 U. S. 149 , 495 U. S. 161 -164 (1990). Thus, if Nancy Cruzan's incapacity to "exercise" her rights is to alter the balance between her interests and the State's, there must be some further explanation of how it does so. The Court offers two possibilities, neither of them satisfactory. The first possibility is that the State's policy favoring life is by its nature less intrusive upon the patient's interest than any alternative. The Court suggests that Missouri's policy "results in a maintenance of the status quo, " and is subject to reversal, while a decision to terminate treatment "is not susceptible Page 497 U. S. 353 of correction" because death is irreversible. Ante at 497 U. S. 283 . Yet this explanation begs the question, for it assumes either that the State's policy is consistent with Nancy Cruzan's own interests or that no damage is done by ignoring her interests. The first assumption is without basis in the record of this case, and would obviate any need for the State to rely, as it does, upon its own interests rather than upon the patient's. The second assumption is unconscionable. Insofar as Nancy Cruzan has an interest in being remembered for how she lived rather than how she died, the damage done to those memories by the prolongation of her death is irreversible. Insofar as Nancy Cruzan has an interest in the cessation of any pain, the continuation of her pain is irreversible. Insofar as Nancy Cruzan has an interest in a closure to her life consistent with her own beliefs rather than those of the Missouri legislature, the State's imposition of its contrary view is irreversible. To deny the importance of these consequences is in effect to deny that Nancy Cruzan has interests at all, and thereby to deny her personhood in the name of preserving the sanctity of her life. The second possibility is that the State must be allowed to define the interests of incompetent patients with respect to life-sustaining treatment because there is no procedure capable of determining what those interests are in any particular case. The Court points out various possible "abuses" and inaccuracies that may affect procedures authorizing the termination of treatment. See ante at 497 U. S. 281 -282. The Court correctly notes that, in some cases, there may be a conflict between the interests of an incompetent patient and the interests of members of her family. A State's procedures must guard against the risk that the survivors' interests are not mistaken for the patient's. Yet the appointment of the neutral guardian ad litem, coupled with the searching inquiry conducted by the trial judge and the imposition of the clear and convincing standard of proof, all effectively avoided that risk in this case. Why such procedural safeguards should not Page 497 U. S. 354 be adequate to avoid a similar risk in other cases is a question the Court simply ignores. Indeed, to argue that the mere possibility of error in any case suffices to allow the State's interests to override the particular interests of incompetent individuals in every case, or to argue that the interests of such individuals are unknowable and therefore may be subordinated to the State's concerns, is once again to deny Nancy Cruzan's personhood. The meaning of respect for her personhood, and for that of others who are gravely ill and incapacitated, is, admittedly, not easily defined: choices about life and death are profound ones, not susceptible of resolution by recourse to medical or legal rules. It may be that the best we can do is to ensure that these choices are made by those who will care enough about the patient to investigate her interests with particularity and caution. The Court seems to recognize as much when it cautions against formulating any general or inflexible rule to govern all the cases that might arise in this area of the law. Ante at 497 U. S. 277 -278. The Court's deference to the legislature is, however, itself an inflexible rule, one that the Court is willing to apply in this case even though the Court's principal grounds for deferring to Missouri's legislature are hypothetical circumstances not relevant to Nancy Cruzan's interests . On either explanation, then, the Court's deference seems ultimately to derive from the premise that chronically incompetent persons have no constitutionally cognizable interests at all, and so are not persons within the meaning of the Constitution. Deference of this sort is patently unconstitutional. It is also dangerous in ways that may not be immediately apparent. Today the State of Missouri has announced its intent to spend several hundred thousand dollars in preserving the life of Nancy Beth Cruzan in order to vindicate its general policy favoring the preservation of human life. Tomorrow, another State equally eager to champion an interest in the "quality of life" might favor a policy designed to ensure quick Page 497 U. S. 355 and comfortable deaths by denying treatment to categories of marginally hopeless cases. If the State in fact has an interest in defining life, and if the State's policy with respect to the termination of life-sustaining treatment commands deference from the judiciary, it is unclear how any resulting conflict between the best interests of the individual and the general policy of the State would be resolved. [ Footnote 4/24 ] I believe the Constitution requires that the individual's vital interest in liberty should prevail over the general policy in that case, just as in this. That a contrary result is readily imaginable under the majority's theory makes manifest that this Court cannot defer to any State policy that drives a theoretical wedge between a person's life, on the one hand, and that person's liberty or happiness, on the other. [ Footnote 4/25 ] The consequence of such a theory Page 497 U. S. 356 is to deny the personhood of those whose lives are defined by the State's interests rather than their own. This consequence may be acceptable in theology or in speculative philosophy, see Meyer, 262 U.S. at 262 U. S. 401 -402, but it is radically inconsistent with the foundation of all legitimate government. Our Constitution presupposes a respect for the personhood of every individual, and nowhere is strict adherence to that principle more essential than in the Judicial Branch. See, e.g., Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. at 476 U. S. 781 -782 (STEVENS, J., concurring). V In this case, as is no doubt true in many others, the predicament confronted by the healthy members of the Cruzan family merely adds emphasis to the best interests finding made by the trial judge. Each of us has an interest in the kind of memories that will survive after death. To that end, individual decisions are often motivated by their impact on others. A member of the kind of family identified in the trial court's findings in this case would likely have not only a normal interest in minimizing the burden that her own illness imposes on others but also an interest in having their memories of her filled predominantly with thoughts about her past vitality rather than her current condition. The meaning and completion of her life should be controlled by persons who have her best interests at heart -- not by a state legislature concerned only with the "preservation of human life." The Cruzan family's continuing concern provides a concrete reminder that Nancy Cruzan's interests did not disappear with her vitality or her consciousness. However commendable may be the State's interest in human life, it cannot pursue that interest by aPpropriating Nancy Cruzan's life as a symbol for its own purposes. Lives do not exist in abstraction Page 497 U. S. 357 from persons, and to pretend otherwise is not to honor but to desecrate the State's responsibility for protecting life. A State that seeks to demonstrate its commitment to life may do so by aiding those who are actively struggling for life and health. In this endeavor, unfortunately, no State can lack for opportunities: there can be no need to make an example of tragic cases like that of Nancy Cruzan. I respectfully dissent. [ Footnote 4/1 ] It is stated in the Declaration of Independence that: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness." [ Footnote 4/2 ] The trial court found as follows on the basis of "clear and convincing evidence:" "1. That her respiration and circulation are not artificially maintained and within essentially normal limits for a 30-year-old female with vital signs recently reported as BP 130/80; pulse 78 and regular; respiration spontaneous at 16 to 18 per minute." "2. That she is oblivious to her environment except for reflexive responses to sound and perhaps to painful stimuli." "3. That she has suffered anoxia of the brain resulting in massive enlargement of the ventricles filling with cerebrospinal fluid in the area where the brain has degenerated. This cerebral cortical atrophy is irreversible, permanent, progressive and ongoing." "4. That her highest cognitive brain function is exhibited by her grimacing perhaps in recognition of ordinarily painful stimuli, indicating the experience of pain and her apparent response to sound." "5. That she is spastic quadriplegic." "6. That she has contractures of her four extremities which are slowly progressive with irreversible muscular and tendon damage to all extremities." "7. That she has no cognitive or reflexive ability to swallow food or water to maintain her daily essential needs. That she will never recover her ability to swallow sufficient to satisfy her needs." App. to Pet. for Cert., at A94-A95. [ Footnote 4/3 ] "The only economic considerations in this case rest with Respondent's employer, the State of Missouri, which is bearing the entire cost of care. Our ward is an adult without financial resources other than Social Security whose not inconsiderable medical insurance has been exhausted since January 1986." Id. at A96. [ Footnote 4/4 ] "In this case there are no innocent third parties requiring state protection, neither homicide nor suicide will be committed, and the consensus of the medical witnesses indicated concerns personal to themselves or the legal consequences of such actions rather than any objections that good ethical standards of the profession would be breached if the nutrition and hydration were withdrawn the same as any other artificial death prolonging procedures the statute specifically authorizes." Id. at A98. [ Footnote 4/5 ] "Nancy's present unresponsive and hopeless existence is not the will of the Supreme Ruler but of man's will to forcefully feed her when she herself cannot swallow, thus fueling respiratory and circulatory pumps to no cognitive purpose for her except sound and perhaps pain." Id. at A97. [ Footnote 4/6 ] "Appellant guardian ad litem advised this court:" "we informed the [trial] court that we felt it was in Nancy Cruzan's best interests to have the tube feeding discontinued. We now find ourselves in the position of appealing from a judgment we basically agree with." Cruzan v. Harmon, 760 S.W.2d 408 , 435 (Mo.1988) (Higgins, J., dissenting) [ Footnote 4/7 ] "Four state interests have been identified: preservation of life, prevention of homicide and suicide, the protection of interests of innocent third parties and the maintenance of the ethical integrity of the medical profession. See Section 459.055(1), RSMo 1986; Brophy, 497 N.E.2d at 634. In this case, only the state's interest in the preservation of life is implicated." Id. at 419. [ Footnote 4/8 ] "The state's concern with the sanctity of life rests on the principle that life is precious and worthy of preservation without regard to its quality." Ibid. "It is tempting to equate the state's interest in the preservation of life with some measure of quality of life. As the discussion which follows shows, some courts find quality of life a convenient focus when justifying the termination of treatment. But the state's interest is not in quality of life. The broad policy statements of the legislature make no such distinction; nor shall we. Were quality of life at issue, persons with all manner of handicaps might find the state seeking to terminate their lives. Instead, the state's interest is in life; that interest is unqualified." Id. at 420. "As we previously stated, however, the state's interest is not in quality of life. The state's interest is an unqualified interest in life." Id. at 422. "The argument made here, that Nancy will not recover, is but a thinly veiled statement that her life in its present form is not worth living. Yet a diminished quality of life does not support a decision to cause death." Ibid. "Given the fact that Nancy is alive and that the burdens of her treatment are not excessive for her, we do not believe her right to refuse treatment, whether that right proceeds from a constitutional right of privacy or a common law right to refuse treatment, outweighs the immense, clear fact of life in which the state maintains a vital interest." Id. at 424. [ Footnote 4/9 ] See especially ante at 497 U. S. 282 ("we think a State may properly decline to make judgments about the quality' of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual"); ante at 2853, n. 10 (stating that the government is seeking to protect "its own institutional interests" in life). [ Footnote 4/10 ] See, e.g, ante at 497 U. S. 284 . [ Footnote 4/11 ] "Until the latter part of this century, medicine had relatively little treatment to offer the dying, and the vast majority of persons died at home, rather than in the hospital." Brief for American Medical Association et al. as Amici Curiae 6. "In 1985, 83% of deaths [of] Americans age 65 or over occurred in a hospital or nursing home. Sager, Easterling, et al., Changes in the Location of Death after Passage of Medicare's Prospective Payment System: A National Study, 320 New Eng.J.Med. 433, 435 (1989)." Id. at 6, n. 2. According to the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research: "Just as recent years have seen alterations in the underlying causes of death, the places where people die have also changed. For most of recorded history, deaths (of natural causes) usually occurred in the home." "Everyone knew about death at first hand; there was nothing unfamiliar or even queer about the phenomenon. People seem to have known a lot more about the process itself than is the case today. The 'deathbed' was a real place, and the dying person usually knew where he was and when it was time to assemble the family and call for the priest." "Even when people did get admitted to a medical care institution. those whose conditions proved incurable were discharged to the care of their families. This was not only because the health care system could no longer be helpful, but also because alcohol and opiates (the only drugs available to ease pain and suffering) were available without a prescription. Institutional care was reserved for the poor or those without family support; hospitals often aimed more at saving patients' souls than at providing medical care." "As medicine has been able to do more for dying patients, their care has increasingly been delivered in institutional settings. By 1949, institutions were the sites of 50% of all deaths; by 1958, the figure was 61%; and by 1977, over 70%. Perhaps 80% of all deaths in the United States now occur in hospitals and long-term care institutions, such as nursing homes. The change in where very ill patients are treated permits health care professionals to marshall the instruments of scientific medicine more effectively. But people who are dying may well find such a setting alienating and unsupportive." Deciding to Forego Life Sustaining Treatment 17-18 (1983) (footnotes omitted), quoting, Thomas, Dying as Failure, 447 Annals Am.Acad.Pol. & Soc.Sci. 1, 3 (1980). [ Footnote 4/12 ] We have recognized that the special relationship between patient and physician will often be encompassed within the domain of private life protected by the Due Process Clause. See, e.g., Griswold v. Connecticut, 381 U. S. 479 , 381 U. S. 481 (1965); Roe v. Wade, 410 U. S. 113 , 410 U. S. 152 -153 (1973); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747 , 476 U. S. 759 (1986). [ Footnote 4/13 ] The Court recognizes that "the State has been involved as an adversary from the beginning" in this case only because Nancy Cruzan "was a patient at a state hospital when this litigation commenced," ante at 497 U. S. 281 , n. 9. It seems to me, however, that the Court draws precisely the wrong conclusion from this insight. The Court apparently believes that the absence of the State from the litigation would have created a problem, because agreement among the family and the independent guardian ad litem as to Nancy Cruzan's best interests might have prevented her treatment from becoming the focus of a "truly adversarial" proceeding. Ibid. It may reasonably be debated whether some judicial process should be required before life-sustaining treatment is discontinued; this issue has divided the state courts. Compare In re Estate of Longeway, 133 Ill. 2d 33 , 51, 139 Ill.Dec. 780, 788. 549 N.E.2d 292 , 300 (1989) (requiring judicial approval of guardian's decision) with In re Hamlin, 102 Wash. 2d 810 , 818-819, 689 P.2d 1372 , 1377-1378 (1984) (discussing circumstances in which judicial approval is unnecessary). Cf. In re Torres, 357 N.W.2d 332 , 341, n. 4 (Minn.1984) ("At oral argument, it was disclosed that, on an average, about 10 life support systems are disconnected weekly in Minnesota"). I tend, however, to agree with Judge Blackmar that the intervention of the State in these proceedings as an adversary is not so much a cure as it is part of the disease. [ Footnote 4/14 ] See ante at 497 U. S. 269 ; ante at 497 U. S. 278 . "No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Union Pacific R. Co. v. Botsford, 141 U. S. 250 , 141 U. S. 251 (1891). [ Footnote 4/15 ] Many philosophies and religions have, for example, long venerated the idea that there is a "life after death," and that the human soul endures even after the human body has perished. Surely Missouri would not wish to define its interest in life in a way antithetical to this tradition. [ Footnote 4/16 ] See, e.g., H. Johnston, Nathan Hale 1776: Biography and Memorials 128-129 (1914); J. Axelrad, Patrick Henry: The Voice of Freedom 110-111 (1947) [ Footnote 4/17 ] A. Lincoln, Gettysburg Address, 1 Documents of American History (H. Commager ed.) (9th ed. 1973) [ Footnote 4/18 ] The Supreme Judicial Court of Massachusetts observed in this connection: "When we balance the State's interest in prolonging a patient's life" against the rights of the patient to reject such prolongation, we must recognize that the State's interest in life encompasses a broader interest than mere corporeal existence. In certain thankfully rare circumstances, the burden of maintaining the corporeal existence degrades the very humanity it was meant to serve. Brophy v. New England Sinai Hospital, Inc., 398 Mass. 417, 433-434, 497 N.E.2d 626 , 635 (1986). The Brophy court then stressed that this reflection upon the nature of the State's interest in life was distinguishable from any considerations related to the quality of a particular patient's life, considerations which the court regarded as irrelevant to its inquiry. See also In re Eichner, 73 App.Div.2d 431, 465, 426 N.Y.S.2d 517, 543 (1980) (A patient in a persistent vegetative state "has no health, and, in the true sense, no life for the State to protect"), modified in In re Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64 (1981). [ Footnote 4/19 ] One learned observer suggests, in the course of discussing persistent vegetative states, that "few of us would accept the preservation of such a reduced level of function as a proper goal for medicine, even though we sadly accept it as an unfortunate and unforeseen result of treatment that had higher aspirations, and even if we refuse actively to cause such vegetative life to cease." L. Kass, Toward a More Natural Science 203 (1985). This assessment may be controversial. Nevertheless, I again tend to agree with Judge Blackmar, who in his dissent from the Missouri Supreme Court's decision contended that it would be unreasonable for the State to assume that most people did in fact hold a view contrary to the one described by Dr. Kass. My view is further buttressed by the comments of the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research: "The primary basis for medical treatment of patients is the prospect that each individual's interests (specifically, the interest in wellbeing) will be promoted. Thus, treatment ordinarily aims to benefit a patient through preserving life, relieving pain and suffering, protecting against disability, and returning maximally effective functioning. If a prognosis of permanent unconsciousness is correct, however, continued treatment cannot confer such benefits. Pain and suffering are absent, as are joy, satisfaction, and pleasure. Disability is total, and no return to an even minimal level of social or human functioning is possible." Deciding to Forego Life-Sustaining Treatment 181-182 (1983). [ Footnote 4/20 ] It is this sense of the word that explains its use to describe a biography: for example, Boswell's Life of Johnson or Beveridge's The Life of John Marshall. The reader of a book so titled would be surprised to find that it contained a compilation of biological data. [ Footnote 4/21 ] See, e.g., In re Estate of Longeway, 133 Ill. 2d 33 , 139 Ill.Dec. 780, 549 N.E.2d 292 (1989) (authorizing removal of a gastronomy tube from a permanently unconscious patient after judicial approval is obtained); McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 705, 553 A.2d 596, 603 (1989) (authorizing, pursuant to statute, removal of a gastronomy tube from patient in a persistent vegetative state, where patient had previously expressed a wish not to have treatment sustained); Gray v. Romeo, 697 F. Supp. 580 (RI 1988) (authorizing removal of a feeding tube from a patient in a persistent vegetative state); Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674 (1987) (en banc) (authorizing procedures for the removal of a feeding tube from a patient in a persistent vegetative state); In re Gardner, 534 A.2d 947 (Me.1987) (allowing discontinuation of life-sustaining procedures for a patient in a persistent vegetative state); In re Peter, 108 N.J. 365, 529 A.2d 419 (1987) (authorizing procedures for cessation of treatment to elderly nursing home patient in a persistent vegetative state); In re Jobes, 108 N.J. 394, 529 A.2d 434 (1987) (authorizing procedures for cessation of treatment to nonelderly patient determined by "clear and convincing" evidence to be in a persistent vegetative state); Brophy v. New England Sinai Hospital, Inc., 398 Mass. 417, 497 N.E.2d 626 (1986) (permitting removal of a feeding tube from a patient in a persistent vegetative state); John F. Kennedy Memorial Hospital, Inc. v. Bludworth, 452 So. 2d 921 (Fla.1984) (holding that court approval was not needed to authorize cessation of life-support for patient in a persistent vegetative state who had executed a living will); In re Torres, 357 N.W.2d 332 (Minn. 1984) (authorizing removal of a permanently unconscious patient from life-support systems); In re L.H.R., 253 Ga. 439, 321 S.E.2d 716 (1984) (allowing parents to terminate life support for infant in a chronic vegetative state); In re Hamlin, 102 Wash. 2d 810 , 689 P.2d 1372 (1984) (allowing termination, without judicial intervention, of life support for patient in a vegetative state if doctors and guardian concur; conflicts among doctors and the guardian with respect to cessation of treatment are to be resolved by a trial court); In re Colyer, 99 Wash. 2d 114 , 660 P.2d 738 (1983), modified on other grounds, In re Hamlin, 102 Wash. 2d 810 , 689 P.2d 1372 (1984) (allowing court-appointed guardian to authorize cessation of treatment of patient in persistent vegetative state); In re Eichner (decided with In re Storar ), 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64, cert. denied, 454 U.S. 858 (1981) (authorizing the removal of a patient in a persistent vegetative state from a respirator); In re Quinlan, 70 N.J. 10, 355 A.2d 647 , cert. denied, 429 U.S. 922 (1976) (authorizing, on constitutional grounds, the removal of a patient in a persistent vegetative state from a respirator); Corbett v. D'Alessandro, 487 So. 2d 368 (Fla.App.1986) (authorizing removal of nasogastric feeding tube from patient in persistent vegetative state); In re Drabick, 200 Cal. App. 3d 185 , 218, 245 Cal. Rptr. 840 , 861 (1988) ("Life sustaining treatment is not necessary' under Probate Code section 2355 if it offers no reasonable possibility of returning the conservatee to cognitive life and if it is not otherwise in the conservatee's best interests, as determined by the conservator in good faith"); Delio v. Westchester County Medical Center, 129 App.Div.2d 1, 516 N.Y.S.2d 677 (1987) (authorizing discontinuation of artificial feeding for a 33-year-old patient in a persistent vegetative state); Leach v. Akron General Medical Center, 68 Ohio Misc. 1, 426 N.E.2d 809 (1980) (authorizing removal of a patient in a persistent vegetative state from a respirator); In re Severns, 425 A.2d 156 (Del.Ch.1980) (authorizing discontinuation of all medical support measures for a patient in a "virtual vegetative state"). These cases are not the only ones which have allowed the cessation of life-sustaining treatment to incompetent patients. See, e.g., Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977) (holding that treatment could have been withheld from a profoundly mentally retarded patient); Bouvia v. Superior Court of Los Angeles, 179 Cal. App. 3d 1127 , 225 Cal. Rptr. 297 (1986) (allowing removal of life-saving nasogastric tube from competent, highly intelligent patient who was in extreme pain). [ Footnote 4/22 ] Although my reasoning entails the conclusion that the best interests of the incompetent patient must be respected even when the patient is conscious, rather than in a vegetative state, considerations pertaining to the "quality of life," in addition to considerations about the definition of life, might then be relevant. The State's interest in protecting the life, and thereby the interests of the incompetent patient, would accordingly be more forceful, and the constitutional questions would be correspondingly complicated . [ Footnote 4/23 ] Thus, the state court wrote: "This State has expressed a strong policy favoring life. We believe that policy dictates that we err on the side of preserving life. If there is to be a change in that policy, it must come from the people through their elected representatives. Broad policy questions bearing on life and death issues are more properly addressed by representative assemblies. These have vast fact and opinion gathering and synthesizing powers unavailable to courts; the exercise of these powers is particularly appropriate where issues invoke the concerns of medicine, ethics, morality, philosophy, theology and law. Assuming change is appropriate, this issue demands a comprehensive resolution which courts cannot provide." 760 S.W.2d at 426. [ Footnote 4/24 ] The Supreme Judicial Court of Massachusetts anticipated this possibility in its Brophy decision, where it observed that the "duty of the State to preserve life must encompass a recognition of an individual's right to avoid circumstances in which the individual himself would feel that efforts to sustain life demean or degrade his humanity," because otherwise the State's defense of life would be tantamount to an effort by "the State to make decisions regarding the individual's quality of life." 398 Mass. at 434, 497 N.E.2d at 635. Accord, Gray v. Romeo, 697 F. Supp. at 588. [ Footnote 4/25 ] Judge Campbell said on behalf of the Florida District Court of Appeal for the Second District: "we want to acknowledge that we began our deliberations in this matter, as did those who drafted our Declaration of Independence, with the solemnity and the gratefulness of the knowledge 'that all men are . . . endowed by their Creator with .. . Life.' It was not without considerable searching of our hearts, souls, and minds, as well as the jurisprudence of this great Land that we have reached our conclusions. We forcefully affirm that Life, having been endowed by our Creator, should not be lightly taken nor relinquished. We recognize, however, that we are also endowed with a certain amount of dignity and the right to the 'Pursuit of Happiness.' When, therefore, it may be determined by reason of the advanced scientific and medical technologies of this day that Life has, through causes beyond our control, reached the unconscious and vegetative state where all that remains is the forced function of the body's vital functions, including the artificial sustenance of the body itself, then we recognize the right to allow the natural consequence of the removal of those artificial life sustaining measures." Corbett v. D'Alessandro, 487 So. 2d at 371.

In the case of Cruzan v. Director, MDH, the United States Supreme Court decided that the Constitution does not prohibit Missouri from requiring clear and convincing evidence of an incompetent person's wishes regarding the withdrawal of life-sustaining treatment. The case centered around Nancy Cruzan, who was in a persistent vegetative state after a car accident, and her parents' request to terminate her artificial nutrition and hydration. The Court recognized an individual's right to refuse medical treatment but left it to state legislatures to determine the standards for such decisions.

Health Care

Washington v. Glucksberg

https://supreme.justia.com/cases/federal/us/521/702/

OCTOBER TERM, 1996 Syllabus WASHINGTON ET AL. v. GLUCKSBERG ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 96-110. Argued January 8, 1997-Decided June 26,1997 It has always been a crime to assist a suicide in the State of Washington. The State's present law makes "[p]romoting a suicide attempt" a felony, and provides: "A person is guilty of [that crime] when he knowingly causes or aids another person to attempt suicide." Respondents, four Washington physicians who occasionally treat terminally ill, suffering patients, declare that they would assist these patients in ending their lives if not for the State's assisted-suicide ban. They, along with three gravely ill plaintiffs who have since died and a nonprofit organization that counsels people considering physician-assisted suicide, filed this suit against petitioners, the State and its Attorney General, seeking a declaration that the ban is, on its face, unconstitutional. They assert a liberty interest protected by the Fourteenth Amendment's Due Process Clause which extends to a personal choice by a mentally competent, terminally ill adult to commit physician-assisted suicide. Relying primarily on Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 , and Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261 , the Federal District Court agreed, concluding that Washington's assistedsuicide ban is unconstitutional because it places an undue burden on the exercise of that constitutionally protected liberty interest. The en banc Ninth Circuit affirmed. Held: Washington's prohibition against "caus[ing]" or "aid[ing]" a suicide does not violate the Due Process Clause. Pp. 710-736. (a) An examination of our Nation's history, legal traditions, and practices demonstrates that Anglo-American common law has punished or otherwise disapproved of assisting suicide for over 700 years; that rendering such assistance is still a crime in almost every State; that such prohibitions have never contained exceptions for those who were near death; that the prohibitions have in recent years been reexamined and, for the most part, reaffirmed in a number of States; and that the President recently signed the Federal Assisted Suicide Funding Restriction Act of 1997, which prohibits the use of federal funds in support of physician-assisted suicide. Pp. 710-719. (b) In light of that history, this Court's decisions lead to the conclusion that respondents' asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause. 703 The Court's established method of substantive-due-process analysis has two primary features: First, the Court has regularly observed that the Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition. E. g., Moore v. East Cleveland, 431 U. S. 494 , 503 (plurality opinion). Second, the Court has required a "careful description" of the asserted fundamental liberty interest. E. g., Reno v. Flores, 507 U. S. 292 , 302. The Ninth Circuit's and respondents' various descriptions of the interest here at stake-e. g., a right to "determin[e] the time and manner of one's death," the "right to die," a "liberty to choose how to die," a right to "control of one's final days," "the right to choose a humane, dignified death," and "the liberty to shape death" -run counter to that second requirement. Since the Washington statute prohibits "aid[ing] another person to attempt suicide," the question before the Court is more properly characterized as whether the "liberty" specially protected by the Clause includes a right to commit suicide which itself includes a right to assistance in doing so. This asserted right has no place in our Nation's traditions, given the country's consistent, almost universal, and continuing rejection of the right, even for terminally ill, mentally competent adults. To hold for respondents, the Court would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State. Respondents' contention that the asserted interest is consistent with this Court's substantive-due-process cases, if not with this Nation's history and practice, is unpersuasive. The constitutionally protected right to refuse lifesaving hydration and nutrition that was discussed in Cruzan, supra, at 279, was not simply deduced from abstract concepts of personal autonomy, but was instead grounded in the Nation's history and traditions, given the common-law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment. And although Casey recognized that many of the rights and liberties protected by the Due Process Clause sound in personal autonomy, 505 U. S., at 852, it does not follow that any and all important, intimate, and personal decisions are so protected, see San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1 , 33-34. Casey did not suggest otherwise. Pp. 719-728. (c) The constitutional requirement that Washington's assisted-suicide ban be rationally related to legitimate government interests, see, e. g., Heller v. Doe, 509 U. S. 312 , 319-320, is unquestionably met here. These interests include prohibiting intentional killing and preserving human life; preventing the serious public-health problem of suicide, especially among the young, the elderly, and those suffering from untreated pain or from depression or other mental disorders; protecting 704 Syllabus the medical profession's integrity and ethics and maintaining physicians' role as their patients' healers; protecting the poor, the elderly, disabled persons, the terminally ill, and persons in other vulnerable groups from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide toward voluntary and perhaps even involuntary euthanasia. The relative strengths of these various interests need not be weighed exactingly, since they are unquestionably important and legitimate, and the law at issue is at least reasonably related to their promotion and protection. Pp. 728-735. 79 F.3d 790 , reversed and remanded. REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. O'CONNOR, J., filed a concurring opinion, in which GINSBURG and BREYER, JJ., joined in part, post, p. 736. STEVENS, J., post, p. 738, SOUTER, J., post, p. 752, GINSBURG, J., post, p. 789, and BREYER, J., post, p. 789, filed opinions concurring in the judgment. William L. Williams, Senior Assistant Attorney General of Washington, argued the cause for petitioners. With him on the briefs were Christine O. Gregoire, Attorney General, and William Berggren Collins, Senior Assistant Attorney General. Acting Solicitor General Dellinger argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Hunger, Deputy Solicitor General Waxman, Deputy Assistant Attorney General Preston, Irving L. Gornstein, and Barbara Kathryn L. Tucker argued the cause for respondents. With her on the brief were David J. Burman, Kari Anne Smith, and Laurence H. Tribe. * *Briefs of amici curiae urging reversal were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, Robert L. Mukai, Chief Assistant Attorney General, Alvin J. Korobkin, Senior Assistant Attorney General, Thomas S. Lazar, Deputy Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Jeff Sessions of Alabama, Gale A. Norton of Colorado, Robert A. Butterworth of Florida, Michael J. Bowers of Georgia, James E. Ryan of Illinois, Thomas J. Miller of Iowa, Richard P. Ieyoub of Louisiana, J. Joseph Cur- 705 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. The question presented in this case is whether Washington's prohibition against "caus[ing]" or "aid[ing]" a suicide ran, Jr., of Maryland, Frank J. Kelley of Michigan, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Jeffrey R. Howard of New Hampshire, Dennis C. Vacco of New York, Pedro R. Pierluisi of Puerto Rico, Charles Molony Condon of South Carolina, Mark W Barnett of South Dakota, Charles W Burson of Tennessee, and James S. Gilmore III of Virginia; for the State of Oregon by Theodore R. Kulongoski, Attorney General, Thomas A. Balmer, Deputy Attorney General, Virginia L. Linder, Solicitor General, and Stephen K. Bushong, Assistant Attorney General; for Wayne County, Michigan, by John D. O'Hair and Timothy A. Baughman; for the District Attorney of Milwaukee County, Wisconsin, by E. Michael McCann, pro se, and John M. Stoiber; for Agudath Israel of America by David Zwiebel and Morton M. Avigdor; for the American Association of Homes and Services for the Aging et al. by Joel G. Chefitz and Robert K. Niewijk; for the American Center for Law and Justice by Jay Alan Sekulow, James M. Henderson, Sr., Walter M. Weber, Keith A. Fournier, John G. Stepanovich, and Thomas P. Monaghan; for the American Geriatrics Society by John H. Pickering and Joseph E. Schmitz; for the American Hospital Association by Michael K. Kellogg and Margaret J. Hardy; for the American Medical Association et al. by Carter G. Phillips, Mark E. Haddad, Paul E. Kalb, Katherine L. Adams, Kirk B. Johnson, and Michael L. Ile; for the American Suicide Foundation by Ellen H. Moskowitz, Edward R. Grant, and John F. Cannon; for the Catholic Health Association of the United States by James A. Serritella, James C. Geoly, Kevin R. Gustafson, Thomas C. Shields, Peter M. Leibold, and Charles S. Gilham; for the Catholic Medical Association by Joseph J. Frank, Sergio Alvarez-Mena III, and Peter Buscemi; for the Christian Legal Society et al. by Edward J. Larson, Kimberlee Wood Colby, and Steven T. McFarland; for the Evangelical Lutheran Church in America by Edward McGlynn Gaffney, Jr., Susan D. Reece Martyn, Henry J. Bourguignon, and Phillip H. Harris; for the Family Research Council by Cathleen A. Cleaver, Mark A. Rothe, and Edward R. Grant; for the Institute for Public Affairs of the Union of Orthodox Jewish Congregations of America et al. by Richard B. Stone; for the Legal Center for Defense of Life, Inc., et al. by Dwight G. Duncan and Michael P. Tierney; for the National Association of Prolife Nurses et al. by Jacqulyn Kay Hall; for the National Catholic Office for Persons with Disabilities et al. by James Bopp, Jr., Thomas J. Marzen, Daniel Avila, and Jane E. T. Brockmann; for the National Hospice Organization by E. Barrett Pretty- 706 offends the Fourteenth Amendment to the United States Constitution. We hold that it does not. It has always been a crime to assist a suicide in the State of Washington. In 1854, Washington's first Territorial Leg- man, Jr.; for the National Legal Center for the Medically Dependent & Disabled, Inc., et al. by James Bopp, Jr., Thomas J. Marzen, Daniel Avila, and Jane E. T. Brockmann; for the National Right to Life Committee, Inc., by James Bopp, Jr., and Richard E. Coleson; for the National Spinal Cord Injury Association, Inc., by Leonard F. Zandrow, Jr., and Calum B. Anderson; for the Project on Death in America et al. by Robert A. Burt; for the Rutherford Institute by Gregory D. Smith and John W Whitehead; for the Schiller Institute by Max Dean; for the United States Catholic Conference et al. by Mark E. Chopko; for Senator Orrin Hatch et al. by Michael W McConnell; for Members of the New York and Washington State Legislatures by Paul Benjamin Linton and Clarke D. Forsythe; for Bioethics Professors by George J. Annas; for Gary Lee, M. D., et al. by James Bopp, Jr., Bary A. Bostrom, and Richard E. Coleson; and for Richard Thompson by Mr. Thompson, pro se, and Richard H. Browne. Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Cameron Clark, Karen E. Boxx, and Steven R. Shapiro; for Americans for Death with Dignity et al. by John R. Reese and Page R. Barnes; for the American Medical Student Association et al. by John H. Hall; for the Center for Reproductive Law & Policy by Janet Benshoof and Kathryn Kolbert; for the Coalition of Hospice Professionals by Gerald A. Rosenberg and Frances Kulka Browne; for the Council for Secular Humanism et al. by Ronald A. Lindsay; for Gay Men's Health Crisis et al. by Andrew I. Batavia; for the National Women's Health Network et al. by Sylvia A. Law; for 36 Religious Organizations, Leaders, and Scholars by Barbara McDowell and Gregory A. Castanias; for the Washington State Psychological Association et al. by Edward C. DuMont; for Bioethicists by Martin R. Gold and Robert P. Mulvey; for Law Professors by Charles H. Baron, David A. Hoffman, and Joshua M. Davis; for State Legislators by Sherry F. Colb; and for Julian M. Whitaker, M. D., by Jonathan W Emord. Briefs of amici curiae were filed for the American College of Legal Medicine by Miles J. Zaremski, Bruce C. Nelson, and Ila S. Rothschild; for the International Anti-Euthanasia Task Force by Wesley J. Smith; for the Southern Center for Law and Ethics by Tony G. Miller; for Surviving Family Members in Support of Physician-Assisted Dying by Katrin E. Frank, Robert A. Free, and Kathleen Wareham; and for Ronald Dworkin et al. by Mr. Dworkin, pro se, Peter L. Zimroth, Philip H. Curtis, Kent A. Yalowitz, Anand Agneshwar, and Abe Krash. 707 islature outlawed "assisting another in the commISSIOn of self-murder." 1 Today, Washington law provides: "A person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide." Wash. Rev. Code § 9A.36.060(1) (1994). "Promoting a suicide attempt" is a felony, punishable by up to five years' imprisonment and up to a $10,000 fine. §§ 9A.36.060(2) and 9A.20.021(1)(c). At the same time, Washington's Natural Death Act, enacted in 1979, states that the "withholding or withdrawal of life-sustaining treatment" at a patient's direction "shall not, for any purpose, constitute a suicide." Wash. Rev. Code § 70.122.070(1).2 Petitioners in this case are the State of Washington and its Attorney General. Respondents Harold Glucksberg, M. D., Abigail Halperin, M. D., Thomas A. Preston, M. D., and Peter Shalit, M. D., are physicians who practice in Washington. These doctors occasionally treat terminally ill, suffering patients, and declare that they would assist these patients in ending their lives if not for Washington's assisted-suicide ban.3 In January 1994, respondents, along with three gravely ill, pseudonymous plaintiffs who have since died and 1 Act of Apr. 28, 1854, § 17, 1854 Wash. Laws 78 ("Every person deliberately assisting another in the commission of self-murder, shall be deemed guilty of manslaughter"); see also Act of Dec. 2, 1869, § 17, 1869 Wash. Laws 201; Act of Nov. 10, 1873, § 19, 1873 Wash. Laws 184; Criminal Code, ch. 249, §§ 135-136, 1909 Wash. Laws, 11th Sess., 929. 2 Under Washington's Natural Death Act, "adult persons have the fundamental right to control the decisions relating to the rendering of their own health care, including the decision to have life-sustaining treatment withheld or withdrawn in instances of a terminal condition or permanent unconscious condition." Wash. Rev. Code § 70.122.010 (1994). In Washington, "[a]ny adult person may execute a directive directing the withholding or withdrawal of life-sustaining treatment in a terminal condition or permanent unconscious condition," § 70.122.030, and a physician who, in accordance with such a directive, participates in the withholding or withdrawal of life-sustaining treatment is immune from civil, criminal, or professionalliability, § 70.122.051. 3 Glucksberg Declaration, App. 35; Halperin Declaration, id., at 49-50; Preston Declaration, id., at 55-56; Shalit Declaration, id., at 73-74. 708 Compassion in Dying, a nonprofit organization that counsels people considering physician-assisted suicide, sued in the United States District Court, seeking a declaration that Wash. Rev. Code § 9A.36.060(1) (1994) is, on its face, unconstitutional. Compassion in Dying v. Washington, 850 F. Supp. 1454, 1459 (WD Wash. 1994).4 The plaintiffs asserted "the existence of a liberty interest protected by the Fourteenth Amendment which extends to a personal choice by a mentally competent, terminally ill adult to commit physician-assisted suicide." Ibid. Relying primarily on Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), and Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261 (1990), the District Court agreed, 850 F. Supp., at 1459-1462, and concluded that Washington's assisted-suicide ban is unconstitutional because it "places an undue burden on the exercise of [that] constitutionally protected liberty interest." Id., at 1465.5 The District Court also decided that the Washington statute violated the Equal Protection Clause's requirement that" 'all persons similarly situated ... be treated alike.'" Id., at 1466 (quoting Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 , 439 (1985)). A panel of the Court of Appeals for the Ninth Circuit reversed, emphasizing that "[i]n the two hundred and five years of our existence no constitutional right to aid in killing 4John Doe, Jane Roe, and James Poe, plaintiffs in the District Court, were then in the terminal phases of serious and painful illnesses. They declared that they were mentally competent and desired assistance in ending their lives. Declaration of Jane Roe, id., at 23-25; Declaration of John Doe, id., at 27-28; Declaration of James Poe, id., at 30-31; Compassion in Dying, 850 F. Supp., at 1456-1457. 5 The District Court determined that Casey's "undue burden" standard, 505 U. S., at 874 (joint opinion), not the standard from United States v. Salerno, 481 U. S. 739 , 745 (1987) (requiring a showing that "no set of circumstances exists under which the [law] would be valid"), governed the plaintiffs' facial challenge to the assisted-suicide ban. 850 F. Supp., at 1462-1464. 709 oneself has ever been asserted and upheld by a court of final jurisdiction." Compassion in Dying v. Washington, 49 F.3d 586 , 591 (1995). The Ninth Circuit reheard the case en bane, reversed the panel's decision, and affirmed the District Court. Compassion in Dying v. Washington, 79 F.3d 790 , 798 (1996). Like the District Court, the en bane Court of Appeals emphasized our Casey and Cruzan decisions. 79 F. 3d, at 813-816. The court also discussed what it described as "historical" and "current societal attitudes" toward suicide and assisted suicide, id., at 806-812, and concluded that "the Constitution encompasses a due process liberty interest in controlling the time and manner of one's death-that there is, in short, a constitutionally-recognized 'right to die.''' Id., at 816. After "[w]eighing and then balancing" this interest against Washington's various interests, the court held that the State's assisted-suicide ban was unconstitutional "as applied to terminally ill competent adults who wish to hasten their deaths with medication prescribed by their physicians." Id., at 836, 837.6 The court did not reach the District Court's equal protection holding. Id., at 838.7 We granted certiorari, 518 U. S. 1057 (1996), and now reverse. 6 Although, as JUSTICE STEVENS observes, post, at 739 (opinion concurring in judgments), "[the court's] analysis and eventual holding that the statute was unconstitutional was not limited to a particular set of plaintiffs before it," the court did note that "[d]eclaring a statute unconstitutional as applied to members of a group is atypical but not uncommon." 79 F. 3d, at 798, n. 9, and emphasized that it was "not deciding the facial validity of [the Washington statute]," id., at 797-798, and nn. 8-9. It is therefore the court's holding that Washington's physician-assisted suicide statute is unconstitutional as applied to the "class of terminally ill, mentally competent patients," post, at 750 (STEVENS, J., concurring in judgments), that is before us today. 7 The Court of Appeals did note, however, that "the equal protection argument relied on by [the District Court] is not insubstantial," 79 F. 3d, at 838, n. 139, and sharply criticized the opinion in a separate case then pending before the Ninth Circuit, Lee v. Oregon, 891 F. Supp. 1429 (Ore. 1995) (Oregon's Death With Dignity Act, which permits physician-assisted 710 I We begin, as we do in all due process cases, by examining our Nation's history, legal traditions, and practices. See, e. g., Casey, supra, at 849-850; Cruzan, supra, at 269-279; Moore v. East Cleveland, 431 U. S. 494 , 503 (1977) (plurality opinion) (noting importance of "careful 'respect for the teachings of history' "). In almost every State-indeed, in almost every western democracy-it is a crime to assist a suicide.8 The States' assisted-suicide bans are not innovations. Rather, they are longstanding expressions of the States' commitment to the protection and preservation of all human life. Cruzan, supra, at 280 ("[T]he States-indeed, all civilized nations-demonstrate their commitment to life by treating homicide as a serious crime. Moreover, the major- suicide, violates the Equal Protection Clause because it does not provide adequate safeguards against abuse), vacated, Lee v. Oregon, 107 F.3d 1382 (CA9 1997) (concluding that plaintiffs lacked Article III standing). Lee, of course, is not before us, any more than it was before the Court of Appeals below, and we offer no opinion as to the validity of the Lee courts' reasoning. In Vacco v. Quill, post, p. 793, however, decided today, we hold that New York's assisted-suicide ban does not violate the Equal Protection Clause. 8See Compassion in Dying v. Washington, 79 F.3d 790 , 847, and nn. 10-13 (CA9 1996) (Beezer, J., dissenting) ("In total, forty-four states, the District of Columbia and two territories prohibit or condemn assisted suicide") (citing statutes and cases); Rodriguez v. British Columbia (Attorney General), 107 D. L. R. (4th) 342, 404 (Can. 1993) ("[A] blanket prohibition on assisted suicide ... is the norm among western democracies") (discussing assisted-suicide provisions in Austria, Spain, Italy, the United Kingdom, the Netherlands, Denmark, Switzerland, and France). Since the Ninth Circuit's decision, Louisiana, Rhode Island, and Iowa have enacted statutory assisted-suicide bans. La. Rev. Stat. Ann. § 14:32.12 (West Supp. 1997); R. 1. Gen. Laws §§ 11-60-1,11-60-3 (Supp. 1996); Iowa Code Ann. §§ 707 A.2, 707 A.3 (Supp. 1997). For a detailed history of the States' statutes, see Marzen, O'Dowd, Crone, & Balch, Suicide: A Constitutional Right?, 24 Duquesne L. Rev. 1, 148-242 (1985) (App.) (hereinafter Marzen). 711 ity of States in this country have laws imposing criminal penalties on one who assists another to commit suicide"); see Stanford v. Kentucky, 492 U. S. 361 , 373 (1989) ("[T]he primary and most reliable indication of [a national] consensus is ... the pattern of enacted laws"). Indeed, opposition to and condemnation of suicide-and, therefore, of assisting suicide-are consistent and enduring themes of our philosophical, legal, and cultural heritages. See generally Marzen 17-56; New York State Task Force on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context 77-82 (May 1994) (hereinafter New York Task Force). More specifically, for over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting suicide.9 Cruzan, 497 U. S., at 294-295 (SCALIA, J., concurring). In the 13th century, Henry de Bracton, one of the first legal-treatise writers, observed that "[j]ust as a man may commit felony by slaying another so may he do so by slaying himself." 2 Bracton on Laws and Customs of England 423 (f. 150) (G. Woodbine ed., S. Thorne transl., 1968). The real and personal property of one who killed himself to avoid conviction and punishment for a crime were forfeit to the King; however, thought Bracton, "if a man slays himself in weariness of life or because he is unwilling to endure further bodily pain ... [only] his movable goods [were] confiscated." Id., at 423-424 (f. 150). Thus, "[t]he principle that suicide of a sane person, for whatever reason, was a punishable felony was ... introduced into 9The common law is thought to have emerged through the expansion of pre-Norman institutions sometime in the 12th century. J. Baker, An Introduction to English Legal History 11 (2d ed. 1979). England adopted the ecclesiastical prohibition on suicide five centuries earlier, in the year 673 at the Council of Hereford, and this prohibition was reaffirmed by King Edgar in 967. See G. Williams, The Sanctity of Life and the Criminal Law 257 (1957). 712 English common law." 10 Centuries later, Sir William Blackstone, whose Commentaries on the Laws of England not only provided a definitive summary of the common law but was also a primary legal authority for 18th- and 19th-century American lawyers, referred to suicide as "self-murder" and "the pretended heroism, but real cowardice, of the Stoic philosophers, who destroyed themselves to avoid those ills which they had not the fortitude to endure .... " 4 W. Blackstone, Commentaries *189. Blackstone emphasized that "the law has ... ranked [suicide] among the highest crimes," ibid., although, anticipating later developments, he conceded that the harsh and shameful punishments imposed for suicide "borde[r] a little upon severity." Id., at *190. For the most part, the early American Colonies adopted the common-law approach. For example, the legislators of the Providence Plantations, which would later become Rhode Island, declared, in 1647, that "[s]elf-murder is by all agreed to be the most unnatural, and it is by this present Assembly declared, to be that, wherein he that doth it, kills himself out 10 Marzen 59. Other late-medieval treatise writers followed and restated Bracton; one observed that "man-slaughter" may be "[o]f [one]self; as in case, when people hang themselves or hurt themselves, or otherwise kill themselves of their own felony" or "[o]f others; as by beating, famine, or other punishment; in like cases, all are man-slayers." A. Horne, The Mirrour of Justices, ch. 1, § 9, pp. 41-42 (w. Robinson ed. 1903). By the mid-16th century, the Court at Common Bench could observe that "[suicide] is an Offence against Nature, against God, and against the King .... [T]o destroy one's self is contrary to Nature, and a Thing most horrible." Hales v. Petit, 1 Plowd. Com. 253,261,75 Eng. Rep. 387, 400 (1561-1562). In 1644, Sir Edward Coke published his Third Institute, a lodestar for later common lawyers. See T. Plucknett, A Concise History of the Common Law 281-284 (5th ed. 1956). Coke regarded suicide as a category of murder, and agreed with Bracton that the goods and chattels-but not, for Coke, the lands-of a sane suicide were forfeit. 3 E. Coke, Institutes *54. William Hawkins, in his 1716 Treatise of the Pleas of the Crown, followed Coke, observing that "our laws have always had ... an abhorrence of this crime." 1 W. Hawkins, Pleas of the Crown, ch. 27, §4, p. 164 (T. Leach ed. 1795). 713 of a premeditated hatred against his own life or other humor: ... his goods and chattels are the king's custom, but not his debts nor lands; but in case he be an infant, a lunatic, mad or distracted man, he forfeits nothing." The Earliest Acts and Laws of the Colony of Rhode Island and Providence Plantations 1647-1719, p. 19 (J. Cushing ed. 1977). Virginia also required ignominious burial for suicides, and their estates were forfeit to the Crown. A. Scott, Criminal Law in Colonial Virginia 108, and n. 93, 198, and n. 15 (1930). Over time, however, the American Colonies abolished these harsh common-law penalties. William Penn abandoned the criminal-forfeiture sanction in Pennsylvania in 1701, and the other Colonies (and later, the other States) eventually followed this example. Cruzan, supra, at 294 (SCALIA, J., concurring). Zephaniah Swift, who would later become Chief Justice of Connecticut, wrote in 1796: "There can be no act more contemptible, than to attempt to punish an offender for a crime, by exercising a mean act of revenge upon lifeless clay, that is insensible of the punishment. There can be no greater cruelty, than the inflicting [of] a punishment, as the forfeiture of goods, which must fall solely on the innocent offspring of the offender .... [Suicide] is so abhorrent to the feelings of mankind, and that strong love of life which is implanted in the human heart, that it cannot be so frequently committed, as to become dangerous to society. There can of course be no necessity of any punishment." 2 Z. Swift, A System of the Laws of the State of Connecticut 304 (1796). This statement makes it clear, however, that the movement away from the common law's harsh sanctions did not represent an acceptance of suicide; rather, as Chief Justice Swift observed, this change reflected the growing consensus that it was unfair to punish the suicide's family for his wrongdoing. Cruzan, supra, at 294 (SCALIA, J., concurring). Nonethe- 714 less, although States moved away from Blackstone's treatment of suicide, courts continued to condemn it as a grave public wrong. See, e. g., Bigelow v. Berkshire Life Ins. Co., 93 U. S. 284 , 286 (1876) (suicide is "an act of criminal selfdestruction"); Von Holden v. Chapman, 87 App. Div. 2d 66, 70-71, 450 N. Y. S. 2d 623, 626-627 (1982); Blackwood v. Jones, 111 Fla. 528, 532, 149 So. 600, 601 (1933) ("No sophistry is tolerated ... which seek[s] to justify self-destruction as commendable or even a matter of personal right"). That suicide remained a grievous, though nonfelonious, wrong is confirmed by the fact that colonial and early state legislatures and courts did not retreat from prohibiting assisting suicide. Swift, in his early 19th-century treatise on the laws of Connecticut, stated that "[i]f one counsels another to commit suicide, and the other by reason of the advice kills himself, the advisor is guilty of murder as principal." 2 Z. Swift, A Digest of the Laws of the State of Connecticut 270 (1823). This was the well-established common-law view, see In re Joseph G., 34 Cal. 3d 429, 434-435, 667 P. 2d 1176, 1179 (1983); Commonwealth v. Mink, 123 Mass. 422, 428 (1877) (" 'Now if the murder of one's self is felony, the accessory is equally guilty as if he had aided and abetted in the murder' ") (quoting Chief Justice Parker's charge to the jury in Commonwealth v. Bowen, 13 Mass. 356 (1816)), as was the similar principle that the consent of a homicide victim is "wholly immaterial to the guilt of the person who cause[d] [his death]," 3 J. Stephen, A History of the Criminal Law of England 16 (1883); see 1 F. Wharton, Criminal Law §§ 451-452 (9th ed. 1885); Martin v. Commonwealth, 184 Va. 1009, 10181019, 37 S. E. 2d 43, 47 (1946) ('''The right to life and to personal security is not only sacred in the estimation of the common law, but it is inalienable' "). And the prohibitions against assisting suicide never contained exceptions for those who were near death. Rather, "[t]he life of those to whom life ha[d] become a burden-of those who [were] hopelessly diseased or fatally wounded-nay, even the lives of criminals 715 condemned to death, [were] under the protection of the law, equally as the lives of those who [were] in the full tide oflife's enjoyment, and anxious to continue to live." Blackburn v. State, 23 Ohio St. 146, 163 (1872); see Bowen, supra, at 360 (prisoner who persuaded another to commit suicide could be tried for murder, even though victim was scheduled shortly to be executed). The earliest American statute explicitly to outlaw assisting suicide was enacted in New York in 1828, Act of Dec. 10, 1828, ch. 20, § 4, 1828 N. Y. Laws 19 (codified at 2 N. Y. Rev. Stat. pt. 4, ch. 1, Tit. 2, Art. 1, § 7, p. 661 (1829)), and many of the new States and Territories followed New York's example. Marzen 73-74. Between 1857 and 1865, a New York commission led by Dudley Field drafted a criminal code that prohibited "aiding" a suicide and, specifically, "furnish[ing] another person with any deadly weapon or poisonous drug, knowing that such person intends to use such weapon or drug in taking his own life." Id., at 76-77. By the time the Fourteenth Amendment was ratified, it was a crime in most States to assist a suicide. See Cruzan, 497 U. S., at 294-295 (SCALIA, J., concurring). The Field Penal Code was adopted in the Dakota Territory in 1877 and in New York in 1881, and its language served as a model for several other western States' statutes in the late 19th and early 20th centuries. Marzen 76-77, 205-206, 212-213. California, for example, codified its assisted-suicide prohibition in 1874, using language similar to the Field Code's.l1 In this century, the Model Penal Code also prohibited "aiding" suicide, prompting many States to enact or revise their assisted-suicide 11 In 1850, the California Legislature adopted the English common law, under which assisting suicide was, of course, a crime. Act of Apr. 13, 1850, ch. 95, 1850 Cal. Stats. 219. The provision adopted in 1874 provided that "[e]very person who deliberately aids or advises, or encourages another to commit suicide, is guilty of a felony." Act of Mar. 30, 1874, ch. 614, § 13,400 (codified at Cal. Penal Code § 400 (T. Hittel ed. 1876)). 716 bans.12 The code's drafters observed that "the interests in the sanctity of life that are represented by the criminal homicide laws are threatened by one who expresses a willingness to participate in taking the life of another, even though the act may be accomplished with the consent, or at the request, of the suicide victim." American Law Institute, Model Penal Code § 210.5, Comment 5, p. 100 (Official Draft and Revised Comments 1980). Though deeply rooted, the States' assisted-suicide bans have in recent years been reexamined and, generally, reaffirmed. Because of advances in medicine and technology, Americans today are increasingly likely to die in institutions, from chronic illnesses. President's Comm'n for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment 16-18 (1983). Public concern and democratic action are therefore sharply focused on how best to protect dignity and independence at the end of life, with the result that there have been many significant changes in state laws and in the attitudes these laws reflect. Many States, for example, now permit "living wills," surrogate health-care decisionmaking, and the withdrawal or refusal of life-sustaining medical treatment. See Vacco v. Quill, post, at 804-806; 79 F. 3d, at 818-820; People v. Kevorkian, 447 Mich. 436, 478-480, and nn. 53-56, 527 N. W. 2d 714, 731-732, and nn. 53-56 (1994). At the same time, however, voters and legislators continue for the most part to reaffirm their States' prohibitions on assisting suicide. The Washington statute at issue in this case, Wash. Rev. Code § 9A.36.060 (1994), was enacted in 1975 as part of a revision of that State's criminal code. Four years later, 12 "A person who purposely aids or solicits another to commit suicide is guilty of a felony in the second degree if his conduct causes such suicide or an attempted suicide, and otherwise of a misdemeanor." American Law Institute, Model Penal Code § 210.5(2) (Official Draft and Revised Comments 1980). 717 Washington passed its Natural Death Act, which specifically stated that the "withholding or withdrawal of life-sustaining treatment ... shall not, for any purpose, constitute a suicide" and that "[n]othing in this chapter shall be construed to condone, authorize, or approve mercy killing .... " Natural Death Act, 1979 Wash. Laws, ch. 112, § 8(1), p. 11 (codified at Wash. Rev. Code §§ 70.122.070(1), 70.122.100 (1994)). In 1991, Washington voters rejected a ballot initiative which, had it passed, would have permitted a form of physicianassisted suicide.13 Washington then added a provision to the Natural Death Act expressly excluding physician-assisted suicide. 1992 Wash. Laws, ch. 98, § 10; Wash. Rev. Code § 70.122.100 (1994). California voters rejected an assisted-suicide initiative similar to Washington's in 1993. On the other hand, in 1994, voters in Oregon enacted, also through ballot initiative, that State's "Death With Dignity Act," which legalized physician-assisted suicide for competent, terminally ill adults.14 Since the Oregon vote, many proposals to legalize assisted-suicide have been and continue to be introduced in the States' legislatures, but none has been enacted.15 And 13 Initiative 119 would have amended Washington's Natural Death Act, Wash. Rev. Code § 70.122.010 et seq. (1994), to permit "aid-in-dying," defined as "aid in the form of a medical service provided in person by a physician that will end the life of a conscious and mentally competent qualified patient in a dignified, painless and humane manner, when requested voluntarily by the patient through a written directive in accordance with this chapter at the time the medical service is to be provided." App. H to Pet. for Cert. 3-4. 14 Ore. Rev. Stat. § 127.800 et seq. (1996); Lee v. Oregon, 891 F. Supp. 1429 (Ore. 1995) (Oregon Act does not provide sufficient safeguards for terminally ill persons and therefore violates the Equal Protection Clause), vacated, Lee v. Oregon, 107 F.3d 1382 (CA9 1997). 15 See, e. g., Alaska H. B. 371 (1996); Ariz. S. B. 1007 (1996); Cal. A. B. 1080, A. B. 1310 (1995); Colo. H. B. 1185 (1996); Colo. H. B. 1308 (1995); Conn. H. B. 6298 (1995); Ill. H. B. 691, S. B. 948 (1997); Me. H. P. 663 (1997); Me. H. P. 552 (1995); Md. H. B. 474 (1996); Md. H. B. 933 (1995); Mass. H. B. 3173 (1995); Mich. H. B. 6205, S. B. 556 (1996); Mich. H. B. 4134 718 just last year, Iowa and Rhode Island joined the overwhelming majority of States explicitly prohibiting assisted suicide. See Iowa Code Ann. §§ 707 A.2, 707 A.3 (Supp. 1997); R. I. Gen. Laws §§ 11-60-1, 11-60-3 (Supp. 1996). Also, on April 30, 1997, President Clinton signed the Federal Assisted Suicide Funding Restriction Act of 1997, which prohibits the use of federal funds in support of physician-assisted suicide. Pub. L. 105-12, 111 Stat. 23 (codified at 42 U. S. C. § 14401 et seq.).16 (1995); Miss. H. B. 1023 (1996); N. H. H. B. 339 (1995); N. M. S. B. 446 (1995); N. Y. S. B. 5024, A. B. 6333 (1995); Neb. L. B. 406 (1997); Neb. L. B. 1259 (1996); R. 1. S. 2985 (1996); Vt. H. B. 109 (1997); Vt. H. B. 335 (1995); Wash. S. B. 5596 (1995); Wis. A. B. 174, S. B. 90 (1995); Senate of Canada, Of Life and Death, Report of the Special Senate Committee on Euthanasia and Assisted Suicide A-156 (June 1995) (describing unsuccessful proposals, between 1991-1994, to legalize assisted suicide). 16 Other countries are embroiled in similar debates: The Supreme Court of Canada recently rejected a claim that the Canadian Charter of Rights and Freedoms establishes a fundamental right to assisted suicide, Rodriguez v. British Columbia (Attorney General), 107 D. L. R. (4th) 342 (1993); the British House of Lords Select Committee on Medical Ethics refused to recommend any change in Great Britain's assisted-suicide prohibition, House of Lords, Session 1993-94 Report of the Select Committee on Medical Ethics, 12 Issues in Law & Med. 193, 202 (1996) ("We identify no circumstances in which assisted suicide should be permitted"); New Zealand's Parliament rejected a proposed "Death With Dignity Bill" that would have legalized physician-assisted suicide in August 1995, Graeme, MPs Throw out Euthanasia Bill, The Dominion (Wellington), Aug. 17, 1995, p. 1; and the Northern Territory of Australia legalized assisted suicide and voluntary euthanasia in 1995, see Shenon, Australian Doctors Get Right to Assist Suicide, N. Y. Times, July 28, 1995, p. A8. As of February 1997, three persons had ended their lives with physician assistance in the Northern Territory. Mydans, Assisted Suicide: Australia Faces a Grim Reality, N. Y. Times, Feb. 2,1997, p. A3. On March 24,1997, however, the Australian Senate voted to overturn the Northern Territory's law. Thornhill, Australia Repeals Euthanasia Law, Washington Post, Mar. 25, 1997, p. A14; see Euthanasia Laws Act 1997, No. 17, 1997 (Austl.). On the other hand, on May 20, 1997, Colombia's Constitutional Court legalized voluntary euthanasia for terminally ill people. C-239/97 de Mayo 20, 1997, Corte 719 Thus, the States are currently engaged in serious, thoughtful examinations of physician-assisted suicide and other similar issues. For example, New York State's Task Force on Life and the Law-an ongoing, blue-ribbon commission composed of doctors, ethicists, lawyers, religious leaders, and interested laymen-was convened in 1984 and commissioned with "a broad mandate to recommend public policy on issues raised by medical advances." New York Task Force vii. Over the past decade, the Task Force has recommended laws relating to end-of-life decisions, surrogate pregnancy, and organ donation. Id., at 118-119. After studying physician-assisted suicide, however, the Task Force unanimously concluded that "[l]egalizing assisted suicide and euthanasia would pose profound risks to many individuals who are ill and vulnerable .... [T]he potential dangers of this dramatic change in public policy would outweigh any benefit that might be achieved." Id., at 120. Attitudes toward suicide itself have changed since Bracton, but our laws have consistently condemned, and continue to prohibit, assisting suicide. Despite changes in medical technology and notwithstanding an increased emphasis on the importance of end-of-life decisionmaking, we have not retreated from this prohibition. Against this backdrop of history, tradition, and practice, we now turn to respondents' constitutional claim. II The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. Collins v. Harker Heights, 503 U. S. 115, 125 (1992) (Due Process Clause "protects individual liberty against 'certain government actions regardless of the fairness of the procedures used to implement them''') (quot- Constitucional, M. P. Carlos Gaviria Diaz; see Colombia's Top Court Legalizes Euthanasia, Orlando Sentinel, May 22, 1997, p. A1S. 720 ing Daniels v. Williams, 474 U. S. 327 , 331 (1986)). The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. Reno v. Flores, 507 U. S. 292 , 301-302 (1993); Casey, 505 U. S., at 851. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry, Loving v. Virginia, 388 U. S. 1 (1967); to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942); to direct the education and upbringing of one's children, Meyer v. Nebraska, 262 U. S. 390 (1923); Pierce v. Society of Sisters, 268 U. S. 510 (1925); to marital privacy, Griswold v. Connecticut, 381 U. S. 479 (1965); to use contraception, ibid.; Eisenstadt v. Baird, 405 U. S. 438 (1972); to bodily integrity, Rochin v. California, 342 U. S. 165 (1952), and to abortion, Casey, supra. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment. Cruzan, 497 U. S., at 278-279. But we "ha[ve] always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." Collins, 503 U. S., at 125. By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore "exercise the utmost care whenever we are asked to break new ground in this field," ibid., lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court, Moore, 431 U. S., at 502 (plurality opinion). Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, 721 "deeply rooted in this Nation's history and tradition," id., at 503 (plurality opinion); Snyder v. Massachusetts, 291 U. S. 97 , 105 (1934) ("so rooted in the traditions and conscience of our people as to be ranked as fundamental"), and "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed," Palko v. Connecticut, 302 U. S. 319 , 325, 326 (1937). Second, we have required in substantive-due-process cases a "careful description" of the asserted fundamental liberty interest. Flores, supra, at 302; Collins, supra, at 125; Cruzan, supra, at 277278. Our Nation's history, legal traditions, and practices thus provide the crucial "guideposts for responsible decisionmaking," Collins, supra, at 125, that direct and restrain our exposition of the Due Process Clause. As we stated recently in Flores, the Fourteenth Amendment "forbids the government to infringe ... 'fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." 507 U. S., at 302. JUSTICE SOUTER, relying on Justice Harlan's dissenting opinion in Poe v. Ullman, 367 U. S. 497 (1961), would largely abandon this restrained methodology, and instead ask "whether [Washington's] statute sets up one of those 'arbitrary impositions' or 'purposeless restraints' at odds with the Due Process Clause of the Fourteenth Amendment," post, at 752 (quoting Poe, supra, at 543 (Harlan, J., dissenting))P 17 In JUSTICE SOUTER'S opinion, Justice Harlan's Poe dissent supplies the "modern justification" for substantive-due-process review. Post, at 756, and n. 4 (opinion concurring in judgment). But although Justice Harlan's opinion has often been cited in due process cases, we have never abandoned our fundamental-rights-based analytical method. Just four Terms ago, six of the Justices now sitting joined the Court's opinion in Reno v. Flores, 507 U. S. 292 , 301-305 (1993); Poe was not even cited. And in Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261 (1990), neither the Court's nor the concurring opinions relied on Poe; rather, we concluded that the right to refuse unwanted medical treatment was so rooted in our history, tradition, and practice as to require special protection under the 722 In our view, however, the development of this Court's substantive-due-process jurisprudence, described briefly supra, at 719-720, has been a process whereby the outlines of the "liberty" specially protected by the Fourteenth Amendment-never fully clarified, to be sure, and perhaps not capable of being fully clarified-have at least been carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition. This approach tends to rein in the subjective elements that are necessarily present in due process judicial review. In addition, by establishing a threshold requirement-that a challenged state action implicate a fundamental right-before requiring more than a reasonable relation to a legitimate state interest to justify the action, it avoids the need for complex balancing of competing interests in every case. Turning to the claim at issue here, the Court of Appeals stated that "[p]roperly analyzed, the first issue to be resolved is whether there is a liberty interest in determining the time and manner of one's death," 79 F. 3d, at 801, or, in other words, "[i]s there a right to die?," id., at 799. Similarly, respondents assert a "liberty to choose how to die" and a right to "control of one's final days," Brief for Respondents 7, and describe the asserted liberty as "the right to choose a humane, dignified death," id., at 15, and "the liberty to shape death," id., at 18. As noted above, we have a tradition of carefully formulating the interest at stake in substantivedue-process cases. For example, although Cruzan is often described as a "right to die" case, see 79 F. 3d, at 799; post, at 745 (STEVENS, J., concurring in judgments) (Cruzan recognized "the more specific interest in making decisions about Fourteenth Amendment. Cruzan, 497 U. S., at 278-279; id., at 287-288 (O'CONNOR, J., concurring). True, the Court relied on Justice Harlan's dissent in Casey, 505 U. S., at 848-850, but, as Flores demonstrates, we did not in so doing jettison our established approach. Indeed, to read such a radical move into the Court's opinion in Casey would seem to fly in the face of that opinion's emphasis on stare decisis. 505 U. S., at 854-869. 723 how to confront an imminent death"), we were, in fact, more precise: We assumed that the Constitution granted competent persons a "constitutionally protected right to refuse lifesaving hydration and nutrition." Cruzan, 497 U. S., at 279; id., at 287 (O'CONNOR, J., concurring) ("[A] liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions"). The Washington statute at issue in this case prohibits "aid[ing] another person to attempt suicide," Wash. Rev. Code § 9A.36.060(1) (1994), and, thus, the question before us is whether the "liberty" specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing SO.18 We now inquire whether this asserted right has any place in our Nation's traditions. Here, as discussed supra, at 710719, we are confronted with a consistent and almost universal tradition that has long rejected the asserted right, and continues explicitly to reject it today, even for terminally ill, mentally competent adults. To hold for respondents, we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State. See Jackman v. Rosenbaum Co., 260 U. S. 22 , 31 (1922) ("If a thing has been practised for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it"); Flores, 507 U. S., at 303 ("The mere novelty of such a claim is reason enough to doubt that 'substantive due process' sustains it"). Respondents contend, however, that the liberty interest they assert is consistent with this Court's substantive-due- 18 See, e. g., Quill v. Vacco, 80 F.3d 716 , 724 (CA2 1996) ("right to assisted suicide finds no cognizable basis in the Constitution's language or design"); Compassion in Dying v. Washington, 49 F.3d 586 , 591 (CA9 1995) (referring to alleged "right to suicide," "right to assistance in suicide," and "right to aid in killing oneself"); People v. Kevorkian, 447 Mich. 436,476, n. 47, 527 N. W. 2d 714, 730, n. 47 (1994) ("[T]he question that we must decide is whether the [C]onstitution encompasses a right to commit suicide and, if so, whether it includes a right to assistance"). 724 process line of cases, if not with this Nation's history and practice. Pointing to Casey and Cruzan, respondents read our jurisprudence in this area as reflecting a general tradition of "self-sovereignty," Brief for Respondents 12, and as teaching that the "liberty" protected by the Due Process Clause includes "basic and intimate exercises of personal autonomy," id., at 10; see Casey, 505 U. S., at 847 ("It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter"). According to respondents, our liberty jurisprudence, and the broad, individualistic principles it reflects, protects the "liberty of competent, terminally ill adults to make end-of-life decisions free of undue government interference." Brief for Respondents 10. The question presented in this case, however, is whether the protections of the Due Process Clause include a right to commit suicide with another's assistance. With this "careful description" of respondents' claim in mind, we turn to Casey and Cruzan. In Cruzan, we considered whether Nancy Beth Cruzan, who had been severely injured in an automobile accident and was in a persistive vegetative state, "ha[d] a right under the United States Constitution which would require the hospital to withdraw life-sustaining treatment" at her parents' request. 497 U. S., at 269. We began with the observation that "[a]t common law, even the touching of one person by another without consent and without legal justification was a battery." Ibid. We then discussed the related rule that "informed consent is generally required for medical treatment." Ibid. After reviewing a long line of relevant state cases, we concluded that "the common-law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment." Id., at 277. Next, we reviewed our own cases on the subject, and stated that "[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior 725 decisions." Id., at 278. Therefore, "for purposes of [that] case, we assume[d] that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition." Id., at 279; see id., at 287 (O'CONNOR, J., concurring). We concluded that, notwithstanding this right, the Constitution permitted Missouri to require clear and convincing evidence of an incompetent patient's wishes concerning the withdrawal of life-sustaining treatment. Id., at 280-281. Respondents contend that in Cruzan we "acknowledged that competent, dying persons have the right to direct the removal of life-sustaining medical treatment and thus hasten death," Brief for Respondents 23, and that "the constitutional principle behind recognizing the patient's liberty to direct the withdrawal of artificial life support applies at least as strongly to the choice to hasten impending death by consuming lethal medication," id., at 26. Similarly, the Court of Appeals concluded that "Cruzan, by recognizing a liberty interest that includes the refusal of artificial provision of life-sustaining food and water, necessarily recognize[d] a liberty interest in hastening one's own death." 79 F. 3d, at 816. The right assumed in Cruzan, however, was not simply deduced from abstract concepts of personal autonomy. Given the common-law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment, our assumption was entirely consistent with this Nation's history and constitutional traditions. The decision to commit suicide with the assistance of another may be just as personal and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection. Indeed, the two acts are widely and reasonably regarded as quite distinct. See Quill v. Vacco, post, at 800-808. In Cruzan itself, we recognized that most States outlawed assisted suicide-and even more do today-and we certainly gave no intimation that the right to refuse unwanted medical treatment could be some- 726 how transmuted into a right to assistance in committing suicide. 497 U. S., at 280. Respondents also rely on Casey. There, the Court's opinion concluded that "the essential holding of Roe v. Wade[, 410 U. S. 113 (1973),] should be retained and once again reaffirmed." 505 U. S., at 846. We held, first, that a woman has a right, before her fetus is viable, to an abortion "without undue interference from the State"; second, that States may restrict postviability abortions, so long as exceptions are made to protect a woman's life and health; and third, that the State has legitimate interests throughout a pregnancy in protecting the health of the woman and the life of the unborn child. Ibid. In reaching this conclusion, the opinion discussed in some detail this Court's substantive-due-process tradition of interpreting the Due Process Clause to protect certain fundamental rights and "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and noted that many of those rights and liberties "involv[e] the most intimate and personal choices a person may make in a lifetime." Id., at 851. The Court of Appeals, like the District Court, found Casey "'highly instructive'" and" 'almost prescriptive'" for determining "'what liberty interest may inhere in a terminally ill person's choice to commit suicide''': "Like the decision of whether or not to have an abortion, the decision how and when to die is one of 'the most intimate and personal choices a person may make in a lifetime,' a choice 'central to personal dignity and autonomy.'" 79 F. 3d, at 813-814. Similarly, respondents emphasize the statement in Casey that: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they 727 formed under compulsion of the State." 505 U. S., at 851. Brief for Respondents 12. By choosing this language, the Court's opinion in Casey described, in a general way and in light of our prior cases, those personal activities and decisions that this Court has identified as so deeply rooted in our history and traditions, or so fundamental to our concept of constitutionally ordered liberty, that they are protected by the Fourteenth Amendment.19 The opinion moved from the recognition that liberty necessarily includes freedom of conscience and belief about ultimate considerations to the observation that "though the abortion decision may originate within the zone of conscience and belief, it is more than a philosophic exercise." Casey, 505 U. S., at 852 (emphasis added). That many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected, San An- 19 See Moore v. East Cleveland, 431 U. S. 494 , 503 (1977) ("[T]he Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition" (emphasis added)); Griswold v. Connecticut, 381 U. S. 479 , 485-486 (1965) (intrusions into the "sacred precincts of marital bedrooms" offend rights "older than the Bill of Rights"); id., at 495-496 (Goldberg, J., concurring) (the law in question "disrupt[ed] the traditional relation of the family-a relation as old and as fundamental as our entire civilization"); Loving v. Virginia, 388 U. S. 1 , 12 (1967) ("The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness"); Turner v. Safley, 482 U. S. 78 , 95 (1987) ("[T]he decision to marry is a fundamental right"); Roe v. Wade, 410 U. S. 113 , 140 (1973) (stating that at the founding and throughout the 19th century, "a woman enjoyed a substantially broader right to terminate a pregnancy"); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 , 541 (1942) ("Marriage and procreation are fundamental"); Pierce v. Society of Sisters, 268 U. S. 510 , 535 (1925); Meyer v. Nebraska, 262 U. S. 390 , 399 (1923) (liberty includes "those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men"). 728 tonio Independent School Dist. v. Rodriguez, 411 U. S. 1 , 33-35 (1973), and Casey did not suggest otherwise. The history of the law's treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it. That being the case, our decisions lead us to conclude that the asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause. The Constitution also requires, however, that Washington's assistedsuicide ban be rationally related to legitimate government interests. See Heller v. Doe, 509 U. S. 312 , 319-320 (1993); Flores, 507 U. S., at 305. This requirement is unquestionably met here. As the court below recognized, 79 F. 3d, at 816-817,20 Washington's assisted-suicide ban implicates a number of state interestsP See 49 F. 3d, at 592-593; Brief for State of California et al. as Amici Curiae 26-29; Brief for United States as Amicus Curiae 16-27. First, Washington has an "unqualified interest in the preservation of human life." Cruzan, 497 U. S., at 282. The State's prohibition on assisted suicide, like all homicide laws, both reflects and advances its commitment to this interest. See id., at 280; Model Penal Code § 210.5, Comment 5, at 100 ("[T]he interests in the sanctity of life that are represented by the criminal homicide laws are threatened by one who expresses a willingness to participate in taking the life of 20 The court identified and discussed six state interests: (1) preserving life; (2) preventing suicide; (3) avoiding the involvement of third parties and use of arbitrary, unfair, or undue influence; (4) protecting family members and loved ones; (5) protecting the integrity of the medical profession; and (6) avoiding future movement toward euthanasia and other abuses. 79 F. 3d, at 816-832. 21 Respondents also admit the existence of these interests, Brief for Respondents 28-39, but contend that Washington could better promote and protect them through regulation, rather than prohibition, of physicianassisted suicide. Our inquiry, however, is limited to the question whether the State's prohibition is rationally related to legitimate state interests. 729 another").22 This interest is symbolic and aspirational as well as practical: "While suicide is no longer prohibited or penalized, the ban against assisted suicide and euthanasia shores up the notion of limits in human relationships. It reflects the gravity with which we view the decision to take one's own life or the life of another, and our reluctance to encourage or promote these decisions." New York Task Force 131-132. Respondents admit that "[t]he State has a real interest in preserving the lives of those who can still contribute to society and have the potential to enjoy life." Brief for Respondents 35, n. 23. The Court of Appeals also recognized Washington's interest in protecting life, but held that the "weight" of this interest depends on the "medical condition and the wishes of the person whose life is at stake." 79 F. 3d, at 817. Washington, however, has rejected this sliding-scale approach and, through its assisted-suicide ban, insists that all persons' lives, from beginning to end, regardless of physicalor mental condition, are under the full protection of the law. See United States v. Rutherford, 442 U. S. 544 , 558 (1979) (" ... Congress could reasonably have determined to protect the terminally ill, no less than other patients, from the vast range of self-styled panaceas that inventive minds can devise"). As we have previously affirmed, the States "may properly decline to make judgments about the 'quality' of life that a particular individual may enjoy," Cruzan, 22 The States express this commitment by other means as well: "[N]early all states expressly disapprove of suicide and assisted suicide either in statutes dealing with durable powers of attorney in health-care situations, or in 'living will' statutes. In addition, all states provide for the involuntary commitment of persons who may harm themselves as the result of mental illness, and a number of states allow the use of nondeadly force to thwart suicide attempts." People v. Kevorkian, 447 Mich., at 478-479, and nn. 53-56, 527 N. W. 2d, at 731-732, and nn. 53-56. 730 supra, at 282. This remains true, as Cruzan makes clear, even for those who are near death. Relatedly, all admit that suicide is a serious public-health problem, especially among persons in otherwise vulnerable groups. See Washington State Dept. of Health, Annual Summary of Vital Statistics 1991, pp. 29-30 (Oct. 1992) (suicide is a leading cause of death in Washington of those between the ages of 14 and 54); New York Task Force 10,23-33 (suicide rate in the general population is about one percent, and suicide is especially prevalent among the young and the elderly). The State has an interest in preventing suicide, and in studying, identifying, and treating its causes. See 79 F. 3d, at 820; id., at 854 (Beezer, J., dissenting) ("The state recognizes suicide as a manifestation of medical and psychological anguish"); Marzen 107-146. Those who attempt suicide-terminally ill or not-often suffer from depression or other mental disorders. See New York Task Force 13-22, 126-128 (more than 95% of those who commit suicide had a major psychiatric illness at the time of death; among the terminally ill, uncontrolled pain is a "risk factor" because it contributes to depression); PhysicianAssisted Suicide and Euthanasia in the Netherlands: A Report of Chairman Charles T. Canady to the Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong., 2d Sess., 10-11 (Comm. Print 1996); cf. Back, Wallace, Starks, & Pearlman, Physician-Assisted Suicide and Euthanasia in Washington State, 275 JAMA 919, 924 (1996) ("[l]ntolerable physical symptoms are not the reason most patients request physician-assisted suicide or euthanasia"). Research indicates, however, that many people who request physician-assisted suicide withdraw that request if their depression and pain are treated. H. Hendin, Seduced by Death: Doctors, Patients and the Dutch Cure 24-25 (1997) (suicidal, terminally ill patients "usually respond well to treatment for depressive illness and pain medication and are then grateful to be alive"); New York Task Force 177-178. 731 The New York Task Force, however, expressed its concern that, because depression is difficult to diagnose, physicians and medical professionals often fail to respond adequately to seriously ill patients' needs. Id., at 175. Thus, legal physician-assisted suicide could make it more difficult for the State to protect depressed or mentally ill persons, or those who are suffering from untreated pain, from suicidal impulses. The State also has an interest in protecting the integrity and ethics of the medical profession. In contrast to the Court of Appeals' conclusion that "the integrity of the medical profession would [not] be threatened in any way by [physician-assisted suicide]," 79 F. 3d, at 827, the American Medical Association, like many other medical and physicians' groups, has concluded that "[p]hysician-assisted suicide is fundamentally incompatible with the physician's role as healer." American Medical Association, Code of Ethics § 2.211 (1994); see Council on Ethical and Judicial Affairs, Decisions Near the End of Life, 267 JAMA 2229,2233 (1992) ("[T]he societal risks of involving physicians in medical interventions to cause patients' deaths is too great"); New York Task Force 103-109 (discussing physicians' views). And physician-assisted suicide could, it is argued, undermine the trust that is essential to the doctor-patient relationship by blurring the time-honored line between healing and harming. Assisted Suicide in the United States, Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong., 2d Sess., 355-356 (1996) (testimony of Dr. Leon R. Kass) ("The patient's trust in the doctor's whole-hearted devotion to his best interests will be hard to sustain"). Next, the State has an interest in protecting vulnerable groups-including the poor, the elderly, and disabled persons-from abuse, neglect, and mistakes. The Court of Appeals dismissed the State's concern that disadvantaged persons might be pressured into physician-assisted suicide as 732 "ludicrous on its face." 79 F. 3d, at 825. We have recognized, however, the real risk of subtle coercion and undue influence in end-of-life situations. Cruzan, 497 U. S., at 281. Similarly, the New York Task Force warned that "[l]egalizing physician-assisted suicide would pose profound risks to many individuals who are ill and vulnerable .... The risk of harm is greatest for the many individuals in our society whose autonomy and well-being are already compromised by poverty, lack of access to good medical care, advanced age, or membership in a stigmatized social group." New York Task Force 120; see Compassion in Dying, 49 F. 3d, at 593 ("An insidious bias against the handicapped-again coupled with a cost-saving mentality-makes them especially in need of Washington's statutory protection"). If physicianassisted suicide were permitted, many might resort to it to spare their families the substantial financial burden of endof-life health-care costs. The State's interest here goes beyond protecting the vulnerable from coercion; it extends to protecting disabled and terminally ill people from prejudice, negative and inaccurate stereotypes, and "societal indifference." 49 F. 3d, at 592. The State's assisted-suicide ban reflects and reinforces its policy that the lives of terminally ill, disabled, and elderly people must be no less valued than the lives of the young and healthy, and that a seriously disabled person's suicidal impulses should be interpreted and treated the same way as anyone else's. See New York Task Force 101-102; Physician-Assisted Suicide and Euthanasia in the Netherlands: A Report of Chairman Charles T. Canady, supra, at 9, 20 (discussing prejudice toward the disabled and the negative messages euthanasia and assisted suicide send to handicapped patients). Finally, the State may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia. The Court of Appeals struck down 733 Washington's assisted-suicide ban only "as applied to competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors." 79 F. 3d, at 838. Washington insists, however, that the impact of the court's decision will not and cannot be so limited. Brief for Petitioners 44-47. If suicide is protected as a matter of constitutional right, it is argued, "every man and woman in the United States must enjoy it." Compassion in Dying, 49 F. 3d, at 591; see Kevorkian, 447 Mich., at 470, n. 41, 527 N. W. 2d, at 727-728, n. 41. The Court of Appeals' decision, and its expansive reasoning, provide ample support for the State's concerns. The court noted, for example, that the "decision of a duly appointed surrogate decision maker is for all legal purposes the decision of the patient himself," 79 F. 3d, at 832, n. 120; that "in some instances, the patient may be unable to self-administer the drugs and ... administration by the physician ... may be the only way the patient may be able to receive them," id., at 831; and that not only physicians, but also family members and loved ones, will inevitably participate in assisting suicide, id., at 838, n. 140. Thus, it turns out that what is couched as a limited right to "physician-assisted suicide" is likely, in effect, a much broader license, which could prove extremely difficult to police and contain.23 Washington's ban on assisting suicide prevents such erosion. 23JU8TICE SOUTER concludes that "[t]he case for the slippery slope is fairly made out here, not because recognizing one due process right would leave a court with no principled basis to avoid recognizing another, but because there is a plausible case that the right claimed would not be readily containable by reference to facts about the mind that are matters of difficult judgment, or by gatekeepers who are subject to temptation, noble or not." Post, at 785 (opinion concurring in judgment). We agree that the case for a slippery slope has been made out, but-bearing in mind Justice Cardozo's observation of "[t]he tendency of a principle to expand itself to the limit of its logic," The Nature of the Judicial Process 51 (1932)-we also recognize the reasonableness of the widely expressed 734 This concern is further supported by evidence about the practice of euthanasia in the Netherlands. The Dutch government's own study revealed that in 1990, there were 2,300 cases of voluntary euthanasia (defined as "the deliberate termination of another's life at his request"), 400 cases of assisted suicide, and more than 1,000 cases of euthanasia without an explicit request. In addition to these latter 1,000 cases, the study found an additional 4,941 cases where physicians administered lethal morphine overdoses without the patients' explicit consent. Physician-Assisted Suicide and Euthanasia in the Netherlands: A Report of Chairman Charles T. Canady, supra, 12-13 (citing Dutch study). This study suggests that, despite the existence of various reporting procedures, euthanasia in the Netherlands has not been limited to competent, terminally ill adults who are enduring physical suffering, and that regulation of the practice may not have prevented abuses in cases involving vulnerable persons, including severely disabled neonates and elderly persons suffering from dementia. Id., at 16-21; see generally C. Gomez, Regulating Death: Euthanasia and the Case of the Netherlands (1991); H. Hendin, Seduced By Death: Doctors, Patients, and the Dutch Cure (1997). The New York Task Force, citing the Dutch experience, observed that "assisted suicide and euthanasia are closely linked," New York Task Force 145, and concluded that the "risk of ... abuse is neither speculative nor distant," id., at 134. Washington, like most skepticism about the lack of a principled basis for confining the right. See Brief for United States as Amicus Curiae 26 ("Once a legislature abandons a categorical prohibition against physician assisted suicide, there is no obvious stopping point"); Brief for Not Dead Yet et al. as Amici Curiae 21-29; Brief for Bioethics Professors as Amici Curiae 23-26; Report of the Council on Ethical and Judicial Affairs, App. 133, 140 ("[I]f assisted suicide is permitted, then there is a strong argument for allowing euthanasia"); New York Task Force 132; Kamisar, The "Right to Die"; On Drawing (and Erasing) Lines, 35 Duquesne L. Rev. 481 (1996); Kamisar, Against Assisted Suicide-Even in a Very Limited Form, 72 U. Det. Mercy L. Rev. 735 (1995). 735 other States, reasonably ensures against this risk by banning, rather than regulating, assisted suicide. See United States v. 12 200ft. Reels of Super 8MM. Film, 413 U. S. 123 , 127 (1973) ("Each step, when taken, appear[s] a reasonable step in relation to that which preceded it, although the aggregate or end result is one that would never have been seriously considered in the first instance"). We need not weigh exactingly the relative strengths of these various interests. They are unquestionably important and legitimate, and Washington's ban on assisted suicide is at least reasonably related to their promotion and protection. We therefore hold that Wash. Rev. Code § 9A.36.060(1) (1994) does not violate the Fourteenth Amendment, either on its face or "as applied to competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors." 79 F. 3d, at 838.24 *** Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society. The decision of the en banc Court of Appeals is 24JUSTICE STEVENS states that "the Court does conceive of respondents' claim as a facial challenge-addressing not the application of the statute to a particular set of plaintiffs before it, but the constitutionality of the statute's categorical prohibition .... " Post, at 740 (opinion concurring in judgments). We emphasize that we today reject the Court of Appeals' specific holding that the statute is unconstitutional "as applied" to a particular class. See n. 6, supra. JUSTICE STEVENS agrees with this holding, see post, at 750, but would not "foreclose the possibility that an individual plaintiff seeking to hasten her death, or a doctor whose assistance was sought, could prevail in a more particularized challenge," ibid. Our opinion does not absolutely foreclose such a claim. However, given our holding that the Due Process Clause of the Fourteenth Amendment does not provide heightened protection to the asserted liberty interest in ending one's life with a physician's assistance, such a claim would have to be quite different from the ones advanced by respondents here. 736 reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE O'CONNOR, concurring.* t Death will be different for each of us. For many, the last days will be spent in physical pain and perhaps the despair that accompanies physical deterioration and a loss of control of basic bodily and mental functions. Some will seek medication to alleviate that pain and other symptoms. The Court frames the issue in Washington v. Glucksberg as whether the Due Process Clause of the Constitution protects a "right to commit suicide which itself includes a right to assistance in doing so," ante, at 723, and concludes that our Nation's history, legal traditions, and practices do not support the existence of such a right. I join the Court's opinions because I agree that there is no generalized right to "commit suicide." But respondents urge us to address the narrower question whether a mentally competent person who is experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his or her imminent death. I see no need to reach that question in the context of the facial challenges to the New York and Washington laws at issue here. See ibid. ("The Washington statute at issue in this case prohibits 'aid[ing] another person to attempt suicide,' ... and, thus, the question before us is whether the 'liberty' specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so"). The parties and amici agree that in these States a patient who is *JUSTICE GINSBURG concurs in the Court's judgments substantially for the reasons stated in this opinion. JUSTICE BREYER joins this opinion except insofar as it joins the opinions of the Court. t[This opinion applies also to No. 95-1858, Vacco et al. v. Quill et al., post, p. 793.] 737 suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication, from qualified physicians, to alleviate that suffering, even to the point of causing unconsciousness and hastening death. See Wash. Rev. Code § 70.122.010 (1994); Brief for Petitioners in No. 95-1858, p. 15, n. 9; Brief for Respondents in No. 95-1858, p. 15. In this light, even assuming that we would recognize such an interest, I agree that the State's interests in protecting those who are not truly competent or facing imminent death, or those whose decisions to hasten death would not truly be voluntary, are sufficiently weighty to justify a prohibition against physician-assisted suicide. Ante, at 731-733; post, at 747 (STEVENS, J., concurring in judgments); post, at 782-787 (SOUTER, J., concurring in judgment). Every one of us at some point may be affected by our own or a family member's terminal illness. There is no reason to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering and the State's interests in protecting those who might seek to end life mistakenly or under pressure. As the Court recognizes, States are presently undertaking extensive and serious evaluation of physician-assisted suicide and other related issues. Ante, at 716-718; see post, at 785-788 (SOUTER, J., concurring in judgment). In such circumstances, "the ... challenging task of crafting appropriate procedures for safeguarding ... liberty interests is entrusted to the 'laboratory' of the States ... in the first instance." Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261 , 292 (1990) (O'CONNOR, J., concurring) (citing New State Ice Co. v. Liebmann, 285 U. S. 262 , 311 (1932)). In sum, there is no need to address the question whether suffering patients have a constitutionally cognizable interest in obtaining relief from the suffering that they may experience in the last days of their lives. There is no dispute that 738 STEVENS, J., concurring in judgments dying patients in Washington and New York can obtain palliative care, even when doing so would hasten their deaths. The difficulty in defining terminal illness and the risk that a dying patient's request for assistance in ending his or her life might not be truly voluntary justifies the prohibitions on assisted suicide we uphold here. JUSTICE STEVENS, concurring in the judgments. * The Court ends its opinion with the important observation that our holding today is fully consistent with a continuation of the vigorous debate about the "morality, legality, and practicality of physician-assisted suicide" in a democratic society. Ante, at 735. I write separately to make it clear that there is also room for further debate about the limits that the Constitution places on the power of the States to punish the practice. I The morality, legality, and practicality of capital punishment have been the subject of debate for many years. In 1976, this Court upheld the constitutionality of the practice in cases coming to us from Georgia,1 Florida,2 and Texas.3 In those cases we concluded that a State does have the power to place a lesser value on some lives than on others; there is no absolute requirement that a State treat all human life as having an equal right to preservation. Because the state legislatures had sufficiently narrowed the category of lives that the State could terminate, and had enacted special procedures to ensure that the defendant belonged in that limited category, we concluded that the statutes were not unconstitutional on their face. In later cases coming to us from each *[This opinion applies also to No. 95-1858, Vacco et al. v. Quill et al., post, p. 793.] 1 Gregg v. Georgia, 428 U. S. 153 (1976). 2 Proffitt v. Florida, 428 U. S. 242 (1976). 3 Jurek v. Texas, 428 U. S. 262 (1976). 739 of those States, however, we found that some applications of the statutes were unconstitutiona1.4 Today, the Court decides that Washington's statute prohibiting assisted suicide is not invalid "on its face," that is to say, in all or most cases in which it might be applied.5 That holding, however, does not foreclose the possibility that some applications of the statute might well be invalid. As originally filed, Washington v. Glucksberg presented a challenge to the Washington statute on its face and as it applied to three terminally ill, mentally competent patients and to four physicians who treat terminally ill patients. After the District Court issued its opinion holding that the statute placed an undue burden on the right to commit physicianassisted suicide, see Compassion in Dying v. Washington, 850 F. Supp. 1454, 1462, 1465 (WD Wash. 1994), the three patients died. Although the Court of Appeals considered the constitutionality of the statute "as applied to the prescription of life-ending medication for use by terminally ill, competent adult patients who wish to hasten their deaths," Compassion in Dying v. Washington, 79 F.3d 790 , 798 (CA9 1996), the court did not have before it any individual plaintiff seeking to hasten her death or any doctor who was threatened with prosecution for assisting in the suicide of a particular patient; its analysis and eventual holding that the statute was unconstitutional was not limited to a particular set of plaintiffs before it. The appropriate standard to be applied in cases making facial challenges to state statutes has been the subject of debate within this Court. See Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U. S. 1174 (1996). Upholding the validity of the federal Bail Reform Act of 1984, the Court stated in United States v. Salerno, 481 U. S. 739 (1987), that a "facial challenge to a legislative Act is, of course, the most 4 See, e. g., Godfrey v. Georgia, 446 U. S. 420 (1980); Enmund v. Florida, 458 U. S. 782 (1982); Penry v. Lynaugh, 492 U. S. 302 (1989). 5 See ante, at 709, n. 6. 740 STEVENS, J., concurring in judgments difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." Id., at 745.6 I do not believe the Court has ever actually applied such a strict standard,7 even in Salerno itself, and the Court does not appear to apply Salerno here. Nevertheless, the Court does conceive of respondents' claim as a facial challenge-addressing not the application of the statute to a particular set of plaintiffs before it, but the constitutionality of the statute's categorical prohibition against "aid[ing] another person to attempt suicide." Ante, at 723 (internal quotation marks omitted) (citing Wash. Rev. Code § 9A.36.060(1) (1994)). Accordingly, the Court requires the plaintiffs to show that the interest in liberty protected by the Fourteenth Amendment "includes a right to commit suicide which itself includes a right to assistance in doing so." Ante, at 723. History and tradition provide ample support for refusing to recognize an open-ended constitutional right to commit suicide. Much more than the State's paternalistic interest 6 If the Court had actually applied the Salerno standard in this action, it would have taken only a few paragraphs to identify situations in which the Washington statute could be validly enforced. In Salerno itself, the Court would have needed only to look at whether the statute could be constitutionally applied to the arrestees before it; any further analysis would have been superfluous. See Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 239-240 (1994) (arguing that if the Salerno standard were taken literally, a litigant could not succeed in her facial challenge unless she also succeeded in her as applied challenge). 7 In other cases and in other contexts, we have imposed a significantly lesser burden on the challenger. The most lenient standard that we have applied requires the challenger to establish that the invalid applications of a statute "must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U. S. 601, 615 (1973). As the Court's opinion demonstrates, Washington's statute prohibiting assisted suicide has a "plainly legitimate sweep." While that demonstration provides a sufficient justification for rejecting respondents' facial challenge, it does not mean that every application of the statute should or will be upheld. 741 in protecting the individual from the irrevocable consequences of an ill-advised decision motivated by temporary concerns is at stake. There is truth in John Donne's observation that "No man is an island." 8 The State has an interest in preserving and fostering the benefits that every human being may provide to the community-a community that thrives on the exchange of ideas, expressions of affection, shared memories, and humorous incidents, as well as on the material contributions that its members create and support. The value to others of a person's life is far too precious to allow the individual to claim a constitutional entitlement to complete autonomy in making a decision to end that life. Thus, I fully agree with the Court that the "liberty" protected by the Due Process Clause does not include a categorical "right to commit suicide which itself includes a right to assistance in doing so." Ibid. But just as our conclusion that capital punishment is not always unconstitutional did not preclude later decisions holding that it is sometimes impermissibly cruel, so is it equally clear that a decision upholding a general statutory prohibition of assisted suicide does not mean that every possible application of the statute would be valid. A State, like Washington, that has authorized the death penalty, and thereby has concluded that the sanctity of human life does not require that it always be preserved, must acknowledge that there are situations in which an interest in hastening 8 "Who casts not up his eye to the sun when it rises? but who takes off his eye from a comet when that breaks out? Who bends not his ear to any bell which upon any occasion rings? but who can remove it from that bell which is passing a piece of himself out of this world? No man is an island, entire of itself; every man is a piece of the continent, a part of the main. If a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friend's or of thine own were; any man's death diminishes me, because I am involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee." J. Donne, Meditation No. 17, Devotions Upon Emergent Occasions (1623) (http://www.kfu.com/- pl...om_ the _beIUolls.html). 742 STEVENS, J., concurring in judgments death is legitimate. Indeed, not only is that interest sometimes legitimate, I am also convinced that there are times when it is entitled to constitutional protection. II In Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261 (1990), the Court assumed that the interest in liberty protected by the Fourteenth Amendment encompassed the right of a terminally ill patient to direct the withdrawal of lifesustaining treatment. As the Court correctly observes today, that assumption "was not simply deduced from abstract concepts of personal autonomy." Ante, at 725. Instead, it was supported by the common-law tradition protecting the individual's general right to refuse unwanted medical treatment. Ibid. We have recognized, however, that this common-law right to refuse treatment is neither absolute nor always sufficiently weighty to overcome valid countervailing state interests. As Justice Brennan pointed out in his Cruzan dissent, we have upheld legislation imposing punishment on persons refusing to be vaccinated, 497 U. S., at 312, n. 12, citing Jacobson v. Massachusetts, 197 U. S. 11 , 26-27 (1905), and as JUSTICE SCALIA pointed out in his concurrence, the State ordinarily has the right to interfere with an attempt to commit suicide by, for example, forcibly placing a bandage on a self-inflicted wound to stop the flow of blood. 497 U. S., at 298. In most cases, the individual's constitutionally protected interest in his or her own physical autonomy, including the right to refuse unwanted medical treatment, will give way to the State's interest in preserving human life. Cruzan, however, was not the normal case. Given the irreversible nature of her illness and the progressive character of her suffering,9 Nancy Cruzan's interest in refusing medical care was incidental to her more basic interest in controlling the manner and timing of her death. In finding that her 9 See 497 U. S., at 332, n. 2. 743 best interests would be served by cutting off the nourishment that kept her alive, the trial court did more than simply vindicate Cruzan's interest in refusing medical treatment; the court, in essence, authorized affirmative conduct that would hasten her death. When this Court reviewed the case and upheld Missouri's requirement that there be clear and convincing evidence establishing Nancy Cruzan's intent to have life-sustaining nourishment withdrawn, it made two important assumptions: (1) that there was a "liberty interest" in refusing unwanted treatment protected by the Due Process Clause; and (2) that this liberty interest did not "end the inquiry" because it might be outweighed by relevant state interests. Id., at 279. I agree with both of those assumptions, but I insist that the source of Nancy Cruzan's right to refuse treatment was not just a common-law rule. Rather, this right is an aspect of a far broader and more basic concept of freedom that is even older than the common law. 10 This freedom embraces not merely a person's right to refuse a particular kind of unwanted treatment, but also her interest in dignity, and in determining the character of the memories that will survive long after her deathY In 10 "[N]either the Bill of Rights nor the laws of sovereign States create the liberty which the Due Process Clause protects. The relevant constitutional provisions are limitations on the power of the sovereign to infringe on the liberty of the citizen. The relevant state laws either create property rights, or they curtail the freedom of the citizen who must live in an ordered society. Of course, law is essential to the exercise and enjoyment of individual liberty in a complex society. But it is not the source of liberty, and surely not the exclusive source. "I had thought it self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations." Meachum 11 "Nancy Cruzan's interest in life, no less than that of any other person, includes an interest in how she will be thought of after her death by those whose opinions mattered to her. There can be no doubt that her life made her dear to her family and to others. How she dies will affect how that 744 STEVENS, J., concurring in judgments recogmzmg that the State's interests did not outweigh Nancy Cruzan's liberty interest in refusing medical treatment, Cruzan rested not simply on the common-law right to refuse medical treatment, but-at least implicitly-on the even more fundamental right to make this "deeply personal decision," id., at 289 (O'CONNOR, J., concurring). Thus, the common-law right to protection from battery, which included the right to refuse medical treatment in most circumstances, did not mark "the outer limits of the substantive sphere of liberty" that supported the Cruzan family's decision to hasten Nancy's death. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 , 848 (1992). Those limits have never been precisely defined. They are generally identified by the importance and character of the decision confronted by the individual, Whalen v. Roe, 429 U. S. 589 , 599-600, n. 26 (1977). Whatever the outer limits of the concept may be, it definitely includes protection for matters "central to personal dignity and autonomy." Casey, 505 U. S., at 851. It includes "the individual's right to make certain unusually important decisions that will affect his own, or his family's, destiny. The Court has referred to such decisions as implicating 'basic values,' as being 'fundamental,' and as being dignified by history and tradition. The character of the Court's language in these cases brings to mind the origins of the American heritage of freedom-the life is remembered." Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261 , 344 (1990) (STEVENS, J., dissenting). "Each of us has an interest in the kind of memories that will survive after death. To that end, individual decisions are often motivated by their impact on others. A member of the kind of family identified in the trial court's findings in this case would likely have not only a normal interest in minimizing the burden that her own illness imposes on others, but also an interest in having their memories of her filled predominantly with thoughts about her past vitality rather than her current condition." Id., at 356. 745 abiding interest in individual liberty that makes certain state intrusions on the citizen's right to decide how he will live his own life intolerable." Fitzgerald v. Porter Memorial Hospital, 523 F.2d 716 , 719-720 (CA7 1975) (footnotes omitted), cert. denied, 425 U. S. 916 (1976). The Cruzan case demonstrated that some state intrusions on the right to decide how death will be encountered are also intolerable. The now-deceased plaintiffs in this action may in fact have had a liberty interest even stronger than Nancy Cruzan's because, not only were they terminally ill, they were suffering constant and severe pain. Avoiding intolerable pain and the indignity of living one's final days incapacitated and in agony is certainly "[a]t the heart of [the] liberty ... to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Casey, 505 U. S., at 851. While I agree with the Court that Cruzan does not decide the issue presented by these cases, Cruzan did give recognition, not just to vague, unbridled notions of autonomy, but to the more specific interest in making decisions about how to confront an imminent death. Although there is no absolute right to physician-assisted suicide, Cruzan makes it clear that some individuals who no longer have the option of deciding whether to live or to die because they are already on the threshold of death have a constitutionally protected interest that may outweigh the State's interest in preserving life at all costs. The liberty interest at stake in a case like this differs from, and is stronger than, both the common-law right to refuse medical treatment and the unbridled interest in deciding whether to live or die. It is an interest in deciding how, rather than whether, a critical threshold shall be crossed. III The state interests supporting a general rule banning the practice of physician-assisted suicide do not have the same 746 STEVENS, J., concurring in judgments force in all cases. First and foremost of these interests is the" 'unqualified interest in the preservation of human life,'" ante, at 728 (quoting Cruzan, 497 U. S., at 282), which is equated with "'the sanctity of life,'" ante, at 728 (quoting American Law Institute, Model Penal Code § 210.5, Comment 5, p. 100 (Official Draft and Revised Comments 1980)). That interest not only justifies-it commands-maximum protection of every individual's interest in remaining alive, which in turn commands the same protection for decisions about whether to commence or to terminate life-support systems or to administer pain medication that may hasten death. Properly viewed, however, this interest is not a collective interest that should always outweigh the interests of a person who because of pain, incapacity, or sedation finds her life intolerable, but rather, an aspect of individual freedom. Many terminally ill people find their lives meaningful even if filled with pain or dependence on others. Some find value in living through suffering; some have an abiding desire to witness particular events in their families' lives; many believe it a sin to hasten death. Individuals of different religious faiths make different judgments and choices about whether to live on under such circumstances. There are those who will want to continue aggressive treatment; those who would prefer terminal sedation; and those who will seek withdrawal from life-support systems and death by gradual starvation and dehydration. Although as a general matter the State's interest in the contributions each person may make to society outweighs the person's interest in ending her life, this interest does not have the same force for a terminally ill patient faced not with the choice of whether to live, only of how to die. Allowing the individual, rather than the State, to make judgments" 'about the "quality" of life that a particular individual may enjoy,'" ante, at 729 (quoting Cruzan, 497 U. S., at 282), does not mean that the lives of terminally ill, disabled people have less value than the lives of those who are healthy, see ante, at 732. Rather, it gives 747 proper recognition to the individual's interest in choosing a final chapter that accords with her life story, rather than one that demeans her values and poisons memories of her. See Brief for Bioethicists as Amici Curiae 11; see also R. Dworkin, Life's Dominion 213 (1993) ("Whether it is in someone's best interests that his life end in one way rather than another depends on so much else that is special about himabout the shape and character of his life and his own sense of his integrity and critical interests-that no uniform collective decision can possibly hope to serve everyone even d ecen tly"). Similarly, the State's legitimate interests in preventing suicide, protecting the vulnerable from coercion and abuse, and preventing euthanasia are less significant in this context. I agree that the State has a compelling interest in preventing persons from committing suicide because of depression or coercion by third parties. But the State's legitimate interest in preventing abuse does not apply to an individual who is not victimized by abuse, who is not suffering from depression, and who makes a rational and voluntary decision to seek assistance in dying. Although, as the New York Task Force report discusses, diagnosing depression and other mental illness is not always easy, mental health workers and other professionals expert in working with dying patients can help patients cope with depression and pain, and help patients assess their options. See Brief for Washington State Psychological Association et al. as Amici Curiae 8-10. Relatedly, the State and amici express the concern that patients whose physical pain is inadequately treated will be more likely to request assisted suicide. Encouraging the development and ensuring the availability of adequate pain treatment is of utmost importance; palliative care, however, cannot alleviate all pain and suffering. See Orentlicher, Legalization of Physician Assisted Suicide: A Very Modest Revolution, 38 Boston College L. Rev. (Galley, p. 8) (1997) ("Greater use of palliative care would reduce the demand for 748 STEVENS, J., concurring in judgments assisted suicide, but it will not eliminate [it]"); see also Brief for Coalition of Hospice Professionals as Amici Curiae 8 (citing studies showing that "[a]s death becomes more imminent, pain and suffering become progressively more difficult to treat"). An individual adequately informed of the care alternatives thus might make a rational choice for assisted suicide. For such an individual, the State's interest in preventing potential abuse and mistake is only minimally implicated. The final major interest asserted by the State is its interest in preserving the traditional integrity of the medical profession. The fear is that a rule permitting physicians to assist in suicide is inconsistent with the perception that they serve their patients solely as healers. But for some patients, it would be a physician's refusal to dispense medication to ease their suffering and make their death tolerable and dignified that would be inconsistent with the healing role. See Block & Billings, Patient Request to Hasten Death, 154 Archives Internal Med. 2039, 2045 (1994) (A doctor's refusal to hasten death "may be experienced by the [dying] patient as an abandonment, a rejection, or an expression of inappropriate paternalistic authority"). For doctors who have longstanding relationships with their patients, who have given their patients advice on alternative treatments, who are attentive to their patient's individualized needs, and who are knowledgeable about pain symptom management and palliative care options, see Quill, Death and Dignity, A Case of Individualized Decision Making, 324 New England J. Med. 691-694 (1991), heeding a patient's desire to assist in her suicide would not serve to harm the physician-patient relationship. Furthermore, because physicians are already involved in making decisions that hasten the death of terminally ill patients-through termination of life support, withholding of medical treatment, and terminal sedation-there is in fact significant tension between the traditional view of 749 the physician's role and the actual practice in a growing number of cases.12 As the New York State Task Force on Life and the Law recognized, a State's prohibition of assisted suicide is justified by the fact that the "'ideal''' case in which "patients would be screened for depression and offered treatment, effective pain medication would be available, and all patients would have a supportive committed family and doctor" is not the usual case. New York State Task Force on Life and the Law, When Death Is Sought: Assisted Suicide and Euthanasia in the Medical Context 120 (May 1994). Although, as the Court concludes today, these potential harms are sufficient to support the State's general public policy against assisted suicide, they will not always outweigh the individual liberty 12 I note that there is evidence that a significant number of physicians support the practice of hastening death in particular situations. A survey published in the New England Journal of Medicine found that 56% of responding doctors in Michigan preferred legalizing assisted suicide to an explicit ban. Bachman et al., Attitudes of Michigan Physicians and the Public Toward Legalizing Physician-Assisted Suicide and Voluntary Euthanasia, 334 New England J. Med. 303-309 (1996). In a survey of Oregon doctors, 60% of the responding doctors supported legalizing assisted suicide for terminally ill patients. See Lee et al., Legalizing Assisted Suicide-Views of Physicians in Oregon, 335 New England J. Med. 310-315 (1996). Another study showed that 12% of physicians polled in Washington State reported that they had been asked by their terminally ill patients for prescriptions to hasten death, and that, in the year prior to the study, 24% of those physicians had complied with such requests. See Back, Wallace, Starks, & Perlman, Physician-Assisted Suicide and Euthanasia in Washington State, 275 JAMA 919-925 (1996); see also Doukas, Waterhouse, Gorenflo, & Seld, Attitudes and Behaviors on PhysicianAssisted Death: A Study of Michigan Oncologists, 13 J. Clinical Oncology 1055 (1995) (reporting that 18% of responding Michigan oncologists reported active participation in assisted suicide); Slome, Moulton, Huffine, Gorter, & Abrams, Physicians' Attitudes Toward Assisted Suicide in AIDS, 5 J. Acquired Immune Deficiency Syndromes 712 (1992) (reporting that 24% of responding physicians who treat AIDS patients would likely grant a patient's request for assistance in hastening death). 750 STEVENS, J., concurring in judgments interest of a particular patient. Unlike the Court of Appeals, I would not say as a categorical matter that these state interests are invalid as to the entire class of terminally ill, mentally competent patients. I do not, however, foreclose the possibility that an individual plaintiff seeking to hasten her death, or a doctor whose assistance was sought, could prevail in a more particularized challenge. Future cases will determine whether such a challenge may succeed. IV In N ew York, a doctor must respect a competent person's decision to refuse or to discontinue medical treatment even though death will thereby ensue, but the same doctor would be guilty of a felony if she provided her patient assistance in committing suicide.13 Today we hold that the Equal Protection Clause is not violated by the resulting disparate treatment of two classes of terminally ill people who may have the same interest in hastening death. I agree that the distinction between permitting death to ensue from an underlying fatal disease and causing it to occur by the administration of medication or other means provides a constitutionally sufficient basis for the State's classification.14 Unlike the Court, however, see Vacco, post, at 801-802, I am not persuaded that in all cases there will in fact be a significant difference between the intent of the physicians, the patients, or the families in the two situations. There may be little distinction between the intent of a terminally ill patient who decides to remove her life support and one who seeks the assistance of a doctor in ending her life; in both situations, the patient is seeking to hasten a certain, impending death. The doctor's intent might also be the same in prescribing lethal medication as it is in terminat- 13 See Vacco v. Quill, post, at 797, nn. 1 and 2. 14 The American Medical Association recognized this distinction when it supported Nancy Cruzan and continues to recognize this distinction in its support of the States in these cases. 751 ing life support. A doctor who fails to administer medical treatment to one who is dying from a disease could be doing so with an intent to harm or kill that patient. Conversely, a doctor who prescribes lethal medication does not necessarily intend the patient's death-rather that doctor may seek simply to ease the patient's suffering and to comply with her wishes. The illusory character of any differences in intent or causation is confirmed by the fact that the American Medical Association unequivocally endorses the practice of terminal sedation-the administration of sufficient dosages of pain-killing medication to terminally ill patients to protect them from excruciating pain even when it is clear that the time of death will be advanced. The purpose of terminal sedation is to ease the suffering of the patient and comply with her wishes, and the actual cause of death is the administration of heavy doses of lethal sedatives. This same intent and causation may exist when a doctor complies with a patient's request for lethal medication to hasten her death.15 Thus, although the differences the majority notes in causation and intent between terminating life support and assisting in suicide support the Court's rejection of the respondents' facial challenge, these distinctions may be inapplicable to particular terminally ill patients and their doctors. Our holding today in Vacco v. Quill, post, p. 793, that the Equal Protection Clause is not violated by New York's classification, just like our holding in Washington v. Glucksberg that the Washington statute is not invalid on its face, does not foreclose the possibility that some applications of the New 15 If a doctor prescribes lethal drugs to be self-administered by the patient, it is not at all clear that the physician's intent is that the patient "be made dead," post, at 802 (internal quotation marks omitted). Many patients prescribed lethal medications never actually take them; they merely acquire some sense of control in the process of dying that the availability of those medications provides. See Back, supra n. 12, at 922; see also Quill, 324 New England J. Med., at 693 (describing how some patients fear death less when they feel they have the option of physicianassisted suicide). 752 SOUTER, J., concurring in judgment York statute may impose an intolerable intrusion on the patient's freedom. There remains room for vigorous debate about the outcome of particular cases that are not necessarily resolved by the opinions announced today. How such cases may be decided will depend on their specific facts. In my judgment, however, it is clear that the so-called "unqualified interest in the preservation of human life," Cruzan, 497 U. S., at 282; ante, at 728, is not itself sufficient to outweigh the interest in liberty that may justify the only possible means of preserving a dying patient's dignity and alleviating her intolerable suffering. JUSTICE SOUTER, concurring in the judgment. Three terminally ill individuals and four physicians who sometimes treat terminally ill patients brought this challenge to the Washington statute making it a crime "knowingly ... [to] ai[d] another person to attempt suicide," Wash. Rev. Code § 9A.36.060 (1994), claiming on behalf of both patients and physicians that it would violate substantive due process to enforce the statute against a doctor who acceded to a dying patient's request for a drug to be taken by the patient to commit suicide. The question is whether the statute sets up one of those "arbitrary impositions" or "purposeless restraints" at odds with the Due Process Clause of the Fourteenth Amendment. Poe v. Ullman, 367 U. S. 497 , 543 (1961) (Harlan, J., dissenting). I conclude that the statute's application to the doctors has not been shown to be unconstitutional, but I write separately to give my reasons for analyzing the substantive due process claims as I do, and for rejecting this one. I Although the terminally ill original parties have died during the pendency of this case, the four physicians who remain 753 as respondents here 1 continue to request declaratory and injunctive relief for their own benefit in discharging their obligations to other dying patients who request their help.2 See, e. g., Southern Pacific Terminal Co. v. ICC, 219 U. S. 498 , 515 (1911) (question was capable of repetition yet evading review). The case reaches us on an order granting summary judgment, and we must take as true the undisputed allegations that each of the patients was mentally competent and terminally ill, and that each made a knowing and voluntary choice to ask a doctor to prescribe "medications ... to be self-administered for the purpose of hastening ... death." Complaint' 2.3. The State does not dispute that each faced a passage to death more agonizing both mentally and physically, and more protracted over time, than death by suicide with a physician's help, or that each would have chosen such a suicide for the sake of personal dignity, apart even from relief from pain. Each doctor in this case claims to encounter patients like the original plaintiffs who have died, that is, mentally competent, terminally ill, and seeking medical help in "the voluntary self-termination of life." Id.," 2.5 2.8. While there may be no unanimity on the physician's professional obligation in such circumstances, I accept here respondents' representation that providing such patients with prescriptions for drugs that go beyond pain relief to hasten death would, in these circumstances, be consistent with standards of medical practice. Hence, I take it to be true, as respondents say, that the Washington statute prevents the exercise of a physician's "best professional judgment to prescribe medications to [such] patients in dosages that would enable them to act to hasten their own deaths." Id., , 2.6; see also App. 35-37, 49-51, 55-57, 73-75. 1 A nonprofit corporation known as Compassion in Dying was also a plaintiff and appellee below but is not a party in this Court. 2 As I will indicate in some detail below, I see the challenge to the statute not as facial but as-applied, and I understand it to be in narrower terms than those accepted by the Court. 754 SOUTER, J., concurring in judgment In their brief to this Court, the doctors claim not that they ought to have a right generally to hasten patients' imminent deaths, but only to help patients who have made "personal decisions regarding their own bodies, medical care, and, fundamentally, the future course of their lives," Brief for Respondents 12, and who have concluded responsibly and with substantial justification that the brief and anguished remainders of their lives have lost virtually all value to them. Respondents fully embrace the notion that the State must be free to impose reasonable regulations on such physician assistance to ensure that the patients they assist are indeed among the competent and terminally ill and that each has made a free and informed choice in seeking to obtain and use a fatal drug. Complaint' 3.2; App. 28-41. In response, the State argues that the interest asserted by the doctors is beyond constitutional recognition because it has no deep roots in our history and traditions. Brief for Petitioners 21-25. But even aside from that, without disputing that the patients here were competent and terminally ill, the State insists that recognizing the legitimacy of doctors' assistance of their patients as contemplated here would entail a number of adverse consequences that the Washington Legislature was entitled to forestall. The nub of this part of the State's argument is not that such patients are constitutionally undeserving of relief on their own account, but that any attempt to confine a right of physician assistance to the circumstances presented by these doctors is likely to fail. Id., at 34-35, 44-47. First, the State argues that the right could not be confined to the terminally ill. Even assuming a fixed definition of that term, the State observes that it is not always possible to say with certainty how long a person may live. Id., at 34. It asserts that "[t]here is no principled basis on which [the right] can be limited to the prescription of medication for terminally ill patients to administer to themselves" when the right's justifying principle is as broad as "'merciful termina- 755 tion of suffering.'" Id., at 45 (citing Y. Kamisar, Are Laws Against Assisted Suicide Unconstitutional?, Hastings Center Report 32, 36-37 (May-June 1993)). Second, the State argues that the right could not be confined to the mentally competent, observing that a person's competence cannot always be assessed with certainty, Brief for Petitioners 34, and suggesting further that no principled distinction is possible between a competent patient acting independently and a patient acting through a duly appointed and competent surrogate, id., at 46. Next, according to the State, such a right might entail a right to or at least merge in practice into "other forms of life-ending assistance," such as euthanasia. Id., at 46-47. Finally, the State believes that a right to physician assistance could not easily be distinguished from a right to assistance from others, such as friends, family, and other health-care workers. Id., at 47. The State thus argues that recognition of the substantive due process right at issue here would jeopardize the lives of others outside the class defined by the doctors' claim, creating risks of irresponsible suicides and euthanasia, whose dangers are concededly within the State's authority to address. II When the physicians claim that the Washington law deprives them of a right falling within the scope of liberty that the Fourteenth Amendment guarantees against denial without due process of law,3 they are not claiming some sort of procedural defect in the process through which the statute has been enacted or is administered. Their claim, rather, is that the State has no substantively adequate justification for barring the assistance sought by the patient and sought to be offered by the physician. Thus, we are dealing with a claim to one of those rights sometimes described as rights 3 The doctors also rely on the Equal Protection Clause, but that source of law does essentially nothing in a case like this that the Due Process Clause cannot do on its own. 756 SOUTER, J., concurring in judgment of substantive due process and sometimes as unenumerated rights, in view of the breadth and indeterminacy of the "due process" serving as the claim's textual basis. The doctors accordingly arouse the skepticism of those who find the Due Process Clause an unduly vague or oxymoronic warrant for judicial review of substantive state law, just as they also invoke two centuries of American constitutional practice in recognizing unenumerated, substantive limits on governmental action. Although this practice has neither rested on any single textual basis nor expressed a consistent theory (or, before Poe v. Ullman, a much articulated one), a brief overview of its history is instructive on two counts. The persistence of substantive due process in our cases points to the legitimacy of the modern justification for such judicial review found in Justice Harlan's dissent in Poe,4 on which I will dwell further on, while the acknowledged failures of some of these cases point with caution to the difficulty raised by the present claim. Before the ratification of the Fourteenth Amendment, substantive constitutional review resting on a theory of unenumerated rights occurred largely in the state courts applying state constitutions that commonly contained either due process clauses like that of the Fifth Amendment (and later the Fourteenth) or the textual antecedents of such clauses, re- 4 The status of the Harlan dissent in Poe v. Ullman, 367 U. S. 497 (1961), is shown by the Court's adoption of its result in Griswold v. Connecticut, 381 U. S. 479 (1965), and by the Court's acknowledgment of its status and adoption of its reasoning in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 , 848-849 (1992). See also Youngberg v. Romeo, 457 U. S. 307, 320 (1982) (citing Justice Harlan's Poe dissent as authority for the requirement that this Court balance "the liberty of the individual" and "the demands of an organized society"); Roberts v. United States Jaycees, 468 U. S. 609 , 619 (1984); Moore v. East Cleveland, 431 U. S. 494 , 500-506, and n. 12 (1977) (plurality opinion) (opinion for four Justices treating Justice Harlan's Poe dissent as a central explication of the methodology of judicial review under the Due Process Clause). 757 peating Magna Carta's guarantee of "the law of the land." 5 On the basis of such clauses, or of general principles untethered to specific constitutional language, state courts evaluated the constitutionality of a wide range of statutes. Thus, a Connecticut court approved a statute legitimating a class of previous illegitimate marriages, as falling within the terms of the "social compact," while making clear its power to review constitutionality in those terms. Goshen v. Stonington, 4 Conn. 209, 225-226 (1822). In the same period, a specialized court of equity, created under a Tennessee statute solely to hear cases brought by the state bank against its debtors, found its own authorization unconstitutional as "partial" legislation violating the State Constitution's "law of the land" clause. Bank of the State v. Cooper, 2 Yerg. 599, 602-608 (Tenn. 1831) (opinion of Green, J.); id., at 613-615 (opinion of Peck, J.); id., at 618-623 (opinion of Kennedy, J.). And the middle of the 19th century brought the famous Wynehamer case, invalidating a statute purporting to render possession of liquor immediately illegal except when kept for narrow, specified purposes, the state court finding the statute inconsistent with the State's due process clause. Wynehamer v. People, 13 N. Y. 378, 486-487 (1856). The statute was deemed an excessive threat to the "fundamental rights of the citizen" to property. Id., at 398 (opinion of Comstock, J.). See generally E. Corwin, Liberty Against Government 58-115 (1948) (discussing substantive due process in the state courts before the Civil War); T. Cooley, Constitutional Limitations *85-*129, *351-*397. Even in this early period, however, this Court anticipated the developments that would presage both the Civil War and the ratification of the Fourteenth Amendment, by making it clear on several occasions that it too had no doubt of the 5 Coke indicates that prohibitions against deprivations without "due process of law" originated in an English statute that "rendred" Magna Carta's "law of the land" in such terms. See 2 E. Coke, Institutes 50 (1797); see also E. Corwin, Liberty Against Government 90-91 (1948). 758 SOUTER, J., concurring in judgment judiciary's power to strike down legislation that conflicted with important but unenumerated principles of American government. In most such instances, after declaring its power to invalidate what it might find inconsistent with rights of liberty and property, the Court nevertheless went on to uphold the legislative Acts under review. See, e. g., Wilkinson v. Leland, 2 Pet. 627, 656-661 (1829); Calder v. Bull, 3 Dall. 386, 386-395 (1798) (opinion of Chase, J.); see also Corfield v. Coryell, 6 F. Cas. 546, 550-552 (No. 3,230) (CC ED Pa. 1823). But in Fletcher v. Peck, 6 Cranch 87 (1810), the Court went further. It struck down an Act of the Georgia Legislature that purported to rescind a sale of public land ab initio and reclaim title for the State, and so deprive subsequent, good-faith purchasers of property conveyed by the original grantees. The Court rested the invalidation on alternative sources of authority: the specific prohibitions against bills of attainder, ex post facto laws, laws impairing contracts in Article I, § 10, of the Constitution; and "general principles which are common to our free institutions," by which Chief Justice Marshall meant that a simple deprivation of property by the State could not be an authentically "legislative" Act. Fletcher, supra, at 135-139. Fletcher was not, though, the most telling early example of such review. For its most salient instance in this Court before the adoption of the Fourteenth Amendment was, of course, the case that the Amendment would in due course overturn, Dred Scott v. Sandford, 19 How. 393 (1857). Unlike Fletcher, Dred Scott was textually based on a Due Process Clause (in the Fifth Amendment, applicable to the N ational Government), and it was in reliance on that Clause's protection of property that the Court invalidated the Missouri Compromise. 19 How., at 449-452. This substantive protection of an owner's property in a slave taken to the territories was traced to the absence of any enumerated power to affect that property granted to the Congress by Article I of the Constitution, id., at 451-452, the implication 759 being that the Government had no legitimate interest that could support the earlier congressional compromise. The ensuing judgment of history needs no recounting here. After the ratification of the Fourteenth Amendment, with its guarantee of due process protection against the States, interpretation of the words "liberty" and "property" as used in Due Process Clauses became a sustained enterprise, with the Court generally describing the due process criterion in converse terms of reasonableness or arbitrariness. That standard is fairly traceable to Justice Bradley's dissent in the Slaughter-House Cases, 16 Wall. 36 (1873), in which he said that a person's right to choose a calling was an element of liberty (as the calling, once chosen, was an aspect of property) and declared that the liberty and property protected by due process are not truly recognized if such rights may be "arbitrarily assailed," id., at 116.6 After that, opinions comparable to those that preceded Dred Scott expressed willingness to review legislative action for consistency with the Due Process Clause even as they upheld the laws in question. See, e. g., Bartemeyer v. Iowa, 18 Wall. 129, 133-135 (1874); Munn v. Illinois, 94 U. S. 113 , 123-135 (1877); Railroad Comm'n Cases, 116 U. S. 307 , 331 (1886); Mugler v. 6 The Slaughter-House Cases are important, of course, for their holding that the Privileges and Immunities Clause was no source of any but a specific handful of substantive rights. 16 Wall., at 74-80. To a degree, then, that decision may have led the Court to look to the Due Process Clause as a source of substantive rights. In Twining v. New Jersey, 211 U. S. 78 , 95-97 (1908), for example, the Court of the Lochner Era acknowledged the strength of the case against Slaughter-House's interpretation of the Privileges or Immunities Clause but reaffirmed that interpretation without questioning its own frequent reliance on the Due Process Clause as authorization for substantive judicial review. See also J. Ely, Democracy and Distrust 14-30 (1980) (arguing that the Privileges and Immunities Clause and not the Due Process Clause is the proper warrant for courts' substantive oversight of state legislation). But the courts' use of Due Process Clauses for that purpose antedated the 1873 decision, as we have seen, and would in time be supported in the Poe dissent, as we shall see. 760 SOUTER, J., concurring in judgment Kansas, 123 U. S. 623 , 659-670 (1887). See generally Corwin, supra, at 121-136 (surveying the Court's early Fourteenth Amendment cases and finding little dissent from the general principle that the Due Process Clause authorized judicial review of substantive statutes). The theory became serious, however, beginning with Allgeyer v. Louisiana, 165 U. S. 578 (1897), where the Court invalidated a Louisiana statute for excessive interference with Fourteenth Amendment liberty to contract, id., at 588593, and offered a substantive interpretation of "liberty," that in the aftermath of the so-called Lochner Era has been scaled back in some respects, but expanded in others, and never repudiated in principle. The Court said that Fourteenth Amendment liberty includes "the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned." Id., at 589. "[W]e do not intend to hold that in no such case can the State exercise its police power," the Court added, but "[w]hen and how far such power may be legitimately exercised with regard to these subjects must be left for determination to each case as it arises." Id., at 590. Although this principle was unobjectionable, what followed for a season was, in the realm of economic legislation, the echo of Dred Scott. Allgeyer was succeeded within a decade by Lochner v. New York, 198 U. S. 45 (1905), and the era to which that case gave its name, famous now for striking down as arbitrary various sorts of economic regulations that post-New Deal courts have uniformly thought constitutionally sound. Compare, e. g., id., at 62 (finding New York's maximum-hours law for bakers "unreasonable and entirely arbitrary"), and Adkins v. Children's Hospital of D. c., 261 761 u. S. 525, 559 (1923) (holding a minimum-wage law "so clearly the product of a naked, arbitrary exercise of power that it cannot be allowed to stand under the Constitution of the United States"), with West Coast Hotel Co. v. Parrish, 300 U. S. 379 , 391 (1937) (overruling Adkins and approving a minimum-wage law on the principle that "regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process"). As the parentheticals here suggest, while the cases in the Lochner line routinely invoked a correct standard of constitutional arbitrariness review, they harbored the spirit of Dred Scott in their absolutist implementation of the standard they espoused. Even before the deviant economic due process cases had been repudiated, however, the more durable precursors of modern substantive due process were reaffirming this Court's obligation to conduct arbitrariness review, beginning with Meyer v. Nebraska, 262 U. S. 390 (1923). Without referring to any specific guarantee of the Bill of Rights, the Court invoked precedents from the Slaughter-House Cases through Adkins to declare that the Fourteenth Amendment protected "the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." 262 U. S., at 399. The Court then held that the same Fourteenth Amendment liberty included a teacher's right to teach and the rights of parents to direct their children's education without unreasonable interference by the States, id., at 400, with the result that Nebraska's prohibition on the teaching of foreign languages in the lower grades was "arbitrary and without reasonable relation to any end within the competency of the State," id., at 403. See also Pierce v. Society of Sisters, 268 U. S. 510 , 534-536 (1925) 762 SOUTER, J., concurring in judgment (finding that a statute that all but outlawed private schools lacked any "reasonable relation to some purpose within the competency of the State"); Palko v. Connecticut, 302 U. S. 319 , 327-328 (1937) ("[E]ven in the field of substantive rights and duties the legislative judgment, if oppressive and arbitrary, may be overridden by the courts." "Is that [injury] to which the statute has subjected [the appellant] a hardship so acute and shocking that our polity will not endure it? Does it violate those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions?" (citation and internal quotation marks omitted)). After Meyer and Pierce, two further opinions took the major steps that lead to the modern law. The first was not even in a due process case but one about equal protection, Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942), where the Court emphasized the "fundamental" nature of individual choice about procreation and so foreshadowed not only the later prominence of procreation as a subject of liberty protection, but the corresponding standard of "strict scrutiny," in this Court's Fourteenth Amendment law. See id., at 541. Skinner, that is, added decisions regarding procreation to the list of liberties recognized in Meyer and Pierce and loosely suggested, as a gloss on their standard of arbitrariness, a judicial obligation to scrutinize any impingement on such an important interest with heightened care. In so doing, it suggested a point that Justice Harlan would develop, that the kind and degree of justification that a sensitive judge would demand of a State would depend on the importance of the interest being asserted by the individual. Poe, 367 U. S., at 543. The second major opinion leading to the modern doctrine was Justice Harlan's Poe dissent just cited, the conclusion of which was adopted in Griswold v. Connecticut, 381 U. S. 479 (1965), and the authority of which was acknowledged in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). See also n. 4, supra. The dissent is important 763 for three things that point to our responsibilities today. The first is Justice Harlan's respect for the tradition of substantive due process review itself, and his acknowledgment of the Judiciary's obligation to carry it on. For two centuries American courts, and for much of that time this Court, have thought it necessary to provide some degree of review over the substantive content of legislation under constitutional standards of textual breadth. The obligation was understood before Dred Scott and has continued after the repudiation of Lochner's progeny, most notably on the subjects of segregation in public education, Bolling v. Sharpe, 347 U. S. 497 , 500 (1954), interracial marriage, Loving v. Virginia, 388 U. S. 1, 12 (1967), marital privacy and contraception, Carey v. Population Services Int'l, 431 U. S. 678 , 684-691 (1977); Griswold v. Connecticut, supra, at 481-486, abortion, Planned Parenthood of Southeastern Pa. v. Casey, supra, at 849, 869-879 (joint opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.); Roe v. Wade, 410 U. S. 113 , 152-166 (1973), personal control of medical treatment, Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261 , 287-289 (1990) (O'CONNOR, J., concurring); id., at 302 (Brennan, J., dissenting); id., at 331 (STEVENS, J., dissenting); see also id., at 278 (majority opinion), and physical confinement, Foucha v. Louisiana, 504 U. S. 71, 80-83 (1992). This enduring tradition of American constitutional practice is, in Justice Harlan's view, nothing more than what is required by the judicial authority and obligation to construe constitutional text and review legislation for conformity to that text. See Marbury v. Madison, 1 Cranch 137 (1803). Like many judges who preceded him and many who followed, he found it impossible to construe the text of due process without recognizing substantive, and not merely procedural, limitations. "Were due process merely a procedural safeguard it would fail to reach those situations where the deprivation of life, liberty or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in ap- 764 SOUTER, J., concurring in judgment plication to individuals, nevertheless destroy the enjoyment of all three." Poe, supra, at 541.7 The text of the Due Process Clause thus imposes nothing less than an obligation to give substantive content to the words "liberty" and "due process of law." Following the first point of the Poe dissent, on the necessity to engage in the sort of examination we conduct today, the dissent's second and third implicitly address those cases, already noted, that are now condemned with virtual unanimity as disastrous mistakes of substantive due process review. The second of the dissent's lessons is a reminder that the business of such review is not the identification of extratextual absolutes but scrutiny of a legislative resolution (perhaps unconscious) of clashing principles, each quite possibly worthy in and of itself, but each to be weighed within the history of our values as a people. It is a comparison of the relative strengths of opposing claims that informs the judicial task, not a deduction from some first premise. Thus informed, judicial review still has no warrant to substitute one reasonable resolution of the contending positions for another, but authority to supplant the balance already struck between the contenders only when it falls outside the realm of the reasonable. Part III, below, deals with this second point, and also with the dissent's third, which takes the form of an 7 Judge Johnson of the New York Court of Appeals had made the point more obliquely a century earlier when he wrote that "the form of this declaration of right, 'no person shall be deprived of life, liberty or property, without due process of law,' necessarily imports that the legislature cannot make the mere existence of the rights secured the occasion of depriving a person of any of them, even by the forms which belong to 'due process of law.' For if it does not necessarily import this, then the legislative power is absolute." And, "[t]o provide for a trial to ascertain whether a man is in the enjoyment of [any] of these rights, and then, as a consequence of finding that he is in the enjoyment of it, to deprive him of it, is doing indirectly just what is forbidden to be done directly, and reduces the constitutional provision to a nullity." Wynehamer v. People, 13 N. Y. 378, 420 (1856). 765 object lesson in the explicit attention to detail that is no less essential to the intellectual discipline of substantive due process review than an understanding of the basic need to account for the two sides in the controversy and to respect legislation within the zone of reasonableness. III My understanding of unenumerated rights in the wake of the Poe dissent and subsequent cases avoids the absolutist failing of many older cases without embracing the opposite pole of equating reasonableness with past practice described at a very specific level. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S., at 847-849. That understanding begins with a concept of "ordered liberty," Poe, 367 U. S., at 549 (Harlan, J.); see also Griswold, 381 U. S., at 500, comprising a continuum of rights to be free from "arbitrary impositions and purposeless restraints," Poe, 367 U. S., at 543 (Harlan, J., dissenting). "Due Process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could 766 SOUTER, J., concurring in judgment serve as a substitute, in this area, for judgment and restraint." Id., at 542. See also Moore v. East Cleveland, 431 U. S. 494 , 503 (1977) (plurality opinion of Powell, J.) ("Appropriate limits on substantive due process come not from drawing arbitrary lines but rather from careful 'respect for the teachings of history [and] solid recognition of the basic values that underlie our society''') (quoting Griswold, supra, at 501 (Harlan, J., concurring)) . After the Poe dissent, as before it, this enforceable concept of liberty would bar statutory impositions even at relatively trivial levels when governmental restraints are undeniably irrational as unsupported by any imaginable rationale. See, e. g., United States v. Carolene Products Co., 304 U. S. 144 , 152 (1938) (economic legislation "not ... unconstitutional unless ... facts ... preclude the assumption that it rests upon some rational basis"); see also Poe, supra, at 545, 548 (Harlan, J., dissenting) (referring to usual "presumption of constitutionality" and ordinary test "going merely to the plausibility of [a statute's] underlying rationale"). Such instances are suitably rare. The claims of arbitrariness that mark almost all instances of unenumerated substantive rights are those resting on "certain interests requir[ing] particularly careful scrutiny of the state needs asserted to justify their abridgment[,] [c]f. Skinner v. Oklahoma [ex rel. Williamson, 316 U. S. 535 (1942)]; Bolling v. Sharpe, [347 U. S. 497 (1954)]," id., at 543; that is, interests in liberty sufficiently important to be judged "fundamental," id., at 548; see also id., at 541 (citing Corfield v. Coryell, 4 Wash. G. G. 371, 380 (GG ED Pa. 1825)). In the face of an interest this powerful a State may not rest on threshold rationality or a presumption of constitutionality, but may prevail only on the ground of an interest sufficiently compelling to place within the realm of the reasonable a refusal to recognize the individual right asserted. Poe, supra, at 548 (Harlan, J., dissenting) (an "enactment involv[ing] ... a most fundamental as- 767 pect of 'liberty' ... [is] subjec[t] to 'strict scrutiny''') (quoting Skinner v. Oklahoma ex rel. Williamson, 316 U. S., at 541);8 Reno v. Flores, 507 U. S. 292 , 301-302 (1993) (reaffirming that due process "forbids the government to infringe certain 'fundamental' liberty interests ... unless the infringement is narrowly tailored to serve a compelling state interest").9 This approach calls for a court to assess the relative "weights" or dignities of the contending interests, and to this extent the judicial method is familiar to the common law. Common-law method is subject, however, to two important constraints in the hands of a court engaged in substantive due process review. First, such a court is bound to confine the values that it recognizes to those truly deserving constitutional stature, either to those expressed in constitutional text, or those exemplified by "the traditions from which [the Nation] developed," or revealed by contrast with "the traditions from which it broke." Poe, 367 U. S., at 542 (Harlan, J., dissenting). "'We may not draw on our merely personal and private notions and disregard the limits ... derived from 8We have made it plain, of course, that not every law that incidentally makes it somewhat harder to exercise a fundamental liberty must be justified by a compelling counterinterest. See Casey, 505 U. S., at 872-876 (joint opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.); Carey v. Population Services Int'l, 431 U. S. 678 , 685-686 (1977) ("[A]n individual's [constitutionally protected] liberty to make choices regarding contraception does not ... automatically invalidate every state regulation in this area. The business of manufacturing and selling contraceptives may be regulated in ways that do not [even] infringe protected individual choices"). But a state law that creates a "substantial obstacle," Casey, supra, at 877, for the exercise of a fundamental liberty interest requires a commensurably substantial justification in order to place the legislation within the realm of the reasonable. 9 Justice Harlan thus recognized just what the Court today assumes, that by insisting on a threshold requirement that the interest (or, as the Court puts it, the right) be fundamental before anything more than rational basis justification is required, the Court ensures that not every case will require the "complex balancing" that heightened scrutiny entails. See ante, at 722. 768 SOUTER, J., concurring in judgment considerations that are fused in the whole nature of our judicial process ... [,] considerations deeply rooted in reason and in the compelling traditions of the legal profession.'" Id., at 544-545 (quoting Rochin v. California, 342 U. S. 165 , 170171 (1952)); see also Palko v. Connecticut, 302 U. S., at 325 (looking to " 'principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental''') (quoting Snyder v. Massachusetts, 291 U. S. 97 , 105 (1934)). The second constraint, again, simply reflects the fact that constitutional review, not judicial lawmaking, is a court's business here. The weighing or valuing of contending interests in this sphere is only the first step, forming the basis for determining whether the statute in question falls inside or outside the zone of what is reasonable in the way it resolves the conflict between the interests of state and individual. See, e. g., Poe, supra, at 553 (Harlan, J., dissenting); Youngberg v. Romeo, 457 U. S. 307 , 320-321 (1982). It is no justification for judicial intervention merely to identify a reasonable resolution of contending values that differs from the terms of the legislation under review. It is only when the legislation's justifying principle, critically valued, is so far from being commensurate with the individual interest as to be arbitrarily or pointlessly applied that the statute must give way. Only if this standard points against the statute can the individual claimant be said to have a constitutional right. See Cruzan v. Director, Mo. Dept. of Health, 497 U. S., at 279 ("[D]etermining that a person has a 'liberty interest' under the Due Process Clause does not end the inquiry; 'whether [the individual's] constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests''') (quoting Youngberg v. Romeo, supra, at 321).10 10 Our cases have used various terms to refer to fundamental liberty interests, see, e. g., Poe, 367 U. S., at 545 (Harlan, J., dissenting) (" 'basic liberty''') (quoting Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 , 769 The Poe dissent thus reminds us of the nature of review for reasonableness or arbitrariness and the limitations entailed by it. But the opinion cautions against the repetition of past error in another way as well, more by its example than by any particular statement of constitutional method: it reminds us that the process of substantive review by reasoned judgment, Poe, 367 U. S., at 542-544, is one of close criticism going to the details of the opposing interests and to their relationships with the historically recognized principles that lend them weight or value. Although the Poe dissent disclaims the possibility of any general formula for due process analysis (beyond the basic analytic structure just described), see id., at 542, 544, Justice Harlan of course assumed that adjudication under the Due Process Clauses is like any other instance of judgment dependent on common-law method, being more or less persuasive according to the usual canons of critical discourse. See also Casey, 505 U. S., at 849 ("The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment"). When identifying and assessing the competing interests of liberty and authority, for ex- 541 (1942)); Poe, supra, at 543 (Harlan, J., dissenting) ("certain interests" must bring "particularly careful scrutiny"); Casey, 505 U. S., at 851 ("protected liberty"); Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261 , 278 (1990) ("constitutionally protected liberty interest"); Youngberg v. Romeo, 457 U. S., at 315 ("liberty interests"), and at times we have also called such an interest a "right" even before balancing it against the government's interest, see, e. g., Roe v. Wade, 410 U. S. 113 , 153-154 (1973); Carey v. Population Services Int'l, supra, at 686, 688, and n. 5; Poe, supra, at 541 ("rights 'which are ... fundamental''') (quoting Cor field v. Coryell, 4 Wash. C. C. 371, 380 (CC ED Pa. 1825)). Precision in terminology, however, favors reserving the label "right" for instances in which the individual's liberty interest actually trumps the government's countervailing interests; only then does the individual have anything legally enforceable as against the State's attempt at regulation. 770 SOUTER, J., concurring in judgment ample, the breadth of expression that a litigant or a judge selects in stating the competing principles will have much to do with the outcome and may be dispositive. As in any process of rational argumentation, we recognize that when a generally accepted principle is challenged, the broader the attack the less likely it is to succeed. The principle's defenders will, indeed, often try to characterize any challenge as just such a broadside, perhaps by couching the defense as if a broadside attack had occurred. So the Court in Dred Scott treated prohibition of slavery in the Territories as nothing less than a general assault on the concept of property. See 19 How., at 449-452. Just as results in substantive due process cases are tied to the selections of statements of the competing interests, the acceptability of the results is a function of the good reasons for the selections made. It is here that the value of common-law method becomes apparent, for the usual thinking of the common law is suspicious of the all-or-nothing analysis that tends to produce legal petrification instead of an evolving boundary between the domains of old principles. Common-law method tends to pay respect instead to detail, seeking to understand old principles afresh by new examples and new counterexamples. The "tradition is a living thing," Poe, 367 U. S., at 542 (Harlan, J., dissenting), albeit one that moves by moderate steps carefully taken. "The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take its place in relation to what went before and further [cut] a channel for what is to come." Id., at 544 (Harlan, J., dissenting) (internal quotation marks omitted). Exact analysis and characterization of any due process claim are critical to the method and to the result. So, in Poe, Justice Harlan viewed it as essential to the plaintiffs' claimed right to use contraceptives that they sought to do so within the privacy of the marital bedroom. This detail in fact served two crucial and complementary 771 functions, and provides a lesson for today. It rescued the individuals' claim from a breadth that would have threatened all state regulation of contraception or intimate relations; extramarital intimacy, no matter how privately practiced, was outside the scope of the right Justice Harlan would have recognized in that case. See id., at 552-553. It was, moreover, this same restriction that allowed the interest to be valued as an aspect of a broader liberty to be free from all unreasonable intrusions into the privacy of the home and the family life within it, a liberty exemplified in constitutional provisions such as the Third and Fourth Amendments, in prior decisions of the Court involving unreasonable intrusions into the home and family life, and in the then-prevailing status of marriage as the sole lawful locus of intimate relations. Id., at 548, 551.11 The individuals' interest was therefore at its peak in Poe, because it was supported by a principle that distinguished of its own force between areas in which government traditionally had regulated (sexual relations outside of marriage) and those in which it had not (private marital intimacies), and thus was broad enough to cover the claim at hand without being so broad as to be shotthrough by exceptions. 11 Thus, as the Poe dissent illustrates, the task of determining whether the concrete right claimed by an individual in a particular case falls within the ambit of a more generalized protected liberty requires explicit analysis when what the individual wants to do could arguably be characterized as belonging to different strands of our legal tradition requiring different degrees of constitutional scrutiny. See also Tribe & Dorf, Levels of Generality in the Definition of Rights, 57 U. Chi. L. Rev. 1057, 1091 (1990) (abortion might conceivably be assimilated either to the tradition regarding women's reproductive freedom in general, which places a substantial burden of justification on the State, or to the tradition regarding protection of fetuses, as embodied in laws criminalizing feticide by someone other than the mother, which generally requires only rationality on the part of the State). Selecting among such competing characterizations demands reasoned judgment about which broader principle, as exemplified in the concrete privileges and prohibitions embodied in our legal tradition, best fits the particular claim asserted in a particular case. 772 SOUTER, J., concurring in judgment On the other side of the balance, the State's interest in Poe was not fairly characterized simply as preserving sexual morality, or doing so by regulating contraceptive devices. Just as some of the earlier cases went astray by speaking without nuance of individual interests in property or autonomy to contract for labor, so the State's asserted interest in Poe was not immune to distinctions turning (at least potentially) on the precise purpose being pursued and the collateral consequences of the means chosen, see id., at 547-548. It was assumed that the State might legitimately enforce limits on the use of contraceptives through laws regulating divorce and annulment, or even through its tax policy, ibid., but not necessarily be justified in criminalizing the same practice in the marital bedroom, which would entail the consequence of authorizing state enquiry into the intimate relations of a married couple who chose to close their door, id., at 548-549. See also Casey, 505 U. S., at 869 (strength of State's interest in potential life varies depending on precise context and character of regulation pursuing that interest). The same insistence on exactitude lies behind questions, in current terminology, about the proper level of generality at which to analyze claims and counterclaims, and the demand for fitness and proper tailoring of a restrictive statute is just another way of testing the legitimacy of the generality at which the government sets up its justification.12 We may 12 The dual dimensions of the strength and the fitness of the government's interest are succinctly captured in the so-called "compelling interest test," under which regulations that substantially burden a constitutionally protected (or "fundamental") liberty may be sustained only if "narrowly tailored to serve a compelling state interest," Reno v. Flores, 507 U. S. 292 , 302 (1993); see also, e. g., Roe v. Wade, 410 U. S., at 155; Carey v. Population Services Int'l, 431 U. S., at 686. How compelling the interest and how narrow the tailoring must be will depend, of course, not only on the substantiality of the individual's own liberty interest, but also on the extent of the burden placed upon it, see Casey, 505 U. S., at 871-874 (opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.); Carey, supra, at 686. 773 therefore classify Justice Harlan's example of proper analysis in any of these ways: as applying concepts of normal critical reasoning, as pointing to the need to attend to the levels of generality at which countervailing interests are stated, or as examining the concrete application of principles for fitness with their own ostensible justifications. But whatever the categories in which we place the dissent's example, it stands in marked contrast to earlier cases whose reasoning was marked by comparatively less discrimination, and it points to the importance of evaluating the claims of the parties now before us with comparable detail. For here we are faced with an individual claim not to a right on the part of just anyone to help anyone else commit suicide under any circumstances, but to the right of a narrow class to help others also in a narrow class under a set of limited circumstances. And the claimants are met with the State's assertion, among others, that rights of such narrow scope cannot be recognized without jeopardy to individuals whom the State may concededly protect through its regulations. IV A Respondents claim that a patient facing imminent death, who anticipates physical suffering and indignity, and is capable of responsible and voluntary choice, should have a right to a physician's assistance in providing counsel and drugs to be administered by the patient to end life promptly. Complaint , 3.1. They accordingly claim that a physician must have the corresponding right to provide such aid, contrary to the provisions of Wash. Rev. Code § 9A.36.060 (1994). I do not understand the argument to rest on any assumption that rights either to suicide or to assistance in committing it are historically based as such. Respondents, rather, acknowledge the prohibition of each historically, but rely on the fact that to a substantial extent the State has repudiated that history. The result of this, respondents say, is to open 774 SOUTER, J., concurring in judgment the door to claims of such a patient to be accorded one of the options open to those with different, traditionally cognizable claims to autonomy in deciding how their bodies and minds should be treated. They seek the option to obtain the services of a physician to give them the benefit of advice and medical help, which is said to enjoy a tradition so strong and so devoid of specifically countervailing state concern that denial of a physician's help in these circumstances is arbitrary when physicians are generally free to advise and aid those who exercise other rights to bodily autonomy. 1 The dominant western legal codes long condemned suicide and treated either its attempt or successful accomplishment as a crime, the one subjecting the individual to penalties, the other penalizing his survivors by designating the suicide's property as forfeited to the government. See 4 W. Blackstone, Commentaries *188-*189 (commenting that English law considered suicide to be "ranked ... among the highest crimes" and deemed persuading another to commit suicide to be murder); see generally Marzen, O'Dowd, Crone, & Balch, Suicide: A Constitutional Right?, 24 Duquesne L. Rev. 1, 56-63 (1985). While suicide itself has generally not been considered a punishable crime in the United States, largely because the common-law punishment of forfeiture was rejected as improperly penalizing an innocent family, see id., at 98-99, most States have consistently punished the act of assisting a suicide as either a common-law or statutory crime and some continue to view suicide as an unpunishable crime. See generally id., at 67-100, 148-242.13 Criminal prohibi- 13Washington and New York are among the minority of States to have criminalized attempted suicide, though neither State still does so. See Brief for Members of the New York and Washington State Legislatures as Amicus Curiae 15, n. 8 (listing state statutes). The common law governed New York as a Colony and the New York Constitution of 1777 recognized the common law, N. Y. Const. of 1777, Art. XXXV, and the state legislature recognized common-law crimes by statute in 1788. See Act of 775 tions on such assistance remain widespread, as exemplified in the Washington statute in question here.14 The principal significance of this history in the State of Washington, according to respondents, lies in its repudiation Feb. 21,1788, ch. 37, §2, 1788 N. Y. Laws 664 (codified at 2 N. Y. Laws 73 (Greenleaf 1792)). In 1828, New York changed the common-law offense of assisting suicide from murder to manslaughter in the first degree. See 2 N. Y. Rev. Stat. pt. 4, ch. 1, tit. 2, art. 1, § 7, p. 661 (1829). In 1881, New York adopted a new penal code making attempted suicide a crime punishable by two years in prison, a fine, or both, and retaining the criminal prohibition against assisting suicide as manslaughter in the first degree. Act of July 26, 1881, ch. 676, §§ 172-178, 1881 N. Y. Laws (3 Penal Code), pp. 42-43 (codified at 4 N. Y. Consolidated Laws, Penal Law §§ 23002306, pp. 2809-2810 (1909)). In 1919, New York repealed the statutory provision making attempted suicide a crime. See Act of May 5, 1919, ch. 414, § 1, 1919 N. Y. Laws 1193. The 1937 New York Report of the Law Revision Commission found that the history of the ban on assisting suicide was "traceable into the ancient common law when a suicide or felo de se was guilty of crime punishable by forfeiture of his goods and chattels." State of New York, Report of the Law Revision Commission for 1937, p. 830. The report stated that since New York had removed "all stigma [of suicide] as a crime" and that "[s]ince liability as an accessory could no longer hinge upon the crime of a principal, it was necessary to define it as a substantive offense." Id., at 831. In 1965, New York revised its penal law, providing that a "person is guilty of manslaughter in the second degree when ... he intentionally causes or aids another person to commit suicide." Penal Law, ch. 1030, 1965 N. Y. Laws 2387 (codified at N. Y. Penal Law § 125.15(3) (McKinney 1975)). Washington's first territorial legislature designated assisting another "in the commission of self-murder" to be manslaughter, see Act of Apr. 28, 1854, § 17, 1854 Wash. Laws 78, and reenacted the provision in 1869 and 1873, see Act of Dec. 2, 1869, § 17, 1869 Wash. Laws 201; Act of Nov. 10, 1873, § 19, 1873 Wash. Laws 184 (codified at Wash. Code § 794 (1881)). In 1909, the state legislature enacted a law based on the 1881 New York law and a similar one enacted in Minnesota, see Marzen, O'Dowd, Crone, & Balch, 24 Duquesne L. Rev., at 206, making attempted suicide a crime punishable by two years in prison or a fine, and retaining the criminal prohibition against assisting suicide, designating it manslaughter. See Criminal Code, ch. 249, §§ 133-137, 1909 Wash. Laws, 11th Sess., 890, 929 (codified at Remington & Ballinger's Wash. Code §§ 2385-2389 [Footnote 14 is on p. 776J 776 SOUTER, J., concurring in judgment of the old tradition to the extent of eliminating the criminal suicide prohibitions. Respondents do not argue that the State's decision goes further, to imply that the State has repudiated any legitimate claim to discourage suicide or to limit its encouragement. The reasons for the decriminalization, after all, may have had more to do with difficulties of law enforcement than with a shift in the value ascribed to (1910)). In 1975, the Washington Legislature repealed these provisions, see Wash. Crim. Code, 1975, ch. 260, § 9A.92.010 (213-217), 1975 Wash. Laws 817, 858, 866, and enacted the ban on assisting suicide at issue in this case, see Wash. Crim. Code, 1975, ch. 260, § 9A.36.060, 1975 Wash. Laws 817, 836, codified at Rev. Wash. Code § 9A.36.060 (1977). The decriminalization of attempted suicide reflected the view that a person compelled to attempt it should not be punished if the attempt proved unsuccessful. See Compassion in Dying v. Washington, 850 F. Supp. 1454, 1464, n. 9 (WD Wash. 1994) (citing Legislative Council Judiciary Committee, Report on the Revised Washington Criminal Code 153 (Dec. 3, 1970). 14 Numerous States have enacted statutes prohibiting assisting a suicide. See, e. g., Alaska Stat. Ann. § 11.41.120(a)(2) (1996); Ariz. Rev. Stat. Ann. § 13-1103(A)(3) (Supp. 1996-1997); Ark. Code Ann. § 5-10-104(a)(2) (1993); Cal. Penal Code Ann. §401 (West 1988); Colo. Rev. Stat. § 18-3-104(1)(b) (Supp. 1996); Conn. Gen. Stat. § 53a-56(a)(2) (1997); Del. Code Ann., Tit. 11, § 645 (1995); Fla. Stat. § 782.08 (1991); Ga. Code Ann. § 16-5-5(b) (1996); Haw. Rev. Stat. § 707-702(1)(b) (1993); Ill. Compo Stat., ch. 720, § 5/12-31 (1993); Ind. Code §§35-42-1-2 to 35-42-1-2.5 (1994 and Supp. 1996); Iowa Code Ann. § 707 A.2 (West Supp. 1997); Kan. Stat. Ann. § 21-3406 (1995); Ky. Rev. Stat. Ann. §216.302 (Michie 1994); La. Rev. Stat. Ann. § 14:32.12 (West Supp. 1997); Me. Rev. Stat. Ann., Tit. 17-A, § 204 (1983); Mich. Compo Laws Ann. § 752.1027 (West Supp. 1997-1998); Minn. Stat. § 609.215 (1996); Miss. Code Ann. § 97-3-49 (1994); Mo. Rev. Stat. § 565.023.1(2) (1994); Mont. Code Ann. §45-5-105 (1995); Neb. Rev. Stat. §28-307 (1995); N. H. Rev. Stat. Ann. §630:4 (1996); N. J. Stat. Ann. §2C:11-6 (West 1995); N. M. Stat. Ann. § 30-2-4 (1996); N. Y. Penal Law § 120.30 (McKinney 1987); N. D. Cent. Code § 12.1-16-04 (Supp. 1995); Okla. Stat., Tit. 21, §§813-815 (1983); Ore. Rev. Stat. § 163.125(1)(b) (1991); Pa. Stat. Ann., Tit. 18, § 2505 (Purdon 1983); R. 1. Gen. Laws §§ 11-60-1 through 11-60-5 (Supp. 1996); S. D. Codified Laws §22-16-37 (1988); Tenn. Code Ann. §39-13-216 (Supp. 1996); Tex. Penal Code Ann. § 22.08 (1994); Wash. Rev. Code § 9A.36.060 (1994); Wis. Stat. § 940.12 (1993-1994). See also P. R. Laws Ann., Tit. 33, § 4009 (1984). 777 life in various circumstances or in the perceived legitimacy of taking one's own. See, e. g., Kamisar, Physician-Assisted Suicide: The Last Bridge to Active Voluntary Euthanasia, in Euthanasia Examined 225, 229 (J. Keown ed. 1995); CeloCruz, Aid-in-Dying: Should We Decriminalize Physician-Assisted Suicide and Physician-Committed Euthanasia?, 18 Am. J. L. & Med. 369, 375 (1992); Marzen, O'Dowd, Crone, & Balch, 24 Duquesne L. Rev., at 98-99. Thus it may indeed make sense for the State to take its hands off suicide as such, while continuing to prohibit the sort of assistance that would make its commission easier. See, e. g., American Law Institute, Model Penal Code § 210.5, Comment 5 (1980). Decriminalization does not, then, imply the existence of a constitutionalliberty interest in suicide as such; it simply opens the door to the assertion of a cognizable liberty interest in bodily integrity and associated medical care that would otherwise have been inapposite so long as suicide, as well as assisting a suicide, was a criminal offense. This liberty interest in bodily integrity was phrased in a general way by then-Judge Cardozo when he said, "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body" in relation to his medical needs. Schloendorff v. Society of New York Hospital, 211 N. Y. 125, 129, 105 N. E. 92, 93 (1914). The familiar examples of this right derive from the common law of battery and include the right to be free from medical invasions into the body, Cruzan v. Director, Mo. Dept. of Health, 497 U. S., at 269-279, as well as a right generally to resist enforced medication, see Washington v. Harper, 494 U. S. 210 , 221-222, 229 (1990). Thus "[i]t is settled now ... that the Constitution places limits on a State's right to interfere with a person's most basic decisions about ... bodily integrity." Casey, 505 U. S., at 849 (citations omitted); see also Cruzan, 497 U. S., at 278; id., at 288 (O'CONNOR, J., concurring); Washington v. Harper, supra, at 221-222; Winston v. Lee, 470 U. S. 753 , 761-762 (1985); Rochin v. California, 342 778 SOUTER, J., concurring in judgment u. S., at 172. Constitutional recognition of the right to bodily integrity underlies the assumed right, good against the State, to require physicians to terminate artificial life support, Cruzan, supra, at 279 ("[WJe assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition"), and the affirmative right to obtain medical intervention to cause abortion, see Casey, supra, at 857, 896; cf. Roe v. Wade, 410 U. S., at 153. It is, indeed, in the abortion cases that the most telling recognitions of the importance of bodily integrity and the concomitant tradition of medical assistance have occurred. In Roe v. Wade, the plaintiff contended that the Texas statute making it criminal for any person to "procure an abortion," id., at 117, for a pregnant woman was unconstitutional insofar as it prevented her from "terminat[ing] her pregnancy by an abortion 'performed by a competent, licensed physician, under safe, clinical conditions,'" id., at 120, and in striking down the statute we stressed the importance of the relationship between patient and physician, see id., at 153, 156. The analogies between the abortion cases and this one are several. Even though the State has a legitimate interest in discouraging abortion, see Casey, supra, at 871 (joint opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.); Roe, 410 U. S., at 162, the Court recognized a woman's right to a physician's counsel and care. Like the decision to commit suicide, the decision to abort potential life can be made irresponsibly and under the influence of others, and yet the Court has held in the abortion cases that physicians are fit assistants. Without physician assistance in abortion, the woman's right would have too often amounted to nothing more than a right to self-mutilation, and without a physician to assist in the suicide of the dying, the patient's right will often be confined to crude methods of causing death, most shocking and painful to the decedent's survivors. 779 There is, finally, one more reason for claiming that a physician's assistance here would fall within the accepted tradition of medical care in our society, and the abortion cases are only the most obvious illustration of the further point. While the Court has held that the performance of abortion procedures can be restricted to physicians, the Court's opinion in Roe recognized the doctors' role in yet another way. For, in the course of holding that the decision to perform an abortion called for a physician's assistance, the Court recognized that the good physician is not just a mechanic of the human body whose services have no bearing on a person's moral choices, but one who does more than treat symptoms, one who ministers to the patient. See id., at 153; see also Griswold v. Connecticut, 381 U. S., at 482 ("This law ... operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation"); see generally R. Cabot, Ether Day Address, Boston Medical and Surgical J. 287, 288 (1920). This idea of the physician as serving the whole person is a source of the high value traditionally placed on the medical relationship. Its value is surely as apparent here as in the abortion cases, for just as the decision about abortion is not directed to correcting some pathology, so the decision in which a dying patient seeks help is not so limited. The patients here sought not only an end to pain (which they might have had, although perhaps at the price of stupor) but an end to their short remaining lives with a dignity that they believed would be denied them by powerful pain medication, as well as by their consciousness of dependency and helplessness as they approached death. In that period when the end is imminent, they said, the decision to end life is closest to decisions that are generally accepted as proper instances of exercising autonomy over one's own body, instances recognized under the Constitution and the State's own law, instances in which the help of physicians is accepted as falling within the traditional norm. 780 SOUTER, J., concurring in judgment Respondents argue that the State has in fact already recognized enough evolving examples of this tradition of patient care to demonstrate the strength of their claim. Washington, like other States, authorizes physicians to withdraw life-sustaining medical treatment and artificially delivered food and water from patients who request it, even though such actions will hasten death. See Wash. Rev. Code §§ 70.122.110, 70.122.051 (1994); see generally Notes to Uniform Rights of the Terminally III Act, 9B U. L. A. 168-169 (Supp. 1997) (listing state statutes). The State permits physicians to alleviate anxiety and discomfort when withdrawing artificial life-supporting devices by administering medication that will hasten death even further. And it generally permits physicians to administer medication to patients in terminal conditions when the primary intent is to alleviate pain, even when the medication is so powerful as to hasten death and the patient chooses to receive it with that understanding. See Wash. Rev. Code § 70.122.010 (1994); see generally Rousseau, Terminal Sedation in the Care of Dying Patients, 156 Archives of Internal Medicine 1785 (1996); Truog, Berde, Mitchell, & Grier, Barbiturates in the Care of the Terminally Ill, 327 New Eng. J. Med. 1678 (1992).15 15 Other States have enacted similar provisions, some categorically authorizing such pain treatment, see, e. g., Ind. Code § 35-42-1-2.5(a)(1) (Supp. 1996) (ban on assisted suicide does not apply to licensed health-care provider who administers or dispenses medications or procedures to relieve pain or discomfort, even if such medications or procedures hasten death, unless provider intends to cause death); Iowa Code Ann. § 707 A.3.1 (West Supp. 1997) (same); Ky. Rev. Stat. Ann. § 216.304 (Michie 1997) (same); Minn. Stat. Ann. § 609.215(3) (West Supp. 1997) (same); Ohio Rev. Code Ann. §§2133.11(A)(6), 2133.12(E)(1) (1994); R. 1. Gen. Laws § 11-60-4 (Supp. 1996) (same); S. D. Codified Laws §22-16-37.1 (Supp. 1997); see Mich. Compo Laws Ann. § 752.1027(3) (West Supp. 1997); Tenn. Code Ann. § 39-13-216(b)(2) (1996); others permit patients to sign health-care directives in which they authorize pain treatment even if it hastens death. See, e. g., Me. Rev. Stat. Ann., Tit. 18-A, §§ 5-804, 5-809 (1996); N. M. Stat. Ann. §§24-7A-4, 24-7A-9 (Supp. 1995); S. C. Code Ann. §62-5-504 (Supp. 1996); Va. Code Ann. §§ 54.1-2984, 4.1-2988 (1994). 781 2 The argument supporting respondents' position thus progresses through three steps of increasing forcefulness. First, it emphasizes the decriminalization of suicide. Reliance on this fact is sanctioned under the standard that looks not only to the tradition retained, but to society's occasional choices to reject traditions of the legal past. See Poe v. Ull man, 367 U. S., at 542 (Harlan, J., dissenting). While the common law prohibited both suicide and aiding a suicide, with the prohibition on aiding largely justified by the primary prohibition on self-inflicted death itself, see, e. g., American Law Institute, Model Penal Code § 210.5, Comment 1, at 92-93, and n. 7, the State's rejection of the traditional treatment of the one leaves the criminality of the other open to questioning that previously would not have been appropriate. The second step in the argument is to emphasize that the State's own act of decriminalization gives a freedom of choice much like the individual's option in recognized instances of bodily autonomy. One of these, abortion, is a legal right to choose in spite of the interest a State may legitimately invoke in discouraging the practice, just as suicide is now subject to choice, despite a state interest in discouraging it. The third step is to emphasize that respondents claim a right to assistance not on the basis of some broad principle that would be subject to exceptions if that continuing interest of the State's in discouraging suicide were to be recognized at all. Respondents base their claim on the traditional right to medical care and counsel, subject to the limiting conditions of informed, responsible choice when death is imminent, conditions that support a strong analogy to rights of care in other situations in which medical counsel and assistance have been available as a matter of course. There can be no stronger claim to a physician's assistance than at the time when death is imminent, a moral judgment implied by the State's own recognition of the legitimacy of medical procedures necessarily hastening the moment of impending death. 782 SOUTER, J., concurring in judgment In my judgment, the importance of the individual interest here, as within that class of "certain interests" demanding careful scrutiny of the State's contrary claim, see Poe, supra, at 543, cannot be gainsaid. Whether that interest might in some circumstances, or at some time, be seen as "fundamental" to the degree entitled to prevail is not, however, a conclusion that I need draw here, for I am satisfied that the State's interests described in the following section are sufficiently serious to defeat the present claim that its law is arbitrary or purposeless. B The State has put forward several interests to justify the Washington law as applied to physicians treating terminally ill patients, even those competent to make responsible choices: protecting life generally, Brief for Petitioners 33, discouraging suicide even if knowing and voluntary, id., at 37-38, and protecting terminally ill patients from involuntary suicide and euthanasia, both voluntary and nonvoluntary, id., at 34-35. It is not necessary to discuss the exact strengths of the first two claims of justification in the present circumstances, for the third is dispositive for me. That third justification is different from the first two, for it addresses specific features of respondents' claim, and it opposes that claim not with a moral judgment contrary to respondents', but with a recognized state interest in the protection of nonresponsible individuals and those who do not stand in relation either to death or to their physicians as do the patients whom respondents describe. The State claims interests in protecting patients from mistakenly and involuntarily deciding to end their lives, and in guarding against both voluntary and involuntaryeuthanasia. Leaving aside any difficulties in coming to a clear concept of imminent death, mistaken decisions may result from inadequate palliative care or a terminal prognosis that turns out to be error; coercion and abuse may stem from the large medical bills that family members cannot bear 783 or unreimbursed hospitals decline to shoulder. Voluntary and involuntary euthanasia may result once doctors are authorized to prescribe lethal medication in the first instance, for they might find it pointless to distinguish between patients who administer their own fatal drugs and those who wish not to, and their compassion for those who suffer may obscure the distinction between those who ask for death and those who may be unable to request it. The argument is that a progression would occur, obscuring the line between the ill and the dying, and between the responsible and the unduly influenced, until ultimately doctors and perhaps others would abuse a limited freedom to aid suicides by yielding to the impulse to end another's suffering under conditions going beyond the narrow limits the respondents propose. The State thus argues, essentially, that respondents' claim is not as narrow as it sounds, simply because no recognition of the interest they assert could be limited to vindicating those interests and affecting no others. The State says that the claim, in practical effect, would entail consequences that the State could, without doubt, legitimately act to prevent. The mere assertion that the terminally sick might be pressured into suicide decisions by close friends and family members would not alone be very telling. Of course that is possible, not only because the costs of care might be more than family members could bear but simply because they might naturally wish to see an end of suffering for someone they love. But one of the points of restricting any right of assistance to physicians would be to condition the right on an exercise of judgment by someone qualified to assess the patient's responsible capacity and detect the influence of those outside the medical relationship. The State, however, goes further, to argue that dependence on the vigilance of physicians will not be enough. First, the lines proposed here (particularly the requirement of a knowing and voluntary decision by the patient) would be more difficult to draw than the lines that have limited 784 SOUTER, J., concurring in judgment other recently recognized due process rights. Limiting a State from prosecuting use of artificial contraceptives by married couples posed no practical threat to the State's capacity to regulate contraceptives in other ways that were assumed at the time of Poe to be legitimate; the trimester measurements of Roe and the viability determination of Casey were easy to make with a real degree of certainty. But the knowing and responsible mind is harder to assess.16 Second, this difficulty could become the greater by combining with another fact within the realm of plausibility, that physicians simply would not be assiduous to preserve the line. They have compassion, and those who would be willing to assist in suicide at all might be the most susceptible to the wishes of a patient, whether the patient was technically quite responsible or not. Physicians, and their hospitals, have their own financial incentives, too, in this new age of managed care. Whether acting from compassion or under 16While it is also more difficult to assess in cases involving limitations on life incidental to pain medication and the disconnection of artificial life support, there are reasons to justify a lesser concern with the punctilio of responsibility in these instances. The purpose of requesting and giving the medication is presumably not to cause death but to relieve the pain so that the State's interest in preserving life is not unequivocally implicated by the practice; and the importance of pain relief is so clear that there is less likelihood that relieving pain would run counter to what a responsible patient would choose, even with the consequences for life expectancy. As for ending artificial life support, the State again may see its interest in preserving life as weaker here than in the general case just because artificiallife support preserves life when nature would not; and, because such life support is a frequently offensive bodily intrusion, there is a lesser reason to fear that a decision to remove it would not be the choice of one fully responsible. Where, however, a physician writes a prescription to equip a patient to end life, the prescription is written to serve an affirmative intent to die (even though the physician need not and probably does not characteristically have an intent that the patient die but only that the patient be equipped to make the decision). The patient's responsibility and competence are therefore crucial when the physician is presented with the request. 785 some other influence, a physician who would provide a drug for a patient to administer might well go the further step of administering the drug himself; so, the barrier between assisted suicide and euthanasia could become porous, and the line between voluntary and involuntary euthanasia as wellP The case for the slippery slope is fairly made out here, not because recognizing one due process right would leave a court with no principled basis to avoid recognizing another, but because there is a plausible case that the right claimed would not be readily containable by reference to facts about the mind that are matters of difficult judgment, or by gatekeepers who are subject to temptation, noble or not. Respondents propose an answer to all this, the answer of state regulation with teeth. Legislation proposed in several States, for example, would authorize physician-assisted suicide but require two qualified physicians to confirm the patient's diagnosis, prognosis, and competence; and would mandate that the patient make repeated requests witnessed by at least two others over a specified timespan; and would impose reporting requirements and criminal penalties for various acts of coercion. See App. to Brief for State Legislators as Amici Curiae la-2a. But at least at this moment there are reasons for caution in predicting the effectiveness of the teeth proposed. Respondents' proposals, as it turns out, sound much like the guidelines now in place in the Netherlands, the only place where experience with physician-assisted suicide and euthanasia has yielded empirical evidence about how such regulations might affect actual practice. Dutch physicians must engage in consultation before proceeding, and must decide whether the patient's decision is voluntary, well considered, and stable, whether the request to die is enduring and made more than once, and whether the patient's future will involve 17 Again, the same can be said about life support and shortening life to kill pain, but the calculus may be viewed as different in these instances, as noted just above. 786 SOUTER, J., concurring in judgment unacceptable suffering. See C. Gomez, Regulating Death 40-43 (1991). There is, however, a substantial dispute today about what the Dutch experience shows. Some commentators marshall evidence that the Dutch guidelines have in practice failed to protect patients from involuntary euthanasia and have been violated with impunity. See, e. g., H. Hendin, Seduced By Death 75-84 (1997) (noting many cases in which decisions intended to end the life of a fully competent patient were made without a request from the patient and without consulting the patient); Keown, Euthanasia in the Netherlands: Sliding Down the Slippery Slope?, in Euthanasia Examined 261, 289 (J. Keown ed. 1995) (guidelines have "proved signally ineffectual; non-voluntary euthanasia is now widely practised and increasingly condoned in the Netherlands"); Gomez, supra, at 104-113. This evidence is contested. See, e. g., R. Epstein, Mortal Peril 322 (1997) ("Dutch physicians are not euthanasia enthusiasts and they are slow to practice it in individual cases"); R. Posner, Aging and Old Age 242, and n. 23 (1995) (noting fear of "doctors' rushing patients to their death" in the Netherlands "has not been substantiated and does not appear realistic"); Van der Wal, Van Eijk, Leenen, & Spreeuwenberg, Euthanasia and Assisted Suicide, 2, Do Dutch Family Doctors Act Prudently?, 9 Family Practice 135 (1992) (finding no serious abuse in Dutch practice). The day may come when we can say with some assurance which side is right, but for now it is the substantiality of the factual disagreement, and the alternatives for resolving it, that matter. They are, for me, dispositive of the due process claim at this time. I take it that the basic concept of judicial review with its possible displacement of legislative judgment bars any finding that a legislature has acted arbitrarily when the following conditions are met: there is a serious factual controversy over the feasibility of recognizing the claimed right without at the same time making it impossible for the State to engage in an undoubtedly legitimate exercise of power; facts 787 necessary to resolve the controversy are not readily ascertainable through the judicial process; but they are more readily subject to discovery through legislative factfinding and experimentation. It is assumed in this case, and must be, that a State's interest in protecting those unable to make responsible decisions and those who make no decisions at all entitles the State to bar aid to any but a knowing and responsible person intending suicide, and to prohibit euthanasia. How, and how far, a State should act in that interest are judgments for the State, but the legitimacy of its action to deny a physician the option to aid any but the knowing and responsible is beyond question. The capacity of the State to protect the others if respondents were to prevail is, however, subject to some genuine question, underscored by the responsible disagreement over the basic facts of the Dutch experience. This factual controversy is not open to a judicial resolution with any substantial degree of assurance at this time. It is not, of course, that any controversy about the factual predicate of a due process claim disqualifies a court from resolving it. Courts can recognize captiousness, and most factual issues can be settled in a trial court. At this point, however, the factual issue at the heart of this case does not appear to be one of those. The principal enquiry at the moment is into the Dutch experience, and I question whether an independent front-line investigation into the facts of a foreign country's legal administration can be soundly undertaken through American courtroom litigation. While an extensive literature on any subject can raise the hopes for judicial understanding, the literature on this subject is only nascent. Since there is little experience directly bearing on the issue, the most that can be said is that whichever way the Court might rule today, events could overtake its assumptions, as experimentation in some jurisdictions confirmed or discredited the concerns about progression from assisted suicide to euthanasia. 788 SOUTER, J., concurring in judgment Legislatures, on the other hand, have superior opportunities to obtain the facts necessary for a judgment about the present controversy. Not only do they have more flexible mechanisms for factfinding than the Judiciary, but their mechanisms include the power to experiment, moving forward and pulling back as facts emerge within their own jurisdictions. There is, indeed, good reason to suppose that in the absence of a judgment for respondents here, just such experimentation will be attempted in some of the States. See, e. g., Ore. Rev. Stat. § 127.800 et seq. (Supp. 1996); App. to Brief for State Legislators as Amici Curiae 1a (listing proposed statutes). I do not decide here what the significance might be of legislative foot dragging in ascertaining the facts going to the State's argument that the right in question could not be confined as claimed. Sometimes a court may be bound to act regardless of the institutional preferability of the political branches as forums for addressing constitutional claims. See, e. g., Bolling v. Sharpe, 347 U. S. 497 (1954). Now, it is enough to say that our examination of legislative reasonableness should consider the fact that the Legislature of the State of Washington is no more obviously at fault than this Court is in being uncertain about what would happen if respondents prevailed today. We therefore have a clear question about which institution, a legislature or a court, is relatively more competent to deal with an emerging issue as to which facts currently unknown could be dispositive. The answer has to be, for the reasons already stated, that the legislative process is to be preferred. There is a closely related further reason as well. One must bear in mind that the nature of the right claimed, if recognized as one constitutionally required, would differ in no essential way from other constitutional rights guaranteed by enumeration or derived from some more definite textual source than "due process." An unenumerated right should not therefore be recognized, with the effect 789 of displacing the legislative ordering of things, without the assurance that its recognition would prove as durable as the recognition of those other rights differently derived. To recognize a right of lesser promise would simply create a constitutional regime too uncertain to bring with it the expectation of finality that is one of this Court's central obligations in making constitutional decisions. See Casey, 505 U. S., at 864-869. Legislatures, however, are not so constrained. The experimentation that should be out of the question in constitutional adjudication displacing legislative judgments is entirely proper, as well as highly desirable, when the legislative power addresses an emerging issue like assisted suicide. The Court should accordingly stay its hand to allow reasonable legislative consideration. While I do not decide for all time that respondents' claim should not be recognized, I acknowledge the legislative institutional competence as the better one to deal with that claim at this time. JUSTICE GINSBURG, concurring in the judgments.* I concur in the Court's judgments in these cases substantially for the reasons stated by JUSTICE O'CONNOR in her concurring opinion, ante, p. 736. JUSTICE BREYER, concurring in the judgments.t I believe that JUSTICE O'CONNOR'S views, which I share, have greater legal significance than the Court's opinion suggests. I join her separate opinion, except insofar as it joins the majority. And I concur in the judgments. I shall briefly explain how I differ from the Court. I agree with the Court in Vacco v. Quill, post, at 800-809, that the articulated state interests justify the distinction *[This opinion applies also to No. 95-1858, Vacco et al. v. Quill et al., post, p. 793.] t[This opinion applies also to No. 95-1858, Vacco et al. v. Quill et al., post, p. 793.] 790 BREYER, J., concurring in judgments drawn between physician assisted suicide and withdrawal of life support. I also agree with the Court that the critical question in both of the cases before us is whether "the 'liberty' specially protected by the Due Process Clause includes a right" of the sort that the respondents assert. Washington v. Glucksberg, ante, at 723. I do not agree, however, with the Court's formulation of that claimed "liberty" interest. The Court describes it as a "right to commit suicide with another's assistance." Ante, at 724. But I would not reject the respondents' claim without considering a different formulation, for which our legal tradition may provide greater support. That formulation would use words roughly like a "right to die with dignity." But irrespective of the exact words used, at its core would lie personal control over the manner of death, professional medical assistance, and the avoidance of unnecessary and severe physical suffering-combined. As JUSTICE SOUTER points out, ante, at 762-765 (opinion concurring in judgment), Justice Harlan's dissenting opinion in Poe v. Ullman, 367 U. S. 497 (1961), offers some support for such a claim. In that opinion, Justice Harlan referred to the "liberty" that the Fourteenth Amendment protects as including "a freedom from all substantial arbitrary impositions and purposeless restraints" and also as recognizing that "certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." Id., at 543. The "certain interests" to which Justice Harlan referred may well be similar (perhaps identical) to the rights, liberties, or interests that the Court today, as in the past, regards as "fundamental." Ante, at 720; see also Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992); Eisenstadt v. Baird, 405 U. S. 438 (1972); Griswold v. Connecticut, 381 U. S. 479 (1965); Rochin v. California, 342 U. S. 165 (1952); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942). 791 Justice Harlan concluded that marital privacy was such a "special interest." He found in the Constitution a right of "privacy of the home"-with the home, the bedroom, and "intimate details of the marital relation" at its heart-by examining the protection that the law had earlier provided for related, but not identical, interests described by such words as "privacy," "home," and "family." 367 U. S., at 548, 552; cf. Casey, supra, at 851. The respondents here essentially ask us to do the same. They argue that one can find a "right to die with dignity" by examining the protection the law has provided for related, but not identical, interests relating to personal dignity, medical treatment, and freedom from state-inflicted pain. See Ingraham v. Wright, 430 U. S. 651 (1977); Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261 (1990); Casey, supra. I do not believe, however, that this Court need or now should decide whether or a not such a right is "fundamental." That is because, in my view, the avoidance of severe physical pain (connected with death) would have to constitute an essential part of any successful claim and because, as JUSTICE O'CONNOR points out, the laws before us do not force a dying person to undergo that kind of pain. Ante, at 736-737 (concurring opinion). Rather, the laws of New York and of Washington do not prohibit doctors from providing patients with drugs sufficient to control pain despite the risk that those drugs themselves will kill. Cf. New York State Task Force on Life and the Law, When Death Is Sought: Assisted Suicide and Euthanasia in the Medical Context 163, n. 29 (May 1994). And under these circumstances the laws of New York and Washington would overcome any remaining significant interests and would be justified, regardless. Medical technology, we are repeatedly told, makes the administration of pain-relieving drugs sufficient, except for a very few individuals for whom the ineffectiveness of pain control medicines can mean not pain, but the need for seda- 792 BREYER, J., concurring in judgments tion which can end in a coma. Brief for National Hospice Organization 8; Brief for American Medical Association (AMA) et al. as Amici Curiae 6; see also Byock, Consciously Walking the Fine Line: Thoughts on a Hospice Response to Assisted Suicide and Euthanasia, 9 J. Palliative Care 25, 26 (1993); New York State Task Force, at 44, and n. 37. We are also told that there are many instances in which patients do not receive the palliative care that, in principle, is available, id., at 43-47; Brief for AMA as Amici Curiae 6; Brief for Choice in Dying, Inc., as Amici Curiae 20, but that is so for institutional reasons or inadequacies or obstacles, which would seem possible to overcome, and which do not include a prohibitive set of laws. Ante, at 736-737 (O'CONNOR, J., concurring); see also 2 House of Lords, Session 1993-1994 Report of Select Committee on Medical Ethics 113 (1994) (indicating that the number of palliative care centers in the United Kingdom, where physician assisted suicide is illegal, significantly exceeds that in the Netherlands, where such practices are legal). This legal circumstance means that the state laws before us do not infringe directly upon the (assumed) central interest (what I have called the core of the interest in dying with dignity) as, by way of contrast, the state anticontraceptive laws at issue in Poe did interfere with the central interest there at stake-by bringing the State's police powers to bear upon the marital bedroom. Were the legal circumstances different-for example, were state law to prevent the provision of palliative care, including the administration of drugs as needed to avoid pain at the end of life-then the law's impact upon serious and otherwise unavoidable physical pain (accompanying death) would be more directly at issue. And as JUSTICE O'CONNOR suggests, the Court might have to revisit its conclusions in these cases.

The Supreme Court ruled that Washington's prohibition on assisting suicide does not violate the Due Process Clause, as it is not a fundamental liberty interest protected by the clause. This decision considered the history of Anglo-American common law, which has punished or disapproved of assisting suicide for centuries, and the fact that almost all states still criminalize it. The Court also noted that recent reexaminations of such prohibitions have mostly resulted in reaffirmation.

Health Care

PLIVA, Inc. v. Mensing

https://supreme.justia.com/cases/federal/us/564/604/

OPINION OF THE COURT PLIVA, INC. V. MENSING 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NOS. 09-993, 09-1039, AND 09-1501 PLIVA, INC., et al., PETITIONERS 09–993 v. GLADYS MENSING ACTAVIS ELIZABETH, LLC, PETITIONER 09–1039   v. GLADYS MENSING ACTAVIS, INC., PETITIONER 09–1501   v. JULIE DEMAHY on writs of certiorari to the united states courts of appeals for the eighth and fifth circuits [June 23, 2011] Justice Thomas delivered the opinion of the Court, ex-cept as to Part III–B–2.*    These consolidated lawsuits involve state tort-law claims based on certain drug manufacturers’ alleged failure to provide adequate warning labels for generic metoclopramide. The question presented is whether federal drug regulations applicable to generic drug manufacturers directly conflict with, and thus pre-empt, these state-law claims. We hold that they do. I    Metoclopramide is a drug designed to speed the movement of food through the digestive system. The Food and Drug Administration (FDA) first approved metoclopramide tablets, under the brand name Reglan, in 1980. Five years later, generic manufacturers also began producing meto-clopramide. The drug is commonly used to treat diges- tive tract problems such as diabetic gastroparesis and gastroesophageal reflux disorder.    Evidence has accumulated that long-term metoclopramide use can cause tardive dyskinesia, a severe neurological disorder. Studies have shown that up to 29% of patients who take metoclopramide for several years develop this condition. McNeil v. Wyeth , 462 F. 3d 364, 370, n. 5 (CA5 2006); see also Shaffer, Butterfield, Pamer, & Mackey, Tardive Dyskinesia Risks and Metoclopramide Use Before and After U. S. Market Withdrawal of Cisapride, 44 J. Am. Pharmacists Assn. 661, 663 (2004) (noting 87 cases of metoclopramide-related tardive dyskinesia reported to the FDA’s adverse event reporting system by mid-2003).    Accordingly, warning labels for the drug have been strengthened and clarified several times. In 1985, the label was modified to warn that “tardive dyskinesia … may develop in patients treated with metoclopramide,” and the drug’s package insert added that “[t]herapy longer than 12 weeks has not been evaluated and cannot be recommended.” Physician’s Desk Reference 1635–1636 (41st ed. 1987); see also Brief for Petitioner PLIVA et al. 21–22 (hereinafter PLIVA Brief). In 2004, the brand-name Reglan manufacturer requested, and the FDA approved, a label change to add that “[t]herapy should not exceed 12 weeks in duration.” Brief for United States as Amicus Curiae 8 (hereinafter U. S. Brief). And in 2009, the FDA ordered a black box warning—its strongest—which states: “Treatment with metoclopramide can cause tardive dyskinesia, a serious movement disorder that is often irreversible… . Treatment with metoclopramide for longer than 12 weeks should be avoided in all but rare cases.” See Physician’s Desk Reference 2902 (65th ed. 2011).    Gladys Mensing and Julie Demahy, the plaintiffs in these consolidated cases, were prescribed Reglan in 2001 and 2002, respectively. Both received generic metoclopramide from their pharmacists. After taking the drug as prescribed for several years, both women developed tardive dyskinesia.    In separate suits, Mensing and Demahy sued the generic drug manufacturers that produced the metoclopramide they took (Manufacturers). Each alleged, as relevant here, that long-term metoclopramide use caused her tar-dive dyskinesia and that the Manufacturers were liable under state tort law (specifically, that of Minnesota and Louisiana) for failing to provide adequate warning labels. They claimed that “despite mounting evidence that long term metoclopramide use carries a risk of tardive dyskinesia far greater than that indicated on the label,” none of the Manufacturers had changed their labels to adequately warn of that danger. Mensing v. Wyeth, Inc. , 588 F. 3d 603, 605 (CA8 2009); see also Demahy v. Actavis, Inc. , 593 F. 3d 428, 430 (CA5 2010).    In both suits, the Manufacturers urged that federal law pre-empted the state tort claims. According to the Manufacturers, federal statutes and FDA regulations required them to use the same safety and efficacy labeling as their brand-name counterparts. This means, they argued, that it was impossible to simultaneously comply with both federal law and any state tort-law duty that required them to use a different label.    The Courts of Appeals for the Fifth and Eighth Circuits rejected the Manufacturers’ arguments and held that Men-sing and Demahy’s claims were not pre-empted. See 588 F. 3d, at 614; 593 F. 3d, at 449. We granted certiorari, 562 U. S. ___ (2010), consolidated the cases, and now reverse each. II    Pre-emption analysis requires us to compare federal and state law. We therefore begin by identifying the state tort duties and federal labeling requirements applicable to the Manufacturers. A    It is undisputed that Minnesota and Louisiana tort law require a drug manufacturer that is or should be aware of its product’s danger to label that product in a way that renders it reasonably safe. Under Minnesota law, which applies to Mensing’s lawsuit, “where the manufacturer … of a product has actual or constructive knowledge of danger to users, the … manufacturer has a duty to give warning of such dangers.” Frey v. Montgomery Ward & Co. , 258 N. W. 2d 782, 788 (Minn. 1977). Similarly, under Louisiana law applicable to Demahy’s lawsuit, “a manufacturer’s duty to warn includes a duty to provide adequate instructions for safe use of a product.” Stahl v. Novartis Pharmaceuticals Corp. , 283 F. 3d 254, 269–270 (CA5 2002); see also La. Rev. Stat. Ann. §9:2800.57 (West 2009). In both States, a duty to warn falls specifically on the manufacturer. See Marks v. OHMEDA, Inc. , 2003–1446, pp. 8–9 (La. App. 3/31/04), 871 So. 2d 1148, 1155; Gray v. Badger Min. Corp. , 676 N. W. 2d 268, 274 (Minn. 2004).    Mensing and Demahy have pleaded that the Manufacturers knew or should have known of the high risk of tardive dyskinesia inherent in the long-term use of their product. They have also pleaded that the Manufacturers knew or should have known that their labels did not adequately warn of that risk. App. 437–438, 67–69, 94–96. The parties do not dispute that, if these allegations are true, state law required the Manufacturers to use a different, safer label. B    Federal law imposes far more complex drug labeling requirements. We begin with what is not in dispute. Under the 1962 Drug Amendments to the Federal Food, Drug, and Cosmetic Act, 76 Stat. 780, 21 U. S. C. §301 et seq., a manufacturer seeking federal approval to market a new drug must prove that it is safe and effective and that the proposed label is accurate and adequate.[ Footnote 1 ] See, e.g., 21 U. S. C. §§355(b)(1), (d); Wyeth v. Levine , 555 U. S. 555 , 567 (2009). Meeting those requirements involves costly and lengthy clinical testing. §§355(b)(1)(A), (d); see also D. Beers, Generic and Innovator Drugs: A Guide to FDA Approval Requirements §2.02[A] (7th ed. 2008).    Originally, the same rules applied to all drugs. In 1984, however, Congress passed the Drug Price Competition and Patent Term Restoration Act, 98 Stat. 1585, commonly called the Hatch-Waxman Amendments. Under this law, “generic drugs” can gain FDA approval simply by showing equivalence to a reference listed drug that has already been approved by the FDA.[ Footnote 2 ] 21 U. S. C. §355(j)(2)(A). This allows manufacturers to develop generic drugs in-expensively, without duplicating the clinical trials already performed on the equivalent brand-name drug. A generic drug application must also “show that the [safety and efficacy] labeling proposed … is the same as the labeling approved for the [brand-name] drug.” §355(j)(2)(A)(v); see also §355(j)(4)(G); Beers §§3.01, 3.03[A].    As a result, brand-name and generic drug manufacturers have different federal drug labeling duties. A brand-name manufacturer seeking new drug approval is responsible for the accuracy and adequacy of its label. See, e.g., 21 U. S. C. §§355(b)(1), (d); Wyeth , supra, at 570–571. A manufacturer seeking generic drug approval, on the other hand, is responsible for ensuring that its warning label is the same as the brand name’s. See, e.g., §355(j)(2)(A)(v); §355(j)(4)(G); 21 CFR §§314.94(a)(8), 314.127(a)(7).    The parties do not disagree. What is in dispute is whether, and to what extent, generic manufacturers may change their labels after initial FDA approval. Mensing and Demahy contend that federal law provided several avenues through which the Manufacturers could have altered their metoclopramide labels in time to prevent the injuries here. The FDA, however, tells us that it interprets its regulations to require that the warning labels of a brand-name drug and its generic copy must always be the same—thus, generic drug manufacturers have an ongoing federal duty of “sameness.” U. S. Brief 16; see also 57 Fed. Reg. 17961 (1992) (“[T]he [generic drug’s] labeling must be the same as the listed drug product’s labeling because the listed drug product is the basis for [generic drug] ap-proval”). The FDA’s views are “controlling unless plainly erroneous or inconsistent with the regulation[s]” or there is any other reason to doubt that they reflect the FDA’s fair and considered judgment. Auer v. Robbins , 519 U. S. 452 , 461, 462 (1997) (internal quotation marks omitted).[ Footnote 3 ] 1    First, Mensing and Demahy urge that the FDA’s “changes-being-effected” (CBE) process allowed the Manufacturers to change their labels when necessary. See Brief for Respondents 33–35; see also 593 F. 3d, at 439–444; Gaeta v. Perrigo Pharmaceuticals Co. , 630 F. 3d 1225, 1231 (CA9 2011); Foster v. American Home Prods. Corp. , 29 F. 3d 165, 170 (CA4 1994). The CBE process permits drug manufacturers to “add or strengthen a contraindication, warning, [or] precaution,” 21 CFR §314.70(c)(6)(iii)(A) (2006), or to “add or strengthen an instruction about dosage and administration that is intended to increase the safe use of the drug product,” §314.70(c)(6)(iii)(C). When making labeling changes using the CBE process, drug man-ufacturers need not wait for preapproval by the FDA, which ordinarily is necessary to change a label. Wyeth , supra, at 568. They need only simultaneously file a supplemental application with the FDA. 21 CFR §314.70(c)(6).    The FDA denies that the Manufacturers could have used the CBE process to unilaterally strengthen their warning labels. The agency interprets the CBE regulation to allow changes to generic drug labels only when a generic drug manufacturer changes its label to match an updated brand-name label or to follow the FDA’s instructions. U. S. Brief 15, 16, n. 7 (interpreting 21 CFR §314.94(a)(8)(iv)); U. S. Brief 16, n. 8. The FDA argues that CBE changes unilaterally made to strengthen a generic drug’s warning label would violate the statutes and regulations requiring a generic drug’s label to match its brand-name counterpart’s. Id., at 15–16; see also 21 U. S. C. §355(j)(4)(G); 21 CFR §§314.94(a)(8)(iii), 314.150(b)(10) (approval may be withdrawn if the generic drug’s label “is no longer consistent with that for [the brand-name]”).    We defer to the FDA’s interpretation of its CBE and generic labeling regulations. Although Mensing and Demahy offer other ways to interpret the regulations, see Brief for Respondents 33–35, we do not find the agency’s interpretation “plainly erroneous or inconsistent with the regulation.” Auer , supra , at 461 (internal quotation marks omitted). Nor do Mensing and Demahy suggest there is any other reason to doubt the agency’s reading. We therefore conclude that the CBE process was not open to the Manufacturers for the sort of change required by state law. 2    Next, Mensing and Demahy contend that the Manufacturers could have used “Dear Doctor” letters to send ad-ditional warnings to prescribing physicians and other healthcare professionals. See Brief for Respondents 36; 21 CFR §200.5. Again, the FDA disagrees, and we defer to the agency’s views.    The FDA argues that Dear Doctor letters qualify as “labeling.” U. S. Brief 18; see also 21 U. S. C. §321(m); 21 CFR §202.1( l )(2). Thus, any such letters must be “consistent with and not contrary to [the drug’s] approved … labeling.” 21 CFR §201.100(d)(1). A Dear Doctor letter that contained substantial new warning information would not be consistent with the drug’s approved labeling. Moreover, if generic drug manufacturers, but not the brand-name manufacturer, sent such letters, that would inaccurately imply a therapeutic difference between the brand and generic drugs and thus could be impermissibly “misleading.” U. S. Brief 19; see 21 CFR §314.150(b)(3) (FDA may withdraw approval of a generic drug if “the labeling of the drug … is false or misleading in any particular”).    As with the CBE regulation, we defer to the FDA. Mensing and Demahy offer no argument that the FDA’s interpretation is plainly erroneous. See Auer , 519 U. S., at 461. Accordingly, we conclude that federal law did not permit the Manufacturers to issue additional warnings through Dear Doctor letters. 3    Though the FDA denies that the Manufacturers could have used the CBE process or Dear Doctor letters to strengthen their warning labels, the agency asserts that a different avenue existed for changing generic drug labels. According to the FDA, the Manufacturers could have proposed—indeed, were required to propose—stronger warning labels to the agency if they believed such warnings were needed. U. S. Brief 20; 57 Fed. Reg. 17961. If the FDA had agreed that a label change was necessary, it would have worked with the brand-name manufacturer to create a new label for both the brand-name and generic drug. Ibid. The agency traces this duty to 21 U. S. C. §352(f)(2), which provides that a drug is “misbranded … [u]nless its labeling bears … adequate warnings against … unsafe dosage or methods or duration of administration or application, in such manner and form, as are necessary for the protection of users.” See U. S. Brief 12. By regulation, the FDA has interpreted that statute to require that “labeling shall be revised to include a warning as soon as there is reasonable evidence of an association of a serious hazard with a drug.” 21 CFR §201.57(e). According to the FDA, these requirements apply to ge-neric drugs. As it explains, a “ ‘central premise of fed- eral drug regulation is that the manufacturer bears responsibility for the content of its label at all times.’ ” U. S. Brief 12–13 (quoting Wyeth , 555 U. S., at 570–571). The FDA reconciles this duty to have adequate and accurate labeling with the duty of sameness in the following way: Generic drug manufacturers that become aware of safety problems must ask the agency to work toward strengthening the label that applies to both the generic and brand-name equivalent drug. U. S. Brief 20.    The Manufacturers and the FDA disagree over whether this alleged duty to request a strengthened label actually existed. The FDA argues that it explained this duty in the preamble to its 1992 regulations implementing the Hatch-Waxman Amendments. Ibid.; see 57 Fed. Reg. 17961 (“If a [generic drug manufacturer] believes new safety information should be added to a product’s labeling, it should contact FDA, and FDA will determine whether the labeling for the generic and listed drugs should be revised”). The Manufacturers claim that the FDA’s 19-year-old statement did not create a duty, and that there is no evi-dence of any generic drug manufacturer ever acting pursuant to any such duty. See Tr. of Oral Arg. 19–24; Reply Brief for Petitioner PLIVA et al. 18–22. Because we ultimately find pre-emption even assuming such a duty existed, we do not resolve the matter. C    To summarize, the relevant state and federal requirements are these: State tort law places a duty directly on all drug manufacturers to adequately and safely label their products. Taking Mensing and Demahy’s allegations as true, this duty required the Manufacturers to use a different, stronger label than the label they actually used. Federal drug regulations, as interpreted by the FDA, prevented the Manufacturers from independently changing their generic drugs’ safety labels. But, we assume, federal law also required the Manufacturers to ask for FDA assistance in convincing the brand-name manufacturer to adopt a stronger label, so that all corresponding generic drug manufacturers could do so as well. We turn now to the question of pre-emption. III    The Supremacy Clause establishes that federal law “shall be the supreme Law of the Land … any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U. S. Const., Art. VI, cl. 2. Where state and federal law “directly conflict,” state law must give way. Wyeth, supra, at 583 (Thomas, J., concurring in judgment); see also Crosby v. National Foreign Trade Council , 530 U. S. 363 , 372 (2000) (“[S]tate law is naturally preempted to the extent of any conflict with a federal statute”). We have held that state and federal law conflict where it is “impossible for a private party to comply with both state and federal requirements.”[ Footnote 4 ] Freightliner Corp. v. Myrick , 514 U. S. 280 , 287 (1995) (internal quotation marks omitted).[ Footnote 5 ] A    We find impossibility here. It was not lawful under federal law for the Manufacturers to do what state law required of them. And even if they had fulfilled their federal duty to ask for FDA assistance, they would not have satisfied the requirements of state law.    If the Manufacturers had independently changed their labels to satisfy their state-law duty, they would have violated federal law. Taking Mensing and Demahy’s allegations as true, state law imposed on the Manufac-turers a duty to attach a safer label to their generic metoclopramide. Federal law, however, demanded that ge-neric drug labels be the same at all times as the corres-ponding brand-name drug labels. See, e.g., 21 CFR §314.150(b)(10). Thus, it was impossible for the Manufacturers to comply with both their state-law duty to change the label and their federal law duty to keep the label the same.    The federal duty to ask the FDA for help in strengthening the corresponding brand-name label, assuming such a duty exists, does not change this analysis. Although requesting FDA assistance would have satisfied the Man-ufacturers’ federal duty, it would not have satisfied their state tort-law duty to provide adequate labeling. State law demanded a safer label; it did not instruct the Manufacturers to communicate with the FDA about the possibility of a safer label. Indeed, Mensing and Demahy deny that their state tort claims are based on the Manufacturers’ alleged failure to ask the FDA for assistance in changing the labels. Brief for Respondents 53–54; cf. Buckman Co. v. Plaintiffs’ Legal Comm. , 531 U. S. 341 (2001) (holding that federal drug and medical device laws pre-empted a state tort-law claim based on failure to properly communicate with the FDA). B 1    Mensing and Demahy contend that, while their state-law claims do not turn on whether the Manufacturers asked the FDA for assistance in changing their labels, the Manufacturers’ federal affirmative defense of pre-emption does. Mensing and Demahy argue that if the Manufacturers had asked the FDA for help in changing the corresponding brand-name label, they might eventually have been able to accomplish under federal law what state law requires. That is true enough. The Manufacturers “freely concede” that they could have asked the FDA for help. PLIVA Brief 48. If they had done so, and if the FDA decided there was sufficient supporting information, and if the FDA undertook negotiations with the brand-name manufacturer, and if adequate label changes were decided on and implemented, then the Manufacturers would have started a Mouse Trap game that eventually led to a better label on generic metoclopramide.    This raises the novel question whether conflict pre-emption should take into account these possible actions by the FDA and the brand-name manufacturer. Here, what federal law permitted the Manufacturers to do could have changed, even absent a change in the law itself, depending on the actions of the FDA and the brand-name manufacturer. Federal law does not dictate the text of each generic drug’s label, but rather ties those labels to their brand-name counterparts. Thus, federal law would permit the Manufacturers to comply with the state labeling requirements if, and only if, the FDA and the brand-name manufacturer changed the brand-name label to do so.    Mensing and Demahy assert that when a private party’s ability to comply with state law depends on approval and assistance from the FDA, proving pre-emption requires that party to demonstrate that the FDA would not have allowed compliance with state law. Here, they argue, the Manufacturers cannot bear their burden of proving impossibility because they did not even try to start the process that might ultimately have allowed them to use a safer label. Brief for Respondents 47 . This is a fair argument, but we reject it.    The question for “impossibility” is whether the private party could independently do under federal law what state law requires of it. See Wyeth , 555 U. S., at 573 (finding no pre-emption where the defendant could “unilaterally” do what state law required). Accepting Mensing and Demahy’s argument would render conflict pre-emption largely meaningless because it would make most conflicts between state and federal law illusory. We can often imagine that a third party or the Federal Government might do something that makes it lawful for a private party to accomplish under federal law what state law requires of it. In these cases, it is certainly possible that, had the Manufacturers asked the FDA for help, they might have eventually been able to strengthen their warning label. Of course, it is also possible that the Manufacturers could have convinced the FDA to reinterpret its regulations in a manner that would have opened the CBE process to them. Following Mensing and Demahy’s argument to its logical conclusion, it is also possible that, by asking, the Manufacturers could have persuaded the FDA to rewrite its generic drug regulations entirely or talked Congress into amending the Hatch-Waxman Amendments.    If these conjectures suffice to prevent federal and state law from conflicting for Supremacy Clause purposes, it is unclear when, outside of express pre-emption, the Supremacy Clause would have any force.[ Footnote 6 ] We do not read the Supremacy Clause to permit an approach to pre-emption that renders conflict pre-emption all but meaningless. The Supremacy Clause, on its face, makes federal law “the supreme Law of the Land” even absent an express statement by Congress. U. S. Const., Art. VI, cl. 2. 2    Moreover, the text of the Clause—that federal law shall be supreme, “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”—plainly contemplates conflict pre-emption by describing federal law as effectively repealing contrary state law. Ibid.; see Nelson, Preemption, 86 Va. L. Rev. 225, 234 (2000); id., at 252–253 (describing discussion of the Supremacy Clause in state ratification debates as concerning whether federal law could repeal state law, or vice versa). The phrase “any [state law] to the Contrary notwithstanding” is a non ob-stante provision. Id., at 238–240, nn. 43–45. Eighteenth-century legislatures used non obstante provisions to specify the degree to which a new statute was meant to repeal older, potentially conflicting statutes in the same field. Id., at 238–240 (citing dozens of statutes from the 1770’s and 1780’s with similar provisions). A non obstante provision “in a new statute acknowledged that the statute might contradict prior law and instructed courts not to apply the general presumption against implied repeals.” Id., at 241–242; 4 M. Bacon, A New Abridgment of the Law 639 (4th ed. 1778) (“Although two Acts of Parliament are seemingly repugnant, yet if there be no Clause of non Obstante in the latter, they shall if possible have such Construction, that the latter may not be a Repeal of the former by Implication”). The non obstante provision in the Supremacy Clause therefore suggests that federal law should be understood to impliedly repeal conflicting state law.    Further, the provision suggests that courts should not strain to find ways to reconcile federal law with seemingly conflicting state law. Traditionally, courts went to great lengths attempting to harmonize conflicting statutes, in order to avoid implied repeals. Warder v. Arell , 2 Va. 282, 296 (1796) (opinion of Roane, J.) (“[W]e ought to seek for such a construction as will reconcile [the statutes] together”); Ludlow’s Heirs v. Johnston , 3 Ohio 553, 564 (1828) (“[I]f by any fair course of reasoning the two [statutes] can be reconciled, both shall stand”); Doolittle v. Bryan , 14 How. 563, 566 (1853) (requiring “the repugnance be quite plain” before finding implied repeal). A non obstante provision thus was a useful way for legislatures to specify that they did not want courts distorting the new law to accommodate the old. Nelson, supra, at 240–242; see also J. Sutherland, Statutes and Statutory Construction §147, p. 199 (1891) (“[W]hen there is inserted in a statute a provision [of non obstante ] … . It is to be supposed that courts will be less inclined against recognizing repugnancy in applying such statutes”); Weston’s Case , 73 Eng. Rep. 780, 781 (K. B. 1576) (“[W]hen there are two statutes, one in appearance crossing the other, and no clause of non obstante is contained in the second statute … the exposition ought to be that both should stand in force”); G. Jacob, A New Law Dictionary (J. Morgan ed., 10th ed. 1782) (definition of “statute,” ¶6: “[W]hen there is a seeming variance between two statutes, and no clause of non obstante in the latter, such construction shall be made that both may stand”). The non obstante provision of he Supremacy Clause indicates that a court need look no further than “the ordinary meanin[g]” of federal law, and should not distort federal law to accommodate conflicting state law. Wyeth , 555 U. S., at 588 (Thomas, J., concurring in judgment) (internal quotation marks omitted).    To consider in our pre-emption analysis the contingencies inherent in these cases—in which the Manufacturers’ ability to comply with state law depended on uncertain federal agency and third-party decisions—would be inconsistent with the non obstante provision of the Supremacy Clause. The Manufacturers would be required continually to prove the counterfactual conduct of the FDA and brand-name manufacturer in order to establish the supremacy of federal law. We do not think the Supremacy Clause contemplates that sort of contingent supremacy. The non obstante provision suggests that pre-emption analysis should not involve speculation about ways in which federal agency and third-party actions could potentially reconcile federal duties with conflicting state duties. When the “ordinary meaning” of federal law blocks a private party from independently accomplishing what state law requires, that party has established pre-emption. 3    To be sure, whether a private party can act sufficiently independently under federal law to do what state law requires may sometimes be difficult to determine. But this is not such a case. Before the Manufacturers could satisfy state law, the FDA—a federal agency—had to undertake special effort permitting them to do so. To decide these cases, it is enough to hold that when a party cannot satisfy its state duties without the Federal Government’s special permission and assistance, which is dependent on the exercise of judgment by a federal agency, that party cannot independently satisfy those state duties for pre-emption purposes. Here, state law imposed a duty on the Manufacturers to take a certain action, and federal law barred them from taking that action. The only action the Manufacturers could independently take—asking for the FDA’s help—is not a matter of state-law concern. Mensing and Demahy’s tort claims are pre-empted. C Wyeth is not to the contrary. In that case, as here, the plaintiff contended that a drug manufacturer had breached a state tort-law duty to provide an adequate warning label. 555 U. S., at 559–560. The Court held that the lawsuit was not pre-empted because it was possible for Wyeth, a brand-name drug manufacturer, to comply with both state and federal law. Id., at 572–573.[ Footnote 7 ] Specifically, the CBE regulation, 21 CFR §314.70(c)(6)(iii), permitted a brand-name drug manufacturer like Wyeth “to unilaterally strengthen its warning” without prior FDA approval. 555 U. S., at 573; cf. supra, at 7–8. Thus, the federal regulations applicable to Wyeth allowed the company, of its own volition, to strengthen its label in compliance with its state tort duty.[ Footnote 8 ] We recognize that from the perspective of Mensing and Demahy, finding pre-emption here but not in Wyeth makes little sense. Had Mensing and Demahy taken Reglan, the brand-name drug prescribed by their doctors, Wyeth would control and their lawsuits would not be pre-empted. But because pharmacists, acting in full accord with state law, substituted generic metoclopramide instead, federal law pre-empts these lawsuits. See , e.g ., Minn. Stat. §151.21 (2010) (describing when pharmacists may substitute ge-neric drugs); La. Rev. Stat. Ann. §37:1241(A)(17) (West 2007) (same). We acknowledge the unfortunate hand that federal drug regulation has dealt Mensing, Demahy, and others similarly situated.[ Footnote 9 ] But “it is not this Court’s task to decide whether the statutory scheme established by Congress is unusual or even bizarre.” Cuomo v. Clearing House Assn., L. L. C. , 557 U. S. ___, ___ (2009) (Thomas, J., concurring in part and dissenting in part) (slip op., at 21) (internal quotation marks and brackets omitted). It is beyond dispute that the federal statutes and regulations that apply to brand-name drug manufacturers are meaningfully different than those that apply to generic drug manufacturers. Indeed, it is the special, and different, regulation of generic drugs that allowed the generic drug market to expand, bringing more drugs more quickly and cheaply to the public. But different federal statutes and regulations may, as here, lead to different pre-emption results. We will not distort the Supremacy Clause in order to create similar pre-emption across a dissimilar statutory scheme. As always, Congress and the FDA retain the authority to change the law and regulations if they so desire. *  *  * The judgments of the Fifth and Eighth Circuits are reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. * Justice Kennedy joins all but Part III–B–2 of this opinion. Footnote 1 All relevant events in these cases predate the Food and Drug Administration Amendments Act of 2007, 121 Stat. 823. We therefore refer exclusively to the pre-2007 statutes and regulations and express no view on the impact of the 2007 Act. Footnote 2 As we use it here, “generic drug” refers to a drug designed to be a copy of a reference listed drug (typically a brand-name drug), and thus identical in active ingredients, safety, and efficacy. See, e.g., United States v. Generix Drug Corp. , 460 U. S. 453 , 454–455 (1983); 21 CFR §314.3(b) (2006) (defining “reference listed drug”). Footnote 3 The brief filed by the United States represents the views of the FDA. Cf. Talk America, Inc. v. Michigan Bell Telephone Co. , 564 U. S. ___, ___, n. 1 (2011) (slip op., at 1, n. 1); Chase Bank USA, N. A. v. McCoy , 562 U. S. ___, ___ (2011) (slip op., at 8). Although we defer to the agency’s interpretation of its regulations, we do not defer to an agency’s ultimate conclusion about whether state law should be pre-empted. Wyeth v. Levine , 555 U. S. 555 , 576 (2009). Footnote 4 We do not address whether state and federal law “directly conflict” in circumstances beyond “impossibility.” See Wyeth , 555 U. S., at 582, 590–591 (Thomas, J., concurring in judgment) (suggesting that they might). Footnote 5 The Hatch-Waxman Amendments contain no provision expressly pre-empting state tort claims. See post , at 9, 19 (Sotomayor, J., dissenting). Nor do they contain any saving clause to expressly preserve state tort claims. Cf. Williamson v. Mazda Motor of America, Inc. , 562 U. S. ___, ___ (2011) (Thomas, J., concurring in judgment) (discussing the saving clause in the National Traffic and Motor Vehicle Safety Act of 1966, 49 U. S. C. §30103(e)). Although an express statement on pre-emption is always preferable, the lack of such a statement does not end our inquiry. Contrary to the dissent’s suggestion, the absence of express pre-emption is not a reason to find no conflict pre-emption. See post , at 19. Footnote 6 The dissent asserts that we are forgetting “purposes-and-objectives” pre-emption. Post , at 15–16. But as the dissent acknowledges, purposes-and-objectives pre-emption is a form of conflict pre-emption. Post, at 9, 16. If conflict pre-emption analysis must take into account hypothetical federal action, including possible changes in Acts of Congress, then there is little reason to think that pre-emption based on the purposes and objectives of Congress would survive either. Footnote 7 Wyeth also urged that state tort law “creat[ed] an unacceptable ‘obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” 555 U. S., at 563–564 (quoting Hines v. Davidowitz , 312 U. S. 52 , 67 (1941)). The Court rejected that argument, and that type of pre-emption is not argued here. Cf. post , at 16, n. 13 (opinion of Sotomayor, J.). Footnote 8 The FDA, however, retained the authority to eventually rescind Wyeth’s unilateral CBE changes. Accordingly, the Court noted that Wyeth could have attempted to show, by “clear evidence,” that the FDA would have rescinded any change in the label and thereby demonstrate that it would in fact have been impossible to do under federal law what state law required. Wyeth , supra, at 571. Wyeth offered no such evidence. That analysis is consistent with our holding today. The Court in Wyeth asked what the drug manufacturer could independently do under federal law, and in the absence of clear evidence that Wyeth could not have accomplished what state law required of it, found no pre-emption. The Wyeth Court held that, because federal law accommodated state law duties, “the possibility of impossibility” was “not enough.” Post , at 10; see also Rice v. Norman Williams Co. , 458 U. S. 654 , 659 (1982) (rejecting “hypothetical” impossibility). But here, “existing” federal law directly conflicts with state law. Post , at 15 (“Conflict analysis necessarily turns on existing law”). The question in these cases is not whether the possibility of impossibility establishes pre-emption, but rather whether the possibility of possibility defeats pre-emption. Post , at 10. Footnote 9 That said, the dissent overstates what it characterizes as the “many absurd consequences” of our holding. Post , at 18. First, the FDA in-forms us that “[a]s a practical matter, genuinely new information about drugs in long use (as generic drugs typically are) appears infre-quently.” U. S. Brief 34–35. That is because patent protections ordinarily prevent generic drugs from arriving on the market for a number of years after the brand-name drug appears. Indeed, situations like the one alleged here are apparently so rare that the FDA has no “formal regulation” establishing generic drug manufacturers’ duty to initiate a label change, nor does it have any regulation setting out that label-change process . Id ., at 20–21. Second, the dissent admits that, even under its approach, generic drug manufacturers could establish pre-emption in a number of scenarios. Post , at 12–13. SOTOMAYOR, J., DISSENTING PLIVA, INC. V. MENSING 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NOS. 09-993, 09-1039, AND 09-1501 PLIVA, INC., et al., PETITIONERS 09–993 v. GLADYS MENSING ACTAVIS ELIZABETH, LLC, PETITIONER 09–1039   v. GLADYS MENSING ACTAVIS, INC., PETITIONER 09–1501   v. JULIE DEMAHY on writs of certiorari to the united states courts of appeals for the eighth and fifth circuits [June 23, 2011] Justice Sotomayor , with whom Justice Ginsburg, Justice Breyer, and Justice Kagan join, dissenting.    The Court today invokes the doctrine of impossibility pre-emption to hold that federal law immunizes generic-drug manufacturers from all state-law failure-to-warn claims because they cannot unilaterally change their la-bels. I cannot agree. We have traditionally held defendants claiming impossibility to a demanding standard: Until today, the mere possibility of impossibility had not been enough to establish pre-emption.    The Food and Drug Administration (FDA) permits—and, the Court assumes, requires—generic-drug manufacturers to propose a label change to the FDA when they believe that their labels are inadequate. If it agrees that the labels are inadequate, the FDA can initiate a change to the brand-name label, triggering a corresponding change to the generic labels. Once that occurs, a generic manufacturer is in full compliance with both federal law and a state-law duty to warn. Although generic manufacturers may be able to show impossibility in some cases, petitioners, generic manufacturers of metoclopramide (Manufacturers), have shown only that they might have been unable to comply with both federal law and their state-law duties to warn respondents Gladys Mensing and Julie Demahy. This, I would hold, is insufficient to sustain their burden.    The Court strains to reach the opposite conclusion. It invents new principles of pre-emption law out of thin air to justify its dilution of the impossibility standard. It effectively rewrites our decision in Wyeth v. Levine , 555 U. S. 555 (2009), which holds that federal law does not pre-empt failure-to-warn claims against brand-name drug manufacturers. And a plurality of the Court tosses aside our repeated admonition that courts should hesitate to conclude that Congress intended to pre-empt state laws governing health and safety. As a result of today’s decision, whether a consumer harmed by inadequate warnings can obtain relief turns solely on the happenstance of whether her pharmacist filled her prescription with a brand-name or generic drug. The Court gets one thing right: This outcome “makes little sense.” Ante , at 18. I A     Today’s decision affects 75 percent of all prescription drugs dispensed in this country. The dominant position of generic drugs in the prescription drug market is the result of a series of legislative measures, both federal and state.    In 1984, Congress enacted the Drug Price Competi- tion and Patent Term Restoration Act, 98 Stat. 1585—commonly known as the Hatch-Waxman Amendments to the Federal Food, Drug, and Cosmetic Act (FDCA)—to “make available more low cost generic drugs by establishing a generic drug approval procedure,” H. R. Rep. No. 98–857, pt. 1, p. 14 (1984). As the majority explains, to accomplish this goal the amendments establish an abbreviated application process for generic drugs. Ante , at 5–6; see also 21 U. S. C. §355(j)(2)(A). The abbreviated approval process implements the amendments’ core principle that generic and brand-name drugs must be the “same” in nearly all respects: To obtain FDA approval, a generic manufacturer must ordinarily show, among other things, that its product has the same active ingredients as an approved brand-name drug; that “the route of adminis-tration, the dosage form, and the strength of the new drug are the same” as the brand-name drug; and that its product is “bioequivalent” to the brand-name drug. §§355(j)(2)(A)(ii), (iii), (iv). By eliminating the need for generic manufacturers to prove their drugs’ safety and efficacy independently, the Hatch-Waxman Amendments allow generic manufacturers to bring drugs to market much less expensively.    The States have also acted to expand consumption of low-cost generic drugs. In the years leading up to passage of the Hatch-Waxman Amendments, States enacted legislation authorizing pharmacists to substitute generic drugs when filling prescriptions for brand-name drugs. Christensen, Kirking, Ascione, Welage, & Gaither, Drug Product Selection: Legal Issues, 41 J. Am. Pharmaceutical Assn. 868, 869 (2001). Currently, all States have some form of generic substitution law. See ibid. Some States require generic substitution in certain circumstances. Dept. of Health and Human Servs., ASPE Issue Brief: Expanding the Use of Generic Drugs 7 (2010) (hereinafter Expanding the Use of Generic Drugs);[ Footnote 1 ] see, e.g. , N. Y. Educ. Law Ann. §6816–a (West 2010). Others permit, but do not require, substitution. Expanding the Use of Generic Drugs 7; see, e.g. , Cal. Bus. & Prof. Code Ann. §4073 (West Supp. 2011). Some States require patient consent to substitution, and all States “allow the physician to specify that the brand name must be prescribed, although with different levels of effort from the physician.” Expanding the Use of Generic Drugs 7.[ Footnote 2 ]    These legislative efforts to expand production and consumption of generic drugs have proved wildly successful. It is estimated that in 1984, when the Hatch-Waxman Amendments were enacted, generic drugs constituted 19 percent of drugs sold in this country. Congressional Bud-get Office, How Increased Competition from Generic Drugs Has Affected Prices and Returns in the Pharmaceutical Industry 27 (1998).[ Footnote 3 ] Today, they dominate the market. See Expanding the Use of Generic Drugs 2 (generic drugs constituted 75 percent of all dispensed prescription drugs in 2009). Ninety percent of drugs for which a generic version is available are now filled with generics. Id. , at 3–4. In many cases, once generic versions of a drug enter the market, the brand-name manufacturer stops selling the brand-name drug altogether. See Brief for Marc T. Law et al. as Amici Curiae 18 (citing studies showing that anywhere from one-third to one-half of generic drugs no longer have a marketed brand-name equivalent). Reflecting the success of their products, many generic manufacturers, including the Manufacturers and their amici , are huge, multinational companies. In total, generic drug manufacturers sold an estimated $66 billion of drugs in this country in 2009. See id. , at 15. B    As noted, to obtain FDA approval a generic manufacturer must generally show that its drug is the same as an approved brand-name drug. It need not conduct clinical trials to prove the safety and efficacy of the drug. This does not mean, however, that a generic manufacturer has no duty under federal law to ensure the safety of its products. The FDA has limited resources to conduct postapproval monitoring of drug safety. See Wyeth , 555 U. S., at 578. Manufacturers, we have recognized, “have superior access to information about their drugs, especially in the postmarketing phase as new risks emerge.” Id. , at 578–579. Federal law thus obliges drug manufacturers—both brand-name and generic—to monitor the safety of their products.    Under federal law, generic manufacturers must “develop written procedures for the surveillance, receipt, evaluation, and reporting of postmarketing adverse drug experiences” to the FDA.[ Footnote 4 ] 21 CFR §314.80(b);[ Footnote 5 ] see also §314.98 (making §314.80 applicable to generic manufacturers); Brief for United States as Amicus Curiae 6, and n. 2 (hereinafter U. S. Brief). They must review all reports of adverse drug experiences received from “any source.” §314.80(b). If a manufacturer receives a report of a serious and unexpected adverse drug experience, it must re-port the event to the FDA within 15 days and must “promptly investigate.” §§314.80(c)(1)(i)–(ii); see also Tr. of Oral Arg. 8. Most other adverse drug experiences must be reported on a quarterly or yearly basis.[ Footnote 6 ] §314.80(c)(2). Generic manufacturers must also submit to the FDA an annual report summarizing “significant new information from the previous year that might affect the safety, ef-fectiveness, or labeling of the drug product,” including a “description of actions the [manufacturer] has taken or intends to take as a result of this new information.” §314.81(b)(2)(i); see also §314.98(c).    Generic manufacturers, the majority assumes, also bear responsibility under federal law for monitoring the adequacy of their warnings. I agree with the majority’s conclusion that generic manufacturers are not permitted unilaterally to change their labels through the “changes-being-effected” (CBE) process or to issue additional warnings through “Dear Doctor” letters. See ante , at 6–9. According to the FDA, however, that generic manufacturers cannot disseminate additional warnings on their own does not mean that federal law permits them to remain idle when they conclude that their labeling is inadequate. FDA regulations require that labeling “be revised to include a warning as soon as there is reasonable evidence of an association of a serious hazard with a drug.” 21 CFR §201.57(e) (2006), currently codified at 21 CFR §201.80(e) (2010); see also Wyeth , 555 U. S., at 570–571. The FDA construes this regulation to oblige generic manufacturers “to seek to revise their labeling and provide FDA with supporting information about risks” when they believe that additional warnings are necessary.[ Footnote 7 ] U. S. Brief 20.    The Manufacturers disagree. They read the FDA regulation to require them only to ensure that their labels match the brand-name labels. See Brief for Petitioner PLIVA et al. 38–41. I need not decide whether the regulation in fact obliges generic manufacturers to approach the FDA to propose a label change. The majority assumes that it does. And even if generic manufacturers do not have a duty to propose label changes, two points remain undisputed. First, they do have a duty under federal law to monitor the safety of their products. And, second, they may approach the FDA to propose a label change when they believe a change is required. II    This brings me to the Manufacturers’ pre-emption defense. State law obliged the Manufacturers to warn of dangers to users. See Hines v. Remington Arms Co. , 94–0455, p. 10 (La. 12/8/94), 648 So. 2d 331, 337; Frey v. Montgomery Ward & Co. , 258 N. W. 2d 782, 788 (Minn. 1977). The Manufacturers contend, and the majority agrees, that federal law pre-empts respondents’ failure-to-warn claims because, under federal law, the Manufac-turers could not have provided additional warnings to respondents without the exercise of judgment by the FDA. I cannot endorse this novel conception of impossibility pre-emption. A    Two principles guide all pre-emption analysis. First, “ ‘the purpose of Congress is the ultimate touchstone in every pre-emption case.’ ” Wyeth , 555 U. S., at 565 (quoting Medtronic, Inc. v. Lohr , 518 U. S. 470 , 485 (1996)). Second, “ ‘[i]n all pre-emption cases, and particularly in those in which Congress has legislated . . . in a field which the States have traditionally occupied, . . . we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ ” Wyeth , 555 U. S., at 565 (quoting Lohr , 518 U. S., at 485; some internal quotation marks omitted; alterations in original).    These principles find particular resonance in these cases. The States have traditionally regulated health and safety matters. See id. , at 485. Notwithstanding Congress’ “certain awareness of the prevalence of state tort litigation” against drug manufacturers, Wyeth , 555 U. S., at 575, Congress has not expressly pre-empted state-law tort actions against prescription drug manufacturers, whether brand-name or generic. To the contrary, when Congress amended the FDCA in 1962 to “enlarg[e] the FDA’s powers to ‘protect the public health’ and ‘assure the safety, effectiveness, and reliability of drugs,’ [it] took care to preserve state law.” Id. , at 567 (quoting 76 Stat. 780); see Pub. L. 87–781, §202, 76 Stat. 793 (“Nothing in the amendments made by this Act to the [FDCA] shall be construed as invalidating any provision of State law which would be valid in the absence of such amendments un- less there is a direct and positive conflict between such amendments and such provision of State law”). Notably, although Congress enacted an express pre-emption provision for medical devices in 1976, see Pub. L. 94–295, §521, 90 Stat. 574, 21 U. S. C. §360k(a), it included no such provision in the Hatch-Waxman Amendments eight years later. Cf. Wyeth , 555 U. S., at 567, 574–575. Congress’ “silence on the issue . . . is powerful evidence that [it] did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness.” Id. , at 575. B    Federal law impliedly pre-empts state law when state and federal law “conflict”— i.e. , when “it is impossible for a private party to comply with both state and federal law” or when state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Crosby v. National Foreign Trade Council , 530 U. S. 363 , 372–373 (2000) (internal quotation marks omitted). The Manufacturers rely solely on the former ground of pre-emption.    Impossibility pre-emption, we have emphasized, “is a de-manding defense.” Wyeth , 555 U. S., at 573. Because pre-emption is an affirmative defense, a defendant seeking to set aside state law bears the burden to prove impossibility. See ibid.; Silkwood v. Kerr-McGee Corp. , 464 U. S. 238 , 255 (1984). To prevail on this defense, a defendant must demonstrate that “compliance with both federal and state [law] is a physical impossibility.” Florida Lime & Avocado Growers, Inc. v. Paul , 373 U. S. 132 , 142–143 (1963); see also Wyeth , 555 U. S., at 573. In other words, there must be an “inevitable collision” between federal and state law. Florida Lime , 373 U. S., at 143. “The existence of a hypothetical or potential conflict is insufficient to warrant” pre-emption of state law. Rice v. Norman Williams Co. , 458 U. S. 654 , 659 (1982); see also Gade v. National Solid Wastes Management Assn. , 505 U. S. 88 , 110 (1992) (Kennedy, J., concurring in part and concurring in judgment). In other words, the mere possibility of impossibility is not enough.    The Manufacturers contend that it was impossible for them to provide additional warnings to respondents Men-sing and Demahy because federal law prohibited them from changing their labels unilaterally.[ Footnote 8 ] They concede, however, that they could have asked the FDA to initiate a label change. If the FDA agreed that a label change was required, it could have asked, and indeed pressured, the brand-name manufacturer to change its label, triggering a corresponding change to the Manufacturers’ generic la-bels.[ Footnote 9 ] Thus, had the Manufacturers invoked the available mechanism for initiating label changes, they may well have been able to change their labels in sufficient time to warn respondents. Having failed to do so, the Manufacturers cannot sustain their burden (at least not without further factual development) to demonstrate that it was impossible for them to comply with both federal and state law. At most, they have demonstrated only “a hypothetical or potential conflict.” Rice , 458 U. S., at 659.    Like the majority, the Manufacturers focus on the fact that they cannot change their labels unilaterally—which distinguishes them from the brand-name-manufacturer defendant in Wyeth . They correctly point out that in Wyeth we concluded that the FDA’s CBE regulation authorized the defendant to strengthen its warnings before receiving agency approval of its supplemental application describing the label change. 555 U. S., at 568–571; see also 21 CFR §314.70(c)(6). But the defendant’s label change was contingent on FDA acceptance, as the FDA retained “authority to reject labeling changes made pursuant to the CBE regulation.” Wyeth , 555 U. S., at 571. Thus, in the long run, a brand-name manufacturer’s compliance with a state-law duty to warn required action by two actors: The brand-name manufacturer had to change the label and the FDA, upon reviewing the supplemental application, had to agree with the change.[ Footnote 10 ] The need for FDA approval of the label change did not make compliance with federal and state law impossible in every case. Instead, because the defendant bore the burden to show impossibility, we required it to produce “clear evidence that the FDA would not have approved a change to [the] label.” Ibid. I would apply the same approach in these cases. State law, respondents allege, required the Manufacturers to provide a strengthened warning about the dangers of long-term metoclopramide use.[ Footnote 11 ] Just like the brand-name manufacturer in Wyeth , the Manufacturers had available to them a mechanism for attempting to comply with their state-law duty to warn. Federal law thus “accommodated” the Manufacturers’ state-law duties. See ante , at 18, n. 8. It was not necessarily impossible for the Manufacturers to comply with both federal and state law because, had they approached the FDA, the FDA may well have agreed that a label change was necessary. Accordingly, as in Wyeth , I would require the Manufacturers to show that the FDA would not have approved a proposed label change. They have not made such a showing: They do “not argue that [they] attempted to give the kind of warning required by [state law] but [were] prohibited from doing so by the FDA.” Wyeth , 555 U. S., at 572.    This is not to say that generic manufacturers could never show impossibility. If a generic-manufacturer defendant proposed a label change to the FDA but the FDA rejected the proposal, it would be impossible for that defendant to comply with a state-law duty to warn. Likewise, impossibility would be established if the FDA had not yet responded to a generic manufacturer’s request for a label change at the time a plaintiff’s injuries arose. A generic manufacturer might also show that the FDA had itself considered whether to request enhanced warnings in light of the evidence on which a plaintiff’s claim rests but had decided to leave the warnings as is. (The Manufacturers make just such an argument in these cases. See, e.g. , Brief for Petitioner Actavis et al. 11.) But these are questions of fact to be established through discovery. Because the burden of proving impossibility falls on the defendant, I would hold that federal law does not render it impossible for generic manufacturers to comply with a state-law duty to warn as a categorical matter.    This conclusion flows naturally from the overarching prin-ciples governing our pre-emption doctrine. See supra , at 8. Our “respect for the States as ‘independent sovereigns in our federal system’ leads us to assume that ‘Congress does not cavalierly pre-empt state-law causes of action.’ ” Wyeth , 555 U. S., at 565–566, n. 3 (quoting Lohr , 518 U. S., at 485). It is for this reason that we hold defendants asserting impossibility to a “demanding” standard. Wyeth , 555 U. S., at 573. This presumption against pre-emption has particular force when the Federal Government has afforded defendants a mechanism for complying with state law, even when that mechanism requires federal agency action. (The presumption has even greater force when federal law requires defendants to invoke that mechanism, as the majority assumes in these cases.) In such circumstances, I would hold, defendants will usually be unable to sustain their burden of showing impossibility if they have not even attempted to employ that mechanism. Any other approach threatens to infringe the States’ authority over traditional matters of state interest—such as the failure-to-warn claims here—when Congress expressed no intent to pre-empt state law. C    The majority concedes that the Manufacturers might have been able to accomplish under federal law what state law requires. Ante , at 12–13. To reach the conclusion that the Manufacturers have nonetheless satisfied their bur-den to show impossibility, the majority invents a new pre-emption rule: “The question for ‘impossibility’ is whether the private party could independently do under federal law what state law requires of it.” Ante , at 13 (empha- sis added). Because the Manufacturers could not have changed their labels without the exercise of judgment by the FDA, the majority holds, compliance with both state and federal law was impossible in these cases.[ Footnote 12 ]    The majority’s new test has no basis in our precedents. The majority cites only Wyeth in support of its test. As discussed above, however, Wyeth does not stand for the proposition that it is impossible to comply with both federal and state law whenever federal agency approval is required. To the contrary, label changes by brand-name manufacturers such as Wyeth are subject to FDA review and acceptance. See supra , at 11–12. And, even if Wyeth could be characterized as turning on the fact that the brand-name manufacturer could change its label unilaterally, the possibility of unilateral action was, at most, a sufficient condition for rejecting the impossibility defense in that case. Wyeth did not hold that unilateral action is a necessary condition in every case.    With so little support in our case law, the majority un-derstandably turns to other rationales. None of the rationales that it offers, however, makes any sense. First, it offers a reductio ad absurdum: If the possibility of FDA approval of a label change is sufficient to avoid conflict in these cases, it warns, as a “logical conclusion” so too would be the possibility that the FDA might rewrite its regulations or that Congress might amend the Hatch-Waxman Amendments. Ante , at 14. The logic of this conclusion escapes me. Conflict analysis necessarily turns on existing law. It thus would be ridiculous to conclude that federal and state law do not conflict on the ground that the defendant could have asked a federal agency or Congress to change the law. Here, by contrast, the Manufacturers’ compliance with their state-law duty to warn did not re-quire them to ask for a change in federal law, as the majority itself recognizes. See ante , at 13 (“[F]ederal law would permit the Manufacturers to comply with the state labeling requirements if, and only if, the FDA and the brand-name manufacturer changed the brand-name label to do so”). The FDA already afforded them a mechanism for attempting to comply with their state-law duties. Indeed, the majority assumes that FDA regulations required the Manufacturers to request a label change when they had “reasonable evidence of an association of a serious hazard with a drug.” 21 CFR §201.57(e).    Second, the majority suggests that any other approach would render conflict pre-emption “illusory” and “meaning-less.” Ante , at 14. It expresses concern that, without a robust view of what constitutes conflict, the Supremacy Clause would not have “any force” except in cases of express pre-emption. Ibid. To the extent the majority’s purported concern is driven by its reductio ad absurdum , see ante , at 14, n. 6, that concern is itself illusory, for the reasons just stated. To the extent the majority is concerned that our traditionally narrow view of what constitutes impossibility somehow renders conflict pre-emption as a whole meaningless, that concern simply makes no sense: We have repeatedly recognized that conflict pre-emption may be found, even absent impossibility, where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Crosby , 530 U. S., at 373 (internal quotation marks omitted); see, e.g. , Geier v. American Honda Motor Co. , 529 U. S. 861 , 886 (2000); Barnett Bank of Marion Cty., N. A. v. Nelson , 517 U. S. 25 , 31 (1996); Hines v. Davidowitz , 312 U. S. 52 , 67 (1941). The majority’s expansive view of impossibility is thus unnecessary to prevent conflict pre-emption from losing all meaning.[ Footnote 13 ]    Third, a plurality of the Court adopts the novel theory that the Framers intended for the Supremacy Clause to operate as a so-called non obstante provision. See ante , at 15–17 (citing Nelson, Preemption, 86 Va. L. Rev. 225 (2000)). According to the plurality, non obstante provisions in statutes “instruc[t] courts not to apply the general presumption against implied repeals.” Ante , at 15 (internal quotation marks omitted); see also ante , at 16 (stating that when a statute contains a non obstante provision, “ ‘courts will be less inclined against recognizing repugnancy in applying such statutes’ ” (quoting J. Sutherland, Statutes and Statutory Construction §147, p. 199 (1891)). From this understanding of the Supremacy Clause, the plurality extrapolates the principle that “courts should not strain to find ways to reconcile federal law with seemingly conflicting state law.” Ante , at 15.    This principle would have been news to the Congress that enacted the Hatch-Waxman Amendments in 1984: Our precedents hold just the opposite. For more than half a century, we have directed courts to presume that congressional action does not supersede “the historic police powers of the States . . . unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp. , 331 U. S. 218 , 230 (1947); see also Gade , 505 U. S., at 111–112 (Kennedy, J., concurring in part and concurring in judgment). We apply this presumption against pre-emption both where Congress has spoken to the pre-emption question and where it has not. See Wyeth , 555 U. S., at 566, n. 3. In the context of express pre-emption, we read federal statutes whenever possible not to pre-empt state law. See Altria Group, Inc. v. Good , 555 U. S. 70 , 77 (2008) (“[W]hen the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily ‘accept the reading that disfavors pre-emption’ ” (quoting Bates v. Dow Agrosciences LLC , 544 U. S. 431 , 449 (2005))); see also Cipollone v. Liggett Group, Inc. , 505 U. S. 504 , 518 (1992). And, when the claim is that federal law impliedly pre-empts state law, we require a “strong” showing of a conflict “to overcome the presumption that state and local regulation . . . can constitutionally coexist with federal regulation.” Hillsborough County v. Automated Medical Laboratories, Inc. , 471 U. S. 707 , 716 (1985).    The plurality’s new theory of the Supremacy Clause is a direct assault on these precedents.[ Footnote 14 ] Whereas we have long presumed that federal law does not pre-empt, or repeal, state law, the plurality today reads the Supremacy Clause to operate as a provision instructing courts “ not to apply the general presumption against implied repeals.” Ante , at 15 (internal quotation marks omitted; emphasis added). And whereas we have long required evidence of a “clear and manifest” purpose to pre-empt, Rice , 331 U. S., at 230, the plurality now instructs courts to “look no further than the ordinary meaning of federal law” before concluding that Congress must have intended to cast aside state law, ante , at 16 (internal quotation marks and alteration omitted).    That the plurality finds it necessary to resort to this novel theory of the Supremacy Clause—a theory advocated by no party or amici in these cases—is telling. Proper application of the longstanding presumption against pre-emption compels the conclusion that federal law does not render compliance with state law impossible merely because it requires an actor to seek federal agency approval. When federal law provides actors with a mech-anism for attempting to comply with their state-law duties, “respect for the States as ‘independent sovereigns in our federal system’ ” should require those actors to attempt to comply with state law before being heard to complain that compliance with both laws was impossible. Wyeth , 555 U. S., at 565–566, n. 3 (quoting Lohr , 518 U. S., at 485). III    Today’s decision leads to so many absurd consequences that I cannot fathom that Congress would have intended to pre-empt state law in these cases.    First, the majority’s pre-emption analysis strips generic-drug consumers of compensation when they are injured by inadequate warnings. “If Congress had intended to deprive injured parties of [this] long available form of compensation, it surely would have expressed that intent more clearly.” Bates , 544 U. S., at 449. Given the longstanding existence of product liability actions, including for failure to warn, “[i]t is difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct.” Silkwood , 464 U. S., at 251; see also Bruesewitz v. Wyeth LLC , 562 U. S. ___, ___ (2011) (slip op., at 16) (noting our previously expressed “doubt that Congress would quietly preempt product-liability claims without providing a federal substitute”). In concluding that Congress silently immunized generic manufacturers from all failure-to-warn claims, the majority disregards our previous hesitance to infer congressional intent to effect such a sweeping change in traditional state-law remedies.    As the majority itself admits, a drug consumer’s right to compensation for inadequate warnings now turns on the happenstance of whether her pharmacist filled her pre-scription with a brand-name drug or a generic. If a consumer takes a brand-name drug, she can sue the manufacturer for inadequate warnings under our opinion in Wyeth . If, however, she takes a generic drug, as occurs 75 percent of the time, she now has no right to sue. The majority offers no reason to think—apart from its new articulation of the impossibility standard—that Congress would have intended such an arbitrary distinction. In some States, pharmacists must dispense generic drugs absent instruction to the contrary from a consumer’s physician. Even when consumers can request brand-name drugs, the price of the brand-name drug or the consumers’ insurance plans may make it impossible to do so. As a result, in many cases, consumers will have no ability to preserve their state-law right to recover for injuries caused by inadequate warnings.    Second, the majority’s decision creates a gap in the parallel federal-state regulatory scheme in a way that could have troubling consequences for drug safety. As we explained in Wyeth , “[s]tate tort suits uncover unknown drug hazards and provide incentives for drug manufacturers to disclose safety risks promptly.” 555 U. S., at 579. Thus, we recognized, “state law offers an additional, and important, layer of consumer protection that complements FDA regulation.” Ibid. Today’s decision eliminates the traditional state-law incentives for generic manufacturers to monitor and disclose safety risks. When a generic drug has a brand-name equivalent on the market, the brand-name manufacturer will remain incentivized to uncover safety risks. But brand-name manufacturers often leave the market once generic versions are available, see supra , at 4–5, meaning that there will be no manufacturer subject to failure-to-warn liability. As to those generic drugs, there will be no “additional . . . layer of consumer protection.” Wyeth , 555 U. S., at 579.    Finally, today’s decision undoes the core principle of the Hatch-Waxman Amendments that generic and brand-name drugs are the “same” in nearly all respects.[ Footnote 15 ] See Brief for Rep. Henry A. Waxman as Amicus Curiae 9. The majority pins the expansion of the generic drug market on “the special, and different, regulation of generic drugs,” which allows generic manufacturers to produce their drugs more cheaply. Ante , at 19. This tells only half the story. The expansion of the market for generic drugs has also flowed from the increased acceptance of, and trust in, generic drugs by consumers, physicians, and state legislators alike.    Today’s decision introduces a critical distinction between brand-name and generic drugs. Consumers of brand-name drugs can sue manufacturers for inadequate warnings; consumers of generic drugs cannot. These divergent liability rules threaten to reduce consumer demand for generics, at least among consumers who can afford brand-name drugs. They may pose “an ethical dilemma” for prescribing physicians. Brief for American Medical Association et al. as Amici Curiae 29. And they may well cause the States to rethink their longstanding efforts to promote generic use through generic substitution laws. See Brief for National Conference of State Legislators as Amicus Curiae 15 (state generic substitution laws “have proceeded on the premise that . . . generic drugs are not, from citizens’ perspective, materially different from brand ones, except for the lower price”). These consequences are directly at odds with the Hatch-Waxman Amendments’ goal of increasing consumption of generic drugs.    Nothing in the Court’s opinion convinces me that, in enacting the requirement that generic labels match their corresponding brand-name labels, Congress intended these absurd results. The Court certainly has not shown that such was the “ clear and manifest purpose of Congress.” Wyeth , 555 U. S., at 565 (internal quotation marks omitted; emphasis added). To the contrary, because federal law affords generic manufacturers a mechanism for attempting to comply with their state-law duties to warn, I would hold that federal law does not categorically pre-empt state-law failure-to-warn claims against generic manufacturers. Especially in light of the presumption against pre-emption, the burden should fall on generic manufacturers to show that compliance was impossible on the particular facts of their case. By holding that the “possibility of possibility ” is insufficient to “defea[t]” pre-emption in these cases, ante , at 18, n. 8, the Court contorts our pre-emption doctrine and exempts defendants from their burden to establish impossibility. With respect, I dissent. Footnote 1 Online at http://aspe.hhs.gov/sp/reports/2010/GenericDrugs/ib.pdf (all Internet materials as visited June 17, 2011, and available in Clerk of Court’s case file). Footnote 2 In addition, many insurance plans are structured to promote generic use. See Congressional Budget Office, Effects of Using Generic Drugs on Medicare’s Prescription Drug Spending 9 (2010), online at http:// www.cbo.gov/ftpdoc/118xx/doc11838/09-15-PrescriptionDrugs.pdf. State Medicaid programs similarly promote generic use. See Kaiser Comm’n on Medicaid and the Uninsured, State Medicaid Outpatient Prescription Drug Policies: Findings from a National Survey, 2005 Update 10 (2005), online at www.kff.org/medicaid/upload/state-medicaid-outpatient-prescription-drug-policies-findings-from-a-national-survey-2005-update-report.pdf. Footnote 3 Online at http://www.cbo.gov/ftpdocs/6xx/doc655/pharm.pdf. Footnote 4 An adverse drug experience is defined as “[a]ny adverse event associated with the use of a drug in humans, whether or not considered drug related.” 21 CFR §314.80(a) (2006). Footnote 5 Like the majority, I refer to the pre-2007 statutes and regulations. See ante , at 5, n. 1. Footnote 6 At congressional hearings on the Hatch-Waxman Amendments, representatives of the generic drug manufacturers confirmed both their obligation and their ability to conduct postapproval investigation of adverse drug experiences. See Drug Legislation: Hearings on H. R. 1554 et al. before the Subcommittee on Health and the Environment of the House Committee on Energy and Commerce, 98th Cong., 1st Sess., 45 (1983) (statement of Kenneth N. Larsen, chairman of the Generic Pharmaceutical Industry Association (GPhA)) (generic manufacturers “are sensitive to the importance of looking at adverse reactions”); id. , at 47–48 (“[W]e will do and provide whatever is required to be performed to meet the regulatory requirement to provide for the safety and well-being of those that are using the drug, this is our role and responsibility. This is an obligation to be in this business”); id. , at 50–51 (statement of Bill Haddad, executive officer and president of GPhA) (“Every single generic drug company that I know has a large research staff. It not only researches the drug that they are copying, or bringing into the market but it researches new drugs, researches adverse reaction[s]”). Footnote 7 The FDA’s construction of this regulation mirrors the guidance it provided to generic manufacturers nearly 20 years ago in announcing the final rule implementing the abbreviated application process for generic drugs: “If an ANDA [ i.e. , application for approval of a generic drug] applicant believes new safety information should be added to a product’s labeling, it should contact FDA, and FDA will determine whether the labeling for the generic and listed drugs should be revised. After approval of an ANDA, if an ANDA holder believes that new safety information should be added, it should provide adequate supporting information to FDA, and FDA will determine whether the labeling for the generic and listed drugs should be revised.” 57 Fed. Reg. 17961 (1992). FDA’s internal procedures recognize that the Office of Generic Drugs will have to consult with other FDA components on “some labeling reviews.” Manual of Policies and Procedures 5200.6, p. 1 (May 9, 2001). Consultations involving “possible serious safety concerns” receive the highest priority. Id. , at 3. Footnote 8 In its decision below, the Eighth Circuit suggested that the Manufacturers could not show impossibility because federal law merely permitted them to sell generic drugs; it did not require them to do so. See Mensing v. Wyeth, Inc. , 588 F. 3d 603, 611 (2009) (“The generic defendants were not compelled to market metoclopramide. If they realized their label was insufficient but did not believe they could even propose a label change, they could have simply stopped selling the product”); see also Geier v. American Honda Motor Co. , 529 U. S. 861 , 873 (2000) (describing “a case of impossibility” as one “in which state law penalizes what federal law requires ” (emphasis added)). Respondents have not advanced this argument, and I find it unnecessary to consider. Footnote 9 At the time respondents’ cause of action arose, the FDA did not have authority to require a brand-name manufacturer to change its label. (It received that authority in 2007. See Pub. L. 110–85, §901, 121 Stat. 924–926, 21 U. S. C. §355(o)(4) (2006 ed., Supp. III). It did, how-ever, have the equally significant authority to withdraw the brand-name manufacturer’s permission to market its drug if the manufacturer refused to make a requested labeling change. See 21 U. S. C. §355(e) (2006 ed.); 21 CFR §314.150(b)(3). Footnote 10 A brand-name manufacturer’s ability to comply with a state-law duty to warn would depend on its own unilateral actions only during the period after it should have changed its label but before the FDA would have approved or disapproved the label change. The claim in Wyeth does not appear to have arisen during that period. Footnote 11 Respondents’ state-law claim is not that the Manufacturers were required to ask the FDA for assistance in changing the labels; the role of the FDA arises only as a result of the Manufacturers’ pre-emption defense. Footnote 12 These cases do not involve a situation where a brand-name manufacturer itself produces generic drugs. See Okie, Multinational Medicines—Ensuring Drug Quality in an Era of Global Manufactur-ing, 361 N. Eng. J. Med. 737, 738 (2009); see also GPhA, Frequently Asked Questions About Generics, http://www.gphaonline.org/about-gpha/about-generics/faq (“Brand-name companies make about half of generic drugs”). In that case, the manufacturer could independently change the brand-name label under the CBE regulation, triggering a corresponding change to its own generic label. Footnote 13 Justice Thomas, the author of today’s opinion, has previously expressed the view that obstacle pre-emption is inconsistent with the Constitution. See Williamson v. Mazda Motor of America, Inc. , 562 U. S. ___, ___ (2011) (opinion concurring in judgment) (slip op., at 2–5); Wyeth v. Levine , 555 U. S. 555 , 604 (2009) (opinion concurring in judgment). That position, however, has not been accepted by this Court, and it thus should not justify the majority’s novel expansion of impossibility pre-emption. Footnote 14 The author of the law review article proposing this theory of the Supremacy Clause acknowledges as much. See Nelson, Preemption, 86 Va. L. Rev. 225, 304 (2000) (“The non obstante provision rejects an artificial presumption that Congress did not intend to contradict any state laws and that federal statutes must therefore be harmonized with state law”). The plurality, on the other hand, carefully avoids discussing the ramifications of its new theory for the longstanding presumption against pre-emption. Footnote 15 According to the GPhA, both the FDA and the generic drug industry “spend millions of dollars each year . . . seeking to reassure consumers that affordable generic drugs really are—as federal law compels them to be— the same as their pricier brand-name counterparts.” Brief for GPhA as Amicus Curiae on Pet. for Cert. in Nos. 09–993, 09–1039, pp. 2–3.

The Supreme Court ruled that federal drug regulations for generic drug manufacturers directly conflict with and preempt state tort law claims alleging inadequate warning labels. This decision protects generic drug manufacturers from liability for failure to provide adequate warning labels if they comply with federal drug regulations.

Health Care

Mutual Pharmaceutical Co. v. Bartlett

https://supreme.justia.com/cases/federal/us/570/472/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 12–142 _________________ MUTUAL PHARMACEUTICAL COMPANY, INC., PETITIONER v. KAREN L. BARTLETT on writ of certiorari to the united states court of appeals for the first circuit [June 24, 2013]      Justice Alito delivered the opinion of the Court.      We must decide whether federal law pre-empts the New Hampshire design-defect claim under which respondent Karen Bartlett recovered damages from petitioner Mutual Pharmaceutical, the manufacturer of sulindac, a generic nonsteroidal anti-inflammatory drug (NSAID). New Hampshire law imposes a duty on manufacturers to ensure that the drugs they market are not unreasonably unsafe, and a drug’s safety is evaluated by reference to both its chemical properties and the adequacy of its warnings. Because Mutual was unable to change sulindac’s composition as a matter of both federal law and basic chemistry, New Hampshire’s design-defect cause of action effectively required Mutual to change sulindac’s labeling to provide stronger warnings. But, as this Court recognized just two Terms ago in PLIVA, Inc. v. Mensing, 564 U. S. ___ (2011), federal law prohibits generic drug manufacturers from independently changing their drugs’ labels. Accordingly, state law imposed a duty on Mutual not to comply with federal law. Under the Supremacy Clause, state laws that require a private party to violate federal law are pre-empted and, thus, are “without effect.” Maryland v. Louisiana, 451 U. S. 725, 746 (1981) .      The Court of Appeals’ solution—that Mutual should simply have pulled sulindac from the market in order to comply with both state and federal law—is no solution. Rather, adopting the Court of Appeals’ stop-selling rationale would render impossibility pre-emption a dead letter and work a revolution in this Court’s pre-emption case law.      Accordingly, we hold that state-law design-defect claims that turn on the adequacy of a drug’s warnings are pre-empted by federal law under PLIVA. We thus reverse the decision of the Court of Appeals below. I      Under the Federal Food, Drug, and Cosmetic Act (FDCA), ch. 675, 52Stat. 1040, as amended, 21 U. S. C. §301 et seq., drug manufacturers must gain approval from the United States Food and Drug Administration (FDA) before marketing any drug in interstate commerce. §355(a). In the case of a new brand-name drug, FDA approval can be secured only by submitting a new-drug application (NDA). An NDA is a compilation of materials that must include “full reports of [all clinical] investigations,” §355(b)(1)(A), relevant nonclinical studies, and “any other data or information relevant to an evaluation of the safety and effectiveness of the drug product obtained or otherwise received by the applicant from any source,” 21 CFR §§314.50(d)(2) and (5)(iv) (2012). The NDA must also include “the labeling proposed to be used for such drug,” 21 U. S. C. §355(b)(1)(F); 21 CFR §314.50(c)(2)(i), and “a discussion of why the [drug’s] benefits exceed the risks under the conditions stated in the labeling,” 21 CFR §314.50(d)(5)(viii); §314.50(c)(2)(ix). The FDA may approve an NDA only if it determines that the drug in question is “safe for use” under “the conditions of use prescribed, recommended, or suggested in the proposed labeling thereof.” 21 U. S. C. §355(d). In order for the FDA to consider a drug safe, the drug’s “probable therapeutic benefits must outweigh its risk of harm.” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 140 (2000) .      The process of submitting an NDA is both onerous and lengthy. See Report to Congressional Requesters, Government Accountability Office, Nov. 2006, New Drug Development, 26 Biotechnology L. Rep. 82, 94 (2007) (A typical NDA spans thousands of pages and is based on clinical trials conducted over several years). In order to provide a swifter route for approval of generic drugs, Congress passed the Drug Price Competition and Patent Term Restoration Act of 1984, 98Stat. 1585, popularly known as the “Hatch-Waxman Act.” Under Hatch-Waxman, a generic drug may be approved without the same level of clinical testing required for approval of a new brand-name drug, provided the generic drug is identical to the already-approved brand-name drug in several key respects.      First, the proposed generic drug must be chemically equivalent to the approved brand-name drug: it must have the same “active ingredient” or “active ingredients,” “route of administration,” “dosage form,” and “strength” as its brand-name counterpart. 21 U. S. C. §§355(j)(2)(A)(ii) and (iii). Second, a proposed generic must be “bioequivalent” to an approved brand-name drug. §355(j)(2)(A)(iv). That is, it must have the same “rate and extent of absorption” as the brand-name drug. §355(j)(8)(B). Third, the generic drug manufacturer must show that “the labeling proposed for the new drug is the same as the labeling approved for the [approved brand-name] drug.” §355(j)(2)(A)(v).      Once a drug—whether generic or brand-name—is approved, the manufacturer is prohibited from making any major changes to the “qualitative or quantitative formulation of the drug product, including active ingredients, or in the specifications provided in the approved application.” 21 CFR §314.70(b)(2)(i). Generic manufacturers are also prohibited from making any unilateral changes to a drug’s label. See §§314.94(a)(8)(iii), 314.150(b)(10) (approval for a generic drug may be withdrawn if the generic drug’s label “is no longer consistent with that for [the brand-name] drug”). II      In 1978, the FDA approved a nonsteroidal anti-inflammatory pain reliever called “sulindac” under the brand name Clinoril. When Clinoril’s patent expired, the FDA approved several generic sulindacs, including one manufactured by Mutual Pharmaceutical. 678 F. 3d 30, 34 (CA1 2012) (case below); App. to Pet. for Cert. 144a–145a. In a very small number of patients, NSAIDs—including both sulindac and popular NSAIDs such as ibuprofen, naproxen, and Cox2-inhibitors—have the serious side effect of causing two hypersensitivity skin reactions characterized by necrosis of the skin and of the mucous membranes: toxic epidermal necrolysis, and its less severe cousin, Stevens-Johnson Syndrome. 678 F. 3d, at 34, 43–44; Dorland’s Illustrated Medical Dictionary 1872 (31st ed. 2007); Physicians’ Desk Reference 146–147, 597 (6th ed. 2013); Friedman, Orlet, Still, & Law, Toxic Epidermal Necrolysis Due to Administration of Celecobix (Celebrex), 95 Southern Medical J. 1213, 1213–1214 (2002).      In December 2004, respondent Karen L. Bartlett was prescribed Clinoril for shoulder pain. Her pharmacist dispensed a generic form of sulindac, which was manufactured by petitioner Mutual Pharmaceutical. Respondent soon developed an acute case of toxic epidermal necrolysis. The results were horrific. Sixty to sixty-five percent of the surface of respondent’s body deteriorated, was burned off, or turned into an open wound. She spent months in a medically induced coma, underwent 12 eye surgeries, and was tube-fed for a year. She is now severely disfigured, has a number of physical disabilities, and is nearly blind.      At the time respondent was prescribed sulindac, the drug’s label did not specifically refer to Stevens-Johnson Syndrome or toxic epidermal necrolysis, but did warn that the drug could cause “severe skin reactions” and “[f]atalities.” App. 553; 731 F. Supp. 2d 135, 142 (NH 2010) (internal quotation marks omitted). However, Stevens-Johnson Syndrome and toxic epidermal necrolysis were listed as potential adverse reactions on the drug’s package insert. 678 F. 3d, at 36, n. 1. In 2005—once respondent was already suffering from toxic epidermal necrolysis—the FDA completed a “comprehensive review of the risks and benefits, [including the risk of toxic epidermal necrolysis], of all approved NSAID products.” Decision Letter, FDA Docket No. 2005P-0072/CP1, p. 2 (June 22, 2006), online at http://www.fda.gov/ohrms/dockets/ dockets/05p0072/05p-0072-pav0001-vol1.pdf (as visited June 18, 2013, and available in Clerk of Court’s case file). As a result of that review, the FDA recommended changes to the labeling of all NSAIDs, including sulindac, to more explicitly warn against toxic epidermal necrolysis. App. 353–354, 364, 557–561, 580, and n. 8.      Respondent sued Mutual in New Hampshire state court, and Mutual removed the case to federal court. Respondent initially asserted both failure-to-warn and design-defect claims, but the District Court dismissed her failure-to-warn claim based on her doctor’s “admi[ssion] that he had not read the box label or insert.” 678 F. 3d, at 34. After a 2-week trial on respondent’s design-defect claim, a jury found Mutual liable and awarded respondent over $21 million in damages.      The Court of Appeals affirmed. 678 F. 3d 30. As relevant, it found that neither the FDCA nor the FDA’s regulations pre-empted respondent’s design-defect claims. It distinguished PLIVA, Inc. v. Mensing, 564 U. S. ___ —in which the Court held that failure-to-warn claims against generic manufacturers are pre-empted by the FDCA’s prohibition on changes to generic drug labels—by arguing that generic manufacturers facing design-defect claims could simply “choose not to make the drug at all” and thus comply with both federal and state law. 678 F. 3d, at 37. We granted certiorari. 568 U. S. ___ (2012). III      The Supremacy Clause provides that the laws and treaties of the United States “shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U. S. Const., Art. VI, cl. 2. Accordingly, it has long been settled that state laws that conflict with federal law are “without effect.” Maryland v. Louisiana, 451 U. S., at 746; McCulloch v. Maryland, 4 Wheat. 316, 427 (1819). See also Gade v. National Solid Wastes Management Assn., 505 U. S. 88, 108 (1992) (“[U]nder the Supremacy Clause, from which our pre-emption doctrine is derived, any state law, however clearly within a State’s acknowledged power, which interferes with or is contrary to federal law, must yield” (internal quotation marks omitted)).      Even in the absence of an express pre-emption provision, the Court has found state law to be impliedly pre-empted where it is “impossible for a private party to comply with both state and federal requirements.” English v. General Elec. Co., 496 U. S. 72, 79 (1990) . See also Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132 –143 (1963) (“A holding of federal exclusion of state law is inescapable and requires no inquiry into congressional design where compliance with both federal and state regulations is a physical impossibility for one engaged in interstate commerce”).      In the instant case, it was impossible for Mutual to comply with both its state-law duty to strengthen the warnings on sulindac’s label and its federal-law duty not to alter sulindac’s label. Accordingly, the state law is pre-empted. A      We begin by identifying petitioner’s duties under state law. As an initial matter, respondent is wrong in asserting that the purpose of New Hampshire’s design- defect cause of action “is compensatory, not regulatory.” Brief for Respondent 19. Rather, New Hampshire’s design-defect cause of action imposes affirmative duties on manufacturers.      Respondent is correct that New Hampshire has adopted the doctrine of strict liability in tort as set forth in Section 402A of the Restatement (Second) of Torts. See 2 Restatement (Second) of Torts §402A (1963 and 1964) (hereinafter Restatement 2d). See Buttrick v. Arthur Lessard & Sons, Inc., 110 N. H. 36, 37–39, 260 A. 2d 111, 112–113 (1969). Under the Restatement—and consequently, under New Hampshire tort law—“[o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused” even though he “has exercised all possible care in the preparation and sale of the product.” Restatement 2d §402A, at 347–348.      But respondent’s argument conflates what we will call a “strict-liability” regime (in which liability does not depend on negligence, but still signals the breach of a duty) with what we will call an “absolute-liability” regime (in which liability does not reflect the breach of any duties at all, but merely serves to spread risk). New Hampshire has adopted the former, not the latter. Indeed, the New Hampshire Supreme Court has consistently held that the manu-facturer of a product has a “duty to design his product reasonably safely for the uses which he can foresee.” Thibault v. Sears, Roebuck & Co., 118 N. H. 802, 809, 395 A. 2d 843, 847 (1978). See also Reid v. Spadone Mach. Co., 119 N. H. 457, 465, 404 A. 2d 1094, 1099 (1979) (“In New Hampshire, the manufacturer is under a general duty to design his product reasonably safely for the uses which he can foresee” (internal quotation marks omitted)); Chellman v. Saab-Scania AB, 138 N. H. 73, 78, 637 A. 2d 148, 150 (1993) (“The duty to warn is part of the general duty to design, manufacture and sell products that are reasonably safe for their foreseeable uses”); cf. Simoneau v. South Bend Lathe, Inc., 130 N. H. 466, 469, 543 A. 2d 407, 409 (1988) (“We limit the application of strict tort liability in this jurisdiction by continuing to emphasize that liability without negligence is not liability without fault”); Price v. BIC Corp., 142 N. H. 386, 390, 702 A. 2d 330, 333 (1997) (cautioning “that the term ‘unreasonably dangerous’ should not be interpreted so broadly as to impose absolute liability on manufacturers or make them insurers of their products”). Accordingly, respondent is incorrect in arguing that New Hampshire’s strict-liability system “imposes no substantive duties on manufacturers.” Brief for Respondent 19. [ 1 ] B      That New Hampshire tort law imposes a duty on manufacturers is clear. Determining the content of that duty requires somewhat more analysis. As discussed below in greater detail, New Hampshire requires manufacturers to ensure that the products they design, manufacture, and sell are not “unreasonably dangerous.” The New Hampshire Supreme Court has recognized that this duty can be satisfied either by changing a drug’s design or by changing its labeling. Since Mutual did not have the option of changing sulindac’s design, New Hampshire law ultimately required it to change sulindac’s labeling.      Respondent argues that, even if New Hampshire law does impose a duty on drug manufacturers, that duty does not encompass either the “duty to change sulindac’s design” or the duty “to change sulindac’s labeling.” Brief for Respondent 30 (capitalization and emphasis deleted). That argument cannot be correct. New Hampshire imposes design-defect liability only where “the design of the product created a defective condition unreasonably dangerous to the user.” Vautour v. Body Masters Sports Industries, Inc., 147 N. H. 150, 153, 784 A. 2d 1178, 1181 (2001); Chellman, supra, at 77, 637 A. 2d, at 150. To determine whether a product is “unreasonably dangerous,” the New Hampshire Supreme Court employs a “risk-utility approach” under which “a product is defective as designed if the magnitude of the danger outweighs the utility of the product.” Vautour, supra, at 154, 784 A. 2d, at 1182 (internal quotation marks omitted). That risk-utility approach requires a “multifaceted balancing process involving evaluation of many conflicting factors.” Ibid. (internal quotation marks omitted); see also Thibault, supra, at 809, 395 A. 2d, at 847 (same).      While the set of factors to be considered is ultimately an open one, the New Hampshire Supreme Court has repeatedly identified three factors as germane to the risk-utility inquiry: “the usefulness and desirability of the product to the public as a whole, whether the risk of danger could have been reduced without significantly affecting either the product’s effectiveness or manufacturing cost, and the presence and efficacy of a warning to avoid an unreasonable risk of harm from hidden dangers or from foreseeable uses.” Vautour, supra, at 154, 784 A. 2d, at 1182; see also Price, supra, at 389, 702 A. 2d, at 333 (same); Chellman, supra, at 77–78, 637 A. 2d, at 150 (same).      In the drug context, either increasing the “usefulness” of a product or reducing its “risk of danger” would require redesigning the drug: A drug’s usefulness and its risk of danger are both direct results of its chemical design and, most saliently, its active ingredients. See 21 CFR §201.66(b)(2) (2012) (“Active ingredient means any component that is intended to furnish pharmacological activity or other direct effect in the diagnosis, cure, mitiga- tion, treatment, or prevention of disease, or to affect the structure of any function of the body of humans” (italics deleted)).      In the present case, however, redesign was not possible for two reasons. First, the FDCA requires a generic drug to have the same active ingredients, route of adminis-tration, dosage form, strength, and labeling as the brand-name drug on which it is based. 21 U. S. C. §§355(j)(2)(A)(ii)–(v) and (8)(B); 21 CFR §320.1(c). Consequently, the Court of Appeals was correct to recognize that “Mutual cannot legally make sulindac in another composition.” 678 F. 3d, at 37. Indeed, were Mutual to change the composition of its sulindac, the altered chemical would be a new drug that would require its own NDA to be marketed in interstate commerce. See 21 CFR §310.3(h) (giving examples of when the FDA considers a drug to be new, including cases involving “newness for drug use of any substance which composes such drug, in whole or in part”). Second, because of sulindac’s simple composition, the drug is chemically incapable of being redesigned. See 678 F. 3d, at 37 (“Mutual cannot legally make sulindac in another composition (nor it is apparent how it could alter a one-molecule drug anyway)”).      Given the impossibility of redesigning sulindac, the only way for Mutual to ameliorate the drug’s “risk-utility” profile—and thus to escape liability—was to strengthen “the presence and efficacy of [sulindac’s] warning” in such a way that the warning “avoid[ed] an unreasonable risk of harm from hidden dangers or from foreseeable uses.” Vautour, supra, at 154, 784 A. 2d, at 1182. See also Chellman, 138 N. H., at 78, 637 A. 2d, at 150 (“The duty to warn is part of the general duty to design, manufacture and sell products that are reasonably safe for their foreseeable uses. If the design of a product makes a warning necessary to avoid an unreasonable risk of harm from a foreseeable use, the lack of warning or an ineffective warning causes the product to be defective and unreasonably dangerous” (citation omitted)). Thus, New Hampshire’s design-defect cause of action imposed a duty on Mutual to strengthen sulindac’s warnings.      For these reasons, it is unsurprising that allegations that sulindac’s label was inadequate featured prominently at trial. Respondent introduced into evidence both the label for Mutual’s sulindac at the time of her injuries and the label as revised in 2005 (after respondent had suffered her injuries). App. 553–556. Her counsel’s opening statement informed the jury that “the evidence will show you that Sulindac was unreasonably dangerous and had an inadequate warning, as well. . . . You will hear much more evidence about why this label was inadequate in relation to this case.” Tr. 110–112 (Aug. 17, 2010). And, the District Court repeatedly instructed the jury that it should evaluate sulindac’s labeling in determining whether Mutual’s sulindac was unreasonably dangerous. See App. 514 (jury instruction that the jury should find “a defect in design” only if it found that “Sulindac was unreasonably dangerous and that a warning was not present and effective to avoid that unreasonable danger”); ibid. (jury instruction that no design defect exists if “a warning was present and effective to avoid that unreasonable danger”). Finally, the District Court clarified in its order and opinion denying Mutual’s motion for judgment as a matter of law that the adequacy of sulindac’s labeling had been part of what the jury was instructed to consider. 760 F. Supp. 2d 220, 231 (2011) (“if the jury found that sulin-dac’s risks outweighed its benefits, then it could consider whether the warning—regardless of its adequacy—re-duced those risks . . . to such an extent that it eliminated the unreasonable danger”). [ 2 ]      Thus, in accordance with New Hampshire law, the jury was presented with evidence relevant to, and was instructed to consider, whether Mutual had fulfilled its duty to label sulindac adequately so as to render the drug not “unreasonably dangerous.” In holding Mutual liable, the jury determined that Mutual had breached that duty. C      The duty imposed by federal law is far more readily apparent. As PLIVA made clear, federal law prevents generic drug manufacturers from changing their labels. See 564 U. S., at ___ (slip op., at 10) (“Federal drug regulations, as interpreted by the FDA, prevented the Manufacturers from independently changing their generic drugs’ safety labels”). See also 21 U. S. C. §355(j)(2)(A)(v) (“[T]he labeling proposed for the new drug is the same as the labeling approved for the [approved brand-name] drug”); 21 CFR §§314.94(a)(8)(iii), 314.150(b)(10) (approval for a generic drug may be withdrawn if the generic drug’s label “is no longer consistent with that for [the brand-name] drug”). Thus, federal law prohibited Mutual from taking the remedial action required to avoid liability under New Hampshire law. D      When federal law forbids an action that state law requires, the state law is “without effect.” Maryland, 451 U. S., at 746. Because it is impossible for Mutual and other similarly situated manufacturers to comply with both state and federal law, [ 3 ] New Hampshire’s warning-based design-defect cause of action is pre-empted with respect to FDA-approved drugs sold in interstate commerce. [ 4 ] IV      The Court of Appeals reasoned that Mutual could escape the impossibility of complying with both its federal- and state-law duties by “choos[ing] not to make [sulindac] at all.” 678 F. 3d, at 37. We reject this “stop-selling” rationale as incompatible with our pre-emption jurisprudence. Our pre-emption cases presume that an actor seeking to satisfy both his federal- and state-law obligations is not required to cease acting altogether in order to avoid liability. Indeed, if the option of ceasing to act defeated a claim of impossibility, impossibility pre-emption would be “all but meaningless.” 564 U. S., at ___ (slip op., at 14).      The incoherence of the stop-selling theory becomes plain when viewed through the lens of our previous cases. In every instance in which the Court has found impossibility pre-emption, the “direct conflict” between federal- and state-law duties could easily have been avoided if the regulated actor had simply ceased acting.      PLIVA is an obvious example: As discussed above, the PLIVA Court held that state failure-to-warn claims were pre-empted by the FDCA because it was impossible for drug manufacturers like PLIVA to comply with both the state-law duty to label their products in a way that rendered them reasonably safe and the federal-law duty not to change their drugs’ labels. Id., at ___ (slip op., at 11). It would, of course, have been possible for drug manufacturers like PLIVA to pull their products from the market altogether. In so doing, they would have avoided liability under both state and federal law: such manufacturers would neither have labeled their products in a way that rendered them unsafe nor impermissibly changed any federally approved label.      In concluding that “it was impossible for the Manufacturers to comply with both their state-law duty to change the label and their federal law duty to keep the label the same,” id., at ___ (slip op., at 12), the Court was undeterred by the prospect that PLIVA could have complied with both state and federal requirements by simply leaving the market. The Court of Appeals decision below had found that Mensing’s state-law failure-to-warn claims escaped pre-emption based on the very same stop-selling rationale the First Circuit relied on in this case. See Mensing v. Wyeth, Inc., 588 F. 3d 603, 611 (CA8 2009) (“[G]eneric defendants were not compelled to market metoclopramide. If they realized their label was insufficient . . . they could have simply stopped selling the product”). Moreover, Mensing advanced the stop-selling rationale in its petition for rehearing, which this Court denied. PLIVA, supra; Pet. for Reh’g in No. 09–993 etc., p. 2. Nonetheless, this Court squarely determined that it had been “impossible” for PLIVA to comply with both its state and federal duties. 564 U. S., at ___ (slip op., at 12). [ 5 ]      Adopting the First Circuit’s stop-selling rationale would mean that not only PLIVA, but also the vast majority—if not all—of the cases in which the Court has found impossibility pre-emption, were wrongly decided.      Just as the prospect that a regulated actor could avoid liability under both state and federal law by simply leaving the market did not undermine the impossibility analysis in PLIVA, so it is irrelevant to our analysis here. V      The dreadful injuries from which products liabilities cases arise often engender passionate responses. Today is no exception, as Justice Sotomayor’s dissent (hereinafter the dissent) illustrates. But sympathy for respondent does not relieve us of the responsibility of following the law.      The dissent accuses us of incorrectly assuming “that federal law gives pharmaceutical companies a right to sell a federally approved drug free from common-law liability,” post, at 1, but we make no such assumption. Rather, as discussed at length above, see supra, at 8–13, we hold that state-law design-defect claims like New Hampshire’s that place a duty on manufacturers to render a drug safer by either altering its composition or altering its labeling are in conflict with federal laws that prohibit manufacturers from unilaterally altering drug composition or labeling. The dissent is quite correct that federal law establishes no safe-harbor for drug companies—but it does prevent them from taking certain remedial measures. Where state law imposes a duty to take such remedial measures, it “actual[ly] conflict[s] with federal law” by making it “ ‘impos-sible for a private party to comply with both state and federal requirements.’ ” Freightliner Corp. v. Myrick, 514 U. S. 280, 287 (1995) (quoting English, 496 U. S., at 78–79). The dissent seems to acknowledge that point when it concedes that, “if federal law requires a particular product label to include a complete list of ingredients while state law specifically forbids that labeling practice, there is little question that state law ‘must yield.’ ” Post, at 6–7 (quoting Felder v. Casey, 487 U. S. 131, 138 (1988) ). What the dissent does not see is that that is this case: Federal law requires a very specific label for sulindac, and state law forbids the use of that label.      The dissent responds that New Hampshire law “merely create[s] an incentive” to alter sulindac’s label or composition, post, at 7, but does not impose any actual “legal obligation,” post, at 13. The contours of that argument are difficult to discern.      Perhaps the dissent is drawing a distinction between common-law “exposure to liability,” post, at 12, and a statutory “legal mandate,” ibid. But the distinction between common law and statutory law is irrelevant to the argument at hand: In violating a common-law duty, as surely as by violating a statutory duty, a party contravenes the law. While it is true that, in a certain sense, common-law duties give a manufacturer the choice “between exiting the market or continuing to sell while knowing it may have to pay compensation to consumers injured by its product,” post, at 16, statutory “mandate[s]” do precisely the same thing: They require a manufacturer to choose between leaving the market and accepting the consequences of its actions (in the form of a fine or other sanction). See generally Calabresi & Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972) (discussing liability rules). And, in any event, PLIVA—which the dissent agrees involved a state-law “requirement that conflicted with federal law,” post, at 13—dealt with common-law failure-to-warn claims, see PLIVA, supra, at ___ (slip op., at 4). Because PLIVA controls the instant case, the dissent is reduced to fighting a rearguard action against its reasoning despite ostensibly swearing fealty to its holding.      To suggest that Bates v. Dow Agrosciences LLC, 544 U. S. 431 (2005) , is to the contrary is simply misleading. The dissent is correct that Bates held a Texas state-law design-defect claim not to be pre-empted. But, it did so because the design-defect claim in question was not a “requirement ‘for labeling or packaging’ ” and thus fell outside the class of claims covered by the express pre-emption provision at issue in that case. Id., at 443–444 (emphasis in original). Indeed, contrary to the impression one might draw from the dissent, post, at 12–13, the Bates Court actually blessed the lower court’s determination that the State’s design-defect claim imposed a pre-emptable “requirement”: “The Court of Appeals did, however, correctly hold that the term ‘requirements’ in §136v(b) reaches beyond positive enactments, such as statutes and regulations, to embrace common-law duties.” Bates, supra, at 443. The dissent offers no compelling reason why the “common-law duty” in this case should not similarly be viewed as a “requirement.” We agree, of course, that “determining precisely what, if any, specific requirement a state common-law claim imposes is important.” Post, at 12, n. 5. As Bates makes clear, “[t]he proper inquiry calls for an examination of the elements of the common-law duty at issue; it does not call for speculation as to whether a jury verdict will prompt the manu-facturer to take any particular action.” 544 U. S., at 445 (citation omitted). Here, as we have tried to make clear, the duty to ensure that one’s products are not “unreasonably dangerous” imposed by New Hampshire’s design-defect cause of action, Vautour, 147 N. H., at 153, 784 A. 2d, at 1181, involves a duty to make one of several changes. In cases where it is impossible—in fact or by law—to alter a product’s design (and thus to increase the product’s “usefulness” or decrease its “risk of danger”), the duty to render a product “reasonably safe” boils down to a duty to ensure “the presence and efficacy of a warning to avoid an unreasonable risk of harm from hidden dangers or from foreseeable uses.” Id., at 154, 784 A. 2d, at 1182. The duty to redesign sulindac’s label was thus a part of the common-law duty at issue—not merely an action Mutual might have been prompted to take by the adverse jury verdict here.      Finally, the dissent laments that we have ignored “Congress’ explicit efforts to preserve state common-law liability.” Post, at 26. We have not. Suffice to say, the Court would welcome Congress’ “explicit” resolution of the difficult pre-emption questions that arise in the prescription drug context. That issue has repeatedly vexed the Court—and produced widely divergent views—in recent years. See, e.g., Wyeth v. Levine, 555 U. S. 555 (2009) ; PLIVA, 564 U. S. ___. As the dissent concedes, however, the FDCA’s treatment of prescription drugs includes neither an express pre-emption clause (as in the vaccine context, 42 U. S. C. §300aa–22(b)(1)), nor an express non-pre-emption clause (as in the over-the-counter drug context, 21 U. S. C. §§379r(e), 379s(d)). In the absence of that sort of “explicit” expression of congressional intent, we are left to divine Congress’ will from the duties the statute imposes. That federal law forbids Mutual to take actions required of it by state tort law evinces an intent to pre-empt. *  *  *      This case arises out of tragic circumstances. A combination of factors combined to produce the rare and devastating injuries that respondent suffered: the FDA’s decision to approve the sale of sulindac and the warnings that accompanied the drug at the time it was prescribed, the decision by respondent’s physician to prescribe sulindac despite its known risks, and Congress’ decision to regulate the manufacture and sale of generic drugs in a way that reduces their cost to patients but leaves generic drug manufacturers incapable of modifying either the drugs’ compositions or their warnings. Respondent’s situation is tragic and evokes deep sympathy, but a straightforward application of pre-emption law requires that the judgment below be reversed. It is so ordered. Notes 1 We can thus save for another day the question whether a trueabsolute-liability state-law system could give rise to impossibilitypre-emption. As we have noted, most common-law causes of action for negligence and strict liability do not exist merely to spread risk, but rather impose affirmative duties. See Riegel v. Medtronic, Inc., –324 (2008) (“In [Medtronic, Inc. v. Lohr, ], five Justices concluded that common-law causes of action for negligence and strict liability do impose ‘requirement[s]’ and would be pre-empted by federal requirements specific to a medical device. . . . We adhere to that view”); id., at 324 (“Absent other indication, reference to a State’s ‘requirements’ includes its common-law duties. As the plurality opinion said in Cipollone [v. Liggett Group, (1992)], common-law liability is ‘premised on the existence of a legal duty,’ and a tort judgment therefore establishes that the defendant has violated a state-law obligation”). 2 That Mutual’s liability turned on the adequacy of sulindac’s warnings is not unusual. Rather, New Hampshire—like a large majority of States—has adopted comment k to §402A of the Restatement (Second) of Torts, which recognizes that it is “especially common in the field of drugs” for products to be “incapable of being made safe for their intended and ordinary use.” Restatement 2d, at 353; Bellotte v. Zayre Corp.,116 N. H. 52, 54–55, 352 A. 2d 723, 725 (1976). Under comment k, “[s]uch a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous.” Restatement 2d, at 353–354. This Court has previously noted that, as of 1986, “a large number of courts” took comment k to mean that manufacturers “did not face strict liability for side effects of properly manufactured prescription drugs that were accompanied by adequate warnings.” Bruesewitz v. Wyeth, 562 U. S. ___, ___, n. 41 (2011) (slip op., at 10, n. 41). Mutual withdrew its comment k defense “for purposes of the trial of this matter.” Defendant’s Notice of Withdrawal of Defenses, in Case No. 08–cv–358–JL (D NH), p. 1. However, as noted above, bothrespondent and the trial court injected the broader question of the adequacy of sulindac’s label into the trial proceedings. 3 Justice Breyer argues that it is not “literally impossible” for Mutual to comply with both state and federal law because it could escape liability “either by not doing business in the relevant State or by paying the state penalty, say damages, for failing to comply with, as here, a state-law tort standard.” Post, at 1 (dissenting opinion). But, as dis-cussed below, infra, at 15–16—leaving aside the rare case in which state or federal law actually requires a product to be pulled from the market—our pre-emption cases presume that a manufacturer’s ability to stop selling does not turn impossibility into possibility. See, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, (There would be “impossibility of dual compliance” where “federal orders forbade the picking and marketing of any avocado testingmore than 7% oil, while the California test excluded from the State any avocado measuring less than 8% oil content”). And, of course, PLIVA, Inc. v. Mensing, 564 U. S. ___ (2011), forecloses any argument that impossibility is defeated by the prospect that a manufacturer could “pa[y] the state penalty” for violating a state-law duty; that prospect would have defeated impossibility in PLIVA as well. See id., at ___ (slip op., at 12) (“[I]t was impossible for the Manufacturers to comply with both their state-law duty to change the label and their federal law duty to keep the label the same”). To hold otherwise would render impossibility pre-emption “all but meaningless.” Id., at ___ (slip op.,at 14). 4 We do not address state design-defect claims that parallel the federal misbranding statute. The misbranding statute requires a manufac-turer to pull even an FDA-approved drug from the market when it is “dangerous to health” even if “used in the dosage or manner, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof.” ; cf. Bates v. Dow Agrosciences LLC, (state-law pesticide labeling requirement not pre-empted under express pre-emption provision, provided it was “equivalent to, and fully consistent with, [federal] misbranding provisions”). The parties and the Government appear to agree that a drug is misbranded under federal law only when liability is based on new and scientifically significant information that was not before the FDA. Because the jury was not asked to find whether new evidence concerning sulindac that had not been made available to the FDA rendered sulindac so dangerous as to be misbranded under the federal misbranding statute, the misbranding provision is not applicable here. Cf. 760 F. Supp. 2d 220, 233 (NH 2011) (most of respondent’s experts’ testimony was “drawn directly from the medical literature or published FDA analyses”). 5 Respondent attempts to distinguish this case from PLIVA, arguing that “[w]here, as in PLIVA, state law imposes an affirmative duty on a manufacturer to improve the product’s label, suspending sales does not comply with the state-law duty; it merely offers an indirect means of avoiding liability for noncompliance with that duty.” Brief for Respondent 39. But that difference is purely semantic: the state-law duty in PLIVA to amend metoclopramide’s label could just as easily have been phrased as a duty not to sell the drug without adequate warnings. At least where a State imposes liability based on a balancing of a product’s harms and benefits in light of its labeling—rather than directly prohibiting the product’s sale—the mere fact that a manufacturer may avoid liability by leaving the market does not defeat a claim of impossibility. SUPREME COURT OF THE UNITED STATES _________________ No. 12–142 _________________ MUTUAL PHARMACEUTICAL COMPANY, INC., PETITIONER v. KAREN L. BARTLETT on writ of certiorari to the united states court of appeals for the first circuit [June 24, 2013]      Justice Breyer, with whom Justice Kagan joins, dissenting.      It is not literally impossible here for a company like petitioner to comply with conflicting state and federal law. A company can comply with both either by not doing busi- ness in the relevant State or by paying the state pen- alty, say damages, for failing to comply with, as here, a state-law tort standard. See post, at 16–18 (Sotomayor, J., dissenting). But conflicting state law that requires a company to withdraw from the State or pay a sizable damages remedy in order to avoid the conflict between state and federal law may nonetheless “ ‘stan[d] as an obstacle to the accomplishment’ of” the federal law’s ob- jective, in which case the relevant state law is pre-empted. Post, at 17 (quoting Crosby v. National Foreign Trade Coun-cil, 530 U. S. 363, 373 (2000) ).      Normally, for the reasons I set forth in Medtronic, Inc. v. Lohr, 518 U. S. 470, 503 (1996) (opinion concurring in part and concurring in judgment), in deciding whether there is such a conflict I would pay particular attention to the views of the relevant agency, here the Food and Drug Administration (FDA). Where the statute contains no clear pre-emption command, courts may infer that the administrative agency has a degree of leeway to determine the extent to which governing statutes, rules, regulations, or other administrative actions have pre-emptive effect. See id., at 505–506 (citing Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735 –741 (1996); Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 721 (1985) ; Lawrence County v. Lead-Deadwood School Dist. No. 40–1, 469 U. S. 256 –262 (1985); Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 –845 (1984)). See also Wyeth v. Levine, 555 U. S. 555 –577 (2009). Cf. Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944) . The FDA is responsible for administering the relevant federal statutes. And the question of pre-emption may call for considerable drug-related expertise. Indeed, one might infer that, the more medically valuable the drug, the less likely Congress intended to permit a State to drive it from the marketplace.      At the same time, the agency can develop an informed position on the pre-emption question by providing interested parties with an opportunity to present their views. It can translate its understandings into particular pre-emptive intentions accompanying its various rules and regulations. And “[i]t can communicate those intentions  . . . through statements in ‘regulations, preambles, interpretive statements, and responses to comments.’ ” Medtronic, supra, at 506 (opinion of Breyer, J.). (quoting Hillsbor-ough, supra, at 718).      Here, however, I cannot give special weight to the FDA’s views. For one thing, as far as the briefing reveals, the FDA, in developing its views, has held no hearings on the matter or solicited the opinions, arguments, and views of the public in other ways. For another thing, the FDA has set forth its positions only in briefs filed in litigation, not in regulations, interpretations, or similar agency work product. See Bowen v. Georgetown Univ. Hospital, 488 U. S. 204 –213 (1988) (“[A]gency litigating positions that are wholly unsupported by regulations, rulings, or administrative practice” are entitled to less than ordinary weight). Cf. Christensen v. Harris County, 529 U. S. 576, 587 (2000) .      Finally, the FDA has set forth conflicting views on this general matter in different briefs filed at different times. Compare Wyeth, supra, at 577, 579, 580, n. 13 (noting that the FDA had previously found no pre-emption, that the United States now argued for pre-emption, and that this new position was not entitled to deference), with PLIVA, Inc. v. Mensing, 564 U. S. ___, ___, n. 3, ___ (2011) (slip op., at 6–7, n. 3, 8–11) (declining to defer to the United States’ argument against pre-emption and, instead, finding pre-emption), and with Brief for United States as Amicus Curiae 12–13 (now arguing, again, for pre-emption). See National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 981 (2005) (agency views that vary over time are accorded less weight); Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29 –42 (1983) (same); Verizon Communications Inc. v. FCC, 535 U. S. 467 , n. 20 (2002) (same).      Without giving the agency’s views special weight, I would conclude that it is not impossible for petitioner to comply with both state and federal regulatory schemes and that the federal regulatory scheme does not pre-empt state common law (read as potentially requiring petitioner to pay damages or leave the market). As two former FDA Commissioners tell us, the FDA has long believed that state tort litigation can “supplemen[t] the agency’s regulatory and enforcement activities.” Brief for Donald Ken- nedy et al. as Amici Curiae 5. See also Wyeth, supra, at 578 (“In keeping with Congress’ decision not to pre-empt common-law tort suits, it appears that the FDA traditionally regarded state law as a complementary form of drug regulation”).      Moreover, unlike the federal statute at issue in Medtronic, the statute before us contains no general pre-emption clause. See 518 U. S., at 481–482. Cf. Wyeth, supra, at 574 (presence of pre-emption clause could show that “Congress thought state-law suits posed an obstacle to its objectives”). Furthermore, I have found no con- vincing reason to believe that removing this particular drug from New Hampshire’s market, or requiring damage payments for it there, would be so harmful that it would seriously undercut the purposes of the federal statutory scheme. Cf. post, at 21–22.      Finally, similarly situated defendants in other cases remain free to argue for “obstacle pre-emption” in respect to damage payments or market withdrawal, and demonstrate the impossibility-of-compliance type of conflict that, in their particular cases, might create true incompatibility between state and federal regulatory schemes.      For these reasons, I respectfully dissent. SUPREME COURT OF THE UNITED STATES _________________ No. 12–142 _________________ MUTUAL PHARMACEUTICAL COMPANY, INC., PETITIONER v. KAREN L. BARTLETT on writ of certiorari to the united states court of appeals for the first circuit [June 24, 2013]      Justice Sotomayor, with whom Justice Ginsburg joins, dissenting.      In PLIVA, Inc. v. Mensing, 564 U. S. ___ (2011), this Court expanded the scope of impossibility pre-emption to immunize generic drug manufacturers from state-law failure-to-warn claims. Today, the Court unnecessarily and unwisely extends its holding in Mensing to pre-empt New Hampshire’s law governing design-defects with respect to generic drugs.      The Court takes this step by concluding that petitioner Mutual Pharmaceutical was held liable for a failure-to-warn claim in disguise, even though the District Court clearly rejected such a claim and instead allowed liability on a distinct theory. See infra, at 13–15. Of greater consequence, the Court appears to justify its revision of respondent Karen Bartlett’s state-law claim through an im-plicit and undefended assumption that federal law gives pharmaceutical companies a right to sell a federally approved drug free from common-law liability. Remarkably, the Court derives this proposition from a federal law that, in order to protect consumers, prohibits manufacturers from distributing new drugs in commerce without federal regulatory approval, and specifically disavows any intent to displace state law absent a direct and positive conflict.      Karen Bartlett was grievously injured by a drug that a jury found was unreasonably dangerous. The jury relied upon evidence that the drug posed a higher than normal risk of causing the serious skin reaction that produced her horrific injuries; carried other risks; and possessed no apparent offsetting benefits compared to similar pain relievers, like aspirin. See 760 F. Supp. 2d 220, 233–241, 243–244 (NH 2011). The Court laments her “tragic” situation, ante, at 20, but responsibility for the fact that Karen Bartlett has been deprived of a remedy for her injuries rests with this Court. If our established pre-emption principles were properly applied in this case, and if New Hampshire law were correctly construed, then federal law would pose no barrier to Karen Bartlett’s recovery. I re-spectfully dissent. I      I begin with “two cornerstones of our pre-emption jurisprudence,” Wyeth v. Levine, 555 U. S. 555, 565 (2009) , that should control this case but are conspicuously absent from the majority opinion. First, “ ‘the purpose of Congress is the ultimate touchstone’ in every pre-emption case.” Ibid. (quoting Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996) ). Second, we start from the “assumption that the historic police powers of the States [are] not to be superseded by [a] Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) . “That assumption,” we have explained, “applies with particular force when,” as is the case here, “Congress has legislated in a field traditionally occupied by the States.” Altria Group, Inc. v. Good, 555 U. S. 70, 77 (2008) . [ 1 ]      The Court applied both of these principles to the Fed-eral Food, Drug, and Cosmetic Act (FDCA), ch. 675, 52Stat. 1040, as amended, 21 U. S. C. §301 et seq., in Levine, where we held that a state failure-to-warn claim against a brand-name drug manufacturer was not pre-empted by federal law. 555 U. S., at 581. Tracing the history of federal drug regulation from the 1906 Federal Food and Drugs Act, 34Stat. 768, up to the FDCA and its major amendments, the Court explained that federal drug law and state common-law liability have long been understood to operate in tandem to promote consumer safety. See Levine, 555 U. S., at 566–568, 574. That basic principle, which the majority opinion elides, is essential to understanding this case.      The FDCA prohibits the “introduction into interstate commerce [of ] any new drug” without prior approval from the United States Food and Drug Administration (FDA). 21 U. S. C. §355(a). Brand-name and generic drug manufacturers are required to make different showings to receive agency approval in this premarketing review process. See ante, at 2–3. But in either case, the FDA’s per- mission to market a drug has never been regarded as a final stamp of approval of the drug’s safety. Under the FDCA, manufacturers, who have greater “access to information about their drugs” than the FDA, Levine, 555 U. S., at 578–579, retain the ultimate responsibility for the safety of the products they sell. In addition to their ongoing obligations to monitor a drug’s risks and to report adverse drug responses to the FDA, see 21 CFR §§314.80, 314.81, 314.98 (2012), manufacturers may not sell a drug that is “deemed to be misbranded” because it is “dangerous to health” when used in the dosage or manner called for in the drug’s label. 21 U. S. C. §352(j); see §331(a); Brief for United States as Amicus Curiae 30–31 (hereinafter U. S. Brief) (indicating that the misbranding prohibition may apply to a drug that was previously approved for sale when significant new scientific evidence demonstrates that the drug is unsafe).      Beyond federal requirements, state common law plays an important “complementary” role to federal drug regulation. Levine, 555 U. S., at 578. Federal law in this area was initially intended to “supplemen[t] the protection for consumers already provided by state regulation and common-law liability.” Id., at 566. And as Congress “enlarged the FDA’s powers,” it “took care to preserve state law.” Id., at 567. In the 1962 amendments to the FDCA, which established the FDA’s premarketing review in its modern form, Congress adopted a saving clause providing that the amendments should not be construed to invalidate any provision of state law absent “a direct and positive conflict.” §202, 76Stat. 793. And in the years since, with “state common-law suits ‘continu[ing] unabated de-spite . . . FDA regulation,’ ” Levine, 555 U. S., at 567 (quoting Riegel v. Medtronic, Inc., 552 U. S. 312, 340 (2008) (Ginsburg, J., dissenting)), Congress has not enacted a pre-emption provision for prescription drugs (whether brand-name or generic) even as it enacted such provisions with respect to other products regulated by the FDA. [ 2 ]      Congress’ preservation of a role for state law generally, and common-law remedies specifically, reflects a realistic understanding of the limitations of ex ante federal regu-latory review in this context. On its own, even rig- orous preapproval clinical testing of drugs is “generally . . . incapable of detecting adverse effects that oc- cur infrequently, have long latency periods, or affect subpopulations not included or adequately represented in the studies.” Kessler & Vladeck, A Critical Examina- tion of the FDA’s Efforts to Preempt Failure-to-Warn Claims, 96 Geo. L. J. 461, 471 (2008); see National Academies, Institute of Medicine, The Future of Drug Safety: Promoting and Protecting the Health of the Public 37–38 (2007) (hereinafter Future of Drug Safety) (discussing limitations “inherent” to a system of premarket clinical trials). Moreover, the FDA, which is tasked with monitoring thousands of drugs on the market and considering new drug applications, faces significant resource constraints that limit its ability to protect the public from dangerous drugs. See Levine, 555 U. S., at 578–579, and n. 11; Brief for Former FDA Commissioner Donald Kennedy et al. as Amici Curiae 6–7, 12–20. Tort suits can help fill the gaps in federal regulation by “serv[ing] as a catalyst” to identify previously unknown drug dangers. Bates v. Dow Agrosciences LLC, 544 U. S. 431, 451 (2005) .      Perhaps most significant, state common law provides injured consumers like Karen Bartlett with an opportu-nity to seek redress that is not available under federal law. “[U]nlike most administrative and legislative regulations,” common-law claims “necessarily perform an important re-medial role in compensating accident victims.” Sprietsma v. Mercury Marine, 537 U. S. 51, 64 (2002) . While the Court has not always been consistent on this issue, it has repeatedly cautioned against reading federal statutes to “remove all means of judicial recourse for those injured” when Congress did not provide a federal remedy. Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 251 (1984) ; see e.g., Bates, 544 U. S., at 449; Lohr, 518 U. S., at 487 (plurality opinion). And in fact, the legislative history of the FDCA suggests that Congress chose not to create a federal cause of action for damages precisely because it believed that state tort law would allow injured consumers to obtain compensation. See Levine, 555 U. S., at 574–575, and n. 7. II      In light of this background, Mutual should face an uphill climb to show that federal law pre-empts a New Hampshire strict-liability claim against a generic drug manufacturer for defective design. The majority nevertheless accepts Mutual’s argument that “compliance with both federal and state [law was] a physical impossibility.” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132 –143 (1963); see ante, at 7. But if state and fed-eral law are properly understood, it is clear that New Hampshire’s design-defect claim did not impose a legal obligation that Mutual had to violate federal law to satisfy. A      Impossibility pre-emption “is a demanding defense,” Le-vine, 555 U. S., at 573, that requires the defendant to show an “irreconcilable conflict” between federal and state legal obligations, Silkwood, 464 U. S., at 256. The logic underlying true impossibility pre-emption is that when state and federal law impose irreconcilable affirmative requirements, no detailed “inquiry into congressional de-sign” is necessary because the inference that Congress would have intended federal law to displace the conflicting state requirement “is inescapable.” Florida Lime, 373 U. S., at 142–143. So, for example, if federal law requires a particular product label to include a complete list of ingredients while state law specifically forbids that labeling practice, there is little question that state law “must yield.” Felder v. Casey, 487 U. S. 131, 138 (1988) .      The key inquiry for impossibility pre-emption, then, is to identify whether state and federal law impose directly conflicting affirmative legal obligations such that state law “require[s] the doing of an act which is unlawful under” federal law. California Fed. Sav. & Loan Assn. v. Guerra, 479 U. S. 272, 292 (1987) . Impossibility does not exist where the laws of one sovereign permit an activity that the laws of the other sovereign restricts or even prohibits. See Barnett Bank of Marion Cty., N. A. v. Nelson, 517 U. S. 25, 31 (1996) ; Michigan Canners & Freezers Assn., Inc. v. Agricultural Marketing and Bargaining Bd., 467 U. S. 461, 478, n. 21 (1984) . So, to modify the previous example, if federal law permitted (but did not require) a labeling practice that state law prohibited, there would be no irreconcilable conflict; a manufacturer could com- ply with the more stringent regulation. And by the same logic, impossibility does not exist where one sovereign’s laws merely create an incentive to take an action that the other sovereign has not authorized because it is possible to comply with both laws.      Of course, there are other types of pre-emption. Courts may find that state laws that incentivize what federal law discourages or forbid what federal law authorizes are pre-empted for reasons apart from impossibility: The state laws may fall within the scope of an express pre-emption provision, pose an obstacle to federal purposes and objectives, or intrude upon a field that Congress intended for federal law to occupy exclusively. See Crosby v. National Foreign Trade Council, 530 U. S. 363 –373 (2000). But absent a direct conflict between two mutually incompatible legal requirements, there is no impossibility and courts may not automatically assume that Congress intended for state law to give way. Instead, a more careful inquiry into congressional intent is called for, and that inquiry should be informed by the presumption against pre-emption.      In keeping with the strict standard for impossibility, cases that actually find pre-emption on that basis are rare. See Abrams, Plenary Power Preemption, 99 Va. L. Rev. 601, 608 (2013). Mensing is an outlier, as the Court found impossibility because a generic drug manufacturer could not strengthen its product label to come into line with a state-law duty to warn without the exercise of judgment by the FDA. See 564 U. S., at ___–___ (slip op., at 13–14). But nothing in Mensing, nor any other precedent, dictates finding impossibility pre-emption here. B      To assess whether it is physically impossible for Mutual to comply with both federal and state law, it is necessary to identify with precision the relevant legal obligations imposed under New Hampshire’s design-defect cause of action.      The majority insists that Mutual was required by New Hampshire’s design-defect law to strengthen its warning label. In taking this position, the majority effectively re-characterizes Bartlett’s design-defect claim as a de facto failure-to-warn claim. The majority then relies on that re-characterization to hold that the jury found Mutual liable for failing to fulfill its duty to label sulindac adequately, which Mensing forbids because a generic drug manufacturer cannot independently alter its safety label. Ante, at 13; see Mensing, 564 U. S., at ___ (slip op., at 10). But the majority’s assertion that Mutual was held liable in this case for violating a legal obligation to change its label is inconsistent with both New Hampshire state law and the record.      For its part, Mutual, in addition to making the argument now embraced by the majority, contends that New Hampshire’s design-defect law effectively required it to change the chemical composition of sulindac. Mutual claims that it was physically impossible to comply with that duty consistent with federal law because drug manufacturers may not change the chemical composition of their products so as to create new drugs without submitting a new drug application for FDA approval. See 21 CFR §§310.3(h), 314.70(b)(2)(i). But just as New Hampshire’s design-defect law did not impose a legal obligation for Mutual to change its label, it also did not mandate that Mutual change the drug’s design. 1 a      Following blackletter products liability law under §402A of the Restatement (Second) of Torts (1963–1964) (hereinafter Second Restatement), New Hampshire recognizes strict liability for three different types of product defects: manufacturing defects, design defects, and warning defects. See Cheshire Medical Center v. W. R. Grace & Co., 49 F. 3d 26, 29 (CA1 1995). Because the District Court granted Mutual summary judgment on Bartlett’s failure-to-warn claim, only New Hampshire’s design-defect cause of action remains at issue in this case.      A product has a defective design under New Hampshire law if it “poses unreasonable dangers to consumers.” Thibault v. Sears, Roebuck & Co., 118 N. H. 802, 807, 395 A. 2d 843, 846 (1978). To determine whether a product is unreasonably dangerous, a jury is asked to make a risk-benefit assessment by considering a nonexhaustive list of factors. See ante, at 9–10. In addition, New Hamp-shire has specifically rejected the doctrine, advocated by the Restatement (Third) of Torts: Products Liability §2(b) (1997) (hereinafter Third Restatement), that a plaintiff must present evidence of a reasonable alternative design to show that a product’s design is defective. Instead, “while proof of an alternative design is relevant in a design defect case,” it is “neither a controlling factor nor an essential element.” Vautour v. Body Masters Sports Industries, Inc., 147 N. H. 150, 156, 784 A. 2d 1178, 1183 (2001).      While some jurisdictions have declined to apply design-defect liability to prescription drugs, New Hampshire, in common with many other jurisdictions, does subject prescriptions drugs to this distinct form of strict products liability. See 678 F. 3d 30, 35 (CA1 2012) (citing Brochu v. Ortho Pharmaceutical Corp., 642 F. 2d 652, 655 (CA1 1981)); see also Third Restatement §6, Comment f (collecting cases from other jurisdictions). Drug manufacturers in New Hampshire have an affirmative defense under comment k to §402A of the Second Restatement, which exempts “[u]navoidably unsafe products” from strict liability if the product is properly manufactured and labeled. As explained by the lower courts in this case, see 678 F. 3d, at 36; 731 F. Supp. 2d 135, 150–151 (NH 2010), New Hampshire takes a case-by-case approach to comment k under which a defendant seeking to invoke the defense must first show that the product is highly useful and that the dan-ger imposed by the product could not have been avoided through a feasible alternative design. See Brochu, 642 F. 2d, at 657. Comment k did not factor into the jury’s assessment of liability in this case because Mutual abandoned a comment k defense before trial. Ante, at 12, n. 2. [ 3 ] b      The design-defect claim that was applied to Mutual subjects the manufacturer of an unreasonably dangerous product to liability, but it does not require that manufacturer to take any specific action that is forbidden by federal law. Specifically, and contrary to the majority, see ante, at 11, New Hampshire’s design-defect law did not require Mutual to change its warning label. A drug’s warning label is just one factor in a nonexclusive list for evaluating whether a drug is unreasonably dangerous, see Vautour, 147 N. H., at 156, 784 A. 2d, at 1183, and an adequate label is therefore neither a necessary nor a sufficient con-dition for avoiding design-defect liability. Likewise, New Hampshire law imposed no duty on Mutual to change sulindac’s chemical composition. The New Hampshire Supreme Court has held that proof of an alternative fea-sible design is not an element of a design-defect claim, see Kelleher v. Marvin Lumber & Cedar Co., 152 N. H. 813, 831, 891 A. 2d 477, 492 (2006), and as the majority recognizes, ante, at 11, sulindac was not realistically capable of being redesigned anyway because it is a single-molecule drug. [ 4 ]      To be sure, New Hampshire’s design-defect claim creates an incentive for drug manufacturers to make changes to its product, including to the drug’s label, to try to avoid liability. And respondent overstates her case somewhat when she suggests that New Hampshire’s strict-liability law is purely compensatory. See Brief for Respondent 19. As is typically true of strict-liability regimes, New Hampshire’s law, which mandates compensation only for “defective” products, serves both compensatory and regulatory purposes. See Heath v. Sears, Roebuck & Co., 123 N. H. 512, 521–522, 464 A. 2d 288, 293 (1983). But exposure to liability, and the “incidental regulatory effects” that flow from that exposure, Goodyear Atomic Corp. v. Miller, 486 U. S. 174 –186 (1988), is not equivalent to a legal mandate for a regulated party to take (or refrain from taking) a specific action. This difference is a significant one: A mandate leaves no choice for a party that wishes to comply with the law, whereas an incentive may only influence a choice.      Our cases reflect this distinction. In Bates, for exam-ple, we rejected an argument that design-defect claims brought against a pesticide manufacturer were pre-empted because they would likely “induce” the manufacturer to change its product label and thus run afoul of an express pre-emption provision forbidding state labeling “requirements” that were different or in addition to federal requirements. 544 U. S., at 444–446. A requirement, we explained, “is a rule of law that must be obeyed.” Id., at 445. “[A]n event, such as a jury verdict, that merely motivates an optional decision,” does not rise to that level. Ibid. [ 5 ]      So too here. The fact that imposing strict liability for injuries caused by a defective drug design might make a drug manufacturer want to change its label or design (or both) does not mean the manufacturer was actually required by state law to take either action. And absent such a legal obligation, the majority’s impossibility argument does not get off the ground, because there was no state requirement that it was physically impossible for Mutual to comply with while also following federal law. The case is therefore unlike Mensing, where it was “undisputed” that applicable state tort law “require[d] a drug manufacturer that is or should be aware of its product’s danger” to strengthen its label—a requirement that conflicted with federal law preventing the manufacturer from doing so uni-laterally, 564 U. S., at ___, ___ (slip op., at 4, 11–12). New Hampshire’s design-defect law did not require Mu-tual to do anything other than to compensate consumers who were injured by an unreasonably dangerous drug. 2      Moreover, the trial record in this case confirms that, con-trary to the majority’s insistence, Mutual was not held liable for “breach[ing] [its] duty” “to label sulindac adequately.” Ante, at 13.      When Bartlett filed suit against Mutual, she raised distinct claims based on design defect and failure to warn. App. 102–108; see 659 F. Supp. 2d 279, 282 (NH 2009). Pursuing both claims was consistent with New Hampshire law’s recognition that “design defect and failure to warn claims are separate.” LeBlanc v. American Honda Motor Co., 141 N. H. 579, 586, 688 A. 2d 556, 562 (1997). After the District Court granted summary judgment to Mutual on the failure-to-warn claim, the court repeatedly explained that an alleged failure to warn by Mutual could not and did not provide the basis for Bartlett’s recovery. See 760 F. Supp. 2d, at 248–249. [ 6 ]      The majority notes that the District Court admitted evidence regarding sulindac’s label. Ante, at 11–12. But the court did so because the label remained relevant for the more limited purpose of assessing, in combination with other factors, whether sulindac’s design was defective because the product was unreasonably dangerous. See 678 F. 3d, at 41. The District Court’s instructions to the jury adhered to this limited purpose. The court first told the jury to determine whether sulindac was unreasonably dangerous by weighing its danger against its utility. App. 513. The court further instructed the jury that if it determined that sulindac was unreasonably dangerous without reference to the warning label, it could then consider the presence and efficacy of the label to evaluate whether the product was unreasonably dangerous “even with its warning.” Id., 513–514. In other words, to hold Mutual liable, the jury was required to find that sulindac “was unreasonably dangerous despite its warning, not because of it.” Id., at 341. The District Court also explained to the jury that because Bartlett’s claim addressed only whether sulindac’s design was defective, Mutual’s conduct, “which included any failure to change its warning, was ‘not relevant to this case.’ ” 760 F. Supp. 2d, at 248.      The distinction drawn by the District Court between permissible and impermissible uses of evidence regarding sulindac’s label is faithful to New Hampshire law. That law recognizes that the effectiveness of a warning label is just one relevant factor in determining whether a product’s design is unreasonably dangerous, and that design-defect and failure-to-warn claims are “separate.” LeBlanc, 141 N. H., at 586, 688 A. 2d, at 562. [ 7 ] In short, as the District Court made clear, Mutual was not held liable for “failing to change” its warning. 760 F. Supp., at 248–249. C      Given the distinction that New Hampshire draws between failure-to-warn claims and design-defect claims, as well as the clear and repeated statements by the trial judge that Mutual’s liability was not predicated on breaching a duty to label sulindac adequately, on what basis does the majority reach a contrary conclusion? Though the majority insists otherwise, ante, at 17, it appears to rely principally on an implicit assumption about rights conferred by federal premarket approval under the FDCA. After correctly observing that changing sulindac’s chemical composition would create a new drug that would have to go through its own approval process, the majority reasons that Mutual must have been under a state-law duty to change its label because it had no other option to avoid liability while continuing to sell its product. Ante, at 10–11. But that conclusion is based on a false premise.      A manufacturer of a drug that is unreasonably dangerous under New Hampshire law has multiple options: It can change the drug’s design or label in an effort to alter its risk-benefit profile, remove the drug from the market, or pay compensation as a cost of doing business. If federal law or the drug’s chemical properties take the redesign option off the table, then that does not mean the manufacturer suddenly has a legal obligation under state law to improve the drug’s label. Indeed, such a view of state law makes very little sense here because even if Mutual had strengthened its label to fully account for sulindac’s risks, the company might still have faced liability for having a defective design. See Thibault, 118 N. H., at 808, 395 A. 2d, at 847 (explaining that strict liability “may attach even though . . . there was an adequate warning”). When a manufacturer cannot change the label or when doing so would not make the drug safe, the manufacturer may still choose between exiting the market or continuing to sell while knowing it may have to pay compensation to consumers injured by its product. [ 8 ]      From a manufacturer’s perspective, that may be an un-welcome choice. But it is a choice that a sovereign State may impose to protect its citizens from dangerous drugs or at least ensure that seriously injured consumers receive compensation. That is, a State may impose such a choice unless the FDCA gives manufacturers an absolute right to sell their products free from common-law liability, or state law otherwise “stands as an obstacle to the accomplishment” of federal objectives. Crosby, 530 U. S., at 373 (internal quotation marks omitted). Because the majority does not rely on obstacle pre-emption, it must believe that a manufacturer that received FDA premarket approval has a right not only to keep its drug on the market unless and until the FDA revokes approval, but also to be free from state-law liability that makes doing so more expensive. That proposition is fundamentally inconsistent with the FDCA’s text, structure, saving clause, and his-tory. See supra, at 3–6; Levine, 555 U. S., at 583 (Thomas, J., concurring in judgment).      It is simply incorrect to say that federal law presupposes that drug manufacturers have a right to continue to sell a drug free from liability once it has been approved. Nothing in the language of the FDCA, which is framed as a prohibition on distribution without FDA approval, see 21 U. S. C. §355(a), suggests such a right. Federal law itself bars the sale of previously approved drugs if new information comes to light demonstrating that the drug is “dangerous to health” and thus “misbranded.” See §§331(a), 352(j); see supra, at 3–4. [ 9 ] Even outside that sce- nario, manufacturers regularly take drugs off the market when evidence emerges about a drug’s risks, particu- larly when safer drugs that provide the same therapeutic benefits are available. [ 10 ] According to the FDA, while it has formal authority to withdraw approval for a drug based on new adverse information, see §355(e), it is far more common for a manufacturer to stop selling its product voluntarily after the FDA advises the manufacturer that the drug is unsafe and that its risk-benefit profile cannot be adequately addressed through labeling changes or other measures. See U. S. Brief 5.      New Hampshire’s design-defect cause of action thus does no more than provide an impetus for an action that is permitted and sometimes encouraged or even required by federal law. D      The majority derides any suggestion that Mutual’s ability to “stop selling” sulindac is relevant to the validity of its impossibility pre-emption defense. Ante, at 2, 14–16. But the majority’s argument is built on the mistaken premise that Mutual is legally obligated by New Hampshire’s design-defect law to modify its label in a way that federal law forbids. It is not. See supra, at 11–13. For that reason, rejecting impossibility pre-emption here would not render the doctrine “a dead letter” or “ ‘all but meaningless.’ ” Ante, at 2, 15 (quoting Mensing, 564 U. S., at ___ (slip op., at 14)). On the other hand, it is the major- ity that “work[s] a revolution in this Court’s [impossibility] pre-emption case law,” ante, at 2, by inferring a state-law requirement from the steps a manufacturer might wish to take to avoid or mitigate its exposure to liability.      Not all products can be made safe for sale with an improved warning or a tweak in design. New Hampshire, through its design-defect law, has made a judgment that some drugs that were initially approved for distribution turn out to be inherently and unreasonably dangerous and should therefore not be sold unless the manufacturer is willing to compensate injured consumers. Congressional intent to pre-empt such a cause of action cannot be gleaned from the existence of federal specifications that apply to the product if it is sold. Instead, whether New Hampshire’s design-defect cause-of-action is pre-empted depends on assessing whether it poses an obstacle to a federal policy to approve sulindac for use. Yet the major-ity skips that analysis and instead finds impossibility where it does not exist by relying on a question-begging assumption that Congress intended for Mutual to have a way to continue selling sulindac without incurring common-law liability. See ante, at 9–11.      The distinction between impossibility and obstacle pre-emption is an important one. While obstacle pre-emption can be abused when courts apply an overly broad conception of the relevant federal purpose to find pre-emption, see Levine, 555 U. S., at 601–602 (Thomas, J., concurring in judgment), it is a useful framework for a case like this one because it would at least lead the Court to ask the right questions.      For example, properly evaluating the asserted conflict here through the lens of obstacle pre-emption would allow the Court to consider evidence about whether Congress intended the FDA to make an optimal safety determination and set a maximum safety standard (in which case state tort law would undermine the purpose) rather than a minimal safety threshold (in which case state tort law could supplement it). See, e.g., Williamson v. Mazda Motor of America, Inc., 562 U. S. ___, ___ (2011) (slip op., at 11). By contrast, the majority’s overbroad impossibility framework takes no account of how federal drug safety review actually works. Though the majority gestures to the rigorous nature of the FDA’s review of new drug ap-plications, ante, at 2–3, nothing in the majority’s reasoning turns on how the FDA’s premarketing review operates or on the agency’s capacity to engage in postmarketing review.      In taking the approach it does, the majority replaces careful assessment of regulatory structure with an ipse dixit that pharmaceutical companies must have a way to “escape liability,” ante, at 11, while continuing to sell a drug that received FDA approval. As a result, the major-ity effectively makes a highly contested policy judgment about the relationship between FDA review and state tort law—treating the FDA as the sole guardian of drug safety—without defending its judgment and without con-sidering whether that is the policy judgment that Congress made. [ 11 ] III      While the majority never addresses obstacle pre-emption, Mutual did argue in the alternative that Bartlett’s design-defect cause of action is pre-empted because it conflicts with the purposes and objectives of the FDCA, as supplemented by the Hatch-Waxman Act, 98Stat. 1585. Though it presents a closer question than the impossibility argument on which the majority relies, I would reject Mutual’s obstacle pre-emption defense as well.      Mutual’s most substantial contention is that New Hamp-shire’s design-defect claim frustrates the policy under-lying the FDCA’s broader scheme of vesting authority in the FDA as an expert agency to determine which drug designs should enter and remain in interstate commerce. The FDA, through an amicus brief filed by the United States, generally supports this argument. The FDA states that the question whether a design-defect claim [ 12 ] is pre-empted is “difficult and close,” and it recognizes that “[s]everal factors do weigh in favor of finding no preemption,” including the absence of textual support in the FDCA for the idea that an approved drug must be made available in any particular State. See U. S. Brief 12, 21–22. But the FDA ultimately contends that design-defect claims are pre-empted unless they parallel the FDCA’s misbranding prohibition because the agency be-lieves that permitting juries to balance the health risks and benefits of an FDA-approved drug would undermine the FDA’s drug-safety determinations and could reduce access to drugs that the FDA has determined are safe and effective.      Our cases have “given ‘some weight’ to an agency’s views about the impact of tort law on federal objectives when ‘the subject matter is technica[l] and the relevant history and background are complex and extensive.’ ” Levine, 555 U. S., at 576 (quoting Geier v. American Honda Motor Co., 529 U. S. 861, 883 (2000) ). But courts do not “defe[r] to an agency’s conclusion that state law is pre-empted,” 555 U. S., at 576, and the tension that the FDA identifies in an effort to justify complete pre-emption of design-defect claims for prescription drugs does not satisfy the “ high threshold [that] must be met if a state law is to be pre-empted for conflicting with the purposes of a federal Act,” Chamber of Commerce of United States of America, v. Whiting, 563 U. S. ___, ___ (2011) (slip op., at 22) (internal quotation marks omitted); see Silkwood, 464 U. S., at 256. Given the FDCA’s core purpose of protecting consumers, our recognition in Levine that state tort law generally complements the statute’s safety goals, the practical limits on the FDA’s ability to monitor and promptly address concerns about drug safety once a drug is in the market, see supra, at 5, 20–21, n. 11, and the absence of any federal remedy for injured consumers, I would reject this broad obstacle pre-emption argument as well. [ 13 ] IV      The most troubling aspect of the majority’s decision to once again expand the scope of this Court’s traditionally narrow impossibility pre-emption doctrine is what it implies about the relationship between federal premarket review and state common-law remedies more generally. Central to the majority’s holding is an assumption that manufacturers must have a way to avoid state-law lia-bility while keeping particular products in commerce. See ante, at 9–11, 14–15. This assumption, it seems, will always create an automatic conflict between a federal premarket review requirement and state-law design-defect liability because premarket review, by definition, prevents manufacturers from unilaterally changing their products’ designs. [ 14 ] That is true, for example, of the designs (i.e., the chemical composition) of brand-name drugs under the FDCA no less than it is for generic drugs. See ante, at 3–4.      If the creation of such an automatic conflict is the ultimate end-point of the majority’s continued expansion of impossibility pre-emption, then the result is frankly astonishing. Congress adopted the FDCA’s premarketing approval requirement in 1938 and then strengthened it in 1962 in response to serious public-health episodes involving unsafe drugs. See Future of Drug Safety 152. Yet by the majority’s lights, the very act of creating that requirement in order to “safeguard the consumer,” United States v. Sullivan, 332 U. S. 689, 696 (1948) , also created by operation of law a shield for drug manufacturers to avoid paying common-law damages under state laws that are also designed to protect consumers. That is so notwithstanding Congress’ effort to disclaim any intent to pre-empt all state law. See supra, at 4. The majority’s reasoning thus “has the ‘perverse effect’ of granting broad immunity ‘to an entire industry that, in the judgment of Congress, needed more stringent regulation.’ ” Riegel, 552 U. S., at 338 (Ginsburg, J., dissenting) (quoting Lohr, 518 U. S., at 487 (plurality opinion)).      This expanded notion of impossibility pre-emption threatens to disturb a considerable amount of state law. The FDCA’s premarket approval process for prescription drugs has provided a model for the regulation of many other products. [ 15 ] In some statutes, Congress has paired premarket regulatory review with express pre-emption provisions that limit the application of state common-law remedies, including, in some instances, claims for defective product design. See, e.g., Riegel, 552 U. S., at 323–325; see supra, at 4, and n. 2. In other instances, such as with prescription drugs, it has not. Under the majority’s approach, it appears that design-defect claims are categorically displaced either way, and Congress’ efforts to set the boundaries of pre-emption more precisely were largely academic. This could have serious consequences for product safety. State design-defect laws play an important role not only in discovering risks, but also in providing in-centives for manufacturers to remove dangerous products from the market promptly. See Levine, 555 U. S., at 578–579; Bates, 544 U. S., at 451; see also Conk, Is There a Design Defect in the Restatement (Third) of Torts: Products Liability? 109 Yale L. J. 1087, 1130 (2000) (“The tort system can encourage FDA regulatory vigor and competence”). If manufacturers of products that require preapproval are given de facto immunity from design-defect liability, then the public will have to rely exclusively on imperfect federal agencies with limited resources and sometimes limited legal authority to recall approved products. And consumers injured by those products will have no recourse.      The manner in which Congress has addressed pre-emption with respect to vaccines is particularly instructive. “[V]accines have been subject to the same federal premarket approval process as prescription drugs,” and prior to Congress’ intervention, “compensation for vaccine-related injuries ha[d] been left largely to the States.” Bruesewitz v. Wyeth LLC, 562 U. S. ___, ___ (2011) (slip op., at 1). In 1986, in response to a rise in tort suits that produced instability in the vaccine market, Congress enacted the National Childhood Vaccine Injury Act (Vaccine Act), 42 U. S. C. §300aa–22(b)(1). The Act established a no-fault compensation program funded through an excise tax on vaccines to compensate individuals injured or killed by vaccine side effects. “The quid pro quo for this” system, the Court stated in Bruesewitz, “was the provision of significant tort-liability protections for vaccine manufacturers.” 562 U. S., at ___ (slip op., at 4).      While Members of this Court disagreed on the scope of the tort protections the Vaccine Act was intended to offer, the Act’s history demonstrates that Congress is perfectly capable of responding when it believes state tort law may compromise significant federal objectives under a scheme of premarket regulatory review for products it wants to make available. And it illustrates that “an important reason to require that preemption decisions be made by Congress,” rather than by courts on the basis of an expanded implied pre-emption doctrine, is Congress’ ability to tie its pre-emption decisions “to some alternative means for securing compensation.” Metzger, Federalism and Fed-eral Agency Reform, 111 Colum. L. Rev. 1, 33 (2011). By instead reaching out to find pre-emption in a context where Congress never intended it, the majority leaves consumers like Karen Bartlett to bear enormous losses on their own. *  *  *      The Court recognizes that “[t]his case arises out of tragic circumstances.” Ante, at 20. And I do not doubt that Members of the majority personally feel sympathy for Karen Bartlett. But the Court’s solemn affirmation that it merely discharges its duty to “follo[w] the law,” ante, at 17, and gives effect to Congress’ policy judgment, rather than its own, is hard to accept. By once again expanding the scope of impossibility pre-emption, the Court turns Congress’ intent on its head and arrives at a holding that is irreconcilable with our precedents. As a result, the Court has left a seriously injured consumer without any remedy despite Congress’ explicit efforts to preserve state common-law liability.      I respectfully dissent. Notes 1 The majority’s failure to adhere to the presumption against pre-emption is well illustrated by the fact that the majority calls on Congress to provide greater clarity with regard to the “difficult pre-emption questions that arise in the prescription drug context.” Ante, at 19–20. Certainly, clear direction from Congress on pre-emption questions is useful. But the whole point of the presumption against pre-emption is that congressional ambiguity should cut in favor of preserving state autonomy. See Rice v. Santa Fe Elevator Corp., . 2 See (medical devices); §379r (labeling requirements for nonprescription drugs); §379s (labeling and packaging requirements for cosmetics); –22(b)(1) (vaccines). Instructively, Congress included a saving clause in the statutes addressing nonprescription drugs and cosmetics, which makes clear that the express pre-emption provisions in these statutes do not affect state product liability law. See 21 U. S. C. §§379r(e), 379s(d). 3 Though the majority does not rely on comment k to find pre-emption, it misleadingly implies that New Hampshire, like “a large majority of States,” has applied comment k categorically to prescription drugs to exempt manufacturers from “ ‘strict liability for side effects of properly manufactured prescription drugs that [are] accompanied by ade-quate warnings.’ ” Ante, at 12, n. 2 (quoting Bruesewitz v. Wyeth LLC, 562 U. S. ___, ___, n. 41 (2011) (slip op., at 10, n. 41). That is in-correct. The majority also neglects to mention that while some courts have applied comment k categorically to prescription drug designs, “[m]ost courts have stated that there is no justification for giving all prescription drug manufacturers blanket immunity from strict liability under comment k.” 2 American Law of Products Liability 3d §17.45,p. 108 (2010). Like New Hampshire courts, these courts apply comment k on a case-by-case basis. See 1 L. Frumer & M. Friedman, Products Liability §8.07[5], pp. 8–287 to 8–293 (2012). 4 Because of this feature of New Hampshire law, it is unnecessary to consider whether the pre-emption analysis would differ in a jurisdiction that required proof of a feasible alternative design as an element of liability. 5 The majority suggests my account of Bates is “simply misleading,” ante, at 18, but it simply misses the point. I recognize that, under the Court’s precedents, common-law duties may qualify as “requirements,” at least as that term has been used in express pre-emption provisions in federal law. See Riegel v. Medtronic, Inc., –324 (2008). But determining precisely what, if any, specific requirement a state common-law claim imposes is important. In Bates, the lower court had accepted the same basic argument that the majority advances here: that the plaintiffs’ design-defect claim that a pesticide was “unreasonably dangerous” was “merely a disguised claim for failure to warn” because success on the claim that the pesticide was dangerous to crops in soil above a certain pH level would “necessarily induce” a manufacturer to change its product’s label to avoid liability. Dow Agrosciences LLC v. Bates, 332 F. 3d 323, 332–333 (CA5 2003). This Court explicitly rejected the notion that because design-defect liability might lead a manufacturer to make a label change, it meant that the State’s design-defect claim imposed a requirement for labeling or packaging. See 544 U. S., at 445–446. The majority contends that this case is different because the duty to redesign sulindac’s label was an element of New Hampshire’s design-defect law. Ante, at 19. But it is not. See supra, at 11. Rather, altering a product label is merely one step a manufacturer might take to prevent its product from being considered unreasonably dangerous, and it is a step that New Hampshire law recognizes may be insufficient. See infra, at 16. 6 For example, in a ruling on proposed jury instructions, the District Court made clear that “Bartlett cannot be allowed to circumvent this court’s summary judgment ruling by using Sulindac’s warning to establish that the drug is unreasonably dangerous (i.e., arguing that Sulindac is unreasonably dangerous because of its warning), where this court has already ruled that any inadequacy in the warning did not cause Bartlett’s injuries.” App. 343. Doing so, the court explained “would effectively turn this case back into a failure-to-warn case, rendering the summary judgment ruling meaningless.” Ibid. The District Court later told counsel that it had removed a failure-to-warn instruction from the jury instructions because “[t]his is not a failure to warn case,” and the court admonished counsel to “tread care-fully” in arguing about the warning label because the label’s adequacy was “not an issue before this jury.” Id., at 496. 7 To the extent the majority believes that the District Court in practice allowed the adequacy of the warning label to play a greater roleat trial than it should have, see ante, at 11–12, that is irrelevant to the question before the Court. Statements by counsel, even if improper, do not change the state law cause of action that we evaluate for pre-emption purposes. And the Court of Appeals specifically concluded that the District Court’s jury instructions were appropriate and that “[i]f Mutual wanted a further caution in the instructions” concerning its warning label, then Mutual “should have sought it.” 678 F. 3d 30, 41–42 (CA1 2012). 8 The majority’s suggestion that a manufacturer’s option of continuing to sell while paying compensation is akin to violating a statutory mandate and then suffering the consequence (such as paying a fine) is flawed. See ante, at 18. In that scenario, the manufacturer would have violated the law, and the fact that the law is enforced through monetary sanctions (rather than through an injunction or imprisonment) would not change that. Here, no matter how many times the majority insists otherwise, ibid., a manufacturer who sells a drug whose design is found unreasonably dangerous based on a balance of factors has not violated a state law requiring it to change its label. In both cases, the manufacturer may owe money. But only in the former will it have failed to follow the law. Cf. National Federation of Independent Business v. Sebelius, 567 U. S. __, __ (2012) (slip op., at 32) (recognizing that a condition that triggers a tax is not necessarily a “legal command” to take a certain action). 9 The majority properly leaves open the question whether state design-defect claims that parallel the federal misbranding statute are pre-empted. See ante, at 14, n. 4. The majority fails to appreciate, however, that this statute undermines its impossibility argument (as compared to an argument based on obstacle pre-emption) because it shows that there is no federal right or obligation to continue to sell a drug like sulindac that was previously approved. In fact, the statute demonstrates that sometimes a drug manufacturer like Mutual may have a federal duty not to sell its drug. 10 See Government Accountability Office, Drug Safety: Improvement Needed in FDA’s Postmarket Decision-making and Oversight Process 10 (GAO–06–402, 2006) (noting that 10 drugs were voluntarily withdrawn for safety reasons between 2000 and 2006); Wysowski & Swartz, Adverse Drug Event Surveillance and Drug Withdrawals in the United States, 1969–2002, 165 Archives Internal Med. 1363 (2005) (noting that more than 75 drugs and drug products were withdrawn from the market for safety reasons between 1969 and 2002). 11 Defending a policy judgment that treats the FDA as the exclusive guarantor of drug safety would be no easy task in light of evidence that resource constraints and gaps in legal authority, among other factors, limit the agency’s ability to safeguard public health. See Kessler & Vladeck, A Critical Examination of the FDA’s Efforts to Preempt Failure-to-Warn Claims, 96 Geo. L. J. 461, 483–495 (2008); see also Wyeth v. Levine, –579, and n. 11 (2009). 12 The FDA purports to address what it calls a “pure” design-defect claim, and it references the Third Restatement §6 by way of illustration. The FDA’s separate discussion of a “pure” design-defect claim is based on the premise that New Hampshire’s design-defect claim turns on the adequacy of a drug’s warning. See U. S. Brief 20. But that is incorrect. See supra, at 11. 13 I note that we are not confronted with a case in which the FDA promulgated “lawful specific regulations describing” whether and under what circumstances state design-defect liability interferes with “the safe drug-related medical care” sought through the FDCA. Levine, 555 U. S., at 582 (Breyer, J., concurring). See also ante, at 2–3 (Breyer, J., dissenting). 14 Or at least it creates an automatic conflict with the caveat that design-defect claims that parallel a federal duty for manufacturers to withdraw a product might not be pre-empted. See ante, at 13–14, n. 3. 15 See, e.g., (pesticides); (food additives); §360b (animal drugs); §§360c(a)(1)(C), 360e (certain medical devices); §379e (color additives).

The Supreme Court ruled that federal law preempts state design-defect claims that impose a duty on drug manufacturers to change their labels, as this conflicts with federal law prohibiting generic drug manufacturers from independently altering drug labels. The Court rejected the argument that manufacturers should resolve this conflict by pulling their products from the market, as this would undermine impossibility preemption and revolutionize preemption case law.

Health Care

Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania

https://supreme.justia.com/cases/federal/us/591/19-431/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ Nos. 19–431 and 19–454 _________________ LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME, PETITIONER 19–431 v. PENNSYLVANIA, et al. DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al., PETITIONERS 19–454 v. PENNSYLVANIA, et al. on writs of certiorari to the united states court of appeals for the third circuit [July 8, 2020] Justice Thomas delivered the opinion of the Court. In these consolidated cases, we decide whether the Government created lawful exemptions from a regulatory requirement implementing the Patient Protection and Affordable Care Act of 2010 (ACA), 124Stat. 119. The requirement at issue obligates certain employers to provide contraceptive coverage to their employees through their group health plans. Though contraceptive coverage is not required by (or even mentioned in) the ACA provision at issue, the Government mandated such coverage by promulgating interim final rules (IFRs) shortly after the ACA’s passage. This requirement is known as the contraceptive mandate. After six years of protracted litigation, the Departments of Health and Human Services, Labor, and the Treasury (Departments)—which jointly administer the relevant ACA provision[ 1 ]—exempted certain employers who have religious and conscientious objections from this agency-created mandate. The Third Circuit concluded that the Departments lacked statutory authority to promulgate these exemptions and affirmed the District Court’s nationwide preliminary injunction. This decision was erroneous. We hold that the Departments had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections. We accordingly reverse the Third Circuit’s judgment and remand with instructions to dissolve the nationwide preliminary injunction. I The ACA’s contraceptive mandate—a product of agency regulation—has existed for approximately nine years. Litigation surrounding that requirement has lasted nearly as long. In light of this extensive history, we begin by summarizing the relevant background. A The ACA requires covered employers to offer “a group health plan or group health insurance coverage” that provides certain “minimum essential coverage.” 26 U. S. C. §5000A(f )(2); §§4980H(a), (c)(2). Employers who do not comply face hefty penalties, including potential fines of $100 per day for each affected employee. §§4980D(a)–(b); see also Burwell v. Hobby Lobby Stores , Inc. , 573 U.S. 682 , 696–697 (2014). These cases concern regulations promulgated under a provision of the ACA that requires covered employers to provide women with “preventive care and screenings” without “any cost sharing requirements.” 42 U. S. C. §300gg–13(a)(4).[ 2 ] The statute does not define “preventive care and screenings,” nor does it include an exhaustive or illustrative list of such services. Thus, the statute itself does not explicitly require coverage for any specific form of “preventive care.” Hobby Lobby , 573 U. S., at 697. Instead, Congress stated that coverage must include “such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration” (HRSA), an agency of the Department of Health and Human Services (HHS). §300gg–13(a)(4). At the time of the ACA’s enactment, these guidelines were not yet written. As a result, no specific forms of preventive care or screenings were (or could be) referred to or incorporated by reference. Soon after the ACA’s passage, the Departments began promulgating rules related to §300gg–13(a)(4). But in doing so, the Departments did not proceed through the notice and comment rulemaking process, which the Administrative Procedure Act (APA) often requires before an agency’s regulation can “have the force and effect of law.” Perez v. Mortgage Bankers Assn. , 575 U.S. 92, 96 (2015) (internal quotation marks omitted); see also 5 U. S. C. §553. Instead, the Departments invoked the APA’s good cause exception, which permits an agency to dispense with notice and comment and promulgate an IFR that carries immediate legal force. §553(b)(3)(B). The first relevant IFR, promulgated in July 2010, primarily focused on implementing other aspects of §300gg–13. 75 Fed. Reg. 41728. The IFR indicated that HRSA planned to develop its Preventive Care Guidelines (Guidelines) by August 2011. Ibid. However, it did not mention religious exemptions or accommodations of any kind. As anticipated, HRSA released its first set of Guidelines in August 2011. The Guidelines were based on recommendations compiled by the Institute of Medicine (now called the National Academy of Medicine), “a nonprofit group of volunteer advisers.” Hobby Lobby , 573 U. S., at 697. The Guidelines included the contraceptive mandate, which required health plans to provide coverage for all contraceptive methods and sterilization procedures approved by the Food and Drug Administration as well as related education and counseling. 77 Fed. Reg. 8725 (2012). The same day the Guidelines were issued, the Departments amended the 2010 IFR. 76 Fed. Reg. 46621 (2011). When the 2010 IFR was originally published, the Departments began receiving comments from numerous religious employers expressing concern that the Guidelines would “impinge upon their religious freedom” if they included contraception. Id. , at 46623. As just stated, the Guidelines ultimately did contain contraceptive coverage, thus making the potential impact on religious freedom a reality. In the amended IFR, the Departments determined that “it [was] appropriate that HRSA . . . tak[e] into account the [mandate’s] effect on certain religious employers” and concluded that HRSA had the discretion to do so through the creation of an exemption. Ibid. The Departments then determined that the exemption should cover religious employers, and they set out a four-part test to identify which employers qualified. The last criterion required the entity to be a church, an integrated auxiliary, a convention or association of churches, or “the exclusively religious activities of any religious order.” Ibid. HRSA created an exemption for these employers the same day. 78 Fed. Reg. 39871 (2013). Because of the narrow focus on churches, this first exemption is known as the church exemption. The Guidelines were scheduled to go into effect for plan years beginning on August 1, 2012. 77 Fed. Reg. 8725–8726. But in February 2012, before the Guidelines took effect, the Departments promulgated a final rule that temporarily prevented the Guidelines from applying to certain religious nonprofits. Specifically, the Departments stated their intent to promulgate additional rules to “accommodat[e] non-exempted, non-profit organizations’ religious objections to covering contraceptive services.” Id. , at 8727. Until that rulemaking occurred, the 2012 rule also provided a temporary safe harbor to protect such employers. Ibid. The safe harbor covered nonprofits “whose plans have consistently not covered all or the same subset of contraceptive services for religious reasons.”[ 3 ] Thus, the nonprofits who availed themselves of this safe harbor were not subject to the contraceptive mandate when it first became effective. The Departments promulgated another final rule in 2013 that is relevant to these cases in two ways. First, after reiterating that §300gg–13(a)(4) authorizes HRSA “to issue guidelines in a manner that exempts group health plans established or maintained by religious employers,” the Departments “simplif[ied]” and “clarif[ied]” the definition of a religious employer. 78 Fed. Reg. 39873.[ 4 ] Second, pursuant to that same authority, the Departments provided the anticipated accommodation for eligible religious organizations, which the regulation defined as organizations that “(1) [o]ppos[e] providing coverage for some or all of the contraceptive services . . . on account of religious objections; (2) [are] organized and operat[e] as . . . nonprofit entit[ies]; (3) hol[d] [themselves] out as . . . religious organization[s]; and (4) self-certif[y] that [they] satisf[y] the first three criteria.” Id. , at 39874. The accommodation required an eligible organization to provide a copy of the self-certification form to its health insurance issuer, which in turn would exclude contraceptive coverage from the group health plan and provide payments to beneficiaries for contraceptive services separate from the health plan. Id. , at 39878. The Departments stated that the accommodation aimed to “protec[t]” religious organizations “from having to contract, arrange, pay, or refer for [contraceptive] coverage” in a way that was consistent with and did not violate the Religious Freedom Restoration Act of 1993 (RFRA), 107Stat. 1488, 42 U. S. C. §2000bb et seq. 78 Fed. Reg. 39871, 39886–39887. This accommodation is referred to as the self-certification accommodation. B Shortly after the Departments promulgated the 2013 final rule, two religious nonprofits run by the Little Sisters of the Poor (Little Sisters) challenged the self-certification accommodation. The Little Sisters “are an international congregation of Roman Catholic women religious” who have operated homes for the elderly poor in the United States since 1868. See Mission Statement: Little Sisters of the Poor, http://www.littlesistersofthepoor.org/mission-statement. They feel called by their faith to care for their elderly residents regardless of “faith, finances, or frailty.” Brief for Residents and Families of Residents at Homes of the Little Sisters of the Poor as Amici Curiae 14. The Little Sisters endeavor to treat all residents “as if they were Jesus [Christ] himself, cared for as family, and treated with dignity until God calls them to his home.” Complaint ¶14 in Little Sisters of the Poor Home for the Aged , Denver , Colo. v. Sebelius , No. 1:13–cv–02611 (D Colo.), p. 5 (Complaint). Consistent with their Catholic faith, the Little Sisters hold the religious conviction “that deliberately avoiding reproduction through medical means is immoral.” Little Sisters of the Poor Home for the Aged , Denver , Colo. v. Burwell , 794 F.3d 1151, 1167 (CA10 2015). They challenged the self-certification accommodation, claiming that completing the certification form would force them to violate their religious beliefs by “tak[ing] actions that directly cause others to provide contraception or appear to participate in the Departments’ delivery scheme.” Id. , at 1168. As a result, they alleged that the self-certification accommodation violated RFRA. Under RFRA, a law that substantially burdens the exercise of religion must serve “a compelling governmental interest” and be “the least restrictive means of furthering that compelling governmental interest.” §§2000bb–1(a)–(b). The Court of Appeals disagreed that the self-certification accommodation substantially burdened the Little Sisters’ free exercise rights and thus rejected their RFRA claim. Little Sisters , 794 F. 3d, at 1160. The Little Sisters were far from alone in raising RFRA challenges to the self-certification accommodation. Religious nonprofit organizations and educational institutions across the country filed a spate of similar lawsuits, most resulting in rulings that the accommodation did not violate RFRA. See, e.g. , East Texas Baptist Univ. v. Burwell , 793 F.3d 449 (CA5 2015); Geneva College v. Secretary , U. S. Dept. of Health and Human Servs. , 778 F.3d 422 (CA3 2015); Priests for Life v. United States Dept. of Health and Human Servs. , 772 F.3d 229 (CADC 2014); Michigan Catholic Conference v. Burwell , 755 F.3d 372 (CA6 2014); University of Notre Dame v. Sebelius , 743 F.3d 547 (CA7 2014); but see Sharpe Holdings , Inc. v. United States Dept. of Health and Human Servs. , 801 F.3d 927 (CA8 2015); Dordt College v. Burwell , 801 F.3d 946 (CA8 2015). We granted certiorari in cases from four Courts of Appeals to decide the RFRA question. Zubik v. Burwell , 578 U. S. ___, ___ (2016) ( per curiam ). Ultimately, however, we opted to remand the cases without deciding that question. In supplemental briefing, the Government had “confirm[ed]” that “ ‘contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any . . . notice from petitioners.’ ” Id. , at ___ (slip op., at 3). Petitioners, for their part, had agreed that such an approach would not violate their free exercise rights. Ibid. Accordingly, because all parties had accepted that an alternative approach was “feasible,” ibid. , we directed the Government to “accommodat[e] petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans receive full and equal health coverage, including contraceptive coverage,” id. , at ___ (slip op., at 4) (internal quotation marks omitted). C Zubik was not the only relevant ruling from this Court about the contraceptive mandate. As the Little Sisters and numerous others mounted their challenges to the self-certification accommodation, a host of other entities challenged the contraceptive mandate itself as a violation of RFRA. See, e.g. , Hobby Lobby Stores , Inc. v. Sebelius , 723 F.3d 1114 (CA10 2013) (en banc); Korte v. Sebelius , 735 F.3d 654 (CA7 2013); Gilardi v. United States Dept. of Health and Human Servs. , 733 F.3d 1208 (CADC 2013); Conestoga Wood Specialties Corp. v. Secretary of U. S. Dept. of Health and Human Servs. , 724 F.3d 377 (CA3 2013); Autocam Corp. v. Sebelius , 730 F.3d 618 (CA6 2013). This Court granted certiorari in two cases involving three closely held corporations to decide whether the mandate violated RFRA. Hobby Lobby , 573 U.S. 682 . The individual respondents in Hobby Lobby opposed four methods of contraception covered by the mandate. They sincerely believed that human life begins at conception and that, because the challenged methods of contraception risked causing the death of a human embryo, providing those methods of contraception to employees would make the employers complicit in abortion. Id. , at 691, 720. We held that the mandate substantially burdened respondents’ free exercise, explaining that “[if] the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price.” Id. , at 691. “If these consequences do not amount to a substantial burden,” we stated, “it is hard to see what would.” Ibid. We also held that the mandate did not utilize the least restrictive means, citing the self-certification accommodation as a less burdensome alternative. Id. , at 730–731. Thus, as the Departments began the task of reformulating rules related to the contraceptive mandate, they did so not only under Zubik ’s direction to accommodate religious exercise, but also against the backdrop of Hobby Lobby ’s pronouncement that the mandate, standing alone, violated RFRA as applied to religious entities with complicity-based objections. D In 2016, the Departments attempted to strike the proper balance a third time, publishing a request for information on ways to comply with Zubik . 81 Fed. Reg. 47741. This attempt proved futile, as the Departments ultimately concluded that “no feasible approach” had been identified. Dept. of Labor, FAQs About Affordable Care Act Implementation Part 36, p. 4 (2017). The Departments maintained their position that the self-certification accommodation was consistent with RFRA because it did not impose a substantial burden and, even if it did, it utilized the least restrictive means of achieving the Government’s interests. Id. , at 4–5. In 2017, the Departments tried yet again to comply with Zubik , this time by promulgating the two IFRs that served as the impetus for this litigation. The first IFR significantly broadened the definition of an exempt religious employer to encompass an employer that “objects . . . based on its sincerely held religious beliefs,” “to its establishing, maintaining, providing, offering, or arranging [for] coverage or payments for some or all contraceptive services.” 82 Fed. Reg. 47812 (2017). Among other things, this definition included for-profit and publicly traded entities. Because they were exempt, these employers did not need to participate in the accommodation process, which nevertheless remained available under the IFR. Id. , at 47806. As with their previous regulations, the Departments once again invoked §300gg–13(a)(4) as authority to promulgate this “religious exemption,” stating that it “include[d] the ability to exempt entities from coverage requirements announced in HRSA’s Guidelines.” Id. , at 47794. Additionally, the Departments announced for the first time that RFRA compelled the creation of, or at least provided the discretion to create, the religious exemption. Id. , at 47800–47806. As the Departments explained: “We know from Hobby Lobby that, in the absence of any accommodation, the contraceptive-coverage requirement imposes a substantial burden on certain objecting employers. We know from other lawsuits and public comments that many religious entities have objections to complying with the [self-certification] accommodation based on their sincerely held religious beliefs.” Id. , at 47806. The Departments “believe[d] that the Court’s analysis in Hobby Lobby extends, for the purposes of analyzing a substantial burden, to the burdens that an entity faces when it religiously opposes participating in the [self-certification] accommodation process.” Id. , at 47800. They thus “conclude[d] that it [was] appropriate to expand the exemption to other . . . organizations with sincerely held religious beliefs opposed to contraceptive coverage.” Id. , at 47802; see also id. , at 47810–47811. The second IFR created a similar “moral exemption” for employers—including nonprofits and for-profits with no publicly traded components—with “sincerely held moral” objections to providing some or all forms of contraceptive coverage. Id. , at 47850, 47861–47862. Citing congressional enactments, precedents from this Court, agency practice, and state laws that provided for conscience protections, id. , at 47844–47847, the Departments invoked their authority under the ACA to create this exemption, id. , at 47844. The Departments requested post-promulgation comments on both IFRs. Id. , at 47813, 47854. E Within a week of the 2017 IFRs’ promulgation, the Commonwealth of Pennsylvania filed an action seeking declaratory and injunctive relief. Among other claims, it alleged that the IFRs were procedurally and substantively invalid under the APA. The District Court held that the Commonwealth was likely to succeed on both claims and granted a preliminary nationwide injunction against the IFRs. The Federal Government appealed. While that appeal was pending, the Departments issued rules finalizing the 2017 IFRs. See 83 Fed. Reg. 57536 (2018); 83 Fed. Reg. 57592, codified at 45 CFR pt. 147 (2018). Though the final rules left the exemptions largely intact, they also responded to post-promulgation comments, explaining their reasons for neither narrowing nor expanding the exemptions beyond what was provided for in the IFRs. See 83 Fed. Reg. 57542–57545, 57598–57603. The final rule creating the religious exemption also contained a lengthy analysis of the Departments’ changed position regarding whether the self-certification process violated RFRA. Id. , at 57544–57549. And the Departments explained that, in the wake of the numerous lawsuits challenging the self-certification accommodation and the failed attempt to identify alternative accommodations after the 2016 request for information, “an expanded exemption rather than the existing accommodation is the most appropriate administrative response to the substantial burden identified by the Supreme Court in Hobby Lobby .” Id. , at 57544–57545. After the final rules were promulgated, the State of New Jersey joined Pennsylvania’s suit and, together, they filed an amended complaint. As relevant, the States—respondents here—once again challenged the rules as substantively and procedurally invalid under the APA. They alleged that the rules were substantively unlawful because the Departments lacked statutory authority under either the ACA or RFRA to promulgate the exemptions. Respondents also asserted that the IFRs were not adequately justified by good cause, meaning that the Departments impermissibly used the IFR procedure to bypass the APA’s notice and comment procedures. Finally, respondents argued that the purported procedural defects of the IFRs likewise infected the final rules. The District Court issued a nationwide preliminary injunction against the implementation of the final rules the same day the rules were scheduled to take effect. The Federal Government appealed, as did one of the homes operated by the Little Sisters, which had in the meantime intervened in the suit to defend the religious exemption.[ 5 ] The appeals were consolidated with the previous appeal, which had been stayed. The Third Circuit affirmed. In its view, the Departments lacked authority to craft the exemptions under either statute. The Third Circuit read 42 U. S. C. §300gg–13(a)(4) as empowering HRSA to determine which services should be included as preventive care and screenings, but not to carve out exemptions from those requirements. It also concluded that RFRA did not compel or permit the religious exemption because, under Third Circuit precedent that was vacated and remanded in Zubik , the Third Circuit had concluded that the self-certification accommodation did not impose a substantial burden on free exercise. As for respondents’ procedural claim, the court held that the Departments lacked good cause to bypass notice and comment when promulgating the 2017 IFRs. In addition, the court determined that, because the IFRs and final rules were “virtually identical,” “[t]he notice and comment exercise surrounding the Final Rules [did] not reflect any real open-mindedness.” Pennsylvania v. President of United States , 930 F.3d 543, 568–569 (2019). Though it rebuked the Departments for their purported attitudinal deficiencies, the Third Circuit did not identify any specific public comments to which the agency did not appropriately respond. Id. , at 569, n. 24.[ 6 ] We granted certiorari. 589 U. S. ___ (2020). II Respondents contend that the 2018 final rules providing religious and moral exemptions to the contraceptive mandate are both substantively and procedurally invalid. We begin with their substantive argument that the Departments lacked statutory authority to promulgate the rules. A The Departments invoke 42 U. S. C. §300gg–13(a)(4) as legal authority for both exemptions. This provision of the ACA states that, “with respect to women,” “[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide . . . such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by [HRSA].” The Departments maintain, as they have since 2011, that the phrase “as provided for” allows HRSA both to identify what preventive care and screenings must be covered and to exempt or accommodate certain employers’ religious objections. See 83 Fed. Reg. 57540–57541; see also post , at 3 (Kagan, J., concurring in judgment). They also argue that, as with the church exemption, their role as the administering agencies permits them to guide HRSA in its discretion by “defining the scope of permissible exemptions and accommodations for such guidelines.” 82 Fed. Reg. 47794. Respondents, on the other hand, contend that §300gg–13(a)(4) permits HRSA to only list the preventive care and screenings that health plans “shall . . . provide,” not to exempt entities from covering those identified services. Because that asserted limitation is found nowhere in the statute, we agree with the Departments. “Our analysis begins and ends with the text.” Octane Fitness , LLC v. ICON Health & Fitness , Inc. , 572 U.S. 545 , 553 (2014). Here, the pivotal phrase is “as provided for.” To “provide” means to supply, furnish, or make available. See Webster’s Third New International Dictionary 1827 (2002) (Webster’s Third); American Heritage Dictionary 1411 (4th ed. 2000); 12 Oxford English Dictionary 713 (2d ed. 1989). And, as the Departments explained, the word “as” functions as an adverb modifying “provided,” indicating “the manner in which” something is done. 83 Fed. Reg. 57540. See also Webster’s Third 125; 1 Oxford English Dictionary, at 673; American Heritage Dictionary 102 (5th ed. 2011). On its face, then, the provision grants sweeping authority to HRSA to craft a set of standards defining the preventive care that applicable health plans must cover. But the statute is completely silent as to what those “comprehensive guidelines” must contain, or how HRSA must go about creating them. The statute does not, as Congress has done in other statutes, provide an exhaustive or illustrative list of the preventive care and screenings that must be included. See, e.g. , 18 U. S. C. §1961(1); 28 U. S. C. §1603(a). It does not, as Congress did elsewhere in the same section of the ACA, set forth any criteria or standards to guide HRSA’s selections. See, e.g. , 42 U. S. C. §300gg–13(a)(3) (requiring “ evidence-informed preventive care and screenings” (emphasis added)); §300gg–13(a)(1) (“evidence-based items or services”). It does not, as Congress has done in other contexts, require that HRSA consult with or refrain from consulting with any party in the formulation of the Guidelines. See, e.g. , 16 U. S. C. §1536(a)(1); 23 U. S. C. §138. This means that HRSA has virtually unbridled discretion to decide what counts as preventive care and screenings. But the same capacious grant of authority that empowers HRSA to make these determinations leaves its discretion equally unchecked in other areas, including the ability to identify and create exemptions from its own Guidelines. Congress could have limited HRSA’s discretion in any number of ways, but it chose not to do so. See Ali v. Federal Bureau of Prisons , 552 U.S. 214 , 227 (2008); see also Rotkiske v. Klemm , 589 U. S. ___, ___ (2019) (slip op., at 6); Husted v. A. Philip Randolph Institute , 584 U. S. ___, ___ (2018) (slip op., at 16). Instead, it enacted “ ‘expansive language offer[ing] no indication whatever’ ” that the statute limits what HRSA can designate as preventive care and screenings or who must provide that coverage. Ali , 552 U. S., at 219–220 (quoting Harrison v. PPG Industries , Inc. , 446 U.S. 578 , 589 (1980)). “It is a fundamental principle of statutory interpretation that ‘absent provision[s] cannot be supplied by the courts.’ ” Rotkiske , 589 U. S., at ___ (slip op., at 5) (quoting A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 94 (2012)); Nichols v. United States , 578 U. S. ___, ___ (2016) (slip op., at 6). This principle applies not only to adding terms not found in the statute, but also to imposing limits on an agency’s discretion that are not supported by the text. See Watt v. Energy Action Ed. Foundation , 454 U.S. 151 , 168 (1981). By introducing a limitation not found in the statute, respondents ask us to alter, rather than to interpret, the ACA. See Nichols , 578 U. S., at ___ (slip op., at 6). By its terms, the ACA leaves the Guidelines’ content to the exclusive discretion of HRSA. Under a plain reading of the statute, then, we conclude that the ACA gives HRSA broad discretion to define preventive care and screenings and to create the religious and moral exemptions.[ 7 ] The dissent resists this conclusion, asserting that the Departments’ interpretation thwarts Congress’ intent to provide contraceptive coverage to the women who are interested in receiving such coverage. See post , at 1, 21 (opinion of Ginsburg, J.). It also argues that the exemptions will make it significantly harder for interested women to obtain seamless access to contraception without cost sharing, post , at 15–17, which we have previously “assume[d]” is a compelling governmental interest, Hobby Lobby , 573 U. S., at 728; but see post , at 10–12 (Alito, J., concurring). The Departments dispute that women will be adversely impacted by the 2018 exemptions. 82 Fed. Reg. 47805. Though we express no view on this disagreement, it bears noting that such a policy concern cannot justify supplanting the text’s plain meaning. See Gitlitz v. Commissioner , 531 U.S. 206 , 220 (2001). “It is not for us to rewrite the statute so that it covers only what we think is necessary to achieve what we think Congress really intended.” Lewis v. Chicago , 560 U.S. 205 , 215 (2010). Moreover, even assuming that the dissent is correct as an empirical matter, its concerns are more properly directed at the regulatory mechanism that Congress put in place to protect this assumed governmental interest. As even the dissent recognizes, contraceptive coverage is mentioned nowhere in §300gg–13(a)(4), and no language in the statute itself even hints that Congress intended that contraception should or must be covered. See post , at 4–5 (citing legislative history and amicus briefs). Thus, contrary to the dissent’s protestations, it was Congress, not the Departments, that declined to expressly require contraceptive coverage in the ACA itself. See 83 Fed. Reg. 57540. And, it was Congress’ deliberate choice to issue an extraordinarily “broad general directiv[e]” to HRSA to craft the Guidelines, without any qualifications as to the substance of the Guidelines or whether exemptions were permissible. Mistretta v. United States , 488 U.S. 361 , 372 (1989). Thus, it is Congress, not the Departments, that has failed to provide the protection for contraceptive coverage that the dissent seeks.[ 8 ] No party has pressed a constitutional challenge to the breadth of the delegation involved here. Cf. Gundy v. United States , 588 U. S. ___ (2019). The only question we face today is what the plain language of the statute authorizes. And the plain language of the statute clearly allows the Departments to create the preventive care standards as well as the religious and moral exemptions.[ 9 ] B The Departments also contend, consistent with the reasoning in the 2017 IFR and the 2018 final rule establishing the religious exemption, that RFRA independently compelled the Departments’ solution or that it at least authorized it.[ 10 ] In light of our holding that the ACA provided a basis for both exemptions, we need not reach these arguments.[ 11 ] We do, however, address respondents’ argument that the Departments could not even consider RFRA as they formulated the religious exemption from the contraceptive mandate. Particularly in the context of these cases, it was appropriate for the Departments to consider RFRA. As we have explained, RFRA “provide[s] very broad protection for religious liberty.” Hobby Lobby , 573 U. S., at 693. In RFRA’s congressional findings, Congress stated that “governments should not substantially burden religious exercise,” a right described by RFRA as “unalienable.” 42 U. S. C. §§2000bb(a)(1), (3). To protect this right, Congress provided that the “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless “it demonstrates that application of the burden . . . is in furtherance of a compelling governmental interest; and . . . is the least restrictive means of furthering that compelling governmental interest.” §§2000bb–1(a)–(b). Placing Congress’ intent beyond dispute, RFRA specifies that it “applies to all Federal law, and the implementation of that law, whether statutory or otherwise.” §2000bb–3(a). RFRA also permits Congress to exclude statutes from RFRA’s protections. §2000bb–3(b). It is clear from the face of the statute that the contraceptive mandate is capable of violating RFRA. The ACA does not explicitly exempt RFRA, and the regulations implementing the contraceptive mandate qualify as “Federal law” or “the implementation of [Federal] law.” §2000bb–3(a); cf. Chrysler Corp. v. Brown , 441 U.S. 281 , 297–298 (1979). Additionally, we expressly stated in Hobby Lobby that the contraceptive mandate violated RFRA as applied to entities with complicity-based objections. 573 U. S., at 736. Thus, the potential for conflict between the contraceptive mandate and RFRA is well settled. Against this backdrop, it is unsurprising that RFRA would feature prominently in the Departments’ discussion of exemptions that would not pose similar legal problems. Moreover, our decisions all but instructed the Departments to consider RFRA going forward. For instance, though we held that the mandate violated RFRA in Hobby Lobby , we left it to the Federal Government to develop and implement a solution. At the same time, we made it abundantly clear that, under RFRA, the Departments must accept the sincerely held complicity-based objections of religious entities. That is, they could not “tell the plaintiffs that their beliefs are flawed” because, in the Departments’ view, “the connection between what the objecting parties must do . . . and the end that they find to be morally wrong . . . is simply too attenuated.” Hobby Lobby , 573 U. S., at 723–724. Likewise, though we did not decide whether the self-certification accommodation ran afoul of RFRA in Zubik , we directed the parties on remand to “accommodat[e]” the free exercise rights of those with complicity-based objections to the self-certification accommodation. 578 U. S., at ___ (slip op., at 4). It is hard to see how the Departments could promulgate rules consistent with these decisions if they did not overtly consider these entities’ rights under RFRA. This is especially true in light of the basic requirements of the rulemaking process. Our precedents require final rules to “articulate a satisfactory explanation for [the] action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Assn. of United States , Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S. 29 , 43 (1983) (internal quotation marks omitted). This requirement allows courts to assess whether the agency has promulgated an arbitrary and capricious rule by “entirely fail[ing] to consider an important aspect of the problem [or] offer[ing] an explanation for its decision that runs counter to the evidence before [it].” Ibid. ; see also Department of Commerce v. New York , 588 U. S. ___, ___–___ (2019) (Breyer, J., concurring in part and dissenting in part) (slip op., at 3–4); Genuine Parts Co. v. EPA , 890 F.3d 304, 307 (CADC 2018); Pacific Coast Federation of Fishermen’s Assns. v. United States Bur. of Reclamation , 426 F.3d 1082 , 1094 (CA9 2005). Here, the Departments were aware that Hobby Lobby held the mandate unlawful as applied to religious entities with complicity-based objections. 82 Fed. Reg. 47799; 83 Fed. Reg. 57544–57545. They were also aware of Zubik ’s instructions. 82 Fed. Reg. 47799. And, aside from our own decisions, the Departments were mindful of the RFRA concerns raised in “public comments and . . . court filings in dozens of cases—encompassing hundreds of organizations.” Id. , at 47802; see also id. , at 47806. If the Departments did not look to RFRA’s requirements or discuss RFRA at all when formulating their solution, they would certainly be susceptible to claims that the rules were arbitrary and capricious for failing to consider an important aspect of the problem.[ 12 ] Thus, respondents’ argument that the Departments erred by looking to RFRA as a guide when framing the religious exemption is without merit. III Because we hold that the Departments had authority to promulgate the exemptions, we must next decide whether the 2018 final rules are procedurally invalid. Respondents present two arguments on this score. Neither is persuasive. A Unless a statutory exception applies, the APA requires agencies to publish a notice of proposed rulemaking in the Federal Register before promulgating a rule that has legal force. See 5 U. S. C. §553(b). Respondents point to the fact that the 2018 final rules were preceded by a document entitled “Interim Final Rules with Request for Comments,” not a document entitled “General Notice of Proposed Rulemaking.” They claim that since this was insufficient to satisfy §553(b)’s requirement, the final rules were procedurally invalid. Respondents are incorrect. Formal labels aside, the rules contained all of the elements of a notice of proposed rulemaking as required by the APA. The APA requires that the notice of proposed rulemaking contain “reference to the legal authority under which the rule is proposed” and “either the terms or substance of the proposed rule or a description of the subjects and issues involved.” §§553(b)(2)–(3). The request for comments in the 2017 IFRs readily satisfies these requirements. That request detailed the Departments’ view that they had legal authority under the ACA to promulgate both exemptions, 82 Fed. Reg. 47794, 47844, as well as authority under RFRA to promulgate the religious exemption, id. , at 47800–47806. And respondents do not—and cannot—argue that the IFRs failed to air the relevant issues with sufficient detail for respondents to understand the Departments’ position. See supra , at 10–11. Thus, the APA notice requirements were satisfied. Even assuming that the APA requires an agency to publish a document entitled “notice of proposed rulemaking” when the agency moves from an IFR to a final rule, there was no “prejudicial error” here. §706. We have previously noted that the rule of prejudicial error is treated as an “administrative law . . . harmless error rule,” National Assn. of Home Builders v. Defenders of Wildlife , 551 U.S. 644 , 659–660 (2007) (internal quotation marks omitted). Here, the Departments issued an IFR that explained its position in fulsome detail and “provide[d] the public with an opportunity to comment on whether [the] regulations . . . should be made permanent or subject to modification.” 82 Fed. Reg. 47815; see also id. , at 47852, 47855. Respondents thus do not come close to demonstrating that they experienced any harm from the title of the document, let alone that they have satisfied this harmless error rule. “The object [of notice and comment], in short, is one of fair notice,” Long Island Care at Home , Ltd. v. Coke , 551 U.S. 158 , 174 (2007), and respondents certainly had such notice here. Because the IFR complied with the APA’s requirements, this claim fails.[ 13 ] B Next, respondents contend that the 2018 final rules are procedurally invalid because “nothing in the record signal[s]” that the Departments “maintained an open mind throughout the [post-promulgation] process.” Brief for Respondents 27. As evidence for this claim, respondents point to the fact that the final rules made only minor alterations to the IFRs, leaving their substance unchanged. The Third Circuit applied this “open-mindedness” test, concluding that because the final rules were “virtually identical” to the IFRs, the Departments lacked the requisite “flexible and open-minded attitude” when they promulgated the final rules. 930 F. 3d, at 569 (internal quotation marks omitted). We decline to evaluate the final rules under the open-mindedness test. We have repeatedly stated that the text of the APA provides the “ ‘maximum procedural requirements’ ” that an agency must follow in order to promulgate a rule. Perez , 575 U. S., at 100 (quoting Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council , Inc. , 435 U.S. 519 , 524 (1978)). Because the APA “sets forth the full extent of judicial authority to review executive agency action for procedural correctness,” FCC v. Fox Television Stations , Inc. , 556 U.S. 502 , 513 (2009), we have repeatedly rejected courts’ attempts to impose “judge-made procedur[es]” in addition to the APA’s mandates, Perez , 575 U. S., at 102; see also Pension Benefit Guaranty Corporation v. LTV Corp. , 496 U.S. 633 , 654–655 (1990); Vermont Yankee , 435 U. S., at 549. And like the procedures that we have held invalid, the open-mindedness test violates the “general proposition that courts are not free to impose upon agencies specific procedural requirements that have no basis in the APA.” LTV Corp. , 496 U. S., at 654. Rather than adopting this test, we focus our inquiry on whether the Departments satisfied the APA’s objective criteria, just as we have in previous cases. We conclude that they did. Section 553(b) obligated the Departments to provide adequate notice before promulgating a rule that has legal force. As explained supra , at 22–23, the IFRs provided sufficient notice. Aside from these notice requirements, the APA mandates that agencies “give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments,” §553(c); states that the final rules must include “a concise general statement of their basis and purpose,” ibid. ; and requires that final rules must be published 30 days before they become effective, §553(d). The Departments complied with each of these statutory procedures. They “request[ed] and encourag[ed] public comments on all matters addressed” in the rules— i.e. , the basis for the Departments’ legal authority, the rationales for the exemptions, and the detailed discussion of the exemptions’ scope. 82 Fed. Reg. 47813, 47854. They also gave interested parties 60 days to submit comments. Id. , at 47792, 47838. The final rules included a concise statement of their basis and purpose, explaining that the rules were “necessary to protect sincerely held” moral and religious objections and summarizing the legal analysis supporting the exemptions. 83 Fed. Reg. 57592; see also id. , at 57537–57538. Lastly, the final rules were published on November 15, 2018, but did not become effective until January 14, 2019—more than 30 days after being published. Id. , at 57536, 57592. In sum, the rules fully complied with “ ‘the maximum procedural requirements [that] Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures.’ ” Perez , 575 U. S., at 102 (quoting Vermont Yankee , 435 U. S., at 524). Accordingly, respondents’ second procedural challenge also fails.[ 14 ] *  *  * For over 150 years, the Little Sisters have engaged in faithful service and sacrifice, motivated by a religious calling to surrender all for the sake of their brother. “[T]hey commit to constantly living out a witness that proclaims the unique, inviolable dignity of every person, particularly those whom others regard as weak or worthless.” Complaint ¶14. But for the past seven years, they—like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision—have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs. After two decisions from this Court and multiple failed regulatory attempts, the Federal Government has arrived at a solution that exempts the Little Sisters from the source of their complicity-based concerns—the administratively imposed contraceptive mandate. We hold today that the Departments had the statutory authority to craft that exemption, as well as the contemporaneously issued moral exemption. We further hold that the rules promulgating these exemptions are free from procedural defects. Therefore, we reverse the judgment of the Court of Appeals and remand the cases for further proceedings consistent with this opinion. It is so ordered. Notes 1 See 42 U. S. C. §300gg–92; 29 U. S. C. §1191c; 26 U. S. C. §9833. 2 The ACA exempts “grandfathered” plans from 42 U. S. C. §300gg–13(a)(4)— i.e. , “those [plans] that existed prior to March 23, 2010, and that have not made specified changes after that date.” Burwell v. Hobby Lobby Stores , Inc. , 573 U.S. 682 , 699 (2014). See §§18011(a), (e); 29 CFR §2590.715–1251 (2019). As of 2018, an estimated 16 percent of employees “with employer-sponsored coverage were enrolled in a grandfathered group health plan.” 84 Fed. Reg. 5971 (2019). 3 Dept. of Health and Human Servs., Center for Consumer Information and Insurance Oversight, Centers for Medicare & Medicaid Services, Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans and Group Health Insurance Issuers With Respect to the Requirement To Cover Contraceptive Services Without Cost Sharing Under Section 2713 of the Public Health Service Act, Section 715(a)(1) of the Employee Retirement Income Security Act, and Section 9815(a)(1) of the Internal Revenue Code, p. 2 (2013). 4 The Departments took this action to prevent an unduly narrow interpretation of the church exemption, in which “an otherwise exempt plan [was] disqualified because the employer’s purposes extend[ed] beyond the inculcation of religious values or because the employer . . . serve[d] people of different religious faiths.” 78 Fed. Reg. 39874. But see post , at 12–13 (Ginsburg, J., dissenting) (arguing that the church exemption only covered houses of worship). 5 The Little Sisters moved to intervene in the District Court to defend the 2017 religious-exemption IFR, but the District Court denied that motion. The Third Circuit reversed. After that reversal, the Little Sisters appealed the District Court’s preliminary injunction of the 2017 IFRs, and that appeal was consolidated with the Federal Government’s appeal. 6 The Third Circuit also determined sua spont e that the Little Sisters lacked appellate standing to intervene because a District Court in Colorado had permanently enjoined the contraceptive mandate as applied to plans in which the Little Sisters participate. This was error. Under our precedents, at least one party must demonstrate Article III standing for each claim for relief. An intervenor of right must independently demonstrate Article III standing if it pursues relief that is broader than or different from the party invoking a court’s jurisdiction. See Town of Chester v. Laroe Estates , Inc. , 581 U. S. ___, ___ (2017) (slip op., at 6). Here, the Federal Government clearly had standing to invoke the Third Circuit’s appellate jurisdiction, and both the Federal Government and the Little Sisters asked the court to dissolve the injunction against the religious exemption. The Third Circuit accordingly erred by inquiring into the Little Sisters’ independent Article III standing. 7 Though not necessary for this analysis, our decisions in Zubik v. Burwell , 578 U. S. ___ (2016) ( per curiam ), and Hobby Lobby , 573 U.S. 682 , implicitly support the conclusion that §300gg–13(a)(4) empowered HRSA to create the exemptions. As respondents acknowledged at oral argument, accepting their interpretation of the ACA would require us to conclude that the Departments had no authority under the ACA to promulgate the initial church exemption, see Tr. of Oral Arg. 69–71, 91, which by extension would mean that the Departments lacked authority for the 2013 self-certification accommodation. That reading of the ACA would create serious tension with Hobby Lobby , which pointed to the self-certification accommodation as an example of a less restrictive means available to the Government, 573 U. S., at 730–731, and Zubik , which expressly directed the Departments to “accommodat[e]” petitioners’ religious exercise, 578 U. S., at ___ (slip op., at 4). It would be passing strange for this Court to direct the Departments to make such an accommodation if it thought the ACA did not authorize one. In addition, we are not aware of, and the dissent does not point to, a single case predating Hobby Lobby or Zubik in which the Departments took the position that they could not adopt a different approach because they lacked the statutory authority under the ACA to do so. 8 HRSA has altered its Guidelines multiple times since 2011, always proceeding without notice and comment. See 82 Fed. Reg. 47813–47814; 83 Fed. Reg. 8487; 85 Fed. Reg. 722–723 (2020). Accordingly, if HRSA chose to exercise that discretion to remove contraception coverage from the next iteration of its Guidelines, it would arguably nullify the contraceptive mandate altogether without proceeding through notice and comment. The combination of the agency practice of proceeding without notice and comment and HRSA’s discretion to alter the Guidelines, though not necessary for our analysis, provides yet another indication of Congress’ failure to provide strong protections for contraceptive coverage. 9 The dissent does not attempt to argue that the self-certification accommodation can coexist with its interpretation of the ACA. As for the church exemption, the dissent claims that it is rooted in the First Amendment’s respect for church autonomy. See post , at 12–13. But the dissent points to no case, brief, or rule in the nine years since the church exemption’s implementation in which the Departments defended its validity on that ground. The most the dissent can point to is a stray comment in the rule that expanded the self-certification accommodation to closely held corporations in the wake of Hobby Lobby . See post , at 13 (quoting 80 Fed. Reg. 41325 (2015)). 10 The dissent claims that “all agree” that the exemption is not supported by the Free Exercise Clause. Post , at 2. A constitutional claim is not presented in these cases, and we express no view on the merits of that question. 11 The dissent appears to agree that the Departments had authority under RFRA to “cure” any RFRA violations caused by its regulations. See post , at 14, n. 16 (disclaiming the view that agencies must wait for courts to determine a RFRA violation); see also supra , at 5 (explaining that the safe harbor and commitment to developing an accommodation occurred prior to the Guidelines going into effect). The dissent also does not—as it cannot—dispute our directive in Zubik . 12 Here, too, the Departments have consistently taken the position that their rules had to account for RFRA in response to comments that the rules would violate that statute. See Dept. of Labor, FAQs About Affordable Care Act Implementation Part 36, pp. 4–5 (2017) (2016 Request for Information); 78 Fed. Reg. 39886–39887 (2013 rule); 77 Fed. Reg. 8729 (2012 final rule). As the 2017 IFR explained, the Departments simply reached a different conclusion on whether the accommodation satisfied RFRA. See 82 Fed. Reg. 47800–40806 (summarizing the previous ways in which the Departments accounted for RFRA and providing a lengthy explanation for the changed position). 13 We note as well that the Departments promulgated many other IFRs in addition to the three related to the contraceptive mandate. See, e.g. , 75 Fed. Reg. 27122 (dependent coverage); id. , at 34538 (grandfathered health plans); id. , at 37188 (pre-existing conditions). 14 Because we conclude that the IFRs’ request for comment satisfiesthe APA’s rulemaking requirements, we need not reach respondents’ additional argument that the Departments lacked good cause to promulgate the 2017 IFRs. SUPREME COURT OF THE UNITED STATES _________________ Nos. 19–431 and 19–454 _________________ LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME, PETITIONER 19–431 v. PENNSYLVANIA, et al. DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al., PETITIONERS 19–454 v. PENNSYLVANIA, et al. on writs of certiorari to the united states court of appeals for the third circuit [July 8, 2020] Justice Alito, with whom Justice Gorsuch joins, concurring. In these cases, the Court of Appeals held, among other things, (1) that the Little Sisters of the Poor lacked standing to appeal, (2) that the Affordable Care Act (ACA) does not permit any exemptions from the so-called contraceptive mandate, (3) that the Departments responsible for issuing the challenged rule[ 1 ] violated the Administrative Procedure Act (APA) by failing to provide notice of proposed rulemaking, and (4) that the final rule creating the current exemptions is invalid because the Departments did not have an open mind when they considered comments to the rule. Based on this analysis, the Court of Appeals affirmed the nationwide injunction issued by the District Court. This Court now concludes that all the holdings listed above were erroneous, and I join the opinion of the Court in full. We now send these cases back to the lower courts, where the Commonwealth of Pennsylvania and the State of New Jersey are all but certain to pursue their argument that the current rule is flawed on yet another ground, namely, that it is arbitrary and capricious and thus violates the APA. This will prolong the legal battle in which the Little Sisters have now been engaged for seven years—even though during all this time no employee of the Little Sisters has come forward with an objection to the Little Sisters’ conduct. I understand the Court’s desire to decide no more than is strictly necessary, but under the circumstances here, I would decide one additional question: whether the Court of Appeals erred in holding that the Religious Freedom Restoration Act (RFRA), 42 U. S. C. §§2000bb–2000bb–4, does not compel the religious exemption granted by the current rule. If RFRA requires this exemption, the Departments did not act in an arbitrary and capricious manner in granting it. And in my judgment, RFRA compels an exemption for the Little Sisters and any other employer with a similar objection to what has been called the accommodation to the contraceptive mandate. I Because the contraceptive mandate has been repeatedly modified, a brief recapitulation of this history may be helpful. The ACA itself did not require that insurance plans include coverage for contraceptives. Instead, the Act provided that plans must cover those preventive services found to be appropriate by the Health Resources and Services Administration (HRSA), an agency of the Department of Health and Human Services. 42 U. S. C. §300gg–13(a)(4). In 2011, HRSA recommended that plans be required to cover “ ‘[a]ll . . . contraceptive methods’ ” approved by the Food and Drug Administration. 77 Fed. Reg. 8725 (2012). (I will use the term “contraceptive mandate” or simply “mandate” to refer to the obligation to provide coverage for contraceptives under any of the various regimes that have existed since the promulgation of this original rule.) At the direction of the relevant Departments, HRSA simultaneously created an exemption from the mandate for “churches, their integrated auxiliaries, and conventions or associations of churches,” as well as “the exclusively religious activities of any religious order.” 76 Fed. Reg. 46623 (2011); see 77 Fed. Reg. 8726. (I will call this the “church exemption.”) This narrow exemption was met with strong objections on the ground that it furnished insufficient protection for religious groups opposed to the use of some or all of the listed contraceptives. The Departments responded by issuing a new regulation that created an accommodation for certain religious non-profit employers. See 78 Fed. Reg. 39892–39898 (2013). (I will call this the “accommodation.”) Under this accommodation, a covered employer could certify its objection to its insurer (or, if its plan was self-funded, to its third-party plan administrator), and the insurer or third-party administrator would then proceed to provide contraceptive coverage to the objecting entity’s employees. Unlike the earlier church exemption, the accommodation did not exempt these religious employers from the contraceptive mandate, but the Departments construed invocation of the accommodation as compliance with the mandate. Meanwhile, the contraceptive mandate was challenged by various employers who had religious objections to providing coverage for at least some of the listed contraceptives but were not covered by the church exemption or the accommodation. In Burwell v. Hobby Lobby Stores, Inc. , 573 U.S. 682 (2014), we held that RFRA prohibited the application of the regulation to closely held, for-profit corporations that fell into this category. The Departments responded by issuing a new regulation that attempted to codify our holding by allowing closely-held corporations to utilize the accommodation. See 80 Fed. Reg. 41343–41347 (2015).[ 2 ] Although this modification solved one RFRA problem, the contraceptive mandate was still objectionable to some religious employers, including the Little Sisters. We considered those objections in Zubik v. Burwell , 578 U. S. ___ (2016) ( per curiam ), but instead of resolving the legal dispute, we vacated the decisions below and remanded, instructing the parties to attempt to come to an agreement. Unfortunately, after strenuous efforts, the outgoing administration reported on January 9, 2017, that no reconciliation could be reached.[ 3 ] The Little Sisters and other employers objected to engaging in any conduct that had the effect of making contraceptives available to their employees under their insurance plans, and no way of providing such coverage to their employees without using their plans could be found. In 2017, the new administration took up the task of attempting to find a solution. After receiving more than 56,000 comments, it issued the rule now before us, which made the church exemption available to non-governmental employers who object to the provision of some or all contraceptive services based on sincerely held religious beliefs.[ 4 ] 45 CFR §147.132 (2019); see 83 Fed. Reg. 57540, 57590. (The “religious exemption.”) The Court of Appeals, as noted, held that RFRA did not require this new rule. II A RFRA broadly prohibits the Federal Government from violating religious liberty. See 42 U. S. C. §2000bb–1(a). It applies to every “branch, department, agency, [and] instrumentality” of the Federal Government, as well as any “person acting under the color of ” federal law. §2000bb–2(1). And this prohibition applies to the “implementation” of federal law. §2000bb–3(a). Thus, unless the ACA or some other subsequently enacted statute made RFRA inapplicable to the contraceptive mandate, the Departments responsible for administering that mandate are obligated to do so in a manner that complies with RFRA. No provision of the ACA abrogates RFRA, and our decision in Hobby Lobby , 573 U. S., at 736, established that application of the contraceptive mandate must conform to RFRA’s demands. Thus, it was incumbent on the Departments to ensure that the rules implementing the mandate were consistent with RFRA, as interpreted in our decision. B Under RFRA, the Federal Government may not “substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless it “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” §§2000bb–1(a)–(b). Applying RFRA to the contraceptive mandate thus presents three questions. First, would the mandate substantially burden an employer’s exercise of religion? Second, if the mandate would impose such a burden, would it nevertheless serve a “compelling interest”? And third, if it serves such an interest, would it represent “the least restrictive means of furthering” that interest? Substantial burden . Under our decision in Hobby Lobby , requiring the Little Sisters or any other employer with a similar religious objection to comply with the mandate would impose a substantial burden. Our analysis of this question in Hobby Lobby can be separated into two parts. First, would non-compliance have substantial adverse practical consequences? 573 U. S., at 720–723. Second, would compliance cause the objecting party to violate its religious beliefs, as it sincerely understands them ? Id. , at 723–726. The answer to the first question is indisputable. If a covered employer does not comply with the mandate (by providing contraceptive coverage or invoking the accommodation), it faces penalties of $100 per day for each of its employees. 26 U. S. C. §4980D(b)(1). “And if the employer decides to stop providing health insurance altogether and at least one full-time employee enrolls in a health plan and qualifies for a subsidy on one of the government-run ACA exchanges, the employer must pay $2,000 per year for each of its full-time employees. §§4980H(a), (c)(1).” 573 U. S., at 697. In Hobby Lobby , we found these “severe” financial consequences sufficient to show that the practical effect of non-compliance would be “substantial.”[ 5 ] Id. , at 720. Our answer to the second question was also perfectly clear. If an employer has a religious objection to the use of a covered contraceptive, and if the employer has a sincere religious belief that compliance with the mandate makes it complicit in that conduct, then RFRA requires that the belief be honored. Id. , at 724–725. We noted that the objection raised by the employers in Hobby Lobby “implicate[d] a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” Id. , at 724. We noted that different individuals have different beliefs on this question, but we were clear that “federal courts have no business addressing . . . whether the religious belief asserted in a RFRA case is reasonable.” Ibid. Instead, the “function” of a court is “ ‘narrow’ ”: “ ‘to determine’ whether the line drawn reflects ‘an honest conviction.’ ” Id. , at 725 (quoting Thomas v. Review Bd. of Ind. Employment Security Div. , 450 U.S. 707 , 716 (1981)). Applying this holding to the Little Sisters yields an obvious answer. It is undisputed that the Little Sisters have a sincere religious objection to the use of contraceptives and that they also have a sincere religious belief that utilizing the accommodation would make them complicit in this conduct. As in Hobby Lobby , “it is not for us to say that their religious beliefs are mistaken or insubstantial.” 573 U. S., at 725. In reaching a contrary conclusion, the Court of Appeals adopted the reasoning of a prior Third Circuit decision holding that “ ‘the submission of the self-certification form’ ” required by the mandate would not “ ‘trigger or facilitate the provision of contraceptive coverage’ ” and would not make the Little Sisters “ ‘ “complicit” in the provision’ ” of objected-to services. 930 F.3d 543, 573 (2019) (quoting Geneva College v. Secretary of U. S. Dept. of Health and Human Servs ., 778 F.3d 422, 437–438 (CA3 2015), vacated and remanded sub nom. Zubik , 578 U. S. ___). The position taken by the Third Circuit was similar to that of the Government when Zubik was before us. Opposing the position taken by the Little Sisters and others, the Government argued that what the accommodation required was not materially different from simply asking that an objecting party opt out of providing contraceptive coverage with the knowledge that by doing so it would cause a third party to provide that coverage. According to the Government, everything that occurred following the opt-out was a result of governmental action.[ 6 ] Petitioners disagreed. Their concern was not with notifying the Government that they wished to be exempted from complying with the mandate per se ,[ 7 ] but they objected to two requirements that they sincerely believe would make them complicit in conduct they find immoral. First, they took strong exception to the requirement that they maintain and pay for a plan under which coverage for contraceptives would be provided. As they explained, if they “were willing to incur ruinous penalties by dropping their health plans, their insurance companies would have no authority or obligation to provide or procure the objectionable coverage for [their] plan beneficiaries.”[ 8 ] Second, they also objected to submission of the self-certification form required by the accommodation because without that certification their plan could not be used to provide contraceptive coverage.[ 9 ] At bottom, then, the Government and the religious objectors disagreed about the relationship between what the accommodation demanded and the provision of contraceptive coverage. Our remand in Zubik put these two conflicting interpretations to the test. In response to our request for supplemental briefing, petitioners explained their position in the following terms. “[T]heir religious exercise” would not be “infringed” if they did not have to do anything “ ‘more than contract for a plan that does not include coverage for some or all forms of contraception,’ even if their employees receive[d] cost-free contraceptive coverage from the same insurance company.” 578 U. S., at ___ (slip op., at 3). At the time, the Government thought that it might be possible to achieve this result under the ACA, ibid ., but subsequent attempts to find a way to do this failed. After great effort, the Government was forced to conclude that it was “not aware of the authority, or of a practical mechanism,” for providing contraceptive coverage “specifically to persons covered by an objecting employer, other than by using the employer’s plan, issuer, or third party administrator.” 83 Fed. Reg. 57545–57546. The inescapable bottom line is that the accommodation demanded that parties like the Little Sisters engage in conduct that was a necessary cause of the ultimate conduct to which they had strong religious objections. Their situation was the same as that of the conscientious objector in Thomas , 450 U. S., at 715, who refused to participate in the manufacture of tanks but did not object to assisting in the production of steel used to make the tanks. Where to draw the line in a chain of causation that leads to objectionable conduct is a difficult moral question, and our cases have made it clear that courts cannot override the sincere religious beliefs of an objecting party on that question. See Hobby Lobby , 573 U. S., at 723–726; Thomas , 450 U. S., at 715–716. For these reasons, the contraceptive mandate imposes a substantial burden on any employer who, like the Little Sisters, has a sincere religious objection to the use of a listed contraceptive and a sincere religious belief that compliance with the mandate (through the accommodation or otherwise) makes it complicit in the provision to the employer’s workers of a contraceptive to which the employer has a religious objection. Compelling interest . In Hobby Lobby , the Government asserted and we assumed for the sake of argument that the Government had a compelling interest in “ensuring that all women have access to all FDA-approved contraceptives without cost sharing.” 573 U. S., at 727. Now, the Government concedes that it lacks a compelling interest in providing such access, Reply Brief in No. 19–454, p. 10, and this time, the Government is correct. In order to show that it has a “compelling interest” within the meaning of RFRA, the Government must clear a high bar. In Sherbert v. Verner , 374 U.S. 398 (1963), the decision that provides the foundation for the rule codified in RFRA, we said that “ ‘[o]nly the gravest abuses, endangering paramount interest’ ” could “ ‘give occasion for [a] permissible limitation’ ” on the free exercise of religion. Id. , at 406. Thus, in order to establish that it has a “compelling interest” in providing free contraceptives to all women, the Government would have to show that it would commit one of “the gravest abuses” of its responsibilities if it did not furnish free contraceptives to all women. If we were required to exercise our own judgment on the question whether the Government has an obligation to provide free contraceptives to all women, we would have to take sides in the great national debate about whether the Government should provide free and comprehensive medical care for all. Entering that policy debate would be inconsistent with our proper role, and RFRA does not call on us to express a view on that issue. We can answer the compelling interest question simply by asking whether Congress has treated the provision of free contraceptives to all women as a compelling interest. “ ‘[A] law cannot be regarded as protecting an interest “of the highest order” . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.’ ” Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U.S. 520 , 547 (1993). Thus, in considering whether Congress has manifested the view that it has a compelling interest in providing free contraceptives to all women, we must take into account “exceptions” to this asserted “ ‘rule of general applicability.’ ” Gonzales v. O Centro Espírita Beneficente União do Vegetal , 546 U.S. 418 , 436 (2006) (quoting §2000bb–1(a)). And here, there are exceptions aplenty. The ACA—which fails to ensure that millions of women have access to free contraceptives—unmistakably shows that Congress, at least to date, has not regarded this interest as compelling. First, the ACA does not provide contraceptive coverage for women who do not work outside the home. If Congress thought that there was a compelling need to make free contraceptives available for all women, why did it make no provision for women who do not receive a paycheck? Some of these women may have a greater need for free contraceptives than do women in the work force. Second, if Congress thought that there was a compelling need to provide cost-free contraceptives for all working women, why didn’t Congress mandate that coverage in the ACA itself? Why did it leave it to HRSA to decide whether to require such coverage at all ? Third, the ACA’s very incomplete coverage speaks volumes. The ACA “exempts a great many employers from most of its coverage requirements.” Hobby Lobby , 573 U. S., at 699. “[E]mployers with fewer than 50 employees are not required to provide” any form of health insurance, and a number of large employers with “ ‘grandfathered’ ” plans need not comply with the contraceptive mandate. Ibid. ; see 26 U. S. C. §4980H(c)(2); 42 U. S. C. §18011. According to a recent survey, 13% of the 153 million Americans with employer-sponsored health insurance are enrolled in a grandfathered plan, while only 56% of small firms provide health insurance. Kaiser Family Foundation, Employer Health Benefits: 2019 Annual Survey 7, 44, 209 (2019). In Hobby Lobby , we wrote that “the contraceptive mandate ‘presently does not apply to tens of millions of people,’ ” 573 U. S., at 700, and it appears that this is still true apart from the religious exemption.[ 10 ] Fourth, the Court’s recognition in today’s decision that the ACA authorizes the creation of exemptions that go beyond anything required by the Constitution provides further evidence that Congress did not regard the provision of cost-free contraceptives to all women as a compelling interest. Moreover, the regulatory exemptions created by the Departments and HRSA undermine any claim that the agencies themselves viewed the provision of contraceptive coverage as sufficiently compelling. From the outset, the church exemption has applied to churches, their integrated auxiliaries, and associations. 76 Fed. Reg. 46623. And because of the way the accommodation operates under the Employee Retirement Income Security Act of 1974, the Departments treated a number of self-insured non-profit organizations established by churches or associations of churches, including religious universities and hospitals, as “effectively exempted” from the contraceptive mandate as well. Brief for Petitioners in No. 19–454, p. 4. The result was a complex and sometimes irrational pattern of exemptions. The dissent frames the allegedly compelling interest served by the mandate in different terms—as an interest in providing “seamless” cost-free coverage, post , at 1, 14, 21 (opinion of Ginsburg, J.)––but this is an even weaker argument. What “seamless” coverage apparently means is coverage under the insurance plan furnished by a woman’s employer. So as applied to the Little Sisters, the dissent thinks that it would be a grave abuse if an employee wishing to obtain contraceptives had to take any step that would not be necessary if she wanted to obtain any other medical service. See post , at 16–17. Apparently, it would not be enough if the Government sent her a special card that could be presented at a pharmacy to fill a prescription for contraceptives without any out-of-pocket expense. Nor would it be enough if she were informed that she could obtain free contraceptives by going to a conveniently located government clinic. Neither of those alternatives would provide “seamless coverage,” and thus, according to the dissent, both would be insufficient. Nothing short of capitulation on the part of the Little Sisters would suffice. This argument is inconsistent with any reasonable understanding of the concept of a “compelling interest.” It is undoubtedly convenient for employees to obtain all types of medical care and all pharmaceuticals under their general health insurance plans, and perhaps there are women whose personal situation is such that taking any additional steps to secure contraceptives would be a notable burden. But can it be said that all women or all working women have a compelling need for this convenience? The ACA does not provide “seamless” coverage for all forms of medical care. Take the example of dental care. Although lack of dental care can cause great pain and may lead to serious health problems, the ACA does not require that a plan cover dental services. Millions of employees must secure separate dental insurance or pay dentist bills out of their own pockets. In short, it is undoubtedly true that the contraceptive mandate provides a benefit that many women may find highly desirable, but Congress’s enactments show that it has not regarded the provision of free contraceptives or the furnishing of “seamless” coverage as “compelling.” Least restrictive means . Even if the mandate served a compelling interest, the accommodation still would not satisfy the “exceptionally demanding” least-restrictive-means standard. Hobby Lobby , 573 U. S., at 728. To meet this standard, the Government must “sho[w] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion.” Ibid. ; see also Holt v. Hobbs , 574 U.S. 352 , 365 (2015) (“ ‘[I]f a less restrictive means is available for the Government to achieve its goals, the Government must use it’ ”). In Hobby Lobby , we observed that the Government has “other means” of providing cost-free contraceptives to women “without imposing a substantial burden on the exercise of religion by the objecting parties.” 573 U. S., at 728. “The most straightforward way,” we noted, “would be for the Government to assume the cost of providing the . . . contraceptives . . . to any women who are unable to obtain them under their health-insurance policies.” Ibid. In the context of federal funding for health insurance, the cost of such a program would be “minor.” Id. , at 729.[ 11 ] The Government argued that we should not take this option into account because it lacked statutory authority to create such a program, see ibid. , but we rejected that argument, id. , at 729–730. Certainly, Congress could create such a program if it thought that providing cost-free contraceptives to all women was a matter of “paramount” concern. As the Government now points out, Congress has taken steps in this direction. “[E]xisting federal, state, and local programs,” including Medicaid, Title X, and Temporary Assistance for Needy Families, already “provide free or subsidized contraceptives to low-income women.” Brief for Petitioners in No. 19–454, at 27; see also 83 Fed. Reg. 57548, 57551 (discussing programs).[ 12 ] And many women who work for employers who have religious objections to the contraceptive mandate may be able to receive contraceptive coverage through a family member’s health insurance plan. In sum, the Departments were right to conclude that applying the accommodation to sincere religious objectors violates RFRA. See id. , at 57546. All three prongs of the RFRA analysis—substantial burden, compelling interest, and least restrictive means—necessitate this answer. III Once it was apparent that the accommodation ran afoul of RFRA, the Government was required to eliminate the violation. RFRA does not specify the precise manner in which a violation must be remedied; it simply instructs the Government to avoid “substantially burden[ing]” the “exercise of religion”— i.e. , to eliminate the violation. §2000bb–1(a); see also §2000bb–1(c) (providing for “appropriate relief ” in judicial suit). Thus, in Hobby Lobby , once we held that application of the mandate to the objecting parties violated RFRA, we left it to the Departments to decide how best to rectify this problem. See 573 U. S., at 736; 79 Fed. Reg. 51118 (2014) (proposing to modify the accommodation to extend it to closely held corporations in light of Hobby Lobby ); 80 Fed. Reg. 41324 (final rule explaining that “[t]he Departments believe that the definition adopted in these regulations complies with and goes beyond what is required by RFRA and Hobby Lobby ”). The same principle applies here. Once it is recognized that the prior accommodation violated RFRA in some of its applications, it was incumbent on the Departments to eliminate those violations, and they had discretion in crafting what they regarded as the best solution. The solution they devised cures the problem, and it is not clear that any narrower exemption would have been sufficient with respect to parties with religious objections to the accommodation. As noted, after great effort, the Government concluded that it was not possible to solve the problem without using an “employer’s plan, issuer, or third party administrator.” 83 Fed. Reg. 57546. As a result, the Departments turned to the current rule, under which an objecting party must certify that it “objects, based on its sincerely held religious beliefs, to its establishing, maintaining, providing, offering, or arranging for (as applicable)” either “[c]overage or payments for some or all contraceptive services” or “[a] plan, issuer, or third party administrator that provides or arranges such coverage or payments.” 45 CFR §§147.132(a)(2)(i)–(ii). The States take exception to the new religious rule on several grounds. First, they complain that it grants an exemption to some employers who were satisfied with the prior accommodation, but there is little basis for this argument. An employer who is satisfied with the accommodation may continue to operate under that regime. See §§147.131(c)–(d); 83 Fed. Reg. 57569–57571. And unless an employer has a religious objection to the accommodation, it is unclear why an employer would give it up. The accommodation does not impose any cost on an employer, and it provides an added benefit for the employer’s work force. The States also object to the new rule because it makes exemptions available to publicly traded corporations, but the Government is “not aware” of any publicly traded corporations that object to compliance with the mandate. Id. , at 57562. For all practical purposes, therefore, it is not clear that the new rule’s provisions concerning entities that object to the mandate on religious grounds go any further than necessary to bring the mandate into compliance with RFRA. In any event, while RFRA requires the Government to employ the least restrictive means of furthering a compelling interest that burdens religious belief, it does not require the converse—that an accommodation of religious belief be narrowly tailored to further a compelling interest. The latter approach, which is advocated by the States, gets RFRA entirely backwards. See Brief for Respondents 45 (“RFRA could require the religious exemption only if it was the least restrictive means of furthering [the Government’s compelling interest]”). Nothing in RFRA requires that a violation be remedied by the narrowest permissible corrective. Needless to say, the remedy for a RFRA problem cannot violate the Constitution, but the new rule does not have that effect. The Court has held that there is a constitutional right to purchase and use contraceptives. Griswold v. Connecticut , 381 U.S. 479 (1965); Carey v. Population Services Int’l , 431 U.S. 678 (1977). But the Court has never held that there is a constitutional right to free contraceptives. The dissent and the court below suggest that the new rule is improper because it imposes burdens on the employees of entities that the rule exempts, see post , at 14–17; 930 F. 3d, at 573–574,[ 13 ] but the rule imposes no such burden. A woman who does not have the benefit of contraceptive coverage under her employer’s plan is not the victim of a burden imposed by the rule or her employer. She is simply not the beneficiary of something that federal law does not provide. She is in the same position as a woman who does not work outside the home or a woman whose health insurance is provided by a grandfathered plan that does not pay for contraceptives or a woman who works for a small business that may not provide any health insurance at all. *  *  * I would hold not only that it was appropriate for the Departments to consider RFRA, but also that the Departments were required by RFRA to create the religious exemption (or something very close to it). I would bring the Little Sisters’ legal odyssey to an end. Notes 1 The Health Resources and Services Administration (HRSA), a division of the Department of Health and Human Services, creates the “comprehensive guidelines” on “coverage” for “additional preventive care and screenings” for women, 42 U. S. C. §300gg–13(a)(4), but the statute is jointly administered and enforced by the Departments of Health and Human Services, Labor, and Treasury (collectively Departments), see §300gg–92; 29 U. S. C. §1191c; 26 U. S. C. §9833. The Departments promulgated the exemptions at issue here, which were subsequently incorporated into the guidelines by HRSA. See 83 Fed. Reg. 57536 (2018); id. , at 57592. 2 In the regulation, the Departments also responded to our holding in Wheaton College v. Burwell , 573 U.S. 958 (2014), by allowing employers who invoked the accommodation to notify the Government of their objection, rather than filing the objection with their insurer or third-party administrator. See 80 Fed. Reg. 41337. 3 Dept. of Labor, FAQs About Affordable Care Act Implementation Part 36 (Jan. 9, 2017), https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-36.pdf. 4 A similar exemption was provided for employers with moral objections. See 45 CFR §147.33. 5 This is one of the differences between these cases and Bowen v. Roy , 476 U.S. 693 (1986). See post , at 18–19 (opinion of Ginsburg, J.) (relying on Bowen to conclude that accommodation was unnecessary). In Bowen , the objecting individuals were not faced with penalties or “coerced by the Governmen[t] into violating their religious beliefs.” Lyng v. Northwest Indian Cemetery Protective Assn. , 485 U.S. 439 , 449 (1988). 6 See Brief for Respondents in Zubik v. Burwell , O. T. 2015, Nos. 14–1418, 14–1453, 14–1505, 15–35, 15–105, 15–119, 15–191, pp. 35–41. 7 See Brief for Petitioners in Zubik v. Burwell , O. T. 2015, Nos. 15–35, 15–105, 15–119, 15–191, p. 45. 8 Brief for Petitioners in Zubik v. Burwell , O. T. 2015, Nos. 14–1418, 14–1453, 14–1505, p. 49. 9 Brief for Petitioners in Zubik , O. T. 2015, Nos. 15–35, 15–105, 15–119, 15–191, at 44. 10 In contrast, the Departments estimated that plans covering 727,000 people would take advantage of the religious exemption, and thus that between 70,500 and 126,400 women of childbearing age would be affected by the religious exemption. 83 Fed. Reg. 57578, 57581. 11 In 2019, the Government is estimated to have spent $737 billion subsidizing health insurance for individuals under the age of 65; $287 billion of that went to employment-related coverage. CBO, Federal Subsidies for Health Insurance for People Under Age 65: 2019 to 2029, pp. 15–16 (2019). While the cost of contraceptive methods varies, even assuming the most expensive options, which range around $1,000 a year, the cost of providing this coverage to the 126,400 women who are estimated to be impacted by the religious exemption would be $126.4 million. See Kosova, National Women’s Health Network, How Much Do Different Kinds of Birth Control Cost Without Insurance? (Nov. 17, 2017), http://nwhn.org /much-different-kinds-birth-control-cost-without-insurance/ (discussing contraceptive methods ranging from $240 to $1,000 per year); 83 Fed. Reg. 57581 (estimating that up to 126,400 women will be affected by the religious exemption). 12 The Government recently amended the definitions for Title X’s family planning program to help facilitate access to contraceptives for women who work for an employer invoking the religious and moral exemptions. See 84 Fed. Reg. 7734 (2019). These definitions now provide that “for the purpose of considering payment for contraceptive services only,” a “low income family” “includes members of families whose annual income” would otherwise exceed the threshold “where a woman has health insurance coverage through an employer . . . [with] a sincerely held religious or moral objection to providing such [contraceptive] coverage.” 42 CFR §59.2(2). 13 Both the dissent and the court below refer to the statement in Cutter v. Wilkinson , 544 U.S. 709 , 720 (2005), that “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries,” but that statement was made in response to the argument that RFRA’s twin, the Religious Land Use and Institutionalized Persons Act, 42 U. S. C. §2000cc et seq. , violated the Establishment Clause. The only case cited by Cutter in connection with this statement, Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985) , involved a religious accommodation that the Court held violated the Establishment Clause. Before this Court, the States do not argue––and there is no basis for an argument—that the new rule violates that Clause. SUPREME COURT OF THE UNITED STATES _________________ Nos. 19–431 and 19–454 _________________ LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME, PETITIONER 19–431 v. PENNSYLVANIA, et al. DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al., PETITIONERS 19–454 v. PENNSYLVANIA, et al. on writs of certiorari to the united states court of appeals for the third circuit [July 8, 2020] Justice Kagan, with whom Justice Breyer joins, concurring in the judgment. I would uphold HRSA’s statutory authority to exempt certain employers from the contraceptive-coverage mandate, but for different reasons than the Court gives. I also write separately because I question whether the exemptions can survive administrative law’s demand for reasoned decisionmaking. That issue remains open for the lower courts to address. The majority and dissent dispute the breadth of the delegation in the Women’s Health Amendment to the ACA. The Amendment states that a health plan or insurer must offer coverage for “preventive care and screenings . . . as provided for in comprehensive guidelines supported by [HRSA] for purposes of this paragraph.” 42 U. S. C. §300gg–13(a)(4). The disputed question is just what HRSA can “provide for.” Both the majority and the dissent agree that HRSA’s guidelines can differentiate among preventive services, mandating coverage of some but not others. The opinions disagree about whether those guidelines can also differentiate among health plans, exempting some but not others from the contraceptive-coverage requirement. On that question, all the two opinions have in common is equal certainty they are right. Compare ante, at 16 (majority opinion) (Congress “enacted expansive language offer[ing] no indication whatever that the statute limits what HRSA can designate as preventive care and screenings or who must provide that coverage” (internal quotation marks omitted)), with post, at 9 (Ginsburg, J., dissenting) (“Nothing in [the statute] accord[s] HRSA authority” to decide “ who must provide coverage” (internal quotation marks omitted; emphasis in original)). Try as I might, I do not find that kind of clarity in the statute. Sometimes when I squint, I read the law as giving HRSA discretion over all coverage issues: The agency gets to decide who needs to provide what services to women. At other times, I see the statute as putting the agency in charge of only the “what” question, and not the “who.” If I had to, I would of course decide which is the marginally better reading. But Chevron deference was built for cases like these. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 , 842–843 (1984); see also Arlington v. FCC , 569 U.S. 290 , 301 (2013) (holding that Chevron applies to questions about the scope of an agency’s statutory authority). Chevron instructs that a court facing statutory ambiguity should accede to a reasonable interpretation by the implementing agency. The court should do so because the agency is the more politically accountable actor. See 467 U. S., at 865–866. And it should do so because the agency’s expertise often enables a sounder assessment of which reading best fits the statutory scheme. See id., at 865. Here, the Departments have adopted the majority’s reading of the statutory delegation ever since its enactment. Over the course of two administrations, the Departments have shifted positions on many questions involving the Women’s Health Amendment and the ACA more broadly. But not on whether the Amendment gives HRSA the ability to create exemptions to the contraceptive-coverage mandate. HRSA adopted the original church exemption on the same capacious understanding of its statutory authority as the Departments endorse today. See 76 Fed. Reg. 46623 (2011) (“In the Departments’ view, it is appropriate that HRSA, in issuing these Guidelines, takes into account the effect on the religious beliefs of certain religious employers if coverage of contraceptive services were required”).[ 1 ] While the exemption itself has expanded, the Departments’ reading of the statutory delegation—that the law gives HRSA discretion over the “who” question—has remained the same. I would defer to that longstanding and reasonable interpretation. But that does not mean the Departments should prevail when these cases return to the lower courts. The States challenged the exemptions not only as outside HRSA’s statutory authority, but also as “arbitrary [and] capricious.” 5 U. S. C. §706(2)(A). Because the courts below found for the States on the first question, they declined to reach the second. That issue is now ready for resolution, unaffected by today’s decision. An agency acting within its sphere of delegated authority can of course flunk the test of “reasoned decisionmaking.” Michigan v. EPA , 576 U.S. 743, 750 (2015). The agency does so when it has not given “a satisfactory explanation for its action”—when it has failed to draw a “rational connection” between the problem it has identified and the solution it has chosen, or when its thought process reveals “a clear error of judgment.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S. 29 , 43 (1983) (internal quotation marks omitted). Assessed against that standard of reasonableness, the exemptions HRSA and the Departments issued give every appearance of coming up short.[ 2 ] Most striking is a mismatch between the scope of the religious exemption and the problem the agencies set out to address. In the Departments’ view, the exemption was “necessary to expand the protections” for “certain entities and individuals” with “religious objections” to contraception. 83 Fed. Reg. 57537 (2018). Recall that under the old system, an employer objecting to the contraceptive mandate for religious reasons could avail itself of the “self-certification accommodation.” Ante, at 6. Upon making the certification, the employer no longer had “to contract, arrange, [or] pay” for contraceptive coverage; instead, its insurer would bear the services’ cost. 78 Fed. Reg. 39874 (2013). That device dispelled some employers’ objections—but not all. The Little Sisters, among others, maintained that the accommodation itself made them complicit in providing contraception. The measure thus failed to “assuage[ ]” their “sincere religious objections.” 82 Fed. Reg. 47799 (2017). Given that fact, the Departments might have chosen to exempt the Little Sisters and other still-objecting groups from the mandate. But the Departments went further still. Their rule exempted all employers with objections to the mandate, even if the accommodation met their religious needs. In other words, the Departments exempted employers who had no religious objection to the status quo (because they did not share the Little Sisters’ views about complicity). The rule thus went beyond what the Departments’ justification supported—raising doubts about whether the solution lacks a “rational connection” to the problem described. State Farm , 463 U. S., at 43.[ 3 ] And the rule’s overbreadth causes serious harm, by the Departments’ own lights. In issuing the rule, the Departments chose to retain the contraceptive mandate itself. See 83 Fed. Reg. 57537. Rather than dispute HRSA’s prior finding that the mandate is “necessary for women’s health and well-being,” the Departments left that determination in place. HRSA, Women’s Preventive Services Guidelines (Dec. 2019), www.hrsa.gov/womens-guidelines-2019; see 83 Fed. Reg. 57537. The Departments thus committed themselves to minimizing the impact on contraceptive coverage, even as they sought to protect employers with continuing religious objections. But they failed to fulfill that commitment to women. Remember that the accommodation preserves employees’ access to cost-free contraceptive coverage, while the exemption does not. See ante, at 5–6. So the Departments (again, according to their own priorities) should have exempted only employers who had religious objections to the accommodation—not those who viewed it as a religiously acceptable device for complying with the mandate. The Departments’ contrary decision to extend the exemption to those without any religious need for it yielded all costs and no benefits. Once again, that outcome is hard to see as consistent with reasoned judgment. See State Farm , 463 U. S., at 43.[ 4 ] Other aspects of the Departments’ handiwork may also prove arbitrary and capricious. For example, the Departments allow even publicly traded corporations to claim a religious exemption. See 83 Fed. Reg. 57562–57563. That option is unusual enough to raise a serious question about whether the Departments adequately supported their choice. Cf. Burwell v. Hobby Lobby Stores, Inc. , 573 U.S. 682 , 717 (2014) (noting the oddity of “a publicly traded corporation asserting RFRA rights”). Similarly, the Departments offer an exemption to employers who have moral, rather than religious, objections to the contraceptive mandate. Perhaps there are sufficient reasons for that decision—for example, a desire to stay neutral between religion and non-religion. See 83 Fed. Reg. 57603–57604. But RFRA cast a long shadow over the Departments’ rulemaking, see ante, at 19–22, and that statute does not apply to those with only moral scruples. So a careful agency would have weighed anew, in this different context, the benefits of exempting more employers from the mandate against the harms of depriving more women of contraceptive coverage. In the absence of such a reassessment, it seems a close call whether the moral exemption can survive. None of this is to say that the Departments could not issue a valid rule expanding exemptions from the contraceptive mandate. As noted earlier, I would defer to the Departments’ view of the scope of Congress’s delegation. See supra, at 3. That means the Departments (assuming they act hand-in-hand with HRSA) have wide latitude over exemptions, so long as they satisfy the requirements of reasoned decisionmaking. But that “so long as” is hardly nothing. Even in an area of broad statutory authority—maybe especially there—agencies must rationally account for their judgments. Notes 1 The First Amendment cannot have separately justified the church exemption, as the dissent suggests. See post , at 12–13 (opinion of Ginsburg, J.). That exemption enables a religious institution to decline to provide contraceptive coverage to all its employees, from a minister to a building custodian. By contrast, the so-called ministerial exception of the First Amendment (which the dissent cites, see post , at 13) extends only to select employees, having ministerial status. See Our Lady of Guadalupe School v. Morrissey-Berru , 591 U. S. ___, ___ (2020) (slip op., at 14–16); Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC , 565 U.S. 171 , 190 (2012). (Too, this Court has applied the ministerial exception only to protect religious institutions from employment discrimination suits, expressly reserving whether the exception excuses their non-compliance with other laws. See id. , at 196.) And there is no general constitutional immunity, over and above the ministerial exception, that can protect a religious institution from the law’s operation. 2 I speak here only of the substantive validity of the exemptions. I agree with the Court that the final rules issuing the exemptions were procedurally valid. 3 At oral argument, the Solicitor General argued that the rule’s overinclusion is harmless because the accommodation remains available to all employers who qualify for the exemption. See Tr. of Oral Arg. 20–23. But in their final rule, the Departments themselves acknowledged the prospect that some employers without a religious objection to the accommodation would switch to the exemption. See 83 Fed. Reg. 57576–57577 (“Of course, some of the[ ] religious” institutions that “do not conscientiously oppose participating” in the accommodation “may opt for the expanded exemption[,] but others might not”); id., at 57561 (“[I]t is not clear to the Departments” how many of the religious employers who had used the accommodation without objection “will choose to use the expanded exemption instead”). And the Solicitor General, when pressed at argument, could offer no evidence that, since the rule took effect, employers without the Little Sisters’ complicity beliefs had declined to avail themselves of the new exemption. Tr. of Oral Arg. 22. 4 In a brief passage in the interim final rule, the Departments suggested that an exemption is “more workable” than the accommodation in addressing religious objections to the mandate. 82 Fed. Reg. 47806. But the Departments continue to provide the accommodation to any religious employers who request that option, thus maintaining a two-track system. See ante, at 10; n. 3, supra . So ease of administration cannot support, at least without more explanation, the Departments’ decision to offer the exemption more broadly than needed. SUPREME COURT OF THE UNITED STATES _________________ Nos. 19–431 and 19–454 _________________ LITTLE SISTERS OF THE POOR SAINTS PETER AND PAUL HOME, PETITIONER 19–431 v. PENNSYLVANIA, et al. DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al., PETITIONERS 19–454 v. PENNSYLVANIA, et al. on writs of certiorari to the united states court of appeals for the third circuit [July 8, 2020] Justice Ginsburg, with whom Justice Sotomayor joins, dissenting. In accommodating claims of religious freedom, this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs. See, e.g. , Estate of Thornton v. Caldor, Inc ., 472 U.S. 703 , 708–710 (1985); United States v. Lee , 455 U.S. 252 , 258–260 (1982). Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the n th degree. Specifically, in the Women’s Health Amendment to the Patient Protection and Affordable Care Act (ACA), 124Stat. 119; 155 Cong. Rec. 28841 (2009), Congress undertook to afford gainfully employed women comprehensive, seamless, no-cost insurance coverage for preventive care protective of their health and well-being. Congress delegated to a particular agency, the Health Resources and Services Administration (HRSA), authority to designate the preventive care insurance should cover. HRSA included in its designation all contraceptives approved by the Food and Drug Administration (FDA). Destructive of the Women’s Health Amendment, this Court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets. The Constitution’s Free Exercise Clause, all agree, does not call for that imbalanced result.[ 1 ] Nor does the Religious Freedom Restoration Act of 1993 (RFRA), 42 U. S. C. §2000bb et seq. , condone harm to third parties occasioned by entire disregard of their needs. I therefore dissent from the Court’s judgment, under which, as the Government estimates, between 70,500 and 126,400 women would immediately lose access to no-cost contraceptive services. On the merits, I would affirm the judgment of the U. S. Court of Appeals for the Third Circuit. I A Under the ACA, an employer-sponsored “group health plan” must cover specified “preventive health services” without “cost sharing,” 42 U. S. C. §300gg–13, i.e. , without such out-of-pocket costs as copays or deductibles.[ 2 ] Those enumerated services did not, in the original draft bill, include preventive care specific to women. “To correct this oversight, Senator Barbara Mikulski introduced the Women’s Health Amendment,” now codified at §300gg–13(a)(4). Burwell v. Hobby Lobby Stores, Inc ., 573 U.S. 682 , 741 (2014) (Ginsburg, J., dissenting); see also 155 Cong. Rec. 28841. This provision was designed “to promote equality in women’s access to health care,” countering gender-based discrimination and disparities in such access. Brief for 186 Members of the United States Congress as Amici Curiae 6 (hereinafter Brief for 186 Members of Congress). Its proponents noted, inter alia , that “[w]omen paid significantly more than men for preventive care,” and that “cost barriers operated to block many women from obtaining needed care at all.” Hobby Lobby , 573 U. S., at 742 (Ginsburg, J., dissenting); see, e.g. , 155 Cong. Rec. 28844 (statement of Sen. Hagan) (“When . . . women had to choose between feeding their children, paying the rent, and meeting other financial obligations, they skipped important preventive screenings and took a chance with their personal health.”). Due to the Women’s Health Amendment, the preventive health services that group health plans must cover include, “with respect to women,” “preventive care and screenings . . . provided for in comprehensive guidelines supported by [HRSA].” §300gg–13(a)(4). Pursuant to this instruction, HRSA undertook, after consulting the Institute of Medicine,[ 3 ] to state “what preventive services are necessary for women’s health and well-being and therefore should be considered in the development of comprehensive guidelines for preventive services for women.”[ 4 ] The resulting “Women’s Preventive Services Guidelines” issued in August 2011.[ 5 ] Under these guidelines, millions of women who previously had no, or poor quality, health insurance gained cost-free access, not only to contraceptive services but as well to, inter alia, annual checkups and screenings for breast cancer, cervical cancer, postpartum depression, and gestational diabetes.[ 6 ] As to contraceptive services, HRSA directed that, to implement §300gg–13(a)(4), women’s preventive services encompass “all [FDA] approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”[ 7 ] Ready access to contraceptives and other preventive measures for which Congress set the stage in §300gg–13(a)(4) both safeguards women’s health and enables women to chart their own life’s course. Effective contraception, it bears particular emphasis, “improves health outcomes for women and [their] children,” as “women with unintended pregnancies are more likely to receive delayed or no prenatal care” than women with planned pregnancies. Brief for 186 Members of Congress 5 (internal quotation marks omitted); Brief for American College of Obstetricians and Gynecologists et al. as Amici Curiae 10 (hereinafter ACOG Brief ) (similar). Contraception is also “critical for individuals with underlying medical conditions that would be further complicated by pregnancy,” “has . . . health benefits unrelated to preventing pregnancy,” ( e.g. , it can reduce the risk of endometrial and ovarian cancer), Brief for National Women’s Law Center et al. as Amici Curiae 23–24, 26 (hereinafter NWLC Brief ), and “improves women’s social and economic status,” by “allow[ing] [them] to invest in higher education and a career with far less risk of an unplanned pregnancy,” Brief for 186 Members of Congress 5–6 (internal quotation marks omitted). B For six years, the Government took care to protect women employees’ access to critical preventive health services while accommodating the diversity of religious opinion on contraception. The Internal Revenue Service (IRS), the Employee Benefits Security Administration (EBSA), and the Center for Medicare and Medicaid Services (CMS) crafted a narrow exemption relieving houses of worship, “their integrated auxiliaries,” “conventions or associations of churches,” and “religious order[s]” from the contraceptive- coverage requirement. 76 Fed. Reg. 46623 (2011). For other nonprofit and closely held for-profit organizations opposed to contraception on religious grounds, the agencies made available an accommodation rather than an exemption. See 78 Fed. Reg. 39874 (2013); Hobby Lobby , 573 U. S., at 730–731. “Under th[e] accommodation, [an employer] can self-certify that it opposes providing coverage for particular contraceptive services. See 45 CFR §§147.131(b)(4), (c)(1) [(2013)]; 26 CFR §§54.9815–2713A(a)(4), (b). If [an employer] makes such a certification, the [employer’s] insurance issuer or third-party administrator must ‘[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan’ and ‘[p]rovide separate payments for any contraceptive services required to be covered’ without imposing ‘any cost-sharing requirements . . . on the [employer], the group health plan, or plan participants or beneficiaries.’ 45 CFR §147.131(c)(2); 26 CFR §54.9815–2713A(c)(2).” Id. , at 731 (some alterations in original).[ 8 ] The self-certification accommodation, the Court observed in Hobby Lobby , “does not impinge on [an employer’s] belief that providing insurance coverage for . . . contraceptives . . . violates [its] religion.” Ibid . It serves “a Government interest of the highest order,” i.e. , providing women employees “with cost-free access to all FDA-approved methods of contraception.” Id. , at 729. And “it serves [that] stated interes[t] . . . well.” Id. , at 731; see id., at 693 (Government properly accommodated employer’s religion-based objection to covering contraceptives under employer’s health insurance plan when the harm to women of doing so “would be precisely zero”). Since the ACA’s passage, “[gainfully employed] [w]omen, particularly in lower-income groups, have reported greater affordability of coverage, access to health care, and receipt of preventive services.” Brief for 186 Members of Congress 21. C Religious employers, including petitioner Little Sisters of the Poor Saints Peter and Paul Home (Little Sisters), nonetheless urge that the self-certification accommodation renders them “complicit in providing [contraceptive] coverage to which they sincerely object.” Brief for Little Sisters 35. In 2017, responsive to the pleas of such employers, the Government abandoned its effort to both end discrimination against employed women in access to preventive services and accommodate religious exercise. Under new rules drafted not by HRSA, but by the IRS, EBSA, and CMS, any “non-governmental employer”—even a publicly traded for-profit company—can avail itself of the religious exemption previously reserved for houses of worship. 82 Fed. Reg. 47792 (2017) (interim final rule); 45 CFR §147.132(a)(1)(i)(E) (2018).[ 9 ] More than 2.9 million Americans—including approximately 580,000 women of childbearing age—receive insurance through organizations newly eligible for this blanket exemption. 83 Fed. Reg. 57577–57578 (2018). Of cardinal significance, the exemption contains no alternative mechanism to ensure affected women’s continued access to contraceptive coverage. See 45 CFR §147.132. Pennsylvania and New Jersey, respondents here, sued to enjoin the exemption. Their lawsuit posed this core question: May the Government jettison an arrangement that promotes women workers’ well-being while accommodating employers’ religious tenets and, instead, defer entirely to employers’ religious beliefs, although that course harms women who do not share those beliefs? The District Court answered “no,” and preliminarily enjoined the blanket exemption nationwide. 281 F. Supp. 3d 553, 585 (ED Pa. 2017). The Court of Appeals affirmed. 930 F.3d 543, 576 (CA3 2019). The same question is now presented for ultimate decision by this Court. II Despite Congress’ endeavor, in the Women’s Health Amendment to the ACA, to redress discrimination against women in the provision of healthcare, the exemption the Court today approves would leave many employed women just where they were before insurance issuers were obliged to cover preventive services for them, cost free. The Government urges that the ACA itself authorizes this result, by delegating to HRSA authority to exempt employers from the contraceptive-coverage requirement. This argument gains the Court’s approbation. It should not. A I begin with the statute’s text. But see ante , at 17 (opinion of the Court) (overlooking my starting place). The ACA’s preventive-care provision, 42 U. S. C. §300gg–13(a), reads in full: “A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for— “(1) evidence-based items or services that have in effect a rating of ‘A’ or ‘B’ in the current recommendations of the United States Preventive Services Task Force; “(2) immunizations that have in effect a recommendation from the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention with respect to the individual involved; . . . “(3) with respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in the comprehensive guidelines supported by [HRSA; and] “(4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by [HRSA] for purposes of this paragraph.” At the start of this provision, Congress instructed who is to “provide coverage for” the specified preventive health services: “group health plan[s]” and “health insurance issuer[s].” §300gg–13(a). As the Court of Appeals explained, paragraph (a)(4), added by the Women’s Health Amendment, granted HRSA “authority to issue ‘comprehensive guidelines’ concern[ing] the type of services” group health plans and health insurance issuers must cover with respect to women. 930 F. 3d, at 570 (emphasis added). Nothing in paragraph (a)(4) accorded HRSA “authority to undermine Congress’s [initial] directive,” stated in subsection (a), “concerning who must provide coverage for these services.” Ibid. (emphasis added). The Government argues otherwise, asserting that “[t]he sweeping authorization for HRSA to ‘provide[ ] for’ and ‘support[ ]’ guidelines ‘for purposes of ’ the women’s preventive-services mandate clearly grants HRSA the power not just to specify what services should be covered, but also to provide appropriate exemptions.” Brief for HHS et al. 15.[ 10 ] This terse statement—the entirety of the Government’s textual case—slights the language Congress employed. Most visibly, the Government does not endeavor to explain how any language in paragraph (a)(4) counteracts Congress’ opening instruction in §300gg–13(a) that group health plans “shall . . . provide” specified services. See supra , at 8–9. The Court embraces, and the opinion concurring in the judgment adopts, the Government’s argument. The Court correctly acknowledges that HRSA has broad discretion to determine what preventive services insurers should provide for women. Ante , at 15. But it restates that HRSA’s “discretion [is] equally unchecked in other areas, including the ability to identify and create exemptions from its own Guidelines.” Ante , at 16. See also ante , at 2–3 (Kagan, J., concurring in judgment) (agreeing with this interpretation). Like the Government, the Court and the opinion concurring in the judgment shut from sight §300gg–13(a)’s overarching direction that group health plans and health insurance issuers “shall” cover the specified services. See supra , at 8–9. That “ ‘absent provision[s] cannot be supplied by the courts,’ ” ante , at 16 (quoting Rotkiske v. Klemm , 589 U. S. ___, ___ (2019) (slip op., at 5), militates against the Court’s conclusion, not in favor of it. Where Congress wanted to exempt certain employers from the ACA’s requirements, it said so expressly. See, e.g. , supra, at 3, n. 2. Section 300gg–13(a)(4) includes no such exemption. See supra , at 8–9.[ 11 ] B The position advocated by the Government and endorsed by the Court and the opinion concurring in the judgment encounters further obstacles. Most saliently, the language in §300gg–13(a)(4) mirrors that in §300gg–13(a)(3), the provision addressing children’s preventive health services. Not contesting here that HRSA lacks authority to exempt group health plans from the children’s preventive-care guidelines, the Government attempts to distinguish paragraph (a)(3) from paragraph (a)(4). Brief for HHS et al. 16–17. The attempt does not withstand inspection. The Government first observes that (a)(4), unlike (a)(3), contemplates guidelines created “ for purposes of this paragraph .” (Emphasis added.) This language does not speak to the scope of the guidelines HRSA is charged to create. Moreover, the Government itself accounts for this textual difference: The children’s preventive-care guidelines described in paragraph (a)(3) were “preexisting guidelines . . . developed for purposes unrelated to the ACA.” Brief for HHS et al. 16. The guidelines on women’s preventive care, by contrast, did not exist before the ACA; they had to be created “for purposes of ” the preventive-care mandate. §300gg–13(a)(4). The Government next points to the modifier “evidence-informed” placed in (a)(3), but absent in (a)(4). This omission, however it may bear on the kind of preventive services for women HRSA can require group health insurance to cover, does not touch or concern who is required to cover those services.[ 12 ] HRSA’s role within HHS also tugs against the Government’s, the Court’s, and the opinion concurring in the judgment’s construction of §300gg–13(a)(4). That agency was a logical choice to determine what women’s preventive services should be covered, as its mission is to “improve health care access” and “eliminate health disparities.”[ 13 ] First and foremost, §300gg–13(a)(4) is directed at eradicating gender-based disparities in access to preventive care. See supra , at 3. Overlooked by the Court, see ante, at 14–18, and the opinion concurring in the judgment, see ante , at 2–3 (opinion of Kagan, J.), HRSA’s expertise does not include any proficiency in delineating religious and moral exemptions. One would not, therefore, expect Congress to delegate to HRSA the task of crafting such exemptions. See King v. Burwell , 576 U.S. 473, 486 (2015) (“It is especially unlikely that Congress would have delegated this decision to [an agency] which has no expertise in . . . policy of this sort.”).[ 14 ] In fact, HRSA did not craft the blanket exemption. As earlier observed, see supra , at 7, that task was undertaken by the IRS, EBSA, and CMS. See also 45 CFR §147.132(a)(1), 147.133(a)(1) (direction by the IRS, EBSA, and CMS that HRSA’s guidelines “ must not provide for” contraceptive coverage in the circumstances described in the blanket exemption (emphasis added)). Nowhere in 42 U. S. C. §300gg–13(a)(4) are those agencies named, as earlier observed, see supra, at 8–9, an absence the Government, the Court, and the opinion concurring in the judgment do not deign to acknowledge. See Brief for HHS et al. 15–20; ante , at 14–18 (opinion of the Court); ante , at 2–3 (opinion of Kagan, J.). C If the ACA does not authorize the blanket exemption, the Government urges, then the exemption granted to houses of worship in 2011 must also be invalid. Brief for HHS et al. 19–20. As the Court of Appeals explained, however, see 930 F. 3d, at 570, n. 26, the latter exemption is not attributable to the ACA’s text; it was justified on First Amendment grounds. See Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC , 565 U.S. 171 , 188 (2012) (the First Amendment’s “ministerial exception” protects “the internal governance of [a] church”); 80 Fed. Reg. 41325 (2015) (the exemption “recogni[zes] [the] particular sphere of autonomy [afforded to] houses of worship . . . consistent with their special status under longstanding tradition in our society”).[ 15 ] Even if the house-of-worship exemption extends beyond what the First Amendment would require, see ante , at 3, n. 1 (opinion of Kagan, J.), that extension, as just explained, cannot be extracted from the ACA’s text.[ 16 ] III Because I conclude that the blanket exemption gains no aid from the ACA, I turn to the Government’s alternative argument. The religious exemption, if not the moral exemption, the Government urges, is necessary to protect religious freedom. The Government does not press a free exercise argument, see supra , at 2, and n. 1, instead invoking RFRA. Brief for HHS et al. 20–31. That statute instructs that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless doing so “is the least restrictive means of furthering [a] compelling governmental interest.” 42 U. S. C. §2000bb–1(a), (b). A 1 The parties here agree that federal agencies may craft accommodations and exemptions to cure violations of RFRA. See, e.g ., Brief for Respondents 36.[ 17 ] But that authority is not unbounded. Cutter v. Wilkinson , 544 U.S. 709 , 720 (2005) (construing Religious Land Use and Institutionalized Persons Act of 2000, the Court cautioned that “adequate account” must be taken of “the burdens a requested accommodation may impose on nonbeneficiaries” of the Act); Caldor , 472 U. S., at 708–710 (invalidating state statute requiring employers to accommodate an employee’s religious observance for failure to take into account the burden such an accommodation would impose on the employer and other employees). “[O]ne person’s right to free exercise must be kept in harmony with the rights of her fellow citizens.” Hobby Lobby, 573 U. S., at 765, n. 25 (Ginsburg, J., dissenting). See also id. , at 746 (“[Y]our right to swing your arms ends just where the other man’s nose begins.” (quoting Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev. 932, 957 (1919))). In this light, the Court has repeatedly assumed that any religious accommodation to the contraceptive-coverage requirement would preserve women’s continued access to seamless, no-cost contraceptive coverage. See Zubik v. Burwell , 578 U. S. ___, ___ (2016) ( per curiam ) (slip op., at 4) (“[T]he parties on remand should be afforded an opportunity to arrive at an approach . . . that accommodates petitioners’ religious exercise while . . . ensuring that women covered by petitioners’ health plans receive full and equal health coverage, including contraceptive coverage.” (internal quotation marks omitted)); Wheaton College v. Burwell , 573 U.S. 958, 959 (2014) (“Nothing in this interim order affects the ability of applicant’s employees and students to obtain, without cost, the full range of [FDA] approved contraceptives.”); Hobby Lobby , 573 U. S., at 692 (“There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to . . . all [FDA]-approved contraceptives. In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of [other] companies.”). The assumption made in the above-cited cases rests on the basic principle just stated, one on which this dissent relies: While the Government may “accommodate religion beyond free exercise requirements,” Cutter , 544 U. S., at 713, when it does so, it may not benefit religious adherents at the expense of the rights of third parties. See, e.g. , id. , at 722 (“[A]n accommodation must be measured so that it does not override other significant interests.”); Caldor , 472 U. S., at 710 (religious exemption was invalid for its “unyielding weighting in favor of ” interests of religious adherents “over all other interests”). Holding otherwise would endorse “the regulatory equivalent of taxing non-adherents to support the faithful.” Brief for Church-State Scholars as Amici Curiae 3. 2 The expansive religious exemption at issue here imposes significant burdens on women employees. Between 70,500 and 126,400 women of childbearing age, the Government estimates, will experience the disappearance of the contraceptive coverage formerly available to them, 83 Fed. Reg. 57578–57580; indeed, the numbers may be even higher.[ 18 ] Lacking any alternative insurance coverage mechanism, see supra , at 7, the exemption leaves women two options, neither satisfactory. The first option—the one suggested by the Government in its most recent rulemaking, 82 Fed. Reg. 47803—is for women to seek contraceptive care from existing government-funded programs. Such programs, serving primarily low-income individuals, are not designed to handle an influx of tens of thousands of previously insured women.[ 19 ] Moreover, as the Government has acknowledged, requiring women “to take steps to learn about, and to sign up for, a new health benefit” imposes “additional barriers,” “mak[ing] that coverage accessible to fewer women.” 78 Fed. Reg. 39888. Finally, obtaining care from a government-funded program instead of one’s regular care provider creates a continuity-of-care problem, “forc[ing those] who lose coverage away from trusted providers who know their medical histories.” NWLC Brief 18. The second option for women losing insurance coverage for contraceptives is to pay for contraceptive counseling and devices out of their own pockets. Notably, however, “the most effective contraception is also the most expensive.” ACOG Brief 14–15. “[T]he cost of an IUD [intrauterine device],” for example, “is nearly equivalent to a month’s full-time pay for workers earning the minimum wage.” Hobby Lobby , 573 U. S., at 762 (Ginsburg, J., dissenting). Faced with high out-of-pocket costs, many women will forgo contraception, Brief for 186 Members of Congress 11, or resort to less effective contraceptive methods, 930 F. 3d, at 563. As the foregoing indicates, the religious exemption “reintroduce[s] the very health inequities and barriers to care that Congress intended to eliminate when it enacted the women’s preventive services provision of the ACA.” NWLC Brief 5. “No tradition, and no prior decision under RFRA, allows a religion-based exemption when [it] would be harmful to others—here, the very persons the contraceptive coverage requirement was designed to protect.” Hobby Lobby , 573 U. S., at 764 (Ginsburg, J., dissenting).[ 20 ] I would therefore hold the religious exemption neither required nor permitted by RFRA.[ 21 ] B Pennsylvania and New Jersey advance an additional argument: The exemption is not authorized by RFRA, they maintain, because the self-certification accommodation it replaced was sufficient to alleviate any substantial burden on religious exercise. Brief for Respondents 36–42. That accommodation, I agree, further indicates the religious exemption’s flaws. 1 For years, religious organizations have challenged the self-certification accommodation as insufficiently protective of their religious rights. See, e.g. , Zubik , 578 U. S., at ___ (slip op., at 3). While I do not doubt the sincerity of these organizations’ opposition to that accommodation, Hobby Lobby , 573 U. S., at 758–759 (Ginsburg. J., dissenting), I agree with Pennsylvania and New Jersey that the accommodation does not substantially burden objectors’ religious exercise. As Senator Hatch observed, “[RFRA] does not require the Government to justify every action that has some effect on religious exercise.” 139 Cong. Rec. 26180 (1993). Bowen v. Roy , 476 U.S. 693 (1986), is instructive in this regard. There, a Native American father asserted a sincere religious belief that his daughter’s spirit would be harmed by the Government’s use of her social security number. Id. , at 697. The Court, while casting no doubt on the sincerity of this religious belief, explained: “Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family. The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.” Id ., at 699.[ 22 ] Roy signals a critical distinction in the Court’s religious exercise jurisprudence: A religious adherent may be entitled to religious accommodation with regard to her own conduct, but she is not entitled to “insist that . . . others must conform their conduct to [her] own religious necessities.’ ” Caldor , 472 U. S., at 710 (quoting Otten v. Baltimore & Ohio R. Co ., 205 F.2d 58, 61 (CA2 1953) (Hand, J.); (emphasis added).[ 23 ] Counsel for the Little Sisters acknowledged as much when he conceded that religious “employers could [not] object at all” to a “government obligation” to provide contraceptive coverage “imposed directly on the insurers.” Tr. of Oral Arg. 41.[ 24 ] But that is precisely what the self-certification accommodation does. As the Court recognized in Hobby Lobby : “When a group-health-insurance issuer receives notice that [an employer opposes coverage for some or all contraceptive services for religious reasons], the issuer must then exclude [that] coverage from the employer’s plan and provide separate payments for contraceptive services for plan participants.” 573 U. S., at 698–699; see also id., at 738 (Kennedy, J., concurring) (“The accommodation works by requiring insurance companies to cover . . . contraceptive coverage for female employees who wish it.” (emphasis added)). Under the self-certification accommodation, then, the objecting employer is absolved of any obligation to provide the contraceptive coverage to which it objects; that obligation is transferred to the insurer. This arrangement “furthers the Government’s interest [in women’s health] but does not impinge on the [employer’s] religious beliefs.” Ibid .; see supra , at 18–19. 2 The Little Sisters, adopting the arguments made by religious organizations in Zubik , resist this conclusion in two ways. First, they urge that contraceptive coverage provided by an insurer under the self-certification accommodation forms “part of the same plan as the coverage provided by the employer.” Brief for Little Sisters 12 (internal quotation marks omitted). See also Tr. of Oral Arg. 29 (Little Sisters object “to having their plan hijacked”); ante , at 8 (Alito, J., concurring) (Little Sisters object to “maintain[ing] and pay[ing] for a plan under which coverage for contraceptives would be provided”). This contention is contradicted by the plain terms of the regulation establishing that accommodation: To repeat, an insurance issuer “must . . . [e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan.” 45 CFR §147.131(c)(2)(i)(A) (2013) (emphasis added); see supra, at 6.[ 25 ] Second, the Little Sisters assert that “tak[ing] affirmative steps to execute paperwork . . . necessary for the provision of ‘seamless’ contraceptive coverage to their employees” implicates them in providing contraceptive services to women in violation of their religious beliefs. Little Sisters Reply Brief 7. At the same time, however, they have been adamant that they do not oppose merely “register[ing] their objections” to the contraceptive-coverage requirement. Ibid. See also Tr. of Oral Arg. 29, 42–43 (Little Sisters have “no objection to objecting”); ante , at 8 (Alito, J., concurring) (Little Sisters’ “concern was not with notifying the Government that they wished to be exempted from complying with the mandate per se ”). These statements, taken together, reveal that the Little Sisters do not object to what the self-certification accommodation asks of them , namely, attesting to their religious objection to contraception. See supra , at 6. They object, instead, to the particular use insurance issuers make of that attestation. See supra , at 18–19.[ 26 ] But that use originated from the ACA and its once-implementing regulation, not from religious employers’ self- certification or alternative notice. *  *  * The blanket exemption for religious and moral objectors to contraception formulated by the IRS, EBSA, and CMS is inconsistent with the text of, and Congress’ intent for, both the ACA and RFRA. Neither law authorizes it.[ 27 ] The original administrative regulation accommodating religious objections to contraception appropriately implemented the ACA and RFRA consistent with Congress’ staunch determination to afford women employees equal access to preventive services, thereby advancing public health and welfare and women’s well-being. I would therefore affirm the judgment of the Court of Appeals.[ 28 ] Notes 1 In Employment Div. , Dept. of Human Resources of Ore . v. Smith , 494 U.S. 872 (1990), the Court explained that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Id., at 879 (internal quotation marks omitted). The requirement that insurers cover FDA-approved methods of contraception “applies generally, . . . trains on women’s well-being, not on the exercise of religion, and any effect it has on such exercise is incidental.” Burwell v. Hobby Lobby Stores , Inc ., 573 U.S. 682 , 745 (2014) (Ginsburg, J., dissenting). Smith forecloses “[a]ny First Amendment Free Exercise Clause claim [one] might assert” in opposition to that requirement. 573 U. S . , at 744. 2 This requirement does not apply to employers with fewer than 50 employees, 26 U. S. C. §4980H(c)(2), or “grandfathered health plans”—plans in existence on March 23, 2010 that have not thereafter made specified changes in coverage, 42 U. S. C. §18011(a), (e); 45 CFR §147.140(g) (2018). “Federal statutes often include exemptions for small employers, and such provisions have never been held to undermine the interests served by these statutes.” Hobby Lobby , 573 U. S., at 763 (Ginsburg, J., dissenting). “[T]he grandfathering provision,” “far from ranking as acategorical exemption, . . . is temporary, intended to be a means for gradually transitioning employers into mandatory coverage.” Id. , at 764(internal quotation marks omitted). 3 “The [Institute of Medicine] is an arm of the National Academy of Sciences, an organization Congress established for the explicit purpose of furnishing advice to the Government.” Id ., at 742, n. 3 (internal quotation marks omitted). 4 HRSA, U. S. Dept. of Health and Human Services (HHS), Women’s Preventive Services Guidelines, www.hrsa.gov/womens-guidelines/. 5 77 Fed. Reg. 8725 (2012). 6 HRSA, HHS, Women’s Preventive Services Guidelines, supra . 7 77 Fed. Reg. 8725 (alterations and internal quotation marks omitted). Proponents of the Women’s Health Amendment specifically anticipated that HRSA would require coverage of family planning services. See, e.g. , 155 Cong. Rec. 28841 (2009) (statement of Sen. Boxer); id. , at 28843 (statement of Sen. Gillibrand); id. , at 28844 (statement of Sen. Mikulski); id. , at 28869 (statement of Sen. Franken); id ., at 28876 (statement of Sen. Cardin); ibid . (statement of Sen. Feinstein); id. , at 29307 (statement of Sen. Murray). 8 This opinion refers to the contraceptive-coverage accommodation made in 2013 as the “self-certification accommodation.” See ante , at 6 (opinion of the Court). Although this arrangement “requires the issuer to bear the cost of [contraceptive] services, HHS has determined that th[e] obligation will not impose any net expense on issuers because its cost will be less than or equal to the cost savings resulting from th[ose] services.” Hobby Lobby , 573 U. S., at 698–699. 9 Nonprofit and closely held for-profit organizations with “sincerely held moral convictions” against contraception also qualify for the exemption. 45 CFR §147.133(a)(1)(i), (a)(2). Unless otherwise noted, this opinion refers to the religious and moral exemptions together as “the exemption” or “the blanket exemption.” 10 This opinion uses “Brief for HHS et al.” to refer to the Brief for Petitioners in No. 19–454, filed on behalf of the Departments of HHS, Treasury, and Labor, the Secretaries of those Departments, and the President. 11 The only language to which the Court points in support of its contrary conclusion is the phrase “as provided for.” See ante , at 15. This phrase modifies “additional preventive care and screenings.” §300gg–13(a)(4). It therefore speaks to what services shall be provided, not who must provide them. 12 The Court does not say whether, in its view, the exemption authority it claims for women’s preventive care exists as well for HRSA’s children’s preventive-care guidelines. 13 HRSA, HHS, Organization, www.hrsa.gov/about/organization/. 14 A more logical choice would have been HHS’s Office for CivilRights (OCR), which “enforces . . . conscience and religious freedomlaws” with respect to HHS programs. HHS, OCR, About Us, www.hhs.gov/ocr/about-us/. Indeed, when the Senate introduced an amendment to the ACA similar in character to the blanket exemption, a measure that failed to pass, the Senate instructed that OCR administer the exemption. 158 Cong. Rec. 1415 (2012) (proposed amendment); id ., at 2634 (vote tabling amendment). 15 On the broad scope the Court today attributes to the “ministerial exception,” see Our Lady of Guadalupe School v. Morrissey-Berru , 591 U. S. ___ (2020). 16 The Government does not argue that my view of the limited compass of §300gg–13(a)(4) imperils the self-certification accommodation. Brief for HHS et al. 19–20. But see ante , at 18, n. 9 (opinion of the Court) . That accommodation aligns with the Court’s decisions under the Religious Freedom Restoration Act of 1993 (RFRA). See infra , at 14–15. It strikes a balance between women’s health and religious opposition to contraception, preserving women’s access to seamless, no-cost contraceptive coverage, but imposing the obligation to provide such coverage directly on insurers, rather than on the objecting employer. See supra , at 6; infra , at 18–20. The blanket exemption, in contrast, entirely disregards women employees’ preventive care needs. 17 But see, e.g. , Brief for Professors of Criminal Law et al. as AmiciCuriae 8–11 (RFRA does not grant agencies independent rulemaking authority; instead, laws allegedly violating RFRA must be challenged in court). No party argues that agencies can act to cure violations of RFRA only after a court has found a RFRA violation, and this opinion does not adopt any such view. 18 The Government notes that 2.9 million people were covered by the 209 plans that previously utilized the self-certification accommodation. 83 Fed. Reg. 57577. One hundred nine of those plans covering 727,000 people, the Government estimates, will use the religious exemption, while 100 plans covering more than 2.1 million people will continue to use the self-certification accommodation. Id. , at 57578 . If more plans, or plans covering more people, use the new exemption, more women than the Government estimates will be affected. 19 Title X “is the only federal grant program dedicated solely to providing individuals with comprehensive family planning and related preventive health services.” HHS, About Title X Grants, www.hhs.gov/opa/title-x-family-planning/about-title-x-grants/. A recent rule makes women who lose contraceptive coverage due to the religious exemption eligible for Title X services. See 84 Fed. Reg. 7734 (2019). Expanding eligibility , however, “does nothing to ensure Title X providers actually have capacity to meet the expanded client population.” Brief for National Women’s Law Center et al. as Amici Curiae 22. Moreover, that same rule forced 1,041 health providers, serving more than 41% of Title X patients, out of the Title X provider network due to their affiliation with abortion providers. 84 Fed. Reg. 7714; Brief for Planned Parenthood Federation of America et al. as Amici Curiae 18–19. 20 Remarkably, Justice Alito maintains that stripping women of insurance coverage for contraceptive services imposes no burden. See ante , at 18 (concurring opinion). He reaches this conclusion because, in his view, federal law does not require the contraceptive coverage denied to women under the exemption. Ibid . Congress, however, called upon HRSA to specify contraceptive and other preventive services for women in order to ensure equality in women employees’ access to healthcare, thus safeguarding their health and well-being. See supra, at 2–5. 21 As above stated, the Government does not defend the moral exemption under RFRA. See supra , at 13. 22 Justice Alito disputes the relevance of Roy , asserting that the religious adherent in that case faced no penalty for noncompliance with the legal requirement under consideration. See ante , at 6, n. 5. As Justice Alito acknowledges, however, the critical inquiry has two parts. See ante , at 6–7. It is not enough to ask whether noncompliance entails “substantial adverse practical consequences.” One must also ask whether compliance substantially burdens religious exercise. Like Roy , my dissent homes in on the latter question. 23 Even if RFRA sweeps more broadly than the Court’s pre- Smith jurisprudence in some respects, see Hobby Lobby , 573 U. S., at 695, n. 3; but see id. , at 749–750 (Ginsburg, J., dissenting), there is no cause to believe that Congress jettisoned this fundamental distinction. 24 Justice Alito ignores the distinction between (1) a request for an accommodation with regard to one’s own conduct, and (2) an attempt to require others to conform their conduct to one’s own religious beliefs. This distinction is fatal to Justice Alito’s argument that the self-certification accommodation violates RFRA. See ante , at 6–10. 25 Religious organizations have observed that, under the self-certification accommodation, insurers need not, and do not, provide contraceptive coverage under a separate policy number. Supp. Brief for Petitioners in Zubik v. Burwell , O. T. 2015, No. 14–1418, p. 1. This objection does not relate to a religious employer’s own conduct; instead, it concerns the insurer’s conduct. See supra , at 18–19. 26 Justice Alito asserts that the Little Sisters’ “situation [is] the same as that of the conscientious objector in Thomas [v. Review Bd. of Ind. Employment Security Div ., 450 U.S. 707 , 715 (1981)].” Ante , at 9–10. I disagree . In Thomas , a Jehovah’s Witness objected to “work[ing] on weapons,” 450 U. S., at 710, which is what his employer required of him. As above stated, however, the Little Sisters have no objection to objecting, the only other action the self-certification accommodation requires of them. 27 Given this conclusion, I need not address whether the exemption is procedurally invalid. See ante , at 22–26 (opinion of the Court). 28 Although the Court does not reach the issue, the District Court did not abuse its discretion in issuing a nationwide injunction. The Administrative Procedure Act contemplates nationwide relief from invalid agency action. See 5 U. S. C. §706(2) (empowering courts to “hold unlawful and set aside agency action”). Moreover, the nationwide reach of the injunction “was ‘necessary to provide complete relief to the plaintiffs.’ ” Trump v. Hawaii , 585 U. S. ___, ___, n. 15 (2018) (Sotomayor, J., dissenting) (slip op., at 25, n. 13) (quoting Madsen v. Women's Health Center , Inc ., 512 U.S. 753 , 765 (1994)). Harm to Pennsylvania and New Jersey, the Court of Appeals explained, occurs because women who lose benefits under the exemption “will turn to state-funded services for their contraceptive needs and for the unintended pregnancies that may result from the loss of coverage.” 930 F. 3d, at 562. This harm is not bounded by state lines. The Court of Appeals noted, for example, that some 800,000 residents of Pennsylvania and New Jersey work—and thus receive their health insurance—out of State. Id. , at 576. Similarly, many students who attend colleges and universities in Pennsylvania and New Jersey receive their health insurance from their parents’ out-of-state health plans. Ibid.

The Supreme Court ruled that the Trump administration had the authority to exempt employers with religious or moral objections from providing contraceptive coverage to their employees. The Court reversed the Third Circuit's decision and dissolved the nationwide preliminary injunction. The case concerned the ACA's contraceptive mandate, which required employers to provide contraceptive coverage through their group health plans. The Court held that the government had the power to create exemptions for employers with religious and conscientious objections.

Immigration & National Security

Wong Wing v. U.S.

https://supreme.justia.com/cases/federal/us/163/228/

U.S. Supreme Court Wong Wing v. United States, 163 U.S. 228 (1896) Wong Wing v. United States No. 204 Argued April 1-2, 1896 Decided May 18, 1896 163 U.S. 228 APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR. THE EASTERN DISTRICT OF MICHIGAN Syllabus Detention or temporary confinement, as part of the means necessary to give effect to the exclusion or expulsion of Chinese aliens is valid. The United States can forbid aliens from coming within their borders, and expel them from their territory, and can devolve the power and duty of identifying and arresting such persons upon executive or subordinate officials, but when Congress sees fit to further promote such a policy by subjecting the persons of such aliens to infamous punishment at hard labor, or by confiscating their property, such legislation, to be valid, must provide for a judicial trial to establish the guilt of the accused. Page 163 U. S. 229 On July 15, 1892, Wong Wing, Lee Poy, Lee You Tong, and Chan Wah Dong were brought before John Graves, a commissioner of the Circuit Court of the United States for the Eastern District of Michigan by virtue of a warrant issued upon the complaint of T. E. McDonough, deputy collector of customs, upon a charge of being Chinese persons unlawfully within the United States, and not entitled to remain within the same. The commissioner found that said persons were unlawfully within the United States, and not entitled to remain within the same, and he adjudged that they be imprisoned at hard labor at and in the Detroit House of Correction for a period of sixty days from and including the day of commitment, and that at the expiration of said time, they be removed from the United States to China. A writ of habeas corpus was sued out of the circuit court of the United States, directed to Joseph Nicholson, superintendent of the Detroit House of Correction, alleging that said persons were by him unlawfully detained. The superintendent made a return setting up the action of the commissioner, and, after argument, the writ of habeas corpus was discharged, and the prisoners were remanded to the custody of said Nicholson, to serve out their original sentence. From this decision, an appeal was taken to this Court. MR. JUSTICE SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court. By the thirteenth section of the Act of September 13, 1888, c. 1015, 25 Stat. 479, it was provided as follows: "That any Chinese person, or person of Chinese descent found unlawfully in the United States or its territories may be arrested upon a warrant issued upon a complaint under oath filed by any party on behalf of the United States, by any justice, Page 163 U. S. 230 judge, or commissioner of any United States court, returnable before any justice, judge, or commissioner of a United States court, or before any United States court, and when convicted, upon a hearing, and found and adjudged to be one not lawfully entitled to be or remain in the United States, such person shall be removed from the United States to the country whence he came." The first section of the Act of October 1, 1888, c. 1064, 25 Stat. 504, was in the following terms: "That from and after the passage of this act, it shall be unlawful for any Chinese laborer who shall at any time heretofore have been, or who may now or hereafter be, a resident within the United States, and who shall have departed, or shall depart therefrom, and shall not have returned before the passage of this act, to return to, or remain in, the United States." The validity of these acts was assailed because they were alleged to be in conflict with existing treaties between the United States and China, and because to deport a Chinaman who had, under previous laws, a right to return to the United States was a punishment which could not be inflicted except by judicial sentence. But these contentions were overruled and the validity of the legislation sustained by this Court, in the case of Chae Chan Ping v. United States, 130 U. S. 581 . In this case, it was held, in an elaborate decision by MR. JUSTICE FIELD, that the act excluding Chinese laborers from the United States was a constitutional exercise of legislative power; that, so far as it conflicted with existing treaties between the United States and China, it operated to that extent to abrogate them as part of the municipal law of the United States, and that a right conferred upon a Chinese laborer, by a certificate issued in pursuance of previous laws, to return to the United States could be taken away by a subsequent act of Congress. On May 5, 1892, by an act of that date, c. 60, 27 Stat. 25, Congress enacted that all laws then in force prohibiting and regulating the coming into this country of Chinese persons and persons of Chinese descent should be continued in force for a period of ten years from the passage of the act. The sixth Page 163 U. S. 231 section of the act was, in part, in the following terms: "And it shall be the duty of all Chinese laborers within the limits of the United States at the time of the passage of this act, and who are entitled to remain in the United States, to apply to the collector of internal revenue of their respective districts, within one year after the passage of this act, for a certificate of residence, and any Chinese laborer, within the limits of the United States, who shall neglect, fail, or refuse to comply with the provisions of this act or who, after one year from the passage hereof, shall be found within the jurisdiction of the United States without such certificate of residence shall be deemed and adjudged to be unlawfully within the United States, and may be arrested by any United States customs official, collector of internal revenue or his deputies, United States marshal or his deputies, and taken before a United States judge, whose duty it shall be to order that he be deported from the United States as hereinbefore provided." As against the validity of this section it was contended that whatever might be true as to the power of the United States to exclude aliens, yet there was no power to banish such aliens who had been permitted to become residents, and that if such power did exist, it was in the nature of a punishment, and could only be lawfully exercised after a judicial trial. But this Court held, in the case of Fong Yue Ting v. United States, 149 U. S. 698 , that the right to exclude or to expel aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, is an inherent and inalienable right of every sovereign and independent nation; that the power of Congress to expel, like the power to exclude, aliens or any class of aliens from the country may be exercised entirely through executive officers, and that the said sixth section of the Act of May 5, 1892, was constitutional and valid. The Act of August 18, 1894, c. 301, 28 Stat. 390, made provision for expenses of returning to China all Chinese persons found to be unlawfully in the United States, including the cost of imprisonment and actual expense of conveyance of Chinese persons to the frontier or seaboard for deportation, Page 163 U. S. 232 and contained the following enactment: "In every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereafter made, the decision of the appropriate immigration or customs officers, if adverse to the admission of such alien, shall be final unless reversed on appeal to the Secretary of the Treasury." One Lem Moon Sing, a person of the Chinese race who claimed to have had a permanent domicile in the United States and to have carried on business therein as a merchant before the passage of the Act of August 18, 1894, and to have gone on a temporary visit to his native land, with the intention of returning and continuing his residence in the United States (during which temporary absence the said act was passed) was, on his return, prevented from landing, and was confined and restrained of his liberty by the collector of the port of San Francisco. He filed in the District Court of the United States for the Northern District of California a petition for a writ of habeas corpus wherein he alleged that he had not been apprehended and was not detained by virtue of the judgment, order, decree, or other judicial process of any court, or under any writ or warrant, but under the authority alleged to have been given to the collector of the port of San Francisco by the Act of August 18, 1894, and that his detention was without jurisdiction and without due process of law and against his rights under the Constitution and laws of the United States. The writ of habeas corpus was denied by the court below, and from this judgment an appeal was prosecuted to this Court. The contention on behalf of the appellant in the case was thus stated by MR. JUSTICE HARLAN, who delivered the opinion of the Court. "The contention is that while, generally speaking, immigration officers have jurisdiction under the statute to exclude an alien who is not entitled under some treaty or statute to come into the United States, yet if the alien is entitled of right by some law or treaty to enter this country, but is nevertheless excluded by such officers, the latter exceed their jurisdiction, and their alleged action, if it results in restraining Page 163 U. S. 233 the alien of his liberty, presents a judicial question, for the decision of which the courts may intervene upon a writ of habeas corpus." In considering this position, the Court said: "That view, if sustained, would bring into the courts every case of an alien who claimed the right to come into the United States under some law or treaty, but was prevented from doing so by the executive branch of the government. This would defeat the manifest purpose of Congress in committing to subordinate immigration officers and to the Secretary of the Treasury exclusive authority to determine whether a particular alien seeking admission into this country belongs to the class entitled by some law or treaty to come into the country, or to a class forbidden to enter the United States. Under that interpretation of the act of 1894, the provision that the decision of the appropriate immigration or customs officers should be final, unless reversed on appeal to the Secretary of the Treasury, would be of no practical value." "The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications." Accordingly, the judgment of the court below denying the application for the writ of habeas corpus was affirmed. Lem Moon Sing v. United States, 158 U. S. 538 . The present appeal presents a different question from those heretofore determined. It is claimed that even if it be competent for Congress to prevent aliens from coming into the country, or to provide for the deportation of those unlawfully within its borders, and to submit the enforcement of the provisions of such laws to executive officers, yet the fourth section of the act of 1892, which provides that "any such Chinese person, or person of Chinese descent, convicted and adjudged to be not lawfully entitled to be or remain in the United States, shall be imprisoned at hard labor for a period not exceeding one year, and thereafter removed from the United Page 163 U. S. 234 States," inflicts an infamous punishment, and hence conflicts with the fifth and sixth amendments of the Constitution, which declare that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment of indictment of a grand jury, and that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed. It is argued that as this Court has held, in Ex Parte Wilson, 114 U. S. 417 , and in Mackin v. United States, 117 U. S. 348 , that no person can be held to answer, without presentment or indictment by a grand jury, for any crime for which an infamous punishment may be imposed by the court, and that imprisonment at hard labor for a term of years is an infamous punishment, the detention of the present appellants in the House of Correction at Detroit at hard labor for a period of 60 days without having been sentenced thereto upon an indictment by a grand jury and a trial by a jury is illegal and without jurisdiction. On the other hand, it is contended on behalf of the government that it has never been decided by this Court that in all cases where the punishment may be confinement at hard labor, the crime is infamous, and many cases are cited from the reports of the state supreme courts where the constitutionality of statutes providing for summary proceedings, without a jury trial, for the punishment by imprisonment at hard labor of vagrants and disorderly persons, had been upheld. These courts have held that the constitutional guaranties refer to such crimes and misdemeanors as have, by the regular course of the law, and the established modes of procedure, been the subject of trial by jury, and that they do not embrace every species of accusation involving penal consequences. It is urged that the offense of being and remaining unlawfully within the limits of the United States by an alien is a political offense, and is not within the common law cases triable only by a jury, and that the Constitution does not apply to such a case. The Chinese Exclusion Acts operate upon two classes -- one Page 163 U. S. 235 consisting of those who came into the country with its consent, the other of those who have come into the United States without their consent, and in disregard of the law. Our previous decisions have settled that it is within the constitutional power of Congress to deport both of these classes, and to commit the enforcement of the law to executive officers. The question now presented is whether Congress can promote its policy in respect to Chinese persons by adding to its provisions for their exclusion and expulsion punishment by imprisonment at hard labor, to be inflicted by the judgment of any justice, judge, or commissioner of the United States without a trial by jury. In other words, we have to consider the meaning and validity of the fourth section of the Act of May 5, 1892, in the following words: "That any such Chinese person or person of Chinese descent, convicted and adjudged to be not lawfully entitled to be and remain in the United States, shall be imprisoned at hard labor for a period of not exceeding one year, and thereafter removed from the United States, as hereinbefore provided." We think it clear that detention or temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens, would be valid. Proceedings to exclude or expel would be vain if those accused could not be held in custody pending the inquiry into their true character, and while arrangements were being made for their deportation. Detention is a usual feature in every case of arrest on a criminal charge, even when an innocent person a wrongfully accused, but it is not imprisonment in a legal sense. So too, we think it would be plainly competent for Congress to declare the act of an alien in remaining unlawfully within the United States to be an offense punishable by fine or imprisonment if such offense were to be established by a judicial trial. But the evident meaning of the section in question -- and no other is claimed for it by the counsel for the government -- is that the detention provided for is an imprisonment at hard labor, which is to be undergone before the sentence of deportation Page 163 U. S. 236 is to be carried into effect, and that such imprisonment is to be adjudged against the accused by a justice, judge, or commissioner, upon a summary hearing. Thus construed, the fourth section comes before this Court for the first time for consideration as to its validity. It is indeed obvious from some expressions used by the Court in a previous opinion under the exclusion acts that it was perceived that the question now presented might arise; but care was taken to reserve any expression of opinion upon it. Thus, in the case of Fong Yue Ting v. United States, 149 U. S. 730 , MR. JUSTICE GRAY used the following significant language: "The proceeding before a United States judge, as provided for in section 6 of the act of 1892, is in no proper sense a trial and sentence for a crime or offense. It is simply the ascertainment, by appropriate and lawful means, of the fact whether the conditions exist upon which Congress has enacted that an alien of this class may remain within the country. The order of deportation is not a punishment for crime. It is not a 'banishment,' in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punishment. It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the nation, acting within its constitutional authority and through the proper departments, has determined that his continuing to reside here shall depend. He has not, therefore, been deprived of life, liberty, or property without due process or law, and the provisions of the Constitution securing the right of trial by jury and prohibiting unreasonable searches and seizures and cruel and unusual punishments have no application." There is an evident implication in this language of a distinction between those provisions of the statute which contemplate only the exclusion or expulsion of Chinese persons and those which provide for their imprisonment at hard labor, pending which their deportation is suspended. Our views upon the question thus specifically pressed upon Page 163 U. S. 237 our attention may be briefly expressed thus: we regard it as settled by our previous decisions that the United States can, as a matter of public policy, by congressional enactment, forbid aliens or classes of aliens from coming within their borders and expel aliens or classes of aliens from their territory, and can, in order to make effectual such decree of exclusion or expulsion, devolve the power and duty of identifying and arresting the persons included in such decree, and causing their deportation, upon executive or subordinate officials. But when Congress sees fit to further promote such a policy by subjecting the persons of such aliens to infamous punishment at hard labor, or by confiscating their property, we think such legislation, to be valid, must provide for a judicial trial to establish the guilt of the accused. No limits can be put by the courts upon the power of Congress to protect, by summary methods, the country from the advent of aliens whose race or habits render them undesirable as citizens, or to expel such if they have already found their way into our land, and unlawfully remain therein. But to declare unlawful residence within the country to be an infamous crime, punishable by deprivation of liberty and property, would be to pass out of the sphere of constitutional legislation unless provision were made that the fact of guilt should first be established by a judicial trial. It is not consistent with the theory of our government that the legislature should, after having defined an offense as an infamous crime, find the fact of guilt and adjudge the punishment by one of its own agents. In Ex Parte Wilson, 114 U. S. 428 , this Court declared that, for more than a century, imprisonment at hard labor in the state prison or penitentiary or other similar institution has been considered an infamous punishment in England and America, and that imprisonment at hard labor, compulsory and unpaid, is, in the strongest sense of the words, "involuntary servitude for crime," spoken of in the provision of the ordinance of 1787 and of the Thirteenth Amendment of the Constitution, by which all other slavery was abolished, and which declares Page 163 U. S. 238 that such slavery or involuntary servitude shall not exist within the United States or any place subject to their jurisdiction except as a punishment for crime whereof the party shall have been duly convicted. And in the case of Yick Wo v. Hopkins, 118 U. S. 369 , it was said: "The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says:" " Nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law." "These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or nationality, and the equal protection of the laws is a pledge of the protection of equal laws." Applying this reasoning to the Fifth and Sixth Amendments, it must be concluded that all persons within the territory of the United States are entitled to the protection guarantied by those amendments, and that even aliens shall not be held to answer for a capital or other infamous crime unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law. Our conclusion is that the commissioner, in sentencing the appellants to imprisonment at hard labor at and in the Detroit House of Correction, acted without jurisdiction, and that the circuit court erred in not discharging the prisoners from such imprisonment without prejudice to their detention according to law for deportation. The judgment of the circuit court is reversed, and the cause remanded to that court, with directions to proceed therein in accordance with this opinion. MR. JUSTICE FIELD, concurring in part and dissenting in part. The majority of the Justices in this case hold that whatever might be true as to the power of the United States to exclude aliens, yet there was no power to punish such aliens who had been permitted to become residents, and that if such power did exist, it could only be lawfully exercised after a Page 163 U. S. 239 judicial trial, and therefore that the accused were entitled to be discharged from their arrest and imprisonment. To that extent, their opinion is concurred in. But I do not concur, but dissent entirely, from what seemed to me to be harsh and illegal assertions made by counsel of the government on the argument of this case as to the right of the court to deny to the accused the full protection of the law and Constitution against every form of oppression and cruelty to them. Wong Wing, one of the petitioners on proceedings to be released from the alleged unlawful imprisonment, is a subject of the Chinese government, with which the government of the United States has relations of peace and amity. This Chinaman and three other persons of the same race and country were, in the month of July, 1892, found within the City of Detroit, in the Eastern District of Michigan, and upon the complaint of the deputy collector of customs at that place made to a United States circuit court commissioner for that district that they were unlawfully within the limits of the United States, a warrant for their arrest was issued by the commissioner, and they were accordingly arrested and taken before him for inquiry into the correctness of the charge. Upon examination before the commissioner upon the charge, it was held by him that the Chinese persons named were unlawfully within the United States, and his judgment was that they should be imprisoned at hard labor in the House of Correction at Detroit, in the Eastern District of Michigan, for a period of sixty days from and including that date, and that at the expiration of that period, they should be removed from the United States to China. The Chinese thus arrested and committed immediately applied to the judges of the United States court for the Eastern District of Michigan for a writ of habeas corpus, to be released from their imprisonment and restraint of their liberty, alleging that the same were unlawful, without warrant of law, and contrary to the Constitution and laws of the United States, and that they were made under the Act of Congress Page 163 U. S. 240 approved May 5, 1892, entitled "An act to prohibit the coming of Chinese persons into the United States." The petitioners alleged that the proceedings and conviction were wholly without jurisdiction on the part of the commissioner, and without warrant and authority of law. They therefore prayed that the writ might issue commanding the superintendent of the Detroit House of Correction to forthwith bring the petitioners before the court, and show cause, if any there be, why they should be further detained and deprived of their liberty. The writ was immediately issued and served upon the superintendent, commanding him to have the bodies of the arrested and imprisoned Chinese, upon a day and hour designated, before the court, together with the time and cause of such imprisonment and detention. The superintendent immediately appeared before the court and produced the arrested and imprisoned persons, with a copy of the commitment issued by the commissioner at a session of the circuit court of the United States or the Eastern District of Michigan, held pursuant to adjournment in the district court room in the City of Detroit on Friday, the 22d day of July, 1892, Hon. Henry H. Swan, District Judge, being present, and, after arguments of counsel were heard, the court ordered that the writ of habeas corpus be discharged, and that the persons arrested be remanded to the custody of Nicholson, the keeper of the Detroit House of Correction, to serve their original sentences. The prisoners now allege that they are aggrieved by the decision of the court, and are advised that the judgment and order are erroneous upon the following, among other grounds: First because the commitment and imprisonment of the petitioners in the House of Correction are unlawful and without warrant of law and contrary to the Constitution and laws of the United States; that the proceedings and conviction of the petitioners before the commissioner were wholly without jurisdiction on his part and without warrant or authority of law; that for these and other reasons appearing upon the face of the proceedings, the petitioners, feeling themselves aggrieved by the judgment and decision of the circuit court, Page 163 U. S. 241 appeal therefrom to the Supreme Court of the United States and pray that the appeal may be allowed and, in accordance with the rules and practice of that court, pending the appeal, they may be admitted to bail, which prayer was granted. The question involved is whether a Chinese person can be lawfully convicted and sentenced to imprisonment at hard labor for a definite period by a commissioner, without indictment or trial by jury. The question involves the constitutionality of section 4 of the act of 1892. It is submitted that this section is invalid because it conflicts with the Fifth Amendment of the Constitution, which declares that "no person shall be held to answer for a capital, or other infamous crime, unless on a presentment or indictment of a grand jury, . . . nor be deprived of life, liberty or property without due process of law," and also conflicts with the Sixth Amendment of the Constitution, which provides that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed." It does not follow that because the government may expel aliens or exclude them from coming to this country, it can confine them at hard labor in a penitentiary before deportment, or subject them to any harsh and cruel punishment. If the imprisonment of a human being at hard labor in a penitentiary for any misconduct or offense is not punishment, it is difficult to understand how anything short of the infliction of the death penalty for such misconduct or offense is punishment. It would seem to be not only punishment, but punishment infamous in its character which, under the provisions of the Constitution of the United States, can only be inflicted upon a person after his due conviction of crime pursuant to the forms and provisions of law. Section 4 of the act of 1892 provides: "That any Chinese person or person of Chinese descent convicted and adjudged to be not lawfully entitled to be or remain in the United States shall be imprisoned at hard labor for a period not exceeding one year, and thereafter removed from the United Page 163 U. S. 242 States as hereinbefore provided," and whenever the law provides that imprisonment shall follow a trial and conviction of the offender, it necessarily intends that such imprisonment shall be inflicted as "punishment" for the offense of which the person has been convicted. Imprisonment at hard labor for a definite period is not only punishment, but it is punishment of an infamous character. Imprisonment at hard labor in a state prison is also "servitude," to which no person under the constitution can be subjected except as a punishment for crime whereof he shall have been duly convicted. In Ex Parte Wilson, 114 U. S. 417 , the court said: "Imprisonment at hard labor, compulsory and unpaid, is, in the strongest sense of the words, 'involuntary servitude for crime,' spoken of in the Ordinance of 1787 and of the Thirteenth Amendment of the Constitution, by which all other slavery was abolished." In 2 Story on the Constitution § 1924, it is said that this amendment "forbids not merely the slavery heretofore known to our laws, but all kinds of involuntary servitude not imposed in punishment for a public offense." The provisions of the Fifth, Sixth, and Thirteenth Amendments of the Constitution apply as well to Chinese persons who are aliens as to American citizens. The term "person," used in the Fifth Amendment, is broad enough to include any and every human being within the jurisdiction of the republic. A resident, alien born, is entitled to the same protection under the laws that a citizen is entitled to. He owes obedience to the laws of the country in which he is domiciled, and, as a consequence, he is entitled to the equal protection of those laws. This has been decided so often that the point does not require argument. Yick Wo v. Hopkins, 118 U. S. 369 ; Ho Ah Kow v. Nunan, 5 Sawy. 552; Carlisle v. United States , 16 Wall. 147; In re Lee Tong, 18 F. 253; In re Wong Yung Quy, 6 Sawyer 237; In re Chow Goo Pooi, 25 F. 77. The contention that persons within the territorial jurisdiction Page 163 U. S. 243 of this republic might be beyond the protection of the law was heard with pain on the argument at the bar -- in face of the great constitutional amendment which declares that no state shall deny to any person within its jurisdiction the equal protection of the laws. Far nobler was the boast of the great French cardinal who exercised power in the public affairs of France for years that never in all his time did he deny justice to any one. "For fifteen years," such were his words, "while in these hands dwelt empire, the humblest craftsman, the obscurest vassal, the very leper shrinking from the sum, though loathed by charity, might ask for justice." It is to be hoped that the poor Chinamen now before us seeking relief from cruel oppression will not find their appeal to our republican institutions and laws a vain and idle proceeding. But while remarking upon and denouncing in the strongest language every form of cruelty and barbarity in the legislation or proceedings adopted for the expulsion or exclusion of Chinese from the country who do not enter by the permission of the government, in order to avoid a misconception of its authorized action in that respect, the declarations of the Court with regard to the aliens named as to their entrance, and as to the time and manner of their departure, are adopted. And the statement of the Court in the present case that the United States can, as a matter of public policy, by congressional legislation, forbid aliens or classes of aliens from their territory, and can, in order to make effectual such legislation for their exclusion or expulsion, devolve the power and duty of identifying and arresting them and causing their deportation upon executive or subordinate officials, is accepted as sound. And the further views announced by the Court that when Congress sees fit to promote such a policy by subjecting the persons of such aliens to infamous punishment at hard labor or by confiscating their property, such legislation, to be valid, must provide for an arrest and trial to establish the guilt of the accused, are also accepted and adopted. "It is not consistent," as truly said by the Court, "with the theory of our government, that the legislature should, after having defined an Page 163 U. S. 244 offense as an infamous crime, provide that the fact of infamy shall be established by one of its own agents."

The Supreme Court ruled in Wong Wing v. United States (1896) that while the US government has the authority to exclude or expel Chinese aliens and delegate the power to identify and arrest them to executive officials, any legislation imposing harsh punishments like hard labor or property confiscation must provide for a judicial trial to determine guilt. The Court affirmed the equal protection rights of Chinese aliens under the Constitution and emphasized the importance of due process, even for non-citizens.

Health Care

Riegel v. Medtronic, Inc.

https://supreme.justia.com/cases/federal/us/552/312/

OPINION OF THE COURT RIEGEL V. MEDTRONIC, INC. 552 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 06-179 DONNA S. RIEGEL, individually and as administra- tor of the ESTATE OF CHARLES R. RIEGEL, PETITIONER v. MEDTRONIC, INC. on writ of certiorari to the united states court of appeals for the second circuit [February 20, 2008]    Justice Scalia delivered the opinion of the Court.    We consider whether the pre-emption clause enacted in the Medical Device Amendments of 1976, 21 U. S. C. §360k, bars common-law claims challenging the safety and effectiveness of a medical device given premarket approval by the Food and Drug Administration (FDA). I A    The Federal Food, Drug, and Cosmetic Act (FDCA), 52 Stat. 1040, as amended, 21 U. S. C. §301 et seq. , has long required FDA approval for the introduction of new drugs into the market. Until the statutory enactment at issue here, however, the introduction of new medical devices was left largely for the States to supervise as they saw fit. See Medtronic, Inc. v. Lohr , 518 U. S. 470 , 475–476 (1996).    The regulatory landscape changed in the 1960’s and 1970’s, as complex devices proliferated and some failed. Most notably, the Dalkon Shield intrauterine device, introduced in 1970, was linked to serious infections and several deaths, not to mention a large number of pregnancies. Thousands of tort claims followed. R. Bacigal, The Limits of Litigation: The Dalkon Shield Controversy 3 (1990). In the view of many, the Dalkon Shield failure and its aftermath demonstrated the inability of the common-law tort system to manage the risks associated with dangerous devices. See, e.g., S. Foote, Managing the Medical Arms Race 151–152 (1992). Several States adopted regulatory measures, including California, which in 1970 enacted a law requiring premarket approval of medical devices. 1970 Cal. Stats. ch. 1573, §§26670–26693; see also Leflar & Adler, The Preemption Pentad: Federal Preemption of Products Liability Claims After Medtronic, 64 Tenn. L. Rev. 691, 703, n. 66 (1997) (identifying 13 state statutes governing medical devices as of 1976).    Congress stepped in with passage of the Medical Device Amendments of 1976 (MDA), 21 U. S. C. §360c et seq. ,[ Footnote 1 ] which swept back some state obligations and imposed a regime of detailed federal oversight. The MDA includes an express pre-emption provision that states:    “Except as provided in subsection (b) of this section, no State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement—    “(1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and    “(2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter.” §360k(a). The exception contained in subsection (b) permits the FDA to exempt some state and local requirements from pre-emption.    The new regulatory regime established various levels of oversight for medical devices, depending on the risks they present. Class I, which includes such devices as elastic bandages and examination gloves, is subject to the lowest level of oversight: “general controls,” such as labeling requirements. §360c(a)(1)(A); FDA, Device Advice: Device Classes, http://www.fda.gov/cdrh/devadvice/3132.html (all Internet materials as visited Feb. 14, 2008, and available in Clerk of Court’s case file). Class II, which includes such devices as powered wheelchairs and surgical drapes, ibid. , is subject in addition to “special controls” such as performance standards and postmarket surveillance measures, §360c(a)(1)(B).    The devices receiving the most federal oversight are those in Class III, which include replacement heart valves, implanted cerebella stimulators, and pacemaker pulse generators, FDA, Device Advice: Device Classes, supra . In general, a device is assigned to Class III if it cannot be established that a less stringent classification would provide reasonable assurance of safety and effectiveness, and the device is “purported or represented to be for a use in supporting or sustaining human life or for a use which is of substantial importance in preventing impairment of human health,” or “presents a potential unreasonable risk of illness or injury.” §360c(a)(1)(C)(ii).    Although the MDA established a rigorous regime of premarket approval for new Class III devices, it grandfathered many that were already on the market. Devices sold before the MDA’s effective date may remain on the market until the FDA promulgates, after notice and comment, a regulation requiring premarket approval. §§360c(f)(1), 360e(b)(1). A related provision seeks to limit the competitive advantage grandfathered devices receive. A new device need not undergo premarket approval if the FDA finds it is “substantially equivalent” to another device exempt from premarket approval. §360c(f)(1)(A). The agency’s review of devices for substantial equivalence is known as the §510(k) process, named after the section of the MDA describing the review. Most new Class III devices enter the market through §510(k). In 2005, for example, the FDA authorized the marketing of 3,148 devices under §510(k) and granted premarket approval to just 32 devices. P. Hutt, R. Merrill, & L. Grossman, Food and Drug Law 992 (3d ed. 2007).    Premarket approval is a “rigorous” process. Lohr , 518 U. S., at 477. A manufacturer must submit what is typically a multivolume application. FDA, Device Advice—Premarket Approval (PMA) 18, http://www.fda.gov/cdrh/ devadvice/pma/printer.html. It includes, among other things, full reports of all studies and investigations of the device’s safety and effectiveness that have been published or should reasonably be known to the applicant; a “full statement” of the device’s “components, ingredients, and properties and of the principle or principles of operation”; “a full description of the methods used in, and the facilities and controls used for, the manufacture, processing, and, when relevant, packing and installation of, such device”; samples or device components required by the FDA; and a specimen of the proposed labeling. §360e(c)(1). Before deciding whether to approve the application, the agency may refer it to a panel of outside experts, 21 CFR §814.44(a) (2007), and may request additional data from the manufacturer, §360e(c)(1)(G).    The FDA spends an average of 1,200 hours reviewing each application, Lohr, supra, at 477, and grants premarket approval only if it finds there is a “reasonable assurance” of the device’s “safety and effectiveness,” §360e(d). The agency must “weig[h] any probable benefit to health from the use of the device against any probable risk of injury or illness from such use.” §360c(a)(2)(C). It may thus approve devices that present great risks if they nonetheless offer great benefits in light of available alternatives. It approved, for example, under its Humanitarian Device Exemption procedures, a ventricular assist device for children with failing hearts, even though the survival rate of children using the device was less than 50 percent. FDA, Center for Devices and Radiological Health, Summary of Safety and Probable Benefit 20 (2004), online at http://www.fda.gov/cdrh/pdf3/H030003b.pdf.    The premarket approval process includes review of the device’s proposed labeling. The FDA evaluates safety and effectiveness under the conditions of use set forth on the label, §360c(a)(2)(B), and must determine that the proposed labeling is neither false nor misleading, §360e(d)(1)(A).    After completing its review, the FDA may grant or deny premarket approval. §360e(d). It may also condition approval on adherence to performance standards, 21 CFR §861.1(b)(3), restrictions upon sale or distribution, or compliance with other requirements, §814.82. The agency is also free to impose device-specific restrictions by regulation. §360j(e)(1).    If the FDA is unable to approve a new device in its proposed form, it may send an “approvable letter” indicating that the device could be approved if the applicant submitted specified information or agreed to certain conditions or restrictions. 21 CFR §814.44(e). Alternatively, the agency may send a “not approvable” letter, listing the grounds that justify denial and, where practical, measures that the applicant could undertake to make the device approvable. §814.44(f).    Once a device has received premarket approval, the MDA forbids the manufacturer to make, without FDA permission, changes in design specifications, manufacturing processes, labeling, or any other attribute, that would affect safety or effectiveness. §360e(d)(6)(A)(i). If the applicant wishes to make such a change, it must submit, and the FDA must approve, an application for supplemental premarket approval, to be evaluated under largely the same criteria as an initial application. §360e(d)(6); 21 CFR §814.39(c).    After premarket approval, the devices are subject to reporting requirements. §360i. These include the obligation to inform the FDA of new clinical investigations or scientific studies concerning the device which the applicant knows of or reasonably should know of, 21 CFR §814.84(b)(2), and to report incidents in which the device may have caused or contributed to death or serious injury, or malfunctioned in a manner that would likely cause or contribute to death or serious injury if it recurred, §803.50(a). The FDA has the power to withdraw premarket approval based on newly reported data or existing information and must withdraw approval if it determines that a device is unsafe or ineffective under the condi- tions in its labeling. §360e(e)(1); see also §360h(e) (recall authority). B    Except as otherwise indicated, the facts set forth in this section appear in the opinion of the Court of Appeals. The device at issue is an Evergreen Balloon Catheter marketed by defendant-respondent Medtronic, Inc. It is a Class III device that received premarket approval from the FDA in 1994; changes to its label received supplemental approvals in 1995 and 1996.    Charles Riegel underwent coronary angioplasty in 1996, shortly after suffering a myocardial infarction. App. to Pet. for Cert. 56a. His right coronary artery was diffusely diseased and heavily calcified. Riegel’s doctor inserted the Evergreen Balloon Catheter into his patient’s coronary artery in an attempt to dilate the artery, although the device’s labeling stated that use was contraindicated for patients with diffuse or calcified stenoses. The label also warned that the catheter should not be inflated beyond its rated burst pressure of eight atmospheres. Riegel’s doctor inflated the catheter five times, to a pressure of 10 atmospheres; on its fifth inflation, the catheter ruptured. Complaint 3. Riegel developed a heart block, was placed on life support, and underwent emergency coronary bypass surgery.    Riegel and his wife Donna brought this lawsuit in April 1999, in the United States District Court for the Northern District of New York. Their complaint alleged that Medtronic’s catheter was designed, labeled, and manufactured in a manner that violated New York common law, and that these defects caused Riegel to suffer severe and permanent injuries. The complaint raised a number of common-law claims. The District Court held that the MDA pre-empted Riegel’s claims of strict liability; breach of implied warranty; and negligence in the design, testing, inspection, distribution, labeling, marketing, and sale of the catheter. App. to Pet. for Cert. 68a; Complaint 3–4. It also held that the MDA pre-empted a negligent manufacturing claim insofar as it was not premised on the theory that Medtronic violated federal law. App. to Pet. for Cert. 71a. Finally, the court concluded that the MDA pre-empted Donna Riegel’s claim for loss of consortium to the extent it was derivative of the pre-empted claims. Id., at 68a; see also id., at 75a.[ Footnote 2 ]    The United States Court of Appeals for the Second Circuit affirmed these dismissals. 451 F. 3d 104 (2006). The court concluded that Medtronic was “clearly subject to the federal, device-specific requirement of adhering to the standards contained in its individual, federally approved” premarket approval application. Id. , at 118. The Riegels’ claims were pre-empted because they “would, if successful, impose state requirements that differed from, or added to” the device-specific federal requirements. Id. , at 121. We granted certiorari.[ Footnote 3 ] 551 U. S. ___ (2007). II    Since the MDA expressly pre-empts only state requirements “different from, or in addition to, any requirement applicable . . . to the device” under federal law, §360k(a)(1), we must determine whether the Federal Government has established requirements applicable to Medtronic’s catheter. If so, we must then determine whether the Riegels’ common-law claims are based upon New York requirements with respect to the device that are “different from, or in addition to” the federal ones, and that relate to safety and effectiveness. §360k(a).    We turn to the first question. In Lohr , a majority of this Court interpreted the MDA’s pre-emption provision in a manner “substantially informed” by the FDA regulation set forth at 21 CFR §808.1(d). 518 U. S., at 495; see also id. , at 500–501. That regulation says that state requirements are pre-empted “only when the Food and Drug Administration has established specific counterpart regulations or there are other specific requirements applicable to a particular device . . . .” 21 CFR §808.1(d). Informed by the regulation, we concluded that federal manufacturing and labeling requirements applicable across the board to almost all medical devices did not pre-empt the common-law claims of negligence and strict liability at issue in Lohr . The federal requirements, we said, were not requirements specific to the device in question—they reflected “entirely generic concerns about device regulation generally.” 518 U. S., at 501. While we disclaimed a conclusion that general federal requirements could never pre-empt, or general state duties never be pre-empted, we held that no pre-emption occurred in the case at hand based on a careful comparison between the state and federal duties at issue. Id. , at 500–501.    Even though substantial-equivalence review under §510(k) is device specific, Lohr also rejected the manufacturer’s contention that §510(k) approval imposed device-specific “requirements.” We regarded the fact that products entering the market through §510(k) may be marketed only so long as they remain substantial equivalents of the relevant pre-1976 devices as a qualification for an exemption rather than a requirement. Id., at 493–494; see also id., at 513 (O’Connor, J., concurring in part and dissenting in part).    Premarket approval, in contrast, imposes “requirements” under the MDA as we interpreted it in Lohr . Unlike general labeling duties, premarket approval is specific to individual devices. And it is in no sense an exemption from federal safety review—it is federal safety review. Thus, the attributes that Lohr found lacking in §510(k) review are present here. While §510(k) is “ ‘focused on equivalence , not safety,’ ” id., at 493 (opinion of the Court), premarket approval is focused on safety, not equivalence. While devices that enter the market through §510(k) have “never been formally reviewed under the MDA for safety or efficacy,” ibid. , the FDA may grant premarket approval only after it determines that a device offers a reasonable assurance of safety and effectiveness, §360e(d). And while the FDA does not “ ‘require’ ” that a device allowed to enter the market as a substantial equivalent “take any particular form for any particular reason,” ibid., at 493, the FDA requires a device that has received premarket approval to be made with almost no deviations from the specifications in its approval application, for the reason that the FDA has determined that the approved form provides a reasonable assurance of safety and effectiveness. III    We turn, then, to the second question: whether the Riegels’ common-law claims rely upon “any requirement” of New York law applicable to the catheter that is “different from, or in addition to” federal requirements and that “relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device.” §360k(a). Safety and effectiveness are the very subjects of the Riegels’ common-law claims, so the critical issue is whether New York’s tort duties constitute “requirements” under the MDA. A    In Lohr, five Justices concluded that common-law causes of action for negligence and strict liability do impose “requirement[s]” and would be pre-empted by federal requirements specific to a medical device. See 518 U. S., at 512 (opinion of O’Connor, J., joined by Rehnquist, C. J., and Scalia and Thomas, JJ.); id., at 503–505 (opinion of Breyer, J.). We adhere to that view. In interpreting two other statutes we have likewise held that a provision pre-empting state “requirements” pre-empted common-law duties. Bates v. Dow Agrosciences LLC , 544 U. S. 431 (2005), found common-law actions to be pre-empted by a provision of the Federal Insecticide, Fungicide, and Rodenticide Act that said certain States “ ‘shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.’ ” Id., at 443 (discussing 7 U. S. C. §136v(b); emphasis added). Cipollone v. Liggett Group, Inc. , 505 U. S. 504 (1992), held common-law actions pre-empted by a provision of the Public Health Cigarette Smoking Act of 1969, 15 U. S. C. §1334(b), which said that “[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes” whose packages were labeled in accordance with federal law. See 505 U. S., at 523 (plurality opinion); id. , at 548–549 (Scalia, J., concurring in judgment in part and dissenting in part).    Congress is entitled to know what meaning this Court will assign to terms regularly used in its enactments. Absent other indication, reference to a State’s “requirements” includes its common-law duties. As the plurality opinion said in Cipollone, common-law liability is “premised on the existence of a legal duty,” and a tort judgment therefore establishes that the defendant has violated a state-law obligation. Id ., at 522. And while the common-law remedy is limited to damages, a liability award “ ‘can be, indeed is designed to be, a potent method of governing conduct and controlling policy.’ ” Id., at 521.    In the present case, there is nothing to contradict this normal meaning. To the contrary, in the context of this legislation excluding common-law duties from the scope of pre-emption would make little sense. State tort law that requires a manufacturer’s catheters to be safer, but hence less effective, than the model the FDA has approved disrupts the federal scheme no less than state regulatory law to the same effect. Indeed, one would think that tort law, applied by juries under a negligence or strict-liability standard, is less deserving of preservation. A state statute, or a regulation adopted by a state agency, could at least be expected to apply cost-benefit analysis similar to that applied by the experts at the FDA: How many more lives will be saved by a device which, along with its greater effectiveness, brings a greater risk of harm? A jury, on the other hand, sees only the cost of a more dangerous design, and is not concerned with its benefits; the patients who reaped those benefits are not represented in court. As Justice Breyer explained in Lohr , it is implausible that the MDA was meant to “grant greater power (to set state standards ‘different from, or in addition to’ federal standards) to a single state jury than to state officials acting through state administrative or legislative lawmaking processes.” 518 U. S., at 504. That perverse distinction is not required or even suggested by the broad language Congress chose in the MDA,[ Footnote 4 ] and we will not turn somersaults to create it. B    The dissent would narrow the pre-emptive scope of the term “requirement” on the grounds that it is “difficult to believe that Congress would, without comment, remove all means of judicial recourse” for consumers injured by FDA-approved devices. Post , at 5 (opinion of Ginsburg, J.) (internal quotation marks omitted). But, as we have explained, this is exactly what a pre-emption clause for medical devices does by its terms. The operation of a law enacted by Congress need not be seconded by a committee report on pain of judicial nullification. See, e.g., Connecticut Nat. Bank v. Germain, 503 U. S. 249 , 253–254 (1992). It is not our job to speculate upon congressional motives. If we were to do so, however, the only indication available— the text of the statute—suggests that the solicitude for those injured by FDA-approved devices, which the dissent finds controlling, was overcome in Congress’s estimation by solicitude for those who would suffer without new medical devices if juries were allowed to apply the tort law of 50 States to all innovations.[ Footnote 5 ]    In the case before us, the FDA has supported the position taken by our opinion with regard to the meaning of the statute. We have found it unnecessary to rely upon that agency view because we think the statute itself speaks clearly to the point at issue. If, however, we had found the statute ambiguous and had accorded the agency’s current position deference, the dissent is correct, see post, at 6, n. 8, that—inasmuch as mere Skidmore deference would seemingly be at issue—the degree of deference might be reduced by the fact that the agency’s earlier position was different. See Skidmore v. Swift & Co., 323 U. S. 134 (1944); United States v. Mead Corp., 533 U. S. 218 (2001); Good Samaritan Hospital v. Shalala, 508 U. S. 402 , 417 (1993). But of course the agency’s earlier position (which the dissent describes at some length, post, at 5–6, and finds preferable) is even more compromised, indeed deprived of all claim to deference, by the fact that it is no longer the agency’s position.    The dissent also describes at great length the experience under the FDCA with respect to drugs and food and color additives. Post, at 7–11. Two points render the conclusion the dissent seeks to draw from that experience—that the pre-emption clause permits tort suits—unreliable. (1) It has not been established (as the dissent assumes) that no tort lawsuits are pre-empted by drug or additive approval under the FDCA. (2) If, as the dissent believes, the pre-emption clause permits tort lawsuits for medical devices just as they are (by hypothesis) permitted for drugs and additives; and if, as the dissent believes, Congress wanted the two regimes to be alike; Congress could have applied the pre-emption clause to the entire FDCA. It did not do so, but instead wrote a pre-emption clause that applies only to medical devices. C    The Riegels contend that the duties underlying negligence, strict-liability, and implied-warranty claims are not pre-empted even if they impose “ ‘requirements,’ ” because general common-law duties are not requirements maintained “ ‘with respect to devices.’ ” Brief for Petitioner 34–36. Again, a majority of this Court suggested otherwise in Lohr. See 518 U. S., at 504–505 (opinion of Breyer, J.); id. , at 514 (opinion of O’Connor, J., joined by Rehnquist, C. J., and Scalia and Thomas, JJ.).[ Footnote 6 ] And with good reason. The language of the statute does not bear the Riegels’ reading. The MDA provides that no State “may establish or continue in effect with respect to a device … any requirement ” relating to safety or effectiveness that is different from, or in addition to, federal requirements. §360k(a) (emphasis added). The Riegels’ suit depends upon New York’s “continu[ing] in effect” general tort duties “with respect to” Medtronic’s catheter. Nothing in the statutory text suggests that the pre-empted state requirement must apply only to the relevant device, or only to medical devices and not to all products and all actions in general.    The Riegels’ argument to the contrary rests on the text of an FDA regulation which states that the MDA’s pre-emption clause does not extend to certain duties, including “[s]tate or local requirements of general applicability where the purpose of the requirement relates either to other products in addition to devices (e.g., requirements such as general electrical codes, and the Uniform Commercial Code (warranty of fitness)), or to unfair trade practices in which the requirements are not limited to devices.” 21 CFR §808.1(d)(1). Even assuming that this regulation could play a role in defining the MDA’s pre-emptive scope, it does not provide unambiguous support for the Riegels’ position. The agency’s reading of its own rule is entitled to substantial deference, see Auer v. Robbins , 519 U. S. 452 , 461 (1997), and the FDA’s view put forward in this case is that the regulation does not refer to general tort duties of care, such as those underlying the claims in this case that a device was designed, labeled, or manufactured in an unsafe or ineffective manner. Brief for United States as Amicus Curiae 27–28. That is so, according to the FDA, because the regulation excludes from pre-emption requirements that relate only incidentally to medical devices, but not other requirements. General tort duties of care, unlike fire codes or restrictions on trade practices, “directly regulate” the device itself, including its design. Id., at 28. We find the agency’s explanation less than compelling, since the same could be said of general requirements imposed by electrical codes, the Uniform Commercial Code, or unfair-trade-practice law, which the regulation specifically excludes from pre-emption.    Other portions of 21 CFR §808.1, however, support the agency’s view that §808.1(d)(1) has no application to this case (though still failing to explain why electrical codes, the Uniform Commercial Code or unfair-trade-practice requirements are different). Section 808.1(b) states that the MDA sets forth a “general rule” pre-empting state duties “having the force and effect of law (whether established by statute, ordinance, regulation, or court decision ) … .” (Emphasis added.) This sentence is far more comprehensible under the FDA’s view that §808.1(d)(1) has no application here than under the Riegels’ view. We are aware of no duties established by court decision other than common-law duties, and we are aware of no common-law duties that relate solely to medical devices.    The Riegels’ reading is also in tension with the regulation’s statement that adulteration and misbranding claims are pre-empted when they “ha[ve] the effect of establishing a substantive requirement for a specific device, e.g., a specific labeling requirement” that is “different from, or in addition to” a federal requirement. §808.1(d)(6)(ii). Surely this means that the MDA would pre-empt a jury determination that the FDA-approved labeling for a pacemaker violated a state common-law requirement for additional warnings. The Riegels’ reading of §808.1(d)(1), however, would allow a claim for tortious mislabeling to escape pre-emption so long as such a claim could also be brought against objects other than medical devices.    All in all, we think that §808.1(d)(1) can add nothing to our analysis but confusion. Neither accepting nor rejecting the proposition that this regulation can properly be consulted to determine the statute’s meaning; and neither accepting nor rejecting the FDA’s distinction between general requirements that directly regulate and those that regulate only incidentally; the regulation fails to alter our interpretation of the text insofar as the outcome of this case is concerned. IV    State requirements are pre-empted under the MDA only to the extent that they are “different from, or in addition to” the requirements imposed by federal law. §360k(a)(1). Thus, §360k does not prevent a State from providing a damages remedy for claims premised on a violation of FDA regulations; the state duties in such a case “parallel,” rather than add to, federal requirements. Lohr, 518 U. S., at 495; see also id. , at 513 (O’Connor, J., concurring in part and dissenting in part). The District Court in this case recognized that parallel claims would not be pre-empted, see App. to Pet. for Cert. 70a–71a, but it interpreted the claims here to assert that Medtronic’s device violated state tort law notwithstanding compliance with the relevant federal requirements, see id., at 68a. Although the Riegels now argue that their law- suit raises parallel claims, they made no such conten- tion in their briefs before the Second Circuit, nor did they raise this argument in their petition for certiorari. We decline to address that argument in the first instance here. *  *  *    For the foregoing reasons, the judgment of the Court of Appeals is Affirmed. Footnote 1 Unqualified §360 et seq. numbers hereinafter refer to sections of 21 U. S. C. Footnote 2 The District Court later granted summary judgment to Medtronic on those claims of Riegel it had found not pre-empted, viz., that Medtronic breached an express warranty and was negligent in manufacturing because it did not comply with federal standards. App. to Pet. for Cert. 90a. It consequently granted summary judgment as well on Donna Riegel’s derivative consortium claim. Ibid . The Court of Appeals affirmed these determinations, and they are not before us. Footnote 3 Charles Riegel having died, Donna Riegel is now petitioner on her own behalf and as administrator of her husband’s estate. 552 U. S. ___ (2007). For simplicity’s sake, the terminology of our opinion draws no distinction between Charles Riegel and the Estate of Charles Riegel and refers to the claims as belonging to the Riegels. Footnote 4 The Riegels point to §360k(b), which authorizes the FDA to exempt state “requirements” from pre-emption under circumstances that would rarely be met for common-law duties. But a law that permits an agency to exempt certain “requirements” from pre-emption does not suggest that no other “requirements” exist. The Riegels also invoke §360h(d), which provides that compliance with certain FDA orders “shall not relieve any person from liability under Federal or State law.” This indicates that some state-law claims are not pre-empted, as we held in Lohr . But it could not possibly mean that all state-law claims are not pre-empted, since that would deprive the MDA pre-emption clause of all content. And it provides no guidance as to which state-law claims are pre-empted and which are not. Footnote 5 Contrary to Justice Stevens’ contention, post, at 2, we do not “advance” this argument. We merely suggest that if one were to speculate upon congressional purposes, the best evidence for that would be found in the statute. Footnote 6 The opinions joined by these five Justices dispose of the Riegels’ assertion that Lohr held common-law duties were too general to qualify as duties “with respect to a device.” The majority opinion in Lohr also disavowed this conclusion, for it stated that the Court did “not believe that [the MDA’s] statutory and regulatory language necessarily precludes . . . ‘general’ state requirements from ever being pre-empted . . . .” Medtronic, Inc. v. Lohr, 518 U. S. 470 , 500 (1996). OPINION OF STEVENS, J. RIEGEL V. MEDTRONIC, INC. 552 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 06-179 DONNA S. RIEGEL, individually and as administra- tor of the ESTATE OF CHARLES R. RIEGEL, PETITIONER v. MEDTRONIC, INC. on writ of certiorari to the united states court of appeals for the second circuit [February 20, 2008]    Justice Stevens, concurring in part and concurring in the judgment.    The significance of the pre-emption provision in the Medical Device Amendments of 1976 (MDA), 21 U. S. C. §360k, was not fully appreciated until many years after it was enacted. It is an example of a statute whose text and general objective cover territory not actually envisioned by its authors. In such cases we have frequently concluded that “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 , 79–80 (1998). Accordingly, while I agree with Justice Ginsburg’s description of the actual history and principal purpose of the pre-emption provision at issue in this case, post, at 4–11 (dissenting opinion), I am persuaded that its text does preempt state law requirements that differ. I therefore write separately to add these few words about the MDA’s history and the meaning of “requirements.”    There is nothing in the preenactment history of the MDA suggesting that Congress thought state tort remedies had impeded the development of medical devices. Nor is there any evidence at all to suggest that Congress decided that the cost of injuries from Food and Drug Administration-approved medical devices was outweighed “by solicitude for those who would suffer without new medical devices if juries were allowed to apply the tort law of 50 States to all innovations.” Ante, at 13 (opinion of the Court). That is a policy argument advanced by the Court, not by Congress. As Justice Ginsburg persuasively explains, the overriding purpose of the legislation was to provide additional protection to consumers, not to withdraw existing protections. It was the then-recent development of state premarket regulatory regimes that explained the need for a provision pre-empting conflicting administrative rules. See Medtronic, Inc. v. Lohr , 518 U. S. 470 , 489 (1996) (plurality opinion) (“[W]hen Congress enacted §360k, it was primarily concerned with the problem of specific, conflicting state statutes and regulations rather than the general duties enforced by common-law actions”).    But the language of the provision reaches beyond such regulatory regimes to encompass other types of “requirements.” Because common-law rules administered by judges, like statutes and regulations, create and define legal obligations, some of them unquestionably qualify as “requirements.”[ Footnote 1 ] See Cipollone v. Liggett Group, Inc. , 505 U. S. 504 , 522 (1992) (“[C]ommon-law damages actions of the sort raised by petitioner are premised on the existence of a legal duty, and it is difficult to say that such actions do not impose ‘requirements or prohibitions.’ … [I]t is the essence of the common law to enforce duties that are either affirmative requirements or negative prohibitions ” (plurality opinion) (emphasis added)). And although not all common-law rules qualify as “requirements,”[ Footnote 2 ] the Court correctly points out that five Justices in Lohr concluded that the common-law causes of action for negligence and strict liability at issue in that case imposed “requirements” that were pre-empted by federal requirements specific to a medical device. Moreover, I agree with the Court’s cogent explanation of why the Riegels’ claims are predicated on New York common-law duties that constitute requirements with respect to the device at issue that differ from federal requirements relating to safety and effectiveness. I therefore join the Court’s judgment and all of its opinion except for Parts III–A and III–B. Footnote 1 The verdicts of juries who obey those rules, however, are not “requirements” of that kind. Juries apply rules, but do not make them. And while a jury’s finding of liability may induce a defendant to alter its device or its label, this does not render the finding a “requirement” within the meaning of the MDA. “A requirement is a rule of law that must be obeyed; an event, such as a jury verdict, that merely motivates an optional decision is not a requirement.” Bates v. Dow Agrosciences LLC , 544 U. S. 431 , 445 (2005). It is for that reason that the MDA does not grant “a single state jury” any power whatsoever to set any standard that either conforms with or differs from a relevant federal standard. I do not agree with the colorful but inaccurate quotation on page 12 of the Court’s opinion. Footnote 2 See Cipollone v. Liggett Group, Inc., 505 U. S., 504, 523 (1992) (plurality opinion) (explaining that the fact that “the pre-emptive scope of §5(b) cannot be limited to positive enactments does not mean that that section pre-empts all common-law claims” and proceeding to analyze “each of petitioner’s common-law claims to determine whether it is in fact pre-empted”); Bates , 544 U. S., at 443–444 (noting that a finding that “§136v(b) may pre-empt judge-made rules, as well as statutes and regulations, says nothing about the scope of that pre-emption,” and proceeding to determine whether the particular common-law rules at issue in that case satisfied the conditions of pre-emption). GINSBURG, J., DISSENTING RIEGEL V. MEDTRONIC, INC. 552 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 06-179 DONNA S. RIEGEL, individually and as administra- tor of the ESTATE OF CHARLES R. RIEGEL, PETITIONER v. MEDTRONIC, INC. on writ of certiorari to the united states court of appeals for the second circuit [February 20, 2008]    Justice Ginsburg, dissenting.    The Medical Device Amendments of 1976 (MDA or Act), 90 Stat. 539, as construed by the Court, cut deeply into a domain historically occupied by state law. The MDA’s preemption clause, 21 U. S. C. §360k(a), the Court holds, spares medical device manufacturers from personal injury claims alleging flaws in a design or label once the application for the design or label has gained premarket approval from the Food and Drug Administration (FDA); a state damages remedy, the Court instructs, persists only for claims “premised on a violation of FDA regulations.” Ante , at 17.[ Footnote 1 ] I dissent from today’s constriction of state authority. Congress, in my view, did not intend §360k(a) to effect a radical curtailment of state common-law suits seeking compensation for injuries caused by defectively designed or labeled medical devices.    Congress’ reason for enacting §360k(a) is evident. Until 1976, the Federal Government did not engage in premarket regulation of medical devices. Some States acted to fill the void by adopting their own regulatory systems for medical devices. Section 360k(a) responded to that state regulation, and particularly to California’s system of premarket approval for medical devices, by preempting State initiatives absent FDA permission. See §360k(b). I    The “purpose of Congress is the ultimate touchstone of pre-emption analysis.” Cipollone v. Liggett Group, Inc. , 505 U. S. 504 , 516 (1992) (internal quotation marks omitted). Courts have “long presumed that Congress does not cavalierly pre-empt state-law causes of action.” Medtronic, Inc. v. Lohr , 518 U. S. 470 , 485 (1996).[ Footnote 2 ] Preemption analysis starts with the assumption that “the historic police powers of the States [a]re not to be superseded … unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp. , 331 U. S. 218 , 230 (1947). “This assumption provides assurance that ‘the federal-state balance’ will not be disturbed unintentionally by Congress or unnecessarily by the courts.” Jones v. Rath Packing Co. , 430 U. S. 519 , 525 (1977) (citation omitted).    The presumption against preemption is heightened “where federal law is said to bar state action in fields of traditional state regulation.” New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. , 514 U. S. 645 , 655 (1995). Given the traditional “primacy of state regulation of matters of health and safety,” Lohr , 518 U. S., at 485, courts assume “that state and local regulation related to [those] matters … can normally coexist with federal regulations,” Hillsborough County v. Automated Medical Laboratories, Inc. , 471 U. S. 707 , 718 (1985).    Federal laws containing a preemption clause do not automatically escape the presumption against preemption. See Bates v. Dow Agrosciences LLC , 544 U. S. 431 , 449 (2005); Lohr , 518 U. S., at 485. A preemption clause tells us that Congress intended to supersede or modify state law to some extent. In the absence of legislative precision, however, courts may face the task of determining the substance and scope of Congress’ displacement of state law. Where the text of a preemption clause is open to more than one plausible reading, courts ordinarily “accept the reading that disfavors pre-emption.” Bates , 544 U. S., at 449. II    The MDA’s preemption clause states: “[N]o State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement—    “(1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and    “(2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter.” 21 U. S. C. §360k(a). “Absent other indication,” the Court states, “reference to a State’s ‘requirements’ includes its common-law duties.” Ante , at 11. Regarding the MDA, however, “other indication” is not “[a]bsent.” Contextual examination of the Act convinces me that §360k(a)’s inclusion of the term “requirement” should not prompt a sweeping preemption of mine-run claims for relief under state tort law.[ Footnote 3 ] A    Congress enacted the MDA “to provide for the safety and effectiveness of medical devices intended for human use.” 90 Stat. 539 (preamble).[ Footnote 4 ] A series of high-profile medical device failures that caused extensive injuries and loss of life propelled adoption of the MDA.[ Footnote 5 ] Conspicuous among these failures was the Dalkon Shield intrauterine device, used by approximately 2.2 million women in the United States between 1970 and 1974. See In re Northern Dist. of Cal., Dalkon Shield IUD Prods. Liability Litigation , 693 F. 2d 847, 848 (CA9 1982); ante , at 1–2. Aggressively promoted as a safe and effective form of birth control, the Dalkon Shield had been linked to 16 deaths and 25 miscarriages by the middle of 1975. H. R. Rep. No. 94–853, p. 8 (1976). By early 1976, “more than 500 lawsuits seeking compensatory and punitive damages totaling more than $400 million” had been filed. Ibid.[ Footnote 6 ] Given the publicity attending the Dalkon Shield litigation and Congress’ awareness of the suits at the time the MDA was under consideration, I find informative the absence of any sign of a legislative design to preempt state common-law tort actions.[ Footnote 7 ]    The Court recognizes that “§360k does not prevent a State from providing a damages remedy for claims premised on a violation of FDA regulations.” Ante , at 17. That remedy, although important, does not help consumers injured by devices that receive FDA approval but nevertheless prove unsafe. The MDA’s failure to create any federal compensatory remedy for such consumers further suggests that Congress did not intend broadly to preempt state common-law suits grounded on allegations independent of FDA requirements. It is “difficult to believe that Congress would, without comment, remove all means of judicial recourse” for large numbers of consumers injured by defective medical devices. Silkwood v. Kerr-McGee Corp. , 464 U. S. 238 , 251 (1984).    The former chief counsel to the FDA explained:    “FDA’s view is that FDA product approval and state tort liability usually operate independently, each providing a significant, yet distinct, layer of consumer protection. FDA regulation of a device cannot anticipate and protect against all safety risks to individual consumers. Even the most thorough regulation of a product such as a critical medical device may fail to identify potential problems presented by the product. Regulation cannot protect against all possible injuries that might result from use of a device over time. Preemption of all such claims would result in the loss of a significant layer of consumer protection … .” Porter, The Lohr Decision: FDA Perspective and Position, 52 Food & Drug L. J. 7, 11 (1997). Cf. Brief for United States as Amicus Curiae on Pet. for Cert. in Smiths Industries Medical Systems, Inc. v. Kernats , O. T. 1997, No. 96–1405, pp. 17–18; Dept. of Health and Human Services, Public Health Service, Advisory Opinion, Docket No. 83A–0140/AP, Letter from J. Hile, Associate Comm’r for Regulatory Affairs, to National Women’s Health Network (Mar. 8, 1984).[ Footnote 8 ] The Court’s construction of §360k(a) has the “perverse effect” of granting broad immunity “to an entire industry that, in the judgment of Congress, needed more stringent regulation,” Lohr , 518 U. S., at 487 (plurality opinion), not exemption from liability in tort litigation.    The MDA does grant the FDA authority to order certain remedial action if, inter alia , it concludes that a device “presents an unreasonable risk of substantial harm to the public health” and that notice of the defect “would not by itself be sufficient to eliminate the unreasonable risk.” 21 U. S. C. §360h(b)(1)(A). Thus the FDA may order the manufacturer to repair the device, replace it, refund the purchase price, cease distribution, or recall the device. §360h(b)(2), (e). The prospect of ameliorative action by the FDA, however, lends no support to the conclusion that Congress intended largely to preempt state common-law suits. Quite the opposite: Section 360h(d) states that “[c]ompliance with an order issued under this section shall not relieve any person from liability under Federal or State law.” That provision anticipates “[court-awarded] damages for economic loss” from which the value of any FDA-ordered remedy would be subtracted. Ibid.[ Footnote 9 ] B Congress enacted the MDA after decades of regulating drugs and food and color additives under the Federal Food, Drug, and Cosmetic Act (FDCA), 52 Stat. 1040, as amended, 21 U. S. C. §301 et seq . The FDCA contains no preemption clause, and thus the Court’s interpretation of §360k(a) has no bearing on tort suits involving drugs and additives. But §360k(a)’s confinement to medical devices hardly renders irrelevant to the proper construction of the MDA’s preemption provision the long history of federal and state controls over drugs and additives in the interest of public health and welfare. Congress’ experience regulating drugs and additives informed, and in part provided the model for, its regulation of medical devices. I therefore turn to an examination of that experience.    Starting in 1938, the FDCA required that new drugs undergo preclearance by the FDA before they could be marketed. See §505, 52 Stat. 1052. Nothing in the FDCA’s text or legislative history suggested that FDA preclearance would immunize drug manufacturers from common-law tort suits.[ Footnote 10 ]    By the time Congress enacted the MDA in 1976, state common-law claims for drug labeling and design defects had continued unabated despite nearly four decades of FDA regulation.[ Footnote 11 ] Congress’ inclusion of a preemption clause in the MDA was not motivated by concern that similar state tort actions could be mounted regarding medical devices.[ Footnote 12 ] Rather, Congress included §360k(a) and (b) to empower the FDA to exercise control over state premarket approval systems installed at a time when there was no preclearance at the federal level. See supra , at 3, and n. 3; infra , at 10–11, and n. 14.    Between 1938 and 1976, Congress enacted a series of premarket approval requirements, first for drugs, then for additives. Premarket control, as already noted, commenced with drugs in 1938. In 1958, Congress required premarket approval for food additives. Food Additives Amendment, §3, 72 Stat. 1785, as amended, 21 U. S. C. §348. In 1960, it required premarket approval for color additives. Color Additive Amendments, §103(b), 74 Stat. 399, as amended, 21 U. S. C. §379e. In 1962, it expanded the premarket approval process for new drugs to include review for effectiveness. Drug Amendments, §101, 76 Stat. 781, as amended, 21 U. S. C. §321 et seq . And in 1968, it required premarket approval for new animal drugs. Animal Drug Amendments, §101(b), 82 Stat. 343, as amended, 21 U. S. C. §360b. None of these Acts contained a preemption clause.    The measures just listed, like the MDA, were all enacted with common-law personal injury litigation over defective products a prominent part of the legal landscape.[ Footnote 13 ] At the time of each enactment, no state regulations required premarket approval of the drugs or additives in question, so no preemption clause was needed as a check against potentially conflicting state regulatory regimes. See Brief for Sen. Edward M. Kennedy et al. as Amici Curiae 10.    A different situation existed as to medical devices when Congress developed and passed the MDA. As the House Report observed:    “In the absence of effective Federal regulation of medical devices, some States have established their own programs. The most comprehensive State regulation of which the Committee is aware is that of California, which in 1970 adopted the Sherman Food, Drug, and Cosmetic Law. This law requires premarket approval of all new medical devices, requires compliance of device manufacturers with good manufacturing practices and authorizes inspection of establishments which manufacture devices. Implementation of the Sherman Law has resulted in the requirement that intrauterine devices are subject to premarket clearance in California.” H. R. Rep. No. 94–853, p. 45 (emphasis added).[ Footnote 14 ] In sum, state premarket regulation of medical devices, not any design to suppress tort suits, accounts for Congress’ inclusion of a preemption clause in the MDA; no such clause figures in earlier federal laws regulating drugs and additives, for States had not installed comparable control regimes in those areas. C    Congress’ experience regulating drugs also casts doubt on Medtronic’s policy arguments for reading §360k(a) to preempt state tort claims. Section 360k(a) must preempt state common-law suits, Medtronic contends, because Congress would not have wanted state juries to second-guess the FDA’s finding that a medical device is safe and effective when used as directed. Brief for Respondent 42–49. The Court is similarly minded. Ante , at 11–12.    But the process for approving new drugs is at least as rigorous as the premarket approval process for medical devices.[ Footnote 15 ] Courts that have considered the question have overwhelmingly held that FDA approval of a new drug application does not preempt state tort suits.[ Footnote 16 ] Decades of drug regulation thus indicate, contrary to Medtronic’s argument, that Congress did not regard FDA regulation and state tort claims as mutually exclusive. III    Refusing to read §360k(a) as an automatic bar to state common-law tort claims would hardly render the FDA’s premarket approval of Medtronic’s medical device application irrelevant to the instant suit. First, a “pre-emption provision, by itself, does not foreclose (through negative implication) any possibility of implied conflict preemption.” Geier v. American Honda Motor Co. , 529 U. S. 861 , 869 (2000) (brackets and internal quotation marks omitted). See also Freightliner Corp. v. Myrick , 514 U. S. 280 , 288–289 (1995). Accordingly, a medical device manufacturer may have a dispositive defense if it can identify an actual conflict between the plaintiff’s theory of the case and the FDA’s premarket approval of the device in question. As currently postured, this case presents no occasion to take up this issue for Medtronic relies exclusively on §360k(a) and does not argue conflict preemption.    Second, a medical device manufacturer may be entitled to interpose a regulatory compliance defense based on the FDA’s approval of the premarket application. Most States do not treat regulatory compliance as dispositive, but regard it as one factor to be taken into account by the jury. See Sharkey, Federalism in Action: FDA Regulatory Preemption in Pharmaceutical Cases in State Versus Federal Courts, 15 J. Law & Pol’y 1013, 1024 (2007). See also Restatement (Third) of Torts §16(a) (Proposed Final Draft No. 1, Apr. 6, 2005). In those States, a manufacturer could present the FDA’s approval of its medical device as evidence that it used due care in the design and labeling of the product.    The Court’s broad reading of §360k(a) saves the manufacturer from any need to urge these defenses. Instead, regardless of the strength of a plaintiff’s case, suits will be barred ab initio . The constriction of state authority ordered today was not mandated by Congress and is at odds with the MDA’s central purpose: to protect consumer safety. *  *  *    For the reasons stated, I would hold that §360k(a) does not preempt Riegel’s suit. I would therefore reverse the judgment of the Court of Appeals in relevant part. Footnote 1 The Court’s holding does not reach an important issue outside the bounds of this case: the preemptive effect of §360k(a) where evidence of a medical device’s defect comes to light only after the device receives premarket approval. Footnote 2 In part, Lohr spoke for the Court, and in part, for a plurality. Unless otherwise indicated, citations in this opinion refer to portions of Lohr conveying the opinion of the Court. Footnote 3 The very next provision, §360k(b), allows States and their political subdivisions to apply for exemption from the requirements for medical devices set by the FDA when their own requirements are “more stringent” than federal standards or are necessitated by “compelling local conditions.” This prescription indicates solicitude for state concerns, as embodied in legislation or regulation. But no more than §360k(a) itself does §360k(b) show that Congress homed in on state common-law suits and meant to deny injured parties recourse to them. Footnote 4 Introducing the bill in the Senate, its sponsor explained: “The legislation is written so that the benefit of the doubt is always given to the consumer. After all it is the consumer who pays with his health and his life for medical device malfunctions.” 121 Cong. Rec. 10688 (1975) (remarks of Sen. Kennedy). Footnote 5 See, e.g., H. R. Rep. No. 94–853, p. 8 (1976) (“Significant defects in cardiac pacemakers have necessitated 34 voluntary recalls of pacemakers, involving 23,000 units, since 1972.”); S. Rep. No. 94–33, p. 6 (1975) (“Some 10,000 injuries were recorded, of which 731 resulted in death. For example, 512 deaths and 300 injuries were attributed to heart valves; 89 deaths and 186 injuries to heart pacemakers; 10 deaths and 8,000 injuries to intrauterine devices.”); 122 Cong. Rec. 5859 (1976) (remarks of Rep. Waxman) (“A 10-year FDA death-certificate search found over 850 deaths tied directly to medical devices.”); 121 id., at 10689–10690 (1975) (remarks of Sen. Nelson). See also Medtronic, Inc. v. Lohr , 518 U. S. 470 , 476 (1996). Footnote 6 The Dalkon Shield was ultimately linked to “thousands of serious injuries to otherwise healthy women.” Vladeck, Preemption and Regulatory Failure, 33 Pepperdine L. Rev. 95, 103 (2005). By October 1984, the manufacturer had settled or litigated approximately 7,700 Dalkon Shield cases. R. Sobol, Bending the Law: The Story of the Dalkon Shield Bankruptcy 23 (1991). Footnote 7 “[N]othing in the hearings, the Committee Reports, or the debates,” the Lohr plurality noted, “suggest[ed] that any proponent of the legislation intended a sweeping pre-emption of traditional common-law remedies against manufacturers and distributors of defective devices. If Congress intended such a result, its failure even to hint at it is spectacularly odd, particularly since Members of both Houses were acutely aware of ongoing product liability litigation.” 518 U. S., at 491. See also Adler & Mann, Preemption and Medical Devices: The Courts Run Amok, 59 Mo. L. Rev. 895, 925 (1994) (“To the extent that Congress mentioned common law tort claims, it was not to criticize them or to suggest that they needed to be barred once a federal regulation was in place. Rather, it was to note how they demonstrated that additional protections for consumers were needed.”). Footnote 8 The FDA recently announced a new position in an amicus brief. See Brief for United States as Amicus Curiae 16–24. An amicus brief interpreting a statute is entitled, at most, to deference under Skidmore v. Swift & Co. , 323 U. S. 134 (1944). See United States v. Mead Corp. , 533 U. S. 218 , 229–233 (2001). The weight accorded to an agency position under Skidmore “depend[s] upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” 323 U. S., at 140. See also Mead , 533 U. S., at 228 (courts consider, inter alia , the “consistency” and “persuasiveness” of an agency’s position); Good Samaritan Hospital v. Shalala , 508 U. S. 402 , 417 (1993) (“[T]he consistency of an agency’s position is a factor in assessing the weight that position is due.”). Because the FDA’s long-held view on the limited preemptive effect of §360k(a) better comports with the presumption against preemption of state health and safety protections, as well as the purpose and history of the MDA, the FDA’s new position is entitled to little weight. Footnote 9 The Court regards §360h(d) as unenlightening because it “could not possibly mean that all state-law claims are not pre-empted” and “provides no guidance as to which state-law claims are pre-empted and which are not.” Ante , at 12, n. 4. Given the presumption against preemption operative even in construing a preemption clause, see supra , at 2–3, the perceived lack of “guidance” should cut against Medtronic, not in its favor. Footnote 10 To the contrary, the bill did not need to create a federal claim for damages, witnesses testified, because “[a] common-law right of action exist[ed].” Hearings on S. 1944 before a Subcommittee of the Senate Committee on Commerce, 73d Cong., 2d Sess., 400 (1933) (statement of W. A. Hines). See also id. , at 403 (statement of J. A. Ladds) (“This act should not attempt to modify or restate the common law with respect to personal injuries.”). Footnote 11 Most defendants, it appears, raised no preemption defense to state tort suits involving FDA-approved drugs. See, e.g., Salmon v. Parke, Davis & Co. , 520 F. 2d 1359 (CA4 1975) (North Carolina law); Reyes v. Wyeth Labs. , 498 F. 2d 1264 (CA5 1974) (Texas law); Hoffman v. Sterling Drug Inc. , 485 F. 2d 132 (CA3 1973) (Pennsylvania law); Singer v. Sterling Drug, Inc. , 461 F. 2d 288 (CA7 1972) (Indiana law); McCue v. Norwich Pharmacal Co. , 453 F. 2d 1033 (CA1 1972) (New Hampshire law); Basko v. Sterling Drug, Inc. , 416 F. 2d 417 (CA2 1969) (Connecticut law); Parke-Davis & Co. v. Stromsodt , 411 F. 2d 1390 (CA8 1969) (North Dakota law); Davis v. Wyeth Labs., Inc. , 399 F. 2d 121 (CA9 1968) (Montana law); Roginsky v. Richardson-Merrell, Inc. , 378 F. 2d 832 (CA2 1967) (New York law); Cunningham v. Charles Pfizer & Co., Inc. , 532 P. 2d 1377 (Okla. 1974); Stevens v. Parke, Davis & Co. , 9 Cal. 3d 51, 507 P. 2d 653 (1973); Bine v. Sterling Drug, Inc. , 422 S. W. 2d 623 (Mo. 1968) (per curiam) . In the few cases in which courts noted that defendants had interposed a preemption plea, the defense was unsuccessful. See, e.g., Herman v. Smith, Kline & French Labs. , 286 F. Supp. 695 (ED Wis. 1968). See also infra , at 12, n. 16 (decisions after 1976). Footnote 12 See Leflar & Adler, The Preemption Pentad: Federal Preemption of Products Liability Claims After Medtronic , 64 Tenn. L. Rev. 691, 704, n. 71 (1997) (“Surely a furor would have been aroused by the very suggestion that … medical devices should receive an exemption from products liability litigation while new drugs, subject to similar regulatory scrutiny from the same agency, should remain under the standard tort law regime.”); Porter, The Lohr Decision: FDA Perspective and Position, 52 Food & Drug L. J. 7, 11 (1997) (With preemption, the “FDA’s regulation of devices would have been accorded an entirely different weight in private tort litigation than its counterpart regulation of drugs and biologics. This disparity is neither justified nor appropriate, nor does the agency believe it was intended by Congress … .”). Footnote 13 The Drug Amendments of 1962 reiterated Congress’ intent not to preempt claims relying on state law: “Nothing in the amendments … shall be construed as invalidating any provision of State law which would be valid in the absence of such amendments unless there is a direct and positive conflict between such amendments and such provision of State law.” §202, 76 Stat. 793. Footnote 14 Congress featured California’s regulatory system in its discussion of §360k(a), but it also identified California’s system as a prime candidate for an exemption from preemption under §360k(b). “[R]equirements imposed under the California statute,” the House Report noted, “serve as an example of requirements that the Secretary should authorize to be continued (provided any application submitted by a State meets requirements pursuant to the reported bill).” H. R. Rep. No. 94–853, p. 46. Thus Congress sought not to terminate all state premarket approval systems, but rather to place those systems under the controlling authority of the FDA. Footnote 15 The process for approving a new drug begins with preclinical laboratory and animal testing. The sponsor of the new drug then submits an investigational new drug application seeking FDA approval to test the drug on humans. See 21 U. S. C. §355(i); 21 CFR §312.1 et seq . (2007). Clinical trials generally proceed in three phases involving successively larger groups of patients: 20 to 80 subjects in phase I; no more than several hundred subjects in phase II; and several hundred to several thousand subjects in phase III. 21 CFR §312.21. After completing the clinical trials, the sponsor files a new drug application containing, inter alia , “full reports of investigations” showing whether the “drug is safe for use and … effective”; the drug’s composition; a description of the drug’s manufacturing, processing, and packaging; and the proposed labeling for the drug. 21 U. S. C. §355(b)(1). Footnote 16 See, e.g ., Tobin v. Astra Pharmaceutical Prods., Inc. , 993 F. 2d 528, 537–538 (CA6 1993); Hill v. Searle Labs. , 884 F. 2d 1064, 1068 (CA8 1989); In re Vioxx Prods. Liability Litigation , 501 F. Supp. 2d 776, 788–789 (ED La. 2007); In re Zyprexa Prods. Liability Litigation , 489 F. Supp. 2d 230, 275–278 (EDNY 2007); Weiss v. Fujisawa Pharmaceutical Co. , 464 F. Supp. 2d 666, 676 (ED Ky. 2006); Perry v. Novartis Pharma. Corp. , 456 F. Supp. 2d 678, 685–687 (ED Pa. 2006); McNellis ex rel. DeAngelis v. Pfizer, Inc. , No. Civ. 05–1286 (JBS), 2006 WL 2819046, *5 (D. NJ, Sept. 26, 2006); Jackson v. Pfizer, Inc. , 432 F. Supp. 2d 964, 968 (Neb. 2006); Laisure-Radke v. Par Pharmaceutical, Inc. , 426 F. Supp. 2d 1163, 1169 (WD Wash. 2006); Witczak v. Pfizer, Inc. , 377 F. Supp. 2d 726, 732 (Minn. 2005); Zikis v. Pfizer, Inc ., No. 04 C 8104, 2005 WL 1126909, *3 (ND Ill., May 9, 2005); Cartwright v. Pfizer, Inc. , 369 F. Supp. 2d 876, 885–886 (ED Tex. 2005); Eve v. Sandoz Pharmaceutical Corp., No. IP 98–1429–C–Y/S, 2002 WL 181972, *1 (SD Ind., Jan. 28, 2002); Caraker v. Sandoz Pharmaceuticals Corp. , 172 F. Supp. 2d 1018, 1044 (SD Ill. 2001); Motus v. Pfizer, Inc ., 127 F. Supp. 2d 1085, 1087 (CD Cal. 2000); Kociemba v. G. D. Searle & Co. , 680 F. Supp. 1293, 1299–1300 (Minn. 1988). But see 71 Fed. Reg. 3933–3936 (2006) (preamble to labeling regulations discussing FDA’s recently adopted view that federal drug labeling requirements preempt conflicting state laws); In re Bextra & Celebrex Marketing Sales Practices & Prod. Liability Litigation , No. M:05–1699 CRB, 2006 WL 2374742, *10 (ND Cal., Aug. 16, 2006); Colacicco v. Apotex, Inc ., 432 F. Supp. 2d 514, 537–538 (ED Pa. 2006); Needleman v. Pfizer Inc ., No. Civ. A. 3:03–CV–3074–N, 2004 WL 1773697, *5 (ND Tex., Aug. 6, 2004); Dusek v. Pfizer Inc. , No. Civ. A. H–02–3559, 2004 WL 2191804, *10 (SD Tex., Feb. 20, 2004). But cf. 73 Fed. Reg. 2853 (2008) (preamble to proposed rule). This Court will soon address the issue in Levine v. Wyeth , No. 2004–384, 2006 WL 3041078 (Vt., Oct. 27, 2006), cert. granted, 552 U. S. ___ (2008). The question presented in that case is: “Whether the prescription drug labeling judgments imposed on manufacturers by the Food and Drug Administration (‘FDA’) pursuant to FDA’s comprehensive safety and efficacy authority under the Federal Food, Drug, and Cosmetic Act, 21 U. S. C. §301 et seq ., preempt state law product liability claims premised on the theory that different labeling judgments were necessary to make drugs reasonably safe for use.” Pet. for Cert. in Wyeth v. Levine , O. T. 2007, No. 06–1249, p. i.

In the case of Riegel v. Medtronic, Inc., the Supreme Court ruled that common-law claims challenging the safety and effectiveness of a medical device are pre-empted by federal law, specifically the Medical Device Amendments of 1976, if the device has received premarket approval from the Food and Drug Administration (FDA). This ruling sets a precedent for the pre-emption of state-level tort claims related to medical devices that have undergone FDA approval.

Health Care

Wyeth v. Levine

https://supreme.justia.com/cases/federal/us/555/555/

OPINION OF THE COURT WYETH V. LEVINE 555 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 06-1249 WYETH, PETITIONER v. DIANA LEVINE on writ of certiorari to the supreme court of vermont [March 4, 2009]    Justice Stevens delivered the opinion of the Court.    Directly injecting the drug Phenergan into a patient’s vein creates a significant risk of catastrophic consequences. A Vermont jury found that petitioner Wyeth, the manufacturer of the drug, had failed to provide an adequate warning of that risk and awarded damages to respondent Diana Levine to compensate her for the amputation of her arm. The warnings on Phenergan’s label had been deemed sufficient by the federal Food and Drug Administration (FDA) when it approved Wyeth’s new drug application in 1955 and when it later approved changes in the drug’s labeling. The question we must decide is whether the FDA’s approvals provide Wyeth with a complete defense to Levine’s tort claims. We conclude that they do not. I    Phenergan is Wyeth’s brand name for promethazine hydrochloride, an antihistamine used to treat nausea. The injectable form of Phenergan can be administered intramuscularly or intravenously, and it can be administered intravenously through either the “IV-push” method, whereby the drug is injected directly into a patient’s vein, or the “IV-drip” method, whereby the drug is introduced into a saline solution in a hanging intravenous bag and slowly descends through a catheter inserted in a patient’s vein. The drug is corrosive and causes irreversible gangrene if it enters a patient’s artery.    Levine’s injury resulted from an IV-push injection of Phenergan. On April 7, 2000, as on previous visits to her local clinic for treatment of a migraine headache, she received an intramuscular injection of Demerol for her headache and Phenergan for her nausea. Because the combination did not provide relief, she returned later that day and received a second injection of both drugs. This time, the physician assistant administered the drugs by the IV-push method, and Phenergan entered Levine’s artery, either because the needle penetrated an artery directly or because the drug escaped from the vein into surrounding tissue (a phenomenon called “perivascular extravasation”) where it came in contact with arterial blood. As a result, Levine developed gangrene, and doctors amputated first her right hand and then her entire forearm. In addition to her pain and suffering, Levine incurred substantial medical expenses and the loss of her livelihood as a professional musician.    After settling claims against the health center and clinician, Levine brought an action for damages against Wyeth, relying on common-law negligence and strict-liability theories. Although Phenergan’s labeling warned of the danger of gangrene and amputation following inadvertent intra-arterial injection,[ Footnote 1 ] Levine alleged that the labeling was defective because it failed to instruct clinicians to use the IV-drip method of intravenous administration instead of the higher risk IV-push method. More broadly, she alleged that Phenergan is not reasonably safe for intravenous administration because the foreseeable risks of gangrene and loss of limb are great in relation to the drug’s therapeutic benefits. App. 14–15.    Wyeth filed a motion for summary judgment, arguing that Levine’s failure-to-warn claims were pre-empted by federal law. The court found no merit in either Wyeth’s field pre-emption argument, which it has since abandoned, or its conflict pre-emption argument. With respect to the contention that there was an “actual conflict between a specific FDA order,” id. , at 21, and Levine’s failure-to-warn action, the court reviewed the sparse correspondence between Wyeth and the FDA about Phenergan’s labeling and found no evidence that Wyeth had “earnestly attempted” to strengthen the intra-arterial injection warning or that the FDA had “specifically disallowed” stronger language, id. , at 23. The record, as then developed, “lack[ed] any evidence that the FDA set a ceiling on this matter.” Ibid .    The evidence presented during the 5-day jury trial showed that the risk of intra-arterial injection or perivascular extravasation can be almost entirely eliminated through the use of IV-drip, rather than IV-push, administration. An IV drip is started with saline, which will not flow properly if the catheter is not in the vein and fluid is entering an artery or surrounding tissue. See id ., at 50–51, 60, 66–68, 75. By contrast, even a careful and experienced clinician using the IV-push method will occasionally expose an artery to Phenergan. See id ., at 73, 75–76. While Phenergan’s labeling warned against intra-arterial injection and perivascular extravasation and advised that “[w]hen administering any irritant drug intravenously it is usually preferable to inject it through the tubing of an intravenous infusion set that is known to be function- ing satisfactorily,” id. , at 390, the labeling did not con- tain a specific warning about the risks of IV-push administration.    The trial record also contains correspondence between Wyeth and the FDA discussing Phenergan’s label. The FDA first approved injectable Phenergan in 1955. In 1973 and 1976, Wyeth submitted supplemental new drug applications, which the agency approved after proposing labeling changes. Wyeth submitted a third supplemental application in 1981 in response to a new FDA rule governing drug labels. Over the next 17 years, Wyeth and the FDA intermittently corresponded about Phenergan’s label. The most notable activity occurred in 1987, when the FDA suggested different warnings about the risk of arterial exposure, and in 1988, when Wyeth submitted revised labeling incorporating the proposed changes. The FDA did not respond. Instead, in 1996, it requested from Wyeth the labeling then in use and, without addressing Wyeth’s 1988 submission, instructed it to “[r]etain verbiage in current label” regarding intra-arterial injection. Id ., at 359. After a few further changes to the labeling not related to intra-arterial injection, the FDA approved Wyeth’s 1981 application in 1998, instructing that Phenergan’s final printed label “must be identical” to the approved package insert. Id ., at 382.    Based on this regulatory history, the trial judge instructed the jury that it could consider evidence of Wyeth’s compliance with FDA requirements but that such compliance did not establish that the warnings were adequate. He also instructed, without objection from Wyeth, that FDA regulations “permit a drug manufacturer to change a product label to add or strengthen a warning about its product without prior FDA approval so long as it later submits the revised warning for review and approval.” Id ., at 228.    Answering questions on a special verdict form, the jury found that Wyeth was negligent, that Phenergan was a defective product as a result of inadequate warnings and instructions, and that no intervening cause had broken the causal connection between the product defects and the plaintiff’s injury. Id ., at 233–235. It awarded total damages of $7,400,000, which the court reduced to account for Levine’s earlier settlement with the health center and clinician. Id. , at 235–236.    On August 3, 2004, the trial court filed a comprehensive opinion denying Wyeth’s motion for judgment as a matter of law. After making findings of fact based on the trial record (supplemented by one letter that Wyeth found after the trial), the court rejected Wyeth’s pre-emption arguments. It determined that there was no direct conflict between FDA regulations and Levine’s state-law claims because those regulations permit strengthened warnings without FDA approval on an interim basis and the record contained evidence of at least 20 reports of amputations similar to Levine’s since the 1960’s. The court also found that state tort liability in this case would not obstruct the FDA’s work because the agency had paid no more than passing attention to the question whether to warn against IV-push administration of Phenergan. In addition, the court noted that state law serves a compensatory function distinct from federal regulation. Id ., at 249–252.    The Vermont Supreme Court affirmed. It held that the jury’s verdict “did not conflict with FDA’s labeling requirements for Phenergan because [Wyeth] could have warned against IV-push administration without prior FDA approval, and because federal labeling requirements create a floor, not a ceiling, for state regulation.” ___ Vt. ___, ___ 944 A. 2d 179, 184 (2006). In dissent, Chief Justice Reiber argued that the jury’s verdict conflicted with federal law because it was inconsistent with the FDA’s conclusion that intravenous administration of Phenergan was safe and effective.    The importance of the pre-emption issue, coupled with the fact that the FDA has changed its position on state tort law and now endorses the views expressed in Chief Justice Reiber’s dissent, persuaded us to grant Wyeth’s petition for certiorari. 552 U. S. ___ (2008). The question presented by the petition is whether the FDA’s drug labeling judgments “preempt state law product liability claims premised on the theory that different labeling judgments were necessary to make drugs reasonably safe for use.” Pet. for Cert. i. II Wyeth makes two separate pre-emption arguments: first, that it would have been impossible for it to comply with the state-law duty to modify Phenergan’s labeling without violating federal law, see Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta , 458 U. S. 141 , 153 (1982), and second, that recognition of Levine’s state tort action creates an unacceptable “obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines v. Davidowitz , 312 U. S. 52 , 67 (1941), because it substitutes a lay jury’s decision about drug labeling for the expert judgment of the FDA. As a preface to our evaluation of these arguments, we identify two factual propositions decided during the trial court proceedings, emphasize two legal principles that guide our analysis, and review the history of the controlling federal statute.    The trial court proceedings established that Levine’s injury would not have occurred if Phenergan’s label had included an adequate warning about the risks of the IV-push method of administering the drug. The record contains evidence that the physician assistant administered a greater dose than the label prescribed, that she may have inadvertently injected the drug into an artery rather than a vein, and that she continued to inject the drug after Levine complained of pain. Nevertheless, the jury rejected Wyeth’s argument that the clinician’s conduct was an intervening cause that absolved it of liability. See App. 234 (jury verdict), 252–254. In finding Wyeth negligent as well as strictly liable, the jury also determined that Levine’s injury was foreseeable. That the inadequate label was both a but-for and proximate cause of Levine’s injury is supported by the record and no longer challenged by Wyeth.[ Footnote 2 ]    The trial court proceedings further established that the critical defect in Phenergan’s label was the lack of an adequate warning about the risks of IV-push administration. Levine also offered evidence that the IV-push method should be contraindicated and that Phenergan should never be administered intravenously, even by the IV-drip method. Perhaps for this reason, the dissent incorrectly assumes that the state-law duty at issue is the duty to contraindicate the IV-push method. See, e.g. , post , at 8, 25. But, as the Vermont Supreme Court explained, the jury verdict established only that Phenergan’s warning was insufficient. It did not mandate a particular replacement warning, nor did it require contraindicating IV-push administration: “There may have been any number of ways for [Wyeth] to strengthen the Phenergan warning without completely eliminating IV-push administration.” ___ Vt., at ___, n. 2, 944 A. 2d, at 189, n. 2. We therefore need not decide whether a state rule proscribing intravenous administration would be pre-empted. The narrower question presented is whether federal law pre-empts Levine’s claim that Phenergan’s label did not contain an adequate warning about using the IV-push method of administration.    Our answer to that question must be guided by two cornerstones of our pre-emption jurisprudence. First, “the purpose of Congress is the ultimate touchstone in every pre-emption case.” Medtronic, Inc. v. Lohr , 518 U. S. 470 , 485 (1996) (internal quotation marks omitted); see Retail Clerks v. Schermerhorn , 375 U. S. 96 , 103 (1963). Second, “[i]n all pre-emption cases, and particularly in those in which Congress has ‘legislated … in a field which the States have traditionally occupied,’ … we ‘start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ ” Lohr , 518 U. S., at 485 (quoting Rice v. Santa Fe Elevator Corp ., 331 U. S. 218 , 230 (1947)).[ Footnote 3 ]    In order to identify the “purpose of Congress,” it is appropriate to briefly review the history of federal regulation of drugs and drug labeling. In 1906, Congress enacted its first significant public health law, the Federal Food and Drugs Act, ch. 3915, 34 Stat. 768. The Act, which prohibited the manufacture or interstate shipment of adulterated or misbranded drugs, supplemented the protection for consumers already provided by state regulation and common-law liability. In the 1930’s, Congress became increasingly concerned about unsafe drugs and fraudulent marketing, and it enacted the Federal Food, Drug, and Cosmetic Act (FDCA), ch. 675, 52 Stat. 1040, as amended, 21 U. S. C. §301 et seq. The Act’s most substantial innovation was its provision for premarket approval of new drugs. It required every manufacturer to submit a new drug application, including reports of investigations and specimens of proposed labeling, to the FDA for review. Until its application became effective, a manufacturer was prohibited from distributing a drug. The FDA could reject an application if it determined that the drug was not safe for use as labeled, though if the agency failed to act, an application became effective 60 days after the filing. FDCA, §505(c), 52 Stat. 1052.    In 1962, Congress amended the FDCA and shifted the burden of proof from the FDA to the manufacturer. Before 1962, the agency had to prove harm to keep a drug out of the market, but the amendments required the manufacturer to demonstrate that its drug was “safe for use under the conditions prescribed, recommended, or suggested in the proposed labeling” before it could distribute the drug. §§102(d), 104(b), 76 Stat. 781, 784. In addition, the amendments required the manufacturer to prove the drug’s effectiveness by introducing “substantial evidence that the drug will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the proposed labeling.” §102(d), id. , at 781.    As it enlarged the FDA’s powers to “protect the public health” and “assure the safety, effectiveness, and reliability of drugs,” id. , at 780, Congress took care to preserve state law. The 1962 amendments added a saving clause, indicating that a provision of state law would only be invalidated upon a “direct and positive conflict” with the FDCA. §202, id. , at 793. Consistent with that provision, state common-law suits “continued unabated despite … FDA regulation.” Riegel v. Medtronic, Inc. , 552 U. S. ___, ___ (2008) (slip op., at 8) (Ginsburg, J., dissenting); see ibid. , n. 11 (collecting state cases). And when Congress enacted an express pre-emption provision for medical devices in 1976, see §521, 90 Stat. 574 (codified at 21 U. S. C. §360k(a)), it declined to enact such a provision for prescription drugs.    In 2007, after Levine’s injury and lawsuit, Congress again amended the FDCA. 121 Stat. 823. For the first time, it granted the FDA statutory authority to require a manufacturer to change its drug label based on safety information that becomes available after a drug’s initial approval. §901(a), id. , at 924–926. In doing so, however, Congress did not enact a provision in the Senate bill that would have required the FDA to preapprove all changes to drug labels. See S. 1082, 110th Cong., 1st Sess., §208, pp. 107–114 (2007) (as passed) (proposing new §506D). Instead, it adopted a rule of construction to make it clear that manufacturers remain responsible for updating their labels. See 121 Stat. 925–926. III    Wyeth first argues that Levine’s state-law claims are pre-empted because it is impossible for it to comply with both the state-law duties underlying those claims and its federal labeling duties. See De la Cuesta , 458 U. S., at 153. The FDA’s premarket approval of a new drug application includes the approval of the exact text in the proposed label. See 21 U. S. C. §355; 21 CFR §314.105(b) (2008). Generally speaking, a manufacturer may only change a drug label after the FDA approves a supplemental application. There is, however, an FDA regulation that permits a manufacturer to make certain changes to its label before receiving the agency’s approval. Among other things, this “changes being effected” (CBE) regulation provides that if a manufacturer is changing a label to “add or strengthen a contraindication, warning, precaution, or adverse reaction” or to “add or strengthen an instruction about dosage and administration that is intended to increase the safe use of the drug product,” it may make the labeling change upon filing its supplemental application with the FDA; it need not wait for FDA approval. §§314.70(c)(6)(iii)(A), (C).    Wyeth argues that the CBE regulation is not implicated in this case because a 2008 amendment provides that a manufacturer may only change its label “to reflect newly acquired information.” 73 Fed. Reg. 49609. Resting on this language (which Wyeth argues simply reaffirmed the interpretation of the regulation in effect when this case was tried), Wyeth contends that it could have changed Phenergan’s label only in response to new information that the FDA had not considered. And it maintains that Levine has not pointed to any such information concerning the risks of IV-push administration. Thus, Wyeth insists, it was impossible for it to discharge its state-law obligation to provide a stronger warning about IV-push administration without violating federal law. Wyeth’s argument misapprehends both the federal drug regulatory scheme and its burden in establishing a pre-emption defense.    We need not decide whether the 2008 CBE regulation is consistent with the FDCA and the previous version of the regulation, as Wyeth and the United States urge, because Wyeth could have revised Phenergan’s label even in accordance with the amended regulation. As the FDA explained in its notice of the final rule, “ ‘newly acquired information’ ” is not limited to new data, but also encompasses “new analyses of previously submitted data.” Id. , at 49604. The rule accounts for the fact that risk information accumulates over time and that the same data may take on a different meaning in light of subsequent developments: “[I]f the sponsor submits adverse event information to FDA, and then later conducts a new analysis of data showing risks of a different type or of greater severity or frequency than did reports previously submitted to FDA, the sponsor meets the requirement for ‘newly acquired information.’ ” Id. , at 49607; see also id. , at 49606.    The record is limited concerning what newly acquired information Wyeth had or should have had about the risks of IV-push administration of Phenergan because Wyeth did not argue before the trial court that such information was required for a CBE labeling change. Levine did, however, present evidence of at least 20 incidents prior to her injury in which a Phenergan injection resulted in gangrene and an amputation. See App. 74, 252.[ Footnote 4 ] After the first such incident came to Wyeth’s attention in 1967, it notified the FDA and worked with the agency to change Phenergan’s label. In later years, as amputations continued to occur, Wyeth could have analyzed the accumulating data and added a stronger warning about IV-push administration of the drug.    Wyeth argues that if it had unilaterally added such a warning, it would have violated federal law governing unauthorized distribution and misbranding. Its argument that a change in Phenergan’s labeling would have subjected it to liability for unauthorized distribution rests on the assumption that this labeling change would have rendered Phenergan a new drug lacking an effective application. But strengthening the warning about IV-push administration would not have made Phenergan a new drug. See 21 U. S. C. §321(p)(1) (defining “new drug”); 21 CFR §310.3(h). Nor would this warning have rendered Phenergan misbranded. The FDCA does not provide that a drug is misbranded simply because the manufacturer has altered an FDA-approved label; instead, the misbranding provision focuses on the substance of the label and, among other things, proscribes labels that fail to include “adequate warnings.” 21 U. S. C. §352(f). Moreover, because the statute contemplates that federal juries will resolve most misbranding claims, the FDA’s belief that a drug is misbranded is not conclusive. See §§331, 332, 334(a)–(b). And the very idea that the FDA would bring an enforcement action against a manufacturer for strengthening a warning pursuant to the CBE regulation is difficult to accept—neither Wyeth nor the United States has identified a case in which the FDA has done so.    Wyeth’s cramped reading of the CBE regulation and its broad reading of the FDCA’s misbranding and unauthorized distribution provisions are premised on a more fundamental misunderstanding. Wyeth suggests that the FDA, rather than the manufacturer, bears primary responsibility for drug labeling. Yet through many amendments to the FDCA and to FDA regulations, it has remained a central premise of federal drug regulation that the manufacturer bears responsibility for the content of its label at all times. It is charged both with crafting an adequate label and with ensuring that its warnings remain adequate as long as the drug is on the market. See, e.g ., 21 CFR §201.80(e) (requiring a manufacturer to revise its label “to include a warning as soon as there is reasonable evidence of an association of a serious hazard with a drug”); §314.80(b) (placing responsibility for postmarketing surveillance on the manufacturer); 73 Fed. Reg. 49605 (“Manufacturers continue to have a responsibility under Federal law … to maintain their labeling and update the labeling with new safety information”).    Indeed, prior to 2007, the FDA lacked the authority to order manufacturers to revise their labels. See 121 Stat. 924–926. When Congress granted the FDA this authority, it reaffirmed the manufacturer’s obligations and referred specifically to the CBE regulation, which both reflects the manufacturer’s ultimate responsibility for its label and provides a mechanism for adding safety information to the label prior to FDA approval. See id. , at 925–926 (stating that a manufacturer retains the responsibility “to maintain its label in accordance with existing requirements, including subpart B of part 201 and sections 314.70 and 601.12 of title 21, Code of Federal Regulations (or any successor regulations)” (emphasis added)). Thus, when the risk of gangrene from IV-push injection of Phenergan became apparent, Wyeth had a duty to provide a warning that adequately described that risk, and the CBE regulation permitted it to provide such a warning before receiving the FDA’s approval.    Of course, the FDA retains authority to reject labeling changes made pursuant to the CBE regulation in its review of the manufacturer’s supplemental application, just as it retains such authority in reviewing all supplemental applications. But absent clear evidence that the FDA would not have approved a change to Phenergan’s label, we will not conclude that it was impossible for Wyeth to comply with both federal and state requirements. Wyeth has offered no such evidence. It does not argue that it attempted to give the kind of warning required by the Vermont jury but was prohibited from doing so by the FDA.[ Footnote 5 ] See Tr. of Oral Arg. 12–13; see also Brief for United States as Amicus Curiae 25. And while it does suggest that the FDA intended to prohibit it from strengthening the warning about IV-push administration because the agency deemed such a warning inappropriate in reviewing Phenergan’s drug applications, both the trial court and the Vermont Supreme Court rejected this account as a matter of fact. In its decision on Wyeth’s motion for judgment as a matter of law, the trial court found “no evidence in this record that either the FDA or the manufacturer gave more than passing attention to the issue of” IV-push versus IV-drip administration. App. 249. The Vermont Supreme Court likewise concluded that the FDA had not made an affirmative decision to preserve the IV-push method or intended to prohibit Wyeth from strengthening its warning about IV-push administration. ___ Vt., at ___, 944 A. 2d, at 188–189. Moreover, Wyeth does not argue that it supplied the FDA with an evaluation or analysis concerning the specific dangers posed by the IV-push method. We accordingly cannot credit Wyeth’s contention that the FDA would have prevented it from adding a stronger warning about the IV-push method of intravenous administration.[ Footnote 6 ] Impossibility pre-emption is a demanding defense. On the record before us, Wyeth has failed to demonstrate that it was impossible for it to comply with both federal and state requirements. The CBE regulation permitted Wyeth to unilaterally strengthen its warning, and the mere fact that the FDA approved Phenergan’s label does not establish that it would have prohibited such a change. IV Wyeth also argues that requiring it to comply with a state-law duty to provide a stronger warning about IV-push administration would obstruct the purposes and objectives of federal drug labeling regulation. Levine’s tort claims, it maintains, are pre-empted because they interfere with “Congress’s purpose to entrust an expert agency to make drug labeling decisions that strike a balance between competing objectives.” Brief for Petitioner 46. We find no merit in this argument, which relies on an untenable interpretation of congressional intent and an overbroad view of an agency’s power to pre-empt state law. Wyeth contends that the FDCA establishes both a floor and a ceiling for drug regulation: Once the FDA has approved a drug’s label, a state-law verdict may not deem the label inadequate, regardless of whether there is any evidence that the FDA has considered the stronger warning at issue. The most glaring problem with this argument is that all evidence of Congress’ purposes is to the contrary. Building on its 1906 Act, Congress enacted the FDCA to bolster consumer protection against harmful products. See Kordel v. United States , 335 U. S. 345 , 349 (1948); United States v. Sullivan , 332 U. S. 689 , 696 (1948). Congress did not provide a federal remedy for consumers harmed by unsafe or ineffective drugs in the 1938 statute or in any subsequent amendment. Evidently, it determined that widely available state rights of action provided appropriate relief for injured consumers.[ Footnote 7 ] It may also have recognized that state-law remedies further consumer protection by motivating manufacturers to produce safe and effective drugs and to give adequate warnings. If Congress thought state-law suits posed an obstacle to its objectives, it surely would have enacted an express pre-emption provision at some point during the FDCA’s 70-year history. But despite its 1976 enactment of an express pre-emption provision for medical devices, see §521, 90 Stat. 574 (codified at 21 U. S. C. §360k(a)), Congress has not enacted such a provision for prescription drugs. See Riegel , 552 U. S., at ___ (slip op., at 14) (“Congress could have applied the pre-emption clause to the entire FDCA. It did not do so, but instead wrote a pre-emption clause that applies only to medical devices”).[ Footnote 8 ] Its silence on the issue, coupled with its certain awareness of the prevalence of state tort litigation, is powerful evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness. As Justice O’Connor explained in her opinion for a unanimous Court: “The case for federal pre-emption is particularly weak where Congress has indicated its awareness of the operation of state law in a field of federal interest, and has nonetheless decided to stand by both concepts and to tolerate whatever tension there [is] between them.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc. , 489 U. S. 141 , 166–167 (1989) (internal quotation marks omitted); see also supra , at 8 (discussing the presumption against pre-emption). Despite this evidence that Congress did not regard state tort litigation as an obstacle to achieving its purposes, Wyeth nonetheless maintains that, because the FDCA requires the FDA to determine that a drug is safe and effective under the conditions set forth in its labeling, the agency must be presumed to have performed a precise balancing of risks and benefits and to have established a specific labeling standard that leaves no room for different state-law judgments. In advancing this argument, Wyeth relies not on any statement by Congress, but instead on the preamble to a 2006 FDA regulation governing the content and format of prescription drug labels. See Brief for Petitioner 8, 11, 42, 45, and 50 (citing 71 Fed. Reg. 3922 (2006)). In that preamble, the FDA declared that the FDCA establishes “both a ‘floor’ and a ‘ceiling,’ ” so that “FDA approval of labeling … preempts conflicting or contrary State law.” Id. , at 3934–3935. It further stated that certain state-law actions, such as those involving failure-to-warn claims, “threaten FDA’s statutorily prescribed role as the expert Federal agency responsible for evaluating and regulating drugs.” Id. , at 3935. This Court has recognized that an agency regulation with the force of law can pre-empt conflicting state requirements. See, e.g. , Geier v. American Honda Motor Co. , 529 U. S. 861 (2000); Hillsborough County v. Automated Medical Laboratories , Inc., 471 U. S. 707 , 713 (1985). In such cases, the Court has performed its own conflict determination, relying on the substance of state and federal law and not on agency proclamations of pre-emption. We are faced with no such regulation in this case, but rather with an agency’s mere assertion that state law is an obstacle to achieving its statutory objectives. Because Congress has not authorized the FDA to pre-empt state law directly, cf. 21 U. S. C. §360k (authorizing the FDA to determine the scope of the Medical Devices Amendments’ pre-emption clause),[ Footnote 9 ] the question is what weight we should accord the FDA’s opinion. In prior cases, we have given “some weight” to an agency’s views about the impact of tort law on federal objectives when “the subject matter is technica[l] and the relevant history and background are complex and extensive.” Geier , 529 U. S., at 883. Even in such cases, however, we have not deferred to an agency’s conclusion that state law is pre-empted. Rather, we have attended to an agency’s explanation of how state law affects the regulatory scheme. While agencies have no special authority to pronounce on pre-emption absent delegation by Congress, they do have a unique understanding of the statutes they administer and an attendant ability to make informed determinations about how state requirements may pose an “obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines , 312 U.S, at 67; see Geier , 529 U. S., at 883; Lohr , 518 U. S., at 495–496. The weight we accord the agency’s explanation of state law’s impact on the federal scheme depends on its thoroughness, consistency, and persuasiveness. Cf. United States v. Mead Corp. , 533 U. S. 218 , 234–235 (2001); Skidmore v. Swift & Co. , 323 U. S. 134 , 140 (1944). Under this standard, the FDA’s 2006 preamble does not merit deference. When the FDA issued its notice of proposed rulemaking in December 2000, it explained that the rule would “not contain policies that have federalism implications or that preempt State law.” 65 Fed. Reg. 81103; see also 71 id. , at 3969 (noting that the “proposed rule did not propose to preempt state law”). In 2006, the agency finalized the rule and, without offering States or other interested parties notice or opportunity for comment, articulated a sweeping position on the FDCA’s pre-emptive effect in the regulatory preamble. The agency’s views on state law are inherently suspect in light of this procedural failure. Further, the preamble is at odds with what evidence we have of Congress’ purposes, and it reverses the FDA’s own longstanding position without providing a reasoned explanation, including any discussion of how state law has interfered with the FDA’s regulation of drug labeling during decades of coexistence. The FDA’s 2006 position plainly does not reflect the agency’s own view at all times relevant to this litigation. Not once prior to Levine’s injury did the FDA suggest that state tort law stood as an obstacle to its statutory mission. To the contrary, it cast federal labeling standards as a floor upon which States could build and repeatedly disclaimed any attempt to pre-empt failure-to-warn claims. For instance, in 1998, the FDA stated that it did “not believe that the evolution of state tort law [would] cause the development of standards that would be at odds with the agency’s regulations.” 63 id. , at 66384. It further noted that, in establishing “minimal standards” for drug labels, it did not intend “to preclude the states from imposing additional labeling requirements.” Ibid .[ Footnote 10 ] In keeping with Congress’ decision not to pre-empt common-law tort suits, it appears that the FDA traditionally regarded state law as a complementary form of drug regulation. The FDA has limited resources to monitor the 11,000 drugs on the market,[ Footnote 11 ] and manufacturers have superior access to information about their drugs, especially in the postmarketing phase as new risks emerge. State tort suits uncover unknown drug hazards and provide incentives for drug manufacturers to disclose safety risks promptly. They also serve a distinct compensatory function that may motivate injured persons to come forward with information. Failure-to-warn actions, in particular, lend force to the FDCA’s premise that manufacturers, not the FDA, bear primary responsibility for their drug labeling at all times. Thus, the FDA long maintained that state law offers an additional, and important, layer of consumer protection that complements FDA regulation.[ Footnote 12 ] The agency’s 2006 preamble represents a dramatic change in position. Largely based on the FDA’s new position, Wyeth argues that this case presents a conflict between state and federal law analogous to the one at issue in Geier . There, we held that state tort claims premised on Honda’s failure to install airbags conflicted with a federal regulation that did not require airbags for all cars. The Department of Transportation (DOT) had promulgated a rule that provided car manufacturers with a range of choices among passive restraint devices. Geier , 529 U. S., at 875. Rejecting an “ ‘all airbag’ ” standard, the agency had called for a gradual phase-in of a mix of passive restraints in order to spur technological development and win consumer acceptance. Id., at 879. Because the plaintiff’s claim was that car manufacturers had a duty to install airbags, it presented an obstacle to achieving “the variety and mix of devices that the federal regulation sought.” Id. , at 881. Wyeth and the dissent contend that the regulatory scheme in this case is nearly identical, but, as we have described, it is quite different. In Geier , the DOT conducted a formal rulemaking and then adopted a plan to phase in a mix of passive restraint devices. Examining the rule itself and the DOT’s contemporaneous record, which revealed the factors the agency had weighed and the balance it had struck, we determined that state tort suits presented an obstacle to the federal scheme. After conducting our own pre-emption analysis, we considered the agency’s explanation of how state law interfered with its regulation, regarding it as further support for our independent conclusion that the plaintiff’s tort claim obstructed the federal regime. By contrast, we have no occasion in this case to consider the pre-emptive effect of a specific agency regulation bearing the force of law. And the FDA’s newfound opinion, expressed in its 2006 preamble, that state law “frustrate[s] the agency’s implementation of its statutory mandate,” 71 Fed. Reg. 3934, does not merit deference for the reasons we have explained.[ Footnote 13 ] Indeed, the “complex and extensive” regulatory history and background relevant to this case, Geier , 529 U. S., at 883, undercut the FDA’s recent pronouncements of pre-emption, as they reveal the longstanding coexistence of state and federal law and the FDA’s traditional recognition of state-law remedies—a recognition in place each time the agency reviewed Wyeth’s Phenergan label.[ Footnote 14 ] In short, Wyeth has not persuaded us that failure-to-warn claims like Levine’s obstruct the federal regulation of drug labeling. Congress has repeatedly declined to pre-empt state law, and the FDA’s recently adopted position that state tort suits interfere with its statutory mandate is entitled to no weight. Although we recognize that some state-law claims might well frustrate the achievement of congressional objectives, this is not such a case. V We conclude that it is not impossible for Wyeth to comply with its state and federal law obligations and that Levine’s common-law claims do not stand as an obstacle to the accomplishment of Congress’ purposes in the FDCA. Accordingly, the judgment of the Vermont Supreme Court is affirmed. It is so ordered. Footnote 1 The warning for “Inadvertent Intra-arterial Injection” stated: “Due to the close proximity of arteries and veins in the areas most commonly used for intravenous injection, extreme care should be exercised to avoid perivascular extravasation or inadvertent intra-arterial injection. Reports compatible with inadvertent intra-arterial injection of Phenergan Injection, usually in conjunction with other drugs intended for intravenous use, suggest that pain, severe chemical irritation, severe spasm of distal vessels, and resultant gangrene requiring amputation are likely under such circumstances. Intravenous injection was intended in all the cases reported but perivascular extravasation or arterial placement of the needle is now suspect. There is no proven successful management of this condition after it occurs. . . . Aspiration of dark blood does not preclude intra-arterial needle placement, because blood is discolored upon contact with Phenergan Injection. Use of syringes with rigid plungers or of small bore needles might obscure typical arterial backflow if this is relied upon alone. When used intravenously, Phenergan Injection should be given in a concentration no greater than 25 mg per mL and at a rate not to exceed 25 mg per minute. When administering any irritant drug intravenously, it is usually preferable to inject it through the tubing of an intravenous infusion set that is known to be functioning satisfactorily. In the event that a patient complains of pain during intended intravenous injection of Phenergan Injection, the injection should be stopped immediately to provide for evaluation of possible arterial placement or perivascular extravasation.” App. 390. Footnote 2 The dissent nonetheless suggests that physician malpractice was the exclusive cause of Levine’s injury. See, e.g. , post , at 1 (opinion of Alito, J.) (“[I]t is unclear how a ‘stronger’ warning could have helped respondent”); post , at 16–18 (suggesting that the physician assistant’s conduct was the sole cause of the injury). The dissent’s frustration with the jury’s verdict does not put the merits of Levine’s tort claim before us, nor does it change the question we must decide—whether federal law pre-empts Levine’s state-law claims. Footnote 3 Wyeth argues that the presumption against pre-emption should not apply to this case because the Federal Government has regulated drug labeling for more than a century. That argument misunderstands the principle: We rely on the presumption because respect for the States as “independent sovereigns in our federal system” leads us to assume that “Congress does not cavalierly pre-empt state-law causes of action.” Medtronic, Inc. v. Lohr , 518 U. S. 470 , 485 (1996). The presumption thus accounts for the historic presence of state law but does not rely on the absence of federal regulation. For its part, the dissent argues that the presumption against pre-emption should not apply to claims of implied conflict pre-emption at all, post , at 21, but this Court has long held to the contrary. See, e.g. , California v. ARC America Corp. , 490 U. S. 93 , 101–102 (1989); Hillsborough County v. Automated Medical Laboratories, Inc. , 471 U. S. 707 , 716 (1985); see also Rush Prudential HMO, Inc. v. Moran , 536 U. S. 355 , 387 (2002). The dissent’s reliance on Buckman Co. v . Plaintiffs’ Legal Comm ., 531 U. S. 341 (2001), see post , at 21, and n. 14, is especially curious, as that case involved state-law fraud-on-the-agency claims, and the Court distinguished state regulation of health and safety as matters to which the presumption does apply. See 531 U. S., at 347–348. Footnote 4 Levine also introduced evidence that Pfizer had withdrawn Vistaril, another antinausea drug, from intravenous use several decades earlier because its intravenous injection had resulted in gangrene and amputations. See App. 79. Footnote 5 The record would not, in any event, support such an argument. In 1988, Wyeth did propose different language for Phenergan’s warning about intra-arterial injection, adapted from revisions the FDA proposed in 1987. See App. 339–341, 311–312. When the FDA approved Wyeth’s application, it instructed Wyeth to retain the wording in its current label. During the trial court proceedings, Levine indicated that the language proposed in 1988 would have more strongly warned against IV-push administration. But the trial court and the Vermont Supreme Court found that the 1988 warning did not differ in any material respect from the FDA-approved warning. See ___ Vt. ___, ___, 944 A. 2d 179, 189 (2006) (“Simply stated, the proposed warning was different, but not stronger. It was also no longer or more prominent than the original warning …”); App. 248–250. Indeed, the United States concedes that the FDA did not regard the proposed warning as substantively different: “[I]t appears the FDA viewed the change as non-substantive and rejected it for formatting reasons.” Brief for United States as Amicus Curiae 25; see also ___ Vt., at ___, 944 A. 2d, at 189. Footnote 6 The dissent’s suggestion that the FDA intended to prohibit Wyeth from strengthening its warning does not fairly reflect the record. The dissent creatively paraphrases a few FDA orders—for instance by conflating warnings about IV-push administration and intra-arterial injection, see, e.g. , post , at 9, 11–12, 15–16—to suggest greater agency attention to the question, and it undertakes a study of Phenergan’s labeling that is more elaborate than any FDA order. But even the dissent’s account does not support the conclusion that the FDA would have prohibited Wyeth from adding a stronger warning pursuant to the CBE regulation. Footnote 7 Although the first version of the bill that became the FDCA would have provided a federal cause of action for damages for injured consumers, see H. R. 6110, 73d Cong., 1st Sess., §25 (1933) (as introduced), witnesses testified that such a right of action was unnecessary because common-law claims were already available under state law. See Hearings on S. 1944 before a Subcommittee of the Senate Committee on Commerce, 73d Cong., 2d Sess., 400 (1933) (statement of W. A. Hines); see id. , at 403 (statement of J. A. Ladds) (“This act should not attempt to modify or restate the common law with respect to personal injuries”). Footnote 8 In 1997, Congress pre-empted certain state requirements concerning over-the-counter medications and cosmetics but expressly preserved product liability actions. See 21 U. S. C. §§379r(e), 379s(d) (“Nothing in this section shall be construed to modify or otherwise affect any action or the liability of any person under the product liability law of any State”). Footnote 9 For similar examples, see 47 U. S. C. §§253(a), (d) (2000 ed.) (authorizing the Federal Communications Commission to pre-empt “any [state] statute, regulation, or legal requirement” that “may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service”); 30 U. S. C. §1254(g) (2006 ed.) (pre-empting any statute that conflicts with “the purposes and the requirements of this chapter” and permitting the Secretary of the Interior to “set forth any State law or regulation which is preempted and superseded”); and 49 U. S. C. §5125(d) (2000 ed. and Supp. V) (authorizing the Secretary of Transportation to decide whether a state or local statute that conflicts with the regulation of hazardous waste transportation is pre-empted). Footnote 10 See also 44 Fed. Reg. 37437 (1979) (“It is not the intent of the FDA to influence the civil tort liability of the manufacturer”); 59 Fed. Reg. 3948 (1994) (“[P]roduct liability plays an important role in consumer protection”); Porter, The Lohr Decision: FDA Perspective and Position, 52 Food & Drug L. J. 7, 10 (1997) (former chief counsel to the FDA stating that the FDA regarded state law as complementing the agency’s mission of consumer protection). Footnote 11 In 1955, the same year that the agency approved Wyeth’s Phenergan application, an FDA advisory committee issued a report finding “conclusively” that “the budget and staff of the Food and Drug Administration are inadequate to permit the discharge of its existing responsibilities for the protection of the American public.” Citizens Advisory Committee on the FDA, Report to the Secretary of Health, Education, and Welfare, H. R. Doc. No. 227, 84th Cong., 1st Sess., 53. Three recent studies have reached similar conclusions. See FDA Science Board, Report of the Subcommittee on Science and Technology: FDA Science and Mission at Risk 2, 6 (2007), online at http://www.fda.gov/ohrms/ dockets/ac/07/briefing/2007-4329b_02_01_FDA%20Report%20on%20Sci ence%20and%20Technology.pdf (all Internet materials as visited Feb. 23, 2009, and available in Clerk of Court’s case file) (“[T]he Agency suffers from serious scientific deficiencies and is not positioned to meet current or emerging regulatory responsibilities”); National Academies, Institute of Medicine, The Future of Drug Safety: Promoting and Protecting the Health of the Public 193–194 (2007) (“The [FDA] lacks the resources needed to accomplish its large and complex mission … . There is widespread agreement that resources for postmarketing drug safety work are especially inadequate and that resource limitations have hobbled the agency’s ability to improve and expand this essential component of its mission”); GAO, Drug Safety: Improvement Needed in FDA’s Postmarket Decision-making and Oversight Process 5 (GAO–06–402, 2006), http://www.gao.gov/new.items/d06402.pdf (“FDA lacks a clear and effective process for making decisions about, and providing management oversight of, postmarket safety issues”); see also House Committee on Oversight and Government Reform, Majority Staff Report, FDA Career Staff Objected to Agency Preemption Policies 4 (2008) (“[T]he Office of Chief Counsel ignored the warnings from FDA scientists and career officials that the preemption language [of the 2006 preamble] was based on erroneous assertions about the ability of the drug approval process to ensure accurate and up-to-date drug labels”). Footnote 12 See generally Brief for Former FDA Commissioners Drs. Donald Kennedy and David Kessler as Amici Curiae; see also Kessler & Vladeck, A Critical Examination of the FDA’s Efforts To Preempt Failure-To-Warn Claims, 96 Geo. L. J. 461, 463 (2008); Bates v. Dow Agrosciences LLC , 544 U. S. 431 , 451 (2005) (noting that state tort suits “can serve as a catalyst” by aiding in the exposure of new dangers and prompting a manufacturer or the federal agency to decide that a revised label is required). Footnote 13 The United States’ amicus brief is similarly undeserving of deference. Unlike the Government’s brief in Geier v. American Honda Motor Co. , 529 U. S. 861 (2000), which explained the effects of state law on the DOT’s regulation in a manner consistent with the agency’s prior accounts, see id. , at 861, the Government’s explanation of federal drug regulation departs markedly from the FDA’s understanding at all times relevant to this case. Footnote 14 Wyeth’s more specific contention—that this case resembles Geier because the FDA determined that no additional warning on IV-push administration was needed, thereby setting a ceiling on Phenergan’s label—is belied by the record. As we have discussed, the FDA did not consider and reject a stronger warning against IV-push injection of Phenergan. See also App. 249–250 (“[A] tort case is unlikely to obstruct the regulatory process when the record shows that the FDA has paid very little attention to the issues raised by the parties at trial”). 555 U. S. ____ (2009) WYETH V. LEVINE 555 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 06-1249 WYETH, PETITIONER v. DIANA LEVINE on writ of certiorari to the supreme court of vermont [March 4, 2009]    Justice Breyer, concurring.    I write separately to emphasize the Court’s statement that “we have no occasion in this case to consider the pre-emptive effect of a specific agency regulation bearing the force of law.” Ante , at 24. State tort law will sometimes help the Food and Drug Administration (FDA) “uncover unknown drug hazards and [encourage] drug manufacturers to disclose safety risks.” Ante , at 23. But it is also possible that state tort law will sometimes interfere with the FDA’s desire to create a drug label containing a specific set of cautions and instructions. I also note that some have argued that state tort law can sometimes raise prices to the point where those who are sick are unable to obtain the drugs they need. See Lasagna, The Chilling Effect of Product Liability on New Drug Development, in The Liability Maze 334, 335–336 (P. Huber & R. Litan eds. 1991). The FDA may seek to determine whether and when state tort law acts as a help or a hindrance to achieving the safe drug-related medical care that Congress sought. Medtronic, Inc. v. Lohr , 518 U. S. 470 , 506 (1996) (Breyer, J., concurring in part and concurring in judgment); cf. Bates v. Dow Agrosciences LLC , 544 U. S. 431 , 454–455 (2005) (Breyer, J., concurring). It may seek to embody those determinations in lawful specific regulations describing, for example, when labeling requirements serve as a ceiling as well as a floor. And it is possible that such determinations would have pre-emptive effect. See Lohr , supra , at 505 (opinion of Breyer, J.) (citing Hillsborough County v. Automated Medical Laboratories, Inc. , 471 U. S. 707 (1985)). I agree with the Court, however, that such a regulation is not at issue in this case. THOMAS, J., CONCURRING IN JUDGMENT WYETH V. LEVINE 555 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 06-1249 WYETH, PETITIONER v. DIANA LEVINE on writ of certiorari to the supreme court of vermont [March 4, 2009]    Justice Thomas, concurring in the judgment.    I agree with the Court that the fact that the Food and Drug Administration (FDA) approved the label for petitioner Wyeth’s drug Phenergan does not pre-empt the state-law judgment before the Court. That judgment was based on a jury finding that the label did not adequately warn of the risk involved in administering Phenergan through the IV-push injection method. Under federal law, without prior approval from the FDA, Wyeth could have “add[ed] or strengthen[ed]” information on its label about “a contraindication, warning, precaution, or adverse reaction,” 21 CFR §314.70(c)(6)(iii)(A) (2008), or “about dosage and administration that is intended to increase the safe use of the drug product,” §314.70(c)(6)(iii)(C), in order to “reflect newly acquired information,” including “new analyses of previously submitted data,” about the dangers of IV-push administration of Phenergan, 73 Fed. Reg. 49603, 49609 (2008). It thus was possible for Wyeth to label and market Phenergan in compliance with federal law while also providing additional warning information on its label beyond that previously approved by the FDA. In addition, federal law does not give drug manufacturers an unconditional right to market their federally approved drug at all times with the precise label initially approved by the FDA. The Vermont court’s judgment in this case, therefore, did not directly conflict with federal law and is not pre-empted.    I write separately, however, because I cannot join the majority’s implicit endorsement of far-reaching implied pre-emption doctrines. In particular, I have become increasingly skeptical of this Court’s “purposes and objectives” pre-emption jurisprudence. Under this approach, the Court routinely invalidates state laws based on perceived conflicts with broad federal policy objectives, legislative history, or generalized notions of congressional purposes that are not embodied within the text of federal law. Because implied pre-emption doctrines that wander far from the statutory text are inconsistent with the Constitution, I concur only in the judgment. I A    In order “to ensure the protection of our fundamental liberties,” Atascadero State Hospital v. Scanlon , 473 U. S. 234 , 242 (1985) (internal quotation marks omitted), the “Constitution establishes a system of dual sovereignty between the States and the Federal Government.” Gregory v. Ashcroft , 501 U. S. 452 , 457 (1991). The Framers adopted this “ ‘constitutionally mandated balance of power,’ ” Atascadero State Hospital , supra , at 242, to “reduce the risk of tyranny and abuse from either front,” because a “federalist structure of joint sovereigns preserves to the people numerous advantages,” such as “a decentralized government that will be more sensitive to the diverse needs of a heterogeneous society” and “increase[d] opportunity for citizen involvement in democratic processes,” Gregory , supra , at 458 . Furthermore, as the Framers observed, the “compound republic of America” provides “a double security … to the rights of the people” because “the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.” The Federalist No. 51, p. 266 (M. Beloff ed., 2d ed. 1987).    Under this federalist system, “the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause.” Tafflin v. Levitt , 493 U. S. 455 , 458 (1990). In this way, the Supremacy Clause gives the Federal Government “a decided advantage in [a] delicate balance” between federal and state sovereigns. Gregory , 501 U. S., at 460. “As long as it is acting within the powers granted it under the Constitution, Congress may impose its will on the States.” Ibid. That is an “extraordinary power in a federalist system.” Ibid. Nonetheless, the States retain substantial sovereign authority. U. S. Const., Amdt. 10 (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”); see also Alden v. Maine , 527 U. S. 706 , 713 (1999); Printz v. United States , 521 U. S. 898 , 918–922 (1997); New York v. United States , 505 U. S. 144 , 155–156 (1992); Gregory , supra , at 457–459; Tafflin , supra , at 458. In accordance with the text and structure of the Constitution, “[t]he powers delegated by the proposed constitution to the federal government, are few and defined” and “[t]hose which are to remain in the state governments, are numerous and indefinite.” The Federalist No. 45, at 237–238. Indeed, in protecting our constitutional government, “the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government.” Texas v. White , 7 Wall. 700, 725 (1869), quoted in New York v. United States, supra , at 162.    As a result, in order to protect the delicate balance of power mandated by the Constitution, the Supremacy Clause must operate only in accordance with its terms. The clause provides: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Art. VI, cl. 2. With respect to federal laws, then, the Supremacy Clause gives “supreme” status only to those that are “made in Pursuance” of “[t]his Constitution.” Ibid.; see 3 J. Story, Commentaries on the Constitution of the United States §1831, p. 694 (1833) (hereinafter Story) (“It will be observed, that the supremacy of the laws is attached to those only, which are made in pursuance of the constitution”).    Federal laws “made in Pursuance” of the Constitution must comply with two key structural limitations in the Constitution that ensure that the Federal Government does not amass too much power at the expense of the States. The first structural limitation, which the parties have not raised in this case, is “the Constitution’s conferral upon Congress of not all governmental powers, but only discrete, enumerated ones.” Printz , supra , at 919; see also United States v. Morrison , 529 U. S. 598 , 618, n. 8 (2000); New York v. United States, supra , at 155–157; McCulloch v. Maryland , 4 Wheat. 316, 405 (1819) (“This government is acknowledged by all to be one of enumerated powers”).[ Footnote 1 ]    The second structural limitation is the complex set of procedures that Congress and the President must follow to enact “Laws of the United States.” See INS v. Chadha , 462 U. S. 919 , 945–946 (1983) (setting forth the Constitution’s Bicameral and Presentment Clauses, Art. I, §7, cls. 2–3, which “prescribe and define the respective functions of the Congress and of the Executive in the legislative process”). “[T]he Framers were acutely conscious that the bicameral requirement and the Presentment Clauses would serve essential constitutional functions,” Chadha , 462 U. S., at 951, by allowing the passage of legislation only after it has proceeded through “a step-by-step, deliberate and deliberative process,” id., at 959, that was “finely wrought and exhaustively considered” by the Framers, id. , at 951. The Supremacy Clause thus requires that pre-emptive effect be given only those to federal standards and policies that are set forth in, or necessarily follow from, the statutory text that was produced through the constitutionally required bicameral and presentment procedures. See 3 J. Story §1831, at 694 (Actions of the Federal Government “which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies,” are not “the supreme law of the land. They will be merely acts of usurpation, and will deserve to be treated as such”). B    In light of these constitutional principles, I have become “increasing[ly] reluctan[t] to expand federal statutes beyond their terms through doctrines of implied pre-emption.” Bates v. Dow Agrosciences LLC , 544 U. S. 431 , 459 (2005) (Thomas, J., concurring in judgment in part and dissenting in part). My review of this Court’s broad implied pre-emption precedents, particularly its “purposes and objectives” pre-emption jurisprudence, has increased my concerns that implied pre-emption doctrines have not always been constitutionally applied. Under the vague and “potentially boundless” doctrine of “purposes and objectives” pre-emption, Geier v. American Honda Motor Co. , 529 U. S. 861 , 907 (2000) (Stevens, J., dissenting), for example, the Court has pre-empted state law based on its interpretation of broad federal policy objectives, legislative history, or generalized notions of congressional purposes that are not contained within the text of federal law. See, e.g. , Pharmaceutical Research and Mfrs. of America v. Walsh , 538 U. S. 644 , 678 (2003) (Thomas, J., concurring in judgment) (referring to the “concomitant danger of invoking obstacle pre-emption based on the arbitrary selection of one purpose to the exclusion of others”); Crosby v. National Foreign Trade Council , 530 U. S. 363 , 388–391 (2000) (Scalia, J., concurring in judgment) (criticizing the majority’s reliance on legislative history to discern statutory intent when that intent was “perfectly obvious on the face of th[e] statute”); Geier , supra , at 874–883 (relying on regulatory history, agency comments, and the Government’s litigating position to determine that federal law pre-empted state law).    Congressional and agency musings, however, do not satisfy the Art. I, §7 requirements for enactment of federal law and, therefore, do not pre-empt state law under the Supremacy Clause. When analyzing the pre-emptive effect of federal statutes or regulations validly promulgated thereunder, “[e]vidence of pre-emptive purpose [must be] sought in the text and structure of the [provision] at issue” to comply with the Constitution. CSX Transp., Inc. v. Easterwood , 507 U. S. 658 , 664 (1993); see also New York v. FERC , 535 U. S. 1 , 18 (2002) (“[A] federal agency may pre-empt state law only when and if it is acting within the scope of its congressional delegated authority … [for] an agency literally has no power to act, let alone pre-empt the validly enacted legislation of a sovereign State, unless and until Congress confers power upon it” (internal quotation marks omitted; second alteration in original)); Camps Newfound/Owatonna, Inc. v. Town of Harrison , 520 U. S. 564 , 617 (1997) (Thomas, J., dissenting) (noting that “treating unenacted congressional intent as if it were law would be constitutionally dubious”). Pre-emption analysis should not be “a freewheeling judicial inquiry into whether a state statute is in tension with federal objectives, but an inquiry into whether the ordinary meanings of state and federal law conflict.” Bates , supra , at 459 (Thomas, J., concurring in judgment in part and dissenting in part) (internal quotation marks and citation omitted); see also Geier , supra , at 911 (Stevens., J., dissenting) (“[P]re-emption analysis is, or at least should be, a matter of precise statutory [or regulatory] construction rather than an exercise in free-form judicial policymaking” (internal quotation marks omitted)). Pre-emption must turn on whether state law conflicts with the text of the relevant federal statute or with the federal regulations authorized by that text. See Foster v. Love , 522 U. S. 67 , 71 (1997) (finding that conflict pre-emption question “turn[ed] entirely on the meaning of the state and federal statutes” at issue before the Court); see also New York v. FERC, supra , at 19. II    This Court has determined that there are two categories of conflict pre-emption, both of which Wyeth contends are at issue in this case. First, the Court has found pre-emption “where compliance with both federal and state regulations is a physical impossibility for one engaged in interstate commerce.” Florida Lime & Avocado Growers, Inc. v. Paul , 373 U. S. 132 , 142–143 (1963). Second, the Court has determined that federal law pre-empts state law when, “under the circumstances of [a] particular case, [state] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz , 312 U. S. 52 , 67 (1941).[ Footnote 2 ] A    Wyeth first contends that “it would have been impossible for it to comply with the state-law duty to modify Phenergan’s labeling without violating federal law.” Ante , at 6 (opinion for the Court by Stevens, J.). But, as the majority explains, the text of the relevant federal statutory provisions and the corresponding regulations do not directly conflict with the state-law judgment before us.    This Court has used different formulations of the standard to be used in deciding whether state and federal law conflict, and thus lead to pre-emption, under the “impossibility” doctrine. See, e.g. , Geier , supra , at 873 (“a case in which state law penalizes what federal law requires”); American Telephone & Telegraph Co. v. Central Office Telephone, Inc. , 524 U. S. 214 , 227 (1998) (AT&T) (when state-law claims “directly conflict” with federal law), cited in Geier , supra , at 874 (describing AT&T as a “cas[e] involving impossibility”); Florida Lime & Avocado Growers , supra, at 142–143 (“where compliance with both federal and state regulations is a physical impossibility”). The Court has generally articulated a very narrow “impossibility standard,” see Crosby , 530 U. S., at 372–373 (citing Florida Lime & Avocado Growers , supra , at 142–143); see also Sprietsma v. Mercury Marine , 537 U. S. 51 , 64–65 (2002); United States v. Locke , 529 U. S. 89 , 109 (2000)—in part because the overly broad sweep of the Court’s “purposes and objectives” approach, see infra, at 13–23, has rendered it unnecessary for the Court to rely on “impossibility” pre-emption.    The Court, in fact, has not explained why a narrow “physical impossibility” standard is the best proxy for determining when state and federal laws “directly conflict” for purposes of the Supremacy Clause. There could be instances where it is not “physically impossible” to comply with both state and federal law, even when the state and federal laws give directly conflicting commands. See Nelson, Preemption, 86 Va. L. Rev. 225, 260–261 (2000). For example, if federal law gives an individual the right to engage in certain behavior that state law prohibits, the laws would give contradictory commands notwithstanding the fact that an individual could comply with both by electing to refrain from the covered behavior. Ibid . Therefore, “physical impossibility” may not be the most appropriate standard for determining whether the text of state and federal laws directly conflict. See ibid. (concluding that the Supremacy Clause does not limit direct conflicts to cases with “physically impossible” conflicts and arguing that evidence from the Founding supports a standard of “logical-contradiction”); see also AT&T , supra, at 227 (requiring that the state-law claims “directly conflict” with federal law); 3 Story §1836, at 701 (suggesting instead that a state law is pre-empted by the Supremacy Clause when it is “ repugnant to the constitution of the United States” (emphasis added)).    Nonetheless, whatever the precise constitutional contours of implied pre-emption may be, I am satisfied that it does not operate against respondent’s judgment below. The text of the federal laws at issue do not require that the state-court judgment at issue be pre-empted, under either the narrow “physical impossibility” standard, Florida Lime & Avocado Growers , supra , at 142–143, or a more general “direc[t] conflict” standard, AT&T , supra, at 227.    Under the FDA’s “changes being effected” regulation, 21 CFR §314.70(c)(6)(iii), which was promulgated pursuant to the FDA’s statutory authority, it is physically possible for Wyeth to market Phenergan in compliance with federal and Vermont law. As the majority explains, Wyeth could have changed the warning on its label regarding IV-push without violating federal law. See ante , at 11–13. The “changes being effected” regulation allows drug manufacturers to change their labels without the FDA’s preapproval if the changes “add or strengthen a contraindication, warning, precaution, or adverse reaction,” §314.70(c)(6)(iii)(A), or “add or strengthen an instruction about dosage and administration that is intended to increase the safe use of the drug product,” §314.70(c)(6)(iii)(C), in order to “reflect newly acquired information,” including “new analyses of previously submitted data,” 73 Fed. Reg. 49603, 49609. Under the terms of these regulations, after learning of new incidences of gangrene-induced amputation resulting from the IV-push administration of Phenergan, see ante , at 12–13, federal law gave Wyeth the authority to change Phenergan’s label to “strengthen a … warning,” “strengthen a … precaution,” §314.70(c)(6)(iii)(A), or to “strengthen an instruction about … administration [of the IV-push method] … to increase the safe use of the drug product,” §314.70(c)(6)(iii)(C). Thus, it was physically possible for Wyeth to comply with a state-law requirement to provide stronger warnings on Phenergan about the risks of the IV-push administration method while continuing to market Phenergan in compliance with federal law.    In addition, the text of the statutory provisions governing FDA drug labeling, and the regulations promulgated thereunder, do not give drug manufacturers an unconditional right to market their federally approved drug at all times with the precise label initially approved by the FDA. Thus, there is no “direct conflict” between the federal labeling law and the state-court judgment. The statute prohibits the interstate marketing of any drug, except for those that are federally approved. See 21 U. S. C. §355(a) (“ No person shall introduce or deliver for introduction into interstate commerce any new drug, unless an approval of an application filed pursuant to subsection (b) or (j) of this section is effective with respect to such drug” (emphasis added)). To say, as the statute does, that Wyeth may not market a drug without federal approval ( i.e. , without an FDA-approved label) is not to say that federal approval gives Wyeth the unfettered right, for all time, to market its drug with the specific label that was federally approved. Initial approval of a label amounts to a finding by the FDA that the label is safe for purposes of gaining federal approval to market the drug. It does not represent a finding that the drug, as labeled, can never be deemed unsafe by later federal action, or as in this case, the application of state law.    Instead, FDA regulations require a drug manufacturer—after initial federal approval of a drug’s label—to revise the federally approved label “to include a warning as soon as there is reasonable evidence of an association of a serious hazard with a drug.” 21 CFR §201.80(e). Drug manufacturers are also required to “establish and maintain records and make reports” to the FDA about “[a]ny adverse event associated with the use of a drug in humans, whether or not considered drug related,” after it has received federal approval. §§314.80(a), (c), (j). In addition, the manufacturer must make periodic reports about “adverse drug experience[s]” associated with its drug and include “a history of actions taken since the last report because of adverse drug experiences (for example, labeling changes or studies initiated).” §§314.80(c)(2)(i)–(ii). When such records and reports are not made, the FDA can withdraw its approval of the drug. §314.80(j); see also 21 U. S. C. §355(e) (“The Secretary may … withdraw the approval of an application … if the Secretary finds … that the applicant has failed to establish a system for maintaining required records, or has repeatedly or deliberately failed to maintain such records or to make required reports”). The FDA may also determine that a drug is no longer safe for use based on “clinical or other experience, tests, or other scientific data.” Ibid. (approval may be withdrawn if “the Secretary finds … that clinical or other experience, tests, or other scientific data show that such drug is unsafe for use under the conditions of use upon the basis of which the application was approved”).    The text of the statutory provisions and the accompanying regulatory scheme governing the FDA drug approval process, therefore, establish that the FDA’s initial approval of a drug is not a guarantee that the drug’s label will never need to be changed. And nothing in the text of the statutory or regulatory scheme necessarily insulates Wyeth from liability under state law simply because the FDA has approved a particular label.    In sum, the relevant federal law did not give Wyeth a right that the state-law judgment took away, and it was possible for Wyeth to comply with both federal law and the Vermont-law judgment at issue here. The federal statute and regulations neither prohibited the stronger warning label required by the state judgment, nor insulated Wyeth from the risk of state-law liability. With no “direct conflict” between the federal and state law, then, the state-law judgment is not pre-empted. Cf. AT&T , 524 U. S., at 221–226 (finding pre-emption where federal law forbade common carriers from extending communications privileges requested by state-law claims); Foster , 522 U. S., at 68–69 (finding pre-emption where the federal statute required congressional elections on a particular date different from that provided by state statute). B    Wyeth also contends that state and federal law conflict because “recognition of [this] state tort action creates an unacceptable ‘obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’ Hines v. Davidowitz , 312 U. S. 52 , 67 (1941), because it substitutes a lay jury’s decision about drug labeling for the expert judgment of the FDA.” Ante , at 6–7. This Court’s entire body of “purposes and objectives” pre-emption jurisprudence is inherently flawed. The cases improperly rely on legislative history, broad atextual notions of congressional purpose, and even congressional inaction in order to pre-empt state law. See supra , at 5–7. I, therefore, cannot join the majority’s analysis of this claim, see ante , at 17–25, or its reaffirmation of the Court’s “purposes and objectives” jurisprudence, ante , at 17–18 (analyzing congressional purposes); ante , at 20 (quoting the “ ‘purposes and objectives’ ” pre-emption standard from Hines v. Davidowitz , 312 U. S. 52 , 67 (1941), and Geier , 529 U. S., at 883); ante , at 23–24, and nn. 13–14 (analyzing this case in light of Geier , 529 U. S. 861 ). 1    The Court first formulated its current “purposes and objectives” pre-emption standard in Hines when it considered whether the federal Alien Registration Act pre-empted an Alien Registration Act adopted by the Commonwealth of Pennsylvania. The Court did not find that the two statutes, by their terms, directly conflicted. See Hines , supra , at 59–60, and n. 1 (citing Pa. Stat. Ann., Tit. 35, §§1801–1806 (Purdon Supp. 1940)); 312 U. S., at 60, and n. 5 (citing Act of June 28, 1940, 54 Stat. 670); 312 U. S., at 69–74 (analyzing numerous extratextual sources and finding pre-emption without concluding that the terms of the federal and state laws directly conflict); see also id ., at 78 (noting that “[i]t is conceded that the federal act in operation does not at any point conflict with the state statute” (Stone, J., dissenting)).[ Footnote 3 ] Nonetheless, the Court determined that it was not confined to considering merely the terms of the relevant federal law in conducting its pre-emption analysis. Rather, it went on to ask whether the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. , at 67.    In so doing, the Court looked far beyond the relevant federal statutory text and instead embarked on its own freeranging speculation about what the purposes of the federal law must have been. See id., at 69–74. In addition to the meaning of the relevant federal text, the Court attempted to discern “[t]he nature of the power exerted by Congress, the object sought to be attained, and the character of the obligations imposed by the law.” Id. , at 70. To do so, the Court looked in part to public sentiment, noting that “[o]pposition to laws … singling out aliens as particularly dangerous and undesirable groups, is deep-seated in this country.” Ibid. The Court also relied on statements by particular Members of Congress and on congressional inaction, finding it pertinent that numerous bills with requirements similar to Pennsylvania’s law had failed to garner enough votes in Congress to become law. Id. , at 71–73, and nn. 32–34. Concluding that these sources revealed a federal purpose to “protect the personal liberties of law-abiding aliens through one uniform national registration system,” the Court held that the Pennsylvania law was pre-empted. Id. , at 74.    Justice Stone, in dissent, questioned the majority’s decision to read an exclusive registration system for aliens into a statute that did not specifically provide such exclusivity. See id. , at 75. He noted his concern that state power would be improperly diminished through a pre-emption doctrine driven by the Court’s “own conceptions of a policy which Congress ha[d] not expressed and which is not plainly to be inferred from the legislation which it ha[d] enacted.” Ibid. In his view, nothing that Congress enacted had “denie[d] the states the practicable means of identifying their alien residents and of recording their whereabouts.” Id. , at 78. Yet, the Hines majority employed pre-emption to override numerous state alien-registration laws even though enacted federal law “at no point conflict[ed] with the state legislation and [was] harmonious with it.” Id. , at 79.[ Footnote 4 ] 2    The consequences of this Court’s broad approach to “purposes and objectives” pre-emption are exemplified in this Court’s decision in Geier , which both the majority and the dissent incorporate into their analysis today. See ante , at 23–24, and nn. 13–14; post , at 6–9 (opinion of Alito, J.). In Geier , pursuant to the National Traffic and Motor Vehicle Safety Act of 1966 (Safety Act), 80 Stat. 718, 15 U. S. C. §1381 et seq. (1988 ed.), the Department of Transportation (DOT) had promulgated a Federal Motor Vehicle Safety Standard that “required auto manufacturers to equip some but not all of their 1987 vehicles with passive restraints.” 529 U. S., at 864–865. The case required this Court to decide whether the Safety Act pre-empted a state common-law tort action in which the plaintiff claimed that an auto manufacturer, though in compliance with the federal standard, should nonetheless have equipped a 1987 automobile with airbags. Id. , at 865. The Court first concluded that the Safety Act’s express pre-emption provision and its saving clause, read together, did not expressly pre-empt state common-law claims. See id. , at 867–868.[ Footnote 5 ] The Court then proceeded to consider whether the state action was nonetheless pre-empted as an “obstacle” to the purposes of the federal law. The Court held that the state tort claim was pre-empted, relying in large part on comments that DOT made when promulgating its regulation, statements that the Government made in its brief to the Court, and regulatory history that related to the federal regulation of passive restraints. See id. , at 874–886.    In particular, the majority found that DOT intended to “deliberately provid[e] the manufacturer[s] with a range of choices among different passive restraint devices” and to “bring about a mix of different devices introduced gradually over time,” based on comments that DOT made when promulgating its regulation, rather than the Safety Act’s text. Id. , at 875. The majority also embarked on a judicial inquiry into “why and how DOT sought these objectives,” ibid. , by considering regulatory history and the Government’s brief, which described DOT’s safety standard as “ ‘embod[ying] the Secretary’s policy judgment that safety would best be promoted if manufacturers installed alternative protection systems in their fleets rather than one particular system in every car,’ ” id. , at 881 (quoting Brief for United States as Amicus Curiae in Geier v. American Honda Motor Co. , O. T. 1999, No. 98–1811, p. 25); see also 529 U. S., at 883–884. Based on this “ ex post administrative litigating position and inferences from regulatory history and final commentary,” id. , at 910–911 (Stevens., J., dissenting), the Court found that the state action was pre-empted because it would have required manufacturers of all cars similar to that in which the plaintiff was injured to “install airbags rather than other passive restraint systems” and would have, therefore, “presented an obstacle to the variety and mix of devices that the federal regulation sought” to phase in gradually, id. , at 881.    The Court’s decision in Geier to apply “purposes and objectives” pre-emption based on agency comments, regulatory history, and agency litigating positions was especially flawed, given that it conflicted with the plain statutory text of the saving clause within the Safety Act, which explicitly preserved state common-law actions by providing that “[c]ompliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law,” 15 U. S. C. §1397(k) (1988 ed.).[ Footnote 6 ] See Engine Mfrs. Assn. v. South Coast Air Quality Management Dist. , 541 U. S. 246 , 252 (2004) (“Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose” (internal quotation marks omitted)); West Virginia Univ. Hospitals, Inc. v. Casey , 499 U. S. 83 , 98 (1991) (“The best evidence of th[e] purpose [of a statute] is the statutory text adopted by both Houses of Congress and submitted to the President”). In addition, the Court’s reliance on its divined purpose of the federal law—to gradually phase in a mix of passive restraint systems—in order to invalidate a State’s imposition of a greater safety standard was contrary to the more general express statutory goal of the Safety Act “to reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents,” 15 U. S. C. §1381 (1988 ed.). This Court has repeatedly stated that when statutory language is plain, it must be enforced according to its terms. See Jimenez v. Quarterman , 555 U. S. ___ (2009); see also, e.g. , Dodd v. United States , 545 U. S. 353 , 359 (2005); Lamie v. United States Trustee , 540 U. S. 526 , 534 (2004); Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A. , 530 U. S. 1 , 6 (2000). The text in Geier “directly addressed the precise question at issue” before the Court, so that should have been “the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” National Assn. of Home Builders v. Defenders of Wildlife , 551 U. S. 644 , ___ (2007) (slip op., at 18) (2007) (internal quotation marks omitted). With text that allowed state actions like the one at issue in Geier , the Court had no authority to comb through agency commentaries to find a basis for an alternative conclusion.    Applying “purposes and objectives” pre-emption in Geier , as in any case, allowed this Court to vacate a judgment issued by another sovereign based on nothing more than assumptions and goals that were untethered from the constitutionally enacted federal law authorizing the federal regulatory standard that was before the Court. See Watters v. Wachovia Bank, N. A. , 550 U. S. 1 , 44 (2007) (Stevens, J., dissenting) (noting that pre-emption “affects the allocation of powers among sovereigns”). “ ‘[A]n agency literally has no power to act, let alone pre-empt the [law] of a sovereign State, unless and until Congress confers power upon it.’ ” New York v. FERC , 535 U. S., at 18 (quoting Louisiana Pub. Serv. Comm’n v. FCC , 476 U. S. 355 , 374 (1986)). Thus, no agency or individual Member of Congress can pre-empt a State’s judgment by merely musing about goals or intentions not found within or authorized by the statutory text. See supra , at 5–7.    The Court’s “purposes and objectives” pre-emption jurisprudence is also problematic because it encourages an overly expansive reading of statutory text. The Court’s desire to divine the broader purposes of the statute before it inevitably leads it to assume that Congress wanted to pursue those policies “at all costs”—even when the text reflects a different balance. See Geier , supra , at 904 (Stevens, J., dissenting) (finding no evidence to support the notion that the DOT Secretary intended to advance the purposes of the safety standard “at all costs”); Nelson, 86 Va. L. Rev., at 279–280. As this Court has repeatedly noted, “ ‘it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.’ ” E.g. , Norfolk Southern R. Co. v. Sorrell , 549 U. S. 158 , 171 (2007) (quoting Rodriguez v. United States , 480 U. S. 522 , 526 (1987) (per curiam) ). Federal legislation is often the result of compromise between legislators and “groups with marked but divergent interests.” See Ragsdale v. Wolverine World Wide, Inc. , 535 U. S. 81 , 93–94 (2002). Thus, a statute’s text might reflect a compromise between parties who wanted to pursue a particular goal to different extents. See, e.g. , ibid. (noting that the Family and Medical Leave Act’s provision of only 12 workweeks of yearly leave “was the result of compromise” that must be given effect by courts); Silkwood v. Kerr-McGee Corp. , 464 U. S. 238 , 257 (1984) (finding that a state law was not pre-empted though it allegedly frustrated a primary purpose of the Atomic Energy Act because the Act provided that its purpose was to be furthered only “to the extent it is consistent ‘with the health and safety of the public’ ” (quoting 42 U. S. C. §2013(d) (1982 ed.))); see also Manning, What Divides Textualists from Purposivists? 106 Colum. L. Rev. 70, 104 (2006) (“Legislators may compromise on a statute that does not fully address a perceived mischief, accepting half a loaf to facilitate a law’s enactment”). Therefore, there is no factual basis for the assumption underlying the Court’s “purposes and objectives” pre-emption jurisprudence that every policy seemingly consistent with federal statutory text has necessarily been authorized by Congress and warrants pre-emptive effect. Instead, our federal system in general, and the Supremacy Clause in particular, accords pre-emptive effect to only those policies that are actually authorized by and effectuated through the statutory text. 3    The majority, while reaching the right conclusion in this case, demonstrates once again how application of “purposes and objectives” pre-emption requires inquiry into matters beyond the scope of proper judicial review. For example, the majority relies heavily on Congress’ failure “during the … 70-year history” of the federal Food, Drug, and Cosmetic Act to enact an express pre-emption provision that addresses approval of a drug label by the FDA. Ante , at 18. That “silence on the issue, coupled with [Congress’] certain awareness of the prevalence of state tort litigation,” the majority reasons, is evidence that Congress did not intend for federal approval of drug labels to pre-empt state tort judgments. Ibid.; see also ante , at 17–18 (construing from inaction that Congress “[e]vidently [had] determined that widely available state rights of action provided appropriate relief”). Certainly, the absence of a statutory provision pre-empting all state tort suits related to approved federal drug labels is pertinent to a finding that such lawsuits are not pre-empted. But the relevance is in the fact that no statute explicitly pre-empts the lawsuits, and not in any inferences that the Court may draw from congressional silence about the motivations or policies underlying Congress’ failure to act. See Brown v. Gardner , 513 U. S. 115 , 121 (1994) (“[C]ongressional silence lacks persuasive significance” (internal quotation marks omitted)); O’Melveny & Myers v. FDIC , 512 U. S. 79 , 85 (1994) (“[M]atters left unaddressed in [a comprehensive and detailed federal] scheme are presumably left subject to the disposition provided by state law”); Camps Newfound , 520 U. S., at 616 (“[O]ur pre-emption jurisprudence explicitly rejects the notion that mere congressional silence on a particular issue may be read as pre-empting state law”).    In this case, the majority has concluded from silence that Congress believed state lawsuits pose no obstacle to federal drug-approval objectives. See ante, at 18. That is the required conclusion, but only because it is compelled by the text of the relevant statutory and regulatory provisions, not judicial suppositions about Congress’ unstated goals. The fact that the Court reaches the proper conclusion does not justify its speculation about the reasons for congressional inaction. In this case, the Court has relied on the perceived congressional policies underlying inaction to find that state law is not pre-empted. But once the Court shows a willingness to guess at the intent underlying congressional inaction, the Court could just as easily rely on its own perceptions regarding congressional inaction to give unduly broad pre-emptive effect to federal law. See, e.g. , American Ins. Assn. v. Garamendi , 539 U. S. 396 , 401, 405–408, 429 (2003) (finding that Congress’ failure to pass legislation indicating that it disagreed with the President’s executive agreement supported, at least in part, the Court’s determination that the agreement pre-empted state law). Either approach is illegitimate. Under the Supremacy Clause, state law is pre-empted only by federal law “made in Pursuance” of the Constitution, Art. VI, cl. 2—not by extratextual considerations of the purposes underlying congressional inaction. See Hoffman v. Connecticut Dept. of Income Maintenance , 492 U. S. 96 , 104 (1989) (plurality opinion) (finding that policy arguments that “are not based in the text of the statute … are not helpful”); TVA v. Hill , 437 U. S. 153 , 194 (1978) (“Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute”). Our role, then, is merely “to interpret the language of the statute[s] enacted by Congress.” Barnhart v. Sigmon Coal Co. , 534 U. S. 438 , 461 (2002). III    The origins of this Court’s “purposes and objectives” pre-emption jurisprudence in Hines , and its broad application in cases like Geier , illustrate that this brand of the Court’s pre-emption jurisprudence facilitates freewheeling, extratextual, and broad evaluations of the “purposes and objectives” embodied within federal law. This, in turn, leads to decisions giving improperly broad pre-emptive effect to judicially manufactured policies, rather than to the statutory text enacted by Congress pursuant to the Constitution and the agency actions authorized thereby. Because such a sweeping approach to pre-emption leads to the illegitimate—and thus, unconstitutional—invalidation of state laws, I can no longer assent to a doctrine that pre-empts state laws merely because they “stan[d] as an obstacle to the accomplishment and execution of the full purposes and objectives” of federal law, Hines , 312 U. S., at 67, as perceived by this Court. I therefore respectfully concur only in the judgment. Footnote 1 This structural limitation may be implicated in a pre-emption case if the federal law at issue is beyond the scope of Congress’ enumerated powers. Expansion of congressional power through an “increasingly generous … interpretation of the commerce power of Congress,” for example, creates “a real risk that Congress will gradually erase the diffusion of power between State and Nation on which the Framers based their faith in the efficiency and vitality of our Republic.” Garcia v. San Antonio Metropolitan Transit Authority , 469 U. S. 528 , 583–584 (1985) (O’Connor, J., dissenting); see also Marbury v. Madison , 1 Cranch 137, 176 (1803) (“The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written”). Footnote 2 The majority’s pre-emption analysis relies in part on a presumption against pre-emption. Ante , at 8, and n. 3 (opinion of Stevens, J.). Because it is evident from the text of the relevant federal statutes and regulations themselves that the state-law judgment below is not pre-empted, it is not necessary to decide whether, or to what extent, the presumption should apply in a case such as this one, where Congress has not enacted an express-pre-emption clause. Cf. Altria Group, Inc. v. Good , 555 U. S. ___, ___ (2008) (Thomas, J., dissenting) (rejecting the use of a presumption against pre-emption in express pre-emption cases). Footnote 3 According to the Court, the Pennsylvania Act required:    “every alien 18 years or over, with certain exceptions, to register once each year; provide such information as is required by the statute, plus any ‘other information and details’ that the Department of Labor and Industry may direct; pay $1 as an annual registration fee; receive an alien identification card and carry it at all times; show the card whenever it may be demanded by any police officer or any agent of the Department of Labor and Industry; and exhibit the card as a condition precedent to registering a motor vehicle in his name or obtaining a license to operate one. … Nonexempt aliens who fail to register are subject to a fine … or imprisonment … . For failure to carry an identification card or for failure to show it upon proper demand, the punishment is a fine … or imprisonment … .” Hines , 312 U. S., at 59–60 (footnote omitted).    The Court explained that the federal Alien Registration Act required:    “a single registration of aliens 14 years of age and over; detailed information specified by the Act, plus ‘such additional matters as may be prescribed by the Commissioner, with the approval of the Attorney General’; finger-printing of all registrants; and secrecy of the federal files … . No requirement that aliens carry a registration card to be exhibited to police or others is embodied in the law, and only the wilful failure to register is made a criminal offense … .” Id. , at 60–61. Footnote 4 According to Justice Stone, the Hines majority’s analysis resembled an inquiry into whether the federal act “ ‘occupied the field,’ ” rather than an application of simple conflict pre-emption principles. Id. , at 78 (dissenting opinion). Regardless of whether Hines involved field or conflict pre-emption, the dissent accurately observed that in assessing the boundaries of the federal law— i.e. , the scope of its pre-emptive effect—the Court should look to the federal statute itself, rather than speculate about Congress’ unstated intentions. Id. , at 78–79. See also Camps Newfound/Owatonna, Inc. v. Town of Harrison , 520 U. S. 564 , 616–617 (1997) (Thomas, J., dissenting) (noting that “field pre-emption is itself suspect, at least as applied in the absence of a congressional command that a particular field be pre-empted”). Footnote 5 The Safety Act’s express pre-emption provision stated in part:    “Whenever a Federal motor vehicle safety standard established under this subchapter is in effect, no State … shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment[,] any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard.” 15 U. S. C. §1392(d) (1988 ed.).    The Safety Act also included a saving clause, which stated: “Compliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law.” §1397(k). The majority and dissent in Geier agreed that the import of the express pre-emption provision and the saving clause, read together, was that by its terms, the Safety Act did not expressly pre-empt state common-law actions. See Geier , 529 U. S., at 867–868; id. , at 895–898 (Stevens, J., dissenting). Footnote 6 In addition to the impropriety of looking beyond the plain text of the saving clause to regulatory history, DOT comments, and an administrative litigating position to evaluate the Safety Act’s pre-emptive effect, it is unclear that the Court in Geier accurately assessed the federal objectives of the relevant federal law. As the dissent in Geier pointed out, the purpose of the Safety Act, as stated by Congress, was generally “ ‘to reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents.’ ” Id. , at 888–889 (opinion of Stevens, J.) (quoting 15 U. S. C. §1381 (1988 ed.)). On its face, that goal is of course consistent with a state-law judgment that a particular vehicle needed a passive restraint system that would better protect persons from death and injury during traffic accidents. Furthermore, the dissent observed that “by definition all of the standards established under the Safety Act … impose minimum, rather than fixed or maximum, requirements.” 529 U. S., at 903 (citing 15 U. S. C. §1391(2) (1988 ed.)). Thus, in the dissent’s view, the requirements of the DOT regulation were not ceilings, and it was “obvious that the Secretary favored a more rapid increase” than required by the regulations. 529 U. S., at 903. That goal also would be consistent with a state-law judgment finding that a manufacturer acted negligently when it failed to include an airbag in a particular car. See id. , at 903–904. ALITO, J., DISSENTING WYETH V. LEVINE 555 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 06-1249 WYETH, PETITIONER v. DIANA LEVINE on writ of certiorari to the supreme court of vermont [March 4, 2009]    Justice Alito, with whom The Chief Justice and Justice Scalia join, dissenting.    This case illustrates that tragic facts make bad law. The Court holds that a state tort jury, rather than the Food and Drug Administration (FDA), is ultimately responsible for regulating warning labels for prescription drugs. That result cannot be reconciled with Geier v. American Honda Motor Co. , 529 U. S. 861 (2000), or general principles of conflict pre-emption. I respectfully dissent. I    The Court frames the question presented as a “narro[w]” one—namely, whether Wyeth has a duty to provide “an adequate warning about using the IV-push method” to administer Phenergan. Ante , at 8. But that ignores the antecedent question of who—the FDA or a jury in Vermont—has the authority and responsibility for determining the “adequacy” of Phenergan’s warnings. Moreover, it is unclear how a “stronger” warning could have helped respondent, see ante , at 16; after all, the physician’s assistant who treated her disregarded at least six separate warnings that are already on Phenergan’s labeling, so respondent would be hard pressed to prove that a seventh would have made a difference.[ Footnote 1 ]    More to the point, the question presented by this case is not a “narrow” one, and it does not concern whether Phenergan’s label should bear a “stronger” warning. Rather, the real issue is whether a state tort jury can countermand the FDA’s considered judgment that Phenergan’s FDA-mandated warning label renders its intravenous (IV) use “safe.” Indeed, respondent’s amended complaint alleged that Phenergan is “not reasonably safe for intravenous administration,” App. 15, ¶6; respondent’s attorney told the jury that Phenergan’s label should say, “ ‘Do not use this drug intravenously,’ ” id. , at 32; respondent’s expert told the jury, “I think the drug should be labeled ‘Not for IV use,’ ” id. , at 59; and during his closing argument, respondent’s attorney told the jury, “Thank God we don’t rely on the FDA to … make the safe[ty] decision. You will make the decision. … The FDA doesn’t make the decision, you do,” id. , at 211–212.[ Footnote 2 ]    Federal law, however, does rely on the FDA to make safety determinations like the one it made here. The FDA has long known about the risks associated with IV push in general and its use to administer Phenergan in particular. Whether wisely or not, the FDA has concluded—over the course of extensive, 54-year-long regulatory proceedings—that the drug is “safe” and “effective” when used in accordance with its FDA-mandated labeling. The unfortunate fact that respondent’s healthcare providers ignored Phenergan’s labeling may make this an ideal medical-malpractice case.[ Footnote 3 ] But turning a common-law tort suit into a “frontal assault” on the FDA’s regulatory regime for drug labeling upsets the well-settled meaning of the Supremacy Clause and our conflict pre-emption jurisprudence. Brief for United States as Amicus Curiae 21. II A    To the extent that “[t]he purpose of Congress is the ultimate touchstone in every pre-emption case,” Medtronic, Inc. v. Lohr , 518 U. S. 470 , 485 (1996) (internal quotation marks omitted), Congress made its “purpose” plain in authorizing the FDA—not state tort juries—to determine when and under what circumstances a drug is “safe.” “[T]he process for approving new drugs is at least as rigorous as the premarket approval process for medical devices,” Riegel v. Medtronic, Inc. , 552 U. S. ___, ___ (2008) (slip op., at 11) (Ginsburg, J., dissenting), and we held that the latter pre-empted a state-law tort suit that conflicted with the FDA’s determination that a medical device was “safe,” id. , at ___ (slip op., at 11) (opinion of the Court).    Under the Federal Food, Drug, and Cosmetic Act (FDCA), a drug manufacturer may not market a new drug before first submitting a new drug application (NDA) to the FDA and receiving the agency’s approval. See 21 U. S. C. §355(a). An NDA must contain, among other things, “the labeling proposed to be used for such drug,” §355(b)(1)(F), “full reports of investigations which have been made to show whether or not such drug is safe for use and whether such drug is effective in use,” §355(b)(1)(A), and “a discussion of why the benefits exceed the risks [of the drug] under the conditions stated in the labeling,” 21 CFR §314.50(d)(5)(viii) (2008). The FDA will approve an NDA only if the agency finds, among other things, that the drug is “safe for use under the conditions prescribed, recommended, or suggested in the proposed labeling thereof,” there is “substantial evidence that the drug will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the proposed labeling thereof,” and the proposed labeling is not “false or misleading in any particular.” 21 U. S. C. §355(d).    After the FDA approves a drug, the manufacturer remains under an obligation to investigate and report any adverse events associated with the drug, see 21 CFR §314.80, and must periodically submit any new information that may affect the FDA’s previous conclusions about the safety, effectiveness, or labeling of the drug, 21 U. S. C. §355(k). If the FDA finds that the drug is not “safe” when used in accordance with its labeling, the agency “shall” withdraw its approval of the drug. §355(e). The FDA also “shall” deem a drug “misbranded” if “it is dangerous to health when used in the dosage or manner, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof.” §352(j).    Thus, a drug’s warning label “serves as the standard under which the FDA determines whether a product is safe and effective.” 50 Fed. Reg. 7470 (1985). Labeling is “[t]he centerpiece of risk management,” as it “communicates to health care practitioners the agency’s formal, authoritative conclusions regarding the conditions under which the product can be used safely and effectively.” 71 Fed. Reg. 3934 (2006). The FDA has underscored the importance it places on drug labels by promulgating comprehensive regulations—spanning an entire part of the Code of Federal Regulations, see 21 CFR pt. 201, with seven subparts and 70 separate sections—that set forth drug manufacturers’ labeling obligations. Under those regulations, the FDA must be satisfied that a drug’s warning label contains, among other things, “a summary of the essential scientific information needed for the safe and effective use of the drug,” §201.56(1), including a description of “clinically significant adverse reactions,” “other potential safety hazards,” “limitations in use imposed by them, … and steps that should be taken if they occur,” §201.57(c)(6)(i). Neither the FDCA nor its implementing regulations suggest that juries may second-guess the FDA’s labeling decisions. B 1    Where the FDA determines, in accordance with its statutory mandate, that a drug is on balance “safe,” our conflict pre-emption cases prohibit any State from countermanding that determination. See, e.g. , Buckman Co. v. Plaintiffs’ Legal Comm. , 531 U. S. 341 , 348 (2001) (after the FDA has struck “a somewhat delicate balance of statutory objectives” and determined that petitioner submitted a valid application to manufacture a medical device, a State may not use common law to negate it); International Paper Co. v. Ouellette , 479 U. S. 481 , 494 (1987) (after the EPA has struck “the balance of public and private interests so carefully addressed by” the federal permitting regime for water pollution, a State may not use nuisance law to “upse[t]” it); Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co. , 450 U. S. 311 , 321 (1981) (after the Interstate Commerce Commission has struck a “balance” between competing interests in permitting the abandonment of a railroad line, a State may not use statutory or common law to negate it).    Thus, as the Court itself recognizes, it is irrelevant in conflict pre-emption cases whether Congress “enacted an express pre-emption provision at some point during the FDCA’s 70-year history.” Ante , at 18; see also Geier , 529 U. S., at 869 (holding the absence of an express pre-emption clause “does not bar the ordinary working of conflict pre-emption principles”). Rather, the ordinary principles of conflict pre-emption turn solely on whether a State has upset the regulatory balance struck by the federal agency. Id. , at 884–885; see also Chicago & North Western Transp. Co. , supra , at 317 (describing conflict pre-emption as “a two-step process of first ascertaining the construction of the [federal and state laws] and then determining the constitutional question whether they are actually in conflict” (internal quotation marks omitted)). 2    A faithful application of this Court’s conflict pre-emption cases compels the conclusion that the FDA’s 40-year-long effort to regulate the safety and efficacy of Phenergan pre-empts respondent’s tort suit. Indeed, that result follows directly from our conclusion in Geier . Geier arose under the National Traffic and Motor Safety Vehicle Act of 1966, which directs the Secretary of the Department of Transportation (DOT) to “establish by order … motor vehicle safety standards,” 15 U. S. C. §1392(a) (1988 ed.), which are defined as “minimum standard[s] for motor vehicle performance, or motor vehicle equipment performance,” §1391(2). Acting pursuant to that statutory mandate, the Secretary of Transportation promulgated Federal Motor Vehicle Safety Standard 208, which required car manufacturers to include passive restraint systems ( i.e. , devices that work automatically to protect occupants from injury during a collision) in a certain percentage of their cars built in or after 1987. See 49 CFR §571.208 (1999). Standard 208 did not require installation of any particular type of passive restraint; instead, it gave manufacturers the option to install automatic seatbelts, airbags, or any other suitable technology that they might develop, provided the restraint(s) met the performance requirements specified in the rule. Ibid. Alexis Geier drove her 1987 Honda Accord into a tree, and although she was wearing her seatbelt, she nonetheless suffered serious injuries. She then sued Honda under state tort law, alleging that her car was negligently and defectively designed because it lacked a driver’s-side airbag. She argued that Congress had empowered the Secretary to set only “minimum standard[s]” for vehicle safety. 15 U. S. C. §1391(2). She also emphasized that the National Traffic and Motor Safety Vehicle Act contains a saving clause, which provides that “[c]ompliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law.” §1397(k).    Notwithstanding the statute’s saving clause, and notwithstanding the fact that Congress gave the Secretary authority to set only “minimum” safety standards, we held Geier’s state tort suit pre-empted. In reaching that result, we relied heavily on the view of the Secretary of Transportation—expressed in an amicus brief—that Standard 208 “ ‘embodies the Secretary’s policy judgment that safety would best be promoted if manufacturers installed alternative protection systems in their fleets rather than one particular system in every car.’ ” 529 U. S., at 881 (quoting Brief for United States as Amicus Curiae , O. T. 1999, No. 98–1811, p. 25). Because the Secretary determined that a menu of alternative technologies was “safe,” the doctrine of conflict pre-emption barred Geier’s efforts to deem some of those federally approved alternatives “unsafe” under state tort law.    The same rationale applies here. Through Phenergan’s label, the FDA offered medical professionals a menu of federally approved, “safe” and “effective” alternatives—including IV push—for administering the drug. Through a state tort suit, respondent attempted to deem IV push “unsafe” and “ineffective.” To be sure, federal law does not prohibit Wyeth from contraindicating IV push, just as federal law did not prohibit Honda from installing airbags in all its cars. But just as we held that States may not compel the latter, so, too, are States precluded from compelling the former. See also Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta , 458 U. S. 141 , 155 (1982) (“The conflict does not evaporate because the [agency’s] regulation simply permits, but does not compel,” the action forbidden by state law). If anything, a finding of pre-emption is even more appropriate here because the FDCA—unlike the National Traffic and Motor Safety Vehicle Act—contains no evidence that Congress intended the FDA to set only “minimum standards,” and the FDCA does not contain a saving clause.[ Footnote 4 ] See also ante , at 18 (conceding Congress’ “silence” on the issue). III    In its attempt to evade Geier ’s applicability to this case, the Court commits both factual and legal errors. First, as a factual matter, it is demonstrably untrue that the FDA failed to consider (and strike a “balance” between) the specific costs and benefits associated with IV push. Second, as a legal matter, Geier does not stand for the legal propositions espoused by the dissenters (and specifically rejected by the majority) in that case. Third, drug labeling by jury verdict undermines both our broader pre-emption jurisprudence and the broader workability of the federal drug-labeling regime. A    Phenergan’s warning label has been subject to the FDA’s strict regulatory oversight since the 1950’s. For at least the last 34 years, the FDA has focused specifically on whether IV-push administration of Phenergan is “safe” and “effective” when performed in accordance with Phenergan’s label. The agency’s ultimate decision—to retain IV push as one means for administering Phenergan, albeit subject to stringent warnings—is reflected in the plain text of Phenergan’s label (sometimes in boldfaced font and all-capital letters). And the record contains ample evidence that the FDA specifically considered and reconsidered the strength of Phenergan’s IV-push-related warnings in light of new scientific and medical data. The majority’s factual assertions to the contrary are mistaken. 1    The FDA’s focus on IV push as a means of administering Phenergan dates back at least to 1975. In August of that year, several representatives from both the FDA and Wyeth met to discuss Phenergan’s warning label. At that meeting, the FDA specifically proposed “that Phenergan Injection should not be used in Tubex®.” 2 Record 583, 586 (Plaintiff’s Trial Exh. 17, Internal Correspondence from W. E. Langeland to File (Sept. 5, 1975) (hereinafter 1975 Memo)). “Tubex” is a syringe system used exclusively for IV push. See App. 43. An FDA official explained that the agency’s concerns arose from medical-malpractice lawsuits involving IV push of the drug, see 1975 Memo 586, and that the FDA was aware of “5 cases involving amputation where the drug had been administered by Tubex together with several additional cases involving necrosis,” id. , at 586–587. Rather than contraindicating Phenergan for IV push, however, the agency and Wyeth agreed “that there was a need for better instruction regarding the problems of intraarterial injection.” Id. , at 587.    The next year, the FDA convened an advisory committee to study, among other things, the risks associated with the Tubex system and IV push. App. 294. At the conclusion of its study, the committee recommended an additional IV-push-specific warning for Phenergan’s label, see ibid. , but did not recommend eliminating IV push from the drug label altogether. In response to the committee’s recommendations, the FDA instructed Wyeth to make several changes to strengthen Phenergan’s label, including the addition of upper case warnings related to IV push. See id. , at 279–280, 282–283.    In 1987, the FDA directed Wyeth to amend its label to include the following text: “ ‘[1] When used intravenously, [Phenergan] should be given in a concentration no greater than 25 mg/ml and at a rate not to exceed 25 mg/minute. [2] Injection through a properly running intravenous infusion may enhance the possibility of detecting arterial placement.’ ” Id. , at 311–312. The first of the two quoted sentences refers specifically to IV push; as respondent’s medical expert testified at trial, the label’s recommended rate of administration (not to exceed 25 mg per minute) refers to “IV push, as opposed to say being in a bag and dripped over a couple of hours.” Id. , at 52. The second of the two quoted sentences refers to IV drip. See id. , at 15–16 (emphasizing that a “running IV” is the same thing as “IV drip”).    In its 1987 labeling order, the FDA cited voluminous materials to “suppor[t]” its new and stronger warnings related to IV push and the preferability of IV drip.[ Footnote 5 ] Id. , at 313. One of those articles specifically discussed the relative advantages and disadvantages of IV drip compared to IV push, as well as the costs and benefits of administering Phenergan via IV push.[ Footnote 6 ] The FDA also cited published case reports from the 1960’s of gangrene caused by the intra-arterial injection of Phenergan,[ Footnote 7 ] and the FDA instructed Wyeth to amend Phenergan’s label in accordance with the latest medical research.[ Footnote 8 ] The FDA also studied drugs similar to Phenergan and cited numerous cautionary articles—one of which urged the agency to consider contraindicating such drugs for IV use altogether.[ Footnote 9 ]    In “support” of its labeling order, the FDA also cited numerous articles that singled out the inner crook of the elbow—known as the “antecubital fossa” in the medical community—which is both a commonly used injection site, see id. , at 70 (noting that respondent’s injection was pushed into “the antecubital space”), and a universally recognized high-risk area for inadvertent intra-arterial injections. One of the articles explained:    “Because of the numerous superficial positions the ulnar artery might occupy, it has often been entered during attempted venipuncture [of the antecubital fossa]. … However, the brachial and the radial arteries might also be quite superficial in the elbow region… . The arterial variations of the arm, especially in and about the cubital fossa, are common and numerous. If venipuncture must be performed in this area, a higher index of suspicion must be maintained to forestall misdirected injections.” Stone & Donnelly, The Accidental Intra-arterial Injection of Thiopental, 22 Anesthesiology 995, 996 (1961) (footnote omitted; cited in App. 315, no. 20).[ Footnote 10 ] Based on this and other research, the FDA ordered Wyeth to include a specific warning related to the use of the antecubital space for IV push.[ Footnote 11 ] 2    When respondent was injured in 2000, Phenergan’s label specifically addressed IV push in several passages (sometimes in lieu of and sometimes in addition to those discussed above). For example, the label warned of the risks of intra-arterial injection associated with “aspiration,” which is a technique used only in conjunction with IV push.[ Footnote 12 ] The label also cautioned against the use of “syringes with rigid plungers,” App. 390, which are used only to administer the drug via IV push. As respondent’s medical expert testified at trial, “by talking plungers and rigid needles, that’s the way you do it, to push it with the plunger.” Id. , at 53 (testimony of Dr. John Matthew). Moreover, Phenergan’s 2000 label devoted almost a full page to discussing the “Tubex system,” see id. , at 391, which, as noted above, is used only to administer the drug via IV push.    While Phenergan’s label very clearly authorized the use of IV push, it also made clear that IV push is the delivery method of last resort. The label specified that “[t]he preferred parenteral route of administration is by deep intramuscular injection.” Id. , at 390. If an intramuscular injection is ineffective, then “it is usually preferable to inject [Phenergan] through the tubing of an intravenous infusion set that is known to be functioning satisfactorily.” Ibid. See also id. , at 50–51 (testimony of respondent’s medical expert, Dr. John Matthew) (conceding that the best way to determine that an IV set is functioning satisfactorily is to use IV drip). Finally, if for whatever reason a medical professional chooses to use IV push, he or she is on notice that “ INADVERTENT INTRA-ARTERIAL INJECTION CAN RESULT IN GANGRENE OF THE AFFECTED EXTREMITY.” Id. , at 391; see also id. , at 390 (“Under no circumstances should Phenergan Injection be given by intra-arterial injection due to the likelihood of severe arteriospasm and the possibility of resultant gangrene”). Phenergan’s label also directs medical practitioners to choose veins wisely when using IV push: “Due to the close proximity of arteries and veins in the areas most commonly used for intravenous injection, extreme care should be exercised to avoid perivascular extravasation or inadvertent intra-arterial injection. Reports compatible with inadvertent intra-arterial injection of Phenergan Injection, usually in conjunction with other drugs intended for intravenous use, suggest that pain, severe chemical irritation, severe spasm of distal vessels, and resultant gangrene requiring amputation are likely under such circumstances.” Ibid. Thus, it is demonstrably untrue that, as of 2000, Phenergan’s “labeling did not contain a specific warning about the risks of IV-push administration.” Ante , at 4. And whatever else might be said about the extensive medical authorities and case reports that the FDA cited in “support” of its approval of IV-push administration of Phenergan, it cannot be said that the FDA “paid no more than passing attention to” IV push, ante , at 6; nor can it be said that the FDA failed to weigh its costs and benefits, Brief for Respondent 50. 3 For her part, respondent does not dispute the FDA’s conclusion that IV push has certain benefits. At trial, her medical practitioners testified that they used IV push in order to help her “in a swift and timely way” when she showed up at the hospital for the second time in one day complaining of “intractable” migraines, “terrible pain,” inability to “bear light or sound,” sleeplessness, hours-long spasms of “retching” and “vomiting,” and when “every possible” alternative treatment had “failed.” App. 40 (testimony of Dr. John Matthew); id. , at 103, 106, 109 (testimony of physician’s assistant Jessica Fisch). Rather than disputing the benefits of IV push, respondent complains that the FDA and Wyeth underestimated its costs (and hence did not provide sufficient warnings regarding its risks). But when the FDA mandated that Phenergan’s label read, “ INADVERTENT INTRA-ARTERIAL INJECTION CAN RESULT IN GANGRENE OF THE AFFECTED EXTREMITY,” id. , at 391, and when the FDA required Wyeth to warn that “[u]nder no circumstances should Phenergan Injection be given by intra-arterial injection,” id. , at 390, the agency could reasonably assume that medical professionals would take care not to inject Phenergan intra-arterially. See also 71 Fed. Reg. 3934 (noting that a drug’s warning label “communicates to health care practitioners the agency’s formal, authoritative conclusions regarding the conditions under which the product can be used safely and effectively”). Unfortunately, the physician’s assistant who treated respondent in this case disregarded Phenergan’s label and pushed the drug into the single spot on her arm that is most likely to cause an inadvertent intra-arterial injection. As noted above, when the FDA approved Phenergan’s label, it was textbook medical knowledge that the “antecubital fossa” creates a high risk of inadvertent intra-arterial injection, given the close proximity of veins and arteries. See supra , at 13–14; see also The Lippincott Manual of Nursing Practice 99 (7th ed. 2001) (noting, in a red-text “NURSING ALERT,” that the antecubital fossa is “not recommended” for administering dangerous drugs, “due to the potential for extravasation”).[ Footnote 13 ] According to the physician’s assistant who injured respondent, however, “[i]t never crossed my mind” that an antecubital injection of Phenergan could hit an artery. App. 110; see also ibid. (“[It] just wasn’t something that I was aware of at the time”). Oblivious to the risks emphasized in Phenergan’s warnings, the physician’s assistant pushed a double dose of the drug into an antecubital artery over the course of “[p]robably about three to four minutes,” id. , at 111; id. , at 105, notwithstanding respondent’s complaints of a “ ‘burn[ing]’ ” sensation that she subsequently described as “ ‘one of the most extreme pains that I’ve ever felt,’ ” id. , at 110, 180–181. And when asked why she ignored Phenergan’s label and failed to stop pushing the drug after respondent complained of burning pains, the physician’s assistant explained that it would have been “just crazy” to “worr[y] about an [intra-arterial] injection” under the circumstances, id. , at 111. The FDA, however, did not think that the risks associated with IV push—especially in the antecubital space—were “just crazy.” That is why Phenergan’s label so clearly warns against them. B Given the “balance” that the FDA struck between the costs and benefits of administering Phenergan via IV push, Geier compels the pre-emption of tort suits (like this one) that would upset that balance. The contrary conclusion requires turning yesterday’s dissent into today’s majority opinion. First, the Court denies the existence of a federal-state conflict in this case because Vermont merely countermanded the FDA’s determination that IV push is “safe” when performed in accordance with Phenergan’s warning label; the Court concludes that there is no conflict because Vermont did not “mandate a particular” label as a “replacement” for the one that the jury nullified, and because the State stopped short of altogether “contraindicating IV-push administration.” Ante , at 8. But as we emphasized in Geier (over the dissent’s assertions to the contrary), the degree of a State’s intrusion upon federal law is irrelevant—the Supremacy Clause applies with equal force to a state tort law that merely countermands a federal safety determination and to a state law that altogether prohibits car manufacturers from selling cars without airbags. Compare 529 U. S., at 881–882, with id. , at 902 (Stevens, J., dissenting). Indeed, as recently as last Term, we held that the Supremacy Clause pre-empts a “[s]tate tort law that requires a manufacturer’s catheters to be safer, but hence less effective, than the model the FDA has approved … .” Riegel , 552 U. S., at ___ (slip op., at 11). It did not matter there that the State stopped short of altogether prohibiting the use of FDA-approved catheters—just as it does not matter here that Vermont stopped short of altogether prohibiting an FDA-approved method for administering Phenergan. See also Lohr , 518 U. S., at 504 (Breyer, J., concurring in part and concurring in judgment) (noting it would be an “anomalous result” if pre-emption applied differently to a state tort suit premised on the inadequacy of the FDA’s safety regulations and a state law that specifically prohibited an FDA-approved design). Second, the Court today distinguishes Geier because the FDA articulated its pre-emptive intent “without offering States or other interested parties notice or opportunity for comment . ” Ante , at 21; see also ante , at 24. But the Geier Court specifically rejected the argument (again made by the dissenters in that case) that conflict pre-emption is appropriate only where the agency expresses its pre-emptive intent through notice-and-comment rulemaking. Compare 529 U. S., at 885 (“To insist on a specific expression of agency intent to pre-empt, made after notice-and-comment rulemaking, would be in certain cases to tolerate conflicts that an agency, and therefore Congress, is most unlikely to have intended. The dissent, as we have said, apparently welcomes that result … . We do not”), with id. , at 908–910 (Stevens, J., dissenting) (emphasizing that “we generally expect an administrative regulation to declare any intention to pre-empt state law with some specificity,” and that “[t]his expectation … serves to ensure that States will be able to have a dialog with agencies regarding pre-emption decisions ex ante through the normal notice-and-comment procedures of the Administrative Procedure Act” (internal quotation marks omitted)). Indeed, pre-emption is arguably more appropriate here than in Geier because the FDA (unlike the DOT) declared its pre-emptive intent in the Federal Register. See 71 Fed. Reg. 3933–3936. Yet the majority dismisses the FDA’s published preamble as “inherently suspect,” ante , at 21, and an afterthought that is entitled to “no weight,” ante , at 25. Compare Lohr , supra , at 506 (opinion of Breyer, J.) (emphasizing that the FDA has a “special understanding of the likely impact of both state and federal requirements, as well as an understanding of whether (or the extent to which) state requirements may interfere with federal objectives,” and that “[t]he FDA can translate these understandings into particularized pre-emptive intentions … through statements in ‘regulations, pre- ambles, interpretive statements, and responses to comments’ ”). Third, the Court distinguishes Geier because the DOT’s regulation “bear[s] the force of law,” whereas the FDA’s preamble does not. Ante , at 24; see also ante , at 19. But it is irrelevant that the FDA’s preamble does not “bear the force of law” because the FDA’s labeling decisions surely do. See 21 U. S. C. §355. It is well within the FDA’s discretion to make its labeling decisions through administrative adjudications rather than through less-formal and less-flexible rulemaking proceedings, see SEC v. Chenery Corp. , 332 U. S. 194 (1947), and we have never previously held that our pre-emption analysis turns on the agency’s choice of the latter over the former. Moreover, it cannot be said that Geier ’s outcome hinged on the agency’s choice to promulgate a rule. See ante , at 19, 24. The Geier Court relied—again over the dissenters’ protestations—on materials other than the Secretary’s regulation to explain the conflict between state and federal law. Compare 529 U. S., at 881, with id. , at 899–900 (Stevens, J., dissenting), and ante , at 1–2 (Breyer, J., concurring). Fourth, the Court sandwiches its discussion of Geier between the “presumption against pre-emption,” ante , at 18, and heavy emphasis on “the longstanding coexistence of state and federal law and the FDA’s traditional recognition of state-law remedies,” ante , at 24. But the Geier Court specifically rejected the argument (again made by the dissenters in that case) that the “presumption against pre-emption” is relevant to the conflict pre-emption analysis. See 529 U. S., at 906–907 (Stevens, J., dissenting) (“[T]he Court simply ignores the presumption [against pre-emption]”). Rather than invoking such a “presumption,” the Court emphasized that it was applying “ordinary,” “longstanding,” and “experience-proved principles of conflict pre-emption.” Id. , at 874. Under these principles, the sole question is whether there is an “actual conflict” between state and federal law; if so, then pre-emption follows automatically by operation of the Supremacy Clause. Id. , at 871–872. See also Buckman , 531 U. S., at 347–348 (“[P]etitioner’s dealings with the FDA were prompted by [federal law], and the very subject matter of petitioner’s statements [to the FDA] were dictated by [federal law]. Accordingly—and in contrast to situations implicating ‘federalism concerns and the historic primacy of state regulation of matters of health and safety’—no presumption against pre-emption obtains in this case” (citation omitted)).[ Footnote 14 ] Finally, the Geier Court went out of its way to emphasize (yet again over the dissenters’ objections) that it placed “some weight” on the DOT’s amicus brief, which explained the agency’s regulatory objectives and the effects of state tort suits on the federal regulatory regime. 529 U. S., at 883; compare id. , at 910–911 (Stevens, J., dissenting) (criticizing the majority for “uph[olding] a regulatory claim of frustration-of-purposes implied conflict pre-emption based on nothing more than an ex post administrative litigating position and inferences from regulatory history and final commentary”). See also Lohr , 518 U. S., at 496 (recognizing that the FDA is “uniquely qualified” to explain whether state law conflicts with the FDA’s objectives). Yet today, the FDA’s explanation of the conflict between state tort suits and the federal labeling regime, set forth in the agency’s amicus brief, is not even mentioned in the Court’s opinion. Instead of relying on the FDA’s explanation of its own regulatory purposes, the Court relies on a decade-old and now-repudiated statement, which the majority finds preferable. See ante , at 21–22, 24, n. 13. Cf. Riegel , 552 U. S., at ___ (slip op., at 13) (noting that “the agency’s earlier position (which the dissent describes at some length and finds preferable) is … compromised, indeed deprived of all claim to deference, by the fact that it is no longer the agency’s position” (citation omitted)); Altria Group, Inc. v. Good , 555 U. S. ___, ___ (2008) (slip op., at 16–17) (rejecting petitioners’ reliance on the pre-emptive effect of the agency’s “longstanding policy” because it is inconsistent with the agency’s current one). And Justice Breyer suggests that state tort suits may “help the [FDA],” ante , at 1 (concurring opinion), notwithstanding the FDA’s insistence that state tort suits will “disrupt the agency’s balancing of health risks and benefits,” Brief for United States as Amicus Curiae 9. Geier does not countenance the use of state tort suits to second-guess the FDA’s labeling decisions. And the Court’s contrary conclusion has potentially far-reaching consequences. C By their very nature, juries are ill-equipped to perform the FDA’s cost-benefit-balancing function. As we explained in Riegel , juries tend to focus on the risk of a particular product’s design or warning label that arguably contributed to a particular plaintiff’s injury, not on the overall benefits of that design or label; “the patients who reaped those benefits are not represented in court.” 552 U. S., at ___ (slip op., at 12). Indeed, patients like respondent are the only ones whom tort juries ever see, and for a patient like respondent—who has already suffered a tragic accident—Phenergan’s risks are no longer a matter of probabilities and potentialities. In contrast, the FDA has the benefit of the long view. Its drug-approval determinations consider the interests of all potential users of a drug, including “those who would suffer without new medical [products]” if juries in all 50 States were free to contradict the FDA’s expert determinations. Id. , at ___ (slip op., at 13). And the FDA conveys its warnings with one voice, rather than whipsawing the medical community with 50 (or more) potentially conflicting ones. After today’s ruling, however, parochialism may prevail. The problem is well illustrated by the labels borne by “vesicant” drugs, many of which are used for chemotherapy. As a class, vesicants are much more dangerous than drugs like Phenergan,[ Footnote 15 ] but the vast majority of vesicant labels—like Phenergan’s—either allow or do not disallow IV push. See Appendix, infra . Because vesicant extravasation can have devastating consequences, and because the potentially lifesaving benefits of these drugs offer hollow solace to the victim of such a tragedy, a jury’s cost-benefit analysis in a particular case may well differ from the FDA’s. For example, consider Mustargen (mechlorethamine HCl)—the injectable form of mustard gas—which can be used as an anticancer drug. Mustargen’s FDA-approved label warns in several places that “ This drug is HIGHLY TOXIC.”[ Footnote 16 ] Indeed, the drug is so highly toxic: “Should accidental eye contact occur, copious irrigation for at least 15 minutes with water, normal saline or a balanced salt ophthalmic irrigating solution should be instituted immediately, followed by prompt ophthalmologic consultation. Should accidental skin contact occur, the affected part must be irrigated immediately with copious amounts of water, for at least 15 minutes while removing contaminated clothing and shoes, followed by 2% sodium thiosulfate solution. Medical attention should be sought immediately. Contaminated clothing should be destroyed.”[ Footnote 17 ] Yet when it comes to administering this highly toxic drug, the label provides that “the drug may be injected directly into any suitable vein , [but] it is injected preferably into the rubber or plastic tubing of a flowing intravenous infusion set. This reduces the possibility of severe local reactions due to extravasation or high concentration of the drug.” (Emphasis added.) Similarly, the FDA-approved labels for other powerful chemotherapeutic vesicants—including Dactinomycin, Oxaliplatin, Vinblastine, and Vincristine—specifically allow IV push, notwithstanding their devastating effects when extravasated. The fact that the labels for such drugs allow IV push is striking—both because vesicants are much more dangerous than Phenergan, and also because they are so frequently extravasated, see Boyle & Engelking, Vesicant Extravasation: Myths and Realities, 22 Oncology Nursing Forum 57, 58 (1995) (arguing that the rate of extravasation is “considerably higher” than 6.4% of all vesicant administrations). Regardless of the FDA’s reasons for not contraindicating IV push for these drugs, it is odd (to say the least) that a jury in Vermont can now order for Phenergan what the FDA has chosen not to order for mustard gas.[ Footnote 18 ] *  *  * To be sure, state tort suits can peacefully coexist with the FDA’s labeling regime, and they have done so for decades. Ante , at 17–18. But this case is far from peaceful coexistence. The FDA told Wyeth that Phenergan’s label renders its use “safe.” But the State of Vermont, through its tort law, said: “Not so.” The state-law rule at issue here is squarely pre-empted. Therefore, I would reverse the judgment of the Supreme Court of Vermont. Appendix TO OPINION OF ALITO, J. Vesicant 1 IV Push 2 Dactinomycin Specifically allowed Mechlorethamine (Mustargen) Specifically allowed Oxaliplatin Specifically allowed Vinblastine Specifically allowed Vincristine Specifically allowed Bleomycin Neither mentioned nor prohibited Carboplatin Neither mentioned nor prohibited Dacarbazine Neither mentioned nor prohibited Mitomycin Neither mentioned nor prohibited Carmustine Not prohibited; IV drip recommended Cisplatin Not prohibited; IV drip recommended Epirubicin Not prohibited; IV drip recommended Etoposide Not prohibited; IV drip recommended Ifosfamide Not prohibited; IV drip recommended Mitoxantrone Not prohibited; IV drip recommended Paclitaxel Not prohibited; IV drip recommended Teniposide Not prohibited; IV drip recommended Vinorelbine Not prohibited; IV drip recommended Daunorubicin Prohibited Doxorubicin Prohibited 1 Wilkes & Barton-Burke, 2008 Oncology Nursing Drug Handbook 27–33 (2008) (Table 1.6). 2 IV-push information is derived from the “dosage and administration” sections of individual drug labels (available in Clerk of Court’s case file). Footnote 1 Indeed, respondent conceded below that Wyeth did propose an adequate warning of Phenergan’s risks. See Plaintiff Diana Levine’s Memorandum in Opposition to Wyeth’s Motion for Summary Judgment in Levine v. American Home Products Corp. (now Wyeth), No. 670–12–01 Wncv (Super. Ct. Washington Cty., Vt.), ¶7, p. 26. Specifically, respondent noted: “In 1988, Wyeth proposed language that would have prevented this accident by requiring a running IV and explaining why a running IV will address and reduce the risk [of intra-arterial injection].” Ibid. See also id. , at 24 (“Although not strong enough, this improved the labeling instruction, if followed, would have prevented the inadvertent administration of Phenergan into an artery …”). The FDA rejected Wyeth’s proposal. See App. 359. Footnote 2 Moreover, in the trial judge’s final charge, he told the jury that “the critical factual issue which you must decide” is whether Phenergan’s FDA-mandated label reflects a proper balance between “the risks and benefits of intravenous administration and the potential for injury to patients.” Id. , at 220. See also ___ Vt. ___, ___, 944 A. 2d 179, 182 (2006) (recognizing that respondent’s argument is that Phenergan’s “label should not have allowed IV push as a means of administration”). Footnote 3 Respondent sued her physician, physician’s assistant, and hospital for malpractice. After the parties settled that suit for an undisclosed sum, respondent’s physician sent her a letter in which he admitted “responsibility” for her injury and expressed his “profoun[d] regre[t]” and “remors[e]” for his actions. 1 Tr. 178–179 (Mar. 8, 2004) (testimony of Dr. John Matthew); see also App. 102–103 (testimony of physician’s assistant Jessica Fisch) (noting that her “sense of grief” was so “great” that she “would have gladly cut off [her own] arm” and given it to respondent). Thereafter, both the physician and the physician’s assistant agreed to testify on respondent’s behalf in her suit against Wyeth. Footnote 4 To be sure, Congress recognized the principles of conflict pre-emption in the FDCA. See Drug Amendments of 1962, §202, 76 Stat. 793 (“Nothing in the amendments made by this Act to the Federal Food, Drug, and Cosmetic Act shall be construed as invalidating any provision of State law … unless there is a direct and positive conflict between such amendments and such provision of State law”). But a provision that simply recognizes the background principles of conflict pre-emption is not a traditional “saving clause,” and even if it were, it would not displace our conflict-pre-emption analysis. See Geier v. American Honda Motor Co. , 529 U. S. 861 , 869 (2000) (“[T]he saving clause … does not bar the ordinary working of conflict pre-emption principles”); id. , at 873–874 (“The Court has … refused to read general ‘saving’ provisions to tolerate actual conflict both in cases involving impossibility and in ‘frustration-of-purpose’ cases” (emphasis deleted and citation omitted)). Footnote 5 The FDA cited numerous articles that generally discuss the costs and benefits associated with IV push. See, e.g. , Nahrwold & Phelps, Inadvertent Intra-Arterial Injection of Mephenteramine, 70 Rocky Mountain Medical J. 38 (Sept. 1973) (cited in App. 314, no. 14); Albo, Cheung, Ruth, Snyder, & Beemtsma, Effect of Intra-Arterial Injections of Barbituates, 120 Am. J. of Surgery 676 (1970) (cited in App. 314, no. 12); Corser, Masey, Jacob, Kernoff, & Browne, Ischaemia Following Self-administered Intra-arterial Injection of Methylphenidate and Diamorphine, 40 Anesthesiology 51 (1985) (cited in App. 314, no. 9); Correspondence Regarding Thiopental and Thiamylal (3 letters), 59 Anesthesiology 153 (1983) (cited in App. 314, no. 11); Miller, Arthur, & Stratigos, Intra-arterial Injection of a Barbituate, 23 Anesthesia Progress 25 (1976) (cited in App. 315, no. 19). Footnote 6 See Webb & Lampert, Accidental Arterial Injections, 101 Am. J. Obstetrics & Gynecology 365 (1968) (cited in App. 313, no. 5). Footnote 7 See Hager & Wilson, Gangrene of the Hand Following Intra-arterial Injection, 94 Archives of Surgery 86 (1967) (cited in App. 313, no. 7); Enloe, Sylvester, & Morris, Hazards of Intra-Arterial Injection of Hydroxyzine, 16 Canadian Anaesthetists’ Society J. 425 (1969) (hereinafter Enloe) (noting “recent reports” of “the occurrence of severe necrosis and gangrene following [administration of] promethazine (Phenergan®)” (cited in App. 314, no. 15)). See also Mostafavi & Samimi, Accidental Intra-arterial Injection of Promethazine HCl During General Anesthesia, 35 Anesthesiology 645 (1971) (reporting a case of gangrene, which required partial amputation of three fingers, after Phenergan was inadvertently pushed into an artery in the “antecubital” area); Promethazine, p. 7, in Clinical Pharmacology (Gold Standard Multimedia Inc. CD–ROM, version 1.16 (1998) (noting that “[i]nadvertent intra-arterial injection [of Phenergan] can result in arteriospasm … and development of gangrene”)). Footnote 8 Hager and Wilson noted that the most common reactions to intra-arterial injections of drugs like Phenergan include “[i]mmediate, severe, burning pain,” as well as “blanching.” 94 Archives of Surgery, at 87–88. The FDA required Wyeth to include Hager and Wilson’s observations on Phenergan’s label. See App. 311 (requiring the label to warn that “ ‘[t]he first sign [of an intra-arterial injection] may be the patient’s reaction to a sensation of fiery burning’ ” pain and “ ‘[b]lanching’ ”). Footnote 9 See Enloe 427 (discussing hydroxyzine—an antihistamine with chemical properties similar to those of Phenergan—and suggesting its “temporary” benefits can never outweigh the risks of intra-arterial injection); see also Goldsmith & Trieger, Accidental Intra-Arterial Injection: A Medical Emergency, 22 Anesthesia Progress 180 (1975) (noting the risks of intra-arterial administration of hydroxyzine) (cited in App. 315, no. 18); Klatte, Brooks, & Rhamy, Toxicity of Intra-Arterial Barbituates and Tranquilizing Drugs, 92 Radiology 700 (1969) (same) (cited in App. 314, no. 13). With full knowledge of those risks, FDA retained IV push for Phenergan, although the agency required Wyeth to incorporate observations from the Enloe article into Phenergan’s label. Compare Enloe 427 (arguing that “every precaution should be taken to avoid inadvertent intra-arterial injection,” including the use of “an obviously well-functioning venoclysis”), with App. 312 (FDA’s 1987 changes to Phenergan’s label). In contrast, at some time around 1970, the FDA prohibited all intravenous use of hydroxyzine. See id. , at 79 (testimony of Dr. Harold Green). The FDA’s decision to regulate the two drugs differently—notwithstanding (1) the agency’s knowledge of the risks associated with both drugs and (2) the agency’s recognition of the relevance of hydroxyzine-related articles and case reports in its regulation of Phenergan—further demonstrates that the FDA intentionally preserved IV-push administration for Phenergan. See also Haas, Correspondence, 33 Anesthesia Progress 281 (1986) (“[Hydroxyzine’s] restriction does not lie with the medicine itself, but in the practice and malpractice of intravenous techniques. Unfortunately, the practitioner who knows how to treat injection technique problems is usually not the practitioner with the intravenous technique problems”). Footnote 10 See also Engler, Freeman, Kanavage, Ogden, & Moretz, Production of Gangrenous Extremities by Intra-Arterial Injections, 30 Am. Surgeon 602 (1964) (“Accidental arterial injection most often occurs in the antecubital region because this is a favorite site for venopuncture and in this area the ulnar and brachial arteries are superficial and easily entered” (cited in App. 313, no. 6)); Engler, Gangrenous Extremities Resulting from Intra-arterial Injections, 94 Archives of Surgery 644 (1966) (similar) (cited in App. 314, no. 16); Lynas & Bisset, Intra-arterial Thiopentone, 24 Anaesthesia 257 (1969) (“Most [anesthesiologists] agree that injections on the medial aspect of the antecubital fossa are best avoided” (cited in App. 314, no. 8)); Waters, Intra-arterial Thiopentone, 21 Anesthesia 346 (1966) (“The risk of producing gangrene of the forearm by accidental injection of sodium thiopentone into an artery at the elbow has been recognised for many years” (cited in App. 314, no. 10)); see also Hager & Wilson, 94 Archives of Surgery, at 88 (emphasizing that one of the best ways to prevent inadvertent intra-arterial injections is to be aware of “aberrant or superficial arteries at the antecubital, forearm, wrist, and hand level”); Mostafavi & Samimi, supra (warning against antecubital injections). Footnote 11 See App. 311 (requiring Phenergan’s label to warn that practitioners should “ ‘[b]eware of the close proximity of arteries and veins at commonly used injection sites and consider the possibility of aberrant arteries’ ”). Footnote 12 “Aspiration” refers to drawing a small amount of blood back into the needle to determine whether the needle is in an artery or a vein. Ordinarily, arterial blood is brighter than venous blood—but contact with Phenergan causes discoloration, which makes aspiration an unreliable method of protecting against intra-arterial injection. See id. , at 282. Therefore, the label warned that when using IV push, a medical professional should beware that “[a]spiration of dark blood does not preclude intra-arterial needle placement, because blood is discolored upon contact with Phenergan Injection.” Id. , at 390. Footnote 13 In addition, respondent’s own medical expert testified at trial that it is a principle of “basic anatomy” that the antecubital fossa contains aberrant arteries. See 2 Tr. 34–35 (Mar. 9, 2004) (testimony of Dr. Daniel O’Brien); see also ibid. (noting that Gray’s Anatomy, which is “the Bible of anatomy,” also warns of arteries in the antecubital space). Footnote 14 Thus, it is not true that “this Court has long” applied a presumption against pre-emption in conflict pre-emption cases. Ante , at 9, n. 3 (majority opinion). As long ago as Gibbons v. Ogden, 9 Wheat. 1, 210 (1824), the Court inquired whether a state law “interfer[ed] with,” was “contrary to,” or “c[a]me into collision with” federal law—and it did so without ever invoking a “presumption.” See also Davis, Unmasking the Presumption in Favor of Preemption, 53 S. C. L. Rev. 967, 974 (2002) (noting that many of the Court’s early pre-emption cases “resulted in almost automatic preemption of concurrent state regulation”). In subsequent years the Court has sometimes acknowledged a limited “presumption against pre-emption,” but it nonetheless remained an open question—before today—whether that presumption applied in conflict pre-emption cases. See Crosby v. National Foreign Trade Council , 530 U. S. 363 , 374, n. 8 (2000) (“We leave for another day a consideration in this context of a presumption against preemption”). Moreover, this Court has never held that the “presumption” applies in an area—such as drug labeling—that has long been “reserved for federal regulation.” United States v. Locke , 529 U. S. 89 , 111 (2000). See also Buckman Co. v. Plaintiffs’ Legal Comm. , 531 U. S. 341 , 347–348 (2001). Footnote 15 Vesicants may cause “blistering, severe tissue injury, or tissue necrosis” upon extravasation—even if the drug is not injected into an artery. See, e.g. , Schulmeister, Administering Vesicants, 9 Clinical J. of Oncology Nursing 469, 469–470 (2005). See also ante , at 4 (majority opinion) (noting that Phenergan is labeled as an “irritant”); cf. Brief for Anju Budhwani et al. as Amici Curiae 15 (suggesting Phenergan should be considered a “vesicant”). Footnote 16 FDA, Oncology Tools Product Label Details, online at http://www.accessdata.fda.gov/scripts/cder/onctools/ labels.cfm?GN=meclorethamine,%20nitrogen%20mustard (as visited Mar. 2, 2009, and available in Clerk of Court’s case file). Footnote 17 Ibid. Footnote 18 The same is true of FDA’s regulation of hydroxyzine. See n. 9, supra .

The Supreme Court ruled that the FDA's approval of a drug does not provide a complete defense against tort claims, allowing a patient who suffered gangrene and amputation due to improper administration of the drug Phenergan to seek damages from the manufacturer, Wyeth.

Health Care

Gonzales v. Oregon

https://supreme.justia.com/cases/federal/us/546/243/

OPINION OF THE COURT GONZALES V. OREGON 546 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 04-623 ALBERTO R. GONZALES, ATTORNEY GENERAL, et al., PETITIONERS v. OREGON et al. on writ of certiorari to the united states court of appeals for the ninth circuit [January 17, 2006]    Justice Kennedy delivered the opinion of the Court.    The question before us is whether the Controlled Substances Act allows the United States Attorney General to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide, notwithstanding a state law permitting the procedure. As the Court has observed, “Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide.” Washington v. Glucksberg , 521 U. S. 702 , 735 (1997). The dispute before us is in part a product of this political and moral debate, but its resolution requires an inquiry familiar to the courts: interpreting a federal statute to determine whether Executive action is authorized by, or otherwise consistent with, the enactment.    In 1994, Oregon became the first State to legalize assisted suicide when voters approved a ballot measure enacting the Oregon Death With Dignity Act (ODWDA). Ore. Rev. Stat. §127.800 et seq. (2003). ODWDA, which survived a 1997 ballot measure seeking its repeal, exempts from civil or criminal liability state-licensed physicians who, in compliance with the specific safeguards in ODWDA, dispense or prescribe a lethal dose of drugs upon the request of a terminally ill patient.    The drugs Oregon physicians prescribe under ODWDA are regulated under a federal statute, the Controlled Substances Act (CSA or Act). 84 Stat. 1242, as amended, 21 U. S. C. §801 et seq . The CSA allows these particular drugs to be available only by a written prescription from a registered physician. In the ordinary course the same drugs are prescribed in smaller doses for pain alleviation.    A November 9, 2001 Interpretive Rule issued by the Attorney General addresses the implementation and enforcement of the CSA with respect to ODWDA. It determines that using controlled substances to assist suicide is not a legitimate medical practice and that dispensing or prescribing them for this purpose is unlawful under the CSA. The Interpretive Rule’s validity under the CSA is the issue before us. I A    We turn first to the text and structure of the CSA. Enacted in 1970 with the main objectives of combating drug abuse and controlling the legitimate and illegitimate traffic in controlled substances, the CSA creates a comprehensive, closed regulatory regime criminalizing the unauthorized manufacture, distribution, dispensing, and possession of substances classified in any of the Act’s five schedules. Gonzales v. Raich , 545 U. S. ____, ___ (2005) (slip op., at 9–10); 21 U. S. C. §841 (2000 ed. and Supp. II); 21 U. S. C. §844. The Act places substances in one of five schedules based on their potential for abuse or dependence, their accepted medical use, and their accepted safety for use under medical supervision. Schedule I contains the most severe restrictions on access and use, and Schedule V the least. Raich , supra , at ___ (slip op., at 11); 21 U. S. C. §812. Congress classified a host of substances when it enacted the CSA, but the statute permits the Attorney General to add, remove, or reschedule substances. He may do so, however, only after making particular findings, and on scientific and medical matters he is required to accept the findings of the Secretary of Health and Human Services (Secretary). These proceedings must be on the record after an opportunity for comment. See 21 U. S. C. A. §811 (main ed. and Supp. 2005).    The present dispute involves controlled substances listed in Schedule II, substances generally available only pursuant to a written, nonrefillable prescription by a physician. 21 U. S. C. §829(a). A 1971 regulation promulgated by the Attorney General requires that every prescription for a controlled substance “be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 CFR §1306.04(a) (2005).    To prevent diversion of controlled substances with medical uses, the CSA regulates the activity of physicians. To issue lawful prescriptions of Schedule II drugs, physicians must “obtain from the Attorney General a registration issued in accordance with the rules and regulations promulgated by him.” 21 U. S. C. §822(a)(2). The Attorney General may deny, suspend, or revoke this registration if, as relevant here, the physician’s registration would be “inconsistent with the public interest.” §824(a)(4); §822(a)(2). When deciding whether a practitioner’s registration is in the public interest, the Attorney General “shall” consider:    “(1) The recommendation of the appropriate State licensing board or professional disciplinary authority.    “(2) The applicant’s experience in dispensing, or conducting research with respect to controlled substances.    “(3) The applicant’s conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances.    “(4) Compliance with applicable State, Federal, or local laws relating to controlled substances.    “(5) Such other conduct which may threaten the public health and safety.” §823(f).    The CSA explicitly contemplates a role for the States in regulating controlled substances, as evidenced by its pre-emption provision.    “No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates . . . to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision . . . and that State law so that the two cannot consistently stand together.” §903. B    Oregon voters enacted ODWDA in 1994. For Oregon residents to be eligible to request a prescription under ODWDA, they must receive a diagnosis from their attending physician that they have an incurable and irreversible disease that, within reasonable medical judgment, will cause death within six months. Ore. Rev. Stat. §§127.815, 127.800(12) (2003). Attending physicians must also determine whether a patient has made a voluntary request, ensure a patient’s choice is informed, and refer patients to counseling if they might be suffering from a psychological disorder or depression causing impaired judgment. §§127.815, 127.825. A second “consulting” physician must examine the patient and the medical record and confirm the attending physician’s conclusions. §127.800(8). Oregon physicians may dispense or issue a prescription for the requested drug, but may not administer it. §§127.815(L), 127.880.    The reviewing physicians must keep detailed medical records of the process leading to the final prescription, §127.855, records that Oregon’s Department of Human Services reviews, §127.865. Physicians who dispense medication pursuant to ODWDA must also be registered with both the State’s Board of Medical Examiners and the federal Drug Enforcement Administration (DEA). §127.815(1)(L). In 2004, 37 patients ended their lives by ingesting a lethal dose of medication prescribed under ODWDA. Oregon Dept. of Human Servs., Seventh Annual Report on Oregon’s Death with Dignity Act 20 (Mar. 10, 2005). C    In 1997, Members of Congress concerned about ODWDA invited the DEA to prosecute or revoke the CSA registration of Oregon physicians who assist suicide. They contended that hastening a patient’s death is not legitimate medical practice, so prescribing controlled substances for that purpose violates the CSA. Letter from Sen. Orrin Hatch and Rep. Henry Hyde to Thomas A. Constantine (July 25, 1997), reprinted in Hearings on S. 2151 before the Senate Committee on the Judiciary, 105th Cong., 2d Sess., 2–3 (1999) (hereinafter Hearings). The letter received an initial, favorable response from the director of the DEA, see Letter from Thomas A. Constantine to Sen. Orrin Hatch (Nov. 5, 1997), Hearings 4–5, but Attorney General Reno considered the matter and concluded that the DEA could not take the proposed action because the CSA did not authorize it to “displace the states as the primary regulators of the medical profession, or to override a state’s determination as to what constitutes legitimate medical practice,” Letter from Attorney General Janet Reno to Sen. Orrin Hatch, on Oregon’s Death with Dignity Act (June 5, 1998), Hearings 5–6. Legislation was then introduced to grant the explicit authority Attorney General Reno found lacking; but it failed to pass. See H. R. 4006, 105th Cong., 2d Sess. (1998); H. R. 2260, 106th Cong., 1st Sess. (1999).    In 2001, John Ashcroft was appointed Attorney General. Perhaps because Mr. Ashcroft had supported efforts to curtail assisted suicide while serving as a Senator, see, e.g. , 143 Cong. Rec. 5589–5590 (1997) (remarks of Sen. Ashcroft), Oregon Attorney General Hardy Myers wrote him to request a meeting with Department of Justice officials should the Department decide to revisit the application of the CSA to assisted suicide. Letter of Feb. 2, 2001, App. to Brief for Patient-Respondents in Opposition 55a. Attorney General Myers received a reply letter from one of Attorney General Ashcroft’s advisers writing on his behalf, which stated    “I am aware of no pending legislation in Congress that would prompt a review of the Department’s interpretation of the CSA as it relates to physician-assisted suicide. Should such a review be commenced in the future, we would be happy to include your views in that review.” Letter from Lori Sharpe (Apr. 17, 2001), id., at 58a.    On November 9, 2001, without consulting Oregon or apparently anyone outside his Department, the Attorney General issued an Interpretive Rule announcing his intent to restrict the use of controlled substances for physician-assisted suicide. Incorporating the legal analysis of a memorandum he had solicited from his Office of Legal Counsel, the Attorney General ruled “assisting suicide is not a ‘legitimate medical purpose’ within the meaning of 21 CFR 1306.04 (2001), and that prescribing, dispensing, or administering federally controlled substances to assist suicide violates the Controlled Substances Act. Such conduct by a physician registered to dispense controlled substances may ‘render his registration . . . inconsistent with the public interest’ and therefore subject to possible suspension or revocation under 21 U. S. C. 824(a)(4). The Attorney General’s conclusion applies regardless of whether state law authorizes or permits such conduct by practitioners or others and regardless of the condition of the person whose suicide is assisted.” 66 Fed. Reg. 56608 (2001).    There is little dispute that the Interpretive Rule would substantially disrupt the ODWDA regime. Respondents contend, and petitioners do not dispute, that every prescription filled under ODWDA has specified drugs classified under Schedule II. A physician cannot prescribe the substances without DEA registration, and revocation or suspension of the registration would be a severe restriction on medical practice. Dispensing controlled substances without a valid prescription, furthermore, is a federal crime. See, e.g. , 21 U. S. C. §841(a)(1) (2000 ed., Supp. II); United States v. Moore, 423 U. S. 122 (1975).    In response the State of Oregon, joined by a physician, a pharmacist, and some terminally ill patients, all from Oregon, challenged the Interpretive Rule in federal court. The United States District Court for the District of Oregon entered a permanent injunction against the Interpretive Rule’s enforcement.    A divided panel of the Court of Appeals for the Ninth Circuit granted the petitions for review and held the Interpretive Rule invalid. Oregon v. Ashcroft , 368 F. 3d 1118 (2004). It reasoned that, by making a medical procedure authorized under Oregon law a federal offense, the Interpretive Rule altered the “ ‘ “usual constitutional balance between the States and the Federal Government” ’ ” without the requisite clear statement that the CSA authorized such action. Id., at 1124–1125 (quoting Gregory v. Ashcroft, 501 U. S. 452 , 460 (1991) (in turn quoting Atascadero State Hospital v. Scanlon, 473 U. S. 234 , 242 (1985))). The Court of Appeals held in the alternative that the Interpretive Rule could not be squared with the plain language of the CSA, which targets only conventional drug abuse and excludes the Attorney General from decisions on medical policy. 368 F. 3d, at 1125–1129.    We granted the Government’s petition for certiorari. 543 U. S. 1145 (2005). II    Executive actors often must interpret the enactments Congress has charged them with enforcing and implementing. The parties before us are in sharp disagreement both as to the degree of deference we must accord the Interpretive Rule’s substantive conclusions and whether the Rule is authorized by the statutory text at all. Although balancing the necessary respect for an agency’s knowledge, expertise, and constitutional office with the courts’ role as interpreter of laws can be a delicate matter, familiar principles guide us. An administrative rule may receive substantial deference if it interprets the issuing agency’s own ambiguous regulation. Auer v. Robbins, 519 U. S. 452 , 461–463 (1997). An interpretation of an ambiguous statute may also receive substantial deference. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 , 842–845 (1984). Deference in accordance with Chevron , however, is warranted only “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” United States v. Mead Corp., 533 U. S. 218 , 226–227 (2001). Otherwise, the interpretation is “entitled to respect” only to the extent it has the “power to persuade.” Skidmore v. Swift & Co., 323 U. S. 134 , 140 (1944). A    The Government first argues that the Interpretive Rule is an elaboration of one of the Attorney General’s own regulations, 21 CFR §1306.04 (2005), which requires all prescriptions be issued “for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” As such, the Government says, the Interpretive Rule is entitled to considerable deference in accordance with Auer .    In our view Auer and the standard of deference it accords to an agency are inapplicable here. Auer involved a disputed interpretation of the Fair Labor Standards Act of 1938 as applied to a class of law enforcement officers. Under regulations promulgated by the Secretary of Labor, an exemption from overtime pay depended, in part, on whether the employees met the “salary basis” test. 519 U. S., at 454–455. In this Court the Secretary of Labor filed an amicus brief explaining why, in his view, the regulations gave exempt status to the officers. Id., at 461. We gave weight to that interpretation, holding that because the applicable test was “a creature of the Secretary’s own regulations, his interpretation of it is, under our jurisprudence, controlling unless plainly erroneous or inconsistent with the regulation. ” Ibid. (internal quotation marks omitted).    In Auer , the underlying regulations gave specificity to a statutory scheme the Secretary was charged with enforcing and reflected the considerable experience and expertise the Department of Labor had acquired over time with respect to the complexities of the Fair Labor Standards Act. Here, on the other hand, the underlying regulation does little more than restate the terms of the statute itself. The language the Interpretive Rule addresses comes from Congress, not the Attorney General, and the near-equivalence of the statute and regulation belies the Government’s argument for Auer deference.    The Government does not suggest that its interpretation turns on any difference between the statutory and regulatory language. The CSA allows prescription of drugs only if they have a “currently accepted medical use,” 21 U. S. C. §812(b); requires a “medical purpose” for dispensing the least controlled substances of those on the schedules, §829(c); and, in its reporting provision, defines a “valid prescription” as one “issued for a legitimate medical purpose,” §830(b)(3)(A)(ii). Similarly, physicians are considered to be acting as practitioners under the statute if they dispense controlled substances “in the course of professional practice.” §802(21). The regulation uses the terms “legitimate medical purpose” and “the course of professional practice,” ibid., but this just repeats two statutory phrases and attempts to summarize the others. It gives little or no instruction on a central issue in this case: Who decides whether a particular activity is in “the course of professional practice” or done for a “legitimate medical purpose”? Since the regulation gives no indication how to decide this issue, the Attorney General’s effort to decide it now cannot be considered an interpretation of the regulation. Simply put, the existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute. An agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.    Furthermore, as explained below, if there is statutory authority to issue the Interpretive Rule it comes from the 1984 amendments to the CSA that gave the Attorney General authority to register and deregister physicians based on the public interest. The regulation was enacted before those amendments, so the Interpretive Rule cannot be justified as indicative of some intent the Attorney General had in 1971. That the current interpretation runs counter to the “intent at the time of the regulation’s promulgation,” is an additional reason why Auer deference is unwarranted. Thomas Jefferson Univ. v. Shalala, 512 U. S. 504 , 512 (1994) (internal quotation marks omitted). Deference under Auer being inappropriate, we turn to the question whether the Interpretive Rule, on its own terms, is a permissible interpretation of the CSA. B    Just as the Interpretive Rule receives no deference under Auer , neither does it receive deference under Chevron . If a statute is ambiguous, judicial review of administrative rulemaking often demands Chevron deference; and the rule is judged accordingly. All would agree, we should think, that the statutory phrase “legitimate medical purpose” is a generality, susceptible to more precise definition and open to varying constructions, and thus ambiguous in the relevant sense. Chevron deference, however, is not accorded merely because the statute is ambiguous and an administrative official is involved. To begin with, the rule must be promulgated pursuant to authority Congress has delegated to the official. Mead, 533 U. S., at 226–227.    The Attorney General has rulemaking power to fulfill his duties under the CSA. The specific respects in which he is authorized to make rules, however, instruct us that he is not authorized to make a rule declaring illegitimate a medical standard for care and treatment of patients that is specifically authorized under state law.    The starting point for this inquiry is, of course, the language of the delegation provision itself. In many cases authority is clear because the statute gives an agency broad power to enforce all provisions of the statute. See, e.g., National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. ___, ___ (2005) (slip op., at 8) (explaining that a Federal Communications Commission regulation received Chevron deference because “Congress has delegated to the Commission the authority to . . . ‘prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions’ of the Act” (quoting 47 U. S. C. §201(b))); Household Credit Services, Inc. v. Pfennig, 541 U. S. 232 , 238 (2004) (giving Chevron deference to a Federal Reserve Board regulation where “Congress has expressly delegated to the Board the authority to prescribe regulations . . . as, in the judgment of the Board, ‘are necessary or proper to effectuate the purposes of ’ ” the statute (quoting 15 U. S. C. §1604(a))). The CSA does not grant the Attorney General this broad authority to promulgate rules.    The CSA gives the Attorney General limited powers, to be exercised in specific ways. His rulemaking authority under the CSA is described in two provisions: (1) “The Attorney General is authorized to promulgate rules and regulations and to charge reasonable fees relating to the registration and control of the manufacture, distribution, and dispensing of controlled substances and to listed chemicals,” 21 U. S. C. A. §821 (Supp. 2005); and (2) “The Attorney General may promulgate and enforce any rules, regulations, and procedures which he may deem necessary and appropriate for the efficient execution of his functions under this subchapter,” 21 U. S. C. §871(b). As is evident from these sections, Congress did not delegate to the Attorney General authority to carry out or effect all provisions of the CSA. Rather, he can promulgate rules relating only to “registration” and “control,” and “for the efficient execution of his functions” under the statute.    Turning first to the Attorney General’s authority to make regulations for the “control” of drugs, this delegation cannot sustain the Interpretive Rule’s attempt to define standards of medical practice. Control is a term of art in the CSA. “As used in this subchapter,” §802––the subchapter that includes §821–– “The term ‘control’ means to add a drug or other substance, or immediate precursor, to a schedule under part B of this subchapter, whether by transfer from another schedule or otherwise.” §802(5). To exercise his scheduling power, the Attorney General must follow a detailed set of procedures, including requesting a scientific and medical evaluation from the Secretary. See 21 U. S. C. A. §§811, 812 (main ed. and Supp. 2005). The statute is also specific as to the manner in which the Attorney General must exercise this authority: “Rules of the Attorney General under this subsection [regarding scheduling] shall be made on the record after opportunity for a hearing pursuant to the rulemaking procedures prescribed by [the Administrative Procedure Act, 5 U. S. C. §553].” 21 U. S. C. §811(a). The Interpretive Rule now under consideration does not concern the scheduling of substances and was not issued after the required procedures for rules regarding scheduling, so it cannot fall under the Attorney General’s “control” authority.    Even if “control” in §821 were understood to signify something other than its statutory definition, it would not support the Interpretive Rule. The statutory references to “control” outside the scheduling context make clear that the Attorney General can establish controls “against diversion,” e.g. , §823(a)(1), but do not give him authority to define diversion based on his view of legitimate medical practice. As explained below, the CSA’s express limitations on the Attorney General’s authority, and other indications from the statutory scheme, belie any notion that the Attorney General has been granted this implicit authority. Indeed, if “control” were given the expansive meaning required to sustain the Interpretive Rule, it would transform the carefully described limits on the Attorney General’s authority over registration and scheduling into mere suggestions.    We turn, next, to the registration provisions of the CSA. Before 1984, the Attorney General was required to register any physician who was authorized by his State. The Attorney General could only deregister a physician who falsified his application, was convicted of a felony relating to controlled substances, or had his state license or registration revoked. See 84 Stat. 1255. The CSA was amended in 1984 to allow the Attorney General to deny registration to an applicant “if he determines that the issuance of such registration would be inconsistent with the public interest.” 21 U. S. C. §823(f). Registration may also be revoked or suspended by the Attorney General on the same grounds. §824(a)(4). In determining consistency with the public interest, the Attorney General must, as discussed above, consider five factors, including: the State’s recommendation; compliance with state, federal, and local laws regarding controlled substances; and public health and safety. §823(f).    The Interpretive Rule cannot be justified under this part of the statute. It does not undertake the five-factor analysis and concerns much more than registration. Nor does the Interpretive Rule on its face purport to be an application of the registration provision in §823(f). It is, instead, an interpretation of the substantive federal law requirements (under 21 CFR §1306.04 (2005)) for a valid prescription. It begins by announcing that assisting suicide is not a “legitimate medical purpose” under §1306.04, and that dispensing controlled substances to assist a suicide violates the CSA. 66 Fed. Reg. 56608 (2001). Violation is a criminal offense, and often a felony, under 21 U. S. C. §841 (2000 ed. and Supp. II). The Interpretive Rule thus purports to declare that using controlled substances for physician-assisted suicide is a crime, an authority that goes well beyond the Attorney General’s statutory power to register or deregister.    The Attorney General’s deregistration power, of course, may carry implications for criminal enforcement because if a physician dispenses a controlled substance after he is deregistered, he violates §841. The Interpretive Rule works in the opposite direction, however: it declares certain conduct criminal, placing in jeopardy the registration of any physician who engages in that conduct. To the extent the Interpretive Rule concerns registration, it simply states the obvious because one of the five factors the Attorney General must consider in deciding the “public interest” is “[c]ompliance with applicable State, Federal, or local laws relating to controlled substances.” 21 U. S. C. §823(f)(4). The problem with the design of the Interpretive Rule is that it cannot, and does not, explain why the Attorney General has the authority to decide what constitutes an underlying violation of the CSA in the first place. The explanation the Government seems to advance is that the Attorney General’s authority to decide whether a physician’s actions are inconsistent with the “public interest” provides the basis for the Interpretive Rule.    By this logic, however, the Attorney General claims extraordinary authority. If the Attorney General’s argument were correct, his power to deregister necessarily would include the greater power to criminalize even the actions of registered physicians, whenever they engage in conduct he deems illegitimate. This power to criminalize—unlike his power over registration, which must be exercised only after considering five express statutory factors—would be unrestrained. It would be anomalous for Congress to have so painstakingly described the Attorney General’s limited authority to deregister a single physician or schedule a single drug, but to have given him, just by implication, authority to declare an entire class of activity outside “the course of professional practice,” and therefore a criminal violation of the CSA. See Federal Maritime Comm’n v. Seatrain Lines, Inc., 411 U. S. 726 , 744 (1973) (“In light of these specific grants of . . . authority, we are unwilling to construe the ambiguous provisions . . . to serve this purpose [of creating further authority]—a purpose for which it obviously was not intended”). Sutton v. United Air Lines, Inc., 527 U. S. 471 (1999), is instructive. The statute at issue was the Americans with Disabilities Act of 1990 (ADA), which, like the CSA, divides interpretive authority among various Executive actors. The Court relied on “the terms and structure of the ADA” to decide that neither the Equal Employment Opportunity Commission, nor any other agency had authority to define “disability” in the ADA. Id., at 479. Specifically, the delegating provision stated that the EEOC “shall issue regulations . . . to carry out this subchapter,” 42 U. S. C. §12116, and the section of the statute defining “disability” was in a different subchapter. The Court did not accept the idea that because “the employment subchapter, i.e. , ‘ this subchapter,’ includes other provisions that use the defined terms, . . . [t]he EEOC might elaborate, through regulations, on the meaning of ‘disability’ . . . if elaboration is needed in order to ‘carry out’ the substantive provisions of ‘this subchapter.’ ” 527 U. S., at 514 (Breyer, J., dissenting). See also Adams Fruit Co. v. Barrett, 494 U. S. 638 , 649–650 (1990) (holding that a delegation of authority to promulgate motor vehicle safety “standards” did not include the authority to decide the pre-emptive scope of the federal statute because “[n]o such delegation regarding [the statute’s] enforcement provisions is evident in the statute”).    The same principle controls here. It is not enough that the terms “public interest,” “public health and safety,” and “Federal law” are used in the part of the statute over which the Attorney General has authority. The statutory terms “public interest” and “public health” do not call on the Attorney General, or any other Executive official, to make an independent assessment of the meaning of federal law. The Attorney General did not base the Interpretive Rule on an application of the five-factor test generally, or the “public health and safety” factor specifically. Even if he had, it is doubtful the Attorney General could cite the “public interest” or “public health” to deregister a physician simply because he deemed a controversial practice permitted by state law to have an illegitimate medical purpose.    As for the federal law factor, though it does require the Attorney General to decide “[c]ompliance” with the law, it does not suggest that he may decide what the law says. Were it otherwise, the Attorney General could authoritatively interpret “State” and “local laws,” which are also included in 21 U. S. C. §823(f), despite the obvious constitutional problems in his doing so. Just as he must evaluate compliance with federal law in deciding about registration, the Attorney General must as surely evaluate compliance with federal law in deciding whether to prosecute; but this does not entitle him to Chevron deference. See Crandon v. United States, 494 U. S. 152 , 177 (1990) (Scalia, J., concurring in judgment) (“The Justice Department, of course, has a very specific responsibility to determine for itself what this statute means, in order to decide when to prosecute; but we have never thought that the interpretation of those charged with prosecuting criminal statutes is entitled to deference”).    The limits on the Attorney General’s authority to define medical standards for the care and treatment of patients bear also on the proper interpretation of §871(b). This section allows the Attorney General to best determine how to execute “his functions.” It is quite a different matter, however, to say that the Attorney General can define the substantive standards of medical practice as part of his authority. To find a delegation of this extent in §871 would put that part of the statute in considerable tension with the narrowly defined delegation concerning control and registration. It would go, moreover, against the plain language of the text to treat a delegation for the “execution” of his functions as a further delegation to define other functions well beyond the statute’s specific grants of authority. When Congress chooses to delegate a power of this extent, it does so not by referring back to the administrator’s functions but by giving authority over the provisions of the statute he is to interpret. See, e.g., National Cable & Telecommunications Assn., 545 U. S. ___; Household Credit Services, 541 U. S. 232 .    The authority desired by the Government is inconsistent with the design of the statute in other fundamental respects. The Attorney General does not have the sole delegated authority under the CSA. He must instead share it with, and in some respects defer to, the Secretary, whose functions are likewise delineated and confined by the statute. The CSA allocates decisionmaking powers among statutory actors so that medical judgments, if they are to be decided at the federal level and for the limited objects of the statute, are placed in the hands of the Secretary. In the scheduling context, for example, the Secretary’s recommendations on scientific and medical matters bind the Attorney General. The Attorney General cannot control a substance if the Secretary disagrees. 21 U. S. C. §811(b). See H. R. Rep. No. 91–1444, pt. 1, p. 33 (1970) (the section “is not intended to authorize the Attorney General to undertake or support medical and scientific research [for the purpose of scheduling], which is within the competence of the Department of Health, Education, and Welfare”).    In a similar vein the 1970 Act’s regulation of medical practice with respect to drug rehabilitation gives the Attorney General a limited role; for it is the Secretary who, after consultation with the Attorney General and national medical groups, “determine[s] the appropriate methods of professional practice in the medical treatment of … narcotic addiction.” 42 U. S. C. §290bb–2a; see 21 U. S. C. §823(g) (2000 ed. and Supp. II) (stating that the Attorney General shall register practitioners who dispense drugs for narcotics treatment when the Secretary has determined the applicant is qualified to treat addicts and the Attorney General has concluded the applicant will comply with record keeping and security regulations); Moore, 423 U. S., at 144 (noting that in enacting the addiction-treatment provisions, Congress sought to change the fact “that ‘criminal prosecutions’ in the past had turned on the opinions of federal prosecutors”); H. R. Rep. No. 93–884, p. 6 (1974) (“This section preserves the distinctions found in the [CSA] between the functions of the Attorney General and the Secretary . . . . All decisions of a medical nature are to be made by the Secretary . . . . Law enforcement decisions respecting the security of stocks of narcotics drugs and the maintenance of records on such drugs are to be made by the Attorney General”).    Post enactment congressional commentary on the CSA’s regulation of medical practice is also at odds with the Attorney General’s claimed authority to determine appropriate medical standards. In 1978, in preparation for ratification of the Convention on Psychotropic Substances, Feb. 21, 1971, [1979–1980] 32 U. S. T. 543, T. I. A. S. No. 9725, Congress decided it would implement the United States’ compliance through “the framework of the procedures and criteria for classification of substances provided in the” CSA. 21 U. S. C. §801a(3). It did so to ensure that “nothing in the Convention will interfere with ethical medical practice in this country as determined by [the Secretary] on the basis of a consensus of the views of the American medical and scientific community.” Ibid. The structure of the CSA, then, conveys unwillingness to cede medical judgments to an Executive official who lacks medical expertise. In interpreting statutes that divide authority, the Court has recognized: “Because historical familiarity and policymaking expertise account in the first instance for the presumption that Congress delegates interpretive lawmaking power to the agency rather than to the reviewing court, we presume here that Congress intended to invest interpretive power in the administrative actor in the best position to develop these attributes.” Martin v. Occupational Safety and Health Review Comm’n, 499 U. S. 144 , 153 (1991) (citations omitted). This presumption works against a conclusion that the Attorney General has authority to make quintessentially medical judgments.    The Government contends the Attorney General’s decision here is a legal, not a medical, one. This generality, however, does not suffice. The Attorney General’s Interpretive Rule, and the Office of Legal Counsel memo it incorporates, place extensive reliance on medical judgments and the views of the medical community in concluding that assisted suicide is not a “legitimate medical purpose.” See 66 Fed. Reg. 56608 (noting the “medical” distinctions between assisting suicide and giving sufficient medication to alleviate pain); Memorandum from Office of Legal Counsel to Attorney General (June 27, 2001), App. to Pet. for Cert. 121a–122a, and n. 17 (discussing the “Federal medical policy” against physician-assisted suicide), id., at 124a–130a (examining views of the medical community). This confirms that the authority claimed by the Attorney General is both beyond his expertise and incongruous with the statutory purposes and design.    The idea that Congress gave the Attorney General such broad and unusual authority through an implicit delegation in the CSA’s registration provision is not sustainable. “Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” Whitman v. American Trucking Assns., Inc., 531 U. S. 457 , 468 (2001); see FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120 , 160 (2000) (“[W]e are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion”).    The importance of the issue of physician-assisted suicide, which has been the subject of an “earnest and profound debate” across the country, Glucksberg, 521 U. S., at 735, makes the oblique form of the claimed delegation all the more suspect. Under the Government’s theory, moreover, the medical judgments the Attorney General could make are not limited to physician-assisted suicide. Were this argument accepted, he could decide whether any particular drug may be used for any particular purpose, or indeed whether a physician who administers any controversial treatment could be deregistered. This would occur, under the Government’s view, despite the statute’s express limitation of the Attorney General’s authority to registration and control, with attendant restrictions on each of those functions, and despite the statutory purposes to combat drug abuse and prevent illicit drug trafficking.    We need not decide whether Chevron deference would be warranted for an interpretation issued by the Attorney General concerning matters closer to his role under the CSA, namely preventing doctors from engaging in illicit drug trafficking. In light of the foregoing, however, the CSA does not give the Attorney General authority to issue the Interpretive Rule as a statement with the force of law.    If, in the course of exercising his authority, the Attorney General uses his analysis in the Interpretive Rule only for guidance in deciding when to prosecute or deregister, then the question remains whether his substantive interpretation is correct. Since the Interpretive Rule was not promulgated pursuant to the Attorney General’s authority, its interpretation of “legitimate medical purpose” does not receive Chevron deference. Instead, it receives deference only in accordance with Skidmore . “The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” 323 U. S., at 140; see also Mead, 533 U. S., at 235 (noting that an opinion receiving Skidmore deference may “claim the merit of its writer’s thoroughness, logic, and expertness, its fit with prior interpretations, and any other sources of weight”). The deference here is tempered by the Attorney General’s lack of expertise in this area and the apparent absence of any consultation with anyone outside the Department of Justice who might aid in a reasoned judgment. In any event, under Skidmore , we follow an agency’s rule only to the extent it is persuasive, see Christensen v. Harris County, 529 U. S. 576 , 587 (2000); and for the reasons given and for further reasons set out below, we do not find the Attorney General’s opinion persuasive. III    As we have noted before, the CSA “repealed most of the earlier antidrug laws in favor of a comprehensive regime to combat the international and interstate traffic in illicit drugs.” Raich , 545 U. S., at ___ (slip op., at 9). In doing so, Congress sought to “conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances.” Ibid . It comes as little surprise, then, that we have not considered the extent to which the CSA regulates medical practice beyond prohibiting a doctor from acting as a drug “ ‘pusher’ ” instead of a physician. Moore , 423 U. S., at 143. In Moore , we addressed a situation in which a doctor “sold drugs, not for legitimate purposes, but primarily for the profits to be derived therefrom.” Id. , at 135 (quoting H. R. Rep. No. 91–1444, pt. 1, at 10; internal quotation marks omitted). There the defendant, who had engaged in large-scale overprescribing of methadone, “concede[d] in his brief that he did not observe generally accepted medical practices.” 423 U. S., at 126. And in United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483 (2001), Congress’ express determination that marijuana had no accepted medical use foreclosed any argument about statutory coverage of drugs available by a doctor’s prescription.    In deciding whether the CSA can be read as prohibiting physician-assisted suicide, we look to the statute’s text and design. The statute and our case law amply support the conclusion that Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this, however, the statute manifests no intent to regulate the practice of medicine generally. The silence is understandable given the structure and limitations of federalism, which allow the States “ ‘great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.’ ” Medtronic, Inc. v. Lohr, 518 U. S. 470 , 475 (1996) (quoting Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 , 756 (1985)).    The structure and operation of the CSA presume and rely upon a functioning medical profession regulated under the States’ police powers. The Attorney General can register a physician to dispense controlled substances “if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he practices.” 21 U. S. C. §823(f). When considering whether to revoke a physician’s registration, the Attorney General looks not just to violations of federal drug laws; but he “shall” also consider “[t]he recommendation of the appropriate state licensing board or professional disciplinary authority” and the registrant’s compliance with state and local drug laws. Ibid . The very definition of a “practitioner” eligible to prescribe includes physicians “licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which he practices” to dispense controlled substances. §802(21). Further cautioning against the conclusion that the CSA effectively displaces the States’ general regulation of medical practice is the Act’s pre-emption provision, which indicates that, absent a positive conflict, none of the Act’s provisions should be “construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates … to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State.” §903.    Oregon’s regime is an example of the state regulation of medical practice that the CSA presupposes. Rather than simply decriminalizing assisted suicide, ODWDA limits its exercise to the attending physicians of terminally ill patients, physicians who must be licensed by Oregon’s Board of Medical Examiners. Ore. Rev. Stat. §§127.815, 127.800(10) (2003). The statute gives attending physicians a central role, requiring them to provide prognoses and prescriptions, give information about palliative alternatives and counseling, and ensure patients are competent and acting voluntarily. §127.815. Any eligible patient must also get a second opinion from another registered physician, §127.820, and the statute’s safeguards require physicians to keep and submit to inspection detailed records of their actions, §§127.855, 127.865.    Even though regulation of health and safety is “primarily, and historically, a matter of local concern,” Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707 , 719 (1985), there is no question that the Federal Government can set uniform national standards in these areas. See Raich, supra , at ___ (slip op., at 6). In connection to the CSA, however, we find only one area in which Congress set general, uniform standards of medical practice. Title I of the Comprehensive Drug Abuse Prevention and Control Act of 1970, of which the CSA was Title II, provides that “[The Secretary], after consultation with the Attorney General and with national organizations representative of persons with knowledge and experience in the treatment of narcotic addicts, shall determine the appropriate methods of professional practice in the medical treatment of the narcotic addiction of various classes of narcotic addicts, and shall report thereon from time to time to the Congress.” §4, 84 Stat. 1241, codified at 42 U. S. C. §290bb–2a. This provision strengthens the understanding of the CSA as a statute combating recreational drug abuse, and also indicates that when Congress wants to regulate medical practice in the given scheme, it does so by explicit language in the statute.    In the face of the CSA’s silence on the practice of medicine generally and its recognition of state regulation of the medical profession it is difficult to defend the Attorney General’s declaration that the statute impliedly criminalizes physician-assisted suicide. This difficulty is compounded by the CSA’s consistent delegation of medical judgments to the Secretary and its otherwise careful allocation of powers for enforcing the limited objects of the CSA. See Part II–B, supra . The Government’s attempt to meet this challenge rests, for the most part, on the CSA’s requirement that every Schedule II drug be dispensed pursuant to a “written prescription of a practitioner.” 21 U. S. C. §829(a). A prescription, the Government argues, necessarily implies that the substance is being made available to a patient for a legitimate medical purpose. The statute, in this view, requires an anterior judgment about the term “medical” or “medicine.” The Government contends ordinary usage of these words ineluctably refers to a healing or curative art, which by these terms cannot embrace the intentional hastening of a patient’s death. It also points to the teachings of Hippocrates, the positions of prominent medical organizations, the Federal Government, and the judgment of the 49 States that have not legalized physician-assisted suicide as further support for the proposition that the practice is not legitimate medicine. See Brief for Petitioners 22–24; Memorandum from Office of Legal Counsel to Attorney General, App. to Pet. for Cert. 124a–130a.    On its own, this understanding of medicine’s boundaries is at least reasonable. The primary problem with the Government’s argument, however, is its assumption that the CSA impliedly authorizes an Executive officer to bar a use simply because it may be inconsistent with one reasonable understanding of medical practice. Viewed alone, the prescription requirement may support such an understanding, but statutes “should not be read as a series of unrelated and isolated provisions.” Gustafson v. Alloyd Co., 513 U. S. 561 , 570 (1995). The CSA’s substantive provisions and their arrangement undermine this as- sertion of an expansive federal authority to regulate medicine.    The statutory criteria for deciding what substances are controlled, determinations which are central to the Act, consistently connect the undefined term “drug abuse” with addiction or abnormal effects on the nervous system. When the Attorney General schedules drugs, he must consider a substance’s psychic or physiological dependence liability. 21 U. S. C. §811(c)(7). To classify a substance in Schedules II through V, the Attorney General must find abuse of the drug leads to psychological or physical dependence. §812(b). Indeed, the differentiation of Schedules II through V turns in large part on a substance’s habit-forming potential: The more addictive a substance, the stricter the controls. Ibid . When Congress wanted to extend the CSA’s regulation to substances not obviously habit forming or psychotropic, moreover, it relied not on Executive ingenuity, but rather on specific legislation. See §1902(a) of the Anabolic Steroids Control Act of 1990, 104 Stat. 4851 (placing anabolic steroids in Schedule III).    The statutory scheme with which the CSA is intertwined further confirms a more limited understanding of the prescription requirement. When the Secretary considers FDA approval of a substance with “stimulant, depressant, or hallucinogenic effect,” he must forward the information to the Attorney General for possible scheduling. Shedding light on Congress’ understanding of drug abuse, this requirement appears under the heading “Abuse potential.” 21 U. S. C. §811(f). Similarly, when Congress prepared to implement the Convention on Psychotropic Substances, it did so through the CSA. §801a.    The Interpretive Rule rests on a reading of the prescription requirement that is persuasive only to the extent one scrutinizes the provision without the illumination of the rest of the statute. See Massachusetts v. Morash, 490 U. S. 107 , 114–115 (1989). Viewed in its context, the prescription requirement is better understood as a provision that ensures patients use controlled substances under the supervision of a doctor so as to prevent addiction and recreational abuse. As a corollary, the provision also bars doctors from peddling to patients who crave the drugs for those prohibited uses. See Moore, 423 U. S., at 135, 143. To read prescriptions for assisted suicide as constituting “drug abuse” under the CSA is discordant with the phrase’s consistent use throughout the statute, not to mention its ordinary meaning.    The Government’s interpretation of the prescription requirement also fails under the objection that the Attorney General is an unlikely recipient of such broad authority, given the Secretary’s primacy in shaping medical policy under the CSA, and the statute’s otherwise careful allocation of decisionmaking powers. Just as the conventions of expression indicate that Congress is unlikely to alter a statute’s obvious scope and division of authority through muffled hints, the background principles of our federal system also belie the notion that Congress would use such an obscure grant of authority to regulate areas traditionally supervised by the States’ police power. It is unnecessary even to consider the application of clear statement requirements, see, e.g. , United States v. Bass, 404 U. S. 336 , 349 (1971); cf. BFP v. Resolution Trust Corporation, 511 U. S. 531 , 544–546 (1994), or presumptions against pre-emption, see, e.g. , Rush Prudential HMO, Inc. v. Moran, 536 U. S. 355 , 387 (2002), to reach this commonsense conclusion. For all these reasons, we conclude the CSA’s prescription requirement does not authorize the Attorney General to bar dispensing controlled substances for assisted suicide in the face of a state medical regime permitting such conduct. IV    The Government, in the end, maintains that the prescription requirement delegates to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality. The text and structure of the CSA show that Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it.    The judgment of the Court of Appeals is Affirmed. 546 U. S. ____ (2006) 546 U. S. ____ (2006) 546 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 04-623 ALBERTO R. GONZALES, ATTORNEY GENERAL, et al., PETITIONERS v. OREGON et al. on writ of certiorari to the united states court of appeals for the ninth circuit [January 17, 2006]    Justice Scalia, with whom Chief Justice Roberts and Justice Thomas join, dissenting.    The Court concludes that the Attorney General lacked authority to declare assisted suicide illicit under the Controlled Substances Act (CSA), because the CSA is concerned only with “ illicit drug dealing and trafficking,” ante , at 23 (emphasis added). This question-begging conclusion is obscured by a flurry of arguments that distort the statute and disregard settled principles of our interpretive jurisprudence.    Contrary to the Court’s analysis, this case involves not one but three independently sufficient grounds for reversing the Ninth Circuit’s judgment. First, the Attorney General’s interpretation of “legitimate medical purpose” in 21 CFR §1306.04 (2005) (hereinafter Regulation) is clearly valid, given the substantial deference we must accord it under Auer v. Robbins , 519 U. S. 452 , 461 (1997), and his two remaining conclusions follow naturally from this interpretation. See Part I, infra . Second, even if this interpretation of the Regulation is entitled to lesser deference or no deference at all, it is by far the most natural interpretation of the Regulation—whose validity is not challenged here. This interpretation is thus correct even upon de novo review. See Part II, infra . Third, even if that interpretation of the Regulation were incorrect, the Attorney General’s independent interpretation of the statutory phrase “public interest” in 21 U. S. C. §§824(a) and 823(f), and his implicit interpretation of the statutory phrase “public health and safety” in §823(f)(5), are entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. , 467 U. S. 837 (1984), and they are valid under Chevron . See Part III, infra . For these reasons, I respectfully dissent. I    The Interpretive Rule issued by the Attorney General (hereinafter Directive) provides in relevant part as follows: “For the reasons set forth in the OLC Opinion, I hereby determine that assisting suicide is not a ‘legitimate medical purpose’ within the meaning of 21 CFR §1306.04 (2001), and that prescribing, dispensing, or administering federally controlled substances to assist suicide violates the CSA. Such conduct by a physician registered to dispense controlled substances may ‘render his registration … inconsistent with the public interest’ and therefore subject to possible suspension or revocation under 21 U. S. C. [§]824(a)(4).” 66 Fed. Reg. 56608 (2001). The Directive thus purports to do three distinct things: (1) to interpret the phrase “legitimate medical purpose” in the Regulation to exclude physician-assisted suicide; (2) to determine that prescribing, dispensing, and administering federally controlled substances to assist suicide violates the CSA; and (3) to determine that participating in physician-assisted suicide may render a practitioner’s registration “inconsistent with the public interest” within the meaning of 21 U. S. C. §§823(f) and 824(a)(4) (which incorporates §823(f) by reference). The Court’s analysis suffers from an unremitting failure to distinguish among these distinct propositions in the Directive.    As an initial matter, the validity of the Regulation’s interpretation of “prescription” in §829 to require a “legitimate medical purpose” is not at issue. Respondents conceded the validity of this interpretation in the lower court, see Oregon v. Ashcroft , 368 F. 3d 1118, 1133 (CA9 2004), and they have not challenged it here. By its assertion that the Regulation merely restates the statutory standard of 21 U. S. C. §830(b)(3)(A)(ii), see ante , at 10, the Court likewise accepts that the “legitimate medical purpose” interpretation for prescriptions is proper. See also ante , at 11 (referring to “legitimate medical purpose” as a “statutory phrase”). It is beyond dispute, then, that a “prescription” under §829 must issue for a “legitimate medical purpose.” A    Because the Regulation was promulgated by the Attorney General, and because the Directive purported to interpret the language of the Regulation, see 66 Fed. Reg. 56608, this case calls for the straightforward application of our rule that an agency’s interpretation of its own regulations is “controlling unless plainly erroneous or inconsistent with the regulation.” Auer , supra , at 461 (internal quotation marks omitted). The Court reasons that Auer is inapplicable because the Regulation “does little more than restate the terms of the statute itself.” Ante , at 9. “Simply put,” the Court asserts, “the existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute.” Ante , at 10.    To begin with, it is doubtful that any such exception to the Auer rule exists. The Court cites no authority for it, because there is none. To the contrary, our unanimous decision in Auer makes clear that broadly drawn regulations are entitled to no less respect than narrow ones. “A rule requiring the Secretary to construe his own regulations narrowly would make little sense, since he is free to write the regulations as broadly as he wishes, subject only to the limits imposed by the statute .” 519 U. S., at 463 (emphasis added).    Even if there were an antiparroting canon, however, it would have no application here. The Court’s description of 21 CFR §1306.04 (2005) as a regulation that merely “paraphrase[s] the statutory language,” ante , at 10, is demonstrably false. In relevant part, the Regulation interprets the word “prescription” as it appears in 21 U. S. C. §829, which governs the dispensation of controlled substances other than those on Schedule I (which may not be dispensed at all). Entitled “[p]rescriptions,” §829 requires, with certain exceptions not relevant here, “the written prescription of a practitioner” (usually a medical doctor) for the dispensation of Schedule II substances (§829(a)), “a written or oral prescription” for substances on Schedules III and IV (§829(b)), and no prescription but merely a “medical purpose” for the dispensation of Schedule V substances (§829(c)).    As used in this section, “prescription” is susceptible of at least three reasonable interpretations. First, it might mean any oral or written direction of a practitioner for the dispensation of drugs. See United States v. Moore , 423 U. S. 122 , 137, n. 13 (1975) (“On its face §829 addresses only the form that a prescription must take… . [Section] 829 by its terms does not limit the authority of a practitioner”). Second, in light of the requirement of a “medical purpose” for the dispensation of Schedule V substances, see §829(c), it might mean a practitioner’s oral or written direction for the dispensation of drugs that the practitioner believes to be for a legitimate medical purpose. See Webster’s New International Dictionary 1954 (2d ed. 1950) (hereinafter Webster’s Second) (defining “prescription” as “[a] written direction for the preparation and use of a medicine ”); id. , at 1527 (defining “medicine” as “[a]ny substance or preparation used in treating disease ”) (emphases added). Finally, “prescription” might refer to a practitioner’s direction for the dispensation of drugs that serves an objectively legitimate medical purpose, regardless of the practitioner’s subjective judgment about the legitimacy of the anticipated use. See ibid. The Regulation at issue constricts or clarifies the statute by adopting the last and narrowest of these three possible interpretations of the undefined statutory term: “A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose … .” 21 CFR §1306.04(a) (2005). We have previously acknowledged that the Regulation gives added content to the text of the statute: “The medical purpose requirement explicit in subsection (c) [of §829] could be implicit in subsections (a) and (b). Regulation §[1]306.04 makes it explicit.” Moore , supra , at 137, n. 13.[ Footnote 1 ]    The Court points out that the Regulation adopts some of the phrasing employed in unrelated sections of the statute. See ante , at 10. This is irrelevant. A regulation that significantly clarifies the meaning of an otherwise ambiguous statutory provision is not a “parroting” regulation, regardless of the sources that the agency draws upon for the clarification. Moreover, most of the statutory phrases that the Court cites as appearing in the Regulation, see ibid. (citing 21 U. S. C. §§812(b) (“ ‘currently accepted medical use’ ”), 829(c) (“ ‘medical purpose’ ”), 802(21) (“ ‘in the course of professional practice’ ”)), are inapposite because they do not “parrot” the only phrase in the Regulation that the Directive purported to construe. See 66 Fed. Reg. 56608 (“I hereby determine that assisting suicide is not a ‘legitimate medical purpose’ within the meaning of 21 CFR §1306.04 …”). None of them includes the key word “legitimate,” which gives the most direct support to the Directive’s theory that §829(c) presupposes a uniform federal standard of medical practice.[ Footnote 2 ]    Since the Regulation does not run afowl (so to speak) of the Court’s newly invented prohibition of “parroting”; and since the Directive represents the agency’s own interpretation of that concededly valid regulation; the only question remaining is whether that interpretation is “plainly erroneous or inconsistent with the regulation”; otherwise, it is “controlling.” Auer , supra , at 461 (internal quotation marks omitted). This is not a difficult question. The Directive is assuredly valid insofar as it interprets “prescription” to require a medical purpose that is “legitimate” as a matter of federal law—since that is an interpretation of “prescription” that we ourselves have adopted. Webb v. United States , 249 U. S. 96 (1919), was a prosecution under the Harrison Act of a doctor who wrote prescriptions of morphine “for the purpose of providing the user with morphine sufficient to keep him comfortable by maintaining his customary use,” id. , at 99. The dispositive issue in the case was whether such authorizations were “prescriptions” within the meaning of §2(b) of the Harrison Act, predecessor to the CSA. Ibid. We held that “to call such an order for the use of morphine a physician’s prescription would be so plain a perversion of meaning that no discussion of the subject is required.” Id. , at 99–100. Like the Directive, this interprets “prescription” to require medical purpose that is legitimate as a matter of federal law. And the Directive is also assuredly valid insofar as it interprets “legitimate medical purpose” as a matter of federal law to exclude physician-assisted suicide, because that is not only a permissible but indeed the most natural interpretation of that phrase. See Part II, infra. B Even if the Regulation merely parroted the statute, and the Directive therefore had to be treated as though it construed the statute directly, see ante , at 11, the Directive would still be entitled to deference under Chevron . The Court does not take issue with the Solicitor General’s contention that no alleged procedural defect, such as the absence of notice-and-comment rulemaking before promulgation of the Directive, renders Chevron inapplicable here. See Reply Brief for Petitioners 4 (citing Barnhart v. Walton , 535 U. S. 212 , 219–222 (2002); 5 U. S. C. §553(b)(3)(A) (exempting interpretive rules from notice-and-comment rulemaking)). Instead, the Court holds that the Attorney General lacks interpretive authority to issue the Directive at all, on the ground that the explicit delegation provision, 21 U. S. C. A. §821 (Supp. 2005), limits his rulemaking authority to “registration and control,” which (according to the Court) are not implicated by the Directive’s interpretation of the prescription requirement. See ante , at 12–14.    Setting aside the implicit delegation inherent in Congress’s use of the undefined term “prescription” in §829, the Court’s reading of “control” in §821 is manifestly erroneous. The Court urges, ante , at 12–13, that “control” is a term defined in part A of the subchapter (entitled “Introductory Provisions”) to mean “to add a drug or other substance … to a schedule under part B of this subchapter ,” 21 U. S. C. §802(5) (emphasis added). But §821 is not included in “part B of this subchapter,” which is entitled “Authority to Control; Standards and Schedules,” and consists of the sections related to scheduling , 21 U. S. C. A. §§811–814 (main ed. and Supp. 2005), where the statutory definition is uniquely appropriate. Rather, §821 is found in part C of the subchapter, §§821–830, entitled “Registration of Manufacturers, Distributors, and Dispensers of Controlled Substances,” which includes all and only the provisions relating to the “manufacture, distribution, and dispensing of controlled substances,” §821. The artificial definition of “control” in §802(5) has no conceivable application to the use of that word in §821. Under that definition, “control” must take a substance as its direct object, see 21 U. S. C. §802(5) (“to add a drug or other substance … to a schedule”)—and that is how “control” is consistently used throughout part B . See, e.g. , §§811(b) (“proceedings … to control a drug or other substance”), 811(c) (“each drug or other substance proposed to be controlled or removed from the schedules”), 811(d)(1) (“If control is required … the Attorney General shall issue an order controlling such drug …”), 812(b) (“Except where control is required … a drug or other substance may not be placed in any schedule …”). In §821, by contrast, the term “control” has as its object, not “a drug or other substance,” but rather the processes of “manufacture, distribution, and dispensing of controlled substances.” It could not be clearer that the artificial definition of “control” in §802(5) is inapplicable. It makes no sense to speak of “adding the manufacturing, distribution, and dispensing of substances to a schedule.” We do not force term-of-art definitions into contexts where they plainly do not fit and produce nonsense. What is obviously intended in §821 is the ordinary meaning of “control”—namely, “[t]o exercise restraining or directing influence over; to dominate; regulate; hence, to hold from action; to curb,” Webster’s Second 580. “Control” is regularly used in this ordinary sense elsewhere in part C of the subchapter. See, e.g. , 21 U. S. C. §§823(a)(1), (b)(1), (d)(1), (e)(1), (h)(1) (“maintenance of effective controls against diversion”); §§823(a)(5), (d)(5) (“establishment of effective control against diversion”); §823(g)(2)(H)(i) (“to exercise supervision or control over the practice of medicine”); §830(b)(1)(C) (“a listed chemical under the control of the regulated person”); §830(c)(2)(D) (“chemical control laws”) (emphases added).    When the word is given its ordinary meaning, the Attorney General’s interpretation of the prescription requirement of §829 plainly “relat[es] to the … control of the … dispensing of controlled substances,” 21 U. S. C. A. §821 (Supp. 2005) (emphasis added), since a prescription is the chief requirement for “dispensing” such drugs, see §829. The same meaning is compelled by the fact that §821 is the first section not of part B of the subchapter, which deals entirely with “control” in the artificial sense, but of part C, every section of which relates to the “registration and control of the manufacture, distribution, and dispensing of controlled substances,” §821. See §§822 (persons required to register), 823 (registration requirements), 824 (denial, revocation, or suspension of registration), 825 (labeling and packaging), 826 (production quotas for controlled substances), 827 (recordkeeping and reporting requirements of registrants), 828 (order forms), 829 (prescription requirements), 830 (regulation of listed chemicals and certain machines). It would be peculiar for the first section of this part to authorize rulemaking for matters covered by the previous part. The only sensible interpretation of §821 is that it gives the Attorney General interpretive authority over the provisions of part C, all of which “relat[e] to the registration and control of the manufacture, distribution, and dispensing of controlled substances.” These provisions include both the prescription requirement of §829, and the criteria for registration and deregistration of §§823 and 824 (as relevant below, see Part III, infra ).[ Footnote 3 ] C    In sum, the Directive’s construction of “legitimate medical purpose” is a perfectly valid agency interpretation of its own regulation; and if not that, a perfectly valid agency interpretation of the statute. No one contends that the construction is “plainly erroneous or inconsistent with the regulation,” Bowles v. Seminole Rock & Sand Co. , 325 U. S. 410 , 414 (1945), or beyond the scope of ambiguity in the statute, see Chevron , 467 U. S., at 843. In fact, as explained below, the Directive provides the most natural interpretation of the Regulation and of the statute. The Directive thus definitively establishes that a doctor’s order authorizing the dispensation of a Schedule II substance for the purpose of assisting a suicide is not a “prescription” within the meaning of §829.     Once this conclusion is established, the other two conclusions in the Directive follow inevitably. Under our reasoning in Moore , writing prescriptions that are illegitimate under §829 is certainly not “in the [usual] course of professional practice” under §802(21) and thus not “authorized by this subchapter” under §841(a). See 423 U. S., at 138, 140–141. A doctor who does this may thus be prosecuted under §841(a), and so it follows that such conduct “violates the Controlled Substances Act,” 66 Fed. Reg. 56608. And since such conduct is thus not in “[c]ompliance with applicable … Federal … laws relating to controlled substances,” 21 U. S. C. §823(f)(4), and may also be fairly judged to “threaten the public health and safety,” §823(f)(5), it follows that “[s]uch conduct by a physician registered to dispense controlled substances may ‘render his registration … inconsistent with the public interest’ and therefore subject to possible suspension or revocation under 21 U. S. C. [§]824(a)(4).” 66 Fed. Reg. 56608 (emphases added). II    Even if the Directive were entitled to no deference whatever, the most reasonable interpretation of the Regulation and of the statute would produce the same result. Virtually every relevant source of authoritative meaning confirms that the phrase “legitimate medical purpose”[ Footnote 4 ] does not include intentionally assisting suicide. “Medicine” refers to “[t]he science and art dealing with the prevention, cure, or alleviation of disease.” Webster’s Second 1527. The use of the word “legitimate” connotes an objective standard of “medicine,” and our presumption that the CSA creates a uniform federal law regulating the dispensation of controlled substances, see Mississippi Band of Choctaw Indians v. Holyfield , 490 U. S. 30 , 43 (1989), means that this objective standard must be a federal one. As recounted in detail in the memorandum for the Attorney General that is attached as an appendix to the Directive (OLC Memo), virtually every medical authority from Hippocrates to the current American Medical Association (AMA) confirms that assisting suicide has seldom or never been viewed as a form of “prevention, cure, or alleviation of disease,” and (even more so) that assisting suicide is not a “legitimate” branch of that “science and art.” See OLC Memo, App. to Pet. for Cert. 113a–130a. Indeed, the AMA has determined that “ ‘[p]hysician-assisted suicide is fundamentally incompatible with the physician’s role as a healer.’ ” Washington v. Glucksberg , 521 U. S. 702 , 731 (1997). “[T]he overwhelming weight of authority in judicial decisions, the past and present policies of nearly all of the States and of the Federal Government, and the clear, firm and unequivocal views of the leading associations within the American medical and nursing professions, establish that assisting in suicide … is not a legitimate medical purpose.” OLC Memo, supra , at 129a. See also Glucksberg , supra , at 710, n. 8 (prohibitions or condemnations of assisted suicide in 50 jurisdictions, including 47 States, the District of Columbia, and 2 Territories).    In the face of this “overwhelming weight of authority,” the Court’s admission that “[o]n its own, this understanding of medicine’s boundaries is at least reasonable ,” ante , at 26 (emphasis added), tests the limits of understatement. The only explanation for such a distortion is that the Court confuses the normative inquiry of what the boundaries of medicine should be —which it is laudably hesitant to undertake—with the objective inquiry of what the accepted definition of “medicine” is . The same confusion is reflected in the Court’s remarkable statement that “[t]he primary problem with the Government’s argument … is its assumption that the CSA impliedly authorizes an Executive officer to bar a use simply because it may be inconsistent with one reasonable understanding of medical practice.” Ibid. (emphasis added). The fact that many in Oregon believe that the boundaries of “legitimate medicine” should be extended to include assisted suicide does not change the fact that the overwhelming weight of authority (including the 47 States that condemn physician-assisted suicide) confirms that they have not yet been so extended. Not even those of our Eighth Amendment cases most generous in discerning an “evolution” of national standards would have found, on this record, that the concept of “legitimate medicine” has evolved so far. See Roper v. Simmons , 543 U. S. 551 , 564–567 (2005).    The Court contends that the phrase “legitimate medical purpose” cannot be read to establish a broad, uniform federal standard for the medically proper use of controlled substances. Ante , at 22. But it also rejects the most plausible alternative proposition, urged by the State, that any use authorized under state law constitutes a “legitimate medical purpose.” (The Court is perhaps leery of embracing this position because the State candidly admitted at oral argument that, on its view, a State could exempt from the CSA’s coverage the use of morphine to achieve euphoria.) Instead, the Court reverse-engineers an approach somewhere between a uniform national standard and a state-by-state approach, holding (with no basis in the CSA’s text) that “legitimate medical purpose” refers to all uses of drugs unrelated to “addiction and recreational abuse.” Ante , at 27. Thus, though the Court pays lipservice to state autonomy, see ante , 23–24, its standard for “legitimate medical purpose” is in fact a hazily defined federal standard based on its purposive reading of the CSA, and extracted from obliquely relevant sections of the Act. In particular, relying on its observation that the criteria for scheduling controlled substances are primarily concerned with “addiction or abnormal effects on the nervous system,” ante , at 26–27 (citing 21 U. S. C. §§811(c)(7), 812(b), 811(f), 801a), the Court concludes that the CSA’s prescription requirement must be interpreted in light of this narrow view of the statute’s purpose.    Even assuming, however, that the principal concern of the CSA is the curtailment of “addiction and recreational abuse,” there is no reason to think that this is its exclusive concern. We have repeatedly observed that Congress often passes statutes that sweep more broadly than the main problem they were designed to address. “[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Services, Inc. , 523 U. S. 75 , 79 (1998). See also H. J. Inc. v. Northwestern Bell Telephone Co. , 492 U. S. 229 , 248 (1989).    The scheduling provisions of the CSA on which the Court relies confirm that the CSA’s “design,” ante , at 23, is not as narrow as the Court asserts. In making scheduling determinations, the Attorney General must not only consider a drug’s “psychic or physiological dependence liability” as the Court points out, ante , at 26 (citing 21 U. S. C. §811(c)(7)), but must also consider such broad factors as “[t]he state of current scientific knowledge regarding the drug or other substance,” §811(c)(3), and (most notably) “[w]hat, if any, risk there is to the public health,” §811(c)(6). If the latter factor were limited to addiction-related health risks, as the Court supposes, it would be redundant of §811(c)(7). Moreover, in making registration determinations regarding manufacturers and distributors, the Attorney General “shall” consider “such other factors as may be relevant to and consistent with the public health and safety,” §§823(a)(6), (b)(5), (d)(6), (e)(5) (emphasis added)—over and above the risk of “diversion” of controlled substances, §§823(a)(1), (a)(5), (b)(1), (d)(1), (d)(5), (e)(1). And, most relevant of all, in registering and deregistering physicians , the Attorney General “may deny an application for such registration if he determines that the issuance of such registration would be inconsistent with the public interest,” §823(f); see also §824(a)(4), and in making that determination “shall” consider “[s]uch other conduct which may threaten the public health and safety,” §823(f)(5). All of these provisions, not just those selectively cited by the Court, shed light upon the CSA’s repeated references to the undefined term “abuse.” See §§811(a)(1)(A), (c)(1), (c)(4), (c)(5); §§812(b)(1)(A), (b)(2)(A), (b)(3)(A), (b)(4)(A), (b)(5)(A).    By disregarding all these public-interest, public-health, and public-safety objectives, and limiting the CSA to “addiction and recreational abuse,” the Court rules out the prohibition of anabolic-steroid use for bodybuilding purposes. It seeks to avoid this consequence by invoking the Anabolic Steroids Control Act of 1990, 104 Stat. 4851. Ante , at 27. But the only effect of that legislation is to make anabolic steroids controlled drugs under Schedule III of the CSA. If the only basis for control is (as the Court says) “addiction and recreational abuse,” dispensation of these drugs for bodybuilding could not be proscribed.    Although, as I have described, the Court’s opinion no more defers to state law than does the Directive, the Court relies on two provisions for the conclusion that “[t]he structure and operation of the CSA presume and rely upon a functioning medical profession regulated under the States’ police powers,” ante , at 23—namely the registration provisions of §823(f) and the nonpre-emption provision of §903. Reliance on the former is particularly unfortunate, because the Court’s own analysis recounts how Congress amended §823(f) in 1984 in order to liberate the Attorney General’s power over registration from the control of state regulators. See ante , at 14; 21 U. S. C. §823(f); see also Brief for Petitioners 34–35. And the nonpre-emption clause is embarrassingly inapplicable, since it merely disclaims field pre-emption, and affirmatively prescribes federal pre-emption whenever state law creates a conflict.[ Footnote 5 ] In any event, the Directive does not purport to pre-empt state law in any way, not even by conflict pre-emption—unless the Court is under the misimpression that some States require assisted suicide. The Directive merely interprets the CSA to prohibit, like countless other federal criminal provisions, conduct that happens not to be forbidden under state law (or at least the law of the State of Oregon).    With regard to the CSA’s registration provisions, 21 U. S. C. §§823(f), 824(a), the Court argues that the statute cannot fairly be read to “ ‘hide elephants in mouseholes’ ” by delegating to the Attorney General the power to determine the legitimacy of medical practices in “ ‘vague terms or ancillary provisions.’ ” Ante , at 20 (quoting Whitman v. American Trucking Assns., Inc. , 531 U. S. 457 , 468 (2001)). This case bears not the remotest resemblance to Whitman, which held that “Congress … does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” Ibid. (emphasis added). The Attorney General’s power to issue regulations against questionable uses of controlled substances in no way alters “the fundamental details” of the CSA. I am aware of only four areas in which the Department of Justice has exercised that power to regulate uses of controlled substances unrelated to “addiction and recreational abuse” as the Court apparently understands that phrase: assisted suicide, aggressive pain management therapy, anabolic-steroid use, and cosmetic weight-loss therapy. See, e.g. , In re Harline , 65 Fed. Reg. 5665, 5667 (2000) (weight loss); In re Tecca , 62 Fed. Reg. 12842, 12846 (1997) (anabolic steroids); In re Roth , 60 Fed. Reg. 62262, 62263, 62267 (1995) (pain management). There is no indication that enforcement in these areas interferes with the prosecution of “drug abuse” as the Court understands it. Unlike in Whitman , the Attorney General’s additional power to address other forms of drug “abuse” does absolutely nothing to undermine the central features of this regulatory scheme. Of course it was critical to our analysis in Whitman that the language of the provision did not bear the meaning that respondents sought to give it. See 531 U. S., at 465. Here, for the reasons stated above, the provision is most naturally interpreted to incorporate a uniform federal standard for legitimacy of medical practice.[ Footnote 6 ]    Finally, respondents argue that the Attorney General must defer to state-law judgments about what constitutes legitimate medicine, on the ground that Congress must speak clearly to impose such a uniform federal standard upon the States. But no line of our clear-statement cases is applicable here. The canon of avoidance does not apply, since the Directive does not push the outer limits of Congress’s commerce power, compare Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers , 531 U. S. 159 , 172 (2001) (regulation of isolated ponds), with United States v. Sullivan , 332 U. S. 689 , 698 (1948) (regulation of labeling of drugs shipped in interstate commerce), or impinge on a core aspect of state sovereignty, cf. Atascadero State Hospital v. Scanlon , 473 U. S. 234 , 242 (1985) (sovereign immunity); Gregory v. Ashcroft , 501 U. S. 452 , 460 (1991) (qualifications of state government officials). The clear-statement rule based on the presumption against pre-emption does not apply because the Directive does not pre-empt any state law, cf. id. , at 456–457; Rush Prudential HMO, Inc. v. Moran , 536 U. S. 355 , 359 (2002). And finally, no clear statement is required on the ground that the Directive intrudes upon an area traditionally reserved exclusively to the States, cf. BFP v. Resolution Trust Corporation , 511 U. S. 531 , 544 (1994) (state regulation of titles to real property), because the Federal Government has pervasively regulated the dispensation of drugs for over 100 years. See generally Brief for Pro-Life Legal Defense Fund et al. as Amici Curiae 3–15. It would be a novel and massive expansion of the clear-statement rule to apply it in a commerce case not involving pre-emption or constitutional avoidance , merely because Congress has chosen to prohibit conduct that a State has made a contrary policy judgment to permit. See Sullivan , supra , at 693. III    Even if the Regulation did not exist and “prescription” in §829 could not be interpreted to require a “legitimate medical purpose,” the Directive’s conclusion that “prescribing, dispensing, or administering federally controlled substances … by a physician … may ‘render his registration … inconsistent with the public interest’ and therefore subject to possible suspension or revocation under 21 U. S. C. [§]824(a)(4),” 66 Fed. Reg. 56608, would nevertheless be unassailable in this Court.    Sections 823(f) and 824(a) explicitly grant the Attorney General the authority to register and deregister physicians, and his discretion in exercising that authority is spelled out in very broad terms. He may refuse to register or deregister if he determines that registration is “inconsistent with the public interest,” 21 U. S. C. §823(f), after considering five factors, the fifth of which is “[s]uch other conduct which may threaten the public health and safety,” §823(f)(5). See also In re Arora , 60 Fed. Reg. 4447, 4448 (1995) (“It is well established that these factors are to be considered in the disjunctive, i.e., the Deputy Administrator may properly rely on any one or a combination of factors, and give each factor the weight he deems appropriate”). As the Court points out, these broad standards were enacted in the 1984 amendments for the specific purpose of freeing the Attorney General’s discretion over registration from the decisions of state authorities. See ante , at 13.    The fact that assisted-suicide prescriptions are issued in violation of §829 is of course sufficient to support the Directive’s conclusion that issuing them may be cause for deregistration: such prescriptions would violate the fourth factor of §823(f), namely “[c]ompliance with applicable … Federal … laws relating to controlled substances,” 21 U. S. C. §823(f)(4). But the Attorney General did not rely solely on subsection (f)(4) in reaching his conclusion that registration would be “inconsistent with the public interest”; nothing in the text of the Directive indicates that. Subsection (f)(5) (“[s]uch other conduct which may threaten the public health and safety”) provides an independent, alternative basis for the Directive’s conclusion regarding deregistration—provided that the Attorney General has authority to interpret “public interest” and “public health and safety” in §823(f) to exclude assisted suicide.    Three considerations make it perfectly clear that the statute confers authority to interpret these phrases upon the Attorney General. First, the Attorney General is solely and explicitly charged with administering the registration and deregistration provisions. See §§823(f), 824(a). By making the criteria for such registration and deregistration such obviously ambiguous factors as “public interest” and “public health and safety,” Congress implicitly (but clearly) gave the Attorney General authority to interpret those criteria— whether or not there is any explicit delegation provision in the statute. “Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Chevron , 467 U. S., at 844. The Court’s exclusive focus on the explicit delegation provisions is, at best, a fossil of our pre- Chevron era; at least since Chevron , we have not conditioned our deferral to agency interpretations upon the existence of explicit delegation provisions. United States v. Mead Corp., 533 U. S. 218 , 229 (2001), left this principle of implicit delegation intact.    Second, even if explicit delegation were required, Congress provided it in §821, which authorizes the Attorney General to “promulgate rules and regulations … relating to the registration and control of the manufacture, distribution, and dispensing of controlled substances … .” (Emphasis added.) Because “dispensing” refers to the delivery of a controlled substance “pursuant to the lawful order of, a practitioner,” 21 U. S. C. §802(10), the deregistration of such practitioners for writing impermissible orders “relat[es] to the registration … of the … dispensing” of controlled substances, 21 U. S. C. A. §821 (Supp. 2005).    Third, §821 also gives the Attorney General authority to promulgate rules and regulations “relating to the … control of the … dispensing of controlled substances.” As discussed earlier, it is plain that the ordinary meaning of “control” must apply to §821, so that the plain import of the provision is to grant the Attorney General rulemaking authority over all the provisions of part C of the CSA, 21 U. S. C. A. §§821–830 (main ed. and Supp. 2005). Registering and deregistering the practitioners who issue the prescriptions necessary for lawful dispensation of controlled substances plainly “relat[es] to the … control of the … dispensing of controlled substances.” §821 (Supp. 2005).    The Attorney General is thus authorized to promulgate regulations interpreting §§823(f) and 824(a), both by implicit delegation in §823(f) and by two grounds of explicit delegation in §821. The Court nevertheless holds that this triply unambiguous delegation cannot be given full effect because “the design of the statute,” ante , at 18, evinces the intent to grant the Secretary of Health and Human Services exclusive authority over scientific and medical determinations. This proposition is not remotely plausible. The Court cites as authority for the Secretary’s exclusive authority two specific areas in which his medical determinations are said to be binding on the Attorney General—with regard to the “scientific and medical evaluation” of a drug’s effects that precedes its scheduling, §811(b), and with regard to “the appropriate methods of professional practice in the medical treatment of the narcotic addiction of various classes of narcotic addicts,” 42 U. S. C. §290bb–2a; see also 21 U. S. C. §823(g) (2000 ed. and Supp. II). See ante , at 17–19. Far from establishing a general principle of Secretary supremacy with regard to all scientific and medical determinations, the fact that Congress granted the Secretary specifically defined authority in the areas of scheduling and addiction treatment, without otherwise mentioning him in the registration provisions, suggests, to the contrary, that Congress envisioned no role for the Secretary in that area—where, as we have said, interpretive authority was both implicitly and explicitly conferred upon the Attorney General.    Even if we could rewrite statutes to accord with sensible “design,” it is far from a certainty that the Secretary, rather than the Attorney General, ought to control the registration of physicians. Though registration decisions sometimes require judgments about the legitimacy of medical practices, the Department of Justice has seemingly had no difficulty making them. See In re Harline , 65 Fed. Reg. 5665; In re Tecca, 62 Fed. Reg. 12842; In re Roth , 60 Fed. Reg. 62262. But unlike decisions about whether a substance should be scheduled or whether a narcotics addiction treatment is legitimate, registration decisions are not exclusively, or even primarily, concerned with “medical [and] scientific” factors. See 21 U. S. C. §823(f). Rather, the decision to register, or to bring an action to deregister, an individual physician implicates all the policy goals and competing enforcement priorities that attend any exercise of prosecutorial discretion. It is entirely reasonable to think (as Congress evidently did) that it would be easier for the Attorney General occasionally to make judgments about the legitimacy of medical practices than it would be for the Secretary to get into the business of law enforcement. It is, in other words, perfectly consistent with an intelligent “design of the statute” to give the Nation’s chief law enforcement official, not its chief health official, broad discretion over the substantive standards that govern registration and deregistration. That is especially true where the contested “scientific and medical” judgment at issue has to do with the legitimacy of physician-assisted suicide, which ultimately rests, not on “science” or “medicine,” but on a naked value judgment. It no more depends upon a “quintessentially medical judgmen[t],” ante , at 20, than does the legitimacy of polygamy or eugenic infanticide. And it requires no particular medical training to undertake the objective inquiry into how the continuing traditions of Western medicine have consistently treated this subject. See OLC Memo, App. to Pet. for Cert. 113a–130a. The Secretary’s supposedly superior “medical expertise” to make “medical judgments,” ante , at 19–20, is strikingly irrelevant to the case at hand.    The Court also reasons that, even if the CSA grants the Attorney General authority to interpret §823(f), the Directive does not purport to exercise that authority, because it “does not undertake the five-factor analysis” of §823(f) and does not “on its face purport to be an application of the registration provision in §823(f).” Ante , at 14 (emphasis added). This reasoning is sophistic. It would be improper—indeed, impossible —for the Attorney General to “undertake the five-factor analysis” of §823(f) and to “appl[y] the registration provision” outside the context of an actual enforcement proceeding. But of course the Attorney General may issue regulations to clarify his interpretation of the five factors, and to signal how he will apply them in future enforcement proceedings. That is what the Directive plainly purports to do by citing §824(a)(4), and that is why the Directive’s conclusion on deregistration is couched in conditional terms: “Such conduct by a physician … may ‘render his registration … inconsistent with the public interest’ and therefore subject to possible suspension or revocation under 21 U. S. C. [§]824(a)(4).” 66 Fed. Reg. 56608 (emphasis added).    It follows from what we have said that the Attorney General’s authoritative interpretations of “public interest” and “public health and safety” in §823(f) are subject to Chevron deference. As noted earlier, the Court does not contest that the absence of notice-and-comment procedures for the Directive renders Chevron inapplicable. And there is no serious argument that “Congress has directly spoken to the precise question at issue,” or that the Directive’s interpretations of “public health and safety” and “inconsistent with the public interest” are not “permissible.” Chevron , 467 U. S., at 842–843. On the latter point, in fact, the condemnation of assisted suicide by 50 American jurisdictions supports the Attorney General’s view. The Attorney General may therefore weigh a physician’s participation in assisted suicide as a factor counseling against his registration, or in favor of deregistration, under §823(f).    In concluding to the contrary, the Court merely presents the conclusory assertion that “it is doubtful the Attorney General could cite the ‘public interest’ or ‘public health’ to deregister a physician simply because he deemed a controversial practice permitted by state law to have an illegitimate medical purpose.” Ante , at 17. But why on earth not?—especially when he has interpreted the relevant statutory factors in advance to give fair warning that such a practice is “inconsistent with the public interest.” The Attorney General’s discretion to determine the public interest in this area is admittedly broad—but certainly no broader than other congressionally conferred Executive powers that we have upheld in the past. See, e.g. , National Broadcasting Co. v. United States , 319 U. S. 190 , 216–217 (1943) (“public interest”); New York Central Securities Corp. v. United States , 287 U. S. 12 , 24–25 (1932) (same); see also Mistretta v. United States , 488 U. S. 361 , 415–416 (1989) (Scalia, J., dissenting). *  *  *    In sum, the Directive’s first conclusion—namely that physician-assisted suicide is not a “legitimate medical purpose”—is supported both by the deference we owe to the agency’s interpretation of its own regulations and by the deference we owe to its interpretation of the statute. The other two conclusions—(2) that prescribing controlled drugs to assist suicide violates the CSA, and (3) that such conduct is also “inconsistent with the public interest”—are inevitable consequences of that first conclusion. Moreover, the third conclusion, standing alone, is one that the Attorney General is authorized to make.    The Court’s decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government’s business. It is easy to sympathize with that position. The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is within the realm of public morality (bonos mores) traditionally addressed by the so-called police power of the States. But then, neither is prohibiting the recreational use of drugs or discouraging drug addiction among the enumerated powers. From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality—for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. See Hoke v. United States , 227 U. S. 308 , 321–323 (1913); Lottery Case , 188 U. S. 321 , 356 (1903). Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible. The question before us is not whether Congress can do this, or even whether Congress should do this; but simply whether Congress has done this in the CSA. I think there is no doubt that it has. If the term “ legitimate medical purpose” has any meaning, it surely excludes the prescription of drugs to produce death.    For the above reasons, I respectfully dissent from the judgment of the Court. Footnote 1 To be sure, this acknowledgment did not go far enough, because it overlooked the significance of the word “legitimate,” which is most naturally understood to create an objective, federal standard for appropriate medical uses. See Mississippi Band of Choctaw Indians v. Holyfield , 490 U. S. 30 , 43 (1989) (“We start … with the general assumption that in the absence of a plain indication to the contrary, … Congress when it enacts a statute is not making the application of the federal act dependent on state law” (internal quotation marks omitted)). Footnote 2 The only place outside 21 U. S. C. §801 in which the statute uses the phrase “legitimate medical purpose” is in defining the phrase “valid prescription” for purposes of the reporting requirements that apply to mail orders of regulated substances. See §830(b)(3)(A)(ii). The Regulation did not “parrot” this statutory section, because the Regulation was adopted in 1971 and the statutory language was added in 2000. See Brief for Petitioners 17 (citing the Children’s Health Act of 2000, §3652, 114 Stat. 1239, 21 U. S. C. §830(b)(3)). But even if the statutory language had predated the Regulation, there would be no “parroting” of that phrase. In using the word “prescription” without definition in the much more critical §829, Congress left the task of resolving any ambiguity in that word, used in that context, to the relevant Executive officer. That the officer did so by deeming relevant a technically inapplicable statutory definition contained elsewhere in the statute does not make him a parrot. He has given to the statutory text a meaning it did not explicitly—and perhaps even not necessarily—contain. Footnote 3 The Court concludes that “[e]ven if ‘control’ in §821 were understood to signify something other than its statutory definition, it would not support the Interpretive Rule.” Ante , at 13. That conclusion rests upon a misidentification of the text that the Attorney General, pursuant to his “control” authority, is interpreting. No one argues that the word “control” in §821 gives the Attorney General “authority to define diversion based on his view of legitimate medical practice,” ibid . Rather, that word authorizes the Attorney General to interpret (among other things) the “prescription” requirement of §829. The question then becomes whether the phrase “ legitimate medical purpose ” (which all agree is included in “prescription”) is at least open to the interpretation announced in the Directive. See Chevron U. S. A. Inc. , v. Natural Resources Defense Council, Inc. , 467 U. S. 837 , 843 (1984). And of course it is—as the Court effectively concedes two pages earlier: “All would agree, we should think, that the statutory phrase ‘legitimate medical purpose’ is a generality, susceptible to more precise definition and open to varying constructions, and thus ambiguous in the relevant sense.” Ante , at 11 (citing Chevron ). Footnote 4 This phrase appears only in the Regulation and not in the relevant section of the statute. But as pointed out earlier, the Court does not contest that this is the most reasonable interpretation of the section—regarding it, indeed, as a mere “parroting” of the statute. Footnote 5 Title 21 U. S. C. §903 reads, in relevant part, as follows: “No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter … unless there is a positive conflict … .” Footnote 6 The other case cited by the Court, FDA v. Brown & Williamson Tobacco Corp. , 529 U. S. 120 (2000), is even more obviously inapt. There we relied on the first step of the Chevron analysis to determine that Congress had spoken to the precise issue in question, impliedly repealing the grant of jurisdiction on which the FDA relied. 529 U. S., at 160–161. Here, Congress has not expressly or impliedly authorized the practice of assisted suicide, or indeed “spoken directly” to the subject in any way beyond the text of the CSA. THOMAS, J., DISSENTING GONZALES V. OREGON 546 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 04-623 ALBERTO R. GONZALES, ATTORNEY GENERAL, et al., PETITIONERS v. OREGON et al. on writ of certiorari to the united states court of appeals for the ninth circuit [January 17, 2006]    Justice Thomas, dissenting.    When Angel Raich and Diane Monson challenged the application of the Controlled Substances Act (CSA), 21 U. S. C. §801 et seq. , to their purely intrastate possession of marijuana for medical use as authorized under California law, a majority of this Court (a mere seven months ago) determined that the CSA effectively invalidated California’s law because “the CSA is a comprehensive regulatory regime specifically designed to regulate which controlled substances can be utilized for medicinal purposes, and in what manner .” Gonzales v. Raich, 545 U. S. ___, ___ (2005) (slip op., at 24) (emphasis added). The majority employed unambiguous language, concluding that the “manner” in which controlled substances can be utilized “for medicinal purposes” is one of the “core activities regulated by the CSA.” Id., at ___ (slip op., at 25). And, it described the CSA as “creating a comprehensive framework for regulating the production, distribution, and possession of … ‘controlled substances,’ ” including those substances that “ ‘have a useful and legitimate medical purpose,’ ” in order to “foster the beneficial use of those medications” and “to prevent their misuse.” Id., at ___ (slip op., at 21).    Today the majority beats a hasty retreat from these conclusions. Confronted with a regulation that broadly requires all prescriptions to be issued for a “legitimate medical purpose,” 21 CFR §1306.04(a) (2005), a regulation recognized in Raich as part of the Federal Government’s “closed … system” for regulating the “manner” in “which controlled substances can be utilized for medicinal purposes,” 545 U. S., at ___, ___ (slip op., at 10, 24), the majority rejects the Attorney General’s admittedly “at least reasonable,” ante, at 26, determination that administering controlled substances to facilitate a patient’s death is not a “ ‘legitimate medical purpose.’ ” The majority does so based on its conclusion that the CSA is only concerned with the regulation of “medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood.” Ante , at 23. In other words, in stark contrast to Raich’ s broad conclusions about the scope of the CSA as it pertains to the medicinal use of controlled substances, today this Court concludes that the CSA is merely concerned with fighting “ ‘drug abuse’ ” and only insofar as that abuse leads to “addiction or abnormal effects on the nervous system.”[ Footnote 1 ] Ante, at 26.    The majority’s newfound understanding of the CSA as a statute of limited reach is all the more puzzling because it rests upon constitutional principles that the majority of the Court rejected in Raich . Notwithstanding the States’ “ ‘traditional police powers to define the criminal law and to protect the health, safety, and welfare of their citizens,’ ” 545 U. S., at ___, n. 38 (slip op., at 27, n. 38), the Raich majority concluded that the CSA applied to the intrastate possession of marijuana for medicinal purposes authorized by California law because “Congress could have rationally” concluded that such an application was necessary to the regulation of the “larger interstate marijuana market.” Id. , at ___, ___ (slip op., at 28, 30). Here, by contrast, the majority’s restrictive interpretation of the CSA is based in no small part on “the structure and limitations of federalism, which allow the States ‘ “great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.” ’ ” Ante , at 23 (quoting Medtronic, Inc. v. Lohr, 518 U. S. 470 , 475 (1996), in turn quoting Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 , 756 (1985)). According to the majority, these “background principles of our federal system … belie the notion that Congress would use … an obscure grant of authority to regulate areas traditionally supervised by the States’ police power.” Ante, at 28.    Of course there is nothing “obscure” about the CSA’s grant of authority to the Attorney General. Ante , p. ___ (Scalia, J., dissenting). And, the Attorney General’s conclusion that the CSA prohibits the States from authorizing physician assisted suicide is admittedly “at least reasonable,” ante , at 26 (opinion of the Court), and is therefore entitled to deference. Ante, at 6–7 (Scalia, J., dissenting). While the scope of the CSA and the Attorney General’s power thereunder are sweeping, and perhaps troubling, such expansive federal legislation and broad grants of authority to administrative agencies are merely the inevitable and inexorable consequence of this Court’s Commerce Clause and separation-of-powers jurisprudence. See, e.g. , Raich , supra; Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001).    I agree with limiting the applications of the CSA in a manner consistent with the principles of federalism and our constitutional structure. Raich , supra, at ___ (Thomas, J., dissenting); cf. Whitman, supra , at 486–487 (Thomas, J., concurring) (noting constitutional concerns with broad delegations of authority to administrative agencies). But that is now water over the dam. The relevance of such considerations was at its zenith in Raich , when we considered whether the CSA could be applied to the intrastate possession of a controlled substance consistent with the limited federal powers enumerated by the Constitution. Such considerations have little, if any, relevance where, as here, we are merely presented with a question of statutory interpretation, and not the extent of constitutionally permissible federal power. This is particularly true where, as here, we are interpreting broad, straightforward language within a statutory framework that a majority of this Court has concluded is so comprehensive that it necessarily nullifies the States’ “ ‘traditional … powers … to protect the health, safety, and welfare of their citizens.’ ”[ Footnote 2 ] Raich , supra, at ___, n. 38 (slip op., at 27, n. 38). The Court’s reliance upon the constitutional principles that it rejected in Raich —albeit under the guise of statutory interpretation—is perplexing to say the least. Accordingly, I respectfully dissent. Footnote 1 The majority does not expressly address whether the ingestion of a quantity of drugs that is sufficient to cause death has an “abnormal effec[t] on the nervous system,” ante , at 25, though it implicitly rejects such a conclusion. Footnote 2 Notably, respondents have not seriously pressed a constitutional claim here, conceding at oral argument that their “point is not necessarily that [the CSA] would be unconstitutional.” Tr. of Oral Arg. 44. In any event, to the extent respondents do present a constitutional claim, they do so solely within the framework of Raich . Framed in this manner, the claim must fail. The respondents in Raich were “local growers and users of state-authorized, medical marijuana,” who stood “outside the interstate drug market” and possessed “ ‘medicinal marijuana … not intended for … the stream of commerce.’ ” 545 U. S., at ___, ___, (slip op., at 5, 16) (Thomas, J., dissenting). Here, by contrast, the respondent-physicians are active participants in the interstate controlled substances market, and the drugs they prescribe for assisting suicide have likely traveled in interstate commerce. If the respondents in Raich could not sustain a constitutional claim, then a fortiori respondents here cannot sustain one. Respondents’ acceptance of Raich forecloses their constitutional challenge.

The case of Gonzales v. Oregon (2006) concerned the question of whether the Controlled Substances Act (CSA) allowed the US Attorney General to prohibit doctors from prescribing regulated drugs for physician-assisted suicide, even if state law permitted it. The Court interpreted the CSA to determine if the Attorney General's action was consistent with the statute. Oregon had legalized assisted suicide with the Oregon Death with Dignity Act (ODWDA), which allowed state-licensed physicians to prescribe lethal doses of drugs to terminally ill patients requesting it. These drugs were regulated under the CSA, which allowed their availability only by prescription from a registered physician. The Attorney General issued an Interpretive Rule, stating that using controlled substances for assisted suicide was unlawful under the CSA. The Court examined the text and structure of the CSA, considering its objectives to combat drug abuse and control the traffic of controlled substances. The majority opinion concluded that the CSA did not authorize the Attorney General to prohibit doctors from prescribing regulated drugs for assisted suicide under state law.

Immigration & National Security

Bugajewitz v. Adams

https://supreme.justia.com/cases/federal/us/228/585/

U.S. Supreme Court Bugajewitz v. Adams, 228 U.S. 585 (1913) Bugajewitz v. Adams No. 239 Submitted April 21, 1913 Decided May 12, 1913 228 U.S. 585 APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO Syllabus Congress has power to order the deportation of aliens whose presence in the country it deems hurtful, and this applies to prostitutes regardless of the time they have been here. The determination of whether an alien falls within the class that Congress had declared to be undesirable, by facts which might constitute a crime under local law, is not a conviction of crime, nor is deportation a punishment. Page 228 U. S. 586 The prohibition of ex post facto laws in Art. I, § 9 of the federal Constitution has no application to the deportation of aliens. There is a distinction between the words "as provided" and "in the manner provided;" the former may be controlled by an express limitation in the statute, while the latter must not be so controlled, and so held that the limitation in § 3 of the Act of February 20, 1907, was stricken out by the Act of February 26, 1910, notwithstanding a reference in the latter act to a section in the former act in which the limitation was referred to. The facts, which involve the power of Congress to deport aliens and the construction of the Acts of Congress relating to deportation of alien prostitutes, are stated in the opinion. Page 228 U. S. 590 MR. JUSTICE HOLMES delivered the opinion of the Court. This is an appeal from an order discharging a writ of habeas corpus and remanding the petitioner to custody. The ground of the appeal is that the Act of March 26, 1910, c. 128, § 2, 36 Stat. 263, 265, relied on as authority for the arrest, impairs the petitioner's constitutional rights. It appears from the petition and the return to the writ that the petitioner is an alien; that she entered the United States not later than January 4, 1905, and that she was arrested on August 3, 1910, on an order of the Acting Secretary of Commerce and Labor, directing the Immigrant Inspector to take her into custody, and to grant her a hearing to show cause why she should not be deported. The order recited that she was then a prostitute and inmate of a house of prostitution, and that she was a prostitute at the time of entry, and entered the United States for the purpose of prostitution or for an immoral purpose. The answer to the return demurs to its sufficiency, and denies that she was a prostitute at the time of entry, or that she entered the United States for any of the purposes alleged; but we must take it at least that she is a prostitute now. By the Act of February 20, 1907, c. 1134, § 3, 34 Stat. 898, 899, any alien woman found practicing prostitution within three years after she should have entered the United States was to be deported "as provided by sections twenty and twenty-one of this act." This section was amended by the Act of March 26, 1910, c. 128, § 2, 36 Stat. 265, Page 228 U. S. 591 and the limitation of three years was stricken out, but the amendment still refers to §§ 20, 21, and orders deportation "in the manner provided by" §§ 20, 21. The beginning of these two sections provides for the taking into custody of aliens subject to removal, within three years from entry, and so it has been argued in other cases that the three-year limitation still holds good. The construction of the amendment was not relied on here, but, before we can deal with the constitutional question, it becomes necessary to dispose of that point. We are of opinion that the effect of striking out the three-year clause from § 3 is not changed by the reference to §§ 20 and 21. The change in the phraseology of the reference indicates to narrowed purpose. The prostitute is to be deported, not "as provided," but "in the manner provided," in §§ 20, 21. Those sections provide the means for securing deportation, and it still was proper to point to them for that. United States v. Weis, 181 F. 860; Chomel v. United States, 192 F. 117 The attempt to reopen the constitutional question must fail. It is thoroughly established that Congress has power to order the deportation of aliens whose presence in the country it deems hurtful. The determination by facts that might constitute a crime under local law is not a conviction of crime, nor is the deportation a punishment; it is simply a refusal by the government to harbor persons whom it does not want. The coincidence of the local penal law with the policy of Congress is an accident. Fong Yue Ting v. United States, 149 U. S. 698 , 149 U. S. 707 , 149 U. S. 728 -730; Wong Wing v. United States, 163 U. S. 228 , 163 U. S. 231 ; Zakonaite v. Wolf, 226 U. S. 272 , 226 U. S. 275 ; Tiaco v. Forbes, ante, p. 229 U. S. 549 . The prohibition of ex post facto laws in Article 1, § 9, has no application, Johnannessen v. United States, 225 U. S. 227 , 225 U. S. 242 , and, with regard to the petitioner, it is not necessary to construe the statute as having any retrospective effect. Judgment affirmed.

Here is a summary of the Supreme Court case Bugajewitz v. Adams (1913): The case centered around the power of Congress to deport aliens and the construction of the Acts of Congress related to the deportation of alien prostitutes. The Court affirmed the government's authority to deport aliens deemed harmful to the country, regardless of the duration of their stay. The determination of an alien's deportability based on facts that might constitute a local crime was not considered a conviction or punishment. The Court also distinguished between the phrases "as provided" and "in the manner provided," concluding that the latter indicated a narrowed purpose and referred to the means of securing deportation. The prohibition of ex post facto laws was deemed inapplicable to alien deportation.

Immigration & National Security

Yamataya v. Fisher

https://supreme.justia.com/cases/federal/us/189/86/

U.S. Supreme Court Japanese Immigrant Case, 189 U.S. 86 (1903) Japanese Immigrant Case No. 171 Argued February 24, 1903 Decided April 6, 1903 189 U.S. 86 APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF WASHINGTON Syllabus 1. As the existing treaty with Japan expressly excepts from its operation any regulation relating to police and public security, and as the various acts of Congress forbidding aliens of whatever country to enter the United States who are paupers or persons likely to become a public charge are regulations for police and public security, aliens from Japan of the prohibited class have no right to enter or reside in the United States. Quaere whether, even in the absence of such a provision in the treaty, the "full liberty to enter, reside," etc., clause refers to that class in either country who from habits or conditions are the object of police regulations designed to protect the general public against contact with dangerous or improper persons. 2. It has been firmly established by numerous decisions of this Court that it is within the constitutional power of Congress to exclude aliens of a particular race from the United States, prescribe the terms and conditions upon which certain classes may come to this country, establish regulations for sending out of the country such aliens as come here in violation of law, and commit the enforcement of such provisions, conditions and regulations to executive officers, without judicial intervention. 3. An administrative officer, when executing the provisions of a statute involving the liberty of persons, may not disregard the fundamental principles of due process of law as understood at the time of the adoption of the Constitution. Nor is it competent for any executive officer at any time within the year limited by the statute, to arbitrarily cause an alien who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although illegally here, to be arrested and deported without giving such alien an opportunity, appropriate to the case, to be heard upon the questions involving his right to be and remain in the United States. Where, however, the alien had notice, although not a formal one, the courts cannot interfere with the executive officers conducting it. The objections of the alien to the form of the investigation could have been presented to the officer having primary control of the case, or by an appeal to the Secretary of the Treasury, and the action of the executive officers is not subject to judicial review. Page 189 U. S. 87 This case presents some questions arising under the act of Congress relating to the exclusion of certain classes of alien immigrants. On the 11th day of July, 1901, appellant, a subject of Japan, landed at the port of Seattle, Washington, and on or about July 15, 1901, the appellee, an immigrant inspector of the United States, having instituted an investigation into the circumstances of her entering the United States, decided that she came here in violation of law, in that she was a pauper and a person likely to become a public charge, aliens of that class being excluded altogether from this country by the Act of March 3, 1891, 26 Stat. 1085, c. 551. The evidence obtained by the inspector was transmitted to the Secretary of the Treasury, who, under date of July 23, 1901, issued a warrant addressed to the immigrant inspector at Seattle, reciting that the appellant had come into the United States contrary to the provisions of the above act of 1891, and ordering that she be taken into custody and returned to Japan at the expense of the vessel importing her. The inspector being about to execute this warrant, an application was presented in behalf of the appellant to the District Court of the United States for the District of Washington, Northern Division, for a writ of habeas corpus. The application alleged that the imprisonment of the petitioner was unlawful, and that she did not come here in violation of the act of 1891 or of any other law of the United States relating to the exclusion of aliens. The writ having been issued, a return was made by the inspector stating that he had found upon due investigation and the admissions of the appellant that she was a pauper and a person likely to become a public charge, and had "surreptitiously, clandestinely, unlawfully, and without any authority come into the United States;" that, "in pursuance of said testimony, admissions of the petitioner, Kaoru Yamataya, evidence, facts, and circumstances," he had decided that she had no right to be within the Territory of the United States, and was a proper person for deportation, all which he reported to the proper officers of the government, who confirmed his decision, Page 189 U. S. 88 and thereupon the Secretary of the Treasury issued his warrant requiring the deportation of the appellant. That warrant was produced and made part of the return. The return of the inspector was traversed, the traverse admitting that the inspector had investigated the case of the petitioner, and had made a finding that she had illegally come into this country, but alleging that the investigation was a "pretended" and an inadequate one; that she did not understand the English language, and did not know at the time that such investigation was with a view to her deportation from the country, and that the investigation was carried on without her having the assistance of counsel or friends, or an opportunity to show that she was not a pauper or likely to become a public charge. The traverse alleged that the petitioner was not in the United States in violation of law. A demurrer to the traverse was sustained, the writ of habeas corpus was dismissed, and the appellant was remanded to the custody of the inspector. From that order, the present appeal was prosecuted. Page 189 U. S. 94 MR. JUSTICE HARLAN delivered the opinion of the Court. It will conduce to a clear understanding of the questions to be determined if we recall certain legislation of Congress relating to the exclusion of aliens from the United States, and to the Treaty of 1894 between Japan and the United States. By the deficiency appropriation Act of October 19, 1888, c. 1210, it was provided that the Act of February 23, 1887, c. 220, amendatory of the act prohibiting the importation and immigration of foreigners and aliens under contract or agreement to perform labor in the United States, its territories, and the District of Columbia, 24 Stat. 414, be so amended "as to authorize the Secretary of the Treasury, in case he shall be satisfied that an immigrant has been allowed to land contrary to the prohibition of that law, to cause such immigrant, within the period of one year after landing or entry, to be taken into custody and returned to the country from whence he came at the expense of the owner of the importing vessel, or, if he entered from an adjoining country at the expense of the person previously contracting for the services." 25 Stat. 566. By the first section of the Act of Congress of March 3, 1891, c. 551, amendatory of the various acts relating to immigration and importation of aliens under contract or agreement to perform labor, it was provided: "That the following classes of aliens shall be excluded from admission into the United States, in accordance with the existing acts regulating immigration, other than those concerning Chinese laborers: all idiots, insane persons, paupers, or persons likely to become a public charge, persons suffering from a loathsome or a dangerous contagious disease, persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude, polygamists, and also any person whose ticket or passage is paid for with the money of another or who is assisted by others to come, unless it is affirmatively and satisfactorily shown, on Page 189 U. S. 95 special inquiry, that such person does not belong to one of the foregoing excluded classes, or to the class of contract laborers excluded by the Act of February twenty-sixth, eighteen hundred and eighty-five (23 Stat. 332). . . ." 26 Stat. 1084. By the eighth section of that act, it was provided: "That upon the arrival by water at any place within the United States of any alien immigrants, it shall be the duty of the commanding officer and the agents of the steam or sailing vessel by which they came to report the name, nationality, last residence, and destination of every such alien, before any of them are landed, to the proper inspection officers, who shall thereupon go or send competent assistants on board such vessel and there inspect all such aliens, or the inspection officers may order a temporary removal of such aliens for examination at a designated time and place, and then and there detain them until a thorough inspection is made. . . . The inspection officers and their assistants shall have power to administer oaths, and to take and consider testimony touching the right of any such aliens to enter the United States, all of which shall be entered of record. During such inspection, after temporary removal, the superintendent shall cause such aliens to be properly housed, fed, and cared for, and also, in his discretion, such as are delayed in proceeding to their destination after inspection. All decisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the superintendent of immigration, whose action shall be subject to review by the Secretary of the Treasury. It shall be the duty of the aforesaid officers and agents of such vessel to adopt due precautions to prevent the landing of any alien immigrant at any place or time other than that designated by the inspection officers, and any such officer or agent or person in charge of such vessel who shall, either knowingly or negligently, land or permit to land any alien immigrant at any place or time other than that designated by the inspection officers, shall be deemed guilty of a misdemeanor and punished by a fine not exceeding one thousand dollars, or by imprisonment for a term not exceeding one year, or by both such fine and imprisonment." 26 Stat. 1085. Page 189 U. S. 96 By the tenth section, it is provided that "all aliens who may unlawfully come to the United States shall, if practicable, be immediately sent back on the vessel by which they were brought in." The eleventh section of the same act provided: "That any alien who shall come into the United States in violation of law may be returned as by law provided at any time within one year thereafter at the expense of the person or persons, vessel, transportation company, or corporation bringing such alien into the United States, and, if that cannot be done, then at the expense of the United States, and any alien who becomes a public charge within one year after his arrival in the United States, from as causes existing prior to his landing therein, shall be deemed to have come in violation of law, and shall be returned as aforesaid." 26 Stat. 1084. In the Sundry Civil Appropriation Act of August 18, 1894, c. 301, was the following provision: "In every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereafter made, the decision of the appropriate immigration or customs officers, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the Secretary of the Treasury." 28 Stat. 372, 390. Then came the treaty between the United States and the Empire of Japan, concluded November 23, 1894, and proclaimed March 21, 1895, and which, by its terms, was to go into operation July 17, 1899. By the first article of that treaty it was provided: "The citizens or subjects of each of the two high contracting parties shall have full liberty to enter, travel, or reside in any part of the territories of the other contracting party, and shall enjoy full and perfect protection for their persons and property." 29 Stat. 848. But, by the second article, it was declared. "It is, however, understood that the stipulations contained in this and the preceding article do not in any way affect the laws, ordinances, and regulations with regard to trade, the immigration of laborers, police and public security, which are in force or which may hereafter be enacted in either of the two countries." 29 Stat. 849. 1. From the above acts of Congress, it appears that, among Page 189 U. S. 97 the aliens forbidden to enter the United States are those, of whatever country, who are "paupers or persons likely to become a public charge." We are of opinion that aliens of that class have not been given by the treaty with Japan full liberty to enter or reside in the United States; for that instrument expressly excepts from its operation any ordinance or regulation relating to "police and public security." A statute excluding paupers or persons likely to become a public charge is manifestly one of police and public security. Aside from that specific exception, we should not be inclined to hold that the provision in the treaty with Japan, that the citizens or subjects of each of the two counties should have "full liberty to enter, travel, or reside in any part of the territories of the other contracting party," has any reference to that class, in either country, who, from their habits or condition, are ordinarily or properly the object of police regulations designed to protect the general public against contact with dangerous or improper persons. 2. The constitutionality of the legislation in question, in its general aspects, is no longer open to discussion in this Court. That Congress may exclude aliens of a particular race from the United States, prescribe the terms and conditions upon which certain classes of aliens may come to this country, establish regulations for sending out of the country such aliens as come here in violation of law, and commit the enforcement of such provisions, conditions, and regulations exclusively to executive officers, without judicial intervention -- are principles firmly established by the decisions of this Court. Nishimura Ekiu v. United States, 142 U. S. 651 ; Fong Yue Ting v. United States, 149 U. S. 698 ; Lem Moon Sing v. United States, 158 U. S. 538 ; Wong Wing v. United States, 163 U. S. 228 ; Fok Yung Yo v. United States, 185 U. S. 296 , 185 U. S. 305 . In Nishimura's case, the Court said: "The supervision of the admission of aliens into the United States may be entrusted by Congress either to the Department of State, having the general management of foreign relations, or to the Department of the Treasury, charged with the enforcement of the laws regulating foreign commerce, and Congress has often passed Page 189 U. S. 98 acts forbidding the immigration of particular classes of foreigners, and has committed the execution of these acts to the Secretary of the Treasury, to collectors of customs, and to inspectors acting under their authority." After observing that Congress, if it saw fit, could authorize the courts to investigate and ascertain the facts on which depended the right of the alien to land, this Court proceeded: "But, on the other hand, the final determination of those facts may be entrusted by Congress to executive officers, and in such a case, as in all others in which a statute gives a discretionary power to an officer, to be exercised by him upon his own opinion of certain facts, he is made the sole and exclusive judge of the existence of those facts, and no other tribunal, unless expressly authorized by law to do so, is at liberty to reexamine or controvert the sufficiency of the evidence on which he acted. Martin v. Mott , 12 Wheat. 19, 25 U. S. 31 ; Philadelphia & Trenton Railroad v. Stimpson , 14 Pet. 448, 39 U. S. 458 ; Benson v. McMahon, 127 U. S. 457 ; In re Oteiza, 136 U. S. 330 . It is not within the province of the judiciary to order that foreigners who have never been naturalized, nor acquired any domicil or residence within the United States, nor even been admitted into the country pursuant to law, shall be permitted to enter, in opposition to the constitutional and lawful measures of the legislative and executive branches of the national government. As to such persons, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law. Murray v. Hoboken Co. , 18 How. 272; Hilton v. Merritt, 110 U. S. 97 ." In Lem Moon Sing's case, it was said: "The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications." And in Fok Yung Yo's case, the latest one in this Court, it was said: "Congressional action has placed the final determination of the right of admission in executive officers, without judicial Page 189 U. S. 99 intervention, and this has been for many years the recognized and declared policy of the country." What was the extent of the authority of the executive officers of the government over the petitioner after she landed? As has been seen, the Secretary of the Treasury, under the above Act of October 19, 1888, c. 1210, was authorized, within one year after an alien of the excluded class entered the country, to cause him to be taken into custody and returned to the country whence he came. Substantially the same power was conferred by the Act of March 3, 1891, c. 551, by the eleventh section of which it is provided that the alien immigrant may be sent out of the country, "as provided by law," at any time within the year after his illegally coming into the United States. Taking all its enactments together, it is clear that Congress did not intend that the mere admission of an alien, or his mere entering the country, should place him at all times thereafter entirely beyond the control or authority of the executive officers of the government. On the contrary, if the Secretary of the Treasury became satisfied that the immigrant had been allowed to land contrary to the prohibition of that law, then he could at any time within a year after the landing cause the immigrant to be taken into custody and deported. The immigrant must be taken to have entered subject to the condition that he might be sent out of the country by order of the proper executive officer if, within a year, he was found to have been wrongfully admitted into, or had illegally entered, the United States. These were substantially the views expressed by the Circuit Court of Appeals for the Ninth Circuit in United States v. Yamasaka, 100 F. 404. It is contended, however, that in respect of an alien who has already landed, it is consistent with the acts of Congress that he may be deported without previous notice of any purpose to deport him, and without any opportunity on his part to show by competent evidence before the executive officers charged with the execution of the acts of Congress, that he is not here in violation of law; that the deportation of an alien without provision for such a notice and for an opportunity to be heard Page 189 U. S. 100 was inconsistent with the due process of law required by the Fifth Amendment of the Constitution. Leaving on one side the question whether an alien can rightfully invoke the due process clause of the Constitution who has entered the country clandestinely, and who has been here for too brief a period to have become, in any real sense, a part of our population, before his right to remain is disputed, we have to say that the rigid construction of the acts of Congress suggested by the appellant are not justified. Those acts do not necessarily exclude opportunity to the immigrant to be heard, when such opportunity is of right. It was held in Murray's Lessee v. Hoboken Land & Improvement Co. , 18 How. 272, 59 U. S. 280 -281, 59 U. S. 283 , that, "though 'due process of law' generally implies and includes actor, reus, judgex, regular allegations, opportunity to answer and a trial according to some settled course of judicial proceedings, . . . yet this is not universally true," and "that though generally, through judicial action, there are more summary through judicial action, there are more summary extrajudicial remedies for both." Hence, it was decided in that case to be consistent with due process of law for Congress to provide summary means to compel revenue officers -- and, in case of default, their sureties -- to pay such balances of the public money as might be in their hands. Now, it has been settled that the power to exclude or expel aliens belonged to the political department of the government, and that the order of an executive officer invested with the power to determine finally the facts upon which an alien's right to enter this country, or remain in it, depended, was "due process of law, and no other tribunal, unless expressly authorized to do so, was at liberty to reexamine the evidence on which he acted, or to controvert its sufficiency." Fong Yue Ting v. United States, 149 U. S. 698 , 149 U. S. 713 ; Nishimura Ekiu v. United States, 142 U. S. 651 , 142 U. S. 659 ; Lem Moon Sing v. United States, 158 U. S. 538 , 158 U. S. 547 . But this Court has never held, nor must we now be understood as holding, that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in "due process of law" as understood at the time of the adoption of the Constitution. Page 189 U. S. 101 One of these principles is that no person shall be deprived of his liberty without opportunity at some time to be heard before such officers in respect of the matters upon which that liberty depends -- not necessarily an opportunity upon a regular, set occasion, and according to the forms of judicial procedure, but one that will secure the prompt, vigorous action contemplated by Congress, and at the same time be appropriate to the nature of the case upon which such officers are required to act. Therefore it is not competent for the Secretary of the Treasury or any executive officer, at any time within the year limited by the statute, arbitrarily to cause an alien who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although alleged to be illegally here, to be taken into custody and deported without giving him all opportunity to be heard upon the questions involving his right to be and remain in the United States. No such arbitrary power can exist where the principles involved in due process of law are recognized. This is the reasonable construction of the acts of Congress here in question, and they need not be otherwise interpreted. In the case of all acts of Congress, such interpretation ought to be adopted as, without doing violence to the import of the words used, will bring them into harmony with the Constitution. An act of Congress must be taken to be constitutional unless the contrary plainly and palpably appears. The words here used do not require an interpretation that would invest executive or administrative officers with the absolute, arbitrary power implied in the contention of the appellant. Besides, the record now before us shows that the appellant had notice, although not a formal one, of the investigation instituted for the purpose of ascertaining whether she was illegally in this country. The traverse to the return made by the immigration inspector shows upon its face that she was before that officer pending the investigation of her right to be in the United States, and made answers to questions propounded to her. It is true that she pleads a want of knowledge of our language, that she did not understand the nature and import of the questions propounded to her, that the investigation made was a Page 189 U. S. 102 "pretended" one, and that she did not, at the time, know that the investigation had reference to her being deported from the country. These considerations cannot justify the intervention of the courts. They could have been presented to the officer having primary control of such a case, as well as upon an appeal to the Secretary of the Treasury, who had power to order another investigation if that course was demanded by law or by the ends of justice. It is not to be assumed that either would have refused a second or fuller investigation if a proper application and showing for one had been made by or for the appellant. Whether further investigation should have been ordered was for the officers charged with the execution of the statutes to determine. Their action in that regard is not subject to judicial review. Suffice it to say it does not appear that appellant was denied an opportunity to be heard. And as no appeal was taken to the Secretary from the decision of the immigration inspector, that decision was final and conclusive. If the appellant's want of knowledge of the English language put her at some disadvantage in the investigation conducted by that officer, that was her misfortune, and constitutes no reason, under the acts of Congress or under any rule of law, for the intervention of the court by habeas corpus. We perceive no ground for such intervention -- none for the contention that due process of law was denied to appellant. The judgment is Affirmed. MR. JUSTICE BREWER and MR. JUSTICE PECKHAM dissented.

In the Japanese Immigrant Case of 1903, the U.S. Supreme Court ruled that while Congress has the power to exclude aliens of a particular race and set terms for their entry and residence, due process rights must be respected. Aliens subject to police regulations designed to protect public security can be excluded or deported, but they must be given notice and an opportunity to be heard. The Court affirmed the decision to deport the appellant, a Japanese subject, as she had notice and an opportunity to present her case, despite her language disadvantage.

Immigration & National Security

U.S. ex rel. Knauff v. Shaughnessy

https://supreme.justia.com/cases/federal/us/338/537/

U.S. Supreme Court Knauff v. Shaughnessy, 338 U.S. 537 (1950) United States ex Rel. Knauff v. Shaughnessy No. 54 Argued December 5-6, 1949 Decided January 16,1950 338 U.S. 537 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus The alien wife of a citizen who had served honorably in the armed forces of the United States during World War II sought admission to the United States. On the basis of confidential information, the disclosure of which, in his judgment, would endanger the public security, the Attorney General denied a hearing, found that her admission would be prejudicial to the interests of the United States, and ordered her excluded. Held: this action was authorized by the Act of June 21, 1941, 22 U.S.C. § 223, and the proclamations and regulations issued thereunder, notwithstanding the War Brides Act of December 28, 1945, 8 U.S.C. § 252 et seq. Pp. 539-547. (a) The admission of aliens to this country is not a right, but a privilege, which is granted only upon such terms as the United States prescribes. P. 338 U. S. 542 . (b) The Act of June 21, 1941, did not unconstitutionally delegate legislative power to prescribe the conditions under which aliens should be excluded. Pp. 338 U. S. 542 -543. (c) It is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of Government to exclude a given alien. Page 338 U. S. 538 (d) Any procedure authorized by Congress for the exclusion of aliens is due process, so far as an alien denied entry is concerned. P. 338 U. S. 544 . (e) The regulations governing the entry of aliens into the United States during the national emergency proclaimed May 27, 1941, which were prescribed by the Secretary of State and the Attorney General pursuant to Presidential Proclamation 2523, were "reasonable" within the meaning of the Act of June 21, 1941. P. 338 U. S. 544 . (f) Presidential Proclamation 2523 authorized the Attorney General, as well as the Secretary of State, to order the exclusion of aliens. P. 338 U. S. 544 . (g) Petitioner, an alien, had no vested right of entry which could be the subject of a prohibition against retroactive operations of regulations affecting her status. P. 338 U. S. 544 . (h) The national emergency proclaimed May 27, 1941, has not been terminated; a state of war still exists; and the Act of June 21, 1941, and the proclamations and regulations thereunder, are still in force. Pp. 338 U. S. 545 -546. (i) A different result is not required by the War Brides Act, which waives some of the usual requirements for the admission of certain alien spouses only if they are "otherwise admissible under the immigration laws." Pp. 338 U. S. 546 -547. 173 F.2d 599 affirmed. The District Court dismissed a writ of habeas corpus obtained to test the right of the Attorney General to exclude from the United States, without a hearing, the alien wife of a citizen who had served honorably in the armed forces during World War II. The Court of Appeals affirmed. 173 F.2d 599. This Court granted certiorari. 336 U.S. 966. Affirmed, p. 338 U. S. 547 . Page 338 U. S. 539 MR. JUSTICE MINTON delivered the opinion of the Court. May the United States exclude without hearing, solely upon a finding by the Attorney General that her admission would be prejudicial to the interests of the United States, the alien wife of a citizen who had served honorably in the armed forces of the United States during World War II? The District Court, for the Southern District of New York held that it could, and the Court of Appeals for the Second Circuit affirmed. 173 F.2d 599. We granted certiorari to examine the question especially in the light of the War Brides Act of December 28, 1945, 336 U.S. 966. Petitioner was born in Germany in 1915. She left Germany and went to Czechoslovakia during the Hitler regime. There, she was married and divorced. She went to England in 1939 as a refugee. Thereafter, she served with the Royal Air Force efficiently and honorably from January 1, 1943, until May 30, 1946. She then secured civilian employment with the War Department of the United States in Germany. Her work was rated "very good" and "excellent." On February 28, 1948, with the permission of the Commanding General at Frankfurt, Germany, she married Kurt W. Knauff, a naturalized citizen of the United States. He is an honorably discharged United States Army veteran of World War II. He is, as he was at the time of his marriage, a civilian employee of the United States Army at Frankfurt, Germany. On August 14, 1948, petitioner sought to enter the United States to be naturalized. On that day, she was temporarily excluded from the United States and detained at Ellis Island. On October 6, 1948, the Assistant Commissioner of Immigration and Naturalization recommended that she be permanently excluded without a hearing on the ground that her admission would be Page 338 U. S. 540 prejudicial to the interests of the United States. On the same day, the Attorney General adopted this recommendation and entered a final order of exclusion. To test the right of the Attorney General to exclude her without a hearing for security reasons, habeas corpus proceedings were instituted in the Southern District of New York, based primarily on provisions of the War Brides Act. The District Court dismissed the writ, and the Court of Appeals affirmed. The authority of the Attorney General to order the exclusion of aliens without a hearing flows from the Act of June 21, 1941, amending § 1 of the Act of May 22, 1918, 55 Stat. 252, 22 U.S.C. § 223. [ Footnote 1 ] By the 1941 amendment, it was provided that the President might, upon finding that the interests of the United States required it, impose additional restrictions and prohibitions on the entry into and departure of persons from the United States during the national emergency proclaimed May 27, 1941. Pursuant to this Act of Congress, the President, on November 14, 1941, issued Proclamation 2523, 55 Stat. 1696, 3 CFR, 1943 Cum.Supp., 270-272. This proclamation recited that the interests of the United States required the imposition of additional restrictions upon the entry into and Page 338 U. S. 541 departure of persons from the country, and authorized the promulgation of regulations jointly by the Secretary of State and the Attorney General. It was also provided that no alien should be permitted to enter the United States if it were found that such entry would be prejudicial to the interest of the United States. [ Footnote 2 ] Pursuant to the authority of this proclamation, the Secretary of State and the Attorney General issued regulations governing the entry into and departure of persons from the United States during the national emergency. Subparagraphs (a) to (k) of § 175.53 of these regulations specified the classes of aliens whose entry into the United States was deemed prejudicial to the public interest. Subparagraph (b) of § 175.57 provided that the Attorney General might deny an alien a hearing before a board of inquiry in special cases where he determined that the alien was excludable under the regulations on the basis of information of a confidential nature, the disclosure of which would be prejudicial to the public interest. [ Footnote 3 ] Page 338 U. S. 542 It was under this regulation § 175.57(b) that petitioner was excluded by the Attorney General and denied a hearing. We are asked to pass upon the validity of this action. At the outset, we wish to point out that an alien who seeks admission to this country may not do so under any claim of right. Admission of aliens to the United States is a privilege granted by the sovereign United States Government. Such privilege is granted to an alien only upon such terms as the United States shall prescribe. It must be exercised in accordance with the procedure which the United States provides. Nishimura Ekiu v. United States, 142 U. S. 651 , 142 U. S. 659 ; Fong Yue Ting v. United States, 149 U. S. 698 , 149 U. S. 711 . Petitioner contends that the 1941 Act and the regulations thereunder are void to the extent that they contain unconstitutional delegations of legislative power. But there is no question of inappropriate delegation of legislative power involved here. The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power, but is inherent in the executive power to control the foreign affairs of the nation. United States v. Curtiss-Wright Export Corp., 299 U. S. 304 ; Fong Yue Ting v. United States, 149 U. S. 698 , 149 U. S. 713 . When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power. Page 338 U. S. 543 Thus, the decision to admit or to exclude an alien may be lawfully placed with the President, who may, in turn, delegate the carrying out of this function to a responsible executive officer of the sovereign, such as the Attorney General. The action of the executive officer under such authority is final and conclusive. Whatever the rule may be concerning deportation of persons who have gained entry into the United States, it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien. Nishimura Ekiu v. United States, 142 U. S. 651 , 142 U. S. 659 -660; Fong Yue Ting v. United States, 149 U. S. 698 , 149 U. S. 713 -714; Ludecke v. Watkins, 335 U. S. 160 . Cf. Yamataya v. Fisher, 189 U. S. 86 , 189 U. S. 101 . Normally, Congress supplies the conditions of the privilege of entry into the United States. But, because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power, e.g., as was done here, for the best interests of the country during a time of national emergency. Executive officers may be entrusted with the duty of specifying the procedures for carrying out the congressional intent. What was said in Lichter v. United States, 334 U. S. 742 , 334 U. S. 785 , is equally appropriate here: "It is not necessary that Congress supply administrative officials with a specific formula for their guidance in a field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program. . . . Standards prescribed by Congress are to be read in the light of the conditions to which they are to be applied. 'They derive much meaningful content from the purpose of the Act, its factual background and the statutory context in which they appear.' " Page 338 U. S. 544 Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned. Nishimura Ekiu v. United States, supra; Ludecke v. Watkins, supra. In the particular circumstances of the instant case, the Attorney General, exercising the discretion entrusted to him by Congress and the President, concluded upon the basis of confidential information that the public interest required that petitioner be denied the privilege of entry into the United States. He denied her a hearing on the matter because, is his judgment, the disclosure of the information on which he based that opinion would itself endanger the public security. We find no substantial merit to petitioner's contention that the regulations were not "reasonable," as they were required to be by the 1941 Act. We think them reasonable in the circumstances of the period for which they were authorized, namely, the national emergency of World War II. Nor can we agree with petitioner's assertion that Proclamation 2523, see note 2 supra, authorized only the Secretary of State, and not the Attorney General, to order the exclusion of aliens. See Presidential Proclamation 2850 of August 17, 1949, 14 Fed.Reg. 5173, amending and clarifying Proclamation 2523. We reiterate that we are dealing here with a matter of privilege. Petitioner had no vested right of entry which could be the subject of a prohibition against retroactive operation of regulations affecting her status. It is not disputed that the Attorney General's action was pursuant to the 8 CFR regulations heretofore discussed. [ Footnote 4 ] However, 22 U.S.C. §§ 223 [ Footnote 5 ] authorizes these special restrictions on the entry of aliens only when the United States is at war or during the existence of the Page 338 U. S. 545 national emergency proclaimed May 27, 1941, No. 2487. [ Footnote 6 ] For ordinary times, Congress has provided aliens with a hearing. 8 U.S.C. §§ 152, 153. And the contention of petitioner is that she is entitled to the statutory hearing because, for purposes of the War Brides Act, within which she comes, the war terminated when the President proclaimed the cessation of hostilities. [ Footnote 7 ] She contends that the War Brides Act, applicable portions of which are set out in the margin, [ Footnote 8 ] discloses a congressional intent that special restrictions on the entry of aliens should cease to apply to war brides upon the cessation of hostilities. The War Brides Act provides that World War II is the period from December 7, 1941, until the proclaimed termination of hostilities. This has nothing to do with the period for which the regulations here acted under were Page 338 U. S. 546 authorized. The beginning and end of the war are defined by the War Brides Act, we assume, for the purpose of ascertaining the period within which citizens must have served in the armed forces in order for their spouses and children to be entitled to the benefits of the Act. The special procedure followed in this case was authorized not only during the period of actual hostilities, but during the entire war and the national emergency proclaimed May 27, 1941. The national emergency has never been terminated. Indeed, a state of war still exists. See Woods v. Cloyd W. Miller Co., 333 U. S. 138 , n. 3. Thus, the authority upon which the Attorney General acted remains in force. The Act of June 21, 1941, and the President's proclamations and the regulations thereunder, are still a part of the immigration laws. The War Brides Act does not relieve petitioner of her alien status. Indeed, she sought admission in order to be naturalized, and thus to overcome her alien status. The Act relieved her of certain physical, mental, and documentary requirements, and of the quota provisions of the immigration laws. But she must, as the Act requires, still be "otherwise admissible under the immigration laws." In other words, aside from the enumerated relaxations of the immigration laws she must be treated as any other alien seeking admission. Under the immigration laws and regulations applicable to all aliens seeking entry into the United States during the national emergency, she was excluded by the Attorney General without a hearing. In such a case, we have no authority to retry the determination of the Attorney General. Ludecke v. Watkins, 335 U. S. 160 , 335 U. S. 171 -172. There is nothing in the War Brides Act or its legislative history [ Footnote 9 ] to indicate that it was the purpose of Congress, Page 338 U. S. 547 by partially suspending compliance with certain requirements and the quota provisions of the immigration laws, to relax the security provisions of the immigration laws. There is no indication that Congress intended to permit members or former members of the armed forces to marry and bring into the United States aliens who the President, acting through the Attorney General in the performance of his sworn duty, found should be denied entry for security reasons. As all other aliens, petitioner had to stand the test of security. This she failed to meet. We find no legal defect in the manner of petitioner's exclusion, and the judgment is Affirmed. MR. JUSTICE DOUGLAS and MR. JUSTICE CLARK took no part in the consideration or decision of this case. [ Footnote 1 ] "When the United States is at war or during the existence of the national emergency proclaimed by the President on May 27, 1941, or as to aliens whenever there exists a state of war between, or among, two or more states, and the President shall find that the interests of the United States require that restrictions and prohibitions in addition to those provided otherwise than by this Act be imposed upon the departure of persons from and their entry into the United States, and shall make public proclamation thereof, it shall, until otherwise ordered by the President or Congress, be unlawful --" "(a) For any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President shall prescribe. . . ." [ Footnote 2 ] "(3) After the effective date of the rules and regulations hereinafter authorized, no alien shall enter or attempt to enter the United States unless he is in possession of a valid unexpired permit to enter issued by the Secretary of State, or by an appropriate officer designated by the Secretary of State, or is exempted from obtaining a permit to enter in accordance with the rules and regulations which the Secretary of State, with the concurrence of the Attorney General, is hereby authorized to prescribe in execution of these rules, regulations, and orders." "No alien shall be permitted to enter the United States if it appears to the satisfaction of the Secretary of State that such entry would be prejudicial to the interests of the United States as provided in the rules and regulations hereinbefore authorized to be prescribed by the Secretary of State, with the concurrence of the Attorney General." 3 CFR, 1943 Cum.Supp., 271. [ Footnote 3 ] "In the case of an alien temporarily excluded by an official of the Department of Justice on the ground that he is, or may be excludable under one or more of the categories set forth in § 175.53, no hearing by a board of special inquiry shall be held until after the case is reported to the Attorney General and such a hearing is directed by the Attorney General or his representative. In any special case, the alien may be denied a hearing before a board of special inquiry and an appeal from the decision of that board if the Attorney General determines that he is excludable under one of the categories set forth in § 175.53 on the basis of information of a confidential nature, the disclosure of which would be prejudicial to the public interest." 8 CFR, 1945 Supp., § 175.57(b). [ Footnote 4 ] See note 3 supra. [ Footnote 5 ] See note 1 supra. [ Footnote 6 ] And at certain other times not material here. [ Footnote 7 ] Proclamation 2714 of December 31, 1946, 1946 Supp., 77. [ Footnote 8 ] "That, notwithstanding any of the several clauses of section 3 of the Act of February 5, 1917, excluding physically and mentally defective aliens, and notwithstanding the documentary requirements of any of the immigration laws or regulations, Executive orders, or Presidential proclamations issued thereunder, alien spouses or alien children of United States citizens serving in, or having an honorable discharge certificate from the armed forces of the United States during the Second World War shall, if otherwise admissible under the immigration laws and if application for admission is made within three years of the effective date of this Act, be admitted to the United States. . . ." "SEC. 2. Regardless of section 9 of the Immigration Act of 1924, any alien admitted under section 1 of this Act shall be deemed to be a nonquota immigrant as defined in section 4(a) of the Immigration Act of 1924." " * * * *" "SEC. 5. For the purpose of this Act, the Second World War shall be deemed to have commenced on December 7, 1941, and to have ceased upon the termination of hostilities as declared by the President or by a joint resolution of Congress." 59 Stat. 659, 8 U.S.C. §§ 232-236. [ Footnote 9 ] See H.R.Rep. No. 1320, 79th Cong., 1st Sess. (1945); S.Rep. No. 860, 79th Cong., 1st Sess. (1945); 91 Cong.Rec. 11738, 12342 (1945). MR. JUSTICE FRANKFURTER, dissenting. If the essence of statutory construction is to find the thought beneath the words, the views expressed by MR. JUSTICE JACKSON, in which I fully concur, enforce the purpose of Congress. The contrary conclusion substantially frustrates it. Seventy years ago began the policy of excluding mentally defective aliens from admission into the United States. Thirty years ago, it became our settled policy to admit even the most desirable aliens only in accordance with the quota system. By the so-called War Brides Act, Congress made inroads upon both these deeply rooted policies. Act of December 28, 1945, 59 Stat. 659, 8 U.S.C. § 232 et seq. It lifted the bar against the exclusion even of "physically and mentally defective aliens." It did this in favor of "alien spouses and alien minor children of citizen members who are serving or have served honorably in the armed forces of the United States during World War II." H.R.Rep. No.1320 and S.Rep. No.860, 79th Cong., 1st Sess. (1945). Page 338 U. S. 548 This was a bounty afforded by Congress not to the alien who had become the wife of an American, but to the citizen who had honorably served his country. Congress gave this bounty even though a physically or mentally defective person might thereby be added to the population of the United States. Yet it is suggested that the deepest tie that an American soldier could form may be secretly severed on the mere say-so of an official, however well intentioned. Although five minutes of cross-examination could enable the soldier-husband to dissipate seemingly convincing information affecting the security danger of his wife, that opportunity need not be accorded. And all this because of the literal reading of the provision of the War Brides Act that the alien spouse, though physically and mentally defective, is to be allowed to join her citizen husband "if otherwise admissible under the immigration laws." Upon that phrase is rested the whole structure of Executive regulation based on § 1 of the Act of May 22, 1918, 40 Stat. 559, as amended by the Act of June 21, 1941, 55 Stat. 252, 22 U.S.C. § 223, regarding the summary exclusion, without opportunity for a hearing, of an alien whose entry the Attorney General finds inimical to the public interest. * This is not the way to read such legislation. It is true also of Acts of Congress that "The letter Killeth." Legislation should not be read in such a decimating spirit unless the letter of Congress is inexorable. We are reminded from time to time that, in enacting legislation, Congress is not engaged in a scientific process which takes account of every contingency. Its laws are not to be read as though every "i" has to be dotted and every "t" Page 338 U. S. 549 crossed. The War Brides Act is legislation derived from the dominant regard which American society places upon the family. It is not to be assumed that Congress gave with a bountiful hand, but allowed its bounty arbitrarily to be taken away. In framing and passing the War Brides Act, Congress was preoccupied with opening the door to wives acquired by American husbands during service in foreign lands. It opened the door on essentials -- wives of American soldiers and perchance mothers of their children were not to run the gauntlet of administrative discretion in determining their physical and mental condition, and were to be deemed nonquota immigrants. Congress ought not to be made to appear to require that they incur the greater hazards of an informer's tale without any opportunity for its refutation, especially since considerations of national security, insofar as they are pertinent, can be amply protected by a hearing in camera. Compare Rule 46 of the Rules of Practice for Admiralty Courts during World War II, 316 U.S. 717, and see Haydock, Some Evidentiary Problems Posed by Atomic Energy Security Requirements, 61 Harv.L.Rev. 468, 482-83 (1948). An alien's opportunity of entry into the United States is, of course, a privilege which Congress may grant or withhold. But the crux of the problem before us is whether Congress, having extended the privilege for the benefit not of the alien, but of her American husband, left wide open the opportunity ruthlessly to take away what it gave. A regulation permitting such exclusion by the Attorney General's fiat -- in the nature of things, that high functionary must largely act on dossiers prepared by others -- in the case of an alien claiming entry on his own account is one thing. To construe such regulation to be authorized and to apply in the case of the wife of an honorably Page 338 U. S. 550 discharged American soldier is quite another thing. Had Congress spoken explicitly, we would have to bow to it. Such a substantial contradiction of the congressional beneficence which is at the heart of the War Brides Act ought not to be attributed to Congress by a process of elaborate implication. Especially is this to be avoided when to do so charges Congress with an obviously harsh purpose. Due regard for the whole body of immigration laws and policies makes it singularly appropriate in construing the War Brides Act to be heedful of the admonition that "The letter killeth." * The Attorney General is to act on information that satisfies him, but not only is there no opportunity for a hearing, but the Attorney General can lock in his own bosom the evidence that does satisfy him. 8 C.F.R. §§ 175.53, 175.57 (1949). MR. JUSTICE JACKSON, whom MR. JUSTICE BLACK and MR. JUSTICE FRANKFURTER join, dissenting. I do not question the constitutional power of Congress to authorize immigration authorities to turn back from our gates any alien or class of aliens. But I do not find that Congress has authorized an abrupt and brutal exclusion of the wife of an American citizen without a hearing. Congress held out a promise of liberalized admission to alien brides, taken unto themselves by men serving in or honorably discharged from our armed services abroad, as the Act, set forth in the Court's opinion, indicates. The petitioning husband is honorably discharged, and remained in Germany as a civilian employee. Our military authorities abroad required their permission before marriage. The Army in Germany is not without a vigilant and security-conscious intelligence service. This woman was employed by our European Command, and her record is not only without blemish, but is highly praised by her superiors. The marriage of this alien woman to this veteran was approved by the Commanding General at Frankfurt-on-Main. Now this American citizen is told he cannot bring his wife to the United States, but he will not be told why. Page 338 U. S. 551 He must abandon his bride to live in his own country or forsake his country to live with his bride. So he went to court and sought a writ of habeas corpus, which we never tire of citing to Europe as the unanswerable evidence that our free country permits no arbitrary official detention. And the Government tells the Court that not even a court can find out why the girl is excluded. But it says we must find that Congress authorized this treatment of war brides, and, even if we cannot get any reasons for it, we must say it is legal; security requires it. Security is like liberty, in that many are the crimes committed in its name. The menace to the security of this country, be it great as it may, from this girl's admission is as nothing compared to the menace to free institutions inherent in procedures of this pattern. In the name of security, the police state justifies its arbitrary oppressions on evidence that is secret, because security might be prejudiced if it were brought to light in hearings. The plea that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected. Cf. In re Oliver, 333 U. S. 257 , 333 U. S. 268 . I am sure the officials here have acted from a sense of duty, with full belief in their lawful power, and no doubt upon information which, if it stood the test of trial, would justify the order of exclusion. But not even they know whether it would stand this test. And anyway, as I have said before, personal confidence in the officials involved does not excuse a judge for sanctioning a procedure that is dangerously wrong in principle. Dissent in Bowles v. United States, 319 U. S. 33 , 319 U. S. 37 . Congress will have to use more explicit language than any yet cited before I will agree that it has authorized an administrative officer to break up the family of an Page 338 U. S. 552 American citizen or force him to keep his wife by becoming an exile. Likewise, it will have to be much more explicit before I can agree that it authorized a finding of serious misconduct against the wife of an American citizen without notice of charges, evidence of guilt and a chance to meet it. I should direct the Attorney General either to produce his evidence justifying exclusion or to admit Mrs. Knauff to the country.

In *Knauff v. Shaughnessy*, the U.S. Supreme Court ruled that the exclusion of an alien from the United States is not a judicial matter and that any procedure authorized by Congress for alien exclusion constitutes due process. The Court upheld the Attorney General's denial of entry to an alien wife of a U.S. citizen based on confidential information, finding that admission of aliens is a privilege granted by the U.S. government. The Court also rejected arguments of unconstitutional delegation of legislative power and emphasized the ongoing national emergency and state of war.

Immigration & National Security

Korematsu v. U.S.

https://supreme.justia.com/cases/federal/us/323/214/

U.S. Supreme Court Korematsu v. United States, 323 U.S. 214 (1944) Korematsu v. United States No. 22 Argued October 11, 12, 1944 Decided December 18, 1944 323 U.S. 214 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus 1. Civilian Exclusion Order No. 34 which, during a state of war with Japan and as a protection against espionage and sabotage, was promulgated by the Commanding General of the Western Defense Command under authority of Executive Order No. 9066 and the Act of March 21, 1942, and which directed the exclusion after May 9, 1942, from a described West Coast military area of all persons of Japanese ancestry, held constitutional as of the time it was made and when the petitioner -- an American citizen of Japanese descent whose home was in the described area -- violated it. P. 323 U. S. 219 . 2. The provisions of other orders requiring persons of Japanese ancestry to report to assembly centers and providing for the detention of such persons in assembly and relocation centers were separate, and their validity is not in issue in this proceeding. P. 323 U. S. 222 . Page 323 U. S. 215 3. Even though evacuation and detention in the assembly center were inseparable, the order under which the petitioner was convicted was nevertheless valid. P. 323 U. S. 223 . 140 F.2d 289, affirmed. CERTIORARI, 321 U.S. 760, to review the affirmance of a judgment of conviction. MR. JUSTICE BLACK delivered the opinion of the Court. The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a "Military Area," contrary to Civilian Exclusion Order No. 34 of the Commanding General Page 323 U. S. 216 of the Western Command, U.S. Army, which directed that, after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner's loyalty to the United States. The Circuit Court of Appeals affirmed, [ Footnote 1 ] and the importance of the constitutional question involved caused us to grant certiorari. It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can. In the instant case, prosecution of the petitioner was begun by information charging violation of an Act of Congress, of March 21, 1942, 56 Stat. 173, which provides that ". . . whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense." Exclusion Order No. 34, which the petitioner knowingly and admittedly violated, was one of a number of military orders and proclamations, all of which were substantially Page 323 U. S. 217 based upon Executive Order No. 9066, 7 Fed.Reg. 1407. That order, issued after we were at war with Japan, declared that "the successful prosecution of the war requires every possible protection against espionage and against sabotage to national defense material, national defense premises, and national defense utilities. . . ." One of the series of orders and proclamations, a curfew order, which, like the exclusion order here, was promulgated pursuant to Executive Order 9066, subjected all persons of Japanese ancestry in prescribed West Coast military areas to remain in their residences from 8 p.m. to 6 a.m. As is the case with the exclusion order here, that prior curfew order was designed as a "protection against espionage and against sabotage." In Hirabayashi v. United States, 320 U. S. 81 , we sustained a conviction obtained for violation of the curfew order. The Hirabayashi conviction and this one thus rest on the same 1942 Congressional Act and the same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage. The 1942 Act was attacked in the Hirabayashi case as an unconstitutional delegation of power; it was contended that the curfew order and other orders on which it rested were beyond the war powers of the Congress, the military authorities, and of the President, as Commander in Chief of the Army, and, finally, that to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack. In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude Page 323 U. S. 218 those of Japanese ancestry from the West Coast war area at the time they did. True, exclusion from the area in which one's home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas. In this case, the petitioner challenges the assumptions upon which we rested our conclusions in the Hirabayashi case. He also urges that, by May, 1942, when Order No. 34 was promulgated, all danger of Japanese invasion of the West Coast had disappeared. After careful consideration of these contentions, we are compelled to reject them. Here, as in the Hirabayashi case, supra, at p. 320 U. S. 99 , ". . . we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that, in a critical hour, such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety which demanded that prompt and adequate measures be taken to guard against it." Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of Page 323 U. S. 219 whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was, for the same reason, a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan. [ Footnote 2 ] We uphold the exclusion order as of the time it was made and when the petitioner violated it. Cf. Chastleton Corporation v. Sinclair, 264 U. S. 543 , 264 U. S. 547 ; Block v. Hirsh, 256 U. S. 135 , 256 U. S. 155 . In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. Cf. Ex parte Kawato, 317 U. S. 69 , 317 U. S. 73 . But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities, as well as its privileges, and, in time of war, the burden is always heavier. Compulsory Page 323 U. S. 220 exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger. It is argued that, on May 30, 1942, the date the petitioner was charged with remaining in the prohibited area, there were conflicting orders outstanding, forbidding him both to leave the area and to remain there. Of course, a person cannot be convicted for doing the very thing which it is a crime to fail to do. But the outstanding orders here contained no such contradictory commands. There was an order issued March 27, 1942, which prohibited petitioner and others of Japanese ancestry from leaving the area, but its effect was specifically limited in time "until and to the extent that a future proclamation or order should so permit or direct." 7 Fed.Reg. 2601. That "future order," the one for violation of which petitioner was convicted, was issued May 3, 1942, and it did "direct" exclusion from the area of all persons of Japanese ancestry before 12 o'clock noon, May 9; furthermore, it contained a warning that all such persons found in the prohibited area would be liable to punishment under the March 21, 1942, Act of Congress. Consequently, the only order in effect touching the petitioner's being in the area on May 30, 1942, the date specified in the information against him, was the May 3 order which prohibited his remaining there, and it was that same order which he stipulated in his trial that he had violated, knowing of its existence. There is therefore no basis for the argument that, on May 30, 1942, he was subject to punishment, under the March 27 and May 3 orders, whether he remained in or left the area. It does appear, however, that, on May 9, the effective date of the exclusion order, the military authorities had Page 323 U. S. 221 already determined that the evacuation should be effected by assembling together and placing under guard all those of Japanese ancestry at central points, designated as "assembly centers," in order "to insure the orderly evacuation and resettlement of Japanese voluntarily migrating from Military Area No. 1, to restrict and regulate such migration." Public Proclamation No. 4, 7 Fed.Reg. 2601. And on May 19, 1942, eleven days before the time petitioner was charged with unlawfully remaining in the area, Civilian Restrictive Order No. 1, 8 Fed.Reg. 982, provided for detention of those of Japanese ancestry in assembly or relocation centers. It is now argued that the validity of the exclusion order cannot be considered apart from the orders requiring him, after departure from the area, to report and to remain in an assembly or relocation center. The contention is that we must treat these separate orders as one and inseparable; that, for this reason, if detention in the assembly or relocation center would have illegally deprived the petitioner of his liberty, the exclusion order and his conviction under it cannot stand. We are thus being asked to pass at this time upon the whole subsequent detention program in both assembly and relocation centers, although the only issues framed at the trial related to petitioner's remaining in the prohibited area in violation of the exclusion order. Had petitioner here left the prohibited area and gone to an assembly center, we cannot say, either as a matter of fact or law, that his presence in that center would have resulted in his detention in a relocation center. Some who did report to the assembly center were not sent to relocation centers, but were released upon condition that they remain outside the prohibited zone until the military orders were modified or lifted. This illustrates that they pose different problems, and may be governed by different principles. T he lawfulness of one does not necessarily determine the lawfulness of the others. This is made clear Page 323 U. S. 222 when we analyze the requirements of the separate provisions of the separate orders. These separate requirements were that those of Japanese ancestry (1) depart from the area; (2) report to and temporarily remain in an assembly center; (3) go under military control to a relocation center, there to remain for an indeterminate period until released conditionally or unconditionally by the military authorities. Each of these requirements, it will be noted, imposed distinct duties in connection with the separate steps in a complete evacuation program. Had Congress directly incorporated into one Act the language of these separate orders, and provided sanctions for their violations, disobedience of any one would have constituted a separate offense. Cf. Blockburger v. United States, 284 U. S. 299 , 284 U. S. 304 . There is no reason why violations of these orders, insofar as they were promulgated pursuant to Congressional enactment, should not be treated as separate offenses. The Endo case, post, p. 323 U. S. 283 , graphically illustrates the difference between the validity of an order to exclude and the validity of a detention order after exclusion has been effected. Since the petitioner has not been convicted of failing to report or to remain in an assembly or relocation center, we cannot in this case determine the validity of those separate provisions of the order. It is sufficient here for us to pass upon the order which petitioner violated. To do more would be to go beyond the issues raised, and to decide momentous questions not contained within the framework of the pleadings or the evidence in this case. It will be time enough to decide the serious constitutional issues which petitioner seeks to raise when an assembly or relocation order is applied or is certain to be applied to him, and we have its terms before us. Some of the members of the Court are of the view that evacuation and detention in an Assembly Center were inseparable. After May 3, 1942, the date of Exclusion Page 323 U. S. 223 Order No. 34, Korematsu was under compulsion to leave the area not as he would choose, but via an Assembly Center. The Assembly Center was conceived as a part of the machinery for group evacuation. The power to exclude includes the power to do it by force if necessary. And any forcible measure must necessarily entail some degree of detention or restraint, whatever method of removal is selected. But whichever view is taken, it results in holding that the order under which petitioner was convicted was valid. It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers -- and we deem it unjustifiable to call them concentration camps, with all the ugly connotations that term implies -- we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders -- as inevitably it must -- determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for Page 323 U. S. 224 action was great, and time was short. We cannot -- by availing ourselves of the calm perspective of hindsight -- now say that, at that time, these actions were unjustified. Affirmed. [ Footnote 1 ] 140 F.2d 289. [ Footnote 2 ] Hearings before the Subcommittee on the National War Agencies Appropriation Bill for 1945, Part II, 608-726; Final Report, Japanese Evacuation from the West Coast, 1942, 309-327; Hearings before the Committee on Immigration and Naturalization, House of Representatives, 78th Cong., 2d Sess., on H.R. 2701 and other bills to expatriate certain nationals of the United States, pp. 37-42, 49-58. MR. JUSTICE FRANKFURTER, concurring. According to my reading of Civilian Exclusion Order No. 34, it was an offense for Korematsu to be found in Military Area No. 1, the territory wherein he was previously living, except within the bounds of the established Assembly Center of that area. Even though the various orders issued by General DeWitt be deemed a comprehensive code of instructions, their tenor is clear, and not contradictory. They put upon Korematsu the obligation to leave Military Area No. 1, but only by the method prescribed in the instructions, i.e., by reporting to the Assembly Center. I am unable to see how the legal considerations that led to the decision in Hirabayashi v. United States, 320 U. S. 81 , fail to sustain the military order which made the conduct now in controversy a crime. And so I join in the opinion of the Court, but should like to add a few words of my own. The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is "the power to wage war successfully." Hirabayashi v. United States, supra, at 320 U. S. 93 , and see Home Bldg. & L. Assn. v. Blaisdell, 290 U. S. 398 , 290 U. S. 426 . Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war needs by those entrusted with the duty of conducting war as "an Page 323 U. S. 225 unconstitutional order" is to suffuse a part of the Constitution with an atmosphere of unconstitutionality. The respective spheres of action of military authorities and of judges are, of course, very different. But, within their sphere, military authorities are no more outside the bounds of obedience to the Constitution than are judges within theirs. "The war power of the United States, like its other powers . . . is subject to applicable constitutional limitations," Hamilton v. Kentucky Distilleries Co., 251 U. S. 146 , 251 U. S. 156 . To recognize that military orders are "reasonably expedient military precautions" in time of war, and yet to deny them constitutional legitimacy, makes of the Constitution an instrument for dialectic subtleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had had actual participation in war. If a military order such as that under review does not transcend the means appropriate for conducting war, such action by the military is as constitutional as would be any authorized action by the Interstate Commerce Commission within the limits of the constitutional power to regulate commerce. And, being an exercise of the war power explicitly granted by the Constitution for safeguarding the national life by prosecuting war effectively, I find nothing in the Constitution which denies to Congress the power to enforce such a valid military order by making its violation an offense triable in the civil courts. Compare Interstate Commerce Commission v. Brimson, 154 U. S. 447 ; 155 U. S. 155 U.S. 3, and Monongahela Bridge Co. v. United States, 216 U. S. 177 . To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours. MR. JUSTICE ROBERTS. I dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights. This is not a case of keeping people off the streets at night, as was Hirabayashi v. United States, 320 U. S. 81 , Page 323 U. S. 226 nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor the conclusion that Constitutional rights have been violated. The Government's argument, and the opinion of the court, in my judgment, erroneously divide that which is single and indivisible, and thus make the case appear as if the petitioner violated a Military Order, sanctioned by Act of Congress, which excluded him from his home by refusing voluntarily to leave, and so knowingly and intentionally defying the order and the Act of Congress. The petitioner, a resident of San Leandro, Alameda County, California, is a native of the United States of Japanese ancestry who, according to the uncontradicted evidence, is a loyal citizen of the nation. A chronological recitation of events will make it plain that the petitioner's supposed offense did not, in truth, consist in his refusal voluntarily to leave the area which included his home in obedience to the order excluding him therefrom. Critical attention must be given to the dates and sequence of events. December 8, 1941, the United States declared war on Japan. February 19, 1942, the President issued Executive Order No. 9066, [ Footnote 2/1 ] which, after stating the reason for issuing the Page 323 U. S. 227 order as "protection against espionage and against sabotage to national defense material, national defense premises, and national defense utilities," provided that certain Military Commanders might, in their discretion, "prescribe military areas" and define their extent, "from which any or all persons may be excluded, and with respect to which the right of any person to enter, remain in, or leave shall be subject to whatever restrictions" the "Military Commander may impose in his discretion." February 20, 1942, Lieutenant General DeWitt was designated Military Commander of the Western Defense Command embracing the westernmost states of the Union -- about one-fourth of the total area of the nation. March 2, 192, General DeWitt promulgated Public Proclamation No. 1, [ Footnote 2/2 ] which recites that the entire Pacific Coast is "particularly subject to attack, to attempted invasion . . . , and, in connection therewith, is subject to espionage and acts of sabotage." It states that, "as a matter of military necessity," certain military areas and zones are established known as Military Areas Nos. 1 and 2. It adds that "[s]uch persons or classes of persons as the situation may require" will, by subsequent orders, "be excluded from all of Military Area No. 1" and from certain zones in Military Area No. 2. Subsequent proclamations were made which, together with Proclamation No. 1, included in such areas and zones all of California, Washington, Oregon, Idaho, Montana, Nevada and Utah, and the southern portion of Arizona. The orders required that, if any person of Japanese, German or Italian ancestry residing in Area No. 1 desired to change his habitual residence, he must execute and deliver to the authorities a Change of Residence Notice. San Leandro, the city of petitioner's residence, lies in Military Area No. 1. Page 323 U. S. 228 On March 2, 1942, the petitioner, therefore, had notice that, by Executive Order, the President, to prevent espionage and sabotage, had authorized the Military to exclude him from certain areas and to prevent his entering or leaving certain areas without permission. He was on notice that his home city had been included, by Military Order, in Area No. 1, and he was on notice further that, at sometime in the future, the Military Commander would make an order for the exclusion of certain persons, not described or classified, from various zones including that, in which he lived. March 21, 1942, Congress enacted [ Footnote 2/3 ] that anyone who knowingly "shall enter, remain in, leave, or commit any act in any military area or military zone prescribed . . . by any military commander . . . contrary to the restrictions applicable to any such area or zone or contrary to the order of . . . any such military commander" shall be guilty of a misdemeanor. This is the Act under which the petitioner was charged. March 24, 1942, General DeWitt instituted the curfew for certain areas within his command, by an order the validity of which was sustained in Hirabayashi v. United States, supra. March 24, 1942, General DeWitt began to issue a series of exclusion orders relating to specified areas. March 27, 1942, by Proclamation No. 4, [ Footnote 2/4 ] the General recited that "it is necessary, in order to provide for the welfare and to insure the orderly evacuation and resettlement of Japanese voluntarily migrating from Military Area No. 1, to restrict and regulate such migration, and ordered that, as of March 29, 1942," "all alien Japanese and persons of Japanese ancestry who are within the limits of Military Area No. 1, be and they are hereby Page 323 U. S. 229 prohibited from leaving that area for any purpose until and to the extent that a future proclamation or order of this headquarters shall so permit or direct. [ Footnote 2/5 ]" No order had been made excluding the petitioner from the area in which he lived. By Proclamation No. 4, he was, after March 29, 1942, confined to the limits of Area No. 1. If the Executive Order No. 9066 and the Act of Congress meant what they said, to leave that area, in the face of Proclamation No. 4, would be to commit a misdemeanor. May 3, 1942, General DeWitt issued Civilian Exclusion Order No. 34 [ Footnote 2/6 ] providing that, after 12 o'clock May 8, 1942, all persons of Japanese ancestry, both alien and nonalien, were to be excluded from a described portion of Military Area No. 1, which included the County of Alameda, California. The order required a responsible member of each family and each individual living alone to report, at a time set, at a Civil Control Station for instructions to go to an Assembly Center, and added that any person failing to comply with the provisions of the order who was found in the described area after the date set would be liable to prosecution under the Act of March 21, 1942, supra. It is important to note that the order, by its express terms, had no application to persons within the bounds "of an established Assembly Center pursuant to instructions from this Headquarters . . ." The obvious purpose of the orders made, taken together, was to drive all citizens of Japanese ancestry into Assembly Centers within the zones of their residence, under pain of criminal prosecution. Page 323 U. S. 230 The predicament in which the petitioner thus found himself was this: he was forbidden, by Military Order, to leave the zone in which he lived; he was forbidden, by Military Order, after a date fixed, to be found within that zone unless he were in an Assembly Center located in that zone. General DeWitt's report to the Secretary of War concerning the programme of evacuation and relocation of Japanese makes it entirely clear, if it were necessary to refer to that document -- and, in the light of the above recitation, I think it is not, -- that an Assembly Center was a euphemism for a prison. No person within such a center was permitted to leave except by Military Order. In the dilemma that he dare not remain in his home, or voluntarily leave the area, without incurring criminal penalties, and that the only way he could avoid punishment was to go to an Assembly Center and submit himself to military imprisonment, the petitioner did nothing. June 12, 1942, an Information was filed in the District Court for Northern California charging a violation of the Act of March 21, 1942, in that petitioner had knowingly remained within the area covered by Exclusion Order No. 34. A demurrer to the information having been overruled, the petitioner was tried under a plea of not guilty, and convicted. Sentence was suspended, and he was placed on probation for five years. We know, however, in the light of the foregoing recitation, that he was at once taken into military custody and lodged in an Assembly Center. We further know that, on March 18, 1942, the President had promulgated Executive Order No. 9102, [ Footnote 2/7 ] establishing the War Relocation Authority under which so-called Relocation Centers, a euphemism for concentration camps, were established pursuant to cooperation between the military authorities of the Western Defense Command and the Relocation Authority, and that the petitioner has Page 323 U. S. 231 been confined either in an Assembly Center within the zone in which he had lived or has been removed to a Relocation Center where, as the facts disclosed in Ex parte Endo ( post, p. 323 U. S. 283 ) demonstrate, he was illegally held in custody. The Government has argued this case as if the only order outstanding at the time the petitioner was arrested and informed against was Exclusion Order No. 34, ordering him to leave the area in which he resided, which was the basis of the information against him. That argument has evidently been effective. The opinion refers to the Hirabayashi case, supra, to show that this court has sustained the validity of a curfew order in an emergency. The argument, then, is that exclusion from a given area of danger, while somewhat more sweeping than a curfew regulation, is of the same nature -- a temporary expedient made necessary by a sudden emergency. This, I think, is a substitution of an hypothetical case for the case actually before the court. I might agree with the court's disposition of the hypothetical case. [ Footnote 2/8 ] The liberty of every American citizen freely to come and to go must frequently, in the face of sudden danger, be temporarily limited or suspended. The civil authorities must often resort to the expedient of excluding citizens temporarily from a locality. The drawing of fire lines in the case of a conflagration, the removal of persons from the area where a pestilence has broken out, are familiar examples. If the exclusion worked by Exclusion Order No. 34 were of that nature, the Hirabayashi case would be authority for sustaining it. Page 323 U. S. 232 But the facts above recited, and those set forth in Ex parte Endo, supra, show that the exclusion was but a part of an over-all plan for forceable detention. This case cannot, therefore, be decided on any such narrow ground as the possible validity of a Temporary Exclusion Order under which the residents of an area are given an opportunity to leave and go elsewhere in their native land outside the boundaries of a military area. To make the case turn on any such assumption is to shut our eyes to reality. As I have said above, the petitioner, prior to his arrest, was faced with two diametrically contradictory orders given sanction by the Act of Congress of March 21, 1942. The earlier of those orders made him a criminal if he left the zone in which he resided; the later made him a criminal if he did not leave. I had supposed that, if a citizen was constrained by two laws, or two orders having the force of law, and obedience to one would violate the other, to punish him for violation of either would deny him due process of law. And I had supposed that, under these circumstances, a conviction for violating one of the orders could not stand. We cannot shut our eyes to the fact that, had the petitioner attempted to violate Proclamation No. 4 and leave the military area in which he lived, he would have been arrested and tried and convicted for violation of Proclamation No. 4. The two conflicting orders, one which commanded him to stay and the other which commanded him to go, were nothing but a cleverly devised trap to accomplish the real purpose of the military authority, which was to lock him up in a concentration camp. The only course by which the petitioner could avoid arrest and prosecution was to go to that camp according to instructions to be given him when he reported at a Civil Control Center. We know that is the fact. Why should we set up a figmentary and artificial situation, instead of addressing ourselves to the actualities of the case? Page 323 U. S. 233 These stark realities are met by the suggestion that it is lawful to compel an American citizen to submit to illegal imprisonment on the assumption that he might, after going to the Assembly Center, apply for his discharge by suing out a writ of habeas corpus, as was done in the Endo case, supra. The answer, of course, is that, where he was subject to two conflicting laws, he was not bound, in order to escape violation of one or the other, to surrender his liberty for any period. Nor will it do to say that the detention was a necessary part of the process of evacuation, and so we are here concerned only with the validity of the latter. Again, it is a new doctrine of constitutional law that one indicted for disobedience to an unconstitutional statute may not defend on the ground of the invalidity of the statute, but must obey it though he knows it is no law, and, after he has suffered the disgrace of conviction and lost his liberty by sentence, then, and not before, seek, from within prison walls, to test the validity of the law. Moreover, it is beside the point to rest decision in part on the fact that the petitioner, for his own reasons, wished to remain in his home. If, as is the fact, he was constrained so to do, it is indeed a narrow application of constitutional rights to ignore the order which constrained him in order to sustain his conviction for violation of another contradictory order. I would reverse the judgment of conviction. [ Footnote 2/1 ] 17 Fed.Reg. 1407. [ Footnote 2/2 ] 7 Fed.Reg. 2320 [ Footnote 2/3 ] 56 Stat. 173. [ Footnote 2/4 ] 7 Fed.Reg. 2601. [ Footnote 2/5 ] The italics in the quotation are mine. The use of the word "voluntarily" exhibits a grim irony probably not lost on petitioner and others in like case. Either so or its use was a disingenuous attempt to camouflage the compulsion which was to be applied. [ Footnote 2/6 ] 7 Fed.Reg. 3967. [ Footnote 2/7 ] 7 Fed.Reg. 2165. [ Footnote 2/8 ] My agreement would depend on the definition and application of the terms "temporary" and "emergency." No pronouncement of the commanding officer can, in my view, preclude judicial inquiry and determination whether an emergency ever existed and whether, if so, it remained at the date of the restraint out of which the litigation arose. Cf. Chastleton Corp. v. Sinclair, 264 U. S. 543 . MR. JUSTICE MURPHY, dissenting. This exclusion of "all persons of Japanese ancestry, both alien and non-alien," from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over "the very brink of constitutional power," and falls into the ugly abyss of racism. In dealing with matters relating to the prosecution and progress of a war, we must accord great respect and consideration Page 323 U. S. 234 to the judgments of the military authorities who are on the scene and who have full knowledge of the military facts. The scope of their discretion must, as a matter of necessity and common sense, be wide. And their judgments ought not to be overruled lightly by those whose training and duties ill-equip them to deal intelligently with matters so vital to the physical security of the nation. At the same time, however, it is essential that there be definite limits to military discretion, especially where martial law has not been declared. Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support. Thus, like other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled. "What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions." Sterling v. Constantin, 287 U. S. 378 , 287 U. S. 401 . The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so "immediate, imminent, and impending" as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger. United States v. Russell , 13 Wall. 623, 80 U. S. 627 -628; Mitchell v. Harmony , 13 How. 115, 54 U. S. 134 -135; Raymond v. Thomas, 91 U. S. 712 , 91 U. S. 716 . Civilian Exclusion Order No. 34, banishing from a prescribed area of the Pacific Coast "all persons of Japanese ancestry, both alien and non-alien," clearly does not meet that test. Being an obvious racial discrimination, the Page 323 U. S. 235 order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment. It further deprives these individuals of their constitutional rights to live and work where they will, to establish a home where they choose and to move about freely. In excommunicating them without benefit of hearings, this order also deprives them of all their constitutional rights to procedural due process. Yet no reasonable relation to an "immediate, imminent, and impending" public danger is evident to support this racial restriction, which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law. It must be conceded that the military and naval situation in the spring of 1942 was such as to generate a very real fear of invasion of the Pacific Coast, accompanied by fears of sabotage and espionage in that area. The military command was therefore justified in adopting all reasonable means necessary to combat these dangers. In adjudging the military action taken in light of the then apparent dangers, we must not erect too high or too meticulous standards; it is necessary only that the action have some reasonable relation to the removal of the dangers of invasion, sabotage and espionage. But the exclusion, either temporarily or permanently, of all persons with Japanese blood in their veins has no such reasonable relation. And that relation is lacking because the exclusion order necessarily must rely for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways. It is difficult to believe that reason, logic, or experience could be marshalled in support of such an assumption. That this forced exclusion was the result in good measure of this erroneous assumption of racial guilt, rather than Page 323 U. S. 236 bona fide military necessity is evidenced by the Commanding General's Final Report on the evacuation from the Pacific Coast area. [ Footnote 3/1 ] In it, he refers to all individuals of Japanese descent as "subversive," as belonging to "an enemy race" whose "racial strains are undiluted," and as constituting "over 112,000 potential enemies . . . at large today" along the Pacific Coast. [ Footnote 3/2 ] In support of this blanket condemnation of all persons of Japanese descent, however, no reliable evidence is cited to show that such individuals were generally disloyal, [ Footnote 3/3 ] or had generally so conducted themselves in this area as to constitute a special menace to defense installations or war industries, or had otherwise, by their behavior, furnished reasonable ground for their exclusion as a group. Justification for the exclusion is sought, instead, mainly upon questionable racial and sociological grounds not Page 323 U. S. 237 ordinarily within the realm of expert military judgment, supplemented by certain semi-military conclusions drawn from an unwarranted use of circumstantial evidence. Individuals of Japanese ancestry are condemned because they are said to be "a large, unassimilated, tightly knit racial group, bound to an enemy nation by strong ties of race, culture, custom and religion." [ Footnote 3/4 ] They are claimed to be given to "emperor worshipping ceremonies," [ Footnote 3/5 ] and to "dual citizenship." [ Footnote 3/6 ] Japanese language schools and allegedly pro-Japanese organizations are cited as evidence of possible group disloyalty, [ Footnote 3/7 ] together with facts as to Page 323 U. S. 238 certain persons being educated and residing at length in Japan. [ Footnote 3/8 ] It is intimated that many of these individuals deliberately resided "adjacent to strategic points," thus enabling them "to carry into execution a tremendous program of sabotage on a mass scale should any considerable number of them have been inclined to do so. [ Footnote 3/9 ]" The need for protective custody is also asserted. The report refers, without identity, to "numerous incidents of violence," as well as to other admittedly unverified or cumulative incidents. From this, plus certain other events not shown to have been connected with the Japanese Americans, it is concluded that the "situation was fraught with danger to the Japanese population itself," and that the general public "was ready to take matters into its own hands." [ Footnote 3/10 ] Finally, it is intimated, though not directly Page 323 U. S. 239 charged or proved, that persons of Japanese ancestry were responsible for three minor isolated shellings and bombings of the Pacific Coast area, [ Footnote 3/11 ] as well as for unidentified radio transmissions and night signaling. The main reasons relied upon by those responsible for the forced evacuation, therefore, do not prove a reasonable relation between the group characteristics of Japanese Americans and the dangers of invasion, sabotage and espionage. The reasons appear, instead, to be largely an accumulation of much of the misinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices -- the same people who have been among the foremost advocates of the evacuation. [ Footnote 3/12 ] A military judgment Page 323 U. S. 240 based upon such racial and sociological considerations is not entitled to the great weight ordinarily given the judgments based upon strictly military considerations. Especially is this so when every charge relative to race, religion, culture, geographical location, and legal and economic status has been substantially discredited by independent studies made by experts in these matters. [ Footnote 3/13 ] The military necessity which is essential to the validity of the evacuation order thus resolves itself into a few intimations that certain individuals actively aided the enemy, from which it is inferred that the entire group of Japanese Americans could not be trusted to be or remain loyal to the United States. No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific Coast who did all in their power to aid their ancestral land. Similar disloyal activities have been engaged in by many persons of German, Italian and even more pioneer stock in our country. But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that, under our system of law, individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy. To give constitutional sanction to that inference in this case, however well intentioned may have been the military command on the Pacific Coast, is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow. Page 323 U. S. 241 No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry. See House Report No. 2124 (77th Cong., 2d Sess.) 247-52. It is asserted merely that the loyalties of this group "were unknown and time was of the essence." [ Footnote 3/14 ] Yet nearly four months elapsed after Pearl Harbor before the first exclusion order was issued; nearly eight months went by until the last order was issued, and the last of these "subversive" persons was not actually removed until almost eleven months had elapsed. Leisure and deliberation seem to have been more of the essence than speed. And the fact that conditions were not such as to warrant a declaration of martial law adds strength to the belief that the factors of time and military necessity were not as urgent as they have been represented to be. Moreover, there was no adequate proof that the Federal Bureau of Investigation and the military and naval intelligence services did not have the espionage and sabotage situation well in hand during this long period. Nor is there any denial of the fact that not one person of Japanese ancestry was accused or convicted of espionage or sabotage after Pearl Harbor while they were still free, [ Footnote 3/15 ] a fact which is some evidence of the loyalty of the vast majority of these individuals and of the effectiveness of the established methods of combatting these evils. It Page 323 U. S. 242 seems incredible that, under these circumstances, it would have been impossible to hold loyalty hearings for the mere 112,000 persons involved -- or at least for the 70,000 American citizens -- especially when a large part of this number represented children and elderly men and women. [ Footnote 3/16 ] Any inconvenience that may have accompanied an attempt to conform to procedural due process cannot be said to justify violations of constitutional rights of individuals. I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must, accordingly, be treated at all times as the heirs of the American experiment, and as entitled to all the rights and freedoms guaranteed by the Constitution. [ Footnote 3/1 ] Final Report, Japanese Evacuation from the West Coast, 1942, by Lt.Gen. J. L. DeWitt. This report is dated June 5, 1943, but was not made public until January, 1944. [ Footnote 3/2 ] Further evidence of the Commanding General's attitude toward individuals of Japanese ancestry is revealed in his voluntary testimony on April 13, 1943, in San Francisco before the House Naval Affairs Subcommittee to Investigate Congested Areas, Part 3, pp. 739 40 (78th Cong., 1st Sess.): "I don't want any of them [persons of Japanese ancestry] here. They are a dangerous element. There is no way to determine their loyalty. The west coast contains too many vital installations essential to the defense of the country to allow any Japanese on this coast. . . . The danger of the Japanese was, and is now -- if they are permitted to come back -- espionage and sabotage. It makes no difference whether he is an American citizen, he is still a Japanese. American citizenship does not necessarily determine loyalty. . . . But we must worry about the Japanese all the time until he is wiped off the map. Sabotage and espionage will make problems as long as he is allowed in this area. . . ." [ Footnote 3/3 ] The Final Report, p. 9, casts a cloud of suspicion over the entire group by saying that, "while it was believed that some were loyal, it was known that many were not." (Italics added.) [ Footnote 3/4 ] Final Report, p. vii; see also pp. 9, 17. To the extent that assimilation is a problem, it is largely the result of certain social customs and laws of the American general public. Studies demonstrate that persons of Japanese descent are readily susceptible to integration in our society if given the opportunity. Strong, The Second-Generation Japanese Problem (1934); Smith, Americans in Process (1937); Mears, Resident Orientals on the American Pacific Coast (1928); Millis, The Japanese Problem in the United States (1942). The failure to accomplish an ideal status of assimilation, therefore, cannot be charged to the refusal of these persons to become Americanized, or to their loyalty to Japan. And the retention by some persons of certain customs and religious practices of their ancestors is no criterion of their loyalty to the United States. [ Footnote 3/5 ] Final Report, pp. 10-11. No sinister correlation between the emperor worshipping activities and disloyalty to America was shown. [ Footnote 3/6 ] Final Report, p. 22. The charge of "dual citizenship" springs from a misunderstanding of the simple fact that Japan, in the past, used the doctrine of jus sanguinis, as she had a right to do under international law, and claimed as her citizens all persons born of Japanese nationals wherever located. Japan has greatly modified this doctrine, however, by allowing all Japanese born in the United States to renounce any claim of dual citizenship and by releasing her claim as to all born in the United States after 1925. See Freeman, "Genesis, Exodus, and Leviticus: Genealogy, Evacuation, and Law," 28 Cornell L.Q. 414, 447-8, and authorities there cited; McWilliams, Prejudice, 123-4 (1944). [ Footnote 3/7 ] Final Report, pp. 12-13. We have had various foreign language schools in this country for generations without considering their existence as ground for racial discrimination. No subversive activities or teachings have been shown in connection with the Japanese schools. McWilliams, Prejudice, 121-3 (1944). [ Footnote 3/8 ] Final Report, pp. 13-15. Such persons constitute a very small part of the entire group, and most of them belong to the Kibei movement -- the actions and membership of which are well known to our Government agents. [ Footnote 3/9 ] Final Report, p. 10; see also pp. vii, 9, 15-17. This insinuation, based purely upon speculation and circumstantial evidence, completely overlooks the fact that the main geographic pattern of Japanese population was fixed many years ago with reference to economic, social and soil conditions. Limited occupational outlets and social pressures encouraged their concentration near their initial points of entry on the Pacific Coast. That these points may now be near certain strategic military and industrial areas is no proof of a diabolical purpose on the part of Japanese Americans. See McWilliams, Prejudice, 119-121 (1944); House Report No. 2124 (77th Cong., 2d Sess.), 59-93. [ Footnote 3/10 ] Final Report, pp. 8-9. This dangerous doctrine of protective custody, as proved by recent European history, should have absolutely no standing as an excuse for the deprivation of the rights of minority groups. See House Report No.1911 (77th Cong., 2d Sess.) 1-2. Cf. House Report No. 2124 (77th Cong., & Sess.) 145-7. In this instance, moreover, there are only two minor instances of violence on record involving persons of Japanese ancestry. McWilliams, What About Our Japanese-Americans? Public Affairs Pamphlets, No. 91, p. 8 (1944). [ Footnote 3/11 ] Final Report, p. 18. One of these incidents (the reputed dropping of incendiary bombs on an Oregon forest) occurred on Sept. 9, 1942 -- a considerable time after the Japanese Americans had been evacuated from their homes and placed in Assembly Centers. See New York Times, Sept. 15, 1942, p. 1, col. 3. [ Footnote 3/12 ] Special interest groups were extremely active in applying pressure for mass evacuation. See House Report No. 2124 (77th Cong., 2d Sess.) 154-6; McWilliams, Prejudice, 128 (1944). Mr. Austin E. Anson, managing secretary of the Salinas Vegetable Grower-Shipper Association, has frankly admitted that "We're charged with wanting to get rid of the Japs for selfish reasons. . . . We do. It's a question of whether the white man lives on the Pacific Coast or the brown men. They came into this valley to work, and they stayed to take over. . . . They undersell the white man in the markets. . . . They work their women and children while the white farmer has to pay wages for his help. If all the Japs were removed tomorrow, we'd never miss them in two weeks, because the white farmers can take over and produce everything the Jap grows. And we don't want them back when the war ends, either." Quoted by Taylor in his article "The People Nobody Wants," 214 Sat.Eve.Post 24, 66 (May 9, 1942). [ Footnote 3/13 ] See 323 U.S. 214 fn3/4|>notes 4-12, supra. [ Footnote 3/14 ] Final Report, p. vii; see also p. 18. [ Footnote 3/15 ] The Final Report, p. 34, makes the amazing statement that, as of February 14, 1942, "The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken." Apparently, in the minds of the military leaders, there was no way that the Japanese Americans could escape the suspicion of sabotage. [ Footnote 3/16 ] During a period of six months, the 112 alien tribunals or hearing boards set up by the British Government shortly after the outbreak of the present war summoned and examined approximately 74,000 German and Austrian aliens. These tribunals determined whether each individual enemy alien was a real enemy of the Allies or only a "friendly enemy." About 64,000 were freed from internment and from any special restrictions, and only 2,000 were interned. Kempner, "The Enemy Alien Problem in the Present War," 34 Amer.Journ. of Int.Law 443, 414-416; House Report No. 2124 (77th Cong., 2d Sess.), 280-281. MR. JUSTICE JACKSON, dissenting. Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity, and a citizen of California by Page 323 U. S. 243 residence. No claim is made that he is not loyal to this country. There is no suggestion that, apart from the matter involved here, he is not law-abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived. Even more unusual is the series of military orders which made this conduct a crime. They forbid such a one to remain, and they also forbid him to leave. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority. This meant submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps. A citizen's presence in the locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four -- the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole -- only Korematsu's presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock. Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one's antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that "no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted." But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress, in peacetime legislation, should Page 323 U. S. 244 enact such a criminal law, I should suppose this Court would refuse to enforce it. But the "law" which this prisoner is convicted of disregarding is not found in an act of Congress, but in a military order. Neither the Act of Congress nor the Executive Order of the President, nor both together, would afford a basis for this conviction. It rests on the orders of General DeWitt. And it is said that, if the military commander had reasonable military grounds for promulgating the orders, they are constitutional, and become law, and the Court is required to enforce them. There are several reasons why I cannot subscribe to this doctrine. It would be impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality. When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful, rather than legal. The armed services must protect a society, not merely its Constitution. The very essence of the military job is to marshal physical force, to remove every obstacle to its effectiveness, to give it every strategic advantage. Defense measures will not, and often should not, be held within the limits that bind civil authority in peace. No court can require such a commander in such circumstances to act as a reasonable man; he may be unreasonably cautious and exacting. Perhaps he should be. But a commander, in temporarily focusing the life of a community on defense, is carrying out a military program; he is not making law in the sense the courts know the term. He issues orders, and they may have a certain authority as military commands, although they may be very bad as constitutional law. But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. That is Page 323 U. S. 245 what the Court appears to be doing, whether consciously or not. I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional, and have done with it. The limitation under which courts always will labor in examining the necessity for a military order are illustrated by this case. How does the Court know that these orders have a reasonable basis in necessity? No evidence whatever on that subject has been taken by this or any other court. There is sharp controversy as to the credibility of the DeWitt report. So the Court, having no real evidence before it, has no choice but to accept General DeWitt's own unsworn, self-serving statement, untested by any cross-examination, that what he did was reasonable. And thus it will always be when courts try to look into the reasonableness of a military order. In the very nature of things, military decisions are not susceptible of intelligent judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved. Information in support of an order could not be disclosed to courts without danger that it would reach the enemy. Neither can courts act on communications made in confidence. Hence, courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint. Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more Page 323 U. S. 246 subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as "the tendency of a principle to expand itself to the limit of its logic." * A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court's opinion in this case. It argues that we are bound to uphold the conviction of Korematsu because we upheld one in Hirabayashi v. United States, 320 U. S. 81 , when we sustained these orders insofar as they applied a curfew requirement to a citizen of Japanese ancestry. I think we should learn something from that experience. In that case, we were urged to consider only the curfew feature, that being all that technically was involved, because it was the only count necessary to sustain Hirabayashi's conviction and sentence. We yielded, and the Chief Justice guarded the opinion as carefully as language Page 323 U. S. 247 will do. He said: "Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew. " 320 U.S. at 320 U. S. 101 . "We decide only the issue as we have defined it -- we decide only that the curfew order, as applied, and at the time it was applied, was within the boundaries of the war power." 320 U.S. at 320 U. S. 102 . And again: "It is unnecessary to consider whether or to what extent such findings would support orders differing from the curfew order. " 320 U.S. at 320 U. S. 105 . (Italics supplied.) However, in spite of our limiting words, we did validate a discrimination on the basis of ancestry for mild and temporary deprivation of liberty. Now the principle of racial discrimination is pushed from support of mild measures to very harsh ones, and from temporary deprivations to indeterminate ones. And the precedent which it is said requires us to do so is Hirabayashi. The Court is now saying that, in Hirabayashi, we did decide the very things we there said we were not deciding. Because we said that these citizens could be made to stay in their homes during the hours of dark, it is said we must require them to leave home entirely, and if that, we are told they may also be taken into custody for deportation, and, if that, it is argued, they may also be held for some undetermined time in detention camps. How far the principle of this case would be extended before plausible reasons would play out, I do not know. I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy. Page 323 U. S. 248 Of course, the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty. But I would not lead people to rely on this Court for a review that seems to me wholly delusive. The military reasonableness of these orders can only be determined by military superiors. If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history. My duties as a justice, as I see them, do not require me to make a military judgment as to whether General DeWitt's evacuation and detention program was a reasonable military necessity. I do not suggest that the courts should have attempted to interfere with the Army in carrying out its task. But I do not think they may be asked to execute a military expedient that has no place in law under the Constitution. I would reverse the judgment and discharge the prisoner. * Nature of the Judicial Process, p. 51.

In Korematsu v. United States (1944), the Supreme Court upheld the constitutionality of Civilian Exclusion Order No. 34, which, during World War II, authorized the exclusion of individuals of Japanese ancestry from certain military areas on the West Coast. The Court recognized the suspect nature of racial discrimination but deferred to military necessity, finding that the order was a reasonable exercise of the war power. However, Justice Jackson, in dissent, emphasized the danger of racial discrimination and argued that the Court should not enforce military orders that violate constitutional rights.

Immigration & National Security

Fong Yue Ting v. U.S.

https://supreme.justia.com/cases/federal/us/149/698/

U.S. Supreme Court Fong Yue Ting v. United States, 149 U.S. 698 (1893) Fong Yue Ting v. United States Nos. 1345, 1346, 1347 Argued May 10, 1893 Decided May 15, 1893 149 U.S. 698 APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK Syllabus The right to exclude or to expel aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, is an inherent and inalienable right of every sovereign nation. In the United States, the power to exclude or to expel aliens is vested in the political departments of the National Government, and is to be regulated by treaty or by act of Congress, and to be executed by the executive authority according to the regulations so established, except so far as the Judicial Department is authorized by treaty or by statute, or is required by the Constitution, to intervene. The power of Congress to expel, like the power to exclude, aliens, or any specified class of aliens, from the country, may be exercised entirely through executive officers; or Congress may call in the aid of the Judiciary to ascertain any contested facts on which an alien's right to remain in the country has been made by Congress to depend. Congress has the right to provide a system of registration and identification of any class of aliens within the country, and to take all proper means to carry out that system. The provisions of an act of Congress, passed in the exercise of its constitutional authority, must, if clear and explicit, be upheld by the courts, even in contravention of stipulations in an earlier treaty. Section 6 of the act of May 5, 1892, c. 60, requiring all Chinese laborers Page 149 U. S. 699 within the United States at the time of its passage, "and who are entitled to remain in the United States," to apply within a year to a collector of internal revenue for a certificate of residence, and providing that anyone who does not do so, or is afterwards found in the United States without such a certificate, "shall be deemed and adjudged to be unlawfully in the United States," and may be arrested by any officer of the customs, or collector of internal revenue, or marshal, or deputy of either, and taken before a United States judge, who shall order him to be deported from the United States to his own country unless he shall clearly establish to the satisfaction of the judge that, by reason of accident, sickness, or other unavoidable cause, he was unable to procure his certificate, and "by at least one credible white witness" that he was a resident of the United States at the time of the passage of the act, is constitutional and valid. These were three writs of habeas corpus, granted by the Circuit Court of the United States for the Southern District of New York, upon petitions of Chinese laborers arrested and held by the marshal of the district for not having certificates of residence, under section 6 of the act of May 5, 1892, c. 60, which is copied in the margin.{1} Page 149 U. S. 700 The rules and regulations made and promulgated by the Secretary of the Treasury under section 7 of that act prescribe Page 149 U. S. 701 forms for applications for certificates of residence, for affidavits in support thereof, and for the certificates themselves; contain the provisions copied in the margin;{2} and also provide Page 149 U. S. 702 for recording duplicates of the certificates in the office of the collector of internal revenue. The first petition alleged that the petitioner was a person of the Chinese race, born in China, and not a naturalized citizen of the United States; that, in or before 1879, he came to the United States, with the intention of remaining and taking up his residence therein, and with no definite intention of returning to China, and had ever since been a permanent resident of the United States, and for more than a year last past had resided in the City, County, and State of New York, and within the second district for the collection of internal revenue in that State; that he had not, since the passage of the act of 1892, applied to the collector of internal revenue of that district for a certificate of residence, as required by section 6, and was, and always had been, without such certificate of residence; and that he was arrested by the marshal, claiming authority to do so under that section, without any writ or warrant. The return of the marshal stated that the petitioner was found by him within the jurisdiction of the United States and in the Southern District of New York, without the certificate of residence required by that section; that he had, therefore, arrested him, with the purpose and intention of taking him before a United States judge within that district; and that the petitioner admitted to the marshal, in reply to questions put through an interpreter, that he was a Chinese laborer, and was without the required certificate of residence. The second petition contained similar allegations, and further alleged that the petitioner was taken by the marshal before the district judge for the Southern District of New York, and that "the said United States judge, without any hearing of any kind, thereupon ordered that your petitioner be Page 149 U. S. 703 remanded to the custody of the marshal in and for the Southern District of New York, and deported forthwith from the United States, as is provided in said act of May 5, 1892, all of which more fully appears by said order, a copy of which is hereto annexed and made a part hereof," and which is copied in the margin;{3} and that he was detained by virtue of the marshal's claim of authority and the judge's order. The marshal returned that he held the petitioner under that order. In the third case, the petition alleged, and the judge's order showed, the following state of facts: on April 11, 1893, the petitioner applied to the collector of internal revenue for a certificate of residence. The collector refused to give him a certificate, on the ground that the witnesses whom he produced to prove that he was entitled to the certificate were persons of the Chinese race, and not credible witnesses, and required of him to produce a witness other than a Chinaman to prove that he was entitled to the certificate, which he was unable to do because there was no person other than one of Page 149 U. S. 704 the Chinese race who knew and could truthfully swear that he was lawfully within the United States on May 5, 1892, and then entitled to remain therein; and, because of such unavoidable cause, he was unable to produce a certificate of residence, and was now without one. The petitioner was arrested by the marshal, and taken before the judge, and clearly established to the satisfaction of the judge that he was unable to procure a certificate of residence by reason of the unavoidable cause aforesaid; and also established to the judge's satisfaction, by the testimony of a Chinese resident of New York, that the petitioner was a resident of the United States at the time of the passage of the act; but, having failed to establish this fact clearly to the satisfaction of the court by at least one credible white witness, as required by the statute, the judge ordered the petitioner to be remanded to the custody of the marshal, and to be deported from the United States, as provided in the act. Each petition alleged that the petitioner was arrested and detained without due process of law, and that section 6 of the act of May 5, 1892, was unconstitutional and void. In each case, the Circuit Court, after a hearing upon the writ of habeas corpus and the return of the marshal, dismissed the writ of habeas corpus, and allowed an appeal of the petitioner to this Court, and admitted him to bail pending the appeal. All the proceedings, from the arrest to the appeal, took place on May 6th. MR. JUSTICE GRAY, after stating the facts, delivered the opinion of the Court. The general principles of public law which lie at the foundation of these cases are clearly established by previous judgments Page 149 U. S. 705 of this Court, and by the authorities therein referred to. In the recent case of Nishimura Ekiu v. United States, 142 U. S. 651 , 142 U. S. 659 , the Court, in sustaining the action of the Executive Department, putting in force an act of Congress for the exclusion of aliens, said: "It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. In the United States, this power is vested in the National Government, to which the Constitution has committed the entire control of international relations, in peace as well as in war. It belongs to the political department of the Government, and may be exercised either through treaties made by the President and Senate or through statutes enacted by Congress." The same views were more fully expounded in the earlier case of Chae Chan Ping v. United States, 130 U. S. 581 , in which the validity of a former act of Congress, excluding Chinese laborers from the United States, under the circumstances therein stated, was affirmed. In the elaborate opinion delivered by Mr. Justice Field in behalf of the Court, it was said: "Those laborers are not citizens of the United States; they are aliens. That the Government of the United States, through the action of the Legislative Department, can exclude aliens from its territory, is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens, it would be, to that extent, subject to the control of another power. . . . The United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory." 130 U. S. 130 U.S. 603, 130 U. S. 604 . It was also said, repeating the language of Mr. Justice Page 149 U. S. 706 Bradley in Knox v. Lee , 12 Wall. 457, 79 U. S. 555 : "The United States is not only a Government, but it is a National Government, and the only Government in this country that has the character of nationality. It is invested with power over all the foreign relations of the country, war, peace, and negotiations and intercourse with other nations; all of which are forbidden to the state governments." 130 U.S. 130 U. S. 605 . And it was added: "For local interests, the several States of the Union exist; but for international purposes, embracing our relations with foreign nations, we are but one people, one nation, one power." 130 U.S. 130 U. S. 606 . The Court then went on to say: "To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation; and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us. The Government, possessing the powers which are to be exercised for protection and security, is clothed with authority to determine the occasion on which the powers shall be called forth; and its determination, so far as the subjects affected are concerned, is necessarily conclusive upon all its departments and officers. If, therefore, the Government of the United States, through its Legislative Department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects. The existence of war would render the necessity of the proceeding only more obvious and pressing. The same necessity, in a less pressing degree, may arise when war does not exist, and the same authority which adjudges the necessity in one case must also determine it in the other. In both cases, its determination is conclusive upon the Judiciary. If the Government of the country of which the foreigners excluded are subjects is dissatisfied with this action, it can make complaint to the Page 149 U. S. 707 executive head of our Government, or resort to any other measure which, in its judgment, its interests or dignity may demand, and there lies its only remedy. The power of the Government to exclude foreigners from the country whenever, in its judgment, the public interests require such exclusion has been asserted in repeated instances, and never denied by the Executive or Legislative Departments." 130 U.S. 130 U. S. 606 -607. This statement was supported by many citations from the diplomatic correspondence of successive Secretaries of State, collected in Whart. Int. Law Dig. § 206. The right of a nation to expel or deport foreigners who have not been naturalized, or taken any steps towards becoming citizens of the country, rests upon the same grounds, and is as absolute and unqualified as the right to prohibit and prevent their entrance into the country. This is clearly affirmed in dispatches referred to by the court in Chae Chan Ping's Case. In 1856, Mr. Marcy wrote: "Every society possesses the undoubted right to determine who shall compose its members, and it is exercised by all nations, both in peace and war. A memorable example of the exercise of this power in time of peace was the passage of the alien law of the United States in the year 1798." In 1869, Mr. Fish wrote: "The control of the people within its limits, and the right to expel from its territory persons who are dangerous to the peace of the State, are too clearly within the essential attributes of sovereignty to be seriously contested." Whart. Int. Law Dig. § 206; 130 U.S. 130 U. S. 607 . The statements of leading commentators on the law of nations are to the same effect. Vattel says: "Every nation has the right to refuse to admit a foreigner into the country, when he cannot enter without putting the nation in evident danger, or doing it a manifest injury. What it owes to itself, the care of its own safety, gives it this right; and, in virtue of its natural liberty, it belongs to the nation to judge whether its circumstances will or will not justify the admission of the foreigner. . . . Thus, also, it has a right to send them elsewhere, if it has just cause to Page 149 U. S. 708 fear that they will corrupt the manners of the citizens; that they will create religious disturbances, or occasion any other disorder, contrary to the public safety. In a word, it has a right, and is even obliged, in this respect, to follow the rules which prudence dictates." Vatt. Law Nat. lib. 1, c. 19, §§ 230, 231. Ortolan says: "The Government of each State has always the right to compel foreigners who are found within its territory to go away, by having them taken to the frontier. This right is based on the fact that, the foreigner not making part of the nation, his individual reception into the territory is matter of pure permission, of simple tolerance, and creates no obligation. The exercise of this right may be subjected, doubtless, to certain forms by the domestic laws of each country; but the right exists nonetheless, universally recognized and put in force. In France, no special form is now prescribed in this matter; the exercise of this right of expulsion is wholly left to the executive power." Ortolan, Diplomatie de la Mer, (4th Ed.) lib. 2, c. 14, p. 297. Phillimore says: "It is a received maxim of international law that the government of a State may prohibit the entrance of strangers into the country, and may, therefore, regulate the conditions under which they shall be allowed to remain in it, or may require and compel their departure from it." 1 Phillim. Int.Law, (3d Ed.) c. 10, § 220. Bar says: "Banishment and extradition must not be confounded. The former is simply a question of expediency and humanity, since no state is bound to receive all foreigners, although, perhaps, to exclude all would be to say goodbye to the international union of all civilized states, and although, in some States, such as England, strangers can only be expelled by means of special acts of the legislative power, no state has renounced its right to expel them, as is shown by the alien bills which the government of England has at times used to invest itself with the right of expulsion. . . . Banishment is regulated by rules of expediency and humanity, and is a matter for the police of the State. No doubt, the police can apprehend any foreigner who refuses to quit the country in Page 149 U. S. 709 spite of authoritative orders to do so, and convey him to the frontier." Bar, Int.Law, (Gillespie's Ed. 1883) 708, note, 711. In the passages just quoted from Gillespie's translation of Bar, "banishment" is evidently used in the sense of expulsion or deportation by the political authority on the ground of expediency, and not in the sense of transportation or exile by way of punishment for crime. Strictly speaking, "transportation," "extradition," and "deportation," although each has the effect of removing a person from the country, are different things, and have different purposes. "Transportation" is by way of punishment of one convicted of an offense against the laws of the country. "Extradition" is the surrender to another country of one accused of an offense against its laws, there to be tried and, if found guilty, punished. "Deportation" is the removal of an alien out of the country simply because his presence is deemed inconsistent with the public welfare, and without any punishment's being imposed or contemplated either under the laws of the country out of which he is sent or under those of the country to which he is taken. In England, the only question that has ever been made in regard to the power to expel aliens has been whether it could be exercised by the King without the consent of Parliament. It was formerly exercised by the King, but in later times by Parliament, which passed several acts on the subject between 1793 and 1848. 2 Inst. 57; 1 Chalm. Op. 26; 1 Bl. Comm. 260; Chit. Prerog. 49; 1 Phillim. Int.Law, c. 10, § 220, and note; 30 Parl.Hist. 157, 167, 188, 217, 229; 34 Hans.Deb. (1st Series) 441, 445, 471, 1065-1071; 6 Law Rev.Quar. 27. Eminent English judges, sitting in the judicial committee of the Privy Council, have gone very far in supporting the exclusion or expulsion, by the executive authority of a colony, of aliens having no absolute right to enter its territory or to remain therein. In 1837, in a case arising in the Island of Mauritius, which had been conquered by Great Britain from France in 1810, and in which the law of France continued in force, Lord Page 149 U. S. 710 Lyndhurst, Lord Brougham, and Justices Bosanquet and Erskine, although considering it a case of great hardship, sustained the validity of an order of the English Governor deporting a friendly alien who had long resided and carried on business in the island, and had enjoyed the privileges and exercised the rights of a person duly domiciled, but who had not, as required by the French law, obtained from the colonial government formal and express authority to establish a domicile there. In re Adam, 1 Moore, P.C. 460. In a recent appeal from a judgment of the Supreme Court of the Colony of Victoria, a collector of customs, sued by a Chinese immigrant for preventing him from landing in the Colony, had pleaded a justification under the order of a colonial minister claiming to exercise an alleged prerogative of the Crown to exclude alien friends, and denied the right of a court of law to examine his action on the ground that what he had done was an act of state; and the plaintiff had demurred to the plea. Lord Chancellor Halsbury, speaking for himself, for Lord Herschell (now Lord Chancellor), and for other lords, after deciding against the plaintiff on a question of statutory construction, took occasion to observe: "The facts appearing on the record raise, quite apart from the statutes referred to, a grave question as to the plaintiff's right to maintain the action. He can only do so if he can establish that an alien has a legal right, enforceable by action, to enter British territory. No authority exists for the proposition that an alien has any such right. Circumstances may occur in which the refusal to permit an alien to land might be such an interference with international comity as would properly give rise to diplomatic remonstrance from the country of which he was a native; but it is quite another thing to assert that an alien, excluded from any part of her majesty's dominions by the executive government there, can maintain and action in a British court, and raise such question as were argued before their lordships on the present appeal -- whether the proper officer for giving or refusing access to the country has been duly authorized by his own colonial government, whether the colonial government has received sufficient delegated authority Page 149 U. S. 711 from the Crown to exercise the authority which the Crown had a right to exercise through the colonial government if properly communicated to it, and whether the Crown has the right, without parliamentary authority, to exclude an alien. Their lordships cannot assent to the proposition that an alien refused permission to enter British territory can, in an action in a British court, compel the decision of such matters as these, involving delicate and difficult constitutional questions affecting the respective rights of the Crown and Parliament, and the relations of this country to her self-governing colonies. When once it is admitted that there is no absolute and unqualified right of action on behalf of an alien refused admission to British territory, their lordships are of opinion that it would be impossible, upon the facts which the demurrer admits, for an alien to maintain an action." Musgrove v. Chun Teeong Toy, App.Cas. (1891) 272, 282, 283. The right to exclude or to expel all aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, being an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence, and its welfare, the question now before the Court is whether the manner in which Congress has exercised this right in sections 6 and 7 of the act of 1892 is consistent with the Constitution. The United States are a sovereign and independent nation, and are vested by the Constitution with the entire control of international relations, and with all the powers of Government necessary to maintain that control, and to make it effective. The only Government of this country which other nations recognize or treat with is the Government of the Union, and the only American flag known throughout the world is the flag of the United States. The Constitution of the United States speaks with no uncertain sound upon this subject. That instrument, established by the people of the United States as the fundamental law of the land, has conferred upon the President the executive power; has made him the Commander in Chief of the army and navy; has authorized him, by and with the consent of the Page 149 U. S. 712 Senate, to make treaties, and to appoint ambassadors, public ministers, and consuls; and has made it his duty to take care that the laws be faithfully executed. The Constitution has granted to Congress the power to regulate commerce with foreign nations, including the entrance of ships, the importation of goods, and the bringing of persons into the ports of the United States; to establish a uniform rule of naturalization; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies, to provide and maintain a navy, and to make rules for the Government and regulation of the land and naval forces; and to make all laws necessary and proper for carrying into execution these powers, and all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof. And the several States are expressly forbidden to enter into any treaty, alliance, or confederation; to grant letters of marque and reprisal; to enter into any agreement or compact with another State, or with a foreign power; or to engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. In exercising the great power which the people of the United States, by establishing a written Constitution as the supreme and paramount law, have vested in this Court, of determining, whenever the question is properly brought before it, whether the acts of the Legislature or of the Executive are consistent with the Constitution, it behooves the Court to be careful that it does not undertake to pass upon political questions, the final decision of which has been committed by the Constitution to the other departments of the Government. As long ago said by Chief Justice Marshall, and since constantly maintained by this Court: "The sound construction of the Constitution must allow to the National Legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the Page 149 U. S. 713 manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution; and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional. . . . Where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the Judicial Department, and to tread on legislative ground. This Court disclaims all pretensions to such a power." McCulloch v. Maryland , 4 Wheat. 316, 17 U. S. 421 , 17 U. S. 423 ; Juilliard v. Greenman, 110 U. S. 421 , 110 U. S. 440 , 110 U. S. 450 ; Ex parte Yarbrough, 110 U. S. 651 , 110 U. S. 658 ; In re Rapier, 143 U. S. 110 , 143 U. S. 134 ; Logan v. United States, 144 U. S. 263 , 144 U. S. 283 . The power to exclude or to expel aliens, being a power affecting international relations, is vested in the political departments of the Government, and is to be regulated by treaty or by act of Congress, and to be executed by the executive authority according to the regulations so established, except so far the Judicial Department has been authorized by treaty or by statute, or is required by the paramount law of the Constitution, to intervene. In Nishimura Ekiu's Case, it was adjudged that, although Congress might, if it saw fit, authorize the courts to investigate and ascertain the facts upon which the alien's right to land was made by the statutes to depend, yet Congress might intrust the final determination of those facts to an executive officer; and that, if it did so, his order was due process of law, and no other tribunal, unless expressly authorized by law to do so, was at liberty to reexamine the evidence on which he acted, or to controvert its sufficiency. 142 U. S. 142 U.S. 660. The power to exclude aliens, and the power to expel them, rest upon one foundation, are derived from one source, are supported by the same reasons, and are, in truth, but parts of one and the same power. The power of Congress, therefore, to expel, like the power to exclude, aliens, or any specified class of aliens, from the Page 149 U. S. 714 country, may be exercised entirely through executive officers; or Congress may call in the aid of the Judiciary to ascertain any contested facts on which an alien's right to be in the country has been made by Congress to depend. Congress, having the right, as it may see fit, to expel aliens of a particular class or to permit them to remain, has undoubtedly the right to provide a system of registration and identification of the members of that class within the country, and to take all proper means to carry out the system which it provides. It is no new thing for the lawmaking power, acting either through treaties made by the President and Senate or by the more common method of acts of Congress, to submit the decision of questions, not necessarily of judicial cognizance, either to the final determination of executive officers or to the decision of such officers in the first instance, with such opportunity for judicial review of their action as Congress may see fit to authorize or permit. For instance, the surrender, pursuant to treaty stipulations, of persons residing or found in this country and charged with crime in another may be made by the executive authority of the President alone, when no provision has been made by treaty or by statute for an examination of the case by a judge or magistrate. Such was the case of Jonathan Robbins, under Article 27 of the treaty with Great Britain of 1794, in which the President's power in this regard was demonstrated in the masterly and conclusive argument of John Marshall in the House of Representatives. 8 Stat. 129; Wharton's State Trials 392; Bee, 286, 5 Wheat. appx. 3. But provision may be made, as it has been by later acts of Congress, for a preliminary examination before a judge or commissioner; and, in such case, the sufficiency of the evidence on which he acts cannot be reviewed by any other tribunal except as permitted by statute. Act of August 12, 1848, c. 167; Rev. St. §§ 5270-5274; Ex parte Metzger , 5 How. 176; Benson v. McMahon, 127 U. S. 457 ; In re Luis Oteiza, 136 U. S. 330 . So claims to recover back duties illegally exacted on imports may, if Congress so provides, be finally determined by the Page 149 U. S. 715 Secretary of the Treasury. Cary v. Curtis , 3 How. 236; Curtis v. Fiedler , 2 Black 461, 67 U. S. 478 -479; Arnson v. Murphy, 109 U. S. 238 , 109 U. S. 240 . But Congress may, as it did for long periods, permit them to be tried by suit against the Collector of Customs; or it may, as by the existing statutes, provide for their determination by a board of general appraisers, and allow the decisions of that board to be reviewed by the courts in such particulars only as may be prescribed by law. Act June 10, 1890, c. 407, §§ 14, 15, 25, 26 Stat. 137, 138, 141; In re Fassett, 142 U. S. 479 , 142 U. S. 486 -487; Passavant v. United States, 148 U. S. 214 . To repeat the careful and weighty words uttered by Mr. Justice Curtis in delivering a unanimous judgment of this Court upon the question what is due process of law: "To avoid misconstruction upon so grave a subject, we think it proper to state that we do not consider Congress can either withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law or in equity or admiralty, nor, on the other hand, can it bring under the judicial power a matter which, from its nature, is not a subject for judicial determination. At the same time, there are matters involving public rights which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper." Murray v. Hoboken Co. , 18 How. 272, 59 U. S. 284 . Before examining in detail the provisions of the act of 1892 now in question, it will be convenient to refer to the previous statutes, treaties, and decisions upon the subject. The act of Congress of July 27, 1868, c. 249 (reenacted in sections 1999-2001, Rev. St.), began with these recitals: "Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and whereas, in the recognition of this principle this Government has freely received emigrants from all nations, and invested them with the rights of citizenship." It then declared that Page 149 U. S. 716 any order or decision of any officer of the United States to the contrary was inconsistent with the fundamental principles of this Government; enacted that "all naturalized citizens of the United States, while in foreign states, shall be entitled to and shall receive from this Government the same protection of persons and property that is accorded to native-born citizens in like situations and circumstances," and made it the duty of the President to take measures to protect the rights in that respect of "any citizen of the United States." 15 Stat. 223, 224. That act, like any other, is subject to alteration by Congress whenever the public welfare requires it. The right of protection which it confers is limited to citizens of the United States. Chinese persons, not born in this country, have never been recognized as citizens of the United States, nor authorized to become such under the naturalization laws. Rev.Stat. (2d Ed.) §§ 2165, 2169; Acts April 14, 1802, c. 28, 2 Stat. 153; May 26, 1824, c. 186, 4 Stat. 69; July 14, 1870, c. 254, § 7, 16 Stat. 256; Feb. 18, 1875, c. 80, 18 Stat. 318; In re Ah Yup, 5 Sawy. 155; Act of May 6, 1882, c. 126, § 14, 22 Stat. 61. The treaty made between the United States and China on July 28, 1868, contained the following stipulations: "ARTICLE. 5. The United States of America and the Emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects, respectively, from one country to the other, for purposes of curiosity, of trade, or as permanent residents." "ARTICLE 6. Citizens of the United States visiting or residing in China, . . . and, reciprocally, Chinese subjects visiting or residing in the United States, shall enjoy the same privileges, immunities, and exemptions, in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation. But nothing herein contained shall be held to confer naturalization upon citizens of the United States in China, nor upon the subjects of China in the United States." 16 Stat. 740. Page 149 U. S. 717 After some years' experience under that treaty, the Government of the United States was brought to the opinion that the presence within our territory of large numbers of Chinese laborers, of a distinct race and religion, remaining strangers in the land, residing apart by themselves, tenaciously adhering to the customs and usages of their own country, unfamiliar with our institutions, and apparently incapable of assimilating with our people, might endanger good order, and be injurious to the public interests, and therefore requested and obtained from China a modification of the treaty. Chew Heong v. United States, 112 U. S. 536 , 112 U. S. 542 -543; Chae Chan Ping v. United States, 130 U. S. 581 , 130 U. S. 595 -596. On November 17, 1880, a supplemental treaty was accordingly concluded between the two countries, which contained the following preamble and stipulations: "Whereas, the Government of the United States, because of the constantly increasing immigration of Chinese laborers to the territory of the United States, and the embarrassments consequent upon such immigration, now desires to negotiate a modification of the existing treaties which shall not be in direct contravention of their spirit:" "ARTICLE 1. Whenever, in the opinion of the Government of the United States, the coming of Chinese laborers to the United States, or their residence therein, affects or threatens to affect the interests of that country, or to endanger the good order of the said country, or of any locality within the territory thereof, the Government of China agrees that the Government of the United States may regulate, limit, or suspend such coming or residence, but may not absolutely prohibit it. The limitation or suspension shall be reasonable, and shall apply only to Chinese who may go to the United States as laborers, other classes not being included in the limitations. Legislation taken in regard to Chinese laborers will be of such a character only as is necessary to enforce the regulation, limitation, or suspension of immigration, and immigrants shall not be subject to personal maltreatment or abuse." "ARTICLE 2. Chinese subjects, whether proceeding to the Page 149 U. S. 718 United States as teachers, students, merchants, or from curiosity, together with their body and household servants, and Chinese laborers who are now in the United States, shall be allowed to go and come of their own free will and accord, and shall be accorded all the rights, privileges, immunities, and exemption which are accorded to the citizens and subjects of the most favored nation." "ARTICLE 3. If Chinese laborers, or Chinese of any other class, now either permanently or temporarily residing in the territory of the United States, meet with ill treatment at the hands of any other persons, the Government of the United States will exert all its power to devise measures for their protection, and to secure to them the same rights, privileges, immunities, and exemptions as may be enjoyed by the citizens or subjects of the most favored nation, and to which they are entitled by treaty." 22 Stat. 826, 827. The act of May 6, 1882, c. 126, entitled "An act to execute certain treaty stipulations relating to Chinese," and amended by the act of July 5, 1884, c. 220, began with the recital that, "in the opinion of the Government of the United States, the coming of Chinese laborers to this country endangers the good order of certain localities within the territories thereof;" and, in section 1, suspended their coming for 10 years, and enacted that it should "not be lawful for any Chinese laborer to come from any foreign port or place, or, having so come, to remain within the United States;" in section 3, that this provision should not apply to Chinese laborers who were in the United States on November 17, 1880, or who came here within 90 days after the passage of the act of 1882, and who should produce evidence of that fact, as afterwards required by the act, to the master of the vessel and to the collector of the port; and, in section 4, that "for the purpose of properly identifying Chinese laborers who were in the United States" at such time, "and in order to furnish them with the proper evidence of their right to go from and come to the United States," as provided by that act and by the treaty of November 17, 1880, the collector of customs of the district from which any Chinese laborers should depart from Page 149 U. S. 719 the United States by sea should go on board the vessel, and make and register a list of them, with all facts necessary for their identification, and should give to each a corresponding certificate, which should entitle him "to return to and reenter the United States, upon producing and delivering the same to the collector of customs" to be canceled. The form of certificate prescribed by the act of 1884 differed in some particulars from that prescribed by the act of 1882, and the act of 1884 added that "said certificate shall be the only evidence to establish his right of reentry." Each act further enacted, in section 5, that any such Chinese laborer, being in the United States and desiring to depart by land, should be entitled to a like certificate of identity; and, in section 12, that no Chinese person should be permitted to enter the United States by land without producing such a certificate, and that "any Chinese person found unlawfully within the United States shall be caused to be removed therefrom to the country from whence he came, and at the cost of the United States, after being brought before some justice, judge, or commissioner of a court of the United States, and found to be one not lawfully entitled to be or remain in the United States." The act of 1884 further enacted, in section 16, that a violation of any of the provisions of the act, the punishment of which was not therein otherwise provided for, should be deemed a misdemeanor, and be punishable by fine not exceeding $1,000, or by imprisonment for not more than one year, or by both such fine and imprisonment. 22 Stat. 58-60; 23 Stat. 115-118. Under those acts, this Court held, in Chew Heong v. United States, 112 U. S. 536 , that the clause of section 4 of the act of 1884, making the certificate of identity the only evidence to establish a right to reenter the United States, was not applicable to a Chinese laborer who resided in the United States at the date of the treaty of 1880, departed by sea before the passage of the act of 1882, remained out of the United States until after the passage of the act of 1884, and then returned by sea; and in United States v. Jung Ah Lung, 124 U. S. 621 , that a Chinese laborer who resided in the United Page 149 U. S. 720 States at the date of the treaty of 1880, and until 1883, when he left San Francisco for China, taking with him a certificate of identity from the collector of the port in the form provided by the act of 1882, which was stolen from him in China, was entitled to land again in the United States in 1885, on proving by other evidence these facts, and his identity with the person described in the register kept by the collector of customs as the one to whom that certificate was issued. Both those decisions proceeded upon a consideration of the various provisions of the acts of 1882 and 1884, giving weight to the presumption that they should not, unless unavoidably, be construed as operating retrospectively, or as contravening the stipulations of the treaty. In the first of those cases, Justices Field and Bradley, and in the second case Justices Field, Harlan, and Lamar, dissented from the judgment, being of opinion that the necessary construction of those acts was against the Chinese laborer, and in none of the opinions in either case was it suggested that the acts in questions, if construed as contended by the United States, and so as to contravene the treaty, would be unconstitutional or inoperative. In our jurisprudence, it is well settled that the provisions of an act of Congress, passed in the exercise of its constitutional authority, on this, as on any other, subject, if clear and explicit, must be upheld by the courts, even in contravention of express stipulations in an earlier treaty. As was said by this Court in Chae Chan Ping's Case, following previous decisions "The treaties were of no greater legal obligation than the act of Congress. By the Constitution, laws made in pursuance thereof, and treaties made under authority of the United States, are both declared to be the supreme law of the land, and no paramount authority is given to one over the other. A treaty, it is true, is in its nature a contract between nations, and is often merely promissory in its character, requiring legislation to carry its stipulations into effect. Such legislation will be open to future repeal or amendment. If the treaty operates by its own force, and relates to a subject within the power of Congress, it can be deemed in that particular only the equivalent of a legislative act, to be repealed or modified Page 149 U. S. 721 at the pleasure of Congress. In either case, the last expression of the sovereign will must control. . . . So far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification, or repeal." 130 U. S. 130 U.S. 600. See also Foster v. Neilson , 2 Pet. 253, 27 U. S. 314 ; Edye v. Robertson, 112 U. S. 580 , 112 U. S. 597 -599; Whitney v. Robertson, 124 U. S. 190 . By the supplementary act of October 1, 1888, c. 1064, it was enacted, in section 1 that, "from and after the passage of this act, it shall be unlawful for any Chinese laborer, who shall at any time heretofore have been, or who may now or hereafter be, a resident within the United States, and who shall have departed or shall depart therefrom, and shall not have returned before the passage of this act, to return to, or remain in, the United States," and, in section 2, that "no certificates of identity, provided for in the fourth and fifth sections of the act to which this is a supplement, shall hereafter be issued, and every certificate heretofore issued in pursuance thereof is hereby declared void and of no effect, and the Chinese laborer claiming admission by virtue thereof shall not be permitted to enter the United States." 25 Stat. 504. In the case of Chae Chan Ping already often referred to, a Chinese laborer, who had resided in San Francisco from 1875 until June 2, 1887, when he left that port for China, having in his possession a certificate issued to him on that day by the collector of customs, according to the act of 1884, and in terms entitling him to return to the United States, returned to the same port on October 8, 188, and was refused by the collector permission to land because of the provisions of the act of October 1, 1888, above cited. It was strongly contended in his behalf that, by his residence in the United States for 12 years preceding June 2, 1887, in accordance with the fifth article of the treaty of 1868, he had now a lawful right to be in the United States, and had a vested right to return to the United States which could not be taken from him by any exercise of mere legislative power by Congress; Page 149 U. S. 722 that he had acquired such a right by contract between him and the United States by virtue of his acceptance of the offer contained in the acts of 1882 and 1884, to every Chinese person then here, if he should leave the country, complying with specified conditions, to permit him to return; that, as applied to him, the act of 1888 was unconstitutional, as being a bill of attainder and an ex post facto law; and that the depriving him of his right to return was punishment, which could not be inflicted except by judicial sentence. The contention was thus summed up at the beginning of the opinion: "The validity of the act is assailed as being, in effect, an expulsion from the country of Chinese laborers, in violation of existing treaties between the United States and the Government of China, and of rights vested in them under the laws of Congress." 130 U.S. 584-589 [argument of counsel omitted]. Yet the court unanimously held that the statute of 1888 was constitutional, and that the action of the collector in refusing him permission to land was lawful; and, after the passages already quoted, said: "The power of exclusion of foreigners being an incident of sovereignty belonging to the Government of the United States, as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the Government, the interests of the county require it, cannot be granted away or restrained on behalf of anyone. The powers of Government are delegated in trust to the United States, and are incapable of transfer to any other parties. They cannot be abandoned or surrendered. Nor can their exercise be hampered, when needed for the public good, by any considerations of private interest. The exercise of these public trusts is not the subject of barter or contract. Whatever license, therefore, Chinese laborers may have obtained previous to the act of October 1, 1888, to return to the United States after their departure is held at the will of the Government, revocable at any time at its pleasure. . . . The rights and interests created by a treaty, which have become so vested that its expiration or abrogation will not destroy or impair them, are such as are connected with and lie in property, capable of sale and transfer or other Page 149 U. S. 723 disposition; not such as are personal and untransferable in their character. . . . But far different is this case, where a continued suspension of the exercise of a Governmental power is insisted upon as a right, because, by the favor and consent of the Government, it has not heretofore been exerted with respect to the appellant, or to the class to which he belongs. Between property rights not affected by the termination or abrogation of a treaty and expectations of benefits from the continuance of existing legislation, there is as wide a difference as between realization and hopes." 130 U.S. 130 U. S. 609 -610. It thus appears that, in that case, it was directly adjudged, upon full argument and consideration, that a Chinese laborer, who had been admitted into the United States while the treaty of 1868 was in force by which the United States and China "cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects, respectively, from one country to the other," not only for the purpose of curiosity or of trade, but "as permanent residents," and who had continued to reside here for 12 years, and who had then gone back to China, after receiving a certificate, in the form provided by act of Congress, entitling him to return to the United States, might be refused readmission into the United States, without judicial trial or hearing, and simply by reason of another act of Congress, passed during his absence and declaring all such certificates to be void, and prohibiting all Chinese laborers who had at any time been residents in the United States, and had departed therefrom and not returned before the passage of this act, from coming into the United States. In view of that decision, which, as before observed, was a unanimous judgment of the Court, and which had the concurrence of all the Justices who had delivered opinions in the cases arising under the acts of 1882 and 1884, it appears to be impossible to hold that a Chinese laborer acquired, under any of the treaties or acts of Congress, any right, as a denizen, or otherwise, to be and remain in this country except by the license, permission, and sufferance of Congress, to be withdrawn Page 149 U. S. 724 whenever, in its opinion, the public welfare might require it. By the law of nations, doubtless, aliens residing in a country with the intention of making it a permanent place of abode acquire, in one sense, a domicile there, and, while they are permitted by the nation to retain such a residence and domicile, are subject to its laws and may invoke its protection against other nations. This is recognized by those publicists who, as has been seen, maintain in the strongest terms the right of the nation to expel any or all aliens at its pleasure. Vatt. Law Nat. lib. 1, c. 19, § 213; 1 Phillim. Int. Law, c. 18, § 321; Mr Marcy, in Koszta's Case, 2 Whart. Int.Law Dig. § 198. See also Lau Ow Bew v. United States, 144 U. S. 47 , 144 U. S. 62 ; Merl.Repert. "Domicile," § 13, quoted in the case above cited, of In re Adam, 1 Moore P.C. 460, 472, 473. Chinese laborers, therefore, like all other aliens residing in the United States for a shorter or longer time, are entitled, so long as they are permitted by the Government of the United States to remain in the country, to the safeguards of the Constitution, and to the protection of the laws, in regard to their rights of person and of property, and to their civil and criminal responsibility. But they continue to be aliens, having taken no steps towards becoming citizens, and incapable of becoming such under the naturalization laws, and therefore remain subject to the power of Congress to expel them or to order them to be removed and deported from the country whenever, in its judgment, their removal is necessary or expedient for the public interest. Nothing inconsistent with these views was decided or suggested by the court in Chy Lung v. Freeman, 92 U. S. 275 , or in Yick Wo v. Hopkins, 118 U. S. 356 , cited for the appellants. In Chy Lung v. Freeman, a statute of the State of California restricting the immigration of Chinese persons was held to be unconstitutional and void because it contravened the grant in the Constitutional Congress of the power to regulate commerce with foreign nations. Page 149 U. S. 725 In Yick Wo v. Hopkins, the point decided was that the Fourteenth Amendment of the Constitution of the United States, forbidding any State to deprive any person of life, liberty, or property without due process of law, or to deny to any person within its jurisdiction the equal protection of the laws, was violated by a municipal ordinance of San Francisco, which conferred upon the Board of Supervisors arbitrary power, without regard to competency of persons or to fitness of places, to grant or refuse licenses to carry on public laundries, and which was executed by the Supervisors by refusing licenses to all Chinese residents, and granting them to other persons under like circumstances. The question there was of the power of a State over aliens continuing to reside within its jurisdiction, not of the power of the United States to put an end to their residence in the country. The act of May 5, 1892, c. 60, is entitled "An act to prohibit the coming of Chinese persons into the United States," and provides, in section 1, that "all laws now in force prohibiting and regulating the coming into this country of Chinese persons and persons of Chinese descent are hereby continued in force for a period of ten years from the passage of this act." The rest of the act (laying aside, as immaterial, section 5, relating to an application for a writ of habeas corpus "by a Chinese person seeking to land in the United States, to whom that privilege has been denied") deals with two classes of Chinese persons: first, those "not entitled to be or remain in the United States," and second, those "entitled to remain in the United States." These words of description neither confer nor take away any right, but simply designate the Chinese persons who were not, or who were, authorized or permitted to remain in the United States under the laws and treaties existing at the time of the passage of this act, but subject, nevertheless, to the power of the United States, absolutely or conditionally, to withdraw the permission and to terminate the authority to remain. Sections 2-4 concern Chinese "not lawfully entitled to be or remain in the United States," and provide that, after trial Page 149 U. S. 726 before a justice, judge, or commissioner, a "Chinese person, or person of Chinese descent, convicted and adjudged to be not lawfully entitled to be or remain in the United States," shall be imprisoned at hard labor for not more than a year, and be afterwards removed to China, or other country of which he appears to be a citizen or subject. The subsequent sections relate to Chinese laborers "entitled to remain in the United States" under previous laws. Sections 6 and 7 are the only sections which have any bearing on the cases before us, and the only ones, therefore, the construction or effect of which need now be considered. The manifest objects of these sections are to provide a system of registration and identification of such Chinese laborers, to require them to obtain certificates of residence, and, if they do not do so within a year, to have them deported from the United States. Section 6, in the first place, provides that "it shall be the duty of all Chinese laborers, within the limits of the United States at the time of the passage of this act, and who are entitled to remain in the United States, to apply to the collector of internal revenue of their respective districts, within one year after the passage of this act, for a certificate of residence." This provision, by making it the duty of the Chinese laborer to apply to the collector of internal revenue of the district for a certificate necessarily implies a correlative duty of the collector to grant him a certificate upon due proof of the requisite facts. What this proof shall be is not defined in the statute, but is committed to the supervision of the Secretary of the Treasury by section 7, which directs him to make such rules and regulations as may be necessary for the efficient execution of the act, to prescribe the necessary forms, and to make such provisions that certificates may be procured in localities convenient to the applicants, and without charge to them; and the Secretary of the Treasury has, by such rules and regulations, provided that the fact of residence shall be proved by "at least one credible witness of good character," or, in case of necessity, by other proof. The statute and the regulations, in order to make sure that every such Chinese Page 149 U. S. 727 laborer may have a certificate, in the nature of a passport, with which he may go into any part of the United States, and that the United States may preserve a record of all such certificates issued, direct that a duplicate of each certificate shall be recorded in the office of the collector who granted it, and may be issued to the laborer upon proof of loss or destruction of his original certificate. There can be no doubt of the validity of these provisions and regulations, unless they are invalidated by the other provisions of section 6. This section proceeds to enact that any Chinese laborer within the limits of the United States who shall neglect, fail, or refuse to apply for a certificate of residence within the year, or who shall afterwards be found within the jurisdiction of the United States without such a certificate, "shall be deemed and adjudged to be unlawfully within the United States." The meaning of this clause, as shown by those which follow, is not that this fact shall thereupon be held to be conclusively established against him, but only that the want of a certificate shall be prima facie evidence that he is not entitled to remain in the United States, for the section goes on to direct that he "may be arrested by any customs official, collector of internal revenue or his deputies, United States Marshal or his deputies, and taken before a United States judge," and that it shall thereupon be the duty of the judge to order that the laborer "be deported from the United States" to China (or to any other country which he is a citizen or subject of, and which does not demand any tax as a condition of his removal to it) "unless he shall establish clearly, to the satisfaction of said judge, that, by reason of accident, sickness, or other unavoidable cause, he has been unable to procure his certificate, and to the satisfaction of the court, and by at least one credible white witness, that he was a resident of the United States at the time of the passage of this act; and if, upon the hearing, if shall appear that he is so entitled to a certificate, it shall be granted upon his paying the cost. Should it appear that said Chinaman had procured a certificate which has been lost or destroyed, he shall be detained, and judgment suspended a reasonable time to enable him to procure a duplicate from the Page 149 U. S. 728 officer granting it; and in such cases, the cost of said arrest and trial shall be in the discretion of the court." For the reasons stated in the earlier part of this opinion, Congress, under the power to exclude or expel aliens, might have directed any Chinese laborer found in the United States without a certificate of residence to be removed out of the country by executive officers, without judicial trial or examination, just as it might have authorized such officers absolutely to prevent his entrance into the country. But Congress has not undertaken to do this. The effect of the provisions of section 6 of the act of 1892 is that, if a Chinese laborer, after the opportunity afforded him to obtain a certificate of residence within a year at a convenient place, and without cost, is found without such a certificate, he shall be so far presumed to be not entitled to remain within the United States that an officer of the customs, or a collector of internal revenue, or a marshal, or a deputy of either, may arrest him, not with a view to imprisonment or punishment, or to his immediate deportation without further inquiry, but in order to take him before a judge for the purpose of a judicial hearing and determination of the only facts which, under the act of Congress, can have a material bearing upon the question whether he shall be sent out of the country, or be permitted to remain. The powers and duties of the executive officers named being ordinarily limited to their own districts, the reasonable inference is that they must take him before a judge within the same judicial district; and such was the course pursued in the cases before us. The designation of the judge, in general terms, as "a United States judge," is an apt and sufficient description of a judge of a court of the United States, and is equivalent to or synonymous with the designation, in other statutes, of the judges authorized to issue writs of habeas corpus, or warrants to arrest persons accused of crime. Rev.Stat. §§ 752, 1014. When, in the form prescribed by law, the executive officer, acting in behalf of the United States, brings the Chinese laborer before the judge, in order that he may be heard, and Page 149 U. S. 729 the facts upon which depends his right to remain in the country be decided, a case is duly submitted to the judicial power; for here are all the elements of a civil case -- a complainant, a defendant, and a judge -- actor, reus, et judex. 3 Bl. Comm. 25; Osborn v. Bank of United States , 9 Wheat. 738, 22 U. S. 819 . No formal complaint or pleadings are required, and the want of them does not affect the authority of the judge or the validity of the statute. If no evidence is offered by the Chinaman, the judge makes the order of deportation as upon a default. If he produces competent evidence to explain the fact of his not having a certificate, it must be considered by the judge; and if he thereupon appears to be entitled to a certificate, it is to be granted to him. If he proves that the collector of internal revenue has unlawfully refused to give him a certificate, he proves an "unavoidable cause," within the meaning of the act, for not procuring one. If he proves that he had procured a certificate which has been lost or destroyed, he is to be allowed a reasonable time to procure a duplicate thereof. The provision which puts the burden of proof upon him of rebutting the presumption arising from his having no certificate, as well as the requirement of proof "by at least one credible white witness that he was a resident of the United States at the time of the passage of this act," is within the acknowledged power of every legislature to prescribe the evidence which shall be received, and the effect of that evidence in the courts of its own Government. Ogden v. Saunders , 12 Wheat. 213, 25 U. S. 262 , 25 U. S. 349 ; Pillow v. Roberts , 13 How. 472, 54 U. S. 476 ; Cliquot's Champagne , 3 Wall. 114, 70 U. S. 143 ; Ex parte Fisk, 113 U. S. 713 , 113 U. S. 721 ; Holmes v. Hunt, 122 Mass. 505, 516-519. The competency of all witnesses, without regard to their color, to testify in the courts of the United States rests on acts of Congress, which Congress may at its discretion, modify or repeal. Rev.Stat. §§ 858, 1977. The reason for requiring a Chinese alien, claiming the privilege of remaining in the United States, to prove the fact of his residence here at the time of the passage of the act "by at least one credible white witness" may have been the experience of Congress, as Page 149 U. S. 730 mentioned by Mr. Justice Field in Chae Chan Ping's Case, that the enforcement of former acts, under which the testimony of Chinese persons was admitted to prove similar facts, "was attended with great embarrassment, from the suspicious nature, in many instances, of the testimony offered to establish the residence of the parties, arising from the loose notions entertained by the witnesses of the obligation of an oath." 130 U.S. 130 U. S. 598 . And this requirement, not allowing such a fact to be proved solely by the testimony of aliens in a like situation, or of the same race, is quite analogous to the provision, which has existed for 77 years in the naturalization laws, by which aliens applying for naturalization must prove their residence within the limits and under the jurisdiction of the United States, for five years next preceding, "by the oath or affirmation of citizens of the United States." Acts March 22, 1816, c. 32, § 2, 3 Stat. 259; May 24, 1828, c. 116, § 2, 4 Stat. 311; Rev.Stat. § 2165, cl. 6; 2 Kent, Comm. 65. The proceeding before a United States judge, as provided for in section 6 of the act of 1892, is in no proper sense a trial and sentence for a crime or offense. It is simply the ascertainment, by appropriate and lawful means, of the fact whether the conditions exist upon which Congress has enacted that an alien of this class may remain within the country. The order of deportation is not a punishment for crime. It is not a banishment, in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punishment. It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the Government of the nation, acting within its constitutional authority, and through the proper departments, has determined that his continuing to reside here shall depend. He has not, therefore, been deprived of life, liberty, or property without due process of law, and the provisions of the Constitution securing the right of trial by jury and prohibiting unreasonable searches and seizures and cruel and unusual punishments have no application. Page 149 U. S. 731 The question whether and upon what conditions these aliens shall be permitted to remain within the United States being one to be determined by the political departments of the Government, the Judicial Department cannot properly express an opinion upon the wisdom, the policy, or the justice of the measures enacted by Congress in the exercise of the powers confided to it by the Constitution over this subject. The three cases now before us do not differ from one another in any material particular. In the first case, the petitioner had wholly neglected, failed, and refused to apply to the collector of internal revenue for a certificate of residence, and, being found without such a certificate after a year from the passage of the act of 1892, was arrested by the United States Marshal, with the purpose, as the return states, of taking him before a United States judge within the district, and thereupon, before any further proceeding, sued out a writ of habeas corpus. In the second case, the petitioner had likewise neglected, failed, and refused to apply to the collector of internal revenue for a certificate of residence, and, being found without one, was arrested by the Marshal, and taken before the district judge of the United States, who ordered him to be remanded to the custody of the Marshal, and to be deported from the United States, in accordance with the provisions of the act. The allegation in the petition that the judge's order was made "without any hearing of any kind" is shown to be untrue by the recital in the order itself (a copy of which is annexed to and made part of the petition) that he had failed to clearly establish to the judge's satisfaction that, by reason of accident, sickness, or other unavoidable cause, he had been unable to procure a certificate, or that he had procured one and it had been lost or destroyed. In the third case, the petitioner had, within the year, applied to a collector of internal revenue for a certificate of residence, and had been refused it, because he produced, and could produce, none but Chinese witnesses to prove the residence necessary to entitle him to a certificate. Being found without a certificate of residence, he was arrested by the Page 149 U. S. 732 Marshal and taken before the United States district judge, and established to the satisfaction of the judge that, because of the collector's refusal to give him a certificate of residence, he was without one by an unavoidable cause; and also proved, by a Chinese witness only, that he was a resident of the United States at the time of the passage of the act of 1892. Thereupon, the judge ordered him to be remanded to the custody of the Marshal and to be deported from the United States, as provided in that act. It would seem that the collector of internal revenue, when applied to for a certificate, might properly decline to find the requisite fact of residence upon testimony which, by an express provision of the act, would be insufficient to prove that fact at a hearing before the judge. But if the collector might have received and acted upon such testimony, and did, upon any ground, unjustifiably refuse a certificate of residence, the only remedy of the applicant was to prove by competent and sufficient evidence at the hearing before the judge the facts requisite to entitle him to a certificate. To one of those facts -- that of residence -- the statute, which, for the reasons already stated, appears to us to be within the constitutional authority of Congress to enact, peremptorily requires at that hearing the testimony of a credible white witness; and it was because no such testimony was produced that the order of deportation was made. Upon careful consideration of the subject, the only conclusion which appears to us to be consistent with the principles of international law, with the Constitution and laws of the United States, and with the previous decisions of this Court is that, in each of these cases, the judgment of the Circuit Court dismissing the writ of habeas corpus is right, and must be affirmed. "An act to prohibit the coming of Chinese persons into the United States." "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that all laws now in force prohibiting and regulating the coming into this country of Chinese persons and persons of Chinese descent are hereby continued in force for a period of ten years from the passage of this act." "SEC. 2. That any Chinese person or person of Chinese descent, when convicted and adjudged under any of said laws to be not lawfully entitled to be or remain in the United States, shall be removed from the United States to China, unless he or they shall make it appear to the justice, judge, or commissioner before whom he or they are tried that he or they are subjects or citizens of some other country, in which case he or they shall be removed from the United States to such country: provided, that in any case where such other country, of which such Chinese person shall claim to be a citizen or subject, shall demand any tax as a condition of the removal of such person to that country, he or she shall be removed to China." "SEC. 3. That any Chinese person or person of Chinese descent arrested under the provisions of this act or the acts hereby extended shall be adjudged to be unlawfully within the United States, unless such person shall establish, by affirmative proof, to the satisfaction of such justice, judge, or commissioner, his lawful right to remain in the United States." "SEC. 4. That any such Chinese person or person of Chinese descent convicted and adjudged to be not lawfully entitled to be or remain in the United States shall be imprisoned at hard labor for a period of not exceeding one year, and thereafter removed from the United States, as hereinbefore provided." "SEC. 5. That after the passage of this act, on an application to any judge or court of the United States in the first instance for a writ of habeas corpus, by a Chinese person seeking to land in the United States, to whom that privilege has been denied, no bail shall be allowed, and such application shall be heard and determined promptly, without unnecessary delay." "SEC. 6. And it shall be the duty of all Chinese laborers within the limits of the United States at the time of the passage of this act, and who are entitled to remain in the United States, to apply to the collector of internal revenue of their respective districts, within one year after the passage of this act, for a certificate of residence; and any Chinese laborer within the limits of the United States, who shall neglect, fail, or refuse to comply with the provisions of this act, or who, after one year from the passage hereof, shall be found within the jurisdiction of the United States without such certificate of residence, shall be deemed and adjudged to be unlawfully within the United States, and may be arrested by any United States customs official, collector of internal revenue or his deputies, United States marshal or his deputies, and taken before a United States judge, whose duty it shall be to order that he be deported from the United States, as hereinbefore provided, unless he shall establish clearly, to the satisfaction of said judge, that by reason of accident, sickness, or other unavoidable cause he has been unable to procure his certificate, and to the satisfaction of the court, and by at least one credible white witness, that he was a resident of the United States at the time of the passage of this act; and if upon the hearing it shall appear that he is so entitled to a certificate, it shall be granted, upon his paying the cost. Should it appear that said Chinaman had procured a certificate which has been lost or destroyed, he shall be detained, and judgment suspended a reasonable time to enable him to procure a duplicate from the officer granting it; and in such cases the cost of said arrest and trial shall be in the discretion of the court. And any Chinese person other than a Chinese laborer, having a right to be and remain in the United States, desiring such certificate as evidence of such right, may apply for and receive the same without charge." "SEC. 7. That immediately after the passage of this act, the Secretary of the Treasury shall make such rules and regulations as may be necessary for the efficient execution of this act, and shall prescribe the necessary forms and furnish the necessary blanks to enable collectors of internal revenue to issue the certificates required hereby, and make such provisions that certificates may be procured in localities convenient to the applicants. Such certificates shall be issued without charge to the applicant, and shall contain the name, age, local residence, and occupation of the applicant, and such other description of the applicant as shall be prescribed by the Secretary of the Treasury; and a duplicate thereof shall be filed in the office of the collector of internal revenue for the district within which such Chinaman makes application." "SEC. 8. That any person who shall knowingly and falsely alter or substitute any name for the name written in such certificate, or forge such certificate, or knowingly utter any forged or fraudulent certificate, or falsely personate any person named in such certificate, shall be guilty of a misdemeanor, and upon conviction thereof shall be fined in a sum not exceeding one thousand dollars, or imprisoned in the penitentiary for a term of not more than five years." "SEC. 9. The Secretary of the Treasury may authorize the payment of such compensation in the nature of fees to the collectors of internal revenue, for services performed under the provisions of this act, in addition to salaries now allowed by law, as he shall deem necessary, not exceeding the sum of one dollar for each certificate issued." "Collectors of internal revenue will receive applications on the following form at their own offices, from such Chinese as are conveniently located thereto, and will cause their deputies to proceed to the towns or cities in their respective divisions where any considerable number of Chinese are residing, for the purpose of receiving applications. No application will be received later than May 5, 1893." "Collectors and deputies will give such notice, through leading Chinese, or by notices posted in the Chinese quarter of the various localities, as will be sufficient to apprise all Chinese residing in their districts of their readiness to receive applications, and the time and place where they may be made. All applications received by deputies must be forwarded to the collector's office, from whose office all certificates of residence will be issued, and sent to the deputy for delivery." The affidavit of at least one credible witness of good character to the fact of residence and lawful status within the United States must be furnished with every application. If the applicant is unable to furnish such witness satisfactory to the collector or his deputy, his application will be rejected, unless he shall furnish other proof of his right to remain in the United States, in which case the application, with the proofs presented, shall be forwarded to the commissioner of internal revenue for his decision. The witness must appear before the collector or his deputy, and be fully questioned in regard to his testimony before being sworn. "In all cases of loss or destruction of original certificates of residence, where it can be established to the satisfaction of the collector of the district in which the certificate was issued that such loss or destruction was accidental, and without fault or negligence on the part of the applicant, a duplicate of the original may be issued under the same conditions that governed the original issue." "In the matter of the arrest and deportation of Wong Quan, a Chinese laborer." "Wong Quan, a Chinese laborer, having been arrested in the City of New York on the 6th day of May, 1893, and brought before me, a United States Judge, by John W. Jacobus, the Marshal of the United States in and for the Southern District of New York, as being a Chinese laborer found within the jurisdiction of the United States after the expiration of one year from the passage of the act of Congress approved on the 5th day of May, 1892, and entitled 'An act to prohibit the coming of Chinese persons into the United States,' without having the certificate of residence required by said act; and the said Wong Quan having failed to clearly establish to my satisfaction that by reason of accident, sickness, or other unavoidable cause he had been unable to procure the said certificate, or that he had procured such certificate, and that the same had been lost or destroyed: Now, on motion of Edward Mitchell, the United States attorney in and for the Southern District of New York, it is ordered that the said Wong Quan be, and he hereby is, remanded to the custody of the said John W. Jacobus, the United States Marshal in and for the Southern District of New York; and it is further ordered, that the said Wong Quan be deported from the United States of America in accordance with the provisions of said act of Congress approved on the 5th day of May, 1892." "Dated New York, May 6, 1893." "Addison Brown" "United States District Judge for the" "Southern District of New York." MR. JUSTICE BREWER, dissenting. I dissent from the opinion and judgment of the Court in these cases, and, the questions being of importance, I deem it not improper to briefly state my reasons therefor. Page 149 U. S. 733 I rest my dissent on three propositions: first, that the persons against whom the penalties of section 6 of the act of 1892 are directed are persons lawfully residing within the United States; secondly, that, as such, they are within the protection of the Constitution, and secured by its guaranties against oppression and wrong; and third, that section 6 deprives them of liberty, and imposes punishment without due process of law, and in disregard of constitutional guaranties, especially those found in the 4th, 5th, 6th, and 8th articles of the amendments. And, first, these persons are lawfully residing within the limits of the United States. By the treaty of July 28, 1868, 16 Stat. 740, commonly known as the "Burlingame Treaty," it was provided, Article 5: "The United States of America and the Emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects, respectively, from the one country to the other for purposes of curiosity, of trade, or as permanent residents." And, Article 6: "Citizens of the United States visiting or residing in China shall enjoy the same privileges, immunities, or exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation; and, reciprocally, Chinese subjects visiting or residing in the United States shall enjoy the same privileges, immunities, and exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation." At that time, we sought Chinese emigration. The subsequent treaty of November 17, 1880, 22 Stat. 826, which looked to a restriction of Chinese emigration, nevertheless contained, in Article 2, this provision: "ARTICLE II. Chinese subjects, whether proceeding to the United States as teachers, students, merchants, or from curiosity, together with their body and household servants, and Chinese laborers who are now in the United States, shall be allowed to go and come of their own free will and accord, and shall be accorded all the rights, privileges, immunities, Page 149 U. S. 734 and exemptions which are accorded to the citizens and subjects of the most favored nation." While, subsequently to this treaty, Congress passed several acts -- May 6, 1882, 22 Stat. 58; July 5, 1884, 23 Stat. 115; October 1, 1888, 25 Stat. 504 -- to restrict the entrance into this country of Chinese laborers, and while the validity of this restriction was sustained in the Chinese Exclusion Case, 130 U. S. 581 , yet no act has been passed denying the right of those laborers who had once lawfully entered the country to remain, and they are here not as travelers, or only temporarily. We must take judicial notice of that which is disclosed by the census, and which is also a matter of common knowledge. There are 100,000 and more of these persons living in this country, making their homes here, and striving by their labor to earn a livelihood. They are not travelers, but resident aliens. But, further, this section 6 recognizes the fact of a lawful residence, and only applies to those who have such, for the parties named in the section, and to be reached by its provisions, are "Chinese laborers within the limits of the United States at the time of the passage of this act, and who are entitled to remain in the United States." These appellants, therefore, are lawfully within the United States, and are here as residents, and not as travelers. They have lived in this country, respectively, since 1879, 1877, and 1874 -- almost as long a time as some of those who were members of the Congress that passed this act of punishment and expulsion. That those who have become domiciled in a country are entitled to a more distinct and larger measure of protection than those who are simply passing through or temporarily in it has long been recognized by the law of nations. It was said by this Court in the case of The Venus , 8 Cranch 253, 12 U. S. 278 : "The writers upon the law of nations distinguish between a temporary residence in a foreign country for a special purpose and a residence accompanied with an intention to make it a permanent place of abode. The latter is styled by Vattel 'domicile,' which he defines to be 'a habitation fixed in any place, with an intention of always staying there.' Such Page 149 U. S. 735 a person, says this author, becomes a member of the new society at least as a permanent inhabitant, and is a kind of citizen of the inferior order from the native citizens, but is, nevertheless, united and subject to the society, without participating in all its advantages. This right of domicile, he continues, is not established unless the person makes sufficiently known his intention of fixing there, either tacitly of by an express declaration. Vatt. Law Nat. pp. 92, 93. Grotius nowhere uses the word 'domicile,' but he also distinguishes between those who stay in a foreign country by the necessity of their affairs, or from any other temporary cause, and those who reside there from a permanent cause. The former he denominates 'strangers,' and the latter, 'subjects.' The rule is thus laid down by Sir Robert Phillimore:" "There is a class of persons which cannot be, strictly speaking, included in either of these denominations of naturalized or native citizens, namely, the class of those who have ceased to reside in their native country, and have taken up a permanent abode in another. These are domiciled inhabitants. They have not put on a new citizenship through some formal mode enjoined by the law or the new country. They are de facto, though not de jure, citizens of the country of their domicile." 1 Phillim. Int.Law, c. 18, p. 347. In the Koszta Case, it was said by Secretary Marcy: "This right to protect persons having a domicile, though not native-born or naturalized citizens, rests on the firm foundation of justice, and the claim to be protected is earned by considerations which the protecting power is not at liberty to disregard. Such domiciled citizen pays the same price for his protection as native-born or naturalized citizens pay for theirs. He is under the bonds of allegiance to the country of his residence, and, if he breaks them, incurs the same penalties. He owes the same obedience to the civil laws. His property is, in the same way and to the same extent as theirs, liable to contribute to the support of the Government. In nearly all respects, his and their condition as to the duties and burdens of Government are undistinguishable." 2 Whart. Int.Law Dig. § 198. Page 149 U. S. 736 And in Lau Ow Bew v. United States, 144 U. S. 47 , 144 U. S. 61 , this Court declared that, "by general international law, foreigners who have become domiciled in a country other than their own acquire rights, and must discharge duties, in many respects the same as possessed by and imposed upon the citizens of the country, and no restriction on the footing upon which such persons stand by reason of their domicile is to be presumed." Indeed, there is force in the contention of counsel for appellants that these persons are "denizens," within the true meaning and spirit of that word as used in the common law. The old definition was this: "A denizen of England by letters patent for life, entail or in fee, whereby he becomes a subject in regard of his person." Craw v. Ramsey, Vaughan 278. And again: "A denizen is an alien born, but who has obtained ex donatione regis letters patent to make him an English subject. . . . A denizen is in a kind of middle state between an alien and a natural-born subject, and partakes of both of them." 1 Bl. Comm. 374. In respect to this, after quoting from some of the early Constitutions of the States, in which the word "denizen" is found, counsel say: "It is claimed that the appellants in this case come completely within the definition quoted above. They are alien born, but they have obtained the same thing as letters patent from this country. They occupy a middle state between an alien and a native. They partake of both of them. They cannot vote, or, as it is stated in Bacon's Abridgment, they have no 'power of making laws,' as a native-born subject has, nor are they here as ordinary aliens. An ordinary alien within this country has come here under no prohibition and no invitation, but the appellants have come under the direct request and invitation, and under the 'patent,' of the federal Government. They have been guarantied 'the same privileges, immunities, and exemptions in respect to . . . residence' (Burlingame Treaty, concluded July 28, 1868) as that enjoyed in the United States by the citizens and Page 149 U. S. 737 subjects of the most favored nation. They have been told that if they would come here, they would be treated just the same as we treat an Englishman, an Irishman, or a Frenchman. They have been invited here, and their position is much stronger than that of an alien, in regard to whom there is no guaranty from the Government, and who has come not in response to any invitation, but has simply drifted here because there is no prohibition to keep him out. They certainly come within the meaning of 'denizen,' as used in the Constitutions of the States." But, whatever rights a resident alien might have in any other nation, here, he is within the express protection of the Constitution, especially in respect to those guaranties which are declared in the original amendments. It has been repeated so often as to become axiomatic that this Government is one of enumerated and delegated powers; and, as declared in Article 10 or the amendments, "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people." It is said that the power here asserted is inherent in sovereignty. This doctrine of powers inherent in sovereignty is one both indefinite and dangerous. Where are the limits to such powers to be found, and by whom are they to be pronounced? Is it within legislative capacity to declare the limits? If so, then the mere assertion of an inherent power creates it, and despotism exists. May the courts establish the boundaries? Whence do they obtain the authority for this? Shall they look to the practices of other nations to ascertain the limits? The Governments of other nations have elastic powers. Ours are fixed and bounded by a written Constitution. The expulsion of a race may be within the inherent powers of a despotism. History, before the adoption of this Constitution, was not destitute of examples of the exercise of such a power, and its framers were familiar with history, and wisely, and it seems to me, they gave to this Government no general power to banish. Banishment may be resorted to as punishment for crime, but Page 149 U. S. 738 among the powers reserved to the people, and not delegated to the Government, is that of determining whether whole classes in our midst shall, for no crime but that of their race and birthplace, be driven from our territory. Whatever may be true as to exclusion -- and, as to that, see Chinese Exclusion Case, 130 U. S. 581 , and Nishimura Ekiu v. United States, 142 U. § 651 -- I deny that there is any arbitrary and unrestrained power to banish residents, even resident aliens. What, it may be asked, is the reason for any difference? The answer is obvious. The Constitution has no extraterritorial effect, and those who have not come lawfully within our territory cannot claim any protection from its provisions; and it may be that the National Government, having full control of all matters relating to other nations, has the power to build, as it were, a Chinese wall around our borders, and absolutely forbid aliens to enter. But the Constitution has potency everywhere within the limits of our territory, and the powers which the National Government may exercise within such limits are those, and only those, given to it by that instrument. Now, the power to remove resident aliens is, confessedly, not expressed. Even if it be among the powers implied, yet still it can be exercised only in subordination to the limitations and restrictions imposed by the Constitution. In the case of Monongahela Navigation Company v. United States, 148 U. S. 312 , 148 U. S. 336 , it was said: "But, like the other powers granted to Congress by the Constitution, the power to regulate commerce is subject to all the limitations imposed by such instrument, and among them is that of the Fifth Amendment we have heretofore quoted. Congress has supreme control over the regulation of commerce; but if, in exercising that supreme control, it deems it necessary to take private property, then it must proceed subject to the limitations imposed by this Fifth Amendment, and can take only on payment of just compensation." And, if that be true of the powers expressly granted, it must as certainly be true of those that are only granted by implication. When the first ten amendments were presented for adoption, Page 149 U. S. 739 they were preceded by a preamble stating that the conventions of many States had, at the time of their adopting the Constitution, expressed a desire, "in order to prevent misconception or abuse of its powers, that further declaratory and restrictive clauses should be added." It is worthy of notice that, in them, the word "citizen" is not found. In some of them, the descriptive word is "people," but, in the Fifth, it is broader, and the word is "person," and in the Sixth it is the "accused," while in the Third, Seventh, and Eighth there is no limitation as to the beneficiaries suggested by any descriptive word. In the case of Yick Wo v. Hopkins, 118 U. S. 356 , 118 U. S. 369 , it was said: "The Fourteenth Amendment of the Constitution is not confined to the protection of citizens. It says:" "Nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." "These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws." The matter considered in that case was of a local nature, a municipal ordinance for regulating the carrying on of public laundries, something fairly within the police power of a State, and yet, because its previous conflicted with the guaranties of the Fourteenth Amendment, the ordinance was declared void. If the use of the word "person" in the Fourteenth Amendment protects all individuals lawfully within the State, the use of the same word, "person," in the Fifth must be equally comprehensive, and secures to all persons lawfully within the territory of the United States the protection named therein; and a like conclusion must follow as to the Sixth. I pass, therefore, to the consideration of my third proposition: Section 6 deprives of "life, liberty, and property without due process of law." It imposes punishment without a trial, and punishment cruel and severe. It places the liberty of one individual subject to the unrestrained control of Page 149 U. S. 740 another. Notice its provisions: it first commands all to register. He who does not register violates that law, and may be punished; and so the section goes on to say that one who has not complied with its requirements, and has no certificate of residence, "shall be deemed and adjudged to be unlawfully within the United States," and then it imposes as a penalty his deportation from the country. Deportation is punishment. It involves -- first, an arrest, a deprival of liberty, and, second, a removal from home, from family, from business, from property. In 1 Rapalje & Lawrence's Law Dictionary (vol. 1, page 109), "banishment" is thus defined: "A punishment by forced exile, either for years or for life, inflicted principally upon political offenders; 'transportation' being the word used to express a similar punishment of ordinary criminals." In 4 Bl. Com. 377, it is said: "Some punishments consist in exile or banishment, by abjuration of the realm, or transportation." In Vattel, we find that "banishment is only applied to condemnation in due course of law." Note to section 228, Book 1, c. 19, in 1 Vattel. But it needs no citation of authorities to support the proposition that deportation is punishment. Everyone knows that to be forcibly taken away from home and family and friends and business and property, and sent across the ocean to a distant land, is punishment, and that oftentimes most severe and cruel. Apt and just are the words of one of the framers of this Constitution -- President Madison -- when he says (4 Elliot Debates 555): "If the banishment of an alien from a country into which he has been invited as the asylum most auspicious to his happiness -- a country where he may have formed the most tender connections; where he may have invested his entire property, and acquired property of the real and permanent, as well as the movable and temporary, kind; where he enjoys, under the laws, a greater share of the blessings of personal security and personal liberty than he can elsewhere hope for; . . . if, moreover, in the execution of the sentence against him, he is to be exposed, not only to the ordinary dangers of the sea, but to the peculiar casualties incident to a crisis of war and of unusual licentiousness on Page 149 U. S. 741 that element, and possibly to vindictive purposes, which his immigration itself may have provoked -- if a banishment of this sort be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the name can be applied." But punishment implies a trial: "No person shall be deprived of life, liberty, or property without due process of law." Due process requires that a man be heard before he is condemned, and both heard and condemned in the due and orderly procedure of a trial, as recognized by the common law from time immemorial. It was said by this Court in Hagar v. Reclamation District, 111 U. S. 701 , 111 U. S. 708 : "Undoubtedly, where life and liberty are involved, due process requires that there be a regular course of judicial proceedings, which imply that the party to be affected shall have notice, and an opportunity to be heard." And by Mr. Justice Bradley, in defining "due process of law" in Davidson v. New Orleans, 96 U. S. 97 , 96 U. S. 107 : "If found to be suitable or admissible in the special case, it will be adjudged to be 'due process of law,' but if found to be arbitrary, oppressive, and unjust, it may be declared to be not 'due process of law.'" And no person who has once come within the protection of the Constitution can be punished without a trial. It may be summary, as for petty offenses and in cases of contempt, but still a trial, as known to the common law. It is said that a person may be extradited without a previous trial, but extradition is simply one step in the process of arresting and securing for trial. He may be removed by extradition from California to New York, or from this country to another, but such proceeding is not oppressive or unjust, but suitable and necessary, and therefore due process of law. But here, the Chinese are not arrested and extradited for trial, but arrested and, without a trial, punished by banishment. Again, it is absolutely within the discretion of the collector to give or refuse a certificate to one who applies therefor. Nowhere is it provided what evidence shall be furnished to the collector, and nowhere is it made mandatory upon him to grant a certificate on the production of such evidence. It cannot Page 149 U. S. 742 be due process of law to impose punishment on any person for failing to have that in his possession, the possession of which he can obtain only at the arbitrary and unregulated discretion of any official. It will not do to say that the presumption is that the official will act reasonably, and not arbitrarily. When the right to liberty and residence is involved, some other protection than the mere discretion of any official is required. Well was it said by Mr. Justice Matthews in the case of Yick Wo v. Hopkins, on page 118 U. S. 369 : "When we consider the nature and the theory of our institutions of Government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power." Again, a person found without such certificate may be taken before a United States judge. What judge? A judge in the district in which the party resides or is found? There is no limitation in this respect. A Chinese laborer in San Francisco may be arrested by a deputy United States marshal, and taken before a judge in Oregon; and, when so taken before that judge, it is made his duty to deport such laborer unless he proves his innocence of any violation of the law, and that, too, by at least one credible white witness. And how shall he obtain that witness? No provision is made in the statute therefor. Will it be said that Article 6 of the amendments gives to the accused a right to have a compulsory process for obtaining witnesses in his favor? The reply is that if he is entitled to one part of that Article, he is entitled to all, and among them is the right to a speedy and public trial by an impartial jury of the State and district. The only theory upon which this proceeding can be sustained is that he has no right to any benefits of this Article 6; and if he has no right thereto, and the statute has made no provision for securing his witnesses, or limiting the proceeding to a judge of the district where he resides, the results follow inevitably, as stated, that he may be arrested by any one of the numerous officials named in the statute, and carried before any judge in Page 149 U. S. 743 the United States that such official may select, and then, unless he proves that which he is given no means of proving, be punished by removal from home, friends, family, property, business, to another country. It is said that these Chinese are entitled, while they remain, to the safeguards of the Constitution and to the protection of the laws in regard to their rights of person and of property, but that they continue to be aliens, subject to the absolute power of Congress to forcibly remove them. In other words, the guaranties of "life, liberty, and property," named in the Constitution, are theirs by sufferance, and not of right. Of what avail are such guaranties? Once more: supposing a Chinaman from San Francisco, having obtained a certificate, should go to New York or other place in pursuit of work, and, on the way, his certificate be lost or destroyed. He is subject to arrest and detention, the cost of which is in the discretion of the court, and judgment of deportation will be suspended a reasonable time to enable him to obtain a duplicate from the officer granting it. In other words, he cannot move about in safety without carrying with him this certificate. The situation was well described by Senator Sherman in the debate in the senate: "They are here ticket-of-leave men. Precisely as, under the Australian law, a convict is allowed to go at large upon a ticket-of-leave, these people are to be allowed to go at large, and earn their livelihood, but they must have their tickets-of-leave in their possession." And he added: "This inaugurates in our system of Government a new departure -- one, I believe, never before practiced, although it was suggested in conference that some such rules had been adopted in slavery times to secure the peace of society." It is true this statute is directed only against the obnoxious Chinese, but, if the power exists, who shall say it will not be exercised tomorrow against other classes and other people? If the guaranties of these amendments can be thus ignored in order to get rid of this distasteful class, what security have others that a like disregard of its provisions may not be resorted to? Profound and wise were the Page 149 U. S. 744 observations of Mr. Justice Bradley, speaking for the court in Boyd v. United States, 116 U. S. 616 , 116 U. S. 635 : "Illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches, and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be, ' obsta principiis. '" In the Yick Wo Case, in which was presented a municipal ordinance fair on its face but contrived to work oppression to a few engaged in a single occupation, this Court saw no difficulty in finding a constitutional barrier to such injustice. But this greater wrong, by which a hundred thousand people are subject to arrest and forcible deportation from the country, is beyond the reach of the protecting power of the Constitution. Its grievous wrong suggests this declaration of wisdom coming from the dawn of English history: "Verily, he who dooms a worse doom to the friendless and the comer from afar than to his fellow injures himself." The Laws of King Cnut, 1 Thorpe's Ancient Laws and Institutes of England, p. 397. In view of this enactment of the highest legislative body of the foremost Christian nation, may not the thoughtful Chinese disciple of Confucius fairly ask, "Why do they send missionaries here?" MR. JUSTICE FIELD, dissenting. * I also wish to say a few words upon these cases, and upon the extraordinary doctrines announced in support of the orders of the court below. Page 149 U. S. 745 With the treaties between the United States and China, and the subsequent legislation adopted by Congress to prevent the immigration of Chinese laborers into this country, resulting in the exclusion act of October 1, 1888, the court is familiar. They have often been before us, and have been considered in almost every phase. The act of 1888 declared that, after its passage, it should be unlawful for any Chinese laborer -- who might then or thereafter be a resident of the United States, who should depart therefrom, and not return before the passage of the act -- to return or remain in the United States. The validity of this act was sustained by this Court. Chinese Exclusion Case, 130 U. S. 581 . In the opinion announcing the decision, we considered the treaties with China, and also the legislation of Congress, and the causes which led to its enactment. The court cited numerous instances in which statesmen and jurists of eminence had held that it was the undoubted right of every independent nation to exclude foreigners from its limits whenever, in its judgment, the public interests demanded such exclusion. "The power of exclusion of foreigners," said the Court, "being an incident of sovereignty belonging to the Government of the United States as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the Government, the interests of the country require it, cannot be granted away or restrained on behalf of any one. The powers of Government are delegated in trust to the United States, and are incapable of transfer to any other parties. They cannot be abandoned or surrendered. Nor can their exercise be hampered, when needed for the public good, by any considerations of private interest. The exercise of these public trusts is not the subject of barter or contract. Whatever license, therefore, Chinese laborers may have obtained previous to the act of October 1, 1888, to return to the United States after their departure, is held at the will of the Government, revocable at any time at its pleasure. Whether a proper consideration by our Government of its previous laws, or a proper respect for the nation whose subjects are affected by its action, ought to have qualified its inhibition, and made it applicable only to Page 149 U. S. 746 persons departing from the country after the passage of the act, are not questions for judicial determination. If there be any just ground of complaint on the part of China, it must be made to the political department of our Government, which is alone competent act upon the subject." I had the honor to be the organ of the Court in announcing this opinion and judgment. I still adhere to the views there expressed, in all particulars; but between legislation for the exclusion of Chinese persons -- that is, to prevent them from entering the country -- and legislation for the deportation of those who have acquired a residence in the country under a treaty with China, there is a wide and essential difference. The power of the Government to exclude foreigners from this country -- that is, to prevent them from entering it -- whenever the public interests, in its judgment, require such exclusion, has been repeatedly asserted by the Legislative and Executive Departments of our Government, and never denied; but its power to deport from the country persons lawfully domiciled therein by its consent, and engaged in the ordinary pursuits of life, has never been asserted by the Legislative or Executive Departments, except for crime, or as an act of war, in view of existing or anticipated hostilities, unless the Alien Act of 1798 can be considered as recognizing that doctrine. 1 Stat. p. 570, c. 58. That act vested in the President power to order all such aliens as he should adjudge dangerous to the peace and safety of the United States, or should have reasonable grounds to suspect were concerned in any treasonable or secret machinations against the Government, to depart out of the territory of the United States within such time as should be expressed in his order; and in case any alien, when thus ordered to depart, should be found at large within the United States after the term limited in the order, not having obtained a license from the President to reside therein, or, having obtained such license, should not have conformed thereto, he should, on conviction thereof, be imprisoned for a term not exceeding three years, and should never afterwards be admitted to become a citizen of the United States, with a proviso that if the alien thus ordered to depart should prove to the satisfaction Page 149 U. S. 747 of the President, by evidence to be taken before such person or persons as he should direct, that no injury or danger to the United States would arise from suffering him to reside therein, the President might grant a license to him to remain within the United States for such time as he should judge proper, and at such place as he should designate. The act also provided that the President might require such alien to enter into a bond to the United States, in such penal sum as he might direct, with one or more sureties, to the satisfaction of the person authorized by the President to take the same, conditioned for his good behavior during his residence in the United States, and not to violate his license, which the President might revoke whenever he should think proper. The act also provided that it should be lawful for the President, whenever he deemed it necessary for the public safety, to order to be removed out of the territory of the United States any alien in prison in pursuance of the act, and to cause to be arrested, and sent out of the United States, such aliens as may have been ordered to depart, and had not obtained a license, in all cases where, in the opinion of the President, the public safety required a speedy removal, and that if any alien thus removed or sent out of the United States should voluntarily return, unless by permission of the President, such alien, being convicted thereof, should be imprisoned so long as, in the opinion of the President, the public safety might require. The passage of this act produced great excitement throughout the country, and was severely denounced by many of its ablest statesmen and jurists as unconstitutional and barbarous, and among them may be mentioned the great names of Jefferson and Madison, who are throughout our country honored and revered for their lifelong devotion to principles of constitutional liberty. It was defended by its advocates as a war measure. John Adams, the President of the United States at the time, who approved the bill, and against whom the responsibility for its passage was charged, states in his correspondence that the bill was intended as a measure of that character. 9 John Adam's Works, 291. The State of Virginia denounced it in severe terms. Its general assembly Page 149 U. S. 748 passed resolutions upon the act, and another act of the same session of Congress, known as the "Sedition Act." Upon the first -- the alien act -- one of the resolutions declared that it exercised a power nowhere delegated to the federal Government, and which, by uniting legislative and judicial powers to those of executive, subverted the general principles of free Government, as well as the particular organization and positive provisions of the federal Constitution. 4 Elliot's Deb. 529. The resolutions upon both acts were transmitted to the legislatures of different States, and their communications in answer to them were referred to a committee of the General Assembly of Virginia, of which Mr. Madison was a member, and upon them his celebrated report was made. With reference to the Alien Act, after observing that it was incumbent in this, as in every other exercise of power by the Federal Government, to prove from the Constitution that it granted the particular power exercised, and also that much confusion and fallacy had been thrown into the question to be considered by blending the two cases of aliens, members of a hostile nation, and aliens, members of friendly nations, he said: "With respect to alien enemies, no doubt has been intimated as to the federal authority over them, the Constitution having expressly delegated to Congress the power to declare war against any nation, and, of course, to treat it and all its members as enemies. With respect to aliens who are not enemies, but members of nations in peace and amity with the United States, the power assumed by the act of Congress is denied to be constitutional, and it is accordingly against this act that the protest of the General Assembly is expressly and exclusively directed." 4 Elliot's Deb. 554. "Were it admitted, as is contended, that the 'act concerning aliens' has for its object, not a penal, but a preventive, justice, it would still remain to be proved that it comes within the constitutional power of the Federal Legislature, and, if within its power, that the Legislature has exercised it in a constitutional manner. . . . But it can never be admitted that the removal of aliens, authorized by the act, is to be considered not as punishment for an offense, but as a measure of Page 149 U. S. 749 precaution and prevention. If the banishment of an alien from a country into which he has been invited as the asylum most auspicious to his happiness -- a country where he may have formed the most tender connections; where he may have invested his entire property, and acquired property of the real and permanent as well as the movable and temporary kind; where he enjoys, under the laws, a greater share of the blessings of personal security and personal liberty than he can elsewhere hope for; . . . if a banishment of this sort be not a punishment, and among the severest of punishments, it would be difficult to imagine a doom to which the name can be applied. And, if it be a punishment, it will remain to be inquired whether it can be constitutionally inflicted, on mere suspicion, by the single will of the executive magistrate, on persons convicted of no personal offense against the laws of the land, nor involved in any offense against the law of nations, charged on the foreign state of which they are members." 4 Elliot's Deb. 555. It does not follow because aliens are not parties to the Constitution, as citizens are parties to it, that, whilst they actually conform to it, they have no right to its protection. Aliens are not more parties to the laws than they are parties to the Constitution, yet it will not be disputed that, as they owe, on one hand, a temporary obedience, they are entitled, in return, to their protection and advantage. If aliens had no rights under the Constitution, they might not only be banished, but even capitally punished, without a jury or the other incidents to a fair trial. But, so far has a contrary principle been carried in every part of the United States that, except on charges of treason, an alien has, besides all the common privileges, the special one of being tried by a jury, of which one-half may be also aliens. "It is said, further, that, by the law and practice of nations, aliens may be removed at discretion, for offenses against the law of nations; that Congress are authorized to define and punish such offenses; and that to be dangerous to the peace of society is, in aliens, one of those offenses." "The distinction between alien enemies and alien friends is Page 149 U. S. 750 a clear and conclusive answer to this argument. Alien enemies are under the law of nations, and liable to be punished for offenses against it. Alien friends, except in the single case of public ministers, are under the municipal law, and must be tried and punished according to the law only." 4 Elliot's Deb. 556. Massachusetts, evidently considering the Alien Act as a war measure, adopted in anticipation of probable hostilities, said, in answer to the resolutions of Virginia, among other things, that "the removal of aliens is the usual preliminary of hostility, and is justified by the invariable usages of nations. Actual hostility had, unhappily, been long experienced, and a formal declaration of it the Government had reason daily to expect." Id. 535. The duration of the act was limited to two years, and it has ever since been the subject of universal condemnation. In no other instance, until the law before us was passed, has any public man had the boldness to advocate the deportation of friendly aliens in time of peace. I repeat the statement that in no other instance has the deportation of friendly aliens been advocated as a lawful measure by any department of our Government. And it will surprise most people to learn that any such dangerous and despotic power lies in our Government -- a power which will authorize it to expel at pleasure, in time of peace, the whole body of friendly foreigners of any country domiciled herein by its permission; a power which can be brought into exercise whenever it may suit the pleasure of Congress, and be enforced without regard to the guaranties of the Constitution intended for the protection of the rights of all persons in their liberty and property. Is it possible that Congress can, at its pleasure, in disregard of the guaranties of the Constitution, expel at any time the Irish, German, French, and English who may have taken up their residence here on the invitation of the Government, while we are at peace with the countries from which they came, simply on the ground that they have not been naturalized? Notwithstanding the activity of the public authorities in enforcing the exclusion act of 1888, it was constantly evaded. Page 149 U. S. 751 Chinese laborers came into the country by water and by land; they came through the open ports, and by rivers reaching the seas, and they came by the way of the Canadas and Mexico. New means of ingress were discovered, and, in spite of the vigilance of the police and customs officers, great numbers clandestinely found their way into the country. Their resemblance to each other rendered it difficult, and often impossible, to prevent this evasion of the laws. It was under these circumstances that the act of May 5, 1892, was passed. It had two objects in view . There were two classes of Chinese persons in the country -- those who had evaded the laws excluding them and entered clandestinely and those who had entered lawfully, and resided therein under the treaty with China. The act of 1892 extended, for the period of 10 years from its passage, all laws then in force prohibiting and regulating the coming into the country of Chinese persons or persons of Chinese descent, and it provided that any person, when convicted or adjudged under any of those laws of not legally being or remaining in the United States, should be removed therefrom to China, or to such other country as it might appear he was a subject of, unless such other country should demand a tax as a condition of his removal thereto, in which case he should be removed to China. The act also provided that a Chinese person arrested under its provisions, or the provisions of the acts extended, should be adjudged to be unlawfully within the United States unless he should establish by affirmative proof his lawful right to remain within the United States, and that any Chinese person, or persons of Chinese descent, "convicted and adjudged not lawfully entitled to be or remain in the United States, should be imprisoned at hard labor for a period not exceeding one year, and thereafter removed from the United States." With this class of Chinese, and with the provisions of law applicable to them, we have no concern in the present case. We have only to consider the provisions of the act applicable to the second class of Chinese persons -- those who had a lawful right to remain in the United States. By the additional articles to the Page 149 U. S. 752 treaty of 1858, adopted in 1868, generally called the "Burlingame Treaty," the Governments of the two countries recognized "the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of free migration and emigration of their citizens and subjects, respectively, from the one country to the other for purposes of curiosity, of trade, or as permanent residents," and accordingly the treaty, in the additional articles, provided that citizens of the United States visiting or residing in China, and Chinese subjects visiting or residing in the United States, should reciprocally enjoy the same privileges, immunities, and exemptions in respect to travel or residence as should be enjoyed by citizens or subjects of the most favored nation, in the country in which they should, respectively, be visiting or residing. 16 Stat. 739, 740. The supplemental treaty of November 17, 1880, providing for the limitation or suspension of the emigration of Chinese laborers, declared that "the limitation or suspension shall be reasonable, and apply only to Chinese who may go to the United States as laborers -- other classes not being included in the limitation," and that "Chinese subjects, whether residing in the United States as teachers, students, merchants, or from curiosity, together with their body and household servants, and Chinese laborers who were then in the United States, shall be allowed to go and come of their own free will and accord, and shall be accorded all rights, privileges, immunities, and exemptions which are accorded to the citizens and subjects of the most favored nation." There are many thousands of Chinese laborers who came to the country and resided in it under the additional articles of the treaty adopted in 1868, and were in the country at the time of the adoption of the supplemental treaty of November, 1880. To these laborers, thus lawfully within the limits of the United States, section 6 of the act of May 5, 1892, relates. That section, so far as applicable to the present cases, is as follows: "SEC. 6. And it shall be the duty of all Chinese laborers within the limits of the United States at the time of the passage of this act, and who are entitled to remain in the Page 149 U. S. 753 United States, to apply to the collector of internal revenue of their respective districts, within one year after the passage of this act, for a certificate of residence, and any Chinese laborer within the United States, who shall neglect, fail, or refuse to comply with the provisions of this act, or who, after one year from the passage hereof, shall be found within the jurisdiction of the United States without such certificate of residence, shall be deemed and adjudged to be unlawfully within the United States, and may be arrested by any United States customs official, collector of internal revenue or his deputies, United States Marshal or his deputies, and taken before a United States judge, whose duty it shall be to order that he be deported from the United States, as hereinbefore provided, unless he shall establish clearly, to the satisfaction of the said judge, that by reason of accident, sickness, or other unavoidable cause, he has been unable to procure his certificate, and to the satisfaction of the court, and by at least one credible white witness, that he was a resident of the United States at the time of the passage of this act; and if, upon the hearing, it shall appear that he is so entitled to a certificate, it shall be granted, upon his paying the cost. Should it appear that said Chinaman had procured a certificate which had been lost or destroyed, he shall be detained, and judgment suspended, a reasonable time, to enable him to procure a duplicate from the officer granting it, and in such cases the cost of said arrest and trial shall be in the discretion of the court." The purpose of this section was to secure the means of readily identifying the Chinese laborers present in the country, and entitled to remain, from those who may have clandestinely entered the country in violation of its laws. Those entitled to remain, by having a certificate of their identification, would enable the officers of the Government to readily discover, and bring to punishment, those not entitled to enter, but who are excluded. To procure such a certificate was not a hardship to the laborers, but a means to secure full protection to them, and at the same time prevent an evasion of the law. This object being constitutional, the only question for our Page 149 U. S. 754 consideration is the lawfulness of the procedure provided for its accomplishment, and this must be tested by the provisions of the Constitution and laws intended for the protection of all persons against encroachment upon their rights. Aliens from countries at peace with us, domiciled within our country by its consent, are entitled to all the guaranties for the protection of their persons and property which are secured to native-born citizens. The moment any human being from a country at peace with us comes within the jurisdiction of the United States, with their consent -- and such consent will always be implied when not expressly withheld, and, in the case of the Chinese laborers before us, was, in terms, given by the treaty referred to -- he becomes subject to all their laws, is amenable to their punishment, and entitled to their protection. Arbitrary and despotic power can no more be exercised over them, with reference to their persons and property, than over the persons and property of native-born citizens. They differ only from citizens in that they cannot vote or hold any public office. As men having our common humanity, they are protected by all the guaranties of the Constitution. To hold that they are subject to any different law, or are less protected in any particular, than other person is, in my judgment, to ignore the teachings of our history, the practice of our Government, and the language of our Constitution. Let us test this doctrine by an illustration: if a foreigner who resides in the country by its consent commits a public offense, is he subject to be cut down, maltreated, imprisoned, or put to death by violence, without accusation made, trial had, and judgment of an established tribunal, following the regular forms of judicial procedure? If any rule in the administration of justice is to be omitted or discarded in his case, what rule is it to be? If one rule may lawfully be laid aside in his case, another rule may also be laid aside, and all rules may be discarded. In such instances, a rule of evidence may be set aside in one case, a rule of pleading in another; the testimony of eye-witnesses may be rejected, and hearsay adopted; or no evidence at all may be received, but simply an inspection of the accused, as is often Page 149 U. S. 755 the case in tribunals of Asiatic countries, where personal caprice and not settled rules prevail. That would be to establish a pure, simple, undisguised despotism and tyranny with respect to foreigners resident in the country by its consent, and such an exercise of power is not permissible under our Constitution. Arbitrary and tyrannical power has no place in our system. As said by this Court, speaking by Mr. Justice Matthews, in Yick Wo v. Hopkins, 118 U. S. 366 , 118 U. S. 369 : "When we consider the nature and the theory of our institutions of Government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude they do not mean to leave room for the play and action of purely personal and arbitrary power. . . . The fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to man the blessings of civilization under the reign of just and equal laws." What once I had occasion to say of the protection afforded by our Government, I repeat: "It is certainly something in which a citizen of the United States may feel a generous pride that the Government of his country extends protection to all persons within its jurisdiction, and that every blow aimed at any of them, however humble, come from what quarter it may, 'is caught upon the broad shield of our blessed Constitution and our equal laws.'" Ah Kow v. Nunan, 5 Sawy. 552-563. I utterly dissent from, and reject, the doctrine expressed in the opinion of the majority that "Congress, under the power to exclude or expel aliens, might have directed any Chinese laborer found in the United States without a certificate of residence to be removed out of the country by executive officers, without judicial trial or examination, just as it might have authorized such officers absolutely to prevent his entrance into the country." An arrest in that way, for that purpose, would not be a reasonable seizure of the person, within the meaning of the Fourth Article of the amendments of the Constitution. It would be brutal and oppressive. The Page 149 U. S. 756 existence of the power thus stated is only consistent with the admission that the Government is one of unlimited and despotic power, so far as aliens domiciled in the country are concerned. According to this theory, Congress might have ordered executive officers to take the Chinese laborers to the ocean, and put them into a boat, and set them adrift, or to take them to the borders of Mexico, and turn them loose there, and in both cases without any means of support. Indeed, it might have sanctioned towards these laborers the most shocking brutality conceivable. I utterly repudiate all such notions, and reply that brutality, inhumanity, and cruelty cannot be made elements in any procedure for the enforcement of the laws of the United States. The majority of the Court have, in their opinion, made numerous citations from the courts and the utterances of individuals upon the power of the Government of an independent nation to exclude foreigners from entering its limits, but none, beyond a few loose observations, as to its power to expel and deport from the country those who are domiciled therein by its consent. The citation from the opinion in the recent case of Nishimura Ekiu v. United States, (the Japanese Case ), 142 U. S. 651 ; the citation from the opinion in Chae Chan Ping v. United States (the Chinese Exclusion Case ), 130 U. S. 603 , 130 U. S. 604 , 130 U. S. 606 ; the citation in the case before the Judiciary Committee of the Privy Council -- all have reference to the exclusion of foreigners from entering the country. They do not touch upon the question of deporting them from the country after they have been domiciled within it by the consent of its Government, which is the real question in the case. The citation from Vattel is only as to the power of exclusion; that is, from coming into the country. The citation from Phillimore is to the same effect. As there stated, the Government allowing the introduction of aliens may prescribe the conditions on which they shall be allowed to remain, the conditions being imposed whenever they enter the country. There is no dispute about the power of Congress to prevent the landing of aliens in the country. The question is as to the power of Congress to deport them, without Page 149 U. S. 757 regard to the guaranties of the Constitution. The statement that, in England, the power to expel aliens has always been recognized, and often exercised, and the only question that has ever been as to this power is whether it could be exercised by the King without the consent of Parliament, is, I think, not strictly accurate. The citations given by Mr. Choate in his brief show conclusively, it seems to me, that deportation from the realm has not been exercised in England since Magna Charta except in punishment for crime or as a measure in view of existing or anticipated hostilities. But even if that power were exercised by every Government of Europe, it would have no bearing in these cases. It may be admitted that the power has been exercised by the various Governments of Europe. Spain expelled the Moors; England, in the reign of Edward I., banished 15,000 Jews;** and Louis XIV., in 1685, by revoking the edict of Nantes, which gave religious liberty to Protestants in France, drove out the Huguenots. Nor does such severity of European Governments belong only to the distant post. Within three years, Russia has banished many thousands of Jews, and apparently intends the expulsion of the whole race -- an act of barbarity which has aroused the indignation of all Christendom. Such was the feeling in this country that, friendly as our relations with Russia had always been, President Harrison felt compelled to call the attention of Congress to it in his message in 1891 as a fit subject for national remonstrance. Indeed, all the instances mentioned have been condemned for their barbarity and cruelty, and no power to perpetrate such barbarity is to be implied from the nature of our Government, and certainly is not found in any delegated powers under the Constitution. The Government of the United States is one of limited and delegated powers. It takes nothing from the usages or the former action of European Governments, nor does it take any power by any supposed inherent sovereignty. There is a great deal of confusion in the use of the word "sovereignty" Page 149 U. S. 758 by law writers. Sovereignty or supreme power is in this country vested in the people, and only in the people. By them certain sovereign powers have been delegated to the Government of the United States, and other sovereign powers reserved to the States or to themselves. This is not a matter of inference and argument, but is the express declaration of the Tenth Amendment to the Constitution, passed to avoid any misinterpretation of the powers of the General Government. That Amendment declares that "that powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people." When, therefore, power is exercised by Congress, authority for it must be found in express terms in the Constitution, or in the means necessary or proper for the execution of the power expressed. If it cannot be thus found, it does not exist. It will be seen by its provisions that the sixth section recognizes the right of certain Chinese laborers to remain in the United States, but, to render null that right, it declares that if, within one year after the passage of the act, any Chinese laborer shall have neglected, failed, or refused to comply with the provisions of the act to obtain a certificate of residence, or shall be found within the jurisdiction of the United States without a certificate of residence, he shall be deemed and adjudged to be unlawfully within the United States, and may be arrested by any United States customs official, collector of internal revenue or his deputies, United States marshal or his deputies, and taken before a United States judge, whose duty it shall be to order that he be deported from the United States, unless he shall establish clearly, to the satisfaction of the judge, that by reason of accident, sickness, or other unavoidable cause, he has been unable to secure his certificate, and to the satisfaction of the judge, by at least one credible white witness, that he was a resident of the United States at the time of the passage of the act. His deportation is thus imposed for neglect to obtain a certificate of residence, from which he can only escape by showing his inability to secure it from one of the causes named. That is the punishment Page 149 U. S. 759 for his neglect, and that, being of an infamous character, can only be imposed after indictment, trial, and conviction. If applied to a citizen, none of the Justices of this Court would hesitate a moment to pronounce it illegal. Had the punishment been a fine, or anything else than of an infamous character, it might have been imposed without indictment; but not so now, unless we hold that a foreigner from a country at peace with us, though domiciled by the consent of our Government, is withdrawn from all the guaranties of due process of law prescribed by the Constitution, when charged with an offense to which the grave punishment designated is affixed. The punishment is beyond all reason in its severity. It is out of all proportion to the alleged offense. It is cruel and unusual. As to its cruelty, nothing can exceed a forcible deportation from a country of one's residence, and the breaking up of all the relations of friendship, family, and business there contracted. The laborer may be seized at a distance from his home, his family, and his business, and taken before the judge for his condemnation, without permission to visit his home, see his family, or complete any unfinished business. Mr. Madison well pictures its character in his powerful denunciation of the alien law of 1798, in his celebrated report upon the resolutions, from which we have cited, and concludes, as we have seen, that if a banishment of the sort described be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the name can be applied. Again, when taken before a United States judge, he is required, in order to avoid the doom declared, to establish clearly, to the satisfaction of the judge, that, by reason of accident, sickness, or other unavoidable cause, he was unable to secure his certificate, and that he was a resident of the United States at the time, by at least one credible white witness. Here the Government undertakes to exact of the party arrested the testimony of a witness of a particular color, though conclusive and incontestable testimony from others may be adduced. The law might as well have said that, unless the laborer Page 149 U. S. 760 should also present a particular person as a witness, who could not be produced, from sickness, absence, or other cause, such as the archbishop of the State, to establish the fact of residence, he should be held to be unlawfully within the United States. There are numerous other objections to the provisions of the act under consideration. Every step in the procedure provided, as truly said by counsel, tramples upon some constitutional right. Grossly it violates the Fourth Amendment, which declares that "The right of the people to be secure in their persons . . . against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the . . . persons . . . to be seized." The act provides for the seizure of the person without oath or affirmation or warrant, and without showing any probable cause by the officials mentioned. The arrest, as observed by counsel, involves a search of his person for the certificate which he is required to have always with him. Who will have the hardihood and effrontery to say that this is not an "unreasonable search and seizure of the person?" Until now, it has never been asserted by any court or judge of high authority that foreigners domiciled in this country by the consent of our Government could be deprived of the securities of this Amendment; that their persons could be subjected to unreasonable searches and seizures, and that they could be arrested without warrant upon probable cause, supported by oath or affirmation. I will not pursue the subject further. The decision of the Court, and the sanction it would give to legislation depriving resident aliens of the guaranties of the Constitution, fill me with apprehensions. Those guaranties are of priceless value to every one resident in the country, whether citizen or alien. I cannot but regard the decision as a blow against constitutional liberty when it declares that Congress has the right to disregard the guaranties of the Constitution intended for the protection of all men domiciled in the country with the consent of the Government, in their rights of person and property. Page 149 U. S. 761 How far will its legislation go? The unnaturalized resident feels it today, but if Congress can disregard the guaranties with respect to any one domiciled in the country with its consent, it may disregard the guaranties with respect to naturalized citizens. What assurance have we that it may not declare that naturalized citizens of a particular country cannot remain in the United States after a certain day unless they have in their possession a certificate that they are of good moral character, and attached to the principles of our Constitution, which certificate they must obtain from a collector of internal revenue upon the testimony of at least one competent witness of a class or nationality to be designated by the Government? What answer could the naturalized citizen in that case make to his arrest for deportation which cannot be urged in behalf of the Chinese laborers of today? I am of the opinion that the orders of the court below should be reversed, and the petitioners should be discharged. * MR. JUSTICE FIELD's dissenting opinion bears the titles of the three cases, Nos. 1345, 1346, and 1347, and is further generally entitled "Chinese Deportation Cases." ** The Jews during his reign were cruelly despoiled, and in 1290 ordered, under penalty of death, to quit England forever before a certain day. 6 Amer. & Eng. Enc. Law, p. 434. MR. CHIEF JUSTICE FULLER, dissenting. I also dissent from the opinion and judgment of the Court in these cases. If the protection of the Constitution extends to Chinese laborers who are lawfully within, and entitled to remain in, the United States, under previous treaties and laws, then the question whether this act of Congress, so far as it relates to them, is in conflict with that instrument is a judicial question, and its determination belongs to the Judicial Department. However reluctant courts may be to pass upon the constitutionality of legislative acts, it is of the very essence of judicial duty to do so when the discharge of that duty is properly invoked. I entertain no doubt that the provisions of the Fifth and Fourteenth Amendments, which forbid that any person shall be deprived of life, liberty, or property without due process of law, are, in the language of Mr. Justice Matthews, already quoted by my Brother Brewer, "universal in their application to all persons within the territorial jurisdiction, without Page 149 U. S. 762 regard to any differences of race, of color, or of nationality;" and although, in Yick Wo's Case, 118 U. S. 356 , only the validity of a municipal ordinance was involved, the rule laid down as much applies to Congress under the Fifth Amendment as to the States under the Fourteenth. The right to remain in the United States, in the enjoyment of all the rights, privileges, immunities, and exemptions accorded to the citizens and subjects of the most favored nation, is a valuable right, and certainly a right which cannot be taken away without taking away the liberty of its possessor. This cannot be done by mere legislation. The argument is that friendly aliens, who have lawfully acquired a domicile in this country, are entitled to avail themselves of the safeguards of the Constitution only while permitted to remain, and that the power to expel them, and the manner of its exercise, are unaffected by that instrument. It is difficult to see how this can be so in view of the operation of the power upon the existing rights of individuals; and to say that the residence of the alien, when invited and secured by treaties and laws, is held in subordination to the exertion against him, as an alien, of the absolute and unqualified power asserted, is to import a condition not recognized by the fundamental law. Conceding that the exercise of the power to exclude is committed to the political department, and that the denial of entrance is not necessarily the subject of judicial cognizance, the exercise of the power to expel, the manner in which the right to remain may be terminated, rests on different ground, since limitations exist or are imposed upon the deprivation of that which has been lawfully acquired. And while the General Government is invested, in respect of foreign countries and their subjects or citizens, with the powers necessary to the maintenance of its absolute independence and security throughout its entire territory, it cannot, in virtue of any delegated power, or power implied therefrom, of of a supposed inherent sovereignty, arbitrarily deal with persons lawfully within the peace of its dominion. But the act before us is not an act to abrogate or repeal treaties or laws in respect of Chinese laborers entitled to remain in the United States, or Page 149 U. S. 763 to expel them from the country, and no such intent can be imputed to Congress. As to them, registration for the purpose of identification is required, and the deportation denounced for failure to do so is by way of punishment to coerce compliance with that requisition. No euphuism can disguise the character of the act in this regard. It directs the performance of a judicial function in a particular way, and inflicts punishment without a judicial trial. It is, in effect, a legislative sentence of banishment, and, as such, absolutely void. Moreover, it contains within it the germs of the assertion of an unlimited and arbitrary power, in general, incompatible with the immutable principles of justice, inconsistent with the nature of our Government, and in conflict with the written Constitution by which that Government was created and those principles secured.

In *Fong Yue Ting v. United States*, the Supreme Court upheld the power of the US government to expel or exclude aliens, stating it as an "inherent and inalienable right of every sovereign nation." The Court affirmed that this power rests with the political and executive branches, with potential involvement from the judiciary to ascertain facts. Congress has the authority to establish systems for alien registration and identification and can enact laws to carry out these systems, even if they contradict earlier treaty stipulations. The Court examined Section 6 of the Act of May 5, 1892, which required Chinese laborers in the US to obtain residence certificates and provided for deportation if they failed to do so. It was argued that this violated the Constitution's safeguards, but the Court disagreed, stating that the power to expel aliens does not arbitrarily override their lawfully acquired rights. However, the Court clarified that Congress cannot arbitrarily deal with persons lawfully within US territory and that the Act was not intended to expel Chinese laborers entitled to remain. The Court characterized the Act as a means to coerce compliance with registration requirements, deeming it a "legislative sentence of banishment" and thus void. In summary, the case affirmed the government's power over alien exclusion and expulsion but maintained that such power must be exercised within constitutional limits, respecting the rights of individuals lawfully present in the country.

Immigration & National Security

U.S. v. Wong Kim Ark

https://supreme.justia.com/cases/federal/us/169/649/

U.S. Supreme Court United States v. Wong Kim Ark, 169 U.S. 649 (1898) United States v. Wong Kim Ark No. 18 Argued March 5, 8, 1897 Decided March 28, 1898 169 U.S. 649 APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA Syllabus A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution, "All person born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." This was a writ of habeas corpus issued October 2, 1895, by the District Court of the United States for the Northern District of California to the collector of customs at the port of San Francisco, in behalf of Wong Kim Ark, who alleged that he was a citizen of the United States, of more than twenty-one years of age, and was born at San Francisco in 1873 of parents of Chinese descent and subjects of the Emperor of China, but domiciled residents at San Francisco, and that, on his return to the United States on the steamship Coptic in August, 1895, from a temporary visit to China, he applied to said collector of customs for permission to land, and was by the collector refused such permission, and was restrained of his liberty by the collector, and by the general manager of the steamship company acting under his direction, in violation of the Constitution and laws of the United States, not by virtue of any judicial order or proceeding, but solely upon the pretence that he was not a citizen of the United States. At the hearing, the District Attorney of the United States was permitted to intervene in behalf of the United States in opposition to the writ, and stated the grounds of his intervention in writing as follows: "That, as he is informed and believes, the said person in Page 169 U. S. 650 whose behalf said application was made is not entitled to land in the United States, or to be or remain therein, as is alleged in said application, or otherwise." "Because the said Wong Kim Ark, although born in the city and county of San Francisco, State of California, United States of America, is not, under the laws of the State of California and of the United States, a citizen thereof, the mother and father of the said Wong Kim Ark being Chinese persons and subjects of the Emperor of China, and the said Wong Kim Ark being also a Chinese person and a subject of the Emperor of China." "Because the said Wong Kim Ark has been at all times, by reason of his race, language, color and dress, a Chinese person, and now is, and for some time last past has been, a laborer by occupation." "That the said Wong Kim Ark is not entitled to land in the United States, or to be or remain therein, because he does not belong to any of the privileged classes enumerated in any of the acts of Congress, known as the Chinese Exclusion Acts, * which would exempt him from the class or classes which are especially excluded from the United States by the provisions of the said acts." "Wherefore the said United States Attorney asks that a judgment and order of this honorable court be made and entered in accordance with the allegations herein contained, and that the said Wong Kim Ark be detained on board of said vessel until released as provided by law, or otherwise to be returned to the country from whence he came, and that such further order be made as to the court may seem proper and legal in the premises." The case was submitted to the decision of the court upon the following facts agreed by the parties: "That the said Wong Kim Ark was born in the year 1873, at No. 751 Sacramento Street, in the city and county of San Francisco, State of California, United States of America, and Page 169 U. S. 651 that his mother and father were persons of Chinese descent and subjects of the Emperor of China, and that said Wong Kim Ark was and is a laborer." "That, at the time of his said birth, his mother and father were domiciled residents of the United States, and had established and enjoyed a permanent domicil and residence therein at said city and county of San Francisco, State aforesaid." "That said mother and father of said Wong Kim Ark continued to reside and remain in the United States until the year 1890, when they departed for China." "That during all the time of their said residence in the United States as domiciled residents therein, the said mother and father of said Wong Kim Ark were engaged in the prosecution of business, and were never engaged in any diplomatic or official capacity under the Emperor of China." "That ever since the birth of said Wong Kim Ark, at the time and place hereinbefore stated and stipulated, he has had but one residence, to-wit, a residence in said State of California, in the United States of America, and that he has never changed or lost said residence or gained or acquired another residence, and there resided claiming to be a citizen of the United States." "That, in the year 1890 the said Wong Kim Ark departed for China upon a temporary visit and with the intention of returning to the United States, and did return thereto on July 26, 1890, on the steamship Gaelic, and was permitted to enter the United States by the collector of customs upon the sole ground that he was a native-born citizen of the United States." "That after his said return, the said Wong Kim Ark remained in the United States, claiming to be a citizen thereof, until the year 1894, when he again departed for China upon a temporary visit, and with the intention of returning to the United States, and did return thereto in the month of August, 1895, and applied to the collector of customs to be permitted to land, and that such application was denied upon the sole ground that said Wong in Ark was not a citizen of the United States. " Page 169 U. S. 652 "That said Wong Kim Ark has not, either by himself or his parents acting for him, ever renounced his allegiance to the United States, and that he has never done or committed any act or thing to exclude him therefrom." The court ordered Wong Kim Ark to be discharged, upon the ground that he was a citizen of the United States. 1 Fed.Rep. 382. The United States appealed to this court, and the appellee was admitted to bail pending the appeal. MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court. The facts of this case, as agreed by the parties, are as follows: Wong Kim Ark was born in 1873 in the city of San Francisco, in the State of California and United States of America, and was and is a laborer. His father and mother were persons of Chinese descent, and subjects of the Emperor of China; they were at the time of his birth domiciled residents of the United States, having previously established and still enjoying a permanent domicil and residence therein at San Francisco; they continued to reside and remain in the United States until 1890, when they departed for China, and during all the time of their residence in the United States, they were engaged in business, and were never employed in any diplomatic or official capacity under the Emperor of China. Wong Kim Ark, ever since his birth, has had but one residence, to-wit, in California, within the United States, and has there resided, claiming to be a citizen of the United States, and has never lost or changed that residence, or gained or acquired another residence, and neither he nor his parents acting for him ever renounced his allegiance to the United States, or did or committed any act or thing to exclude him Page 169 U. S. 653 therefrom. In 1890 (when he must have been about seventeen years of age), he departed for China on a temporary visit and with the intention of returning to the United States, and did return thereto by sea in the same year, and was permitted by the collector of customs to enter the United States upon the sole ground that he was a native-born citizen of the United States. After such return, he remained in the United States, claiming to be a citizen thereof, until 1894, when he (being about twenty-one years of age, but whether a little above or a little under that age does not appear) again departed for China on a temporary visit and with the intention of returning to the United States, and he did return thereto by sea in August, 1895, and applied to the collector of customs for permission to land, and was denied such permission upon the sole ground that he was not a citizen of the United States. It is conceded that, if he is a citizen of the United States, the acts of Congress, known as the Chinese Exclusion Acts, prohibiting persons of the Chinese race, and especially Chinese laborers, from coming into the United States, do not and cannot apply to him. The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." I. In construing any act of legislation, whether a statute enacted by the legislature or a constitution established by the people as the supreme law of the land, regard is to be had not only to all parts of the act itself, and of any former act of the same lawmaking power of which the act in question is an amendment, but also to the condition and to the history Page 169 U. S. 654 of the law as previously existing, and in the light of which the new act must be read and interpreted. The Constitution of the United States, as originally adopted, uses the words "citizen of the United States," and "natural-born citizen of the United States." By the original Constitution, every representative in Congress is required to have been "seven years a citizen of the United States," and every Senator to have been "nine years a citizen of the United States." and "no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President." The Fourteenth Article of Amendment, besides declaring that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside," also declares that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." And the Fifteenth Article of Amendment declares that "the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color or previous condition of servitude." The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett , 21 Wall. 162; Ex parte Wilson, 114 U. S. 417 , 114 U. S. 422 ; Boyd v. United States, 116 U. S. 616 , 116 U. S. 624 , 116 U. S. 625 ; Smith v. Alabama, 124 U. S. 465 . The language of the Constitution, as has been well said, could not be understood without reference to the common law. Kent Com. 336; Bradley, J., in Moore v. United States, 91 U. S. 270 , 91 U. S. 274 . Page 169 U. S. 655 In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: "The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that." And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 88 U. S. 167 . In Smith v. Alabama, Mr. Justice Matthews, delivering the judgment of the court, said: "There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history." 124 U.S. 124 U. S. 478 . II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith," or "power" of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual -- as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem -- and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King. This fundamental principle, with these qualifications or Page 169 U. S. 656 explanations of it, was clearly, though quaintly, stated in the leading case, known as Calvin's Case, or the Case of the Postnati, decided in 1608, after a hearing in the Exchequer Chamber before the Lord Chancellor and all the Judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin's Case, 7 Rep. 1, 4 b -6 a, 18 a, 18 b; Ellesmere on Postnati, 62-64; S.C., 2 Howell's State Trials, 559, 607, 613-617, 639, 640, 659, 679. The English authorities ever since are to the like effect. Co.Lit. 8 a, 128 b, Lord Hale, in Hargrave's Law Tracts, 210, an in 1 Hale P.C. 61, 62; 1 Bl.Com. 366, 369, 370, 374; 4 Bl.Com. 74, 92; Lord Kenyon, in Doe v. Jones, 4 T.R. 300, 308; Cockburn on Nationality, 7; Dicey Conflict of Laws, p. 173-177, 741. In Udny v. Udny, (1869) L.R. 1 H.L. Sc. 441, the point decided was one of inheritance, depending upon the question whether the domicil of the father was in England or in Scotland, he being in either alternative a British subject. Lord Chancellor Hatherley said: "The question of naturalization and of allegiance is distinct from that of domicil." P. 452. Lord Westbury, in the passage relied on by the counsel for the United States, began by saying: "The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions: one, by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status." And then, while maintaining that the civil status is universally governed by the single principle of domicil, domicilium, the criterion established by international law for the purpose of determining civil status, and the basis on which "the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy or intestacy, Page 169 U. S. 657 must depend," he yet distinctly recognized that a man's political status, his country, patria, and his "nationality, that is, natural allegiance," "may depend on different laws in different countries." Pp. 457, 460. He evidently used the word "citizen" not as equivalent to "subject," but rather to "inhabitant," and had no thought of impeaching the established rule that all persons born under British dominion are natural-born subjects. Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said: "By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality." Cockburn on Nationality, 7. Mr. Dicey, in his careful and thoughtful Digest of the Law of England with reference to the Conflict of Laws, published in 1896, states the following propositions, his principal rules being printed below in italics: "' British subject' means any person who owes permanent allegiance to the Crown. 'Permanent' allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who, because he is within the British dominions, owes 'temporary' allegiance to the Crown. ' Natural-born British subject' means a British subject who has become a British subject at the moment of his birth.' 'Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality." The exceptions afterwards mentioned by Mr. Dicey are only these two: "1. Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such Page 169 U. S. 658 person's birth is in hostile occupation, is an alien." "2. Any person whose father (being an alien) is at the time of such person's birth an ambassador or other diplomatic agent accredited to the Crown by the Sovereign of a foreign State is (though born within the British dominions) an alien." And he adds: "The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person's birth, it in theory, at least, depended not upon the locality of a man's birth, but upon his being born within the jurisdiction and allegiance of the King of England, and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of, the Crown." Dicey Conflict of Laws, pp. 173-177, 741. It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born. III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established. In the early case of The Charming Betsy, (1804) it appears to have been assumed by this court that all persons born in the United States were citizens of the United States, Chief Justice Marshall saying: "Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself absolutely of Page 169 U. S. 659 that character otherwise than in such manner as may be prescribed by law is a question which it is not necessary at present to decide." 6 U. S. 2 Cranch 64, 6 U. S. 119 . In Inglis v. Sailors' Snug Harbor (1833), 3 Pet. 99, in which the plaintiff was born in the city of New York about the time of the Declaration of Independence, the justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English Colonies in America. Mr. Justice Thompson, speaking for the majority of the court, said: "It is universally admitted, both in the English courts and in those of our own country, that all persons born within the Colonies of North America, whilst subject to the Crown of Great Britain, are natural-born British subjects." 3 Pet. 28 U. S. 120 . Mr. Justice Johnson said: "He was entitled to inherit as a citizen born of the State of New York." 3 Pet. 28 U. S. 136 . Mr. Justice Story stated the reasons upon this point more at large, referring to Calvin's Case, Blackstone's Commentaries, and Doe v. Jones, above cited, and saying: "Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be Page 169 U. S. 660 subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince." 3 Pet. 28 U. S. 155 . "The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens." 3 Pet. 28 U. S. 156 . "Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto, are subjects by birth." 3 Pet. 28 U. S. 164 . In Shanks v. Dupont , 3 Pet. 242, decided (as appears by the records of this court) on the same day as the last case, it was held that a woman born in South Carolina before the Declaration of Independence, married to an English officer in Charleston during its occupation by the British forces in the Revolutionary War, and accompanying her husband on his return to England, and there remaining until her death, was a British subject within the meaning of the Treaty of Peace of 1783, so that her title to land in South Carolina, by descent cast before that treaty, was protected thereby. It was of such a case that Mr. Justice Story, delivering the opinion of the court, said: "The incapacities of femes covert, provided by the common law, apply to their civil rights, and are for their protection and interest. But they do not reach their political rights, nor prevent their acquiring or losing a national character. Those political rights do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general principles of the law of nations." 3 Pet. 28 U. S. 248 . This last sentence was relied on by the counsel for the United States as showing that the question whether a person is a citizen of a particular country is to be determined not by the law of that country, but by the principles of international law. But Mr. Justice Story certainly did not mean to suggest that, independently of treaty, there was any principle of international law which could defeat the operation of the established rule of citizenship by birth within the United States; for he referred (p. 28 U. S. 245 ) to the contemporaneous opinions in Inglis v. Sailors' Snug Harbor, Page 169 U. S. 661 above cited, in which this rule had been distinctly recognized, and in which he had said (p. 28 U. S. 162 ) that "each government had a right to decide for itself who should be admitted or deemed citizens," and, in his Treatise on the Conflict of Laws, published in 1834, he said that, in respect to residence in different countries or sovereignties, "there are certain principles which have been generally recognized by tribunals administering public law" [adding, in later editions "or the law of nations"] "as of unquestionable authority," and stated, as the first of those principles, "Persons who are born in a country are generally deemed citizens and subjects of that country." Story, Conflict of Laws, § 48. The English statute of 11 & 12 Will. III (1700). c. 6, entitled "An act to enable His Majesty's natural-born subjects to inherit the estate of their ancestors, either lineal or collateral, notwithstanding their father or mother were aliens," enacted that "all and every person or persons, being the King's natural-born subject or subjects, within any of the King's realms or dominions," might and should thereafter lawfully inherit and make their titles by descent to any lands "from any of their ancestors, lineal or collateral, although the father and mother, or father or mother, or other ancestor, of such person or persons, by, from, through or under whom" title should be made or derived, had been or should be "born out of the King's allegiance, and out of is Majesty's realms and dominions," as fully and effectually, as if such parents or ancestors "had been naturalized or natural-born subject or subjects within the King's dominions." 7 Statutes of the Realm, 90. It may be observed that, throughout that statute, persons born within the realm, although children of alien parents, were called "natural-born subjects." As that statute included persons born "within any of the King's realms or dominions," it, of course, extended to the Colonies, and, not having been repealed in Maryland, was in force there. In McCreery v. Somerville , (1824) 9 Wheat. 354, which concerned the title to land in the State of Maryland, it was assumed that children born in that State of an alien who was still living, and who had not been naturalized, were "native-born citizens of the Page 169 U. S. 662 United States," and, without such assumption, the case would not have presented the question decided by the court, which, as stated by Mr. Justice Story in delivering the opinion, was "whether the statute applies to the case of a living alien ancestor, so as to create a title by heirship where none would exist by the common law if the ancestor were a natural-born subject." 9 Wheat. 22 U. S. 356 . Again, in Levy v. McCartee (1832), 6 Pet. 102, 31 U. S. 112 , 31 U. S. 113 , 31 U. S. 115 , which concerned a descent cast since the American Revolution, in the State of New York, where the statute of 11 & 12 Will. III had been repealed, this court, speaking by Mr. Justice Story, held that the case must rest for its decision exclusively upon the principles of the common law, and treated it as unquestionable that, by that law, a child born in England of alien parents was a natural-born subject, quoting the statement of Lord Coke in Co.Lit. 8 a, that, "if an alien cometh into England and hath issue two sons, these two sons are indigenae, subjects born, because they are born within the realm," and saying that such a child "was a native-born subject, according to the principles of the common law stated by this court in McCreery v. Somervlle , 9 Wheat. 354." In Dred Scott v. Sandford , (1857) 19 How. 393, Mr. Justice Curtis said: "The first section of the second article of the Constitution uses the language, 'a natural-born citizen.' It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth." 19 How. 60 U. S. 576 . And, to this extent, no different opinion was expressed or intimated by any of the other judges. In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said: "All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion Page 169 U. S. 663 that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution." 1 Abbott (U.S.) 28, 40, 41. The Supreme Judicial Court of Massachusetts, speaking by Mr. Justice (afterwards Chief Justice) Sewall, early held that the determination of the question whether a man was a citizen or an alien was "to be governed altogether by the principles of the common law," and that it was established, with few exceptions, "that a man born within the jurisdiction of the common law is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land, and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term 'citizenship.'" Garder v. Ward (1805), 2 Mass. 244, note. And again: "The doctrine of the common law is that every man born within its jurisdiction is a subject of the sovereign of the country where he is born, and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance as born." Kilham v. Ward (1806), 2 Mass. 236, 265. It may here be observed that, in a recent English case, Lord Coleridge expressed the opinion of the Queen's Bench Division that the statutes of 4 Geo. II, (1731) c. 1, and 13 Geo. III (1773), c. 21, (hereinafter referred to) "clearly recognize that to the King in his politic, and not in his personal, capacity is the allegiance of his subjects due." Isaacson v. Durant, 17 Q.B.D. 54, 65. The Supreme Court of North Carolina, speaking by Mr; Justice Gaston, said: "Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens. . . . Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European King to a free and sovereign Page 169 U. S. 664 State; . . . British subjects in North Carolina became North Carolina freemen; . . . and all free persons born within the State are born citizens of the State. . . . The term 'citizen,' as understood in our law, is precisely analogous to the term 'subject' in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before as a 'subject of the king' is now 'a citizen of the State.'" State v. Manuel (1838), 4 Dev. & Bat. 20, 24-26. That all children born within the dominion of the United States of foreign parents holding no diplomatic office became citizens at the time of their birth does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clark, (1844) 1 Sandf.Ch. 583. The same doctrine was repeatedly affirmed in the executive departments, as, for instance, by Mr. Marcy, Secretary of State, in 1854, 2 Whart.Int.Dig. (2d ed.) p. 394; by Attorney General Black in 1859, 9 Opinions, 373, and by Attorney General Bates in 1862, 10 Opinions, 328, 382, 394, 396. Chancellor Kent, in his Commentaries, speaking of the "general division of the inhabitants of every country under the comprehensive title of aliens and natives," says: "Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent. . . . To create allegiance by birth, the party must be born not only within the territory, but within the ligeance of the government. If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, and children born in the armies of a State, while Page 169 U. S. 665 abroad and occupying a foreign country, are deemed to be born in the allegiance of the sovereign to whom the army belongs. It is equally the doctrine of the English common law that, during such hostile occupation of a territory, and the parents be adhering to the enemy as subjects de facto, their children, born under such a temporary dominion, are not born under the ligeance of the conquered." 2 Kent Com. (6th ed.) 39, 42. And he elsewhere says: "And if, at common law, all human beings born within the ligeance of the King, and under the King's obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. . . . Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land." 2 Kent Com. 258, note. Mr. Binney, in the second edition of a paper on the Alienigenae of the United States, printed in pamphlet at Philadelphia, with a preface bearing his signature and the date of December 1, 1853, said: "The common law principle of allegiance was the law of all the States at the time of the Revolution and at the adoption of the Constitution, and, by that principle, the citizens o the United States are, with the exceptions before mentioned," (namely, foreign-born children of citizens, under statutes to be presently referred to) "such only as are either born or made so, born within the limits and under the jurisdiction of the United States or naturalized by the authority of law, either in one of the States before the Constitution or, since that time, by virtue of an act of the Congress of the United States." P. 20. "The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle. " Page 169 U. S. 666 P. 22, note. This paper, without Mr. Binney's name and with the note in a less complete form and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Amer.Law Reg.193, 203, 204. IV. It was contended by one of the learned counsel for the United States that the rule of the Roman law, by which the citizenship of the child followed that of the parent, was the true rule of international law, as now recognized in most civilized countries, and had superseded the rule of the common law, depending on birth within the realm, originally founded on feudal considerations. But at the time of the adoption of the Constitution of the United States in 1789, and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, "citizens, true and native-born citizens, are those who are born within the extent of the dominion of France," and "mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicil;" and children born in a foreign country, of a French father who had not established his domicil there nor given up the intention of returning, were also deemed Frenchmen, as Laurent says, by "a favor, a sort of fiction," and Calvo, "by a sort of fiction of exterritoriality, considered as born in France, and therefore invested with French nationality." Pothier Trait des Personnes, pt. 1, tit. 2, sect. 1, nos. 43, 45; Walsh-Serrant v. Walsh-Serrant, (1802) 3 Journal du Palais, 384; S.C., S. Merlin, Jurisprudence, (5th ed.) Domicile, § 13; Prefet du Nord v. Lebeau, (1862) Journal du Palais, 1863, 312 and note; 1 Laurent Droit Civil, no. 321; 2 Calvo Droit International, (5th ed.) § 542; Cockburn on Nationality, 13, 14; Hall's International Law, (4th ed.) § 68. The general principle of citizenship by birth within French territory prevailed until after the French Revolution, and was affirmed in successive constitutions from the one adopted by the Constituent Assembly in 1791 to that of the French Republic in 1799. Constitutions et Chartes, (ed. 1830) pp. 100, 136, 148, 186. Page 169 U. S. 667 The Code Napoleon of 1807 changed the law of France and adopted, instead of the rule of country of birth, jus soli, the rule of descent or blood, jus sanguinis, as the leading principle; but an eminent commentator has observed that the framers of that code "appear not to have wholly freed themselves from the ancient rule of France, or rather, indeed, ancient rule of Europe -- de la vielle regle francaise, ou plutot meme de la vielle regle europienne -- according to which nationality had always been, in former times, determined by the place of birth." 1 Demolombe Cours de Code Napoleon (4th ed.) no. 146. The later modifications of the rule in Europe rest upon the constitutions, laws or ordinances of the various countries, and have no important bearing upon the interpretation and effect o the Constitution of the United States. The English Naturalization Act of 33 Vict. (1870) c. 14, and the Commissioners' Report of 1869, out of which it grew, both bear date since the adoption of the Fourteenth Amendment of the Constitution; and, as observed by Mr. Dicey, that act has not affected the principle by which any person who, whatever the nationality of his parents, is born within the British dominions, acquires British nationality at birth and is a natural-born British subject. Dicey, Conflict of Laws 41. At the time of the passage of that act, although the tendency on the continent of Europe was to make parentage, rather than birthplace, the criterion of nationality, and citizenship was denied to the native-born children of foreign parents in Germany, Switzerland, Sweden and Norway, yet it appears still to have been conferred upon such children in Holland, Denmark and Portugal, and, when claimed under certain specified conditions, in France, Belgium, Spain, Italy, Greece and Russia. Cockburn on Nationality, 14-21. There is, therefore, little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there as any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion. Page 169 U. S. 668 Nor can it be doubted that it is the inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship. Both in England and in the United States, indeed, statutes have been passed at various times enacting that certain issue born abroad of English subjects or of American citizens, respectively, should inherit, to some extent at least, the rights of their parents. But those statutes applied only to cases coming within their purport, and they have never been considered in either country as affecting the citizenship of persons born within its dominion. The earliest statute was passed in the reign of Edward III. In the Rolls of Parliament of 17 Edw. III (1343), it is stated that, "before these times, there have been great doubt and difficulty among the Lords of this realm, and the Commons, as well men of the law as others, whether children who are born in parts beyond sea ought to bear inheritance after the death of their ancestors in England, because no certain law has been thereon ordained;" and by the King, Lords and Commons, it was unanimously agreed that "there was no manner of doubt that the children of our Lord the King, whether they were born on this side the sea or beyond the sea, should bear the inheritance of their ancestors; . . . and in regard to other children, it was agreed in this Parliament that they also should inherit wherever they might be born in the service of the King;" but, because the Parliament was about to depart, and the business demanded great advisement and good deliberation how it should be best and most surely done, the making of a statute was put off to the next Parliament. 2 Rot.Parl. 139. By reason, apparently, of the prevalence of the plague in England, no act upon the subject was passed until 5 Edw. III, (1350), when Parliament passed an act entitled "A statute for those who are born in parts beyond sea," by which -- after reciting that "some people be in doubt if the children born in the parts beyond the sea, out of the ligeance of England, should be able to demand any inheritance within the same ligeance, or not, whereof a petition was put Page 169 U. S. 669 in the Parliament" of 17 Edw. III, "and as not at the same time wholly assented" -- it was (1) agreed and affirmed "that the law of the Crown of England is, and always hath been such, that the children of the Kings of England, in whatsoever parts they be born, in England or elsewhere, be able and ought to bear the inheritance after the death of their ancestors;" (2) also agreed that certain persons named, "which were born beyond the sea, out of the ligeance of England, shall be from henceforth able to have and enjoy their inheritance after the death of their ancestors, in all parts within the ligeance of England, as well as those that should be born within the same ligeance:" (3) and further agreed "that all children inheritors, which from henceforth shall be born without the ligeance of the King, whose fathers and mothers at the time of their birth be and shall be at the faith and ligeance of the King of England, shall have and enjoy the same benefits and advantages to have and bear the inheritance within the same ligeance as the other inheritors aforesaid, in time to come; so always, that the mothers of such children do pass the sea by the licence and wills of their husbands." 2 Rot. Parl. 231; 1 Statutes of the Realm, 310. It has sometimes been suggested that this general provision of the statute of 25 Edw. III was declaratory of the common law. See Bacon, arguendo, in Calvin' Case, 2 Howell's State Trials, 585; Westlake and Pollock, arguendo, in De Geer v. Stone, 22 Ch.D. 243, 247; 2 Kent Com. 50, 53; Lynch v. Clarke, 1 Sandf.Ch. 583, 659, 660; Ludlam v. Ludlam, 26 N.Y. 356. But all suggestions to that effect seem to have been derived, immediately or ultimately, from one or the other of these two sources: the one, the Year Book of 1 Ric. III, (1483) fol. 4, pl. 7, reporting a saying of Hussey, C.J., "that he who is born beyond sea, and his father and mother are English, their issue inherit by the common law, but the statute makes clear, &c.," -- which, at best, was but obiter dictum, for the Chief Justice appears to have finally rested his opinion on the statute. The other, a note added to the edition of 1688 of Dyer's Reports, 184 a, stating that, at Trinity Term, 7 Edw. III, Rot. 2 B.R., it was adjudged that children of subjects born Page 169 U. S. 670 beyond the sea in the service of the King were inheritable -- which has been shown, by a search of the roll in the King's Bench so referred to, to be a mistake, inasmuch as the child there in question did not appear to have been born beyond sea, but only to be living abroad. Westlake's Private International Law (3d ed.) 324. The statute of 5 Edw. III recites the existence of doubts as to the right of foreign-born children to inherit in England; and, while it is declaratory of the rights of children of the King, and is retrospective as to the persons specifically named, yet, as to all others, it is, in terms, merely prospective, applying to those only "who shall be born henceforth." Mr. Binney, in his paper above cited, after a critical examination of the statute and of the early English cases, concluded: "There is nothing in the statute which would justify the conclusion that it is declaratory of the common law in any but a single particular, namely in regard to the children of the King; nor has it at any time been judicially held to be so. . . . The notion that there is any common law principle to naturalize the children born in foreign countries, of native-born American father and mother, father or mother, must be discarded. There is not, and never was, any such common law principle." Binney on Alienigenae, 14, 20; 2 Amer.Law Reg.199, 203. And the great weight of the English authorities, before and since he wrote, appears to support his conclusion. Calvin's Case, 7 Rep. 17 a, 18 a; Co.Lit. 8 a, and Hargrave's note 36; 1 Bl.Com. 33; Barrington on Statutes, (5th ed.) 268; Lord Kenyon, in Doe v. Jones, 4 T.R. 300, 308; I: ord Chancellor Cranworth, in Shedden v. Patrick, 1 Macq. 535, 611; Cockburn on Nationality, 7, 9; De Greer v. Stone, 2 Ch.D. 243, 252; Dicey Conflict of Laws, 17, 741. "The acquisition," says Mr. Dicey, (p. 741) "of nationality by descent is foreign to the principles of the common law, and is based wholly upon statutory enactments." It has been pertinently observed that, if the statute of Edward III had only been declaratory of the common law, the subsequent legislation on the subject would have been wholly unnecessary. Cockburn on Nationality 9. By the Page 169 U. S. 671 statute of 29 Car. II, (1677) c. 6, § 1, entitled "An act for the naturalization of children of His Majesty's subjects born in foreign countries during the late troubles," all persons who, at any time between June 14, 1641, and March 24, 1660, "were born out of His Majesty's dominions, and whose fathers or mothers were natural-born subjects of this realm" were declared to be natural-born subjects. By the statute of 7 Anne, (1708) c. 5, § 3, "the children of all natural-born subjects, born out of the ligeance of Her Majesty, her heirs and successors" -- explained by the statute of 4 Geo. II, (1731) c. 21, to mean all children born out of the ligeance of the Crown of England "whose fathers were or shall be natural-born subjects of the Crown of England, or of Great Britain, at the time of the birth of such children respectively . . . . shall be deemed, adjudged and taken to be natural-born subjects of this kingdom, to all intents, constructions and purposes whatsoever." That statute was limited to foreign-born children of natural-born subjects, and was extended by the statute of 13 Geo. III, (1773) c. 21, to foreign-born grandchildren of natural-born subjects, but not to the issue of such grandchildren; or, as put by Mr. Dicey, "British nationality does not pass by descent or inheritance beyond the second generation." See DeGeer v. Stone, above cited; Dicey, Conflict of Laws 742. Moreover, under those statutes, as is stated in the Report in 1869 of the Commissioners for inquiring into the Laws of Naturalization and Allegiance, "no attempt has ever been made on the part of the British Government, (unless in Eastern countries where special jurisdiction is conceded by treaty) to enforce claims upon, or to assert rights in respect of, persons born abroad, as against the country of their birth whilst they were resident therein, and when by its law they were invested with its nationality." In the appendix to their report are collected many such cases in which the British Government declined to interpose, the reasons being most clearly brought out in a dispatch of March 13, 1858, from Lord Malmesbury, the Foreign Secretary, to the British Ambassador at Paris, saying: "It is competent to any country to confer by general or special legislation the privileges of nationality upon those Page 169 U. S. 672 who are born out of its on territory; but it cannot confer such privileges upon such persons as against the country of their birth, when they voluntarily return to and reside therein. Those born in the territory of a nation are (as a general principle) liable when actually therein to the obligations incident to their status by birth. Great Britain considers and treats such persons as natural-born subjects, and cannot therefore deny the right of other nations to do the same. But Great Britain cannot permit the nationality of the children of foreign parents born within her territory to be questioned." Naturalization Commission Report, pp. viii, 67; U.S. Foreign Relations, 1873-1874, pp. 1237, 1837. See also Drummond's Case (1834), 2 Knapp 295. By the Constitution of the United States, Congress was empowered "to establish an uniform rule of naturalization." In the exercise of this power, Congress, by successive acts, beginning with the act entitled "An act to establish an uniform rule of naturalization," passed at the second session of the First Congress under the Constitution, has made provision for the admission to citizenship of three principal classes of persons: First. Aliens, having resided for a certain time "within the limits and under the jurisdiction of the United States," and naturalized individually by proceedings in a court of record. Second. Children of persons so naturalized, "dwelling within the United States, and being under the age of twenty-one years at the time of such naturalization." Third. Foreign-born children of American citizens, coming within the definitions prescribed by Congress. Acts of March 26, 1790, c. 3; January 29, 1795, c. 20; June 18, 1798, c. 54; 1 Stat. 103, 414, 566; April 14, 1802, c. 28; March 26, 1804, c. 47; 2 Stat. 153, 292; February 10, 1854, c. 71; 10 Stat. 604; Rev.Stat. §§ 2165, 2172, 1993. In the act of 1790, the provision as to foreign-born children of American citizens was as follows: "The children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural-born citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been Page 169 U. S. 673 resident in the United States." 1 Stat. 104. In 1795, this was reenacted in the same words, except in substituting for the words "beyond sea, or out of the limits of the United States" the words "out of the limits and jurisdiction of the United States." 1 Stat. 415. In 1802, all former acts were repealed, and the provisions concerning children of citizens were reenacted in this form: "The children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the Government of the United States, may have become citizens of any one of the said States under the laws thereof, being under the age of twenty-one years at the time of their parents' being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States, and the children of persons who now are, or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: Provided, that the right of citizenship shall not descend to persons whose fathers have never resided within the United States." Act of April 14, 1802, c. 28, § 4; 2 Stat. 155. The provision of that act concerning "the children of persons duly naturalized under any of the laws of the United States," not being restricted to the children of persons already naturalized, might well be held to include children of persons thereafter to be naturalized. 2 Kent Com. 51, 52; West v. West, 8 Paige, 433; United States v. Kellar, 11 Bissell, 314; Boyd v. Thayer, 143 U. S. 135 -177. But the provision concerning foreign-born children, being expressly limited to the children of persons who then were or had been citizens, clearly did not include foreign-born children of any person who became a citizen since its enactment. 2 Kent.Com. 52, 53; Binney on Alienigenae 20, 25; 2 Amer.Law Reg. 203, 205. Mr. Binney's paper, as he states in his preface, was printed by him in the hope that Congress might supply this defect in our law. In accordance with his suggestions, it was enacted by the Page 169 U. S. 674 statute of February 10, 1855, c. 71, that "persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States: Provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States." 10 Stat. 604; Rev.Stat. § 1993. It thus clearly appears that, during the half century intervening between 1802 and 1855, there was no legislation whatever for the citizenship of children born abroad, during that period, of American parents who had not become citizens of the United States before the act of 1802, and that the act of 1855, like every other act of Congress upon the subject, has, by express proviso, restricted the right of citizenship, thereby conferred upon foreign-born children of American citizens, to those children themselves, unless they became residents of the United States. Here is nothing to countenance the theory that a general rule of citizenship by blood or descent has displaced in this country the fundamental rule of citizenship by birth within its sovereignty. So far as we are informed, there is no authority, legislative, executive or judicial, in England or America, which maintains or intimates that the statutes (whether considered as declaratory or as merely prospective) conferring citizenship on foreign-born children of citizens have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion. Even those authorities in this country, which have gone the farthest towards holding such statutes to be but declaratory of the common law have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents. 2 Kent Com. 39, 50, 53, 258 note; Lynch v. Clarke, 1 Sandf.Ch. 583, 659; Ludlam v. Ludlam, 26 N.Y. 356, 371. Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional Page 169 U. S. 675 Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States. V. In the forefront both of the Fourteenth Amendment of the Constitution and of the Civil Rights Act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms. The Civil Rights Act, passed at the first session of the Thirty-ninth Congress, began by enacting that "all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States, and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains and penalties, and to none other, any law, statute, ordinance, regulation or custom to the contrary notwithstanding." Act of April 9, 1866, c. 31, § 1; 14 Stat. 27. The same Congress, shortly afterwards, evidently thinking it unwise, and perhaps unsafe, to leave so important a declaration of rights to depend upon an ordinary act of legislation, which might be repealed by any subsequent Congress, framed the Fourteenth Amendment of the Constitution, and, on June 16, 1866, by joint resolution, proposed it to the legislatures of the several States, and on July 28, 1868, the Secretary of State issued a proclamation showing it to have been ratified by the legislatures of the requisite number of States. 14 Stat. 358; 1 Stat. 708. The first section of the Fourteenth Amendment of the Constitution Page 169 U. S. 676 begins with the words, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of he State wherein they reside." As appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect. Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford , (1857) 19 How. 393, and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States are citizens of the United States. The Slaughterhouse Cases (1873), 16 Wall. 36, 83 U. S. 73 ; Strauder v. West Virginia (1879), 100 U. S. 303 , 100 U. S. 306 .; Ex parte Virginia (1879). 100 U. S. 339 , 100 U. S. 35 ; Neal v. Delaware (1880), 103 U. S. 370 , 103 U. S. 386 ; Elk v. Wilkins (1884), 112 U. S. 94 , 112 U. S. 101 . But the opening words, "All persons born," are general, not to say universal, restricted only by place and jurisdiction, and not by color or race -- as was clearly recognized in all the opinions delivered in The Slaughterhouse Cases, above cited. In those cases, the point adjudged was that a statute of Louisiana granting to a particular corporation the exclusive right for twenty-five years to have and maintain slaughterhouses within a certain district including the City of New Orleans, requiring all cattle intended for sale or slaughter in that district to be brought to the yards and slaughterhouses of the grantee, authorizing all butchers to slaughter their cattle there, and empowering the grantee to exact a reasonable fee for each animal slaughtered, was within the police powers of the State, and not in conflict with the Thirteenth Amendment of the Constitution as creating an involuntary servitude, nor with the Fourteenth Amendment as abridging the privileges or immunities of citizens of the United States, Page 169 U. S. 677 or as depriving persons of their liberty or property without due process of law, or as denying to them the equal protection of the laws. Mr. Justice Miller, delivering the opinion of the majority of the court, after observing that the Thirteenth, Fourteenth and Fifteenth Articles of Amendment of the Constitution were all addressed to the grievances of the negro race, and were designed to remedy them, continued as follows: "We do not say that no one else but the negro can share in this protection. Both the language and spirit of these Articles are to have their fair and just weight in any question of construction. Undoubtedly, while negro slavery alone was in the mind of the Congress which proposed the Thirteenth Article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this Amendment may safely be trusted to make it void. And so if other rights are assailed by the States, which properly and necessarily fall within the protection of these Articles, that protection will apply, though the party interested may not be of African descent." 16 Wall. 83 U. S. 72 . And, in treating of the first clause of the Fourteenth Amendment, he said: "The distinction between citizenship of the United States and citizenship of a State is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union." 16 Wall. 83 U. S. 73 , 83 U. S. 74 . Mr. Justice Field, in a dissenting opinion, in which Chief Justice Chase and Justices Swayne and Bradley concurred, said of the same clause: "It recognizes in express terms, if it does not create, citizens of the United States, and it makes their citizenship dependent upon the place of their birth, or the fact of their adoption, and not upon the constitution or laws of any State or the condition of their ancestry." 16 Wall. Page 169 U. S. 678 83 U. S. 95 , 83 U. S. 111 . Mr. Justice Bradley also said: "The question is now settled by the Fourteenth Amendment itself, that citizenship of the United States is the primary citizenship in this country, and that state citizenship is secondary and derivative, depending upon citizenship of the United States and the citizen's place of residence. The States have not now, if they ever had, any power to restrict their citizenship to any classes or persons." 16 Wall. 83 U. S. 112 . And Mr. Justice Swayne added: "The language employed is unqualified in its scope. There is no exception in its terms, and there can be properly none in their application. By the language 'citizens of the United States' was meant all such citizens, and by 'any person' was meant all persons within the jurisdiction of the State. No distinction is intimated on account of race or color. This court has no authority to interpolate a limitation that is neither expressed nor implied. Our duty is to execute the law, not to make it. The protection provided was not intended to be confined to those of any particular race or class, but to embrace equally all races, classes and conditions of men." 16 Wall. 83 U. S. 128 , 83 U. S. 129 . Mr. Justice Miller, indeed, while discussing the causes which led to the adoption of the Fourteenth Amendment, made this remark: "The phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States." 16 Wall. 83 U. S. 73 . This was wholly aside from the question in judgment and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities, and that it was not formulated with the same care and exactness as if the case before the court had called for an exact definition of the phrase is apparent from its classing foreign ministers and consuls together -- whereas it was then well settled law, as has since been recognized in a judgment of this court in which Mr. Justice Miller concurred, that consuls, as such, and unless expressly invested with a diplomatic character in addition to their ordinary powers, are not considered as entrusted with authority to represent their sovereign in his intercourse Page 169 U. S. 679 with foreign States or to vindicate his prerogatives, or entitled by the law of nations to the privileges and immunities of ambassadors or public ministers, but are subject to the jurisdiction, civil and criminal, of the courts of the country in which they reside. 1 Kent Com. 44; Story Conflict of Laws § 48; Wheaton International Law (8th ed.) § 249; The Anne (1818), 3 Wheat. 435, 16 U. S. 445 , 16 U. S. 446 ; Gittings v. Crawford (1838), Taney 1, 10; In re Baiz (1890), 135 U. S. 403 , 135 U. S. 424 . In weighing a remark uttered under such circumstances, it is well to bear in mind the often quoted words of Chief Justice Marshall: "It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated." Cohens v. Virginia (1821), 6 Wheat. 264, 19 U. S. 399 . That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest from a unanimous judgment of the Court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: "Allegiance and protection are, in this connection" (that is, in relation to citizenship), "reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance. . . . At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country of Page 169 U. S. 680 parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class, there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens." Minor v. Happersett (1874), 21 Wall. 162, 88 U. S. 166 -168. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States, although not entitled to vote, the right to the elective franchise not being essential to citizenship. The only adjudication that has been made by this court upon the meaning of the clause, "and subject to the jurisdiction thereof," in the leading provision of the Fourteenth Amendment is Elk v. Wilkins, 112 U. S. 94 , in which it was decided that an Indian born a member of one of the Indian tribes within the United States, which still existed and was recognized as an Indian tribe by the United States, who had voluntarily separated himself from his tribe and taken up his residence among the white citizens of a State but who did not appear to have been naturalized, or taxed, or in any way recognized or treated as a citizen either by the United States or by the State, was not a citizen of the United States, as a "person born in the United States and subject to the jurisdiction thereof" within the meaning of the clause in question. That decision was placed upon the grounds that the meaning of those words was "not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance;" that, by the Constitution, as originally established, "Indians not taxed" were excluded from the persons according to whose numbers representatives in Congress and direct taxes were apportioned among the Page 169 U. S. 681 several States, and Congress was empowered to regulate commerce not only "with foreign nations" and among the several States, but "with the Indian tribes;" that the Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign States, but were alien nations, distinct political communities, the members of which owed immediate allegiance to their several tribes and were not part of the people of the United States; that the alien and dependent condition of the members of one of those tribes could not be put off at their own will without the action or assent of the United States, and that they were never deemed citizens except when naturalized, collectively or individually, under explicit provisions of a treaty, or of an act of Congress; and therefore that "Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more 'born in the United States, and subject to the jurisdiction thereof' within the meaning of the first section of the Fourteenth Amendment than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations." And it was observed that the language used in defining citizenship in the first section of the Civil Rights Act of 1866, by the very Congress which framed the Fourteenth Amendment, was "all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed." 112 U. S. 99 -103. Mr. Justice Harlan and Mr. Justice Woods, dissenting, were of opinion that the Indian in question, having severed himself from his tribe and become a bona fide resident of a State, had thereby become subject to the jurisdiction of the United States within the meaning of the Fourteenth Amendment; and, in reference to the Civil Rights Act of 1866, said: "Beyond question, by that act, national citizenship was conferred directly upon all persons in this country, of whatever race (excluding only 'Indians not taxed'), who were born within Page 169 U. S. 682 the territorial limits of the United States, and were not subject to any foreign power." And that view was supported by reference to the debates in the Senate upon that act, and to the ineffectual veto thereof by President Johnson in which he said: "By the first section of the bill, all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gypsies, as well as the entire race designated as blacks, persons of color, negroes, mulattoes, and persons of African blood. Every individual of those races, born in the United States, is, by the bill, made a citizen of the United States." 112 U.S. 1114. The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African or Mongolian descent not in the diplomatic service of a foreign country. The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin's Case, 7 Rep. 1, 18 b; Cockburn on Nationality, 7; Dicey Conflict of Laws, 177; Inglis v. Sailors' Snug Harbor , 3 Pet. 99, 28 U. S. 155 ; 2 Kent Com. 39, 42. The principles upon which each of those exceptions rests were long ago distinctly stated by this court. Page 169 U. S. 683 In United States v. Rice (1819), 4 Wheat. 246, goods imported into Castine, in the State of Maine, while it was in the exclusive possession of the British authorities during the last war with England, were held not to be subject to duties under the revenue laws of the United States because, as was said by Mr. Justice Story in delivering judgment: "By the conquest and military occupation of Castine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender, the inhabitants passed under a temporary allegiance to the British Government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them, for, where there is no protection or allegiance or sovereignty, there can be no claim to obedience." 4 Wheat. 17 U. S. 254 . In the great case of The 11 U. S. 7 Cranch 116, the grounds upon which foreign ministers are, and other aliens are not, exempt from the jurisdiction of this country were set forth by Chief Justice Marshall in a clear and powerful train of reasoning, of which it will be sufficient, for our present purpose, to give little more than the outlines. The opinion did not touch upon the anomalous casts of the Indian tribes, the true relation of which to the United States was not directly brought before this court until some years afterwards in Cherokee Nation v. Georgia (1831), 5 Pet. 1; nor upon the case of a suspension of the sovereignty of the United States over part of their territory by reason of a hostile occupation, such as was also afterwards presented in United States v. Rice,@ above cited. But, in all other respects, it covered the whole question of what persons within the territory of the United States are subject to the jurisdiction thereof. The Chief Justice first laid down the general principle: "The jurisdiction of the nation within its own territory is Page 169 U. S. 684 necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction; but, if understood, not less obligatory." 7 Cranch 11 U. S. 136 . He then stated, and supported by argument and illustration, the propositions that "this full and absolute territorial jurisdiction, being alike the attribute of every sovereign, and being incapable of conferring extraterritorial power," has "given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction which has been stated to be the attribute of every nation" -- the first of which is the exemption from arrest or detention of the person of a foreign sovereign entering its territory with its license, because "a foreign sovereign is not understood as intending to subject himself to a jurisdiction incompatible with his dignity and the dignity of his nation; . . . a second case, standing on the same principles with the first, is the immunity which all civilized nations allow to foreign ministers; . . . a third case, in which a sovereign is understood to cede a portion of his territorial jurisdiction, is where he allows the troops of a foreign prince to pass through his dominions;" and, in conclusion, that "a public armed ship, in the service of a foreign sovereign with whom the Government of the United States is at peace and having entered an American port open for her reception, on the terms on which ships of war are generally permitted to enter the ports of a friendly power, must be considered as having come into the American territory under an implied promise that, while necessarily within it, and demeaning herself in a friendly Page 169 U. S. 685 manner, she should be exempt from the jurisdiction of the country." 7 Cranch 11 U. S. 137 -139, 11 U. S. 147 . As to the immunity of a foreign minister, he said: "Whatever may be the principle on which this immunity is established, whether we consider him as in the place of the sovereign he represents or, by a political fiction, suppose him to be extraterritorial, and therefore, in point of law, not within the jurisdiction of the sovereign at whose court he resides, still the immunity itself is granted by the governing power of the nation to which the minister is deputed. This fiction of exterritoriality could not be erected and supported against the will of the sovereign of the territory. He is supposed to assent to it. . . . The assent of the sovereign to the very important and extensive exemptions from territorial jurisdiction which are admitted to attach to foreign ministers is implied from the considerations that, without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe temporary and local allegiance to a foreign prince, and would be less competent to the objects of his mission. A sovereign committing the interests of his nation with a foreign power to the care of a person whom he has selected for that purpose, cannot intend to subject his minister in any degree to that power; and therefore, a consent to receive him implies a consent that he shall possess those privileges which his principal intended he should retain -- privileges which are essential to the dignity of his sovereign and to the duties he is bound to perform." 7 Cranch 11 U. S. 138 , 11 U. S. 139 . The reasons for not allowing to other aliens exemption "from the jurisdiction of the country in which they are found" were stated as follows: "When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were Page 169 U. S. 686 not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign counties are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption." 7 Cranch 11 U. S. 144 . In short, the judgment in the case of The Exchange declared, as incontrovertible principles, that the jurisdiction of every nation within its own territory is exclusive and absolute, and is susceptible of no limitation not imposed by the nation itself; that all exceptions to its full and absolute territorial jurisdiction must be traced up to its own consent, express or implied; that, upon its consent to cede, or to waive the exercise of, a part of its territorial jurisdiction rest the exemptions from that jurisdiction of foreign sovereigns or their armies entering its territory with its permission, and of their foreign ministers and public ships of war, and that the implied license under which private individuals of another nation enter the territory and mingle indiscriminately with its inhabitants for purposes of business or pleasure can never be construed to grant to them an exemption from the jurisdiction of the country in which they are found. See also Carlisle v. United States (1872), 16 Wall. 147, 83 U. S. 155 ; Radich v. Hutchins (1877), 95 U. S. 210 ; Wildenhus' Case (1887), 120 U. S. 1 ; Chae Chan Ping v. United States (1889), 130 U. S. 581 , 130 U. S. 603 , 130 U. S. 604 . From the first organization of the National Government under the Constitution, the naturalization acts of the United States, in providing for the admission of aliens to citizenship by judicial proceedings, uniformly required every applicant to have resided for a certain time "within the limits and under the jurisdiction of the United States," and thus applied the words "under the jurisdiction of the United States" to aliens residing here before they had taken an oath to support the Constitution of the United States, or had renounced allegiance Page 169 U. S. 687 to a foreign government. Acts of March 26, 1790, c. 3; January 29, 1795, c. 20, § 1; June 18, 1798, c. 54, §§ 1, 6; 1 Stat. 103, 414, 566, 568; April 14, 1802, c. 28, § 1, 2 Stat. 153; March 22, 1816, c. 32, § 1; 3 Stat. 258; May 24, 1828, c. 116, § 2; 4 Stat. 310; Rev.Stat. § 2165. And, from 1795, the provisions of those acts which granted citizenship to foreign-born children of American parents described such children as "born out of the limits and jurisdiction of the United States." Acts of January 29, 1795, c. 20, § 3; 1 Stat. 415; April 14, 180, c. 28, § 4; 2 Stat. 155; February 10, 1855, c. 71; 10 Stat. 604; Rev.Stat. §§ 1993, 2172. Thus, Congress, when dealing with the question of citizenship in that aspect, treated aliens residing in this country as " under the jurisdiction of the United States," and American parents residing abroad as "out of the jurisdiction of the United States." The words "in the United States, and subject to the jurisdiction thereof" in the first sentence of the Fourteenth Amendment of the Constitution must be presumed to have been understood and intended by the Congress which proposed the Amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange and as the equivalent of the words "within the limits and under the jurisdiction of the United States," and the converse of the words "out of the limits and jurisdiction of the United States" as habitually used in the naturalization acts. This presumption is confirmed by the use of the word "jurisdiction" in the last clause of the same section of the Fourteenth Amendment, which forbids any State to "deny to any person within its jurisdiction the equal protection of the laws." It is impossible to construe the words "subject to the jurisdiction thereof" in the opening sentence, as less comprehensive than the words "within its jurisdiction" in the concluding sentence of the same section; or to hold that persons "within the jurisdiction" of one of the States of the Union are not "subject to the jurisdiction of the United States." These considerations confirm the view, already expressed in this opinion, that the opening sentence of the Fourteenth Page 169 U. S. 688 Amendment is throughout affirmative and declaratory, intended to allay doubts and to settle controversies which had arisen, and not to impose any new restrictions upon citizenship. By the Civil Rights Act of 1866, "all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed," were declared to be citizens of the United States. In the light of the law as previously established, and of the history of the times, it can hardly be doubted that the words of that act, "not subject to any foreign power," were not intended to exclude any children born in this country from the citizenship which would theretofore have been their birthright, or, for instance, for the first time in our history, to deny the right of citizenship to native-born children of foreign white parents not in the diplomatic service of their own country nor in hostile occupation of part of our territory. But any possible doubt in this regard was removed when the negative words of the Civil Rights Act, "not subject to any foreign power," gave way, in the Fourteenth Amendment of the Constitution, to the affirmative words, "subject to the jurisdiction of the United States." This sentence of the Fourteenth Amendment is declaratory of existing rights and affirmative of existing law as to each of the qualifications therein expressed -- "born in the United States," "naturalized in the United States," and "subject to the jurisdiction thereof" -- in short, as to everything relating to the acquisition of citizenship by facts occurring within the limits of the United States. But it has not touched the acquisition of citizenship by being born abroad of American parents, and has left that subject to be regulated, as it had always been, by Congress in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization. The effect of the enactments conferring citizenship on foreign-born children of American parents has been defined, and the fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been affirmed, in well considered opinions of the executive departments of the Government since the adoption of the Fourteenth Amendment of the Constitution. Page 169 U. S. 689 In 1869, Attorney General Hoar gave to Mr. Fish, the Secretary of State, an opinion that children born and domiciled abroad whose fathers were native-born citizens of the United States and had at some time resided therein were, under the .statute of February 10, 1855, c. 71, citizens of the United States, and "entitled to all the privileges of citizenship which it is in the power of the United States Government to confer. Within the sovereignty and jurisdiction of this nation, they are undoubtedly entitled to all the privileges of citizens. . . . But," the Attorney General added, "while the United States may, by law, fix or declare the conditions constituting citizens of the country within its own territorial jurisdiction, and may confer the rights of American citizens everywhere upon persons who are not rightfully subject to the authority of any foreign country or government, it is clear that the United States cannot, by undertaking to confer the rights of citizenship upon the subjects of a foreign nation who have not come within our territory, interfere with the just rights of such nation to the government and control of its own subjects. If, therefore, by the laws of the country of their birth, children of American citizens born in that country are subjects of its government, I do not think that it is competent to the United States, by any legislation, to interfere with that relation or, by undertaking to extend to them the rights of citizens of this country, to interfere with the allegiance which they may owe to the country of their birth while they continue within its territory, or to change the relation to other foreign nations which, by reason of their place of birth, may at any time exist. The rule of the common law I understand to be that a person 'born in a strange country, under the obedience of a strange prince or country, is an alien' (Co.Lit. 128 b ), and that every person owes allegiance to the country of his birth." 13 Opinions of Attorneys General 89-91. In 1871, Mr. Fish, writing to Mr. Marsh, the American Minister to Italy, said: "The Fourteenth Amendment to the Constitution declares that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.' This is simply an affirmance Page 169 U. S. 690 of the common law of England and of this country so far as it asserts the status of citizenship to be fixed by the place of nativity, irrespective of parentage. The qualification, 'and subject to the jurisdiction thereof' was probably intended to exclude the children of foreign ministers, and of other persons who may be within our territory with rights of extraterritoriality." 2 Whart.Int.Dig. p. 394. In August, 1873, President Grant, in the exercise of the authority expressly conferred upon the President by art. 2, sect. 2, of the Constitution to "require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices," required the opinions of the members of his cabinet upon several questions of allegiance, naturalization and expatriation. Mr. Fish, in his opinion, which is entitled to much weight as well from the circumstances under which it was rendered as from its masterly treatment of the subject, said: "Every independent State has as one of the incidents of its sovereignty the right of municipal legislation and jurisdiction over all persons within its territory, and may therefore change their nationality by naturalization, and this without regard to the municipal laws of the country whose subjects are so naturalized, as long as they remain, or exercise the rights conferred by naturalization, within the territory and jurisdiction of the State which grants it." "It may also endow with the rights and privileges of its citizenship persons residing in other countries so as to entitle them to all rights of property and of succession within its limits, and also with political privileges and civil rights to be enjoyed or exercised within the territory and jurisdiction of the State thus conferring its citizenship." "But no sovereignty can extend its jurisdiction beyond it own territorial limits so as to relieve those born under and subject to another jurisdiction from their obligations or duties thereto, nor can the municipal law of one State interfere with the duties or obligations which its citizens incur while voluntarily resident in such foreign State and without the jurisdiction of their own country. " Page 169 U. S. 691 "It is evident from the proviso in the act of 10th February, 1855, viz., 'that the rights of citizenship shall not descend to persons whose fathers never resided in the United States,' that the lawmaking power not only had in view this limit to the efficiency of its own municipal enactments in foreign jurisdiction, but that it has conferred only a qualified citizenship upon the children of American fathers born without the jurisdiction of the United States, and has denied to them what pertains to other American citizens -- the right of transmitting citizenship to their children -- unless they shall have made themselves residents of the United States or, in the language of the Fourteenth Amendment of the Constitution, have made themselves 'subject to the jurisdiction thereof.'" "The child born of alien parents in the United States is held to be a citizen thereof, and to be subject to duties with regard to this country which do not attach to the father." "The same principle on which such children are held by us to be citizens of the United States, and to be subject to duties to this country, applies to the children of American fathers born without the jurisdiction of the United States, and entitles the country within whose jurisdiction they are born to claim them as citizen and to subject them to duties to it." "Such children are born to a double character: the citizenship of the father is that of the child so far as the laws of the country of which the father is a citizen are concerned, and within the jurisdiction of that country; but the child, from the circumstances of his birth, may acquire rights and owes another fealty besides that which attaches to the father." Opinions of the Executive Departments on Expatriation, Naturalization and Allegiance (1873) 17, 18; U.S. Foreign Relations, 1873-74, pp. 1191, 1192. In 1886, upon the application of a son born in France of an American citizen, and residing in France, for a passport, Mr. Bayard, the Secretary of State, as appears by letters from him to the Secretary of Legation in Paris and from the latter to the applicant, quoted and adopted the conclusions of Attorney General Hoar in his opinion above cited. U.S. Foreign Relations, 1886, p 303; 2 Calvo Droit International, § 546. Page 169 U. S. 692 These opinions go to show that, since the adoption of the Fourteenth Amendment, the executive branch of the Government, the one charged with the duty of protecting American citizens abroad against unjust treatment by other nations, has taken the same view of the act of Congress of 1855, declaring children born abroad of American citizens to be themselves citizens, which, as mentioned in a former part of this opinion, the British Foreign Office has taken of similar acts of Parliament -- holding that such statutes cannot, consistently with our own established rule of citizenship by birth in this country, operate extraterritorially so far as to relieve any person born and residing in a foreign country and subject to its government, from his allegiance to that country. In a very recent case, the Supreme Court of New Jersey held that a person born in this country of Scotch parents who were domiciled but had not been naturalized here was "subject to the jurisdiction of the United States" within the meaning of the Fourteenth Amendment, and was "not subject to any foreign power" within the meaning of the Civil Rights Act of 1866; and, in an opinion delivered by Justice Van Syckel with the concurrence of Chief Justice Beasley, said: "The object of the Fourteenth Amendment, as is well known, was to confer upon the colored race the right of citizenship. It, however, gave to the colored people no right superior to that granted to the white race. The ancestors of all the colored people then in the United States were of foreign birth, and could not have been naturalized or in any way have become entitled to the right of citizenship. The colored people were no more subject to the jurisdiction of the United States, by reason of their birth here, than were the white children born in this country of parents who were not citizens. The same rule must be applied to both races, and unless the general rule, that, when the parents are domiciled here, birth establishes the right to citizenship, is accepted, the Fourteenth Amendment has failed to accomplish its purpose, and the colored people are not citizens. The Fourteenth Amendment, by the language, 'all persons born in the United States, and subject to the jurisdiction thereof,' was intended Page 169 U. S. 693 to bring all races, without distinction of color, within the rule which prior to that time pertained to the white race." Benny v. O'Brien (1895), 29 Vroom (58 N.J.Law), 36, 39, 40. The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin's Case, 7 Rep. 6 a, "strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;" and his child, as said by Mr. Binney in his essay before quoted, "if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle." It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides -- seeing that, as said by Mr. Webster, when Secretary of State, in his Report to the President on Thrasher's Case in 1851, and since repeated by this court, "independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that, by the public law, an alien, or a stranger Page 169 U. S. 694 born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason, or other crimes, as a native-born subject might be, unless his case is varied by some treaty stipulations." Ex.Doc. H.R. No. 10, 1st sess. 32d Congress, p. 4; 6 Webster's Works, 56; United States v. Carlisle , 16 Wall. 147, 83 U. S. 155 ; Calvin's Case, 7 Rep. 6 a; Ellesmere on Postnati 63; 1 Hale P.C. 62; 4 Bl.Com. 92. To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States. VI. Whatever considerations, in the absence of a controlling provision of the Constitution, might influence the legislative or the executive branch of the Government to decline to admit persons of the Chinese race to the status of citizens of the United States, there are none that can constrain or permit the judiciary to refuse to give full effect to the peremptory and explicit language of the Fourteenth Amendment, which declares and ordains that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection of, and owe allegiance to, the United States so long as they are permitted by the United States to reside here, and are " subject to the jurisdiction thereof" in the same sense as all other aliens residing in the United States. Yick Wo v. Hopkins (1886), 118 U. S. 356 ; Law Ow Bew v. United States 144 U. S. 47 , 144 U. S. 61 , 144 U. S. 62 ; Fong Yue Ting v. United States (1893), 149 U. S. 698 , 149 U. S. 724 ; Lem Moon Sing v. United States (1893), 158 U. S. 538 , 158 U. S. 547 ; Wong Wing v. United States (1896), 163 U. S. 228 , 163 U. S. 238 . In Yick Wo v. Hopkins, the decision was that an ordinance Page 169 U. S. 695 of the city of San Francisco, regulating a certain business, and which, as executed by the board of supervisors, made an arbitrary discrimination between natives of China, still subjects of the Emperor of China, but domiciled in the United States, and all other persons was contrary to the Fourteenth Amendment of the Constitution. Mr. Justice Matthews, in delivering the opinion of the Court, said: "The rights of the petitioners, as affected by the proceedings of which they complain, are not less because they are aliens and subjects of the Emperor of China. . . . The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says," "Nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." "These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the equal protection of the laws is a pledge of the protection of equal laws. It is accordingly enacted, by § 1977 of the Revised Statutes, that" "all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses and exactions of every kind, and to no other." "The questions we have to consider and decide in these cases, therefore, are to be treated as involving the rights of every citizen of the United States, equally with those of the strangers and aliens who now invoke the jurisdiction of this court." 118 U. S. 118 U.S. 368, 118 U. S. 369 . The manner in which reference was made, in the passage above quoted, to § 1977 of the Revised Statutes shows that the change of phrase in that section, reenacting § 16 of the statute of May 31, 1870, c. 114, 16 Stat. 144, as compared with § 1 of the Civil Rights Act of 1866 -- by substituting, for the words in that act, "of every race and color," the words, "within the jurisdiction of the United States" -- was not Page 169 U. S. 696 considered as making the section, as it now stands, less applicable to persons of every race and color and nationality than it was in its original form, and is hardly consistent with attributing any narrower meaning to the words "subject to the jurisdiction thereof" in the first sentence of the Fourteenth Amendment of the Constitution, which may itself have been the cause of the change in the phraseology of that provision of the Civil Rights Act. The decision in ck Yick Wo v. Hopkins, indeed, did not directly pass upon the effect of these words in the Fourteenth Amendment, but turned upon subsequent provisions of the same section. But, as already observed, it is impossible to attribute to the words, "subject to the jurisdiction thereof," that is to say, of the United States, at the beginning a less comprehensive meaning than to the words "within its jurisdiction," that is, of the State, at the end of the same section; or to hold that persons, who are indisputably "within the jurisdiction" of the State, are not "subject to the jurisdiction" of the Nation. It necessarily follows that persons born in China, subjects of the Emperor of China but domiciled in the United States, having been adjudged, in Yick Wo v. Hopkins to be within the jurisdiction of the State within the meaning of the concluding sentence, must be held to be subject to the jurisdiction of the United States within the meaning of the first sentence of this section of the Constitution, and their children "born in the United States" cannot be less "subject to the jurisdiction thereof." Accordingly, in Quock Ting v. United States (1891), 140 U. S. 417 , which, like the case at bar, was a writ of habeas corpus to test the lawfulness of the exclusion of a Chinese person who alleged that he was a citizen of the United States by birth, it was assumed on all hands that a person of the Chinese race, born in the United States, was a citizen of the United States. The decision turned upon the failure of the petitioner to prove that he was born in this country, and the question at issue was, as stated in the opinion of the majority of the court, delivered by Mr. Justice Field, "whether the evidence was sufficient to show that the petitioner was a citizen of the Page 169 U. S. 697 United States," or, as stated by Mr. Justice Brewer in his dissenting opinion, "whether the petitioner was born in this country or not." 140 U.S. 140 U. S. 419 . In State v. Ah Chew (1881), 16 Nevada 50, 58, the Supreme Court of Nevada said: "The Amendments did not confer the right of citizenship upon the Mongolian race, except such as are born within the United States." In the courts of the United States in the Ninth Circuit, it has been uniformly held, in a series of opinions delivered by Mr. Justice Field, Judge Sawyer, Judge Deady, Judge Hanford, and Judge Morrow, that a child born in the United States of Chinese parents, subjects of the Emperor of China, is a native-born citizen of the United States. In re Look Tin Sing (1884), 10 Sawyer 358; Ex parte Chin King (1888), 13 Sawyer 333; In re Yung Sing Hee (1888) 13 Sawyer 482; In re Wy Shing (1888), 13 Sawyer 530; Gee Fook Sing v. United States (1892), 7 U.S.App. 7; In re Wong Kim Arm (1896), 71 Fed.Rep. 38. And we are not aware of any judicial decision to the contrary. During the debates in the Senate in January and February, 1866, upon the Civil Rights Bill, Mr. Trumbull, the chairman of the committee which reported the bill, moved to amend the first sentence thereof so as to read, "All persons born in the United States, and not subject to any foreign power, are hereby declared to be citizens of the United States, without distinction of color." Mr. Cowan, of Pennsylvania, asked, "Whether it will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?" Mr. Trumbull answered, "Undoubtedly," and asked, "is not the child born in this country of German parents a citizen?" Mr. Cowan replied, "The children of German parents are citizens; but Germans are not Chinese." Mr. Trumbull rejoined: "The law makes no such distinction, and the child of an Asiatic is just as much a citizen as the child of a European." Mr. Reverdy Johnson suggested that the words, "without distinction of color," should be omitted as unnecessary, and said: "The amendment, as it stands, is that all persons born in the United States, and not subject to a foreign power, shall, by virtue of birth, be citizens. To that I am willing to consent, Page 169 U. S. 698 and that comprehends all persons, without any reference to race or color, who may be so born." And Mr. Trumbull agreed that striking out those words would make no difference in the meaning, but thought it better that they should be retained to remove all possible doubt. Congressional Globe, 39th Congress, 1st sess. pt. 1, pp. 498, 573, 574. The Fourteenth Amendment of the Constitution, as originally framed by the House of Representatives, lacked the opening sentence. When it came before the Senate in May, 1866, Mr. Howard, of Michigan, moved to amend by prefixing the sentence in its present form (less the words "or naturalized"), and reading, "All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State herein they reside." Mr. Cowan objected upon the ground that the Mongolian race ought to be excluded, and said: "Is the child of the Chinese immigrant in California a citizen? . . . I do not know how my honorable friend from California looks upon Chinese, but I do know how some of his fellow citizens regard them. I have no doubt that now they are useful, and I have no doubt that, within proper restraints, allowing that State and the other Pacific States to manage them as they may see fit, they may be useful; but I would not tie their hands by the Constitution of the United States so as to prevent them hereafter from dealing with them as in their wisdom they see fit." Mr. Conness, of California, replied: "The proposition before us relates simply, in that respect, to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the Nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States. . . . We are entirely ready to accept the provision proposed in this Constitutional Amendment that the children born here of Mongolian parents shall be declared by the Constitution of Page 169 U. S. 699 the United States to be entitled to civil rights and to equal protection before the law with others." Congressional Globe, 39th Congress, 1st sess. pt. 4, pp. 2890-2892. It does not appear to have been suggested in either House of Congress that children born in the United States of Chinese parents would not come within the terms and effect of the leading sentence of the Fourteenth Amendment. Doubtless, the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment, and the debates in Congress are not admissible as evidence to control the meaning of those words. But the statements above quoted are valuable as contemporaneous opinions of jurists and statesmen upon the legal meaning of the words themselves, and are, at the least, interesting as showing that the application of the Amendment to the Chinese race was considered, and not overlooked. The acts of Congress known as the Chinese Exclusion Acts, the earliest of which was passed some fourteen years after the adoption of the Constitutional Amendment, cannot control its meaning or impair its effect, but must be construed and executed in subordination to its provisions. And the right of the United States, as exercised by and under those acts, to exclude or to expel from the country persons of the Chinese race born in China and continuing to be subjects of the Emperor of China, though having acquired a commercial domicil in the United States, has been upheld by this court for reasons applicable to all aliens alike, and inapplicable to citizens of whatever race or color. Chae Chan Ping v. United States, 130 U. S. 581 ; Nishimura Ekiu v. United States, 142 U. S. 651 ; Fong Yue Ting v. United States, 149 U. S. 698 ; Lem Moon Sing v. United States, 158 U. S. 538 ; Wong Wing v. United States, 163 U. S. 228 . In Fong Yue Ting v. United States, the right of the United States to expel such Chinese persons was placed upon the grounds that the right to exclude or to expel all aliens, or any class of aliens, absolutely or upon certain conditions, is an inherent and inalienable right of every sovereign and independent Page 169 U. S. 700 nation, essential to its safety, its independence and its welfare; that the power to exclude or to expel aliens, being a power affecting international relations, is vested in the political departments of the Government and is to be regulated by treaty or by act of Congress and to be executed by the executive authority according to the regulations so established, except so far as the judicial department has been authorized by treaty or by statute, or is required by the paramount law of the Constitution, to intervene; that the power to exclude and the power to expel aliens rest upon one foundation, are derived from one source, are supported by the same reasons, and are in truth but parts of one and the same power; and, therefore, that the power of Congress to expel, like the power to exclude aliens, or any specified class of aliens, from the country, may be exercised entirely through executive officers; or Congress may call in the aid of the judiciary to ascertain any contested facts on which an alien's right to be in the country has been made by Congress to depend. 149 U.S. 149 U. S. 711 , 149 U. S. 713 , 149 U. S. 714 . In Lem Moon Sing v. United States, the same principles were reaffirmed, and were applied to a Chinese person, born in China, who had acquired a commercial domicil in the United States and who, having voluntarily left the country on a temporary visit to China, and with the intention of returning to and continuing his residence in this country, claimed the right under a statute or treaty to reenter it, and the distinction between the right of an alien to the protection of the Constitution and laws of the United States for his person and property while within the jurisdiction thereof, and his claim of a right to reenter the United States after a visit to his native land, was expressed by the court as follows: "He is nonetheless an alien because of his having a commercial domicil in this country. While he lawfully remains here, he is entitled to the benefit of the guaranties of life, liberty and property, secured by the Constitution to all persons, of whatever race, within the jurisdiction of the United States. His personal rights when he is in this country, and such of his property as is here during his absence, are as fully protected by the supreme law of the land as if he were a native or Page 169 U. S. 701 naturalized citizen of the United States. But when he has voluntarily gone from the country, and is beyond its jurisdiction, being an alien, he cannot reenter the United States in violation of the will of the Government as expressed in enactments of the lawmaking power." 158 U.S. 547, 158 U. S. 548 . It is true that Chinese persons born in China cannot be naturalized, like other aliens, by proceedings under the naturalization laws. But this is for want of any statute or treaty authorizing or permitting such naturalization, as will appear by tracing the history of the statutes, treaties and decisions upon that subject -- always bearing in mind that statutes enacted by Congress, as well as treaties made by the President and Senate, must yield to the paramount and supreme law of the Constitution. The power, granted to Congress by the Constitution, "to establish an uniform rule of naturalization" was long ago adjudged by this court to be vested exclusively in Congress. Chirac v. Chirac (1817), 2 Wheat. 259. For many years after the establishment of the original Constitution, and until two years after the adoption of the Fourteenth Amendment, Congress never authorized the naturalization of any but "free white persons." Acts of March 26, 1790, c. 3, and January 29, 1795, c. 20; 1 Stat. 103, 414; April 14, 1802, c. 28, and March 26, 1804, c. 47; 2 Stat. 153, 292; March 22, 1816, c. 32; 3 Stat. 258; May 26, 1824, c. 186, and May 24, 1828, c. 116; 4 Stat. 69, 310. By the treaty between the United States and China, made July 28, 1868, and promulgated February 5, 1870, it was provided that "nothing herein contained shall be held to confer naturalization upon citizens of the United States in China, nor upon the subjects of China in the United States." 16 Stat. 740. By the act of July 14, 1870, c. 254, § 7, for the first time, the naturalization laws were "extended to aliens of African nativity and to persons of African descent." 16 Stat. 256. This extension, as embodied in the Revised Statutes, took the form of providing that those laws should "apply to aliens [being free white persons, and to aliens] of African nativity and to persons of African descent;" and it was amended by the act of February Page 169 U. S. 702 18, 1875, c. 80, by inserting the words above printed in brackets. Rev.Stat. (2d ed.) § 2169; 18 Stat. 318. Those statutes were held, by the Circuit Court of the United States in California, not to embrace Chinese aliens. In re Ah Yup (1878), 5 Sawyer 155. And by the act of May 6, 1882, c. 126, § 14, it was expressly enacted that "hereafter no state court or court of the United States shall admit Chinese to citizenship." 22 Stat. 61. In Fong Yue Ting v. United States (1893), above cited, this court said: "Chinese persons not born in this country have never been recognized as citizens of the United States, nor authorized to become such under the naturalization laws." 149 U.S. 149 U. S. 716 . The Convention between the United States and China of 1894 provided that "Chinese laborers or Chinese of any other class, either permanently or temporarily residing in the United States, shall have for the protection of their persons and property all rights that are given by the laws of the United States to citizens of the most favored nation, excepting the right to become naturalized citizens." 28 Stat. 111. And it has since been decided, by the same judge who held this appellee to be a citizen of the United States by virtue of his birth therein, that a native of China of the Mongolian race could not be admitted to citizenship under the naturalization laws. In re Gee Hop (1895), 71 Fed.Rep. 274. The Fourteenth Amendment of the Constitution, in the declaration that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside," contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case Page 169 U. S. 703 of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts. The power of naturalization, vested in Congress by the Constitution, is a power to confer citizenship, not a power to take it away. "A naturalized citizen," said Chief Justice Marshall, "becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the Constitution, on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the National Legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it so far as respects the individual. The Constitution then takes him up, and, among other rights, extends to him the capacity of suing in the courts of the United States, precisely under the same circumstances under which a native might sue." Osborn v. United States Bank , 9 Wheat. 738, 22 U. S. 827 . Congress having no power to abridge the rights conferred by the Constitution upon those who have become naturalized citizens by virtue of acts of Congress, a fortiori no act or omission of Congress, as to providing for the naturalization of parents or children of a particular race, can affect citizenship acquired as a birthright, by virtue of the Constitution itself, without any aid of legislation. The Fourteenth Amendment, while it leaves the power where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship. No one doubts that the Amendment, as soon as it was promulgated, applied to persons of African descent born in the United States, wherever the birthplace of their parents might have been, and yet, for two years afterwards, there was no statute authorizing persons of that race to be naturalized. If the omission or the refusal of Congress to permit certain Page 169 U. S. 704 classes of persons to be made citizens by naturalization could be allowed the effect of correspondingly restricting the classes of persons who should become citizens.by birth, it would be in the power of Congress, at any time, by striking negroes out of the naturalization laws, and limiting those laws, as they were formerly limited, to white persons only, to defeat the main purpose of the Constitutional Amendment. The fact, therefore, that acts of Congress or treaties have not permitted Chinese persons born out of this country to become citizens by naturalization, cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the Constitution, "All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States." VII. Upon the facts agreed in this case, the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth. No doubt he might himself, after coming of age, renounce this citizenship and become a citizen of the country of his parents, or of any other country; for, by our law, as solemnly declared by Congress, "the right of expatriation is a natural and inherent right of all people," and "any declaration, instruction, opinion, order or direction of any officer of the United States which denies, restricts, impairs or questions the right of expatriation, is declared inconsistent with the fundamental principles of the Republic." Rev.Stat. § 1999, reenacting act of July 7, 1868, c. 249, § 1; 15 Stat. 223, 224. Whether any act of himself or of his parents during his minority could have the same effect is at least doubtful. But it would be out of place to pursue that inquiry, inasmuch as it is expressly agreed that his residence has always been in the United States, and not elsewhere; that each of his temporary visits to China, the one for some months when he was about seventeen years old, and the other for something like a year about the time of his coming of age, was made with the intention of returning, and was followed by his actual return, to the United States, and "that said Wong Kim Ark has not, either by himself or his parents acting Page 169 U. S. 705 for him, ever renounced his allegiance to the United States, and that he has never done or committed any act or thing to exclude him therefrom." The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative. Order affirmed. * Acts of May 6, 1882, c. 126, 22 Stat. 58; July 5, 1884, c. 220, 23 Stat. 116; September 13, 1888, c. 1015, and October 1, 1888, c. 1064, 2 Stat. 476, 504; May 5, 1892, c. 60, 27 Stat. 25; August 18, 1894, c. 301, 28 Stat. 390. MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE HARLAN dissenting. I cannot concur in the opinion and judgment of the court in this case. The proposition is that a child born in this country of parents who were not citizens of the United States, and under the laws of their own country and of the United States could not become such -- as was the fact from the beginning of the Government in respect of the class of aliens to which the parents in this instance belonged -- is, from the moment of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment, any act of Congress to the contrary notwithstanding. The argument is, that, although the Constitution prior to that amendment nowhere attempted to define the words "citizens of the United States" and "natural-born citizen" as used therein, yet that it must be interpreted in the light of the English common law rule which made the place of birth the criterion of nationality; that that rule "was in force in all Page 169 U. S. 706 the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established;" and "that, before the enactment of the Civil Rights Act of 1866 and the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign Government, were native-born citizens of the United States." Thus, the Fourteenth Amendment is held to be merely declaratory except that it brings all persons, irrespective of color, within the scope of the alleged rule, and puts that rule beyond he control of the legislative power. If the conclusion of the majority opinion is correct, then the children of citizens of the United States, who have been born abroad since July 8, 1868, when the amendment was declared ratified, were, and are, aliens, unless they have, or shall on attaining majority, become citizens by naturalization in the United States, and no statutory provision to the contrary is of any force or effect. And children who are aliens by descent, but born on our soil, are exempted from the exercise of the power to exclude or to expel aliens, or any class of aliens, so often maintained by this court, an exemption apparently disregarded by the acts in respect of the exclusion of persons of Chinese descent. The English common law rule, which it is insisted was in force after the Declaration of Independence, was that "every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them) or a child born to a foreigner during the hostile occupation of any part of the territories of England." Cockburn on Nationality 7. The tie which bound the child to the Crown was indissoluble. Page 169 U. S. 707 The nationality of his parents had no bearing on his nationality. Though born during a temporary stay of a few days, the child was irretrievably a British subject. Hall on Foreign Jurisdiction, etc., § 1. The rule was the outcome of the connection in feudalism between the individual and the soil on which he lived, and the allegiance due was that of liegemen to their liege lord. It was not local and temporary, as was the obedience to the laws owed by aliens within the dominions of the Crown, but permanent and indissoluble, and not to be cancelled by any change of time or place or circumstances. And it is this rule, pure and simple, which it is asserted determined citizenship of the United States during the entire period prior to the passage of the act of April 9, 1866, and the ratification of the Fourteenth Amendment, and governed the meaning of the words "citizen of the United States" and "natural-born citizen" used in the Constitution as originally framed and adopted. I submit that no such rule obtained during the period referred to, and that those words bore no such construction; that the act of April 9, 1866, expressed the contrary rule; that the Fourteenth Amendment prescribed the same rule as the act, and that, if that amendment bears the construction now put upon it, it imposed the English common law rule on this country for the first time, and made it "absolute and unbending" just as Great Britain was being relieved from its inconveniences. Obviously, where the Constitution deals with common law rights and uses common law phraseology, its language should be read in the light of the common law; but when the question arises as to what constitutes citizenship of the nation, involving as it does international relations, and political, as contradistinguished from civil, status, international principles must be considered, and, unless the municipal law of England appears to have been affirmatively accepted, it cannot be allowed to control in the matter of construction. Nationality is essentially a political idea, and belongs to the sphere of public law. Hence, Mr. Justice Story, in Shanks v. Dupont , 3 Pet. 242, 28 U. S. 248 , said that the incapacities of femes Page 169 U. S. 708 covert at common law "do not reach their political rights, nor prevent their acquiring or losing a national character. Those political rights do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general principles of the law of nations." Twiss, in his work on the Law of actions, says that "natural allegiance, or the obligation of perpetual obedience to the government of a country wherein a man may happen to have been born, which he cannot forfeit, or cancel, or vary by any change of time or place or circumstance, is the creature of civil law, and finds no countenance in the law of nations, as it is in direct conflict with the incontestable rule of that law." Vol. 1, p. 231. Before the Revolution, the view of the publicists had been thus put by Vattel: "The natives, or natural-born citizens, are those born in the country of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this in consequence of what it owes to its own preservation, and it is presumed as matter of course that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children, and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country." Book I, c.19, § 212. "The true bond which connects the child with the body politic is not the matter of an inanimate piece of land, but the moral relations of his parentage. . . . The place of birth produces no change in the rule that children follow the condition of their fathers, for it is not naturally the place of birth that gives rights, but extraction." And to the same effect are the modern writers, as for instance, Page 169 U. S. 709 Bar, who says: "To what nation a person belongs is by the laws of all nations closely dependent on descent; it is almost an universal rule that the citizenship of the parents determines it -- that of the father where children are lawful, and, where they are bastards, that of their mother, without regard to the place of their birth, and that must necessarily be recognized as the correct canon, since nationality is, in its essence, dependent on descent." Int.Law. § 31. The framers of the Constitution were familiar with the distinctions between the Roman law and the feudal law, between obligations based on territoriality and those based on the personal and invisible character of origin, and there is nothing to show that, in the matter of nationality, they intended to adhere to principles derived from regal government, which they had just assisted in overthrowing. Manifestly, when the sovereignty of the Crown was thrown off and an independent government established, every rule of the common law and every statute of England obtaining in the Colonies in derogation of the principles on which the new government was founded was abrogated. The States, for all national purposes embraced in the Constitution, became one, united under the same sovereign authority and governed by the same laws, but they retained their jurisdiction over all persons and things within their territorial limits except where surrendered to the General Government or restrained by the Constitution, and protection to life, liberty and property rested primarily with them. So far as the jus commune, or folk-right, relating to the rights of persons was concerned, the Colonies regarded it as their birthright, and adopted such parts of it as they found applicable to their condition. Van Ness v. Pacard , 2 Pet. 137. They became sovereign and independent States, and when the Republic was created, each of the thirteen States had its own local usages, customs and common law, while, in respect of the National Government, there necessarily was no general, independent and separate common law of the United States, nor has there ever been. Wheaton v. Peter , 8 Pet. 591, 33 U. S. 658 . Page 169 U. S. 710 As to the jura corona, including therein the obligation of allegiance, the extent to which these ever were applicable in this country depended on circumstances, and it would seem quite clear that the rulemaking locality of birth, the criterion of citizenship because creating a permanent tie of allegiance, no more survived the American Revolution than the same rule survived the French Revolution. Doubtless, before the latter event, in the progress of monarchical power, the rule which involved the principle of liege homage may have become the rule of Europe; but that idea never had any basis in the United States. A Chief Justice Taney observed in Fleming v. Page , 9 How. 603, 50 U. S. 618 , though in a different connection: "It is true that most of the States have adopted the principles of English jurisprudence so far as it concerns private and individual rights. And when such rights are in question, we habitually refer to the English decisions not only with respect, but in many cases as authoritative. But in the distribution of political power between the great departments of government, there is such a wide difference between the power conferred on the President of the United States and the authority and sovereignty which belong to the English Crown that it would be altogether unsafe to reason from any supposed resemblance between them, either as regards conquest in war or any other subject where the rights and powers of the executive arm of the government are brought into question. Our own Constitution and form of government must be our only guide." And Mr. Lawrence, in his edition of Wheaton (Lawrence's Wheaton, p. 920), makes this comment: "There is, it is believed, as great a difference between the territorial allegiance claimed by an hereditary sovereign on feudal principles and the personal right of citizenship participated in by all the members of the political community, according to American institutions, as there is between the authority and sovereignty of the Queen of England and the power of the American President, and the inapplicability of English precedents is as clear in the one case as in the other. The same view, with particular application to naturalization, was early taken by Page 169 U. S. 711 the American commentator on Blackstone. Tucker's Blackstone, Vol. 1, Pt. 2, Appx. p. 96." Blackstone distinguished allegiance into two sorts, the one natural and perpetual, the other local and temporary. Natural allegiance, so-called, was allegiance resulting from birth in subjection to the Crown, and indelibility was an essential, vital and necessary characteristic. The Royal Commission to inquire into the Laws of Naturalization and Allegiance was created May 21, 1868, and, in their report, the Commissioners, among other things, say: "The allegiance of a natural-born British subject is regarded by the Common Law as indelible. We are of opinion that this doctrine of the Common Law is neither reasonable nor convenient. It is at variance with those principles on which the rights and duties of a subject should be deemed to rest; it conflicts with that freedom of action which is now recognized as most conducive to the general good, as well as to individual happiness and prosperity, and it is especially inconsistent with the practice of a State which allows to its subjects absolute freedom of emigration." However, the Commission, by a majority, declined to recommend the abandonment of the rule altogether, though "clearly of opinion that it ought not to be, as it now is, absolute and unbending;" but recommended certain modifications which were carried out in subsequent legislation. But from the Declaration of Independence to this day, the United States have rejected the doctrine of indissoluble allegiance and maintained the general right of expatriation, to be exercised in subordination to the public interests and subject to regulation. As early as the act of January 29, 1795, c. 20, 1 Stat. 414, applicants for naturalization were required to take not simply an oath to support the Constitution of the United States, but of absolute renunciation and abjuration of all allegiance and fidelity to every foreign prince or State, and particularly to the prince or State of which they were before the citizens or subjects. The statute 3 Jac. 1, c. 4, provided that promising obedience Page 169 U. S. 712 to any other prince, State, or potentate subjected the person so doing to be adjudged a traitor, and to suffer the penalty of high treason, and in respect of the act of 1795, Lord Grenville wrote to our minister, Rufus King: "No British subject can, by such a form of renunciation as that which is prescribed in the American law of naturalization, divest himself of his allegiance to his sovereign. Such a declaration of renunciation made by any of the King's subjects would, instead of operating as a protection to them, be considered an act highly criminal on their part." 2 Amer.St.Pap. 19. And see Fitch v. Weber, 6 Hare 51. Nevertheless, Congress has persisted from 1795 in rejecting the English rule and in requiring the alien who would become a citizen of the United States, in taking on himself the ties binding him to our Government, to affirmatively sever the ties that bound him to any other. The subject was examined at length in 1856, in an opinion given the Secretary of State by Attorney General Cushing, 8 Opins.Attys.Gen. 139, where the views of the writers on international law and those expressed in cases in the Federal and state courts are largely set forth, and the Attorney General says: "The doctrine of absolute and perpetual allegiance, the root of the denial of any right of emigration, is inadmissible in the United States. It was a matter involved in, and settled for us by, the Revolution which founded the American Union." "Moreover, the right of expatriation, under fixed circumstances of time and of manner, being expressly asserted in the legislatures of several of the States and confirmed by decisions of their courts, must be considered as thus made a part of the fundamental law of the United States." Expatriation included not simply the leaving of one's native country, but the becoming naturalized in the country adopted as a future residence. The emigration which the United States encouraged was that of those who could become incorporate with its people, make its flag their own, and aid in the accomplishment of a common destiny, and it was obstruction to such emigration that made one of the charges against the Crown in the Declaration. Page 169 U. S. 713 Ainslie v. Martin, 9 Mass. 454, 460 (1813); Murray v. McCarty, 2 Munf. 393 (1811); Alsberry v. Hawkins, 9 Dana 177 (1839), are among the cases cited. In Ainslie v. Martin, the indelibility of allegiance according to the common law rule was maintained, while in Murray v. McCarty and Alberry v. Hawkins, the right of expatriation was recognized as a practical and fundamental doctrine of America. There was no uniform rule so far as the States were severally concerned, and none such assumed in respect of the United States. In 1859, Attorney General Black thus advised the President (9 Op. 356): "The natural right of every free person who owes no debts and is not guilty of any crime to leave the country of his birth in good faith and for an honest purpose, the privilege of throwing off his natural allegiance and substituting another allegiance in its place -- the general right, in one word, of expatriation, is incontestable. I know that the common law of England denies it, that the judicial decisions of that country are opposed to it, and that some of our own courts, misled by British authority, have expressed, though not very decisively, the same pinion. But all this is very far from settling the question. The municipal code of England is not one of the sources from which we derive our knowledge of international law. We take it from natural reason and justice, from writers of known wisdom, and from the practice of civilized nations. All these are opposed to the doctrine of perpetual allegiance." In the opinion of the Attorney General, the United States, in recognizing the right of expatriation, declined from the beginning to accept the view that rested the obligation of the citizen on feudal principles, and proceeded on the law of nations, which was in direct conflict therewith. And the correctness of this conclusion was specifically affirmed not many years after, when the right, as the natural and inherent right of all people and fundamental in this country, was declared by Congress in the act of July 27, 1838, 15 Stat. 223, c. 249, carried forward into sections 1999 and 2000 of the Revised Statutes, in 1874. Page 169 U. S. 714 It is beyond dispute that the most vital constituent of the English common law rule has always been rejected in respect of citizenship of the United States. Whether it was also the rule at common law that the children of British subjects born abroad were themselves British subjects -- nationality being attributed to parentage, instead of locality -- has been variously determined. If this were so, of course, the statute of Edw. III was declaratory, as was the subsequent legislation. But if not, then such children were aliens, and the statute of 7 Anne and subsequent statutes must be regarded as, in some sort, acts of naturalization. On the other hand, it seems to me that the rule partus sequitur patrem has always applied to children of our citizens born abroad, and that the acts of Congress on this subject are clearly declaratory, passed out of abundant caution to obviate misunderstandings which might arise from the prevalence of the contrary rule elsewhere. Section 1993 of the Revised Statutes provides that children so born "are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States." Thus, a limitation is prescribed on the passage of citizenship by descent beyond the second generation if then surrendered by permanent nonresidence, and this limitation was contained in all the acts from 1790 down. Section 217 provides that such children shall "be considered as citizens thereof." The language of the statute of 7 Anne, c. 5, is quite different in providing that "the children of all natural-born subjects born out of the ligeance of Her Majesty, her heirs and successors, shall be deemed, adjudged and taken to be natural-born subjects of this kingdom to all intents, constructions and purposes whatsoever." In my judgment, the children of our citizens born abroad were always natural-born citizens from the standpoint of this Government. If not, and if the correct view is that they were aliens but collectively naturalized under the act of Congress which recognized them as natural-born, then those born since the Fourteenth Amendment are not citizens at all, Page 169 U. S. 715 unless they have become such by individual compliance with the general laws for the naturalization of aliens, because they are not naturalized " in the United States." By the fifth clause of the first section of article two of the Constitution, it is provided that: "No person except a natural-born citizen, or a citizen of the United States, at the time of the adoption of the Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States." In the convention, it was, says Mr. Bancroft, "objected that no number of years could properly prepare a foreigner for that place; but as men of other lands had spilled their blood in the cause of the United States, and had assisted at every stage of the formation of their institutions, on the seventh of September, it was unanimously settled that foreign-born residents of fourteen years who should be citizens at the time of the formation of the Constitution are eligible to the office of President." 2 Bancroft Hist. U.S. Const. 193. Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that "natural-born citizen" applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not. By the second clause of the second section of article one, it is provided that: "No person shall be a representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State of which he shall be chosen;" and, by the third clause of section three, that: "No person shall be a senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State for which he shall be chosen. " Page 169 U. S. 716 At that time, the theory largely obtained, as stated by Mr. Justice Story in his Commentaries on the Constitution, "that every citizen of a State is ipso facto a citizen of the United States." § 1693. Mr. Justice Curtis, in Dred Scott v. Sandford , 19 How. 396, 60 U. S. 576 , expressed the opinion that, under the Constitution of the United States "every free person born on the soil of a State, who is a citizen of that State by force of its Constitution or laws, is also a citizen of the United States." And he said: "Among the powers unquestionably possessed by the several States was that of determining what persons should and what persons should not be citizens. It was practicable to confer on the Government of the Union this entire power. It embraced what may, well enough for the purpose now in view, be divided into three parts. First: The power to remove the disabilities of alienage, either by special acts in reference to each individual case or by establishing a rule of naturalization to be administered and applied by the courts. Second: Determining what persons should enjoy the privileges of citizenship, in respect to the internal affairs of the several States. Third: What native-born persons should be citizens of the United States." "The first-named power, that of establishing a uniform rule of naturalization, was granted, and here the grant, according to its terms, stopped. Construing a Constitution containing only limited and defined powers of government, the argument derived from this definite and restricted power to establish a rule of naturalization must be admitted to be exceedingly strong. I do not say it is necessarily decisive. It might be controlled by other parts of the Constitution. But when this particular subject of citizenship was under consideration, and, in the clause specially intended to define the extent of power concerning it, we find a particular part of this entire power separated from the residue and conferred on the General Government, there arises a strong presumption that this is all which is granted, and that the residue is left to the States and to the people. And this presumption is, in my opinion, converted into a certainty by an examination of all such other clauses of the Constitution as touch this subject. " Page 169 U. S. 717 But in that case, Mr. Chief Justice Taney said: "The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the government through their representatives. They are what we familiarly call the 'sovereign people,' and every citizen is one of this people and a constituent member of this sovereignty. In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of United States. He may have all of the rights and privileges of a citizen of a State and yet not be entitled to the rights and privileges of a citizen in any other State. For, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights. But this character, of course, was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each State may still confer them upon an alien, or anyone it thinks proper, or upon any class or description of persons; yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire would be restricted to the State which gave them. The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so. Consequently, no State, since the adoption of the Constitution, can by naturalizing an alien invest him with the rights and privileges secured to a citizen of a State under the Federal Page 169 U. S. 718 Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen, and clothed with all the rights and immunities which the Constitution and laws of the State attached to that character." Plainly, the distinction between citizenship of the United States and citizenship of a State thus pointed out involved then, as now, the complete rights of the citizen internationally, as contradistinguished from those of persons not citizens of the United States. The English common law rule recognized no exception in he instance of birth during the mere temporary or accidental sojourn of the parents. As allegiance sprang from the place of birth regardless of parentage and supervened at the moment of birth, the inquiry whether the parents were permanently or only temporarily within the realm was wholly immaterial. And it is settled in England that the question of domicil is entirely distinct from that of allegiance. The one relates to the civil, and the other to the political, status. Udny v. Udny, L.R. 1 H.L.Sc. 441, 457. But a different view as to the effect of permanent abode on nationality has been expressed in this country. In his work on Conflict of Laws, § 48, Mr. Justice Story, treating the subject as one of public law, said: "Persons who are born in a country are generally deemed to be citizens of that country. A reasonable qualification of the rule would seem to be that it should not apply to the children of parents who were in itinere in the country, or who were abiding there for temporary purposes, as for health or curiosity, or occasional business. It would be difficult, however, to assert that, in the present state of public law, such a qualification is universally established." Undoubtedly all persons born in a country are presumptively citizens thereof, but the presumption is not irrebuttable. In his Lectures on Constitutional Law, p. 79, Mr. Justice Miller remarked: "If a stranger or traveler passing through, or temporarily residing in, this country, who has not himself been naturalized and who claims to owe no allegiance to our Government, has a child born here which goes out of the country Page 169 U. S. 719 with its father, such child is not a citizen of the United States, because it was not subject to its jurisdiction." And to the same effect are the rulings of Mr. Secretary Frelinghuysen in the matter of Hausding, and Mr. Secretary Bayard in the matter of Greisser. Hausding was born in the United States, went to Europe, and, desiring to return, applied to the minister of the United States for a passport, which was refused on the ground that the applicant was born of Saxon subjects temporarily in the United States. Mr. Secretary Frelinghuysen wrote to Mr. Kasson, our minister: "You ask 'Can one born a foreign subject, but within the United States, make the option after his majority, and while still living abroad, to adopt the citizenship of his birthplace? It seems not, and that he must change his allegiance by emigration and legal process of naturalization.' Sections 1992 and 1993 of the Revised Statutes clearly show the extent of existing legislation; that the fact of birth, under circumstances implying alien subjection, establishes, of itself, no right of citizenship, and that the citizenship of a person so born is to be acquired in some legitimate manner through the operation of statute. No statute contemplates the acquisition of the declared character of an American citizen by a person not at the time within the jurisdiction of the tribunal of record which confers that character." Greisser was born in the State of Ohio in 1867, his father being a German subject and domiciled in Germany, to which country the child returned. After quoting the act of 1866 and the Fourteenth Amendment, Mr. Secretary Bayard said: "Richard Greisser was no doubt born in the United States, but he was on his birth 'subject to a foreign power,' and 'not subject to the jurisdiction of the United States.' He was not, therefore, under the statute and the Constitution a citizen of the United States by birth, and it is not pretended that he has any other title to citizenship." 2 Whart.Int.Dig. 399. The Civil Rights Act became a law April 9, 1866 (14 Stat. 27, c. 31), and provided: "That all persons born in the United States and not subject to any foreign power, excluding Indians Page 169 U. S. 720 not taxed, are hereby declared to be citizens of the United States." And this was reenacted June 22, 1874, in the Revised Statutes, section 1992. . The words "not subject to any foreign power" do not, in themselves, refer to mere territorial jurisdiction, for the persons referred to are persons born in the United States. All such persons are undoubtedly subject to the territorial jurisdiction of the United States, and yet the act concedes that nevertheless they may be subject to the political jurisdiction of a foreign government. In other words, by the terms of the act, all persons born in the United States, and not owing allegiance to any foreign power, are citizens. The allegiance of children so born is not the local allegiance arising from their parents' merely being domiciled in the country, and it is single and not double, allegiance. Indeed, double allegiance, in the sense of double nationality, has no place in our law, and the existence of a man without a country is not recognized. But it is argued that the words "and not subject to any foreign power" should be construed as excepting from the operation of the statute only the children of public ministers and of aliens born during hostile occupation. Was there any necessity of excepting them? And if there were others described by the words, why should the language be construed to exclude them? Whether the immunity of foreign ministers from local allegiance rests on the fiction of extraterritoriality or on the waiver of territorial jurisdiction by receiving them as representatives of other sovereignties, the result is the same. They do not owe allegiance otherwise than to their own governments, and their children cannot be regarded as born within any other. And this is true as to the children of aliens within territory in hostile occupation, who necessarily are not under the protection of, nor bound to render obedience to, the sovereign whose domains are invaded; but it is not pretended that the children of citizens of a government so situated would not become its citizens a their birth, as the permanent allegiance Page 169 U. S. 721 of their parents would not be severed by the mere fact of the enemy's possession. If the act of 1866 had not contained the words, "and not subject to any foreign power," the children neither of public ministers nor of aliens in territory in hostile occupation would have been included within its terms on any proper construction, for their birth would not have subjected them to ties of allegiance, whether local and temporary or general and permanent. There was no necessity as to them for the insertion of the words, although they were embraced by them. But there were others in respect of whom the exception was needed, namely, the children of aliens, whose parents owed local and temporary allegiance merely, remaining subject to a foreign power by virtue of the tie of permanent allegiance, which they had not severed by formal abjuration or equivalent conduct, and some of whom were not permitted to do so if they would. And it was to prevent the acquisition of citizenship by the children of such aliens merely by birth within the geographical limits of the United States that the words were inserted. Two months after the statute was enacted, on June 16, 1866, the Fourteenth Amendment was proposed, and declared ratified July 28, 1868. The first clause of the first section reads: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The act was passed and the amendment proposed by the same Congress, and it is not open to reasonable doubt that the words "subject to the jurisdiction thereof" in the amendment were used as synonymous with the words "and not subject to any foreign power" of the act. The jurists and statesmen referred to in the majority opinion, notably Senators Trumbull and Reverdy Johnson, concurred in that view, Senator Trumbull saying: "What do we mean by subject to the jurisdiction of the United States?' Not owing allegiance to anybody else; that is what it means." And Senator Johnson: "Now, all that this amendment provides Page 169 U. S. 722 is that all persons born within the United States and not subject to some foreign power -- for that no doubt is the meaning of the committee who have brought the matter before us -- shall be considered as citizens of the United States." Cong.Globe, 1st Sess. 39th Cong., 2893 et seq. This was distinctly so ruled in Elk v. Wilkins, 112 U. S. 94 , and no reason is perceived why the words were used if they apply only to that obedience which all persons not possessing immunity therefrom must pay the laws of the country in which they happen to be. Dr. Wharton says that the words "subject to the jurisdiction" must be construed in the sense which international law attributes to them, but that the children of our citizens born abroad, and of foreigners born in the United States, have the right on arriving at full age to elect one allegiance and repudiate the other. Whart. Conflict of Laws, §§ 10, 11, 12. The Constitution and statutes do not contemplate double allegiance, and how can such election be determined? By section 1993 of the Revised Statutes, the citizenship of the children of our citizens born abroad may be terminated in that generation by their persistent abandonment of their country, while, by sections 2167 and 2168, special provision is made for the naturalization of alien minor residents, on attaining majority, by dispensing with the previous declaration of intention and allowing three years of minority on the five years' residence required, and also for the naturalization of children of aliens whose parents have died after making declaration of intention. By section 2172, children of naturalized citizens are to be considered citizens. While, then, the naturalization of the father carries with it that of his minor children, and his declaration of intention relieves them from the preliminary steps for naturalization, and minors are allowed to count part of the residence of their minority on the whole term required, and are relieved from the declaration of intention, the statutes make no provision for formal declaration of election by children born in this country of alien parents on attaining majority. The point, however, before us, is whether permanent allegiance Page 169 U. S. 723 is imposed at birth without regard to circumstances -- permanent until thrown off and another allegiance acquired by formal acts -- not local and determined by a mere change on domicil. The Fourteenth Amendment came before the court in the Slaughterhouse Cases , 16 Wall. 36, 83 U. S. 73 , at December term, 1872, the cases having been brought up by writ of error in May, 180, 10 Wall. 278, and it was held that the first clause was intended to define citizenship of the United States and citizenship of a State, which definitions recognized the distinction between the one and the other; that the privileges and immunities of citizens of the States embrace generally those fundamental civil rights for the security of which organized society was instituted, and which remain, with certain exceptions mentioned in the Federal Constitution, under the care of the state governments; while the privileges and immunities of citizens of the United States are those which arise out of the nature and essential character of the National government, the provisions of its Constitution, or its laws and treaties made in pursuance thereof, and that it is the latter which are placed under the protection of Congress by the second clause. And Mr. Justice Miller, delivering the opinion of the court, in analyzing the first clause, observed that "the phrase 'subject to the jurisdiction thereof' was intended to exclude from its operation children of ministers, consuls and citizens or subjects of foreign States, born within the United States." That eminent judge did not have in mind the distinction between persons charged with diplomatic functions and those who were not, but was well aware that consuls are usually the citizens or subjects of the foreign States from which they come, and that, indeed, the appointment of natives of the places where the consular service is required, though permissible, has been pronounced objectionable in principle. His view was that the children of "citizens or subjects of foreign States," owing permanent allegiance elsewhere and only local obedience here, are not otherwise subject to the jurisdiction of the United States than are their parents. Page 169 U. S. 724 Mr. Justice Field dissented from the judgment of the court, and subsequently, in the case of Look Tin Sing, 10 Sawyer 353, in the Circuit Court for the District of California, held children born of Chinese parents in the United States to be citizens, and the cases subsequently decided in the Ninth Circuit followed that ruling. Hence the conclusion in this case, which the able opinion of the District Judge shows might well have been otherwise. I do not insist that, although what was said was deemed essential to the argument and a necessary part of it, the point was definitively disposed of in the Slaughterhouse Cases, particularly as Chief Justice Waite in Minor v. Happersett , 21 Wall. 162, 88 U. S. 167 , remarked that there were doubts which, for the purposes of the case then in hand, it was not necessary to solve. But that solution is furnished in Elk v. Wilkins, 112 U. S. 94 , 112 U. S. 101 , where the subject received great consideration and it was said: "By the Thirteenth Amendment of the Constitution, slavery was prohibited. The main object of the opening sentence of the Fourteenth Amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes, Scott v. Sandford , 19 How. 393, and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States, and of the State in which they reside. Slaughterhouse Cases , 16 Wall. 36, 83 U. S. 73 ; Strauder v. West Virginia, 100 U. S. 303 , 100 U. S. 306 ." "This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof.' The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do Page 169 U. S. 725 to the time of naturalization in the other. Persons not this subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired." To be "completely subject" to the political jurisdiction of the United States is to be in no respect or degree subject to the political jurisdiction of any other government. Now I take it that the children of aliens, whose parents have not only not renounced their allegiance to their native country, but are forbidden by it system of government, as well as by its positive laws, from doing so, and are not permitted to acquire another citizenship by the laws of the country into which they come, must necessarily remain themselves subject to the same sovereignty as their parents, and cannot, in the nature of things, be, any more than their parents, completely subject to the jurisdiction of such other country. Generally speaking, I understand the subjects of the Emperor of China -- that ancient Empire, with its history of thousands of years and its unbroken continuity in belief, traditions and government, in spite of revolutions and changes of dynasty -- to be bound to him by every conception of duty and by every principle of their religion, of which filial piety is the first and greatest commandment, and formerly, perhaps still, their penal laws denounced the severest penalties on those who renounced their country and allegiance, and their abettors, and, in effect, held the relatives at home of Chinese in foreign lands as hostages for their loyalty.* And Page 169 U. S. 726 whatever concession may have been made by treaty in the direction of admitting the right of expatriation in some sense, they seem in the United States to have remained pilgrims and sojourners, as all their fathers were. 149 U.S. 149 U. S. 717 . At all events, they have never been allowed by our laws to acquire our nationality, and, except in sporadic instances, do not appear ever to have desired to do so. The Fourteenth Amendment was not designed to accord citizenship to persons so situated and to cut off the legislative power from dealing with the subject. The right of a nation to expel or deport foreigners who have not been naturalized or taken an steps toward becoming citizens of a country is as absolute and unqualified as the right to prohibit and prevent their entrance into the country. 149 U.S. 149 U. S. 707 . But can the persons expelled be subjected to "cruel and unusual punishments" in the process of expulsion, as would be the case if children born to them in this country were separated from them on their departure, because citizens of the United States? Was it intended by this amendment to tear up parental relations by the roots? The Fifteenth Amendment provides that "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude." Was it intended thereby that children of aliens should, by virtue of being born in the Page 169 U. S. 727 United States, be entitled on attaining majority to vote irrespective of the treaties and laws of the United States in regard to such aliens? In providing that persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens, the Fourteenth Amendment undoubtedly had particular reference to securing citizenship to the members of the colored race, whose servile status had been obliterated by the Thirteenth Amendment and who had been born in the United States, but were not and never had been subject to any foreign power. They were not aliens (and, even if they could be so regarded, this operated as a collective naturalization), and their political status could not be affected by any change of the laws for the naturalization of individuals. Nobody can deny that the question of citizenship in a nation is of the most vital importance. It is a precious heritage, as well as an inestimable acquisition, and I cannot think that any safeguard surrounding it was intended to be thrown down by the amendment. In suggesting some of the privileges and immunities of national citizenship in the Slaughterhouse Cases, Mr. Justice Miller said: "Another privilege of a citizen of the United States is to demand the care and protection of the Federal Government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this, there can be no doubt, nor that the right depends upon his character as a citizen of the United States." Mr. Hall says in his work on Foreign Jurisdiction, etc., §§ 2, 5, the principle is that "the legal relations by which a person is encompassed in his country of birth and residence cannot be wholly put aside when he goes abroad for a time; many of the acts which he may do outside his native state have inevitable consequences within it. He may, for many purposes, be temporarily under the control of another sovereign than his own, and he may be bound to yield to a foreign government a large measure of obedience; but his own State still possesses a right to his allegiance; he is still an integral part of the national community. A State therefore can enact laws, Page 169 U. S. 728 enjoining or forbidding acts, and defining legal relations, which apply to its subjects abroad in common with those within its dominions. It can declare under what conditions it will regard as valid, acts done in foreign countries which profess to have legal effect; it can visit others with penalties; it can estimate circumstances and facts as it chooses." On the other hand, the "duty of protection is correlative to the rights of a sovereign over his subjects; the maintenance of a bond between a State and its subjects while they are abroad implies that the former must watch over and protect them within the due limit of the rights of other States. . . . It enables governments to exact reparation for oppression from which their subjects have suffered, or for injuries done to them otherwise than by process of law, and it gives the means of guarding them against the effect of unreasonable laws, of laws totally out of harmony with the nature or degree of civilization by which a foreign power affects to be characterized, and finally of an administration of the laws had beyond a certain point. When, in these directions, a State grossly fails in its duties; when it is either incapable of ruling or rules with patent injustice, the right of protection emerges in the form of diplomatic remonstrance, and, in extreme cases, of ulterior measures. It provides a material sanction for rights; it does not offer a theoretic foundation. It does not act within a foreign territory with the consent of the sovereign; it acts against him contentiously from without." The privileges or immunities which, by the second clause of the amendment, the States are forbidden to abridge are the privileges or immunities pertaining to citizenship of the United States, but that clause also places an inhibition on the States from depriving any person of life, liberty or property, and from denying "to any person within its jurisdiction, the equal protection of the laws," that is, of its own laws -- the laws to which its own citizens are subjected. The jurisdiction of the State is necessarily local, and the limitation relates to rights primarily secured by the States, and not by the United States. Jurisdiction, as applied to the General Government, embraces international relations; as applied Page 169 U. S. 729 to the State, it refers simply to its power over persons and things within its particular limits. These considerations lead to the conclusion that the rule in respect of citizenship of the United States prior to the Fourteenth Amendment differed from the English common law rule in vital particulars, and, among others, in that it did not recognize allegiance as indelible, and in that it did recognize an essential difference between birth during temporary, and birth during permanent, residence. If children born in the United States were deemed presumptively and generally citizens, this was not so when they were born of aliens whose residence was merely temporary, either in fact or in point of law. Did the Fourteenth Amendment impose the original English common law rule as a rigid rule on this country? Did the amendment operate to abridge the treaty-making power, or the power to establish an uniform rule of naturalization? I insist that it cannot be maintained that this Government is unable, through the action of the President, concurred in by the Senate, to make a treaty with a foreign government providing that the subjects of that government, although allowed to enter the United States, shall not be made citizens thereof, and that their children shall not become such citizens by reason of being born therein. A treaty couched in those precise terms would not be incompatible with the Fourteenth Amendment unless it be held that that amendment has abridged the treaty-making power. Nor would a naturalization law excepting persons of a certain race and their children be invalid unless the amendment has abridged the power of naturalization. This cannot apply to our colored fellow-citizens, who never were aliens -- were never beyond the jurisdiction of the United States. "Born in the United States, and subject to the jurisdiction thereof," and "naturalized in the United States, and subject to the jurisdiction thereof," mean born or naturalized under such circumstances as to be completely subject to that jurisdiction, that is as completely as citizens of the United States, Page 169 U. S. 730 who are, of course, not subject to any foreign power, and can of right claim the exercise of the power of the United States on their behalf wherever they may be. When, then, children are born in the United States to the subjects of a foreign power, with which it is agreed by treaty that they shall not be naturalized thereby, and as to whom our own law forbids them to be naturalized, such children are not born so subject to the jurisdiction as to become citizens, and entitled on that ground to the interposition of our Government, if they happen to be found in the country of their parents' origin and allegiance, or any other. Turning to the treaty between the United States and China, concluded July 28, 1868, the ratifications of which were exchanged November 28, 1869, and the proclamation made February 5, 1870, we find that, by its sixth article, it was provided: "Citizens of the United States visiting or residing in China shall enjoy the same privileges, immunities or exemptions in respect of travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation. And, reciprocally, Chinese subjects residing in the United States shall enjoy the same privileges, immunities and exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation. But nothing herein contained shall be held to confer naturalization on the citizens of the United States in China, nor upon the subjects of China in the United States." It is true that, in the fifth article, the inherent right of man to change his home or allegiance was recognized, as well as "the mutual advantage of the free migration and emigration of their citizens and subjects, respectively, from the one country to the other, for the purposes of curiosity, of traffic, or as permanent residents." All this, however, had reference to an entirely voluntary emigration for these purposes, and did not involve an admission of change of allegiance unless both countries assented, but the contrary, according to the sixth article. By the convention of March 17, 1894, it was agreed "that Chinese laborers or Chinese of any other class, either permanently Page 169 U. S. 731 or temporarily residing within the United States, shall have for the protection of their persons and property all rights that are given by the laws of the United States to citizens of the most favored nation, excepting the right to become naturalized citizens." These treaties show that neither Government desired such change, nor assented thereto. Indeed, if the naturalization laws of the United States had provided for the naturalization of Chinese persons, China manifestly would not have been obliged to recognize that her subjects had changed their allegiance thereby. But our laws do not so provide, and, on the contrary, are in entire harmony with the treaties. I think it follows that the children of Chinese born in this country do not, ipso facto, become citizens of the United States unless the Fourteenth Amendment overrides both treaty and statute. Does it bear that construction, or rather is it not the proper construction that all persons born in the United States of parents permanently residing here and susceptible of becoming citizens, and not prevented therefrom by treaty or statute, are citizens, and not otherwise But the Chinese, under their form of government, the treaties and statutes, cannot become citizens, nor acquire a permanent home here, no matter what the length of their stay may be. Wharton Confl.Laws, § 1. In Fong Yue Ting v. United States, 149 U. S. 698 , 149 U. S. 717 , it was said in respect of the treaty of 1868: "After some years' experience under that treaty, the Government of the United States was brought to the opinion that the presence within our territory of large numbers of Chinese laborers, of a distinct race and religion, remaining strangers in the land, residing apart by themselves, tenaciously adhering to the customs and usages of their own country, unfamiliar with our institutions, and apparently incapable of assimilating with our people, might endanger good order and be injurious to the public interests, and therefore requested and obtained from China a modification of the treaty." It is not to be admitted that the children of persons so situated become citizens by the accident of birth. On the contrary, Page 169 U. S. 732 I am of opinion that the President and Senate by treaty, and the Congress by naturalization, have the power, notwithstanding the Fourteenth Amendment, to prescribe that all persons of a particular race, or their children, cannot become citizens, and that it results that the consent to allow such persons to come into and reside within our geographical limits does not carry with it the imposition of citizenship upon children born to them while in this country under such consent, in spite of treaty and statute. In other words, the Fourteenth Amendment does not exclude from citizenship by birth children born in the United States of parents permanently located therein, and who might themselves become citizens; nor, on the other hand, does it arbitrarily make citizens of children born in the United States of parents who, according to the will of their native government and of this Government, are and must remain aliens. Tested by this rule, Wong in Ark never became and is not a citizen of the United States, and the order of the District Court should be reversed. I am authorized to say that MR JUSTICE HARLAN concurs in this dissent. MR. JUSTICE McKENNA, not having been a member of the court when this case was argued, took no part in the decision. * The fundamental laws of China have remained practically unchanged since the second century before Christ. The statutes have from time to time undergone modifications, but there does not seem to be any English or French translation of the Chinese Penal Code later than that by Staunton published in 1810. That code provided: "All persons renouncing their country and allegiance, or devising the means thereof, shall be beheaded, and in the punishment of this offence, no distinction shall be made between principals and accessories. The property of all such criminals shall be confiscated, and their wives and children distributed as slave to the great officers of State. . . . The parents, grandparents, brothers and grandchildren of such criminals, whether habitually living with them under the same roof or not, shall be perpetually banished to the distance of 2000 lee. " "All those who purposely conceal and connive at the perpetration of this crime shall be strangled. Those who inform against, and bring to justice, criminals of this description shall be rewarded with the whole of their property." "Those who are privy to the perpetration of this crime, and yet omit to give any notice or information thereof to the magistrates, shall be punished with 100 blows and banished perpetually to the distance of 3000 lee. " "If the crime is contrived, but not executed, the principal shall be strangled, and all the accessories shall, each of them, be punished with 100 blows, and perpetual banishment to the distance of 3000 lee. . . ." Staunton's Penal Code of China 272, § 255.

Here is a summary of the key points from the case: Wong Kim Ark, a person of Chinese descent born in the United States to parents who were Chinese subjects, was denied re-entry into the United States after a temporary visit to China. He filed a writ of habeas corpus, arguing that he was a U.S. citizen by birth under the Fourteenth Amendment. The United States District Court for the Northern District of California issued the writ, and the case was appealed to the Supreme Court. The main issue was whether a child born in the United States to alien parents became a U.S. citizen at birth. The Supreme Court held that Wong Kim Ark was indeed a citizen of the United States by birth, based on the Citizenship Clause of the Fourteenth Amendment, which states, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The Court interpreted the Amendment to mean that citizenship is acquired by place of birth, and that the Amendment overrode any previous understanding of common law that children of aliens were not citizens. The Court also noted that the parents' race and nationality were irrelevant to the citizenship status of their child born on U.S. soil. This case established an important precedent for birthright citizenship in the United States, affirming that individuals born on U.S. soil are citizens regardless of the citizenship status of their parents.

Immigration & National Security

Ex Parte Quirin

https://supreme.justia.com/cases/federal/us/317/1/

U.S. Supreme Court Ex Parte Quirin, 317 U.S. 1 (1942) Ex Parte Quirin{| 317 U.S. 1 fn1|1} Nos. ___, Original MOTIONS FOR LEAVE TO FILE PETITIONS FOR WRITS OF HABEAS CORPUS and United States ex rel. Quirin v. Cox{| 317 U.S. 1 fn2|2} Nos. 1-7 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA Argued July 29-30, 1942 Decided July 31, 1942 Per Curiam decision filed, July 31, 1942{| 317 U.S. 1 fn3|3} Full Opinion filed, October 29, 1942{| 317 U.S. 1 fn4|4} 317 U.S. 1 Syllabus 1. A federal court may refuse to issue a writ of habeas corpus where the facts alleged in the petition, if proved, would not warrant discharge of the prisoner. P. 317 U. S. 24 . Page 317 U. S. 2 2. Presentation to the District Court of the United States for the District of Columbia of a petition for habeas corpus was the institution of a suit, and denial by that court of leave to file the petition was a judicial determination of a case or controversy reviewable by appeal to the U.S. Court of Appeals for the District of Columbia and in this Court by certiorari. P. 317 U. S. 24 . 3. The President's Proclamation of July 2, 1942, declaring that all persons who are citizens or subjects of, or who act under the direction of, any nation at war with the United States, and who during time of war enter the United States through coastal or boundary defenses, and are charged with committing or attempting to commit sabotage, espionage, hostile acts, or violations of the law of war, "shall be subject to the law of war and to the jurisdiction of military tribunals," does not bar accused persons from access to the civil courts for the purpose of determining the applicability of the Proclamation to the particular case; nor does the Proclamation, which in terms denied to such persons access to the courts, nor the enemy alienage of the accused, foreclose consideration by the civil courts of the contention that the Constitution and laws of the United States forbid their trial by military commission. P. 317 U. S. 24 . 4. In time of war between the United States and Germany, petitioners, wearing German military uniforms and carrying explosives, fuses, and incendiary and time devices, were landed from German submarines in the hours of darkness, at places on the Eastern seaboard of the United States. Thereupon they buried the uniforms and supplies, and proceeded, in civilian dress, to various places in the United States. All had received instructions in Germany from an officer of the German High Command to destroy war industries and war facilities in the United States, for which they or their relatives in Germany were to receive salary payments from the German Government. They also had been paid by the German Government during their course of training at a sabotage school, and had with them, when arrested, substantial amounts of United States currency, which had been handed to them by an officer of the German High Command, who had instructed them to wear their German uniforms while landing in the United States. Specification 1 of the charges on which they were placed on trial before a military commission charged that they, "being enemies of the United States and acting for . . . the German Reich, a belligerent enemy nation, secretly and covertly passed, in civilian dress, contrary to the law of war, through the military and naval lines and defenses of the United Page 317 U. S. 3 States . . . and went behind such lines, contrary to the law of war, in civilian dress . . . for the purpose of committing . . . hostile acts, and, in particular, to destroy certain war industries, war utilities and war materials within the United States." Held: (1) That the specification sufficiently charged an offense against the law of war which the President was authorized to order tried by a military commission; notwithstanding the fact that, ever since their arrest, the courts in the jurisdictions where they entered the country and where they were arrested and held for trial were open and functioning normally. Ex parte Milligan , 4 Wall. 2, distinguished. Pp. 317 U. S. 21 , 317 U. S. 23 , 317 U. S. 36 , 317 U. S. 48 . (2) The President's Order of July 2, 1942, so far as it lays down the procedure to be followed on the trial before the Commission and on the review of its findings and sentence, and the procedure in fact followed by the Commission, were not in conflict with Articles of War 38, 43, 46, 50 1/2 and 70. P. 317 U. S. 46 . (3) The petitioners were in lawful custody for trial by a military commission, and, upon petitions for writs of habeas corpus, did not show cause for their discharge. P. 317 U. S. 47 . 5. Articles 15, 38 and 46 of the Articles of War, enacted by Congress, recognize the "military commission" as an appropriate tribunal for the trial and punishment of offenses against the law of war not ordinarily tried by courts-martial. And by the Articles of War, especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenses against the law of war in appropriate cases. Pp. 317 U. S. 26 -28. 6. Congress, in addition to making rules for the government of our Armed Forces, by the Articles of War has exercised its authority under Art. I, § 8, cl. 10 of the Constitution to define and punish offenses against the law of nations, of which the law of war is a part, by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals. And by Article of War 15, Congress has incorporated by reference, as within the jurisdiction of military commissions, all offenses which are defined as such by the law of war and which may constitutionally be included within that jurisdiction. Pp. 317 U. S. 28 , 317 U. S. 30 . 7. This Court has always recognized and applied the law of war as including that part of the law of nations which prescribes, for the Page 317 U. S. 4 conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. P. 317 U. S. 27 . 8. The offense charged in this case was an offense against the law of war, the trial of which by military commission had been authorized by Congress, and which the Constitution does not require to be tried by jury. Ex parte Milligan , 4 Wall. 2, distinguished. P. 317 U. S. 45 . 9. By the law of war, lawful combatants are subject to capture and detention as prisoners of war; unlawful combatants, in addition, are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. P. 317 U. S. 30 . 10. It has long been accepted practice by our military authorities to treat those who, during time of war, pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, as unlawful combatants punishable as such by military commission. This practice, accepted and followed by other governments, must be regarded as a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War. P. 317 U. S. 35 . 11. Citizens of the United States who associate themselves with the military arm of an enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war. P. 317 U. S. 37 . 12. Even when committed by a citizen, the offense here charged is distinct from the crime of treason defined in Article III, § 3 of the Constitution, since the absence of uniform essential to one is irrelevant to the other. P. 317 U. S. 38 . 13. Article III, § 2, and the Fifth and Sixth Amendments of the Constitution did not extend the right to demand a jury to trials by military commission or require that offenses against the law of war, not triable by jury at common law, be tried only in civil courts. P. 317 U. S. 38 . 14. Section 2 of the Act of Congress of April 10, 1806, derived from the Resolution of the Continental Congress of August 21, 1776, and which imposed the death penalty on alien spies "according to the law and usage of nations, by sentence of a general court martial," was a contemporary construction of Article III, § 2 of the Constitution and of the Fifth and Sixth Amendments, as not foreclosing trial by military tribunals, without a jury, for offenses against the law of war Page 317 U. S. 5 committed by enemies not in or associated with our Armed Forces. It is a construction which has been followed since the founding of our government, and is now continued in the 82nd Article of War. Such a construction is entitled to great respect. P. 317 U. S. 41 . 15. Since violation of the law of war is adequately alleged in this case, the Court finds no occasion to consider the validity of other specifications based on the 81st and 82nd Article of War, or to construe those articles or decide upon their constitutionality a so construed. P. 317 U. S. 46 . Leave to file petitions for habeas corpus in this Court denied. Orders of District Court (47 F.Supp. 431), affirmed. The Court met in Special Term, on Wednesday, July 29, 1942, pursuant to a call by the Chief Justice having the approval of all the Associate Justices. The Chief Justice announced that the Court had convened in Special Term in order that certain applications might be presented to it and argument be heard in respect thereto. In response to an inquiry by the Chief Justice, the Attorney General stated that the Chief Justice's son, Major Lauson H. Stone, U.S.A. had, under orders, assisted defense counsel before the Military Commission, in the case relative to which the Special Term of the Court was called; but that Major Stone had had no connection with this proceeding before this Court. Therefore, said the Attorney General, counsel for all the respective parties in this proceeding joined in urging the Chief Justice to participate in the consideration and decision of the matters to be presented. Colonel Kenneth C. Royall, of counselor the petitioners, concurred in the statement and request of the Attorney General. The applications, seven in number ( ante, p. 1, n 1), first took the form of petitions to this Court for leave to file petitions for writs of habeas corpus to secure the release of the petitioners from the custody of Brigadier General Page 317 U. S. 6 Albert L. Cox, U.S.A. Provost Marshal of the Military District of Washington, who, pursuant to orders, was holding them in that District for and during a trial before a Military Commission constituted by an Order of the President of the United States. During the course of the argument, the petitioners were permitted to file petitions for writs of certiorari, directed to the United States Court of Appeals for the District of Columbia, to review, before judgment by that Court, orders then before it by appeal by which the District Court for the District of Columbia had denied applications for leave to file petitions for writs of habeas corpus. After the argument, this Court delivered a Per Curiam Opinion, disposing of the cases (footnote, p. 317 U. S. 18 ). A full opinion, which is the basis of this Report, was filed with the Clerk of the Court on October 29, 1942. Page 317 U. S. 18 [ Footnote 1 ] No. ___, Original, Ex parte Richard Quirin; No. ___, Original, Ex parte Herbert Hans Haupt; No. ___, Original, Ex parte Edward John Kerling; No. ___, Original, Ex parte Ernest Peter Burger; No. ___, Original, Ex parte Heinrich Harm Heinck; No. ___, Original, Ex parte Werner Thiel; and No. ___, Original, Ex parte Hermann Otto Neubauer. [ Footnote 2 ] No. 1, United States ex rel. Quirin v. Cox, Provost Marshal; No. 2, United States ex rel. Haupt v. Cox, Provost Marshal; No. 3, United States ex rel. Kerlin v. Cox, Provost Marshal; No. 4, United States ex rel. Burger v. Cox, Provost Marshal; No. 5, United States ex rel. Heinck v. Cox, Provost Marshal; No. 6, United States ex rel. Thiel v. Cox, Provost Marshal, and No. 7, United States ex rel. Neubauer v. Cox, Provost Marshal. [ Footnote 3 ] The following is the per curiam opinion filed July 31, 1942: "PER CURIAM." "In these causes, motions for leave to file petitions for habeas corpus were presented to the United States District Court for the District of Columbia, which entered orders denying the motions. Motions for leave to file petitions for habeas corpus were then presented to this Court, and the merits of the applications were fully argued at the Special Term of Court convened on July 29, 1942. Counsel for petitioners subsequently filed a notice of appeal from the order of the District Court to the United States Court of Appeals for the District of Columbia, and they have perfected their appeals to that court. They have presented to this Court petitions for writs of certiorari before judgment of the United States Court of Appeals for the District of Columbia, pursuant to 28 U.S.C. § 347(a). The petitions are granted. In accordance with the stipulation between counsel for petitioners and for the respondent, the papers filed and argument had in connection with the applications for leave to file petitions for habeas corpus are made applicable to the certiorari proceedings." "The Court has fully considered the questions raised in these cases and thoroughly argued at the bar, and has reached its conclusion upon them. It now announces its decision and enters its judgment in each case, in advance of the preparation of a full opinion, which necessarily will require a considerable period of time for its preparation and which, when prepared, will be filed with the Clerk." "The Court holds:" "(1) That the charges preferred against petitioners on which they are being tried by military commission appointed by the order of the President of July 2, 1942, allege an offense or offenses which the President is authorized to order tried before a military commission." "(2) That the military commission was lawfully constituted." "(3) That petitioners are held in lawful custody for trial before the military commission, and have not shown cause for being discharged by writ of habeas corpus." "The motions for leave to file petitions for writs of habeas corpus are denied." "The orders of the District Court are affirmed. The mandates are directed to issue forthwith." "MR. JUSTICE MURPHY took no part in the consideration or decision of these cases." [ Footnote 4 ] Post, p. 317 U. S. 18 . MR. CHIEF JUSTICE STONE delivered the opinion of the Court. These cases are brought here by petitioners' several application for leave to file petitions for habeas corpus in this Court, and by their petitions for certiorari to review orders of the District Court for the District of Columbia, which denied their applications for leave to file petitions for habeas corpus in that court. The question for decision is whether the detention of petitioners by respondent for trial by Military Commission, appointed by Order of the President of July 2, 1942, Page 317 U. S. 19 on charges preferred against them purporting to set out their violations of the law of war and of the Articles of War, is in conformity to the laws and Constitution of the United States. After denial of their applications by the District Court, 47 F. Supp. 431 , petitioners asked leave to file petitions for habeas corpus in this Court. In view of the public importance of the questions raised by their petitions and of the duty which rests on the courts, in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty, and because, in our opinion, the public interest required that we consider and decide those questions without any avoidable delay, we directed that petitioners' applications be set down for full oral argument at a special term of this Court, convened on July 29, 1942. The applications for leave to file the petitions were presented in open court on that day, and were heard on the petitions, the answers to them of respondent, a stipulation of facts by counsel, and the record of the testimony given before the Commission. While the argument was proceeding before us, petitioners perfected their appeals from the orders of the District Court to the United States Court of Appeals for the District of Columbia, and thereupon filed with this Page 317 U. S. 20 Court petitions for certiorari to the Court of Appeals before judgment, pursuant to § 240(a) of the Judicial Code, 28 U.S.C. § 347(a). We granted certiorari before judgment for the reasons which moved us to convene the special term of Court. In accordance with the stipulation of counsel, we treat the record, briefs and arguments in the habeas corpus proceedings in this Court as the record, briefs and arguments upon the writs of certiorari. On July 31, 1942, after hearing argument of counsel and after full consideration of all questions raised, this Court affirmed the orders of the District Court and denied petitioners' applications for leave to file petitions for habeas corpus. By per curiam opinion, we announced the decision of the Court, and that the full opinion in the causes would be prepared and filed with the Clerk. The following facts appear from the petitions or are stipulated. Except as noted, they are undisputed. All the petitioners were born in Germany; all have lived in the United States. All returned to Germany between 1933 and 1941. All except petitioner Haupt are admittedly citizens of the German Reich, with which the United States is at war. Haupt came to this country with his parents when he was five years old; it is contended that he became a citizen of the United States by virtue of the naturalization of his parents during his minority, and that he has not since lost his citizenship. The Government, however, takes the position that, on attaining his majority he elected to maintain German allegiance and citizenship, or in any case that he has, by his conduct, renounced or abandoned his United States citizenship. See Perkins v. Elg, 307 U. S. 325 , 307 U. S. 334 ; United States ex rel. Rojak v. Marshall, 34 F.2d 219 ; United States ex rel. Scimeca v. Husband, 6 F.2d 957, 958; 8 U.S.C. § 801, and compare 8 U.S.C. § 808. For reasons presently to be stated we do not find it necessary to resolve these contentions. Page 317 U. S. 21 After the declaration of war between the United States and the German Reich, petitioners received training at a sabotage school near Berlin, Germany, where they were instructed in the use of explosives and in methods of secret writing. Thereafter petitioners, with a German citizen, Dasch, proceeded from Germany to a seaport in Occupied France, where petitioners Burger, Heinck and Quirin, together with Dasch, boarded a German submarine which proceeded across the Atlantic to Amagansett Beach on Long Island, New York. The four were there landed from the submarine in the hours of darkness, on or about June 13, 1942, carrying with them a supply of explosives, fuses, and incendiary and timing devices. While landing, they wore German Marine Infantry uniforms or parts of uniforms. Immediately after landing, they buried their uniforms and the other articles mentioned and proceeded in civilian dress to New York City. The remaining four petitioners at the same French port boarded another German submarine, which carried them across the Atlantic to Ponte Vedra Beach, Florida. On or about June 17, 1942, they came ashore during the hours of darkness, wearing caps of the German Marine Infantry and carrying with them a supply of explosives, fuses, and incendiary and timing devices. They immediately buried their caps and the other articles mentioned, and proceeded in civilian dress to Jacksonville, Florida, and thence to various points in the United States. All were taken into custody in New York or Chicago by agents of the Federal Bureau of Investigation. All had received instructions in Germany from an officer of the German High Command to destroy war industries and war facilities in the United States, for which they or their relatives in Germany were to receive salary payments from the German Government. They also had been paid by the German Government during their course of training at the sabotage school, and had received substantial sums in Page 317 U. S. 22 United States currency, which were in their possession when arrested. The currency had been handed to them by an officer of the German High Command, who had instructed them to wear their German uniforms while landing in the United States. [ Footnote 2/1 ] The President, as President and Commander in Chief of the Army and Navy, by Order of July 2, 1942, [ Footnote 2/2 ] appointed a Military Commission and directed it to try petitioners for offenses against the law of war and the Articles of War, and prescribed regulations for the procedure on the trial and for review of the record of the trial and of any judgment or sentence of the Commission. On the same day, by Proclamation, [ Footnote 2/3 ] the President declared that "all persons who are subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation, Page 317 U. S. 23 and who during time of war enter or attempt to enter the United States . . . through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals." The Proclamation also stated in terms that all such persons were denied access to the courts. Pursuant to direction of the Attorney General, the Federal Bureau of Investigation surrendered custody of petitioners to respondent, Provost Marshal of the Military District of Washington, who was directed by the Secretary of War to receive and keep them in custody, and who thereafter held petitioners for trial before the Commission. On July 3, 1942, the Judge Advocate General's Department of the Army prepared and lodged with the Commission the following charges against petitioners, supported by specifications: 1. Violation of the law of war. 2. Violation of Article 81 of the Articles of War, defining the offense of relieving or attempting to relieve, or corresponding with or giving intelligence to, the enemy. 3. Violation of Article 82, defining the offense of spying. 4. Conspiracy to commit the offenses alleged in charges 1, 2 and 3. The Commission met on July 8, 1942, and proceeded with the trial, which continued in progress while the causes were pending in this Court. On July 27th, before petitioners' applications to the District Court, all the evidence for the prosecution and the defense had been taken by the Commission and the case had been closed except for arguments of counsel. It is conceded that, ever since petitioners' arrest, the state and federal courts in Florida, New York, and the District of Columbia, and in Page 317 U. S. 24 the states in which each of the petitioners was arrested or detained, have been open and functioning normally. While it is the usual procedure on an application for a writ of habeas corpus in the federal courts for the court to issue the writ and on the return to hear and dispose of the case, it may without issuing the writ consider and determine whether the facts alleged by the petition, if proved, would warrant discharge of the prisoner. Walker v. Johnston, 312 U. S. 275 , 312 U. S. 284 . Presentation of the petition for judicial action is the institution of a suit. Hence, denial by the district court of leave to file the petitions in these causes was the judicial determination of a case or controversy, reviewable on appeal to the Court of Appeals and reviewable here by certiorari. See Ex parte Milligan , 4 Wall. 2, 71 U. S. 110 -113; Betts v. Brady, 316 U. S. 455 , 316 U. S. 458 -461. Petitioners' main contention is that the President is without any statutory or constitutional authority to order the petitioners to be tried by military tribunal for offenses with which they are charged; that, in consequence, they are entitled to be tried in the civil courts with the safeguards, including trial by jury, which the Fifth and Sixth Amendments guarantee to all persons charged in such courts with criminal offenses. In any case, it is urged that the President's Order, in prescribing the procedure of the Commission and the method for review of its findings and sentence, and the proceedings of the Commission under the Order, conflict with Articles of War adopted by Congress -- particularly Articles 38, 43, 46, 50 1/2 and 70 -- and are illegal and void. The Government challenges each of these propositions. But regardless of their merits, it also insists that petitioners must be denied access to the courts, both because they are enemy aliens or have entered our territory as enemy belligerents, and because the President's Proclamation undertakes in terms to deny such access to the class of Page 317 U. S. 25 persons defined by the Proclamation, which aptly describes the character and conduct of petitioners. It is urged that, if they are enemy aliens or if the Proclamation has force, no court may afford the petitioners a hearing. But there is certainly nothing in the Proclamation to preclude access to the courts for determining its applicability to the particular case. And neither the Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners' contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission. As announced in our per curiam opinion, we have resolved those questions by our conclusion that the Commission has jurisdiction to try the charge preferred against petitioners. There is therefore no occasion to decide contentions of the parties unrelated to this issue. We pass at once to the consideration of the basis of the Commission's authority. We are not here concerned with any question of the guilt or innocence of petitioners. [ Footnote 2/4 ] Constitutional safeguards for the protection of all who are charged with offenses are not to be disregarded in order to inflict merited punishment on some who are guilty. Ex parte Milligan, supra, 71 U. S. 119 , 71 U. S. 132 ; Tumey v. Ohio, 273 U. S. 510 , 273 U. S. 535 ; Hill v. Texas, 316 U. S. 400 , 316 U. S. 406 . But the detention and trial of petitioners -- ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger -- are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted. Congress and the President, like the courts, possess no power not derived from the Constitution. But one of Page 317 U. S. 26 the objects of the Constitution, as declared by its preamble, is to "provide for the common defence." As a means to that end, the Constitution gives to Congress the power to "provide for the common Defence," Art. I, § 8, cl. 1; "To raise and support Armies," "To provide and maintain a Navy," Art. I, § 8, cl. 12, 13, and "To make Rules for the Government and Regulation of the land and naval Forces," Art. I, § 8, cl. 14. Congress is given authority "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water," Art. I, § 8, cl. 11, and "To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations," Art. I, § 8, cl. 10. And finally, the Constitution authorizes Congress "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Art. I, § 8, cl. 18. The Constitution confers on the President the "executive Power," Art. II, § 1, cl. 1, and imposes on him the duty to "take Care that the Laws be faithfully executed." Art. II, § 3. It makes him the Commander in Chief of the Army and Navy, Art. II, § 2, cl. 1, and empowers him to appoint and commission officers of the United States. Art. II, § 3, cl. 1. The Constitution thus invests the President, as Commander in Chief, with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offenses against the law of nations, including those which pertain to the conduct of war. By the Articles of War, 10 U.S.C. §§ 1471-1593, Congress has provided rules for the government of the Army. It has provided for the trial and punishment, by courts Page 317 U. S. 27 martial, of violations of the Articles by members of the armed forces and by specified classes of persons associated or serving with the Army. Arts. 1, 2. But the Articles also recognize the "military commission" appointed by military command as an appropriate tribunal for the trial and punishment of offenses against the law of war not ordinarily tried by court martial. See Arts. 12, 15. Articles 38 and 46 authorize the President, with certain limitations, to prescribe the procedure for military commissions. Articles 81 and 82 authorize trial, either by court martial or military commission, of those charged with relieving, harboring or corresponding with the enemy and those charged with spying. And Article 15 declares that "the provisions of these articles conferring jurisdiction upon courts martial shall not be construed as depriving military commissions . . . or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that, by statute or by the law of war may be triable by such military commissions . . . or other military tribunals." Article 2 includes among those persons subject to military law the personnel of our own military establishment. But this, as Article 12 provides, does not exclude from that class "any other person who by the law of war is subject to trial by military tribunals" and who, under Article 12, may be tried by court martial or under Article 15 by military commission. Similarly, the Espionage Act of 1917, which authorizes trial in the district courts of certain offenses that tend to interfere with the prosecution of war, provides that nothing contained in the act "shall be deemed to limit the jurisdiction of the general courts-martial, military commissions, or naval courts-martial." 50 U.S.C. § 38. From the very beginning of its history, this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct Page 317 U. S. 28 of war, the status, rights and duties of enemy nations, as well as of enemy individuals. [ Footnote 2/5 ] By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases. Congress, in addition to making rules for the government of our Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals. And the President, as Commander in Chief, by his Proclamation in time of war, has invoked that law. By his Order creating the present Commission, he has undertaken to exercise the authority conferred upon him by Congress, and also such authority as the Constitution itself gives the Commander in Chief, to direct the performance of those functions which may constitutionally be performed by the military arm of the nation in time of war. An important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who, in their attempt to thwart or impede our military effort, have violated the law Page 317 U. S. 29 of war. It is unnecessary for present purposes to determine to what extent the President as Commander in Chief has constitutional power to create military commissions without the support of Congressional legislation. For here, Congress has authorized trial of offenses against the law of war before such commissions. We are concerned only with the question whether it is within the constitutional power of the National Government to place petitioners upon trial before a military commission for the offenses with which they are charged. We must therefore first inquire whether any of the acts charged is an offense against the law of war cognizable before a military tribunal, and, if so, whether the Constitution prohibits the trial. We may assume that there are acts regarded in other countries, or by some writers on international law, as offenses against the law of war which would not be triable by military tribunal here, either because they are not recognized by our courts as violations of the law of war or because they are of that class of offenses constitutionally triable only by a jury. It was upon such grounds that the Court denied the right to proceed by military tribunal in Ex parte Milligan, supra. But, as we shall show, these petitioners were charged with an offense against the law of war which the Constitution does not require to be tried by jury. It is no objection that Congress, in providing for the trial of such offenses, has not itself undertaken to codify that branch of international law or to mark its precise boundaries, or to enumerate or define by statute all the acts which that law condemns. An Act of Congress punishing "the crime of piracy, as defined by the law of nations" is an appropriate exercise of its constitutional authority, Art. I, § 8, cl. 10, "to define and punish" the offense, since it has adopted by reference the sufficiently precise definition of international law. United States v. Smith , 5 Wheat. 153; See The Marianna Flora , 11 Wheat. 1, 24 U. S. 40 -41; Page 317 U. S. 30 United States v. Brig Malek Adhel , 2 How. 210, 43 U. S. 232 ; The Ambrose Light, 25 F. 408, 423-28; 18 U.S.C. § 481. [ Footnote 2/6 ] Similarly, by the reference in the 15th Article of War to "offenders or offenses that . . . by the law of war may be triable by such military commissions," Congress has incorporated by reference, as within the jurisdiction of military commissions, all offenses which are defined as such by the law of war ( compare 61 U. S. Hoover, 20 How. 65, 61 U. S. 82 ), and which may constitutionally be included within that jurisdiction. Congress had the choice of crystallizing in permanent form and in minute detail every offense against the law of war, or of adopting the system of common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts. It chose the latter course. By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations, [ Footnote 2/7 ] and also between Page 317 U. S. 31 those who are lawful and unlawful combatants.Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but, in addition, they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. [ Footnote 2/8 ] The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals. See Winthrop, Military Law,2d ed., pp. 11997, 1219-21; Instructions for the Government of Armies of the United States in the Field, approved by the President, General Order No. 100, April 24, 1863, §§ IV and V. Such was the practice of our own military authorities before the adoption of the Constitution, [ Footnote 2/9 ] and during the Mexican and Civil Wars. [ Footnote 2/10 ] Page 317 U. S. 32 Paragraph 83 of General Order No. 100 of April 24, 1863, directed that: "Scouts or single soldiers, if disguised in the dress of the country, or in the uniform of the army hostile to their own, employed in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer death." And Paragraph Page 317 U. S. 33 84, that "Armed prowlers, by whatever names they may be called, or persons of the enemy's territory, who steal within the lines of the hostile army for the purpose of robbing, killing, or of destroying bridges, roads, or canals, or of robbing or destroying the mail, or of cutting the telegraph wires, are not entitled to the privileges of the prisoner of war. [ Footnote 2/11 ]" These and related provisions have Page 317 U. S. 34 been continued in substance by the Rules of Land Warfare promulgated by the War Department for the guidance of the Army.Rules of 1914, Par. 369-77; Rules of 1940, Par. 345-57. Paragraph 357 of the 1940 Rules provides that "All war crimes are subject to the death penalty, although a lesser penalty may be imposed." Paragraph 8 (1940) divides the enemy population into "armed forces" and "peaceful population," and Paragraph 9 names as distinguishing characteristics of lawful belligerents that they "carry arms openly" and "have a fixed distinctive emblem." Paragraph 348 declares that "persons who take up arms and commit hostilities" without having the means of identification prescribed for belligerents are punishable as "war criminals." Paragraph 351 provides that "men and bodies of men, who, without being lawful belligerents" "nevertheless commit hostile acts of any kind" are not entitled to the privileges of prisoners of war if captured, and may be tried by military commission and punished by death or lesser punishment. And paragraph 352 provides that "armed prowlers . . . or persons of the enemy territory who steal within the lines of the hostile army for the purpose of robbing, killing, or of destroying bridges, roads, or canals, of robbing or destroying the mail, or of cutting the telegraph wires, are not entitled to be treated as prisoners of war." As is evident from reading these and related Paragraphs 345-347, the specified violations are intended to be only illustrative of the applicable principles of the common law of war, and not an exclusive enumeration of the punishable acts recognized as such by that law. The definition of lawful belligerents by Paragraph 9 is that adopted by Article 1, Annex to Hague Convention No. IV of October 18, 1907, to which the United States was a signatory and which was ratified by the Senate in 1909. 36 Stat. 2295. The preamble to the Convention declares: Page 317 U. S. 35 "Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience." Our Government, by thus defining lawful belligerents entitled to be treated as prisoners of war, has recognized that there is a class of unlawful belligerents not entitled to that privilege, including those who, though combatants, do not wear "fixed and distinctive emblems." And, by Article 15 of the Articles of War, Congress has made provision for their trial and punishment by military commission, according to "the law of war." By a long course of practical administrative construction by its military authorities, our Government has likewise recognized that those who, during time of war, pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission. This precept of the law of war has been so recognized in practice both here and abroad, and has so generally been accepted as valid by authorities on international law [ Footnote 2/12 ] that we think it must be regarded as Page 317 U. S. 36 a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War. Specification 1 of the first charge is sufficient to charge all the petitioners with the offense of unlawful belligerency, trial of which is within the jurisdiction of the Commission, and the admitted facts affirmatively show that the charge is not merely colorable or without foundation. Specification 1 states that petitioners, "being enemies of the United States and acting for . . . the German Reich, a belligerent enemy nation, secretly and covertly passed, in civilian dress, contrary to the law of war, through the military and naval lines and defenses of the United States . . . and went behind such lines, contrary to the law of war, in civilian dress . . . for the purpose of committing . . . hostile acts, and, in particular, to destroy certain war industries, war utilities and war materials within the United States." This specification so plainly alleges violation of the law of war as to require but brief discussion of petitioners' contentions. As we have seen, entry upon our territory Page 317 U. S. 37 in time of war by enemy belligerents, including those acting under the direction of the armed forces of the enemy, for the purpose of destroying property used or useful in prosecuting the war, is a hostile and warlike act. It subjects those who participate in it without uniform to the punishment prescribed by the law of war for unlawful belligerents. It is without significance that petitioners were not alleged to have borne conventional weapons or that their proposed hostile acts did not necessarily contemplate collision with the Armed Forces of the United States. Paragraphs 351 and 352 of the Rules of Land Warfare, already referred to, plainly contemplate that the hostile acts and purposes for which unlawful belligerents may be punished are not limited to assaults on the Armed Forces of the United States. Modern warfare is directed at the destruction of enemy war supplies and the implements of their production and transportation, quite as much as at the armed forces. Every consideration which makes the unlawful belligerent punishable is equally applicable whether his objective is the one or the other. The law of war cannot rightly treat those agents of enemy armies who enter our territory, armed with explosives intended for the destruction of war industries and supplies, as any the less belligerent enemies than are agents similarly entering for the purpose of destroying fortified places or our Armed Forces. By passing our boundaries for such purposes without uniform or other emblem signifying their belligerent status, or by discarding that means of identification after entry, such enemies become unlawful belligerents subject to trial and punishment. Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and, with its aid, Page 317 U. S. 38 guidance and direction, enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war. Cf. Gates v. Goodloe, 101 U. S. 612 , 101 U. S. 615 , 101 U. S. 617 -18. It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused. Nor are petitioners any the less belligerents if, as they argue, they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations. The argument leaves out of account the nature of the offense which the Government charges and which the Act of Congress, by incorporating the law of war, punishes. It is that each petitioner, in circumstances which gave him the status of an enemy belligerent, passed our military and naval lines and defenses or went behind those lines, in civilian dress and with hostile purpose. The offense was complete when, with that purpose, they entered -- or, having so entered, they remained upon -- our territory in time of war without uniform or other appropriate means of identification. For that reason, even when committed by a citizen, the offense is distinct from the crime of treason defined in Article III, § 3 of the Constitution, since the absence of uniform essential to one is irrelevant to the other. Cf. Moran v. Devine, 237 U. S. 632 ; Albrecht v. United States, 273 U. S. 1 , 273 U. S. 11 -12. But petitioners insist that, even if the offenses with which they are charged are offenses against the law of war, their trial is subject to the requirement of the Fifth Amendment that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, and that such trials by Article III, § 2, and the Sixth Amendment must be by jury in a civil court. Before the Amendments, § 2 of Article III, Page 317 U. S. 39 the Judiciary Article, had provided, "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury," and had directed that "such Trial shall be held in the State where the said Crimes shall have been committed." Presentment by a grand jury and trial by a jury of the vicinage where the crime was committed were, at the time of the adoption of the Constitution, familiar parts of the machinery for criminal trials in the civil courts. But they were procedures unknown to military tribunals, which are not courts in the sense of the Judiciary Article, Ex parte Vallandigham , 1 Wall. 243; In re Vidal, 179 U. S. 126 ; cf. Williams v. United States, 289 U. S. 553 , and which, in the natural course of events, are usually called upon to function under conditions precluding resort to such procedures. As this Court has often recognized, it was not the purpose or effect of § 2 of Article III, read in the light of the common law, to enlarge the then existing right to a jury trial. The object was to preserve unimpaired trial by jury in all those cases in which it had been recognized by the common law and in all cases of a like nature as they might arise in the future, District of Columbia v. Colts, 282 U. S. 63 , but not to bring within the sweep of the guaranty those cases in which it was then well understood that a jury trial could not be demanded as of right. The Fifth and Sixth Amendments, while guaranteeing the continuance of certain incidents of trial by jury which Article III, § 2 had left unmentioned, did not enlarge the right to jury trial as it had been established by that Article. Callan v. Wilson, 127 U. S. 540 , 127 U. S. 549 . Hence, petty offenses triable at common law without a jury may be tried without a jury in the federal courts, notwithstanding Article III, § 2, and the Fifth and Sixth Amendments. Schick v. United States, 195 U. S. 65 ; District of Columbia Page 317 U. S. 40 v. Clawans, 300 U. S. 617 . Trial by jury of criminal contempts may constitutionally be dispensed with in the federal courts in those cases in which they could be tried without a jury at common law. Ex parte Terry, 128 U. S. 289 , 128 U. S. 302 -304; Savin, Petitioner, 131 U. S. 267 , 131 U. S. 277 ; In re Debs, 158 U. S. 564 , 158 U. S. 594 -596; United States v. Shipp, 203 U. S. 563 , 203 U. S. 572 ; Blackmer v. United States, 284 U. S. 421 , 284 U. S. 440 ; Nye v. United States, 313 U. S. 33 , 313 U. S. 48 ; See United States v. Hudson and Goodwin , 7 Cranch 32, 11 U. S. 34 . Similarly, an action for debt to enforce a penalty inflicted by Congress is not subject to the constitutional restrictions upon criminal prosecutions. United States v. Zucker, 161 U. S. 475 ; United States v. Regan, 232 U. S. 37 , and cases cited. All these are instances of offenses committed against the United States, for which a penalty is imposed, but they are not deemed to be within Article III, § 2, or the provisions of the Fifth and Sixth Amendments relating to "crimes" and "criminal prosecutions." In the light of this long-continued and consistent interpretation, we must conclude that § 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commission, or to have required that offenses against the law of war not triable by jury at common law be tried only in the civil courts. The fact that "cases arising in the land or naval forces" are excepted from the operation of the Amendments does not militate against this conclusion. Such cases are expressly excepted from the Fifth Amendment, and are deemed excepted by implication from the Sixth. Ex parte Milligan, supra, 71 U. S. 123 , 71 U. S. 138 -139. It is argued that the exception, which excludes from the Amendment cases arising in the armed forces, has also, by implication, extended its guaranty to all other cases; that, since petitioners, not being members of the Armed Forces of the United States, are not within the exception, the Amendment operates to Page 317 U. S. 41 give to them the right to a jury trial. But we think this argument misconceives both the scope of the Amendment and the purpose of the exception. We may assume, without deciding, that a trial prosecuted before a military commission created by military authority is not one "arising in the land . . . forces," when the accused is not a member of or associated with those forces. But even so, the exception cannot be taken to affect those trials before military commissions which are neither within the exception nor within the provisions of Article III, § 2, whose guaranty the Amendments did not enlarge. No exception is necessary to exclude from the operation of these provisions cases never deemed to be within their terms. An express exception from Article III, § 2, and from the Fifth and Sixth Amendments, of trials of petty offenses and of criminal contempts has not been found necessary in order to preserve the traditional practice of trying those offenses without a jury. It is no more so in order to continue the practice of trying, before military tribunals without a jury, offenses committed by enemy belligerents against the law of war. Section 2 of the Act of Congress of April 10, 1806, 2 Stat. 371, derived from the Resolution of the Continental Congress of August 21, 1776, [ Footnote 2/13 ] imposed the death penalty on alien spies "according to the law and usage of nations, by sentence of a general court martial." This enactment must be regarded as a contemporary construction of both Article III, § 2, and the Amendments as not foreclosing trial by military tribunals, without a jury, of offenses against the law of war committed by enemies not in or associated with our Armed Forces. It is a construction of the Constitution which has been followed since the founding of our Government, and is now continued in the 82nd Article of War. Such a construction is entitled to Page 317 U. S. 42 the greatest respect. Stuart v. Laird , 1 Cranch 299, 5 U. S. 309 ; Field v. Clark, 143 U. S. 649 , 143 U. S. 691 ; United States v. Curtiss-Wright Corp., 299 U. S. 304 , 299 U. S. 328 . It has not hitherto been challenged, and, so far as we are advised, it has never been suggested in the very extensive literature of the subject that an alien spy, in time of war, could not be tried by military tribunal without a jury. [ Footnote 2/14 ] Page 317 U. S. 43 The exception from the Amendments of "cases arising in the land or naval forces" was not aimed at trials by military tribunals, without a jury, of such offenses against the law of war. Its objective was quite different -- to authorize the trial by court martial of the members of our Armed Forces for all that class of crimes which, under the Fifth and Sixth Amendments, might otherwise have been deemed triable in the civil courts. The cases mentioned in the exception are not restricted to those involving offenses against the law of war alone, but extend to trial of all offenses, including crimes which were of the class traditionally triable by jury at common law. Ex parte Mason, 105 U. S. 696 ; Kahn v. Anderson, 255 U. S. 1 , 255 U. S. 9 ; cf. Caldwell v. Parker, 252 U. S. 376 . Page 317 U. S. 44 Since the Amendments, like § 2 of Article III, do not preclude all trials of offenses against the law of war by military commission without a jury when the offenders are aliens not members of our Armed Forces, it is plain that they present no greater obstacle to the trial in like manner of citizen enemies who have violated the law of war applicable to enemies. Under the original statute authorizing trial of alien spies by military tribunals, the offenders were outside the constitutional guaranty of trial by jury not because they were aliens, but only because they had violated the law of war by committing offenses constitutionally triable by military tribunal. We cannot say that Congress, in preparing the Fifth and Sixth Amendments, intended to extend trial by jury to the cases of alien or citizen offenders against the law of war otherwise triable by military commission, while withholding it from members of our own armed forces charged with infractions of the Articles of War punishable by death. It is equally inadmissible to construe the Amendments -- Page 317 U. S. 45 whose primary purpose was to continue unimpaired presentment by grand jury and trial by petit jury in all those cases in which they had been customary -- as either abolishing all trials by military tribunals, save those of the personnel of our own armed forces, or, what in effect comes to the same thing, as imposing on all such tribunals the necessity of proceeding against unlawful enemy belligerents only on presentment and trial by jury. We conclude that the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission, and that petitioners, charged with such an offense not required to be tried by jury at common law, were lawfully placed on trial by the Commission without a jury. Petitioners, and especially petitioner Haupt, stress the pronouncement of this Court in the Milligan case, supra, p. 71 U. S. 121 , that the law of war "can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open, and their process unobstructed." Elsewhere in its opinion, at pp. 71 U. S. 118 , 71 U. S. 121 -122 and 71 U. S. 131 , the Court was at pains to point out that Milligan, a citizen twenty years resident in Indiana, who had never been a resident of any of the states in rebellion, was not an enemy belligerent either entitled to the status of a prisoner of war or subject to the penalties imposed upon unlawful belligerents. We construe the Court's statement as to the inapplicability of the law of war to Milligan's case as having particular reference to the facts before it. From them, the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a nonbelligerent, not subject to the law of war save as -- in circumstances found not there to be present, and not involved here -- martial law might be constitutionally established. The Court's opinion is inapplicable to the case presented by the present record. We have no occasion now to define Page 317 U. S. 46 with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war. It is enough that petitioners here, upon the conceded facts, were plainly within those boundaries, and were held in good faith for trial by military commission, charged with being enemies who, with the purpose of destroying war materials and utilities, entered, or after entry remained in, our territory without uniform -- an offense against the law of war. We hold only that those particular acts constitute an offense against the law of war which the Constitution authorizes to be tried by military commission. Since the first specification of Charge I sets forth a violation of the law of war, we have no occasion to pass on the adequacy of the second specification of Charge I, or to construe the 81st and 82nd Articles of War for the purpose of ascertaining whether the specifications under Charges II and III allege violations of those Articles, or whether, if so construed, they are constitutional. McNally v. Hill, 293 U. S. 131 . There remains the contention that the President's Order of July 2, 1942, so far as it lays down the procedure to be followed on the trial before the Commission and on the review of its findings and sentence, and the procedure in fact followed by the Commission, are in conflict with Articles of War 38, 43, 46, 50 1/2 and 70. Petitioners argue that their trial by the Commission, for offenses against the law of war and the 81st and 82nd Articles of War, by a procedure which Congress has prohibited would invalidate any conviction which could be obtained against them, and renders their detention for trial likewise unlawful ( see McClaughry v. Deming, 186 U. S. 49 ; United States v. Brown, 206 U. S. 240 , 206 U. S. 244 ; Runkle v. United States, 122 U. S. 543 , 122 U. S. 555 -556; Dynes v. Hoover , 20 How. 65, 61 U. S. 80 -81); that the President's Order prescribes such an unlawful Page 317 U. S. 47 procedure, and that the secrecy surrounding the trial and all proceedings before the Commission, as well as any review of its decision, will preclude a later opportunity to test the lawfulness of the detention. Petitioners do not argue, and we do not consider, the question whether the President is compelled by the Articles of War to afford unlawful enemy belligerents a trial before subjecting them to disciplinary measures. Their contention is that, if Congress has authorized their trial by military commission upon the charges preferred -- violations of the law of war and the 81st and 82nd Articles of War -- it has by the Articles of War prescribed the procedure by which the trial is to be conducted, and that, since the President has ordered their trial for such offenses by military commission, they are entitled to claim the protection of the procedure which Congress has commanded shall be controlling. We need not inquire whether Congress may restrict the power of the Commander in Chief to deal with enemy belligerents. For the Court is unanimous in its conclusion that the Articles in question could not at any stage of the proceedings afford any basis for issuing the writ. But a majority of the full Court are not agreed on the appropriate grounds for decision. Some members of the Court are of opinion that Congress did not intend the Articles of War to govern a Presidential military commission convened for the determination of questions relating to admitted enemy invaders, and that the context of the Articles makes clear that they should not be construed to apply in that class of cases. Others are of the view that -- even though this trial is subject to whatever provisions of the Articles of War Congress has in terms made applicable to "commissions" -- the particular Articles in question, rightly construed, do not foreclose the procedure prescribed by the President or that shown to have been employed Page 317 U. S. 48 by the Commission, in a trial of offenses against the law of war and the 81st and 82nd Articles of War, by a military commission appointed by the President. Accordingly, we conclude that Charge I, on which petitioners were detained for trial by the Military Commission, alleged an offense which the President is authorized to order tried by military commission; that his Order convening the Commission was a lawful order, and that the Commission was lawfully constituted; that the petitioners were held in lawful custody, and did not show cause for their discharge. It follows that the orders of the District Court should be affirmed, and that leave to file petitions for habeas corpus in this Court should be denied. MR. JUSTICE MURPHY took no part in the consideration or decision of these cases. [ Footnote 2/1 ] From June 12 to June 18, 1942, Amagansett Beach, New York, and Ponte Vedra Beach, Florida, were within the area designated as the Eastern Defense Command of the United States Army, and subject to the provisions of a proclamation dated May 16, 1942, issued by Lieutenant General Hugh A. Drum, United States Army, Commanding General, Eastern Defense Command ( see 7 Federal Register 3830). On the night of June 12-13, 1942, the waters around Amagansett Beach, Long Island, were within the area comprising the Eastern Sea Frontier, pursuant to the orders issued by Admiral Ernest J. King, Commander in Chief of the United States Fleet and Chief of Naval Operations. On the night of June 16-17, 1942, the waters around Ponte Vedra Beach, Florida, were within the area comprising the Gulf Sea Frontier, pursuant to similar orders. On the night of June 12-13, 1942, members of the United States Coast Guard, unarmed, maintained a beach patrol along the beaches surrounding Amagansett, Long Island, under written orders mentioning the purpose of detecting landings. On the night of June 17-18, 1942, the United States Army maintained a patrol of the beaches surrounding and including Ponte Vedra Beach, Florida, under written orders mentioning the purpose of detecting the landing of enemy agents from submarines. [ Footnote 2/2 ] 7 Federal Register 5103. [ Footnote 2/3 ] 7 Federal Register 5101. [ Footnote 2/4 ] As appears from the stipulation, a defense offered before the Military Commission was that petitioners had had no intention to obey the orders given them by the officer of the German High Command. [ Footnote 2/5 ] Talbot v. Janson , 3 Dall. 133, 3 U.S. 153 , 3 U.S. 159 -61; Talbot v. Seeman , 1 Cranch 1, 5 U. S. 441 ; Maley v. Shattuck , 3 Cranch 458, 7 U. S. 488 ; Fitzsimmons v. Newport Ins. Co. , 4 Cranch 185, 8 U. S. 199 ; The Rapid , 8 Cranch 155, 12 U. S. 159 -164; The St.Lawrence , 9 Cranch 120, 13 U. S. 122 ; Thirty Hogsheads of Sugar v. Boyle , 9 Cranch 191, 13 U. S. 197 -98; The Anne , 3 Wheat. 435, 16 U. S. 447 -48; United States v. Reading , 18 How. 1, 59 U. S. 10 ; Prize Cases , 2 Black 635, 67 U. S. 666 -67, 67 U. S. 687 ; The Venice , 2 Wall. 258, 69 U. S. 274 ; The William Bagaley , 5 Wall. 377; Miller v. United States , 11 Wall. 268; Coleman v. Tennessee, 97 U. S. 509 , 97 U. S. 517 ; United States v. Pacific Railroad, 120 U. S. 227 , 120 U. S. 233 ; Juragua Iron Co. v. United States, 212 U. S. 297 . [ Footnote 2/6 ] Compare 28 U.S.C. § 41(17), conferring on the federal courts jurisdiction over suits brought by an alien for a tort "in violation of the laws of nations"; 28 U.S.C. § 341, conferring upon the Supreme Court such jurisdiction of suits against ambassadors as a court of law can have "consistently with the law of nations"; 28 U.S.C. § 462, regulating the issuance of habeas corpus where the prisoner claims some right, privilege or exemption under the order of a foreign state, "the validity and effect whereof depend upon the law of nations"; 15 U.S.C. §§ 606(b) and 713(b), authorizing certain loans to foreign governments, provided that "no such loans shall be made in violation of international law as interpreted by the Department of State." [ Footnote 2/7 ] Hague Convention No. IV of October 18, 1907, 36 Stat. 2295, Article I of the Annex to which defines the persons to whom belligerent rights and duties attach, was signed by 44 nations. See also Great Britain, War Office, Manual of Military Law (1929) ch. xiv, §§ 17-19; German General Staff, Kriegsbrauch in Landkriege (1902) ch. 1; 7 Moore, Digest of International Law, § 1109; 2 Hyde, International Law (1922) § 653-54; 2 Oppenheim, International Law (6th ed.1940) § 107; Bluntschli, Droit International (5th ed. tr. Lardy) §§ 531-32; 4 Calvo, Le Droit International Theorique et Pratique (5th ed. 1896) § 2034-35. [ Footnote 2/8 ] Great Britain, War Office, Manual of Military Law, ch. xiv, §§ 445-451; Regolamento di Servizio in Guerra, § 133, 3 Leggi e Decreti del Regno d'Italia (1896) 3184; 7 Moore, Digest of International Law, § 1109; 2 Hyde, International Law, §§ 654, 652; 2 Halleck, International Law (4th ed.1908) § 4; 2 Oppenheim, International Law, § 254; Hall, International Law, §§ 127, 135; Baty Morgan, War, Its Conduct and Legal Results (1915) 172; Bluntschli, Droit International, §§ 570 bis. [ Footnote 2/9 ] On September 29, 1780, Major John Andre, Adjutant-General to the British Army, was tried by a "Board of General Officers" appointed by General Washington, on a charge that he had come within the lines for an interview with General Benedict Arnold and had been captured while in disguise and traveling under an assumed name. The Board found that the facts charged were true, and that, when captured Major Andre had in his possession papers containing intelligence for the enemy, and reported their conclusion that "Major Andre . . . ought to be considered as a Spy from the enemy, and that, agreeably to the law and usage of nations . . . , he ought to suffer death." Major Andre was hanged on October 2, 1780. Proceedings of a Board of General Officers Respecting Major John Andre, Sept. 29, 1780, printed at Philadelphia in 1780. [ Footnote 2/10 ] During the Mexican War, military commissions were created in a large number of instances for the trial of various offenses. See General Orders cited in 2 Winthrop, Military Law (2d ed. 1896) p. 1298, note 1. During the Civil War, the military commission was extensively used for the trial of offenses against the law of war. Among the more significant cases for present purposes are the following: On May 22, 1865, T. E. Hogg and others were tried by a military commission, for "violations of the laws and usages of civilized war," the specifications charging that the accused "being commissioned, enrolled, enlisted or engaged" by the Confederate Government, came on board a United States merchant steamer in the port of Panama "in the guise of peaceful passengers" with the purpose of capturing the vessel and converting her into a Confederate cruiser. The Commission found the accused guilty and sentenced them to be hanged. The reviewing authority affirmed the judgments, writing an extensive opinion on the question whether violations of the law of war were alleged, but modified the sentences to imprisonment for life and for various periods of years. Dept. of the Pacific, G.O. No. 52, June 27, 1865. On January 17, 1865, John Y. Beall was tried by a military commission for "violation of the laws of war." The opinion by the reviewing authority reveals that Beall, holding a commission in the Confederate Navy, came on board a merchant vessel at a Canadian port in civilian dress and, with associates, took possession of the vessel in Lake Erie; that, also in disguise, he unsuccessfully attempted to derail a train in New York State, and to obtain military information. His conviction by the Commission was affirmed on the ground that he was both a spy and a "guerrilla," and he was sentenced to be hanged. Dept. of the East, G.O. No. 14, Feb. 14, 1865. On January 17, 1865, Robert C. Kennedy, a Captain of the Confederate Army, who was shown to have attempted, while in disguise, to set fire to the City of New York, and to have been seen in disguise in various parts of New York State, was convicted on charges of acting as a spy and violation of the law of war "in undertaking to carry on irregular and unlawful warfare." He was sentenced to be hanged, and the sentence was confirmed by the reviewing authority. Dept. of the East, G.O. No. 24, March 20, 1865. On September 19, 1865, William Murphy, "a rebel emissary in the employ of and colleagued with rebel enemies," was convicted by a military commission of "violation of the laws and customs of war" for coming within the lines and burning a United States steamboat and other property. G.C.M.O. No. 107, April 18, 1866. Soldiers and officers "now or late of the Confederate Army" were tried and convicted by military commission for "being secretly within the lines of the United States forces," James Hamilton, Dept. of the Ohio, G.O. No. 153, Sept. 18, 1863; for "recruiting men within the lines," Daniel Davis, G.O. No. 397, Dec. 18, 1863, and William F. Corbin and T. G. McGraw, G O. No. 114, May 4, 1863, and for "lurking about the posts, quarters, fortifications and encampments of the armies of the United States," although not "as a spy," Augustus A. Williams, Middle Dept., G.O. No. 34, May 5, 1864. For other cases of violations of the law of war punished by military commissions during the Civil War, see 2 Winthrop, Military Laws and Precedents (2d ed. 1896) 1310-11. [ Footnote 2/11 ] See also Paragraph 100: "A messenger or agent who attempts to steal through the territory occupied by the enemy, to further, in any manner, the interests of the enemy, if captured, is not entitled to the privileges of the prisoner of war, and may be dealt with according to the circumstances of the case." Compare Paragraph 101. [ Footnote 2/12 ] Great Britain, War Office, Manual of Military Law (1929) § 45, lists a large number of acts which, when committed within enemy lines by persons in civilian dress associated with or acting under the direction of enemy armed forces, are "war crimes." The list includes: "damage to railways, war material, telegraph, or other means of communication, in the interest of the enemy. . . ." Section 449 states that all "war crimes" are punishable by death. Authorities on International Law have regarded as war criminals such persons who pass through the lines for the purpose of (a) destroying bridges, war materials, communication facilities, etc.: 2 Oppenheim, International Law (6th ed.1940) § 255; Spaight, Air Power and War Rights (1924) 283; Spaight, War Rights on Land (1911) 110; Phillipson, International Law and the Great War (1915) 208; Liszt, Das Volkerrecht (12 ed.1925), § 58(B) 4; (b) carrying messages secretly: Hall, International Law (8th ed.1924) § 188; Spaight, War Rights on Land 215; 3 Merignhac, Droit Public International (1912) 296-97; Bluntschli, Droit International Codifie (5th ed. tr. Lardy) § 639; 4 Calvo, Le Droit International Theorique et Pratique (5th ed. 1896) § 2119; (c) any hostile act: 2 Winthrop, Military Law and Precedents, (2nd ed. 1896) 1224. Cf. Lieber, Guerrilla Parties (1862), 2 Miscellaneous Writings (1881) 288. These authorities are unanimous in stating that a soldier in uniform who commits the acts mentioned would be entitled to treatment as a prisoner of war; it is the absence of uniform that renders the offender liable to trial for violation of the laws of war. [ Footnote 2/13 ] See Morgan, Court-Martial Jurisdiction over Non-Military Persons under the Articles of War, 4 Minnesota L.Rev. 79, 107-109. [ Footnote 2/14 ] In a number of cases during the Revolutionary War, enemy spies were tried and convicted by military tribunals: (1) Major John Andre, Sept. 29, 1780, see 317 U.S. 1 fn2/9|>note 9 supra. (2) Thomas Shanks was convicted by a "Board of General Officers" at Valley Forge on June 3, 1778, for "being a Spy in the Service of the Enemy," and sentenced to be hanged. 12 Writings of Washington (Bicentennial Comm'n ed.) 14. (3) Matthias Colbhart was convicted of "holding a Correspondence with the Enemy" and "living as a Spy among the Continental Troops" by a General Court Martial convened by order of Major General Putnam on Jan. 13, 1778; General Washington, the Commander in Chief, ordered the sentence of death to be executed, 12 Id. 449-50. (4) John Clawson, Ludwick Lasick, and William Hutchinson were convicted of "lurking as spies in the Vicinity of the Army of the United States" by a General Court Martial held on June 18, 1780. The death sentence was confirmed by the Commander in Chief. 19 Id. 23. (5) David Farnsworth and John Blair were convicted of "being found about the Encampment of the United States as Spies" by a Division General Court Martial held on Oct. 8, 1778 by order of Major General Gates. The death sentence was confirmed by the Commander in Chief. 13 Id. 139-40. (6) Joseph Bettys was convicted of being "a Spy for General Burgoyne" by coming secretly within the American lines, by a General Court Martial held on April 6, 1778 by order of Major General McDougall. The death sentence was confirmed by the Commander in Chief. 15 Id. 364. (7) Stephen Smith was convicted of "being a Spy" by a General Court Martial held on Jan. 6, 1778. The death sentence was confirmed by Major General McDougall. Ibid. (8) Nathaniel Aherly and Reuben Weeks, Loyalist soldiers, were sentenced to be hanged as spies. Proceedings of a General Court Martial Convened at West Point According to a General Order of Major General Arnold, Aug. 20-21, 1780 (National Archives, War Dept., Revolutionary War Records, MS No. 31521). (9) Jonathan Loveberry, a Loyalist soldier, was sentenced to be hanged as a spy. Proceedings of a General Court Martial Convened at the Request of Major General Arnold at the Township of Bedford, Aug. 30-31, 1780 ( Id., MS No. 31523). He later escaped, 20 Writings of Washington 253n. (10) Daniel Taylor, a lieutenant in the British Army, was convicted as a spy by a general court martial convened on Oct. 14, 1777, by order of Brigadier General George Clinton, and was hanged. 2 Public Papers of George Clinton (1900) 443. (11) James Molesworth was convicted as a spy and sentenced to death by a general court martial held at Philadelphia, March 29, 1777; Congress confirmed the order of Major General Gates for the execution of the sentence. 7 Journals of the Continental Congress 210. See also cases of "M. A." and "D.C.," G.O. Headquarters of General Sullivan, Providence, R.I., July 24, 1778, reprinted in Niles, Principles and Acts of the Revolution (1822) 369; of Lieutenant Palmer, 9 Writings of Washington, 56n; of Daniel Strang, 6 Id. 47n; of Edward Hicks, 14 Id. 357; of John Mason and James Ogden, executed as spies near Trenton, N.J., on Jan. 10, 1781, mentioned in Hatch, Administration of the American Revolutionary Army (1904) 135 and Van Doren, Secret History of the American Revolution (1941) 410. During the War of 1812, William Baker was convicted as a spy and sentenced to be hanged, by a general court martial presided over by Brigadier General Thomas A. Smith at Plattsburg, N.Y., on March 25, 1814. National Archives, War Dept., Judge Advocate General's Office, Records of Courts Martial, MS No. O-13. William Utley, tried as a spy by a court martial held at Plattsburg, March 3-5, 1814, was acquitted. Id. MS No. X-161. Elijah Clark was convicted as a spy, and sentenced to be hanged, by a general court martial held at Buffalo, N.Y., Aug. 5-8, 1812. He was ordered released by President Madison on the ground that he was an American citizen. Military Monitor, Vol. I, No. 23, Feb. 1, 1813, pp. 121-122; Maltby, Treatise on Courts Martial and Military Law (1813) 35-36. In 1862, Congress amended the spy statute to include "all persons," instead of only aliens. 12 Stat. 339, 340; see also 12 Stat. 731, 737. For the legislative history, see Morgan, Court-Martial Jurisdiction over Non-Military Persons under the Articles of War, 4 Minnesota L.Rev. 79, 109-11. During the Civil War, a number of Confederate officers and soldiers, found within the Union lines in disguise, were tried and convicted by military commission for being spies. Charles H. Clifford, G.O. No. 135, May 18, 1863; William S. Waller, G.O. No. 269, Aug. 4, 1863; Alfred Yates and George W. Casey, G.O. No. 32, Nov. 28, 1863; James R. Holton and James Taylor, G.C.M.O. No. 93, May 13, 1864; James McGregory, G.C.M.O. No. 152, June 4, 1864; E. S. Dodd, Dept. of Ohio, G.O. No. 3, Jan. 5, 1864. For other cases of spies tried by military commission, see 2 Winthrop, Military Law and Precedents, 1193 et seq.

Here is a summary of the key points from the U.S. Supreme Court case Ex Parte Quirin (1942): - The case involved a group of German saboteurs who entered the United States during World War II with the intention of carrying out attacks on American targets. - The saboteurs, who were wearing German military uniforms and carrying explosives, were arrested and charged with violating the law of war. - The main issue before the Court was whether the saboteurs could be tried by a military commission or if they had the right to access civil courts. - The Court held that the President's Proclamation, which declared that individuals engaged in sabotage and similar acts during wartime would be subject to military jurisdiction, did not bar the saboteurs from accessing civil courts to challenge the applicability of the Proclamation to their cases. - However, the Court ultimately upheld the jurisdiction of the military commission to try the saboteurs, citing the President's authority as Commander-in-Chief and the nature of the offenses committed. - The Court's decision also discussed the historical precedent for trying spies and saboteurs by military commission during times of war, both in American history and under international law.

Immigration & National Security

Harisiades v. Shaughnessy

https://supreme.justia.com/cases/federal/us/342/580/

U.S. Supreme Court Harisiades v. Shaughnessy, 342 U.S. 580 (1952) Harisiades v. Shaughnessy No. 43 Argued December 5, 1951 Decided March 10, 1952 342 U.S. 580 ast|>* 342 U.S. 580 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus 1. The Alien Registration Act of 1940, so far as it authorizes the deportation of a legally resident alien because of membership in the Communist Party, even though such membership terminated before enactment of the Act, was within the power of Congress under the Federal Constitution. Pp. 342 U. S. 581 -596. (a) The Act does not deprive the alien of liberty without due process of law in violation of the Fifth Amendment. Pp. 342 U. S. 584 -591. (1) The power to deport aliens is inherent in every sovereign state. Pp. 342 U. S. 587 -588. (2) The policy toward aliens is so exclusively entrusted to the political branches of the Government as to be largely immune from judicial inquiry or interference, and it cannot be said that the power has been so unreasonably or harshly exercised by Congress in this Act as to warrant judicial interference. Pp. 342 U. S. 588 -590. (3) The fact that the Act inflicts severe hardship on the individuals affected does not render it violative of the Due Process Clause. Pp. 342 U. S. 590 -591. (b) The Act does not abridge the aliens' freedoms of speech and assembly in contravention of the First Amendment. Pp. 342 U. S. 591 -592. (c) The Act does not contravene the provision of Art. I, § 9 of the Constitution forbidding ex post facto laws. Pp. 342 U. S. 593 -596. 2. Procedural requirements of the Administrative Procedure Act are not mandatory as to proceedings which were instituted before the effective date of the Act. P. 583, n 4. Page 342 U. S. 581 3. One who consented to the same individual acting both as presiding officer and examining officer in administrative proceedings is without standing, on judicial review, to raise the objection that he was thereby denied procedural due process. P. 583, n 4. 187 F.2d 137 affirmed. The cases are stated in the opinion of the Court, pp. 342 U. S. 581 -584. The judgments are affirmed, p. 342 U. S. 596 . MR. JUSTICE JACKSON delivered the opinion of the Court. The ultimate question in these three cases is whether the United States constitutionally may deport a legally resident alien because of membership in the Communist Party which terminated before enactment of the Alien Registration Act, 1940. [ Footnote 1 ] Harisiades, a Greek national, accompanied his father to the United States in 1916, when thirteen years of age, and has resided here since. He has taken a wife and sired two children, all citizens. He joined the Communist Party in 1925, when it was known as the Workers Party, and served as an organizer, Branch Executive Committeman, Page 342 U. S. 582 secretary of its Greek Bureau, and editor of its paper "Empros." The party discontinued his membership, along with that of other aliens, in 1939, but he has continued association with members. He was familiar with the principles and philosophy of the Communist Party, and says he still believes in them. He disclaims personal belief in use of force and violence, and asserts that the party favored their use only in defense. A warrant for his deportation because of his membership was issued in 1930, but was not served until 1946. The delay was due to inability to locate him because of his use of a number of aliases. After hearings, he was ordered deported on the grounds that, after entry, he had been a member of an organization which advocates overthrow of the Government by force and violence and distributes printed matter so advocating. He sought release by habeas corpus, which was denied by the District Court. [ Footnote 2 ] The Court of Appeals for the Second Circuit affirmed. [ Footnote 3 ] Mascitti, a citizen of Italy, came to this county in 1920 at the age of sixteen. He married a resident alien and has one American-born child. He was a member of the Young Workers Party, the Workers Party, and the Communist Party between 1923 and 1929. His testimony was that he knew the party advocated a proletarian dictatorship, to be established by force and violence if the capitalist class resisted. He heard some speakers advocate violence, in which he says he did not personally believe, and he was not clear as to the party policy. He resigned in 1929, apparently because he lost sympathy with or interest in the party. A warrant for his deportation issued, and was served in 1946. After the usual administrative hearings, he was ordered deported on the same grounds as Harisiades. He sought relief by declaratory Page 342 U. S. 583 judgment, which was denied without opinion by a three-judge District Court for the District of Columbia. His case comes to this Court by direct appeal. Mrs. Coleman, a native of Russia, was admitted to the United States in 1914, when thirteen years of age. She married an American citizen, and has three children, citizens by birth. She admits being a member of the Communist Party for about a year, beginning in 1919, and again from 1928 to 1930, and again from 1936 to 1937 or 1938. She held no office, and her activities were not significant. She disavowed much knowledge of party principles and program, claiming she joined each time because of some injustice the party was then fighting. The reasons she gives for leaving the party are her health and the party's discontinuance of alien memberships. She has been ordered deported because, after entry, she became a member of an organization advocating overthrow of the Government by force and violence. She sought an injunction on constitutional grounds, among others. Relief was denied, without opinion, by a three-judge District Court for the District of Columbia, and her case also comes here by direct appeal. Validity of the hearing procedures is questioned for noncompliance with the Administrative Procedure Act, which we think is here inapplicable. [ Footnote 4 ] Admittedly, each of these deportations is authorized and required by the letter, spirit, and intention of the statute. But the Act Page 342 U. S. 584 is assailed on three grounds: (1) that it deprives the aliens of liberty without due process of law in violation of the Fifth Amendment; (2) that it abridges their freedoms of speech and assembly in contravention of the First Amendment, and (3) that it is an ex post facto law which Congress is forbidden to pass by Art. I, § 9, cl. 3 of the Constitution. We have in each case a finding, approved by the court below, that the Communist Party, during the period of the alien's membership, taught and advocated overthrow of the Government of the United States by force and violence. Those findings are not questioned here. I These aliens ask us to forbid their expulsion by a departure from the long accepted application to such cases of the Fifth Amendment provision that no person shall be deprived of life, liberty, or property without due process of law. Their basic contention is that admission for permanent residence confers a "vested right" on the alien, equal to that of the citizen, to remain within the country, and that the alien is entitled to constitutional protection in that matter to the same extent as the citizen. Their second line of defense is that, if any power to deport domiciled aliens exists, it is so dispersed that the judiciary must concur in the grounds for its exercise to the extent of finding them reasonable. The argument goes on to the contention that the grounds prescribed by the Act of 1940 bear no reasonable relation to protection of legitimate interests of the United States, and concludes that Page 342 U. S. 585 the Act should be declared invalid. Admittedly these propositions are not founded in precedents of this Court. For over thirty years, each of these aliens has enjoyed such advantages as accrue from residence here without renouncing his foreign allegiance or formally acknowledging adherence to the Constitution he now invokes. Each was admitted to the United States, upon passing formidable exclusionary hurdles, in the hope that, after what may be called a probationary period, he would desire and be found desirable for citizenship. Each has been offered naturalization, with all of the rights and privileges of citizenship, conditioned only upon open and honest assumption of undivided allegiance to our government. [ Footnote 5 ] But acceptance was and is not compulsory. Each has been permitted to prolong his original nationality indefinitely. So long as one thus perpetuates a dual status as an American inhabitant but foreign citizen, he may derive advantages from two sources of law -- American and international. He may claim protection against our Government unavailable to the citizen. As an alien, he retains a claim upon the state of his citizenship to diplomatic intervention on his behalf, a patronage often of considerable value. The state of origin of each of these aliens could presently enter diplomatic remonstrance against these deportations if they were inconsistent with international law, the prevailing custom among nations, or their own practices. The alien retains immunities from burdens which the citizen must shoulder. By withholding his allegiance from the United States, he leaves outstanding a foreign Page 342 U. S. 586 call on his loyalties which international law not only permits our Government to recognize, but commands it to respect. In deference to it, certain dispensations from conscription for any military service have been granted foreign nationals. [ Footnote 6 ] They cannot, consistently with our international commitments, be compelled "to take part in the operations of war directed against their own country." [ Footnote 7 ] In addition to such general immunities they may enjoy particular treaty privileges. [ Footnote 8 ] Under our law, the alien in several respects stands on an equal footing with citizens, [ Footnote 9 ] but, in others, has never been conceded legal parity with the citizen. [ Footnote 10 ] Most importantly, to protract this ambiguous status within the country is not his right, but is a matter of permission and Page 342 U. S. 587 tolerance. The Government's power to terminate its hospitality has been asserted and sustained by this Court since the question first arose. [ Footnote 11 ] War, of course, is the most usual occasion for extensive resort to the power. Though the resident alien may be personally loyal to the United States, if his nation becomes our enemy, his allegiance prevails over his personal preference, and makes him also our enemy, liable to expulsion or internment, [ Footnote 12 ] and his property becomes subject to seizure, and perhaps confiscation. [ Footnote 13 ] But it does not require war to bring the power of deportation into existence, or to authorize its exercise. Congressional apprehension of foreign or internal dangers short of war may lead to its use. So long as the alien elects to continue the ambiguity of his allegiance, his domicile here is held by a precarious tenure. That aliens remain vulnerable to expulsion after long residence is a practice that bristles with severities. But it is a weapon of defense and reprisal confirmed by international law as a power inherent in every sovereign Page 342 U. S. 588 state. [ Footnote 14 ] Such is the traditional power of the Nation over the alien, and we leave the law on the subject as we find it. This brings us to the alternative defense under the Due Process Clause -- that, granting the power, it is so unreasonably and harshly exercised by this enactment that it should be held unconstitutional. In historical context, the Act before us stands out as an extreme application of the expulsion power. There is no denying that, as world convulsions have driven us toward a closed society, the expulsion power has been exercised with increasing severity, manifest in multiplication of grounds for deportation, in expanding the subject classes from illegal entrants to legal residents, and in greatly lengthening the period of residence after which one may be expelled. [ Footnote 15 ] This is said to have reached a point where it is the duty of this Court to call a halt upon the political branches of the Government. It is pertinent to observe that any policy toward aliens is vitally and intricately interwoven with contemporaneous Page 342 U. S. 589 policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference. [ Footnote 16 ] These restraints upon the judiciary, occasioned by different events, do not control today's decision, but they Page 342 U. S. 590 are pertinent. It is not necessary, and probably not possible, to delineate a fixed and precise line of separation in these matters between political and judicial power under the Constitution. Certainly, however, nothing in the structure of our Government or the text of our Constitution would warrant judicial review by standards which would require us to equate our political judgment with that of Congress. Under the conditions which produced this Act, can we declare that congressional alarm about a coalition of Communist power without and Communist conspiracy within the United States is either a fantasy or a pretense? This Act was approved by President Roosevelt June 28, 1940, when a world war was threatening to involve us, as soon it did. Communists in the United States were exerting every effort to defeat and delay our preparations. Certainly no responsible American would say that there were then or are now no possible grounds on which Congress might believe that Communists in our midst are inimical to our security. Congress received evidence that the Communist movement here has been heavily laden with aliens, and that Soviet control of the American Communist Party has been largely through alien Communists. It would be easy for those of us who do not have security responsibility to say that those who do are taking Communism too seriously, and overestimating its danger. But we have an Act of one Congress which, for a decade, subsequent Congresses have never repealed, but have strengthened and extended. We, in our private opinions, need not concur in Congress' policies to hold its enactments constitutional. Judicially, we must tolerate what personally we may regard as a legislative mistake. We are urged, because the policy inflicts severe and undoubted hardship on affected individuals, to find a restraint Page 342 U. S. 591 in the Due Process Clause. But the Due Process Clause does not shield the citizen from conscription and the consequent calamity of being separated from family, friends, home, and business while he is transported to foreign lands to stem the tide of Communism. If Communist aggression creates such hardships for loyal citizens, it is hard to find justification for holding that the Constitution requires that its hardships must be spared the Communist alien. When citizens raised the Constitution as a shield against expulsion from their homes and places of business, the Court refused to find hardship a cause for judicial intervention. [ Footnote 17 ] We think that, in the present state of the world, it would be rash and irresponsible to reinterpret our fundamental law to deny or qualify the Government's power of deportation. However desirable worldwide amelioration of the lot of aliens, we think it is peculiarly a subject for international diplomacy. It should not be initiated by judicial decision which can only deprive our own Government of a power of defense and reprisal without obtaining for American citizens abroad any reciprocal privileges or immunities. Reform in this field must be entrusted to the branches of the Government in control of our international relations and treatymaking powers. We hold that the Act is not invalid under the Due Process Clause. These aliens are not entitled to judicial relief unless some other constitutional limitation has been transgressed, to which inquiry we turn. II The First Amendment is invoked as a barrier against this enactment. The claim is that, in joining an organization advocating overthrow of government by force and Page 342 U. S. 592 violence the alien has merely exercised freedoms of speech, press and assembly which that Amendment guarantees to him. The assumption is that the First Amendment allows Congress to make no distinction between advocating change in the existing order by lawful elective processes and advocating change by force and violence, that freedom for the one includes freedom for the other, and that, when teaching of violence is denied, so is freedom of speech. Our Constitution sought to leave no excuse for violent attack on the status quo by providing a legal alternative -- attack by ballot. To arm all men for orderly change, the Constitution put in their hands a right to influence the electorate by press, speech, and assembly. This means freedom to advocate or promote Communism by means of the ballot box, but it does not include the practice or incitement of violence. [ Footnote 18 ] True, it often is difficult to determine whether ambiguous speech is advocacy of political methods or subtly shades into a methodical but prudent incitement to violence. Communist Governments avoid the inquiry by suppressing everything distasteful. Some would have us avoid the difficulty by going to the opposite extreme of permitting incitement to violent overthrow, at least unless it seems certain to succeed immediately. We apprehend that the Constitution enjoins upon us the duty, however difficult, of distinguishing between the two. Different formulae have been applied in different situations, and the test applicable to the Communist Party has been stated too recently to make further discussion at this time profitable. [ Footnote 19 ] We think the First Amendment does not prevent the deportation of these aliens. Page 342 U. S. 593 III The remaining claim is that this Act conflicts with Art. I, § 9, of the Constitution, forbidding ex post facto enactments. An impression of retroactivity results from reading as a new and isolated enactment what is actually a continuation of prior legislation. During all the years since 1920, Congress has maintained a standing admonition to aliens, on pain of deportation, not to become members of any organization that advocates overthrow of the United States Government by force and violence, a category repeatedly held to include the Communist Party. These aliens violated that prohibition, and incurred liability to deportation. They were not caught unawares by a change of law. There can be no contention that they were not adequately forewarned both that their conduct was prohibited and of its consequences. In 1939, this Court decided Kessler v. Strecker, 307 U. S. 22 , in which it was held that Congress, in the statute as it then stood, had not clearly expressed an intent that Communist Party membership remained cause for deportation after it ceased. [ Footnote 20 ] The Court concluded that, in the absence of such expression, only contemporaneous membership would authorize deportation. The reaction of the Communist Party was to drop aliens from membership, at least in form, in order to immunize them from the consequences of their party membership. The reaction of Congress was that the Court had misunderstood its legislation. In the Act here before us, it supplied unmistakable language that past violators of its prohibitions continued to be deportable in spite of resignation or expulsion from the party. It regarded the fact Page 342 U. S. 594 that an alien defied our laws to join the Communist Party as an indication that he had developed little comprehension of the principles or practice of representative government or else was unwilling to abide by them. However, even if the Act were found to be retroactive, to strike it down would require us to overrule the construction of the ex post facto provision which has been followed by this Court from earliest times. It always has been considered that that which it forbids is penal legislation which imposes or increases criminal punishment for conduct lawful previous to its enactment. [ Footnote 21 ] Deportation, however severe its consequences, has been consistently classified as a civil, rather than a criminal, procedure. [ Footnote 22 ] Both of these doctrines, as original proposals, might be debatable, but both have been considered closed for many years, and a body of statute and decisional law has been built upon them. In Bugajewitz v. Adams, 228 U. S. 585 , 228 U. S. 591 , Mr. Justice Holmes, for the Court, said: "It is thoroughly established that Congress has power to order the deportation of aliens whose presence in the country it deems hurtful. The determination by facts that might constitute a crime under local law is not a conviction of crime, nor is the deportation a punishment; it is simply a refusal by the government to harbor persons whom it does not want. The coincidence of the local penal law with the policy of Congress is an accident. . . . The prohibition of ex post facto laws in article 1, § 9, has no application . . . and with regard to the petitioner, it is not necessary to construe the statute as having any retrospective effect." Later, the Court said, "It is well settled that deportation, while it may be burdensome and severe for Page 342 U. S. 595 the alien, is not a punishment. . . . The inhibition against the passage of an ex post facto law by Congress in section 9 of article 1 of the Constitution applies only to criminal laws . . . , and not to a deportation act like this. . . ." Mabler v. Eby, 264 U. S. 32 , 264 U. S. 39 . It is urged against the foregoing opinions that, in a few cases, the ex post facto prohibition had been applied to what appeared to be civil disabilities. Fletcher v. Peck , 6 Cranch 87; Cummings v. Missouri , 4 Wall. 277; Ex parte Garland , 4 Wall. 333; Pierce v. Carskadon , 16 Wall. 234. The Court has since explained that those cases proceeded from the view that novel disabilities there imposed upon citizens were really criminal penalties for which civil form was a disguise. Burgess v. Salmon, 97 U. S. 381 , 97 U. S. 385 . Those cases were known to the Justices who promulgated the above-quoted opinions, but have never been considered to govern deportation. The facts of this case afford no basis for reconsidering or modifying the long settled doctrine. It is contended that this policy allows no escape by reformation. We are urged to apply some doctrine of atonement and redemption. Congress might well have done so, but it is not for the judiciary to usurp the function of granting absolution or pardon. We cannot do so for deportable ex-convicts, even though they have served a term of imprisonment calculated to bring about their reformation. When the Communist Party, as a matter of party strategy, formally expelled alien members en masse, it destroyed any significance that discontinued membership might otherwise have as indication of change of heart by the individual. Congress may have believed that the party tactics threw upon the Government an almost impossible burden if it attempted to separate those who sincerely renounced Communist principles of force and violence from those who left the party the better to serve Page 342 U. S. 596 it. Congress, exercising the wide discretion that it alone has in these matters, declined to accept that as the Government's burden. We find none of the constitutional objections to the Act well founded. The judgments accordingly are Affirmed. MR. JUSTICE CLARK took no part in the consideration or decision of these cases. * Together with No. 206, Mascitti v. McGrath, Attorney General, on appeal from the United States District Court for the District of Columbia, and No. 264, Coleman v. McGrath, Attorney General, et al., also on appeal from the United States District Court for the District of Columbia. [ Footnote 1 ] 54 Stat. 670, 8 U.S.C. § 137. [ Footnote 2 ] 90 F. Supp. 397. [ Footnote 3 ] 187 F.2d 137. [ Footnote 4 ] Petitioner Harisiades and appellant Coleman contend that the proceedings against them must be nullified for failure to conform to the requirements of the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. § 1001 et seq. However, § 12 of the Act, 60 Stat. 244, 5 U.S.C. § 1011, provides that ". . . no procedural requirement shall be mandatory as to any agency proceeding initiated prior to the effective date of such requirement." The proceedings against Harisiades and Coleman were instituted before the effective date of the Act. Harisiades also contends that, the Administrative Procedure Act aside, he was denied procedural due process in that, in his 1946-1947 hearings, the same individual acted both as presiding officer and examining officer. However, it appears that the officer here performed both functions with Harisiades' consent. He therefore has no standing to raise the objection now. [ Footnote 5 ] 40 Stat. 548, as amended, 8 U.S.C. § 732(a)(13), (16), (17), (18), (19); 61 Stat. 122, as amended, 8 U.S.C. § 735. But a certificate of naturalization is subject to revocation on the ground of fraud or other illegality in the procurement. 54 Stat. 1158, 8 U.S.C. § 738; Knauer v. United States, 328 U. S. 654 . [ Footnote 6 ] § 2 of the Selective Draft Act of 1917, 40 Stat. 76, as amended, 50 U.S.C. App. § 202; § 3 of the Selective Training and Service Act of 1940, 54 Stat. 885, as amended, 50 U.S.C. App. § 303; § 4(a) of the Selective Service Act of 1948, 62 Stat. 604, as amended, 50 U.S.C. App. § 454(a). Cf. Moser v. United States, 341 U. S. 41 . [ Footnote 7 ] Article 23, 1907 Hague Convention, Respecting the Laws and Customs of War on Land, 36 Stat. 2301-2302. [ Footnote 8 ] Borchard, Diplomatic Protection of Citizens Abroad, 64. [ Footnote 9 ] This Court has held that the Constitution assures him a large measure of equal economic opportunity, Yick Wo v. Hopkins, 118 U. S. 356 ; Truax v. Raich, 239 U. S. 33 ; he may invoke the writ of habeas corpus to protect his personal liberty, Nishimura Ekiu v. United States, 142 U. S. 651 , 142 U. S. 660 ; in criminal proceedings against him, he must be accorded the protections of the Fifth and Sixth Amendments, Wong Wing v. United States, 163 U. S. 228 ; and, unless he is an enemy alien, his property cannot be taken without just compensation. Russian Volunteer Fleet v. United States, 282 U. S. 481 . [ Footnote 10 ] He cannot stand for election to many public offices. For instance, Art. I, § 2, cl. 2, § 3, cl. 3, of the Constitution respectively require that candidates for election to the House of Representatives and Senate be citizens. See Borchard, Diplomatic Protection of Citizens Abroad, 63. The states, to whom is entrusted the authority to set qualifications of voters, for most purposes require citizenship as a condition precedent to the voting franchise. The alien's right to travel temporarily outside the United States is subject to restrictions not applicable to citizens. 43 Stat. 158, as amended, 8 U.S.C. § 210. If he is arrested on a charge of entering the country illegally, the burden is his to prove "his right to enter or remain" -- no presumptions accrue in his favor by his presence here. 39 Stat. 889, as amended, 8 U.S.C. § 155(a). [ Footnote 11 ] Fong Yue Ting v. United States, 149 U. S. 698 , 149 U. S. 707 , 149 U. S. 711 -714, 149 U. S. 730 ; Lem Moon Sing v. United States, 158 U. S. 538 , 158 U. S. 545 -546; Li Sing v. United States, 180 U. S. 486 , 180 U. S. 494 -495; Fok Yung Yo v. United States, 185 U. S. 296 , 185 U. S. 302 ; The Japanese Immigrant Case, 189 U. S. 86 , 189 U. S. 97 ; United States v. Ju Toy, 198 U. S. 253 , 198 U. S. 261 ; Zakonaite v. Wolf, 226 U. S. 272 , 226 U. S. 275 ; Chuoco Tiaco v. Forbes, 228 U. S. 549 , 228 U. S. 556 -557; Bugajewitz v. Adams, 228 U. S. 585 , 228 U. S. 591 . [ Footnote 12 ] 40 Stat. 531, 50 U.S.C. § 21. [ Footnote 13 ] 40 Stat. 411, 50 U.S.C. App. § 2(c); 40 Stat. 415, 50 U.S.C. App. § 6; 62 Stat. 1246, 50 U.S.C. App. § 39; Guessefeldt v. McGrath, 342 U. S. 308 . [ Footnote 14 ] ". . . [I]n strict law, a State can expel even domiciled aliens without so much as giving the reasons, the refusal of the expelling State to supply the reasons for expulsion to the home State of the expelled alien does not constitute an illegal, but only a very unfriendly, act." 1 Oppenheim, International Law (3d ed., Roxburgh, 1920), 498-502 at 499. But cf. 1 Oppenheim, International Law (7th ed., Lauterpacht, 1948), 630-634 at 631. See also 4 Moore, International Law Digest, 67-96, citing examples; Wheaton's International Law (6th ed., Keith, 1929) 210-211; Fong Yue Ting v. United States, 149 U. S. 698 . [ Footnote 15 ] An open door to the immigrant was the early federal policy. It began to close in 1884, when Orientals were excluded. 23 Stat. 115. Thereafter, Congress has intermittently added to the excluded classes, and, as rejections at the border multiplied, illegal entries increased. To combat these, recourse was had to deportation in the Act of 1891, 26 Stat. 1086. However, that Act could be applied to an illegal entrant only within one year after his entry. Although that time limitation was subsequently extended, 32 Stat. 1218, 34 Stat. 904-905, until after the turn of the century, expulsion was used only as an auxiliary remedy to enforce exclusion. Congress, in 1907, provided for deportation of legally resident aliens, but the statute reached only women found engaging in prostitution, and deportation proceedings were authorized only within three years after entry. From those early steps, the policy has been extended. In 1910, new classes of resident aliens were listed for deportation, including, for the first time, political offenders such as anarchists and those believing in or advocating the overthrow of the Government by force and violence. 36 Stat. 264. In 1917, aliens who were found after entry to be advocating anarchist doctrines or the overthrow of the Government by force and violence were made subject to deportation, a five-year time limit being retained. 39 Stat. 889. A year later, deportability because of membership in described subversive organizations was introduced. 40 Stat. 1012; 41 Stat. 1008. When this Court, in 1939, held that that Act reached only aliens who were members when the proceedings against them were instituted, Kessler v. Strecker, 307 U. S. 22 , Congress promptly enacted the statute before us, making deportation mandatory for all aliens who at any time past have been members of the proscribed organizations. In so doing it also eliminated the time limit for institution of proceedings thereunder. Alien Registration Act, 1940, 54 Stat. 670, 673. [ Footnote 16 ] United States v. Curtiss-Wright Export Corp., 299 U. S. 304 , 299 U. S. 319 -322; Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U. S. 103 , 333 U. S. 111 ; U.S.Const. Art. IV, § 4; Luther v. Borden , 7 How. 1, 48 U. S. 42 ; Pacific States Telephone & Telegraph Co. v. Oregon, 223 U. S. 118 ; Marshall v. Dye, 231 U. S. 250 . In respect to the war power over even citizens, see Kiyoshi Hirabayashi v. United States, 320 U. S. 81 , 320 U. S. 92 ; Toyosaburo Korematsu v. United States, 323 U. S. 214 , 323 U. S. 217 -218. That English courts also refuse to review grounds for deportation orders appears from Rex v. Home Secretary; Ex parte Bressler, 27 Cox Crim. Cases 655. [ Footnote 17 ] Kiyoshi Hirabayashi v. United States, 320 U. S. 81 ; Toyosaburo Korematsu v. United States, 323 U. S. 214 . [ Footnote 18 ] Dennis v. United States, 341 U. S. 494 . [ Footnote 19 ] Ibid. [ Footnote 20 ] 40 Stat. 1012. [ Footnote 21 ] Calder v. Bull , 3 Dall. 386, 3 U. S. 390 ; Johannessen v. United States, 225 U. S. 227 , 225 U. S. 242 . [ Footnote 22 ] Fong Yue Ting v. United States, 149 U. S. 698 , 149 U. S. 730 ; Bugajewitz v. Adams, 228 U. S. 585 , 228 U. S. 591 ; Bilokumsky v. Tod, 263 U. S. 149 , 263 U. S. 154 . MR. JUSTICE FRANKFURTER, concurring. It is not for this Court to reshape a world order based on politically sovereign States. In such an international ordering of the world, a national State implies a special relationship of one body of people, i.e., citizens of that State, whereby the citizens of each State are aliens in relation to every other State. Ever since national States have come into being, the right of people to enjoy the hospitality of a which they are not citizens has been a matter of political determination by each State. (I put to one side the oddities of dual citizenship.) Though, as a matter of political outlook and economic need, this country has traditionally welcomed aliens to come to its shores, it has done so exclusively as a matter of political outlook and national self-interest. This policy has been a political policy, belonging to the political branch of the Government wholly outside the concern and the competence of the Judiciary. Accordingly, when this policy changed and the political and lawmaking branch of this Government, the Congress, decided to restrict the right of immigration about seventy years ago, this Court, thereupon and ever since, has recognized that the determination of a selective and exclusionary immigration policy was for the Congress, and not for the Judiciary. The conditions for entry of every alien, Page 342 U. S. 597 the particular classes of aliens that shall be denied entry altogether, the basis for determining such classification, the right to terminate hospitality to aliens, the grounds on which such determination shall be based, have been recognized as matters solely for the responsibility of the Congress and wholly outside the power of this Court to control. The Court's acknowledgment of the sole responsibility of Congress for these matters has been made possible by Justices whose cultural outlook, whose breadth of view and robust tolerance, were not exceeded by those of Jefferson. In their personal views, libertarians like Mr. Justice Holmes and Mr. Justice Brandeis doubtless disapproved of some of these policies, departures as they were from the best traditions of this country and based as they have been in part on discredited racial theories or manipulation of figures in formulating what is known as the quota system. But whether immigration laws have been crude and cruel, whether they may have reflected xenophobia in general or anti-Semitism or anti-Catholicism, the responsibility belongs to Congress. Courts do enforce the requirements imposed by Congress upon officials in administering immigration laws, e.g., Kwock Jan Fat v. White, 253 U. S. 454 , and the requirement of Due Process may entail certain procedural observances. E.g., Ng Fung Ho v. White, 259 U. S. 276 . But the underlying policies of what classes of aliens shall be allowed to enter and what classes of aliens shall be allowed to stay are for Congress exclusively to determine, even though such determination may be deemed to offend American traditions and may, as has been the case, jeopardize peace. In recognizing this power and this responsibility of Congress, one does not in the remotest degree align oneself with fears unworthy of the American spirit, or with Page 342 U. S. 598 hostility to the bracing air of the free spirit. One merely recognizes that the place to resist unwise or cruel legislation touching aliens is the Congress, not this Court. I therefore join in the Court's opinion in these cases. MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs, dissenting. There are two possible bases for sustaining this Act: (1) A person who was once a Communist is tainted for all time, and forever dangerous to our society; or (2) Punishment through banishment from the country may be placed upon an alien not for what he did, but for what his political views once were. Each of these is foreign to our philosophy. We repudiate our traditions of tolerance and our articles of faith based upon the Bill of Rights when we bow to them by sustaining an Act of Congress which has them as a foundation. The view that the power of Congress to deport aliens is absolute, and may be exercised for any reason which Congress deems appropriate, rests on Fong Yue Ting v. United States, 149 U. S. 698 , decided in 1893 by a six-to-three vote. That decision seems to me to be inconsistent with the philosophy of constitutional law which we have developed for the protection of resident aliens. We have long held that a resident alien is a "person" within the meaning of the Fifth and the Fourteenth Amendments. He therefore may not be deprived either by the National Government or by any state of life, liberty, or property without due process of law. Nor may he be denied the equal protection of the laws. A state was not allowed to exclude an alien from the laundry business because he was a Chinese, [ Footnote 2/1 ] nor discharge him from employment because Page 342 U. S. 599 he was not a citizen, [ Footnote 2/2 ] nor deprive him of the right to fish because he was a Japanese ineligible to citizenship. [ Footnote 2/3 ] An alien's property (provided he is not an enemy alien), may not be taken without just compensation. [ Footnote 2/4 ] He is entitled to habeas corpus to test the legality of his restraint, [ Footnote 2/5 ] to the protection of the Fifth and Sixth Amendments in criminal trials, [ Footnote 2/6 ] and to the right of free speech as guaranteed by the First Amendment. [ Footnote 2/7 ] An alien who is assimilated in our society is treated as a citizen so far as his property and his liberty are concerned. He can live and work here and raise a family, secure in the personal guarantees every resident has and safe from discriminations that might be leveled against him because he was born abroad. Those guarantees of liberty and livelihood are the essence of the freedom which this country, from the beginning, has offered the people of all lands. If those rights, great as they are, have constitutional protection, I think the more important one -- the right to remain here -- has a like dignity. The power of Congress to exclude, admit, or deport aliens flows from sovereignty itself, and from the power "To establish an uniform Rule of Naturalization." U.S.Const., Art. I, § 8, cl. 4. The power of deportation is therefore an implied one. The right to life and liberty is an express one. Why this implied power should be given priority over the express guarantee of the Fifth Amendment has never been satisfactorily answered. Mr. Justice Brewer's dissent in Fong Yue Ting v. United States, supra, at 149 U. S. 737 -738, grows in power with the passing years: "It is said that the power here asserted is inherent in Page 342 U. S. 600 sovereignty. This doctrine of powers inherent in sovereignty is one both indefinite and dangerous. Where are the limits to such powers to be found, and by whom are they to be pronounced? Is it within legislative capacity to declare the limits? If so, then the mere assertion of an inherent power creates it, and despotism exists. May the courts establish the boundaries? Whence do they obtain the authority for this? Shall they look to the practices of other nations of ascertain the limits? The governments of other nations have elastic powers. Ours are fixed, and bounded by a written constitution. The expulsion of a race may be within the inherent powers of a despotism. History, before the adoption of this constitution, was not destitute of examples of the exercise of such a power, and its framers were familiar with history, and wisely, as it seems to me, they gave to this government no general power to banish. Banishment may be resorted to as punishment for crime, but among the powers reserved to the people, and not delegated to the government, is that of determining whether whole classes in our midst shall, for no crime but that of their race and birthplace, be driven from our territory." The right to be immune from arbitrary decrees of banishment certainly may be more important to "liberty" than the civil rights which all aliens enjoy when they reside here. Unless they are free from arbitrary banishment, the "liberty" they enjoy while they live here is indeed illusory. Banishment is punishment in the practical sense. It may deprive a man and his family of all that makes life worthwhile. Those who have their roots here have an important stake in this country. Their plans for themselves and their hopes for their children all depend on their right to stay. If they are uprooted and sent to lands no longer known to them, no longer hospitable, they become displaced, homeless people condemned to bitterness and despair. Page 342 U. S. 601 This drastic step may at times be necessary in order to protect the national interest. There may be occasions when the continued presence of an alien, no matter how long he may have been here, would be hostile to the safety or welfare of the Nation due to the nature of his conduct. But, unless such condition is shown, I would stay the hand of the Government and let those to whom we have extended our hospitality and who have become members of our communities remain here and enjoy the life and liberty which the Constitution guarantees. Congress has not proceeded by that standard. It has ordered these aliens deported not for what they are, but for what they once were. Perhaps a hearing would show that they continue to be people dangerous and hostile to us. But the principle of forgiveness and the doctrine of redemption are too deep in our philosophy to admit that there is no return for those who have once erred. [ Footnote 2/1 ] Yick Wo v. Hopkins, 118 U. S. 356 . [ Footnote 2/2 ] Truax v. Raich, 239 U. S. 33 . [ Footnote 2/3 ] Takahashi v. Fish and Game Commission, 334 U. S. 410 . [ Footnote 2/4 ] Russian Volunteer Fleet v. United States, 282 U. S. 481 . [ Footnote 2/5 ] Nishimura Ekiu v. United States, 142 U. S. 651 , 142 U. S. 660 . [ Footnote 2/6 ] Wong Wing v. United States, 163 U. S. 228 . [ Footnote 2/7 ] Bridges v. California, 314 U. S. 252 .

In *Harisiades v. Shaughnessy* (1952), the Supreme Court upheld the constitutionality of the Alien Registration Act of 1940, which authorized the deportation of legally resident aliens due to their Communist Party membership, even if it ended before the law was passed. The Court ruled that Congress has broad power over immigration and deportation, and this law did not violate the First or Fifth Amendments or the prohibition on ex post facto laws. The Court also addressed procedural issues related to the Administrative Procedure Act and standing to raise due process claims.

Immigration & National Security

Cramer v. U.S.

https://supreme.justia.com/cases/federal/us/325/1/

U.S. Supreme Court Cramer v. United States, 325 U.S. 1 (1945) Cramer v. United States No. 13 Argued March 9, 1944 Reargued November 6, 1944 Decided April 23, 1945 325 U.S. 1 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus 1. In a prosecution upon an indictment charging treason by adhering to enemies of the United States, giving them aid and comfort, in violation of § 1 of the Criminal Code, the overt act relied on, of which the Constitution requires proof by two witnesses, must be at least an act of the accused sufficient, in its setting, to sustain a finding that the accused actually gave aid and comfort to the enemy. P. 325 U. S. 34 . 2. The protection of the two-witness rule of the Constitution in such case extends at least to all acts of the defendant which are used to draw incriminating inferences that aid and comfort have been given. P. 325 U. S. 33 . 3. In a prosecution upon an indictment charging treason by adhering to enemies of the United States, giving them aid and comfort, in violation of § 1 of the Criminal Code, two of the overt acts alleged and relied on were: "1. Anthony Cramer, the defendant herein, on or about June 23, 1942, at the Southern District of New York and within the jurisdiction of this Court, did meet with Werner Thiel and Edward John Kerling, enemies of the United States, at the Twin Oaks Inn at Lexington Avenue and 44th Street, in the City and New York, and did confer, treat, and counsel with said Werner Thiel Page 325 U. S. 2 and Edward John Kerling for a period of time for the purpose of giving and with intent to give aid and comfort to said enemies, Werner Thiel and Edward John Kerling." "2. Anthony Cramer, the defendant herein, on or about June 23, 1942, at the Southern District of New York and within the jurisdiction of this Court, did accompany, confer, treat, and counsel with Werner Thiel, an enemy of the United States, for a period of time at the Twin Oaks Inn at Lexington Avenue and 44th Street, and at Thompson's Cafeteria on 42nd Street between Lexington and Vanderbilt Avenues, both in the City and New York, for the purpose of giving and with intent to give aid and comfort to said enemy, Werner Thiel." By direct testimony of two or more witnesses, it was established that Cramer met Thiel and Kerling on the occasions and at the places charged; that they drank together, and that they engaged long and earnestly in conversation. There was no proof by two witnesses of what they said, or in what language they conversed; no showing that Cramer gave them any information whatever of value to their mission, or that he had any to give; no showing of any effort at secrecy, they having met in public places, and no evidence that Cramer furnished them shelter, sustenance, or supplies, or that he gave them encouragement or counsel, or even paid for their drinks. Held: that overt acts 1 and 2 as proved were insufficient to support a finding that the accused had given aid and comfort to the enemy, and therefore insufficient to support a judgment of conviction. Pp. 325 U. S. 36 -37, 325 U. S. 48 . 137 F.2d 888 reversed. Certiorari, 320 U.S. 730, to review the affirmance of a judgment of conviction of treason. Page 325 U. S. 3 MR. JUSTICE JACKSON delivered the opinion of the Court. Anthony Cramer, the petitioner, stands convicted of violating Section 1 of the Criminal Code, which provides: "Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason. [ Footnote 1 ]" Cramer owed allegiance to the United States. A German by birth, he had been a resident of the United States since 1925, and was naturalized in 1936. Prosecution resulted from his association with two of the German saboteurs who, in June, 1942, landed on our shores from enemy submarines to disrupt industry in the United States and whose cases we considered in Ex parte Quirin, 317 U. S. 1 . One of those, spared from execution, appeared as a government witness on the trial of Cramer. He testified that Werner Thiel and Edward Kerling were members of that sabotage crew, detailed their plot, and described their preparations for its consummation. Cramer was conscripted into and served in the German Army against the United States in 1918. After the war, he came to this country, intending to remain permanently. So far as appears, he has been of good behavior, never before in trouble with the law. He was studious and intelligent, earning $45 a week for work in a boiler room, and living accordingly. There was no evidence, and the Government makes no claim, that he had foreknowledge that the saboteurs were coming to this country, or that he came into association with them by prearrangement. Cramer, however, had known intimately the saboteur Werner Thiel while the latter lived in this country. They had worked together, Page 325 U. S. 4 roomed together, and jointly had ventured in a small and luckless delicatessen enterprise. Thiel early and frankly avowed adherence to the National Socialist movement in Germany; he foresaw the war, and returned in 1941 for the purpose of helping Germany. Cramer did not do so. How much he sympathized with the doctrines of the Nazi Party is not clear. He became at one time, in Indiana, a member and officer of the Friends of New Germany, which was a predecessor of the Bund. However, he withdrew in 1935, before it became the Bund. He says there was some swindle about it that he did not like, and also that he did not like their drilling and "radical activities." In 1936, he made a trip to Germany, attended the Olympic Games, and saw some of the Bundsmen from this country who went there at that time for conferences with Nazi Party officials. There is no suggestion that Cramer, while there, had any such associations. He does not appear to have been regarded as a person of that consequence. His friends and associates in this country were largely German. His social life in New York City, where he recently had lived, seems to have been centered around Kolping House, a German-Catholic recreational center. Cramer retained a strong affection for his fatherland. He corresponded in German with his family and friends there. Before the United States entered the war, he expressed strong sympathy with Germany in its conflict with other European powers. Before the attack upon Pearl Harbor, Cramer openly opposed participation by this country in the war against Germany. He refused to work on war materials. He expressed concern about being drafted into our army and "misused" for purposes of "world conquest." There is no proof, however, except for the matter charged in the indictment, of any act or utterance disloyal to this country after we entered the war. Page 325 U. S. 5 Coming down to the time of the alleged treason, the main facts, as related on the witness stand by Cramer, are not seriously in dispute. He was living in New York, and, in response to a cryptic note left under his door, which did not mention Thiel, he went to the Grand Central Station. There, Thiel appeared. Cramer had supposed that Thiel was in Germany, knowing that he had left the United States shortly before the war to go there. Together, they went to public places and had some drinks. Cramer denies that Thiel revealed his mission of sabotage. Cramer said to Thiel that he must have come to America by submarine, but Thiel refused to confirm it, although his attitude increased Cramer's suspicion. Thiel promised to tell later how he came to this country. Thiel asked about a girl who was a mutual acquaintance and whom Thiel had engaged to marry previous to his going to Germany. Cramer knew where she was, and offered to and did write to her to come to New York, without disclosing in the letter that Thiel had arrived. Thiel said that he had in his possession about $3,600, but did not disclose that it was provided by the German Government, saying only that one could get money in Germany if he had the right connections. Thiel owed Cramer an old debt of $200. He gave Cramer his money belt containing some $3,600, from which Cramer was to be paid. Cramer agreed to and did place the rest in his own safe deposit box, except a sum which he kept in his room in case Thiel should want it quickly. After the second of these meetings, Thiel and Kerling, who was present briefly at one meeting, were arrested. Cramer's expectation of meeting Thiel later and of bringing him and his fiancée together was foiled. Shortly thereafter, Cramer was arrested, tried, and found guilty. The trial judge at the time of sentencing said: "I shall not impose the maximum penalty of death. It does not appear that this defendant Cramer was aware Page 325 U. S. 6 that Thiel and Kerling were in possession of explosives or other means for destroying factories and property in the United States, or planned to do that." "From the evidence, it appears that Cramer had no more guilty knowledge of any subversive purposes on the part of Thiel or Kerling than a vague idea that they came here for the purpose of organizing pro-German propaganda and agitation. If there were any proof that they had confided in him what their real purposes were, or that he knew, or believed what they really were, I should not hesitate to impose the death penalty." Cramer's case raises questions as to application of the Constitutional provision that "Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. [ Footnote 2 ]" Cramer's contention may be well stated in words of Judge Learned Hand in United States v. Robinson: [ Footnote 3 ] "Nevertheless, a question may indeed be raised whether the prosecution may lay as an overt act a step taken in execution of the traitorous design, innocent in itself, and getting its treasonable character only from some covert and undeclared intent. It is true that, in prosecutions for conspiracy under our federal statute, it is well settled that any step in performance of the conspiracy is enough, though it is innocent except for its relations to the agreement. I doubt very much whether that rule has any application to the case of treason, where the requirement affected the character of the pleading and proof, rather than accorded a season of repentance before the crime should be complete. Lord Reading, in his charge in Page 325 U. S. 7 Casement's Case, uses language which accords with my understanding:" " Overt acts are such acts as manifest a criminal intention, and tend towards the accomplishment of the criminal object. They are acts by which the purpose is manifested and the means by which it is intended to be fulfilled. [ Footnote 4 ]" The Government, however, contends for, and the court below has affirmed, this conviction upon a contrary principle. [ Footnote 5 ] It said: "We believe, in short, that no more need be laid for an overt act of treason than for an overt act of conspiracy. . . . Hence, we hold the overt acts relied on were sufficient to be submitted to the jury, even though they perhaps may have appeared as innocent on their face." A similar conclusion was reached in United States v. Fricke; [ Footnote 6 ] it is: "An overt act, in itself, may be a perfectly innocent act standing by itself; it must be in some manner in furtherance of the crime." As lower courts thus have taken conflicting positions, or, where the issue was less clearly drawn, have dealt with the problem ambiguously, [ Footnote 7 ] we granted certiorari, [ Footnote 8 ] and, after argument at the October 1943 Term, we invited Page 325 U. S. 8 reargument addressed to specific questions. [ Footnote 9 ] Since our primary question here is the meaning of the Constitutional provision, we turn to its solution before considering its application to the facts of this case. I When our forefathers took up the task of forming an independent political organization for New World society, no one of them appears to have doubted that to bring into being a new government would originate a new allegiance for its citizens and inhabitants. Nor were they reluctant to punish as treason any genuine breach of allegiance, as every government time out of mind had done. The betrayal of Washington by Arnold was fresh in mind. They were far more awake to powerful enemies with designs on this continent than some of the intervening generations have been. England was entrenched in Canada to the north, and Spain had repossessed Florida to the south, and each had been the scene of invasion of the Colonies; the King of France had but lately been dispossessed in the Ohio Valley; Spain claimed the Mississippi Valley; and, except for the seaboard, the settlements were surrounded by Indians -- not negligible as enemies themselves, and especially threatening when allied to European foes. The proposed national government could not for some years become firmly seated in the tradition or in the habits of Page 325 U. S. 9 the people. There is no evidence that the forefathers intended to withdraw the treason offense from use as an effective instrument of the new nation's security against treachery that would aid external enemies. The forefathers also had suffered from disloyalty. Success of the Revolution had been threatened by the adherence of a considerable part of the population to the King. The Continental Congress adopted a resolution after a report by its "Committee on Spies" [ Footnote 10 ] which, in effect, declared that all persons residing within any colony owed allegiance to it, and that, if any such persons adhered to the King of Great Britain, giving him aid and comfort, they were guilty of treason, and which urged the colonies to pass laws for punishment of such offenders "as shall be provably attainted of open deed." [ Footnote 11 ] Many of the colonies complied, and a variety of laws, mostly modeled Page 325 U. S. 10 on English law, resulted. [ Footnote 12 ] Some of the legislation in later years became so broad and loose as to make treason of Page 325 U. S. 11 mere utterance of opinion. [ Footnote 13 ] Many a citizen, in a time of unsettled and shifting loyalties, was thus threatened under Page 325 U. S. 12 English law, which made him guilty of treason if he adhered to the government of his colony, and also under colonial law, which made him guilty of treason if he adhered to his King. [ Footnote 14 ] Not a few of these persons were subjected to confiscation of property or other harsh treatment by the Revolutionists under local laws -- none, however, so far as appears, to capital punishment. [ Footnote 15 ] Before this revolutionary experience, there were scattered treason prosecutions in the colonies, [ Footnote 16 ] usually not well reported. Some colonies had adopted treason statutes modeled on English legislation. [ Footnote 17 ] But the earlier colonial experience seems to have been regarded as of Page 325 U. S. 13 a piece with that of England, and appears not to have much influenced the framers in their dealings with the subject. However, their experience with treason accusations had been many-sided. More than a few of them were descendants Page 325 U. S. 14 of those who had fled from measures against sedition and its ecclesiastic counterpart, heresy. Now the treason offense was under revision by a Convention whose members almost to a man had themselves been guilty of treason under any interpretation of British law. [ Footnote 18 ] They not only had levied war against their King themselves, but they had conducted a lively exchange of aid and comfort with France, then England's ancient enemy. Every step in the great work of their lives, from the first mild protests against kingly misrule to the final act of separation, had been taken under the threat of treason charges. [ Footnote 19 ] The Declaration of Independence may seem cryptic in denouncing George III "for transporting us beyond Seas to be tried for pretended offenses," but the specific grievance was recited by the Continental Congress nearly two years before in saying that ". . . it has lately been resolved in Parliament, that, by force of a statute, made in the thirty-fifth year of the reign of King Henry the eighth, colonists may be transported to England, and tried there upon accusations for treasons, and misprisions, or concealments Page 325 U. S. 15 of treasons committed in the colonies, and by a late statute, such trials have been directed in cases therein mentioned. [ Footnote 20 ]" The Convention numbered among its members men familiar with government in the Old World, and they looked back upon a long history of use and abuse of the treason charge. [ Footnote 21 ] The English stream of thought concerning Page 325 U. S. 16 treasons began to flow in fairly definable channels in 1351 with the enactment of the great Treason Act, 25 Edw. III, Stat. 5, Ch. 2. [ Footnote 22 ] That was a monumental piece Page 325 U. S. 17 of legislation several times referred to in the deliberations of the Convention. It cut a benchmark by which the English-speaking world tested the level of its thought on the subject [ Footnote 23 ] until our own abrupt departure from it in Page 325 U. S. 18 1789, and after 600 years, it still is the living law of treason in England. Roger Casement in 1917 forfeited his life for violating it. [ Footnote 24 ] We, of course, can make no independent judgment as to the inward meanings of the terms used in a six-century-old statute, written in a form of Norman French that had become obsolete long before our Revolution. We can read this statute only as our forebears read it -- through the eyes of succeeding generations of English judges, to whom it has been the core of all decision, and of common law commentators, to whom it has been the text. [ Footnote 25 ] Page 325 U. S. 19 Adjudicated cases in English history generally have dealt with the offense of compassing the monarch's death; Page 325 U. S. 20 only eleven reported English cases antedating the Constitution are cited as involving distinct charges of adherence to the King's enemies. [ Footnote 26 ] When constructive treasons were not joined on the face of the indictment, it is not possible to say how far they were joined in the minds of the judges. No decision appears to have been a factor in the deliberations of our own Constitutional Convention. Nor does any squarely meet our issue here, and for good reason -- the Act of Edward III did not contain the "two witnesses to the same overt act" requirement which precipitates the issue here. Historical materials are therefore of little help; necessity as well as desire taught a concept that differed from all historical models in the drafting of our treason clause. Treason statutes theretofore had been adapted to a society in which the state was personified by a king, on whose person were focused the allegiances and loyalties of the subject. When government was made representative of the whole body of the governed, there was none to say "I Page 325 U. S. 21 am the State," and a concept of treason as compassing or imagining a ruler's death was no longer fitting. Nor can it be gainsaid that the revolutionary doctrine that the people have the right to alter or abolish their government relaxed the loyalty which governments theretofore had demanded -- dangerously diluted it, as the ruling classes of Europe thought, for, in their eyes, the colonists not only committed treason, they exalted it. [ Footnote 27 ] The idea that loyalty will ultimately be given to a government only so long as it deserves loyalty, and that opposition to its abuses is not treason, [ Footnote 28 ] has made our government tolerant of opposition based on differences of opinion that in some parts of the world would have kept the hangman busy. But the basic law of treason in this country was framed by men who, as we have seen, were taught by experience and by history to fear abuse of the treason charge almost as much as they feared treason itself. The interplay in Page 325 U. S. 22 the Convention of their two fears accounts for the problem which faces us today. II We turn then to the proceedings of the Constitutional Convention of 1787 so far as we have record of them. The plan presented by Pinckney evidently proposed only that Congress should have exclusive power to declare what should be treason and misprision of treason against the United States. [ Footnote 29 ] The Committee on Detail, apparently not specifically instructed on the subject, reported a draft Constitution which left no such latitude to create new treasons. It provided that: "Treason against the United States shall consist only in levying war against the United States, or any of them, and in adhering to the enemies of the United States, or any of them. The Legislature of the United States shall have power to declare the punishment of treason. No person shall be convicted of treason unless on the testimony of two witnesses. No attainder of treason shall work corruption of bloods, nor forfeiture, except during the life of the person attained. [ Footnote 30 ]" This clause was discussed on August 20, 1787. Mr. Madison, who opened the discussion, "thought the definition too narrow. It did not appear to go as far as the Stat. of Edwd III. He did not see why more latitude might not be left to the Legislature. It wd. be as safe in the hands of State legislatures, and it was inconvenient to bar a discretion which experience might enlighten, and which might be applied to good purposes as well as be abused. [ Footnote 31 ]" Mr. Mason was in favor of following the language of the Statute of Edward III. The discussion shows some confusion as to the effect of adding the words "giving them aid and comfort," some thinking their effect restrictive Page 325 U. S. 23 and others that they gave a more extensive meaning. However, "Col. Mason moved to insert the words 'giving [them] aid comfort,' as restrictive of 'adhering to their Enemies, &c' -- the latter, he thought, would be otherwise too indefinite." The motion prevailed. Mr. Dickenson "wished to know what was meant by the 'testimony of two witnesses,' whether they were to be witnesses to the same overt act or to different overt acts. He thought also that proof of an overt act ought to be expressed as essential to the case." Doctor Johnson also "considered . . . that something should be inserted in the definition concerning overt acts." When it was moved to insert "to the same overt act" after the two witnesses requirement, Madison notes that "Doc'r. Franklin wished this amendment to take place -- prosecutions for treason were generally virulent, and perjury too easily made use of against innocence." James Wilson observed that "Much may be said on both sides. Treason may sometimes be practiced in such a manner as to render proof extremely difficult -- as in a traitorous correspondence with an Enemy. [ Footnote 32 ]" But the motion carried. By this sequence of proposals, the treason clause of the Constitution took its present form. The temper and attitude of the Convention toward treason prosecutions is unmistakable. It adopted every limitation that the practice of governments had evolved or that politico-legal philosophy Page 325 U. S. 24 to that time had advanced. [ Footnote 33 ] Limitation of the treason of adherence to the enemy to cases where aid and comfort were given and the requirement of an overt act were both found in the Statute of Edward III praised in the writings of Coke and Blackstone, and advocated in Montesquieu's Spirit of Laws. Likewise, the two witness requirement had been used in other statutes, [ Footnote 34 ] was advocated by Montesquieu in all capital cases, [ Footnote 35 ] and was a familiar precept of the New Testament, [ Footnote 36 ] and of Mosaic law. [ Footnote 37 ] The framers combined all of these known protections and added two of their own which had no precedent. They wrote into the organic act of the new government a prohibition of legislative or judicial creation of new treasons. And a venerable safeguard against false testimony was given a novel application by requiring two witnesses to the same overt act. District of treason prosecutions was not just a transient mood of the Revolutionists. In the century and a half of our national existence, not one execution on a federal treason conviction has taken place. Never before has this Court had occasion to review a conviction. In the few cases that have been prosecuted, the treason clause has had its only judicial construction by individual Justices of this Court presiding at trials on circuit or by district Page 325 U. S. 25 or circuit judges. [ Footnote 38 ] After constitutional requirements have been satisfied, and after juries have convicted Page 325 U. S. 26 and courts have sentenced, Presidents again and again have intervened to mitigate judicial severity or to pardon entirely. We have managed to do without treason prosecutions to a degree that probably would be impossible except while a people was singularly confident of external security and internal stability. [ Footnote 39 ] Page 325 U. S. 27 III Historical materials aid interpretation chiefly in that they show two kinds of dangers against which the framers were concerned to guard the treason offense: (1) perversion by established authority to repress peaceful political opposition, and (2) conviction of the innocent as a result of perjury, passion, or inadequate evidence. The first danger could be diminished by closely circumscribing the kind of conduct which should be treason -- making the constitutional definition exclusive, making it clear, and making the offense one not susceptible of being inferred from all sorts of insubordinations. The second danger lay in the manner of trial and was one which would be diminished Page 325 U. S. 28 mainly by procedural requirements -- mainly, but not wholly, for the hazards of trial also would be diminished by confining the treason offense to kinds of conduct susceptible of reasonably sure proof. The concern uppermost in the framers' minds, that mere mental attitudes or expressions should not be treason, influenced both definition of the crime and procedure for its trial. In the proposed Constitution, the first sentence of the treason article undertook to define the offense; the second, to surround its trial with procedural safeguards. "Compassing' and like loose concepts of the substance of the offense had been useful tools for tyranny. So one of the obvious things to be put into the definition of treason not consisting of actual levying of war was that it must consist of doing something. This the draft Constitution failed to provide, for, as we have pointed out, it defined treason [ Footnote 40 ] as merely 'adhering to the enemies of the United States, or any of them." Treason of adherence to an enemy was old in the law. It consisted of breaking allegiance to one's own King by forming an attachment to his enemy. Its scope was comprehensive, its requirements indeterminate. It might be predicated on intellectual or emotional sympathy with the foe, or merely lack of zeal in the cause of one's own country. That was not the kind of disloyalty the framers thought should constitute treason. They promptly accepted the proposal to restrict it to cases where also there was conduct which was "giving them aid and comfort." "Aid and comfort" was defined by Lord Reading in the Casement trial comprehensively, as it should be, and yet probably with as much precision as the nature of the matter will permit: ". . . an act which strengthens or tends to strengthen the enemies of the King in the conduct of a Page 325 U. S. 29 war against the King, that is in law the giving of aid and comfort" and "an act which weakens or tends to weaken the power of the King and of the country to resist or to attack the enemies of the King and the country . . . is . . . giving of aid and comfort." Lord Reading explained it, as we think one must, in terms of an "act." It is not easy, if indeed possible, to think of a way in which "aid and comfort" and be "given" to an enemy except by some kind of action. Its very nature partakes of a deed or physical activity, as opposed to a mental operation. Thus, the crime of treason consists of two elements: adherence to the enemy and rendering him aid and comfort. A citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country's policy or interest, but, so long as he commits no act of aid and comfort to the enemy, there is no treason. On the other hand, a citizen may take actions which do aid and comfort the enemy -- making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength -- but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason. Having thus, by definition, made treason consist of something outward and visible and capable of direct proof, the framers turned to safeguarding procedures of trial, and ordained that "No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." This repeats in procedural terms the concept that thoughts and attitudes alone cannot make a treason. It need not trouble us that we find so dominant a purpose emphasized in two different ways. But does the procedural requirement add some limitation not already present in the definition of the crime, and, if so, what? Page 325 U. S. 30 While to prove giving of aid and comfort would require the prosecution to show actions and deeds, if the Constitution stopped there, such acts could be inferred from circumstantial evidence. This the framers thought would not do. [ Footnote 41 ] So they added what in effect is a command that the overt acts must be established by direct evidence, and the direct testimony must be that of two witnesses, instead of one. In this sense, the overt act procedural provision adds something, and something important, to the definition. Our problem begins where the Constitution ends. That instrument omits to specify what relation the indispensable overt act must sustain to the two elements of the offense as defined: viz., adherence and giving aid and comfort. It requires that two witnesses testify to the same overt act, and, clearly enough, the act must show something toward treason, but what? Must the act be one of giving aid and comfort? If so, how must adherence to the enemy, the disloyal state of mind, be shown? The defendant especially challenges the sufficiency of Page 325 U. S. 31 the overt acts to prove treasonable intention. Questions of intent in a treason case are even more complicated than in most criminal cases because of the peculiarity of the two different elements which together make the offense. Of course, the overt acts of aid and comfort must be intentional, as distinguished from merely negligent or undesigned, ones. Intent in that limited sense is not in issue here. But to make treason, the defendant not only must intend the act, but he must intend to betray his country by means of the act. It is here that Cramer defends. The issue is joined between conflicting theories as to how this treacherous intention and treasonable purpose must be made to appear. Bearing in mind that the constitutional requirement in effect is one of direct, rather than circumstantial, evidence, we must give it a reasonable effect in the light of its purpose both to preserve the offense and to protect citizens from its abuse. What is designed in the mind of an accused never is susceptible of proof by direct testimony. If we were to hold that the disloyal and treacherous intention must be proved by the direct testimony of two witnesses, it would be to hold that it is never provable. It seems obvious that adherence to the enemy, in the sense of a disloyal state of mind, cannot be, and is not required to be, proved by deposition of two witnesses. Since intent must be inferred from conduct of some sort, we think it is permissible to draw usual reasonable inferences as to intent from the overt acts. The law of treason, like the law of lesser crimes, assumes every man to intend the natural consequences which one standing in his circumstances and possessing his knowledge would reasonably expect to result from his acts. Proof that a citizen did give aid and comfort to an enemy may well be, in the circumstances, sufficient evidence that he adhered to that enemy and intended and purposed to strike at his Page 325 U. S. 32 own country. [ Footnote 42 ] It may be doubted whether it would be what the founders intended, or whether it would well serve any of the ends they cherished, to hold the treason offense available to punish only those who make their treacherous intentions more evident than may be done by rendering aid and comfort to an enemy. Treason -- insidious and dangerous treason -- is the work of the shrewd and crafty more often than of the simple and impulsive. While, of course, it must be proved that the accused acted with an intention and purpose to betray or there is no treason, we think that, in some circumstances, at least, the overt act itself will be evidence of the treasonable purpose and intent. But that still leaves us with exceedingly difficult problems. How decisively must treacherous intention be made manifest in the act itself? Will a scintilla of evidence of traitorous intent suffice? Or must it be sufficient to convince beyond reasonable doubt? Or need it show only that treasonable intent was more probable than not? Must the overt act be appraised for legal sufficiency only as supported by the testimony of two witnesses, or may other evidence be thrown into the scales to create inferences not otherwise reasonably to be drawn or to reinforce those which might be drawn from the act itself? It is only overt acts by the accused which the Constitution explicitly requires to be proved by the testimony of two witnesses. It does not make other common law evidence inadmissible, nor deny its inherent powers of persuasion. It does not forbid judging by the usual process by which the significance of conduct often will be determined by facts which are not acts. Actions of the accused are set Page 325 U. S. 33 in time and place in many relationships. Environment illuminates the meaning of acts, as context does that of words. What a man is up to may be clear from considering his bare acts by themselves; often it is made clear when we know the reciprocity and sequence of his acts with those of others, the interchange between him and another, the give and take of the situation. It would be no contribution to certainty of judgment, which is the object of the provision, to construe it to deprive a trial court of the aid of testimony under the ordinary sanctions of verity, provided, of course, resort is not had to evidence of less than the constitutional standard to supply deficiencies in the constitutional measure of proof of overt acts. For it must be remembered that the constitutional provision establishes a minimum of proof of incriminating acts, without which there can be no conviction, but it is not otherwise a limitation on the evidence with which a jury may be persuaded that it ought to convict. The Constitution does not exclude or set up standards to test evidence which will show the relevant acts of persons other than the accused or their identity or enemy character or other surrounding circumstances. Nor does it preclude any proper evidence of nonincriminating facts about a defendant -- such, for example, as his nationality, naturalization, and residence. From duly proven overt acts of aid and comfort to the enemy in their setting it may well be that the natural and reasonable inference of intention to betray will be warranted. The two witness evidence of the acts accused, together with common law evidence of acts of others and of facts which are not acts, will help to determine which among possible inferences as to the actor's knowledge, motivation, or intent are the true ones. But the protection of the two witness rule extends at least to all acts of the defendant which are used to draw incriminating inferences that aid and comfort have been given. Page 325 U. S. 34 The controversy before us has been waged in terms of intentions, but this, we think, is the reflection of a more fundamental issue as to what is the real function of the overt act in convicting of treason. The prisoner's contention that it, alone and on its face, must manifest a traitorous intention, apart from an intention to do the act itself, would place on the overt act the whole burden of establishing a complete treason. On the other hand, the Government's contention that it may prove by two witnesses an apparently commonplace and insignificant act and, from other circumstances, create an inference that the act was a step in treason, and was done with treasonable intent, really is a contention that the function of the overt act in a treason prosecution is almost zero. It is obvious that the function we ascribe to the overt act is significant chiefly because it measures the two witness rule protection to the accused and its handicap to the prosecution. If the over act or acts must go all the way to make out the complete treason, the defendant is protected at all points by the two witness requirement. If the act may be an insignificant one, then the constitutional safeguards are shrunken so as to be applicable only at a point where they are least needed. The very minimum function that an overt act [ Footnote 43 ] must perform in a treason prosecution is that it show sufficient action by the accused, in its setting, to sustain a finding that the accused actually gave [ Footnote 44 ] aid and comfort to the enemy. Every act, movement, deed, and word of the defendant charged to constitute treason must be supported Page 325 U. S. 35 by the testimony of two witnesses. The two witness principle is to interdict imputation of incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness. The prosecution cannot rely on evidence which does not meet the constitutional test for overt acts to create any inference that the accused did other acts or did something more than was shown in the overt act, in order to make a giving of aid and comfort to the enemy. The words of the Constitution were chosen not to make it hard to prove merely routine and everyday acts, but to make the proof of acts that convict of treason as sure as trial processes may. When the prosecution's case is thus established, the Constitution does not prevent presentation of corroborative or cumulative evidence of any admissible character, either to strengthen a direct case or to rebut the testimony or inferences on behalf of defendant. The Government is not prevented from making a strong case; it is denied a conviction on a weak one. It may be that, in some cases, the overt acts sufficient to prove giving of aid and comfort will fall short of showing intent to betray, and that questions will then be raised as to permissible methods of proof that we do not reach in this case. But, in this and some cases we have cited where the sufficiency of the overt acts has been challenged because they were colorless as to intent, we are persuaded the reason intent was left in question was that the acts were really indecisive as a giving of aid and comfort. When we deal with acts that are trivial and commonplace, and hence are doubtful as to whether they gave aid and comfort to the enemy, we are most put to it to find in other evidence a treacherous intent. We proceed to consider the application of these principles to Cramer's case. IV The indictment charged Cramer with adhering to the enemies of the United States, giving them aid and comfort, Page 325 U. S. 36 and set forth ten overt acts. The prosecution withdrew seven, and three were submitted to the jury. The overt acts which present the principal issue [ Footnote 45 ] are alleged in the following language: "1. Anthony Cramer, the defendant herein, on or about June 23, 1942, at the Southern District of New York and within the jurisdiction of this Court, did meet with Werner Thiel and Edward John Kerling, enemies of the United States at the Twin Oaks Inn at Lexington Avenue and 44th Street, in the City and New York, and did confer, treat, and counsel with said Werner Thiel and Edward John Kerling for a period of time for the purpose of giving and with intent to give aid and comfort to said enemies, Werner Thiel and Edward John Kerling." "2. Anthony Cramer, the defendant herein, on or about June 23, 1942, at the Southern District of New York and Page 325 U. S. 37 within the jurisdiction of this Court, did accompany, confer, treat, and counsel with Werner Thiel, an enemy of the United States, for a period of time at the Twin Oaks Inn at Lexington Avenue and 44th Street, and at Thompson's Cafeteria on 42nd Street between Lexington and Vanderbilt Avenues, both in the City and New York, for the purpose of giving and with intent to give aid and comfort to said enemy, Werner Thiel." At the present stage of the case, we need not weight their sufficiency as a matter of pleading. Whatever the averments might have permitted the Government to prove, we now consider their adequacy on the proof as made. It appeared upon the trial that, at all times involved in these acts, Kerling and Thiel were under surveillance of the Federal Bureau of Investigation. By direct testimony of two or more agents, it was established that Cramer met Thiel and Kerling on the occasions and at the places charged and that they drank together and engaged long and earnestly in conversation. This is the sum of the overt acts as established by the testimony of two witnesses. There is no two witness proof of what they said, nor in what language they conversed. There is no showing that Cramer gave them any information whatever of value to their mission, or indeed that he had any to give. No effort at secrecy is shown, for they met in public places. Cramer furnished them no shelter, nothing that can be called sustenance or supplies, and there is no evidence that he gave them encouragement or counsel, or even paid for their drinks. The Government recognizes the weakness of its proof of aid and comfort, but, on this scope, it urges: "Little imagination is required to perceive the advantage such meeting would afford to enemy spies not yet detected. Even apart from the psychological comfort which the meetings furnished Thiel and Kerling by way of social intercourse with Page 325 U. S. 38 one who they were confident would not report them to the authorities, as a loyal citizen should, the meetings gave them a source of information and an avenue for contact. It enabled them to be seen in public with a citizen above suspicion, and thereby to be mingling normally with the citizens of the country with which they were at war." The difficulty with this argument is that the whole purpose of the constitutional provision is to make sure that treason conviction shall rest on direct proof of two witnesses ,and not on even a little imagination. And, without the use of some imagination, it is difficult to perceive any advantage which this meeting afforded to Thiel and Kerling as enemies, or how it strengthened Germany or weakened the United States in any way whatever. It may be true that the saboteurs were cultivating Cramer as a potential "source of information and an avenue for contact." But there is no proof either by two witnesses or by even one witness, or by any circumstance, that Cramer gave them information or established any "contact" for them with any person other than an attempt to bring about a rendezvous between Thiel and a girl, or that being "seen in public with a citizen above suspicion" was of any assistance to the enemy. Meeting with Cramer in public drinking places to tipple and trifle was no part of the saboteurs' mission, and did not advance it. It may well have been a digression which jeopardized its success. The shortcomings of the overt act submitted are emphasized by contrast with others which the indictment charged but which the prosecution withdrew for admitted insufficiency of proof. It appears that Cramer took from Thiel for safekeeping a money belt containing about $3,600, some $160 of which he held in his room concealed in books for Thiel's use as needed. An old indebtedness of Thiel to Cramer of $200 was paid from the fund, and the rest Cramer put in his safe deposit box in a bank for safekeeping. All of this was at Thiel's request. That Thiel Page 325 U. S. 39 would be aided by having the security of a safe deposit box for his funds, plus availability of smaller amounts, and by being relieved of the risks of carrying large sums on his person -- without disclosing his presence or identity to a bank -- seems obvious. The inference of intent from such act is also very different from the intent manifest by drinking and talking together. Taking what must have seemed a large sum of money for safekeeping is not a usual amenity of social intercourse. That such responsibilities are undertaken and such trust bestowed without the scratch of a pen to show it implies some degree of mutuality and concert from which a jury could say that aid and comfort was given and was intended. If these acts had been submitted as overt acts of treason, and we were now required to decide whether they had been established as required, we would have a quite different case. We would then have to decide whether statements on the witness stand by the defendant are either "confession in open court" or may be counted as the testimony of one of the required two witnesses to make out otherwise insufficiently proved "overt acts." But this transaction was not proven as the Government evidently hoped to do when the indictment was obtained. The overt acts based on it were expressly withdrawn from the jury, and Cramer has not been convicted of treason on account of such acts. We cannot sustain a conviction for the acts submitted on the theory that, even if insufficient, some unsubmitted ones may be resorted to as proof of treason. Evidence of the money transaction serves only to show how much went out of the case when it was withdrawn. The Government contends that, outside of the overt acts, and by lesser degree of proof, it has shown a treasonable intent on Cramer's part in meeting and talking with Thiel and Kerling. But if it showed him disposed to betray, and showed that he had opportunity to do so, it still has not proved in the manner required that he did any acts Page 325 U. S. 40 submitted to the jury as a basis for conviction which had the effect of betraying by giving aid and comfort. To take the intent for the deed would carry us back to constructive treasons. It is outside of the commonplace overt acts as proved that we must find all that convicts or convinces either that Cramer gave aid and comfort or that he had a traitorous intention. The prosecution relied chiefly upon the testimony of Norma Kopp, the fiancée of Thiel, as to incriminating statements made by Cramer to her, [ Footnote 46 ] upon admissions made by Cramer after his arrest to agents of the Federal Bureau of Investigation, [ Footnote 47 ] upon letters and Page 325 U. S. 41 documents found on search of his room by permission after his arrest, [ Footnote 48 ] and upon testimony that Cramer had Page 325 U. S. 42 curtly refused to buy Government bonds. [ Footnote 49 ] After denial of defendant's motion to dismiss at the close of the prosecution's case, defendant became a witness in his own behalf, and the Government obtained on cross-examination some admissions of which it had the benefit on submission. [ Footnote 50 ] Page 325 U. S. 43 It is not relevant to our issue to appraise weight or credibility of the evidence apart from determining its constitutional sufficiency. Nor is it necessary, in the view we take of the more fundamental issues, to discuss the Page 325 U. S. 44 reservations which all of us entertain as to the admissibility of some of it or those which some entertain as to other of it. We could conclude in favor of affirmance only if all questions of admissibility were resolved against the prisoner. At all events, much of the evidence is of the general character whose infirmities were feared by the framers, and sought to be safeguarded against. Most damaging is the testimony of Norma Kopp, a friend of Cramer's and one with whom, if she is to be believed, he had been most indiscreetly confidential. Her testimony went considerably beyond that of the agents of the Federal Bureau of Investigation as to admissions of guilty knowledge of Thiel's hostile mission and of Cramer's sympathy with it. To the extent that his conviction rests upon such evidence, and it does to an unknown but considerable extent, it rests upon the uncorroborated testimony of one witness not without strong emotional interest in the drama of which Cramer's trial was a part. Other evidence relates statements by Cramer before the United States was at war with Germany. At the time they were uttered, however, they were not treasonable. To use pre-war expressions of opposition to entering a war to convict of treason during the war is a dangerous procedure, at best. The same may be said about the inference of disloyal attitude created by showing that he refused to buy bonds and closed the door in the salesman's face. Another class of evidence consists of admissions to agents of the Federal Bureau of Investigation. They are, of course, not "confession in open court." The Government does not contend, and could not well contend, Page 325 U. S. 45 that admissions made out of court, if otherwise admissible, can supply a deficiency in proof of the overt act itself. V The Government has urged that our initial interpretation of the treason clause should be less exacting, lest treason be too hard to prove and the Government disabled from adequately combating the techniques of modern warfare. But the treason offense is not the only, nor can it well serve as the principal, legal weapon to vindicate our national cohesion and security. In debating this provision, Rufus King observed to the Convention that the "controversy relating to Treason might be of less magnitude than was supposed, as the legislature might punish capitally under other names than Treason. [ Footnote 51 ]" His statement holds good today. Of course, we do not intimate that Congress could dispense with the two witness rule merely by giving the same offense another name. But the power of Congress is in no way limited to enact prohibitions of specified acts thought detrimental to our wartime safety. The loyal and the disloyal alike may be forbidden to do acts which place our security in peril, and the trial thereof may be focussed upon defendant's specific intent to do those particular acts, [ Footnote 52 ] thus eliminating the accusation of treachery and of general intent to betray which have such passion-rousing potentialities. Congress repeatedly has enacted prohibitions of specific acts thought to endanger our security, [ Footnote 53 ] and the practice of foreign nations with defense Page 325 U. S. 46 problems more acute than our own affords examples of others. [ Footnote 54 ] The framers' effort to compress into two sentences the law of one of the most intricate of crimes gives a superficial appearance of clarity and simplicity which proves illusory when it is put to practical application. There are few subjects on which the temptation to utter abstract Page 325 U. S. 47 interpretative generalizations is greater or on which they are more to be distrusted. The little clause is packed with controversy and difficulty. The offense is one of subtlety, and it is easy to demonstrate lack of logic in almost any interpretation by hypothetical cases, to which real treasons rarely will conform. The protection of the two witness requirement, limited as it is to overt acts, may be wholly unrelated to the real controversial factors in a case. We would be understood as speaking only in the light of the facts and of the issues raised in the case under consideration, although that leaves many undetermined grounds of dispute which, after the method of the common law, we may defer until they are presented by facts which may throw greater light on their significance. Although nothing in the conduct of Cramer's trial evokes it, a repetition of Chief Justice Marshall's warning can never be untimely: "As there is no crime which can more excite and agitate the passions of men than treason, no charge demands more from the tribunal before which it is made a deliberate and temperate inquiry. Whether this inquiry be directed to the fact or to the law, none can be more solemn, none more important to the citizen or to the government; none can more affect the safety of both. . . . It is therefore more safe, as well as more consonant to the principles of our constitution, that the crime of treason should not be extended by construction to doubtful cases, and that crimes not clearly within the constitutional definition should receive such punishment as the legislature in its wisdom may provide." Ex parte Bollman , 4 Cranch 75, 8 U. S. 125 -127. It is not difficult to find grounds upon which to quarrel with this Constitutional provision. Perhaps the framers placed rather more reliance on direct testimony than modern researches in psychology warrant. Or it may be considered that such a quantitative measure of proof, such Page 325 U. S. 48 a mechanical calibration of evidence, is a crude device, at best, or that its protection of innocence is too fortuitous to warrant so unselective an obstacle to conviction. Certainly the treason rule, whether wisely or not, is severely restrictive. It must be remembered, however, that the Constitutional Convention was warned by James Wilson that "Treason may sometimes be practiced in such a manner as to render proof extremely difficult -- as in a traitorous correspondence with an Enemy. [ Footnote 55 ]" The provision was adopted not merely in spite of the difficulties it put in the way of prosecution, but because of them. And it was not by whim or by accident, but because one of the most venerated of that venerated group considered that "prosecutions for treason were generally virulent." Time has not made the accusation of treachery less poisonous, nor the task of judging one charged with betraying the country, including his triers, less susceptible to the influence of suspicion and rancor. The innovations made by the forefathers in the law of treason were conceived in a faith such as Paine put in the maxim that "He that would make his own liberty secure must guard even his enemy from oppression, for, if he violates this duty, he establishes a precedent that will reach himself. [ Footnote 56 ]" We still put trust in it. We hold that overt acts 1 and 2 are insufficient as proved to support the judgment of conviction, which accordingly is Reversed. [ Footnote 1 ] 18 U.S.C. § 1, derived from Act of April 30, 1790, c. 9, § 1, 1 Stat. 112. [ Footnote 2 ] Article III, Section 3. [ Footnote 3 ] 259 F. 685, 690. [ Footnote 4 ] This view was recently followed by Judge Clancy in District Court, in dismissing an indictment for treason. United States v. Leiner, S.D.N.Y.1943 (unreported). [ Footnote 5 ] United States v. Cramer, 137 F.2d 888, 896. [ Footnote 6 ] 259 F. 673, 677. [ Footnote 7 ] "An overt act, in criminal law, is an outward act done in pursuance and in manifestation of an intent or design; an overt act in this case means some physical action done for the purpose of carrying out or affecting [ sic ] the treason." United States v. Haupt, 47 F. Supp. 836 , 839, rev'd on other grounds, 136 F.2d 661. "The overt act is the doing of some actual act looking towards the accomplishment of the crime." United States v. Stephan, 50 F. Supp. 738 , 742, 743, note. [ Footnote 8 ] 320 U.S. 730. [ Footnote 9 ] May 22, 1944. Counsel for petitioner, although assigned by the trial court, has responded with extended researches. The Solicitor General engaged scholars not otherwise involved in conduct of the case to collect and impartially to summarize statutes, decisions, and texts from Roman, Continental, and Canon law, as well as from English, Colonial, and American law sources. The part of the study dealing with American materials has been made available through publication in 58 Harv.L.Rev. 226 et seq. Counsel have lightened our burden of examination of the considerable accumulation of historical materials. [ Footnote 10 ] The Committee included John Adams, Thomas Jefferson, John Rutledge, James Wilson, and Robert Livingston. See C. F. Adams, Life of John Adams in 1 Works of John Adams (1856) 224, 225. [ Footnote 11 ] " Resolved, That all persons abiding within any of the United Colonies, and deriving protection from the laws of the same, owe allegiance to the said laws, and are members of such colony, and that all persons passing through, visiting, or make [ sic ] a temporary stay in any of the said colonies, being entitled to the protection of the laws during the time of such passage, visitation, or temporary stay, owe, during the same time, allegiance thereto:" "That all persons, members of, or owing allegiance to any of the United Colonies, as before described, who shall levy war against any of the said colonies within the same, or be adherent to the king of Great Britain, or others the enemies of the said colonies, or any of them, within the same, giving to him or them aid and comfort, are guilty of treason against such colony:" "That it be recommended to the legislatures of the several United Colonies, to pass laws for punishing, in such manner as to them shall seem fit, such persons before described as shall be proveably attainted of open deed, by people of their condition, of any of the treasons before described." 5 Journals of the Continental Congress (1906) 475. [ Footnote 12 ] Nine states substantially adopted the recommendation of the Congress: Delaware, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, Virginia. (The Virginia law, though it did not copy in full the recommendation of Congress, was drawn by Jefferson, among others, and hence probably can be regarded as originating in the same source as the others.) Three states had basic treason statutes not patterned on the Congressional model, one antedating the latter: Connecticut, Maryland, South Carolina. Georgia is not found to have enacted any general treason statute, although it passed a number of separate acts of attainder. The Maryland act declared that "the several crimes aforesaid shall receive the same constructions that have been given to such of the said crimes as are enumerated in the statute of Edward the third, commonly called the statute of treasons." None of the statutes contained negative language limiting the definition of treason expressly to that set forth in the statute. In general, too, they added to the definition of the model recommended by Congress other specific kinds of treason. Thus, a number defined treason as including conspiracy to levy war. Conspiracy to adhere to the enemy and give aid and comfort was also included in several, or incorporated by separate acts. Much explicit attention was given to the problem of contact with the enemy. Conveying of intelligence or carrying on of correspondence with the enemy were expressly mentioned. One typical provision declared guilty of treason those persons who were "adherent to . . . the enemies of this State within the same, or to the Enemies of the United States . . . giving to . . . them Aid or Comfort, or by giving to . . . them Advice or Intelligence either by Letters, Messages, Words, Signs or Tokens, or in any way whatsoever, or by procuring for, or furnishing to . . . them any Kind of Provisions or Warlike Stores. . . ." Other provisions referred to "joining their Armies," "inlisting or persuading others to inlist for that Purpose," "furnishing Enemies with Arms or Ammunition, Provision or any other Articles for such their Aid or Comfort," "willfully betraying, or voluntarily yielding or delivering any vessel belonging to this State or the United States to the Enemies of the United States of America;" and to persons who "have joined, or shall hereafter join the Enemies of this State, or put themselves under the Power and Protection of the said Enemies, who shall come into this State and rob or plunder any Person or Persons of their Goods and Effects, or shall burn any Dwelling House or other Building, or be aiding or assisting therein," or who should maliciously and with an intent to obstruct the service dissuade others from enlisting, or maliciously spread false rumors concerning the forces of either side such as to alienate the affections of the people from the Government "or to terrify or discourage the good Subjects of this State, or to dispose them to favor the Pretensions of the Enemy," or who "shall take a Commission or Commissions from the King of Great Britain, or any under his Authority, or other the Enemies of this State, or the United States of America." A number of the statutes required "the testimony of two lawful and credible witnesses." But the requirement was not linked to the proof of overt acts, and there was no suggestion of the type of provision later embodied in the Constitution. Supplementary acts creating special treasonable offenses tended to omit any requirement as to quantum of proof. See Hurst, op cit. supra, 58 Harv.L.Rev. at 248 et seq. [ Footnote 13 ] For example, the New York Act of March 30, 1781, after reciting that it was necessary to make further provision respecting treason in order to prevent adherence to the king, made it a felony to declare or maintain "that the King of Great Britain hath, or of Right ought to have, any Authority, or Dominion, in or over this State, or the Inhabitants thereof," or to persuade or attempt to persuade any inhabitant to renounce allegiance to the State or acknowledge allegiance to the king, or to affirm one's own allegiance to the king. A person convicted was to "suffer the Pains and Penalties prescribed by Law in Cases of Felony without Benefit of Clergy," except that the court might, instead of prescribing death, sentence to three years' service on an American warship. Laws of the New-York (Poughkeepsie, 1782) 4th Sess., Ch. XLVIII. Virginia imposed a fine not exceeding �20,000 and imprisonment up to five years "if any person residing or being within this commonwealth shall . . . , by any word, open deed, or act, advisedly and willingly maintain and defend the authority, jurisdiction, or power of the king or parliament of Great Britain, heretofore claimed and exercised within this colony, or shall attribute any such authority, jurisdiction, or power to the king or parliament of Great Britain. . . . ." Laws, October, 1776, Ch. V, 9 Hening, Statutes at Large (1823) 170. See also Hurst, op. cit. supra, 58 Harv.L.Rev. at 265-267. [ Footnote 14 ] A similar situation prevailed during the Civil War, when treason prosecutions were instituted against citizens of some southern states for treason to the state, consisting of adherence to the United States. See Robinson, Justice in Grey, pp. 176, 199, 201, 202, 270, 289, 380, 385, 408. [ Footnote 15 ] See Hurst, Treason in the United States (1944) 58 Harv.L.Rev. 226, 268-71. Although these acts, dealing with withdrawal to enemy territory, imposed in general only forfeiture and banishment, some did reinforce these penalties with the threat of death if the person should later be found within the state. Id., 272. [ Footnote 16 ] The only pre-Revolutionary treason trial of which there is an extensive record is King v. Bayard (1702), a New York prosecution under an Act of May 6, 1691, which made it treason "by force of arms or otherwise to disturb the peace good and quiet of this their Majestyes Government as it is now Established." (The act was thought by the home authorities to be objectionably broad and vague, and was later repealed.) See The Trial of Nicholas Bayard, 14 Howell's State Trials 471; 10 Lawson, American State Trials 518; Hurst, op. cit. supra, 58 Harv.L.Rev. at 233. For other material on colonial treason prosecutions, see Hurst, op. cit. supra, 58 Harv.L.Rev. at 234, n. 15. [ Footnote 17 ] In the early part of the colonial period, charters and grants gave royal governors authority to use martial law for suppression of "rebellion," "sedition," and "mutiny," and references to treason were not in the traditional language. A provision of the General Laws of New Plimouth Colony, 1671, is representative: "3. Treason against the Person of our Sovereign Lord the King, the State and Commonwealth of England, shall be punished by death." "4. That whosoever shall Conspire and Attempt any Invasion, Insurrection, or Publick Rebellion against this Jurisdiction, or the Surprizal of any Town, Plantation, Fortification, or Ammunition, therein provided for the safety thereof, or shall Treacherously and Perfidiously Attempt and Endeavor the Alteration and Subversion of the Fundamental Frame and Constitutions of this Government; every such Person shall be put to Death." But the bulk of colonial legislation prior to the Revolution drew extensively on English law, especially the statute 25 Edward III. Some of the acts substantially adopted the language of the latter statute, with additions, and some simply declared that the offense of treason should follow the English law. With the exception of Georgia and New Jersey, all the colonies eventually adopted one or the other type statute. In addition, the English law of treason itself applied, to an undefined extent, and several colonial acts were disallowed on the theory that they covered ground already occupied by the mother country's legislation. The colonies which enacted their own statutes patterned after 25 Edward III did not narrow its terms. Several expressly included the treason of compassing the death of the king, and a couple even made an analogous offense of compassing the death of the proprietor. The offense of levying war against the king was given a broad definition; some of the colonies expressly included various forms of "constructive" levying of war which had been put into the English statute by judicial construction, in general extending the crime to domestic disturbances, and some of the statutes made conspiracy to levy war sufficient to constitute the crime of levying war. Some specific attention was given in separate legislation at various times to contact with the enemy -- legislation comparable to that subsequently enacted during the Revolutionary period. Most of the colonial treason acts contained two witness requirements, without the additional qualification later adopted in the Constitution, that they must be witnesses to the same overt act, although it was required that they be witnesses to the same general kind of treason. See generally Hurst, op. cit. supra, 58 Harv.L.Rev. at 226-245. [ Footnote 18 ] "The men who framed the instruments remembered the crimes that had been perpetrated under the pretense of justice; for the most part, they had been traitors themselves, and, having risked their necks under the law, they feared despotism and arbitrary power more than they feared treason." 3 Adams, History of the United States 468. "Every member of that Convention -- every officer and soldier of the Revolution from Washington down to private, every man or woman who had given succor or supplies to a member of the patriot army, everybody who had advocated American independence . . . could have been prosecuted and convicted as 'traitors' under the British law of constructive treason." 3 Beveridge, Life of John Marshall, 402, 403. [ Footnote 19 ] This was doubtless the meaning of Franklin's quip at the signing of the Declaration of Independence that, if the signers did not hang together they should hang separately. It was also the meaning of the cries of "Treason" which interrupted Patrick Henry in the speech in the Virginia House of Burgesses evoking the famous reply "If this be treason, make the most of it." [ Footnote 20 ] 1 Journals of the Continental Congress, 65. See also 1 Burnett, ed., Letters of Members of the Continental Congress (1921) 43, 44, n. 36. [ Footnote 21 ] The men who were responsible for framing our Constitution were influenced by eighteenth century liberal thought from both French and English sources. French influences, more philosophical than legal in character, were particularly strong with Franklin, who took a significant part in framing the treason clause. Franklin had been a member of the French Academy of Sciences since 1772, and had many friends among French intellectuals. He spent much time in England and in France, to which he was sent by the Continental Congress as Commissioner in 1776. He remained until 1783, when he signed the Treaty of Peace with England, and thereafter until 1785 as Minister to France. Becker, Franklin, 6 Dictionary of American Biography 585; 9 Encyclopedia Britannica (14th ed.) 693. Jefferson, a strong influence with the men of that period, was sent to France by the Continental Congress to assist Franklin, remaining there from 1784 to 1789, succeeding Franklin in 1785 as Minister. Jefferson was so closely in touch with French revolutionary thought that, in July, 1789, he was invited to assist in the deliberations of the Committee of the French National Assembly to draft a Constitution, but declined out of respect for his position. See Malone, Jefferson, 10 Dictionary of American Biography 17; 12 Encyclopedia Britannica (14th ed.) 988. See also generally, Chinard, Thomas Jefferson, the Apostle of Americanism. Best known in America of the French writings was Montesquieu's L'Esprit des Lois, which appeared in French in 1748. (An English edition was published in London in 1750.) Book 12 thereof was devoted to his philosophical reactions to the abuses of treason. It is hardly a coincidence that the treason clause of the Constitution embodies every one of the precepts suggested by Montesquieu in discussing the excesses of ancient and European history. Some of his precepts were: "If the crime of high treason be indeterminate, this alone is sufficient to make the government degenerate into arbitrary power." Book 12, Ch. 7, Of the Crime of High Treason. "The laws do not take upon them to punish any other than overt acts." Book 12, Ch. 11, Of Thoughts. "Nothing renders the crime of high treason more arbitrary than declaring people guilty of it for indiscreet speeches. . . . Words do not constitute an overt act; they remain only in idea. . . . Overt acts do not happen every day; they are exposed to the eye of the public, and a false charge with regard to matters of fact may be easily detected. Words carried into action assume the nature of that action. Thus, a man who goes into a public marketplace to incite the subject to revolt incurs the guilt of high treason, because the words are joined to the action, and partake of its nature. It is not the words that are punished, but an action in which the words are employed." Book 12, Ch. 12, Of Indiscreet Speeches. "Those laws which condemn a man to death on the deposition of a single witness are fatal to liberty." Book 12, Ch. 3, Of The Liberty of the Subject. Both French and English influences on American thought as shown by Jefferson's writings are tracted by Perry, Puritanism and Democracy (1945) 126, 130, 134, 158, 182, 184, 185. [ Footnote 22 ] " Declaration what offenses shall be adjudged treason. Item, whereas divers opinions have been before this time in what case treason shall be said, and in what not; the King at the request of the lords and of the commons, hath made a declaration in the manner as hereafter followeth, that is to say, when a man doth compass or imagine the death of our lord the King, or of our lady his queen or of their eldest son and heir; or if a man do violate the King's companion, or the King's eldest daughter unmarried, or the wife the King's eldest son and heir; or if a man do levy war against our lord the King in his realm, or be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere, and thereof be probably attainted of open deed by the people of their condition: And if a man counterfeit the King's great or privy seal, or his money, and if a man bring false money into this realm, counterfeit to the money of England, as the money called lushburgh, or other, like to the said money of England, knowing the money to be false, to merchandise or make payment in deceit of our said lord the King and of his people, and if a man slea the chancellor, treasurer, or the King's justices of the one bench or the other, justices in eyre, or justices of assise, and all other justices assigned to hear and determine, being in their places, doing their offices: and it is to be understood that in the cases above rehearsed, that ought to be judged treason which extends to our lord the King, and his royal majesty: And of such treason the forfeiture of the escheats pertaineth to our sovereign lord, as well as of the lands and tenements holden of other, as of himself: And moreover there is another manner of treason, that is to say, when a servant slayeth his master, or a wife her husband, or when a man secular or religious slayeth his prelate, to whom he oweth faith and obedience, and of such treason the escheats ought to pertain to every lord of his own fee. And because that many other like cases of treason may happen in time to come, which a man cannot think or declare at this present time, it is accorded, that, if any other case, supposed treason, which is not above specified, doth happen before any justices, the justices shall tarry without any going to judgment of the treason, till the cause be shewed and declared before the King and his Parliament, whether it ought to be judged treason or other felony. And if percase any man of this realm ride armed covertly or secretly with men of arms against any other, to slay him, or rob him, or take him, or retain him till he hath made fine or ransom for to have his deliverance, it is not the mind of the King nor his counsel, that in such case it shall be judged treason but shall be judged felony or trespass, according to the laws of the land of old time used, and according as the case requireth." 4 Halsbury's Statutes of England 273. [ Footnote 23 ] Stephen said of it: "In quiet times, it is seldom put in force, and if by any accident it is necessary to apply it, the necessity for doing so is obvious. For revolutionary periods, it is obviously and always insufficient, and at such times, it is usually supplemented by enactments which ought to be regarded in the light of war measures, but which are usually represented by those against whom they are directed as monstrous invasions of liberty. The struggle being over, the statute of 25 Edw. 3 is reinstated as the sole definition of treason, and in this way it has become the subject of a sort of superstitious reverence." 2 Stephen, History of the Criminal Law of England (1883) 250, 251; see also 3 Holdsworth (4th ed.1935) 287. Blackstone says: "But afterwards, between the reign of Henry the fourth and queen Mary, and particularly in the bloody reign of Henry the eighth, the spirit of inventing new and strange treasons was revived, among which we may reckon the offences of clipping money; breaking prison or rescue, when the prisoner is committed for treason; burning houses to extort money; stealing cattle by Welshmen; counterfeiting foreign coin; willful poisoning; execrations against the king; calling him opprobrious names by public writing; counterfeiting the sign manual or signet; refusing to abjure the pope; deflowering, or marrying without the royal licence, any of the king's children, sisters, aunts, nephews, or nieces; bare solicitation of the chastity of the queen or princess, or advances made by themselves; marrying with the king, by a woman not a virgin, without previously discovering to him such her unchaste life; judging or believing (manifested by any overt act) the king to have been lawfully married to Anne of Cleve; derogating from the king's royal stile and title; impugning his supremacy, and assembling riotously to the number of twelve, and not dispersing upon proclamation. . . ." 4 Blackstone 86, 87. [ Footnote 24 ] Rex v. Casement. (1917) 1 K.B. 98; Knott, Trial of Roger Casement, 184, 185. [ Footnote 25 ] Chief among these were Coke and Blackstone. Coke emphasized the salutary effects of the Statute of Edward III in limiting treason prosecution, and strongly emphasized the overt act requirement, probably quoting Bracton. Institutes of the Laws of England, 5th Ed. (1671) Part III, 14. He used as examples overt acts which of themselves appear to evidence treasonable intent. Id., 2, 3, and 14. See 1 Hale, History of the Pleas of the Crown (1736) 86, 259. But we cannot be sure whether this was intended to imply that acts from which intent would be less evident would suffice. Other authors known on this side of the water leave us with little light on our particular problem. Hale (History of the Pleas of the Crown, Emlyn ed. London, 1736) frequently uses terminology, found in Coke and earlier writers, which might mean that the function of an overt act is to prove intent, saying that the overt act is to "manifest" or "declare" the compassing of the king's death, and so forth. Id., 109. But, as in the other writers, the statements are usually open as well to the interpretation that the act must show translation of thought into action. In the latter sense, the act "declares" intent in that it shows, in the light of other evidence, that the defendant's thoughts were not mere idle desires. This is a different thing from saying that the overt act must of itself display an unambiguously traitorous character. Elsewhere, Hale gives some support to the view that the act may itself be of an innocent character. Dealing with the principle that words alone cannot be an overt act, he says that "words may expound an overt act to make good an indictment of treason of compassing the king's death, which overt act possibly of itself may be indifferent and unapplicable to such an intent, and therefore, in the indictment or treason, they may be joined with such an overt act, to make the same applicable and expositive of such a compassing." Id., 115. He also declares that the mere meeting of persons with the intent of plotting the king's death is a sufficient overt act for the treason of compassing the king's death. Id., 108, 109. These remarks, however, deal only with compassing the king's death, and little light is given as to the overt act in connection with levying war and adhering to the enemy. With Coke, Hale takes the position that a mere meeting of persons to conspire, though sufficient under the compassing clause, is not sufficient for the levying of war clause. Id., 130. Foster's view of the overt act does not seem materially different from Hale's. (A Report of Some Proceedings on the Commission for the Trial of the Rebels in the Year 1746 in the County of Surry, and of other Crown Cases, 2d ed. 1791.) "Overt acts undoubtedly do discover the man's intentions, but, I conceive, they are not to be considered merely as evidence, but as the means made use of to effectuate the purposes of the heart. . . . though, in the case of the King, overt acts of less malignity, and having a more remote tendency to his destruction, are with great propriety deemed treasonable; yet still they are considered as means to affectuate [ sic ], not barely as evidence of, the treasonable purpose." Foster also repeats the assertion that the mere meeting of persons with intent to plan the king's death is a sufficient overt act. Id., 195. However, his discussion, too, is confined to the treason of compassing, and he says little that is helpful about levying war and adhering. [ Footnote 26 ] These are: Trial of Sir Nicholas Throckmorton, 1 How.St.Tr. 869 (1 Mary, 1554); Trial of Sir Richard Grahme (Lord Preston's Case), 12 How.St.Tr. 645 (2 William and Mary, 1691); Trial of Sir John Freind, 13 How.St.Tr. 1, 4, 11 (8 William III, 1696); Trial of Sir William Parkyns, 13 How.St.Tr. 63, 67 (8 William III, 1696); Trial of Peter Cook, 13 How.St.Tr. 311, 346 (8 William III, 1696); Trial of Captain Vaughn, 13 How.St.Tr. 485 (8 William III, 1696); Trial of William Gregg, 14 How.St.Tr. 1371 (6 Anne, 1708); Trial of James Bradshaw, 18 How.St.Tr. 415 (20 George II, 1746); Trial of Dr. Hensey, 19 How.St.Tr. 1341 (32 George II, 1758); Trial of Francis De la Motte, 21 How.St.Tr. 687 (21 George III, 1781), and the Trial of David Tyrie, 21 How.St.Tr. 815 (22 George III, 1782). [ Footnote 27 ] Philip Guedalla characterizes the figures of the American Revolution as they occur in British legend: "There they are oddly shrunken; they dwindle into a provincial pettiness, and their voices monotonously intone the dreary formulae of sedition." Fathers of the Revolution, p. 8. [ Footnote 28 ] Mr. Jefferson had referred to the Statute of Edward III as "done to take out of the hands of tyrannical Kings, and of weak and wicked Ministers, that deadly weapon, which constructive treason had furnished them with, and which had drawn the blood of the best and honestest men in the kingdom." 1 Writings of Thomas Jefferson (Library ed.1903) 215. Later, as Secretary of State, he wrote: "Treason . . . when real, merits the highest punishment. But most codes extend their definitions of treason to acts not really against one's country. They do not distinguish between acts against the government and acts against the oppressions of the government; the latter are virtues; yet they have furnished more victims to the executioner than the former; because real treasons are rare; oppressions frequent. The unsuccessful strugglers against tyranny have been the chief martyrs of treason laws in all countries." 8 Jefferson's Writings 332. Compare 7th Annual Message, 1807, 3 Jefferson's Writing 451, 452. [ Footnote 29 ] 2 Farrand, Records of the Federal Convention of 1787, 136. [ Footnote 30 ] Art. VII, Sec. 2, of draft reported August 6, 1787. 2 Farrand 182. [ Footnote 31 ] The debates are at 2 Farrand 345-350. [ Footnote 32 ] James Wilson was not unlikely one of the authors of the treason clause, as a member of the Committee on Detail. He had participated in the Pennsylvania treason trials in 1778 as one of the defense counsel ( Respublica v. Malin , 1 Dall. 33 (Pa. O. & T.); Respublica v. Carlisle , 1 Dall. 35; Respublica v. Roberts , 1 Dall. 39). In the Pennsylvania ratifying convention, he made detailed statements in praise of the clause without its having been challenged. 2 Elliott, Debates, 469, 487. Later, he devoted a lecture to the clause in his law course delivered at the College of Philadelphia in 1790 and 1791. 3 Works of Hon. James Wilson (Bird Wilson, ed. 1804) 95-107. [ Footnote 33 ] The convention did reject proposals that the states be denied authority to define treason against themselves and that participation in a civil war between a state and the United States be excepted. See 2 Farrand 345, 348-49; 3 id. 223. [ Footnote 34 ] See note 16 supra; see also 9 Holdsworth (2d ed.1938) 203-211. [ Footnote 35 ] L'Esprit des Lois, Book XII, Chap. III. [ Footnote 36 ] " . . . take with thee one or two more, that in the mouth of two or three witnesses every word may be established." Matt, xviii, 16. [ Footnote 37 ] "One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth; at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established." Deut. xix, 15. [ Footnote 38 ] The following is a summary, taken from the Appendix to the Government's brief, of all cases in which construction of the treason clause has been involved, omitting grand jury charges and cases in which interpretation of the clause was incidental: Whiskey Rebellion cases: United States v. Vigol, 28 Fed.Cas. 376, No. 16,621, United States v. Mitchell, 26 Fed.Cas. 1277, No. 15,788, (constructive levying of war, based on forcible resistance to execution of a statute; defendants convicted and later pardoned). House tax case: Case of Fries, 9 Fed.Cas. 826, No. 5, 126; 9 Fed.Cas. 924, No. 5, 127 (constructive levying of war, based on forcible resistance to execution of a statute; defendant convicted and later pardoned). The Burr Conspiracy: Ex parte Bollman , 4 Cranch 75; United States v. Burr, 25 Fed.Cas. 2, No. 14,692a; 25 Fed.Cas. 55, No. 14,693 (conspiracy to levy war held not an overt art of levying war). United States v. Lee, 26 Fed.Cas. 907, No. 15,584 (sale of provisions a sufficient overt act; acquittal). United States v. Hodges, 26 Fed.Cas. 332, No. 15,374 (obtaining release of prisoners to the enemy is adhering to the enemy, the act showing the intent; acquittal). United States v. Hoxie, 26 Fed.Cas. 397, No. 15,407 (attack of smugglers on troops enforcing embargo is riot and not levying of war). United States v. Pryor, 27 Fed.Cas. 628, No. 16,096 (proceeding under flag of truce with enemy detachment to help buy provisions is too remote an act to establish adhering to the enemy). United States v. Hanway, 26 Fed.Cas. 105, No. 15,299 (forcible resistance to execution of Fugitive Slave Law, 9 Stat. 462, no levying of war). United States v. Greiner, 26 Fed.Cas. 36, No. 15,262 (participation as member of state militia company in seizure of a Federal fort is a levying of war). United States v. Greathouse, 26 Fed.Cas. 18, No. 15,254 (fitting out and sailing a privateer is a levying of war; defendants convicted, later pardoned). Cases of confiscation of property or refusal to enforce obligations given in connection with sale of provisions to the Confederacy: Hanauer v. Doane , 12 Wall. 342; Carlisle v. United States , 16 Wall. 147; Sprott v. United States , 20 Wall. 459; United States v. Athens Armory, 24 Fed.Cas. page 878, No. 14,473 (Mixed motive, involving commercial profit, does not bar finding of giving aid and comfort to the enemy.); United States v. Cathcart and United States v. Parmenter, 25 Fed.Cas. 344, No. 14,756; Chenoweth's Case (unreported; see Ex parte Vallandingham, 28 Fed.Cas. 874, 888, No. 16,816) (indictment bad for alleging aiding and abetting rebels, instead of directly charging levying of war). Case of Jefferson Davis, 7 Fed.Cas. 63, No. 3,621a (argument that rebels whose government achieved status of a recognized belligerent could not be held for treason; Davis was not tried on the indictment); see 2 Warren, Supreme Court in United States History (1934 ed.) 485-87; Watson, Trial of Jefferson Davis (1915) 25 Yale L.J. 669. Philippine insurrections: United States v. Magtibay, 2 Philippine 703; United States v. De Los Rayos, 3 Philippine 349 (mere possession of rebel commissions insufficient overt acts; strict enforcement of two witness requirement; convictions reversed); United States v. Lagnason, 3 Philippine 472 (armed effort to overthrow the government is levying war). United States v. Fricke, 259 F. 673 (acts "indifferent" on their face held sufficient overt acts). United States v. Robinson, 259 F. 685 (dictum, acts harmless on their face are insufficient overt acts). United States v. Werner, 247 F. 708, aff'd, 251 U. S. 251 U.S. 466 (act indifferent on its face may be sufficient overt act). United States v. Haupt, 136 F.2d 661 (reversal of conviction on strict application of two witness requirement and other grounds; inferentially approves acts harmless on their face as overt acts). Stephan v. United States, 133 F.2d 87 (acts harmless on their face may be sufficient overt acts; conviction affirmed but sentence commuted). United States v. Cramer, 137 F.2d 888. [ Footnote 39 ] In 1942, the Office of War Information suggested to Mr. Stephen Vincent Benet a short interpretative history of the United States for translation into many languages. In it he says: "It had been a real revolution -- a long and difficult travail, full of hardship, struggle, bitterness, and the overturning of old habits and customs. But it did not eat its children, and it had no aftermath of vengeance. The Hessians who stayed in the country were not hunted down and annihilated. Some loyalists who returned were harshly treated -- others came back and settled down peacefully as citizens of the new state. There was neither blood bath nor purge. There was bitter political dispute -- but no small group of men plotted in secret to overthrow the government by force of arms. There were a couple of minor and local revolts, based on genuine grievances -- Shays' Rebellion in 1786 -- the Whisky Rebellion in 1794. Both collapsed when the government showed itself able to put down rebellion -- and nobody was hanged for either of them. Shays and his temporary rebels received a general amnesty -- the leaders of the Whisky Rebellion were convicted of treason and then pardoned by the President." Benet, America, pp. 49-50. Speaking of the War between the States, he says: "Again, there was no blood purge. There were no mass executions. No heads rolled." "The handful of fanatics who had plotted the assassination of Lincoln and other government leaders were executed. His actual murderer was tracked down and shot. The half-crazy officer who commanded a notorious southern prison camp was hanged. The former President of the Confederacy, Jefferson Davis, was kept for a while in prison with certain of his associates, and then released. But that was all." "Not one of the great southern generals or statesmen, Lee, Johnson, Stephens, Hampton, Longstreet -- was even tried for treason." Id., 78. [ Footnote 40 ] Apart, of course, from levying war, which is not charged in this case and is not involved in the controversy. [ Footnote 41 ] Hallam, in his Constitutional History of England (1827), said: "Nothing had brought so much disgrace on the councils of government and on the administration of justice, nothing more forcibly spoken the necessity of a great change, than the prosecutions for treason during the latter years of Charles II., and in truth during the whole course of our legal history. The statutes of Edward III. and Edward VI., almost set aside by sophistical constructions, required the corroboration of some more explicit law, and some peculiar securities were demanded for innocence against that conspiracy of the court with the prosecutor, which is so much to be dreaded in all trials for political crimes." V. 2, p. 509. Continuing, after comment on particular cases, he said: "In the vast mass of circumstantial testimony which our modern trials for high treason display, it is sometimes difficult to discern whether the great principle of our law requiring two witnesses to overt acts has been adhered to, for certainly it is not adhered to unless such witnesses depose to acts of the prisoner from which an inference of his guilt is immediately deducible." V. 2, p. 516. [ Footnote 42 ] There are, of course, rare cases where adherence might be proved by an overt act such as subscribing an oath of allegiance or accepting pay from an enemy. These might supplement proof of other acts of aid and comfort, but no such overt acts of adherence are involved in this case. [ Footnote 43 ] Of course, the Constitution does not require a treason to be proved by any single overt act. It may be grounded upon any number, each to be supported by the testimony of two witnesses. We speak in the singular, but what we say applies as well to a series of acts or to the sum of many acts. [ Footnote 44 ] We are not concerned here with any question as to whether there may be an offense of attempted treason. [ Footnote 45 ] The verdict in this case was a general one of guilty, without special findings as to the acts on which it rests. Since it is not possible to identify the grounds on which Cramer was convicted, the verdict must be set aside if any of the separable acts submitted was insufficient. Stromberg v. California, 283 U. S. 359 , 283 U. S. 368 ; Williams v. North Carolina, 317 U. S. 287 , 317 U. S. 292 . The tenth act charged, the third submitted, was based on five falsehoods told by Cramer after his arrest to agents of the Federal Bureau of Investigation, admittedly for the purpose of shielding Werner Thiel. After some time, he recanted the falsehoods and told the truth. Thiel had already been taken into custody when the interviews occurred. The prisoner contends that lying to his jailer does not constitute treason, that, in the whole history of treason, no precedent can be or is cited for holding a false statement while under interrogation after imprisonment is treason, that, in any event, it amounted to no more than an attempt which was not consummated, that there was no right to interrogate Cramer under the circumstances, and that admissions made out of court are rendered inadmissible as proof of overt acts in view of the requirement that the act be proved by two witnesses or by "Confession in Open Court." The use of this evidence as an overt act of treason is complicated, and we intimate no views upon it in view of reversal on other grounds. Were we to affirm, we should have first to resolve these questions against the prisoner. [ Footnote 46 ] The testimony of Norma Kopp was probably the most damaging to the prisoner. She was a German alien who had been in the United States since 1928, but had never become a citizen. She had long and intimately known both Cramer and Thiel, and became engaged to marry Thiel four days before he left for Germany. She knew him to be a Nazi. She received at Westport, Conn., where she was working as a laundry and kitchen maid, a note from Cramer, asking her to come to New York for an undisclosed reason. She came, and Cramer then, she says, told her that Thiel was back, that he came with others, that six of them landed from a submarine in a rubber boat in Florida, that they brought much money "from Germany from the German Government," that Cramer was keeping it for Thiel in his safety deposit box, that these men got instructions from a "sitz" in the Bronx as to where to go, but Cramer said he did not know what he meant by "sitz." Cramer said he expected Thiel that evening at his apartment, but Thiel did not come. Cramer failed to bring about her meeting with Thiel, as he had promised her. She was at Kolping House when Cramer was taken into custody. The following day, pictures of the saboteurs and the story of their landing and arrest was in the newspapers. She was taken into custody and questioned by the Federal Bureau of Investigation. [ Footnote 47 ] Cramer left a note for "William Thomas," the name under which Thiel was going at the Commodore Hotel, where he was staying, saying that Miss Kopp had come and asking Thiel to meet them at Thompson's Cafeteria at 4:00 that afternoon or call them at 7:00 that evening at Kolping House. Thiel had been arrested, and did not keep the rendezvous nor make the call. About 10:50 p.m., June 27, Cramer was taken into custody at Kolping House and taken to the Bureau's headquarters in New York. He told the agents that the man he had been with at Thompson's Cafeteria was William Thomas, that Thomas had worked in a factory on the West Coast since March of 1941, and had not been out of the United States. When asked if the true name of William Thomas was not Werner Thiel, he replied that it was, and that Thiel was using an assumed name because of difficulties with his draft board. He stated that the money belt which Thiel had given him contained only $200, which Thiel owed him, and that the $3,500 in the safety deposit box belonged to him, and had been obtained from the sale of securities. The gravity of the offense with which he might be confronted was intimated to Cramer, and he asked if he might speak with agent Ostholthoff alone. To him he recanted his previous false statements and admitted that he knew Thiel had come from Germany, probably on a mission for the German Government, which he thought was "to stir up unrest among the people and probably spread propaganda." He repeated this in the presence of other agents and stated that he had lied in order to protect Thiel. Cramer authorized the agents to search his room and to open his safe deposit box at the Corn Exchange Bank and remove the contents thereof. [ Footnote 48 ] As summarized in the opinion of the Circuit Court of Appeals, these are: "Writing Thiel in Germany, November 25, 1941, appellant said that 'defiance, boldness, will and sharp weapons will decided [ sic ] the war, and the German Army and the German people are not lacking in these,' that he was 'very discontent,' and sat here 'in pitiable comfort,' and that he had refused a job in Detroit at $100 per week because 'I do not want to soil my hands with war work.' To his family in Germany, he wrote December 3, 1941, of 'the gigantic sacrifices which the glorious, disciplined German Army is making from day to day for the Homeland,' that 'every day here I hear the shrieks of hatred and the clamor for annihilation from the hostile foreigners,' and that a lost war 'means today a complete extirpation of the German nation.' To a friend in Chicago he wrote April 21, 1942, objecting to conscription 'after one has spent almost half a lifetime here in the States,' and saying 'personally I should not care at all to be misused by the American army as a world conqueror.' All the letters were written in German." [ Footnote 49 ] On the Government's case, a witness testified that he went to Cramer's apartment, told him that he was a representative of the United States Government on a pledge drive, and asked him if he would like to sign a pledge for a bond. Cramer said he was not interested, and, in reply to the question whether he would sign up for a stamp, he said he was not even interested in the purchase of a 10-cent stamp. He then closed the door. The witness rang again and Cramer opened the door again and then closed it. Normal Kopp testified that Cramer told her that the "Minute Man" called at his door "and he got kind of fresh and he closed the door at him." Miss Kopp's testimony was objected to, and was offered as "showing the general motive and disposition, insofar as loyalty to the country is concerned, of this defendant," and as probative on the issue of intent. The court received it on the theory that incidents of that sort might corroborate or the jury might find it corroborated certain other testimony offered by the Government indicating a motive or intent. [ Footnote 50 ] The defendant, having testified in his own behalf, was under cross-examination. He was asked: "Q. Now sir isn't it the fact that you did write to Germany in the year 1941 several letters in which you discussed the United States in an unfriendly manner?" "A. I do not know unfriendly. I would say that I have criticized a few persons. I have never criticized the United States as such." He was then asked whether, in 1941, he did not receive letters from his nephew Norbert, and whether it was not the fact that Cramer's brother, Norbert's father, "through Norbert warned you that your letters discussed the United States in such an unfriendly fashion that Norbert's father feared that you would be put on the blacklist, because, according to him, the letters went through an American censorship?" Objection was duly made that the letters referred to were from someone else, and could not bind the defendant. The objection was overruled, and the witness answered: "Well, I have received a letter from my nephew Norbert which mentions that, I admit that." A motion to strike the answer was denied, and exceptions to both rulings were duly taken. The Circuit Court of Appeals observed that, "Of course, these expressions of opinion could not properly bind appellant, and the objection might wisely have been sustained." But it concluded that the ruling was not sufficiently prejudicial to call for reversal. While defendant was under cross-examination, he was asked, "By the way, Mr. Witness, you have testified at length here about your various studies and your various occupations and interests. Were you ever interested in law?" "A. No. sir; I was not." "Q. Isn't it a fact, sir, that at one time you were particularly interested in the law of treason?" "A. No, sir; I have never been interested in that." The District Attorney then offered a complete text of the Constitution of the United States as printed in the New York Times in 1937. It had been found in Cramer's room, and on it were marks which he admitted making. One of the marks was opposite the paragraph which defines treason. The District Attorney offered it for impeachment, and also contended it to be of probative force to show "that this witness had in mind at the time these events which are the subject of the indictment here occurred, what the law of treason was." Against objection, the court admitted it as material and relevant, and declined to limit the grounds on which it was received. It appears without dispute that the marks on this copy of the Constitution were made at a time not definitely established, but clearly before the United States entered the war, and when the policy of the Government was declared to be one of neutrality. The treason paragraph of the Constitution was one of six provisions which he marked. Another was the provision of Article 1 of Section 7, that, if any bill passed by the Congress shall not be returned by the President within ten days after having been presented to him, the same shall be a law. Another, the provision of Article 1, Section 8, that Congress shall have the power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. A third was Article 1, Section 9, which provides that no bill of attainder or ex post facto law shall be passed. A fourth was that provision of Article 1, Section 9, that no title of nobility shall be granted by the United States. Another was the portion of Article 2, Section 1, which sets forth the President's oath. The petitioner was naturalized in 1936, and, so far as appears, came into possession of the Constitution in 1937. [ Footnote 51 ] 2 Farrand 347. [ Footnote 52 ] E.g., Hartzel v. United States, 322 U. S. 680 . [ Footnote 53 ] Congress has prohibited obtaining defense information in certain ways, 50 U.S.C. § 31; certain disclosures of information, 50 U.S.C. § 32; certain seditious and disloyal acts in war time, 50 U.S.C. § 33, and has enacted such statutes as the Trading with the Enemy Act, 50 U.S.C. Appendix, § 3. [ Footnote 54 ] The Government's Appendix includes such examples as the following: Danish Penal Code. -- "Sec. 105. One who commits an act by virtue of which a foreign service of military intelligence is set up, or who assists directly or indirectly in its functioning on the territory of the Denmark, shall be punished by imprisonment up to two years and, in cases of extenuating circumstances, by detention." Polish Code. -- "Art. 100, Sec. 1. Whoever in time of war acts in favor of the enemy or to the damage of the Polish armed forces or allied forces shall be punished by imprisonment not under ten years or for life." "Art. 100, Sec. 2. If the offender unintentionally acted, he shall be punished by imprisonment not to exceed three years or by detention not to exceed three years." French Code of 1939. -- "Art. 103. Whoever, knowing about the plans of an act of treason or espionage, does not report them to the military, administrative, or judicial authorities as soon as he acquired knowledge shall be punished by penalties provided by Art. 83 for the attack on the exterior safety of the State." The French Code (Harboring) provides in Article 85 that every Frenchman and every foreigner shall be punished as an accomplice or for harboring: "(1) Who, knowing the intentions of the perpetrators of major crimes and minor crimes against the exterior safety of the State, furnishes them subsidies, means of existence, lodging, place of asylum or meeting place." "(2) Who, knowingly carries the correspondence of the perpetrators of a major or minor crime or knowingly facilitates them in any manner whatsoever in finding, harboring, transporting, or transmitting, the objects of a major or minor crime;" "(3) Who harbors knowingly the objects or instruments which served or should serve for the commission of the crime or offense or material objects or documents obtained through a crime or offense." [ Footnote 55 ] 2 Farrand 348. [ Footnote 56 ] See Brooks, The World of Washington Irving, 73 n. MR. JUSTICE DOUGLAS, with whom the CHIEF JUSTICE, MR. JUSTICE BLACK, and MR. JUSTICE REED concur, dissenting. The opinion of the Court is written on a hypothetical state of facts, not on the facts presented by the record. Page 325 U. S. 49 It states a rule of law based on an interpretation of the Constitution which is not only untenable, but is also unnecessary for the decision. It disregards facts essential to a determination of the question presented for decision. It overlooks the basis issue on which our disposition of the case must turn. In order to reach that issue, we must have a more exact appreciation of the facts than can be gleaned from the opinion of the Court. I Cramer is a naturalized citizen of the United States, born in Germany. He served in the German army in the last war, coming to this country in 1925. In 1929, he met Thiel, who had come to this country in 1927 from a place in Germany not far from petitioner's birthplace. The two became close friends; they were intimate associates during a twelve-year period. In 1933, Cramer found work in Indiana. Thiel joined him there. Both became members of the Friends of New Germany, predecessor of the German-American Bund. Cramer was an officer of the Indiana local. He resigned in 1935, but Thiel remained a member, and was known as a zealous Nazi. In 1936, Cramer visited Germany. On his return, he received his final citizenship papers. He and Thiel returned to New York in 1937, and lived either together or in close proximity for about four years. Thiel left for Germany in the spring of 1941, feeling that war between the United States and Germany was imminent. According to Cramer, Thiel was "up to his ears" is Nazi ideology. Cramer corresponded with Thiel in Germany. Prior to our declaration of war, he was sympathetic with the German cause and critical of our attitude. Thus, in November, 1941, he wrote Thiel saying he had declined a job in Detroit "as I don't was to dirty my fingers with war material;" that "We sit here in pitiable comfort, when we should be in the Page 325 U. S. 50 battle -- as Nietzsche says -- I want the man, I want the woman, the one fit for war, the other fit for bearing." In the spring of 1942, he wrote another friend in reference to the possibility of being drafted: "Personally I should not care at all to be misused by the American army as a world conqueror." Cramer listened to short-wave broadcasts of Lord Haw-Haw and other German propagandists. He knew that the theme of German propaganda was that England and the United States were fighting a war of aggression and seeking to conquer the world. So much for the background. What followed is a sequel to Ex parte Quirin, 317 U. S. 1 . Thiel entered the German army, and, in 1942, volunteered with seven other German soldiers who had lived in the United States for a special mission to destroy the American aluminum industry. They were brought here by German submarines in two groups. Kerling was the leader, and Thiel a member, of one group which landed by rubber boat near Jacksonville, Florida on June 17, 1942. They buried their explosives and proceeded to New York City, where, on June 21st, they registered at the Hotel Commodore under the assumed names of Edward Kelly and William Thomas. The next morning, a strange voice called Cramer's name from the hall of the rooming house where he lived. On his failure to reply, an unsigned note was slipped under his door. It read, "Be at the Grand Central station tonight at 8 o'clock, the upper platform near the information booth, Franz from Chicago has come into town and wants to see you; don't fail to be there." Cramer said he knew no Franz from Chicago. But, nevertheless, he was on hand at the appointed hour and place. Thiel shortly appeared. They went to the Twin Oaks Inn, where they talked for two hours. Cramer admitted that he knew Thiel had come from Germany, and, of course, he knew that at that time men were not freely entering this country from Germany. Page 325 U. S. 51 He asked Thiel, "Say, how have you come over, have you come by submarine?" Thiel looked startled, smiled, and said, "Some other time, I am going to tell you all about this." Thiel told him that he had taken the assumed name of William Thomas, and had a forged draft card. Thiel admonished him to remember that he, Thiel, was "anti-Nazi" -- a statement Cramer doubted because he knew Thiel was a member of the Nazi party. Thiel indicated he had come from the coast of Florida. Cramer inquired if he had used a rubber boat. When Thiel said that the only time he was "scared to death was when I came over here we got bombed," Cramer replied, "Then you have come over by submarine, haven't you?" Thiel told Cramer that he had "three and a half or four thousand dollars" with him, and that "if you have the right kind of connection, you can even get dollars in Germany." Cramer offered to keep Thiel's money for him. Thiel agreed, but nothing was done about it that evening. Cramer admitted he had a "hunch" that Thiel was here on a mission for the German government. He asked Thiel "whether he had come over here to spread rumors and incite unrest." Cramer, after his arrest, told agents of the FBI that he had suspected that Thiel had received the money from the German government, that Thiel in fact had told him that he was on a mission for Germany, and that "whatever his mission was, I thought that he was serious in his undertaking." Thiel, from the beginning, clothed his actions with secrecy; was unwilling to be seen at Cramer's room ("because I have too many acquaintances there, and I don't want them to see me"), and cautioned Cramer against conversing loudly with him in the public tavern. So they agreed to meet at the Twin Oaks Inn at 8 P.M. on the following evening, June 23, 1942. At this meeting, Kerling joined them. Cramer had met Kerling in this country, and knew he had returned to Germany. Kerling Page 325 U. S. 52 and Thiel told Cramer that they had come over together. Cramer had a "hunch" that Kerling was here for the same purpose as Thiel. Kerling left Thiel and Cramer after about an hour and a half. Kerling was followed and arrested. Cramer and Thiel stayed on at the tavern for about another hour. After Kerling left, Thiel agreed to entrust his money to Cramer for safekeeping. He told Cramer to take out $200 which Thiel owed him. But he asked Cramer not to put all of the balance in the safe deposit box -- that he should keep some of it out "in the event I need it in a hurry." Thiel went to the washroom to remove the money belt. He handed it to Cramer on the street when they left the tavern. From the Twin Oaks, Thiel and Cramer went to Thompson's Cafeteria, where they conversed for about fifteen minutes. They agreed to meet there at 8 P.M. on June 25th. They parted. Thiel was followed and arrested. Cramer returned home. He put Thiel's money belt in a shoe box. He put some of the money between the pages of a book. Later, he put the balance in his bank -- some in a savings account, most of it in his safe deposit box. He and Thiel had talked of Thiel's fiancée, Norma Kopp. At the first meeting, Cramer had offered to write her on Thiel's behalf. He did so. He did not mention Thiel's name, but asked her to come to his room, saying he had "sensational" news for her. Cramer appeared at Thompson's Cafeteria at 8 P.M. June 25th to keep his appointment with Thiel. He waited about an hour and a half. He returned the next night, June 26th, and definitely suspected Thiel had been arrested. Though he knew Thiel was registered at the Hotel Commodore, he made no attempt to get in touch with him there. When he returned to his room that night, Norma Kopp was waiting for him. She testified that he told her that Thiel was here; that "they came about six men with a U-boat, in a rubber boat, and landed in Florida;" that they "brought so Page 325 U. S. 53 much money along from Germany, from the German government," he was keeping it in a safe deposit box, and that they "get instructions from the sitz (hideout) in the Bronx what to do, and where to go." The next morning, Cramer left a note for "William Thomas" at the Commodore saying that Norma Kopp had arrived and suggested a rendezvous. Later in the day, Cramer was arrested. He told the agents of the FBI that the name of the man who had been with him at Thompson's Cafeteria on the evening of June 23rd was "William Thomas," that "Thomas" had been working in a factory on the West Coast since March, 1941, and had not been out of the United States since then. He was asked if "Thomas" was not Thiel. He then admitted he was, saying that Thiel had used an assumed name, as he was having difficulties with his draft board. He also stated that the money belt Thiel gave him contained only $200 which Thiel owed him, and that the $3,500 in his safe deposit box belonged to him, and were the proceeds from the sale of securities. After about an hour or so of the falsehoods, Cramer asked to speak to one of the agents alone. The request was granted. He then recanted his previous false statements and stated that he felt sure that Thiel had come from Germany by submarine on a mission for the German Government, and that he thought that mission was "to stir up unrest among the people and probably spread propaganda." He stated he had lied in order to protect Thiel. The Court holds that this evidence is insufficient to sustain the conviction of Cramer under the requirements of the Constitution. We disagree. II Article III, Sec. 3 of the Constitution defines treason as follows: "Treason against the United States, shall consist only in levying War against them, or in adhering to Page 325 U. S. 54 their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." The charge against Cramer was that of adhering. The essential elements of the crime are that Cramer (1) with treasonable intent (2) gave aid and comfort to the enemy. [ Footnote 2/1 ] There was ample evidence for the jury that Cramer had a treasonable intent. The trial court charged the jury that "criminal intent and knowledge, being a mental state, are not susceptible of being proved by direct evidence, and therefore you must infer the nature of the defendant's intent and knowledge from all the circumstances." It charged that proof of criminal intent and knowledge is sufficient if proved beyond a reasonable doubt, and that the two witnesses are not necessary for any of the facts other than the overt acts. On that there apparently is no disagreement. It also charged: "Now gentlemen, motive should not be confused with intent. If the defendant knowingly gives aid and comfort to one who he knows or believes is an enemy, then he must be taken to intend the consequences of his own voluntary act, and the fact that his motive might not have been to aid the enemy is no Page 325 U. S. 55 defense. In other words, one cannot do an act which he knows will give aid and comfort to a person he knows to be an enemy of the United States and then seek to disclaim criminal intent and knowledge by saying that one's motive was not to aid the enemy. So if you believe that the defendant performed acts which by their nature gave aid and comfort to the enemy, knowing or believing him to be an enemy, then you must find that he had criminal intent, since he intended to do the act forbidden by the law. The fact that you may believe that his motive in so doing was, for example, merely to help a friend, or possibly for financial gain, would not change the fact that he had a criminal intent." On that there apparently is no disagreement. A man who voluntarily assists one known or believed to be an enemy agent may not defend on the ground that he betrayed his country for only thirty pieces of silver. See Hanauer v. Doane , 12 Wall. 342, 79 U. S. 347 ; Sprott v. United States , 20 Wall. 459, 87 U. S. 463 . "The consequences of his acts are too serious and enormous to admit of such a plea. He must be taken to intend the consequences of his own voluntary act." Hanauer v. Doane, supra. For the same reasons, a man cannot slip through our treason law because his aid to those who would destroy his country was prompted by a desire to "accommodate a friend." [ Footnote 2/2 ] Loyalty to country cannot be subordinated to the amenities of personal friendship. Page 325 U. S. 56 Cramer had a traitorous intent if he knew or believed that Thiel and Kerling were enemies and were working here in the interests of the German Reich. The trial court charged that mere suspicion was not enough, but that it was not necessary for Cramer to have known all their plans. There apparently is no disagreement on that. By that test, the evidence against Cramer was overwhelming. The conclusion is irresistible that Cramer believed, if he did not actually know, that Thiel and Kerling were here on a secret mission for the German Reich with the object of injuring the United States, and that the money which Thiel gave him for safekeeping had been supplied by Germany to facilitate the project of the enemy. The trial court charged that, if the jury found that Cramer had no purpose or intention of assisting the German Reich in its prosecution of the war or in hampering the United States in its prosecution of the war, but acted solely for the purpose of assisting Kerling and Thiel as individuals, Cramer should be acquitted. There was ample evidence for the jury's conclusion that the assistance Cramer rendered was assistance to the German Reich, not merely assistance to Kerling and Thiel as individuals. The trial judge stated when he sentenced Cramer that it did not appear that Cramer knew that Thiel and Kerling were in possession of explosives or other means for destroying factories in this country, or that they planned to do that. He stated that, if there had been direct proof of such knowledge, he would have sentenced Cramer to death, rather than to forty-five years in prison. But however relevant such particular knowledge may have been to fixing the punishment for Cramer's acts of treason, it surely was not essential to proof of his traitorous intent. A defendant who has aided an enemy agent in this country may not escape conviction for treason on the ground that he was not aware of the enemy's precise objectives. Knowing or believing that the agent was here on a mission Page 325 U. S. 57 on behalf of a hostile government, he could not, by simple failure to ask too many questions, assume that this mission was one of charity and benevolence toward the United States. But the present case is much stronger. For Cramer claims he believed the enemy agent's objective was to destroy national morale by propaganda, and not to blow up war factories. Propaganda designed to cause disunity among adversaries is one of the older weapons known to warfare and, upon occasion, one of the most effective. No one can read this record without concluding that the defendant Cramer knew this. He is an intelligent, if misguided, man. He has a quick wit sharpened by considerable learning of its kind. He is widely read, and a student of history and philosophy, particularly Ranke and Nietzsche. He had been an officer of a pro-German organization, and his closest associate had been a zealous Nazi. He also had listened to German propagandists over the short wave. But, in any event, it is immaterial whether Cramer was acquainted with the efficacy of propaganda in modern warfare. Undoubtedly he knew that the German Government thought it efficacious. When he was shown consciously and voluntarily to have assisted this enemy program, his traitorous intent was then and there sufficiently proved. The Court does not purport to set aside the conviction for lack of sufficient evidence of traitorous intent. It frees Cramer from this treason charge solely on the ground that the overt acts charged are insufficient under the constitutional requirement. III The overt acts alleged were (1) that Cramer met with Thiel and Kerling on June 23rd, 1942, at the Twin Oaks Inn, and "did confer, treat, and counsel" with them "for the purpose of giving and with the intent to give aid and comfort" to the enemy; (2) that Cramer "did accompany, Page 325 U. S. 58 confer, treat, and counsel with" Thiel at the Twin Oaks Inn and at Thompson's Cafeteria on June 23rd, 1942, "for the purpose of giving and with intent to give aid and comfort" to the enemy, and (3) that Cramer gave false information of the character which has been enumerated to agents of the FBI "for the purpose of concealing the identity and mission" of Thiel and "for the purpose of giving and with intent to give aid and comfort" to the enemy. The Court concedes that an overt act need not manifest on its face a traitorous intention. By that concession, it rejects the defense based on the treason clause which Cramer has made here. The Court says an overt act must "show sufficient action by the accused, in its setting, to sustain a finding that the accused actually gave aid and comfort to the enemy." It says, however, that the "protection of the two witness rule extends at least to all acts of the defendant which are used to draw incriminating inferences that aid and comfort have been given." It adds, "Every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses. The two witness principle is to interdict imputation of incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness. The prosecution cannot rely on evidence which does not meet the constitutional test for overt acts to create any inference that the accused did other acts or did something more than was shown in the overt act, in order to make a giving of aid and comfort to the enemy." And when it comes to the overt acts of meeting and conferring with Thiel and Kerling, the Court holds that they are inadequate since there was "no two witness proof of what they said nor in what language they conversed." That is to say, reversible error is found because the two witnesses who testified to the fact that Cramer met twice with the saboteurs did not testify that Cramer Page 325 U. S. 59 gave them information of "value to their mission" such as shelter, sustenance, supplies, encouragement, or counsel. That conclusion, we submit, leads to ludicrous results. The present case is an excellent example. It is conceded that, if the two witnesses had testified not only that they saw Cramer conferring with Thiel and Kerling, but also heard him agree to keep Thiel's money and saw him take it, the result would be different. But the assumption is that, since the two witnesses could not testify as to what happened at the meetings, we must appraise the meetings in isolation from the other facts of the record. Therein lies the fallacy of the argument. In the first place, we fully agree that, under the constitutional provision, there can be no conviction of treason without proof of two witnesses of an overt act of treason. We also agree that the act so proved need not itself manifest on its face the treasonable intent. And, as the Court states, such intent need not be proved by two witnesses. It may even be established by circumstantial evidence. For it is well established that the overt act and the intent are separate and distinct elements of the crime. [ Footnote 2/3 ] The "intent may be proved by one witness, collected from circumstances, or even by a single fact." Case of Fries, 9 Fed.Cas. 826, 909, No. 5, 126; Respublica v. Roberts , 1 Dall. 39; United States v. Lee, 26 Fed.Cas. 907, No. 15,584; Trial of David Maclane, 26 How.St.Tr. 721, 795-798. Acts innocent on their face, when judged in the light of their purpose and of related events, may turn out to be acts of aid and comfort committed with treasonable purpose. It is the overt act charged as such in the indictment which must be proved by two witnesses, and not the related events which make manifest its treasonable quality and purpose. This, we think, is the correct and necessary conclusion to be drawn from the concession that the overt act need not on its face manifest the guilty purpose. The Page 325 U. S. 60 grossest and most dangerous act of treason may be, as in this case, and often is, innocent on its face. But the ruling of the Court that the related acts and events which show the true character of the overt act charged must be proved by two witnesses is without warrant under the constitutional provisions, and is so remote from the practical realities of proving the offense as to render the constitutional command unworkable. The treasonable intent or purpose which it is said may be proved by a single witness or circumstantial evidence must, in the absence of a confession of guilt in open court, be inferred from all the facts and circumstances which surround and relate to the overt act. Inference of the treasonable purpose from events and acts related to or surrounding the overt act necessarily includes the inference that the accused committed the overt act with the knowledge or understanding of its treasonable character. To say that the treasonable purpose with which the accused committed the overt act may be inferred from related events proved by a single witness, and at the same time to say that, so far as they show the treasonable character of the overt act, they must be proved by two witnesses, is a contradiction in terms. The practical effect of such a doctrine is to require proof by two witnesses not only of the overt act charged which the Constitution requires, but of every other fact and circumstance relied upon to show the treasonable character of the overt act and the treasonable purpose with which it was committed, which the Constitution plainly does not require. Here, as in practically all cases where there is no confession in open court, the two are inseparable, save only in the single instance where the overt act manifests its treasonable character on its face. The court thus in substance adopts the contention of the respondent, which it has rejected in words, and for all practical purposes requires proof by two witnesses not only of the overt act, but of all other elements of the crime save only in the Page 325 U. S. 61 case where the accused confesses in open court. It thus confuses proof of the overt act with proof of the purpose or intent with which the overt act was committed, and, without historical support, expands the constitutional requirement so as to include an element of proof not embraced by its words. We have developed in the 325 U.S. 1 app|>Appendix to this opinion the historic function of the overt act in treason cases. It is plain from those materials that the requirement of an overt act is designed to preclude punishment for treasonable plans or schemes or hopes which have never moved out of the realm of thought or speech. It is made a necessary ingredient of the crime to foreclose prosecutions for constructive treason. The treasonable project is complete as a crime only when the traitorous intent has ripened into a physical and observable act. The act, standing alone, may appear to be innocent or indifferent, such as joining a person at a table, stepping into a boat, or carrying a parcel of food. That alone is insufficient. It must be established beyond a reasonable doubt that the act was part of the treasonable project, and done in furtherance of it. Its character and significance are to be judged by its place in the effectuation of the project. That does not mean that, where the treasonable scheme involves several treasonable acts, and the overt act which is charged has been proved by two witnesses, that all the other acts which tend to show the treasonable character of the overt act and the treasonable purpose with which it was committed must be proved by two witnesses. The Constitution does not so declare. There is no historical support for saying that the phrase "two Witnesses to the same overt Act" may be or can be read as meaning two witnesses to all the acts involved in the treasonable scheme of the accused. Obviously, one overt act proved by two witnesses is enough to sustain a conviction, even though the accused has committed many other acts which can be proved by only one Page 325 U. S. 62 witness or by his own admission in open court. Hence, it is enough that the overt act which is charged be proved by two witnesses. As the Court concedes, its treasonable character need not be manifest upon its face. We say that its true character may be proved by any competent evidence sufficient to sustain the verdict of a jury. Any other conclusion leads to such absurd results as to preclude the supposition that the two witness rule was intended to have the meaning attributed to it. When we apply that test to the facts of this case, it is clear to us that the judgment of conviction against Cramer should not be set aside. The historical materials which we have set forth in the 325 U.S. 1 app|>Appendix to this opinion establish that a meeting with the enemy may be adequate as an overt act of treason. Hale, Kelyng, and Foster establish that beyond peradventure of doubt. Such a meeting might be innocent on its face. It might also be innocent in its setting, as Hale, Kelyng, and Foster point out, where, for example, it was accidental. We would have such a case here if Cramer's first meeting with Thiel was charged as an overt act. For, as we have seen, Cramer went to the meeting without knowledge that he would meet and confer with Thiel. But the subsequent meetings were arranged between them. They were arranged in furtherance of Thiel's designs. Cramer was not only on notice that Thiel was here on a mission inimical to the interests of this nation. He had agreed at the first meeting to hide Thiel's money. He had agreed to contact Norma Kopp. He knew that Thiel wanted his identity and presence in New York concealed. This was the setting in which the later meetings were held. The meetings take on their true character and significance from that setting. They constitute acts. They demonstrate that Cramer had a liking for Thiel's design to the extent of aiding him in it. They show beyond doubt that Cramer had more than a treasonable intent; that that intent had moved from the realm of Page 325 U. S. 63 thought into the realm of action. Since two witnesses proved that the meetings took place, their character and significance might be proved by any competent evidence. In the second place, this judgment of conviction should be sustained even though we assume, arguendo, that Cramer's motion to dismiss at the end of the government's case should have been granted. The concern of the Court is that acts innocent on their face may be transformed into sinister or guilty acts by circumstantial evidence, by inference, by speculation. The rule announced by the Court is based on a desire for trustworthy evidence in determining the character and significance of the overt acts. But this is not a case where an act innocent on its face is given a sinister aspect and made a part of a treasonous design by circumstantial evidence, by inference, or by the testimony of a single witness for the prosecution. We know from Cramer's own testimony -- from his admissions at the trial -- exactly what happened. We know the character of the meetings from Cramer's own admissions. We know from his own lips that they were not accidental or casual conferences, or innocent social meetings. He arranged them with Thiel. When he did so, he believed that Thiel was here on a secret mission for the German Reich with the object of injuring this nation. He also knew that Thiel was looking for a place to hide his money. Cramer had offered to keep it for Thiel, and Thiel had accepted the offer. Cramer had also offered to write Norma Kopp, Thiel's fiancée, without mentioning Thiel's name. Cramer also knew that Thiel wanted his identity and his presence in New York concealed. Cramer's admissions at the trial gave character and significance to those meetings. Those admissions, plus the finding of treasonable intent, place beyond a reasonable doubt the conclusion that those meetings were steps in, and part and parcel of, the treasonable project. Nor need we guess or speculate for knowledge of what happened at the meetings. We need not rely on circumstantial Page 325 U. S. 64 evidence, draw inferences from other facts, or resort to secondary sources. Again, we know from Cramer's testimony at the trial -- from his own admissions -- precisely what transpired. Cramer told the whole story in open court. He admitted he agreed to act and did act as custodian of the saboteur Thiel's money. He agreed to hold it available for Thiel's use whenever Thiel might need it. It is difficult to imagine what greater aid one could give a saboteur unless he participated in the sabotage himself. Funds were as essential to Thiel's plans as the explosives he buried in the sands of Florida. Without funds, the mission of all the saboteurs would have soon ended, or been seriously crippled. Cramer did not stop here. Preservation of secrecy was essential to this invasion of the enemy. It was vital if the project was to be successful. In this respect, Cramer also assisted Thiel. He cooperated with Thiel in the concealment of Thiel's identity and presence in New York City. He did his best to throw federal officers off the trail and to mislead them. He made false statements to them saying that Thiel's true name was "Thomas," and that Thiel had not been not of the country since the war began. If Cramer had not testified, we would then be confronted with the questions discussed in the opinion of the Court. But he took the stand, and told the whole story. It is true that, at the end of the government's case, Cramer moved to dismiss on the ground that the crime charged had not been made out. That motion was denied, and an exception taken. If Cramer had rested there, the case submitted to the jury and a judgment of conviction rendered, we would have before us the problem presented in the opinion of the Court. But Cramer did not rest on that motion. He took the stand and told the whole story. Any defect in the proof was cured by that procedure. As stated in Bogk v. Gassert, 149 U. S. 17 , 149 U. S. 23 , "A defendant Page 325 U. S. 65 has an undoubted right to stand upon his motion for a nonsuit, and have his writ of error, if it be refused; but he has no right to insist upon his exception after having subsequently put in his testimony, and made his case upon the merits, since the court and jury have the right to consider the whole case as made by the testimony. It not infrequently happens that the defendant himself, by his own evidence, supplies the missing link." And see Sigafus v. Porter, 179 U. S. 116 , 179 U. S. 121 ; McCabe & Steen Const. Co. v. Wilson, 209 U. S. 275 , 209 U. S. 276 ; Bates v. Miller, 133 F.2d 645, 647-648; 9 Wigmore on Evidence (3d ed.1940) § 2496. And the rule obtains in criminal, as well as in civil, cases. Sheridan v. United States, 112 F.2d 503, 504, rev'd on other grounds, 312 U.S. 654; Edwards v. United States, 7 F.2d 357, 359; Baldwin v. United States, 72 F.2d 810, 812. Why, then, must we disregard Cramer's admissions at the trial? Why must we assume, as does this Court, that those admissions are out of the case, and that our decision must depend solely on the evidence presented by the government? The Constitution says that a "confession in open Court" is sufficient to sustain a conviction of treason. It was held in United States v. Magtibay, 2 Philippine 703, that a confession in open court to the overt acts charged in the indictment was not an adequate substitute for the testimony of two witnesses where the accused denied treasonable purpose. We need not go so far as to say that, if the whole crime may be proved by an admission by the accused in open court, one of the ingredients of the offense may be established in like manner. See Respublica v. Roberts, supra. We do not say that, if the government completely fails to prove an overt act or proves it by one witness only, the defect can be cured by the testimony of other witnesses or by the admissions of the accused. We do say that a meeting with the enemy is an act, and Page 325 U. S. 66 may, in its setting, be an overt act of treason. We agree that overt acts innocent on their face should not be lightly transformed into incriminating acts. But, so long as overt acts of treason need not manifest treason on their face, as the Court concedes, the sufficiency of the evidence to establish the treasonable character of the act, like the evidence of trasonable intent, depends on the quality of that evidence, whatever the number of witnesses who supplied it. There can be no doubt in this case on that score. Certainly a person who takes the stand in defense of a treason charge against him will not be presumed to commit perjury when he makes admissions against self-interest. Admissions against self-interest have indeed always been considered as the highest character of evidence. When two witnesses testify to the overt acts, why then are not admissions of the accused in open court adequate to establish their true character? Could the testimony of any number of witnesses more certainly or conclusively establish the significance of what was done? Take the case where two witnesses testify that the accused delivered a package to the enemy, the accused admitting in open court that the package contained guns or ammunition. Or two witnesses testify that the accused sent the enemy a message, innocuous on its face, the accused admitting in open court that the message was a code containing military information. Must a conviction be set aside because the two witnesses did not testify to what the accused admitted in open court? We say no. In such circumstances, we have no examples of constructive treason. The intent is not taken for the deed. Proof of the overt act plus proof of a treasonable intent make clear that the treasonable design has moved out of the realm of thought into the filed of action. And any possibility that an act innocent on its face has been transformed into a sinister or guilty act is foreclosed. For the significance and character of the act are supplied by the admissions from the lips of Page 325 U. S. 67 the accused in open court. The contrary result could be reached only if it were necessary that the overt act manifest treason on its face. That theory is rejected by the Court. But, once rejected, it is fatal to the defense. Cramer's counsel could not defend on the grounds advanced by the Court for the simple reason that, the government having proved by two witnesses that Cramer met and conferred with the saboteurs, any possible insufficiency in the evidence which it adduced to show the character and significance of the meetings was cured by Cramer's own testimony. Cramer can defend only on the ground that the overt act must manifest treason, which the Court rejects, or on the ground that he had no treasonable intent, which the jury found against him on an abundance of evidence. Those are the only alternatives, because, concededly, conferences with saboteurs here on a mission for the enemy may be wholly adequate as overt acts under the treason clause. They were proved by two witnesses, as required by the Constitution. Any possible doubt as to their character and significance as parts of a treasonable project were removed by the defendant's own admissions in open court. To say that we are precluded from considering those admissions in weighing the sufficiency of the evidence of the true character and significance of the overt acts is neither good sense nor good law. Such a result makes the way easy for the traitor, does violence to the Constitution, and makes justice truly blind. [ Footnote 2/1 ] It is well established that the overt act and the intent are separate and distinct elements of the crime of treason under the Constitution. See Ex parte Bollman , 4 Cranch. 75, 8 U. S. 126 ; United States v. Burr, 25 Fed.Cas. 2, 13-14, No. 14,692a; United States v. Lee, 26 Fed.Cas. 907, No. 15,584; United States v. Vigol, 28 Fed.Cas. 376, No. 16,621; United States v. Hanway, 26 Fed.Cas. 105, 126, No. 15,299; United States v. Greiner, 26 Fed.Cas. 36, 39, No. 15,262; United States v. Greathouse, 26 Fed.Cas. 18, 22 No. 15,254; United States v. Werner, 247 F. 708, 709, 710; United States v. Fricke, 259 F. 673, 677; United States v. Robinson, 259 F. 685, 690; United States v. Stephan, 50 F. Supp. 738 , 742, 743, aff'd, 133 F.2d 87, 99. Chief Justice Marshall ruled in United States v. Burr, 25 Fed.Cas. pages 52, 54, No. 14,692h, that it was in the discretion of the prosecutor to present evidence of the intent before proof of an overt act. And see United States v. Lee, supra. [ Footnote 2/2 ] Carlisle v. United States , 16 Wall. 147, 83 U. S. 150 -151; Sprott v. United States , 20 Wall. 459, 87 U. S. 463 -464; United States v. Hodges, 26 Fed.Cas. 332, 334, No. 15,374; Charge to Grand Jury -- Treason, 30 Fed.Cas. 1032, 1034, No. 18,270; see also 1 East, Pleas of the Crown (1806) pp. 77-81; Warren, What is Giving Aid and Comfort to the Enemy (1918), 27 Yale L.J. 331, 343-345; Hazard and Stern, "Exterior Treason" (1938), 6 U. of Chi.L.Rev. 77, 84, 85. But a mere showing of aid and assistance to an alien enemy permanently residing in the United States without any showing that the enemy alien has designs against the interest of the United States, does not without more establish an act of treason. See United States v. Fricke, 259 F. 673, 682. [ Footnote 2/3 ] See 325 U.S. 1 fn2/1|>note 1, supra. | 325 U.S. 1 app| APPENDIX The most relevant source of materials for interpretation of the treason clause of the Constitution is the statute of 25 Edw. III, Stat. 5, ch. 2 (1351) and the construction which was given it. It was with that body of law and the English and colonial experience under it that the Framers were acquainted. That statute specified seven offenses as Page 325 U. S. 68 constituting treason. As respects the three offenses relevant to our present discussion, it provided as follows: if a man "doth compass or imagine the death" of the king, or "if a man do levy war" against the king in his realm, or if he "be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere, and thereof be probably attainted of open deed," he shall be guilty of treason. Coke makes clear that the requirement of an overt act under the statute applies to all of the offenses included in the category of treason. See Coke, Institutes of the Laws of England, Third Part (5th ed. London, 1671), p. 5. There are indications by Coke that the overt act was a separate element of the offense, and that its function was to show that the treasonable design had moved from thought to action. Id., pp. 5, 12, 14, 38. Hale is somewhat more explicit. In discussing the offense of compassing the king's death, he indicates that the overt act may be "indifferent" in character. He says, "That words may expound an overt act to make good an indictment of treason of compassing the king's death, which overt act possibly of itself may be indifferent and unapplicable to such an intent." 1 Hale, History of the Pleas of the Crown (Emlyn ed., London, 1736), p. 115. And he noted that, "If there be an assembling together to consider how they may kill the king, this assembling is an overt act to make good an indictment of compassing the king's death." Id., p. 119. Kelyng states the same view. He cites Sir Everard Digby's Case, 1 St.Tr. 234, for the proposition that the meeting of persons and their consulting to destroy the king was itself an overt act. "It was resolved that, where a Person knowing of the Design does meet with them, and hear them discourse of their traitorous Designs, and say or act nothing, This is High-Treason in that Party, for it is more than a bare Concealment, which is Misprision, because it sheweth his liking and approving of their Design. " Page 325 U. S. 69 He says that, if a person, not knowing their intent, met with them, heard their plans, but said nothing and never met again, that would be only misprision of treason. "But if he, after meet with them again, and hear their Consultations, and then conceal it, this is High-Treason. For it sheweth a liking and an approving of their Design." Kelyng, A Report of Divers Cases in Pleas of the Crown (3d ed., London, 1873), p. *17. And see p. *21. Foster is even more explicit. Like Coke, he asserts that an overt act is required for each branch of treason covered by the Statute of Edward III. Foster, A Report of Some Proceedings on the Commission for the Trial of the Rebels in the Year 1746 in the County of Surry, and of other Crown Cases (2d ed., London 1791), pp. 207, 237. He makes clear that an overt act is required not to corroborate the proof of a traitorous intent, but to show that the treasonable project has left the realm of thought and moved into the realm of action. As respects the offense of compassing the death of the king, he says that the indictment "must charge that the defendant did traitorously compass and imagine &c, and then go on and charge the several overt acts as the means employed by the defendant for executing his traitorous purposes. For the compassing is considered as the treason, the overt acts as the means made use of to effectuate the intentions and imaginations of the heart." Id., p. 194. He refers to Crohagan's Case (Cro.Car. 332), where the defendant said "I will kill the King of England if I can come at him," and the indictment added that he came to England for that purpose. "The traitorous intention, proved by his words, converted an action, innocent in itself, into an overt act of treason." Id., p. 202. And he also points out that "Overt acts undoubtedly do discover the man's intentions, but, I conceive, they are not to be considered merely as evidence, but as the means made use of to effectuate the purposes of the heart." Id., p. 203. And he adds, "Upon this Page 325 U. S. 70 principle, words of advice or encouragement, and, above all, consultations for destroying the King very properly come under the notion of means made use of for the purpose. But loose words not relative to facts are, at the worst, no more than bare indications of the malignity of the heart." Id., p. 204. He follows Kelyng in saying that attendance at a meeting with previous notice of the design to plot the death of the king or a return to a meeting after knowledge is gained of its treasonable purpose is treason, though bare concealment would not be if the defendant met the conspirators "accidentally or upon some indifferent occasion." Id., p. 195. It is true that these observations related to the offense of compassing or imagining the death of the king. But Foster indicates that the same test applies to make out the offense of adherence to the king's enemies. He says, "The offense of inciting foreigners to invade the kingdom is a treason of signal enormity. In the lowest estimation of things and in all possible events, it is an attempt on the part of the offender to render his country the seat of blood and desolation." Id., pp. 196-197. This was said in connection with his discussion of Lord Preston's Case, 12 How.St.Tr. 645, a landmark in the law of treason. Lord Preston was indicted both for compassing the death of the king and for adherence to his enemies. England was at war with France. The indictment alleged as an overt act of treason that, on December 30, 1690, Lord Preston and others hired a small boat in the County of Middlesex to take them to another vessel which would carry them to France. The indictment alleged that the defendants were en route to France to communicate military information to the enemy. After the vessel set sail for France and when the vessel was in the County of Kent, the defendants were arrested. Papers containing information of value to the enemy were found on the person of Lord Preston's servant. Lord Preston contended that, since the indictment laid the Page 325 U. S. 71 treason in Middlesex, there was no showing that a legally sufficient overt act of treason had been committed in that county. The court held, however, that the act of boarding the boat in Middlesex was a sufficient overt act of treason. Lord Chief Justice Holt ruled, "Now the question is whether your lordship had a design to go to France with these papers? If you had, and if your lordship did go on shipboard in order to it, your taking boat in Middlesex in order to go on shipboard is a fact done in the county of Middlesex." 12 How.St.Tr., p. 728. Foster, in his analysis of that case, makes clear that taking the boat was an overt act sufficient not only to the crime of compassing the death of the king, but also adherence to the enemies of the king. Foster, op. cit., pp. 197-198. Yet, on its face and standing alone, the overt act of taking the boat was completely innocent and harmless. Only when it was related to other activities and events did it acquire a treasonable significance. Foster gives other indications that, in case of adherence to the enemy, the function of the overt act is no different than when the offense of compassing is charged. The crime of adherence is made out where the defendant attempts to send money, provisions, or information to the enemy "though the money or intelligence should happen to be intercepted; for the party, in sending, did all he could; the treason was complete on his part, though it had not the effect he intended." Id., p. 217. Blackstone emphasizes the desirability of a restrictive interpretation of the offense of treason, condemning "constructive" treason and "newfangled treasons" which imperil the liberty of the people. 4 Blackstone, Commentaries (6th ed. Dublin 1775), pp. 75, 83, 85, 86. Blackstone recognizes the distinction between evidence of intent and the overt act: "But, as this compassing or imagination is an act of the mind, it cannot possibly fall under any judicial cognizance unless it be demonstrated by Page 325 U. S. 72 some open or overt act. And yet the tyrant Dionysius is recorded to have executed a subject barely for dreaming that he had killed him, which was held for a sufficient proof that he had thought thereof in his waking hours. But such is not the temper of the English law, and therefore, in this and the three next species of treason, it is necessary that there appear an open or overt act of a more full and explicit nature to convict the traitor upon." Id., p. 79. When it comes to the offense of adherence to the enemy, he gives examples of adequate overt acts, some of which may be innocent standing by themselves. "This must likewise be provided by some overt act, as by giving them intelligence, by sending them provisions, by selling them arms, by treacherously surrendering a fortress, or the like." Id. pp. 82-83. His analysis supports the views of Foster that the function of the overt act is to show that the traitorous project has moved out of the realm of thought into the realm of action. The English cases prior to 1790 support this thesis. We have mentioned Lord Preston's Case. In the case of Captain Vaughn, 13 How.St.Tr. 485, the principal charge against the defendant was adhering to the enemy, though levying war was also alleged. The substance of the overt act of adherence was that, when France and England were at war, the defendant cruised in a small ship of war, in English waters, in the service of France with intent to take the king's ships. It was objected that the overt act alleged was insufficient, "for it is said only he went a-cruising, whereas they ought to have alleged that he did commit some acts of hostility, and attempted to take some of the king's ships, for cruising alone cannot be an overt act, for he might be cruising to secure the French merchantships from being taken, or for many other purposes which will not be an overt act of treason." p.531. But Lord Chief Justice Holt ruled: "I beg your pardon. Suppose the French king, with forces, should Page 325 U. S. 73 come to Dunkirk with a design to invade England; if anyone should send him victuals, or give him intelligence, or by any other way contribute to their assistance, it would be high treason in adhering to the king's enemies." p. 531. And Lord Chief Justice Treby added: "The indictment is laid for adhering to, and comforting and aiding the king's enemies. You would take that to be capable to be construed adhering to the king's enemies in other respects; but I take it to be a reasonable construction of the indictment, to be adhering to the king's enemies in their emnity. What is the duty of every subject? It is to fight with, subdue, and weaken the king's enemies; and, contrary to this, if he confederate with and strengthen the king's enemies, he expressly contradicts this duty of his allegiance, and is guilty of this treason of adhering to them. But then you say here is no aiding unless there was something done, some act of hostility. Now here is going aboard with an intention to do such acts, and is not that comforting and aiding? Certainly it is. Is not the French king comforted and aided when he has got so many English subjects to go a-cruising upon our ships?" Pp. 532, 533. And he went on to say that acts which "give the enemy heart and courage to go on with the war" are acts of adherence even though the whole project was "an unprosperous attempt." P. 533. He emphasized that the lack of success was immaterial, for "if they have success enough, it will be too late to question them." P. 533. This is plain recognition not only that the aid and comfort may be given though the project is thwarted, [ Footnote 3/1 ] but also that aid and comfort is given when the enemy is encouraged and his morale bolstered as well as when materials are furnished. Page 325 U. S. 74 The case of Francis De la Motte, 21 How.St.Tr. 687, is also somewhat illuminating. The indictment charged compassing and adhering. The overt acts included writing and causing to be written documents conveying intelligence to the enemy, procuring a messenger to carry the documents, and hiring a person to gather and to send the intelligence. Mr. Justice Buller, in his charge to the jury, said: "The sending intelligence, or collecting intelligence, for the purpose of sending it to an enemy, to enable them to annoy us or to defend themselves, though it be never delivered to the enemy, or the hiring a person for that purpose, is an overt act of both the species of treason which I am stating to you from this indictment." P. 808. These materials indicate that the function of the overt act was to make certain that, before a conviction for the high crime of treason may be had, more than a treasonable design must be established; it must be shown that action pursuant to that design has been taken. The treason of adherence was defined essentially in terms of conduct, for it involved giving aid and comfort. Yet the attempt alone was sufficient; the aid and comfort need not have been received by the enemy. Conduct amounting to aid and comfort might be innocent by itself -- such as collecting information or stepping into a boat. It was sufficient if, in its setting, it reflected a treasonable project. It need not entail material aid; comfort or encouragement was sufficient. The only requirement was that it definitely translate treasonable thought into action which plainly tended to give aid and comfort to the enemy. These materials likewise support the contention of the government that the overt act need not manifest treason on its face. The history of treason in this country down to the Constitution has been recently developed in Hurst, Treason in the United States, 58 Harv.L.Rev. 226. We Page 325 U. S. 75 do not stop to explore that field. But Professor Hurst's researches make plain that, prior to the revolution, the influence of 25 Edw. III was strong in the colonies, and that, if anything, the scope of the offense was somewhat broadened. The Revolution changed matters. The Continental Congress recommended more restrictive legislation to the colonies which limited treason to levying war and adhering to the enemy, giving him aid and comfort. Id., p. 247. No form of treason by compassing was retained. Id., p. 252. Distrust of constructive treason was beginning to be voiced ( id., pp. 253, 254), though, in some colonies, treason was so broadly defined as to include mere utterances of opinions. Id., pp. 266 et seq. The proceedings of the Constitutional Convention of 1787 have been related in the opinion of the Court. And see Hurst, Treason in the United States, 58 Harv.L.Rev. 395. As the Court points out, the Framers were anxious to guard against convictions of the innocent by perjury, and to remove treason from the realm of domestic political disputes. Franklin expressed concern on the first in his statement that "prosecutions for treason were generally virulent, and perjury too easily made use of against innocence." 2 Farrand, Records of the Federal Convention, p. 348. Madison and Jefferson [ Footnote 3/2 ] both expressed distrust of treason for its long history of abuse in the political field. Madison said, in language somewhat reminiscent of Blackstone: "As treason may be committed Page 325 U. S. 76 against the United States, the authority of the United States ought to be enabled to punish it. But, as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger by inserting a constitutional definition of the crime fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author." The Federalist, No. XLIII. The requirement of two witnesses was not novel. England had long had that rule. 9 Holdsworth, A History of English Law (2d ed.1938) p. 207. The novelty was in the requirement that there be two witnesses to the "same" overt act. Moreover, there was no novelty in the offenses which were included in the definition of treason. Adhering to the enemy, giving him aid and comfort, like levying war, had long been embraced in the English crime of treason, as we have seen. But there was novelty in the narrow definition of treason which was adopted -- a restrictive definition born of the fear of constructive treason and distrust of treason as a political instrument. There is, however, no evidence whatever that the offense of adhering to the enemy giving him aid and comfort was designed to encompass a narrower field than that indicated by its accepted and settled meaning. Nor is there the slightest indication that the kind or character of overt acts required were any different than those which had long been recognized or accepted as adequate. The overt act was, of course, "intended as a distinct element of proof of the offense in addition to intent." Hurst, op. cit., pp. 415-416. But any suggested difference from the body of law which preceded vanishes when two witnesses to the same overt act are produced. As respects the point vital Page 325 U. S. 77 for our decision, it is therefore quite inaccurate for the Court to conclude that our treason clause "taught a concept that differed from all historical models." That would be true only if there was a purpose to depart from the concept of adhering to the enemy or the concept of overt acts which had become ingrained in the antecedent English law. We find no such purpose. [ Footnote 3/1 ] Accord: William Gregg, 14 How.St.Tr. 1371; Trial of Dr. Hensey, 19 How.St.Tr. 1341. Both of these involved indictments for compassing and adhering, the overt acts being letters of intelligence intercepted before they reached the enemy. [ Footnote 3/2 ] In a letter of April 24, 1792, Jefferson, then Secretary of State, wrote: "Treason, . . . when real, merits the highest punishment. But most codes extend their definitions of treason to acts not really against one's country. They do not distinguish between acts against the government and acts against the oppressions of the government; the latter are virtues, yet they have furnished more victims to the executioner than the former, because real treasons are rare, oppressions frequent. The unsuccessful strugglers against tyranny have been the chief martyrs of treason law in all countries." See 8 Writings of Thomas Jefferson (Library ed. Wash.1903) p. 332.

The Supreme Court case Cramer v. United States (1945) dealt with a treason charge against Anthony Cramer, accused of meeting and aiding German spies during World War II. The key issue was the interpretation of the Constitutional requirement that treason must be proven by the testimony of two witnesses to the same overt act. The Court held that the overt act must be sufficient to prove that the accused gave aid and comfort to the enemy, and this protection extends to all acts used to draw incriminating inferences. In this case, while there were two witnesses who testified to Cramer's meetings with the spies, there was no proof that he provided valuable information or any form of aid. The Court found the overt acts as proved were insufficient to sustain a treason conviction, highlighting the strict standards for such charges.

Immigration & National Security

Afroyim v. Rusk

https://supreme.justia.com/cases/federal/us/387/253/

U.S. Supreme Court Afroyim v. Rusk, 387 U.S. 253 (1967) Afroyim v. Rusk No. 456 Argued February 20, 1967 Decided May 29, 1967 387 U.S. 253 CERTIORARI TO THE UNITED STATES COURT OF APPEAL FOR THE SECOND CIRCUIT Syllabus Petitioner, of Polish birth, became a naturalized American citizen in 1926. He went to Israel in 1950, and in 1951 voted in an Israeli legislative election. The State Department subsequently refused to renew his passport, maintaining that petitioner had lost his citizenship by virtue of § 401(e) of the Nationality Act of 1940 which provides that a United States citizen shall "lose" his citizenship if he votes in a foreign political election. Petitioner then brought this declaratory judgment action alleging the unconstitutionality of § 401(e). On the basis of Perez v. Brownell, 356 U. S. 44 , the District Court and Court of Appeals held that Congress, under its implied power to regulate foreign affairs, can strip an American citizen of his citizenship. Held: Congress has no power under the Constitution to divest a person of his United States citizenship absent his voluntary renunciation thereof. Perez v. Brownell, supra, overruled. Pp. 387 U. S. 256 -268. (a) Congress has no express power under the Constitution to strip a person of citizenship, and no such power can be sustained as an implied attribute of sovereignty, as was recognized by Congress before the passage of the Fourteenth Amendment, and a mature and well considered dictum in Osborn v. Bank of the United States , 9 Wheat. 738, 22 U. S. 827 , is to the same effect. Pp. 387 U. S. 257 -261. (b) The Fourteenth Amendment's provision that "All persons born or naturalized in the United States . . . are citizens of the United States . . ." completely controls the status of citizenship, and prevents the cancellation of petitioner's citizenship. Pp. 387 U. S. 262 -268. 361 F.2d 102, reversed. Page 387 U. S. 254 MR. JUSTICE BLACK delivered the opinion of the Court. Petitioner, born in Poland in 1893, immigrated to this country in 1912 and became a naturalized American citizen in 1926. He went to Israel in 1950, and in 1951, he voluntarily voted in an election for the Israeli Knesset, the legislative body of Israel. In 1960, when he applied for renewal of his United States passport, the Department of State refused to grant it on the sole ground that he had lost his American citizenship by virtue of § 401(e) of the Nationality Act of 1940, which provides that a United States citizen shall "lose" his citizenship if he votes "in a political election in a foreign state." [ Footnote 1 ] Petitioner then brought this declaratory judgment action in federal district court alleging that § 401(e) violates both the Due Process Clause of the Fifth Amendment and § 1, cl. 1, of the Fourteenth Amendment, [ Footnote 2 ] which grants American citizenship to persons like petitioner. Because neither the Fourteenth Amendment nor any other provision of the Constitution expressly grants Congress the power to Page 387 U. S. 255 take away that citizenship once it has been acquired, petitioner contended that the only way he could lose his citizenship was by his own voluntary renunciation of it. Since the Government took the position that § 401(e) empowers it to terminate citizenship without the citizen's voluntary renunciation, petitioner argued that this section is prohibited by the Constitution. The District Court and the Court of Appeals, rejecting this argument, held that Congress has constitutional authority forcibly to take away citizenship for voting in a foreign country based on its implied power to regulate foreign affairs. Consequently, petitioner was held to have lost his American citizenship regardless of his intention not to give it up. This is precisely what this Court held in Perez v. Brownell, 356 U. S. 44 . Petitioner, relying on the same contentions about voluntary renunciation of citizenship which this Court rejected in upholding § 401(e) in Perez, urges us to reconsider that case, adopt the view of the minority there, and overrule it. That case, decided by a 5-4 vote almost 10 years ago, has been a source of controversy and confusion ever since, as was emphatically recognized in the opinions of all the judges who participated in this case below. [ Footnote 3 ] Moreover, in the other cases decided with [ Footnote 4 ] and since [ Footnote 5 ] Perez, this Court has consistently invalidated on a case-by-case basis various other statutory sections providing for involuntary expatriation. It has done so on various grounds, and has refused to hold that citizens can be expatriated without their voluntary renunciation of Page 387 U. S. 256 citizenship. These cases, as well as many commentators, [ Footnote 6 ] have cast great doubt upon the soundness of Perez. Under these circumstances, we granted certiorari to reconsider it, 385 U.S. 917. In view of the many recent opinions and dissents comprehensively discussing all the issues involved, [ Footnote 7 ] we deem it unnecessary to treat this subject at great length. The fundamental issue before this Court here, as it was in Perez, is whether Congress can, consistently with the Fourteenth Amendment, enact a law stripping an American of his citizenship which he has never voluntarily renounced or given up. The majority in Perez held that Congress could do this because withdrawal of citizenship is "reasonably calculated to effect the end that is within the power of Congress to achieve." 356 U.S. at 356 U. S. 60 . That conclusion was reached by this chain of reasoning: Congress has an implied power to deal with foreign affairs as an indispensable attribute of sovereignty; this implied power, plus the Necessary and Proper Clause, empowers Congress to regulate voting by American citizens in foreign elections; involuntary expatriation is within the "ample scope" of "appropriate modes" Congress can adopt to effectuate its general regulatory power. Id. at Page 387 U. S. 257 356 U. S. 57 -60. Then, upon summarily concluding that "there is nothing in the . . . Fourteenth Amendment to warrant drawing from it a restriction upon the power otherwise possessed by Congress to withdraw citizenship," id. at 356 U. S. 58 , n. 3, the majority specifically rejected the "notion that the power of Congress to terminate citizenship depends upon the citizen's assent," id. at 356 U. S. 61 . First, we reject the idea expressed in Perez that, aside from the Fourteenth Amendment, Congress has any general power, express or implied, to take away an American citizen's citizenship without his assent. This power cannot, as Perez indicated, be sustained as an implied attribute of sovereignty possessed by all nations. Other nations are governed by their own constitutions, if any, and we can draw no support from theirs. In our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship. Our Constitution governs us and we must never forget that our Constitution limits the Government to those powers specifically granted or those that are necessary and proper to carry out the specifically granted ones. The Constitution, of course, grants Congress no express power to strip people of their citizenship, whether, in the exercise of the implied power to regulate foreign affairs or in the exercise of any specifically granted power. And even before the adoption of the Fourteenth Amendment, views were expressed in Congress and by this Court that, under the Constitution the Government was granted no power, even under its express power to pass a uniform rule of naturalization, to determine what conduct should and should not result in the loss of citizenship. On three occasions, in 1794, 1797, and 1818, Congress considered and rejected proposals to enact laws which would describe certain conduct as resulting in expatriation. [ Footnote 8 ] On each occasion Page 387 U. S. 258 Congress was considering bills that were concerned with recognizing the right of voluntary expatriation and with providing some means of exercising that right. In 1794 and 1797, many members of Congress still adhered to the English doctrine of perpetual allegiance and doubted whether a citizen could even voluntarily renounce his citizenship. [ Footnote 9 ] By 1818, however, almost no one doubted the existence of the right of voluntary expatriation, but several judicial decisions had indicated that the right could not be exercised by the citizen without the consent of the Federal Government in the form of enabling legislation. [ Footnote 10 ] Therefore, a bill was introduced to provide that a person could voluntarily relinquish his citizenship by declaring such relinquishment in writing before a district court and then departing from the country. [ Footnote 11 ] The opponents of the bill argued that Congress had no constitutional authority, either express or implied, under either the Naturalization Clause or the Necessary and Proper Clause, to provide that a certain act would constitute expatriation. [ Footnote 12 ] They pointed to a proposed Thirteenth Page 387 U. S. 259 Amendment, subsequently not ratified, which would have provided that a person would lose his citizenship by accepting an office or emolument from a foreign government. [ Footnote 13 ] Congressman Anderson of Kentucky argued: "The introduction of this article declares the opinion . . . that Congress could not declare the acts which should amount to a renunciation of citizenship; otherwise there would have been no necessity for this last resort. When it was settled that Congress could not declare that the acceptance of a pension or an office from a foreign Emperor amounted to a disfranchisement of the citizen, it must surely be conceded that they could not declare that any other act did. The cases to which their powers before this amendment confessedly did not extend are very strong, and induce a belief that Congress could not in any case declare the acts which should cause 'a person to cease to be a citizen.' The want of power in a case like this, where the individual has given the strongest evidence of attachment to a foreign potentate and an entire renunciation of the feelings and principles of an American citizen, certainly establishes the absence of all power to pass a bill like the present one. Although the intention with which it was introduced, and the title of the bill declare that it is to insure and foster the right of the citizen, the direct and inevitable effect of the bill, is an assumption of power by Congress to declare that certain acts when committed shall amount to a renunciation of citizenship." 31 Annals of Cong. 1038-1039 (1818). Page 387 U. S. 260 Congressman Pindall of Virginia rejected the notion, later accepted by the majority in Perez, that the nature of sovereignty gives Congress a right to expatriate citizens: "[A]llegiance imports an obligation on the citizen or subject, the correlative right to which resides in the sovereign power: allegiance in this country is not due to Congress, but to the people, with whom the sovereign power is found; it is, therefore, by the people only that any alteration can be made of the existing institutions with respect to allegiance." Id. at 1045. Although he recognized that the bill merely sought to provide a means of voluntary expatriation, Congressman Lowndes of South Carolina argued: "But, if the Constitution had intended to give to Congress so delicate a power, it would have been expressly granted. That it was a delicate power, and ought not to be loosely inferred, . . . appeared in a strong light, when it was said, and could not be denied, that to determine the manner in which a citizen may relinquish his right of citizenship, is equivalent to determining how he shall be divested of that right. The effect of assuming the exercise of these powers will be, that, by acts of Congress a man may not only be released from all the liabilities, but from all the privileges of a citizen. If you pass this bill, . . . you have only one step further to go, and say that such and such acts shall be considered as presumption of the intention of the citizen to expatriate, and thus take from him the privileges of a citizen. . . . [Q]uestions affecting the right of the citizen were questions to be regulated, not by the laws of the General or State Governments, but by Constitutional provisions. If there was anything Page 387 U. S. 261 essential to our notion of a Constitution, . . . it was this: that, while the employment of the physical force of the country is in the hands of the Legislature, those rules which determine what constitutes the rights of the citizen, shall be a matter of Constitutional provision." Id. at 1050-1051. The bill was finally defeated. [ Footnote 14 ] It is in this setting that six years later, in Osborn v. Bank of the United States , 9 Wheat. 738, 22 U. S. 827 , this Court, speaking through Chief Justice Marshall, declared in what appears to be a mature and well considered dictum that Congress, once a person becomes a citizen, cannot deprive him of that status: "[The naturalized citizen] becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual." Although these legislative and judicial statements may be regarded as inconclusive and must be considered in the historical context in which they were made, [ Footnote 15 ] any doubt Page 387 U. S. 262 as to whether prior to the passage of the Fourteenth Amendment Congress had the power to deprive a person against his will of citizenship, once obtained, should have been removed by the unequivocal terms of the Amendment itself. It provides its own constitutional rule in language calculated completely to control the status of citizenship: "All persons born or naturalized in the United States . . . are citizens of the United States. . . ." There is no indication in these words of a fleeting citizenship, good at the moment it is acquired but subject to destruction by the Government at any time. Rather the Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other governmental unit. It is true that the chief interest of the people in giving permanence and security to citizenship in the Fourteenth Amendment was the desire to protect Negroes. The Dred Scott decision, 19 How. 393, had shortly before greatly disturbed many people about the status of Negro citizenship. But the Civil Rights Act of 1866, 14 Stat. 27, had already attempted to confer citizenship on all persons born or naturalized in the United States. Nevertheless, when the Fourteenth Amendment passed the House without containing any definition of citizenship, the sponsors of the Amendment in the Senate insisted on inserting a constitutional definition and grant of citizenship. They expressed fears that the citizenship so recently conferred on Negroes by the Civil Rights Act could be just as easily taken away from them by subsequent Congresses, and it was to provide an insuperable obstacle against every governmental effort to strip Negroes of their newly acquired citizenship that the first clause was added to the Fourteenth Amendment. [ Footnote 16 ] Page 387 U. S. 263 Senator Howard, who sponsored the Amendment in the Senate, thus explained the purpose of the clause: "It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. . . . We desired to put this question of citizenship and the rights of citizens . . . under the civil rights bill beyond the legislative power. . . ." Cong.Globe, 39th Cong., 1st Sess., 2890, 2896 (1866). This undeniable purpose of the Fourteenth Amendment to make citizenship of Negroes permanent and secure would be frustrated by holding that the Government can rob a citizen of his citizenship without his consent by simply proceeding to act under an implied general power to regulate foreign affairs or some other power generally granted. Though the framers of the Amendment were not particularly concerned with the problem of expatriation, it seems undeniable from the language they used that they wanted to put citizenship beyond the power of any governmental unit to destroy. In 1868, two years after the Fourteenth Amendment had been proposed, Congress specifically considered the subject of expatriation. Several bills were introduced to impose involuntary expatriation on citizens who committed certain acts. [ Footnote 17 ] With little Page 387 U. S. 264 discussion, these proposals were defeated. Other bills, like the one proposed but defeated in 1818, provided merely a means by which the citizen could himself voluntarily renounce his citizenship. [ Footnote 18 ] Representative Van Trump of Ohio, who proposed such a bill, vehemently denied in supporting it that his measure would make the Government "a party to the act dissolving the tie between the citizen and his country . . . where the statute simply prescribes the manner in which the citizen shall proceed to perpetuate the evidence of his intention, or election, to renounce his citizenship by expatriation." Cong.Globe, 40th Cong., 2d Sess., 1804 (1868). He insisted that "inasmuch as the act of expatriation depends almost entirely upon a question of intention on the part of the citizen," id. at 1801, "the true question is, that not only the right of expatriation, but the whole power of its exercise, rests solely and exclusively in the will of the individual," id. at 1804. [ Footnote 19 ] In strongest of terms, not contradicted by any during the debates, he concluded: "To enforce expatriation or exile against a citizen without his consent is not a power anywhere belonging to this Government. No conservative-minded Page 387 U. S. 265 statesman, no intelligent legislator, no sound lawyer has ever maintained any such power in any branch of the Government. The lawless precedents created in the delirium of war . . . of sending men by force into exile, as a punishment for political opinion, were violations of this great law . . . of the Constitution. . . . The men who debated the question in 1818 failed to see the true distinction. . . . They failed to comprehend that it is not the Government, but that it is the individual, who has the right and the only power of expatriation. . . . [I]t belongs and appertains to the citizen, and not to the Government, and it is the evidence of his election to exercise his right, and not the power to control either the election or the right itself, which is the legitimate subject matter of legislation. There has been, and there can be, no legislation under our Constitution to control in any manner the right itself." Ibid. But even Van Trump's proposal, which went no further than to provide a means of evidencing a citizen's intent to renounce his citizenship, was defeated. [ Footnote 20 ] The Act, Page 387 U. S. 266 as finally passed, merely recognized the "right of expatriation" as an inherent right of all people. [ Footnote 21 ] The entire legislative history of the 1868 Act makes it abundantly clear that there was a strong feeling in the Congress that the only way the citizenship it conferred could be lost was by the voluntary renunciation or abandonment by the citizen himself. And this was the unequivocal statement of the Court in the case of United States v. Wong Kim Ark, 169 U. S. 649 . The issues in that case were whether a person born in the United States to Chinese aliens was a citizen of the United States and whether, nevertheless, he could be excluded under the Chinese Exclusion Act, 22 Stat. 58. The Court first held that, within the terms of the Fourteenth Amendment, Wong Kim Ark was a citizen of the United States, and then pointed out that, though he might "renounce this citizenship, and become a citizen of . . . any other country," he had never done so. Id. at 169 U. S. 704 -705. The Court then held [ Footnote 22 ] that Congress could not do anything to abridge or affect his citizenship conferred by the Fourteenth Amendment. Quoting Chief Justice Marshall's well considered and oft-repeated dictum in Osborn to the effect that Congress, under the power of naturalization, has "a power to confer citizenship, not a power to take it away," the Court said: "Congress having no power to abridge the rights conferred by the Constitution upon those who have become naturalized citizens by virtue of acts of Congress, a fortiori no act . . . of Congress . . . Page 387 U. S. 267 can affect citizenship acquired as a birthright, by virtue of the Constitution itself. . . . The Fourteenth Amendment, while it leaves the power where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship." Id. at 169 U. S. 703 . To uphold Congress' power to take away a man's citizenship because he voted in a foreign election in violation of § 401(e) would be equivalent to holding that Congress has the power to "abridge," "affect," "restrict the effect of," and "take . . . away" citizenship. Because the Fourteenth Amendment prevents Congress from doing any of these things, we agree with THE CHIEF JUSTICE's dissent in the Perez case that the Government is without power to rob a citizen of his citizenship under § 401(e). [ Footnote 23 ] Because the legislative history of the Fourteenth Amendment, and of the expatriation proposals which preceded and followed it, like most other legislative history, contains many statements from which conflicting inferences can be drawn, our holding might be unwarranted if it rested entirely or principally upon that legislative history. But it does not. Our holding, we think, is the only one that can stand in view of the language and the purpose of the Fourteenth Amendment, and our construction of that Amendment, we believe, comports more nearly than Perez with the principles of liberty and equal justice to all that the entire Fourteenth Amendment was adopted to guarantee. Citizenship is no light trifle Page 387 U. S. 268 to be jeopardized any moment Congress decides to do so under the name of one of its general or implied grants of power. In some instances, loss of citizenship can mean that a man is left without the protection of citizenship in any country in the world -- as a man without a country. Citizenship in this Nation is a part of a cooperative affair. Its citizenry is the country, and the country is its citizenry. The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship. We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship. Perez v. Brownell is overruled. The judgment is Reversed. [ Footnote 1 ] 54 Stat. 1168, as amended, 58 Stat. 746, 8 U.S.C. § 801 (1946 ed.): "A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: " " * * * *" "(e) Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory." This provision was reenacted as § 349(a)(5) of the Immigration and Nationality Act of 1952, 66 Stat. 267, 8 U.S.C. § 1481(a)(5). [ Footnote 2 ] "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States. . . ." [ Footnote 3 ] 250 F. Supp. 686; 361 F.2d 102, 105. [ Footnote 4 ] Trop v. Dulles, 356 U. S. 86 ; Nishikawa v. Dulles, 356 U. S. 129 . [ Footnote 5 ] Kennedy v. Mendoza-Martinez, 372 U. S. 144 ; Schneider v. Rusk, 377 U. S. 163 . In his concurring opinion in Mendoza-Martinez, MR. JUSTICE BRENNAN expressed "felt doubts of the correctness of Perez. . . ." 372 U.S. at 372 U. S. 187 [ Footnote 6 ] See, e.g., Agata, Involuntary Expatriation and Schneider v. Rusk, 27 U.Pitt.L.Rev. 1 (1965); Hurst, Can Congress Take Away Citizenship?, 29 Rocky Mt.L.Rev. 62 (1956); Kurland, Foreword: "Equal in Origin and Equal in Title to the Legislative and Executive Branches of the Government," 78 Harv.L.Rev. 143, 169-175 (1964); Comment, 56 Mich.L.Rev. 1142 (1958); Note, Forfeiture of Citizenship Through Congressional Enactments, 21 U.Cin.L.Rev. 59 (1952); 40 Cornell L.Q. 365 (1955); 25 S.Cal.L.Rev.196 (1952). But see, e.g., Comment, The Expatriation Act of 1954, 64 Yale L.J. 1164 (1955). [ Footnote 7 ] See Perez v. Brownell, supra, at 356 U. S. 62 (dissenting opinion of THE CHIEF JUSTICE), 356 U. S. 79 (dissenting opinion of MR. JUSTICE DOUGLAS); Trop v. Dulles, supra, at 356 U. S. 91 -93 (part I of opinion of Court); Nishikawa v. Dulles, supra, at 356 U. S. 138 (concurring opinion of MR. JUSTICE BLACK). [ Footnote 8 ] For a history of the early American view of the right of expatriation, including these congressional proposals, see generally Roche, The Early Development of United States Citizenship (1949); Tsiang, The Question of Expatriation in America Prior to 1907 (1942); Dutcher, The Right of Expatriation, 11 Am.L.Rev. 447 (1877); Roche, The Loss of American Nationality -- The Development of Statutory Expatriation, 99 U.Pa.L.Rev. 25 (1950); Slaymaker, The Right of the American Citizen to Expatriate, 37 Am.L.Rev.191 (1903). [ Footnote 9 ] 4 Annals of Cong. 1005, 102-1030 (1794); 7 Annals of Cong. 349 et seq. (1797). [ Footnote 10 ] See, e.g., 3 U. S. Janson, 3 Dall. 133. [ Footnote 11 ] 31 Annals of Cong. 495 (1817). [ Footnote 12 ] Id. at 1036-1037, 1058 (1818). Although some of the opponents, believing that citizenship was derived from the States, argued that any power to prescribe the mode for its relinquishment rested in the States, they were careful to point out that "the absence of all power from the State Legislatures would not vest it in us." Id. at 1039. [ Footnote 13 ] The amendment had been proposed by the 11th Cong., 2d Sess. See The Constitution of the United States of America, S.Doc. No. 39, 88th Cong., 1st Sess., 77-78 (1964). [ Footnote 14 ] Id. at 1071. It is interesting to note that the proponents of the bill, such as Congressman Cobb of Georgia, considered it to be "the simple declaration of the manner in which a voluntary act, in the exercise of a natural right, may be performed" and denied that it created or could lead to the creation of "a presumption of relinquishment of the right of citizenship." Id. at 1068. [ Footnote 15 ] The dissenting opinion here points to the fact that a Civil War Congress passed two Acts designed to deprive military deserters to the Southern side of the rights of citizenship. Measures of this kind passed in those days of emotional stress and hostility are by no means the most reliable criteria for determining what the Constitution means. [ Footnote 16 ] Cong.Globe, 39th Cong., 1st Sess., 2768-2769, 2869, 2890 et seq. (1866). See generally, Flack, Adoption of the Fourteenth Amendment 88-94 (1908). [ Footnote 17 ] Representative Jenckes of Rhode Island introduced an amendment that would expatriate those citizens who became naturalized by a foreign government, performed public duties for a foreign government, or took up domicile in a foreign country without intent to return. Cong.Globe, 40th Cong., 2d Sess., 968, 1129, 2311 (1868). Although he characterized his proposal as covering "cases where citizens may voluntarily renounce their allegiance to this country," id. at 1159, it was opposed by Representative Chanler of New York, who said, "So long as a citizen does not expressly dissolve his allegiance and does not swear allegiance to another country his citizenship remains in statu quo, unaltered and unimpaired." Id. at 1016. [ Footnote 18 ] Proposals of Representatives Pruyn of New York ( id. at 1130) and Van Trump of Ohio ( id. at 1801, 2311). [ Footnote 19 ] While Van Trump disagreed with the 1818 opponents as to whether Congress had power to prescribe a means of voluntary renunciation of citizenship, he wholeheartedly agreed with their premise that the right of expatriation belongs to the citizen, not to the Government, and that the Constitution forbids the Government from being party to the act of expatriation. Van Trump simply thought that the opponents of the 1818 proposal failed to recognize that their mutual premise would not be violated by an Act which merely prescribed "how . . . [the rights of citizenship] might be relinquished at the option of the person in whom they were vested." Cong.Globe, 40th Cong., 2d Sess., 1804 (1868). [ Footnote 20 ] Id. at 2317. Representative Banks of Massachusetts, the Chairman of the House Committee on Foreign Affairs which drafted the bill eventually enacted into law, explained why Congress refrained from providing a means of expatriation: "It is a subject which, in our opinion, ought not to be legislated upon. . . . [T]his comes within the scope and character of natural rights which no Government has the right to control and which no Government can confer. And wherever this subject is alluded to in the Constitution -- . . . it is in the declaration that Congress shall have no power whatever to legislate upon these matters." Id. at 2316. [ Footnote 21 ] 15 Stat. 223, R.S. § 1999. [ Footnote 22 ] Some have referred to this part. of the decision as a holding, see, e.g., Hurst, supra, 29 Rocky Mt.L.Rev. at 779; Comment, 56 Mich.L.Rev. at 1153-1154; while others have referred to it as obiter dictum, see, e.g., Roche, supra, 99 U.Pa.L.Rev. at 26-27. Whichever it was, the statement was evidently the result of serious consideration, and is entitled to great weight. [ Footnote 23 ] Of course, as THE CHIEF JUSTICE said in his dissent, 356 U.S. at 356 U. S. 66 , naturalization unlawfully procured can be set aside. See, e.g., Knauer v. United States, 328 U. S. 654 ; Baumgartner v. United States, 322 U. S. 665 ; Schneiderman v. United States, 320 U. S. 118 . MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK, MR. JUSTICE STEWART, and MR. JUSTICE WHITE join, dissenting. Almost 10 years ago, in Perez v. Brownell, 356 U. S. 44 , the Court upheld the constitutionality of § 401(e) of the Nationality Act of 1940, 54 Stat. 1169. The section deprives of his nationality any citizen who has voted in a foreign political election. The Court reasoned that Congress derived from its power to regulate foreign affairs authority to expatriate any citizen who intentionally commits acts which may be prejudicial to the foreign relations of the United States, and which reasonably may be deemed to indicate a dilution of his allegiance to this country. Congress, it was held, could appropriately consider Page 387 U. S. 269 purposeful voting in a foreign political election to be such an act. The Court today overrules Perez, and declares § 401(e) unconstitutional, by a remarkable process of circumlocution. First, the Court fails almost entirely to dispute the reasoning in Perez; it is essentially content with the conclusory and quite unsubstantiated assertion that Congress is without "any general power, express or implied," to expatriate a citizen "without his assent." [ Footnote 2/1 ] Next, the Court embarks upon a lengthy, albeit incomplete, survey of the historical background of the congressional power at stake here, and yet, at the end, concedes that the history is susceptible of "conflicting inferences." The Court acknowledges that its conclusions might not be warranted by that history alone, and disclaims that the decision today relies, even "principally," upon it. Finally, the Court declares that its result is bottomed upon the "language Page 387 U. S. 270 and the purpose" of the Citizenship Clause of the Fourteenth Amendment; in explanation, the Court offers only the terms of the clause itself, the contention that any other result would be "completely incongruous," and the essentially arcane observation that the "citizenry is the country and the country is its citizenry." I can find nothing in this extraordinary series of circumventions which permits, still less compels, the imposition of this constitutional constraint upon the authority of Congress. I must respectfully dissent. There is no need here to rehearse Mr. Justice Frankfurter's opinion for the Court in Perez; it then proved and still proves to my satisfaction that § 401(e) is within the power of Congress. [ Footnote 2/2 ] It suffices simply to supplement Perez with an examination of the historical evidence which the Court in part recites, and which provides the only apparent basis for many of the Court's conclusions. As will be seen, the available historical evidence is not only inadequate to support the Court's abandonment of Perez, but, with due regard for the Page 387 U. S. 271 restraints that should surround the judicial invalidation of an Act of Congress, even seems to confirm Perez' soundness. I Not much evidence is available from the period prior to the adoption of the Fourteenth Amendment through which the then-prevailing attitudes on these constitutional questions can now be determined. The questions pertinent here were only tangentially debated; controversy centered instead upon the wider issues of whether a citizen might under any circumstances renounce his citizenship, and, if he might, whether that right should be conditioned upon any formal prerequisites. [ Footnote 2/3 ] Even the discussion of these issues was seriously clouded by the widely accepted view that authority to regulate the incidents of citizenship had been retained, at least in part, by the several States. [ Footnote 2/4 ] It should therefore be remembered that the evidence which is now available may not necessarily represent any carefully considered, still less prevailing, viewpoint upon the present issues. Measured even within these limitations, the Court's evidence for this period is remarkably inconclusive; the Court relies simply upon the rejection by Congress of Page 387 U. S. 272 legislation proposed in 1794, 1797, and 1818, and upon an isolated dictum from the opinion of Chief Justice Marshall in Osborn v. Bank of the United States , 9 Wheat. 738. This, as will appear, is entirely inadequate to support the Court's conclusion, particularly in light of other and more pertinent evidence which the Court does not notice. The expatriation of unwilling citizens was apparently first discussed in the lengthy congressional debates of 1794 and 1795, which culminated eventually in the Uniform Naturalization Act of 1795. [ Footnote 2/5 ] 1 Stat. 414. Little contained in those debates is pertinent here. The present question was considered only in connection with an amendment, offered by Congressman Hillhouse of Connecticut, which provided that any American who acquired a foreign citizenship should not subsequently be permitted to repatriate in the United States. Although this obscure proposal scarcely seems relevant to the present issues, it was apparently understood, at least by some members, to require the automatic expatriation of an American who acquired a second citizenship. Its discussion in the House consumed substantially less than one day, and, of this debate, only the views of two Congressmen, other than Hillhouse, were recorded by the Annals. [ Footnote 2/6 ] Murray of Maryland, for reasons immaterial here, supported the proposal. In response, Baldwin of Georgia urged that foreign citizenship was often conferred only as a mark of esteem, and that it would be unfair to deprive of his domestic citizenship an American honored in this fashion. There is no indication that any member believed the proposal to be forbidden by the Constitution. The measure was rejected by the House without a reported Page 387 U. S. 273 vote, and no analogous proposal was offered in the Senate. Insofar as this brief exchange is pertinent here, it establishes, at most, that two or more members believed the proposal both constitutional and desirable, and that some larger number determined, for reasons that are utterly obscure, that it should not be adopted. The Court next relies upon the rejection of proposed legislation in 1797. The bill there at issue would have forbidden the entry of American citizens into the service of any foreign state in time of war; its sixth section included machinery by which a citizen might voluntarily expatriate himself. [ Footnote 2/7 ] The bill contained nothing which would have expatriated unwilling citizens, and the debates do not include any pronouncements relevant to that issue. It is difficult to see how the failure of that bill might be probative here. The debates in 1817 and 1818, upon which the Court so heavily relies, are scarcely more revealing. Debate centered upon a brief bill [ Footnote 2/8 ] which provided merely that any citizen who wished to renounce his citizenship must first declare his intention in open court, and thereafter depart the United States. His citizenship would have terminated at the moment of his renunciation. The bill was debated only in the House; no proposal permitting the involuntary expatriation of any citizen was made or considered there or in the Senate. Nonetheless, the Court selects portions of statements made by three individual Congressmen, who apparently denied that Congress had authority to enact legislation to deprive unwilling citizens of their citizenship. These brief dicta are, by the most generous standard, inadequate to warrant the Court's broad constitutional conclusion. Moreover, it must be observed that they were in great part deductions from Page 387 U. S. 274 constitutional premises which have subsequently been entirely abandoned. They stemmed principally from the Jeffersonian contention that allegiance is owed by a citizen first to his State, and only through the State to the Federal Government. The spokesmen upon whom the Court now relies supposed that Congress was without authority to dissolve citizenship, since "we have no control" over "allegiance to the State. . . ." [ Footnote 2/9 ] The bill's opponents urged that "The relation to the State government was the basis of the relation to the General Government, and therefore, as long as a man continues a citizen of a State, he must be considered a citizen of the United States. [ Footnote 2/10 ]" Any statute, it was thought, which dissolved federal citizenship while a man remained a citizen of a State "would be inoperative." [ Footnote 2/11 ] Surely the Court does not revive this entirely discredited doctrine, and yet, so long as it does not, it is difficult to see that any significant support for the ruling made today may be derived from the statements on which the Court relies. To sever the statements from their constitutional premises, as the Court has apparently done, is to transform the meaning these expressions were intended to convey. Finally, it must be remembered that these were merely the views of three Congressmen; nothing in the debates indicates that their constitutional doubts were shared by any substantial number of the other 67 members who eventually opposed the bill. They were plainly not accepted by the 58 members who voted in the bill's favor. The bill's opponents repeatedly urged that, whatever its constitutional validity, the bill was imprudent Page 387 U. S. 275 and undesirable. Pindall of Virginia, for example, asserted that a citizen who employed its provisions would have "motives of idleness or criminality," [ Footnote 2/12 ] and that the bill would thus cause "much evil." [ Footnote 2/13 ] McLane of Delaware feared that citizens would use the bill to escape service in the armed forces in time of war; he warned that the bill would, moreover, weaken "the love of country so necessary to individual happiness and national prosperity." [ Footnote 2/14 ] He even urged that "The commission of treason, and the objects of plunder and spoil, are equally legalized by this bill." [ Footnote 2/15 ] Lowndes of South Carolina cautioned the House that difficulties might again arise with foreign governments over the rights of seamen if the bill were passed. [ Footnote 2/16 ] Given these vigorous and repeated arguments, it is quite impossible to assume, as the Court apparently has, that any substantial portion of the House was motivated wholly, or even in part, by any particular set of constitutional assumptions. These three statements must, instead, be taken as representative only of the beliefs of three members, premised chiefly upon constitutional doctrines which have subsequently been rejected, and expressed in a debate in which the present issues were not directly involved. The last piece of evidence upon which the Court relies for this period is a brief obiter dictum from the lengthy opinion for the Court in Osborn v. Bank of the United States , 9 Wheat. 738, 22 U. S. 827 , written by Mr. Chief Justice Marshall. This use of the dictum is entirely unpersuasive, for its terms and context make quite plain that it cannot have been intended to reach the questions presented Page 387 U. S. 276 here. The central issue before the Court in Osborn was the right of the bank to bring its suit for equitable relief in the courts of the United States. In argument, counsel for Osborn had asserted that, although the bank had been created by the laws of the United States, it did not necessarily follow that any cause involving the bank had arisen under those laws. Counsel urged by analogy that the naturalization of an alien might as readily be said to confer upon the new citizen a right to bring all his actions in the federal courts. Id. at 813-814 [argument of counsel omitted from electronic version]. Not surprisingly, the Court rejected the analogy, and remarked that an act of naturalization "does not proceed to give, to regulate, or to prescribe his capacities," since the Constitution demands that a naturalized citizen must in all respects stand "on the footing of a native." Id. at 22 U. S. 827 . The Court plainly meant no more than that counsel's analogy is broken by Congress' inability to offer a naturalized citizen rights or capacities which differ in any particular from those given to a native-born citizen by birth. Mr. Justice Johnson's discussion of the analogy in dissent confirms the Court's purpose. Id. at 22 U. S. 875 -876. Any wider meaning, so as to reach the questions here, wrenches the dictum from its context and attributes to the Court an observation extraneous even to the analogy before it. Moreover, the construction given to the dictum by the Court today requires the assumption that the Court in Osborn meant to decide an issue which had to that moment scarcely been debated, to which counsel in Osborn had never referred, and upon which no case had ever reached the Court. All this, it must be recalled, is in an area of the law in which the Court had steadfastly avoided unnecessary comment. See, e.g., 8 U. S. Coxe's Lessee, 4 Cranch 209, 8 U. S. 212 -213; The Santissima Trinidad , 7 Wheat. 283, 20 U. S. 347 -348. By any Page 387 U. S. 277 standard, the dictum cannot provide material assistance to the Court's position in the present case. [ Footnote 2/17 ] Before turning to the evidence from this period which has been overlooked by the Court, attention must be given an incident to which the Court refers, but upon which it apparently places relatively little reliance. In 1810, a proposed thirteenth amendment to the Constitution Page 387 U. S. 278 was introduced into the Senate by Senator Reed of Maryland; the amendment, as subsequently modified, provided that any citizen who accepted a title of nobility, pension, or emolument from a foreign state, or who married a person of royal blood, should "cease to be a citizen of the United States." [ Footnote 2/18 ] The proposed amendment was, in a modified form, accepted by both Houses, and subsequently obtained the approval of all but one of the requisite number of States. [ Footnote 2/19 ] I have found nothing which indicates with any certainty why such a provision should then have been thought necessary, [ Footnote 2/20 ] but two reasons suggest themselves for the use of a constitutional amendment. First, the provisions may have been intended in part as a sanction for Art. I, § 9, cl. 8; [ Footnote 2/21 ] it may therefore have been thought more appropriate that it be placed within the Constitution itself. Second, a student of expatriation issues in this period has dismissed the preference for an amendment with the explanation that "the dominant Jeffersonian view held that citizenship was within the jurisdiction of the states; a statute would thus have been a federal usurpation of state power. [ Footnote 2/22 ]" This second explanation is fully substantiated by the debate in Page 387 U. S. 279 1818; the statements from that debate set out in the opinion for the Court were, as I have noted, bottomed on the reasoning that, since allegiance given by an individual to a State could not be dissolved by Congress, a federal statute could not regulate expatriation. It surely follows that this "obscure enterprise" [ Footnote 2/23 ] in 1810, motivated by now discredited constitutional premises, cannot offer any significant guidance for solution of the important issues now before us. The most pertinent evidence from this period upon these questions has been virtually overlooked by the Court. Twice in the two years immediately prior to its passage of the Fourteenth Amendment, Congress exercised the very authority which the Court now suggests that it should have recognized was entirely lacking. In each case, a bill was debated and adopted by both Houses which included provisions to expatriate unwilling citizens. In the spring and summer of 1864, both Houses debated intensively the Wade-Davis bill to provide reconstruction governments for the States which had seceded to form the Confederacy. Among the bill's provisions was § 14, by which "every person who shall hereafter hold or exercise any office . . . in the rebel service . . . is hereby declared not to be a citizen of .the United States. [ Footnote 2/24 ]" Much of the debate upon the bill did not, of course, center on the expatriation provision, although it certainly did not escape critical attention. [ Footnote 2/25 ] Nonetheless, I have not found any indication in the debates in either House that it was supposed that Congress was without authority to deprive an unwilling citizen of his citizenship. The bill was not signed by President Lincoln before the adjournment Page 387 U. S. 280 of Congress, and thus failed to become law, but a subsequent statement issued by Lincoln makes quite plain that he was not troubled by any doubts of the constitutionality of § 14. [ Footnote 2/26 ] Passage of the Wade-Davis bill of itself "suffices to destroy the notion that the men who drafted the Fourteenth Amendment felt that citizenship was an absolute.'" [ Footnote 2/27 ] Twelve months later, and less than a year before its passage of the Fourteenth Amendment, Congress adopted a second measure which included provisions that permitted the expatriation of unwilling citizens. Section 21 of the Enrollment Act of 1865 provided that deserters from the military service of the United States "shall be deemed and taken to have voluntarily relinquished and forfeited their rights of citizenship and their rights to become citizens. . . ." [ Footnote 2/28 ] The same section extended these disabilities to persons who departed the United States with intent to avoid "draft into the military or naval service. . . ." [ Footnote 2/29 ] The bitterness of war did not cause Congress here to neglect the requirements of the Constitution, for it was urged in both Houses that § 21 as written was ex post facto, and thus was constitutionally Page 387 U. S. 281 impermissible. [ Footnote 2/30 ] Significantly, however, it was never suggested in either debate that expatriation without a citizen's consent lay beyond Congress' authority. Members of both Houses had apparently examined intensively the section's constitutional validity, and yet had been undisturbed by the matters upon which the Court now relies. Some doubt, based on the phrase "rights of citizenship," has since been expressed [ Footnote 2/31 ] that § 21 was intended to require any more than disfranchisement, but this is, for several reasons, unconvincing. First, § 21 also explicitly provided that persons subject to its provisions should not thereafter exercise various "rights of citizens"; [ Footnote 2/32 ] if the section had not been intended to cause expatriation, it is difficult to see why these additional provisions would have been thought necessary. Second, the executive authorities of the United States afterwards consistently construed the section as causing expatriation. [ Footnote 2/33 ] Third, the section was apparently understood by various courts to result in expatriation; in particular, Mr. Justice Strong, while a member of the Supreme Court of Pennsylvania, construed the section to cause a "forfeiture of citizenship," Huber v. Reily, 53 Pa. 112, 118, and although this point was not expressly reached, his general understanding of the statute was approved by this Court in Kurtz v. Moffitt, 115 U. S. 487 , 115 U. S. 501 . Finally, Congress in 1867 approved an exemption from the section's provisions for those who had deserted after the termination of general hostilities, and the statute as adopted specifically described the disability from which exemption was given as a "loss of his citizenship." Page 387 U. S. 282 15 Stat. 14. The same choice of phrase occurs in the pertinent debates. [ Footnote 2/34 ] It thus appears that Congress had twice, immediately before its passage of the Fourteenth Amendment, unequivocally affirmed its belief that it had authority to expatriate an unwilling citizen. The pertinent evidence for the period prior to the adoption of the Fourteenth Amendment can therefore be summarized as follows. The Court's conclusion today is supported only by the statements, associated at least in part with a now abandoned view of citizenship, of three individual Congressmen, and by the ambiguous and inapposite dictum from Osborn. Inconsistent with the Court's position are statements from individual Congressmen in 1794, and Congress' passage in 1864 and 1865 of legislation which expressly authorized the expatriation of unwilling citizens. It may be that legislation adopted in the heat of war should be discounted in part by its origins, but, even if this is done, it is surely plain that the Court's conclusion is entirely unwarranted by the available historical evidence for the period prior to the passage of the Fourteenth Amendment. The evidence suggests, to the contrary, that Congress in 1865 understood that it had authority, at least in some circumstances, to deprive a citizen of his nationality. II The evidence with which the Court supports its thesis that the Citizenship Clause of the Fourteenth Amendment was intended to lay at rest any doubts of Congress' inability to expatriate without the citizen's consent is no more persuasive. The evidence consists almost exclusively of two brief and general quotations from Howard Page 387 U. S. 283 of Michigan, the sponsor of the Citizenship Clause in the Senate, and of a statement made in a debate in the House of Representatives in 1868 by Van Trump of Ohio. Measured most generously, this evidence would be inadequate to support the important constitutional conclusion presumably drawn in large part from it by the Court; but, as will be shown, other relevant evidence indicates that the Court plainly has mistaken the purposes of the clause's draftsmen. The Amendment as initially approved by the House contained nothing which described or defined citizenship. [ Footnote 2/35 ] The issue did not as such even arise in the House debates; it was apparently assumed that Negroes were citizens, and that it was necessary only to guarantee to them the rights which sprang from citizenship. It is quite impossible to derive from these debates any indication that the House wished to deny itself the authority it had exercised in 1864 and 1865; so far as the House is concerned, it seems that no issues of citizenship were "at all involved." [ Footnote 2/36 ] In the Senate, however, it was evidently feared that, unless citizenship were defined, or some more general classification substituted, freedmen might, on the premise that they were not citizens, be excluded from the Amendment's protection. Senator Stewart thus offered an amendment which would have inserted into § 1 a definition of citizenship, [ Footnote 2/37 ] and Senator Wade urged as an alternative the elimination of the term "citizen" from the Amendment's first section. [ Footnote 2/38 ] After a caucus of the Page 387 U. S. 284 chief supporters of the Amendment, Senator Howard announced on their behalf that they favored the addition of the present Citizenship Clause. [ Footnote 2/39 ] The debate upon the clause was essentially cursory in both Houses, but there are several clear indications of its intended effect. Its sponsors evidently shared the fears of Senators Stewart and Wade that, unless citizenship were defined, freedmen might, under the reasoning of the Dred Scott decision, [ Footnote 2/40 ] be excluded by the courts from the scope of the Amendment. It was agreed that, since the "courts have stumbled on the subject," it would be prudent to remove the "doubt thrown over" it. [ Footnote 2/41 ] The clause would essentially overrule Dred Scott and place beyond question the freedmen's right of citizenship because of birth. It was suggested, moreover, that it would, by creating a basis for federal citizenship which was indisputably independent of state citizenship, preclude any effort by state legislatures to circumvent the Amendment by denying freedmen state citizenship. [ Footnote 2/42 ] Nothing in the debates, however, supports the Court's assertion that the clause was intended to deny Congress its authority to expatriate unwilling citizens. The evidence indicates that its draftsmen instead expected the clause only to declare unreservedly to Page 387 U. S. 285 whom citizenship initially adhered, thus overturning the restrictions both of Dred Scott and of the doctrine of primary state citizenship, while preserving Congress' authority to prescribe the methods and terms of expatriation. The narrow, essentially definitional purpose of the Citizenship Clause is reflected in the clear declarations in the debates that the clause would not revise the prevailing incidents of citizenship. Senator Henderson of Missouri thus stated specifically his understanding that the "section will leave citizenship where it now is." [ Footnote 2/43 ] Senator Howard, in the first of the statements relied upon, in part, by the Court, said quite unreservedly that "This amendment [the Citizenship Clause] which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is . . . a citizen of the United States. [ Footnote 2/44 ]" Henderson had been present at the Senate's consideration both of the Wade-Davis bill and of the Enrollment Act, and had voted at least for the Wade-Davis bill. [ Footnote 2/45 ] Page 387 U. S. 286 Howard was a member of the Senate when both bills were passed, and had actively participated in the debates upon the Enrollment Act. [ Footnote 2/46 ] Although his views of the two expatriation measures were not specifically recorded, Howard certainly never expressed to the Senate any doubt either of their wisdom or of their constitutionality. It would be extraordinary if these prominent supporters of the Citizenship Clause could have imagined, as the Court's construction of the clause now demands, that the clause was only "declaratory" of the law "where it now is," and yet that it would entirely withdraw a power twice recently exercised by Congress in their presence. There is, however, even more positive evidence that the Court's construction of the clause is not that intended by its draftsmen. Between the two brief statements from Senator Howard relied upon by the Court, Howard, in response to a question, said the following: "I take it for granted that, after a man becomes a citizen of the United States under the Constitution, he cannot cease to be citizen except by expatriation or the commission of some crime by which his citizenship shall be forfeited. [ Footnote 2/47 ]" (Emphasis added.) It would be difficult to imagine a more unqualified rejection of the Court's position; Senator Howard, the clause's sponsor, very plainly believed that it would leave unimpaired Congress' power to deprive unwilling citizens of their citizenship. [ Footnote 2/48 ] Page 387 U. S. 287 Additional confirmation of the expectations of the clause's draftsmen may be found in the legislative history, wholly overlooked by the Court, of the Act for the Relief of certain Soldiers and Sailors, adopted in 1867. 15 Stat. 14. The Act, debated by Congress within 12 months of its passage of the Fourteenth Amendment, provided an exception from the provisions of 21 of the Enrollment Act of 1865 for those who had deserted from the Union forces after the termination of general hostilities. Had the Citizenship Clause been understood to have the effect now given it by the Court, surely this would have been clearly reflected in the debates; members would at least have noted that, upon final approval of the Amendment, which had already obtained the approval of 21 States, § 21 would necessarily be invalid. Nothing of the sort occurred; it was argued by some members that § 21 was imprudent, and even unfair, [ Footnote 2/49 ] but Congress evidently did not suppose that it was, or would be, unconstitutional. Congress simply failed to attribute to the Citizenship Page 387 U. S. 288 Clause the constitutional consequences now discovered by the Court. [ Footnote 2/50 ] Nonetheless, the Court urges that the debates which culminated in the Expatriation Act of 1868 materially support its understanding of the purposes of the Citizenship Clause. This is, for several reasons, wholly unconvincing. Initially, it should be remembered that discussion of the Act began in committee some six months after the passage of the Relief Act of 1867, by the Second Session of the Congress which had approved the Relief Act; the Court's interpretation of the history of the Expatriation Act thus demands, at the outset, the supposition that a view of the Citizenship Clause entirely absent in July had appeared vividly by the following January. Further, the purposes and background of the Act should not be forgotten. The debates were stimulated by repeated requests both from President Andrew Johnson and from the public that Congress assert the rights of naturalized Americans against the demands of their former countries. [ Footnote 2/51 ] The Act as finally adopted was thus intended "primarily to assail the conduct of the British Government [chiefly for its acts toward naturalized Americans resident in Ireland] and to declare the right of naturalized Americans to renounce their native allegiance; [ Footnote 2/52 ]" accordingly, very little of the lengthy debate was in the least pertinent to the present issues. Several members did make plain, through their proposed amendments to the bill or their Page 387 U. S. 289 interstitial comments, that they understood Congress to have authority to expatriate unwilling citizens, [ Footnote 2/53 ] but ,in general, both the issues now before the Court and questions of the implications of the Citizenship Clause were virtually untouched in the debates. Nevertheless, the Court, in order to establish that Congress understood that the Citizenship Clause denied it such authority, fastens principally upon the speeches of Congressman Van Trump of Ohio. Van Trump sponsored, as one of many similar amendments offered to the bill by various members, a proposal to create formal machinery by which a citizen might voluntarily renounce his citizenship. [ Footnote 2/54 ] Van Trump himself spoke at length in support of his proposal; his principal speech consisted chiefly of a detailed examination of the debates and judicial decisions pertinent to the issues of voluntary renunciation of citizenship. [ Footnote 2/55 ] Never in his catalog of relevant materials did Van Trump even mention the Citizenship Clause of the Fourteenth Amendment; [ Footnote 2/56 ] so far as may be seen from his comments on the House floor, Van Trump evidently supposed the clause to be entirely immaterial to the issues of expatriation. This is completely characteristic of the debate in both Houses; even its draftsmen and principal supporters, such as Senator Howard, permitted the Citizenship Clause to Page 387 U. S. 290 pass unnoticed. The conclusion seems inescapable that the discussions surrounding the Act of 1868 cast only the most minimal light, if indeed any, upon the purposes of the clause, and that the Court's evidence from the debates is, by any standard, exceedingly slight. [ Footnote 2/57 ] There is, moreover, still further evidence, overlooked by the Court, which confirms yet again that the Court's view of the intended purposes of the Citizenship Clause is mistaken. While the debate on the Act of 1868 was still in progress, negotiations were completed on the first of a series of bilateral expatriation treaties, which "initiated this country's policy of automatic divestment of citizenship for specified conduct affecting our foreign relations." Perez v. Brownell, supra, at 356 U. S. 48 . Seven such treaties were negotiated in 1868 and 1869 alone; [ Footnote 2/58 ] each was ratified by the Senate. If, as the Court now suggests, it was "abundantly clear" to Congress in 1868 that the Citizenship Clause had taken from its hands the power of expatriation, it is quite difficult to understand why these conventions were negotiated, or why, once negotiated, Page 387 U. S. 291 they were not immediately repudiated by the Senate. [ Footnote 2/59 ] Further, the executive authorities of the United States repeatedly acted, in the 40 years following 1868, upon the premise that a citizen might automatically be deemed to have expatriated himself by conduct short of a voluntary renunciation of citizenship; individual citizens were, as the Court indicated in Perez, regularly held on this basis to have lost their citizenship. Interested Members of Congress, and others, could scarcely have been unaware of the practice; as early as 1874, President Grant urged Congress in his Sixth Annual Message to supplement the Act of 1868 with a statutory declaration of the acts by which a citizen might "be deemed to have renounced or to have lost his citizenship." [ Footnote 2/60 ] It was the necessity to provide a more satisfactory basis for this practice that led first to the appointment of the Citizenship Board of 1906, and subsequently to the Nationality Acts of 1907 and 1940. The administrative practice in this period was described by the Court in Perez; it suffices here merely to emphasize that the Court today has not ventured to explain why the Citizenship Clause should, so shortly after its adoption, have been, under the Court's construction, so seriously misunderstood. It seems to me apparent that the historical evidence which the Court in part recites is wholly inconclusive, Page 387 U. S. 292 as indeed the Court recognizes; the evidence, to the contrary, irresistibly suggests that the draftsmen of the Fourteenth Amendment did not intend, and could not have expected, that the Citizenship Clause would deprive Congress of authority which it had, to their knowledge, only recently twice exercised. The construction demanded by the pertinent historical evidence, and entirely consistent with the clause's terms and purposes, is instead that it declares to whom citizenship, as a consequence either of birth or of naturalization, initially attaches. The clause thus served at the time of its passage both to overturn Dred Scott and to provide a foundation for federal citizenship entirely independent of state citizenship; in this fashion it effectively guaranteed that the Amendment's protection would not subsequently be withheld from those for whom it was principally intended. But nothing in the history, purposes, or language of the clause suggests that it forbids Congress in all circumstances to withdraw the citizenship of an unwilling citizen. To the contrary, it was expected, and should now be understood, to leave Congress at liberty to expatriate a citizen if the expatriation is an appropriate exercise of a power otherwise given to Congress by the Constitution, and if the methods and terms of expatriation adopted by Congress are consistent with the Constitution's other relevant commands. The Citizenship Clause thus neither denies nor provides to Congress any power of expatriation; its consequences are, for present purposes, exhausted by its declaration of the classes of individuals to whom citizenship initially attaches. Once obtained, citizenship is, of course, protected from arbitrary withdrawal by the constraints placed around Congress' powers by the Constitution; it is not proper to create from the Citizenship Clause an additional, and entirely unwarranted, restriction Page 387 U. S. 293 upon legislative authority. The construction now placed on the Citizenship Clause rests, in the last analysis, simply on the Court's ipse dixit, evincing little more, it is quite apparent, than the present majority's own distaste for the expatriation power. I believe that Perez was rightly decided, and on its authority would affirm the judgment of the Court of Appeals. [ Footnote 2/1 ] It is appropriate to note at the outset what appears to be a fundamental ambiguity in the opinion for the Court. The Court at one point intimates, but does not expressly declare, that it adopts the reasoning of the dissent of THE CHIEF JUSTICE in Perez. THE CHIEF JUSTICE there acknowledged that "actions in derogation of undivided allegiance to this country" had "long been recognized" to result in expatriation, id. at 356 U. S. 68 ; he argued, however, that the connection between voting in a foreign political election and abandonment of citizenship was logically insufficient to support a presumption that a citizen had renounced his nationality. Id. at 356 U. S. 76 . It is difficult to find any semblance of this reasoning, beyond the momentary reference to the opinion of THE CHIEF JUSTICE, in the approach taken by the Court today; it seems instead to adopt a substantially wider view of the restrictions upon Congress' authority in this area. Whatever the Court's position, it has assumed that voluntariness is here a term of fixed meaning; in fact, of course, it has been employed to describe both a specific intent to renounce citizenship and the uncoerced commission of an act conclusively deemed by law to be a relinquishment of citizenship. Until the Court indicates with greater precision what it means by "assent," today's opinion will surely cause still greater confusion in this area of the law. [ Footnote 2/2 ] It is useful, however, to reiterate the essential facts of this case, for the Court's very summary statement might unfortunately cause confusion about the situation to which § 401(e) was here applied. Petitioner emigrated from the United States to Israel in 1950, and, although the issue was not argued at any stage of these proceedings, it was assumed by the District Court that he "has acquired Israeli citizenship." 250 F. Supp. 686, 687. He voted in the election for the Israeli Knesset in 1951, and, as his Israeli Identification Booklet indicates, in various political elections which followed. Transcript of Record 1-2. In 1960, after 10 years in Israel, petitioner determined to return to the United States, and applied to the United States Consulate in Haifa for a passport. The application was rejected, and a Certificate of Loss of Nationality, based entirely on his participation in the 1951 election, was issued. Petitioner's action for declaratory judgment followed. There is, as the District Court noted, "no claim by the [petitioner] that the deprivation of his American citizenship will render him a stateless person." Ibid. [ Footnote 2/3 ] See generally Tsiang, The Question of Expatriation in America Prior to 1907, 25-70; Roche, The Expatriation Cases, 1963 Sup.Ct.Rev. 325, 327-330; Roche, Loss of American Nationality, 4 West.Pol.Q. 268. [ Footnote 2/4 ] Roche, The Expatriation Cases, 1963 Sup.Ct.Rev. 325, 329. Although the evidence, which consists principally of a letter to Albert Gallatin, is rather ambiguous, Jefferson apparently believed even that a state expatriation statute could deprive a citizen of his federal citizenship. 1 Writings of Albert Gallatin 301-302 (Adams ed. 1879). His premise was presumably that state citizenship was primary, and that federal citizenship attached only through it. See Tsiang, supra, at 25. Gallatin's own views have been described as essentially "states' rights"; see Roche, Loss of American Nationality, 4 West.Pol.Q. 268, 271. [ Footnote 2/5 ] See 4 Annals of Cong. 1004 et seq. [ Footnote 2/6 ] The discussion and rejection of the amendment are cursorily reported at 4 Annals of Cong. 1028-1030. [ Footnote 2/7 ] The sixth section is set out at 7 Annals of Cong. 349. [ Footnote 2/8 ] The bill is summarized at 31 Annals of Cong. 495. [ Footnote 2/9 ] 31 Annals of Cong. 1046. [ Footnote 2/10 ] 31 Annals of Cong. 1057. [ Footnote 2/11 ] Ibid. Roche describes the Congressmen upon whom the Court chiefly relies as "the states' rights opposition." Loss of American Nationality, 4 West.Pol.Q. 268, 276. [ Footnote 2/12 ] 31 Annals of Cong. 1047. [ Footnote 2/13 ] 31 Annals of Cong. 1050. [ Footnote 2/14 ] 31 Annals of Cong. 1059. [ Footnote 2/15 ] Ibid. [ Footnote 2/16 ] 31 Annals of Cong. 1051. [ Footnote 2/17 ] Similarly, the Court can obtain little support from its invocation of the dictum from the opinion for the Court in United States v. Wong Kim Ark, 169 U. S. 649 , 169 U. S. 703 . The central issue there was whether a child born of Chinese nationals domiciled in the United States is an American citizen if its birth occurs in this country. The dictum upon which the Court relies, which consists essentially of a reiteration of the dictum from Osborn, can therefore scarcely be considered a reasoned consideration of the issues now before the Court. Moreover, the dictum could conceivably be read to hold only that no power to expatriate an unwilling citizen was conferred either by the Naturalization Clause or by the Fourteenth Amendment; if the dictum means no more, it would, of course, not even reach the holding in Perez. Finally, the dictum must be read in light of the subsequent opinion for the Court, written by Mr. Justice McKenna, in Mackenzie v. Hare, 239 U. S. 299 . Despite counsel's invocation of Wong Kim Ark, id. at 302 and 303 [argument of counsel -- omitted], the Court held in Mackenzie that marriage between an American citizen and an alien, unaccompanied by any intention of the citizen to renounce her citizenship, nonetheless permitted Congress to withdraw her nationality. It is immaterial for these purposes that Mrs. Mackenzie's citizenship might, under the statute there, have been restored upon termination of the marital relationship; she did not consent to the loss, even temporarily, of her citizenship, and, under the proposition apparently urged by the Court today, it can therefore scarcely matter that her expatriation was subject to some condition subsequent. It seems that neither Mr. Justice McKenna, who became a member of the Court after the argument but before the decision of Wong Kim Ark, supra, at 169 U. S. 732 , nor Mr. Chief Justice White, who joined the Court's opinions in both Wong Kim Ark and Mackenzie, thought that Wong Kim Ark required the result reached by the Court today. Nor, it must be supposed, did the other six members of the Court who joined Mackenzie, despite Wong Kim Ark. [ Footnote 2/18 ] The various revisions of the proposed amendment may be traced through 20 Annals of Cong. 530, 549, 572-573, 635, 671. [ Footnote 2/19 ] Ames, The Proposed Amendments to the Constitution of the United States during the First Century of Its History, 2 Ann.Rep.Am.Hist.Assn. for the Year 1896, 188. [ Footnote 2/20 ] Ames, supra, at 187, speculates that the presence of Jerome Bonaparte in this country some few years earlier might have caused apprehension, and concludes that the amendment was merely an expression of "animosity against foreigners." Id.. at 188. [ Footnote 2/21 ] The clause provides that "No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State." [ Footnote 2/22 ] Roche, The Expatriation Cases, 1963 Sup.Ct.Rev. 325, 335. [ Footnote 2/23 ] Ibid. [ Footnote 2/24 ] 6 Richardson, Messages and Papers of the Presidents 226. [ Footnote 2/25 ] See, e.g., the comments of Senator Brown of Missouri, Cong.Globe, 38th Cong., 1st Sess., 3460. [ Footnote 2/26 ] Lincoln indicated that, although he was "unprepared" to be "inflexibly committed" to "any single plan of restoration," he was "fully satisfied" with the bill's provisions. 6 Richardson, Messages and Papers of the Presidents 222-223. [ Footnote 2/27 ] Roche, The Expatriation Cases, 1963 Sup.Ct.Rev. 325, 343. [ Footnote 2/28 ] 13 Stat. 490. It was this provision that, after various recodifications, was held unconstitutional by this Court in Trop v. Dulles, 356 U. S. 86 . A majority of the Court did not there hold that the provision was invalid because Congress lacked all power to expatriate an unwilling citizen. In any event, a judgment by this Court 90 years after the Act's passage can scarcely reduce the Act's evidentiary value for determining whether Congress understood in 1865, as the Court now intimates that it did, that it lacked such power. [ Footnote 2/29 ] 13 Stat. 491 [ Footnote 2/30 ] Cong.Globe, 38th Cong., 2d Sess., 642-643, 1155-1156. [ Footnote 2/31 ] Roche, The Expatriation Cases, 1963 Sup.Ct.Rev. 325, 336. [ Footnote 2/32 ] 13 Stat. 490 [ Footnote 2/33 ] Hearings before House Committee on Immigration and Naturalization on H.R. 6127, 76th Cong., 1st Sess., 38. [ Footnote 2/34 ] See, e.g., the remarks of Senator Hendricks, Cong.Globe, 40th Cong., 1st Sess., 661. [ Footnote 2/35 ] The pertinent events are described in Flack, Adoption of the Fourteenth Amendment 83-94. [ Footnote 2/36 ] Id. at 84 [ Footnote 2/37 ] Cong.Globe, 39th cong., 1st Sess., 2560. [ Footnote 2/38 ] Wade would have employed the formula "persons born in the United States or naturalized under the laws thereof" to measure the sections protection. Cong.Globe, 39th Cong., 1st Sess., 2768-2769. [ Footnote 2/39 ] 81 Cong.Globe, 39th Cong., 1st Sess., 2869. The precise terms of the discussion in the caucus were, and have remained, unknown. For contemporary comment, see Cong.Globe, 39th Cong., 1st Sess., 2939. [ Footnote 2/40 ] Scott v. Sandford , 19 How. 393. [ Footnote 2/41 ] Cong.Globe, 39th Cong., 1st Sess., 2768. [ Footnote 2/42 ] See, e.g., the comments of Senator Johnson of Maryland, Cong.Globe, 39th Cong., 1st Sess., 2893. It was subsequently acknowledged by several members of this Court that a central purpose of the Citizenship Clause was to create an independent basis of federal citizenship, and thus to overturn the doctrine of primary state citizenship. The Slaughter-House Cases , 16 Wall. 36, 83 U. S. 74 , 83 U. S. 95 , 83 U. S. 112 . The background of this issue is traced in tenBroek, The Anti-slavery Origins of the Fourteenth Amendment 71-93. [ Footnote 2/43 ] Cong.Globe, 39th Cong., 1st Sess., 3031. See also Flack, The Adoption of the Fourteenth Amendment 93. In the same fashion, tenBroek, supra, at 215-217, concludes that the whole of § 1 was "declaratory and confirmatory." Id. at 217. [ Footnote 2/44 ] Cong.Globe, 39th Cong., 1st Sess., 2890. See also the statement of Congressman Baker, Cong.Globe, 39th Cong., 1st Sess., App. 255, 256. Similarly, two months after the Amendment's passage through Congress, Senator Lane of Indiana remarked that the clause was "simply a re-affirmation" of the declaratory citizenship section of the Civil Rights Bill. Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? 2 Stan.L.Rev. 5, 74. [ Footnote 2/45 ] Senator Henderson participated in the debates upon the Enrollment Act and expressed no doubts about the constitutionality of § 21, Cong.Globe, 38th Cong., 2d Sess., 641, but the final vote upon the measure in the Senate was not recorded. Cong.Globe, 38th Cong., 2d Sess., 643. [ Footnote 2/46 ] See, e.g., Cong.Globe, 38th Cong., 2d Sess., 632. [ Footnote 2/47 ] Cong.Globe, 39th Cong., 1st Sess., 2895. [ Footnote 2/48 ] The issues pertinent here were not, of course, matters of great consequence in the ratification debates in the several state legislatures, but some additional evidence is nonetheless available from them. The Committee on Federal Relations of the Texas House of Representatives thus reported to the House that the Amendment's first section "proposes to deprive the States of the right . . . to determine what shall constitute citizenship of a State, and to transfer that right to the Federal Government." Its "object" was, they thought, "to declare negroes to be citizens of the United States." Tex. House J. 578 (1866). The Governor of Georgia reported to the legislature that the "prominent feature of the first [section] is, that it settles definitely the right of citizenship in the several States, . . . thereby depriving them in the future of all discretionary power over the subject within their respective limits, and with reference to their State Governments proper." Ga.Sen. J. 6 (1866). See also the message of Governor Cox to the Ohio Legislature, Fairman, supra, 2 Stan.L.Rev. at 96, and the message of Governor Fletcher to the Missouri Legislature, Mo.Sen.J. 14 (1867). In combination, this evidence again suggests that the Citizenship Clause was expected merely to declare to whom citizenship initially attaches, and to overturn the doctrine of primary state citizenship. [ Footnote 2/49 ] Senator Hendricks, for example, lamented its unfairness, declared that its presence was an "embarrassment" to the country, and asserted that it "is not required any longer." Cong.Globe, 40th Cong., 1st Sess., 660-661. [ Footnote 2/50 ] Similarly, in 1885, this Court construed § 21 without any apparent indication that the section was, or had ever been thought to be, beyond Congress' authority. Kurtz v. Moffitt, 115 U. S. 487 , 115 U. S. 501 -502. [ Footnote 2/51 ] Tsiang, supra, 387 U.S. 253 fn2/3|>n. 3, at 95. President Johnson emphasized in his Third Annual Message the difficulties which were then prevalent. 6 Richardson, Messages and Papers of the Presidents 558, 580-581. [ Footnote 2/52 ] Tsiang, supra, at 95. See also 3 Moore, Digest of International Law 579-580. [ Footnote 2/53 ] See, e.g., Cong.Globe, 40th Cong., 2d Sess., 968, 1129-1131. [ Footnote 2/54 ] Van Trump's proposal contained nothing which would have expatriated any unwilling citizen, see Cong.Globe, 40th Cong., 2d Sess., 1801; its ultimate failure therefore cannot, despite the Court's apparent suggestion, help to establish that the House supposed that legislation similar to that at issue here was impermissible under the Constitution. [ Footnote 2/55 ] Cong.Globe, 40th Cong., 2d Sess., 1800-1805. [ Footnote 2/56 ] It should be noted that Van Trump, far from a "framer" of the Amendment, had not even been a member of the Congress which adopted it. Biographical Directory of the American Congress 1774-1961, H.R.Doc. No. 442, 85th Cong., 2d Sess., 1750. [ Footnote 2/57 ] As General Banks, the Chairman of the House Committee on Foreign Affairs, carefully emphasized, the debates were intended simply to produce a declaration of the obligation of the United States to compel other countries "to consider the rights of our citizens and to bring the matter to negotiation and settlement"; the bill's proponents stood "for that and nothing more." Cong.Globe, 40th Cong., 2d Sess., 2315. [ Footnote 2/58 ] The first such treaty was that with the North German Union, concluded February 22, 1868, and ratified by the Senate on March 26, 1868. 2 Malloy, Treaties, Conventions, International Acts, Protocols and Agreements between the United States and other Powers 1298. Similar treaties were reached in 1868 with Bavaria, Baden, Belgium, Hesse, and Wurttemberg; a treaty was reached in 1869 with Norway and Sweden. An analogous treaty was made with Mexico in 1868, but, significantly, it permitted rebuttal of the presumption of renunciation of citizenship. See generally Tsiang, supra, at 88. [ Footnote 2/59 ] The relevance of these treaties was certainly not overlooked in the debates in the Senate upon the Act of 1868. See, e.g., Cong.Globe, 40th Cong., 2d Sess., 4205, 4211, 4329, 4331. Senator Howard attacked the treaties, but employed none of the reasons which might be suggested by the opinion for the Court today. Id. at 4211. [ Footnote 2/60 ] 7 Richardson, Messages and Papers of the Presidents 284, 291. See further Borchard, Diplomatic Protection of Citizens Abroad §§ 319, 324, 325.

The Supreme Court ruled that the US Congress has no power to strip a person of their citizenship unless they voluntarily renounce it. This decision overruled a previous case, Perez v. Brownell, which allowed Congress to revoke citizenship under its implied power to regulate foreign affairs. The Court's ruling was based on the Fourteenth Amendment, which states that all persons born or naturalized in the US are citizens and prevents the cancellation of citizenship.

Immigration & National Security

Kwong Hai Chew v. Colding

https://supreme.justia.com/cases/federal/us/344/590/

U.S. Supreme Court Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) Kwong Hai Chew v. Colding No. 17 Argued October 17, 1952 Decided February 9, 1953 344 U.S. 590 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus 1. Under 8 CFR § 175.57(b), a regulation pertaining to the entry of aliens into the United States, the Attorney General has no authority to deny to an alien who is a lawful permanent resident of the United States, and who is continuously residing and physically present therein, an opportunity to be heard in opposition to an order for his "permanent exclusion" and consequent deportation, even when the Attorney General determines that the order is based on information of a confidential nature the disclosure of which would be prejudicial to the public interest. Pp. 344 U. S. 591 -600. (a) Knauff v. Shaughnessy, 338 U. S. 537 , distinguished. Page 344 U. S. 596 . (b) The term "excludable," in § 175.57(b), is inapplicable to aliens who are lawful permanent residents physically present within the United States. P. 344 U. S. 599 . (c) Nothing in the statute or the Presidential Proclamations under which this regulation was issued requires or permits a broader interpretation of this section. Pp. 344 U. S. 599 -600. 2. Petitioner is an alien and a lawful permanent resident of the United States, who currently maintains his residence in the United States and usually is physically present there. While returning from a voyage to foreign ports as a seaman on a vessel of American registry with its home port in the United States, he was detained on board by an order of the Attorney General and ordered "temporarily excluded" from the United States under 8 CFR § 175.57, as an alien whose entry was deemed prejudicial to the public interest. He was denied a hearing by the Attorney General on the ground that the order was based on information of a confidential nature, the disclosure of which would be prejudicial to the public interest, and he was ordered to be permanently excluded from the United States. Held: petitioner's detention, without notice of any charges against him and without opportunity to be heard in opposition to them, was not authorized by 8 CFR § 175.57(b). Pp. 344 U. S. 600 -603. 192 F.2d 1009, reversed. Page 344 U. S. 591 Petitioner's application for a writ of habeas corpus was dismissed by the District Court. 97 F. Supp. 592 . The Court of Appeals affirmed. 192 F.2d 1009. This Court granted certiorari. 343 U.S. 933. Reversed and remanded, p. 344 U. S. 603 . MR. JUSTICE BURTON delivered the opinion of the Court. A preliminary consideration that is helpful to the solution of this litigation is whether, under 8 CFR § 175.57(b), [ Footnote 1 ] the Attorney General has authority to deny to a lawful permanent resident of the United States, Page 344 U. S. 592 who is an alien continuously residing and physically present therein, the opportunity to be heard in opposition to an order for his "permanent exclusion" and consequent deportation, provided the Attorney General determines that the order is based on information of a confidential nature, the disclosure of which would be prejudicial to the public interest. Assuming, as seems to be clear, that the Attorney General does not have such authority, the critical issue then presented is whether he has that authority under the following additional circumstances: the resident alien is a seaman, he currently maintains his residence in the United States and usually is physically present there; however, he is returning from a voyage as a seaman on a vessel of American registry with its home port in the United States, that voyage has included scheduled calls at foreign ports in the Far East, and he is detained on board by order of the Attorney General. For the reasons hereafter stated, we hold that these additional circumstances do not change the result, and that the Attorney General does not have the authority suggested. Petitioner, Kwong Hai Chew, is a Chinese seaman last admitted to the United States in 1945. Thereafter, he married a native American and bought the home in which they reside in New York. Having proved his good moral character for the preceding five years, petitioner secured suspension of his deportation. In 1949, he was admitted to permanent residence in the United Page 344 U. S. 593 States as of January 10, 1945. [ Footnote 2 ] In World War II, he served with credit in the United States Merchant Marine. He never has had any difficulty with governmental authorities. In April, 1950, he filed a petition for naturalization Page 344 U. S. 594 which is still pending. In November, 1950, he was screened and passed by the Coast Guard for employment as a seaman on a merchant vessel. [ Footnote 3 ] In the same month, he signed articles of employment as chief steward on the S.S. Sir John Franklin, a vessel of American registry with its home port in New York City. The voyage was to include calls at several foreign ports in the Far East. He remained aboard the vessel on this voyage, but at San Francisco, in March, 1951, the immigration Page 344 U. S. 595 inspector ordered him "temporarily excluded," under 8 CFR § 175.57, as an alien whose entry was deemed prejudicial to the public interest. On the vessel's arrival in New York, March 29, petitioner's "temporary exclusion" was continued, and he was not permitted to land. March 30, he sought a writ of habeas corpus from the United States District Court for the Eastern District of New York, charging that his detention was arbitrary and capricious and a denial of due process of law in violation of the Fifth Amendment to the Constitution of the United States. Purporting to act under 8 CFR § 175.57(b), the Attorney General directed that petitioner be denied a hearing before a Board of Special Inquiry and that his "temporary exclusion be made permanent." The Attorney General continues to deny petitioner all information as to the nature and cause of any accusations against him and all opportunity to be heard in opposition to the order for his "exclusion." He is detained at Ellis Island "for safekeeping on behalf of the master of the S.S. Sir John Franklin. " The writ was issued, but, after a hearing, it was dismissed by the District Court. 97 F. Supp. 592 . The Court of Appeals for the Second Circuit affirmed. 192 F.2d 1009. Both courts relied upon Knauff v. Shaughnessy, 338 U. S. 537 . We granted certiorari because of the doubtful applicability of that decision and the importance of the issue in the administration of the Nation's immigration and naturalization program. 343 U.S. 933. Bail was denied by the District Court. 98 F. Supp. 717. It also was denied by the Court of Appeals, without prejudice to an application to this Court. Applications for bail are pending before the Commissioner of Immigration and Naturalization and this Court. The issue is petitioner's detention, without notice of any charge against him and without opportunity to be heard in opposition thereto. Petitioner contends that Page 344 U. S. 596 such detention is not authorized by 8 CFR § 175.57(b). He contends also that, if that regulation does purport to authorize such detention, the regulation is invalid as an attempt to deprive him of his liberty without due process of law in violation of the Fifth Amendment. Agreement with petitioners first contention makes it unnecessary to reach his second. The case of Knauff v. Shaughnessy, supra, relied upon below, is not in point. It relates to the rights of an alien entrant, and does not deal with the question of a resident alien's right to be heard. For purposes of his constitutional right to due process, we assimilate petitioner's status to that of an alien continuously residing and physically present in the United States. [ Footnote 4 ] To simplify the issue, we consider first what would have been his constitutional right to a hearing had he not undertaken his voyage to foreign ports, but had remained continuously within the territorial boundaries of the United States. 1. It is well established that, if an alien is a lawful permanent resident of the United States and remains physically present there, he is a person within the protection of the Fifth Amendment. He may not be deprived of his life, liberty or property without due process of law. [ Footnote 5 ] Page 344 U. S. 597 Although it later may be established, as respondents contend, that petitioner can be expelled and deported, yet, before his expulsion, he is entitled to notice of the nature of the charge and a hearing at least before an executive or administrative tribunal. [ Footnote 6 ] Although Congress may prescribe Page 344 U. S. 598 conditions for his expulsion and deportation, not even Congress may expel him without allowing him a fair opportunity to be heard. [ Footnote 7 ] For example, he is entitled to a fair chance to prove mistaken identity. At the present stage of the instant case, the issue is not one of exclusion, expulsion, or deportation. It is one of legislative construction and of procedural due process. [ Footnote 8 ] This being recognized, we interpret this regulation as making no attempt to question a resident alien's constitutional Page 344 U. S. 599 right to due process. Section 175.57(b) uses the term "excludable" in designating the aliens to which it applies. That term relates naturally to entrant aliens and to those assimilated to their status. The regulation nowhere refers to the expulsion of aliens, which is the term that would apply naturally to aliens who are lawful permanent residents physically present within the United States. Accordingly, we find no language in the regulation that would have required its application to petitioner had he remained continuously and physically within the United States. [ Footnote 9 ] It thus seems clear that the Attorney General would not have had the authority to deny to petitioner a hearing in opposition to such an order as was here made, provided petitioner had remained within the United States. The regulation before us was issued by the Secretary of State and concurred in by the Attorney General, pursuant to Presidential Proclamations No. 2523, 3 CFR, 1943 Cum.Supp., 270, and No. 2850, 3 CFR, 1949 Supp. 41. The latter proclamation, issued August 17, 1949, also "ratified and confirmed" the regulation. Those proclamations, in turn, depend upon § 1 of the Act of May 22, 1918, 40 Stat. 559, as amended, June 21, 1941, 55 Stat. Page 344 U. S. 600 252, 22 U.S.C. § 223. It is not questioned that the regulation, as above interpreted, comes within these authorizations, or that such authorizations have been extended to include the dates material in this case. 66 Stat. 163, 333. We find nothing in the statute or the proclamations which calls for, permits, or sustains a broader interpretation of 8 CFR § 175.57(b) than we have given to it. The wording also now reflects congressional intent, because substantially the same language was inserted by Congress in the Subversive Activities Control Act of 1950, 64 Stat. 1008. See note 1 supra. 2. Petitioner's final contention is that, if an alien is a lawful permanent resident of the United States and also is a seaman who has gone outside of the United States on a vessel of American registry, with its home port in the United States, and, upon completion of such voyage, has returned on such vessel to the United States and is still on board, he is still, from a constitutional point of view, a person entitled to procedural due process under the Fifth Amendment. We do not regard the constitutional status which petitioner indisputably enjoyed prior to his voyage as terminated by that voyage. From a constitutional point of view, he is entitled to due process without regard to whether or not, for immigration purposes, he is to be treated as an entrant alien, and we do not now reach the question whether he is to be so treated. Section 175.57(b)'s authorization of the denial of hearings raises no constitutional conflict if limited to "excludable" aliens who are not within the protection of the Fifth Amendment. The assimilation of petitioner, for constitutional purposes, to the status of a continuous resident physically present in the United States also accords with the Nation's immigration and naturalization program. For example, for purposes of naturalization, such an assimilation was expressly prescribed in the Nationality Act of 1940: Page 344 U. S. 601 "SEC. 307. (a) No person . . . shall be naturalized unless such petitioner, (1) immediately preceding the date of filing petition for naturalization has resided continuously within the United States for at least five years. . . ." " * * * *" "(d) The following shall be regarded as residence within the United States within the meaning of this chapter:" " * * * *" "(2) Continuous service by a seaman on a vessel or vessels whose home port is in the United States and which are of American registry or American owned, if rendered subsequent to the applicant's lawful entry into the United States for permanent residence and immediately preceding the date of naturalization." 54 Stat. 1142-1143, 8 U.S.C. § 707. See also § 325, 54 Stat. 1150, as amended, 64 Stat. 1015, 8 U.S.C. (Supp. V) § 725. [ Footnote 10 ] While it may be that a resident alien's ultimate right to remain in the United States is subject to alteration by statute or authorized regulation because of a voyage undertaken by him to foreign ports, it does not follow that he is thereby deprived of his constitutional right to procedural due process. His status as a person within the meaning and protection of the Fifth Amendment cannot be capriciously taken from him. Where neither Congress, the President, the Secretary of State, nor the Attorney General has inescapably said so, we are not Page 344 U. S. 602 ready to assume that any of them has attempted to deprive such a person of a fair hearing. [ Footnote 11 ] This preservation of petitioner's right to due process does not leave an unprotected spot in the Nation's armor. Before petitioner's admission to permanent residence, he was required to satisfy the Attorney General and Congress of his suitability for that status. [ Footnote 12 ] Before receiving clearance for his foreign cruise, he was screened and approved by the Coast Guard. [ Footnote 13 ] Before acceptance of his petition for naturalization, as well as before final action thereon, assurance is necessary that he is not a security risk. See 8 U.S.C. c. 11, Subchapter III -- Nationality Through Naturalization, §§ 701-747, as amended. We do not reach the issue as to what would be the constitutional status of 8 CFR § 175.57(b) if it were interpreted as denying to petitioner all opportunity for a hearing. Also, we do not reach the issue as to what will be the authority of the Attorney General to order the deportation of petitioner after giving him reasonable notice of the charges against him and allowing him a Page 344 U. S. 603 hearing sufficient to meet the requirements of procedural due process. For the reasons stated, we conclude that the detention of petitioner, without notice of the charges against him and without opportunity to be heard in opposition to them, is not authorized by 8 CFR § 175.57(b). Accordingly, the judgment of the Court of Appeals is Reversed and the cause remanded to the District Court. MR. JUSTICE MINTON dissents. [ Footnote 1 ] "§ 175.57 Entry not permitted in special cases. . . ." " * * * *" "(b) In the case of an alien temporarily excluded by an official of the Department of Justice on the ground that he is, or may be excludable under one of more of the categories set forth in § 175.53, no hearing by a board of special inquiry shall be held until after the case is reported to the Attorney General and such a hearing is directed by the Attorney General or his representative. In any special case, the alien may be denied a hearing before a board of special inquiry and an appeal from the decision of that board if the Attorney General determines that he is excludable under one of the categories set forth in § 175.53 on the basis of information of a confidential nature, the disclosure of which would be prejudicial to the public interest." The categories set forth in § 175.53 as a basis for exclusion are those defined "to be prejudicial to the public interest." They include, for example, membership in "a political organization associated with or carrying out policies of any foreign government opposed to the measures adopted by the Government of the United States in the public interest . . ." or being "engaged in organizing, teaching, advocating, or directing any rebellion, insurrection, or violent uprising against the United States." 8 CFR. For statutory language similar to that in 8 CFR § 175.57, see § 5 of the Act of October 16, 1918, as amended by the Subversive Activities Control Act of 1950, 64 Stat. 1008, 8 U.S.C. (Supp. V) § 137-4, referring to aliens who are "excludable" under § 137. The Government, in the instant case, relies upon 8 CFR § 175.57, rather than upon 8 U.S.C. (Supp. V) § 137-4. [ Footnote 2 ] " Resolved by the Senate (the House of Representatives concurring), That the Congress favors the suspension of deportation in the case of each alien hereinafter named, in which case the Attorney General has suspended deportation for more than six months." " * * * *" "A-6665545, Chew, Kwong Hai, or Harry Kwong (Hai Chew)." " * * * *" "Agreed to July 20, 1949." 63 Stat. 1240, 1242. For the effect of the above action, see § 19(c) of the Immigration Act of February 5, 1917, as amended, 62 Stat. 1206, 8 U.S.C. (Supp. V) § 155(c): "(c) In the case of any alien . . . who is deportable under any law of the United States and who has proved good moral character for the preceding five years, the Attorney General may . . . suspend deportation of such alien if he is not ineligible for naturalization or if ineligible, such ineligibility is solely by reason of his race, if he finds (a) that such deportation would result in serious economic detriment to a citizen or legally resident alien who is the spouse, parent, or minor child of such deportable alien; or (b) that such alien has resided continuously in the United States for seven years or more and is residing in the United States upon the effective date of this Act. If the deportation of any alien is suspended under the provisions of this subsection for more than six months, a complete and detailed statement of the facts and pertinent provisions of law in the case shall be reported to the Congress with the reasons for such suspension. . . . If, during the session of the Congress at which a case is reported or prior to the close of the session of the Congress next following the session at which a case is reported, the Congress passes a concurrent resolution stating in substance that it favors the suspension of such deportation, the Attorney General shall cancel deportation proceedings. . . . Deportation proceedings shall not be canceled in the case of any alien who was not legally admitted for permanent residence at the time of his last entry into the United States, unless such aliens pays . . . a fee of $18. . . . [In the instant case, this was paid.] Upon the cancellation of such proceedings in any case in which fee has been paid, the Commissioner shall record the alien's admission for permanent residence as of the date of his last entry into the United States. . . ." 8 CFR § 175.41(q) states that, for the purposes of §§ 175.41 to 175.62, "The term 'an alien who is a lawful permanent resident of the United States' means an alien who has been lawfully admitted into the continental United States, the Virgin Islands, Puerto Rico, or Hawaii for permanent residence therein, and who has, since such admission, maintained his domicile in the United States. . . ." [ Footnote 3 ] For the nature and significance of such clearance, see Executive Order No. 10173, of October 18, 1950, especially §§ 6.10-1 to 6.10-9, now published, as amended, in 33 CFR, 1951 Cum.Pocket Supp. That order was issued pursuant to the Act of June 15, 1917, as amended by the Magnuson Act of August 9, 1950, 64 Stat. 427-428, 50 U.S.C. (Supp. V) § 191. It has now been implemented by regulations effective December 27, 1950, published, as amended, in 33 CFR, 1951 Cum. Pocket Supp., §§ 121.01-125.37. See also Parker v. Lester, 98 F. Supp. 300 , 191 F.2d 1020. Section 6.10-1, as it existed at the date of petitioner's clearance, provided: " Issuance of documents and employment of persons aboard vessels. No person shall be issued a document required for employment on a merchant vessel of the United States, nor shall any licensed officer or certificated man be employed on a merchant vessel of the United States if the Commandant is satisfied that the character and habits of life of such person are such as to authorize the belief that the presence of the individual on board would be inimical to the security of the United States. . . ." 15 Fed.Reg. 7007. Later regulations have published detailed security provisions as to who may be employed on merchant vessels of the United States of 100 gross tons and upward, whether engaged in foreign or other trade. 33 CFR, 1951 Cum.Pocket Supp., §§ 121.13-121.16. [ Footnote 4 ] In this opinion, "exclusion" means preventing someone from entering the United States who is actually outside of the United States or is treated as being so. "Expulsion" means forcing someone out of the United States who is actually within the United States or is treated as being so. "Deportation" means the moving of someone away from the United States after his exclusion or expulsion. [ Footnote 5 ] ". . . The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But, once an alien lawfully enters and resides in this country, he becomes invested with the rights guaranteed by the Constitution to all people within our borders. Such rights include those protected by the First and the Fifth Amendments and by the due process clause of the Fourteenth Amendment. None of these provisions acknowledges any distinction between citizens and resident aliens. They extend their inalienable privileges to all 'persons,' and guard against any encroachment on those rights by federal or state authority." Bridges v. Wixon, 326 U. S. 135 , 326 U. S. 161 (concurring opinion). "The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization. During his probationary residence, this Court has steadily enlarged his right against Executive deportation except upon full and fair hearing. . . . And, at least since 1886, we have extended to the person and property of resident aliens important constitutional guaranties -- such as the due process of law of the Fourteenth Amendment." Johnson v. Eisentrager, 339 U. S. 763 , 339 U. S. 770 -771. The latter case also comments that, "in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act." Id. at 339 U. S. 771 . That case related to nonresident enemy aliens who had never been in the United States, rather than to a lawful permanent resident in the position of petitioner. There is no lack of physical presence for jurisdictional purposes in the instant case. [ Footnote 6 ] ". . . But this court has never held, nor must we now be understood as holding, that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in 'due process of law' as understood at the time of the adoption of the Constitution. One of these principles is that no person shall be deprived of his liberty without opportunity, at some time, to be heard before such officers in respect of the matters upon which that liberty depends -- not necessarily an opportunity upon a regular, set occasion, and according to the forms of judicial procedure, but one that will secure the prompt, vigorous action contemplated by Congress, and, at the same time, be appropriate to the nature of the case upon which such officers are required to act. Therefore, it is not competent for the Secretary of the Treasury or any executive officer at any time within the year limited by the statute arbitrarily to cause an alien who has entered the country, and has become subject in all respects to its jurisdiction and a part of its population, although alleged to be illegally here, to be taken into custody and deported without giving him all opportunity to be heard upon the questions involving his right to be and remain in the United States. No such arbitrary power can exist where the principles involved in due process of law are recognized." The Japanese Immigrant Case, 189 U. S. 86 , 189 U. S. 100 -101. ". . . It was under compulsion of the Constitution that this Court long ago held that an antecedent deportation statute must provide a hearing at least for aliens who had not entered clandestinely and who had been here some time even if illegally." Wong Yang Sung v. McGrath, 339 U. S. 33 , 339 U. S. 49 -50. See also Johnson v. Eisentrager, supra, at 339 U. S. 770 -771; Carlson v. Landon, 342 U. S. 524 , 342 U. S. 538 . [ Footnote 7 ] See Fong Yue Ting v. United States, 149 U. S. 698 , recognizing the right to expel and deport resident aliens. "When the Constitution requires a hearing, it requires a fair one, one before a tribunal which meets at least currently prevailing standards of impartiality." Wong Yang Sung v. McGrath, supra, at 339 U. S. 50 ; Kwock Jan Fat v. White, 253 U. S. 454 , 253 U. S. 457 -458, 253 U. S. 464 . [ Footnote 8 ] It is to be noted that the cases generally cited in this field in relation to the exclusion, expulsion, or deportability of resident aliens deal only with that ultimate issue, and not with the right of the resident alien to a hearing sufficient to satisfy procedural due process. The reports show that there were hearings and that, in some cases, the Court considered whether the hearings had been fair. E.g., United States ex rel. Volpe v. Smith, 289 U. S. 422 , 289 U. S. 424 ; United States v. Corsi, 287 U. S. 129 , 287 U. S. 131 ; United States ex rel. Claussen v. Day, 279 U. S. 398 , 279 U. S. 400 ; Quon Quon Poy v. Johnson, 273 U. S. 352 , 273 U. S. 358 ; Lewis v. Frick, 233 U. S. 291 , 233 U. S. 293 ; Lapina v. Williams, 232 U. S. 78 , 232 U. S. 83 ; Fong Yue Ting v. United States, 149 U. S. 698 , 149 U. S. 729 . [ Footnote 9 ] The preceding subsection, 175.57(a), uses the additional word "deported," but only to supplement "excluded:" "Any alien so temporarily excluded by an official of the Department of Justice shall not be admitted, and shall be excluded and deported unless the Attorney General, after consultation with the Secretary of State, is satisfied that the admission of the alien would not be prejudicial to the interests of the United States." 8 CFR. [ Footnote 10 ] This provision survives in a modified form in § 330 of the Immigration and Nationality Act of 1952, 66 Stat. 251. Section 330(b) includes a savings clause affecting those who applied for naturalization before September 23, 1950. Section 405(a) also contains a general savings clause, 66 Stat. 280. [ Footnote 11 ] Existing statutory and administrative provisions for "Exclusion Without Hearing" are discussed in the Report of the President's Commission on Immigration and Naturalization entitled "Whom We Shall Welcome" dated January 1, 1953 at 228-231. The discussion treats the provisions as applicable to entrant and reentrant aliens, but does not even suggest that they are applicable to aliens lawfully admitted to permanent residence and physically present within the United States. The report discusses the harshness of the "reentry doctrine," and recommends its modification at 199-200. It does not, however, even suggest that the reentry doctrine attempts to limit the constitutional right to a hearing which resident aliens, in the status of petitioner, may have under the Fifth Amendment. The instances of hardship which the report cites appear to have been disclosed at hearings held on the issue of the alien's right to reenter. [ Footnote 12 ] See note 2 supra. [ Footnote 13 ] See note 3 supra.

Here is a summary of the Supreme Court case Kwong Hai Chew v. Colding: The case centers around 8 CFR § 175.57(b), a regulation regarding the entry of aliens into the United States, and whether the Attorney General has the authority to deny a hearing to a lawful permanent resident alien facing "permanent exclusion" and deportation. The Court held that under this regulation, the Attorney General does not have the authority to deny a hearing to a lawful permanent resident alien who is continuously residing and physically present in the United States, even if the information is confidential and its disclosure would be prejudicial to the public interest. The Court distinguished this case from Knauff v. Shaughnessy, where the alien was not a permanent resident and had not yet entered the country. The term "excludable" in the regulation was deemed inapplicable to aliens who are already lawful permanent residents physically present in the United States. The Court reversed the lower court's decision and remanded the case, holding that the petitioner, a lawful permanent resident alien, was entitled to a hearing and that his detention without notice of charges or an opportunity to be heard was not authorized by the regulation.

Immigration & National Security

U.S. v. Reynolds

https://supreme.justia.com/cases/federal/us/345/1/

U.S. Supreme Court United States v. Reynolds, 345 U.S. 1 (1953) United States v. Reynolds No. 21. Argued October 21, 1952 Decided March 9, 1953 345 U.S. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Syllabus A military aircraft on a flight to test secret electronic equipment crashed, and certain civilian observers aboard were killed. Their widows sued the United States under the Tort Claims Act and moved under Rule 34 of the Federal Rules of Civil Procedure for production of the Air Force's accident investigation report and statements made by surviving crew members during the investigation. The Secretary of the Air Force filed a formal claim of privilege, stating that the matters were privileged against disclosure under Air Force regulations issued under R.S. § 161, and that the aircraft and its personnel were "engaged in a highly secret mission." The Judge Advocate General filed an affidavit stating that the material could not be furnished "without seriously hampering national security," but he offered to produce the surviving crew members for examination by plaintiffs and to permit them to testify as to all matters except those of a "classified nature." Held: in this case, there was a valid claim of privilege under Rule 34; and a judgment based under Rule 37 on refusal to produce the documents subjected the United States to liability to which Congress did not consent by the Tort Claims Act. Pp. 345 U. S. 2 -12. (a) As used in Rule 34, which compels production only of matters "not privileged," the term "not privileged" refers to "privileges" as that term is understood in the law of evidence. P. 345 U. S. 6 . (b) When the Secretary lodged his formal claim of privilege, he invoked a privilege against revealing military secrets which is well established in the law of evidence. Pp. 345 U. S. 6 -7. Page 345 U. S. 2 (c) When a claim of privilege against revealing military secrets is invoked, the courts must decide whether the occasion for invoking the privilege is appropriate, and yet do so without jeopardizing the security which the privilege was meant to protect. Pp. 345 U. S. 7 -8. (d) When the formal claim of privilege was filed by the Secretary, under circumstances indicating a reasonable possibility that military secrets were involved, there was a sufficient showing of privilege to cut off further demand for the documents on the showing of necessity for its compulsion that had been made. P. 345 U. S. 10 . (e) In this case, the showing of necessity was greatly minimized by plaintiffs' rejection of the Judge Advocate General's offer to make the surviving crew member available for examination. P. 345 U. S. 11 . (f) The doctrine in the criminal field that the Government can invoke its evidentiary privileges only at the price of letting the defendant go free has no application in a civil forum, where the Government is not the moving party, but is a defendant only on terms to which it has consented. P. 345 U. S. 12 . 192 F.2d 987 reversed. In a suit under the Tort Claims Act, the District Court entered judgment against the Government. 10 F.R.D. 468. The Court of Appeals affirmed. 192 F.2d 987. This Court granted certiorari. 343 U.S. 918. Reversed and remanded, p. 345 U. S. 12 . MR. CHIEF JUSTICE VINSON delivered the opinion of the Court. These suits under the Tort Claims Act [ Footnote 1 ] arise from the death of three civilians in the crash of a B-29 aircraft at Page 345 U. S. 3 Waycross, Georgia, on October 6, 1948. Because an important question of the Government's privilege to resist discovery [ Footnote 2 ] is involved, we granted certiorari. 343 U.S. 918. The aircraft had taken flight for the purpose of testing secret electronic equipment, with four civilian observers aboard. While aloft, fire broke out in one of the bomber's engines. Six of the nine crew members, and three of the four civilian observes were killed in the crash. The widows of the three deceased civilian observers brought consolidated suits against the United States. In the pretrial stages, the plaintiffs moved, under Rule 34 of the Federal Rules of Civil Procedure, [ Footnote 3 ] for production of the Air Force's official accident investigation report and the statements of the three surviving crew members, taken in connection with the official investigation. The Government moved to quash the motion, claiming that these matters were privileged against disclosure pursuant Page 345 U. S. 4 to Air Force regulations promulgated under R.S. § 161. [ Footnote 4 ] The District Judge sustained plaintiffs' motion, holding that good cause for production had been shown. [ Footnote 5 ] The claim of privilege under R.S. § 161 was rejected on the premise that the Tort Claims Act, in making the Government liable "in the same manner" as a private individual, [ Footnote 6 ] had waived any privilege based upon executive control over governmental documents. Shortly after this decision, the District Court received a letter from the Secretary of the Air Force stating that "it has been determined that it would not be in the public interest to furnish this report. . . ." The court allowed a rehearing on its earlier order, and, at the rehearing, the Secretary of the Air Force filed a formal "Claim of Privilege." This document repeated the prior claim based generally on R.S. § 161, and then stated that the Government further objected to production of the documents "for the reason that the aircraft in question, together with the personnel on board, were engaged in a highly secret mission of the Air Force." An affidavit of the Judge Advocate General, United States Air Force, was also filed Page 345 U. S. 5 with the court, which asserted that the demanded material could not be furnished "without seriously hampering national security, flying safety and the development of highly technical and secret military equipment." The same affidavit offered to produce the three surviving crew members, without cost, for examination by the plaintiffs. The witnesses would be allowed to refresh their memories from any statement made by them to the Air Force, and authorized to testify as to all matters except those of a "classified nature." The District Court ordered the Government to produce the documents in order that the court might determine whether they contained privileged matter. The Government declined, so the court entered an order, under Rule 37(b)(2)(i), [ Footnote 7 ] that the facts on the issue of negligence would be taken as established in plaintiffs' favor. After a hearing to determine damages, final judgment was entered for the plaintiffs. The Court of Appeals affirmed, [ Footnote 8 ] both as to the showing of good cause for production of the documents and as to the ultimate disposition of the case as a consequence of the Government's refusal to produce the documents. Page 345 U. S. 6 We have had broad propositions pressed upon us for decision. On behalf of the Government, it has been urged that the executive department heads have power to withhold any documents in their custody from judicial view if they deem it to be in the public interest. [ Footnote 9 ] Respondents have asserted that the executive's power to withhold documents was waived by the Tort Claims Act. Both positions have constitutional overtones which we find it unnecessary to pass upon, there being a narrower ground for decision. Touhy v. Ragen, 340 U. S. 462 (1951); Rescue Army v. Municipal Court of Los Angeles, 331 U. S. 549 , 331 U. S. 574 -585 (1947). The Tort Claims Act expressly makes the Federal Rules of Civil Procedure applicable to suits against the United States. [ Footnote 10 ] The judgment in this case imposed liability upon the Government by operation of Rule 37, for refusal to produce documents under Rule 34. Since Rule 34 compels production only of matters "not privileged," the essential question is whether there was a valid claim of privilege under the Rule. We hold that there was, and that therefore the judgment below subjected the United States to liability on terms to which Congress did not consent by the Tort Claims Act. We think it should be clear that the term "not privileged" as used in Rule 34, refers to "privileges" as that term is understood in the law of evidence. When the Secretary of the Air Force lodged his formal "Claim of Privilege," he attempted therein to invoke the privilege against revealing military secrets, a privilege which is well Page 345 U. S. 7 established in the law of evidence. [ Footnote 11 ] The existence of the privilege is conceded by the court below, [ Footnote 12 ] and, indeed, by the most outspoken critics of governmental claims to privilege. [ Footnote 13 ] Judicial experience with the privilege which protects military and state secrets has been limited in this country. [ Footnote 14 ] English experience has been more extensive, but still relatively slight compared with other evidentiary privileges. [ Footnote 15 ] Nevertheless, the principles which control the application of the privilege emerge quite clearly from the available precedents. The privilege belongs to the Government, and must be asserted by it; it can neither be claimed [ Footnote 16 ] nor waived [ Footnote 17 ] by a private party. It is not to be lightly invoked. [ Footnote 18 ] There must be formal claim Page 345 U. S. 8 of privilege, lodged by the head of the department which has control over the matter, [ Footnote 19 ] after actual personal consideration by that officer. [ Footnote 20 ] The court itself must determine whether the circumstances are appropriate for the claim of privilege, [ Footnote 21 ] and yet do so without forcing a disclosure of the very thing the privilege is designed to protect. [ Footnote 22 ] The latter requirement is the only one which presents real difficulty. As to it, we find it helpful to draw upon judicial experience in dealing with an analogous privilege, the privilege against self-incrimination. The privilege against self-incrimination presented the courts with a similar sort of problem. Too much judicial inquiry into the claim of privilege would force disclosure of the thing the privilege was meant to protect, while a complete abandonment of judicial control would lead to intolerable abuses. Indeed, in the earlier stages Page 345 U. S. 9 of judicial experience with the problem, both extremes were advocated, some saying that the bare assertion by the witness must be taken as conclusive, and others saying that the witness should be required to reveal the matter behind his claim of privilege to the judge for verification. [ Footnote 23 ] Neither extreme prevailed, and a sound formula of compromise was developed. This formula received authoritative expression in this country as early as the Burr trial. [ Footnote 24 ] There are differences in phraseology, but, in substance, it is agreed that the court must be satisfied from all the evidence and circumstances, and "from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Hoffman v. United States, 341 U. S. 479 , 341 U. S. 486 -487 (1951). [ Footnote 25 ] If the court is so satisfied, the claim of the privilege will be accepted without requiring further disclosure. Regardless of how it is articulated, some like formula of compromise must be applied here. Judicial control over the evidence in a case cannot be abdicated to the Page 345 U. S. 10 caprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case. It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers. In the instant case, we cannot escape judicial notice that this is a time of vigorous preparation for national defense. Experience in the past was has made it common knowledge that air power is one of the most potent weapons in our scheme of defense, and that newly developing electronic devices have greatly enhanced the effective use of air power. It is equally apparent that these electronic devices must be kept secret if their full military advantage is to be exploited in the national interests. On the record before the trial court, it appeared that this accident occurred to a military plane which had gone aloft to test secret electronic equipment. Certainly there was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment which was the primary concern of the mission. Of course, even with this information before him, the trial judge was in no position to decide that the report was privileged until there had been a formal claim of privilege. Thus, it was entirely proper to rule initially that petitioner had shown probable cause for discovery of the documents. Thereafter, when the formal claim of privilege was filed by the Secretary of the Air Force, under Page 345 U. S. 11 circumstances indicating a reasonable possibility that military secrets were involved, there was certainly a sufficient showing of privilege to cut off further demand for the document on the showing of necessity for its compulsion that had then been made. In each case, the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate. Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake. [ Footnote 26 ] A fortiori, where necessity is dubious, a formal claim of privilege, made under the circumstances of this case, will have to prevail. Here, necessity was greatly minimized by an available alternative, which might have given respondents the evidence to make out their case without forcing a showdown on the claim of privilege. By their failure to pursue that alternative, respondents have posed the privilege question for decision with the formal claim of privilege set against a dubious showing of necessity. There is nothing to suggest that the electronic equipment, in this case, had any causal connection with the accident. Therefore, it should be possible for respondents to adduce the essential facts as to causation without resort to material touching upon military secrets. Respondents were given as reasonable opportunity to do just that when petitioner formally offered to make the surviving crew members available for examination. We think that offer should have been accepted. Page 345 U. S. 12 Respondents have cited us to those cases in the criminal field, where it has been held that the Government can invoke its evidentiary privileges only at the price of letting the defendant go free. [ Footnote 27 ] The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense. Such rationale has no application in a civil forum, where the Government is not the moving party, but is a defendant only on terms to which it has consented. The decision of the Court of Appeals is reversed, and the case will be remanded to the District Court for further proceedings consistent with the views expressed in this opinion. Reversed and remanded. MR. JUSTICE BLACK, MR. JUSTICE FRANKFURTER, and MR. JUSTICE JACKSON dissent substantially for the reasons set forth in the opinion of Judge Maris below.192 F.2d 987. [ Footnote 1 ] 28 U.S.C. §§ 1346, 2674. [ Footnote 2 ] Federal Rules of Civil Procedure, Rule 34. [ Footnote 3 ] "Rule 34. Discovery and Production of Documents and Things for Inspection, Copying, or Photographing. Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions of Rule 30(b), the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 26(b) and which are in his possession, custody, or control; or (2) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated object or operation thereon within the scope of the examination permitted by Rule 26(b). The order shall specify the time, place, and manner of making the inspection and taking the copies and photographs and may prescribe such terms and conditions as are just." [ Footnote 4 ] 5 U.S.C. § 22: "The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it." Air Force Regulation No. 62-7(5)(b) provides: "Reports of boards of officers, special accident reports, or extracts therefrom will not be furnished or made available to persons outside the authorized chain of command without the specific approval of the Secretary of the Air Force." [ Footnote 5 ] 10 F.R.D. 468. [ Footnote 6 ] 28 U.S.C. § 2674: "The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages." [ Footnote 7 ] "Rule 37. Refusal to Make Discovery: Consequences. " " * * * *" "(b) Failure to Comply With Order." " * * * *" "(2) Other Consequences. If any party or an officer or managing agent of a party refuses to obey . . . an order made under Rule 34 to produce any document . . . , the court may make such orders in regard to the refusal as are just, and, among others, the following: " "(i) An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the physical or mental condition of the party, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order. . . ." [ Footnote 8 ] 192 F.2d 987. [ Footnote 9 ] [ Footnote 10 ] 28 U.S.C. (1946 ed.) § 932; United States v. Yellow Cab Co., 340 U. S. 543 , 340 U. S. 553 (1951). [ Footnote 11 ] Totten v. United States, 92 U. S. 105 , 92 U. S. 107 (1875); Firth Sterling Steel Co. v. Bethlehem Steel Co., 199 F. 353 (1912); Pollen v. Ford Instrument Co., 26 F. Supp. 583 (1939); Cresmer v. United States, 9 F.R.D. 203 (1949); see Bank Line v. United States, 68 F. Supp. 587 (1946), 163 F.2d 133 (1947). 8 Wigmore on Evidence (3d ed.) § 2212(a), p. 161, and § 2378(g)(5), at pp. 785 et seq.; 1 Greenleaf on Evidence (16th ed.) §§ 250-251; Sanford, Evidentiary Privileges Against the Production of Data Within the Control of Executive Departments, 3 Vanderbilt L.Rev. 73, 74-75 (1950). [ Footnote 12 ] 192 F.2d 987, 996. [ Footnote 13 ] See Wigmore, op. cit. supra, note 11 [ Footnote 14 ] See cases cited supra, note 11 [ Footnote 15 ] Most of the English precedents are reviewed in the recent case of Duncan v. Cammell, Laird & Co., [1942] A.C. 624. [ Footnote 16 ] First Sterling Steel Co. v. Bethlehem Steel Co., 199 F. 353 (1912). [ Footnote 17 ] In re Grove, 180 F. 62 (1910). [ Footnote 18 ] Marshall, C.J., in the Aaron Burr trial, I Robertson's Reports 186: "That there may be matter, the production of which the court would not require is certain. . . . What ought to be done under such circumstances presents a delicate question, the discussion of which, it is hoped, will never be rendered necessary in this country." [ Footnote 19 ] Firth case, supra, note 16 [ Footnote 20 ] "The essential matter is that the decision to object should be taken by the minister who is the political head of the department, and that he should have seen and considered the contents of the documents, and himself have formed the view that, on grounds of public interest, they ought not to be produced. . . ." Duncan v. Cammell, Laird & Co., [1942] A.C. 624, 638. [ Footnote 21 ] Id. at 642: "Although an objection validly taken to production, on the ground that this would be injurious to the public interest, is conclusive, it is important to remember that the decision ruling out such documents is the decision of the judge. . . . It is the judge who is in control of the trial, not the executive. . . ." (Emphasis supplied.) [ Footnote 22 ] Id. at pp. 638-642; cf. the language of this Court in Hoffman v. United States, 341 U. S. 479 , 341 U. S. 486 (1951), speaking of the analogous hazard of probing too far in derogation of the claim of privilege against self-incrimination: "However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. " (Emphasis supplied.) [ Footnote 23 ] Compare the expressions of Rolfe, B. and Willes, C.J., in Regina v.Garbett, 2 C. & K. 474, 492 (1847); see 8 Wigmore on Evidence (3d ed.) § 2271. [ Footnote 24 ] I Robertson's Reports 244: "When a question is propounded, it belongs to the Court to consider and decide whether any direct answer to it can implicate the witness; if this be decided in the negative, then he may answer it without violating the privilege which is secured to him by law. If a direct answer to it may criminate himself, then he must be the sole judge what his answer would be. The Court cannot participate with him in this judgment, because they cannot decide on the effect of his answer without knowing what it would be, and a disclosure of that fact to the judges would strip him of the privilege which the law allows and which he claims." [ Footnote 25 ] Brown v. United States, 276 U. S. 134 (1928); Mason v. United States, 244 U. S. 362 (1917). [ Footnote 26 ] See Totten v. United States, 92 U. S. 105 (1875), where the very subject matter of the action, a contract to perform espionage, was a matter of state secret. The action was dismissed on the pleadings without ever reaching the question of evidence, since it was so obvious that the action should never prevail over the privilege. [ Footnote 27 ] United States v. Andolschek, 142 F.2d 503 (1944); United States v. Beekman, 155 F.2d 580 (1946).

In United States v. Reynolds, the Supreme Court held that the government could claim privilege against revealing military secrets in a civil lawsuit, and that the courts must respect this privilege to protect national security. In this case, the widows of civilian observers killed in a military aircraft crash sued the government and sought access to the Air Force's accident investigation report. The Secretary of the Air Force claimed privilege, stating that the report contained sensitive information. The Court ruled that the government's privilege claim was valid and that the widows' demand for the documents was outweighed by the potential harm to national security. The Court also emphasized the distinction between criminal and civil cases, noting that evidentiary privileges in criminal cases could result in the defendant going free, while in civil cases, alternative evidence could be offered without compromising national security.

Immigration & National Security

Shaughnessy v. U.S. ex rel. Mezei

https://supreme.justia.com/cases/federal/us/345/206/

U.S. Supreme Court Shaughnessy v. Mezei, 345 U.S. 206 (1953) Shaughnessy v. Mezei No. 139 Argued January 7-8, 1953 Decided March 16, 1953 345 U.S. 206 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus An alien resident of the United States traveled abroad and remained in Hungary for 19 months. On his return to this country, the Attorney General, acting pursuant to 22 U.S.C. § 223 and regulations thereunder, ordered him permanently excluded without a hearing. The order was based on "information of a confidential nature, the disclosure of which would be prejudicial to the public interest," and on a finding that the alien's entry would be prejudicial to the public interest for security reasons. Because other nations refused to accept him, his exclusion at Ellis Island was continued for 21 months. A federal district court in habeas corpus proceedings then directed his conditional parole into the United States on bond. Held: the Attorney General's continued exclusion of the alien without a hearing does not amount to an unlawful detention, and courts may not temporarily admit him to the United States pending arrangements for his departure abroad. Pp. 345 U. S. 207 -216. (a) In exclusion cases, the courts cannot retry the Attorney General's statutory determination that an alien's entry would be prejudicial to the public interest. Pp. 345 U. S. 210 -212. (b) Neither an alien's harborage on Ellis Island nor his prior residence in this country transforms the administrative proceeding against him into something other than an exclusion proceeding, and he may be excluded if unqualified for admission under existing immigration laws. P. 345 U. S. 213 . (c) Although a lawfully resident alien may not captiously be deprived of his constitutional rights to due process, the alien in this case is an entrant alien or "assimilated to that status" for constitutional purposes. Kwong Hai Chew v. Colding, 344 U. S. 590 , distinguished. Pp. 345 U. S. 213 -214. (d) The Attorney General therefore may exclude this alien without a hearing, as authorized by the emergency regulations promulgated pursuant to the Passport Act, and need not disclose the evidence upon which that determination rests. Pp. 345 U. S. 214 -215. Page 345 U. S. 207 (e) The alien's continued exclusion on Ellis Island does not deprive him of any statutory or constitutional right. Pp. 345 U. S. 215 -216. (f) The alien's right to enter the United States depends on the congressional will, and the courts cannot substitute their judgment for the legislative mandate. P. 345 U. S. 216 . 195 F.2d 964, reversed. In a habeas corpus proceeding, the Federal District Court authorized the temporary admission of an alien to this country on $5,000 bond. 101 F. Supp. 66 . The Court of Appeals affirmed that action, but directed reconsideration of the terms of the parole. 195 F.2d 964. This Court granted certiorari. 344 U.S. 809. Reversed, p. 345 U. S. 216 . MR. JUSTICE CLARK delivered the opinion of the Court. This case concerns an alien immigrant permanently excluded from the United States on security grounds but stranded in his temporary haven on Ellis Island because other countries will not take him back. The issue is whether the Attorney General's continued exclusion of respondent without a hearing amounts to an unlawful detention, so that courts may admit him temporarily to the United States on bond until arrangements are made for his departure abroad. After a hearing on respondent's petition for a writ of habeas corpus, the District Court so held, and authorized his temporary admission on $5,000 bond. [ Footnote 1 ] The Court of Appeals affirmed that action, but directed reconsideration of the terms of the Page 345 U. S. 208 parole. [ Footnote 2 ] Accordingly, the District Court entered a modified order reducing bond to $3,000 and permitting respondent to travel and reside in Buffalo, New York. Bond was posted, and respondent released. Because of resultant serious problems in the enforcement of the immigration laws, we granted certiorari. 344 U.S. 809. Respondent's present dilemma springs from these circumstances: though, as the District Court observed, "[t]here is a certain vagueness about [his] history," respondent seemingly was born in Gibraltar of Hungarian or Rumanian parents and lived in the United States from 1923 to 1948. [ Footnote 3 ] In May of that year, he sailed for Europe, apparently to visit his dying mother in Rumania. Denied entry there, he remained in Hungary for some 19 months, due to "difficulty in securing an exit permit." Finally, armed with a quota immigration visa issued by the American Consul in Budapest, he proceeded to France and boarded the Ile de France in Le Havre bound for New York. Upon arrival on February 9, 1950, he was temporarily excluded from the United States by an immigration inspector acting pursuant to the Passport Act as amended and regulations thereunder. Pending disposition of his case, he was received at Ellis Island. After reviewing the evidence, the Attorney General, on May 10, 1950, ordered the temporary exclusion to be made permanent without a hearing before a board of special inquiry, on the "basis of information of a confidential nature, the disclosure of which would be prejudicial to the public interest." That determination rested on a finding that respondent's entry would be prejudicial to the public interest for security reasons. But, thus far, all attempts to effect respondent's departure have failed: twice he shipped Page 345 U. S. 209 out to return whence he came; France and Great Britain refused him permission to land. The State Department has unsuccessfully negotiated with Hungary for his readmission. Respondent personally applied for entry to about a dozen Latin American countries, but all turned him down. So, in June, 1951, respondent advised the Immigration and Naturalization Service that he would exert no further efforts to depart. In short, respondent sat on Ellis Island because this country shut him out and others were unwilling to take him in. Asserting unlawful confinement on Ellis Island, he sought relief through a series of habeas corpus proceedings. After four unsuccessful efforts on respondent's part, the United States District Court for the Southern District of New York, on November 9, 1951, sustained the writ. The District Judge, vexed by the problem of "an alien who has no place to go," did not question the validity of the exclusion order, but deemed further "detention" after 21 months excessive and justifiable only by affirmative proof of respondent's danger to the public safety. When the Government declined to divulge such evidence, even in camera, the District Court directed respondent's conditional parole on bond. [ Footnote 4 ] By a divided vote, the Court of Appeals affirmed. Postulating that the power to hold could never be broader than the power to remove or shut out, and that to "continue an alien's confinement beyond that moment when deportation becomes patently impossible is to deprive him of his liberty," the court found respondent's "confinement" no longer justifiable as a means of removal elsewhere, thus not authorized by statute, and in violation of due process. [ Footnote 5 ] Judge Learned Hand, dissenting, took a different view: the Attorney General's order was one of "exclusion," Page 345 U. S. 210 and not "deportation;" respondent's transfer from ship to shore on Ellis Island conferred no additional rights; in fact, no alien so situated "can force us to admit him at all." [ Footnote 6 ] Courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control. The Chinese Exclusion Case, 130 U. S. 581 (1889); Fong Yue Ting v. United States, 149 U. S. 698 (1893); United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537 (1950); Harisiades v. Shaughnessy, 342 U. S. 580 (1952). In the exercise of these powers, Congress expressly authorized the President to impose additional restrictions on aliens entering or leaving the United States during periods of international tension and strife. That authorization, originally enacted in the Passport Act of 1918, continues in effect during the present emergency. Under it, the Attorney General, acting for the President, may shut out aliens whose "entry would be prejudicial to the interest of the United States." [ Footnote 7 ] And he may exclude without a hearing when the exclusion is based on confidential information the Page 345 U. S. 211 disclosure of which may be prejudicial to the public interest. [ Footnote 8 ] The Attorney General, in this case, proceeded in accord with these provisions; he made the necessary determinations and barred the alien from entering the United States. Page 345 U. S. 212 It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law. The Japanese Immigrant Case, 189 U. S. 86 , 189 U. S. 100 -101 (1903); Wong Yang Sung v. McGrath, 339 U. S. 33 , 339 U. S. 49 -50 (1950); Kwong Hai Chew v. Colding, 344 U. S. 590 , 344 U. S. 598 (1953). But an alien on the threshold of initial entry stands on a different footing: "Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned." Knauff v. Shaughnessy, supra, at 338 U. S. 544 ; Nishimura Ekiu v. United States, 142 U. S. 651 , 142 U. S. 660 (1892). And because the action of the executive officer under such authority is final and conclusive, the Attorney General cannot be compelled to disclose the evidence underlying his determinations in an exclusion case; "it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government." Knauff v. Shaughnessy, supra, at 338 U. S. 543 ; Nishimura Ekiu v. United States, supra, at 142 U. S. 660 . In a case such as this, courts cannot retry the determination of the Attorney General. Shaughnessy, supra, at 338 U. S. 546 ; Ludecke v. Watkins, 335 U. S. 160 , 335 U. S. 171 -172 (1948). Page 345 U. S. 213 Neither respondent's harborage on Ellis Island nor his prior residence here transforms this into something other than an exclusion proceeding. Concededly, his movements are restrained by authority of the United States, and he may, by habeas corpus, test the validity of his exclusion. But that is true whether he enjoys temporary refuge on land, Nishimura Ekiu v. United States, supra, or remains continuously aboard ship. United States v. Jung Ah Lung, 124 U. S. 621 , 124 U. S. 626 (1888); Chin Yow v. United States, 208 U. S. 8 , 208 U. S. 12 (1908). In sum, harborage at Ellis Island is not an entry into the United States. Kaplan v. Tod, 267 U. S. 228 , 267 U. S. 230 (1925); United States v. Ju Toy, 198 U. S. 253 , 198 U. S. 263 (1905); Nishimura Ekiu v. United States, supra, at 142 U. S. 661 . For purposes of the immigration laws, moreover, the legal incidents of an alien's entry remain unaltered whether he has been here once before or not. He is an entering alien just the same, and may be excluded if unqualified for admission under existing immigration laws. E.g., Lem Moon Sing v. United States, 158 U. S. 538 , 158 U. S. 547 -548 (1895); Polymeris v. Trudell, 284 U. S. 279 . To be sure, a lawful resident alien may not captiously be deprived of his constitutional rights to procedural due process. Kwong Hai Chew v. Colding, 344 U. S. 590 , 344 U. S. 601 (1953); cf. Delgadillo v. Carmichael, 332 U. S. 388 (1947). Only the other day, we held that, under some circumstances, temporary absence from our shores cannot constitutionally deprive a returning lawfully resident alien of his right to be heard. Kwong Hai Chew v. Colding, supra. Chew, an alien seaman admitted by an Act of Congress to permanent residence in the United States, signed articles of maritime employment as chief steward on a vessel of American registry with home port in New York City. Though cleared by the Coast Guard for his voyage, on his return from four months at sea, he was "excluded" without a hearing on security grounds. Page 345 U. S. 214 On the facts of that case, including reference to § 307(d)(2) of the Nationality Act of 1940, we felt justified in "assimilating" his status for constitutional purposes to that of continuously present alien residents entitled to hearings at least before an executive or administrative tribunal. Id. 344 U. S. 596 , 344 U. S. 599 -601. Accordingly, to escape constitutional conflict, we held the administrative regulations authorizing exclusion without hearing in certain security cases inapplicable to aliens so protected by the Fifth Amendment. Id. 344 U. S. 600 . But respondent's history here drastically differs from that disclosed in Chew's case. Unlike Chew, who, with full security clearance and documentation, pursued his vocation for four months aboard an American ship, respondent, apparently without authorization or reentry papers, [ Footnote 9 ] simply left the United States and remained behind the Iron Curtain for 19 months. Moreover, while § 307 of the 1940 Nationality Act regards maritime service such as Chew's to be continuous residence for naturalization purposes, that section deems protracted absence such as respondent's a clear break in an alien's continuous residence here. [ Footnote 10 ] In such circumstances, we have no difficulty in holding respondent an entrant alien or "assimilated to [that] status" for constitutional purposes. Id. at 344 U. S. 599 . That being so, the Attorney General may lawfully exclude respondent without a hearing, as authorized Page 345 U. S. 215 by the emergency regulations promulgated pursuant to the Passport Act. Nor need he disclose the evidence upon which that determination rests. Knauff v. Shaughnessy, 338 U. S. 537 . There remains the issue of respondent's continued exclusion on Ellis Island. Aliens seeking entry from contiguous lands obviously can be turned back at the border without more. Polymeris v. Trudell, 284 U. S. 279 (1932). While the Government might keep entrants by sea aboard the vessel pending determination of their admissibility, resulting hardships to the alien and inconvenience to the carrier persuaded Congress to adopt a more generous course. By statute, it authorized, in cases such as this, aliens' temporary removal from ship to shore. [ Footnote 11 ] But such temporary harborage, an act of legislative grace, bestows no additional rights. Congress meticulously specified that such shelter ashore "shall not be considered a landing," nor relieve the vessel of the duty to transport back the alien if ultimately excluded. [ Footnote 12 ] And this Court has long considered such temporary arrangements as not affecting an alien's status; he is treated as if stopped at the border. Nishimura Ekiu v. United States, 142 U. S. 651 , 142 U. S. 661 -662 (1892); United States v. Ju Toy, 198 U. S. 253 , 198 U. S. 263 (1905); Kaplan v Tod, 267 U. S. 228 , 267 U. S. 230 (1925). Thus, we do not think that respondent's continued exclusion deprives him of any statutory or constitutional right. It is true that resident aliens temporarily detained pending expeditious consummation of deportation proceedings may be released on bond by the Attorney General, whose discretion is subject to judicial review. Carlson v. Landon, 342 U. S. 524 . By that procedure, aliens uprooted from our midst may rejoin the Page 345 U. S. 216 community until the Government effects their leave. [ Footnote 13 ] An exclusion proceeding grounded on danger to the national security, however, presents different considerations; neither the rationale nor the statutory authority for such release exists. [ Footnote 14 ] Ordinarily, to admit an alien barred from entry on security grounds nullifies the very purpose of the exclusion proceeding; Congress in 1950 declined to include such authority in the statute. [ Footnote 15 ] That exclusion by the United States plus other nations' inhospitality results in present hardship cannot be ignored. But, the times being what they are, Congress may well have felt that other countries ought not shift the onus to us; that an alien in respondent's position is no more ours than theirs. Whatever our individual estimate of that policy and the fears on which it rests, respondent's right to enter the United States depends on the congressional will, and courts cannot substitute their judgment for the legislative mandate. Harisiades v. Shaughnessy, 342 U. S. 580 , 342 U. S. 590 -591 (1952). Reversed. [ Footnote 1 ] 101 F. Supp. 66 (1951). [ Footnote 2 ] 195 F.2d 964 (1952). [ Footnote 3 ] 101 F. Supp. at 67. [ Footnote 4 ] 101 F. Supp. at 67, 70; R. 26-27. [ Footnote 5 ] 195 F.2d at 967, 968. [ Footnote 6 ] Id. 195 F.2d at 970. [ Footnote 7 ] Section 1 of the Act of May 22, 1918, c. 81, 40 Stat. 559, as amended by the Act of June 21, 1941, c. 210, § 1, 55 Stat. 252, 22 U.S.C. § 223, provides in pertinent part: "When the United States is at war or during the existence of the national emergency proclaimed by the President on May 27, 1941, or as to aliens whenever there exists a state of war between, or among, two or more states, and the President shall find that the interests of the United States require that restrictions and prohibitions in addition to those provided otherwise than by this Act be imposed upon the departure of persons from and their entry into the United States, and shall make public proclamation thereof, it shall, until otherwise ordered by the President or Congress, be unlawful --" "(a) For any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President shall prescribe. . . ." That authorization has been extended to cover the dates relevant in this case. 66 Stat. 54, 57, 96, 137, 330, 332. Pursuant to that authority, Presidential Proclamation No. 2523, 6 Fed.Reg. 5821, as promulgated in 1941, in part provided: "No alien shall be permitted to enter the United States if it appears to the satisfaction of the Secretary of State that such entry would be prejudicial to the interests of the United States as provided in the rules and regulations hereinbefore authorized to be prescribed by the Secretary of State, with the concurrence of the Attorney General." The Secretary of State, with the concurrence of the Attorney General, issued applicable regulations codified as Part 175 of 8 CFR. Section 175.53 defines eleven categories of aliens whose entry is "deemed prejudicial to the interests of the United States." That delegation of authority has been upheld. Knauff v. Shaughnessy, 338 U. S. 537 (1950). The regulations were ratified and confirmed by Presidential Proclamation No. 2850, 14 Fed.Reg. 5173, promulgated August 17, 1949. [ Footnote 8 ] 8 CFR § 175.57 provides: "§ 175.57 Entry not permitted in special cases. (a) Any alien, even though in possession of a permit to enter, or exempted under §§ 175.41 to 175.62, inclusive, from obtaining a permit to enter, may be excluded temporarily if, at the time he applies for admission at a port of entry, it appears that he is or may be excludable under one of the categories set forth in § 175.53. The official excluding the alien shall immediately report the facts to the head of his department, who will communicate such report to the Secretary of State. Any alien so temporarily excluded by an official of the Department of Justice shall not be admitted, and shall be excluded and deported unless the Attorney General, after consultation with the Secretary of State, is satisfied that the admission of the alien would not be prejudicial to the interests of the United States. Any alien so temporarily excluded by any other official shall not be admitted, and shall be excluded and deported, unless the Secretary of State is satisfied that the admission of the alien would not be prejudicial to the interests of the United States." "(b) In the case of an alien temporarily excluded by an official of the Department of Justice on the ground that he is, or may be, excludable under one or more of the categories set forth in § 175.53, no hearing by a board of special inquiry shall be held until after the case is reported to the Attorney General and such a hearing is directed by the Attorney General or his representative. In any special case, the alien may be denied a hearing before a board of special inquiry and an appeal from the decision of that board if the Attorney General determines that he is excludable under one of the categories set forth in § 175.53 on the basis of information of a confidential nature, the disclosure of which would be prejudicial to the public interest." [ Footnote 9 ] See 8 U.S.C. § 210. Of course, neither a reentry permit, issuable upon proof of prior lawful admission to the United States, § 210(b), nor an immigration visa entitles an otherwise inadmissible alien to entry. §§ 210(f), 202(g). An immigrant is not unaware of this; § 202(g) directs those facts to be "printed conspicuously upon every immigration visa." For a recent study of entry procedures with recommendations, see Report of the President's Commission on Immigration and Naturalization (1953), c. 10. [ Footnote 10 ] 8 U.S.C. § 707; United States v. Larsen, 165 F.2d 433 (1947). [ Footnote 11 ] 8 U.S.C. § 151. [ Footnote 12 ] 8 U.S.C. §§ 151. [ Footnote 13 ] 8 U.S.C. (Supp. V) § 156. We there noted that "the problem of habeas corpus after unusual delay in deportation hearings is not involved in this case." 342 U.S. at 342 U. S. 546 . (Emphasis added.) [ Footnote 14 ] 8 U.S.C. § 154 permits temporary suspension of deportation of excluded aliens whose testimony is needed on behalf of the United States. Manifestly, respondent does not fall within that class. While the essence of that provision is retained in § 237(d) of the Immigration and Nationality Act of 1952, 66 Stat. 202, § 212(d)(5) of that Act, 66 Stat. 188, vests new and broader discretion in the Attorney General. Cf. 8 U.S.C. §§ 136(p, q),; 8 U.S.C. (Supp. V) § 137-5(a, b). Those provisions are not now here. [ Footnote 15 ] See S.Rep. No. 1515, 81st Cong., 2d Sess. 643-644. MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS concurs, dissenting. Mezei came to this country in 1923 and lived as a resident alien in Buffalo, New York, for twenty-ive years. Page 345 U. S. 217 He made a trip to Europe in 1948, and was stopped at our shore on his return in 1950. Without charge of or conviction for any crime, he was for two years held a prisoner on Ellis Island by order of the Attorney General. Mezei sought habeas corpus in the District Court. He wanted to go to his wife and home in Buffalo. The Attorney General defended the imprisonment by alleging that it would be dangerous to the Nation's security to let Mezei go home even temporarily on bail. Asked for proof of this, the Attorney General answered the judge that all his information was "of a confidential nature" -- so much so that telling any of it or even telling the names of any of his secret informers would jeopardize the safety of the Nation. Finding that Mezei's life as a resident alien in Buffalo had been "unexceptional," and that no facts had been proven to justify his continued imprisonment, the District Court granted bail. The Court of Appeals approved. Now this Court orders Mezei to leave his home and go back to his island prison to stay indefinitely, maybe for life. MR. JUSTICE JACKSON forcefully points out the danger in the Court's holding that Mezei's liberty is completely at the mercy of the unreviewable discretion of the Attorney General. I join MR. JUSTICE JACKSON in the belief that Mezei's continued imprisonment without a hearing violates due process of law. No society is free where government makes one person's liberty depend upon the arbitrary will of another. Dictatorships have done this since time immemorial. They do now. Russian laws of 1934 authorized the People's Commissariat to imprison, banish, and exile Russian citizens as well as "foreign subjects who are socially dangerous." * Hitler's secret police were Page 345 U. S. 218 given like powers. German courts were forbidden to make any inquiry whatever as to the information on which the police acted. Our Bill of Rights was written to prevent such oppressive practices. Under it, this Nation has fostered and protected individual freedom. The Founders abhorred arbitrary one-an imprisonments. Their belief was -- our constitutional principles are -- that no person of any faith, rich or poor, high or low, native or foreigner, white or colored, can have his life, liberty or property taken "without due process of law." This means to me that neither the federal police nor federal prosecutors nor any other governmental official, whatever his title, can put or keep people in prison without accountability to courts of justice. It means that individual liberty is too highly prized in this country to allow executive officials to imprison and hold people on the basis of information kept secret from courts. It means that Mezei should not be deprived of his liberty indefinitely except as the result of a fair open court hearing in which evidence is appraised by the court, not by the prosecutor. * Decree of the Central Executive Committee and Council of People's Commissars, U.S.S.R., 5 Nov.1934; Collection of Laws, U.S.S.R., 1935, No. 11, Art. 84. Hazard, Materials on Soviet Law, (194), 16. See Hazard, Reforming Soviet Criminal Law, 29 Jour.Crim.Law and Crim. 157, 168-169 (1939). See also Berman, Principles of Soviet Criminal Law, 56 Yale L.J. 803 (1947). MR. JUSTICE JACKSON, whom MR. JUSTICE FRANKFURTER joins, dissenting. Fortunately it still is startling, in this country, to find a person held indefinitely in executive custody without accusation of crime or judicial trial. Executive imprisonment has been considered oppressive and lawless since John at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint. Page 345 U. S. 219 Under the best tradition of Anglo-merican law, courts will not deny hearing to an unconvicted prisoner just because he is an alien whose keep, in legal theory, is just outside our gates. Lord Mansfield, in the celebrated case holding that slavery was unknown to the common law of England, ran his writ of habeas corpus in favor of an alien, an African Negro slave, and against the master of a ship at anchor in the Thames. [ Footnote 2/1 ] I What is our case? [ Footnote 2/2 ] In contemplation of law, I agree, it is that of an alien who asks admission to the country. Concretely, however, it is that of a lawful and law-biding inhabitant of our country for a quarter of a century, long ago admitted for permanent residence, who seeks to return home. After a foreign visit to his aged and ailing mother that was prolonged by disturbed conditions of Eastern Europe, he obtained a visa for admission issued by our consul, and returned to New York. There, the Attorney General refused to honor his documents, and turned him back as a menace to this Nation's security. This man, who seems to have led a life of unrelieved insignificance, must have been astonished to find himself suddenly putting the Government of the United States in such fear that it was afraid to tell him why it was afraid of him. He was shipped and reshipped to France, which twice refused him landing. Great Britain declined, and no other European country has been found willing to open its doors to him. Twelve countries Page 345 U. S. 220 of the American Hemisphere refused his applications. Since we proclaimed him a Samson who might pull down the pillars of our temple, we should not be surprised if peoples less prosperous, less strongly established, and less stable feared to take him off our timorous hands. With something of a record as an unwanted man, neither his efforts nor those of the United States Government any longer promise to find him an abiding place. For nearly two years, he was held in custody of the immigration authorities of the United States at Ellis Island, and, if the Government has its way, he seems likely to be detained indefinitely, perhaps for life, for a cause known only to the Attorney General. Is respondent deprived of liberty? The Government answers that he was "transferred to Ellis Island on August 1, 1950 for safekeeping," and "is not being detained in the usual sense, but is in custody solely to prevent him from gaining entry into the United States in violation of law. He is free to depart from the United States to any country of his choice." Government counsel ingeniously argued that Ellis Island is his "refuge" whence he is free to take leave in any direction except west. That might mean freedom, if only he were an amphibian. Realistically, this man is incarcerated by a combination of forces which keeps him as effectually as a prison, the dominant and proximate of these forces being the United States immigration authority. It overworks legal fiction to say that one is free in law when, by the commonest of common sense, he is bound. Despite the impeccable legal logic of the Government's argument on this point, it leads to an artificial and unreal conclusion. [ Footnote 2/3 ] We must Page 345 U. S. 221 regard this alien as deprived of liberty, and the question is whether the deprivation is a denial of due process of law. The Government, on this point, argues that "no alien has any constitutional right to entry into the United States;" that "the alien has only such rights as Congress sees fit to grant in exclusion proceedings;" that "the so-alled detention is still merely a continuation of the exclusion which is specifically authorized by Congress;" that, since "the restraint is not incidental to an order [of exclusion], but is itself the effectuation of the exclusion order, there is no limit to its continuance" other than statutory, which means no limit at all. The Government all but adopts the words of one of the officials responsible for the administration of this Act who testified before a congressional committee as to an alien applicant, that "He has no rights." [ Footnote 2/4 ] Page 345 U. S. 222 The interpretations of the Fifth Amendment's command that no person shall be deprived of life, liberty or property without due process of law come about to this: reasonable general legislation reasonably applied to the individual. The question is whether the Government's detention of respondent is compatible with these tests of substance and procedure. II Substantive Due Process Substantively, due process of law renders what is due to a strong state as well as to a free individual. It tolerates all reasonable measures to insure the national safety, and it leaves a large at times a potentially dangerous latitude for executive judgment as to policies and means. [ Footnote 2/5 ] After all, the pillars which support our liberties are the three branches of government, and the burden could not be carried by our own power alone. Substantive due process will always pay a high degree of deference to congressional and executive judgment, especially when they concur, as to what is reasonable policy under conditions of particular times and circumstances. Close to the maximum of respect is due from the judiciary to the political departments in policies affecting security and alien exclusion. Harisiades v. Shaughnessy, 342 U. S. 580 . Due process does not invest any alien with a right to enter the United States, nor confer on those admitted Page 345 U. S. 223 the right to remain against the national will. Nothing in the Constitution requires admission or sufferance of aliens hostile to our scheme of government. Nor do I doubt that due process of law will tolerate some impounding of an alien where it is deemed essential to the safety of the state. Even the resident, friendly alien may be subject to executive detention without bail, for a reasonable period, pending consummation of deportation arrangements. Carlson v. Landon, 342 U. S. 524 . The alien enemy may be confined or his property seized and administered because hostility is assumed from his continued allegiance to a hostile state. Cf. Ludecke v. Watkins, 335 U. S. 160 ; Zittman v. McGrath, 341 U. S. 446 , and 341 U. S. 341 U.S. 471. If due process will permit confinement of resident aliens friendly in fact, because of imputed hostility, I should suppose one personally at war with our institutions might be confined even though his state is not at war with us. In both cases, the underlying consideration is the power of our system of government to defend itself, and changing strategy of attack by infiltration may be met with changed tactics of defense. Nor do I think the concept of due process so paralyzing that it forbids all detention of an alien as a preventive measure against threatened dangers, and makes confinement lawful only after the injuries have been suffered. In some circumstances, even the citizen in default of bail has long been subject to federal imprisonment for security of the peace and good behavior. [ Footnote 2/6 ] While it is usually applied for express verbal threats, no reason is known to me why the power is not the same in the case of threats inferred by proper procedures from circumstances. The British, with whom due process is a habit, if not a written Page 345 U. S. 224 constitutional dictum, permit a court in a limited class of cases to pass a "sentence of preventive detention" if satisfied that it is expedient for the protection of the public. [ Footnote 2/7 ] I conclude that detention of an alien would not be inconsistent with substantive due process, provided -- and this is where my dissent begins -- he is accorded procedural due process of law. III . Procedural Due Process Procedural fairness, if not all that originally was meant by due process of law, is at least what it most uncompromisingly requires. Procedural due process is more elemental and less flexible than substantive due process. It yields less to the times, varies less with conditions, and defers much less to legislative judgment. Insofar as it is technical law, it must be a specialized responsibility within the competence of the judiciary on which they do not bend before political branches of the Government, as they should on matters of policy which compromise substantive law. If it be conceded that, in some way, this alien could be confined, does it matter what the procedure is? Only the untaught layman or the charlatan lawyer can answer that procedures matter not. Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. Indeed, if put to the choice, one might well prefer to live under Soviet substantive law applied in good faith by our common law procedures than under our substantive law enforced by Soviet procedural practices. Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those Page 345 U. S. 225 blunders which leave lasting stains on a system of justice, but which are bound to occur on ex parte consideration. Cf. Knauff v. Shaughnessy, 338 U. S. 537 , which was a near miss, saved by further administrative and congressional hearings from perpetrating an injustice. See Knauff, The Ellen Knauff Story (New York) 1952. Our law may, and rightly does, place more restrictions on the alien than on the citizen. But basic fairness in hearing procedures does not vary with the status of the accused. If the procedures used to judge this alien are fair and just, no good reason can be given why they should not be extended to simplify the condemnation of citizens. If they would be unfair to citizens, we cannot defend the fairness of them when applied to the more helpless and handicapped alien. This is at the root of our holdings that the resident alien must be given a fair hearing to test an official claim that he is one of a deportable class. Wong Yang Sung v. McGrath, 339 U. S. 33 . The most scrupulous observance of due process, including the right to know a charge, to be confronted with the accuser, to cross-xamine informers, and to produce evidence in one's behalf, is especially necessary where the occasion of detention is fear of future misconduct, rather than crimes committed. Both the old proceeding by which one may be bound to keep the peace and the newer British "preventive detention" are safeguarded with full rights to judicial hearings for the accused. On the contrary, the Nazi regime in Germany installed a system of "protective custody" by which the arrested could claim no judicial or other hearing process, [ Footnote 2/8 ] and, as a result the concentration Page 345 U. S. 226 camps were populated with victims of summary executive detention for secret reasons. That is what renders Communist justice such a travesty. There are other differences, to be sure, between authoritarian procedure and common law, but differences in the process of administration make all the difference between a reign of terror and one of law. Quite unconsciously, I am sure, the Government's theory of custody for "safekeeping" without disclosure to the victim of charges, evidence, informers, or reasons, even in an administrative proceeding, has unmistakable overtones of the "protective custody" of the Nazis more than of any detaining procedure known to the common law. Such a practice, once established with the best of intentions, will drift into oppression of the disadvantaged in this country as surely as it has elsewhere. That these apprehensive surmises are not "such stuff as dreams are made on" appears from testimony of a top immigration official concerning an applicant that "He has no rights." Because the respondent has no right of entry, does it follow that he has no rights at all? Does the power to exclude mean that exclusion may be continued or effectuated by any means which happen to seem appropriate to the authorities? It would effectuate his exclusion to eject him bodily into the sea or to set him adrift in a rowboat. Page 345 U. S. 227 Would not such measures be condemned judicially as a deprivation of life without due process of law? Suppose the authorities decide to disable an alien from entry by confiscating his valuables and money. Would we not hold this a taking of property without due process of law? Here we have a case that lies between the taking of life and the taking of property; it is the taking of liberty. It seems to me that this, occurring within the United States or its territorial waters, may be done only by proceedings which meet the test of due process of law. Exclusion of an alien without judicial hearing, of course, does not deny due process when it can be accomplished merely by turning him back on land or returning him by sea. But when indefinite confinement becomes the means of enforcing exclusion, it seems to me that due process requires that the alien be informed of its grounds and have a fair chance to overcome them. This is the more due him when he is entrapped into leaving the other shore by reliance on a visa which the Attorney General refuses to honor. It is evident that confinement of respondent no longer can be justified as a step in the process of turning him back to the country whence he came. Confinement is no longer ancillary to exclusion; it can now be justified only as the alternative to normal exclusion. It is an end in itself. The Communist conspiratorial technique of infiltration poses a problem which sorely tempts the Government to resort to confinement of suspects on secret information secretly judged. I have not been one to discount the Communist evil. But my apprehensions about the security of our form of government are about equally aroused by those who refuse to recognize the dangers of Communism and those who will not see danger in anything else. Page 345 U. S. 228 Congress has ample power to determine whom we will admit to our shores and by what means it will effectuate its exclusion policy. The only limitation is that it may not do so by authorizing United States officers to take without due process of law the life, the liberty, or the property of an alien who has come within our jurisdiction, and that means he must meet a fair hearing with fair notice of the charges. [ Footnote 2/9 ] It is inconceivable to me that this measure of simple justice and fair dealing would menace the security of this country. No one can make me believe that we are that far gone. [ Footnote 2/1 ] Somersett's Case, 20 How.St.Tr. 1; 2 Campbell, Lives of the Chief Justices, 418; Fiddes, Lord Mansfield and The Sommersett Case, 50 L.Q.Rev. 499. [ Footnote 2/2 ] I recite facts alleged in the petition for the writ. Since the Government declined to try the case on the merits, I think we must consider the question on well pleaded allegations of the petition. Petitioner might fail to make good on a hearing; the question is, must he fail without one? [ Footnote 2/3 ] Mr. Justice Holmes, for the Court, said in Chin Yow v. United States, 208 U. S. 8 , 208 U. S. 12 -13: "If we regard the petitioner, as in Ju Toy's Case it was said that he should be regarded, as if he had been stopped and kept at the limit of our jurisdiction, 198 U.S. 198 U. S. 263 , still it would be difficult to say that he was not imprisoned, theoretically as well as practically, when to turn him back meant that he must get into a vessel against his wish and be carried to China. The case would not be that of a person simply prevented from going in one direction that he desired and had a right to take, all others being left open to him, a case in which the judges were not unanimous in Bird v. Jones, 7 Q.B. 742. But we need not speculate upon niceties. It is true that the petitioner gains no additional right of entrance by being allowed to pass the frontier in custody for the determination of his case. But, on the question whether he is wrongly imprisoned, we must look at the actual facts. De facto, he is locked up until carried out of the country against his will." [ Footnote 2/4 ] Testimony of Almanza Tripp, an immigration service official, before the Senate Subcommittee on Immigration on February 15, 1950, included the following: "Now, when we have a case of that sort, where central registry contains something derogatory of that nature, I do not believe we should make a finding of admissibility until it has been disproved. But the evidence that they had in central registry would not be sufficient for our Service to exclude by the normal board of special inquiry proceedings, because those proceedings must be conducted in a manner in which they could not be subject to attack in a court of the United States." "You may say that it is unfair to the applicant not to give him that protection, but you must remember that the applicant is an applicant. He has no rights. . . ." (Hearings before the Subcommittee on Amendments to the Displaced Persons Act, Senate Committee on the Judiciary, 81st Cong., 1st and 2d Sessions 665.) [ Footnote 2/5 ] Cf. Toyosaburo Korematsu v. United States, 323 U. S. 214 . [ Footnote 2/6 ] 18 U.S.C. § 3043; cf. Criminal Code of New York, 66 McKinney's Consolidated Laws, c. II, § 84. [ Footnote 2/7 ] Criminal Justice Act, 1948, § 21(2). [ Footnote 2/8 ] Hermann Goering, on cross-xamination, made the following statements: ". . . [T]hose who had committed some act of treason against the new state, or those who might be proved to have committed such an act, were naturally turned over to the courts. The others, however, of whom one might expect such acts, but who had not yet committed them, were taken into protective custody, and these were the people who were taken to concentration camps. . . . Likewise, if, for political reasons . . . , someone was taken into protective custody, that is, purely for reasons of state, this could not be reviewed or stopped by any court." He claimed (though the claim seemed specious) that, twenty-our hours after being put in concentration camps, they were informed of the reasons, and, after forty-ight hours, were allowed an attorney. "But this by no means rescinded my order that a review was not permitted by the courts of a politically necessary measure of protective custody. These people were simply to be given an opportunity of making a protest." 9 International Military Tribunal Proceedings 420-421 (March 18, 1946). [ Footnote 2/9 ] The trial court sought to reconcile due process for the individual with claims of security by suggesting that the Attorney General disclose in camera enough to enable a judicial determination of the legality of the confinement. The Attorney General refused . I do not know just how an in camera proceeding would be handled in this kind of case. If respondent, with or without counsel, were present, disclosures to them might well result in disclosures by them. If they are not allowed to be present, it is hard to see how it would answer the purpose of testing the Government's case by cross-xamination or counter-vidence, which is what a hearing is for. The questions raised by the proposal need not be discussed, since they do not call for decision here.

The Supreme Court ruled that the Attorney General's decision to exclude an alien from entering the United States without a hearing is lawful and cannot be overruled by the courts. The alien, a resident of the US, traveled to Hungary and upon his return was deemed a security risk and excluded from entry. The Court held that the Attorney General has the authority to make such determinations and that the alien's prior residence does not grant him additional rights. The Court also upheld the Attorney General's decision to not disclose the confidential information that led to the exclusion.

Immigration & National Security

Graham v. Richardson

https://supreme.justia.com/cases/federal/us/403/365/

U.S. Supreme Court Graham v. Department of Pub. Welfare, 403 U.S. 365 (1971) Graham v. Department of Pub. Welfare No. 609 Argued March 22, 1971 Decided June 14, 1971 403 U.S. 365 ast|>* 403 U.S. 365 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Syllabus State statutes, like the Arizona and Pennsylvania statutes here involved, that deny welfare benefits to resident aliens or to aliens who have not resided in the United States for a specified number of years are violative of the Equal Protection Clause and encroach upon the exclusive federal power over the entrance and residence of aliens; and there is no authorization for Arizona's 15-year durational residency requirement in § 1402(b) of the Social Security Act. Pp. 403 U. S. 370 -383. 313 F. Supp. 34 and 321 F. Supp. 250 , affirmed. BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACK, DOUGLAS, BRENNAN, STEWART, WHITE, and MARSHALL, JJ., joined. HARLAN, J., filed a statement joining in the judgment and in Parts III and IV of the Court's opinion, post, p. 403 U. S. 383 . Page 403 U. S. 366 MR. JUSTICE BLACKMUN delivered the opinion of the Court. These are welfare cases. They provide yet another aspect of the widening litigation in this area. [ Footnote 1 ] The issue here is whether the Equal Protection Clause of the Fourteenth Amendment prevents a State from conditioning welfare benefits either (a) upon the beneficiary's possession of United States citizenship, or (b) if the beneficiary is an alien, upon his having resided in this country for a specified number of years. The facts are not in dispute. I No. 609. This case, from Arizona, concerns the State's participation in federal categorical assistance programs. These programs originate with the Social Security Act Page 403 U. S. 367 of 1935, 49 Stat. 620, as amended, 42 U.S.C. c. 7. They are supported in part by federal grants-in-aid, and are administered by the States under federal guidelines. Arizona Rev.Stat.Ann., Tit. 46, Art. 2, as amended, provides for assistance to persons permanently and totally disabled (APTD). See 42 U.S.C. §§ 1351-1355. Arizona Rev.Stat.Ann. § 46-233 (Supp. 1970-1971), as amended in 1962, reads: "A. No person shall be entitled to general assistance who does not meet and maintain the following requirements: " "1. Is a citizen of the United States, or has resided in the United States a total of fifteen years. . . ." A like eligibility provision conditioned upon citizenship or durational residence appears in § 46-252(2), providing old-age assistance, and in § 46-272(4), providing assistance to the needy blind. See 42 U.S.C. §§ 1201-1206, 1381-1385. Appellee Carmen Richardson, at the institution of this suit in July, 1969, was 64 years of age. She is a lawfully admitted resident alien. She emigrated from Mexico in 1956, and, since then, has resided continuously in Arizona. She became permanently and totally disabled. She also met all other requirements for eligibility for APTD benefits except the 15-year residency specified for aliens by § 46-233(A)(1). She applied for benefits, but was denied relief solely because of the residency provision. Mrs. Richardson instituted her class action [ Footnote 2 ] in the District of Arizona against the Commissioner of the State's Department of Public Welfare seeking declaratory relief, an injunction against the enforcement of §§ 46-233(A)(1), Page 403 U. S. 368 4252(2), and 46-272(4), and the award of amounts allegedly due. She claimed that Arizona's alien residency requirements violate the Equal Protection Clause and the constitutional right to travel; that they conflict with the Social Security Act, and are thus overborne by the Supremacy Clause; and that the regulation of aliens has been preempted by Congress. The three-judge court upheld Mrs. Richardson's motion for summary judgment on equal protection grounds. Richardson v. Graham, 313 F. Supp. 34 (Ariz.1970). It did so in reliance on this Court's opinions in Takahashi v. Fish & Game Comm'n, 334 U. S. 410 (1948), and Shapiro v. Thompson, 394 U. S. 618 (1969). The Commissioner appealed. The judgment was stayed as to all parties plaintiff other than Mrs. Richardson. Probable jurisdiction was noted. 400 U.S. 956 (1970). No. 727. This case, from Pennsylvania, concerns that portion of a general assistance program that is not federally supported. The relevant statute is § 432(2) of the Pennsylvania Public Welfare Code, Pa.Stat.Ann., Tit. 62, § 432(2) (1968), [ Footnote 3 ] originally enacted in 1939. It provides that those eligible for assistance shall be (1) needy persons who qualify under the federally supported categorical assistance programs, and (2) those other needy persons who are citizens of the United States Assistance to the latter group is funded wholly by the Commonwealth. Page 403 U. S. 369 Appellee Elsie Mary Jane Leger is a lawfully admitted resident alien. She was born in Scotland in 1937. She came to this country in 1965 at the age of 28 under contract for domestic service with a family in Havertown. She has resided continuously in Pennsylvania since then, and has been a taxpaying resident of the Commonwealth. In 1967, she left her domestic employment to accept more remunerative work in Philadelphia. She entered into a common law marriage with a United States citizen. In 1969, illness forced both Mrs. Leger and her husband to give up their employment. They applied for public assistance. Each was ineligible under the federal programs. Mr. Leger, however, qualified for aid under the state program. Aid to Mrs. Leger was denied because of her alienage. The monthly grant to Mr. Leger was less than the amount determined by both federal and Pennsylvania authorities as necessary for a minimum standard of living in Philadelphia for a family of two. Mrs. Leger instituted her class action [ Footnote 4 ] in the Eastern District of Pennsylvania against the Executive Director of the Philadelphia County Board of Assistance and the Secretary of the Commonwealth's Department of Public Welfare. She sought declaratory relief, an injunction against the enforcement of the restriction of § 432(2), and the ordering of back payments wrongfully withheld. She obtained a temporary restraining order preventing the defendants from continuing to deny her assistance. She then began to receive, and still receives, with her husband, a public assistance grant. Appellee Beryl Jervis was added as a party plaintiff to Page 403 U. S. 370 the Leger action. She was born in Panama in 1912, and is a citizen of that country. In March, 1968, at the age of 55, she came to the United States to undertake domestic work under contract in Philadelphia. She has resided continuously in Pennsylvania since then, and has been a taxpaying resident of the Commonwealth. After working as a domestic for approximately one year, she obtained other, more remunerative, work in the city. In February, 1970 illness forced her to give up her employment. She applied for aid. However, she was ineligible for benefits under the federally assisted programs, and she was denied general assistance solely because of her alienage. Her motion for immediate relief through a temporary restraining order was denied. It was stipulated that "the denial of General Assistance to aliens otherwise eligible for such assistance causes undue hardship to them by depriving them of the means to secure the necessities of life, including food, clothing and shelter," and that "the citizenship bar to the receipt of General Assistance in Pennsylvania discourages continued residence in Pennsylvania of indigent resident aliens, and causes such needy persons to remove to other States which will meet their needs." The three-judge court, one judge dissenting, ruled that § 432(2) was violative of the Equal Protection Clause, and enjoined its further enforcement. Leer v. Sailer, 321 F. Supp. 250 (ED Pa.1970). The defendants appealed. Probable jurisdiction was noted. 400 U.S. 956. II The appellants argue initially that the States, consistent with the Equal Protection Clause, may favor United States citizens over aliens in the distribution of welfare benefits. It is said that this distinction involves no "invidious discrimination" such as was condemned in Page 403 U. S. 371 King v. Smith, 392 U. S. 309 (1968), for the State is not discriminating with respect to race or nationality. The Fourteenth Amendment provides, "[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." It has long been settled, and it is not disputed here, that the term "person" in this context encompasses lawfully admitted resident aliens, as well as citizens of the United States, and entitles both citizens and aliens to the equal protection of the laws of the State in which they reside. Yick Wo v. Hopkins, 118 U. S. 356 , 118 U. S. 369 (1886); Truax v. Raich, 239 U. S. 33 , 239 U. S. 39 (1915); Takahashi v. Fish & Game Comm'n, 334 U.S. at 334 U. S. 420 . Nor is it disputed that the Arizona and Pennsylvania statutes in question create two classes of needy persons, indistinguishable except with respect to whether they are or are not citizens of this country. Otherwise qualified United States citizens living in Arizona are entitled to federally funded categorical assistance benefits without regard to length of national residency, but aliens must have lived in this country for 15 years in order to qualify for aid. United States citizens living in Pennsylvania, unable to meet the requirements for federally funded benefits, may be eligible for state supported general assistance, but resident aliens as a class are precluded from that assistance. Under traditional equal protection principles, a State retains broad discretion to classify as long as its classification has a reasonable basis. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 , 220 U. S. 78 (1911); Williamson v. Lee Optical Co., 348 U. S. 483 , 348 U. S. 489 (1955); Morey v. Doud, 354 U. S. 457 , 354 U. S. 465 (1957); McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 425 -427 (1961). This is so in "the area of economics and social welfare." Dandridge v. Williams, 397 U. S. 471 , 397 U. S. 485 (1970). But the Court's decisions Page 403 U. S. 372 have established that classifications based on alienage, like those based on nationality [ Footnote 5 ] or race, [ Footnote 6 ] are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of a "discrete and insular" minority ( see United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 152 -153, n. 4 (1938)) for whom such heightened judicial solicitude is appropriate. Accordingly, it was said in Takahashi, 334 U.S. at 334 U. S. 420 , that "the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits." Arizona and Pennsylvania seek to justify their restrictions on the eligibility of aliens for public assistance solely on the basis of a State's "special public interest" in favoring its own citizens over aliens in the distribution of limited resources such as welfare benefits. It is true that this Court on occasion has upheld state statutes that treat citizens and noncitizens differently, the ground for distinction having been that such laws were necessary to protect special interests of the State or its citizens. Thus, in Truax v. Raich, 239 U. S. 33 (1915), the Court, in striking down an Arizona statute restricting the employment of aliens, emphasized that "[t]he discrimination defined by the act does not pertain to the regulation or distribution of the public domain, or of the common property or resources of the people of the State, the enjoyment of which may be limited to its citizens as against both aliens and the citizens of other States." 239 U.S. at 239 U. S. 390 . And in Crane v. New York , 239 U.S. Page 403 U. S. 373 195 (1915), the Court affirmed the judgment in People v. Crane, 214 N.Y. 154, 108 N.E. 427 (1915), upholding a New York statute prohibiting the employment of aliens on public works projects. The New York court's opinion contained Mr. Justice Cardozo's well known observation: "To disqualify aliens is discrimination indeed, but not arbitrary discrimination, for the principle of exclusion is the restriction of the resources of the state to the advancement and profit of the members of the state. Ungenerous and unwise such discrimination may be. It is not for that reason unlawful. . . . The state, in determining what use shall be made of its own moneys, may legitimately consult the welfare of its own citizens, rather than that of aliens. Whatever is a privilege, rather than a right, may be made dependent upon citizenship. In its war against poverty, the state is not required to dedicate its own resources to citizens and aliens alike." 214 N.Y. at 161, 164, 108 N.E. at 429, 430. See Heim v. McCall, 239 U. S. 175 (1915); Ohio ex rel. Clarke v. Deckebach, 274 U. S. 392 (1927). On the same theory, the Court has upheld statutes that, in the absence of overriding treaties, limit the right of noncitizens to engage in exploitation of a State's natural resources, [ Footnote 7 ] restrict the devolution of real property to aliens, [ Footnote 8 ] or deny to aliens the right to acquire and own land. [ Footnote 9 ] Page 403 U. S. 374 Takahashi v. Fish & Game Comm'n, 334 U. S. 410 (1948), however, cast doubt on the continuing validity of the special public interest doctrine in all contexts. There, the Court held that California's purported ownership of fish in the ocean off its shores was not such a special public interest as would justify prohibiting aliens from making a living by fishing in those waters while permitting all others to do so. It was said: "The Fourteenth Amendment and the laws adopted under its authority thus embody a general policy that all persons lawfully in this country shall abide 'in any state' on an equality of legal privileges with all citizens under nondiscriminatory laws." 334 U.S. at 334 U. S. 420 . Whatever may be the contemporary vitality of the special public interest doctrine in other contexts after Takahashi, we conclude that a State's desire to preserve limited welfare benefits for its own citizens is inadequate to justify Pennsylvania's making noncitizens ineligible for public assistance, and Arizona's restricting benefits to citizens and longtime resident aliens. First, the special public interest doctrine was heavily grounded on the notion that "[w]hatever is a privilege, rather than a right, may be made dependent upon citizenship." People v. Crane, 214 N.Y. at 164, 108 N.E. at 430. But this Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a "right" or as a "privilege." Sherbert v. Verner, 374 U. S. 398 , 374 U. S. 404 (1963); Shapiro v. Thompson, 394 U.S. at 394 U. S. 627 n. 6; Goldberg v. Kelly, 397 U. S. 254 , 397 U. S. 262 (1970); Bell v. Burson, 402 U. S. 535 , 402 U. S. 539 (1971). Second, as the Court recognized in Shapiro: "[A] State has a valid interest in preserving the fiscal integrity of its programs. It may legitimately attempt to limit its expenditures, whether for public Page 403 U. S. 375 assistance, public education, or any other program. But a State may not accomplish such a purpose by invidious distinctions between classes of its citizens. . . . The saving of welfare costs cannot justify an otherwise invidious classification." 394 U.S. at 394 U. S. 633 . Since an alien, as well as a citizen, is a "person" for equal protection purposes, a concern for fiscal integrity is no more compelling a justification for the questioned classification in these cases than it was in Shapiro. Appellants, however, would narrow the application of Shapiro to citizens by arguing that the right to travel, relied upon in that decision, extends only to citizens and not to aliens. While many of the Court's opinions do speak in terms of the right of "citizens" to travel, [ Footnote 10 ] the source of the constitutional right to travel has never been ascribed to any particular constitutional provision. See Shapiro v. Thompson, 394 U.S. at 394 U. S. 630 n. 8; United States v. Guest, 383 U. S. 745 , 383 U. S. 757 -758 (1966). The Court has never decided whether the right applies specifically to aliens, and it is unnecessary to reach that question here. It is enough to say that the classification involved in Shapiro was subjected to strict scrutiny under the compelling state interest test, not because it was based on any suspect criterion such as race, nationality, or alienage, but because it impinged upon the fundamental right of interstate movement. As was said there, "The waiting period provision denies welfare benefits to otherwise eligible applicants solely because they have recently moved into the jurisdiction. But, in moving from State Page 403 U. S. 376 to State or to the District of Columbia, appellees were exercising a constitutional right, and any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional." 394 U.S. at 394 U. S. 634 . The classifications involved in the instant cases, on the other hand, are inherently suspect, and are therefore subject to strict judicial scrutiny whether or not a fundamental right is impaired. Appellants' attempted reliance on Dandridge v. Williams, 397 U. S. 471 (1970), is also misplaced, since the classification involved in that case (family size) neither impinged upon a fundamental constitutional right nor employed an inherently suspect criterion. We agree with the three-judge court in the Pennsylvania case that the "justification of limiting expenses is particularly inappropriate and unreasonable when the discriminated class consists of aliens. Aliens, like citizens, pay taxes, and may be called into the armed forces. Unlike the short-term residents in Shapiro, aliens may live within a state for many years, work in the state and contribute to the economic growth of the state." 321 F. Supp. at 253. See also Purdy & Fitzpatrick v. California, 71 Cal. 2d 566 , 581-582, 456 P.2d 645, 656 (1969). There can be no "special public interest" in tax revenues to which aliens have contributed on an equal basis with the residents of the State. Accordingly, we hold that a state statute that denies welfare benefits to resident aliens and one that denies them to aliens who have not resided in the United States for a specified number of years violate the Equal Protection Clause. III An additional reason why the state statutes at issue in these cases do not withstand constitutional scrutiny Page 403 U. S. 377 emerges from the area of federal state relations. The National Government has "broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization." Takahashi v. Fish & Game Comm'n, 334 U.S. at 334 U. S. 419 ; Hines v. Davidowitz, 312 U. S. 52 , 312 U. S. 66 (1941); see also Chinese Exclusion Case, 130 U. S. 581 (1889); United States ex rel. Turner v. Williams, 194 U. S. 279 (1904); Fong Yue Ting v. United States, 149 U. S. 698 (1893); Harisiades v. Shaughnessy, 342 U. S. 580 (1952). Pursuant to that power, Congress has provided, as part of a comprehensive plan for the regulation of immigration and naturalization, that "[a]liens who are paupers, professional beggars, or vagrants," or aliens who "are likely at any time to become public charges," shall be excluded from admission into the United States, 8 U.S.C. §§ 1182(a)(8) and 1182(a)(15), and that any alien lawfully admitted shall be deported who "has within five years after entry become a public charge from causes not affirmatively shown to have arisen after entry. . . ." 8 U.S.C. § 1251(a)(8). Admission of aliens likely to become public charges may be conditioned upon the posting of a bond or cash deposit. 8 U.S.C. § 1183. But Congress has not seen fit to impose any burden or restriction on aliens who become indigent after their entry into the United States. Rather, it has broadly declared: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory . . . to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens. . . ." 42 U.S.C. § 1981. The protection of this statute has been held to extend to aliens, as well as to citizens. Takahashi, 334 U.S. at 334 U. S. 419 n. 7. Moreover, this Court has made it clear that, whatever may be the Page 403 U. S. 378 scope of the constitutional right of interstate travel, aliens lawfully within this country have a right to enter and abide in any State in the Union "on an equality of legal privileges with all citizens under nondiscriminatory laws." Takahashi, 334 U.S. at 334 U. S. 420 . State laws that restrict the eligibility of aliens for welfare benefits merely because of their alienage conflict with these overriding national policies in an area constitutionally entrusted to the Federal Government. In Hines v. Davidowitz, 312 U.S. at 312 U. S. 66 -67, where this Court struck down a Pennsylvania alien registration statute (enacted in 1939, as was the statute under challenge in No. 727) on grounds of federal preemption, it was observed that "where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation . . . states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations." And, in Takahashi, it was said that the States "can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states. State laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with this constitutionally derived federal power to regulate immigration, and have accordingly been held invalid." 334 U.S. at 334 U. S. 419 . Congress has broadly declared as federal policy that lawfully admitted resident aliens who become public charges for causes arising after their entry are not subject to deportation, and that, as long as they are here, they are entitled to the full and equal benefit of all state laws for the security of persons and property. The state statutes Page 403 U. S. 379 at issue in the instant cases impose auxiliary burdens upon the entrance or residence of aliens who suffer the distress, after entry, of economic dependency or public assistance. Alien residency requirements for welfare benefits necessarily operate, as did the residency requirements in Shapiro, to discourage entry into or continued residency in the State. Indeed, in No. 727, the parties stipulated that this was so. In Truax, the Court considered the "reasonableness" of a state restriction on the employment of aliens in terms of its effect on the right of a lawfully admitted alien to live where he chooses: "It must also be said that reasonable classification implies action consistent with the legitimate interests of the State, and it will not be disputed that these cannot be so broadly conceived as to bring them into hostility to exclusive Federal power. The authority to control immigration -- to admit or exclude aliens -- is vested solely in the Federal Government. . . . The assertion of an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the State would be tantamount to the assertion of the right to deny them entrance and abode, for, in ordinary cases, they cannot live where they cannot work. And, if such a policy were permissible, the practical result would be that those lawfully admitted to the country under the authority of the acts of Congress, instead of enjoying in a substantial sense and in their full scope the privileges conferred by the admission, would be segregated in such of the States as chose to offer hospitality." 239 U.S. at 239 U. S. 42 . The same is true here, for, in the ordinary case, an alien, becoming indigent and unable to work, will be unable to live where, because of discriminatory denial of public Page 403 U. S. 380 assistance, he cannot "secure the necessities of life, including food, clothing and shelter." State alien residency requirements that either deny welfare benefits to noncitizens or condition them on longtime residency, equate with the assertion of a right, inconsistent with federal policy, to deny entrance and abode. Since such laws encroach upon exclusive federal power, they are constitutionally impermissible. IV Arizona suggests, finally, that its 15-year durational residency requirement for aliens is actually authorized by federal law. Reliance is placed on § 1402(b) of the Social Security Act of 1935, added by the Act of Aug. 28, 1950, § 351, 64 Stat. 556, as amended, 42 U.S.C. § 1352(b). That section provides: "The Secretary shall approve any plan which fulfills the conditions specified in subsection (a) of this section, except that he shall not approve any plan which imposes, as a condition of eligibility for aid to the permanently and totally disabled under the plan --" " * * * *" "(2) Any citizenship requirement which excludes any citizen of the United States. [ Footnote 11 ] " Page 403 U. S. 381 The meaning of this provision is not entirely clear. On its face, the statute does not affirmatively authorize, much less command, the States to adopt durational residency requirements or other eligibility restrictions applicable to aliens; it merely directs the Secretary not to approve state-submitted plans that exclude citizens of the United States from eligibility. Cf. Shapiro v. Thompson, 394 U.S. at 394 U. S. 638 -641. We have been unable to find in the legislative history of the 1950 amendments any clear indication of congressional intent in enacting § 1402(b). [ Footnote 12 ] The provision appears to have its roots in identical language of the old-age assistance and aid-to-the-blind sections of the Social Security Act of 1935 as originally enacted. 49 Stat. 620, 42 U.S.C. § 302(b); 49 Stat. 645, 42 U.S.C. § 1202(b). The House and Senate Committee Reports expressly state, with reference to old-age assistance, that: "A person shall not be denied assistance on the ground that he has not been a United States citizen for a number of years, if in fact, when he receives assistance, he is a United States citizen. This means that a State may, if it wishes, assist only those who are citizens, but must not insist on their having been born citizens or on their having been naturalized citizens for a specified period of time. [ Footnote 13 ] " Page 403 U. S. 382 It is apparent from this that Congress' principal concern in 1935 was to prevent the States from distinguishing between native-born American citizens and naturalized citizens in the distribution of welfare benefits. It may be assumed that Congress was motivated by a similar concern in 1950 when it enacted § 1402(b). As for the indication in the 1935 Committee Reports that the States, in their discretion, could withhold benefits from noncitizens, certain members of Congress simply may have been expressing their understanding of the law only insofar as it had then developed, that is, before Takahashi was decided. But if § 1402(b), as well as the identical provisions for old-age assistance and aid to the blind, were to be read so as to authorize discriminatory treatment of aliens at the option of the States, Takahashi demonstrates that serious constitutional questions are presented. Although the Federal Government admittedly has broad constitutional power to determine what aliens shall be admitted to the United States, the period they may remain, and the terms and conditions of their naturalization, Congress does not have the power to authorize the individual States to violate the Equal Protection Clause. Shapiro v. Thompson, 394 U.S. at 394 U. S. 641 . Under Art. I, § 8, cl. 4, of the Constitution, Congress' power is to "establish an uniform Rule of Naturalization." A congressional enactment construed so as to permit state legislatures to adopt divergent laws on the subject of citizenship requirements for federally supported welfare programs would appear to contravene this explicit constitutional requirement of uniformity. [ Footnote 14 ] Since "statutes should be construed whenever possible so as to uphold Page 403 U. S. 383 their constitutionality," United States v. Vuitch, 402 U. S. 62 , 402 U. S. 70 (1971), we conclude that § 1402(b) does not authorize the Arizona 15-year national residency requirement. The judgments appealed from are affirmed. It is so ordered. MR. JUSTICE HARLAN joins in Parts III and IV of the Court's opinion, and in the judgment of the Court. * Together with No. 727, Sailer et al. v. Leer et al., on appeal from the United States District Court for the Eastern District of Pennsylvania. [ Footnote 1 ] See, for example, King v. Smith, 392 U. S. 309 (1968); Shapiro v. Thompson, 394 U. S. 618 (1969); Goldberg v. Kelly, 397 U. S. 254 (1970); Rosado v. Wyman, 397 U. S. 397 (1970); Dandridge v. Williams, 397 U. S. 471 (1970); Wyman v. James, 400 U. S. 309 (1971). [ Footnote 2 ] The suit is brought on behalf of appellee and similarly situated Arizona resident aliens who, but for their inability to meet the Arizona residence requirement, are eligible to receive welfare benefits under state-administered federal categorical assistance programs for the permanently and totally disabled, the aged, and the blind. [ Footnote 3 ] § 432. Eligibility "Except as hereinafter otherwise provided . . . needy persons of the classes defined in clauses (1) and (2) of this section shall be eligible for assistance: " "(1) Persons for whose assistance Federal financial participation is available to the Commonwealth. . . ." "(2) Other persons who are citizens of the United States, or who, during the period January 1, 1938, to December 31, 1939, filed their declaration of intention to become citizens. . . ." [ Footnote 4 ] It was stipulated that the class of persons the appellees represent approximates 65 to 70 cases annually. This figure stands in striking contrast to the 585,000 persons in the Commonwealth on categorical assistance and 85,000 on general assistance. Department of Public Welfare Report of Public Assistance, Dec. 31, 1969. [ Footnote 5 ] See Oyama v. California, 332 U. S. 633 , 332 U. S. 644 -646 (1948); Korematsu v. United States, 323 U. S. 214 , 323 U. S. 216 (1944); Hirabayashi v. United States, 320 U. S. 81 , 320 U. S. 100 (1943). [ Footnote 6 ] McLaughlin v. Florida, 379 U. S. 184 , 379 U. S. 191 -192 (1964); Loving v. Virginia, 388 U. S. 1 , 388 U. S. 9 (1967); Bolling v. Sharpe, 347 U. S. 497 , 347 U. S. 499 (1954) [ Footnote 7 ] McCready v. Virginia, 94 U. S. 391 (1877); Patsone v. Pennsylvania, 232 U. S. 138 (1914). [ Footnote 8 ] Howenstein v. Lynham, 100 U. S. 483 (1880); Blythe v. Hinckley, 180 U. S. 333 (1901). [ Footnote 9 ] Terrace v. Thompson, 263 U. S. 197 (1923); Porterfield v. Webb, 263 U. S. 225 (1923); Webb v. O'Brien, 263 U. S. 313 (1923); Frick v. Webb, 263 U. S. 326 (1923); but see Oyama v. California, 332 U. S. 633 (1948). [ Footnote 10 ] E.g., 48 U. S. 7 How. 283, 48 U. S. 492 (1849); Crandall v. Nevada , 6 Wall. 35, 73 U. S. 48 -49 (1868); Twining v. New Jersey, 211 U. S. 78 , 211 U. S. 97 (1908); Edwards v. California, 314 U. S. 160 , 314 U. S. 178 -181 (DOUGLAS, J., concurring), 314 U. S. 183 -185 (Jackson, J., concurring) (1941); Shapiro v. Thompson, 34 U.S. at 34 U. S. 629 ; Oregon v. Mitchell, 400 U. S. 112 , 400 U. S. 285 (opinion of STEWART, J.) (1970). [ Footnote 11 ] Pursuant to his rulemaking power under the Social Security Act, 42 U.S.C. § 1302, the Secretary of Health, Education, and Welfare adopted the following regulations, upon which Arizona also relies: "3720. Requirements for State Plans " "A State plan under titles I, X, XIV, and XVI may not impose, as a condition of eligibility, any citizenship requirement which excludes any citizen of the United States." "3730. Interpretation of Requirement " "State plans need not contain a citizenship requirement. The purpose of IV-3720 is to ensure that, where such a requirement is imposed, an otherwise eligible citizen of the United States, regardless of how (by birth or naturalization) or when citizenship was obtained, shall not be disqualified from receiving aid or assistance under titles I, X, XIV, and XVI." "Where there is an eligibility requirement applicable to noncitizens, State plans may, as an alternative to excluding all noncitizens, provide for qualifying noncitizens, otherwise eligible, who have resided in the United States for a specific number of years." HEW Handbook of Public Assistance Administration, pt. IV. [ Footnote 12 ] H.R.Rep. No. 1300, 81st Cong., 1st Sess., 53, 153-154; S.Rep. No. 1669, 81st Cong., 2d Sess.; H.R.Conf.Rep. No. 2771, 81st Cong., 2d Sess., 118-119. [ Footnote 13 ] H.R.Rep. No. 615, 74th Cong., 1st Sess., 18; S.Rep. No. 628, 74th Cong., 1st Sess., 29. [ Footnote 14 ] We have no occasion to decide whether Congress, in the exercise of the immigration and naturalization power, could itself enact a statute imposing on aliens a uniform nationwide residency requirement as a condition of federally funded welfare benefits.

The Supreme Court ruled that state laws denying welfare benefits to resident aliens or those who have not lived in the US for a set time violate the Equal Protection Clause and federal power over immigration. Arizona's 15-year residency rule was deemed unauthorized by the Social Security Act. The Court affirmed lower court rulings, protecting equal welfare benefits for resident aliens.

Immigration & National Security

Perez v. Brownell

https://supreme.justia.com/cases/federal/us/356/44/

U.S. Supreme Court Perez v. Brownell, 356 U.S. 44 (1958) Perez v. Brownell No. 44 Argued May 1, 1957 Restored to the calendar for reargument June 24, 1957 Reargued October 28, 1957 Decided March 31, 1958 356 U.S. 44 ast|>* 356 U.S. 44 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus In proceedings to deport a person born in the United States, the Government denied that he was an American citizen on the ground that, by voting in a Mexican political election and remaining outside of the United States in wartime to avoid military service, he had lost his citizenship under § 401(e) and (j) of the Nationality Act of 1940, as amended. He sued for a judgment declaring him to be a citizen but was denied relief. Held: It was within the authority of Congress, under its power to regulate the relations of the United States with foreign countries, to provide in § 401(e) that anyone who votes in a foreign political election shall lose his American citizenship, and the judgment is affirmed. Pp. 356 U. S. 45 -62. (a) The power of Congress to regulate foreign relations may reasonably be deemed to include a power to deal with voting by American citizens in foreign political elections, since Congress could find that such activities, because they might give rise to serious international embarrassment, relate to the conduct of foreign relations. Pp. 356 U. S. 57 -60. (b) Since withdrawal of the citizenship of Americans who vote in foreign political elections is reasonably calculated to effect the avoidance of embarrassment in the conduct of foreign relations, such withdrawal is within the power of Congress, acting under the Necessary and Proper Clause. Pp. 356 U. S. 60 -62. (c) There is nothing in the language, the context, the history or the manifest purpose of the Fourteenth Amendment to warrant drawing from it a restriction upon the power otherwise possessed by Congress to withdraw citizenship. P. 356 U. S. 58 , n. 3. Page 356 U. S. 45 (d) No opinion is expressed with respect to the constitutionality of § 401(j) relating to persons who remain outside the United States to avoid military service. P. 356 U. S. 62 . 235 F.2d 364, affirmed. MR. JUSTICE FRANKFURTER delivered the opinion of the Court. Petitioner, a national of the United States by birth, has been declared to have lost his American citizenship by operation of the Nationality Act of 1940, 54 Stat. 1137, as amended by the Act of September 27, 1944, 58 Stat. 746. Section 401 of that Act [ Footnote 1 ] provided that "A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:" " * * * *" "(e) Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory; or" " * * * * Page 356 U. S. 46 " "(j) Departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the President to be a period of national emergency for the purpose of evading or avoiding training and service in the land or naval forces of the United States." He seeks a reversal of the judgment against him on the ground that these provisions were beyond the power of Congress to enact. Petitioner was born in Texas in 1909. He resided in the United States until 1919 or 1920, when he moved with his parents to Mexico, where he lived, apparently without interruption, until 1943. In 1928, he was informed that he had been born in Texas. At the outbreak of World War II, petitioner knew of the duty of male United States citizens to register for the draft, but he failed to do so. In 1943, he applied for admission to the United States as an alien railroad laborer, stating that he was a native-born citizen of Mexico, and was granted permission to enter on a temporary basis. He returned to Mexico in 1944, and shortly thereafter applied for and was granted permission, again as a native-born Mexican citizen, to enter the United States temporarily to continue his employment as a railroad laborer. Later in 1944, he returned to Mexico once more. In 1947, petitioner applied for admission to the United States at El Paso, Texas, as a citizen of the United States. At a Board of Special Inquiry hearing (and in his subsequent appeals to the Assistant Commissioner and the Board of Immigration Appeals), he admitted having remained outside of the United States to avoid military service and having voted in political elections in Mexico. He was ordered excluded on the ground that he had expatriated himself; this order was affirmed on appeal. In 1952, petitioner, claiming to be a native-born citizen of Mexico, Page 356 U. S. 47 was permitted to enter the United States as an alien agricultural laborer. He surrendered in 1953 to immigration authorities in San Francisco as an alien unlawfully in the United States, but claimed the right to remain by virtue of his American citizenship. After a hearing before a Special Inquiry Officer, he was ordered deported as an alien not in possession of a valid immigration visa; this order was affirmed on appeal to the Board of Immigration Appeals. Petitioner brought suit in 1954 in a United States District Court for a judgment declaring him to be a national of the United States. [ Footnote 2 ] The court, sitting without a jury, found (in addition to the undisputed facts set forth above) that petitioner had remained outside of the United States from November, 1944, to July, 1947, for the purpose of avoiding service in the armed forces of the United States, and that he had voted in a "political election" in Mexico in 1946. The court, concluding that he had thereby expatriated himself, denied the relief sought by the petitioner. The United States Court of Appeals for the Ninth Circuit affirmed. 235 F.2d 364. We granted certiorari because of the constitutional questions raised by the petitioner. 352 U.S. 908. Page 356 U. S. 48 Statutory expatriation, as a response to problems of international relations, was first introduced just a half century ago. Long before that, however, serious friction between the United States and other nations had stirred consideration of modes of dealing with the difficulties that arose out of the conflicting claims to the allegiance of foreign-born persons naturalized in the United States, particularly when they returned to the country of their origin. As a starting point for grappling with this tangle of problems, Congress in 1868 formally announced the traditional policy of this country that it is the "natural and inherent right of all people" to divest themselves of their allegiance to any state, 15 Stat. 223, R.S. § 1999. Although the impulse for this legislation had been the refusal by other nations, notably Great Britain, to recognize a right in naturalized Americans who had been their subjects to shed that former allegiance, the Act of 1868 was held by the Attorney General to apply to divestment by native-born and naturalized Americans of their United States citizenship. 14 Op.Atty.Gen. 295, 296. In addition, while the debate on the Act of 1868 was proceeding, negotiations were completed on the first of a series of treaties for the adjustment of some of the disagreements that were constantly arising between the United States and other nations concerning citizenship. These instruments typically provided that each of the signatory nations would regard as a citizen of the other such of its own citizens as became naturalized by the other. E.g., Treaty with the North German Confederation, Feb. 22, 1868, 2 Treaties, Conventions, International Acts, etc. (comp. Malloy, 1910), 1298. This series of treaties initiated this country's policy of automatic divestment of citizenship for specified conduct affecting our foreign relations. Page 356 U. S. 49 On the basis, presumably, of the Act of 1868 and such treaties as were in force, it was the practice of the Department of State during the last third of the nineteenth century to make rulings as to forfeiture of United States citizenship by individuals who performed various acts abroad. See Borchard, Diplomatic Protection of Citizens Abroad, §§ 319, 324. Naturalized citizens who returned to the country of their origin were held to have abandoned their citizenship by such actions as accepting public office there or assuming political duties. See Davis to Weile, Apr. 18, 1870, 3 Moore, Digest of International Law, 737; Davis to Taft, Jan. 18, 1883, 3 id. at 739. Native-born citizens of the United States (as well as naturalized citizens outside of the country of their origin) were generally deemed to have lost their American citizenship only if they acquired foreign citizenship. See Bayard to Suzzara-Verdi, Jan. 27, 1887, 3 id. at 714; see also Comitis v. Parkerson, 56 F. 556, 559. No one seems to have questioned the necessity of having the State Department, in its conduct of the foreign relations of the Nation, pass on the validity of claims to American citizenship and to such of its incidents as the right to diplomatic protection. However, it was recognized in the Executive Branch that the Department had no specific legislative authority for nullifying citizenship, and several of the Presidents urged Congress to define the acts by which citizens should be held to have expatriated themselves. E.g., Message of President Grant to Congress, Dec. 7, 1874, 7 Messages and Papers of the Presidents (Richardson ed. 1899) 284, 291-292. Finally, in 1906, during the consideration of the bill that became the Naturalization Act of 1906, a Senate resolution and a recommendation of the House Committee on Foreign Affairs called for an examination of the problems relating to American citizenship, expatriation and protection Page 356 U. S. 50 abroad. In response to these suggestions, the Secretary of State appointed the Citizenship Board of 1906, composed of the Solicitor of the State Department, the Minister to the Netherlands and the Chief of the Passport Bureau. The board conducted a study and, late in 1906, made an extensive report with recommendations for legislation. Among the recommendations of the board were that expatriation of a citizen "be assumed" when, in time of peace, he became naturalized in a foreign state, engaged in the service of a foreign state where such service involved the taking of an oath of allegiance to that state, or domiciled in a foreign state for five years with no intention to return. Citizenship of the United States, Expatriation, and Protection Abroad, H.R.Doc. No. 326, 59th Cong., 2d Sess. 23. It also recommended that an American woman who married a foreigner be regarded as losing her American citizenship during coverture. Id. at 29. As to the first two recommended acts of expatriation, the report stated that "no man should be permitted deliberately to place himself in a position where his services may be claimed by more than one government and his allegiance be due to more than one." Id. at 23. As to the third, the board stated that more and more Americans were going abroad to live, "and the question of their protection causes increasing embarrassment to this Government in its relations with foreign powers." Id. at 25. Within a month of the submission of this report, a bill was introduced in the House by Representative Perkins of New York based on the board's recommendations. Perkins' bill provided that a citizen would be "deemed to have expatriated himself" when, in peacetime, he became naturalized in a foreign country or took an oath of allegiance to a foreign state; it was presumed that a naturalized citizen who resided for five years in a foreign state had Page 356 U. S. 51 ceased to be an American citizen, and an American woman who married a foreigner would take the nationality of her husband. 41 Cong.Rec. 1463-1464. Perkins stated that the bill was designed to discourage people from evading responsibilities both to other countries and to the United States, and "to save our Government [from] becoming involved in any trouble or question with foreign countries where there is no just reason." Id. at 1464. What little debate there was on the bill centered around the foreign domicile provision; no constitutional issue was canvassed. The bill passed the House, and, after substantially no debate and the adoption of a committee amendment adding a presumption of termination of citizenship for a naturalized citizen who resided for two years in the country of his origin, 41 Cong.Rec. 4116, the Senate passed it and it became the Expatriation Act of 1907. 34 Stat. 1228. The question of the power of Congress to enact legislation depriving individuals of their American citizenship was first raised in the courts by Mackenzie v. Hare, 239 U. S. 299 . The plaintiff in that action, Mrs. Mackenzie, was a native-born citizen and resident of the United States. In 1909, she married a subject of Great Britain and continued to reside with him in the United States. When, in 1913, she applied to the defendants, members of a board of elections in California, to be registered as a voter, her application was refused on the ground that, by reason of her marriage, she had ceased to be a citizen of the United States. Her petition for a writ of mandamus was denied in the state courts of California, and she sued out a writ of error here, claiming that, if the Act of 1907 was intended to apply to her, it was beyond the power of Congress. The Court, through Mr. Justice McKenna, after finding that merging the identity of husband and wife, as Congress had done in this instance, had Page 356 U. S. 52 a "purpose and, it may be, necessity, in international policy," continued: "As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality, it has the powers of nationality, especially those which concern its relations and intercourse with other countries. We should hesitate long before limiting or embarrassing such powers. . . . We concur with counsel that citizenship is of tangible worth, and we sympathize with plaintiff in her desire to retain it and in her earnest assertion of it. But there is involved more than personal considerations. As we have seen, the legislation was urged by conditions of national moment. . . . It is the conception of the legislation under review that such an act may bring the Government into embarrassments and, it may be, into controversies. . . ." 239 U.S. at 239 U. S. 311 -312. The Court observed that voluntary marriage of an American woman with a foreigner may have the same consequences, and "involve national complications of like kind," as voluntary expatriation in the traditional sense. It concluded: "This is no arbitrary exercise of government." 239 U.S. at 239 U. S. 312 . See also Ex parte Griffin, 237 F. 445; Ex parte Ng Fung Sing, 6 F.2d 670 . By the early 1930's, the American law on nationality, including naturalization and denationalization, was expressed in a large number of provisions scattered throughout the statute books. Some of the specific laws enacted at different times seemed inconsistent with others, some problems of growing importance had emerged that Congress had left unheeded. At the request of the House Committee on Immigration and Naturalization, see 86 Cong.Rec. 11943, President Franklin D. Roosevelt established a Committee composed of the Secretary of State, Page 356 U. S. 53 the Attorney General and the Secretary of Labor to review the nationality laws of the United States, to recommend revisions and to codify the nationality laws into one comprehensive statute for submission to Congress; he expressed particular concern about "existing discriminations" in the law. Exec.Order No. 6115, Apr. 25, 1933. The necessary research for such a study was entrusted to specialists representing the three departments. Five years were spent by these officials in the study and formulation of a draft code. In their letter submitting the draft code to the President after it had been reviewed within the Executive Branch, the Cabinet Committee noted the special importance of the provisions concerning loss of nationality, and asserted that none of these provisions was "designed to be punitive or to interfere with freedom of action"; they were intended to deprive of citizenship those persons who had shown that "their real attachment is to the foreign country, and not to the United States." Codification of the Nationality Laws of the United States, H.R. Comm.Print, Pt. 1, 76th Cong., 1st Sess. V-VII. The draft code of the Executive Branch was an omnibus bill in five chapters. The chapter relating to "Loss of Nationality" provided that any citizen should "lose his nationality" by becoming naturalized in a foreign country; taking an oath of allegiance to a foreign state; entering or serving in the armed forces of a foreign state; being employed by a foreign government in a post for which only nationals of that country are eligible; voting in a foreign political election or plebiscite; using a passport of a foreign state as a national thereof; formally renouncing American citizenship before a consular officer abroad; deserting the armed forces of the United States in wartime (upon conviction by court martial); if a naturalized citizen, residing in the state of his former nationality or birth for two years if he thereby acquires the nationality of that state; or, if a naturalized citizen, Page 356 U. S. 54 residing in the state of his former nationality or birth for three years. Id. at 66-76. In support of the recommendation of voting in a foreign political election as an act of expatriation, the Committee reported: "Taking an active part in the political affairs of a foreign state by voting in a political election therein is believed to involve a political attachment and practical allegiance thereto which is inconsistent with continued allegiance to the United States, whether or not the person in question has or acquires the nationality of the foreign state. In any event, it is not believed that an American national should be permitted to participate in the political affairs of a foreign state and at the same time retain his American nationality. The two facts would seem to be inconsistent with each other." Id. at 67. As to the reference to plebiscites in the draft language, the report states: "If this provision had been in effect when the Saar Plebiscite was held, Americans voting in it would have been expatriated." Ibid. It seems clear that the most immediate impulse for the entire voting provision was the participation by many naturalized Americans in the plebiscite to determine sovereignty over the Saar in January, 1935. H.R.Rep. No. 216, 74th Cong., 1st Sess. 1. Representative Dickstein of New York, Chairman of the House Committee on Immigration and Naturalization, who had called the plebiscite an "international dispute" in which naturalized American citizens could not properly participate, N.Y. Times, Jan. 4, 1935, p. 12, col. 3, had introduced a bill in the House in 1935 similar in language to the voting provisions in the draft code, 79 Cong.Rec. 2050, but, although it was favorably reported, the House did not pass it. Page 356 U. S. 55 In June, 1938, the President submitted the Cabinet Committee's draft code and the supporting report to Congress. In due course, Chairman Dickstein introduced the code as H.R. 6127, and it was referred to his committee. In early 1940, extensive hearings were held before both a subcommittee and the full committee at which the interested Executive Branch agencies and others testified. With respect to the voting provision, Chairman Dickstein spoke of the Americans who had voted in the Saar plebiscite and said, "If they are American citizens, they had no right to vote, to interfere with foreign matters or political subdivision." Hearings before the House Committee on Immigration and Naturalization on H.R. 6127, 76th Cong., 1st Sess. 287. Mr. Flournoy, Assistant Legal Adviser of the State Department, said that the provision would be "particularly applicable" to persons of dual nationality, id. at 132; however, a suggestion that the provision be made applicable only to dual nationals, id. at 398, was not adopted. Upon the conclusion of the hearings in June, 1940 ,a new bill was drawn up and introduced as H.R. 9980. The only changes from the Executive Branch draft with respect to the acts of expatriation were the deletion of using a foreign passport and the addition of residence by a naturalized citizen for five years in any foreign country as acts that would result in loss of nationality. 86 Cong.Rec. 11960-11961. The House debated the bill for a day in September, 1940. In briefly summarizing the loss of nationality provisions of the bill, Chairman Dickstein said that "this bill would put an end to dual citizenship, and relieve this country of the responsibility of those who reside in foreign lands and only claim citizenship when it serves their purpose." Id. at 11944. Representative Rees of Kansas, who had served as chairman of the subcommittee that studied the draft code, said that clarifying Page 356 U. S. 56 legislation was needed, among other reasons, "because of the duty of the Government to protect citizens abroad." Id. at 11947. The bill passed the House that same day. Id. at 11965. In the Senate also, after a favorable report from the Committee on Immigration, the bill was debated very briefly. Committee amendments were adopted making the provision on foreign military service applicable only to dual nationals, making treason an act of expatriation, and providing a procedure by which persons administratively declared to have expatriated themselves might obtain judicial determinations of citizenship. The bill as amended was passed. Id. at 12817-12818. The House agreed to these and all other amendments on which the Senate insisted, id. at 13250, and, on October 14, the Nationality Act of 1940 became law. 54 Stat. 1137. The loss of nationality provisions of the Act constituted but a small portion of a long omnibus nationality statute. It is not surprising, then, that they received as little attention as they did in debate and hearings, and that nothing specific was said about the constitutional basis for their enactment. The bill as a whole was regarded primarily as a codification -- and only secondarily as a revision -- of statutes that had been in force for many years, some of them, such as the naturalization provisions, having their beginnings in legislation 150 years old. It is clear that, as is so often the case in matters affecting the conduct of foreign relations, Congress was guided by and relied very heavily upon the advice of the Executive Branch, and particularly the State Department. See, e.g., 86 Cong.Rec. 11943-11944. In effect, Congress treated the Cabinet Committee as it normally does its own committees charged with studying a problem and formulating legislation. These considerations emphasize the importance, in the inquiry into congressional power in this field, of keeping in mind the historical background Page 356 U. S. 57 of the challenged legislation, for history will disclose the purpose fairly attributable to Congress in enacting the statute. The first step in our inquiry must be to answer the question: what is the source of power on which Congress must be assumed to have drawn? Although there is in the Constitution no specific grant to Congress of power to enact legislation for the effective regulation of foreign affairs, there can be no doubt of the existence of this power in the lawmaking organ of the Nation. See United States v. Curtiss-Wright Export Corp., 299 U. S. 304 , 299 U. S. 318 ; Mackenzie v. Hare, 239 U. S. 299 , 239 U. S. 311 -312. The States that joined together to form a single Nation and to create, through the Constitution, a Federal Government to conduct the affairs of that Nation must be held to have granted that Government the powers indispensable to its functioning effectively in the company of sovereign nations. The Government must be able not only to deal affirmatively with foreign nations, as it does through the maintenance of diplomatic relations with them and the protection of American citizens sojourning within their territories. It must also be able to reduce to a minimum the frictions that are unavoidable in a world of sovereigns sensitive in matters touching their dignity and interests. The inference is fairly to be drawn from the congressional history of the Nationality Act of 1940, read in light of the historical background of expatriation in this country, that, in making voting in foreign elections (among other behavior) an act of expatriation, Congress was seeking to effectuate its power to regulate foreign affairs. The legislators, counseled by those on whom they rightly relied for advice, were concerned about actions by citizens in foreign countries that create problems of protection and are inconsistent with American allegiance. Moreover, we cannot ignore the fact that embarrassments Page 356 U. S. 58 in the conduct of foreign relations were of primary concern in the consideration of the Act of 1907, of which the loss of nationality provisions of the 1940 Act are a codification and expansion. Broad as the power in the National Government to regulate foreign affairs must necessarily be, it is not without limitation. The restrictions confining Congress in the exercise of any of the powers expressly delegated to it in the Constitution apply with equal vigor when that body seeks to regulate our relations with other nations. Since Congress may not act arbitrarily, a rational nexus must exist between the content of a specific power in Congress and the action of Congress in carrying that power into execution. More simply stated, the means -- in this case, withdrawal of citizenship -- must be reasonably related to the end -- here, regulation of foreign affairs. The inquiry -- and, in the case before us, the sole inquiry -- into which this Court must enter is whether or not Congress may have concluded not unreasonably that there is a relevant connection between this fundamental source of power and the ultimate legislative action. [ Footnote 3 ] Page 356 U. S. 59 Our starting point is to ascertain whether the power of Congress to deal with foreign relations may reasonably be deemed to include a power to deal generally with the active participation, by way of voting, of American citizens in foreign political elections. Experience amply attests that, in this day of extensive international travel, rapid communication and widespread use of propaganda, the activities of the citizens of one nation when in another country can easily cause serious embarrassments to the government of their own country as well as to their fellow citizens. We cannot deny to Congress the reasonable belief that these difficulties might well become acute, to the point of jeopardizing the successful conduct of international relations, when a citizen of one country chooses to participate in the political or governmental affairs of another country. The citizen may by his action unwittingly promote or encourage a course of conduct contrary to the interests of his own government; moreover, the people or government of the foreign country may regard his action to be the action of his government, or at least as a reflection if not an expression of its policy. Cf. Preuss, International Responsibility for Hostile Propaganda Against Foreign States, 28 Am.J.Int'l L. 649, 650. It follows that such activity is regulable by Congress under its power to deal with foreign affairs. And it must be regulable on more than an ad hoc basis. The subtle influences and repercussions with which the Government must deal make it reasonable for the generalized, although clearly limited, category of "political election" to be used in defining the area of regulation. That description carries with it the scope and meaning of its context and purpose; classes of elections -- nonpolitical in the colloquial Page 356 U. S. 60 sense -- as to which participation by Americans could not possibly have any effect on the relations of the United States with another country are excluded by any rational construction of the phrase. The classification that Congress has adopted cannot be said to be inappropriate to the difficulties to be dealt with. Specific applications are, of course, open to judicial challenge, as are other general categories in the law, by a "gradual process of judicial inclusion and exclusion." Davidson v. New Orleans, 96 U. S. 97 , 96 U. S. 104 . [ Footnote 4 ] The question must finally be faced whether, given the power to attach some sort of consequence to voting in a foreign political election, Congress, acting under the Necessary and Proper Clause, Art. I, § 8, cl. 18, could attach loss of nationality to it. Is the means, withdrawal of citizenship, reasonably calculated to effect the end that is within the power of Congress to achieve, the avoidance of embarrassment in the conduct of our foreign relations attributable to voting by American citizens in foreign political elections? The importance and extreme delicacy of the matters here sought to be regulated demand that Congress be permitted ample scope in selecting appropriate modes for accomplishing its purpose. The critical connection between this conduct and loss of citizenship is the fact that it is the possession of American citizenship by a person committing the act that makes the act potentially embarrassing to the American Government and pregnant with the possibility of embroiling this country in disputes with other nations. The termination of citizenship terminates the problem. Moreover, the fact is not without significance that Congress has interpreted Page 356 U. S. 61 this conduct, not irrationally, as importing not only something less than complete and unswerving allegiance to the United States, but also elements of an allegiance to another country in some measure, at least, inconsistent with American citizenship. Of course, Congress can attach loss of citizenship only as a consequence of conduct engaged in voluntarily. See Mackenzie v. Hare, 239 U. S. 299 , 239 U. S. 311 -312. But it would be a mockery of this Court's decisions to suggest that a person, in order to lose his citizenship, must intend or desire to do so. The Court only a few years ago said of the person held to have lost her citizenship in Mackenzie v. Hare, supra: "The woman had not intended to give up her American citizenship." Savorgnan v. United States, 338 U. S. 491 , 338 U. S. 501 . And the latter case sustained the denationalization of Mrs. Savorgnan although it was not disputed that she "had no intention of endangering her American citizenship or of renouncing her allegiance to the United States." 338 U.S. at 338 U. S. 495 . [ Footnote 5 ] What both women did do voluntarily was to engage in conduct to which Acts of Congress attached the consequence of denationalization irrespective of -- and, in those cases, absolutely contrary to -- the intentions and desires of the individuals. Those two cases mean nothing -- indeed, they are deceptive -- if their essential significance is not rejection of the notion that the power of Congress to terminate citizenship depends upon the citizen's assent. It is a distortion of those cases to explain them away on a theory that a citizen's assent to denationalization may be inferred from his having engaged in conduct that amounts to an "abandonment of citizenship" or a "transfer Page 356 U. S. 62 of allegiance." Certainly an Act of Congress cannot be invalidated by resting decisive precedents on a gross fiction -- a fiction baseless in law and contradicted by the facts of the cases. It cannot be said, then, that Congress acted without warrant when, pursuant to its power to regulate the relations of the United States with foreign countries, it provided that anyone who votes in a foreign election of significance politically in the life of another country shall lose his American citizenship. To deny the power of Congress to enact the legislation challenged here would be to disregard the constitutional allocation of governmental functions that it is this Court's solemn duty to guard. Because of our view concerning the power of Congress with respect to § 401(e) of the Nationality Act of 1940, we find it unnecessary to consider -- indeed, it would be improper for us to adjudicate -- the constitutionality of § 401(j), and we expressly decline to rule on that important question at this time. Judgment affirmed. * [On the same day, an order was entered substituting Attorney General Rogers for former Attorney General Brownell as the party respondent. See post, p. 915.] [ Footnote 1 ] Incorporated into § 349 of the Immigration and Nationality Act of 1952, 66 Stat. 163, 267-268, 8 U.S.C. § 1481. [ Footnote 2 ] Petitioner proceeded under § 503 of the Nationality Act of 1940, 54 Stat. 1137, 1171, which authorizes an individual to bring suit for a declaration of nationality in a United States District Court against the head of any government agency that denies him a right or privilege of United States nationality on the ground that he is not a United States national. The judicial hearing in such an action is a trial de novo in which the individual need make only a prima facie case establishing his citizenship by birth or naturalization. See Pandolo v. Acheson, 202 F.2d 38, 40-41. The Government must prove the act of expatriation on which the denial was based by " clear, unequivocal, and convincing' evidence which does not leave `the issue in doubt.'" Gonzales v. Landon, 350 U.S. 920; see Schneiderman v. United States, 320 U. S. 118 , 320 U. S. 158 . [ Footnote 3 ] The provision of the Fourteenth Amendment that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . ." sets forth the two principal modes (but by no means the only ones) for acquiring citizenship. Thus, in United States v. Wong Kim Ark, 169 U. S. 649 (Chief Justice Fuller and Mr. Justice Harlan dissenting), it was held that a person of Chinese parentage born in this country was among "all persons born . . . in the United States," and therefore a citizen to whom the Chinese Exclusion Acts did not apply. But there is nothing in the terms, the context, the history, or the manifest purpose of the Fourteenth Amendment to warrant drawing from it a restriction upon the power otherwise possessed by Congress to withdraw citizenship. The limit of the operation of that provision was clearly enunciated in Perkins v. Elg, 307 U. S. 325 , 307 U. S. 329 : "As at birth she became a citizen of the United States, that citizenship must be deemed to continue unless she has been deprived of it through the operation of a treaty or congressional enactment or by her voluntary action in conformity with applicable legal principles." [ Footnote 4 ] Petitioner in the case before us did not object to the characterization of the election in which he voted as a "political election." It may be noted that, in oral argument, counsel for the petitioner expressed his understanding that the election involved was the election for Mexico's president. [ Footnote 5 ] The District Court in Savorgnan stated: "I am satisfied from the proofs submitted that, at the time plaintiff signed Exhibits 1 and 2 [application for Italian citizenship and oath of allegiance to Italian Government], she had no present or fixed intention in her mind to expatriate herself." 73 F. Supp. 109 , 111. MR. CHIEF JUSTICE WARREN, with whom MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS join, dissenting. The Congress of the United States has decreed that a citizen of the United States shall lose his citizenship by performing certain designated acts. [ Footnote 2/1 ] The petitioner in Page 356 U. S. 63 this case, a native-born American, [ Footnote 2/2 ] is declared to have lost his citizenship by voting in a foreign election. [ Footnote 2/3 ] Whether this forfeiture of citizenship exceeds the bounds of the Constitution is the issue before us. The problem is fundamental, and must be resolved upon fundamental considerations. Generally, when congressional action is challenged, constitutional authority is found in the express and implied powers with which the National Government has been invested or in those inherent powers that are necessary attributes of a sovereign state. The sweep of those powers is surely broad. In appropriate circumstances, they are adequate to take away life itself. The initial Page 356 U. S. 64 question here is whether citizenship is subject to the exercise of these general powers of government. What is this Government, whose power is here being asserted? And what is the source of that power? The answers are the foundation of our Republic. To secure the inalienable rights of the individual, "Governments are instituted among Men, deriving their just powers from the consent of the governed." I do not believe the passage of time has lessened the truth of this proposition. It is basic to our form of government. This Government was born of its citizens, it maintains itself in a continuing relationship with them, and, in my judgment, it is without power to sever the relationship that gives rise to its existence. I cannot believe that a government conceived in the spirit of ours was established with power to take from the people their most basic right. Citizenship is man's basic right, for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen. He has no lawful claim to protection from any nation, and no nation may assert rights on his behalf. [ Footnote 2/4 ] His very existence is at the sufferance of the state within whose borders he happens to be. In this country, the expatriate would presumably enjoy, at most, only the limited rights and privileges of aliens, [ Footnote 2/5 ] and, like the alien, he might even Page 356 U. S. 65 be subject to deportation, and thereby deprived of the right to assert any rights. [ Footnote 2/6 ] This government was not established with power to decree this fate. The people who created this government endowed it with broad powers. They created a sovereign state with power to function as a sovereignty. But the citizens themselves are sovereign, and their citizenship is not subject to the general powers of their government. Whatever may be the scope of its powers to regulate the conduct and affairs of all persons within its jurisdiction, a government of the people cannot take away their citizenship simply because one branch of that government can be said to have a conceivably rational basis for wanting to do so. The basic constitutional provision crystallizing the right of citizenship is the first sentence of section one of the Fourteenth Amendment. It is there provided that All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the Page 356 U. S. 66 United States and of the State wherein they reside. United States citizenship is thus the constitutional birthright of every person born in this country. This Court has declared that Congress is without power to alter this effect of birth in the United States, United States v. Wong Kim Ark, 169 U. S. 649 , 169 U. S. 703 . The Constitution also provides that citizenship can be bestowed under a "uniform Rule of Naturalization," [ Footnote 2/7 ] but there is no corresponding provision authorizing divestment. Of course, naturalization unlawfully procured can be set aside. [ Footnote 2/8 ] But apart from this circumstance, the status of the naturalized citizen is secure. As this Court stated in Osborn v. Bank of the United States , 9 Wheat. 738, 22 U. S. 827 : "[The naturalized citizen] becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it so far as respects the individual." (Emphasis added.) Under our form of government, as established by the Constitution, the citizenship of the lawfully naturalized and the native-born cannot be taken from them. There is no question that citizenship may be voluntarily relinquished. The right of voluntary expatriation was recognized by Congress in 1868. [ Footnote 2/9 ] Congress declared that "the right of expatriation is a natural and inherent Page 356 U. S. 67 right of all people. . . ." [ Footnote 2/10 ] Although the primary purpose of this declaration was the protection of our naturalized citizens from the claims of their countries of origin, the language was properly regarded as establishing the reciprocal right of American citizens to abjure their allegiance. [ Footnote 2/11 ] In the early days of this Nation, the right of expatriation had been a matter of controversy. The common law doctrine of perpetual allegiance was evident in the opinions of this Court. [ Footnote 2/12 ] And, although impressment of naturalized American seamen of British birth was a cause of the War of 1812, the executive officials of this Government were not unwavering in their support of the right of expatriation. [ Footnote 2/13 ] Prior to 1868, all efforts to obtain congressional enactments concerning expatriation failed. [ Footnote 2/14 ] The doctrine of perpetual allegiance, however, was so ill-suited to the growing nation whose doors were open to immigrants from abroad that it could not last. Nine years before Congress acted, Attorney General Black stated the American position in a notable opinion: [ Footnote 2/15 ] "Here in the United States, the thought of giving it [the right of expatriation] up cannot be entertained for a moment. Upon that principle, this country was populated. We owe to it our existence as a nation. Page 356 U. S. 68 Ever since our independence, we have upheld and maintained it by every form of words and acts. We have constantly promised full and complete protection to all persons who should come here and seek it by renouncing their natural allegiance and transferring their fealty to us. We stand pledged to it in the face of the whole world." It has long been recognized that citizenship may not only be voluntarily renounced through exercise of the right of expatriation, but also by other actions in derogation of undivided allegiance to this country. [ Footnote 2/16 ] While the essential qualities of the citizen-state relationship under our Constitution preclude the exercise of governmental power to divest United States citizenship, the establishment of that relationship did not impair the principle that conduct of a citizen showing a voluntary transfer of allegiance is an abandonment of citizenship. Nearly all sovereignties recognize that acquisition of foreign nationality ordinarily shows a renunciation of citizenship. [ Footnote 2/17 ] Nor is this the only act by which the citizen may show a voluntary abandonment of his citizenship. Any action by which he manifests allegiance to a foreign state may be so inconsistent with the retention of citizenship as to result in loss of that status. [ Footnote 2/18 ] In recognizing the consequence of such action, the Government is not taking away United States citizenship to implement its general regulatory powers, for, as previously indicated, in my judgment, citizenship is immune from divestment under these Page 356 U. S. 69 powers. Rather, the Government is simply giving formal recognition to the inevitable consequence of the citizen's own voluntary surrender of his citizenship. Twice before, this Court has recognized that certain voluntary conduct results in an impairment of the status of citizenship. In Savorgnan v. United States, 338 U. S. 491 , an American citizen had renounced her citizenship and acquired that of a foreign state. This Court affirmed her loss of citizenship, recognizing that, "From the beginning, one of the most obvious and effective forms of expatriation has been that of naturalization under the laws of another nation." 338 U.S. at 338 U. S. 498 . Mackenzie v. Hare, 239 U. S. 299 , involved an American woman who had married a British national. That decision sustained an Act of Congress which provided that her citizenship was suspended for the duration of her marriage. Since it is sometimes asserted that this case is authority for the broad proposition that Congress can take away United States citizenship, it is necessary to examine precisely what the case involved. The statute which the Court there sustained did not divest Mrs. Mackenzie of her citizenship. [ Footnote 2/19 ] It provided that "any American woman who marries a foreigner shall take the nationality of her husband." [ Footnote 2/20 ] "At the termination Page 356 U. S. 70 of the marital relation," the statute continues, "she may resume her American citizenship. . . ." (Emphasis added.) Her citizenship was not taken away; it was held in abeyance. This view of the statute is borne out by its history. The 1907 Act was passed after the Department of State had responded to requests from both houses of Congress for a comprehensive study of our own and foreign nationality laws, together with recommendations for new legislation. [ Footnote 2/21 ] One of those recommendations, substantially incorporated in the 1907 Act, was as follows: [ Footnote 2/22 ] "That an American woman who marries a foreigner shall take during coverture the nationality of her husband; but upon termination of the marital relation by death or absolute divorce she may revert to her American citizenship by registering within one year as an American citizen at the most convenient American consulate or by returning to reside in the Page 356 U. S. 71 United States if she is abroad; or if she is in the United States by continuing to reside therein." (Emphasis added.) This principle of "reversion of citizenship" was a familiar one in our own law, [ Footnote 2/23 ] and the law of foreign states. [ Footnote 2/24 ] The statute was merely declarative of the law as it was then Page 356 U. S. 72 understood. [ Footnote 2/25 ] Although the opinion in Mackenzie v. Hare contains some reference to termination of citizenship, the reasoning is consistent with the terms of the statute that was upheld. Thus, the Court speaks of Mrs. Mackenzie's having entered a "condition," 239 U.S. at 239 U. S. 312 , not as having surrendered her citizenship. "Therefore," the Court concludes, " as long as the relation lasts, it is made tantamount to expatriation." Ibid. (Emphasis added.) A decision sustaining a statute that relies upon the unity of interest in the marital community -- a common law fiction now largely a relic of the past -- may itself be outdated. [ Footnote 2/26 ] However that may be, the foregoing demonstrates Page 356 U. S. 73 that Mackenzie v. Hare should not be understood to sanction a power to divest citizenship. Rather, this case, like Savorgnan, simply acknowledges that United States citizenship can be abandoned, temporarily or permanently, by conduct showing a voluntary transfer of allegiance to another country. The background of the congressional enactment pertinent to this case indicates that Congress was proceeding generally in accordance with this approach. After the initial congressional designation in 1907 of certain actions that were deemed to be an abandonment of citizenship, it became apparent that further clarification of the problem was necessary. In 1933, President Roosevelt, acting at the request of the House Committee on Immigration and Naturalization, [ Footnote 2/27 ] established a Committee of Cabinet members to prepare a codification and revision of the nationality laws. [ Footnote 2/28 ] The Committee, composed of the Secretary of State, the Attorney General and the Secretary of Labor, spent five years preparing the codification that became the Nationality Act of 1940, and submitted their draft in 1938. It is evident that this Committee did not believe citizenship could be divested under the Government's general regulatory powers. Rather, it adopted the position that the citizen abandons his status by compromising his allegiance. In its letter submitting the proposed codification to the President, the Committee described the loss of nationality provisions in these words: [ Footnote 2/29 ] "They are merely intended to deprive persons of American nationality when such persons, by their own acts, or inaction, show that their real attachment is to the foreign country, and not to the United States. " (Emphasis added.) Page 356 U. S. 74 Furthermore, when the draft code was first discussed by the House Committee on Immigration and Naturalization -- the only legislative group that subjected the codification to detailed examination [ Footnote 2/30 ] -- it was at once recognized that the status of citizenship was protected from congressional control by the Fourteenth Amendment. In considering the situation of a native-born child of alien parentage, Congressmen Poage and Rees, members of the committee, and Richard Flournoy, the State Department representative, engaged in the following colloquy: [ Footnote 2/31 ] "Mr. POAGE. Isn't that based on the constitutional provision that all persons born in the United States are citizens thereof?" "Mr. FLOURNOY. Yes." "Mr. POAGE. In other words, it is not a matter we have any control over." "Mr. FLOURNOY. No, and no one wants to change that." "Mr. POAGE. No one wants to change that, of course." "Mr. FLOURNOY. We have control over citizens born abroad, and we also have control over the question of expatriation. We can provide for expatriation. No one proposes to change the constitutional provisions." "Mr. REES. We cannot change the citizenship of a man who went abroad, who was born in the United States." "Mr. FLOURNOY. You can make certain acts of his result in a loss of citizenship." "Mr. REES. Surely, that way. " Page 356 U. S. 75 It is thus clear that the purpose governing the formulation of most of the "loss of nationality" provisions of the codification was the specification of acts that would of themselves show a voluntary abandonment of citizenship. Congress did not assume it was empowered to use denationalization as a weapon to aid in the exercise of its general powers. Nor should we. Section 401(e) of the 1940 Act added a new category of conduct that would result in loss of citizenship: "Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory. . . ." The conduct described was specifically represented by Mr. Flournoy to the House Committee as indicative of "a choice of the foreign nationality," just like "using a passport of a foreign state as a national thereof." [ Footnote 2/32 ] The precise issue posed by Section 401(e) is whether the conduct it describes invariably involves a dilution of undivided allegiance sufficient to show a voluntary abandonment of citizenship. Doubtless, under some circumstances, a vote in a foreign election would have this effect. For example, abandonment of citizenship might result if the person desiring to vote had to become a foreign national or represent himself to be one. [ Footnote 2/33 ] Conduct of this sort is apparently what Mr. Flournoy had in mind when he discussed with the committee the situation of an American-born youth who had acquired Canadian citizenship through the naturalization of his parents. Mr. Flournoy suggested that the young man might manifest Page 356 U. S. 76 an election of nationality by taking advantage of his Canadian citizenship and voting "as a Canadian." [ Footnote 2/34 ] And even the situation that bothered Committee Chairman Dickstein -- Americans voting in the Saar plebiscite -- might, under some circumstances, disclose conduct tantamount to dividing allegiance. Congressman Dickstein expressed his concern as follows: [ Footnote 2/35 ] "I know we have had a lot of Nazis, so-called American citizens, go to Europe who have voted in the Saar for the annexation of territory to Germany, and Germany says that they have the right to participate and to vote, and yet they are American citizens." There might well be circumstances where an American shown to have voted at the behest of a foreign government to advance its territorial interests would compromise his native allegiance. The fatal defect in the statute before us is that its application is not limited to those situations that may rationally be said to constitute an abandonment of citizenship. In specifying that any act of voting in a foreign political election results in loss of citizenship, Congress has employed a classification so broad that it encompasses conduct that fails to show a voluntary abandonment of American citizenship. [ Footnote 2/36 ] "The connection between the fact proved and that presumed is not sufficient." Manley v. Georgia, 279 U. S. 1 , 279 U. S. 7 ; see also Tot v. United States, 319 U. S. 463 ; Bailey v. Alabama, 219 U. S. 219 . The Page 356 U. S. 77 reach of this statute is best indicated by a decision of a former attorney general holding that an American citizen lost her citizenship under Section 401(e) by voting in an election in a Canadian town on the issue of whether beer and wine should be sold. [ Footnote 2/37 ] Voting in a foreign election may be a most equivocal act, giving rise to no implication that allegiance has been compromised. Nothing could demonstrate this better than the political history of this country. It was not until 1928 that a presidential election was held in this country in which no alien was eligible to vote. [ Footnote 2/38 ] Earlier in our history, at least 22 States had extended the franchise to aliens. It cannot be seriously contended that this Nation understood the vote of each alien who previously took advantage of this privilege to be an act of allegiance to this country, jeopardizing the alien's native citizenship. How then can we attach such significance to any vote of a United States citizen in a foreign election? It is also significant that of 84 nations whose nationality laws have been compiled by the United Nations, only this country specifically designates foreign voting as an expatriating act. [ Footnote 2/39 ] My conclusions are as follows. The Government is without power to take citizenship away from a native-born or lawfully naturalized American. The Fourteenth Page 356 U. S. 78 Amendment recognizes that this priceless right is immune from the exercise of governmental powers. If the Government determines that certain conduct by United States citizens should be prohibited because of anticipated injurious consequences to the conduct of foreign affairs or to some other legitimate governmental interest, it may within the limits of the Constitution proscribe such activity and assess appropriate punishment. But every exercise of governmental power must find its source in the Constitution. The power to denationalize is not within the letter or the spirit of the powers with which our Government was endowed. The citizen may elect to renounce his citizenship, and, under some circumstances, he may be found to have abandoned his status by voluntarily performing acts that compromise his undivided allegiance to his country. The mere act of voting in a foreign election, however, without regard to the circumstances attending the participation, is not sufficient to show a voluntary abandonment of citizenship. The record in this case does not disclose any of the circumstances under which this petitioner voted. We know only the bare fact that he cast a ballot. The basic right of American citizenship has been too dearly won to be so lightly lost. I fully recognize that only the most compelling considerations should lead to the invalidation of congressional action, and where legislative judgments are involved, this Court should not intervene. But the Court also has its duties, none of which demands more diligent performance than that of protecting the fundamental rights of individuals. That duty is imperative when the citizenship of an American is at stake -- that status which alone assures him the full enjoyment of the precious rights conferred by our Constitution. As I see my duty in this case, I must dissent. Page 356 U. S. 79 [ Footnote 2/1 ] Section 401 of the Nationality Act of 1940, 54 Stat. 1137, 1168 1169, as amended, 8 U.S.C. § 1481. The fact that the statute speaks in terms of loss of nationality does not mean that it is not petitioner's citizenship that is being forfeited. He is a national by reason of his being a citizen, § 101(b), Nationality Act of 1940, 54 Stat. 1137, 8 U.S.C. § 1101(a)(22). Hence, he loses his citizenship when he loses his status as a national of the United States. In the context of this opinion, the terms nationality and citizenship can be used interchangeably. Cf. Rabang v. Boyd, 353 U. S. 427 . [ Footnote 2/2 ] Petitioner was born in El Paso, Texas, in 1909, a fact of which he was apprised in 1928. His Mexican-born parents took him to Mexico when he was 10 or 11 years old. In 1932, petitioner married a Mexican national; they have seven children. In 1943 and 1944, petitioner sought and received permission to enter this country for brief periods as a wartime railroad laborer. In 1952, petitioner again entered this country as a temporary farm laborer. After he had been ordered deported as an alien illegally in the United States, he brought this action for a declaratory judgment of citizenship, relying upon his birth in this country. [ Footnote 2/3 ] Section 401(e) of the Nationality Act of 1940, 54 Stat. 1169, 8 U.S.C. § 1481(5). The courts below concluded that petitioner had lost his citizenship for the additional reason specified in § 401(j) of the Nationality Act, which was added in 1944, 58 Stat. 746, 8 U.S.C. § 1481(10): "Departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the President to be a period of national emergency for the purpose of evading or avoiding training and service in the land or naval forces of the United States." The majority expressly declines to rule on the constitutional questions raised by § 401(j). My views on a statute of this sort are set forth in my opinion in Trop v. Dulles, post, p. 356 U. S. 86 , decided this day, involving similar problems raised by § 401(g) of the Nationality Act, 54 Stat. 1169, as amended, 8 U.S.C. § 1481(8). [ Footnote 2/4 ] See Borchard, Diplomatic Protection of Citizens Abroad (1916), § 8; 1 Oppenheim, International Law (7th ed., Lauterpacht, 1948), §§ 291-294; Holborn, The Legal Status of Political Refugees, 1920-1938, 32 Am.J.Int'l L. 680 (1938); Preuss, International Law and Deprivation of Nationality, 23 Geo.L.J. 250 (1934); Study on Statelessness, U.N. Doc. No. E/1112 (1949); 64 Yale L.J. 1164 (1955). [ Footnote 2/5 ] See Konvitz, The Alien and the Asiatic in American Law (1946); Comment, 20 U. of Chi.L.Rev. 547 (1953). Cf. Takahashi v. Fish & Game Commission, 334 U. S. 410 ; Oyama v. California, 332 U. S. 633 . [ Footnote 2/6 ] Harisiades v. Shaughnessy, 342 U. S. 580 ; Fong Yue Ting v. United States, 149 U. S. 698 . Even if Congress can divest United States citizenship, it does not necessarily follow that an American-born expatriate can be deported. He would be covered by the statutory definition of "alien," 8 U.S.C. § 1101(a)(3), but he would not necessarily have come "from a foreign port or place," and hence may not have effected the "entry," 8 U.S. C. § 1101(a)(13), specified in the deportation provisions, 8 U.S.C. § 1251. More fundamentally, since the deporting power has been held to be derived from the power to exclude, Fong Yue Ting v. United States, supra, it may well be that this power does not extend to persons born in this country. As to them, deportation would perhaps find its justification only as a punishment, indistinguishable from banishment. See dissenting opinions in United States v. Ju Toy, 198 U. S. 253 , 198 U. S. 264 ; Fong Yue Ting v. United States, supra, at 149 U. S. 744 . Since this action for a declaratory judgment does not involve the validity of the deportation order against petitioner, it is unnecessary, as the Government points out, to resolve the question of whether this petitioner may be deported. [ Footnote 2/7 ] U.S.Const., Art. I, § 8, cl. 4. [ Footnote 2/8 ] See, e.g., Knauer v. United States, 328 U. S. 654 ; Baumgartner v. United States, 322 U. S. 665 ; Schneiderman v. United States, 320 U. S. 118 . [ Footnote 2/9 ] Act of July 27, 1868, 15 Stat. 223. [ Footnote 2/10 ] Ibid. [ Footnote 2/11 ] See Savorgnan v. United States, 338 U. S. 491 , 338 U. S. 498 and n. 11; Foreign Relations, 1873, H.R.Exec.Doc. No. 1, 43d Cong., 1st Sess. Pt. 1, Vol. II, 1186-1187, 1204, 1210, 1213, 1216, 1222 (views of President Grant's Cabinet members); 14 Op.Atty.Gen. 295; Tsiang, The Question of Expatriation in America Prior to 1907, 97-98, 108-109. [ Footnote 2/12 ] See Shanks v. Dupont , 3 Pet. 242; Inglis v. Trustees of Sailor's Snug Harbour , 3 Pet. 99. [ Footnote 2/13 ] 3 Moore, Digest of International Law, §§ 434-437; Tsiang, 45-55, 71-86, 110-112. [ Footnote 2/14 ] Tsiang, 55-61 [ Footnote 2/15 ] 9 Op.Atty.Gen. 356, 359. [ Footnote 2/16 ] See, e.g., Savorgnan v. United States, 338 U. S. 491 ; Mackenzie v. Hare, 239 U. S. 299 ; Bauer v. Clark, 161 F.2d 397, cert. denied, 332 U.S. 839. Cf. Acheson v. Maenza, 92 U.S.App.D.C. 85, 202 F.2d 453. [ Footnote 2/17 ] See Laws Concerning Nationality, U.N. Doc. No. ST/LEG/ SER.B/4 (1954). [ Footnote 2/18 ] See generally Laws Concerning Nationality, op. cit. supra, 356 U.S. 44 fn2/17|>note 17. [ Footnote 2/19 ] Act of March 2, 1907, 34 Stat. 1228-1229. The full text is as follows: "SEC. 3. That any American woman who marries a foreigner shall take the nationality of her husband. At the termination of the marital relation she may resume her American citizenship, if abroad, by registering as an American citizen within one year with a consul of the United States, or by returning to reside in the United States, or, if residing in the United States at the termination of the marital relation, by continuing to reside therein." [ Footnote 2/20 ] This clause merely expressed the well understood principle that a wife's nationality "merged" with that of her husband's. Cockburn, Nationality, 24; 3 Moore, Digest of International Law, 450-451, 453; 3 Hackworth, Digest of International Law, 246-247. This was a consequence of the common law fiction of a unity of interest in the marital community. During coverture, the privileges and obligations of a woman's citizenship gave way to the dominance of her husband's. Prior to the Act of March 2, 1907, the Department of State declined to issue passports to American-born women who were married to aliens. 3 Moore, 454; 3 Hackworth, 247. The Attorney General ruled that a woman in such circumstances was not subject to an income tax imposed on all citizens of the United States residing abroad. 13 Op.Atty.Gen. 128. Several courts held that, during the duration of a marriage consummated prior to the Act between an American-born woman and an alien, a court may entertain a petition for her naturalization. In re Wohlgemuth, 35 F.2d 1007 ; In re Krausmann, 28 F.2d 1004 ; In re Page, 12 F.2d 135 . Cf. Pequignot v. Detroit, 16 F. 211. [ Footnote 2/21 ] S.Res. 30, 59th Cong., 1st Sess.; H.R.Rep. No. 4784, 59th Cong., 1st Sess. [ Footnote 2/22 ] H.R.Doc. No. 326, 59th Cong., 2d Sess. 29. The Department's covering letter makes abundantly clear that marriage was not to result in "expatriation." Id. at 3. [ Footnote 2/23 ] Consult generally 3 Moore, § 410(2) ("Reversion of Nationality"); Van Dyne, Naturalization, 242-255. Numerous cases contain references to a woman's "reverting" to United States citizenship after the termination of her marriage to an alien. E.g., Petition of Zogbaum, 32 F.2d 911 , 913; Petition of Drysdale, 20 F.2d 957 , 958; In re Fitzroy, 4 F.2d 541 , 542. The Department of State adopted the same interpretation. In 1890, Secretary Blaine declared the view of the Department that: "The marriage of an American woman to a foreigner does not completely divest her of her original nationality. Her American citizenship is held for most purposes to be in abeyance during coverture, but to be susceptible of revival by her return to the jurisdiction and allegiance of the United States." (Emphasis added.) Foreign Rel. U.S. 1890, 301. In 1906 Secretary Root stated: "Under the practice of the Department of State, a widow or a woman who has obtained an absolute divorce, being an American citizen and who has married an alien, must return to the United States, or must have her residence here in order to have her American citizenship revert on becoming femme sole. " Foreign Rel. U.S. 1906, Pt. 2, 1365. [ Footnote 2/24 ] Consult generally 3 Moore, 458-462. H.R.Doc. No. 326, 59th Cong., 2d Sess. 269-538, a report by the Department of State which Congress requested prior to its Act of March 2, 1907, contains a digest of the nationality laws of forty-four countries. Twenty-five of those provided in widely varying terms that, upon marriage, a woman's citizenship should follow that of her husband. Of these twenty-five, all but two made special provision for the woman to recover her citizenship upon termination of the marriage by compliance with certain formalities demonstrative of the proper intent, and in every instance wholly different from the ordinary naturalization procedures . [ Footnote 2/25 ] In re Wohlgemuth, 35 F.2d 1007 ; In re Krausmann, 28 F.2d 1004 ; Petition of Drysdale, 20 F.2d 957 ; In re Page, 12 F.2d 135 . In fact, Congressman Perkins, supporting the bill on the floor of the House, explained its effect in these words: "The courts have decided that a woman takes the citizenship of her husband, only the decisions of the courts provide no means by which she may retake the citizenship of her own country on the expiration of the marital relation. This bill contains nothing new in that respect, except a provision that, when the marital relation is terminated the woman may then retake her former citizenship." 41 Cong.Rec. 1465. Cases discussing the pre-1907 law generally held that a woman did not lose her citizenship by marriage to an alien, although she might bring about that result by other acts (such as residing abroad after the death of her husband) demonstrating an intent to relinquish that citizenship. E.g., 28 U. S. Dupont, 3 Pet. 242; In re Wright, 19 F. Supp. 224 ; Petition of Zogbaum, 32 F.2d 911 ; In re Lynch, 31 F.2d 762 ; Petition of Drysdale, 20 F.2d 957 ; In re Fitzroy, 4 F.2d 541 ; Wallenburg v. Missouri Pacific R. Co., 159 F. 217; Ruckgaber v. Moore, 104 F. 947; Comitis v. Parkerson, 56 F. 556. This was also the view of the Department of State. 3 Moore, 449-450; 3 Hackworth, 247-248. [ Footnote 2/26 ] The marriage provisions of the 1907 legislation were substantially repealed by the 1922 Cable Act, 42 Stat. 1021, and the last remnants of the effect of marriage on loss of citizenship were eliminated in 1931. 46 Stat. 1511. See Roche, The Loss of American Nationality, 99 U. of Pa.L.Rev. 25, 47-49. [ Footnote 2/27 ] See 86 Cong.Rec. 11943. [ Footnote 2/28 ] Exec.Order No. 6115, April 5, 1933. [ Footnote 2/29 ] Codification of the Nationality Laws of the United States, H.R. Comm.Print, Pt. 1, 76th Cong., 1st Sess. VII. [ Footnote 2/30 ] The bill was considered by the House Committee on Immigration and Naturalization and its subcommittee. Hearings before the House Committee on Immigration and Naturalization on H.R. 6127, 76th Cong., 1st Sess. The Senate did not hold hearings on the bill. [ Footnote 2/31 ] Hearings at 37-38. [ Footnote 2/32 ] Id. at 132. The passport provision was apparently deleted by the subcommittee, for it does not appear in the version of the bill that was printed when hearings resumed before the full committee on May 2, 1940. Id. at 207. [ Footnote 2/33 ] Cf. In the Matter of P___, 1 I. & N.Dec. 267 (this particular election in Canada was open only to British subjects). [ Footnote 2/34 ] Hearings at 98. [ Footnote 2/35 ] Id. at 286-287 . [ Footnote 2/36 ] The broad sweep of the statute was specifically called to the attention of the committee by Mr. Henry F. Butler. Hearings at 286-287. Mr. Butler also submitted a brief suggesting that the coverage of the statute be limited to those voting "in a manner in which only nationals of such foreign state or territory are eligible to vote or participate." Id. at 387. [ Footnote 2/37 ] In the Matter of F___, 2 I. & N.Dec. 427. [ Footnote 2/38 ] Aylsworth, The Passing of Alien Suffrage, 25 Am.Pol.Sci.Rev. 114. [ Footnote 2/39 ] Laws Concerning Nationality, U.N. Doc. No. ST/LEG/SER. B/4 (1954). The statutes of Andorra (191 sq. mi.; 5,231 pop.) provide for loss of nationality for a citizen who "exercises political rights in another country," id. at 10, and this very likely includes voting. Of course, it should be noted that two nations, Romania and Russia, have statutes providing that, upon decree of the government, citizenship can be withdrawn, apparently for any reason. Id. at 396, 463. MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs, dissenting. While I join the opinion of THE CHIEF JUSTICE, I wish to add a word. The philosophy of the opinion that sustains this statute is foreign to our constitutional system. It gives supremacy to the Legislature in a way that is incompatible with the scheme of our written Constitution. A decision such as this could be expected in England, where there is no written constitution and where the House of Commons has the final say. But, with all deference, this philosophy has no place here. By proclaiming it, we forsake much of our constitutional heritage and move closer to the British scheme. That may be better than ours or it may be worse. Certainly it is not ours. We deal here with the right of citizenship created by the Constitution. Section 1 cl. 1, of the Fourteenth Amendment states "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." As stated by the Court in the historic decision United States v. Wong Kim Ark, 169 U. S. 649 , 169 U. S. 702 , "Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution." What the Constitution grants, the Constitution can take away. But there is not a word in that document that covers expatriation. The numerous legislative powers granted by Art. I, 8, do not mention it. I do not know of any legislative power large enough and powerful enough to modify or wipe out rights granted or created by § 1, cl. 1 of the Fourteenth Amendment. Our decisions have never held that expatriation can be imposed. To the contrary, they have assumed that Page 356 U. S. 80 expatriation was a voluntary relinquishment of loyalty to one country and attachment to another. Justice Paterson spoke of expatriation in Talbot v. Janson , 3 Dall. 133, 3 U.S. 153 , as "a departure with intention to leave this country, and settle in another." The loss of citizenship in this country without its acquisition in another country was to him the creation of "a citizen of the world" -- a concept that is "a creature of the imagination, and far too refined for any republic of ancient or modern times." Ibid. So far as I can find, we have, prior to this day, never sustained the loss of a native-born American citizenship unless another citizenship was voluntarily acquired. That was true both in Mackenzie v. Hare, 239 U. S. 299 , and Savorgnan v. United States, 338 U. S. 491 . We should look to their facts, not to loose statements unnecessary for the decisions. In the Mackenzie case, it was the marriage of a native-born woman to an alien that caused the loss of one nationality and the acquisition of another. In the Savorgnan case, the native-born American citizen became naturalized in Italy. In this case, Perez did vote in a foreign election of some kind. But, as THE CHIEF JUSTICE has clearly shown, § 401(e) of the Nationality Act of 1940 "is not limited to those situations that may rationally be said to constitute an abandonment of citizenship." Ante, p. 356 U. S. 76 . Our landmark decision on expatriation is Perkins v. Elg, 307 U. S. 325 , where Chief Justice Hughes wrote for the Court. The emphasis of that opinion is that "Expatriation is the voluntary renunciation or abandonment of nationality and allegiance." Id. at 307 U. S. 334 . Today's decision breaks with that tradition. It allows Congress to brand an ambiguous act as a "voluntary renunciation" of citizenship when there is no requirement and no finding that the citizen transferred his loyalty from this country to another. This power is found in the Page 356 U. S. 81 power of Congress to regulate foreign affairs. But if voting abroad is so pregnant with danger that Congress can penalize it by withdrawing the voter's American citizenship, all citizens should be filled with alarm. Some of the most heated political discussions in our history have concerned foreign policy. I had always assumed that the First Amendment, written in terms absolute, protected those utterances, no matter how extreme, no matter how unpopular they might be. Yet if the power to regulate foreign affairs can be used to deprive a person of his citizenship because he voted abroad, why may not it be used to deprive him of his citizenship because his views on foreign policy are unorthodox, or because he disputed the position of the Secretary of State or denounced a Resolution of the Congress or the action of the Chief Executive in the field of foreign affairs? It should be remembered that many of our most heated controversies involved assertion of First Amendment rights respecting foreign policy. The hated Alien and Sedition Laws grew out of that field. [ Footnote 3/1 ] More recently, the rise of fascism and communism Page 356 U. S. 82 has had profound repercussions here. Could one who advocated recognition of Soviet Russia in the 1920's be deprived of his citizenship? Could that fate befall one who was a Bundist [ Footnote 3/2 ] in the late 1930's or early 1940's and extolled Hitler? Could it happen in the 1950's to one who pleaded for recognition of Red China or who proclaimed against the Eisenhower Doctrine in the Middle East? No doubt George F. Kennan "embarrassed" our foreign relations when he recently spoke over the British radio. [ Footnote 3/3 ] Does the Constitution permit Congress to cancel his citizenship? Could an American who violated his passport restrictions and visited Red China be deprived of his citizenship? Or suppose he trades with those under a ban. To many people, any of those acts would seem much more heinous than the fairly innocent act of voting abroad. If casting a ballot abroad is sufficient to deprive an American of his citizenship, why could not like penalties be imposed on the citizen who expresses disagreement with his Nation's foreign policy in any of the ways enumerated? The fact that First Amendment rights may be involved in some cases and not in others seems irrelevant. For the grant of citizenship by the Fourteenth Amendment is clear and explicit, and should withstand any invasion of the legislative power. What the Court does is to make it possible for any one of the many legislative powers to be used to wipe out or modify specific rights granted by the Constitution, provided the action taken is moderate and does not do violence to the sensibilities of a majority of this Court. The examples where this concept of Due Process has been Page 356 U. S. 83 used to sustain state action [ Footnote 3/4 ] as well as federal action, [ Footnote 3/5 ] which modifies or dilutes specific constitutional guarantees, are numerous. It is used today drastically to revise the express command of the first Clause of § 1 of the Fourteenth Amendment. A right granted by the Constitution -- whether it be the right to counsel or the right to citizenship -- may be waived by the citizen. [ Footnote 3/6 ] But the waiver must be first a voluntary act and second an act consistent with a surrender of the right granted. When Perez voted, he acted voluntarily. But, as shown, § 401(e) does not require that his act have a sufficient relationship to the relinquishment of citizenship -- nor a sufficient quality of adhering to a foreign power. Nor did his voting abroad have that quality. The decision we render today exalts the Due Process Clause of the Fifth Amendment above all others. Of course, any power exercised by the Congress must be asserted in conformity with the requirements of Due Process. Tot v. United States, 319 U. S. 463 ; United States v. Harriss, 347 U. S. 612 ; Lambert v. California, 355 U. S. 225 . But the requirement of Due Process is a limitation on powers granted, not the means whereby rights granted by the Constitution may be wiped out or watered down. The Fourteenth Amendment grants citizenship to the native-born, as explained in United States v. Wong Kim Ark, supra. That right may be waived or surrendered by the citizen. But I see no constitutional Page 356 U. S. 84 method by which it can be taken from him. Citizenship, like freedom of speech, press, and religion, occupies a preferred position in our written Constitution, because it is a grant absolute in terms. The power of Congress to withhold it, modify it, or cancel it does not exist. One who is native-born may be a good citizen or a poor one. Whether his actions be criminal or charitable, he remains a citizen for better or for worse, except and unless he voluntarily relinquishes that status. While Congress can prescribe conditions for voluntary expatriation, Congress cannot turn white to black and make any act an act of expatriation. For then the right granted by the Fourteenth Amendment becomes subject to regulation by the legislative branch. But that right has no such infirmity. It is deeply rooted in history, as United States v. Wong Kim Ark, supra, shows. And the Fourteenth Amendment put it above and beyond legislative control. That may have been an unwise choice. But we made it when we adopted the Fourteenth Amendment and provided that the native-born is an American citizen. Once he acquires that right, there is no power in any branch of our Government to take it from him. [ Footnote 3/1 ] Miller, Crisis in Freedom (1951), 167-168, states the Federalist case for those laws: "As in the case of the Alien Act, the Federalists justified the Sedition Law by citing the power of Congress to provide for the common defense and general welfare and the inherent right of every government to act in self-preservation. It was passed at a time of national emergency, when, as a member of Congress said, 'some gentlemen say we are at war, and when all believe we must have war.' 'Threatened by faction, and actually at hostility with a foreign and perfidious foe abroad,' the Sedition Act was held to be 'necessary for the safety perhaps the existence of the Government.' Congress could not permit subversive newspapers to 'paralyze the public arm and weaken the efforts of Government for the defense of the country.' The wiles of France and its adherents were as dangerous as its armies: 'Do not the Jacobin fiends of France use falsehood and all the arms of hell,' asked William Cobbett, 'and do they not run like half-famished wolves to accomplish the destruction of this country?' If Congress had failed to take every precautionary measure against such danger, the blood of the Republic would have been upon its hands." [ Footnote 3/2 ] Cf. Keegan v. United States, 325 U. S. 478 . [ Footnote 3/3 ] See Kennan, Russia, The Atom and the West (1957). [ Footnote 3/4 ] See Betts v. Brady, 316 U. S. 455 ; In re Summers, 325 U. S. 561 ; Adamson v. California, 332 U. S. 46 ; Bute v. Illinois, 333 U. S. 640 ; Feiner v. New York, 340 U. S. 315 ; Breard v. Alexandria, 341 U. S. 622 ; Adler v. Board of Education, 342 U. S. 485 ; Beauharnais v. Illinois, 343 U. S. 250 ; In re Groban, 352 U. S. 330 ; Breithaupt v. Abram, 352 U. S. 432 . [ Footnote 3/5 ] United Public Workers v. Mitchell, 330 U. S. 75 ; American Communications Assn. v. Douds, 339 U. S. 382 ; Dennis v. United States, 341 U. S. 494 . [ Footnote 3/6 ] E.g., Adams v. McCann, 317 U. S. 269 , 317 U. S. 275 . Memorandum of MR. JUSTICE WHITTAKER. Though I agree with the major premise of the majority's opinion -- that Congress may expatriate a citizen for an act which it may reasonably find to be fraught with danger of embroiling our Government in an international dispute or of embarrassing it in the conduct of foreign affairs -- I cannot agree with the result reached, for it seems plain to me that § 401(e) is too broadly written to be sustained upon that ground. That section, so far as here pertinent, expatriates an American citizen simply for "voting in a political election in a foreign state." Voting in a political election in a particular foreign state may be open to aliens under the law of that state, as it was in presidential elections Page 356 U. S. 85 in the United States until 1928 as the dissenting opinion of THE CHIEF JUSTICE observes. Where that is so -- and this record fails to show that petitioner's act of voting in a political election in Mexico in 1946 was not entirely lawful under the law of that state -- such legalized voting by an American citizen cannot reasonably be said to be fraught with danger of embroiling our Government in an international dispute or of embarrassing it in the conduct of foreign affairs, nor, I believe, can such an act -- entirely legal under the law of the foreign state -- be reasonably said to constitute an abandonment or any division or dilution of allegiance to the United States. Since these are my convictions, I dissent from the majority's opinion and join in so much of the dissenting opinion of THE CHIEF JUSTICE as expresses the view that the act of a citizen of the United States in voting in a foreign political election which is legally open to aliens under the law of that state cannot reasonably be said to constitute abandonment or any division or dilution of allegiance to the United States. This leaves open the question presented respecting the constitutionality of § 401(j), but inasmuch as the majority have found it unnecessary to adjudicate the constitutionality of that section in this case, it would be wholly fruitless for me now to reach a conclusion on that question, and I neither express nor imply any views upon it. Limiting myself to the issue decided by the majority, I dissent.

The Supreme Court ruled that Congress has the authority to pass laws revoking the citizenship of Americans who vote in foreign elections, as it falls under their power to regulate foreign relations. However, they did not rule on the constitutionality of revoking citizenship for Americans who stay abroad to avoid military service.

Immigration & National Security

Trop v. Dulles

https://supreme.justia.com/cases/federal/us/356/86/

U.S. Supreme Court Trop v. Dulles, 356 U.S. 86 (1958) Trop v. Dulles No. 70 Argued May 2, 1957 Restored to the calendar for reargument June 24, 1957 Reargued October 28-29, 1957 Decided March 31, 1958 356 U.S. 86 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus At least as applied in this case to a native-born citizen of the United States who did not voluntarily relinquish or abandon his citizenship or become involved in any way with a foreign nation, § 401(g) of the Nationality Act of 1940, as amended, which provides that a citizen "shall lose his nationality" by "deserting the military or naval forces of the United States in time of war, provided he is convicted thereof by court martial and as a result of such conviction is dismissed or dishonorably discharged from the service," is unconstitutional. Pp. 356 U. S. 87 -114. 239 F.2d 527, reversed. THE CHIEF JUSTICE, in an Opinion joined by MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS and MR. JUSTICE WHITTAKER, concluded that: 1. Citizenship is not subject to the general powers of the National Government, and therefore cannot be divested in the exercise of those powers. Pp. 356 U. S. 91 -93. 2. Even if citizenship could be divested in the exercise of some governmental power, § 401(g) violates the Eighth Amendment, because it is penal in nature and prescribes a "cruel and unusual" punishment. Pp. 356 U. S. 93 -104. MR. JUSTICE BLACK, in an opinion joined by MR. JUSTICE DOUGLAS, concurred in the opinion of THE CHIEF JUSTICE and expressed the view that, even if citizenship could be involuntarily divested, the power to denationalize may not be placed in the hands of military authorities. Pp. 356 U. S. 104 -105. MR. JUSTICE BRENNAN, while agreeing with the Court, in Perez v. Brownell, ante, p. 356 U. S. 44 , that there is no constitutional infirmity in § 401(e) which expatriates the citizen who votes in a foreign political election, concluded in this case that § 401(g) lies beyond the power of Congress to enact. Pp. 356 U. S. 105 -114. Page 356 U. S. 87 For dissenting opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE BURTON, MR. JUSTICE CLARK and MR. JUSTICE HARLAN, see post, p. 356 U. S. 114 . MR. CHIEF JUSTICE WARREN announced the judgment of the Court and delivered an opinion, in which MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and MR. JUSTICE WHITTAKER join. The petitioner in this case, a native-born American, is declared to have lost his United States citizenship and become stateless by reason of his conviction by court-martial for wartime desertion. As in Perez v. Brownell, ante p. 356 U. S. 44 , the issue before us is whether this forfeiture of citizenship comports with the Constitution. The facts are not in dispute. In 1944, petitioner was a private in the United States Army, serving in French Morocco. On May 22, he escaped from a stockade at Casablanca, where he had been confined following a previous breach of discipline. The next day, petitioner and a companion were walking along a road towards Rabat, in the general direction back to Casablanca, when an Army truck approached and stopped. A witness testified that petitioner boarded the truck willingly, and that no words were spoken. In Rabat, petitioner was turned over to military police. Thus, ended petitioner's "desertion." He had been gone less than a day, and had willingly surrendered to an officer on an Army vehicle while he was walking back towards his base. He testified that, at the Page 356 U. S. 88 time he and his companion were picked up by the Army truck, "we had decided to return to the stockade. The going was tough. We had no money to speak of, and at the time, we were on foot and we were getting cold and hungry." A general court-martial convicted petitioner of desertion and sentenced him to three years at hard labor, forfeiture of all pay and allowances and a dishonorable discharge. In 1952, petitioner applied for a passport. His application was denied on the ground that, under the provisions of Section 401(g) of the Nationality Act of 1940, as amended, [ Footnote 1 ] he had lost his citizenship by reason of his conviction and dishonorable discharge for wartime desertion. In 1955, petitioner commenced this action in the District Court, seeking a declaratory judgment that he is a citizen. The Government's motion for summary judgment was granted, and the Court of Appeals for the Second Circuit affirmed, Chief Judge Clark dissenting. 239 F.2d 527. We granted certiorari. 352 U.S. 1023. Page 356 U. S. 89 Section 401(g), the statute that decrees the forfeiture of this petitioner's citizenship, is based directly on a Civil War statute, which provided that a deserter would lose his "rights of citizenship." [ Footnote 2 ] The meaning of this phrase was not clear. [ Footnote 3 ] When the 1940 codification and revision of the nationality laws was prepared, the Civil War statute was amended to make it certain that what a convicted deserter would lose was nationality itself. [ Footnote 4 ] In 1944, the Page 356 U. S. 90 statute was further amended to provide that a convicted deserter would lose his citizenship only if he was dismissed from the service or dishonorably discharged. [ Footnote 5 ] At the same time, it was provided that citizenship could be regained if the deserter was restored to active duty in wartime with the permission of the military authorities. Though these amendments were added to ameliorate the harshness of the statute, [ Footnote 6 ] their combined effect produces a result that poses far graver problems than the ones that were sought to be solved. Section 401(g), as amended, now gives the military authorities complete discretion to decide who among convicted deserters shall continue to be Americans and who shall be stateless. By deciding whether to issue and execute a dishonorable discharge and whether to allow a deserter to reenter the armed forces, the military becomes the arbiter of citizenship. And the domain given to it by Congress is not as narrow as might be supposed. Though the crime of desertion is one of the most serious in military law, it is by no no means a rare event for a soldier to be convicted of this crime. The elements of desertion are simply absence from duty plus the intention not to return. [ Footnote 7 ] Into this Page 356 U. S. 91 category falls a great range of conduct, which may be prompted by a variety of motives -- fear, laziness, hysteria or any emotional imbalance. The offense may occur not only in combat, but also in training camps for draftees in this country. [ Footnote 8 ] The Solicitor General informed the Court that, during World War II, according to Army estimates, approximately 21,000 soldiers and airmen were convicted of desertion and given dishonorable discharges by the sentencing courts-martial, and that about 7,000 of these were actually separated from the service, and thus rendered stateless when the reviewing authorities refused to remit their dishonorable discharges. Over this group of men, enlarged by whatever the corresponding figures may be for the Navy and Marines, the military has been given the power to grant or withhold citizenship. And the number of youths subject to this power could easily be enlarged simply by expanding the statute to cover crimes other than desertion. For instance, a dishonorable discharge itself might in the future be declared to be sufficient to justify forfeiture of citizenship. Three times in the past three years, we have been confronted with cases presenting important questions bearing on the proper relationship between civilian and military authority in this country. [ Footnote 9 ] A statute such as Section 401(g) raises serious issues in this area, but, in our view of this case, it is unnecessary to deal with those problems. We conclude that the judgment in this case must be reversed for the following reasons. I In Perez v. Brownell, supra, I expressed the principles that I believe govern the constitutional status of United Page 356 U. S. 92 States citizenship. It is my conviction that citizenship is not subject to the general powers of the National Government, and therefore cannot be divested in the exercise of those powers. The right may be voluntarily relinquished or abandoned either by express language or by language and conduct that show a renunciation of citizenship. Under these principles, this petitioner has not lost his citizenship. Desertion in wartime, though it may merit the ultimate penalty, does not necessarily signify allegiance to a foreign state. Section 401(g) is not limited to cases of desertion to the enemy, and there is no such element in this case. This soldier committed a crime for which he should be and was punished, but he did not involve himself in any way with a foreign state. There was no dilution of his allegiance to this country. The fact that the desertion occurred on foreign soil is of no consequence. The Solicitor General acknowledged that forfeiture of citizenship would have occurred if the entire incident had transpired in this country. Citizenship is not a license that expires upon misbehavior. The duties of citizenship are numerous, and the discharge of many of these obligations is essential to the security and wellbeing of the Nation. The citizen who fails to pay his taxes or to abide by the laws safeguarding the integrity of elections deals a dangerous blow to his country. But could a citizen be deprived of his nationality for evading these basic responsibilities of citizenship? In time of war, the citizen's duties include not only the military defense of the Nation, but also full participation in the manifold activities of the civilian ranks. Failure to perform any of these obligations may cause the Nation serious injury, and, in appropriate circumstances, the punishing power is available to deal with derelictions of duty. But citizenship is not lost every time a duty of citizenship is shirked. And the deprivation of citizenship Page 356 U. S. 93 is not a weapon that the Government may use to express its displeasure at a citizen's conduct, however reprehensible that conduct may be. As long as a person does not voluntarily renounce or abandon his citizenship, and this petitioner has done neither, I believe his fundamental right of citizenship is secure. On this ground alone, the judgment in this case should be reversed. II Since a majority of the Court concluded in Perez v. Brownell that citizenship may be divested in the exercise of some governmental power, I deem it appropriate to state additionally why the action taken in this case exceeds constitutional limits, even under the majority's decision in Perez. The Court concluded in Perez that citizenship could be divested in the exercise of the foreign affairs power. In this case, it is urged that the war power is adequate to support the divestment of citizenship. But there is a vital difference between the two statutes that purport to implement these powers by decreeing loss of citizenship. The statute in Perez decreed loss of citizenship -- so the majority concluded -- to eliminate those international problems that were thought to arise by reason of a citizen's having voted in a foreign election. The statute in this case, however, is entirely different. Section 401(g) decrees loss of citizenship for those found guilty of the crime of desertion. It is essentially like Section 401(j) of the Nationality Act decreeing loss of citizenship for evading the draft by remaining outside the United States. [ Footnote 10 ] This provision Page 356 U. S. 94 was also before the Court in Perez, but the majority declined to consider its validity. While Section 401(j) decrees loss of citizenship without providing any semblance of procedural due process whereby the guilt of the draft evader may be determined before the sanction is imposed, Section 401(g), the provision in this case, accords the accused deserter at least the safeguards of an adjudication of guilt by a court-martial. The constitutional question posed by Section 401(g) would appear to be whether or not denationalization may be inflicted as a punishment, even assuming that citizenship may be divested pursuant to some governmental power. But the Government contends that this statute does not impose a penalty, and that constitutional limitations on the power of Congress to punish are therefore inapplicable. We are told this is so because a committee of Cabinet members, in recommending this legislation to the Congress, said it "technically is not a penal law." [ Footnote 11 ] How simple would be the tasks of constitutional adjudication and of law generally if specific problems could be solved by inspection of the labels pasted on them! Manifestly, the issue of whether Section 401(g) is a penal law cannot be thus determined. Of course, it is relevant to know the classification employed by the Cabinet Committee that played such an important role in the preparation of the Nationality Act of 1940. But it is equally relevant to know that this very committee acknowledged that Section 401(g) was based on the provisions of the 1865 Civil War statute, which the committee itself termed "distinctly penal in character." [ Footnote 12 ] Furthermore, the 1865 Page 356 U. S. 95 statute states in terms that deprivation of the rights of citizenship is "in addition to the other lawful penalties of the crime of desertion. . . ." [ Footnote 13 ] And certainly it is relevant to know that the reason given by the Senate Committee on Immigration as to why loss of nationality under Section 401(g) can follow desertion only after conviction by court-martial was "because the penalty is so drastic." [ Footnote 14 ] Doubtless even a clear legislative classification of a statute as "non-penal" would not alter the fundamental nature of a plainly penal statute. [ Footnote 15 ] With regard to Section 401(g), the fact is that the views of the Cabinet Committee and of the Congress itself as to the nature of the statute are equivocal, and cannot possibly provide the answer to our inquiry. Determination of whether this statute is a penal law requires careful consideration. In form, Section 401(g) appears to be a regulation of nationality. The statute deals initially with the status of nationality, and then specifies the conduct that will result in loss of that status. But surely form cannot provide the answer to this inquiry. A statute providing that "a person shall lose his liberty by committing bank robbery," though in form a regulation of liberty, would nonetheless be penal. Nor would its penal effect be altered by labeling it a regulation of banks or by arguing that there is a rational connection between safeguarding banks and imprisoning bank robbers. The inquiry must be directed to substance. This Court has been called upon to decide whether or not various statutes were penal ever since 1798. Calder v. Bull , 3 Dall. 386. Each time a statute has been challenged as being in conflict with the constitutional prohibitions against bills of attainder and ex post facto Page 356 U. S. 96 laws, [ Footnote 16 ] it has been necessary to determine whether a penal law was involved, because these provisions apply only to statutes imposing penalties. [ Footnote 17 ] In deciding whether or not a law is penal, this Court has generally based its determination upon the purpose of the statute. [ Footnote 18 ] If the statute imposes a disability for the purposes of punishment -- that is, to reprimand the wrongdoer, to deter others, etc. -- it has been considered penal. [ Footnote 19 ] But a statute has been considered nonpenal if it imposes a disability not to punish, but to accomplish some other legitimate governmental purpose. [ Footnote 20 ] The Court has recognized that any statute decreeing some adversity as a consequence of certain conduct may have both a penal and a nonpenal effect. The controlling nature of such statutes normally depends on the evident purpose of the legislature. The point may be illustrated by the situation of an ordinary felon. A person who commits a bank robbery, for instance, loses his right to liberty, and often his right to vote. [ Footnote 21 ] If, in the exercise of the power to protect banks, both sanctions were imposed for the purpose of punishing bank robbers, the statutes authorizing both disabilities would be penal. But because the purpose of Page 356 U. S. 97 the latter statute is to designate a reasonable ground of eligibility for voting, this law is sustained as a nonpenal exercise of the power to regulate the franchise. [ Footnote 22 ] The same reasoning applies to Section 401(g). The purpose of taking away citizenship from a convicted deserter is simply to punish him. There is no other legitimate purpose that the statute could serve. Denationalization in this case is not even claimed to be a means of solving international problems, as was argued in Perez. Here, the purpose is punishment, and therefore the statute is a penal law. It is urged that this statute is not a penal law, but a regulatory provision authorized by the war power. It cannot be denied that Congress has power to prescribe rules governing the proper performance of military obligations, of which perhaps the most significant is the performance of one's duty when hazardous or important service is required. But a statute that prescribes the consequence that will befall one who fails to abide by these regulatory provisions is a penal law. Plainly legislation prescribing imprisonment for the crime of desertion is penal in nature. If loss of citizenship is substituted for imprisonment, it cannot fairly be said that the use of this particular sanction transforms the fundamental nature of the statute. In fact, a dishonorable discharge with consequent loss of citizenship might be the only punishment meted out by a court-martial. During World War II, the threat of this punishment was explicitly communicated by the Army to soldiers in the field. [ Footnote 23 ] If this statute taking away citizenship is a congressional exercise of the war power, then it cannot rationally be treated other than as a penal law, because it imposes the sanction of denationalization Page 356 U. S. 98 for the purpose of punishing transgression of a standard of conduct prescribed in the exercise of that power. The Government argues that the sanction of denationalization imposed by Section 401(g) is not a penalty, because deportation has not been so considered by this Court. While deportation is undoubtedly a harsh sanction that has a severe penal effect, this Court has in the past sustained deportation as an exercise of the sovereign's power to determine the conditions upon which an alien may reside in this country. [ Footnote 24 ] For example, the statute [ Footnote 25 ] authorizing deportation of an alien convicted under the 1917 Espionage Act [ Footnote 26 ] was viewed not as designed to punish him for the crime of espionage, but as an implementation of the sovereign power to exclude, from which the deporting power is derived. Mahler v. Eby, 264 U. S. 32 . This view of deportation may be highly fictional, but even if its validity is conceded, it is wholly inapplicable to this case. No one contends that the Government has, in addition to the power to exclude all aliens, a sweeping power to denationalize all citizens. Nor does comparison to denaturalization eliminate the penal effect of denationalization in this case. Denaturalization is not imposed to penalize the alien for having falsified his application for citizenship; if it were, it would be a punishment. Rather, it is imposed in the exercise of the power to make rules for the naturalization of aliens. [ Footnote 27 ] In short, the fact that deportation and denaturalization for fraudulent procurement of citizenship may be imposed for purposes other than punishment affords no Page 356 U. S. 99 basis for saying that, in this case, denationalization is not a punishment. Section 401(g) is a penal law, and we must face the question whether the Constitution permits the Congress to take away citizenship as a punishment for crime. If it is assumed that the power of Congress extends to divestment of citizenship, the problem still remains as to this statute whether denationalization is a cruel and unusual punishment within the meaning of the Eighth Amendment. [ Footnote 28 ] Since wartime desertion is punishable by death, there can be no argument that the penalty of denationalization is excessive in relation to the gravity of the crime. The question is whether this penalty subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the Eighth Amendment. At the outset, let us put to one side the death penalty as an index of the constitutional limit on punishment. Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment -- and they are forceful -- the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty. But it is equally plain that the existence of the death penalty is not a license to the Government to devise any punishment short of death within the limit of its imagination. The exact scope of the constitutional phrase "cruel and unusual" has not been detailed by this Court. [ Footnote 29 ] But the Page 356 U. S. 100 basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice. The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688, [ Footnote 30 ] and the principle it represents can be traced back to the Magna Carta. [ Footnote 31 ] The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect. This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surprising. But when the Court was confronted with a punishment of 12 years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character. Weems v. United States, 217 U. S. 349 . The Court recognized in that case that the words of the Amendment are not precise, [ Footnote 32 ] and that their Page 356 U. S. 101 scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. We believe, as did Chief Judge Clark in the court below, [ Footnote 33 ] that use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, no primitive torture. There is, instead, the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights and, presumably, as long as he remained in this country, he would enjoy the limited rights of an alien, no country need do so, because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination Page 356 U. S. 102 at any time by reason of deportation. [ Footnote 34 ] In short, the expatriate has lost the right to have rights. This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies. [ Footnote 35 ] It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious. [ Footnote 36 ] The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime. It is true that several countries prescribe expatriation in the event that their nationals engage in conduct in derogation of native allegiance. [ Footnote 37 ] Even statutes of this sort are generally applicable primarily Page 356 U. S. 103 to naturalized citizens. But use of denationalization as punishment for crime is an entirely different matter. The United Nations' survey of the nationality laws of 84 nations of the world reveals that only two countries, the Philippines and Turkey, impose denationalization as a penalty for desertion. [ Footnote 38 ] In this country, the Eighth Amendment forbids this to be done. In concluding, as we do, that the Eighth Amendment forbids Congress to punish by taking away citizenship, we are mindful of the gravity of the issue inevitably raised whenever the constitutionality of an Act of the National Legislature is challenged. No member of the Court believes that, in this case the statute before us can be construed to avoid the issue of constitutionality. That issue confronts us, and the task of resolving it is inescapably ours. This task requires the exercise of judgment, not the reliance upon personal preferences. Courts must not consider the wisdom of statutes, but neither can they sanction as being merely unwise that which the Constitution forbids. We are oath-bound to defend the Constitution. This obligation requires that congressional enactments be judged by the standards of the Constitution. The Judiciary has the duty of implementing the constitutional safeguards that protect individual rights. When the Government acts to take away the fundamental right of citizenship, the safeguards of the Constitution should be examined with special diligence. The provisions of the Constitution are not time-worn adages or hollow shibboleths. They are vital, living principles that authorize and limit governmental powers in our Nation. They are the rules of government. When the constitutionality of an Act of Congress is challenged in this Court, we must apply those rules. If we Page 356 U. S. 104 do not, the words of the Constitution become little more than good advice. When it appears that an Act of Congress conflicts with one of these provisions, we have no choice but to enforce the paramount commands of the Constitution. We are sworn to do no less. We cannot push back the limits of the Constitution merely to accommodate challenged legislation. We must apply those limits as the Constitution prescribes them, bearing in mind both the broad scope of legislative discretion and the ultimate responsibility of constitutional adjudication. We do well to approach this task cautiously, as all our predecessors have counseled. But the ordeal of judgment cannot be shirked. In some 81 instances since this Court was established, it has determined that congressional action exceeded the bounds of the Constitution. It is so in this case. The judgment of the Court of Appeals for the Second Circuit is reversed, and the cause is remanded to the District Court for appropriate proceedings. Reversed aid remanded. [ Footnote 1 ] 54 Stat. 1168, 1169, as amended, 58 Stat. 4, 8 U.S.C. § 1481(a)(8): "A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: " " * * * *" "(g) Deserting the military or naval forces of the United States in time of war, provided he is convicted thereof by court martial and as the result of such conviction is dismissed or dishonorably discharged from the service of such military or naval forces: Provided, That notwithstanding loss of nationality or citizenship or civil or political rights under the terms of this or previous Acts by reason of desertion committed in time of war, restoration to active duty with such military or naval forces in time of war or the reenlistment or induction of such a person in time of war with permission of competent military or naval authority, prior or subsequent to the effective date of this Act, shall be deemed to have the immediate effect of restoring such nationality or citizenship and all civil and political rights heretofore or hereafter so lost and of removing all civil and political disabilities resulting therefrom. . . ." [ Footnote 2 ] Act of March 3, 1865, 13 Stat. 487, 490. [ Footnote 3 ] See Roche, The Loss of American Nationality -- The Development of Statutory Expatriation, 99 U. of Pa.L.Rev. 25, 60-62. Administratively, the phrase "rights of citizenship" was apparently taken to mean "citizenship." See Foreign Relations 1873, H.R.Exec.Doc. No. 1, 43d Cong., 1st Sess., Pt. 1, Vol. II, p 1187 (view of Secretary of State Fish); H.R.Doc. No. 326, 59th Cong., 2d Sess. 159 (State Department Board); Hearings before the House Committee on Immigration and Naturalization on H.R. 6127, 76th Cong., 1st Sess. 132-133 (testimony of Richard Flournoy, State Department representative). [ Footnote 4 ] Hearings at 133. But it is not entirely clear, however, that the Congress fully appreciated the fact that Section 401(g) rendered a convicted deserter stateless. In this regard, the following colloquy, which occurred during hearings in 1943 before the House Committee on Immigration and Naturalization between Congressmen Allen and Kearney, members of the Committee, and Edward J. Shaughnessy, then Deputy Commissioner of Immigration, is illuminating: "Mr. ALLEN. If he is convicted [of desertion] by court-martial in time of war, he loses his citizenship?" "Mr. SHAUGHNESSY. That is correct." "Mr. ALLEN. In other words, that is the same thing as in our civil courts. When one is convicted of a felony and is sent to the penitentiary, one loses his citizenship." "Mr. SHAUGHNESSY. He loses his rights of citizenship." "Mr. KEARNEY. There is a difference between losing citizenship and losing civil rights." "Mr. SHAUGHNESSY. He loses his civil rights, not his citizenship. Here, he loses his citizenship." "Mr. ALLEN. He loses his rights derived from citizenship." "Mr. SHAUGHNESSY. Yes; it almost amounts to the same thing. It is a technical difference." "Mr. ALLEN. He is still an American citizen, but he has no rights" "MR. SHAUGHNESSY. No rights of citizenship." Hearings before the House Committee on Immigration and Naturalization on H.R. 2207, 78th Cong., 1st Sess. 2-3. See also id. at 7: "Mr. ELMER. Is it not true that this loss of citizenship for desertion is a State matter, and that the Government has nothing to do with it?" [ Footnote 5 ] Act of January 20, 1944, 58 Stat. 4. [ Footnote 6 ] See S.Rep. No. 382, 78th Cong., 1st Sess. 1, 3; H.R.Rep. No. 302, 78th Cong., 1st Sess. 1; 89 Cong.Rec. 3241, 10135. [ Footnote 7 ] Articles of War 58, 41 Stat. 800; Article 85, Uniform Code of Military Justice, 10 U.S.C. (Supp. V) § 885; Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 637. [ Footnote 8 ] The Solicitor General stated in his argument that § 401(g) would apply to desertion from such camps. [ Footnote 9 ] United States ex rel. Toth v. Quarles, 350 U. S. 11 ; Reid v. Covert, 354 U. S. 1 ; Harmon . Brucker, 355 U. S. 579 . [ Footnote 10 ] 54 Stat. 1168, as amended, 58 Stat. 746, 8 U.S.C. § 1481(a)(10): "A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: " " * * * *" "(j) Departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the President to be a period of national emergency for the purpose of evading or avoiding training and service in the land or naval forces of the United States." [ Footnote 11 ] Codification of the Nationality Laws of the United States, H.R. Comm.Print, Pt. 1, 76th Cong., 1st Sess. 68. [ Footnote 12 ] Ibid. [ Footnote 13 ] Act of March 3, 1965, 13 Stat. 487. [ Footnote 14 ] S.Rep. No. 2150, 76th Con., 3d Sess. 3. [ Footnote 15 ] United States v. Constantine, 296 U. S. 287 , 296 U. S. 294 ; United States v. La Franca, 282 U. S. 568 , 282 U. S. 572 . [ Footnote 16 ] U.S.Const., Art. I, § 9, cl. 3; § 10, Cl. 1. [ Footnote 17 ] United States v. Lovett, 328 U. S. 303 ; Calder v. Bull , 3 Dall. 386. [ Footnote 18 ] Of course, the severity of the disability imposed, as well as all the circumstances surrounding the legislative enactment, are relevant to this decision. See generally Wormuth, Legislative Disqualifications as Bills of Attainder, 4 Vand.L.Rev. 603, 608-610; 64 Yale L.J. 712, 72-724. [ Footnote 19 ] E.g., United States v. Lovett, supra; 83 U. S. Carskadon, 16 Wall. 234; Ex parte Garland , 4 Wall. 333; Cummings v. Missouri , 4 Wall. 277. [ Footnote 20 ] E.g., Mahler v. Eby, 264 U. S. 32 ; Hawker v. New York, 170 U. S. 189 ; Davis v. Beason, 133 U. S. 333 ; Murphy v. Ramsey, 114 U. S. 15 . [ Footnote 21 ] See Gathings, Loss of Citizenship and Civil lights for Conviction of Crime, 43 Am.Pol.Sci.Rev. 1228. [ Footnote 22 ] Cf. Davis v. Beason, supra; Murphy v. Ramsey, supra. [ Footnote 23 ] See War Department Circular No. 273, 1942, Compilation of War Department General Orders, Bulletins and Circulars (Government Printing Office 1943) 343. [ Footnote 24 ] Mahler v. Eby, supra; Bugajewitz v. Adams, 228 U. S. 585 ; Fong Yue Ting v. United States, 149 U. S. 698 . [ Footnote 25 ] Act of May 10, 1920, 41 Stat. 593. [ Footnote 26 ] Act of June 15, 1917, 40 Stat. 217. [ Footnote 27 ] See, e.g., Baumgartner v. United States, 322 U. S. 665 ; Schneiderman v. United States, 320 U. S. 118 . [ Footnote 28 ] U.S.Const., Amend. VIII: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." [ Footnote 29 ] See Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 ; Weems v. United States, 217 U. S. 349 ; Howard v. Fleming, 191 U. S. 126 ; O'Neil v. Vermont, 144 U. S. 323 ; In re Kemmler, 136 U. S. 436 ; Wilkerson v. Utah, 99 U. S. 130 . [ Footnote 30 ] 1 Wm. & Mary, 2d Sess. (1689), c. 2. [ Footnote 31 ] See 34 Minn.L.Rev. 134; 4 Vand.L.Rev. 680. [ Footnote 32 ] Whether the word "unusual" has any qualitative meaning different from "cruel" is not clear. On the few occasions this Court has had to consider the meaning of the phrase, precise distinctions between cruelty and unusualness do not seem to have been drawn. See Weems v. United States, supra; O'Neil v. Vermont, supra; Wilkerson v. Utah, supra. These cases indicate that the Court simply examines the particular punishment involved in light of the basic prohibition against inhuman treatment, without regard to any subtleties of meaning that might be latent in the word "unusual." But cf. In re Kemmler, supra, at 136 U. S. 443 ; United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U. S. 407 , 255 U. S. 430 (Brandeis, J., dissenting). If the word "unusual" is to have any meaning apart from the word "cruel," however, the meaning should be the ordinary one, signifying something different from that which is generally done. Denationalization, as a punishment, certainly meets this test. It was never explicitly sanctioned by this Government until 1940, and never tested against the Constitution until this day. [ Footnote 33 ] "Plaintiff appellant has cited to us and obviously relied on the masterful analysis of expatriation legislation set forth in the Comment, The Expatriation Act of 1954, 64 Yale L.J. 1164, 1189-1199. I agree with the author's documented conclusions therein that punitive expatriation of persons with no other nationality constitutes cruel and unusual punishment and is invalid as such. Since I doubt if I can add to the persuasive arguments there made, I shall merely incorporate by reference. In my faith, the American concept of man's dignity does not comport with making even those we would punish completely 'stateless' -- fair game for the despoiler at home and the oppressor abroad, if indeed there is any place which will tolerate them at all." 239 F.2d 527, 530. [ Footnote 34 ] See discussion in Perez v. Brownell, ante p. 356 U. S. 44 , at 356 U. S. 64 . [ Footnote 35 ] See Study on Statelessness, U.N. Doc. No. E/1112; Seckler-Hudson, Statelessness: With Special Reference to the United States; Borchard, Diplomatic Protection of Citizens Abroad, §§ 262, 334. [ Footnote 36 ] The suggestion that judicial relief will be available to alleviate the potential rigors of statelessness assumes too much. Undermining such assumption is the still fresh memory of Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206 , where an alien, resident in this country for 25 years, returned from a visit abroad to find himself barred from this country and from all others to which he turned. Summary imprisonment on Ellis Island was his fate, without any judicial examination of the grounds of his confinement. This Court denied relief, and the intolerable situation was remedied after four years imprisonment only through executive action as a matter of grace. See N.Y. Times, Aug. 12, 1954, p 10, col. 4. [ Footnote 37 ] See Laws Concerning Nationality, U.N. Doc. No. ST/LEG SER.B/4 (1954). [ Footnote 38 ] Id. at 379 and 461. Cf. Nationality Law Of August 22, 1907, Art. 17(2) (Haiti), id. at 208. MR. JUSTICE BLACK, whom MR. JUSTICE DOUGLAS joins, concurring. While I concur in the opinion of THE CHIEF JUSTICE, there is one additional thing that needs to be said. Even if citizenship could be involuntarily divested, I do not believe that the power to denationalize may be placed in the hands of military authorities. If desertion or other misconduct is to be a basis for forfeiting citizenship, guilt should be determined in a civilian court of justice, where all the protections of the Bill of Rights guard the fairness of the outcome. Such forfeiture should not rest on the findings of a military tribunal. Military courts may try soldiers and punish them for military offenses, but they should not have the last word on the soldier's right to citizenship. The statute held invalid Page 356 U. S. 105 here not only makes the military's finding of desertion final, but gives military authorities discretion to choose which soldiers convicted of desertion shall be allowed to keep their citizenship and which ones shall thereafter be stateless. Nothing in the Constitution or its history lends the slightest support for such military control over the right to be an American citizen. MR. JUSTICE BRENNAN, concurring. In Perez v. Brownell, ante p. 356 U. S. 44 , also decided today, I agreed with the Court that there was no constitutional infirmity in § 401(e), which expatriates the citizen who votes in a foreign political election. I reach a different conclusion in this case, however, because I believe that § 401(g), which expatriates the wartime deserter who is dishonorably discharged after conviction by court-martial, lies beyond Congress' power to enact. It is, concededly, paradoxical to justify as constitutional the expatriation of the citizen who has committed no crime by voting in a Mexican political election, yet find unconstitutional a statute which provides for the expatriation of a soldier guilty of the very serious crime of desertion in time of war. The loss of citizenship may have as ominous significance for the individual in the one case as in the other. Why then does not the Constitution prevent the expatriation of the voter, as well as the deserter? Here, as in Perez v. Brownell, we must inquire whether there exists a relevant connection between the particular legislative enactment and the power granted to Congress by the Constitution. The Court there held that such a relevant connection exists between the power to maintain relations with other sovereign nations and the power to expatriate the American who votes in a foreign election. (1) Within the power granted to Congress to regulate the conduct of foreign affairs lies the power to deal with evils which might obstruct or embarrass our diplomatic Page 356 U. S. 106 interests. Among these evils, Congress might believe, is that of voting by American citizens in political elections of other nations. [ Footnote 2/1 ] Whatever the realities of he situation, many foreign nations may well view political activity on the part of Americans, even if lawful, as either expressions of official American positions or else as improper meddling in affairs not their own. In either event, the reaction is liable to be detrimental to the interests of the United States. (2) Finding that this was an evil which Congress was empowered to prevent, the Court concluded that expatriation was a means reasonably calculated to achieve this end. Expatriation, it should be noted, has the advantage of acting automatically, for the very act of casting the ballot is the act of denationalization, which could have the effect of cutting off American responsibility for the consequences. If a foreign government objects, our answer should be conclusive -- the voter is no longer one of ours. Harsh as the consequences may be to the individual concerned, Congress has ordained the loss of citizenship simultaneously with the act of voting because Congress might reasonably believe that, in these circumstances, there is no acceptable alternative to expatriation as a means of avoiding possible embarrassments to our relations with foreign nations. [ Footnote 2/2 ] And where Congress has determined that considerations of the highest national importance indicate a course of action for which an adequate Page 356 U. S. 107 substitute might rationally appear lacking, I cannot say that this means lies beyond Congress' power to choose. Cf. Korematsu v. United States, 323 U. S. 214 . In contrast to § 401(e), the section with which we are now concerned, § 401(g), draws upon the power of Congress to raise and maintain military forces to wage war. No pretense can here be made that expatriation of the deserter in any way relates to the conduct of foreign affairs, for this statute is not limited in its effects to those who desert in a foreign country or who flee to another land. Nor is this statute limited in its application to the deserter whose conduct imports "elements of an allegiance to another country in some measure, at least, inconsistent with American citizenship." Perez v. Brownell, supra, at 356 U. S. 61 . The history of this provision, indeed, shows that the essential congressional purpose was a response to the needs of the military in maintaining discipline in the armed forces, especially during wartime. There can be no serious question that included in Congress' power to maintain armies is the power to deal with the problem of desertion, an act plainly destructive not only of the military establishment as such, but, more importantly, of the Nation's ability to wage war effectively. But granting that Congress is authorized to deal with the evil of desertion, we must yet inquire whether expatriation is a means reasonably calculated to achieve this legitimate end, and thereby designed to further the ultimate congressional objective -- the successful waging of war. Expatriation of the deserter originated in the Act of 1865, 13 Stat. 490, when wholesale desertion and draft law violations seriously threatened the effectiveness of the Union armies. [ Footnote 2/3 ] The 1865 Act expressly provided Page 356 U. S. 108 that expatriation was to be "in addition to the other lawful penalties of the crime of desertion. . . ." This was emphasized in the leading case under the 1865 Act, Huber v. Reily, 53 Pa. 112, decided by the Pennsylvania Supreme Court little more than a year after passage of the Act. The court said that "Its avowed purpose is to add to the penalties which the law had previously affixed to the offence of desertion from the military or naval service of the United States, and it denominates the additional sanctions provided as penalties." Id. at 114-115. But, although it imposed expatriation entirely as an added punishment for crime, the 1865 Act did not expressly make conviction by court-martial a prerequisite to that punishment, as was the case with the conventional penalties. The Pennsylvania Supreme Court felt that Huber was right in contending that this was a serious constitutional objection: "[T]he act proposes to inflict pains and penalties upon offenders before and without a trial and conviction by due process of law, and . . . it is therefore prohibited by the Bill of Rights." 53 Pa. at 115. The court, however, construed the statute so as to avoid these constitutional difficulties, holding that loss of citizenship, like other penalties for desertion, followed only upon conviction by court-martial. This view of the 1865 Act was approved by this Court in Kurtz v. Mott, 115 U. S. 487 , 115 U. S. 501 , and, as noted there, the same view "has been uniformly held by the civil courts as well as by the military authorities." See McCafferty v. Guyer, 59 Pa. 109; State v. Symonds, 57 Me. 148; Gotcheus v. Matheson, 58 Barb. (N.Y.) 152; 2 Winthrop, Military Law and Precedents (2d ed. 1896), 1001. [ Footnote 2/4 ] Of Page 356 U. S. 109 particular significance, moreover, is the fact that the Congress has confirmed the correctness of the view that it purposed expatriation of the deserter solely as additional punishment. The present § 401(g) merely incorporates the 1865 provision in the codification which became the 1940 Nationality Act. [ Footnote 2/5 ] But now there is expressly stated what was omitted from the 1865 Act, namely, that the deserter shall be expatriated "if and when he is convicted thereof by court martial. . . ." 54 Stat. 1169, as amended, 8 U.S.C. § 1481(a)(8). [ Footnote 2/6 ] It is difficult, indeed, to see how expatriation of the deserter helps wage war except as it performs that function when imposed as punishment. It is obvious that expatriation cannot in any wise avoid the harm apprehended by Congress. After the act of desertion, only Page 356 U. S. 110 punishment can follow, for the harm has been done. The deserter, moreover, does not cease to be an American citizen at the moment he deserts. Indeed, even conviction does not necessarily effect his expatriation, for dishonorable discharge is the condition precedent to loss of citizenship. Therefore, if expatriation is made a consequence of desertion, it must stand together with death and imprisonment -- as a form of punishment. To characterize expatriation as punishment is, of course, but the beginning of critical inquiry. As punishment, it may be extremely harsh, but the crime of desertion may be grave indeed. However, the harshness of the punishment may be an important consideration where the asserted power to expatriate has only a slight or tenuous relation to the granted power. In its material forms, no one can today judge the precise consequences of expatriation, for, happily, American law has had little experience with this status, and it cannot be said hypothetically to what extent the severity of the status may be increased consistently with the demands of due process. But it can be supposed that the consequences of greatest weight, in terms of ultimate impact on the petitioner, are unknown and unknowable. [ Footnote 2/7 ] Indeed, in truth, he may live out his life with but minor inconvenience. He may perhaps live, work, marry, raise a family, and generally experience a satisfactorily happy life. Nevertheless it cannot be denied that the impact of expatriation -- especially where statelessness is the upshot -- may be severe. Expatriation, in this respect, constitutes an Page 356 U. S. 111 especially demoralizing sanction. The uncertainty, and the consequent psychological hurt, which must accompany one who becomes an outcast in his own land must be reckoned a substantial factor in the ultimate judgment. In view of the manifest severity of this sanction, I feel that we should look closely at its probable effect to determine whether Congress' imposition of expatriation as a penal device is justified in reason. Clearly the severity of the penalty, in the case of a serious offense, is not enough to invalidate it where the nature of the penalty is rationally directed to achieve the legitimate ends of punishment. The novelty of expatriation as punishment does not alone demonstrate its inefficiency. In recent years, we have seen such devices as indeterminate sentences and parole added to the traditional term of imprisonment. Such penal methods seek to achieve the end, at once more humane and effective, that society should make every effort to rehabilitate the offender and restore him as a useful member of that society as society's own best protection. Of course, rehabilitation is but one of the several purposes of the penal law. Among other purposes are deterrents of the wrongful act by the threat of punishment and insulation of society from dangerous individuals by imprisonment or execution. What, then, is the relationship of the punishment of expatriation to these ends of the penal law? It is perfectly obvious that it constitutes the very antithesis of rehabilitation, for instead of guiding the offender back into the useful paths of society, it excommunicates him and makes him, literally, an outcast. I can think of no more certain way in which to make a man in whom, perhaps, rest the seeds of serious anti-social behavior more likely to pursue further a career of unlawful activity than to place on him the stigma of the derelict, uncertain of many of his basic rights. Similarly, it must be questioned whether expatriation Page 356 U. S. 112 can really achieve the other effects sought by society in punitive devices. Certainly it will not insulate society from the deserter, for, unless coupled with banishment, the sanction leaves the offender at large. And, as a deterrent device, this sanction would appear of little effect, for the offender, if not deterred by thought of the specific penalties of long imprisonment or even death, is not very likely to be swayed from his course by the prospect of expatriation. [ Footnote 2/8 ] However insidious and demoralizing may be the actual experience of statelessness, its contemplation in advance seems unlikely to invoke serious misgiving, for none of us yet knows its ramifications. In the light of these considerations, it is understandable that the Government has not pressed its case on the basis of expatriation of the deserter as punishment for his crime. Rather, the Government argues that the necessary nexus to the granted power is to be found in the idea that legislative withdrawal of citizenship is justified in this case because Trop's desertion constituted a refusal to perform one of the highest duties of American citizenship -- the bearing of arms in a time of desperate national peril. It cannot be denied that there is implicit in this a certain rough justice. He who refuses to act as an American should no longer be an American -- what could be fairer? But I cannot see that this is anything other than forcing retribution from the offender -- naked vengeance. But many acts of desertion certainly fall far short of a "refusal to perform this ultimate duty of American citizenship." Page 356 U. S. 113 Desertion is defined as "absence without leave accompanied by the intention not to return." Army Manual for Courts-Martial (1928) 142. The offense may be quite technical, as where an officer, "having tendered his resignation and prior to due notice of the acceptance of the same, quits his post or proper duties without leave and with intent to absent himself permanently therefrom. . . ." Article of War 28 (1920), 41 Stat. 792. Desertion is also committed where a soldier, without having received a regular discharge, reenlists in the same or another service. The youngster, for example, restive at his assignment to a supply depot, who runs off to the front to be in the fight, subjects himself to the possibility of this sanction. Yet the statute imposes the penalty coextensive with the substantive crime. Since many acts of desertion thus certainly fall far short of a "refusal to perform this ultimate duty of American citizenship," it stretches the imagination excessively to establish a rational relation of mere retribution to the ends purported to be served by expatriation of the deserter. I simply cannot accept a judgment that Congress is free to adopt any measure at all to demonstrate its displeasure and exact its penalty from the offender against its laws. It seems to me that nothing is solved by the uncritical reference to service in the armed forces as the "ultimate duty of American citizenship." Indeed, it is very difficult to imagine, on this theory of power, why Congress cannot impose expatriation as punishment for any crime at all -- for tax evasion, for bank robbery, for narcotics offenses. As citizens, we are also called upon to pay our taxes and to obey the laws, and these duties appear to me to be fully as related to the nature of our citizenship as our military obligations. But Congress' asserted power to expatriate the deserter bears to the war powers precisely the same relation as its power to expatriate the tax evader would bear to the taxing power. Page 356 U. S. 114 I therefore must conclude that § 401(g) is beyond the power of Congress to enact. Admittedly Congress' belief that expatriation of the deserter might further the war effort may find some -- though necessarily slender -- support in reason. But here, any substantial achievement, by this device, of Congress' legitimate purposes under the war power seems fairly remote. It is at the same time abundantly clear that these ends could more fully be achieved by alternative methods not open to these objections. In the light of these factors, and conceding all that I possibly can in favor of the enactment, I can only conclude that the requisite rational relation between this statute and the war power does not appear -- for, in this relation, the statute is not "really calculated to effect any of the objects entrusted to the government . . . ," M'Culloch v. Maryland , 4 Wheat. 316, 17 U. S. 423 -- and therefore that § 401(g) falls beyond the domain of Congress. [ Footnote 2/1 ] Some indication of the problem is to be seen in the joint resolutions introduced in both houses of Congress to exempt the two or three thousand Americans who allegedly lost their citizenship by voting in certain Italian elections. See S.J.Res. 47 and H.J.Res. 30, 239, 375, 81st Cong., 1st Sess. All proposed "to suspend the operation of section 401(e) of the Nationality Act of 1940 in certain cases." See also H.R. 6400, 81st Cong., 1st Sess. [ Footnote 2/2 ] Perez v. Brownell did not raise questions under the First Amendment, which, of course, would have the effect in appropriate cases of limiting congressional power otherwise possessed. [ Footnote 2/3 ] A good description of the extent of the problem raised by desertions from the Union armies, and of the extreme measures taken to combat the problem, will be found in Pullen, The Twentieth Maine. A Volunteer Regiment of the Civil War (1957). [ Footnote 2/4 ] The opinion in Huber v. Reily, which was written by Mr. Justice Strong, later a member of this Court, suggested, if it did not hold, that the statutes and considerations of due process required that expatriation, to be accomplished, should be specifically included by the court-martial as part of the sentence. See 53 Pa. at 119-120. The court-martial, under military law, adjudges both guilt and the extent of initial sentence. Jackson v. Taylor, 353 U. S. 569 , 353 U. S. 574 -575, and see Article of War 58 (1920), 41 Stat. 800. However, it has not been the practice specifically to include expatriation as part of the sentence. 2 Winthrop, Military Law and Precedents (2d ed. 1896), 1001. [ Footnote 2/5 ] The provision was limited in 1912 to desertion in time of war, 37 Stat. 356, but otherwise was not revised until carried into the Nationality Act of 1940, 54 Stat. 1169. It was, however, first codified as part of the laws concerning citizenship as § 1998 of the 1874 Revised Statutes. [ Footnote 2/6 ] The reason for the addition of the proviso is stated in a report, Codification of the Nationality Laws of the United States, H.R. Comm.Print, Pt. 1, 76th Cong., 1st Sess., prepared at the request of the President by the Secretary of State, the Attorney General, and the Secretary of Labor, proposing a revision and codification of the nationality laws: "The provisions of sections 1996 and 1998 of the Revised Statutes are distinctly penal in character. They must, therefore, be construed strictly, and the penalties take effect only upon conviction by a court martial ( Huber v. Reilly, 1866, 53 Penn.St. 112; Kurtz v. Moffitt, 1885, 115 U. S. 487 )." Id. at 68. The reference later in the report that § 401 "technically is not a penal law" is to the section as a whole, and not to subdivision (g). [ Footnote 2/7 ] Adjudication of hypothetical and contingent consequences is beyond the function of this Court, and the incidents of expatriation are altogether indefinite. Nonetheless, this very uncertainty of the consequences makes expatriation as punishment severe. It is also unnecessary to consider whether the consequences would be different for the citizen expatriated under another section than § 401(g). [ Footnote 2/8 ] A deterrent effect is certainly conjectural when we are told that, during World War II, as many as 21,000 soldiers were convicted of desertion and sentenced to be dishonorably discharged. From the fact that the reviewing authorities ultimately remitted the dishonorable discharges in about two-thirds of these cases it is possible to infer that the military itself had no firm belief in the deterrent effects of expatriation. MR. JUSTICE FRANKFURTER, whom MR. JUSTICE BURTON, MR. JUSTICE CLARK and MR. JUSTICE HARLAN join, dissenting. Petitioner was born in Ohio in 1924. While in the Army serving in French Morocco in 1944, he was tried by a general court-martial and found guilty of having twice escaped from confinement, of having been absent without leave, and of having deserted and remained in desertion for one day. He was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for three years. He subsequently returned to the United States. In 1952, he applied for a passport; this application was denied by the State Department on the ground that petitioner had lost his citizenship as a result of his conviction of and dishonorable discharge for desertion from the Army in time of war. The Department relied upon § 401 of the Page 356 U. S. 115 Nationality Act of 1940, 54 Stat. 1137, 1168, as amended by the Act of January 20, 1944, 58 Stat. 4, which provided, in pertinent part, [ Footnote 3/1 ] that "A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:" " * * * *" "(g) Deserting the military or naval forces of the United States in time of war, provided he is convicted thereof by court martial and as the result of such conviction is dismissed or dishonorably discharged from the service of such military or naval forces: Provided, That notwithstanding loss of nationality or citizenship or civil or political rights under the terms of this or previous Acts by reason of desertion committed in time of war, restoration to active duty with such military or naval forces in time of war or the reenlistment or induction of such a person in time of war with permission of competent military or naval authority, prior or subsequent to the effective date of this Act, shall be deemed to have the immediate effect of restoring such nationality or citizenship and all civil and political rights heretofore or hereafter so lost and of removing all civil and political disabilities resulting therefrom. . . ." In 1955, petitioner brought suit in a United States District Court for a judgment declaring him to be a national of the United States. The Government's motion for summary judgment was granted, and petitioner's denied. Page 356 U. S. 116 The Court of Appeals for the Second Circuit affirmed, one judge dissenting. 239 F.2d 527. At the threshold, the petitioner suggests constructions of the statute that would avoid consideration of constitutional issues. If such a construction is precluded, petitioner contends that Congress is without power to attach loss of citizenship as a consequence of conviction for desertion. He also argues that such an exercise of power would violate the Due Process Clause of the Fifth Amendment to the Constitution and the prohibition against cruel and unusual punishments in the Eighth Amendment. The subsection of § 401 of the Nationality Act of 1940, as amended, making loss of nationality result from a conviction for desertion in wartime is a direct descendant of a provision enacted during the Civil War. One section of "An Act to amend the several Acts heretofore passed to provide for the Enrolling and Calling out [of] the National Forces, and for other Purposes," 13 Stat. 487, 490, approved on March 3, 1865, provided that, "in addition to the other lawful penalties of the crime of desertion from the military or naval service," all persons who desert such service "shall be deemed and taken to have voluntarily relinquished and forfeited their rights of citizenship and their rights to become citizens. . . ." Except as limited in 1912 to desertion in time of war, 37 Stat. 356, the provision remained in effect until absorbed into the Nationality Act of 1940. 54 Stat. 1137, 1169, 1172. Shortly after its enactment, the 1865 provision received an important interpretation in Huber v. Reily, 53 Pa. 112 (1866). There, the Supreme Court of Pennsylvania, in an opinion by Mr. Justice Strong, later of this Court, held that the disabilities of the 1865 Act could attach only after the individual had been convicted of desertion by a court-martial. The requirement was drawn from the Due Process Clause of the Fifth Amendment to the Constitution. 53 Pa. at 116-118. This interpretation was Page 356 U. S. 117 followed by other courts, e.g., State v. Symonds, 57 Me. 148, and was referred to approvingly by this Court in 1885 in Kurtz v. Moffitt, 115 U. S. 487 , without discussion of its rationale. When the nationality laws of the United States were revised and codified as the Nationality Act of 1940, 54 Stat. 1137, there was added to the list of acts that result in loss of American nationality, "Deserting the military or naval service of the United States in time of war, provided he [the deserter] is convicted thereof by a court martial." § 401(g), 54 Stat. 1169. During the consideration of the Act, there was substantially no debate on this provision. It seems clear, however, from the report of the Cabinet Committee that had recommended its adoption that nothing more was intended in its enactment than to incorporate the 1865 provision into the 1940 codification, at the same time making it clear that nationality, and not the ambiguous "rights of citizenship," [ Footnote 3/2 ] was to be lost, and that the provision applied to all nationals. Codification of the Nationality Laws of the United States, H.R. Comm.Print, Pt. 1, 76th Cong., 1st Sess. 68. In 1944, at the request of the War Department, Congress amended § 401(g) of the 1940 Act into the form in which it was when applied to the petitioner; this amendment required that a dismissal or dishonorable discharge result from the conviction for desertion before expatriation should follow, and provided that restoration of a deserter to active duty during wartime should have the effect of restoring his citizenship. 58 Stat. 4. It is abundantly clear from the debate and reports that the Page 356 U. S. 118 sole purpose of this change was to permit persons convicted of desertion to regain their citizenship and continue serving in the armed forces, H.R.Rep. No. 302, 78th Cong., 1st Sess. l; S.Rep. No. 382, 78th Cong., 1st Sess. 1; 89 Cong.Rec. 10135. Because it was thought unreasonable to require persons who were still in the service to fight and perhaps die for the country when they were no longer citizens, the requirement of dismissal or dishonorable discharge prior to denationalization was included in the amendment. See S.Rep. No. 382, supra at 3; 89 Cong.Rec. 3241. Petitioner advances two possible constructions of § 401(g) that would exclude him from its operation and avoid constitutional determinations. It is suggested that the provision applies only to desertion to the enemy, and that the sentence of a dishonorable discharge, without the imposition of which a conviction for desertion does not have an expatriating effect, must have resulted from a conviction solely for desertion. There is no support for the first of these constructions in a fair reading of § 401(g) or in its congressional history. Rigorously as we are admonished to avoid consideration of constitutional issues if statutory disposition is available, it would do violence to what this statute compellingly conveys to draw from it a meaning other than what it spontaneously reveals. Section 401(g) imposes expatriation on an individual for desertion "provided he is convicted thereof by court-martial and as the result of such conviction is dismissed or dishonorably discharged from the service of such military or naval forces. . . ." Petitioner's argument is that the dishonorable discharge must be solely "the result of such conviction," and that § 401(g) is therefore not applicable to him, convicted as he was of escape from confinement and absence without leave, in addition to desertion. Since the invariable practice in military trials Page 356 U. S. 119 is and has been that related offenses are tried together with but a single sentence to cover all convictions, see Jackson v. Taylor, 353 U. S. 569 , 353 U. S. 574 , the effect of the suggested construction would be to force a break with the historic process of military law for which Congress has not in the remotest way given warrant. The obvious purpose of the 1944 amendment, requiring dishonorable discharge as a condition precedent to expatriation, was to correct the situation in which an individual who had been convicted of desertion, and who had thus lost his citizenship, was kept on duty to fight and sometimes die "for his country which disowns him." Letter from Secretary of War to Chairman, Senate Military Affairs Committee, S.Rep. No. 382, 78th Cong., 1st Sess. 3. There is not a hint in the congressional history that the requirement of discharge was intended to make expatriation depend on the seriousness of the desertion, as measured by the sentence imposed. If we are to give effect to the purpose of Congress in making a conviction for wartime desertion result in loss of citizenship, we must hold that the dishonorable discharge, in order for expatriation to follow, need only be "the result of" conviction for one or more offenses among which one must be wartime desertion. Since none of petitioner's nonconstitutional grounds for reversal can be sustained, his claim of unconstitutionality must be faced. What is always basic when the power of Congress to enact legislation is challenged is the appropriate approach to judicial review of congressional legislation. All power is, in Madison's phrase, "of an encroaching nature." Federalist, No. 48 (Earle ed.1937), at 321. Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint. When the power of Congress to pass a statute is challenged, the function Page 356 U. S. 120 of this Court is to determine whether legislative action lies clearly outside the constitutional grant of power to which it has been, or may fairly be, referred. In making this determination, the Court sits in judgment on the action of a coordinate branch of the Government while keeping unto itself -- as it must, under our constitutional system -- the final determination of its own power to act. No wonder such a function is deemed "the gravest and most delicate duty that this Court is called on to perform." Holmes, J., in Blodgett v. Holden, 275 U. S. 142 , 275 U. S. 148 (separate opinion). This is not a lip-serving platitude. Rigorous observance of the difference between limits of power and wise exercise of power -- between questions of authority and questions of prudence -- requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail, to disregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do. One of the principal purposes in establishing the Constitution was to "provide for the common defence." To that end, the States granted to Congress the several powers of Article I, Section 8, clauses 11 to 14 and 18, compendiously described as the "war power." Although these specific grants of power do not specifically enumerate every factor relevant to the power to conduct war, there is no limitation upon it (other than what the Due Process Page 356 U. S. 121 Clause commands). The scope of the war power has been defined by Chief Justice Hughes in Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398 , 290 U. S. 426 : "[T]he war power of the Federal Government is not created by the emergency of war, but it is a power given to meet that emergency. It is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation." See also Chief Justice Stone's opinion in Hirabayashi v. United States, 320 U. S. 81 , 320 U. S. 93 . Probably the most important governmental action contemplated by the war power is the building up and maintenance of an armed force for the common defense. Just as Congress may be convinced of the necessity for conscription for the effective conduct of war, Selective Draft Law Cases, 245 U. S. 366 , Congress may justifiably be of the view that stern measures -- what to some may seem overly stern -- are needed in order that control may be had over evasions of military duty when the armed forces are committed to the Nation's defense, and that the deleterious effects of those evasions may be kept to the minimum. Clearly Congress may deal severely with the problem of desertion from the armed forces in wartime; it is equally clear -- from the face of the legislation and from the circumstances in which it was passed -- that Congress was calling upon its war powers when it made such desertion an act of expatriation. Cf. Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 647. Possession by an American citizen of the rights and privileges that constitute citizenship imposes correlative obligations, of which the most indispensable may well be "to take his place in the ranks of the army of his country and risk the chance of being shot down in its defense," Jacobson v. Massachusetts, 197 U. S. 11 , 197 U. S. 29 . Harsh as this may sound, it is no more so than the actualities to which it responds. Can it be said that there is no Page 356 U. S. 122 rational nexus between refusal to perform this ultimate duty of American citizenship and legislative withdrawal of that citizenship? Congress may well have thought that making loss of citizenship a consequence of wartime desertion would affect the ability of the military authorities to control the forces with which they were expected to fight and win a major world conflict. It is not for us to deny that Congress might reasonably have believed the morale and fighting efficiency of our troops would be impaired if our soldiers knew that their fellows who had abandoned them in their time of greatest need were to remain in the communion of our citizens. Petitioner urges that imposing loss of citizenship as a "punishment" for wartime desertion is a violation of both the Due Process Clause of the Fifth Amendment and the Eighth Amendment. His objections are that there is no notice of expatriation as a consequence of desertion in the provision defining that offense, that loss of citizenship as a "punishment" is unconstitutionally disproportionate to the offense of desertion, and that loss of citizenship constitutes "cruel and unusual punishment." The provision of the Articles of War under which petitioner was convicted for desertion, Art. 58, Articles of War, 41 Stat. 787, 800, does not mention the fact that one convicted of that offense in wartime should suffer the loss of his citizenship. It may be that stating all of the consequences of conduct in the statutory provision making it an offense is a desideratum in the administration of criminal justice; that can scarcely be said -- nor does petitioner contend that it ever has been said -- to be a constitutional requirement. It is not for us to require Congress to list in one statutory section not only the ordinary penal consequences of engaging in activities therein prohibited, but also the collateral disabilities that follow, by operation of law, from a conviction thereof duly resulting Page 356 U. S. 123 from a proceeding conducted in accordance with all of the relevant constitutional safeguards. [ Footnote 3/3 ] Of course, an individual should be apprised of the consequences of his actions. The Articles of War put petitioner on notice that desertion was an offense and that, when committed in wartime, it was punishable by death. Art. 58, supra. Expatriation automatically followed by command of the Nationality Act of 1940, a duly promulgated Act of Congress. The War Department appears to have made every effort to inform individual soldiers of the gravity of the consequences of desertion; its Circular No. 273 of 1942 pointed out that convictions for desertion were punishable by death, and would result in "forfeiture of the rights of citizenship," and it instructed unit commanders to "explain carefully to all Page 356 U. S. 124 personnel of their commands [certain Articles of War, including Art. 58] . . . and emphasize the serious consequences which may result from their violation." Compilation of War Department General Orders, Bulletins, and Circulars (Government Printing Office 1943) 343. That Congress must define in the rubric of the substantive crime all the consequences of conduct it has made a grave offense, and that it cannot provide for a collateral consequence, stern as it may be, by explicit pronouncement in another place on the statute books, is a claim that hardly rises to the dignity of a constitutional requirement. Petitioner contends that loss of citizenship is an unconstitutionally disproportionate "punishment" for desertion, and that it constitutes "cruel and unusual punishment" within the scope of the Eighth Amendment. Loss of citizenship entails undoubtedly severe -- and, in particular situations, even tragic -- consequences. Divestment of citizenship by the Government has been characterized, in the context of denaturalization, as "more serious than a taking of one's property, or the imposition of a fine or other penalty." Schneiderman v. United States, 320 U. S. 118 , 320 U. S. 122 . However, like denaturalization, see Klapprott v. United States, 335 U. S. 601 , 335 U. S. 612 , expatriation under the Nationality Act of 1940 is not "punishment" in any valid constitutional sense. Cf. Fong Yue Ting v. United States, 149 U. S. 698 , 149 U. S. 730 . Simply because denationalization was attached by Congress as a consequence of conduct that it had elsewhere made unlawful, it does not follow that denationalization is a "punishment," any more than it can be said that loss of civil rights as a result of conviction for a felony, see Gathings, Loss of Citizenship and Civil Rights for Conviction of Crime, 43 Am.Pol.Sci.Rev. 1228, 1233, is a "punishment" for any legally significant purposes. The process of denationalization, as devised by the expert Cabinet Committee on which Congress quite properly Page 356 U. S. 125 and responsibly relied [ Footnote 3/4 ] and as established by Congress in the legislation before the Court, [ Footnote 3/5 ] was related to the authority of Congress, pursuant to its constitutional powers, to regulate conduct free from restrictions that pertain to legislation in the field technically described as criminal justice. Since there are legislative ends within the scope of Congress' war power that are wholly consistent with a "non-penal" purpose to regulate the military forces, and since there is nothing on the face of this legislation or in its history to indicate that Congress had a contrary purpose, there is no warrant for this Court's labeling the disability imposed by § 401(g) as a "punishment." Even assuming, arguendo, that § 401(g) can be said to impose "punishment," to insist that denationalization is "cruel and unusual" punishment is to stretch that concept beyond the breaking point. It seems scarcely arguable that loss of citizenship is within the Eighth Amendment's prohibition because disproportionate to an offense that is capital and has been so from the first year of Independence. Art. 58, supra; § 6, Art. 1, Articles of War of 1776, 5 J.Cont.Cong. (Ford ed.1906) 792. Is constitutional dialectic so empty of reason that it can be seriously urged that loss of citizenship is a fate worse than death? The seriousness of abandoning one's country when it is in the grip of mortal conflict precludes denial Page 356 U. S. 126 to Congress of the power to terminate citizenship here, unless that power is to be denied to Congress under any circumstance. Many civilized nations impose loss of citizenship for indulgence in designated prohibited activities. See generally Laws Concerning Nationality, U.N. Doc. No. ST/LEG/SER.B/4 (1954). Although these provisions are often, but not always, applicable only to naturalized citizens, they are more nearly comparable to our expatriation law than to our denaturalization law. [ Footnote 3/6 ] Some countries have made wartime desertion result in loss of citizenship -- native-born or naturalized. E.g., § 1(6), Philippine Commonwealth Act No. 63 of Oct. 21, 1936, as amended by Republic Act No. 106 of June 2, 1947, U.N. Doc., supra, at 379; see Borchard, Diplomatic Protection of Citizens Abroad, 730. In this country, desertion has been punishable by loss of at least the "rights of citizenship" [ Footnote 3/7 ] since 1865. The Court today reaffirms its decisions ( Mackenzie v. Hare, 239 U. S. 299 ; Savorgnan v. United States, 338 U. S. 491 ) sustaining the power of Congress to denationalize citizens who had no desire or intention to give up their citizenship. If loss of citizenship may constitutionally be made the consequence of such conduct as marrying a foreigner, and thus certainly not "cruel and unusual," it seems more than incongruous that such loss should be thought "cruel and unusual" when it is the consequence of conduct that is also a crime. In short, denationalization, when attached to the offense Page 356 U. S. 127 of wartime desertion, cannot justifiably be deemed so at variance with enlightened concepts of "humane justice," see Weems v. United States, 217 U. S. 349 , 217 U. S. 78 , as to be beyond the power of Congress, because constituting a "cruel and unusual" punishment within the meaning of the Eighth Amendment. Nor has Congress fallen afoul of that prohibition because a person's post-denationalization status has elements of unpredictability. Presumably a denationalized person becomes an alien vis-a-vis the United States. The very substantial rights and privileges that the alien in this country enjoys under the federal and state constitutions puts him in a very different condition from that of an outlaw in fifteenth-century England. He need not be in constant fear lest some dire and unforeseen fate be imposed on him by arbitrary governmental action -- certainly not "while this Court sits" (Holmes, J., dissenting in Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218 , 277 U. S. 223 ). The multitudinous decisions of this Court protective of the rights of aliens bear weighty testimony. And the assumption that brutal treatment is the inevitable lot of denationalized persons found in other countries is a slender basis on which to strike down an Act of Congress otherwise amply sustainable. It misguides popular understanding of the judicial function and of the limited power of this Court in our democracy to suggest that, by not invalidating an Act of Congress, we would endanger the necessary subordination of the military to civil authority. This case, no doubt, derives from the consequence of a court-martial. But we are sitting in judgment not on the military, but on Congress. The military merely carried out a responsibility with which they were charged by Congress. Should the armed forces have ceased discharging wartime deserters because Congress attached the consequence it did to their performance of that responsibility? Page 356 U. S. 128 This legislation is the result of an exercise by Congress of the legislative power vested in it by the Constitution, and of an exercise by the President of his constitutional power in approving a bill and thereby making it "a law." To sustain it is to respect the actions of the two branches of our Government directly responsive to the will of the people and empowered under the Constitution to determine the wisdom of legislation. The awesome power of this Court to invalidate such legislation, because in practice it is bounded only by our own prudence in discerning the limits of the Court's constitutional function, must be exercised with the utmost restraint. Mr. Justice Holmes, one of the profoundest thinkers who ever sat on this Court, expressed the conviction that "I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States." Holmes, Speeches, 102. He did not, of course, deny that the power existed to strike down congressional legislation, nor did he shrink from its exercise. But the whole of his work during his thirty years of service on this Court should be a constant reminder that the power to invalidate legislation must not be exercised as if, either in constitutional theory or in the art of government, it stood as the sole bulwark against unwisdom or excesses of the moment. [ Footnote 3/1 ] The substance of this provision now appears in § 349(a)(8) of the Immigration and Nationality Act of 1952, 66 Stat. 163, 268, 8 U.S.C. § 1481(a)(8). [ Footnote 3/2 ] The precise meaning of this phrase has never been clear, see Roche, The Loss of American Nationality -- The Development of Statutory Expatriation, 99 U. of Pa.L.Rev. 25, 61-62. It appears, however, that the State Department regarded it to mean loss of citizenship, see, e.g., Hearings before the House Committee on Immigration and Naturalization on H.R. 6127, 76th Cong., 1st Sess. 38. [ Footnote 3/3 ] It should be noted that a person cannot be deprived of his citizenship merely on the basis of an administrative finding that he deserted in wartime, or even with finality on the sole basis of his having been dishonorably discharged as a result of a conviction for wartime desertion. Section 503 of the Nationality Act of 1940 provides: "If any person who claims a right or privilege as a national of the United States is denied such right or privilege by any Department or agency, or executive official thereof, upon the ground that he is not a national of the United States, such person, regardless of whether he is within the United States or abroad, may institute an action against the head of such Department or agency in the District Court of the United States for the District of Columbia or in the district court of the United States for the district in which such person claims a permanent residence for a judgment declaring him to be a national of the United States. . . ." 54 Stat. 1137, 1171, now § 360 of the Immigration and Nationality Act of 1952, 66 Stat. 163, 273, 8 U.S.C. § 1503. In such a proceeding, it is open to a person who, like petitioner, is alleged to have been expatriated under § 401(g) of the 1940 Act to show, for example, that the court-martial was without jurisdiction (including observance of the requirements of due process) or that the individual, by his restoration to active duty after conviction and discharge, regained his citizenship under the terms of the proviso in § 401(g), supra. [ Footnote 3/4 ] The report of that Committee stated that the provision in question "technically is not a penal law." Codification of the Nationality Laws of the United States, supra, at 68. In their letter to the President covering the report, the Committee stated that none of the loss of nationality provisions was "designed to be punitive. . . ." Id. at VII. [ Footnote 3/5 ] There is no basis for finding that the Congress that enacted this provision regarded it otherwise than as part of the clearly nonpenal scheme of "acts of expatriation" represented by § 401 of the Nationality Act of 1940, supra. [ Footnote 3/6 ] In the United States, denaturalization is based exclusively on the theory that the individual obtained his citizenship by fraud, see Luria v. United States, 231 U. S. 9 , 231 U. S. 24 ; the laws of many countries making naturalized citizens subject to expatriation for grounds not applicable to natural-born citizens do not relate those grounds to the actual naturalization process. E.g., British Nationality Act, 1948, 11 & 12 Geo. VI, c. 56, § 20(3). [ Footnote 3/7 ] See note 2 supra.

In *Trop v. Dulles*, the Supreme Court ruled that a native-born American citizen who was convicted by a court-martial for wartime desertion and subsequently lost his US citizenship and became stateless, had his citizenship forfeiture unconstitutional. The Court held that citizenship is not subject to the general powers of the National Government and cannot be taken away, even if it could be, the specific statute prescribing loss of citizenship as a punishment for desertion was "cruel and unusual" and thus unconstitutional.

Immigration & National Security

Mathews v. Diaz

https://supreme.justia.com/cases/federal/us/426/67/

U.S. Supreme Court Mathews v. Diaz, 426 U.S. 67 (1976) Mathews v. Diaz No. 73-1046 Argued January 13, 1975 Reargued January 12, 1976 Decided June 1, 1976 426 U.S. 67 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Syllabus Title 42 U.S.C. § 1395 o (2) qualifies for enrollment in the Medicare supplemental medical insurance program residents of the United States who are 65 or older, but in subsection (b) denies eligibility to aliens unless they have been admitted for permanent residence and also have resided in the United States for at least five years. Appellee Diaz filed a class action suit in the District Court attacking the constitutionality of § 1395 o (2)(b), and thereafter the District Court granted leave to add appellees Clara and Espinosa as plaintiffs and to file an amended complaint, which alleged that Clara had been disqualified for the same reasons as Diaz (lack of citizenship, nonadmission for permanent residence, and inability to meet the five-year residence requirement), but explained that Espinosa, though lawfully admitted for permanent residence, had not attempted to enroll because he could not meet the durational residence requirement. Appellant filed a motion to dismiss on the ground that appellees had not exhausted their administrative remedies. Two days later, Espinosa applied for enrollment, and so advised the court. Though none of the appellees completely exhausted available avenues for administrative review, appellant acknowledged that the applications of Diaz and Clara raised no disputed factual issues, and that the interlocutory denials of their applications should be treated as final for purposes of this litigation, and conceded that Espinosa's application could not be allowed under the statute. The District Court overruled appellant's motion and held that the five-year residence requirement violated due process and that, since it could not be severed from the requirement of admission for permanent residence, the alien eligibility provisions of § 1395 o (2)(B) were entirely unenforceable. Held: 1. The District Court had jurisdiction over Espinosa's claim, which (unlike the other appellees' claims) squarely raises the question of the constitutionality of the five-year residence requirement. Pp. 426 U. S. 74 -77. Page 426 U. S. 68 (a) Espinosa's filing of an application, though not made until he had become a party, met the nonwaivable jurisdictional condition imposed by 42 U.S.C. § 405(g) that a claim for benefits under the Social Security Act shall have been presented to the Secretary of Health, Education, and Welfare, and the pleadings may be treated as properly supplemented by appellant's stipulation that Espinosa had filed an application. P. 426 U. S. 75 . (b) Appellant's stipulation that Espinosa's application would be denied for failure to meet the durational residence requirement was tantamount to a denial of the application, and constituted a waiver of the exhaustion requirements, and thus satisfied the statutory requirement of a hearing and final decision. Weinberger v. Salfi, 422 U. S. 749 . Cf. Weinberger v. Wiesenfeld, 420 U. S. 636 n. 6, 420 U. S. 641 n. 8. Pp. 426 U. S. 75 -77. 2. The statutory classification in § 1395 o (2)(B) does not deprive appellees of liberty or property in violation of the Due Process Clause of the Fifth Amendment. Pp. 426 U. S. 77 -87. (a) Congress, which has broad power over immigration and naturalization and regularly makes rules regarding aliens that would be unacceptable if applied to citizens, has no constitutional duty to provide all aliens with the welfare benefits provided to citizens; the real question here is not whether discrimination between aliens and citizens is permissible, as it clearly is, but whether the statutory discrimination within the class of aliens is permissible. Pp. 426 U. S. 77 -80. (b) The political branches of government have considerable flexibility in responding to changing world conditions, and judicial review of decisions made by the Congress or the President in the area of immigration and naturalization is narrow. The party challenging the constitutionality of the particular line Congress has drawn has the burden of advancing principled reasoning that will at once invalidate that line and yet tolerate a different line separating some aliens from others. Pp. 426 U. S. 81 -82. (c) This case essentially involves only a claim that it would have been more reasonable for Congress to select somewhat different requirements of the same kind. The requirements chosen by Congress render eligible those aliens who may reasonably be assumed to have a greater affinity with the United States, and this Court is especially reluctant to question such a policy choice of degree. Pp. 426 U. S. 82 -84. 361 F. Supp. 1 , reversed. Page 426 U. S. 69 STEVENS, J., delivered the opinion for a unanimous Court. MR. JUSTICE STEVENS delivered the opinion of the Court. The question presented by the Secretary's appeal is whether Congress may condition an alien's eligibility for participation in a federal medical insurance program on continuous residence in the United States for a five-year period and admission for permanent residence. The District Court held that the first condition was unconstitutional, and that it could not be severed from the second. Since we conclude that both conditions are constitutional, we reverse. Each of the appellees is a resident alien who was lawfully admitted to the United States less than five years ago. Appellees Diaz and Clara are Cuban refugees who remain in this country at the discretion of the Attorney General; appellee Espinosa has been admitted for permanent Page 426 U. S. 70 residence. All three are over 65 years old, and have been denied enrollment in the Medicare Part B supplemental medical insurance program established by § 1831 et seq. of the Social Security Act of 1935, 49 Stat. 620, as added, 79 Stat. 301, and as amended, 42 U.S.C. § 1395, et seq. (1970 ed. and Supp. IV). [ Footnote 1 ] They brought this action to challenge the statutory basis for that denial. Specifically, they attack 42 U.S.C. § 1395 o (2) (1970 ed., Supp. IV), which grants eligibility to resident citizens who are 65 or older but denies eligibility to comparable aliens unless they have been admitted for permanent residence and also have resided in the United States for at least five years. [ Footnote 2 ] Appellees Diaz and Clara meet neither requirement; appellee Espinosa meets only the first. On August 18, 1972, Diaz filed a class action complaint in the United States District Court for the Southern Page 426 U. S. 71 District of Florida alleging that his application for enrollment had been denied on the ground that he was not a citizen and had neither been admitted for permanent residence nor resided in the United States for the immediately preceding five years. He further alleged that numerous other persons had been denied enrollment in the Medicare Part B program for the same reasons. He sought relief on behalf of a class of persons who have been or will be denied enrollment in the Medicare insurance program for failure to meet the requirements of 42 U.S.C. § 1395 o (2) (1970 ed., Supp. IV). Since the complaint prayed for a declaration that § 1395 o (2) was unconstitutional and for an injunction requiring the Secretary to approve all applicants who had been denied eligibility solely for failure to comply with its requirements, a three-judge court was constituted. On September 28, 1972, the District Court granted leave to add Clara and Espinosa as plaintiffs and to file an amended complaint. That pleading alleged that Clara had been denied enrollment for the same reasons as Diaz, but explained that Espinosa, although a permanent resident since 1971, had not attempted to enroll because he could not meet the durational residence requirement, and therefore any attempt would have been futile. The amended complaint sought relief on behalf of a subclass represented by Espinosa -- that is, aliens admitted for permanent residence who have been or will be denied enrollment for failure to meet the five-year continuous residence requirement -- as well as relief on behalf of the class represented by Diaz and Clara. [ Footnote 3 ] Page 426 U. S. 72 On October 24, 1972, the Secretary moved to dismiss the complaint on the ground, among others, that the District Court lacked jurisdiction over the subject matter because none of the plaintiffs had exhausted his administrative remedies under the Social Security Act. Two days later, on October 26, 1972, Espinosa filed his application for enrollment with the Secretary. He promptly brought this fact to the attention of the District Court, without formally supplementing the pleadings. None of the appellees completely exhausted available avenues for administrative review. Nevertheless, the Page 426 U. S. 73 Secretary acknowledged that the applications of Diaz and Clara raised no disputed issues of fact, and therefore the interlocutory denials of their applications should be treated as final for the purpose of this litigation. This satisfied the jurisdictional requirements of 42 U.S.C. § 405(g). Weinberger v. Salfi, 422 U. S. 749 , 422 U. S. 763 -767; Weinberger v. Wiesenfeld, 420 U. S. 636 , 420 U. S. 641 n. 8. The Secretary did not make an equally unambiguous concession with respect to Espinosa, but, in colloquy with the court, he acknowledged that Espinosa had filed an application which could not be allowed under the statute. [ Footnote 4 ] The District Court overruled the Secretary's motion to dismiss and decided the merits on cross-motions for summary judgment. The District Court held that the five-year residence requirement violated the Due Process Clause of the Fifth Amendment [ Footnote 5 ] and that, since it could not be severed from the requirement of admission for permanent residence, the alien eligibility provisions of § 1395 o (2)(B) were entirely unenforceable. Diaz v. Weinberger, 361 F. Supp. 1 (1973). The District Court reasoned that, "even though fourteenth amendment notions of equal protection are not entirely congruent with fifth amendment concepts of due process," id. at 9, the danger of unjustifiable discrimination against aliens in the enactment of welfare programs is so great, in view of their complete lack of representation in the political process, that this federal statute should be tested under the same pledge of equal protection as a state statute. So tested, the court concluded that the statute was invalid because it was not both rationally based and free from invidious discrimination. It rejected the desire to preserve the fiscal Page 426 U. S. 74 integrity of the program, or to treat some aliens as less deserving than others, as adequate justification for the statute. Accordingly, the court enjoined the Secretary from refusing to enroll members of the class and subclass represented by appellees. The Secretary appealed directly to this Court. [ Footnote 6 ] We noted probable jurisdiction. Weinberger v. Diaz, 416 U.S. 980. After hearing argument last Term, we set the case for reargument. 420 U.S. 959. We now consider (1) whether the District Court had jurisdiction over Espinosa's claim; (2) whether Congress may discriminate in favor of citizens and against aliens in providing welfare benefits; and (3) if so, whether the specific discriminatory provisions in § 1395 o (2)(B) are constitutional. I Espinosa's claim squarely raises the question whether the requirement of five years' continuous residence is constitutional, a question that is not necessarily presented by the claims of Diaz and Clara. For if the requirement of admission for permanent residence is valid, their applications were properly denied even if the durational residence requirement is ineffective. [ Footnote 7 ] We Page 426 U. S. 75 must therefore decide whether the District Court had jurisdiction over Espinosa's claim. We have little difficulty with Espinosa's failure to file an application with the Secretary until after he was joined in the action. Although 42 U.S.C. § 405(g) establishes filing of an application as a nonwaivable condition of jurisdiction, Mathews v. Eldridge, 424 U. S. 319 , 424 U. S. 328 ; Weinberger v. Salfi, 422 U.S. at 422 U. S. 764 , Espinosa satisfied this condition while the case was pending in the District Court. A supplemental complaint in the District Court would have eliminated this jurisdictional issue; [ Footnote 8 ] since the record discloses, both by affidavit and stipulation, that the jurisdictional condition was satisfied, it is not too late, even now, to supplement the complaint to allege this fact. [ Footnote 9 ] Under these circumstances, we treat the pleadings as properly supplemented by the Secretary's stipulation that Espinosa had filed an application. A further problem is presented by the absence of any formal administrative action by the Secretary denying Espinosa's application. Section 405(g) requires a final decision by the Secretary after a hearing as a prerequisite of jurisdiction. Mathews v. Eldridge, supra at 424 U. S. 328 -330; Weinberger v. Salfi, supra at 422 U. S. 763 -765. However, Page 426 U. S. 76 we held in Salfi that the Secretary could waive the exhaustion requirements which this provision contemplates, and that he had done so in that case. Id. at 422 U. S. 765 -767; accord, Mathews v. Eldridge, supra at 424 U. S. 329 -330 (dictum); Weinberger v. Wiesenfeld, 420 U.S. at 420 U. S. 641 n. 8. We reach a similar conclusion here. The plaintiffs in Salfi alleged that their claims had been denied by the local and regional Social Security offices and that the only question was one of constitutional law, beyond the competence of the Secretary to decide. These allegations did not satisfy the exhaustion requirements of § 405(g) or the Secretary's regulations, but the Secretary failed to challenge the sufficiency of the allegations on this ground. We interpreted this failure as a determination by the Secretary that exhaustion would have been futile, and deferred to his judgment that the only issue presented was the constitutionality of a provision of the Social Security Act. The same reasoning applies to the present case. Although the Secretary moved to dismiss for failure to exhaust administrative remedies, at the hearing on the motion, he stipulated that no facts were in dispute, that the case was ripe for disposition by summary judgment, and that the only issue before the District Court was the constitutionality of the statute. [ Footnote 10 ] As in Salfi, this constitutional question is beyond the Secretary's competence. Indeed, the Secretary has twice stated in this Court that he stipulated in the District Court that Espinosa's application would be denied for failure to meet the durational residence requirement. [ Footnote 11 ] For jurisdictional purposes, we Page 426 U. S. 77 treat the stipulation in the District Court as tantamount to a decision denying the application and as a waiver of the exhaustion requirements. Cf. Weinberger v. Wiesenfeld, supra at 420 U. S. 640 n. 6, 420 U. S. 641 n. 8. We conclude, as we did in Salfi, that the Secretary's submission of the question for decision on the merits by the District Court satisfied the statutory requirement of a hearing and final decision. We hold that Espinosa's claim, as well as the claims of Diaz and Clara, must be decided. II There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law. Wong Yang Sung v. McGrath, 339 U. S. 33 , 339 U. S. 48 -51; Wong Wing v. United States, 163 U. S. 228 , 163 U. S. 238 ; see Russian Fleet v. United States, 282 U. S. 481 , 282 U. S. 489 . Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection. Wong Yang Sung, supra; Wong Wing, supra. Page 426 U. S. 78 The fact that all persons, aliens and citizens alike, are protected by the Due Process Clause does not lead to the further conclusion that all aliens are entitled to enjoy all the advantages of citizenship or, indeed, to the conclusion that all aliens must be placed in a single homogeneous legal classification. For a host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and aliens may justify attributes and benefits for one class not accorded to the other; [ Footnote 12 ] and the class of aliens is itself a heterogeneous Page 426 U. S. 79 multitude of persons with a wide-ranging variety of ties to this country. [ Footnote 13 ] In the exercise of its broad power over naturalization Page 426 U. S. 80 and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens. The exclusion of aliens [ Footnote 14 ] and the reservation of the power to deport [ Footnote 15 ] have no permissible counterpart in the Federal Government's power to regulate the conduct of its own citizenry. [ Footnote 16 ] The fact that an Act of Congress treats aliens differently from citizens does not, in itself, imply that such disparate treatment is "invidious." I n particular, the fact that Congress has provided some welfare benefits for citizens does not require it to provide like benefits for all alien. Neither the overnight visitor, the unfriendly agent of a hostile foreign power, the resident diplomat, nor the illegal entrant, can advance even a colorable constitutional claim to a share in the bounty that a conscientious sovereign makes available to its own citizens and some of its guests. The decision to share that bounty with our guests may take into account the character of the relationship between the alien and this country: Congress may decide that, as the alien's tie grows stronger, so does the strength of his claim to an equal share of that munificence. The real question presented by this case is not whether discrimination between citizens and aliens is permissible; rather, it is whether the statutory discrimination within the class of aliens -- allowing benefits to some aliens but not to others -- is permissible. We turn to that question. Page 426 U. S. 81 III For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government. [ Footnote 17 ] Since decisions in these matters may implicate our relations with foreign powers, and since a wide variety of classifications must be defined in the light of changing political and economic circumstances, such decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary. This very case illustrates the need for flexibility in policy choices, rather than the rigidity often characteristic of constitutional adjudication. Appellees Diaz and Clara are but two of over 440,000 Cuban refugees who arrived in the United States between 1961 and 1972. [ Footnote 18 ] And the Cuban parolees are but one of several categories of aliens who have been admitted in order to make a humane response to a natural catastrophe or an international political situation. [ Footnote 19 ] Any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution. [ Footnote 20 ] The reasons Page 426 U. S. 82 that preclude judicial review of political questions [ Footnote 21 ] also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization. Since it is obvious that Congress has no constitutional duty to provide all aliens with the welfare benefits provided to citizens, the party challenging the constitutionality of the particular line Congress has drawn has the burden of advancing principled reasoning that will at once invalidate that line and yet tolerate a different line separating some aliens from others. In this case, the appellees have challenged two requirements -- first, that the alien be admitted as a permanent resident, and, second, that his residence be of a duration of at least five years. But if these requirements were eliminated, surely Congress would at least require that the alien's entry be lawful; even then, unless mere transients are to be held constitutionally entitled to benefits, some durational requirement would certainly be appropriate. In short, it Page 426 U. S. 83 is unquestionably reasonable for Congress to make an alien's eligibility depend on both the character and the duration of his residence. Since neither requirement is wholly irrational, this case essentially involves nothing more than a claim that it would have been more reasonable for Congress to select somewhat different requirements of the same kind. We may assume that the five-year line drawn by Congress is longer than necessary to protect the fiscal integrity of the program. [ Footnote 22 ] We may also assume that unnecessary hardship is incurred by persons just short of qualifying. But it remains true that some line is essential, that any line must produce some harsh and apparently arbitrary consequences, and, of greatest importance, that those who qualify under the test Congress has chosen may reasonably be presumed to have a greater affinity with the United States than those who do not. In short, citizens and those who are most like citizens qualify. Those who are less like citizens do not. The task of classifying persons for medical benefits, like the task of drawing lines for federal tax purposes, inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line; the differences between the Page 426 U. S. 84 eligible and the ineligible are differences in degree, rather than differences in the character of their respective claims. When this kind of policy choice must be made, we are especially reluctant to question the exercise of congressional judgment. [ Footnote 23 ] In this case, since appellees have not identified a principled basis for prescribing a different standard than the one selected by Congress, they have, in effect, merely invited us to substitute our judgment for that of Congress in deciding which aliens shall be eligible to participate in the supplementary insurance program on the same conditions as citizens. We decline the invitation. IV The cases on which appellees rely are consistent with our conclusion that this statutory classification does not deprive them of liberty or property without due process of law. Graham v. Richardson, 403 U. S. 365 , provides the strongest support for appellees' position. That case holds that state statutes that deny welfare benefits to resident aliens, or to aliens not meeting a requirement of durational residence within the United States, violate the Equal Protection Clause of the Fourteenth Amendment and encroach upon the exclusive federal power over the entrance and residence of aliens. Of course, the latter ground of decision actually supports our holding today that it is the business of the political branches of the Federal Government, rather than that of either the States or the Federal Judiciary, to regulate the conditions of entry and residence of aliens. The equal protection analysis also involves significantly different considerations, because it concerns the relationship between Page 426 U. S. 85 aliens and the States, rather than between aliens and the Federal Government. Insofar as state welfare policy is concerned, [ Footnote 24 ] there is little, if any, basis for treating persons who are citizens of another State differently from persons who are citizens of another country. Both groups are noncitizens as far as the State's interests in administering its welfare programs are concerned. Thus, a division by a State of the category of persons who are not citizens of that State into subcategories of United States citizens and aliens has no apparent justification, whereas a comparable classification by the Federal Government is a routine and normally legitimate part of its business. Furthermore, whereas the Constitution inhibits every State's power to restrict travel across its own borders, Congress is explicitly empowered to exercise that type of control over travel across the borders of the United States. [ Footnote 25 ] The distinction between the constitutional limits on state power and the constitutional grant of power to the Federal Government also explains why appellees' reliance on Memorial Hospital v. Maricopa County, 415 U. S. 250 , is misplaced. That case involved Arizona's requirement of durational residence within a county in order to receive nonemergency medical care at the Page 426 U. S. 86 county's expense. No question of alienage was involved. Since the sole basis for the classification between residents impinged on the constitutionally guaranteed right to travel within the United States, the holding in Shapiro v. Thompson, 394 U. S. 618 , required that it be justified by a compelling state interest. [ Footnote 26 ] Finding no such justification, we held that the requirement violated the Equal Protection Clause. This case, however, involves no state impairment of the right to travel -- nor indeed any impairment whatever of the right to travel within the United States; the predicate for the equal protection analysis in those cases is simply not present. Contrary to appellees' characterization, it is not "political hypocrisy" to recognize that the Fourteenth Amendment's Page 426 U. S. 87 limits on state powers are substantially different from the constitutional provisions applicable to the federal power over immigration and naturalization. Finally, we reject the suggestion that U.S. Dept. of Agriculture v. Moreno , 413 U. S. 528 , lends relevant support to appellees' claim. No question involving alienage was presented in that case. Rather, we found that the denial of food stamps to households containing unrelated members was not only unsupported by any rational basis, but actually was intended to discriminate against certain politically unpopular groups. This case involves no impairment of the freedom of association of either citizens or aliens. We hold that § 1395 o (2)(B) has not deprived appellees of liberty or property without due process of law. The judgment of the District Court is Reversed. [ Footnote 1 ] The Medicare Part B medical insurance program for the aged covers a part of the cost of certain physicians' services, home health care, outpatient physical therapy, and other medical and health care. 42 U.S.C. § 1395k (1970 ed. and Supp. IV). The program supplements the Medicare Part A hospital insurance plan, § 1811 et seq. of the Social Security Act of 1935, 49 Stat. 620, as added, 79 Stat. 291, and as amended, 42 U.S.C. § 1395c et seq. (1970 ed. and Supp. IV), and it is financed in equal parts by the United States and by monthly premiums paid by individuals aged 65 or older who choose to enroll. 42 U.S.C. § 1395r(b) (1970 ed., Supp. IV). [ Footnote 2 ] Title 42 U.S.C. § 1395 o (1970 ed. and Supp. IV) provides: "Every individual who -- (1) is entitled to hospital insurance benefits under Part A, or (2) has attained age 65 and is a resident of the United States, and is either (A) a citizen or (b) an alien lawfully admitted for permanent residence who has resided in the United States continuously during the 5 years immediately preceding the month in which he applies for enrollment under this part, is eligible to enroll in the insurance program established by this part." This case does not raise any issues involving subsection (1). [ Footnote 3 ] The District Court certified a class and a subclass, defined, respectively, as follows: "All immigrants residing in the United States who have attained the age of 65 and who have been or will be denied enrollment in the supplemental medical insurance program under Medicare, 42 U.S.C. § 1395, et seq. (1970), because they are not aliens lawfully admitted for permanent residence who have resided in the United States continuously during the five years immediately preceding the month in which they apply for enrollment as required by [42 U.S.C. § 1395 o (2)(B) (1970 ed., Supp. IV)]." " * * * *" "All immigrants lawfully admitted for permanent residence in the United States who have attained the age of 65 and who have been or will be denied enrollment in the supplemental medical insurance program under Medicare, 42 U.S.C. § 1395, et seq. (1970), solely because of their failure to meet the five-year continuous residency requirement of [42 U.S.C. § 1395 o (2)(b) (1970 ed., Supp. IV)]." Diaz v. Weinberger, 361 F. Supp. 1 , 7 (1973) (footnote omitted). These class certifications are erroneous. The District Court did not possess jurisdiction over the claims of the members of the plaintiff class and subclass who "will be denied" enrollment. Those who "will be denied" enrollment, as the quoted phrase is used in the certification, are those who have yet to be denied enrollment by formal administrative decision. See id. at 6-7, and n. 7. But the complaint does not allege, and the record does not show, that the Secretary has taken any action with respect to such persons that is tantamount to a denial. It follows that the District Court lacked jurisdiction over their claims, see Weinberger v. Salfi, 422 U. S. 749 , 422 U. S. 764 , and that the class and subclass are too broadly defined. In view of our holding that the statute is constitutional, we need not decide whether a narrower class and subclass could have been properly certified. [ Footnote 4 ] See infra at 426 U. S. 76 -77, and n. 11. [ Footnote 5 ] "[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law. . . ." U.S.Const., Amdt. 5. [ Footnote 6 ] The Secretary asserted jurisdiction in this Court by direct appeal under 28 U.S.C. §§ 1252, 1253. Since we possess jurisdiction under § 1252, which provides for direct appeal to this Court from a judgment of a federal court holding a federal statute unconstitutional in a civil action to which a federal officer is a party, we need not decide whether an appeal lies under § 1253. Weinberger v. Salfi, supra at 422 U. S. 763 n. 8. [ Footnote 7 ] Diaz and Clara contend that the requirement of lawful admission for permanent residence should be construed so that it is satisfied by aliens, such as they, who have been paroled into the United States at the discretion of the Attorney General. However, such aliens remain in the United States at the discretion of the Attorney General, 8 U.S.C. § 1182(d)(5), and hence cannot have been "lawfully admitted for permanent residence," as § 1395 o (2)(b) requires. [ Footnote 8 ] Fed.Rule Civ.Proc. 15(d); Security Ins. Co. of New Haven v. United States ex rel. Haydis, 338 F.2d 444, 447-449 (CA9 1964). [ Footnote 9 ] "Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." 28 U.S.C. § 1653. Although the defect in Espinosa's allegations must be cured by supplemental pleading, instead af amended pleading, the statutory purpose of avoiding needless sacrifice to defective pleading applies equally to this case. See Schlesinger v. Councilman, 420 U. S. 738 , 420 U. S. 744 n. 9; Willingham v. Morgan, 395 U. S. 402 , 395 U. S. 407 -408, and n. 3. Despite Espinosa's failure to supplement the complaint, the District Court was aware that he had filed his application; since the Secretary stipulated that the application had been filed, the defect in the pleadings surely did not prejudice him. [ Footnote 10 ] Record on Appeal 224-227. See Memorandum of Law in Support of Defendant's Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Summary Judgment, Record on Appeal 259-260. [ Footnote 11 ] Jurisdictional Statement 3 n. 3; Brief for Appellant 5 n. 5. In his Supplemental Brief, filed after our decision in Salfi, the Secretary argues that the District Court did not possess jurisdiction over Espinosa's claim because it was not until after the District Court had issued its injunction that the Secretary resolved an unspecified factual issue presented by Espinosa's application, and that such a belated confirmation that Espinosa's application should be denied could not confer jurisdiction upon the District Court nunc pro tunc. Supplemental Brief for Appellant 4, and n. 1. However, the District Court's jurisdiction was not founded upon the Secretary's subsequent confirmation that Espinosa's application should be denied, but rather upon the Secretary's stipulation in the District Court that no factual issues remained, that the case was ripe for disposition by summary judgment, and that the only issue was the constitutionality of the statute. Even though Salfi had not been decided when he so stipulated, he is not now free to withdraw his stipulation, and no reason appears why he should be permitted to do so. [ Footnote 12 ] The Constitution protects the privileges and immunities only of citizens, Amdt. 14, § 1; see Art. IV, § 2, cl. 1, and the right to vote only of citizens. Amdts. 15, 19, 24, 26. It requires that Representatives have been citizens for seven years, Art. I, § 2, cl. 2, and Senators citizens for nine, Art. I, § 3, cl. 3, and that the President be a "natural born Citizen." Art. II, § 1, cl. 5. A multitude of federal statutes distinguish between citizens and aliens. The whole of Title 8 of the United States Code, regulating aliens and nationality, is founded on the legitimacy of distinguishing between citizens and aliens. A variety of other federal statutes provide for disparate treatment of aliens and citizens. These include prohibitions and restrictions upon Government employment of aliens, e.g., 10 U.S.C. § 5571; 22 U.S.C. § 1044(e), upon private employment of aliens, e.g., 10 U.S.C. § 2279; 12 U.S.C. § 72, and upon investments and businesses of aliens, e.g., 12 U.S.C. § 619; 47 U.S.C. § 17; statutes excluding aliens from benefits available to citizens, e.g., 26 U.S.C. § 931 (1970 ed. and Supp. IV); 46 U.S.C. § 1171(a), and from protections extended to citizens, e.g., 19 U.S.C. § 1526; 29 U.S.C. § 633a (1970 ed., Supp. IV); and statutes imposing added burdens upon aliens, e.g., 26 U.S.C. § 6851(d); 28 U.S.C. § 1391(d). Several statutes treat certain aliens more favorably than citizens. E.g., 19 U.S.C. § 1586(e); 50 U.S.C.App. § 453 (1970 ed., Supp. IV). Other statutes, similar to the one at issue in this case, provide for equal treatment of citizens and aliens lawfully admitted for permanent residence. 10 U.S.C. § 8253; 18 U.S.C. § 613(2) (1970 ed., Supp. IV). Still others equate citizens and aliens who have declared their intention to become citizens. E.g., 43 U.S.C. § 161; 30 U.S.C. § 22. Yet others condition equal treatment of an alien upon reciprocal treatment of United States citizens by the alien's own country. E.g., 10 U.S.C. § 7435(a); 28 U.S.C. § 2502. [ Footnote 13 ] The classifications among aliens established by the Immigration and Nationality Act, 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq. (1970 ed. and Supp. IV), illustrate the diversity of aliens and their ties to this country. Aliens may be immigrants or nonimmigrants. 8 U.S.C. § 1101(a)(15). Immigrants, in turn, are divided into those who are subject to numerical limitations upon admissions and those who are not. The former are subdivided into preference classifications which include: grown unmarried children of citizens; spouses and grown unmarried children of aliens lawfully admitted for permanent residence; professionals and those with exceptional ability in the sciences or arts; grown married children of citizens; brothers and sisters of citizens; persons who perform specified permanent skilled or unskilled labor for which a labor shortage exists; and certain victims of persecution and catastrophic natural calamities who were granted conditional entry and remained in the United States at least two years. 8 U.S.C. §§ 1153(a)(1)-(7). Immigrants not subject to certain numerical limitations include: children and spouses of citizens and parents of citizens at least 21 years old; natives of independent countries of the Western Hemisphere; aliens lawfully admitted for permanent residence returning from temporary visits abroad; certain former citizens who may reapply for acquisition of citizenship; certain ministers of religion; and certain employees or former employees of the United States Government abroad. 8 U.S.C. §§ 1101(a)(27), 1151(a), (b). Nonimmigrants include: officials and employees of foreign governments and certain international organizations; aliens visiting temporarily for business or pleasure; aliens in transit through this country; alien crewmen serving on a vessel or aircraft; aliens entering pursuant to a treaty of commerce and navigation to carry on trade or an enterprise in which they have invested; aliens entering to study in this country; certain aliens coming temporarily to perform services or labor or to serve as trainees; alien representatives of the foreign press or other information media; certain aliens coming temporarily to participate in a program in their field of study or specialization; aliens engaged to be married to citizens; and certain alien employees entering temporarily to continue to render services to the same employers. 8 U.S.C. § 1101(a)(15). In addition to lawfully admitted aliens, there are, of course, aliens who have entered illegally. [ Footnote 14 ] Kleindienst v. Mandel, 408 U. S. 753 , 408 U. S. 765 -770. [ Footnote 15 ] Galvan v. Press, 347 U. S. 522 , 347 U. S. 530 -532; Harisiades v. Shaughnessy, 342 U. S. 580 , 342 U. S. 584 -591. [ Footnote 16 ] See Zemel v. Rusk, 381 U. S. 1 , 381 U. S. 13 -16; Aptheker v. Secretary of State, 378 U. S. 500 , 378 U. S. 505 -514; Kent v. Dulles, 357 U. S. 116 , 357 U. S. 125 -130. [ Footnote 17 ] "[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference." Harisiades v. Shaughnessy, supra at 342 U. S. 588 -589 (footnote omitted). Accord, e.g., Kleindienst v. Mandel, supra at 408 U. S. 765 -767; Fong Yue Ting v. United States, 149 U. S. 698 , 149 U. S. 711 -713. [ Footnote 18 ] Cuban Refugee Center -- Weekly Statistical Report for November 13-17, 1972, App. 40. [ Footnote 19 ] See 8 U.S.C. §§ 1153(a)(7), 1182(d)(5). [ Footnote 20 ] An unlikely, but nevertheless possible, consequence of holding that appellees are constitutionally entitled to welfare benefits would be a further extension of similar benefits to over 440,000 Cuban parolees. [ Footnote 21 ] "It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision al ready made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question." Baker v Carr, 369 U. S. 186 , 369 U. S. 217 . [ Footnote 22 ] The District Court held that the durational residence requirement was not rationally related to maintaining the fiscal integrity of the Medicare Part B program, because the program is financed on a "current cost" basis, half by appropriations from the general revenues and half by premiums from enrolled individuals; because aliens who do not meet the residence requirement would constitute no greater burden on the general revenues than enrolled citizens who have not paid federal taxes or who pay their premiums from federally subsidized welfare benefits; because aliens, like citizens, must pay federal taxes; and because the residency requirement only postpones treatment of aliens until costlier medical care is necessary. Diaz v. Weinberger, 361 F. Supp. at 10-12. [ Footnote 23 ] Weinberger v. Salfi, 422 U.S. at 422 U. S. 768 -774; Dandridge v. Williams, 397 U. S. 471 , 397 U. S. 483 -487. [ Footnote 24 ] We have left open the question whether a State may prohibit aliens from holding elective or important nonelective positions or whether a State may, in some circumstances, consider the alien status of an applicant or employee in making an individualized employment decision. See Sugarman v. Dougall, 413 U. S. 634 , 413 U. S. 646 -649; In re Griffiths, 413 U. S. 717 , 413 U. S. 728 -729, and n. 21. [ Footnote 25 ] "State alien residency requirements that either deny welfare benefits to noncitizens or condition them on long-time residency, equate with the assertion of a right, inconsistent with federal policy, to deny entrance and abode. Since such laws encroach upon exclusive federal power, they are constitutionally impermissible." Graham v. Richardson, 403 U. S. 365 , 403 U. S. 380 . [ Footnote 26 ] In Shapiro v. Thompson, we held that state-imposed requirements of durational residence within the State for receipt of welfare benefits denied equal protection because such requirements unconstitutionally burdened the right to travel interstate. Since the requirements applied to aliens and citizens alike, we did not decide whether the right to travel interstate was conferred only upon citizens. However, our holding was predicated expressly on the requirement "that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement." 394 U.S. at 394 U. S. 629 . See Graham v. Richardson, supra at 403 U. S. 375 -376, 403 U. S. 377 -380. Appellees also gain no support from Washington v. Legrant, 394 U. S. 618 , a case decided with Shapiro v. Thompson. Legrant involved a congressionally imposed requirement of one year's residence within the District of Columbia for receipt of welfare benefits. As in Shapiro v. Thompson, no question of alienage was involved. We held that the requirement violated the Due Process Clause of the Fifth Amendment for the same reasons that the state-imposed durational residency requirements violated the Equal Protection Clause of the Fourteenth Amendment. 394 U.S. at 394 U. S. 641 -642. Unlike the situation in Shapiro and Legrant, the durational residency requirement in this case could at most deter only the travel of aliens into the United States. The power of Congress to prevent the travel of aliens into this country cannot seriously be questioned.

Here is a summary of the case: The case of Mathews v. Diaz (1976) concerned the constitutionality of a federal statute that restricted eligibility for a Medicare supplemental insurance program to certain aliens. The program was established under Title 42 U.S.C. § 1395o(2), which allowed residents of the United States aged 65 or older to enroll, but subsection (b) excluded aliens unless they had been admitted for permanent residence and had resided in the country for at least five years. The appellees, including Diaz, Clara, and Espinosa, challenged the statute on constitutional grounds. The District Court held that the five-year residence requirement violated due process and rendered the alien eligibility provisions unenforceable. On appeal, the U.S. Supreme Court addressed the jurisdiction and the constitutionality of the residence requirement. The Court first determined that it had jurisdiction over Espinosa's claim, as he had filed an application for enrollment after becoming a party to the case, meeting a non-waivable jurisdictional condition. The Court then turned to the constitutional issue, considering whether the five-year residence requirement violated the Due Process Clause or the equal protection guarantee of the Fifth Amendment. The Court upheld the constitutionality of the residence requirement, finding that it was rationally related to a legitimate governmental interest in preserving the fiscal integrity of the program. The Court noted that Congress has broad power over the admission and exclusion of aliens and that the requirement did not infringe on any fundamental rights. In conclusion, the Supreme Court reversed the District Court's decision, holding that the five-year residence requirement for aliens in the Medicare supplemental insurance program was constitutional.

Immigration & National Security

Kleindienst v. Mandel

https://supreme.justia.com/cases/federal/us/408/753/

U.S. Supreme Court Kleindienst v. Mandel, 408 U.S. 753 (1972) Kleindienst v. Mandel No. 71-16 Argued April 18, 1972 Decided June 29, 1972 408 U.S. 753 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK Syllabus This action was brought to compel the Attorney General to grant a temporary nonimmigrant visa to a Belgian journalist and Marxian theoretician whom the American plaintiff appellees had invited to participate in academic conferences and discussions in this country. The alien had been found ineligible for admission under §§ 212(a)(28)(D) and (G)(v) of the Immigration and Nationality Act of 1952, barring those who advocate or publish "the economic, international, and governmental doctrines of world communism." The Attorney General had declined to waive ineligibility as he has the power to do under § 212(d) of the Act, basing his decision on unscheduled activities engaged in by the alien on a previous visit to the United States, when a waiver was granted. A three-judge District Court, although holding that the alien had no personal entry right, concluded that citizens of this country had a First Amendment right to have him enter and to hear him, and enjoined enforcement of § 212 as to this alien. Held: In the exercise of Congress' plenary power to exclude aliens or prescribe the conditions for their entry into this country, Congress in § 212(a)(28) of the Act has delegated conditional exercise of this power to the Executive Branch. When, as in this case, the Attorney General decides for a legitimate and bona fide reason not to waive the statutory exclusion of an alien, courts will not look behind his decision or weigh it against the First Amendment interests of those who would personally communicate with the alien. Pp. 408 U. S. 761 -770. 325 F. Supp. 620 , reversed. BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 408 U. S. 770 . MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 408 U. S. 774 . Page 408 U. S. 754 MR. JUSTICE BLACKMUN delivered the opinion of the Court. The appellees have framed the issue here as follows: "Does appellants' action in refusing to allow an alien scholar to enter the country to attend academic meetings violate the First Amendment rights of American scholars and students who had invited him? [ Footnote 1 ]" Expressed in statutory terms, the question is whether §§ 212(a)(28)(D) and (G)(v) and § 212(d)(3)(A) of the Immigration and Nationality Act of 1952, 66 Stat. 182, 8 U.S.C. §§ 1182(a)(28)(D) and (G)(v) and § 1182(d)(3)(A), providing that certain aliens "shall be ineligible to receive visas and shall be excluded from admission into the United States" unless the Attorney General, in his discretion, upon recommendation by the Secretary of State or a consular officer, waives inadmissibility and approves temporary admission, are unconstitutional as applied here in that they deprive American citizens of freedom of speech guaranteed by the First Amendment. Page 408 U. S. 755 The challenged provisions of the statute are: "Section 212(a). Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:" " * * * *" "(28) Aliens who are, or at any time have been, members of any of the following classes: " " * * * *" "(D) Aliens not within any of the other provisions of this paragraph who advocate the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship. . . ." " * * * *" "(G) Aliens who write or publish . . . (v) the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship; . . ." "(d)" " * * * *" "(3) Except as provided in this subsection, an alien(A) who is applying for a nonimmigrant visa and is known or believed by the consular officer to be ineligible for such visa under one or more of the paragraphs enumerated in subsection (a) . . . may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General. . . ." Section 212(d)(6) provides that the Attorney General shall make a detailed report to the Congress in any Page 408 U. S. 756 case in which he exercises his authority under paragraph (3) of this subjection on behalf of any alien excludable under paragraphs (9), (10), and (28). . . . I Ernest E. Mandel resides in Brussels, Belgium, and is a Belgian citizen. He is a professional journalist and is editor-in-chief of the Belgian Left Socialist weekly La Gauche. He is author of a two-volume work entitled Marxist Economic Theory published in 1969. He asserted in his visa applications that he is not a member of the Communist Party. He has described himself, however, as "a revolutionary Marxist." [ Footnote 2 ] He does not dispute, see 325 F. Supp. 620 , 624, that he advocates the economic, governmental, and international doctrines of world communism. [ Footnote 3 ] Mandel was admitted to the United States temporarily in 1962 and again in 1968. On the first visit, he came as a working journalist. On the second, he accepted invitations to speak at a number of universities and colleges. On each occasion, although apparently he was not then aware of it, his admission followed a finding of ineligibility under § 212(a)(28), and the Attorney General's exercise of discretion to admit him temporarily, on recommendation of the Secretary of State, as § 212(d)(3)(A) permits. On September 8, 1969, Mandel applied to the American Consul in Brussels for a nonimmigrant visa to enter the United States in October for a six-day period, during which he would participate in a conference on Page 408 U. S. 757 Technology and the Third World at Stanford University. [ Footnote 4 ] He had been invited to Stanford by the Graduate Student Association there. The invitation stated that John Kenneth Galbraith would present the keynote address and that Mandel would be expected to participate in an ensuing panel discussion and to give a major address the following day. The University, through the office of its president, "heartily endorse[d]" the invitation. When Mandel's intended visit became known, additional invitations for lectures and conference participations came to him from members of the faculties at Princeton, Amherst, Columbia, and Vassar, from groups in Cambridge, Massachusetts, and New York City, and from others. One conference, to be in New York City, was sponsored jointly by the Bertrand Russell Peace Foundation and the Socialist Scholars Conference; Mandel's assigned subject there was "Revolutionary Strategy in Imperialist Countries." Mandel then filed a second visa application proposing a more extensive itinerary and a stay of greater duration. On October 23 the Consul at Brussels informed Mandel orally that his application of September 8 had been refused. This was confirmed in writing on October 30. The Consul's letter advised him of the finding of inadmissibility under § 212(a)(28) in 1962, the waivers in that year and in 1968, and the current denial of a waiver. It said, however, that another request for waiver was being forwarded to Washington in connection with Mandel's second application for a visa. The Department of State, by a letter dated November 6 Page 408 U. S. 758 from its Bureau of Security and Consular Affairs to Mandel's New York attorney, asserted that the earlier waivers had been granted on condition that Mandel conform to his itinerary and limit his activities to the stated purposes of his trip, but that, on his 1968 visit, he had engaged in activities beyond the stated purposes. [ Footnote 5 ] For this reason, it was said, a waiver "was Page 408 U. S. 759 not sought in connection with his September visa application." The Department went on to say, however, that it had now learned that Mandel might not have been aware in 1968 of the conditions and limitations attached to his visa issuance, and that, in view of this and upon his assurances that he would conform to his stated itinerary and purposes, the Department was reconsidering his case. On December 1, the Consul at Brussels informed Mandel that his visa had been refused. The Department of State in fact, had recommended to the Attorney General that Mandel's ineligibility be waived with respect to his October visa application. The Immigration and Naturalization Service, however, acting on behalf of the Attorney General, see 28 U.S.C. § 510, in a letter dated February 13, 1970, to New York counsel stated that it had determined that Mandel's 1968 activities while in the United States "went far beyond the stated purposes of his trip, on the basis of which his admission had been authorized and represented a flagrant abuse of the opportunities afforded him to express his views in this country." The letter concluded that favorable exercise of discretion, provided for under the Act, was not warranted and that Mandel's temporary admission was not authorized. Mandel's address to the New York meeting was then delivered by transatlantic telephone. In March, Mandel and six of the other appellees instituted the present action against the Attorney General and the Secretary of State. The two remaining appellees soon came into the lawsuit by an amendment to the complaint. All the appellees who joined Mandel in this action are United States citizens and are university professors in various fields of the social sciences. They are persons who invited Mandel to speak at universities and other forums in the United States or who expected to participate in colloquia with him so that, Page 408 U. S. 760 as the complaint alleged, "they may hear his views and engage him in a free and open academic exchange." Plaintiff appellees claim that the statute are unconstitutional on their face and as applied in that they deprive the American plaintiffs of their First and Fifth Amendment rights. Specifically, these plaintiffs claim that the statutes prevent them from hearing and meeting with Mandel in person for discussions, in contravention of the First Amendment; that § 212(a)(28) denies them equal protection by permitting entry of "rightists," but not "leftists," and that the same section deprives them of procedural due process; that § 212(d)(3)(A) is an unconstitutional delegation of congressional power to the Attorney General because of its broad terms, lack of standards, and lack of prescribed procedures; and that application of the statutes to Mandel was "arbitrary and capricious" because there was no basis in fact for concluding that he was ineligible, and no rational reason or basis in fact, for denying him a waiver once he was determined ineligible. Declaratory and injunctive relief was sought. A three-judge district court was duly convened. The case was tried on the pleadings and affidavits with exhibits. Two judges held that, although Mandel had no personal right to enter the United States, citizens of this country have a First Amendment right to have him enter and to hear him explain and seek to defend his views. The court then entered a declaratory judgment that § 212(a)(28) and § 212(d)(3)(A) were invalid and void insofar a they had been or might be invoked by the defendants to find Mandel ineligible for admission. The defendants were enjoined from implementing and enforcing those statutes so as to deny Mandel admission as a nonimmigrant visitor. 325 F. Supp. 620 (EDNY 1971). Judge Bartels dissented. Id. at 637. Probable jurisdiction was noted. 404 U.S. 1013 (1972). Page 408 U. S. 761 Until 1875, alien migration to the United States was unrestricted. The Act of March 3, 1875, 18 Stat. 477, barred convicts and prostitutes. Seven years later, Congress passed the first general immigration statute. Act of Aug. 3 1882, 22 Stat. 214. Other legislation followed. A general revision of the immigration laws was effected by the Act of Mar. 3, 1903, 32 Stat. 1213. Section 2 of that Act made ineligible for admission "anarchists, or persons who believe in or advocate the overthrow by force or violence of the Government of the United States or of all government or of all forms of law." By the Act of Oct. 16, 1918, 40 Stat. 1012, Congress expanded the provisions for the exclusion of subversive aliens. Title II of the Alien Registration Act of 1940, 54 Stat. 671, amended the 1918 Act to bar aliens who, at any time, had advocated or were members of or affiliated with organizations that advocated violent overthrow of the United States Government. In the years that followed, after extensive investigation and numerous reports by congressional committees, see Communist Party v. Subversive Activities Control Board, 367 U. S. 1 , 367 U. S. 94 n. 37 (1961), Congress passed the Internal Security Act of 1950, 64 Stat. 987. This Act dispensed with the requirement of the 1940 Act of a finding in each case, with respect to members of the Communist Party, that the party did, in fact, advocate violent overthrow of the Government. These provisions were carried forward into the Immigration and Nationality Act of 1952. We thus have almost continuous attention on the part of Congress since 1875 to the problems of immigration and of excludability of certain defined classes of aliens. The pattern generally has been one of increasing Page 408 U. S. 762 control, with particular attention, for almost 70 years now, first to anarchists and then to those with communist affiliation or views. III It is clear that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise. United States ex rel. Turner v. Williams, 194 U. S. 279 , 194 U. S. 292 (1904); United States ex rel . Knauff v. Shaughnessy, 338 U. S. 537 , 338 U. S. 542 (1950); Galvan v. Press, 347 U. S. 522 , 347 U. S. 530 -532 (194); see Harisiades v. Shaughnessy, 342 U. S. 580 , 342 U. S. 592 (1952). The appellees concede this. Brief for Appellees 33; Tr. of Oral Arg. 28. Indeed, the American appellees assert that "they sue to enforce their rights, individually and as members of the American public, and assert none on the part of the invited alien." Brief for Appellees 14. "Dr. Mandel is, in a sense, made a plaintiff because he is symbolic of the problem." Tr. of Oral Arg. 22. The case, therefore, comes down to the narrow issue whether the First Amendment confers upon the appellee professors, because they wish to hear, speak, and debate with Mandel in person, the ability to determine that Mandel should be permitted to enter the country, or, in other words, to compel the Attorney General to allow Mandel's admission. IV In a variety of contexts, this Court has referred to a First Amendment right to "receive information and ideas": "It is now well established that the Constitution protects the right to receive information and ideas. 'This freedom [of speech and press] . . . necessarily Page 408 U. S. 763 protects the right to receive. . . .' Martin v. City of Struthers, 319 U. S. 141 , 319 U. S. 143 (1943). . . ." Stanley v. Georgia, 394 U. S. 557 , 394 U. S. 564 (1969). This was one basis for the decision in Thomas v. Collins, 323 U. S. 516 (1945). The Court there held that a labor organizer's right to speak and the rights of workers "to hear what he had to say," id. at 323 U. S. 534 , were both abridged by a state law requiring organizers to register before soliciting union membership. In a very different situation, MR. JUSTICE WHITE, speaking for a unanimous Court upholding the FCC's "fairness doctrine" in Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 , 395 U. S. 386 -390 (1969), said: "It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail. . . . It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC." Id. at 395 U. S. 390 . And in Lamont v. Postmaster General, 381 U. S. 301 (1965), the Court held that a statute permitting the Government to hold "communist political propaganda" arriving in the mails from abroad unless the addressee affirmatively requested in writing that it be delivered to him placed an unjustifiable burden on the addressee's First Amendment right. This Court has recognized that this right is "nowhere more vital" than in our schools and universities. Shelton v. Tucker, 364 U. S. 479 , 364 U. S. 487 (1960); Sweezy v. New Hampshire, 354 U. S. 234 , 354 U. S. 250 (1957) (plurality opinion); Keyishian v. Board of Regents, 385 U. S. 589 , 385 U. S. 603 (1967). See Epperson v. Arkansas, 393 U. S. 97 (1968). Page 408 U. S. 764 In the present case, the District Court majority held: "The concern of the First Amendment is not with a nonresident alien's individual and personal interest in entering and being heard, but with the right of the citizens of the country to have the alien enter and to hear him explain and seek to defend his views; that, as Garrison [v. Louisiana, 379 U. S. 64 (1964),] and Red Lion observe, is of the essence of self-government." 325 F. Supp. at 631. The Government disputes this conclusion on two grounds. First, it argue that exclusion of Mandel involves no restriction on First Amendment rights at all, since what is restricted is "only action -- the action of the alien in coming into this country." Brief for Appellants 29. Principal reliance is placed on Zemel v. Rusk, 381 U. S. 1 (1965), where the Government's refusal to validate an American passport for travel to Cuba was upheld. The rights asserted there were those of the passport applicant himself. The Court held that his right to travel and his asserted ancillary right to inform himself about Cuba did not outweigh substantial "foreign policy considerations affecting all citizens" that, with the backdrop of the Cuban missile crisis, were characterized as the "weightiest considerations of national security." Id. at 381 U. S. 13 , 381 U. S. 16 . The rights asserted here, in some contrast, are those of American academics who have invited Mandel to participate with them in colloquia, debates, and discussion in the United States. In light of the Court's previous decisions concerning the "right to receive information," we cannot realistically say that the problem facing us disappears entirely or is nonexistent because the mode of regulation bears directly on physical movement. In Thomas, the registration requirement, on its Page 408 U. S. 765 face, concerned only action. In Lamont, too, the face of the regulation dealt only with the Government's undisputed power to control physical entry of mail into the country. See United States v. Robel, 389 U. S. 258 , 389 U. S. 263 (1967). The Government also suggests that the First Amendment is inapplicable because appellees have free access to Mandel's ideas through his books and speeches, and because "technological developments," such as tapes or telephone hook-ups, readily supplant his physical presence. This argument overlooks what may be particular qualities inherent in sustained, face-to-face debate, discussion and questioning. While alternative means of access to Mandel's ideas might be a relevant factor were we called upon to balance First Amendment rights against governmental regulatory interests -- a balance we find unnecessary here in light of the discussion that follows in Part V -- we are loath to hold on this record that existence of other alternatives extinguishes altogether any constitutional interest on the part of the appellees in this particular form of access. V Recognition that First Amendment rights are implicated, however, is not dispositive of our inquiry here. In accord with ancient principles of the international law of nation-states, the Court in The Chinese Exclusion Case, 130 U. S. 581 , 130 U. S. 609 (1889), and in Fong Yue Ting v. United States, 149 U. S. 698 (1893), held broadly, as the Government describes it, Brief for Appellants 20, that the power to exclude aliens is "inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers -- a power to be exercised exclusively by the political branches of government. . . ." Since that time, the Court's general reaffirmations of this principle have Page 408 U. S. 766 been legion. [ Footnote 6 ] The Court, without exception, has sustained Congress' "plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden." Boutilier v. Immigration and Naturalization Service, 387 U. S. 118 , 387 U. S. 123 (1967). "[O]ver no conceivable subject is the legislative power of Congress more complete than it is over" the admission of aliens. Oceanic Navigation Co. v. Stranahan, 214 U. S. 320 , 214 U. S. 339 (1909). In Lem Moon Sing v. United States, 158 U. S. 538 , 158 U. S. 547 (1895), the first Mr. Justice Harlan said: "The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications." Mr. Justice Frankfurter ably articulated this history in Galvan v. Press, 347 U. S. 522 (1954), a deportation case, and we can do no better. After suggesting, at 347 U. S. 530 , that "much could be said for the view" that due process places some limitations on congressional power in this area "were we writing on a clean slate," he continued: "But the slate is not clean. As to the extent of the power of Congress under review, there is not merely 'a page of history'. . . but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with Page 408 U. S. 767 the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. . . . But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government. . . ." "We are not prepared to deem ourselves wiser or more sensitive to human rights than our predecessors, especially those who have been most zealous in protecting civil liberties under the Constitution, and must therefore under our constitutional system recognize congressional power in dealing with aliens. . . ." Id. at 347 U. S. 531 -532. We are not inclined in the present context to reconsider this line of cases. Indeed, the appellees, in contrast to the amicus, do not ask that we do so. The appellees recognize the force of these many precedents. In seeking to sustain the decision below, they concede that Congress could enact a blanket prohibition against entry of all aliens falling into the class defined by §§ 212(a)(28)(D) and (G)(v), and that First Amendment rights could not override that decision. Brief for Appellees 16. But they contend that, by providing a waiver procedure, Congress clearly intended that persons ineligible under the broad provision of the section would be temporarily admitted when appropriate "for humane reasons and for reasons of public interest." S.Rep. No. 1137, 82d Cong., 2d Sess., 12 (1952). They argue that the Executive's implementation of this congressional mandate through decision whether to grant a waiver in each individual case must be limited by the First Amendment rights of persons like appellees. Specifically, their position is that the First Amendment rights must prevail, at least where the Government Page 408 U. S. 768 advances no justification for failing to grant a waiver. They point to the fact that waivers have been granted in the vast majority of cases. [ Footnote 7 ] Appellees' First Amendment argument would prove too much. In almost every instance of an alien excludable under § 212(a)(28), there are probably those who would wish to meet and speak with him. The ideas of most such aliens might not be so influential as those of Mandel, nor his American audience so numerous, nor the planned discussion forums so impressive. But the First Amendment does not protect only the articulate, the well known, and the popular. Were we to endorse the proposition that governmental power to withhold a waiver must yield whenever a bona fide claim is made that American citizens wish to meet and talk with an alien excludable under § 212(a)(28), one of two unsatisfactory results would necessarily ensue. Either every claim would prevail, in which case the plenary discretionary authority Congress granted the Executive becomes a nullity, or Page 408 U. S. 769 courts in each case would be required to weigh the strength of the audience's interest against that of the Government in refusing a waiver to the particular alien applicant, according to some as yet undetermined standard. The dangers and the undesirability of making that determination on the basis of factors such as the size of the audience or the probity of the speaker's ideas are obvious. Indeed, it is for precisely this reason that the waiver decision has, properly, been placed in the hands of the Executive. Appellees seek to soften the impact of this analysis by arguing, as has been noted, that the First Amendment claim should prevail, at least where no justification is advanced for denial of a waiver. Brief for Appellees 26. The government would have us reach this question, urging a broad decision that Congress has delegated the waiver decision to the Executive in its sole and unfettered discretion, and any reason or no reason may be given. See Jay v. Boyd, 351 U. S. 345 , 351 U. S. 357 -358 (1956); Hintopoulos v. Shaughnessy, 353 U. S. 72 , 353 U. S. 77 (1957); Kimm v. Rosenberg, 363 U. S. 405 , 363 U. S. 408 (1960). This record, however, does not require that we do so, for the Attorney General did inform Mandel's counsel of the reason for refusing him a waiver. And that reason was facially legitimate and bona fide. The Government has chosen not to rely on the letter to counsel either in the District Court or here. The fact remains, however, that the official empowered to make the decision stated that he denied a waiver because he concluded that previous abuses by Mandel made it inappropriate to grant a waiver again. With this, we think the Attorney General validly exercised the plenary power that Congress delegated to the Executive by §§ 212(a)(28) and (d)(3). In summary, plenary congressional power to make policies and rules for exclusion of aliens has long been Page 408 U. S. 770 firmly established. In the case of an alien excludable under § 212(a)(28), Congress has delegated conditional exercise of this power to the Executive. We hold that, when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant. What First Amendment or other grounds may be available for attacking exercise of discretion for which no justification whatsoever is advanced is a question we neither address nor decide in this case. Reversed. [ Footnote 1 ] Brief for Appellees 1. [ Footnote 2 ] E. Mandel, Revolutionary Strategy in the Imperialist Countries (1969), reprinted in App. 54-66. [ Footnote 3 ] Appellees, while suggesting that § 101(a)(40), defining "world communism," and § 212(a)(28)(D) are unacceptably vague, "do not contest the fact that appellants can and do conclude that Dr. Mandel's Marxist economic philosophy falls within the scope of these vague provisions." Brief for Appellees 10 n. 8. [ Footnote 4 ] Entry presumably was claimed as a nonimmigrant alien under § 101(a)(15)(H) of the Act, 8 U.S.C. § 1101(a)(15)(H), namely, "an alien having a residence in a foreign country which he has no intention of abandoning (i) who is of distinguished merit and ability and who is coming temporarily to the United States to perform services of an exceptional nature requiring such merit and ability. . . ." [ Footnote 5 ] MR. JUSTICE DOUGLAS in his dissent, post at 408 U. S. 773 n. 4, states that Mandel's noncompliance with the conditions imposed for his 1968 visit "appears merely to have been his speaking at more universities than his visa application indicated." The letter dated November 6, 1969, from the Bureau of Security and Consular Affairs of the Department of State to Mandel's New York counsel observed: "On his 1968 visit, Mr. Mandel engaged in activities beyond the stated purposes of his trip. For this reason, a waiver of ineligibility was not sought in connection with his September visa application." Counsel's affidavit in support of appellees' motion for the convening of a three-judge court and for the issuance of a preliminary injunction stated: "Mr. Mandel further assured the Consul by letter on November 10, 1969, that he would not appear at any assembly in the United States at which money was solicited for any political cause. This was apparently in response to a charge that he had been present at such a solicitation during his 1968 tour. ( See also Exhibit L.)" "Of course, just as Mr. Mandel had no prior notice that he was required to adhere to a stated itinerary in 1968, so Mr. Mandel was not aware that he was forbidden from appearing where contributions [were] solicited for political causes. I have been advised by Mr. George Novack, an American citizen who coordinated Mr. Mandel's 1968 tour, that. in fact, the event in question was a cocktail reception held at the Gotham Art Theatre in New York City on October 19, 1968. Mr. Mandel addressed the gathering on the events in France during May and June. Later that evening, posters by French students were auctioned. The money was sent to aid the legal defense of students who had taken part in the spring demonstrations. Mr. Mandel did not participate in the fundraising. ( See Ex. L, Oct. 30, 1969 letter.)" The asserted noncompliance by Mandel is therefore broader than mere acceptance of more speaking engagements than his visa application indicated. [ Footnote 6 ] See, for example, Ekiu v. United States, 142 U. S. 651 , 142 U. S. 659 (1892); Fok Yung Yo v. United States, 185 U. S. 296 , 185 U. S. 302 (1902); United States ex rel. Turner v. Williams, 194 U. S. 279 , 194 U. S. 294 (1904); Keller v. United States, 213 U. S. 138 , 213 U. S. 143 -144 (1909); Mahler v. Eby, 264 U. S. 32 , 264 U. S. 40 (1924); Shaughnessy v. Mezei, 345 U. S. 206 , 345 U. S. 210 (1953); cf. Graham v. Richardson, 403 U. S. 365 , 403 U. S. 377 (1971). [ Footnote 7 ] The Government's brief states: "The Immigration and Naturalization Service reports the following with respect to applications to the Attorney General for waiver of an alien's ineligibility for admission under Section 212(a)(28): " Total Number of Number Number Applications for of of Waiver of Waivers Waivers Year Section 212(a)(28) Granted Denied 1971 6210 6196 14 1970 6193 6189 4 1969 4993 4984 9 1968 4184 4176 8 1967 3860 3852 8 Brief for Appellants 18 n. 24. These cases, however, are only those that, as § 212(d)(3)(A) provides, come to the Attorney General with a positive recommendation from the Secretary of State or the consular officer. The figures do not include those cases where these officials had refrained from making a positive recommendation. MR. JUSTICE DOUGLAS, dissenting. Under The Chinese Exclusion Case, 130 U. S. 581 , rendered in 1889, there could be no doubt but that Congress would have the power to exclude any class of aliens from these shores. The accent at the time was on race. Mr. Justice Field, writing for the Court, said: "If, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because, at the time, there are no actual hostilities with the nation of which the foreigners are subjects." Id. at 130 U. S. 606 . An ideological test, not a racial one, is used here. But neither, in my view, is permissible, as I have indicated on other occasions. [ Footnote 2/1 ] Yet a narrower question is raised here. Under the present Act, aliens who advocate or teach "the economic, international, and governmental doctrines of world communism" are ineligible to receive Page 408 U. S. 771 visas "[e]xcept as otherwise provided in this Act." [ Footnote 2/2 ] The "except" provision is contained in another part of the same section, [ Footnote 2/3 ] and states that an inadmissible alien "may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer," be admitted "temporarily despite his inadmissibility." Dr. Ernest Mandel, who is described as "an orthodox Marxist of the Trotskyist school," has been admitted to this country twice before -- once as a working journalist in 1962 and once as a lecturer in 1968. The present case involves his third application, made in 1969, to attend a conference at Stanford University on Technology and the Third World. He was also invited to attend other conferences, one at MIT, and to address several universities, Princeton, Amherst, the New School, Columbia, and Vassar. This time, the Department of Justice refused to grant a waiver recommended by the State Department, and it claims that it need not state its reasons, that the power of the Attorney General is unfettered. Dr. Mandel is not the sole complainant. Joining him are the other appellees who represent the various audiences which Dr. Mandel would be meeting were a visa to issue. While Dr. Mandel, an alien who seeks admission, has no First Amendment rights while outside the Nation, the other appellees are on a different footing. The First Amendment involves not only the right to speak and publish, but also the right to hear, to learn, to know. Martin v. City of Struthers, 319 U. S. 141 , 319 U. S. 143 ; Stanley v. Georgia, 394 U. S. 557 , 394 U. S. 564 . Can the Attorney General, under the broad discretion entrusted in him, decide Page 408 U. S. 772 that one who maintains that the earth is round can be excluded? that no one who believes in the Darwinian theory shall be admitted? that those who promote a Rule of Law to settle international differences, rather than a Rule of Force, may be barred? that a genetic biologist who lectures on the way to create life by one sex alone is beyond the pale? that an exponent of plate tectonics can be barred? that one should be excluded who taught that Jesus, when he arose from the Sepulcher, went east (not up), and became a teacher at Hemis Monastery in the Himalayas? I put the issue that bluntly because national security is not involved. Nor is the infiltration of saboteurs. The Attorney General stands astride our international terminals that bring people here to bar those whose ideas are not acceptable to him. Even assuming, arguendo, that those on the outside seeking admission have no standing to complain, those who hope to benefit from the traveler's lectures do. Thought control is not within the competence of any branch of government. Those who live here may need exposure to the ideas of people of many faiths and many creeds to further their education. We should construe the Act generously by that First Amendment standard, saying that, once the State Department has concluded that our foreign relations permit or require the admission of a foreign traveler, the Attorney General is left only problems of national security, importation of heroin, or other like matters within his competence. We should assume that, where propagation of ideas is permissible as being within our constitutional framework, the Congress did not undertake to make the Attorney General a censor. For, as stated by Justice Page 408 U. S. 773 Jackson in Thomas v. Collins, 323 U. S. 516 , 323 U. S. 545 (concurring), "[t]he very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion. In this field, every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us." In Brandenburg v. Ohio, 395 U. S. 444 (which overruled Whitney v. California, 274 U. S. 357 ), we held that the First Amendment does not permit a State "to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Id. at 395 U. S. 447 . That case involved propagation of the views of the Ku Klux Klan. The present case involves teaching the communist creed. [ Footnote 2/4 ] But, as we held in Noto v. United States, 367 U. S. 290 , 367 U. S. 297 -298: "[T]he mere abstract teaching of Communist theory, including the teaching of the moral propriety Page 408 U. S. 774 or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action." As a matter of statutory construction, I conclude that Congress never undertook to entrust the Attorney General with the discretion to pick and choose among the ideological offerings which alien lecturers tender from our platforms, allowing those palatable to him and disallowing others. [ Footnote 2/5 ] The discretion entrusted to him concerns matters commonly within the competence of the Department of Justice -- national security, importation of drugs, and the like. I would affirm the judgment of the three-judge District Court. [ Footnote 2/1 ] See Harisiades v. Shaughnessy, 342 U. S. 580 , 342 U. S. 598 (dissenting opinion); Galvan v. Press, 347 U. S. 522 , 347 U. S. 533 (dissenting opinion). [ Footnote 2/2 ] § 212(a)(28)(G)(v) of the Immigration and Nationality Act of 1952, 66 Stat. 185, 8 U.S.C. § 1182(a)(28)(G)(v). [ Footnote 2/3 ] § 212(d)(3)(A), 8 U.S.C. § 1182(d)(3)(A). [ Footnote 2/4 ] The Court recognizes the legitimacy of appellees' First Amendment claim, ante at 408 U. S. 762 -765. It argues, however, that, inasmuch as the Attorney General gave a "facially legitimate and bona fide " reason to refuse Dr. Mandel a waiver of ineligibility, the Court should not "look behind the exercise of that discretion, nor test it by balancing its justification against [appellees'] First Amendment interests. . . ." First, so far as the record reveals, there is absolutely no support for the Attorney General's claim that Dr. Mandel consciously abused his visa privileges in 1968. Indeed, the State Department itself concedes that he " was apparently not informed [in 1962 and 1968] that a visa was issued only after obtaining a waiver of ineligibility, and therefore may not have been aware of the conditions and limitations attached to the visa issuance. " (Emphasis supplied.) App. 22. Second, the activities which the Attorney General labeled "flagrant abuses" of Dr. Mandel's opportunity to speak in the United States appear merely to have been his speaking at more universities than his visa application indicated. Indeed, he spoke at more than 30 universities in the United States and Canada, including Harvard, the University of California at Berkeley, Swarthmore, Notre Dame, Antioch, Michigan, three appearances at Columbia, two at the University of Pennsylvania, and the keynote address at the 1968 Socialist Scholars Conference held at Rutgers. App. 25. It would be difficult to invent a more trivial reason for denying the academic community the chance to exchange views with an internationally respected scholar. [ Footnote 2/5 ] As indicated in S.Rep. No. 1137, 82d Cong., 2d Sess., 12, the discretion vested in the Attorney General was to be exercised "for emergent reasons or for reasons deemed strictly in the public interest." Ideological controls are not congenial to our First Amendment traditions, and therefore should not be inferred. MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting. Dr. Ernest Mandel, a citizen of Belgium, is an internationally famous Marxist scholar and journalist. He was invited to our country by a group of American scholars who wished to meet him for discussion and debate. With firm plans for conferences, colloquia and lectures, the American hosts were stunned to learn that Mandel had been refused permission to enter our country. American consular officials had found Mandel "ineligible" Page 408 U. S. 775 to receive a visa under §§ 212(a)(28)(D) and (G)(v) of the Immigration and Nationality Act of 1952, 66 Stat. 185, which bars even temporary visits to the United States by aliens who "advocate the economic, international, and governmental doctrines of world communism" or "who write or publish . . . any written or printed matter . . . advocating or teaching" such doctrines. Under § 212(d)(3), the Attorney General refused to waive inadmissibility. I, too, am stunned to learn that a country with our proud heritage has refused Dr. Mandel temporary admission. I am convinced that Americans cannot be denied the opportunity to hear Dr. Mandel's views in person because their Government disapproves of his ideas. Therefore, I dissent from today's decision, and would affirm the judgment of the court below. I As the majority correctly demonstrates, in a variety of contexts, this Court has held that the First Amendment protects the right to receive information and ideas, the freedom to hear as well as the freedom to speak. The reason for this is that the First Amendment protects a process, in Justice Brandeis' words, "reason as applied through public discussion," Whitney v. California, 274 U. S. 357 , 274 U. S. 375 (1927) (concurring opinion); and the right to speak and hear -- including the right to inform others and to be informed about public issues -- are inextricably part of that process. The freedom to speak and the freedom to hear are inseparable; they are two sides of the same coin. But the coin itself is the process of thought and discussion. The activity of speakers becoming listeners and listeners becoming speakers in the vital interchange of thought is the "means indispensable to the discovery and spread of political truth." Ibid.; see Terminiello v. Chicago, 337 U. S. 1 , 337 U. S. 4 (1949). Its Page 408 U. S. 776 protection is "a fundamental principle of the American government." Whitney v. California, supra, at 274 U. S. 375 . The First Amendment means that Government has no power to thwart the process of free discussion, to "abridge" the freedoms necessary to make that process work. See Lamont v. Postmaster General, 381 U. S. 301 , 381 U. S. 308 (1965) (BRENNAN, J., concurring, with whom Goldberg and Harlan, JJ., joined). There can be no doubt that, by denying the American appellees access to Dr. Mandel, the Government has directly prevented the free interchange of ideas guaranteed by the First Amendment. [ Footnote 3/1 ] It has, of course, interfered with appellees' personal rights both to hear Mandel's views and to develop and articulate their own views through interaction with Mandel. But as the court below recognized, apart from appellees' interests, there is also a "general public interest in the prevention of any stifling of political utterance." 325 F. Supp. 620 , 632 (1971). And the Government has interfered with this as well. [ Footnote 3/2 ] Page 408 U. S. 777 II What is the justification for this extraordinary governmental interference with the liberty of American citizens? And by what reasoning does the Court uphold Mandel's exclusion? It is established constitutional doctrine, after all, that government may restrict First Amendment rights only if the restriction is necessary to further a compelling governmental interest. E.g., Lamont v. Postmaster General, supra, at 381 U. S. 308 ; NAACP v. Button, 371 U. S. 415 , 371 U. S. 438 (1963); Gibson v. Florida Legislative Investigation Committee, 372 U. S. 539 , 372 U. S. 546 (1963); Shelton v. Tucker, 364 U. S. 479 (1960). A. Today's majority apparently holds that Mandel may be excluded and Americans' First Amendment rights restricted because the Attorney General has given a "facially legitimate and bona fide reason" for refusing to waive Mandel's visa ineligibility. I do not understand the source of this unusual standard. Merely "legitimate" governmental interests cannot override constitutional rights. Moreover, the majority demands only "facial" legitimacy and good faith, by which it means that this Court will never "look behind" any reason the Attorney General gives. No citation is given for this kind of unprecedented deference to the Executive, Page 408 U. S. 778 nor can I imagine (nor am I told) the slightest justification for such a rule. [ Footnote 3/3 ] Even the briefest peek behind the Attorney General's reason for refusing a waiver in this case would reveal that it is a sham. The Attorney General informed appellees' counsel that the waiver was refused because Mandel's activities on a previous American visit "went far beyond the stated purposes of his trip . . . and represented a flagrant abuse of the opportunities afforded him to express his views in this country." App. 68. But, as the Department of State had already conceded to appellees' counsel, Dr. Mandel "was apparently not informed that [his previous] visa was issued only after obtaining a waiver of ineligibility, and therefore [Mandel] may not have been aware of the conditions and limitations attached to the [previous] visa issuance." App. 22. There is no basis in the present record for concluding that Mandel's behavior on his previous visit was a "flagrant abuse" -- or even willful or knowing departure -- from visa restrictions. For good reason, the Government in this litigation has never relied on the Attorney General's reason to justify Mandel's exclusion. In these circumstances, the Attorney General's reason cannot possibly support a decision for the Government in this case. But without even remanding for a factual hearing to see if there is any support for the Attorney General's determination, the majority declares that his reason is sufficient to override appellees' First Amendment interests. B. Even if the Attorney General had given a compelling Page 408 U. S. 779 reason for declining to grant a waiver under § 212(d)(3)(A), this would not, for me, end the case. As I understand the statutory scheme, Mandel is "ineligible" for a visa, and therefore inadmissible, solely because, within the terms of § 212(a)(28), he has advocated communist doctrine and has published writings advocating that doctrine. The waiver question under § 212(d)(3)(A) is totally secondary and dependent, since it is triggered here only by a determination of (a)(28) ineligibility. The Attorney General's refusal to grant a waiver doe not itself generate a new statutory basis for exclusion; he has no roving power to set new ad hoc standards for visa ineligibility. Rather, the Attorney General's refusal to waive ineligibility simply has the same effect as if no waiver provision existed; inadmissibility still rests on the (a)(28) determination. Thus, whether or not the Attorney General had a good reason for refusing a waiver, this Court, I think, must still face the question it tries to avoid: under our Constitution, may Mandel be declared ineligible under (a)(28)? C. Accordingly, I turn to consider the constitutionality of the sole justification given by the Government here and below for excluding Mandel -- that he "advocates" and "publish[es] . . . printed matter . . . advocating . . . doctrines of world communism" within the term of § 212(a)(28). Still adhering to standard First Amendment doctrine, I do not see how (a)(28) can possibly represent a compelling governmental interest that overrides appellees' interests in hearing Mandel. [ Footnote 3/4 ] Unlike (a)(27) or (a)(29), Page 408 U. S. 780 (a)(28) does not claim to exclude aliens who are likely to engage in subversive activity or who represent an active and present threat to the "welfare, safety, or security of the United States." Rather, (a)(28) excludes aliens solely because they have advocated communist doctrine. Our cases make clear, however, that government has no legitimate interest in stopping the flow of ideas. It has no power to restrict the mere advocacy of communist doctrine, divorced from incitement to imminent lawless action. Noto v. United States, 367 U. S. 290 , 367 U. S. 297 -298 (1961); Brandenburg v. Ohio, 395 U. S. 444 , 395 U. S. 447 -449 (196). For those who are not sure that they have attained the final and absolute truth, all ideas, even those forcefully urged, are a contribution to the ongoing political dialogue. The First Amendment represents the view of the Framers that "the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones" -- "more speech." Whitney v. California, 274 U.S. at 274 U. S. 375 , 377 (Brandeis, J., concurring). If Americans want to hear about Marxist doctrine, even from advocates, government cannot intervene simply because it does not approve of the ideas. It certainly may not selectively pick and choose which ideas it will let into the country. But, as the court below put it, § 212(a)(28) is nothing more than "a mean of restraining the entry of disfavored political doctrine," 325 F. Supp. at 626, and such an enactment cannot justify the abridgment of appellees' First Amendment rights. Page 408 U. S. 781 In saying these thing, I am merely repeating established First Amendment law. Indeed, this Court has already applied that law in a case concerning the entry of communist doctrine from foreign lands. In Lamont v. Postmaster General, 381 U. S. 301 (1965), this Court held that the right of an American addressee to receive communist political propaganda from abroad could not be fettered by requiring the addressee to request in writing its delivery from the Post Office. See id. at 381 U. S. 308 (BRENNAN, J., concurring). The burden imposed on the right to receive information in our case is far greater than in Lamont, with far less justification. In Lamont, the challenged law merely regulated the low of mail, and required the Postmaster General to forward detained mail immediately upon request by the addressee. By contract, through 212(a)(28), the Government claims absolute power to bar Mandel permanently from academic meetings in this country. Moreover, in Lamont, the Government argued that its interest was not to censor content, but rather to protect Americans from receiving unwanted mail. Here, Mandel's exclusion is not incident to a legitimate regulatory objective, but is based directly on the subject matter of his beliefs. D. The heart of appellants' position in this case, and the basis for their distinguishing Lamont, is that the Government's power is distinctively broad and unreviewable because "[t]he regulation in question is directed at the admission of aliens." Brief for Appellant 33. Thus, in the appellants' view, this case is no different from a long line of cases holding that the power to exclude aliens is left exclusively to the "political" branches of Government, Congress, and the Executive. These cases are not the strongest precedents in the United States Reports, and the majority's baroque approach reveals its reluctance to rely on them completely. Page 408 U. S. 782 They include such milestones as The Chinese Exclusion Case, 130 U. S. 581 (1889), and Fong Yue Ting v. United States, 149 U. S. 698 (1893), in which this Court upheld the Government's power to exclude and expel Chinese aliens from our midst. But none of these old cases must be "reconsidered" or overruled to strike down Dr. Mandel's exclusion, for none of them was concerned with the rights of American citizen. All of them involved only rights of the excluded aliens themselves. At least when the rights of Americas are involved, there is no basis for concluding that the power to exclude aliens is absolute. "When Congress' exercise of one of its enumerated powers clashes with those individual liberties protected by the Bill of Rights, it is our 'delicate and difficult task' to determine whether the resulting restriction on freedom can be tolerated." United States v. Robel, 389 U. S. 258 , 389 U. S. 264 (1967). As Robel and many other cases [ Footnote 3/5 ] show, all governmental Page 408 U. S. 783 power even the war power, the power to maintain national security, or the power to conduct foreign affairs -- is limited by the Bill of Rights. When individual freedoms of Americans are at stake, we do not blindly defer to broad claims of the Legislative Branch or Executive Branch, but rather we consider those claims in light of the individual freedoms. This should be our approach in the present case, even though the Government urges that the question of admitting aliens may involve foreign relations and national defense policies. The majority recognizes that the right of American citizens to hear Mandel is "implicated" in our case. There were no right of Americans involved in any of the old alien exclusion cases, and therefore their broad counsel about deference to the political branches is inapplicable. Surely a Court that can distinguish between pre-indictment and post-indictment lineups, Kirby v. Illinois, 406 U. S. 682 (1972), can distinguish between our case and cases which involve only the rights of aliens. I do not mean to suggest that, simply because some Americans wish to hear an alien speak, they can automatically compel even his temporary admission to our country. Government may prohibit aliens from even temporary admission if exclusion is necessary to protect a compelling governmental interest. [ Footnote 3/6 ] Actual threats to the national security, public health needs, and genuine requirements of law enforcement are the most apparent Page 408 U. S. 784 interests that would surely be compelling. [ Footnote 3/7 ] But, in Dr. Mandel's case, the Government has, and claims, no such compelling interest. Mandel's visit was to be temporary. [ Footnote 3/8 ] His "ineligibility" for a visa was based solely on § 212(a)(28). The only governmental interest embodied in that section is the Government's desire to keep certain ideas out of circulation in this country. This is hardly a compelling governmental interest. Section (a)(28) may not be the basis for excluding an alien when Americans wish to hear him. Without any claim that Mandel "live" is an actual threat to this country, there is no difference between excluding Mandel because of his ideas and keeping his books out because of their ideas. Neither is permitted. Lamont v. Postmaster General, supra. III Dr. Mandel has written about his exclusion, concluding that "[i]t demonstrates a lack of confidence" on the part of our Government "in the capacity of its supporters to combat Marxism on the battleground of ideas." He observes that he "would not be carrying any high explosives, if I had come, but only, as I did before, my revolutionary views, which are well known to the public." And he wryly notes that, "[i]n the nineteenth century, the British ruling class, which was sure of itself, permitted Karl Marx to live as an exile in England for almost forty years." App. 54. It is undisputed that Dr. Mandel's brief trip would involve nothing but a series of scholarly conferences and lectures. The progress of knowledge is an international Page 408 U. S. 785 venture. As Mandel's invitation demonstrates, individuals of differing world views have learned the ways of cooperation where governments have thus far failed. Nothing is served -- least of all our standing in the international community -- by Mandel's exclusion. In blocking his admission, the Government has departed from the basic traditions of our country, its fearless acceptance of free discussion. By now deferring to the Executive, this Court departs from its own best role as the guardian of individual liberty in the face of governmental overreaching. Principles of judicial restraint designed to allow the political branches to protect national security have no place in this case. Dr. Mandel should be permitted to make his brief visit. I dissent. [ Footnote 3/1 ] Twenty years ago, the Bulletin of the Atomic Scientists devoted an entire issue to the problem of American visa policy and its effect on the interchange of ideas between American scholars and scientists and their foreign counterparts. The general conclusion of the editors -- supported by printed statements of such men as Albert Einstein, Hans Bethe, Harold Urey, Arthur Compton, Michael Polanyi, and Raymond Aron -- was that American visa policy was hurting the continuing advance of American science and learning, and harmful to our prestige abroad. Vol. 8, No. 7, Oct.1952, pp.210-217 (statement of Special Editor Edward Shils). The detrimental effect of American visa policy on the free exchange of ideas continues to be reported. See Comment Opening the Floodgates to Dissident Aliens, 6 Harv.Civ.Rights-Civ.Lib.L.Rev. 141, 143-149 (1970); 11 Bulletin of the Atomic Scientists, Dec. 1955, pp. 367-373. [ Footnote 3/2 ] The availability to appellees of Mandel's books and taped lectures is no substitute for live, face-to-face discussion and debate, just as the availability to us of briefs and exhibits does not supplant the essential place of oral argument in this Court's work. Lengthy citations for this proposition, which the majority apparently concede, are unnecessary. I simply note that in a letter to Henrik Lorenz, accepting an invitation to lecture at the University of Leiden and to discus "the radiation problem," Albert Einstein observed that, "[i]n these unfinished things, people understand one another with difficulty unless talking face to face." Quoted in Developments in the Law -- The National Security Interest and Civil Liberties, 85 Harv.L.Rev. 1130, 1154 (1972). [ Footnote 3/3 ] As Judge Frankel has taught us, even the limited requirement of facially sufficient reasons for governmental action may be significant in some contexts; but it can hardly insulate the government from subsequent challenges to the actual good faith and sufficiency of the reasons. Frankel, Bench Warrants Upon the Prosecutor's Demand: A View From the Bench, 71 Col.L.Rev. 403, 414 (1971). [ Footnote 3/4 ] The majority suggests that appellees "concede that Congress could enact a blanket prohibition against entry of all aliens falling into the class defined by §§ 212(a)(28)(D) and (G)(v), and that First Amendment rights could not override that decision." This was certainly not the view of the court below, whose judgment the appellants alone have challenged here and appellees have moved to affirm. It is true that appellees have argued to this Court a ground of decision alternative to that argued and adopted below; but they have hardly conceded the incorrectness of what they successfully argued below. They have simply noted, at 16-17 of their brief, that, even if this Court rejects the broad decision below, there would nevertheless be a separate and narrower basis for affirmance. See Tr. of Oral Arg. 24, 226, 41-42. [ Footnote 3/5 ] In United States v. Robel, 389 U. S. 258 (1967), this Court struck down a statute making it a criminal offense for any employee of a "defense facility" to remain a member of the Communist Party, in spite of Government claims that the enactment came within the "war power." In Aptheker v. Secretary of State, 378 U. S. 500 (1964), the Government unsuccessfully sought to defend the denial of passports to American members of the Communist Party, in spite of claimed threats to the national security. In Zemel v. Rusk, 381 U. S. 1 (1965), the passport restriction on travel to Cuba was upheld because individual constitutional rights were overridden by the "weightiest considerations of national security"; but the Court rejected any assumption "that simply because a statute deals with foreign relations, it can grant the Executive totally unrestricted freedom of choice." Id. at 381 U. S. 16 , 381 U. S. 17 . In Schneider v. Rusk, 377 U. S. 163 (1964), the Government unsuccessfully attempted to justify a statutory inequality between naturalized and native-born citizens under the foreign relations power. And in Lamont v. Postmaster General, 381 U. S. 301 (1965), itself, as MR. JUSTICE BRENNAN noted, the Government urged that the statute was "justified by the object of avoiding the subsidization of propaganda of foreign governments which bar American propaganda"; MR. JUSTICE BRENNAN answered that the Government must act "by means and on terms which do not endanger First Amendment rights." Id. at 381 U. S. 310 . [ Footnote 3/6 ] I agree with the majority that courts should not inquire into such things as the "probity of the speaker's ideas." Neither should the Executive, however. Where Americans wish to hear an alien, and their claim is not a demonstrated sham, the crucial question is whether the Government's interest in excluding the alien is compelling. [ Footnote 3/7 ] It goes without saying, of course, that, once he has been admitted, any alien (like any citizen) can be punished if he incites lawless acts or commits other crimes. [ Footnote 3/8 ] Such "nonimmigrants" are not covered by quotas. C. Gordon & H. Rosenfield, Immigration Law and Procedure § 2.6 (1971).

In Kleindienst v. Mandel, the Supreme Court considered whether the Attorney General's decision to deny a visa to a Belgian journalist and Marxian theoretician violated the First Amendment rights of American citizens who had invited him to speak at academic conferences in the United States. The Court held that when the Attorney General decides not to waive the statutory exclusion of an alien for a legitimate and bona fide reason, courts will not review that decision or weigh it against the First Amendment interests of those who wish to communicate with the alien. The Court recognized Congress' plenary power to exclude aliens and found that it had been conditionally delegated to the Executive Branch in this case.

Immigration & National Security

Landon v. Plasencia

https://supreme.justia.com/cases/federal/us/459/21/

U.S. Supreme Court Landon v. Plasencia, 459 U.S. 21 (1982) Landon v. Plasencia No. 81-129 Argued October 5, 1982 Decided November 15, 1982 459 U.S. 21 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus Section 235 of the Immigration and Nationality Act of 1952 (Act) permits the Immigration and Naturalization Service (INS) to examine "all aliens" who seek "admission or readmission to" the United States and empowers immigration officers to take evidence concerning the privilege of any persons suspected of being an alien "to enter, reenter, pass through, or reside" in the United States, and to detain for further inquiry "every alien" who does not appear "to be clearly and beyond a doubt entitled to" enter. Under § 236(a), if an alien is so detained, the officer is directed to determine whether the alien "shall be allowed to enter or shall be excluded and deported." Following an exclusion hearing, the INS denied respondent, a permanent resident alien, admission to the United States when she returned from a brief visit to Mexico that involved an attempt to smuggle aliens across the border. Subsequently, respondent filed a petition for a writ of habeas corpus in Federal District Court, seeking release from the exclusion order and contending that she was entitled to have the question of her admissibility litigated in a deportation proceeding where she would be entitled to procedural protections and substantive rights not available in exclusion proceedings. The District Court vacated the INS's decision, instructing it to proceed against respondent, if at all, only in deportation proceedings. The Court of Appeals affirmed. Held: 1. The INS had statutory authority to proceed in an exclusion hearing to determine whether respondent was attempting to "enter" the United States and whether she was excludable. The language and history of the Act both clearly reflect a congressional intent that, whether or not the alien is a permanent resident, admissibility shall be determined in an exclusion hearing. Nothing in the language or history suggests that respondent's status as a permanent resident entitles her to a suspension of the exclusion hearing or requires the INS to proceed only through a deportation hearing. Pp. 459 U. S. 25 -28. 2. Contrary to the view of the Court of Appeals, it was not "circular" and "unfair" to allow the INS to litigate the question of "entry" in exclusion Page 459 U. S. 22 proceedings simply because that question also went to the merits of respondent's admissibility. Nor did the use of exclusion proceedings violate either the "scope" or "spirit" of Rosenberg v. Fleuti, 374 U. S. 449 , where the Court held that an "innocent, casual, and brief excursion" by a resident alien outside this country's borders would not subject him to the consequences of an "entry" on his return. Pp. 459 U. S. 28 -32. 3. Although, under the circumstances, respondent is entitled to due process in her exclusion hearing, the case will be remanded to the Court of Appeals to consider whether she was accorded due process, because the factors relevant to due process analysis have not been adequately presented here to permit an assessment of the sufficiency of the hearing. Pp. 459 U. S. 32 -37. 637 F.2d 1286, reversed and remanded. O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. MARSHALL, J., filed an opinion concurring in part and dissenting in part, post, p. 459 U. S. 37 . JUSTICE O'CONNOR delivered the opinion of the Court. Following an exclusion hearing, the Immigration and Naturalization Service (INS) denied the respondent, a permanent resident alien, admission to the United States when she attempted to return from a brief visit abroad. Reviewing the respondent's subsequent petition for a writ of habeas corpus, the Court of Appeals vacated the decision, holding that the question whether the respondent was attempting to "enter" the United States could be litigated only in a deportation hearing, and not in an exclusion hearing. Because we conclude that the INS has statutory authority to proceed in an exclusion hearing, we reverse the judgment below. We remand to allow the Court of Appeals to consider whether the respondent, a permanent resident alien, was accorded due process at the exclusion hearing. Page 459 U. S. 23 I Respondent Maria Antonieta Plasencia, a citizen of El Salvador, entered the United States as a permanent resident alien in March, 1970. She established a home in Los Angeles with her husband, a United States citizen, and their minor children. On June 27, 1975, she and her husband traveled to Tijuana, Mexico. During their brief stay in Mexico, they met with several Mexican and Salvadoran nationals and made arrangements to assist their illegal entry into the United States. She agreed to transport the aliens to Los Angeles and furnished some of the aliens with alien registration receipt cards that belonged to her children. When she and her husband attempted to cross the international border at 9:27 on the evening of June 29, 1975, an INS officer at the port of entry found six nonresident aliens in the Plasencias' car. The INS detained the respondent for further inquiry pursuant to § 235(b) of the Immigration and Nationality Act of 1952 (Act), 66 Stat. 182, as amended, 8 U.S.C. § 1101 et seq. [ Footnote 1 ] In a notice dated June 30, 1975, the INS charged her under § 212(a)(31) of the Act, 8 U.S.C. § 1182(a)(31), which provides for the exclusion of any alien seeking admission "who at any time shall have, knowingly and for gain, encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law, Page 459 U. S. 24 and gave notice that it would hold an exclusion hearing at 11 a.m. on June 30, 1975. [ Footnote 2 ]" An Immigration Law Judge conducted the scheduled exclusion hearing. After hearing testimony from the respondent, her husband, and three of the aliens found in the Plasencias' car, the judge found "clear, convincing and unequivocal" evidence that the respondent did "knowingly and for gain encourage, induce, assist, abet, or aid nonresident aliens" to enter or try to enter the United States in violation of law. He also found that the respondent's trip to Mexico was a "meaningful departure" from the United States, and that her return to this country was therefore an "entry" within the meaning of § 101(a)(13), 8 U.S.C. § 1101(a)(13). [ Footnote 3 ] Page 459 U. S. 25 On the basis of these findings, he ordered her "excluded and deported." After the Board of Immigration Appeals (BIA) dismissed her administrative appeal and denied her motion to reopen the proceeding, the respondent filed a petition for a writ of habeas corpus in the United States District Court, seeking release from the exclusion and deportation order. The Magistrate initially proposed a finding that, on the basis of evidence adduced at the exclusion hearing, "a meaningful departure did not occur . . . , and that therefore [the respondent] is entitled to a deportation hearing." After considering the Government's objections, the Magistrate declared that the Government could relitigate the question of "entry" at the deportation hearing. The District Court adopted the Magistrate's final report and recommendation and vacated the decision of the BIA, instructing the INS to proceed against respondent, if at all, only in deportation proceedings. The Court of Appeals for the Ninth Circuit affirmed. Plasencia v. Sureck, 637 F.2d 1286 (1980). II The immigration laws create two types of proceedings in which aliens can be denied the hospitality of the United States: deportation hearings and exclusion hearings. See generally Leng May Ma v. Barber, 357 U. S. 185 , 357 U. S. 187 (1958). The deportation hearing is the usual means of proceeding against an alien already physically in the United States, and the exclusion hearing is the usual means of proceeding against an alien outside the United States seeking admission. The two types of proceedings differ in a number of ways. See generally Maldonado-Sandoval v. INS, 518 F.2d 278, 280, n. 3 (CA9 1975). An exclusion proceeding is usually held at the port of entry, while a deportation hearing is usually held near the residence of the alien within the United Page 459 U. S. 26 States, see 1A C. Gordon & H. Rosenfield, Immigration Law and Procedure § 5.6c (rev. ed.1981). The regulations of the Attorney General, issued under the authority of § 242(b), 8 U.S.C. § 1252(b), require in most deportation proceedings that the alien be given seven days' notice of the charges against him, 8 CFR § 242.1(b) (1982), while there is no requirement of advance notice of the charges for an alien subject to exclusion proceedings. Indeed, the BIA has held that, "as long as the applicant is informed of the issues confronting him at some point in the hearing, and he is given a reasonable opportunity to meet them," no further notice is necessary. In re Salazar, 17 I. & N.Dec. 167, 169 (1979). Also, if the INS prevails in a deportation proceeding, the alien may appeal directly to the court of appeals, § 106(a), 75 Stat. 651, as amended, 8 U.S.C. § 1105a(a) (1976 ed. and Supp. V), while the alien can challenge an exclusion order only by a petition for a writ of habeas corpus, § 106(b), 75 Stat. 653, 8 U.S.C. § 1105a(b). Finally, the alien who loses his right to reside in the United States in a deportation hearing has a number of substantive rights not available to the alien who is denied admission in an exclusion proceeding: he can, within certain limits, designate the country of deportation, § 243(a), 8 U.S.C. § 1253(a) (1976 ed. and Supp. V); he may be able to depart voluntarily, § 244(e), 8 U.S.C. § 1254(e) (1976 ed., Supp. V), avoiding both the stigma of deportation, § 242(b), 8 U.S.C. § 1252(b) (1976 ed. and Supp. V), and the limitations on his selection of destination, § 243(a), 8 U.S.C. § 1253(a) (1976 ed. and Supp. V); [ Footnote 4 ] or he Page 459 U. S. 27 can seek suspension of deportation, § 242(e), 8 U.S.C. § 1252(e) (1976 ed., Supp. V). The respondent contends that she was entitled to have the question of her admissibility litigated in a deportation hearing, where she would be the beneficiary of the procedural protections and the substantive rights outlined above. Our analysis of whether she is entitled to a deportation, rather than an exclusion, hearing begins with the language of the Act. Section 235(a) of the Act, 8 U.S.C. § 1225(a), permits the INS to examine " [a]ll aliens" who seek "admission or readmission to" the United States, and empowers immigration officers to take evidence concerning the privilege of any person suspected of being an alien "to enter, reenter, pass through, or reside" in the United States. (Emphasis added.) Moreover, "every alien" who does not appear "to be clearly and beyond a doubt entitled to land shall be detained" for further inquiry. § 235(b). If an alien is so detained, the Act directs the special inquiry officer to determine whether the arriving alien "shall be allowed to enter or shall be excluded and deported." § 236(a), 8 U.S.C. § 1226(a). The proceeding before that officer, the exclusion hearing, is by statute "the sole and exclusive procedure for determining admissibility of a person to the United States. . . ." Ibid. The Act's legislative history also emphasizes the singular role of exclusion hearings in determining whether an alien should be admitted. The Reports of both the House and Senate state: "The special inquiry officer is empowered to determine whether an alien detained for further inquiry shall be excluded and deported or shall be allowed to enter after he has given the alien a hearing. The procedure established in the bill is made the sole and exclusive procedure for determining the admissibility of a person to the Page 459 U. S. 28 United States." S.Rep. No. 1137, 82d Cong., 2d Sess., 29 (1952); H.R.Rep. No. 1365, 82d Cong., 2d Sess., 56 (1952). The language and history of the Act thus clearly reflect a congressional intent that, whether or not the alien is a permanent resident, admissibility shall be determined in an exclusion hearing. Nothing in the statutory language or the legislative history suggests that the respondent's status as a permanent resident entitles her to a suspension of the exclusion hearing or requires the INS to proceed only through a deportation hearing. Under the terms of the Act, the INS properly proceeded in an exclusion hearing to determine whether respondent was attempting to "enter" the United States [ Footnote 5 ] and whether she was excludable. III To avoid the impact of the statute, the respondent contends, and the Court of Appeals agreed, that unless she was "entering," she was not subject to exclusion proceedings, and that prior decisions of this Court indicate that she is entitled to have the question of "entry" decided in deportation proceedings. The parties agree that only "entering" aliens are subject to exclusion. See Brief for Petitioner 19. That view accords with the language of the statute, which describes the exclusion hearing as one to determine whether the applicant "shall be allowed to enter or shall be excluded and deported." § 236(a), 8 U.S.C. § 1226(a) (emphasis added). But the respondent's contention that the question of entry can be determined only in deportation proceedings reflects a misconception of our decisions. In Rosenberg v. Fleuti, 374 U. S. 449 (1963), we faced the question whether a resident alien's return from an afternoon Page 459 U. S. 29 trip across the border was an "entry" for immigration law purposes. The definition of that term was the same then as it is now: it means "any coming of an alien into the United States . . . except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him. . . ." § 101(a)(13), 8 U.S.C. § 1101(a)(13). We held in Fleuti that the "intent exception" refers to an intent to depart in a "manner which can be regarded as meaningfully interruptive of the alien's permanent residence." 374 U.S. at 374 U. S. 462 . Thus, an "innocent, casual, and brief excursion" by a resident alien outside this country's borders would not subject him to the consequences of an "entry" on his return. Ibid. If, however, "the purpose of leaving the country is to accomplish some object which is itself contrary to some policy reflected in our immigration laws, it would appear that the interruption of residence thereby occurring would properly be regarded as meaningful." Ibid. That distinction both protects resident aliens from "unsuspected risks and unintended consequences of . . . a wholly innocent action," ibid., and gives effect to the language of § 101(a)(13). [ Footnote 6 ] Page 459 U. S. 30 The Government has argued in this case that Plasencia violated the immigration laws by attempting to smuggle aliens for gain. Therefore, her departure was "meaningfully interruptive" of her residence, she was attempting an "entry," and she was subject to exclusion proceedings. And, the Government urges, under § 212(a)(31), 8 U.S.C. § 1182(a)(31), she was excludable because she had attempted to smuggle aliens for gain. Plasencia, on the other hand, argues that it would "violat[e] both the scope and spirit," Brief for Respondent 15, of Fleuti to permit the INS to litigate questions of "entry" in exclusion proceedings. The Court of Appeals viewed Fleuti as a deportation case, rather than an exclusion case, 637 F.2d at 1288, and therefore not relevant in deciding whether the question of "entry" could be determined in exclusion proceedings. For guidance on that decision, the Court of Appeals turned to Kwong Hai Chew v. Colding. 344 U. S. 590 (1953), which it read to hold that a resident alien returning from a brief trip "could not be Page 459 U. S. 31 excluded without the procedural due process to which he would have been entitled had he never left the country" -- i.e., in this case, a deportation proceeding. 637 F.2d at 1288. The court concluded that Plasencia was entitled to litigate her admissibility in deportation proceedings. It would be "circular" and "unfair," thought the court, to allow the INS to litigate the question of "entry" in exclusion proceedings when that question also went to the merits of the respondent's admissibility. Id. at 1288 1289. We disagree. The reasoning of Chew was only that a resident alien returning from a brief trip has a right to due process just as would a continuously present resident alien. It does not create a right to identical treatment for these two differently situated groups of aliens. [ Footnote 7 ] As the Ninth Circuit seemed to recognize, if the respondent here was making an "entry," she would be subject to exclusion proceedings. It is no more "circular" to allow the immigration judge in the exclusion proceeding to determine whether the alien is making an entry than it is for any court to decide that it has jurisdiction when the facts relevant to the determination of jurisdiction are also relevant to the merits. Thus, in United States v. Sing Tuck, 194 U. S. 161 (1904), this Court held that an immigration inspector could make a determination whether an applicant for admission was an alien or a citizen, although only aliens were subject to exclusion. Cf. Land v. Dollar, 330 U. S. 731 , 330 U. S. 739 (1947) (district court has jurisdiction to determine its jurisdiction by proceeding to a decision on the merits). Nor is it in any way "unfair" to decide the question of entry in exclusion proceedings as long as those proceedings themselves are fair. Finally, the use of exclusion proceedings Page 459 U. S. 32 violates neither the "scope" nor the "spirit" of Fleuti. As the Court of Appeals held, that case only defined "entry," and did not designate the forum for deciding questions of entry. The statutory scheme is clear: Congress intended that the determinations of both "entry" and the existence of grounds for exclusion could be made at an exclusion hearing. IV Our determination that the respondent is not entitled to a deportation proceeding does not, however, resolve this case. In challenging her exclusion in the District Court, Plasencia argued not only that she was entitled to a deportation proceeding, but also that she was denied due process in her exclusion hearing. See App. 5, 119; Record 19, 20, 23. We agree with Plasencia that, under the circumstances of this case, she can invoke the Due Process Clause on returning to this country, although we do not decide the contours of the process that is due or whether the process accorded Plasencia was insufficient. This Court has long held that an alien seeking initial admission to the United States requests a privilege, and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative. See, e.g., United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537 , 338 U. S. 542 (1950); Nishimura Ekiu v. United States, 142 U. S. 651 , 142 U. S. 659 -660 (1892). Our recent decisions confirm that view. See, e.g., Fiallo v. Bell, 430 U. S. 787 , 430 U. S. 792 (1977); Kleindienst v. Mandel, 408 U. S. 753 (1972). As we explained in Johnson v Eisentrager, 339 U. S. 763 , 339 U. S. 770 (1950), however, once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly. Our cases have frequently suggested that a continuously present resident alien is entitled to a fair hearing when threatened with deportation, see, e.g., United State ex rel. Tisi v. Tod, 264 U. S. 131 , 264 U. S. 133 , 264 U. S. 134 (1924); Low Wah Suey v. Backus , 225 U. S. 460 , Page 459 U. S. 33 225 U. S. 468 (1912) (hearing may be conclusive "when fairly conducted"); see also Kwong Hai Chew, 344 U.S. at 344 U. S. 598 , n. 8, and, although we have only rarely held that the procedures provided by the executive were inadequate, we developed the rule that a continuously present permanent resident alien has a right to due process in such a situation. See, e.g., United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103 , 273 U. S. 106 (1927); The Japanese Immigrant Case, 189 U. S. 86 , 189 U. S. 100 -101 (1903); see also Wong Yang Sung v. McGrath, 339 U. S. 33 , 339 U. S. 49 -50 (1950); Bridges v. Wixon, 326 U. S. 135 , 326 U. S. 153 -154 (1945). The question of the procedures due a returning resident alien arose in Kwong Hai Chew v. Colding, supra. There, the regulations permitted the exclusion of an arriving alien without a hearing. We interpreted those regulations not to apply to Chew, a permanent resident alien who was returning from a 5-month voyage abroad as a crewman on an American merchant ship. We reasoned that, "[f]or purposes of his constitutional right to due process, we assimilate petitioner's status to that of an alien continuously residing and physically present in the United States." 344 U.S. at 344 U. S. 596 . Then, to avoid constitutional problems, we construed the regulation as inapplicable. Although the holding was one of regulatory interpretation, the rationale was one of constitutional law. Any doubts that Chew recognized constitutional rights in the resident alien returning from a brief trip abroad were dispelled by Rosenberg v. Fleuti, where we described Chew as holding "that the returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him." 374 U.S. at 374 U. S. 460 . If the permanent resident alien's absence is extended, of course, he may lose his entitlement to "assimilat[ion of his] status," Kwong Hai Chew v. Colding, supra, at 344 U. S. 596 , to that of an alien continuously residing and physically present in the United States. In Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206 (1953), this Court rejected the argument Page 459 U. S. 34 of an alien who had left the country for some 20 months that he was entitled to due process in assessing his right to admission on his return. We did not suggest that no returning resident alien has a right to due process, for we explicitly reaffirmed Chew. We need not now decide the scope of Mezei; it does not govern this case, for Plasencia was absent from the country only a few days, and the United States has conceded that she has a right to due process, see Tr. of Oral Arg. 6, 9, 14; Brief for Petitioner 9-10, 20-21. The constitutional sufficiency of procedures provided in any situation, of course, varies with the circumstances. See, e.g., Lassiter v. Department of Social Services, 452 U. S. 18 , 452 U. S. 24 -25 (1981); Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1 , 442 U. S. 12 (1979); Morrissey v. Brewer, 408 U. S. 471 , 408 U. S. 481 (1972). In evaluating the procedures in any case, the courts must consider the interest at stake for the individual, the risk of an erroneous deprivation of the interest through the procedures used as well as the probable value of additional or different procedural safeguards, and the interest of the government in using the current procedures, rather than additional or different procedures. Mathews v. Eldridge, 424 U. S. 319 , 424 U. S. 334 -335 (1976). Plasencia's interest here is, without question, a weighty one. She stands to lose the right "to stay and live and work in this land of freedom," Bridges v. Wixon, supra, at 326 U. S. 154 . Further, she may lose the right to rejoin her immediate family, a right that ranks high among the interests of the individual. See, e.g., Moore v. City of East Cleveland, 431 U. S. 494 , 431 U. S. 499 , 431 U. S. 503 -504 (1977) (plurality opinion); Stanley v. Illinois, 405 U. S. 645 , 405 U. S. 651 (1972). The Government's interest in efficient administration of the immigration laws at the border also is weighty. Further, it must weigh heavily in the balance that control over matters of immigration is a sovereign prerogative, largely within the control of the Executive and the Legislature. See, e.g., Fiallo, supra, at 430 U. S. 792 -793; Knauff, supra, at 338 U. S. 542 -543; The Japanese Immigrant Case, supra, at 189 U. S. 97 . The role of the judiciary Page 459 U. S. 35 is limited to determining whether the procedures meet the essential standard of fairness under the Due Process Clause, and does not extend to imposing procedures that merely displace congressional choices of policy. Our previous discussion has shown that Congress did not intend to require the use of deportation procedures in cases such as this one. Thus, it would be improper simply to impose deportation procedures here because the reviewing court may find them preferable. Instead, the courts must evaluate the particular circumstances and determine what procedures would satisfy the minimum requirements of due process on the reentry of a permanent resident alien. Plasencia questions three aspects of the procedures that the Government employed in depriving her of these interests. First, she contends that the Immigration Law Judge placed the burden of proof upon her. In a later proceeding in Chew, the Court of Appeals for the District of Columbia Circuit held, without mention of the Due Process Clause, that, under the law of the case, Chew was entitled to a hearing at which the INS was the moving party and bore the burden of proof. Kwong Hai Chew v. Rogers, 103 U.S.App.D.C. 228, 257 F.2d 606 (1958). The BIA has accepted that decision, and although the Act provides that the burden of proof is on the alien in an exclusion proceeding, § 291, 8 U.S.C. § 1361 (1976 ed., Supp. V), the BIA has followed the practice of placing the burden on the Government when the alien is a permanent resident alien. See, e.g., In re Salazar, 17 I. & N.Dec. at 169; In re Kane, 15 I. & N.Dec. 258, 264 (BIA 1975); In re Becerra-Miranda, 12 I. & N.Dec. 358, 363-364, 366 (BIA 1967). There is no explicit statement of the placement of the burden of proof in the Attorney General's regulations or in the Immigration Law Judge's opinion in this case, and no finding on the issue below. Second, Plasencia contends that the notice provided her was inadequate. She apparently had less than 11 hours' notice of the charges and the hearing. The regulations do not Page 459 U. S. 36 require any advance notice of the charges against the alien in an exclusion hearing, and the BIA has held that it is sufficient that the alien have notice of the charges at the hearing, In re Salazar, supra, at 169. The United States has argued to us that Plasencia could have sought a continuance. It concedes, however, that there is no explicit statutory or regulatory authorization for a continuance. Finally, Plasencia contends that she was allowed to waive her right to representation, § 292, 8 U.S.C. § 1362, [ Footnote 8 ] without a full understanding of the right or of the consequences of waiving it. Through an interpreter, the Immigration Law Judge informed her at the outset of the hearing, as required by the regulations, of her right to be represented. He did not tell her of the availability of free legal counsel, but, at the time of the hearing, there was no administrative requirement that he do so. 8 CFR § 236.2(a) (1975). The Attorney General has since revised the regulations to require that, when qualified free legal services are available, the immigration law judge must inform the alien of their existence and ask whether representation is desired. 44 Fed.Reg. 4654 (1979) (codified at 8 CFR § 236.2(a) (1982)). As the United States concedes, the hearing would not comply with the current regulations. See Tr. of Oral Arg. 11. If the exclusion hearing is to ensure fairness, it must provide Plasencia an opportunity to present her case effectively, though at the same time it cannot impose an undue burden on the Government. It would not, however, be appropriate for us to decide now whether the new regulation on the right to notice of free legal services is of constitutional magnitude, or whether the remaining procedures provided comport with the Due Process Clause. Before this Court, the parties have devoted their attention to the entitlement to a deportation hearing, rather than to the sufficiency of the procedures in the Page 459 U. S. 37 exclusion hearing. [ Footnote 9 ] Whether the several hours' notice gave Plasencia a realistic opportunity to prepare her case for effective presentation in the circumstances of an exclusion hearing without counsel is a question we are not now in a position to answer. Nor has the Government explained the burdens that it might face in providing more elaborate procedures. Thus, although we recognize the gravity of Plasencia's interest, the other factors relevant to due process analysis -- the risk of erroneous deprivation, the efficacy of additional procedural safeguards, and the Government's interest in providing no further procedures -- have not been adequately presented to permit us to assess the sufficiency of the hearing. We remand to the Court of Appeals to allow the parties to explore whether Plasencia was accorded due process under all of the circumstances. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. [ Footnote 1 ] Section 235, as set forth in 8 U.S.C. § 1225, provides in part: "(a) 'The inspection . . . of aliens (including alien crewmen) seeking admission or readmission to . . . the United States shall be conducted by immigration officers, except as otherwise provided in regard to special inquiry officers. All aliens arriving at ports of the United States shall be examined by one or more immigration officers at the discretion of the Attorney General and under such regulations as he may prescribe. . . .'" "(b) 'Every alien . . . who may not appear to the examining immigration officer at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for further inquiry to be conducted by a special inquiry officer.'" [ Footnote 2 ] The hearing was authorized by § 236(a), which, as set forth in 8 U.S.C. § 1226(a), provides: "A special inquiry officer shall conduct proceedings under this section, administer oaths, present and receive evidence, and interrogate, examine, and cross-examine the alien or witnesses. He shall have authority in any case to determine whether an arriving alien who has been detained for further inquiry under section 1225 of this title shall be allowed to enter or shall be excluded and deported. The determination of such special inquiry officer shall be based only on the evidence produced at the inquiry. . . . Proceedings before a special inquiry officer under this section shall be conducted in accordance with this section, the applicable provisions of sections 1225 and 1375(b) of this title, and such regulations as the Attorney General shall prescribe, and shall be the sole and exclusive procedure for determining admissibility of a person to the United States under the provisions of this section. . . . A complete record of the proceedings and of all testimony and evidence produced at such inquiry shall be kept." [ Footnote 3 ] Section 101(a)(13), 8 U.S.C. 1101(a)(13), defines "entry" as "any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary: Provided, That no person whose departure from the United States was occasioned by deportation proceedings, extradition, or other legal process shall be held to be entitled to such exception." [ Footnote 4 ] Voluntary departure for an alien who would otherwise be deported also means that he will not be subject to § 212(a)(17), 8 U.S.C. § 1182(a)(17), which, at the time of Plasencia's hearing, required aliens who had once been deported to seek prior approval of the Attorney General before reentering. There was no comparable requirement of prior approval for aliens who had been excluded and sought again to enter more than one year later. § 212(a)(16), 8 U.S.C. § 1182(a)(16). The requirement of prior approval for deported aliens now applies only within five years of deportation. 95 Stat. 1612, § 212(a)(17), 8 U.S.C. § 1182(a)(17) (1976 ed., Supp. V). [ Footnote 5 ] Apparently the practice of the INS is to determine this question in exclusion proceedings. See In re Leal, 15 I. & N.Dec. 477, 478-479 (BIA 1975); In re Becerra-Miranda, 12 I. & N.Dec. 358, 362-363 (BIA 1967). [ Footnote 6 ] Section 101(a)(13), 8 U.S.C. § 1101(a)(13), which defines "entry," was enacted in 1952 in response to the harsh results visited upon resident aliens by earlier restrictive interpretations of the term. Both the House and Senate Reports contained identical explanatory language: "Normally an entry occurs when the alien crosses the borders of the United States and makes a physical entry, and the question of whether an entry has been made is susceptible of a precise determination. However, for the purposes of determining the effect of a subsequent entry upon the status of an alien who has previously entered the United States and resided therein, the preciseness of the term 'entry' has not been found to be as apparent. Earlier judicial constructions of the term in the immigration laws, as set forth in Volpe v. Smith ( 289 U.S. 422 (1933)), generally held that the term 'entry' included any coming of an alien from a foreign country to the United States, whether such coming be the first or a subsequent one. More recently, the courts have departed from the rigidity of that rule, and have recognized that an alien does not make an entry upon his return to the United States from a foreign country where he had no intent to leave the United States ( Di Pasquale v. Karnuth, 158 F.2d 878 (C.C.A.2d 1947)), or did not leave the country voluntarily ( Deladillo v. Carmichael, 332 U. S. 388 (1947)). The bill defines the term 'entry' as precisely as practicable, giving due recognition to the judicial precedents. Thus, any coming of an alien from a foreign port or place or an outlying possession into the United States is to be considered an entry, whether voluntary or otherwise, unless the Attorney General is satisfied that the departure of the alien, other than a deportee, from this country was unintentional or was not voluntary." S.Rep. No. 1137, 82d Cong., 2d Sess., 4 (1962); H.R.Rep. No. 1365, 82d Cong., 2d Sess., 32 (1962). In Di Pasquale, the court refused to allow a deportation that depended upon an "entry" that occurred after an overnight train on which an alien was a passenger passed through Canada on its way from Buffalo to Detroit. In Delgadillo, the Court refused to define as an "entry" the return of an alien taken to Cuba to recuperate after the merchant ship on which he ailed was torpedoed in the Caribbean during World War II. [ Footnote 7 ] Indeed, we expressly declined to reach the question whether Chew himself was entitled to a deportation proceeding. We stated: "From a constitutional point of view, he is entitled to due process without regard to whether or not, for immigration purposes, he is to be treated as an entrant alien, and we do not now reach the question whether he is to be so treated." 344 U.S. at 344 U. S. 600 . [ Footnote 8 ] The statute provides a right to representation without expense to the Government. § 292, 8 U.S.C. § 1362. Plasencia has not suggested that she is entitled to free counsel. [ Footnote 9 ] Thus, the question of Plasencia's entitlement to due process has been briefed and argued, is properly before us, and is sufficiently developed that we are prepared to decide it. Precisely what procedures are due, on the other hand, has not been adequately developed by the briefs or argument. The dissent undertakes to decide these questions, but, to do so, must rely heavily on an argument not raised by Plasencia: to-wit, that she was not informed at the hearing that the alleged agreement to receive compensation and the meaningfulness of her departure were critical issues. Also, the dissent fails to discuss the interests that the Government may have in employing the procedures that it did. The omission of arguments raised by the parties is quite understandable, for neither Plasencia nor the Government has yet discussed what procedures are due. Unlike the dissent, we would allow the parties to explore their respective interests and arguments in the Court of Appeals. JUSTICE MARSHALL, concurring in part and dissenting in part. I agree that the Immigration and Nationality Act permitted the INS to proceed against respondent in an exclusion Page 459 U. S. 38 proceeding. The question then remains whether the exclusion proceeding held in this case satisfied the minimum requirements of the Due Process Clause. While I agree that the Court need not decide the precise contours of the process that would be constitutionally sufficient, I would not hesitate to decide that the process accorded Plasencia was insufficient. [ Footnote 2/1 ] The Court has already set out the standards to be applied in resolving the question. Therefore, rather than just remand, I would first hold that respondent was denied due process because she was not given adequate and timely notice of the charges against her and of her right to retain counsel and to present a defense. [ Footnote 2/2 ] While the type of hearing required by due process depends upon a balancing of the competing interests at stake, due process requires, "at a minimum . . . , that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing." Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 , 339 U. S. 313 (1950). See, e.g., Bell v. Burson, 402 U. S. 535 , 402 U. S. 542 (1971). Permanent resident aliens who are detained upon reentry into this country clearly are entitled to adequate notice in advance of an exclusion proceeding. Page 459 U. S. 39 To satisfy due process, notice must "clarify what the charges are" in a manner adequate to apprise the individual of the basis for the government's proposed action. Wolff v. McDonnell, 418 U. S. 539 , 418 U. S. 564 (1974). Notice must be provided sufficiently in advance of the hearing to "give the charged party a chance to marshal the facts in his defense." Id. at 418 U. S. 563 , 418 U. S. 564 (prisoners charged with disciplinary violations must be given "advance written notice of the claimed violation"). See, e.g., Goldberg v. Kelly, 397 U. S. 254 , 397 U. S. 267 -268 (1970) (welfare recipients must be given "timely and adequate notice detailing the reasons for a proposed termination"); In re Gault, 387 U. S. 1 , 387 U. S. 33 (1967) (juvenile must be given notice of "the specific charge or factual allegations" to be considered at delinquency hearing "at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation"). Respondent was not given notice sufficient to afford her a reasonable opportunity to demonstrate that she was not excludable. The Immigration Judge's decision to exclude respondent was handed down less than 24 hours after she was detained at the border on the night of June 29, 1975. By notice in English dated June 30, 1975, she was informed that a hearing would be conducted at 11 o'clock on the morning of that same day, and that the Government would seek to exclude her on the ground that she had "wilfully and knowingly aided and abetted the entry of illegal aliens into the United States in violation of the law and for gain." [ Footnote 2/3 ] It was not until the commencement of the hearing that she was given notice in her native language of the charges against her and of her right to retain counsel and to present evidence. The charges against Plasencia were also inadequately explained at the hearing itself. [ Footnote 2/4 ] The Immigration Judge did not explain to her that she would be entitled to remain in the Page 459 U. S. 40 country if she could demonstrate that she had not agreed to receive compensation from the aliens whom she had driven across the border. [ Footnote 2/5 ] Nor did the judge inform respondent that the meaningfulness of her departure was an issue at the hearing. These procedures deprived Plasencia of a fair opportunity to show that she was not excludable under the standards set forth in the Immigration and Nationality Act. Because Plasencia was not given adequate notice of the standards for exclusion or of her right to retain counsel and present a defense, she had neither time nor opportunity to prepare a response to Page 459 U. S. 41 the Government's case. The procedures employed here virtually assured that the Government attorney would present his case without factual or legal opposition. When a permanent resident alien's substantial interest in remaining in this country is at stake, the Due Process Clause forbids the Government to stack the deck in this fashion. Only a compelling need for truly summary action could justify this one-sided proceeding. In fact, the Government's haste in proceeding against Plasencia could be explained only by its desire to avoid the minimal administrative and financial burden of providing her adequate notice and an opportunity to prepare for the hearing. Although the various other Government interests identified by the Court may be served by the exclusion of those who fail to meet the eligibility requirements set out in the Immigration and Nationality Act, they are not served by procedures that deny a permanent resident alien a fair opportunity to demonstrate that she meets those eligibility requirements. I would therefore hold that respondent was denied due process. [ Footnote 2/1 ] Because the due process question was squarely addressed in the briefs and at oral argument, there is no doubt that the Court may now decide the issue. See Vance v. Terrazas, 444 U. S. 252 , 444 U. S. 258 -259, n. 5 (1980), and cases cited therein. In fact, the Court has reached the threshold of deciding the constitutional question. It has identified the deficiencies in the exclusion hearing afforded Plasencia, and it has set forth the standards that it would apply to determine whether the procedures, as described, denied Plasencia due process. I do not see any interest to be served in declining to take the final step of applying these due process standards to the record before us, as the Court of Appeals would otherwise be required to do on remand. [ Footnote 2/2 ] Because Plasencia did not receive constitutionally sufficient notice, I find it unnecessary to address the other constitutional deficiencies she asserts. [ Footnote 2/3 ] It is unclear from the record whether respondent received the notice prior to the commencement of the hearing. [ Footnote 2/4 ] The exclusion hearing was conducted with the aid of an interpreter. [ Footnote 2/5 ] The principal issue of fact at the hearing was whether Plasencia had transported the six aliens "for gain." Plasencia, who was called as the Government's first witness, denied repeatedly that any of the aliens had agreed to pay her for driving them into this country. The Government's trial attorney then called three of the six aliens as witnesses. One witness, Jose Alfredo Santillana, stated unequivocally that he was picked up by the Plasencias while hitchhiking and that, without making any mention of money, they agreed to drive him to Los Angeles. A second witness, Luis Polio-Medina, testified that there had not been any talk with Plasencia at any time about payment for transportation to Los Angeles, though there "was kind of an understanding" that "some people in Los Angeles" whom he "was going to look for" would pay her a "normal amount" on his behalf. Only the third witness, Eugenia Linares-Moreno, testified that she had an agreement to pay Plasencia for transportation into the country. Given the weakness of the Government's evidence, Plasencia may well have been prejudiced by her inability to prepare for the hearing and to obtain counsel. The three aliens who did not testify at the hearing might have supported Plasencia's claim that she did not expect to receive financial compensation. The Immigration Judge's finding that Plasencia transported the aliens for gain must have depended on his acceptance of the testimony given by Linares-Moreno and Polio-Medina. The motives of these Government witnesses in testifying against Plasencia were open to question, since they were subject to criminal prosecution in this country. The credibility of Linares-Moreno, the Government's key witness, might also have been challenged on the grounds that she had contradicted herself on at least one key question during the course of her examination, and that she had concededly lied to an INS officer by giving a false name. Vigorous cross-examination by a competent attorney might well have led the Immigration Judge to resolve the disputed issue of fact in Plasencia's favor.

The Immigration and Naturalization Service (INS) had the authority to conduct an exclusion hearing to determine if a permanent resident alien, who briefly visited Mexico and attempted to smuggle aliens, was trying to "enter" the US and if she was excludable. The Supreme Court held that the INS had the authority to decide admissibility in an exclusion hearing, regardless of the alien's permanent resident status. The Court also held that using exclusion proceedings was not "circular" or "unfair," and did not violate the scope or spirit of Rosenberg v. Fleuti. The Court remanded the case to determine if the respondent received due process in the exclusion hearing.

Immigration & National Security

INS v. Lopez-Mendoza

https://supreme.justia.com/cases/federal/us/468/1032/

U.S. Supreme Court INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) INS v. Lopez-Mendoza No. 83-491 Argued April 18, 1984 Decided July 5, 1984 468 U.S. 1032 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus Respondent Mexican citizens were ordered deported by an Immigration Judge. Respondent Lopez-Mendoza unsuccessfully objected to being summoned to the deportation hearing following his allegedly unlawful arrest by an Immigration and Naturalization Service (INS) agent, but he did not object to the receipt in evidence of his admission, after the arrest, of illegal entry into this country. Respondent Sandoval-Sanchez, who also admitted his illegal entry after being arrested by an INS agent, unsuccessfully objected to the evidence of his admission offered at the deportation proceeding, contending that it should have been suppressed as the fruit of an unlawful arrest. The Board of Immigration Appeals (BIA) affirmed the deportation orders. The Court of Appeals reversed respondent Sandoval-Sanchez' deportation order, holding that his detention by INS agents violated the Fourth Amendment, that his admission of illegal entry was the product of this detention, and that the exclusionary rule barred its use in a deportation proceeding. The court vacated respondent Lopez-Mendoza's deportation order and remanded his case to the BIA to determine whether the Fourth Amendment had been violated in the course of his arrest. Held: 1. A deportation proceeding is a purely civil action to determine a person's eligibility to remain in this country. The purpose of deportation is not to punish past transgressions, but rather to put an end to a continuing violation of the immigration laws. Consistent with the civil nature of a deportation proceeding, various protections that apply in the context of a criminal trial do not apply in a deportation hearing. Pp. 468 U. S. 1038 -1039. 2. The "body" or identity of a defendant in a criminal or civil proceeding is never itself suppressible as the fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred. On this basis alone, the Court of Appeals' decision as to respondent Lopez-Mendoza must be reversed, since he objected only to being summoned to his deportation hearing after an allegedly unlawful arrest, and did not object to the evidence offered against him. The mere fact of an illegal arrest has no bearing on a subsequent deportation hearing. Pp. 468 U. S. 1039 -1040. Page 468 U. S. 1033 3. The exclusionary rule does not apply in a deportation proceeding; hence, the rule does not apply so as to require that respondent Sandoval-Sanchez' admission of illegal entry after his allegedly unlawful arrest be excluded from evidence at his deportation hearing. Under the balancing test applied in United States v. Janis, 428 U. S. 433 , whereby the likely social benefits of excluding unlawfully obtained evidence are weighed against the likely costs, the balance comes out against applying the exclusionary rule in civil deportation proceedings. Several factors significantly reduce the likely deterrent value of the rule in such proceedings. First, regardless of how the arrest of an illegal alien is effected, deportation will still be possible when evidence not derived directly from the arrest is sufficient to support deportation. Second, based on statistics indicating that over 97.7 percent of illegal aliens agree to voluntary deportation without a formal hearing, every INS agent knows that it is unlikely that any particular arrestee will end up challenging the lawfulness of his arrest in a formal deportation hearing. Third, the INS has its own comprehensive scheme for deterring Fourth Amendment violations by its agents. And finally, the deterrent value of the exclusionary rule in deportation proceedings is undermined by the availability of alternative remedies for INS practices that might violate Fourth Amendment rights. As to the social costs of applying the exclusionary rule in deportation proceedings, they would be high. In particular, the application of the rule in cases such as respondent Sandoval-Sanchez' would compel the courts to release from custody persons who would then immediately resume their commission of a crime through their continuing, unlawful presence in this country, and would unduly complicate the INS's deliberately simple deportation hearing system. Pp. 468 U.S. 1040 -1050. 705 F.2d 1059, reversed. O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, and IV, in which BURGER, C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined, and an opinion with respect to Part V, in which BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., post, p. 468 U. S. 1051 , WHITE, J., post, p. 468 U. S. 1052 , MARSHALL, J., post, p. 468 U. S. 1060 , and STEVENS, J., post, p. 468 U. S. 1061 , filed dissenting opinions. Page 468 U. S. 1034 JUSTICE O'CONNOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, and IV, and an opinion with respect to Part V, in which JUSTICE BLACKMUN, JUSTICE POWELL, and JUSTICE REHNQUIST joined. * This litigation requires us to decide whether an admission of unlawful presence in this country made subsequently to an allegedly unlawful arrest must be excluded as evidence in a civil deportation hearing. We hold that the exclusionary rule need not be applied in such a proceeding. I Respondents Adan Lopez-Mendoza and Elias Sandoval-Sanchez, both citizens of Mexico, were summoned to separate deportation proceedings in California and Washington, and both were ordered deported. They challenged the regularity of those proceedings on grounds related to the lawfulness of their respective arrests by officials of the Immigration and Naturalization Service (INS). On administrative appeal, the Board of Immigration Appeals (BIA), an agency of the Department of Justice, affirmed the deportation orders. The Court of Appeals for the Ninth Circuit, sitting en banc, reversed Sandoval-Sanchez' deportation order and vacated and remanded Lopez-Mendoza's deportation order. 705 F.2d 1059 (1983). It ruled that Sandoval-Sanchez' admission of his illegal presence in this country was the fruit of an unlawful arrest, and that the exclusionary rule applied in a deportation proceeding. Lopez-Mendoza's deportation order was vacated and his case remanded to the BIA to Page 468 U. S. 1035 determine whether the Fourth Amendment had been violated in the course of his arrest. We granted certiorari, 464 U.S. 1037 (1984). A Respondent Lopez-Mendoza was arrested in 1976 by INS agents at his place of employment, a transmission repair shop in San Mateo, Cal. Responding to a tip, INS investigators arrived at the shop shortly before 8 a.m. The agents had not sought a warrant to search the premises or to arrest any of its occupants. The proprietor of the shop firmly refused to allow the agents to interview his employees during working hours. Nevertheless, while one agent engaged the proprietor in conversation, another entered the shop and approached Lopez-Mendoza. In response to the agent's questioning, Lopez-Mendoza gave his name and indicated that he was from Mexico with no close family ties in the United States. The agent then placed him under arrest. Lopez-Mendoza underwent further questioning at INS offices, where he admitted he was born in Mexico, was still a citizen of Mexico, and had entered this country without inspection by immigration authorities. Based on his answers, the agents prepared a "Record of Deportable Alien" (Form I-213), and an affidavit which Lopez-Mendoza executed, admitting his Mexican nationality and his illegal entry into this country. A hearing was held before an Immigration Judge. Lopez-Mendoza's counsel moved to terminate the proceeding on the ground that Lopez-Mendoza had been arrested illegally. The judge ruled that the legality of the arrest was not relevant to the deportation proceeding, and therefore declined to rule on the legality of Lopez-Mendoza's arrest. Matter of Lopez-Mendoza, No. A22 452 208 (INS, Dec. 21, 1977), reprinted in App. to Pet. for Cert. 97a. The Form I-213 and the affidavit executed by Lopez-Mendoza were received into evidence without objection from Lopez-Mendoza. On the basis of this evidence, the Immigration Judge found Lopez-Mendoza Page 468 U. S. 1036 deportable. Lopez-Mendoza was granted the option of voluntary departure. The BIA dismissed Lopez-Mendoza's appeal. It noted that "[t]he mere fact of an illegal arrest has no bearing on a subsequent deportation proceeding," In re Lopez-Mendoza, No. A22 452 208 (BIA, Sept.19, 1979), reprinted in App. to Pet. for Cert. 10Oa, 102a, and observed that Lopez-Mendoza had not objected to the admission into evidence of Form I-213 and the affidavit he had executed. Id. at 103a. The BIA also noted that the exclusionary rule is not applied to redress the injury to the privacy of the search victim, and that the BIA had previously concluded that application of the rule in deportation proceedings to deter unlawful INS conduct was inappropriate. Matter of Sandoval, 17 I. & N. Dec. 70 (BIA 1979). The Court of Appeals vacated the order of deportation and remanded for a determination whether Lopez-Mendoza's Fourth Amendment rights had been violated when he was arrested. B Respondent Sandoval-Sanchez (who is not the same individual who was involved in Matter of Sandoval, supra ) was arrested in 1977 at his place of employment, a potato processing plant in Pasco, Wash. INS Agent Bower and other officers went to the plant, with the permission of its personnel manager, to check for illegal aliens. During a change in shift, officers stationed themselves at the exits while Bower and a uniformed Border Patrol agent entered the plant. They went to the lunchroom and identified themselves as immigration officers. Many people in the room rose and headed for the exits or milled around; others in the plant left their equipment and started running; still others who were entering the plant turned around and started walking back out. The two officers eventually stationed themselves at the main entrance to the plant and looked for passing employees who averted their heads, avoided eye contact, or tried to hide Page 468 U. S. 1037 themselves in a group. Those individuals were addressed with innocuous questions in English. Any who could not respond in English and who otherwise aroused Agent Bower's suspicions were questioned in Spanish as to their right to be in the United States. Respondent Sandoval-Sanchez was in a line of workers entering the plant. Sandoval-Sanchez testified that he did not realize that immigration officers were checking people entering the plant, but that he did see standing at the plant entrance a man in uniform who appeared to be a police officer. Agent Bower testified that it was probable that he, not his partner, had questioned Sandoval-Sanchez at the plant, but that he could not be absolutely positive. The employee he thought he remembered as Sandoval-Sanchez had been "very evasive," had averted his head, turned around, and walked away when he saw Agent Bower. App. 137, 138. Bower was certain that no one was questioned about his status unless his actions had given the agents reason to believe that he was an undocumented alien. Thirty-seven employees, including Sandoval-Sanchez, were briefly detained at the plant and then taken to the county jail. About one-third immediately availed themselves of the option of voluntary departure, and were put on a bus to Mexico. Sandoval-Sanchez exercised his right to a deportation hearing. Sandoval-Sanchez was then questioned further, and Agent Bower recorded Sandoval-Sanchez' admission of unlawful entry. Sandoval-Sanchez contends he was not aware that he had a right to remain silent. At his deportation hearing, Sandoval-Sanchez contended that the evidence offered by the INS should be suppressed as the fruit of an unlawful arrest. The Immigration Judge considered and rejected Sandoval-Sanchez' claim that he had been illegally arrested, but ruled in the alternative that the legality of the arrest was not relevant to the deportation hearing. Matter of Sandoval-Saqchez, No. A22 346 925 Page 468 U. S. 1038 (INS, Oct. 7, 1977), reprinted in App. to Pet. for Cert. 104a. Based on the written record of Sandoval-Sanchez' admissions, the Immigration Judge found him deportable and granted him voluntary departure. The BIA dismissed Sandoval-Sanchez' appeal. In re Sandoval-Sanchez, No. A22 346 925 (BIA, Feb. 21, 1980). It concluded that the circumstances of the arrest had not affected the voluntariness of his recorded admission, and again declined to invoke the exclusionary rule, relying on its earlier decision in Matter of Sandoval, supra. On appeal, the Court of Appeals concluded that Sandoval-Sanchez' detention by the immigration officers violated the Fourth Amendment, that the statements he made were a product of that detention, and that the exclusionary rule barred their use in a deportation hearing. The deportation order against Sandoval-Sanchez was accordingly reversed. II A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry, though entering or remaining unlawfully in this country is itself a crime. 8 U.S.C. §§ 1302, 1306, 1325. The deportation hearing looks prospectively to the respondent's right to remain in this country in the future. Past conduct is relevant only insofar as it may shed light on the respondent's right to remain. See 8 U.S.C. §§ 1251, 1252(b); Bugajewitz v. Adams, 228 U. S. 585 , 228 U. S. 591 (1913); Fong Yue Ting v. United States, 149 U. S. 698 , 149 U. S. 730 (1893). A deportation hearing is held before an immigration judge. The judge's sole power is to order deportation; the judge cannot adjudicate guilt or punish the respondent for any crime related to unlawful entry into or presence in this country. Consistent with the civil nature of the proceeding, various protections that apply in the context of a criminal trial do not apply in a deportation hearing. The respondent must be given "a reasonable opportunity to be present at [the] proceeding," but if the respondent fails to avail himself Page 468 U. S. 1039 of that opportunity, the hearing may proceed in his absence. 8 U.S.C. § 1252(b). In many deportation cases, the INS must show only identity and alienage; the burden then shifts to the respondent to prove the time, place, and manner of his entry. See 8 U.S.C. § 1361; Matter of Sandoval, 17 I. & N. Dec. 70 (BIA 1979). A decision of deportability need be based only on "reasonable, substantial, and probative evidence," 8 U.S.C. § 1252(b)(4). The BIA, for its part, has required only "clear, unequivocal and convincing" evidence of the respondent's deportability, not proof beyond a reasonable doubt. 8 CFR § 242.14(a) (1984). The Courts of Appeals have held, for example that the absence of Miranda warnings does not render an otherwise voluntary statement by the respondent inadmissible in a deportation case. Navia-Duran v. INS, 568 F.2d 803, 808 (CA1 1977); Avila-Gallegos v. INS, 525 F.2d 666, 667 (CA2 1975); Chavez-Raya v. INS, 519 F.2d 397, 399-401 (CA7 1975). See also Abel v. United States, 362 U. S. 217 , 362 U. S. 236 -237 (1960) (search permitted incidental to an arrest pursuant to an administrative warrant issued by the INS); Galvan v. Press, 347 U. S. 522 , 347 U. S. 531 (1954) ( Ex Post Facto Clause has no application to deportation); Carlson v. Landon, 342 U. S. 524 , 342 U.S. 544 -546 (1952) (Eighth Amendment does not require bail to be granted in certain deportation cases); United States ex rel. Bilokumsky v. Tod, 263 U. S. 149 , 263 U. S. 157 (1923) (involuntary confessions admissible at deportation hearing). In short, a deportation hearing is intended to provide a streamlined determination of eligibility to remain in this country, nothing more. The purpose of deportation is not to punish past transgressions, but rather to put an end to a continuing violation of the immigration laws. III The "body" or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred. See Gerstein Page 468 U. S. 1040 v. Pugh, 420 U. S. 103 , 420 U. S. 119 (1975); Frisbie v. Collins, 342 U. S. 519 , 342 U. S. 522 (1952); United States ex rel. Bilokumsky v. Tod, supra, at 263 U. S. 158 . A similar rule applies in forfeiture proceedings directed against contraband or forfeitable property. See, e.g., United States v. Eighty-Eight Thousand, Five Hundred Dollars, 671 F.2d 293 (CA8 1982); United States v. One (1) 1971 Harley-Davidson Motorcycle, 508 F.2d 351 (CA9 1974); United States v. One 1965 Buick, 397 F.2d 782 (CA6 1968). On this basis alone, the Court of Appeals' decision as to respondent Lopez-Mendoza must be reversed. At his deportation hearing, Lopez-Mendoza objected only to the fact that he had been summoned to a deportation hearing following an unlawful arrest; he entered no objection to the evidence offered against him. The BIA correctly ruled that "[t]he mere fact of an illegal arrest has no bearing on a subsequent deportation proceeding." [ Footnote 1 ] In re Lopez-Mendoza, No. A22 452 208 (BIA, Sept.19, 1979), reprinted in App. to Pet. for Cert. 102a. IV Respondent Sandoval-Sanchez has a more substantial claim. He objected not to his compelled presence at a deportation proceeding, but to evidence offered at that proceeding. The general rule in a criminal proceeding is that statements and other evidence obtained as a result of an unlawful, warrantless arrest are suppressible if the link between the Page 468 U. S. 1041 evidence and the unlawful conduct is not too attenuated. Wong Sun v. United States, 371 U. S. 471 (1963). The reach of the exclusionary rule beyond the context of a criminal prosecution, however, is less clear. Although this Court has once stated in dictum that "[i]t may be assumed that evidence obtained by the [Labor] Department through an illegal search and seizure cannot be made the basis of a finding in deportation proceedings," United States ex rel. Bilokumsky v. Tod, supra, at 263 U. S. 155 , the Court has never squarely addressed the question before. Lower court decisions dealing with this question are sparse. [ Footnote 2 ] In United States v. Janis, 428 U. S. 433 (1976), this Court set forth a framework for deciding in what types of proceeding application of the exclusionary rule is appropriate. Imprecise as the exercise may be, the Court recognized in Janis that there is no choice but to weigh the likely social benefits of excluding unlawfully seized evidence against the likely costs. On the benefit side of the balance "the prime purpose' of the [exclusionary] rule, if not the sole one, `is to deter future unlawful police conduct.'" Id. at 428 U. S. 446 , quoting United States v. Calandra, 414 U. S. 338 , 414 U. S. 347 (1974). On the cost side, there is the loss of often probative evidence and all of the secondary costs that flow from the less accurate or more cumbersome adjudication that therefore occurs. At stake in Janis was application of the exclusionary rule in a federal civil tax assessment proceeding following the unlawful seizure of evidence by state, not federal, officials. The Court noted at the outset that "[i]n the complex and turbulent Page 468 U. S. 1042 history of the rule, the Court never has applied it to exclude evidence from a civil proceeding, federal or state." 428 U.S. at 428 U. S. 447 (footnote omitted). Two factors in Janis suggested that the deterrence value of the exclusionary rule in the context of that case was slight. First, the state law enforcement officials were already "punished" by the exclusion of the evidence in the state criminal trial as a result of the same conduct. Id. at 428 U. S. 448 . Second, the evidence was also excludable in any federal criminal trial that might be held. Both factors suggested that further application of the exclusionary rule in the federal civil proceeding would contribute little more to the deterrence of unlawful conduct by state officials. On the cost side of the balance, Janis focused simply on the loss of "concededly relevant and reliable evidence." Id. at 428 U. S. 447 . The Court concluded that, on balance, this cost outweighed the likely social benefits achievable through application of the exclusionary rule in the federal civil proceeding. While it seems likely that the deterrence value of applying the exclusionary rule in deportation proceedings would be higher than it was in Janis, it is also quite clear that the social costs would be very much greater as well. Applying the Janis balancing test to the benefits and costs of excluding concededly reliable evidence from a deportation proceeding, we therefore reach the same conclusion as in Janis. The likely deterrence value of the exclusionary rule in deportation proceedings is difficult to assess. On the one hand, a civil deportation proceeding is a civil complement to a possible criminal prosecution, and to this extent it resembles the civil proceeding under review in Janis. The INS does not suggest that the exclusionary rule should not continue to apply in criminal proceedings against an alien who unlawfully enters or remains in this country, and the prospect of losing evidence that might otherwise be used in a criminal prosecution undoubtedly supplies some residual deterrent to unlawful conduct by INS officials. But it must be acknowledged Page 468 U. S. 1043 that only a very small percentage of arrests of aliens are intended or expected to lead to criminal prosecutions. Thus, the arresting officer's primary objective, in practice, will be to use evidence in the civil deportation proceeding. Moreover, here, in contrast to Janis, the agency officials who effect the unlawful arrest are the same officials who subsequently bring the deportation action. As recognized in Janis, the exclusionary rule is likely to be most effective when applied to such "intrasovereign" violations. Nonetheless, several other factors significantly reduce the likely deterrent value of the exclusionary rule in a civil deportation proceeding. First, regardless of how the arrest is effected, deportation will still be possible when evidence not derived directly from the arrest is sufficient to support deportation. As the BIA has recognized, in many deportation proceedings, "the sole matters necessary for the Government to establish are the respondent's identity and alienage -- at which point, the burden shifts to the respondent to prove the time, place and manner of entry." Matter of Sandoval, 17 I. & N. Dec. at 79. Since the person and identity of the respondent are not themselves suppressible, see supra at 468 U. S. 1039 -1040, the INS must prove only alienage, and that will sometimes be possible using evidence gathered independently of, or sufficiently attenuated from, the original arrest. See Matter of Sandoval, supra, at 79; see, e.g., Avila-Gallegos v. INS, 525 F.2d 666 (CA2 1975). The INS' task is simplified in this regard by the civil nature of the proceeding. As Justice Brandeis stated: "Silence is often evidence of the most persuasive character. . . . [T]here is no rule of law which prohibits officers charged with the administration of the immigration law from drawing an inference from the silence of one who is called upon to speak. . . . A person arrested on the preliminary warrant is not protected by a presumption of citizenship comparable to the presumption of innocence in a criminal case. There is no provision which forbids drawing an adverse inference from the fact of standing Page 468 U. S. 1044 mute." United States ex rel. Bilokumsky v. Tod, 263 U.S. at 263 U. S. 153 -154. The second factor is a practical one. In the course of a year, the average INS agent arrests almost 500 illegal aliens. Brief for Petitioner 38. Over 97.5% apparently agree to voluntary deportation without a formal hearing. 705 F.2d at 1071, n. 17. Among the remainder who do request a formal hearing (apparently a dozen or so in all, per officer, per year), very few challenge the circumstances of their arrests. As noted by the Court of Appeals, "the BIA was able to find only two reported immigration cases since 1899 in which the [exclusionary] rule was applied to bar unlawfully seized evidence, only one other case in which the rule's application was specifically addressed, and fewer than fifty BIA proceedings since 1952 in which a Fourth Amendment challenge to the introduction of evidence was even raised." Id. at 1071. Every INS agent knows, therefore, that it is highly unlikely that any particular arrestee will end up challenging the lawfulness of his arrest in a formal deportation proceeding. When an occasional challenge is brought, the consequences from the point of view of the officer's overall arrest and deportation record will be trivial. In these circumstances, the arresting officer is most unlikely to shape his conduct in anticipation of the exclusion of evidence at a formal deportation hearing. Third, and perhaps most important, the INS has its own comprehensive scheme for deterring Fourth Amendment violations by its officers. Most arrests of illegal aliens away from the border occur during farm, factory, or other workplace surveys. Large numbers of illegal aliens are often arrested at one time, and conditions are understandably chaotic. See Brief for Petitioner in INS v. Delgado, O.T. 1983, No. 82-1271, pp. 3-5. To safeguard the rights of those who are lawfully present at inspected workplaces the INS has developed rules restricting stop, interrogation, and arrest practices. Id. at 7, n. 7, 32-40, and n. 25. These Page 468 U. S. 1045 regulations require that no one be detained without reasonable suspicion of illegal alienage, and that no one be arrested unless there is an admission of illegal alienage or other strong evidence thereof. New immigration officers receive instruction and examination in Fourth Amendment law, and others receive periodic refresher courses in law. Brief for Petitioner 39-40. Evidence seized through intentionally unlawful conduct is excluded by Department of Justice policy from the proceeding for which it was obtained. See Memorandum from Benjamin R. Civiletti to Heads of Offices, Boards, Bureaus and Divisions, Violations of Search and Seizure Law (Jan. 16, 1981). The INS also has in place a procedure for investigating and punishing immigration officers who commit Fourth Amendment violations. See Office of General Counsel, INS, U.S. Dept. of Justice, The Law of Arrest, Search, and Seizure for Immigration Officers 35 (Jan.1983). The INS's attention to Fourth Amendment interests cannot guarantee that constitutional violations will not occur, but it does reduce the likely deterrent value of the exclusionary rule. Deterrence must be measured at the margin. Finally, the deterrent value of the exclusionary rule in deportation proceedings is undermined by the availability of alternative remedies for institutional practices by the INS that might violate Fourth Amendment rights. The INS is a single agency, under central federal control, and engaged in operations of broad scope but highly repetitive character. The possibility of declaratory relief against the agency thus offers a means for challenging the validity of INS practices when standing requirements for bringing such an action can be met. Cf. INS v. Delgado, 466 U. S. 210 (1984). Respondents contend that retention of the exclusionary rule is necessary to safeguard the Fourth Amendment rights of ethnic Americans, particularly the Hispanic-Americans lawfully in this country. We recognize that respondents raise here legitimate and important concerns. But application of the exclusionary rule to civil deportation proceedings Page 468 U. S. 1046 can be justified only if the rule is likely to add significant protection to these Fourth Amendment rights. The exclusionary rule provides no remedy for completed wrongs; those lawfully in this country can be interested in its application only insofar as it may serve as an effective deterrent to future INS misconduct. For the reasons we have discussed, we conclude that application of the rule in INS civil deportation proceedings, as in the circumstances discussed in Janis, "is unlikely to provide significant, much less substantial, additional deterrence." 428 U.S. at 428 U. S. 458 . Important as it is to protect the Fourth Amendment rights of all persons, there is no convincing indication that application of the exclusionary rule in civil deportation proceedings will contribute materially to that end. On the other side of the scale, the social costs of applying the exclusionary rule in deportation proceedings are both unusual and significant. The first cost is one that is unique to continuing violations of the law. Applying the exclusionary rule in proceedings that are intended not to punish past transgressions, but to prevent their continuance or renewal, would require the courts to close their eyes to ongoing violations of the law. This Court has never before accepted costs of this character in applying the exclusionary rule. Presumably no one would argue that the exclusionary rule should be invoked to prevent an agency from ordering corrective action at a leaking hazardous waste dump if the evidence underlying the order had been improperly obtained, or to compel police to return contraband explosives or drugs to their owner if the contraband had been unlawfully seized. On the rare occasions that it has considered costs of this type, the Court has firmly indicated that the exclusionary rule does not extend this far. See United States v. Jeffers, 342 U. S. 48 , 342 U. S. 54 (1951); Trupiano v. United States, 334 U. S. 699 , 334 U. S. 710 (1948). The rationale for these holdings is not difficult to find. "Both Trupiano and Jeffers concerned objects the possession of which, without more, constitutes a crime. The repossession Page 468 U. S. 1047 of such per se contraband by Jeffers and Trupiano would have subjected them to criminal penalties. The return of the contraband would clearly have frustrated the express public policy against the possession of such objects." One 1958 Plymouth Sedan v. Pennsylvania, 380 U. S. 693 , 380 U. S. 699 (1965) (footnote omitted). Precisely the same can be said here. Sandoval-Sanchez is a person whose unregistered presence in this country, without more, constitutes a crime. [ Footnote 3 ] His release within our borders would immediately subject him to criminal penalties. His release would clearly frustrate the express public policy against an alien's unregistered presence in this country. Even the objective of deterring Fourth Amendment violations should not require such a result. The constable's blunder may allow the criminal to go free, but we have never suggested that it allows the criminal to continue in the commission of an ongoing crime. When the crime in question involves unlawful presence in this country, the criminal may go free, but he should not go free within our borders. [ Footnote 4 ] Page 468 U. S. 1048 Other factors also weigh against applying the exclusionary rule in deportation proceedings. The INS currently operates a deliberately simple deportation hearing system, streamlined to permit the quick resolution of very large numbers of deportation actions, and it is against this backdrop that the costs of the exclusionary rule must be assessed. The costs of applying the exclusionary rule, like the benefits, must be measured at the margin. The average immigration judge handles about six deportation hearings per day. Brief for Petitioner 27, n. 16. Neither the hearing officers nor the attorneys participating in those hearings are likely to be well versed in the intricacies of Fourth Amendment law. The prospect of even occasional invocation of the exclusionary rule might significantly change and complicate the character of these proceedings. The BIA has described the practical problems as follows: "Absent the applicability of the exclusionary rule, questions relating to deportability routinely involve simple factual allegations and matters of proof. When Fourth Amendment issues are raised at deportation hearings, the result is a diversion of attention from the main issues which those proceedings were created to resolve, both in terms of the expertise of the administrative decisionmakers and of the structure of the forum to accommodate inquiries into search and seizure questions. The result frequently seems to be a long, confused record in which the issues are not clearly defined and in which there is voluminous testimony. . . . The ensuing delays and inordinate amount of time spent on such cases at all levels has an adverse impact on the effective administration Page 468 U. S. 1049 of the immigration laws. . . . This is particularly true in a proceeding where delay may be the only 'defense' available and where problems already exist with the use of dilatory tactics." Matter of Sandoval, 17 I. & N., at 80 (footnote omitted). This sober assessment of the exclusionary rule's likely costs, by the agency that would have to administer the rule in at least the administrative tiers of its application, cannot be brushed off lightly. The BIA's concerns are reinforced by the staggering dimension of the problem that the INS confronts. Immigration officers apprehend over one million deportable aliens in this country every year. Id. at 85. A single agent may arrest many illegal aliens every day. Although the investigatory burden does not justify the commission of constitutional violations, the officers cannot be expected to compile elaborate, contemporaneous, written reports detailing the circumstances of every arrest. At present, an officer simply completes a "Record of Deportable Alien" that is introduced to prove the INS's case at the deportation hearing; the officer rarely must attend the hearing. Fourth Amendment suppression hearings would undoubtedly require considerably more, and the likely burden on the administration of the immigration laws would be correspondingly severe. Finally, the INS advances the credible argument that applying the exclusionary rule to deportation proceedings might well result in the suppression of large amounts of information that had been obtained entirely lawfully. INS arrests occur in crowded and confused circumstances. Though the INS agents are instructed to follow procedures that adequately protect Fourth Amendment interests, agents will usually be able to testify only to the fact that they followed INS rules. The demand for a precise account of exactly what happened in each particular arrest would plainly preclude mass arrests, even when the INS is confronted, Page 468 U. S. 1050 as it often is, with massed numbers of ascertainably illegal aliens, and even when the arrests can be and are conducted in full compliance with all Fourth Amendment requirements. In these circumstances, we are persuaded that the Janis balance between costs and benefits comes out against applying the exclusionary rule in civil deportation hearings held by the INS. By all appearances the INS has already taken sensible and reasonable steps to deter Fourth Amendment violations by its officers, and this makes the likely additional deterrent value of the exclusionary rule small. The costs of applying the exclusionary rule in the context of civil deportation hearings are high. In particular, application of the exclusionary rule in cases such as Sandoval-Sanchez' would compel the courts to release from custody persons who would then immediately resume their commission of a crime through their continuing, unlawful presence in this country. "There comes a point at which courts, consistent with their duty to administer the law, cannot continue to create barriers to law enforcement in the pursuit of a supervisory role that is properly the duty of the Executive and Legislative Branches." United States v. Janis, 428 U.S. at 428 U. S. 459 . That point has been reached here. V We do not condone any violations of the Fourth Amendment that may have occurred in the arrests of respondents Lopez-Mendoza or Sandoval-Sanchez. Moreover, no challenge is raised here to the INS's own internal regulations. Cf. INS v. Delgado, 466 U. S. 210 (1984). Our conclusions concerning the exclusionary rule's value might change if there developed good reason to believe that Fourth Amendment violations by INS officers were widespread. Cf. United States v. Leon, ante at 468 U. S. 928 (BLACKMUN, J., concurring). Finally, we do not deal here with egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine Page 468 U. S. 1051 the probative value of the evidence obtained. [ Footnote 5 ] Cf. Rochin v. California, 342 U. S. 165 (1952). At issue here is the exclusion of credible evidence gathered in connection with peaceful arrests by INS officers. We hold that evidence derived from such arrests need not be suppressed in an INS civil deportation hearing. The judgment of the Court of Appeals is therefore Reversed. * THE CHIEF JUSTICE joins all but Part V of this opinion. [ Footnote 1 ] The Court of Appeals brushed over Lopez-Mendoza's failure to object to the evidence in an apparently unsettled footnote of its decision. The Court of Appeals was initially of the view that a motion to terminate a proceeding on the ground that the arrest of the respondent was unlawful is, "for all practical purposes," the same as a motion to suppress evidence as the fruit of an unlawful arrest. Slip opinion at 1765, n. 1 (Apr. 25, 1983). In the bound report of its opinion, however, the Court of Appeals takes a somewhat different view, stating in a revised version of the same footnote that "the only reasonable way to interpret the motion to terminate is as one that includes both a motion to suppress and a motion to dismiss." 705 F.2d 1059, 1060, n. 1 (1983). [ Footnote 2 ] In United States v. Wong Quong Wong, 94 F. 832 (Vt. 1899), a District Judge excluded letters seized from the appellant in a civil deportation proceeding. In Ex parte Jackson, 263 F. 110 (Mont.), appeal dism'd sub nom. Andrews v. Jackson, 267 F. 1022 (CA9 1920), another District Judge granted habeas corpus relief on the ground that papers and pamphlets used against the habeas petitioner in a deportation proceeding had been unlawfully seized. Wong Chung Che v. INS, 565 F.2d 166 (CA1 1977), held that papers obtained by INS agents in an unlawful search are inadmissible in deportation proceedings. [ Footnote 3 ] Sandoval-Sanchez was arrested on June 23, 1977. His deportation hearing was held on October 7, 1977. By that time, he was under a duty to apply for registration as an alien. A failure to do so plainly constituted a continuing crime. 8 U.S.C. §§ 1302, 1306. Sandoval-Sanchez was not, of course, prosecuted for this crime, and we do not know whether or not he did make the required application. But it is safe to assume that the exclusionary rule would never be at issue in a deportation proceeding brought against an alien who entered the country unlawfully and then voluntarily admitted to his unlawful presence in an application for registration. Sandoval-Sanchez was also not prosecuted for his initial illegal entry into this country, an independent crime under 8 U.S.C. § 1325. We need not decide whether or not remaining in this country following an illegal entry is a continuing or a completed crime under § 1325. The question is academic, of course, since in either event the unlawful entry remains both punishable and continuing grounds for deportation. See 8 U.S.C. § 1251(a)(2). [ Footnote 4 ] Similarly, in Sure-Tan, Inc. v. NLRB, 467 U. S. 883 (1984), the Court concluded that an employer can be guilty of an unfair labor practice in his dealings with an alien notwithstanding the alien's illegal presence in this country. Retrospective sanctions against the employer may accordingly be imposed by the National Labor Relations Board to further the public policy against unfair labor practices. But while he maintains the status of an illegal alien, the employee is plainly not entitled to the prospective relief -- reinstatement and continued employment -- that probably would be granted to other victims of similar unfair labor practices. [ Footnote 5 ] We note that, subsequent to its decision in Matter of Sandoval, 17 I. & N. Dec. 70 (1979), the BIA held that evidence will be excluded if the circumstances surrounding a particular arrest and interrogation would render use of the evidence obtained thereby "fundamentally unfair" and in violation of due process requirements of the Fifth Amendment. Matter of Toro, 17 I. &. N. Dec. 340, 343 (1980). See also Matter of Garcia, 17 I. & N. Dec. 319, 321 (1980) (suppression of admission of alienage obtained after request for counsel had been repeatedly refused); Matter of Ramira-Cordova, No. A21 095 659 (Feb. 21, 1980) (suppression of evidence obtained as a result of a night-time warrantless entry into the aliens' residence). JUSTICE BRENNAN, dissenting. I fully agree with JUSTICE WHITE that, under the analysis developed by the Court in such cases as United States v. Janis, 428 U. S. 433 (1976), and United States v. Calandra, 414 U. S. 338 (1974), the exclusionary rule must apply in civil deportation proceedings. However, for the reasons set forth today in my dissenting opinion in United States v. Leon, ante p. 468 U. S. 897 , I believe the basis for the exclusionary rule does not derive from its effectiveness as a deterrent, but is instead found in the requirements of the Fourth Amendment itself. My view of the exclusionary rule would, of course, require affirmance of the Court of Appeals. In this case, federal law enforcement officers arrested respondents Sandoval-Sanchez and Lopez-Mendoza in violation of their Fourth Amendment rights. The subsequent admission of any evidence secured pursuant to these unlawful arrests Page 468 U. S. 1052 in civil deportation proceedings would, in my view, also infringe those rights. The Government of the United States bears an obligation to obey the Fourth Amendment; that obligation is not lifted simply because the law enforcement officers were agents of the Immigration and Naturalization Service, nor because the evidence obtained by those officers was to be used in civil deportation proceedings. JUSTICE WHITE, dissenting. The Court today holds that the exclusionary rule does not apply in civil deportation proceedings. Because I believe that the conclusion of the majority is based upon an incorrect assessment of the costs and benefits of applying the rule in such proceedings, I respectfully dissent. [ Footnote 2/1 ] The paradigmatic case in which the exclusionary rule is applied is when the prosecutor seeks to use evidence illegally obtained by law enforcement officials in his case in chief in a criminal trial. In other classes of cases, the rule is applicable only when the likelihood of deterring the unwanted conduct outweighs the societal costs imposed by exclusion of relevant evidence. United States v. Janis, 428 U. S. 433 , 428 U. S. 454 (1976). Thus, the Court has, in a number of situations, refused to extend the exclusionary rule to proceedings other than the criminal trial itself. For example, in Stone v. Powell, 428 U. S. 465 (1976), the Court held that the deterrent effect of the rule would not be reduced by refusing to allow a state prisoner to litigate a Fourth Amendment claim in federal habeas corpus proceedings if he was afforded a full and fair opportunity to litigate it in state court. Similarly, in United Page 468 U. S. 1053 States v. Calandra, 414 U. S. 338 , 414 U. S. 351 (1974), we concluded that "[a]ny incremental deterrent effect which might be achieved by extending the rule to grand jury proceedings is uncertain, at best." And in United States v. Janis, supra, we declined to extend the exclusionary rule to bar the introduction in a federal civil proceeding of evidence unconstitutionally seized by a state law enforcement officer. In all of these cases, it was unquestioned that the illegally seized evidence would not be admissible in the case in chief of the proceeding for which the evidence was gathered; only its collateral use was permitted. Civil deportation proceedings are in no sense "collateral." The majority correctly acknowledges that the "primary objective" of the INS agent is "to use evidence in the civil deportation proceeding," and that "the agency officials who effect the unlawful arrest are the same officials who subsequently bring the deportation action." Ante at 468 U. S. 1043 . The Immigration and Naturalization Service likewise concedes that INS agents are "in the business of conducting searches for and seizures of illegal aliens for the purpose of bringing about their deportation." Brief for Petitioner 37. Thus, unlike the situation in Janis, the conduct challenged here falls within "the offending officer's zone of primary interest." 428 U.S. at 428 U. S. 458 . The majority nonetheless concludes that application of the rule in such proceedings is unlikely to provide significant deterrence. Because INS agents are law enforcement officials whose mission is closely analogous to that of police officers, and because civil deportation proceedings are to INS agents what criminal trials are to police officers, I cannot agree with that assessment. The exclusionary rule rests on the Court's belief that exclusion has a sufficient deterrent effect to justify its imposition, and the Court has not abandoned the rule. As long as that is the case, there is no principled basis for distinguishing between the deterrent effect of the rule in criminal cases and in civil deportation proceedings. The majority attempts to justify the distinction by asserting that deportation will still Page 468 U. S. 1054 be possible when evidence not derived from the illegal search or seizure is independently sufficient. Ante at 468 U. S. 1043 -1044. However, that is no less true in criminal cases. The suppression of some evidence does not bar prosecution for the crime, and in many cases, even though some evidence is suppressed, a conviction will nonetheless be obtained. The majority also suggests that the fact that most aliens elect voluntary departure dilutes the deterrent effect of the exclusionary rule, because the infrequency of challenges to admission of evidence will mean that "the consequences from the point of view of the officer's overall arrest and deportation record will be trivial." Ante at 468 U. S. 1044 . It is true that a majority of apprehended aliens elect voluntary departure, while a lesser number go through civil deportation proceedings and a still smaller number are criminally prosecuted. However, that fact no more diminishes the importance of the exclusionary sanction than the fact that many criminal defendants plead guilty dilutes the rule's deterrent effect in criminal cases. The possibility of exclusion of evidence quite obviously plays a part in the decision whether to contest either civil deportation or criminal prosecution. Moreover, in concentrating on the incentives under which the individual agent operates to the exclusion of the incentives under which the agency as a whole operates neglects the "systemic" deterrent effect that may lead the agency to adopt policies and procedures that conform to Fourth Amendment standards. See, e.g., Dunaway v. New York, 442 U. S. 200 , 442 U. S. 221 (1979) (STEVENS, J., concurring). The majority believes "perhaps most important" the fact that the INS has a "comprehensive scheme" in place for deterring Fourth Amendment violations by punishing agents who commit such violations, but it points to not a single instance in which that scheme has been invoked. [ Footnote 2/2 ] Ante at Page 468 U. S. 1055 468 U. S. 1044 -1045. Also, immigration officers are instructed and examined in Fourth Amendment law, and it is suggested that this education is another reason why the exclusionary rule is unnecessary. Ibid. A contrary lesson could be discerned from the existence of these programs, however, when it is recalled that they were instituted during "a legal regime in which the cases and commentators uniformly sanctioned the invocation of the rule in deportation proceedings." 705 F.2d 1059, 1071 (CA9 1983). Thus, rather than supporting a conclusion that the exclusionary rule is unnecessary, the existence of these programs instead suggests that the exclusionary rule has created incentives for the agency to ensure that its officers follow the dictates of the Constitution. Since the deterrent function of the rule is furthered if it alters either "the behavior of individual law enforcement officers or the policies of their departments," United States v. Leon, ante at 468 U. S. 918 , it seems likely that it was the rule's deterrent effect that led to the programs to which the Court now points for its assertion that the rule would have no deterrent effect. The suggestion that alternative remedies, such as civil suits, provide adequate protection is unrealistic. Contrary to the situation in criminal cases, once the Government has improperly obtained evidence against an illegal alien, he is removed from the country, and is therefore in no position to file civil actions in federal courts. Moreover, those who are legally in the country but are nonetheless subjected to illegal searches and seizures are likely to be poor and uneducated, and many will not speak English. It is doubtful that the threat of civil suits by these persons will strike fear into the hearts of those who enforce the Nation's immigration laws. It is also my belief that the majority exaggerates the costs associated with applying the exclusionary rule in this context. Evidence obtained through violation of the Fourth Amendment is not automatically suppressed, and any inquiry Page 468 U. S. 1056 into the burdens associated with application of the exclusionary rule must take that fact into account. In United States v. Leon, ante p. 468 U. S. 897 , we have held that the exclusionary rule is not applicable when officers are acting in objective good faith. Thus, if the agents neither knew nor should have known that they were acting contrary to the dictates of the Fourth Amendment, evidence will not be suppressed even if it is held that their conduct was illegal. As is noted ante at 468 U. S. 1051 , n. 5, the BIA has already held that evidence will be suppressed if it results from egregious violations of constitutional standards. Thus, the mechanism for dealing with suppression motions exists and is utilized, significantly decreasing the force of the majority's predictions of dire consequences flowing from "even occasional invocation of the exclusionary rule." Ante at 468 U. S. 1048 . Although the standard currently utilized by the BIA may not be precisely coextensive with the good faith exception, any incremental increase in the amount of evidence that is suppressed through application of Leon is unlikely to be significant. Likewise, any difference that may exist between the two standards is unlikely to increase significantly the number of suppression motions filed. Contrary to the view of the majority, it is not the case that Sandoval-Sanchez' "unregistered presence in this country, without more, constitutes a crime." Ante at 468 U. S. 1047 . Section 275 of the Immigration and Nationality Act makes it a crime to enter the United States illegally. 8 U.S.C. § 1325. [ Footnote 2/3 ] The first offense constitutes a misdemeanor, and subsequent offenses constitute felonies. Ibid. Those few cases that have construed this statute have held that a violation takes Page 468 U. S. 1057 place at the time of entry and that the statute does not describe a continuing offense. Gonzales v. City of Peoria, 722 F.2d 468, 473-474 (CA9 1983); United States v. Rincon-Jimenez, 595 F.2d 1192, 1194 (CA9 1979). Although this Court has not construed the statute, it has suggested in dictum that this interpretation is correct, United States v. Cores, 356 U. S. 405 , 356 U. S. 408 , n. 6 (1958), and it is relatively clear that such an interpretation is most consistent with the statutory language. Therefore, it is simply not the case that suppressing evidence in deportation proceedings will "allo[w] the criminal to continue in the commission of an ongoing crime." Ante at 468 U. S. 1047 . It is true that some courts have construed § 276 of the Act, 8 U.S.C. § 1326, which applies to aliens previously deported who enter or are found in the United States, to describe a continuing offense. [ Footnote 2/4 ] United States v. Bruno, 328 F. Supp. 815 (WD Mo.1971); United States v. Alvarado-Soto, 120 F. Supp. 848 (SD Cal.1954); United States v. Rincon-Jimenez, supra, (dictum). But see United States v. DiSantillo, 615 F.2d 128 (CA3 1980). In such cases, however, the Government will have a record of the prior deportation and will have little need for any evidence that might be suppressed through application of the exclusionary rule. See United States v. Pineda-Chinchilla, 712 F.2d 942 (CA5 1983) (illegality of arrest does not bar introduction of INS records to demonstrate prior deportation), cert. denied, 464 U.S. 964 (1983). Although the majority relies on the registration provisions of 8 U.S.C. §§ 1302 and 1306 for its "continuing crime" argument, those provisions provide little support for the general Page 468 U. S. 1058 rule laid down that the exclusionary rule does not apply in civil deportation proceedings. First. § 1302 requires that aliens register within 30 days of entry into the country. Thus, for the first 30 days, failure to register is not a crime. Second, § 1306 provides that only willful failure to register is a misdemeanor. Therefore, "unregistered presence in this country, without more," ante at 468 U. S. 1047 , does not constitute a crime; rather, unregistered presence plus willfulness must be shown. There is no finding that Sandoval-Sanchez willfully failed to register, which is a necessary predicate to the conclusion that he is engaged in a continuing crime. Third, only aliens 14 years of age or older are required to register; those under 14 years of age are to be registered by their parents or guardian. By the majority's reasoning, therefore, perhaps the exclusionary rule should apply in proceedings to deport children under 14, since their failure to register does not constitute a crime. Application of the rule, we are told, will also seriously interfere with the "streamlined" nature of deportation hearings, because "[n]either the hearing officers nor the attorneys participating in those hearings are likely to be well versed in the intricacies of Fourth Amendment law." Ante at 468 U. S. 1048 . Yet the majority deprecates the deterrent benefit of the exclusionary rule in part on the ground that immigration officers receive a thorough education in Fourth Amendment law. Ante at 468 U. S. 1044 -1045. The implication that hearing officers should defer to law enforcement officers' superior understanding of constitutional principles is startling indeed. Prior to the decision of the Board of Immigration Appeals in Matter of Sandoval, 17 I. & N. Dec. 70 (1979), neither the Board nor any court had held that the exclusionary rule did not apply in civil deportation proceedings. 705 F.2d at 1071. The Board in Sandoval noted that there were "fewer than fifty" BIA proceedings since 1952 in which motions had been made to suppress evidence on Fourth Amendment Page 468 U. S. 1059 grounds. This is so despite the fact that "immigration law practitioners have been informed by the major treatise in their field that the exclusionary rule was available to clients facing deportation. See 1A C. Gordon and H. Rosenfield, Immigration Law and Procedure § 5.2c at 5-31 (rev. ed.1980)." 705 F.2d at 1071. The suggestion that "[t]he prospect of even occasional invocation of the exclusionary rule might significantly change and complicate the character of these proceedings," ante at 468 U. S. 1048 , is thus difficult to credit. The simple fact is that, prior to 1979, the exclusionary rule was available in civil deportation proceedings, and there is no indication that it significantly interfered with the ability of the INS to function. Finally, the majority suggests that application of the exclusionary rule might well result in the suppression of large amounts of information legally obtained because of the "crowded and confused circumstances" surrounding mass arrests. Ante at 468 U. S. 1049 . The result would be that INS agents would have to keep a "precise account of exactly what happened in each particular arrest," which would be impractical considering the "massed numbers of ascertainably illegal aliens." Ante at 468 U. S. 1049 -1050. Rather than constituting a rejection of the application of the exclusionary rule in civil deportation proceedings, however, this argument amounts to a rejection of the application of the Fourth Amendment to the activities of INS agents. If the pandemonium attending immigration arrests is so great that violations of the Fourth Amendment cannot be ascertained for the purpose of applying the exclusionary rule, there is no reason to think that such violations can be ascertained for purposes of civil suits or internal disciplinary proceedings, both of which are proceedings that the majority suggests provide adequate deterrence against Fourth Amendment violations. The Court may be willing to throw up its hands in dismay because it is administratively inconvenient to determine whether Page 468 U. S. 1060 constitutional rights have been violated, but we neglect our duty when we subordinate constitutional rights to expediency in such a manner. Particularly is this so when, as here, there is but a weak showing that administrative efficiency will be seriously compromised. In sum, I believe that the costs and benefits of applying the exclusionary rule in civil deportation proceedings do not differ in any significant way from the costs and benefits of applying the rule in ordinary criminal proceedings. Unless the exclusionary rule is to be wholly done away with and the Court's belief that it has deterrent effects abandoned, it should be applied in deportation proceedings when evidence has been obtained by deliberate violations of the Fourth Amendment or by conduct a reasonably competent officer would know is contrary to the Constitution. Accordingly, I dissent. [ Footnote 2/1 ] I also question the Court's finding that Lopez-Mendoza failed to object to admission of the evidence. Ante at 468 U.S. 1040 , and n. 1. The Court of Appeals held that he had made a proper objection, 705 F.2d 1059, 1060, n. 1 (CA9 1983), and the INS did not seek review of that conclusion, Brief for Petitioner 8, n. 8. Moreover, the fact that changes in an opinion are made between the time of the slip opinion and the bound volume has never before been considered evidence that the holding of a case is "unsettled." See ante at 468 U.S. 1040 , n. 1. [ Footnote 2/2 ] The INS suggests that its disciplinary rules are "not mere paper procedures" and that, over a period of four years, 20 officers were suspended or terminated for misconduct toward aliens. Brief for Petitioner 45, n. 28. The INS does not assert, however, that any of these officers were disciplined for Fourth Amendment violations, and it appears that the 11 officers who were terminated were terminated for rape or assault. See Brief for Respondents 60, n. 42. [ Footnote 2/3 ] Section 275 provides in part: "Any alien who (1) enters the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) obtains entry to the United States by a willfully false or misleading representation . . . shall be guilty of a [crime]. . . ." 8 U.S.C. § 1325. [ Footnote 2/4 ] Section 276 provides in part: "Any alien who -- " "(1) has been arrested and deported or excluded and deported, and thereafter" "(2) enters, attempts to enter, or is at any time found in, the United States . . ." "shall be guilty of a felony." 8 U.S.C. § 1326. JUSTICE MARSHALL, dissenting. I agree with JUSTICE WHITE that application to this case of the mode of analysis embodied in the decisions of the Court in United States v. Janis, 428 U. S. 433 (1976), and United States v. Calandra, 414 U. S. 338 (1974), compels the conclusion that the exclusionary rule should apply in civil deportation proceedings. Ante at 468 U. S. 1052 -1054. However, I continue to believe that that mode of analysis fails to reflect the constitutionally mandated character of the exclusionary rule. See United States v. Leon, ante at 468 U. S. 931 -938 (BRENNAN, J., joined by MARSHALL, J., dissenting); United States v. Janis, supra, at 428 U. S. 460 (BRENNAN, J., joined by MARSHALL, J., dissenting). In my view, a sufficient reason for excluding from civil deportation proceedings evidence obtained in violation of the Fourth Amendment is that there is no other way to achieve "the twin goals of enabling the judiciary to avoid the taint of partnership in official lawlessness and of assuring the people -- all potential victims of unlawful government conduct -- that the government would not profit from its lawless behavior, thus minimizing the risk of seriously undermining Page 468 U. S. 1061 popular trust in government." United States v. Calandra, supra, at 414 U. S. 357 (BRENNAN, J., joined by MARSHALL, J., dissenting). JUSTICE STEVENS, dissenting. Because the Court has not yet held that the rule of United States v. Leon, ante p. 468 U. S. 897 , has any application to warrantless searches, I do not join the portion of JUSTICE WHITE's opinion that relies on that case. I do, however, agree with the remainder of his dissenting opinion.

In INS v. Lopez-Mendoza, the Supreme Court ruled that deportation proceedings are civil actions, not criminal, and so various protections that apply in criminal trials do not apply in deportation hearings. The Court also held that the exclusionary rule, which bars the use of evidence obtained through unlawful means, does not apply in deportation proceedings. Therefore, admissions of illegal entry made by respondents after their allegedly unlawful arrests were admissible as evidence in their deportation hearings.

Immigration & National Security

INS v. Delgado

https://supreme.justia.com/cases/federal/us/466/210/

U.S. Supreme Court INS v. Delgado, 466 U.S. 210 (1984) Immigration and Naturalization Service v. Delgado No. 82-1271 Argued January 11, 1984 Decided April 17, 1984 466 U.S. 210 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus Acting pursuant to warrants issued on a showing of probable cause that numerous unidentified illegal aliens were employed at a garment factory, the Immigration and Naturalization Service (INS) conducted two "factory surveys" of the workforce in search of illegal aliens. A third factory survey was conducted with the employer's consent at another garment factory. During each survey, which lasted from one to two hours, INS agents positioned themselves near the factory exits, while other agents moved systematically through the factory, approaching employees and, after identifying themselves, asking the employees from one to three questions relating to their citizenship. If an employee gave a credible reply that he was a United States citizen or produced his immigration papers, the agent moved on to another employee. During the survey, employees continued with their work and were free to walk around within the factory. Respondent employees -- who were United States citizens or permanent resident aliens and who had been questioned during the surveys -- and their union filed actions, consolidated in Federal District Court, alleging that the factory surveys violated their Fourth Amendment rights, and seeking declaratory and injunctive relief. The District Court granted summary judgment for the INS, but the Court of Appeals reversed, holding that the surveys constituted a seizure of the entire workforces, and that the INS could not question an individual employee unless its agents had a reasonable suspicion that the employee was an illegal alien. Held: The factory surveys did not result in the seizure of the entire workforces, and the individual questioning of the respondent employees by INS agents concerning their citizenship did not amount to a detention or seizure under the Fourth Amendment. Pp. 466 U. S. 215 -221. (a) Interrogation relating to one's identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure. Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, such questioning does not result in a detention under the Fourth Amendment. Pp. 466 U. S. 216 -217. (b) The entire workforces of the factories were not seized for the duration of the surveys here, even though INS agents were placed near Page 466 U. S. 211 the exits of the factory sites. The record indicates that the agents' conduct consisted simply of questioning employees and arresting those they had probable cause to believe were unlawfully present in the factory. This conduct should not have given respondents, or any other citizens or aliens lawfully present in the factories, any reason to believe that they would be detained if they gave truthful answers to the questions put to them or if they simply refused to answer. If mere questioning did not constitute a seizure when it occurred inside the factory, it was no more a seizure when it occurred at the exits. Pp. 466 U. S. 217 -219. (c) Since there was no seizure of the workforces by virtue of the method of conducting the surveys, the issue of individual questioning could be presented only if one of the respondent employees had, in fact, been seized or detained, but their deposition testimony showed that none was. They may only litigate what happened to them, and their description of the encounters with the INS agents showed that the encounters were classic consensual encounters, rather than Fourth Amendment seizures. Pp. 466 U. S. 219 -221. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 466 U. S. 221 . POWELL, J., filed an opinion concurring in the result, post, p. 466 U. S. 221 . BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p. 466 U. S. 225 . JUSTICE REHNQUIST delivered the opinion of the Court. In the course of enforcing the immigration laws, petitioner Immigration and Naturalization Service (INS) enters employers' worksites to determine whether any illegal aliens Page 466 U. S. 212 may be present as employees. The Court of Appeals for the Ninth Circuit held that the "factory surveys" involved in this case amounted to a seizure of the entire workforces, and further held that the INS could not question individual employees during any of these surveys unless its agents had a reasonable suspicion that the employee to be questioned was an illegal alien. International Ladies' Garment Workers' Union, AFL-CIO v. Sureck, 681 F.2d 624 (1982). We conclude that these factory surveys did not result in the seizure of the entire workforces, and that the individual questioning of the respondents in this case by INS agents concerning their citizenship did not amount to a detention or seizure under the Fourth Amendment. Accordingly, we reverse the judgment of the Court of Appeals. Acting pursuant to two warrants, in January and September, 1977, the INS conducted a survey of the workforce at Southern California Davis Pleating Co. (Davis Pleating) in search of illegal aliens. The warrants were issued on a showing of probable cause by the INS that numerous illegal aliens were employed at Davis Pleating, although neither of the search warrants identified any particular illegal aliens by name. A third factory survey was conducted with the employer's consent in October, 1977, at Mr. Pleat, another garment factory. At the beginning of the surveys, several agents positioned themselves near the buildings' exits, while other agents dispersed throughout the factory to question most, but not all, employees at their work stations. The agents displayed badges, carried walkie-talkies, and were armed, although at no point during any of the surveys was a weapon ever drawn. Moving systematically through the factory, the agents approached employees and, after identifying themselves, asked them from one to three questions relating to their citizenship. If the employee gave a credible reply that he was a United States citizen, the questioning ended, and the agent moved on to another employee. If the employee gave an unsatisfactory Page 466 U. S. 213 response or admitted that he was an alien, the employee was asked to produce his immigration papers. During the survey, employees continued with their work, and were free to walk around within the factory. Respondents are four employees questioned in one of the three surveys. [ Footnote 1 ] In 1978, respondents and their union representative, the International Ladies Garment Workers' Union, filed two actions, later consolidated, in the United States District Court for the Central District of California challenging the constitutionality of INS factory surveys and seeking declaratory and injunctive relief. Respondents argued that the factory surveys violated their Fourth Amendment right to be free from unreasonable searches or seizures and the equal protection component of the Due Process Clause of the Fifth Amendment. The District Court denied class certification and dismissed the union from the action for lack of standing, App. to Pet. for Cert. 58a-60a. In a series of cross-motions for partial summary judgment, the District Court ruled that respondents had no reasonable expectation of privacy in their workplaces which conferred standing on them to challenge entry by the INS pursuant to a warrant or owner's consent. Id. at 49a-52a, 53a-55a, 56a-57a. In its final ruling, the District Court addressed respondents' request for injunctive relief directed at preventing the INS from questioning them personally during any future surveys. The District Court, with no material facts in dispute, found that each of the four respondents was asked a question or questions by an INS agent during one of the factory surveys. Id. at 46a. Reasoning from this Court's decision in Terry v. Ohio, 392 U. S. 1 (1968), that law enforcement officers may ask questions of anyone, the Page 466 U. S. 214 District Court ruled that none of the respondents had been detained under the Fourth Amendment during the factory surveys, either when they were questioned or otherwise. App. to Pet. for Cert. 47a. Accordingly, it granted summary judgment in favor of the INS. [ Footnote 2 ] The Court of Appeals reversed. Applying the standard first enunciated by a Member of this Court in United States v. Mendenhall, 446 U. S. 544 (1980) (opinion of Stewart, J.), the Court of Appeals concluded that the entire workforces were seized for the duration of each survey, which lasted from one to two hours, because the stationing of agents at the doors to the buildings meant that "a reasonable worker would have believed that he was not free to leave.'" 681 F.2d at 634 (quoting United States v. Anderson, 663 F.2d 934, 939 (CA9 1981)). Although the Court of Appeals conceded that the INS had statutory authority to question any alien or person believed to be an alien as to his right to be or remain in the United States, see 66 Stat. 233, 8 U.S.C. § 1357(a)(1), it further held that, under the Fourth Amendment, individual employees could be questioned only on the basis of a reasonable suspicion that a particular employee being questioned was an alien illegally in the country. 681 F.2d at 639-645. A reasonable suspicion or probable cause to believe that a number of illegal aliens were working at a particular factory site was insufficient to justify questioning any individual employee. Id. at 643. Consequently, it also held that the individual questioning of respondents violated the Fourth Amendment, because there had been no such reasonable suspicion or probable cause as to any of them. [ Footnote 3 ] Page 466 U. S. 215 We granted certiorari to review the decision of the Court of Appeals, 461 U.S. 904 (1983), because it has serious implications for the enforcement of the immigration laws and presents a conflict with the decision reached by the Third Circuit in Babula v. INS, 665 F.2d 293 (1981). The Fourth Amendment does not proscribe all contact between the police and citizens, but is designed "to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals." United States v. Martinez-Fuerte, 428 U. S. 543 , 428 U. S. 554 (1976). Given the diversity of encounters between police officers and citizens, however, the Court has been cautious in defining the limits imposed by the Fourth Amendment on encounters between the police and citizens. As we have noted elsewhere: "Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Terry v. Ohio, supra, at 392 U. S. 19 , n. 16. While applying such a test is relatively straightforward in a situation resembling a traditional arrest, see Dunaway v. New York, 442 U. S. 200 , 442 U. S. 212 -216 (1979), the protection against unreasonable seizures also extends to "seizures that involve only a brief detention short of traditional arrest." United States v. Brignoni-Ponce, 422 U. S. 873 , 422 U. S. 878 (1975). What has evolved from our cases is a determination that an initially consensual encounter between a police officer and a citizen can be transformed into a seizure or detention within the meaning of the Fourth Amendment, "if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Mendenall, supra, at 446 U. S. 554 (footnote omitted); see Florida v. Royer, 460 U. S. 491 , 460 U. S. 502 (1983) (plurality opinion). Page 466 U. S. 216 Although we have yet to rule directly on whether mere questioning of an individual by a police official, without more, can amount to a seizure under the Fourth Amendment, our recent decision in Royer, supra, plainly implies that interrogation relating to one's identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure. In Royer, when Drug Enforcement Administration agents found that the respondent matched a drug courier profile, the agents approached the defendant and asked him for his airplane ticket and driver's license, which the agents then examined. A majority of the Court believed that the request and examination of the documents were "permissible in themselves." Id. at 460 U. S. 501 (plurality opinion); see id. at 460 U. S. 523 , n. 3 (opinion of REHNQUIST, J.). In contrast, a much different situation prevailed in Brown v. Texas, 443 U. S. 47 (1979), when two policemen physically detained the defendant to determine his identity, after the defendant refused the officers' request to identify himself. The Court held that, absent some reasonable suspicion of misconduct, the detention of the defendant to determine his identity violated the defendant's Fourth Amendment right to be free from an unreasonable seizure. Id. at 443 U. S. 52 . What is apparent from Royer and Brown is that police questioning, by itself, is unlikely to result in a Fourth Amendment violation. While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response. Cf. Schneckloth v. Bustamonte, 412 U. S. 218 , 412 U. S. 231 -234 (1973). Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment. But if the person refuses to answer and the police take additional steps -- such as those taken in Brown -- to obtain an answer, then the Fourth Amendment imposes Page 466 U. S. 217 some minimal level of objective justification to validate the detention or seizure. United States v. Mendenhall, 446 U.S. at 446 U. S. 554 ; see Terry v. Ohio, 392 U.S. at 392 U. S. 21 . The Court of Appeals held that "the manner in which the factory surveys were conducted in this case constituted a seizure of the workforce" under the Fourth Amendment. 681 F.2d at 634. While the element of surprise and the systematic questioning of individual workers by several INS agents contributed to the court's holding, the pivotal factor in its decision was the stationing of INS agents near the exits of the factory buildings. According to the Court of Appeals, the stationing of agents near the doors meant that "departures were not to be contemplated," and thus, workers were "not free to leave." Ibid. In support of the decision below, respondents argue that the INS created an intimidating psychological environment when it intruded unexpectedly into the workplace with such a show of officers. [ Footnote 4 ] Besides the stationing of agents near the exits, respondents add that the length of the survey and the failure to inform workers they were free to leave resulted in a Fourth Amendment seizure of the entire workforce. [ Footnote 5 ] Page 466 U. S. 218 We reject the claim that the entire workforces of the two factories were seized for the duration of the surveys when the INS placed agents near the exits of the factory sites. Ordinarily, when people are at work their freedom to move about has been meaningfully restricted, not by the actions of law enforcement officials, but by the workers' voluntary obligations to their employers. The record indicates that, when these surveys were initiated, the employees were about their ordinary business, operating machinery and performing other job assignments. While the surveys did cause some disruption, including the efforts of some workers to hide, the record also indicates that workers were not prevented by the agents from moving about the factories. Respondents argue, however, that the stationing of agents near the factory doors showed the INS's intent to prevent people from leaving. But there is nothing in the record indicating that this is what the agents at the doors actually did. The obvious purpose of the agents' presence at the factory doors was to insure that all persons in the factories were questioned. The record indicates that the INS agents' conduct in this case consisted simply of questioning employees and arresting those they had probable cause to believe were unlawfully present in the factory. This conduct should have given respondents no reason to believe that they would be detained if they gave truthful answers to the questions put to them or if they simply refused to answer. If mere questioning does not constitute a seizure when it occurs inside the factory, it is no more a seizure when it occurs at the exits. [ Footnote 6 ] Page 466 U. S. 219 A similar conclusion holds true for all other citizens or aliens lawfully present inside the factory buildings during the surveys. The presence of agents by the exits posed no reasonable threat of detention to these workers while they walked throughout the factories on job assignments. Likewise, the mere possibility that they would be questioned if they sought to leave the buildings should not have resulted in any reasonable apprehension by any of them that they would be seized or detained in any meaningful way. Since most workers could have had no reasonable fear that they would be detained upon leaving, we conclude that the workforces as a whole were not seized. [ Footnote 7 ] The Court of Appeals also held that "detentive questioning" of individuals could be conducted only if INS agents could articulate "objective facts providing investigators with a reasonable suspicion that each questioned person, so detained, is an alien illegally in this country." 681 F.2d at 638. Under our analysis, however, since there was no seizure of the workforces by virtue of the method of conducting the factory surveys, the only way the issue of individual questioning could be presented would be if one of the named respondents had in fact been seized or detained. Reviewing the deposition testimony of respondents, we conclude that none were. The questioning of each respondent by INS agents seems to have been nothing more than a brief encounter. None of the three Davis Pleating employees were questioned during the January survey. During the September survey at Davis Pleating, respondent Delgado was discussing the survey with another employee when two INS agents approached him and asked him where he was from and from what city. When Delgado informed them that he came from Mayaguez, Puerto Page 466 U. S. 220 Rico, the agent made an innocuous observation to his partner and left. App. 94. Respondent Correa's experience in the September survey was similar. Walking from one part of the factory to another, Correa was stopped by an INS agent and asked where she was born. When she replied "Huntington Park, [California]," the agent walked away and Correa continued about her business. Id. at 115. Respondent Labonte, the third Davis Pleating employee, was tapped on the shoulder and asked in Spanish, "Where are your papers?" Id. at 138. Labonte responded that she had her papers and, without any further request from the INS agents, showed the papers to the agents, who then left. Finally, respondent Miramontes, the sole Mr. Pleat employee involved in this case, encountered an agent en route from an office to her worksite. Questioned concerning her citizenship, Miramontes replied that she was a resident alien, and on the agent's request, produced her work permit. The agent then left. Id. at 120-121. Respondents argue that the manner in which the surveys were conducted and the attendant disruption caused by the surveys created a psychological environment which made them reasonably afraid they were not free to leave. Consequently, when respondents were approached by INS agents and questioned concerning their citizenship and right to work, they were effectively detained under the Fourth Amendment, since they reasonably feared that refusing to answer would have resulted in their arrest. But it was obvious from the beginning of the surveys that the INS agents were only questioning people. Persons such as respondents who simply went about their business in the workplace were not detained in any way; nothing more occurred than that a question was put to them. While persons who attempted to flee or evade the agents may eventually have been detained for questioning, see id. at 50, 81-84, 91-93, respondents did not do so, and were not in fact detained. The manner in which respondents were questioned, given its obvious purpose, could hardly result in a reasonable fear that respondents Page 466 U. S. 221 were not free to continue working or to move about the factory. Respondents may only litigate what happened to them, and our review of their description of the encounters with the INS agents satisfies us that the encounters were classic consensual encounters, rather than Fourth Amendment seizures. See Florida v. Royer, 460 U. S. 491 (1983); United States v. Mendenhall, 446 U. S. 544 (1980). Accordingly, the judgment of the Court of Appeals is Reversed. [ Footnote 1 ] Respondents Herman Delgado, Ramona Correa, and Francisca Labonte worked at Davis Pleating, while Marie Miramontes, the fourth respondent, was employed by Mr. Pleat. Both Delgado and Correa are United States citizens, while Labonte and Miramontes are permanent resident aliens. [ Footnote 2 ] The District Court never ruled directly on respondents' Fifth Amendment claim, apparently reasoning that, since respondents' Fourth Amendment rights had not been violated, their Fifth Amendment right had also not been violated. The Court of Appeals also never ruled on respondents' Fifth Amendment claim, and we decline to do so. [ Footnote 3 ] The Court of Appeals ruled that the District Court did not abuse its discretion in denying class certification. In light of its disposition of respondents' Fourth Amendment claims, the Court of Appeals declined to resolve the union's appeal from the District Court's determination that the union lacked standing to raise its members' Fourth Amendment claims. 681 F.2d at 645, n. 24. [ Footnote 4 ] Although the issue was the subject of substantial discussion at oral argument, the INS does not contest that respondents have standing to bring this case. They allege the existence of an ongoing policy which violated the Fourth Amendment and which will be applied to their workplace in the future. Cf. Allee v. Medrano, 416 U. S. 802 (1974). Part of their argument is clearly based on the INS's detention of illegal aliens found working at the two factories. Respondents, however, can only premise their right to injunctive relief on their individual encounters with INS agents during the factory surveys. See infra at 466 U. S. 221 . [ Footnote 5 ] Contrary to respondents' assertion, it also makes no difference in this case that the encounters took place inside a factory, a location usually not accessible to the public. The INS officers were lawfully present pursuant to consent or a warrant, and other people were in the area during the INS agents' questioning. Thus, the same considerations attending contacts between the police and citizens in public places should apply to the questions presented to the individual respondents here. [ Footnote 6 ] In her deposition, respondent Miramontes described an incident that occurred during the October factory survey at Mr. Pleat, in which an INS agent stationed by an exit attempted to prevent a worker, presumably an illegal alien, from leaving the premises after the survey started. The worker walked out the door, and when an agent tried to stop him, the worker pushed the agent aside and ran away. App. 125-126. An ambiguous, isolated incident such as this fails to provide any basis on which to conclude that respondents have shown an INS policy entitling them to injunctive relief. See Rizzo v. Goode, 423 U. S. 362 (1976); cf. Allee v. Medrano, supra; Hague v. CIO, 307 U. S. 496 (1939). [ Footnote 7 ] Respondents Delgado and Labonte both left the building during the INS survey, Delgado to load a truck and Labonte to observe INS activities outside the building. App. 98, 136. Neither of them stated in their depositions that the INS agents in any way restrained them from leaving the building, or even addressed any questions to them upon leaving. JUSTICE STEVENS, concurring. A trial has not yet been held in this case. The District Court entered summary judgment against respondents, and the Court of Appeals, in reversing, did not remand the case for trial, but rather directed the District Court to enter summary judgment for respondents and a permanent injunction against petitioners. As the case comes to us, therefore, we must construe the record most favorably to petitioners, and resolve all issues of fact in their favor. Because I agree that this record is insufficient to establish that there is no genuine issue of fact on the question whether any of the respondents could have reasonably believed that he or she had been detained in some meaningful way, I join the opinion of the Court. JUSTICE POWELL, concurring in the result. While the Court's opinion is persuasive, I find the question of whether the factory surveys conducted in this case resulted in any Fourth Amendment "seizures" to be a close one. The question turns on a difficult characterization of fact and law: whether a reasonable person in respondents' position would have believed he was free to refuse to answer the questions put to him by INS officers and leave the factory. I believe that the Court need not decide the question, however, because it is clear that any "seizure" that my have taken place was permissible under the reasoning of our decision in United States v. Martinez-Fuerte, 428 U. S. 543 (1976). Page 466 U. S. 222 In that case, we held that stopping automobiles for brief questioning at permanent traffic checkpoints away from the Mexican border is consistent with the Fourth Amendment, and need not be authorized by a warrant. [ Footnote 2/1 ] We assumed that the stops constituted "seizures" within the meaning of the Fourth Amendment, see id. at 428 U. S. 546 , n. 1, 428 U. S. 556 , but upheld them as reasonable. As in prior cases involving the apprehension of aliens illegally in the United States, we weighed the public interest in the practice at issue against the Fourth Amendment interest of the individual. See id. at 428 U. S. 555 . Noting the importance of routine checkpoint stops to controlling the flow of illegal aliens into the interior of the country, we found that the Government had a substantial interest in the practice. On the other hand, the intrusion on individual motorists was minimal: the stops were brief, usually involving only a question or two and possibly the production of documents. Moreover, they were public and regularized law enforcement activities vesting limited discretion in officers in the field. Weighing these considerations, we held that the stops and questioning at issue, as well as referrals to a slightly longer secondary inspection, might be made "in the absence of any individualized suspicion" that a particular car contained illegal aliens, id. at 428 U. S. 562 . This case is similar. The Government's interest in using factory surveys is as great, if not greater. According to an affidavit by the INS's Assistant District Director in Los Angeles contained in the record in this case, the surveys account for one-half to three-quarters of the illegal aliens identified and arrested away from the border every day in the Los Angeles District. App. 47. [ Footnote 2/2 ] In that District alone, over Page 466 U. S. 223 20,000 illegal aliens were arrested in the course of factory surveys in one year. Id. at 44. The surveys in this case resulted in the arrest of between 20% and 50% of the employees at each of the factories. [ Footnote 2/3 ] We have noted before the dimensions of the immigration problem in this country. E.g., United States v. Brignoni-Ponce, 422 U. S. 873 , 422 U. S. 878 -879 (1975); Martinez-Fuerte, supra, at 428 U. S. 551 -553. Recent estimates of the number of illegal aliens in this country range between 2 and 12 million, although the consensus appears to be that the number at any one time is between 3 and 6 million. [ Footnote 2/4 ] One of the main reasons they come-- perhaps the main reason -- is to seek employment. See App. 43; Martinez-Fuerte, supra, at 428 U. S. 551 ; Select Committee at 25, 38. Factory surveys strike directly at this cause, enabling the INS, with relatively few agents, to diminish the incentive for the dangerous passage across the border and to apprehend large numbers of those who come. Clearly, the Government interest in this enforcement technique is enormous. [ Footnote 2/5 ] Page 466 U. S. 224 The intrusion into the Fourth Amendment interests of the employees, on the other hand, is about the same as it was in Martinez-Fuerte. The objective intrusion is actually less: there, cars often were stopped for up to five minutes, while here employees could continue their work as the survey progressed. They were diverted briefly to answer a few questions or to display their registration cards. It is true that the initial entry into the plant in a factory survey is a surprise to the workers, but the obviously authorized character of the operation, the clear purpose of seeking illegal aliens, and the systematic and public nature of the survey serve to minimize any concern or fright on the part of lawful employees. Moreover, the employees' expectation of privacy in the plant setting here, like that in an automobile, certainly is far less than the traditional expectation of privacy in one's residence. Therefore, for the same reasons that we upheld the checkpoint stops in Martinez-Fuerte without any individualized suspicion, I would find the factory surveys here to be reasonable. [ Footnote 2/6 ] Page 466 U. S. 225 [ Footnote 2/1 ] This case presents no question as to whether a warrant was required for the entry by the INS officers into the plants. As the majority notes, the INS obtained either a warrant or consent from the factory owners before entering the plants to conduct the surveys. [ Footnote 2/2 ] The Solicitor General informs us that the figure in text refers to 1977. For the country as a whole, the INS estimates from its internal records that factory surveys accounted in 1982 for approximately 60% of all illegal aliens apprehended by the INS in nonborder locations. Brief for Petitioners 3-4, and n. 3. [ Footnote 2/3 ] During the course of the the first survey at Davis Pleating, 78 illegal aliens were arrested out of a workforce of approximately 300. The second survey nine months later resulted in the arrest of 39 illegal aliens out of about 200 employees. The survey at Mr. Pleat resulted in the arrest of 45 illegal aliens out of approximately 90 employees. App. 51. [ Footnote 2/4 ] House Select Committee on Population, 95th Cong., 2d Sess., Legal and Illegal Immigration to the United States 2, 16-17 (Comm. Print 1978) (hereinafter Select Committee); see also Brignoni-Ponce, 422 U.S. at 422 U. S. 878 (the INS in 1974 suggested that the number of illegal aliens might be as high as 10 to 12 million). [ Footnote 2/5 ] Despite the vast expenditures by the INS and other agencies to prevent illegal immigration and apprehend aliens illegally in the United States, and despite laws making it a crime for them to be here, our law irrationally continues to permit United States employers to hire them. Many employers actively recruit low-paid illegal immigrant labor, encouraging -- with Government tolerance -- illegal entry into the United States. See Select Committee, at 25. This incongruity in our immigration statutes is not calculated to increase respect for the rule of law. [ Footnote 2/6 ] The Court in Martinez-Fuerte also held that no particularized reason was necessary to refer motorists to the secondary inspection area for a slightly more intrusive "seizure." 428 U.S. at 428 U. S. 563 -564. Similarly, I would hold in this case that, in the context of an overall survey of a factory, no particularized suspicion is needed to justify the choice of those employees who are subjected to the minimal intrusion of the questioning here. The dissent's claim that INS agents have greater discretion to decide whom to question in factory surveys than they do at traffic checkpoints, post at 466 U. S. 237 -238, neglects the virtually unlimited discretion to refer cars to the secondary inspection area that we approved in Martinez-Fuerte. The dissent also suggests that a warrant requirement for factory surveys, and certain unspecified improvements, would make the surveys constitutional. Post at 466 U. S. 239 . I note only that the Court in Martinez-Fuerte declined to impose a warrant requirement on the location of traffic checkpoints, 428 U.S. at 428 U. S. 564 -566, and that the respondents here do not argue for such a requirement or for changes in the "duration and manner" of the surveys. I would not address the warrant question until it is fully briefed by both sides. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in part and dissenting in part. As part of its ongoing efforts to enforce the immigration laws, the Immigration and Naturalization Service (INS) conducts "surveys" of those workplaces that it has reason to believe employ large numbers of undocumented aliens who may be subject to deportation. This case presents the question whether the INS's method of carrying out these "factory surveys" [ Footnote 3/1 ] violates the rights of the affected factory workers to be secure against unreasonable seizures of one's person as guaranteed by the Fourth Amendment. Answering that question, the Court today holds, first, that the INS surveys involved here did not result in the seizure of the entire factory workforce for the complete duration of the surveys, ante at 466 U. S. 218 -219, and, second, that the individual questioning of respondents by INS agents concerning their citizenship did not constitute seizures within the meaning of the Fourth Amendment, ante at 466 U. S. 219 -221. Although I generally agree with the Court's first conclusion, [ Footnote 3/2 ] I am convinced that a fair application of our prior decisions to the facts of this case Page 466 U. S. 226 compels the conclusion that respondents were unreasonably seized by INS agents in the course of these factory surveys. At first blush, the Court's opinion appears unremarkable. But what is striking about today's decision is its studied air of unreality. Indeed, it is only through a considerable feat of legerdemain that the Court is able to arrive at the conclusion that the respondents were not seized. The success of the Court's sleight of hand turns on the proposition that the interrogations of respondents by the INS were merely brief, "consensual encounters," ante at 466 U. S. 221 , that posed no threat to respondents' personal security and freedom. The record, however, tells a far different story. I Contrary to the Court's suggestion, see ante at 466 U. S. 216 , we have repeatedly considered whether and, if so, under what circumstances, questioning of an individual by law enforcement officers may amount to a seizure within the meaning of the Fourth Amendment. See, e.g., Terry v. Ohio, 392 U. S. 1 (1968); Davis v. Mississippi, 394 U. S. 721 (1969); Adams v. Williams, 407 U. S. 143 (1972); Brown v. Texas, 443 U. S. 47 (1979); United States v. Mendenhall, 446 U. S. 544 (1980); Florida v. Royer, 460 U. S. 491 (1983). Of course, as these decisions recognize, the question does not admit of any simple answer. The difficulty springs from the inherent tension between our commitment to safeguarding the precious, and all too fragile, right to go about one's business free from unwarranted government interference and our recognition that the police must be allowed some latitude in gathering information from those individuals who are willing to cooperate. Given these difficulties, it is perhaps understandable that our efforts to strike an appropriate balance have not produced uniform results. Nevertheless, the outline of what appears to be the appropriate inquiry has been traced over the years with some clarity. Page 466 U. S. 227 The Court launched its examination of this issue in Terry v. Ohio, supra, by explaining that "the Fourth Amendment governs 'seizures' of the person which do not eventuate in a trip to the station house and prosecution for crime -- 'arrests' in traditional terminology. It must be recognized that, whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person. " Id. at 392 U. S. 16 (emphasis added). Such a seizure, the Court noted, may be evidenced by either "physical force or show of authority" indicating that the individual's liberty has been restrained. Id. at 392 U. S. 19 , n. 16. The essential teaching of the Court's decision in Terry -- that an individual's right to personal security and freedom must be respected even in encounters with the police that fall short of full arrest -- has been consistently reaffirmed. In Davis v. Mississippi, 394 U.S. at 394 U. S. 726 -727, for example, the Court confirmed that investigatory detentions implicate the protections of the Fourth Amendment and further explained that, "while the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes, they have no right to compel them to answer." Id. at 394 U. S. 727 , n. 6. Similarly, in Brown v. Texas, supra, we overturned a conviction for refusing to stop and identify oneself to police, because, in making the stop, the police lacked any "reasonable suspicion, based on objective facts, that the individual [was] involved in criminal activity." Id. at 394 U. S. 51 . The animating principle underlying this unanimous decision was that the Fourth Amendment protects an individual's personal security and privacy from unreasonable interference by the police, even when that interference amounts to no more than a brief stop and questioning concerning one's identity. Although it was joined at the time by only one other Member of this Court, Part II-A of Justice Stewart's opinion in United States v. Mendenhall, supra, offered a helpful, preliminary distillation of the lessons of these cases. Noting Page 466 U. S. 228 first that, "as long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy," Justice Stewart explained that "a person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id. at 394 U. S. 554 . The opinion also suggested that such circumstances might include "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Ibid. A majority of the Court has since adopted that formula as the appropriate standard for determining when inquiries made by the police cross the boundary separating merely consensual encounters from forcible stops to investigate a suspected crime. See Florida v. Royer, 460 U.S. at 460 U. S. 502 , (plurality opinion); id. at 460 U. S. 511 -512 (BRENNAN, J., concurring in result); id. at 460 U. S. 514 (BLACKMUN, J., dissenting). This rule properly looks not to the subjective impressions of the person questioned, but rather to the objective characteristics of the encounter which may suggest whether or not a reasonable person would believe that he remained free during the course of the questioning to disregard the questions and walk away. See 3 W. LaFave, Search and Seizure § 9.2, p. 52 (1978). The governing principles that should guide us in this difficult area were summarized in the Royer plurality opinion: "[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Nor would the fact that the officer identifies himself as a police officer, without more, convert Page 466 U. S. 229 the encounter into a seizure requiring some level of objective justification. The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. " 460 U.S. at 460 U. S. 497 -498 (citations omitted) (emphasis added). Applying these principles to the facts of this case, I have no difficulty concluding that respondents were seized within the meaning of the Fourth Amendment when they were accosted by the INS agents and questioned concerning their right to remain in the United States. Although none of the respondents was physically restrained by the INS agents during the questioning, it is nonetheless plain beyond cavil that the manner in which the INS conducted these surveys demonstrated a "show of authority" of sufficient size and force to overbear the will of any reasonable person. Faced with such tactics, a reasonable person could not help but feel compelled to stop and provide answers to the INS agents' questions. The Court's efforts to avoid this conclusion are rooted more in fantasy than in the record of this case. The Court goes astray, in my view, chiefly because it insists upon considering each interrogation in isolation, as if respondents had been questioned by the INS in a setting similar to an encounter between a single police officer and a lone passerby that might occur on a street corner. Obviously, once the Court begins with such an unrealistic view of the facts, it is only a short step to the equally fanciful conclusion that respondents acted voluntarily when they stopped and answered the agents' questions. The surrounding circumstances in this case are far different from an isolated encounter between the police and a passerby on the street. Each of the respondents testified at length about the widespread disturbance among the workers Page 466 U. S. 230 that was sparked by the INS surveys and the intimidating atmosphere created by the INS's investigative tactics. First, as the respondents explained, the surveys were carried out by surprise by relatively large numbers of agents, generally from 15 to 25, who moved systematically through the rows of workers who were seated at their work stations. See App. 77-78, 81-85, 102-103, 122-123. Second, as the INS agents discovered persons whom they suspected of being illegal aliens, they would handcuff these persons and lead them away to waiting vans outside the factory. See id. at 88, 140-141. Third, all of the factory exits were conspicuously guarded by INS agents, stationed there to prevent anyone from leaving while the survey was being conducted. See id. at 48, 82, 125-126, 144-145, 158. Finally, as the INS agents moved through the rows of workers, they would show their badges and direct pointed questions at the workers. In light of these circumstances, it is simply fantastic to conclude that a reasonable person could ignore all that was occurring throughout the factory and, when the INS agents reached him, have the temerity to believe that he was at liberty to refuse to answer their questions and walk away. Indeed, the experiences recounted by respondents clearly demonstrate that they did not feel free either to ignore the INS agents or to refuse to answer the questions posed to them. For example, respondent Delgado, a naturalized American citizen, explained that he was standing near his work station when two INS agents approached him, identified themselves as immigration officers, showed him their badges, and asked him to state where he was born. Id. at 95. Delgado, of course, had seen all that was going on around him up to that point, and naturally he responded. As a final reminder of who controlled the situation, one INS agent remarked as they were leaving Delgado that they would be coming back to check him out again because he spoke English too well. Id. at 94. Respondent Miramontes described her encounter with the INS in similar terms: "He Page 466 U. S. 231 told me he was from Immigration, so when I showed him the [work permit] papers, I saw his badge. If I hadn't [seen his badge], I wouldn't have shown them to him. " Id. at 121 (emphasis added). She further testified that she was frightened during this interview because "normally you get nervous when you see everybody is scared, everybody is nervous." Ibid. Respondent Labontes testified that, while she was sitting at her machine, an immigration officer came up to her from behind, tapped her on the left shoulder, and asked "Where are your papers?" Explaining her response to this demand, she testified: "I turned, and at the same time I didn't wish to identify myself. When I saw [the INS agents], I said, Yes, yes, I have my papers.'" Id. at 138 (emphasis added). In sum, it is clear from this testimony that respondents felt constrained to answer the questions posed by the INS agents, even though they did not wish to do so. That such a feeling of constraint was reasonable should be beyond question in light of the surrounding circumstances. Indeed, the respondents' testimony paints a frightening picture of people subjected to wholesale interrogation under conditions designed not to respect personal security and privacy, but rather to elicit prompt answers from completely intimidated workers. Nothing could be clearer than that these tactics amounted to seizures of respondents under the Fourth Amendment. [ Footnote 3/3 ] Page 466 U. S. 232 II The Court's eagerness to conclude that these interrogations did not represent seizures is to some extent understandable, of course, because such a conclusion permits the Court to avoid the imposing task of justifying these seizures on the basis of reasonable, objective criteria as required by the Fourth Amendment. The reasonableness requirement of the Fourth Amendment applies to all seizures of the person, including those that involve only a brief detention short of traditional arrest. But because the intrusion upon an individual's personal security and privacy is limited in cases of this sort, we have explained that brief detentions may be justified on "facts that do not amount to the probable cause required for an arrest." United States v. Brignoni-Ponce, 422 U. S. 873 , 422 U. S. 880 (1975). Nevertheless, our prior decisions also make clear that investigatory stops of the kind at issue here "must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, 449 U. S. 411 , 449 U. S. 417 (1981). As the Court stated in Terry, the "demand for specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence." 392 U.S. at 392 U. S. 21 , n. 18. Repeatedly, we have insisted that police may not detain and interrogate an individual unless they have reasonable grounds for suspecting that the person is involved in some unlawful activity. In United States v. Brignoni-Ponce, supra, for instance, the Court held that "[Border Patrol] officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country." Id. at 422 U. S. 884 . See also Michigan v. Summers, 452 U. S. 692 , 452 U. S. 699 -700 (1981); Ybarra v. Illinois, 444 U. S. 85 , 444 U. S. 92 -93 (1979); Brown v. Texas, 443 U.S. at 443 U. S. 51 -52; Delaware Page 466 U. S. 233 v. Prouse, 440 U. S. 648 , 440 U. S. 661 (1979); Adams v. Williams, 407 U.S. at 407 U. S. 146 -149; Davis v. Mississippi, 394 U.S. at 394 U. S. 726 -728; Terry v. Ohio, 392 U.S. at 392 U. S. 16 -19. This requirement of particularized suspicion provides the chief protection of lawful citizens against unwarranted governmental interference with their personal security and privacy. In this case, the individual seizures of respondents by the INS agents clearly were neither "based on specific, objective facts indicating that society's legitimate interests require[d] the seizure" nor "carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers." Brown v. Texas, supra, at 443 U. S. 51 . It is undisputed that the vast majority of the undocumented aliens discovered in the surveyed factories had illegally immigrated from Mexico. Nevertheless, the INS agents involved in this case apparently were instructed, in the words of the INS Assistant District Director in charge of the operations, to interrogate "virtually all persons employed by a company." App. 49. See also id. at 443 U. S. 77 , 443 U. S. 85 -86, 443 U. S. 151 -152, 443 U. S. 155 . Consequently, all workers, irrespective of whether they were American citizens, permanent resident aliens, or deportable aliens, were subjected to questioning by INS agents concerning their right to remain in the country. By their own admission, the INS agents did not selectively question persons in these surveys on the basis of any reasonable suspicion that the persons were illegal aliens. See id. at 443 U. S. 55 , 443 U. S. 155 . That the INS policy is so indiscriminate should not be surprising, however, since many of the employees in the surveyed factories who are lawful residents of the United States may have been born in Mexico, have a Latin appearance, or speak Spanish while at work. See id. at 443 U. S. 57 , 443 U. S. 73 . What this means, of course, is that the many lawful workers who constitute the clear majority at the surveyed workplaces are subjected to surprise questioning under intimidating circumstances by INS agents who have no reasonable basis for suspecting that they have Page 466 U. S. 234 done anything wrong. To say that such an indiscriminate policy of mass interrogation is constitutional makes a mockery of the words of the Fourth Amendment. Furthermore, even if the INS agents had pursued a firm policy of stopping and interrogating only those persons whom they reasonably suspected of being aliens, they would still have failed, given the particular circumstances of this case, to safeguard adequately the rights secured by the Fourth Amendment. The first, and in my view insurmountable, problem with such a policy is that, viewed realistically, it poses such grave problems of execution that, in practice, it affords virtually no protection to lawful American citizens working in these factories. This is so because, as the Court recognized in Brignoni-Ponce, supra, at 422 U. S. 886 , there is no reliable way to distinguish with a reasonable degree of accuracy between native-born and naturalized citizens of Mexican ancestry on the one hand, and aliens of Mexican ancestry on the other. [ Footnote 3/4 ] See also Developments, Immigration Policy and the Rights of Aliens, 96 Harv.L.Rev. 1286, 1374-1375 (1983). Indeed, the record in this case clearly demonstrates this danger, since respondents Correa and Delgado, although both American citizens, were subjected to questioning during the INS surveys. Page 466 U. S. 235 Moreover, the mere fact that a person is believed to be an alien provides no immediate grounds for suspecting any illegal activity. Congress, of course, possesses broad power to regulate the admission and exclusion of aliens, see Kliendeinst v. Mandel, 408 U. S. 753 , 408 U. S. 766 (1972); Fiallo v. Bell, 430 U. S. 787 , 430 U. S. 792 (1977), and resident aliens surely may be required to register with the INS and to carry proper identification, see 8 U.S.C. §§ 1302, 1304(e). Nonetheless, as we held in Brignoni-Ponce, 422 U.S. at 422 U. S. 883 -884, when the Executive Branch seeks to enforce such congressional policies, it may not employ enforcement techniques that threaten the constitutional rights of American citizens. In contexts such as these factory surveys, where it is virtually impossible to distinguish fairly between citizens and aliens, the threat to vital civil rights of American citizens would soon become intolerable if we simply permitted the INS to question persons solely on account of suspected alienage. Cf. id. at 422 U. S. 884 -886. Therefore, in order to protect both American citizens and lawful resident aliens, who are also protected by the Fourth Amendment, see Almeida-Sanchez v. United States, 413 U. S. 266 , 413 U. S. 273 (1973), the INS must tailor its enforcement efforts to focus only on those workers who are reasonably suspected of being illegal aliens. [ Footnote 3/5 ] Page 466 U. S. 236 Relying upon United States v. Martinez-Fuerte, 428 U. S. 543 (1976), however, JUSTICE POWELL would hold that the interrogation of respondents represented a "reasonable" seizure under the Fourth Amendment, even though the INS agents lacked any particularized suspicion of illegal alienage to support the questioning, ante at 466 U. S. 224 . In my view, reliance on that decision is misplaced. In Martinez-Fuerte, the Court held that, when the intrusion upon protected privacy interests is extremely limited, the INS, in order to serve the pressing governmental interest in immigration enforcement, may briefly detain travelers at fixed checkpoints for questioning solely on the basis of "apparent Mexican ancestry." 428 U.S. at 428 U. S. 563 . In so holding, the Court was careful to distinguish its earlier decision in Brignoni-Ponce, supra, which held that Border Patrol agents conducting roving patrols may not stop and question motorists solely on the basis of apparent Mexican ancestry, and may instead make such stops only when their observations lead them "reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country." Id. at 422 U. S. 881 . The "crucial distinction" between the roving patrols and the fixed checkpoints, as the Court later observed in Delaware v. Prouse, 440 U.S. at 440 U. S. 656 , was "the lesser intrusion upon the motorist's Fourth Amendment interests" caused by the checkpoint operations. Thus, as the Court explained in Martinez-Fuerte: "This objective intrusion -- the stop itself, the questioning, and the visual inspection -- also existed in roving patrol stops. But we view checkpoint stops in a different light because the subjective intrusion -- the generating of concern or even fright on the part of lawful travelers -- is appreciably less in the case of a checkpoint stop." 428 U.S. at 428 U. S. 558 . [ Footnote 3/6 ] Page 466 U. S. 237 The limited departure from Terry's general requirement of particularized suspicion permitted in Martinez-Fuerte turned, therefore, largely on the fact that the intrusion upon motorists resulting from the checkpoint operations was extremely modest. In this case, by contrast, there are no equivalent guarantees that the privacy of lawful workers will not be substantially invaded by the factory surveys, or that the workers will not be frightened by the INS tactics. Indeed, the opposite is true. First, unlike the fixed checkpoints that were upheld in Martinez-Fuerte in part because their location was known to motorists in advance, the INS factory surveys are sprung upon unsuspecting workers completely by surprise. Respondents testified that the sudden arrival of large numbers of INS agents created widespread fear and anxiety among most workers. See App. 89, 107, 116, 120-121, 129-130. Respondent Miramontes, for instance, explained that she was afraid during the surveys "[b]ecause if I leave and they think I don't have no papers and they shoot me or something. They see me leaving and they think I'm guilty." Id. at 127. [ Footnote 3/7 ] In Marinez-Fuerte, there was absolutely no evidence of widespread fear and anxiety similar to that adduced in this case. Second, the degree of unfettered discretionary judgment exercised by the individual INS agents during the factory surveys is considerably greater than in the fixed checkpoint operations. The power of individual INS agents to decide who they will stop and question and who they will pass over contributes significantly to the feeling of uncertainty and Page 466 U. S. 238 anxiety of the workers. See App. 86, 90, 129-130. Unlike the fixed checkpoint operation, there can be no reliable sense among the affected workers that the survey will be conducted in an orderly and predictable manner. Third, although the workplace obviously is not as private as the home, it is, at the same time, not without an element of privacy that is greater than in an automobile. All motorists expect that, while on the highway, they are subject to general police surveillance as part of the regular and expectable enforcement of traffic laws. For the average employee, however, the workplace encloses a small, recognizable community that is a locus of friendships, gossip, common effort, and shared experience. While at work, therefore, the average employee will not have the same sense of anonymity that is felt when one is driving on the public highways; instead, an employee will be known by coworkers and will recognize other employees as his or her fellows. This experience, common enough among all who work, forms the basis for a legitimate, albeit modest, expectation of privacy that cannot be indiscriminately invaded by government agents. See Mancusi v. DeForte, 392 U. S. 364 , 392 U. S. 368 -369 (1968) (employee has reasonable expectation of privacy in office space shared with other workers). The mere fact that the employer has consented to the entry of the INS onto his property does not mean that the workers' expectation of privacy evaporates. Finally, there is no historical precedent for these kinds of surveys that would make them expectable or predictable. As the Court noted in Martinez-Fuerte, supra, at 43 U. S. 560 -561, n. 14, road checkpoints are supported to some extent by a long history of acceptance that diminishes substantially the concern and fear that such practices would elicit in the average motorist. But factory surveys of the kind conducted by the INS are wholly unprecedented, and their novelty can therefore be expected to engender a high degree of resentment and anxiety. In sum, although the governmental interest is obviously as substantial here as it was in Martinez- Page 466 U. S. 239 Fuerte, the degree of intrusion upon the privacy rights of lawful workers is significantly greater. Accordingly, the quantum of suspicion required to justify such an intrusion must be correspondingly greater. In my view, therefore, the only acceptable alternatives that would adequately safeguard Fourth Amendment values in this context are for the INS either (a) to adopt a firm policy of stopping and questioning only those workers who are reasonably suspected of being illegal aliens, or (b) to develop a factory survey program that is predictably and reliably less intrusive than the current scheme under review. The first alternative would satisfy the requirement of particularized suspicion enunciated in Terry -- a principle that must control here because the specific conditions that permitted exception to that requirement in Martinez-Fuerte are simply not present. The second alternative would seek to redesign the factory survey techniques used by the INS in order to bring them more closely into line with the characteristics found in Martinez-Fuerte. Such a scheme might require the INS, before conducting a survey of all workers in a particular plant, to secure an administrative warrant based upon a showing that reasonable grounds exist for believing that a substantial number of workers employed at the factory are undocumented aliens subject to deportation, and that there are no practical alternatives to conducting such a survey. Cf. Camara v. Municipal Court, 387 U. S. 523 (1967). In addition, the surveys could be further tailored in duration and manner so as to be substantially less intrusive. III No one doubts that the presence of large numbers of undocumented aliens in this country creates law enforcement problems of titanic proportions for the INS. Nor does anyone question that this agency must be afforded considerable latitude in meeting its delegated enforcement responsibilities. I am afraid, however, that the Court has become so Page 466 U. S. 240 mesmerized by the magnitude of the problem that it has too easily allowed Fourth Amendment freedoms to be sacrificed. Before we discard all efforts to respect the commands of the Fourth Amendment in this troubling area, however, it is worth remembering that the difficulties faced by the INS today are partly of our own making. The INS methods under review in this case are, in my view, more the product of expedience than of prudent law enforcement policy. The Immigration and Nationality Act establishes a quota-based system for regulating the admission of immigrants to this country which is designed to operate primarily at our borders. See 8 U.S.C. §§ 1151-1153, 1221-1225. See generally Developments, 96 Harv.L.Rev. at 1334-1369. With respect to Mexican immigration, however, this system has almost completely broken down. This breakdown is due in part, of course, to the considerable practical problems of patroling a 2,000-mile border; it is, however, also the result of our failure to commit sufficient resources to the border patrol effort. See Administration's Proposals on Immigration and Refugee Policy: Joint Hearing before the Subcommittee on Immigration, Refugees, and International Law of the House Committee on the Judiciary, and the Subcommittee on Immigration and Refugee Policy of the Senate Committee on the Judiciary, 97th Cong., 1st Sess., 6 (1981) (statement of Attorney General Smith); see also Developments, 96 Harv.L.Rev. at 1439. Furthermore, the Act expressly exempts American businesses that employ undocumented aliens from all criminal sanctions, 8 U.S.C. § 1324(a), thereby adding to the already powerful incentives for aliens to cross our borders illegally in search of employment. [ Footnote 3/8 ] Page 466 U. S. 241 In the face of these facts, it seems anomalous to insist that the INS must now be permitted virtually unconstrained discretion to conduct wide-ranging searches for undocumented aliens at otherwise lawful places of employment in the interior of the United States. What this position amounts to, I submit, is an admission that, since we have allowed border enforcement to collapse, and since we are unwilling to require American employers to share any of the blame, we must, as a matter of expediency, visit all of the burdens of this jury-rigged enforcement scheme on the privacy interests of completely lawful citizens and resident aliens who are subjected to these factory raids solely because they happen to work alongside some undocumented aliens. [ Footnote 3/9 ] The average American, as we have long recognized, see Carroll v. United States, 267 U. S. 132 , 267 U. S. 154 (1925), expects some interference with his or her liberty when seeking to cross the Nation's borders, but until today's decision, no one would ever have expected the same treatment while lawfully at work in the country's interior. Because the conditions which spawned such expedient solutions are in no sense the fault of these Page 466 U. S. 242 lawful workers, the Court, as the guardian of their constitutional rights, should attend to this problem with greater sensitivity before simply pronouncing the Fourth Amendment a dead letter in the context of immigration enforcement. The answer to these problems, I suggest, does not lie in abandoning our commitment to protecting the cherished rights secured by the Fourth Amendment, but rather may be found by reexamining our immigration policy. I dissent. [ Footnote 3/1 ] The enforcement activities of the INS are divided between "border patrol" operations conducted along the border and its functional equivalents and "area control" operations conducted in the interior of the United States. The INS's area control operations are, in turn, divided into traffic control operations (such as maintaining fixed checkpoints on major highways) and factory surveys of the kind at issue in this case. [ Footnote 3/2 ] It seems to me that the Court correctly finds that there was no single continuing seizure of the entire workforce from the moment that the INS agents first secured the factory exits until the completion of the survey. I join the Court's judgment in this respect, because it is apparent that, in all three factory surveys under review, most of the employees were generally free while the survey was being conducted to continue working without interruption and to move about the workplace. Having said that, however, I should emphasize that I find the evidence concerning the conduct of the factory-wide survey highly relevant to determining whether the individual respondents were seized. See infra at 466 U. S. 229 -231. [ Footnote 3/3 ] Although respondents insist that the circumstances of these interrogations were sufficiently coercive to constitute a "seizure" under the Fourth Amendment, they do not contend that these interviews were conducted under conditions that might be labeled "custodial"; they do not argue, therefore, that the questioning by INS agents posed any threat to the privilege against self-incrimination protected by the Fifth Amendment. Cf. Miranda v. Arizona, 384 U. S. 436 (1966). Accordingly, it is not necessary to consider whether INS agents should be required to warn respondents of the possible incriminating consequences of providing answers to the agents' questions. [ Footnote 3/4 ] As we explained in Brignoni-Ponce: "Large numbers of native-born and naturalized citizens have the physical characteristics identified with Mexican ancestry, and even in the border area a relatively small proportion of them are aliens." 422 U.S. at 422 U. S. 886 . Indeed, the proposition that INS agents, even those who have considerable experience in the field, will be able fairly and accurately to distinguish between Spanish-speaking persons of Mexican ancestry who are either native-born or naturalized citizens and Spanish-speaking persons of Mexican ancestry who are aliens is both implausible and subject to discriminatory abuse. The protection of fundamental constitutional rights should not depend upon such unconstrained administrative discretion, for, as we have often observed, "[w]hen . . . a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits." Brown v. Texas, 443 U. S. 47 , 443 U. S. 52 (1979). [ Footnote 3/5 ] Of course, as the Government points out, see Brief for Petitioners 35-38, § 287(a)(1) of the Immigration and Nationality Act provides that INS officers may, without a warrant, "interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States." 66 Stat. 233, 8 U.S.C. § 1357(a)(1). We have held, however, that broad statutory authority of this kind does not license the INS to employ unconstitutional enforcement methods. Almeida-Sanchez v. United States, 413 U.S. at 413 U. S. 272 -273. Because of that concern, the Court in United States v. Brignoni-Ponce, 422 U. S. 873 (1975), expressly left open the question whether INS officers "may stop persons reasonably believed to be aliens when there is no reason to believe they are illegally in the country." Id. at 422 U. S. 884 , n. 9. In my view, given the particular constitutional dangers posed by the INS's present method of carrying out factory surveys, the exercise of the authority granted by § 287(a)(1) must be limited to interrogations of only those persons reasonably believed to be in the country illegally. [ Footnote 3/6 ] Indeed, in Martinez-Fuerte, the Court repeatedly emphasized that, in contrast to the roving patrol stops, the fixed checkpoint operations are less likely to frighten motorists. This was so because "[m]otorists using these highways are not taken by surprise as they know . . . the location of the checkpoints and will not be stopped elsewhere," and because the operations "both appear to and actually involve less discretionary enforcement activity." 428 U.S. at 428 U. S. 559 . [ Footnote 3/7 ] See also United States Commission on Civil Rights, The Tarnished Golden Door: Civil Rights Issues in Immigration 90-91 (1980) (noting that "[t]estimony received by the Commission indicates that . . . INS area control operations do cause confusion and pandemonium among all factory employees, thereby disrupting a factory's operations and decreasing production"). [ Footnote 3/8 ] The enormous law enforcement problems resulting from this combination of practical difficulties in patrolling this border and the incentives for illegal aliens to secure employment have been noted by the Congress, see Hearings on Oversight of the Immigration and Naturalization Service before the Subcommittee on Immigration, Citizenship and International Law of the House Committee on the Judiciary, 95th Cong., 2d Sess. (1978); and also by a Select Commission on Immigration and Refugee Policy, see United States Immigration Policy and the National Interest, Final Report of the Select Commission on Immigration and Refugee Policy 46, 61-62, 72-73 (1981). [ Footnote 3/9 ] In this regard, the views expressed in JUSTICE WHITE's concurring opinion in United State v. Ortiz, 422 U. S. 891 , 422 U. S. 915 (1975), are particularly pertinent: "The entire [immigration enforcement] system, however, has been notably unsuccessful in deterring or stemming this heavy flow [of illegal immigration]; and its costs, including added burdens on the courts, have been substantial. Perhaps the Judiciary should not strain to accommodate the requirements of the Fourth Amendment to the needs of a system which, at best, can demonstrate only minimal effectiveness as long as it is lawful for business firms and others to employ aliens who are illegally in the country. This problem, which ordinary law enforcement has not been able to solve, essentially poses questions of national policy, and is chiefly the business of Congress and the Executive Branch, rather than the courts."

In Immigration and Naturalization Service v. Delgado, the US Supreme Court ruled that factory surveys conducted by the Immigration and Naturalization Service (INS) to question employees about their citizenship did not violate the Fourth Amendment rights of the employees. The Court held that the surveys did not result in the seizure of the entire workforce and that individual questioning by INS agents did not amount to a detention or seizure. The Court stated that unless the circumstances of an encounter with law enforcement are intimidating enough to make a reasonable person feel they are not free to leave, such questioning does not violate the Fourth Amendment.

Immigration & National Security

Fiallo v. Bell

https://supreme.justia.com/cases/federal/us/430/787/

U.S. Supreme Court Fiallo v. Bell, 430 U.S. 787 (1977) Fiallo v. Bell No. 75-6297 Argued December 7, 1976 Decided April 26, 1977 430 U.S. 787 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK Syllabus Sections 101(b)(1)(D) and 101(b)(2) of the Immigration and Nationality Act of 1952, which have the effect of excluding the relationship between an illegitimate child and his natural father (as opposed to his natural mother) from the special preference immigration status accorded by the Act to the "child" or "parent" of a United States citizen or lawful permanent resident, held not to be unconstitutional. Pp. 430 U. S. 792 -800. (a) This Court's cases "have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control," Shaughnessy v. Mezei, 345 U. S. 206 , 345 U. S. 210 ; see also Kleindienst v. Mandel, 408 U. S. 753 ; Harisiades v. Shaughnessy, 342 U. S. 580 , 342 U. S. 588 -589, and no factors exist in the instant case warranting a more searching judicial scrutiny than has generally been applied in immigration cases. Pp. 430 U. S. 792 -796. (b) In enacting the challenged statutory provisions, Congress was specifically concerned with clarifying the previous law so that the illegitimate child in relation to his mother would have the same status as a legitimate child, and the legislative history of those provisions reflects an intentional choice not to provide preferential immigration status by virtue of the relationship between an illegitimate child and his natural father. The distinction is one of many (such as those based on age) drawn by Congress pursuant to its determination to provide some -- but not all -- families with relief from various immigration restrictions that would otherwise hinder reunification of the family in this country. The decision as to where to draw the line is a policy question within Congress' exclusive province. Pp. 430 U. S. 797 -798. (c) Whether Congress' determination that preferential status is not warranted for illegitimate children and their natural fathers results from a perceived absence in most cases of close family ties or a concern with serious problems of proof that usually lurk in paternity determinations, it is not for the courts to probe and test the justifications for the legislative decision. Kleindienst v. Mandel, supra at 408 U. S. 770 . Pp. 430 U. S. 798 -799. 406 F. Supp. 162 , affirmed. Page 430 U. S. 788 POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. WHITE, J., filed a dissenting statement, post, p. 430 U. S. 816 . MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 430 U. S. 800 . MR. JUSTICE POWELL delivered the opinion of the Court. This case brings before us a constitutional challenge to §§ 101(b)(1)(D) and 101(b)(2) of the Immigration and Nationality Act of 1952 (Act), 66 Stat. 182, as amended, 8 U.S.C. §§ 1101 ()(1)(D) and 1101(b)(2). I The Act grants special preference immigration status to aliens who qualify as the "children" or "parents" of United States citizens or lawful permanent residents. Under § 101(b)(1), a "child" is defined as an unmarried person under 21 years of age who is a legitimate or legitimated child, a stepchild, an adopted child, or an illegitimate child seeking preference by virtue of his relationship with his natural mother. [ Footnote 1 ] Page 430 U. S. 789 The definition does not extend to an illegitimate child seeking preference by virtue of his relationship with his natural father. Moreover, under § 101(b)(2), a person qualifies as a "parent" for purposes of the Act solely on the basis of the person's relationship with a "child." As a result, the natural father of an illegitimate child who is either a United States citizen or permanent resident alien is not entitled to preferential treatment as a "parent." The special preference immigration status provided for those who satisfy the statutory "parent-child" relationship depends on whether the immigrant's relative is a United States citizen or permanent resident alien. A United States citizen is allowed the entry of his "parent" or "child" without regard to either an applicable numerical quota or the labor certification requirement. 8 U.S.C. §§ 1151(a), (b), 1182(a)(14). On the other hand, a United States permanent resident alien is allowed the entry of the "parent" or "child" subject to numerical limitations but without regard to the labor certification Page 430 U. S. 790 requirement. 8 U.S.C. § 1182(a)(14); see 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 2.40 n. 18 (rev. ed.1975). [ Footnote 2 ] Appellants are three sets of unwed natural fathers and their illegitimate offspring who sought, either as an alien father or an alien child, a special immigration preference by virtue of a relationship to a citizen or resident alien child or parent. In each instance, the applicant was informed that he was ineligible for an immigrant visa unless he qualified for admission under the general numerical limitations and, in the case of the alien parents, received the requisite labor certification. [ Footnote 3 ] Page 430 U. S. 791 Appellants filed this action in July, 1974, in the United States District Court for the Eastern District of New York challenging the constitutionality of §§ 101(b)(1) and 101(b)(2) of the Act under the First, Fifth, and Ninth Amendments. Appellants alleged that the statutory provisions (i) denied them equal protection by discriminating against natural fathers and their illegitimate children "on the basis of the father's marital status, the illegitimacy of the child and the sex of the parent without either compelling or rational justification"; (ii) denied them due process of law to the extent that there was established "an unwarranted conclusive presumption of the absence of strong psychological and economic ties between natural fathers and their children born out of wedlock and not legitimated;" and (iii) "seriously burden[ed] and infringe[d] upon the rights of natural fathers and their children, born out of wedlock and not legitimated, to mutual association, to privacy, to establish a home, to raise natural children and to be raised by the natural father." App. 11-12. Appellants sought to enjoin permanently enforcement of the challenged statutory provisions to the extent that the statute precluded them from qualifying for the special preference accorded other "parents" and "children." A three-judge District Court was convened to consider the constitutional issues. After noting that Congress' power to fashion rules for the admission of aliens was "exceptionally broad," the District Court held, with one judge dissenting, that the statutory provisions at issue were neither "wholly devoid of any conceivable rational purpose" nor "fundamentally aimed at achieving a goal unrelated to the regulation of immigration." Fiallo v. Levi, 406 F. Supp. 162 , 165, 166 Page 430 U. S. 792 (1975). The court therefore granted judgment for the Government and dismissed the action. We noted probable jurisdiction sub nom. Fiallo v. Levi, 426 U.S. 919 (1976), and, for the reasons set forth below, we affirm. II At the outset, it is important to underscore the limited scope of judicial inquiry into immigration legislation. This Court has repeatedly emphasized that "over no conceivable subject is the legislative power of Congress more complete than it is over" the admission of aliens. Oceanic Navigation Co. v. Stranahan, 214 U. S. 320 , 214 U. S. 339 (1909); accord, Kleindienst v. Mandel, 408 U. S. 753 , 408 U. S. 766 (1972). Our cases "have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Shaughnessy v. Mezei, 345 U. S. 206 , 345 U. S. 210 (1953); see, e.g., Harisiades v. Shaughnessy, 342 U. S. 580 (1952); Lem Moon Sing v. United States, 158 U. S. 538 (1895); Fon Yue Ting v. United States, 149 U. S. 698 (1893); The Chinese Exclusion Case, 130 U. S. 581 (1889). Our recent decisions have not departed from this long-established rule. Just last Term, for example, the Court had occasion to note that "the power over aliens is of a political character, and therefore subject only to narrow judicial review." Hampton v. Mow Sun Wong, 426 U. S. 88 , 426 U. S. 101 n. 21 (1976), citing Fong Yue Ting v. United States, supra at 149 U. S. 713 ; accord, Mathews v. Diaz, 426 U. S. 67 , 426 U. S. 81 -82 (1976). And we observed recently that, in the exercise of its broad power over immigration and naturalization, "Congress regularly makes rules that would be unacceptable if applied to citizens." Id. at 426 U. S. 80 . [ Footnote 4 ] Page 430 U. S. 793 Appellants apparently do not challenge the need for special judicial deference to congressional policy choices in the immigration context, [ Footnote 5 ] but instead suggest that a "unique coalescing of factors" makes the instant case sufficiently unlike prior immigration cases to warrant more searching judicial scrutiny. Brief for Appellants 52-55. Appellants first observe that, since the statutory provisions were designed to reunite families wherever possible, the purpose of the statute was to afford rights not to aliens, but to United States citizens and legal permanent residents. Appellants then rely on our border search decisions in Almeida-Sanchez v. United States, 413 U. S. 266 (1973), and United States v. Brignoni-Ponce, 422 U. S. 873 (1975), for the proposition that the courts must Page 430 U. S. 794 scrutinize congressional legislation in the immigration area to protect against violations of the rights of citizens. At issue in the border search cases, however, was the nature of the protections mandated by the Fourth Amendment with respect to Government procedures designed to stem the illegal entry of aliens. Nothing in the opinions in those cases suggests that Congress has anything but exceptionally broad power to determine which classes of aliens may lawfully enter the country. See 413 U.S. at 413 U. S. 272 ; 422 U.S. at 422 U. S. 883 -884. Appellants suggest a second distinguishing factor. They argue that none of the prior immigration cases of this Court involved "double-barreled" discrimination based on sex and illegitimacy, infringed upon the due process rights of citizens and legal permanent residents, or implicated "the fundamental constitutional interests of United States citizens and permanent residents in a familial relationship." Brief for Appellants 554; see id. at 118. But this Court has resolved similar challenges to immigration legislation based on other constitutional rights of citizens, and has rejected the suggestion that more searching judicial scrutiny is required. In Kleindienst v. Mandel, supra, for example, United States citizens challenged the power of the Attorney General to deny a visa to an alien who, as a proponent of "the economic, international, and governmental doctrine of World communism," was ineligible to receive a visa under 8 U.S.C. § 1182(a)(28)(D) absent a waiver by the Attorney General. The citizen-appellees in that case conceded that Congress could prohibit entry of all aliens falling into the class defined by § 1182(a)(28)(D). They contended, however, that the Attorney General's statutory discretion to approve a waiver was limited by the Constitution, and that their First Amendment rights were abridged by the denial of Mandel's request for a visa. The Court held that, "when the Executive exercises this [delegated] power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind Page 430 U. S. 795 the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant." 408 U.S. at 408 U. S. 770 . We can see no reason to review the broad congressional policy choice at issue here under a more exacting standard than was applied in Kleindienst v. Mandel, a First Amendment case. [ Footnote 6 ] Page 430 U. S. 796 Finally, appellants characterize our prior immigration cases as involving foreign policy matters and congressional choices to exclude or expel groups of aliens that were "specifically and clearly perceived to pose a grave threat to the national security," citing Harisiades v. Shaughnessy, 342 U. S. 580 (1952), "or to the general welfare of this country," citing Boutilier v. INS, 387 U. S. 118 (1967). Brief for Appellants 54. We find no indication in our prior cases that the scope of judicial review is a function of the nature of the policy choice at issue. To the contrary, "[s]ince decisions in these matters may implicate our relations with foreign powers, and since a wide variety of classifications must be defined in the light of changing political and economic circumstances, such decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary," and "[t]he reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization." Mathews v. Diaz, 426 U.S. at 426 U. S. 81 -82. See Harisiades v. Shaughnessy, supra, at 342 U. S. 588 -589. As Mr. Justice Frankfurter observed in his concurrence in Harisiades v. Shaughnessy: "The conditions of entry for every alien, the particular classes of aliens that shall be denied entry altogether, the basis for determining such classification, the right to terminate hospitality to aliens, the grounds on which such determination shall be based, have been recognized as matters solely for the responsibility of the Congress, and wholly outside the power of this Court to control." 342 U.S. at 342 U. S. 596 -597. Page 430 U. S. 797 III As originally enacted in 1952, § 101(b)(1) of the Act defined a "child" as an unmarried legitimate or legitimated child or stepchild under 21 years of age. The Board of Immigration Appeals and the Attorney General subsequently concluded that the failure of this definition to refer to illegitimate children rendered ineligible for preferential nonquota status both the illegitimate alien child of a citizen mother, Matter of A, 5 I. & N.Dec. 272, 283-284 (A.G.1953), and the alien mother of a citizen born out of wedlock, Matter of F, 7 I & N.Dec. 448 (B.I.A.1957). The Attorney General recommended that the matter be brought to the attention of Congress, Matter of A, supra at 284, and the Act was amended in 1957 to include what is now 8 U.S.C. § 1101(b)(1)(D). See n 1, supra. Congress was specifically concerned with the relationship between a child born out of wedlock and his or her natural mother, and the legislative history of the 197 amendment reflects an intentional choice not to provide preferential immigration status by virtue of the relationship between an illegitimate child and his or her natural father. [ Footnote 7 ] This distinction is just one of many drawn by Congress pursuant to its determination to provide some -- but not all -- families with relief from various immigration restrictions that would otherwise hinder reunification of the family in this country. In addition to the distinction at issue here, Congress Page 430 U. S. 798 has decided that children, whether legitimate or not, cannot qualify for preferential status if they are married or are over 21 years of age. 8 U.S.C. § 1101(b)(1). Legitimated children are ineligible for preferential status unless their legitimation occurred prior to their 18th birthday and at a time when they were in the legal custody of the legitimating parent or parents. § 1101(b)(1)(C). Adopted children are not entitled to preferential status unless they were adopted before the age of 14 and have thereafter lived in the custody of their adopting or adopted parents for at least two years, § 1101(b)(1)(E). And stepchildren cannot qualify unless they were under 18 at the time of the marriage creating the stepchild relationship. § 1101(b)(1)(b). With respect to each of these legislative policy distinctions, it could be argued that the line should have been drawn at a different point and that the statutory definitions deny preferential status to parents and children who share strong family ties. Cf. Mathews v. Diaz, supra at 426 U. S. 83 -84. But it is clear from our cases, see 430 U. S. supra, that these are policy questions entrusted exclusively to the political branches of our Government, and we have no judicial authority to substitute our political Judgment for that of the Congress. Appellants suggest that the distinction drawn in § 101(b)(1)(D) is unconstitutional under any standard of review, since it infringes upon the constitutional rights of citizens and legal permanent residents without furthering legitimate governmental interests. Appellants note in this regard that the statute makes it more difficult for illegitimate children and their natural fathers to be reunited in this country than for legitimate or legitimated children and their parents, or for illegitimate children and their natural mothers. And appellants also note that the statute fails to establish a procedure under which illegitimate children and their natural fathers could prove the existence and strength of their family relationship. Those are admittedly the consequences of the Page 430 U. S. 799 congressional decision not to accord preferential status to this particular class of aliens, but the decision nonetheless remains one "solely for the responsibility of the Congress, and wholly outside the power of this Court to control." Harisiades v. Shaughnessy, 342 U.S. at 342 U. S. 597 (Frankfurter, J., concurring). Congress obviously has determined that preferential status is not warranted for illegitimate children and their natural fathers, perhaps because of a perceived absence in most cases of close family ties, as well as a concern with the serious problems of proof that usually lurk in paternity determinations. [ Footnote 8 ] See Trimble v. Gordon, ante at 430 U. S. 771 . In any event, it is not the judicial role in cases of this sort to probe and test the justifications for the legislative decision. [ Footnote 9 ] Kleindienst v. Mandel, 408 U.S. at 408 U. S. 770 . IV We hold that §§ 101(b)(1)(D) and 101(b)(2) of the Page 430 U. S. 800 Immigration and Nationality Act of 1952 are not unconstitutional by virtue of the exclusion of the relationship between an illegitimate child and his natural father from the preferences accorded by the Act to the "child" or "parent" of a United States citizen or lawful permanent resident. Affirmed. [ Footnote 1 ] Section 101(b)(1), as set forth in 8 U.S.C. § 1101(b), provides: "(1) The term 'child' means an unmarried person under twenty-one years of age who is -- " "(A) a legitimate child; or" "(B) a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred; or" "(C) a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation." "(D) an illegitimate child, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother;" "(E) a child adopted while under the age of fourteen years if the child has thereafter been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: Provided, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter." "(F) a child, under the age of fourteen at the time a petition is filed in his behalf to accord a classification as an immediate relative under section 1151(b) of this title [§ 201(b)], who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care which will be provided the child if admitted to the United States and who has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a United States citizen and his spouse who personally saw and observed the child prior to or during the adoption proceedings; or who is coming to the United States for adoption by a United States citizen and spouse who have complied with the preadoption requirements, if any, of the child's proposed residence: Provided, That no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter." [ Footnote 2 ] Effective January 1, 1977, the parent-child relationship no longer triggers an exemption from the labor certification requirement. Immigration and Nationality Act Amendments of 1976, § 5, 90 Stat. 2705. The 1976 amendments contain a saving clause, § 9, however, which provides that the amendments "shall not operate to affect the entitlement to immigrant status or the order of consideration for issuance of an immigrant visa of an alien entitled to a preference status, under section 203(a) of the Immigration and Nationality Act, as in effect on the day before the effective date of this Act, on the basis of a petition filed with the Attorney General prior to such effective date." [ Footnote 3 ] Appellant Ramon Martin Fiallo, a United States citizen by birth, currently resides in the Dominican Republic with his natural father, appellant Ramon Fiallo-Sone, a citizen of that country. The father initiated procedures to obtain an immigrant visa as the "parent" of his illegitimate son, but the United States Consul for the Dominican Republic informed appellant Fiallo-Sone that he could not qualify for the preferential status accorded to "parents" unless he legitimated Ramon Fiallo. Appellant Cleophus Warner, a naturalized United States citizen, is the unwed father of appellant Serge Warner, who was born in 1960 in the French West Indies. In 1972, Cleophus Warner petitioned the Immigration and Naturalization Service to classify Serge as Warner's "child" for purposes of obtaining an immigrant visa, but the petition was denied on the ground that there was no evidence that Serge was Warner's legitimate or legitimated offspring. Appellants Trevor Wilson and Earl Wilson, permanent resident aliens, are the illegitimate children of appellant Arthur Wilson, a citizen of Jamaica. Following the death of their mother in 1974, Trevor and Earl sought to obtain an immigrant visa for their father. We are informed by the appellees that, although the application has not yet been rejected, denial is certain, since the children are neither legitimate nor legitimated offspring of Arthur Wilson. [ Footnote 4 ] Writing for the Court in Galvan v. Press, 347 U. S. 522 (1954), Mr. Justice Frankfurter noted that "much could be said for the view" that due process places some limitations on congressional power in the immigration area, "were we writing on a clean slate." "But the slate is not clean. As to the extent of the power of Congress under review, there is not merely 'a page of history' . . . , but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. . . . But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government. . . ." "We are not prepared to deem ourselves wiser or more sensitive to human rights than our predecessors, especially those who have been most zealous in protecting civil liberties under the Constitution, and must therefore, under our constitutional system, recognize congressional power in dealing with aliens. . . ." Id. at 347 U. S. 530 -532. We are no more inclined to reconsider this line of cases today than we were five years ago when we decided Kleindienst v. Mandel, 408 U. S. 753 , 408 U. S. 767 (1972). [ Footnote 5 ] The appellees argue that the challenged sections of the Act, embodying as they do "a substantive policy regulating the admission of aliens into the United States, [are] not an appropriate subject for judicial review." Brief for Appellees 15, 19-24. Our cases reflect acceptance of a limited judicial responsibility under the Constitution even with respect to the power of Congress to regulate the admission and exclusion of aliens, and there is no occasion to consider in this case whether there may be actions of the Congress with respect to aliens that are so essentially political in character as to be nonjusticiable. [ Footnote 6 ] The thoughtful dissenting opinion of our Brother MARSHALL would be persuasive if its basic premise were accepted. The dissent is grounded on the assumption that the relevant portions of the Act grant a "fundamental right" to American citizens, a right "given only to the citizen," and not to the putative immigrant. Post at 430 U. S. 806 , 430 U. S. 808 , 430 U. S. 816 . The assumption is facially plausible, in that the families of putative immigrants certainly have an interest in their admission. But the fallacy of the assumption is rooted deeply in fundamental principles of sovereignty. We are dealing here with an exercise of the Nation's sovereign power to admit or exclude foreigners in accordance with perceived national interests. Although few, if any, countries have been as generous as the United States in extending the privilege to immigrate, or in providing sanctuary to the oppressed, limits and classifications as to who shall be admitted are traditional and necessary elements of legislation in this area. It is true that the legislative history of the provision at issue here establishes that congressional concern was directed at "the problem of keeping families of United States citizens and immigrants united." H.R.Rep. No. 1199, 85th Cong., 1st Sess., 7 (1957). See also H.R.Rep. No. 1365, 82d Cong., 2d Sess., 29 (1952) (statute implements "the underlying intention of our immigration laws regarding the preservation of the family unit"). To accommodate this goal, Congress has accorded a special "preference status" to certain aliens who share relationships with citizens or permanent resident aliens. But there are widely varying relationships and degrees of kinship, and it is appropriate for Congress to consider not only the nature of these relationships, but also problems of identification, administration, and the potential for fraud. In the inevitable process of "line drawing," Congress has determined that certain classes of aliens are more likely than others to satisfy national objectives without undue cost, and it has granted preferential status only to those classes. As Mr. Justice Frankfurter wrote years ago, the formulation of these "[p]olicies pertaining to the entry of aliens . . . is entrusted exclusively to Congress." Galvan v. Press, 347 U.S. at 347 U. S. 531 . This is not to say, as we make clear in n 5, supra, that the Government's power in this area is never subject to judicial review. But our cases do make clear that, despite the impact of these classifications on the interests of those already within our borders, congressional determinations such as this one are subject only to limited judicial review. [ Footnote 7 ] S.Rep. No. 1057, 85th Cong., 1st Sess., 4 (1957) (the amendment was designed "to clarify the law so that the illegitimate child would, in relation to his mother, enjoy the same status under the immigration laws as a legitimate child") (emphasis added); H.R.Rep. No. 1199, 85th Cong., 1st Sess., 7 (1957) (the amendment was designed "to alleviate hardship and provide for a fair and humanitarian adjudication of immigration cases involving children born out of wedlock and the mothers of such children ") (emphasis added); 103 Cong.Rec. 14659 (1957) (remarks of Sen. Kennedy) (the amendment "would clarify the law so that an illegitimate child would, in relation to his mother, enjoy the same status under immigration laws as a legitimate child") (emphasis added). [ Footnote 8 ] The inherent difficulty of determining the paternity of an illegitimate child is compounded when it depends upon events that may have occurred in foreign countries many years earlier. Congress may well have given substantial weight, in adopting the classification here challenged, to these problems of proof and the potential for fraudulent visa applications that would have resulted from a more generous drawing of the line. Moreover, our cases clearly indicate that legislative distinctions in the immigration area need not be as " carefully tuned to alternative considerations,'" Trimble v. Gordon, ante at 430 U. S. 772 (quoting Mathews v. Lucas, 427 U. S. 495 , 427 U. S. 513 (1976)), as those in the domestic area. [ Footnote 9 ] Appellants insist that the statutory distinction is based on an overbroad and outdated stereotype concerning the relationship of unwed fathers and their illegitimate children, and that existing administrative procedures, which had been developed to deal with the problems of proving paternity, maternity, and legitimation with respect to statutorily recognized "parents" and "children," could easily handle the problems of proof involved in determining the paternity of an illegitimate child. We simply note that this argument should be addressed to the Congress, rather than the courts. Indeed, in that regard, it is worth noting that a bill introduced in the 94th Congress would have eliminated the challenged distinction. H.R. 10993, 94th Cong., 1st Sess. (1975). MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting. Until today, I thought it clear that, when Congress grants benefits to some citizens, but not to others, it is our duty to insure that the decision comports with Fifth Amendment principles of due process and equal protection. Today, however, the Court appears to hold that discrimination among citizens, however invidious and irrational, must be tolerated if it occurs in the context of the immigration laws. Since I cannot agree that Congress has license to deny fundamental rights to citizens according to the most disfavored criteria simply because the Immigration and Nationality Act is involved, I dissent. I The Immigration and Nationality Act of 1952 (INA), 8 U.S.C. § 1101 et seq., establishes the terms and conditions for entry into the United States. Among its various conditions, the Act requires that an alien seeking to enter the United States as a legal permanent resident must come within a restrictive numerical quota and must satisfy certain labor certification requirements. INA §§ 201, 202, 212(a)(14), 8 U.S.C. §§ 1151, 1152, 1182(a)(14) (1976 ed.), as amended by the Immigration and Nationality Act Amendments of 1976, 90 Stat. 2703 (hereinafter 1976 Amendments). In recognition of the fact that such requirements frequently separate families, Congress has provided that American citizens may petition Page 430 U. S. 801 to have the requirements waived for their immediate families -- spouse, parents, children. INA §§ 201(a), (b), 212(a)(14), 8 U.S.C. §§ 1151(a), (b), 1182(a)(14). [ Footnote 2/1 ] Page 430 U. S. 802 The privilege is accorded only to those parents and children who satisfy the statute's definitions. Under INA § 101(b)(1), a "child" is defined as an unmarried person under 21 years of age who is a legitimate or legitimated child, a stepchild, an adopted child, or an illegitimate child by whom or on whose behalf a privilege is sought by virtue of the relationship of the child to its biological mother. 8 U.S.C. § 1101(b)(1). [ Footnote 2/2 ] A "parent" is defined under INA § 101(b)(2) solely Page 430 U. S. 803 on the basis of the individual's relationship with a "child" as defined by § 101(b)(1). 8 U.S.C. § 1101(b)(2). [ Footnote 2/3 ] The definitions cover virtually all parent-child relationships except that of biological father-illegitimate child. Thus, while all American citizens are entitled to bring in their alien children without regard to either the numerical quota or the labor certification requirement, fathers are denied this privilege with respect to their illegitimate children. Similarly, all citizens are allowed to have their parents enter without regard to the labor certification requirement, and, if the citizen is over 21, also without regard to the quota. Illegitimate children, however, are denied such preferences for their fathers. The unfortunate consequences of these omissions are graphically illustrated by the case of appellant Cleophus Warner. [ Footnote 2/4 ] Page 430 U. S. 804 Mr. Warner is a naturalized citizen of the United States who, pursuant to 8 U.S.C. § 1154, [ Footnote 2/5 ] petitioned the Attorney General for an immigrant visa for his illegitimate son Serge, a citizen of the French West Indies. Despite the fact that Mr. Warner acknowledged his paternity and registered as Serge's father shortly after his birth, has his name on Serge's birth certificate, and has supported and maintained Serge since birth, the special dispensation from the quota and labor certification requirements was denied because Serge was not a "child" under the statute. It matters not that, as the Government concedes, Tr. of Oral Arg. 226, Serge's mother has abandoned Serge to his father and has, by marrying another man, apparently rendered impossible, under French West Indies law, Mr. Warner's ever legitimating Serge. Mr. Warner is simply not Serge's "parent." II The Government contends that this legislation is not subject to judicial review. Pointing to the fact that aliens have no constitutional right to immigrate to the United States and to a long line of cases that recognize that policies pertaining to Page 430 U. S. 805 the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government, the Government concludes that "[t]he congressional decision whether or to whom to extend such a valuable privilege . . . is not a subject of judicial concern." Brief for Appellees 22. The Court rightly rejects this expansive claim and recognizes that "[o]ur cases reflect acceptance of a limited judicial responsibility . . . even with respect to the power of Congress to regulate the admission and exclusion of aliens." Ante at 430 U. S. 793 n. 5. It points out, however, that the scrutiny is circumscribed. Congress has "broad power to determine which classes of aliens may lawfully enter the country" and its political judgments warrant deference. Ante at 430 U. S. 794 -796. I wholeheartedly agree with the Court's rejection of the Government's claim of unreviewable discretion. Indeed, as I observed in Kleindienst v. Mandel, 408 U. S. 753 , 408 U. S. 781 (1972) (dissenting opinion), the old immigration cases that reflect an absolute "hands-off" approach by this Court "are not the strongest precedents in the United States Reports." I am pleased to see the Court reveal once again a "reluctance to rely on them completely." Ibid. I also have no quarrel with the principle that the essentially political judgments by Congress as to which foreigners may enter and which may not deserve deference from the judiciary. My disagreement with the Court arises from its application of the principle in this case. The review the majority purports to require turns out to be completely "toothless." Cf. Trimble v. Gordon, ante at 430 U. S. 767 . After observing the effects of the denial of preferential status to appellants, the majority concludes: "[B]ut the decision nonetheless remains one solely for the responsibility of the Congress and wholly outside the power of this Court to control.'" Ante at 799. Such "review" reflects more than due deference; it is abdication. [ Footnote 2/6 ] Page 430 U. S. 806 Assuming, arguendo, that such deference might be appropriate in some situations -- a supposition I find difficult to accept -- it is particularly inappropriate in this case. This case, unlike most immigration cases that come before the Court, directly involves the rights of citizens, not aliens. "[C]oncerned with the problem of keeping families of United States citizens and immigrants united," H.R.Rep. No. 1199, 85th Cong., 1st Sess., 7 (1957), Congress extended to American citizens the right to choose to be reunited in the United States with their immediate families. The focus was on citizens and their need for relief from the hardships occasioned by the immigration laws. The right to seek such relief was given only to the citizen, not the alien. 8 U.S.C. § 1154. [ Footnote 2/7 ] If the citizen does not petition the Attorney General for the special "immediate relative" status for his parent or child, the alien, Page 430 U. S. 807 despite his relationship, can receive no preference. 8 U.S.C. § 1153(d). It is irrelevant that aliens have no constitutional right to immigrate and that Americans have no constitutional right to compel the admission of their families. The essential fact here is that Congress did choose to extend such privileges to American citizens, but then denied them to a small class of citizens. When Congress draws such lines among citizens, the Constitution requires that the decision comport with Fifth Amendment principles of equal protection and due process. The simple fact that the discrimination is set in immigration legislation cannot insulate from scrutiny the invidious abridgment of citizens' fundamental interests. The majority responds that, in Kleindienst v. Mandel, supra, the Court recognized that First Amendment rights of citizens were "implicated," but refused to engage in the close scrutiny usually required in First Amendment cases. Therefore, it argues, no more exacting standard is required here. In that case, Mandel, a Belgian "revolutionary Marxist," could visit this country only if the Attorney General waived the statutory prohibition of visas to "[a]liens who advocate the economic, international, and governmental doctrines of World communism." 8 U.S.C. § 1182(a)(28)(D). The Attorney General denied the waiver, and suit was brought by Mandel and several citizens who claimed their First Amendment right to hear Mandel in person was abridged by the denial. Rejecting the Government's contention that it had "unfettered discretion, and any reason or no reason [for denying a waiver] may be given," the Court upheld the denial only after finding that it was based on a "legitimate and bona fide" reason -- Mandel's abuses of visa privileges on a prior visit. 408 U.S. at 408 U. S. 769 . At the same time, however, the Court chose not to scrutinize more closely and accepted the reason without weighing against it the claimed First Amendment interest. It feared becoming embroiled in the "dangerous and undesirable" task of considering, Page 430 U. S. 808 every time an alien was denied a waiver, such factors as the projected number of people wishing to speak with the alien and the probity of his ideas. Id. at 408 U. S. 769 . Whatever the merits of the Court's fears in Mandel, cf. id. at 408 U. S. 774 (MARSHALL, J., dissenting), the present case is clearly distinguishable in two essential respects. First, in Mandel, Congress had not focused on citizens and their need for relief. Rather, the governmental action was concerned with keeping out "undesirables." The impact on the citizens' right to hear was an incidental and unavoidable consequence of that political judgment. The present case presents a qualitatively different situation. Here, the purpose of the legislation is to accord rights not to aliens, but to United States citizens. In so doing, Congress deliberately chose, for reasons unrelated to foreign policy concerns or threats to national security, to deny those rights to a class of citizens traditionally subject to discrimination. [ Footnote 2/8 ] Second, in Mandel, unlike the present case, appellees conceded the ability of Congress to enact legislation broadly prohibiting the entry of all aliens with Mandel's beliefs. [ Footnote 2/9 ] Their concern was directed instead to the exercise of the discretion granted the Attorney General to waive the prohibition. In the present case, by contrast, we are asked to engage in the traditional task of reviewing the validity Page 430 U. S. 809 of a general Act of Congress challenged as unconstitutional on its face. Totally absent therefore is the specter of involving the courts in second-guessing countless individual determinations by the Attorney General as to the merits of a particular alien's entrance. III A Once it is established that this discrimination among citizens cannot escape traditional constitutional scrutiny simply because it occurs in the context of immigration legislation, the result is virtually foreordained. One can hardly imagine a more vulnerable statute. The class of citizens denied the special privilege of reunification in this country is defined on the basis of two traditionally disfavored classifications -- gender and legitimacy. Fathers cannot obtain preferred status for their illegitimate children; mothers can. Conversely, every child except the illegitimate -- legitimate, legitimated, step-, adopted -- can obtain preferred status for his or her alien father. The Court has little tolerance for either form of discrimination. We require that gender-based classifications "serve important governmental objectives, and . . . be substantially related to achievement of those objectives." Califano v. Webster, ante at 430 U. S. 317 ; Califano v. Goldfarb, ante at 430 U. S. 210 -211; Craig v. Boren, 429 U. S. 190 , 429 U. S. 197 (1976); see also Weinberger v. Wiesenfeld, 420 U. S. 636 (1975); Stanton v Stanton, 421 U. S. 7 (1975); Taylor v. Louisiana, 419 U. S. 522 (1975); Frontiero v. Richardson, 411 U. S. 677 (1973); Reed v. Reed, 404 U. S. 71 (1971). We are similarly hostile to legislation excluding illegitimates from governmental beneficence, finding it "illogical and unjust" to deprive a child "simply because its natural father has not married its mother." Gomez v. Perez, 409 U. S. 535 , 409 U. S. 538 (1973). See also Trimble v. Gordon, ante p. 430 U. S. 762 ; Jimenez v. Weinberger, 417 U. S. 628 (1974); Beaty v. Weinberger, 478 F.2d 300 (CA5 1973), summarily aff'd, 418 U.S. 901 (1974); Page 430 U. S. 810 New Jersey Welfare Rights Org. v. Cahill, 411 U. S. 619 (1973); Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972); Davis v. Richardson, 342 F. Supp. 58 (Conn., 1972), summarily aff'd, 409 U.S. 1069 (1972); Griffin v. Richardson, 346 F. Supp. 1226 (Md.), summarily aff'd, 409 U.S. 1069 (1972); Glona v. American Guarantee & Liability Ins Co., 391 U. S. 73 (1968); Levy v. Louisiana, 391 U. S. 68 (1968); cf. Mathews v. Lucas, 427 U. S. 495 (1976). But see Labine v. Vincent, 401 U. S. 532 (1971). But it is not simply the invidious classifications that make the statute so vulnerable to constitutional attack. In addition, the statute interferes with the fundamental "freedom of personal choice in matters of marriage and family life." Cleveland Board of Education v. LaFleur, 414 U. S. 632 , 414 U. S. 639 -640 (1974); see also Roe v. Wade, 410 U. S. 113 , 410 U. S. 152 =153 (1973); Wisconsin v. Yoder, 406 U. S. 205 , 406 U. S. 231 -233 (1972); Stanley v. Illinois, 405 U. S. 645 , 405 U. S. 651 (1972); Ginsberg v. New York, 390 U. S. 629 , 390 U. S. 639 (1968); Griswold v. Connecticut, 381 U. S. 479 (1965); id. at 381 U. S. 495 -496 (Goldberg, J., concurring); id. at 381 U. S. 502 -503 (WHITE J., concurring); Poe v. Ullman, 367 U. S. 497 , 367 U. S. 542 -544, 367 U. S. 549 -553 (Harlan, J., dissenting). The right to live together as a family belongs to both the child who seeks to bring in his or her father and the father who seeks the entrance of his child. "It is no less important for a child to be cared for by its . . . parent when that parent is male, rather than female. And a father, no less than a mother, has a constitutionally protected right to the 'companionship, care, custody, and management' of 'the children he has sired and raised . . .' Stanley v. Illinois, 405 U. S. 645 , 405 U. S. 651 (1972)." Weinberger v. Wiesenfeld, supra at 420 U. S. 652 . In view of the legislation's denial of this right to these classes, it is clear that, whatever the verbal formula, the Government bears a substantial burden to justify the statute. Page 430 U. S. 811 B There is no dispute that the purpose of these special preference provisions is to reunify families separated by the immigration laws. As Congress itself declared, "[t]he legislative history of the Immigration and Nationality Act clearly indicates that the Congress intended [in these provisions] to provide for a liberal treatment of children, and was concerned with the problem of keeping families of United States citizens and immigrants united." H.R.Rep. No. 1199, 85th Cong., 1st Sess., 7 (1957). It is also clear that, when Congress extended the privilege to cover the illegitimate child-mother relationship in 1957, it did so to alleviate hardships it found in several cases denying preferential status to illegitimate children and their mothers. Id. at 7-8. Accord, S.Rep. No. 1057, 86th Cong., 1st Sess., 4 (1957). The legislative history, however, gives no indication of why these privileges were absolutely denied illegitimate children and their fathers. [ Footnote 2/10 ] The Government suggests that Congress may have believed that "such persons are unlikely to have maintained a close personal relationship with their offspring." Brief for Appellees 17. If so, Congress' chosen shorthand for "closeness" is obviously overinclusive. No one can dispute that there are legitimate, legitimated, step-, and adoptive parent-child relationships and mother-illegitimate child relationships that are not close, and yet are accorded the preferential status. Indeed, the most dramatic illustration of the overinclusiveness is the fact that, while Mr. Warner can never be deemed a "parent" of Serge, nevertheless, if he should marry, his wife could qualify as a step-parent, entitled to obtain for Serge the preferential status that Mr. Warner cannot Page 430 U. S. 812 obtain. Andrade v. Esperdy, 270 F. Supp. 516 (SDNY 1967); Nation v. Esperdy, 239 F. Supp. 531 (SDNY 1965). [ Footnote 2/11 ] Similarly, a man who, in an adulterous affair, fathers a child outside his marriage cannot be the "parent" of that child, but his wife may petition as step-parent. Matter of Stultz, 15 I. & N.Dec. (1975). That the statute is underinclusive is also undisputed. Brief for Appellees 17; Tr. of Oral Arg. 21. Indeed, the Government could not dispute it in view of the close relationships exhibited in appellants' cases, recognized in our previous cases, see, e.g., Trimble v. Gordon, ante p. 430 U. S. 762 ; Weber v. Aetna Casualty & Surety Co., supra at 406 U. S. 169 ; Stanley v. Illinois, supra, and established in numerous studies. [ Footnote 2/12 ] The Government suggests that Congress may have decided to accept the inaccurate classifications of this statute because they considered a case-by-case assessment of closeness and Page 430 U. S. 813 paternity not worth the administrative costs. This attempted justification is plainly inadequate. In Stanley v. Illinois, supra, we expressed our low regard for the use of "administrative convenience" as the rationale for interfering with a father's right to care for his illegitimate child. "Procedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand." 405 U.S. at 405 U. S. 656 -657. See also Glona v. American Guarantee & Liability Ins. Co., supra. This Court has been equally intolerant of the rationale when it is used to deny rights to the illegitimate child. While we are sensitive to " the lurking problems with respect to proof of paternity,'" Trimble v Gordon, ante at 430 U. S. 771 , quoting Gomez v. Perez, 409 U. S. 535 , 409 U. S. 538 (1973), we are careful not to allow them to be "`made into an impenetrable barrier that works to shield otherwise invidious discrimination.'" Trimble, ante at 430 U. S. 771 . We require, at a minimum, that the "`statute [be] carefully tuned to alternative considerations,'" ante at 430 U. S. 772 , quoting Mathews v. Lucas, 427 U.S. at 427 U. S. 513 , and not exclude all illegitimates simply because some situations involve difficulties of proof. Ibid. Given such hostility to the administrative convenience argument when invidious classifications and fundamental rights are involved, it is apparent that the rationale is inadequate in the present case. As I observed earlier, since Congress gave no indication that administrative costs were its concern, we should scrutinize the hypothesis closely. The likelihood of such a rationale is diminished considerably by the comprehensive and elaborate administrative procedures Page 430 U. S. 814 already established and employed by the INS in passing on claims of the existence of a parent-child relationship. All petitions are handled on a case-by-case basis, with the petitioner bearing the burden of proof. Moreover, the INS is no stranger to cases requiring proof of paternity. When, for example, a citizen stepmother petitions for the entrance of her husband's illegitimate child, she must necessarily prove that her husband is the child's father. [ Footnote 2/13 ] Indeed, it is ironic that, if Mr. Warner marries and his wife petitions for Serge, her proof will, in fact, be one step more complex than his would be -- not only must she prove his paternity, but she must also prove their marriage. Nevertheless, she would be entitled to an opportunity to prove those facts; he is not. Nor is a fear of involvement with foreign laws and records a persuasive explanation of the omission. In administering the Act with respect to legitimated children, for example, the critical issue is whether the steps undertaken are adequate under local law to render the child legitimate, and the INS has become expert in such matters. [ Footnote 2/14 ] I note, in this connection, Page 430 U. S. 815 that, where a child was born in a country in which all children are legitimate, [ Footnote 2/15 ] proof of paternity is the critical issue, and the proof problems are identical to those involved with an illegitimate child. Given the existence of these procedures and expertise, it is difficult indeed to give much weight to the hypothesized administrative convenience rationale. Moreover, as noted previously, this Court will not allow concerns with proof to justify "an impenetrable barrier that works to shield otherwise invidious discrimination." Gomez, supra at 409 U. S. 538 . As the facts of this case conclusively demonstrate, Congress has "failed to consider the possibility of a middle ground between the extremes of complete exclusion and case-by-case determination of paternity." Trimble, ante at 430 U. S. 770 -771. Mr. Warner is a classic example of someone who can readily prove both paternity and closeness. Appellees concede this. Tr. of Oral Arg. 21-22. The fact that he is denied the opportunity demonstrates beyond peradventure that Congress has failed to " carefully tun[e] [the statute] to alternative considerations.'" Trimble, ante at 430 U. S. 772 , quoting Mathews v. Lucas, 427 U.S. at 427 U. S. 513 . That failure is fatal to the statute. Trimble, ante at 430 U. S. 772 -773. [ Footnote 2/16 ] Page 430 U. S. 816 IV When Congress grants a fundamental right to all but an invidiously selected class of citizens, and it is abundantly clear that such discrimination would be intolerable in any context but immigration, it is our duty to strike the legislation down. Because the Court condones the invidious discrimination in this case simply because it is embedded in the immigration laws, I must dissent. MR JUSTICE WHITE also dissents, substantially for the reasons stated by MR. JUSTICE MARSHALL in his dissenting opinion. [ Footnote 2/1 ] Title 8 U.S.C. §§ 1151(a) and (b) provide: "§ 1151. Numerical limitations on total lawful admissions." "(a) Quarterly and yearly limitations." "Exclusive of special immigrants defined in section 1101(a)(27) of this title, and of the immediate relatives of United States citizens specified in subsection (b) of this section, the number of aliens who may be issued immigrant visas or who may otherwise acquire the status of an alien lawfully admitted to the United States for permanent residence, or who may, pursuant to section 1153(a)(7) of this title enter conditionally, (i) shall not in any of the first three quarters of any fiscal year exceed a total of 45,000 and (ii) shall not in any fiscal year exceed a total of 170,000." "(b) Immediate relatives defined." " The 'immediate relatives' referred to in subsection (a) of this section shall mean the children, spouses, and parents of a citizen of the United States: Provided, That in the case of parents, such citizen must be at least twenty-one years of age. The immediate relatives specified in this subsection who are otherwise qualified for admission as immigrants shall be admitted as such, without regard to the numerical limitations in this chapter." (Emphasis added.) The changes made by the 1976 Amendments were not material to this case. Title 8 U.S.C. § 1182(a)(14) provides: "§ 1182. Excludable aliens." "(a) General classes." "Except as otherwise provided in this chapter, the following class of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:" " * * * *" "(14) Aliens seeking to enter the United States for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, and (b) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed. The exclusion of aliens under this paragraph shall apply to special immigrants defined in section 1101(a)(27)(A) of this title ( other than the parents, spouses, or children of United States citizens or of aliens lawfully admitted to the United States for permanent residence ), to preference immigrant aliens described in sections 1153(a)(3) and 1153(a)(6) of this title, and to nonpreference immigrant aliens described in section 1153(a)(8) of this title." (Emphasis added.) For the significance of the 1976 Amendments on this section, see 430 U.S. 787 fn2/4|>n. 4, infra. [ Footnote 2/2 ] Title 8 U.S.C. § 1101(b)(1) provides: "(1) The term 'child' means an unmarried person under twenty-one years of age who is -- " "(A) a legitimate child; or" "(B) a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred; or" "(C) a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation" "(D) an illegitimate child, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother;" "(E) a child adopted while under the age of fourteen years if the child has thereafter been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: Provided, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter." "(F) a child, under the age of fourteen at the time a petition is filed in his behalf to accord a classification as an immediate relative under section 1151(b) of this title, who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care which will be provided the child if admitted to the United States and who has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a United States citizen and his spouse who personally saw and observed the child prior to or during the adoption proceedings; or who is coming to the United States for adoption by a United States citizen and spouse who have complied with the preadoption requirements, if any, of the child's proposed residence: Provided, That no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter." [ Footnote 2/3 ] Title 8 U.S.C. § 1101(b)(2) provides: "The terms 'parent,' 'father,' or 'mother' mean a parent, father, or mother only where the relationship exists by reason of any of the circumstances set forth in subdivision (1) of this subsection." [ Footnote 2/4 ] Instituting this suit with Warner were Ramon Fiallo, and Trevor and Earl Wilson. Both Fiallo, a five-year-old American citizen, and the Wilsons, teen-aged permanent resident aliens, sought the waiver of the labor certification requirements for their respective fathers. Although the 1976 Amendments removed the exemptions from the labor certification requirement for the parent-child relationship, nevertheless, their cases are not moot. There is a saving clause providing: "The amendments made by this Act shall not operate to affect the entitlement to immigrant status or the order of consideration for issuance of an immigrant visa of an alien entitled to a preference status, under section 203(a) of the Immigration and Nationality Act, as in effect on the day before the effective date of this Act, on the basis of a petition filed with the Attorney General prior to such effective date." 1976 Amendments § 9. Since these situations cannot recur, however, I will focus on Mr. Warner, whose plight, unfortunately, can be repeated. [ Footnote 2/5 ] The citizen seeking "immediate relative" status for his or her spouse, parent, or child must file a so-called Form I-130 petition with the Attorney General. See text accompanying 430 U.S. 787 fn2/7|>n. 7, infra for a description of the procedure. [ Footnote 2/6 ] The majority does not even engage in the modest degree of scrutiny required by Kleindienst v. Mandel, 408 U. S. 753 (1972). See discussion infra at 430 U. S. 807 -808. That failure, I submit, is due to the fact that the statute could not even pass that standard of review. See 430 U. S. infra. [ Footnote 2/7 ] Under 8 U.S.C. § 1154(a), "[a]ny citizen of the United States claiming that an alien is entitled to . . . an immediate relative status under section 1151(b) of this title . . . may file a petition with the Attorney General for such classification." (Emphasis added.) Title 8 U.S.C. § 1154(b) prescribes the procedure after a petition is filed: "(b) Investigation; consultation; approval; authorization to grant preference status" "After an investigation of the facts in each case, and after consultation with the Secretary of Labor with respect to petitions to accord a status under section 1153(a)(3) or 1153(a)(6) of this title, the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made is an immediate relative specified in section 1151(b) of this title, or is eligible for a preference status under section 1153(a) of this title, approve the petition and forward one copy thereof to the Department of State. The Secretary of State shall then authorize the consular officer concerned to grant the preference status." Title 8 U.S.C. § 1153(d) precludes a consular officer from granting preferential status as an "immediate relative" "until he has been authorized to do so as provided by section 1154." [ Footnote 2/8 ] Indeed, the majority concedes, ante at 430 U. S. 795 n. 6, that, if it is true that Congress has granted a right to citizens and not to aliens, my position is "persuasive." It then attempts to show that the premise is inaccurate. The effort, however, is doomed. There is no way to avoid the facts that, as the majority agrees, Congress was concerned with the problem of separating United States citizens from their families, and that, as the majority ignores, it specifically gave to citizens the right to seek special dispensation from the immigration restrictions for their immediate families. See discussion supra at 430 U. S. 806 -807. [ Footnote 2/9 ] The Court noted: "[Appellees] concede that Congress could enact a blanket prohibition against entry of all aliens falling into the class defined by §§ 212(a)(28)(D) and (G)(v), and that First Amendment rights could not override that decision." 408 U.S. at 408 U. S. 767 . But see id. at 408 U. S. 779 n. 4 (MARSHALL, J., dissenting). [ Footnote 2/10 ] This absence should alert us to the danger, ever-present in legislation denying rights along gender and legitimacy lines, that it was very likely "habit, rather than analysis or actual reflection," Califano v. Goldfarb, ante at 430 U. S. 222 (STEVENS, J., concurring), that led Congress to assume that only mothers are close to their illegitimate children. [ Footnote 2/11 ] The Immigration and Naturalization Service (INS) seeks to add a gloss in such cases requiring, in addition to the marriage between the petitioner and the father of the illegitimate, some indicia of a "close family unit." Matter of Harris, 15 I. & N.Dec. ___ (1970). The phrase has not been defined, but we know that it includes a situation where the father, stepmother, and child have lived together at some time, Matter of The, 11 I. & N.Dec. 449 (1965), and excludes the case where neither father nor stepmother ever lived with or cared for the child. Matter of Harris, supra; Matter of Amado and Monteiro, 13 I. & N.Dec. 179 (1969); Matter of Soares, 12 I. & N.Dec. 653 (1968); Matter of Morris, 11 I. & N.Dec. 537 (1966). The only court to review this interpretation has rejected the added gloss. The fact of the marriage is sufficient to categorize the wife a "stepmother." Andrade v. Esperdy, 270 F. Supp. 516 (SDNY 1967). [ Footnote 2/12 ] Chaskel, Changing Patterns of Services for Unmarried Parents, 49 Social Casework 3 (1968); Chaskel, The Unmarried Mother: Is She Different? 46 Child Welfare 65, 72 (1967); Herzog, Some Notes About Unmarried Fathers, 45 Child Welfare 194 (April 1966); Knight, Conferences for Pregnant Unwed Teen-Agers, 65 American Journal of Nursing 123, 126 (1965); Sauber, The Role of the Unmarried Father, 4 Welfare in Review 15, 16 (Nov.1966); Wessel, A Physician Looks at Services for Unmarried Parents, 49 Social Casework 11 (1968). [ Footnote 2/13 ] The easiest proof is a birth certificate that names the father. Review of Immigration Problems: Hearings on H.R. 10993 before the Subcommittee on Immigration, Citizenship, and International Law of the House Committee on the Judiciary, 94th Cong., 1st and 2d Sess., 150-151, 154 (1975-1976). Alternatively, the INS obtains affidavits from the natural mother or other people familiar with the relationship, looks at school documents which may name the father, and considers facts of custody or support. Ibid. The INS also relies on local judicial determinations if they exist, but it does not require them, because "alternative administrative recognition procedures . . . normally available to the natural father . . . are less cumbersome and time-consuming, and are regarded by consular officers as equally reliable with court determinations in eliminating fraudulent claims to the paternal relationship." Id. at 151. [ Footnote 2/14 ] The variations are many. In some countries, legitimation may be accomplished only by marriage of the natural parents, Matter of Blancapor, 14 I. & N.Dec. 427 (1973) (Philippines); Matter of F, 7 I. & N.Dec. 448 (1957) (Portugal); Matter of W, 9 I. & N.Dec. 223 (1961) (Surinam); Matter of J, 9 I. & N.Dec. 246 (1961) (British Guiana); Matter of C, 9 I. & N.Dec. 597 (1962) (Spain); by court decree, Matter of J and Y, 3 I. & N.Dec. 657 (1949); Matter of Duncan, 15 I. & N.Dec. ___ (I.D. 2373, 1975) (Liberia); or by formal recognition, Matter of K, 8 I. & N.Dec. 73 (1958) (Poland); Matter of Jancar, 11 I. & N.Dec. 365 (1965) (Yugoslavia); Matter of G, 9 I. & N.Dec. 518 (1961) (Hungary); Matter of Peters, 11 I. & N.Dec. 691 (1966) (Virginia Islands); Matter of Sinclair, 13 I. & N.Dec. 613 (1970) (Panama); Matter of Kubicka, 14 I. & N.Dec. 303 (1972) (Poland); Matter of Coker, 14 I. & N.Dec. 521 (1974) (Nigeria); Matter of Kim, 14 I. & N.Dec. 561 (1974) (Korea). In some countries, a child born out of wedlock is deemed the legitimate child of both parents, Matter of G, supra; cf. Matter of Lo, 14 I. & N.Dec. 379 (1973) (People's Republic of China). [ Footnote 2/15 ] See, e.g., Matter of G, supra; Matter of Lo, supra. [ Footnote 2/16 ] Since resident aliens are also not to be arbitrarily denied privilege on the basis of gender and legitimacy, Hampton v. Mow Sun Wong , 426 U. S. 88 (1976); Sugarman v. Dougall, 413 U. S. 634 (1973); Graham v. Richardson, 403 U. S. 365 (1971), it is clear that appellants Earl and Trevor Wilson, if they meet the terms of the saving clause of the 1976 Amendments, should also be entitled to relief. See 430 U.S. 787 fn2/5|>n. 5, supra.

The Supreme Court upheld the constitutionality of immigration laws that gave preferential treatment to legitimate children and their mothers, but not to illegitimate children and their fathers. The Court recognized the government's power to control immigration and the distinction made by Congress between different family relationships. The Court deferred to Congress' policy decision to draw the line at providing preferential treatment to legitimate children and their mothers, while excluding illegitimate children and their fathers from this status.

Immigration & National Security

Vance v. Terrazas

https://supreme.justia.com/cases/federal/us/444/252/

U.S. Supreme Court Vance v. Terrazas, 444 U.S. 252 (1980) Vance v. Terrazas No. 71143 Argued October 30, 1979 Decided January 15, 1980 444 U.S. 252 APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Syllabus Section 349(a)(2) of the Immigration and Nationality Act provides that "a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by . . . taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof." Section 349(c) provides that the party claiming that such loss of citizenship occurred must "establish such claim by a preponderance of the evidence," and that a person who commits any act of expatriation "shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily." Appellee, who was a citizen of both the United States and Mexico at birth, subsequently obtained a certificate of Mexican citizenship after executing an application in which he swore allegiance to Mexico and expressly renounced his United States citizenship. Thereafter, the Department of State issued a certificate of loss of nationality, and the Board of Appellate Review of the Department of State affirmed. Appellee then brought suit for a declaration of his United States nationality, but the District Court concluded that the United States had proved by a preponderance of the evidence that appellee had knowingly and voluntarily taken an oath of allegiance to Mexico and renounced allegiance to the United States, thus voluntarily relinquishing United States citizenship pursuant to § 349(a)(2). The Court of Appeals reversed and remanded, holding that Congress had no power to legislate the evidentiary standard contained in § 349(c), and that the Constitution required that proof be not merely by a preponderance of the evidence, but by "clear, convincing and unequivocal evidence." Held: 1. In establishing loss of citizenship, the Government must prove an intent to surrender United States citizenship, not just the voluntary commission of an expatriating act such as swearing allegiance to a foreign nation. Congress does not have any general power to take away an American citizen's citizenship without his "assent," which means an intent to relinquish citizenship, whether the intent is expressed in Page 444 U. S. 253 words or is found as a fair inference from his conduct. The expatriating acts specified in § 349(a) cannot be treated as conclusive evidence of the indispensable voluntary assent of the citizen. The trier of fact must, in the end, conclude that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship. Cf. Afroyim v. Rusk, 387 U. S. 253 . Pp. 444 U. S. 258 -263. 2. However, the Constitution permits Congress to prescribe the standard of proof in expatriation proceedings. The specific evidentiary standard provided in § 349(c) is not invalid under either the Citizenship Clause of the Fourteenth Amendment or the Due Process Clause of the Fifth Amendment. Although the Due Process Clause imposes requirements of proof beyond a preponderance of the evidence in criminal and involuntary commitment contexts, nevertheless expatriation proceedings are civil in nature, and do not threaten a loss of liberty, and thus Congress did not exceed its powers by requiring proof of an intentional expatriating act by only a preponderance of evidence. Pp. 444 U. S. 264 -267. 3. Nor is the presumption of voluntariness provided in § 349(c) constitutionally infirm. While the statute provides that any of the statutory expatriating acts, if proved, is presumed to have been committed voluntarily, it does not also direct a presumption that the act has been performed with the intent to relinquish United States citizenship, which matter remains the burden of the party claiming expatriation to prove by a preponderance of the evidence. Section 349(c) and its legislative history make clear that Congress preferred the ordinary rule that voluntariness of an act is presumed and that duress is an affirmative defense to be proved by the party asserting it, and to invalidate the rule here would give the Citizenship Clause far more scope in this context than the relevant circumstances that brought the Fourteenth Amendment into being would suggest appropriate. Pp. 444 U. S. 267 -270. 577 F.2d 7, reversed and remanded. WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. MARSHALL, J., post, p. 444 U. S. 270 , and STEVENS, J., post, p. 444 U. S. 272 , filed opinions concurring in part and dissenting in part. BRENNAN, J., filed a dissenting opinion, in Part II of which STEWART, J., joined, post, p. 444 U. S. 274 . STEWART, J., filed a dissenting statement, post, p. 444 U. S. 270 . Page 444 U. S. 254 MR. JUSTICE WHITE delivered the opinion of the Court. Section 349(a)(2) of the Immigration and Nationality Act (Act), 66 Stat. 267, 8 U.S.C. § 1481(a)(2), provides that "a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by . . . taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof." The Act also provides that the party claiming that such loss of citizenship occurred must "establish such claim by a preponderance of the evidence," and that the voluntariness of the expatriating conduct is rebuttably presumed. § 349(c), as added, 75 Stat. 656, 8 U.S.C. § 1481(c). [ Footnote 1 ] The Page 444 U. S. 255 issues in this case are whether, in establishing loss of citizenship under § 1481(a)(2), a party must prove an intent to surrender United States citizenship and whether the United States Constitution permits Congress to legislate with respect to expatriation proceedings by providing the standard of proof and the statutory presumption contained in § 1481(c). I Appellee, Laurence J. Terrazas, was born in this country, the son of a Mexican citizen. He thus acquired at birth both United States and Mexican citizenship. In the fall of 1970, while a student in Monterrey, Mexico, and at the age of 22, appellee executed an application for a certificate of Mexican nationality, swearing "adherence, obedience, and submission to the laws and authorities of the Mexican Republic" and "expressly renounc[ing] United States citizenship, as well as any submission, obedience, and loyalty to any foreign government, especially to that of the United States of America. . . ." App. to Brief for Appellant 5a. [ Footnote 2 ] The certificate, which issued upon this application on April 3, 1971, recited that Terrazas had sworn adherence to the United Mexican States and that he "has expressly renounced all rights inherent to any other nationality, as well as all submission, obedience, and loyalty to any foreign government, especially to those which have recognized him as that national." Page 444 U. S. 256 Id. at 8a. Terrazas read and understood the certificate upon receipt. App. to Juris.Statement 21a. A few months later, following a discussion with an officer of the United States Consulate in Monterrey, proceedings were instituted to determine whether appellee had lost his United States citizenship by obtaining the certificate of Mexican nationality. Appellee denied that he had, but, in December, 1971, the Department of State issued a certificate of loss of nationality. App. to Brief for Appellant 31a. The Board of Appellate Review of the Department of State, after a full hearing, affirmed that appellee had voluntarily renounced his United States citizenship. App. to Juris.Statement 31a. As permitted by § 360(a) of the Act, 66 Stat. 273, 8 U.S.C. § 1503(a), appellee then brought this suit against the Secretary of State for a declaration of his United States nationality. Trial was de novo. The District Court recognized that the first sentence of the Fourteenth Amendment, [ Footnote 3 ] as construed in Afroyim v. Rusk, 387 U. S. 253 , 387 U. S. 268 (1967), " protect[s] every citizen of this Nation against a congressional forcible destruction of his citizenship,'" and that every citizen has "`a constitutional right to remain a citizen . . . unless he voluntarily relinquishes that citizenship.'" App. to Juris.Statement 25a. A person of dual nationality, the District Court said, "will be held to have expatriated himself from the United States when it is shown that he voluntarily committed an act whereby he unequivocally renounced his allegiance to the United States." Ibid. Specifically, the District Court found that appellee had taken an oath of allegiance to Mexico, that he had "knowingly and understandingly renounced allegiance to the United States in connection with his Application for a Certificate of Mexican Nationality," id. at 28a, and that "[t]he taking of Page 444 U. S. 257 an oath of allegiance to Mexico and renunciation of a foreign country [ sic ] citizenship is a condition precedent under Mexican law to the issuance of a Certificate of Mexican Nationality." Ibid. The District Court concluded that the United States had "proved by a preponderance of the evidence that Laurence J. Terrazas knowingly, understandingly and voluntarily took an oath of allegiance to Mexico, and concurrently renounced allegiance to the United States," id. at 29a, and that he had therefore "voluntarily relinquished United States citizenship pursuant to § 349(a)(2) of the . . . Act." Ibid. In its opinion accompanying its findings and conclusions, the District Court observed that appellee had acted "voluntarily in swearing allegiance to Mexico and renouncing allegiance to the United States," id. at 25a, and that appellee "knew he was repudiating allegiance to the United States through his actions." Ibid. The court also said, relying upon and quoting from United States v. Matheson, 400 F. Supp. 1241 , 1245 (SDNY 1975), aff'd, 532 F.2d 809 (CA2), cert. denied, 429 U.S. 823 (1976), that "the declaration of allegiance to a foreign state in conjunction with the renunciatory language of United States citizenship 'would leave no room for ambiguity as to the intent of the applicant.'" App. to Juris.Statement 23a. The Court of Appeals reversed. 577 F.2d 7 (1978). As the Court of Appeals understood the law -- and there appears to have been no dispute on these basic requirements in the Courts of Appeals -- the United States had not only to prove the taking of an oath to a foreign state, but also to demonstrate an intent on appellee's part to renounce his United States citizenship. The District Court had found these basic elements to have been proved by a preponderance of the evidence; and the Court of Appeals observed that, "[a]ssuming that the proper [evidentiary] standards were applied, we are convinced that the record fully supports the court's findings." Id. at 10. The Court of Appeals ruled, however, that. under Afroyim v. Rusk, supra, Congress had no power to legislate the Page 444 U. S. 258 evidentiary standard contained in § 1481(e) and that the Constitution required that proof be not merely by a preponderance of the evidence, but by "clear, convincing and unequivocal evidence." 577 F.2d at 11. The case was remanded to the District Court for further proceedings. [ Footnote 4 ] The Secretary took this appeal under 28 U.S.C. § 1252. Because the invalidation of § 1481(c) posed a substantial constitutional issue, we noted probable jurisdiction. 440 U.S. 970. II The Secretary first urges that the Court of Appeals erred in holding that a "specific intent to renounce U.S. citizenship" must be proved "before the mere taking of an oath of allegiance could result in an individual's expatriation." 577 F.2d at 11. [ Footnote 5 ] His position is that he need prove only the Page 444 U. S. 259 voluntary commission of an act, such as swearing allegiance to a foreign nation, that "is so inherently inconsistent with the continued retention of American citizenship that Congress may accord to it its natural consequences, i.e., loss of nationality." Brief for Appellant 24. We disagree. In Afroyim v. Rusk, 387 U. S. 253 (1967), the Court held that § 401(e) of the Nationality Act of 1940, 54 Stat. 116 1169, which provided that an American citizen "shall lose his nationality by . . . [v] voting in a political election in a foreign state," contravened the Citizenship Clause of the Fourteenth Amendment. Afroyim was a naturalized American citizen who lived in Israel for 10 years. While in that nation, Afroyim voted in a political election. He in consequence was stripped of his United States citizenship. Consistently with Perez v. Brownell, 356 U. S. 44 (1958), which had sustained § 401(e), the District Court affirmed the power of Congress to expatriate for such conduct regardless of the citizen's intent to renounce his citizenship. This Court, however, in overruling Perez, "reject[ed] the idea . . . that, aside from the Fourteenth Page 444 U. S. 260 Amendment, Congress has any general power, express or implied, to take away an American citizen's citizenship without his assent." Afroyim v. Rusk, supra, at 387 U. S. 257 . The Afroyim opinion continued: § 1 of the Fourteenth Amendment is "most reasonably . . . read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it." 387 U.S. at 387 U. S. 262 . The Secretary argues that Afroyim does not stand for the proposition that a specific intent to renounce must be shown before citizenship is relinquished. It is enough, he urges, to establish one of the expatriating acts specified in § 1481(a), because Congress has declared each of those acts to be inherently inconsistent with the retention of citizenship. But Afroyim emphasized that loss of citizenship requires the individual's "assent," 387 U.S. at 387 U. S. 257 , in addition to his voluntary commission of the expatriating act. It is difficult to understand that "assent" to loss of citizenship would mean anything less than an intent to relinquish citizenship, whether the intent is expressed in words or is found as a fair inference from proved conduct. Perez had sustained congressional power to expatriate without regard to the intent of the citizen to surrender his citizenship. Afroyim overturned this proposition. It may be, as the Secretary maintains, that a requirement of intent to relinquish citizenship poses substantial difficulties for the Government in performance of its essential task of determining who is a citizen. Nevertheless, the intent of the Fourteenth Amendment, among other things, was to define citizenship; and as interpreted in Afroyim, that definition cannot coexist with a congressional power to specify acts that work a renunciation of citizenship even absent an intent to renounce. In the last analysis, expatriation depends on the will of the citizen, rather than on the will of Congress and its assessment of his conduct. The Secretary argues that the dissent in Perez, which it is said the Court's opinion in Afroyim adopted, spoke of conduct Page 444 U. S. 261 so contrary to undivided allegiance to this country that it could result in loss of citizenship without regard to the intent of the actor and that "assent" should not therefore be read as a code word for intent to renounce. But Afroyim is a majority opinion, and its reach is neither expressly nor implicitly limited t.o that of the dissent in Perez. Furthermore, in his Perez dissent, Mr. Chief Justice Warren, in speaking of those acts that were expatriating because so fundamentally inconsistent with citizenship, concluded by saying that, in such instances, the "Government is simply giving formal recognition to the inevitable consequence of the citizen's own voluntary surrender of his citizenship." Perez v. Brownell, supra at 356 U. S. 69 . This suggests that the Chief Justice's conception of "actions in derogation of undivided allegiance to this country," 356 U.S. at 356 U. S. 68 , in fact would entail an element of assent. In any event, we are confident that it would be inconsistent with Afroyim to treat the expatriating acts specified in § 1481(a) as the equivalent of or as conclusive evidence of the indispensable voluntary assent of the citizen. "Of course," any of the specified acts "may be highly persuasive evidence in the particular case of a purpose to abandon citizenship." Nisikawa v. Dulles, 356 U. S. 129 , 356 U. S. 139 (1958) (Black, J., concurring). But the trier of fact must in the end conclude that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship. This understanding of Afroyim is little different from that expressed by the Attorney General in his 1969 opinion explaining the impact of that case. 42 Op.Atty.Gen. 397. An "act which does not reasonably manifest an individual's transfer or abandonment of allegiance to the United States," the Attorney General said, "cannot be made a basis for expatriation." Id. at 400. Voluntary relinquishment is "not confined to a written renunciation," but "can also be Page 444 U. S. 262 manifested by other actions declared expatriative under the [A]ct, if such actions are in derogation of allegiance to this country." Ibid. Even in these cases, however, the issue of intent was deemed by the Attorney General to be open; and, once raised, the burden of proof on the issue was on the party asserting that expatriation had occurred. Ibid. "In each case," the Attorney General stated, "the administrative authorities must make a judgment, based on all the evidence, whether the individual comes within the terms of an expatriation provision and has, in fact, voluntarily relinquished his citizenship." Id. at 401. It was under this advice, as the Secretary concedes, that the relevant departments of the Government have applied the statute and the Constitution to require an ultimate finding of an intent to expatriate. Brief for Appellant 557, n. 28. [ Footnote 6 ] Page 444 U. S. 262 Accordingly, in the case now before us, the Board of Appellate Review of the State Department found that appellee not only swore allegiance to Mexico, but also intended to abandon his United States citizenship: "In consideration of the complete record, we view appellant's declaration of allegiance to Mexico and his concurrent repudiation of any and all submission, obedience, and loyalty to the United States as compelling evidence of a specific intent to relinquish his United States citizenship." App. to Juris.Statement 50a. This same view -- that expatriation depends on the will of a citizen as ascertained from his words and conduct -- was also reflected in the United States' response to the petition for certiorari in United States v. Matheson, 532 F.2d 809, cert. denied, 429 U.S. 823 (1976). [ Footnote 7 ] Insofar as we are advised, this view remained the official position of the United States until the appeal in this case. As we have said, Afroyim requires that the record support a finding that the expatriating act was accompanied by an intent to terminate United States citizenship. The submission of the United States is inconsistent with this holding, and we are unprepared to reconsider it. Page 444 U. S. 264 III With respect to the principal issues before it, the Court of Appeals held that Congress was without constitutional authority to prescribe the standard of proof in expatriation proceedings, and that the proof in such cases must be by clear and convincing evidence, rather than by the preponderance standard prescribed in § 1481(c). We are in fundamental disagreement with these conclusions. In Nishikawa v. Dulles, 356 U. S. 129 (1958), an American-born citizen, temporarily in Japan, was drafted into the Japanese Army. The Government later claimed that, under § 401(c) of the Nationality Act of 1940, 54 Stat. 119, he had expatriated himself by serving in the armed forces of a foreign nation. The Government agreed that expatriation had not occurred if Nishikawa's army service had been involuntary. Nishikawa contended that the Government had to prove that his service was voluntary, while the Government urged that duress was an affirmative defense that Nishikawa had the burden to prove by overcoming the usual presumption of voluntariness. This Court held the presumption unavailable to the Government and required proof of a voluntary expatriating act by clear and convincing evidence. Section 1481(c) soon followed; its evident aim was to supplant the evidentiary standards prescribed by Nishikawa. [ Footnote 8 ] Page 444 U. S. 265 The provision "sets up rules of evidence under which the burden of proof to establish loss of citizenship by preponderance of the evidence would rest upon the Government. The presumption of voluntariness under the proposed rules of evidence, would be rebuttable -- similarly -- by preponderance of the evidence. . . ." H.R.Rep. No. 1086, 87th Cong., 1st Sess., 41 (1961). We see no basis for invalidating the evidentiary prescriptions contained in § 1481(c). Nishikawa was not rooted in the Constitution. The Court noted, moreover, that it was acting in the absence of legislative guidance. Nishikawa v. Dulles, supra, at 356 U. S. 135 . Nor do we agree with the Court of Appeals that, because, under Afroyim, Congress is constitutionally devoid of power to impose expatriation on a citizen, it is also without power to prescribe the evidentiary standards to govern expatriation proceedings. 577 F.2d at 10. Although § 1481(c) had been law since 1961, Afroyim did not address or advert to that section; surely the Court would have said so had it intended to construe the Constitution to exclude expatriation proceedings from the traditional powers of Congress to prescribe rules of evidence and standards of proof in the federal courts. This power, rooted in the authority Page 444 U. S. 266 of Congress conferred by Art. 1, § 8, cl. 9, of the Constitution to create inferior federal courts, is undoubted and has been frequently noted and sustained. See, e.g., Usery v. Turner Elkhorn Mining Co., 428 U. S. 1 , 428 U. S. 31 (1976); Hawkins v. United States, 358 U. S. 74 , 358 U. S. 78 (1958); Tot v. United States, 319 U. S. 463 , 319 U. S. 467 (1943). We note also that the Court's opinion in Afroyim was written by Mr. Justice Black who, in concurring in Nishikawa, said that the question whether citizenship has been voluntarily relinquished is to be determined on the facts of each case, and that Congress could provide rules of evidence for such proceedings. Nishikawa v. Dulles, supra at 356 U. S. 139 . In this respect, we agree with Mr. Justice Black; and since Congress has the express power to enforce the Fourteenth Amendment, it is untenable to hold that it has no power whatsoever to address itself to the manner or means by which Fourteenth Amendment citizenship may be relinquished. We are unable to conclude that the specific evidentiary standard provided by Congress in § 1481(c) is invalid under either the Citizenship Clause or the Due Process Clause of the Fifth Amendment. It is true that, in criminal and involuntary commitment contexts, we have held that the Due Process Clause imposes requirements of proof beyond a preponderance of the evidence. Mullaney v. Wilbur, 421 U. S. 684 (1975); Addington v. Texas, 441 U. S. 418 (1979). This Court has also stressed the importance of citizenship, and evinced a decided preference for requiring clear and convincing evidence to prove expatriation. Nishikawa v. United States, supra. But expatriation proceedings are civil in nature, and do not threaten a loss of liberty. Moreover, as we have noted, Nishikawa did not purport to be a constitutional ruling, and the same is true of similar rulings in related areas. Woodby v. INS, 385 U. S. 276 , 385 U. S. 285 (1966) (deportation); Schneiderman v. United States, 320 U. S. 118 , 320 U. S. 125 (1943) (denaturalization). None of these cases involved a congressional judgment, Page 444 U. S. 267 such as that present here, that the preponderance standard of proof provides sufficient protection for the interest of the individual in retaining his citizenship. Contrary to the Secretary's position, we have held that expatriation requires the ultimate finding that the citizen has committed the expatriating act with the intent to renounce his citizenship. This in itself is a heavy burden, and we cannot hold that Congress has exceeded its powers by requiring proof of an intentional expatriating act by a preponderance of evidence. IV The Court of Appeals did not discuss separately the validity of the statutory presumption provided in § 1481(c). By holding that the section was beyond the power of Congress, however, and by requiring that the expatriating act be proved voluntary by clear and convincing evidence, the Court of Appeals effectively foreclosed use of the § 1481(c) presumption of voluntariness, not only in the remand proceedings in the District Court, but also in other expatriation proceedings in that Circuit. As we have indicated, neither the Citizenship Clause nor Afroyim places suits such as this wholly beyond the accepted power of Congress to prescribe rules of evidence in federal courts. We also conclude that the presumption of voluntariness provided in § 1481(c) is not otherwise constitutionally infirm. Section 1481(c) provides in relevant part that "any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily." In enacting § 1481(c), Congress did not dispute the holding of Nishikawa that the alleged expatriating act -- there, service in a foreign army -- must be performed voluntarily, but it did Page 444 U. S. 268 insist that the Government have the benefit of the usual presumption of voluntariness, and that one claiming that his act was involuntary make out his claim of duress by a preponderance of the evidence. It is important at this juncture to note the scope of the statutory presumption. Section 1481(c) provides that any of the statutory expatriating acts, if proved, are presumed to have been committed voluntarily. It does not also direct a presumption that the act has been performed with the intent to relinquish United States citizenship. That matter remains the burden of the party claiming expatriation to prove by a preponderance of the evidence. As so understood, we cannot invalidate the provision. [ Footnote 9 ] The majority opinion in Nishikawa referred to the "ordinary rule that duress is a matter of affirmative defense" to be proved by the party claiming the duress. Nishikawa v. Dulles, 356 U.S. at 356 U. S. 134 . Justices Frankfurter and Burton, concurring in the result, also referred to the "ordinarily controlling principles of evidence [that] would suggest that the individual, who is peculiarly equipped to clarify an ambiguity in the meaning of outward events, should have the burden of proving what his state of mind was." Id. at 356 U. S. 141 . And Mr. Justice Harlan, in dissent with Mr. Justice Clark, pointed to the "general rule that consciously performed acts are presumed voluntary" and referred to Federal Rule of Civil Procedure 8(c), which treats duress as a matter of affirmative defense. 356 U.S. at 356 U. S. 144 . Yet the Court in Nishikawa, Page 444 U. S. 269 because it decided that "the consequences of denationalization are so drastic" and because it found nothing indicating a contrary result in the legislative history of the Nationality Act of 1940, held that the Government must carry the burden of proving that the expatriating act was performed voluntarily. Id. at 356 U. S. 133 -138. [ Footnote 10 ] Section 1481(c), which was enacted subsequently, and its legislative history, H.R.Rep. No. 1086, 87th Cong., 1st Sess., 40-41 (1961), make clear that Congress preferred the ordinary rule that voluntariness is presumed and that duress is an affirmative defense to be proved by the party asserting it. See Hartsville Oil Mill v. United States, 271 U. S. 43 , 271 U. S. 49 -50 (1926); Towson v. Moore, 173 U. S. 17 , 173 U. S. 23 -24 (1899); Savage v. United States, 92 U. S. 382 , 92 U. S. 387 -388 (1876). "Duress, if proved, may be a defence to an action . . . , but the burden of proof to establish the charge . . . is upon the party making it. . . ." Mason v. United States , 17 Wall. 67, 84 U. S. 74 (1873). [ Footnote 11 ] The rationality of the procedural rule with respect to claims of involuntariness in ordinary civil cases cannot be doubted. To invalidate the rule here would be to disagree flatly with Congress Page 444 U. S. 270 on the balance to be struck between the interest in citizenship and the burden the Government must assume in demonstrating expatriating conduct. It would also constitutionalize that disagreement and give the Citizenship Clause of the Fourteenth Amendment far more scope in this context than the relevant circumstances that brought the Amendment into being would suggest appropriate. Thus, we conclude that the presumption of voluntariness included in § 1481(c) has continuing vitality. V In sum, we hold that, in proving expatriation, an expatriating act and an intent to relinquish citizenship must be proved by a preponderance of the evidence. We also hold that, when one of the statutory expatriating acts is proved, it is constitutional to presume it to have been a voluntary act until and unless proved otherwise by the actor. If he succeeds, there can be no expatriation. If he fails, the question remains whether on all the evidence the Government has satisfied its burden of proof that the expatriating act was performed with the necessary intent to relinquish citizenship. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered. MR. JUSTICE STEWART dissents for the reasons stated in 444 U. S. JUSTICE BRENNAN's dissenting opinion, which he Joins. [ Footnote 1 ] The relevant statutory provisions are §§ 349(a)(2),(c) of the Act, 66 Stat. 267, as amended, 75 Stat. 656, as set forth in 8 U.S.C. § 1481: "(a) From and after the effective date of this chapter a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by -- " " * * * *" "(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof;" " * * * *" "(c) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Except as otherwise provided in subsection (b) of this section, any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily." [ Footnote 2 ] The application contained the following statement: "I therefore hereby expressly renounce __________ citizenship, as well as any submission, obedience, and loyalty to any foreign government, especially to that of _________, of which I might have been subject, all protection foreign to the laws and authorities of Mexico, all rights which treaties or international law grant to foreigners; and furthermore I swear adherence, obedience, and submission to the laws and authorities of the Mexican Republic." The blank spaces in the statement were filled in with the words "Estados Unidos" (United States) and "Norteamerica" (North America), respectively. Brief for Appellant 4. [ Footnote 3 ] The Fourteenth Amendment, § 1, reads: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." [ Footnote 4 ] In remanding the case to the District Court, the Court of Appeals did not "necessarily requir[e] that court to conduct a new trial." 577 F.2d at 12. The Court of Appeals recognized that, even granting the higher standard of proof it had imposed on the District Court, the factual determinations already on the record might be adequate to permit consideration of the case on remand without the holding of another trial or evidentiary hearing. Ibid. [ Footnote 5 ] The Court of Appeals' discussion of specific intent is submerged in its analysis of proper evidentiary standards. Id. at 11. The absence of independent analysis undoubtedly resulted from the Secretary's failure to contend in either the District Court or the Court of Appeals that it was unnecessary to prove an intent to relinquish citizenship. Indeed, the jurisdictional statement filed by the Secretary in this Court presented the single question whether 8 U.S.C. § 1481(c) is unconstitutional under the Citizenship Clause of the Fourteenth Amendment; it did not present separately the question whether proof of a specific intent to relinquish is essential to expatriation. Our Rule 15(1)(c) states that "[o]nly the questions set forth in the jurisdictional statement or fairly comprised therein will be considered by the court." The Secretary now argues that resolution of the intent issue is an essential, or at least an advisable, predicate to an intelligent resolution of the constitutionality of § 1481(c). There is some merit in this position: arguably, the intent issue is fairly comprised in the question set forth in the jurisdictional statement. In any event, consideration of issues not present in the jurisdictional statement or petition for certiorari and not presented in the Court of Appeals is not beyond our power, and, in appropriate circumstances, we have addressed them. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313 , 402 U. S. 320 , n. 6 (1971); Erie R. Co. v. Tompkins, 304 U. S. 64 (1938) (parties agreed that Swift v. Tyson , 16 Pet. 1 (1842), was still good law [argument of counsel omitted from electronic version]). Cf. Vachon v. New Hampshire, 414 U. S. 478 (1974); Moragne v. States Marine Lines, 398 U. S. 375 (1970); Silber v. United States, 370 U. S. 717 (1962). See generally R. Stern & E. Gressman, Supreme Court Practice §§ 6.27 and 7.14 (5th ed.1978). As will be more apparent below, the Secretary, represented in this Court by the Solicitor General, has changed his position on the intent issue since the decision of the Court of Appeals; and his present position is at odds with a 1969 opinion of the Attorney General, 42 Op.Atty.Gen. 397, which interpreted Afroyim v. Rusk and guided the administrative actions of the State Department and the Immigration and Naturalization Service. The issue of intent is important, the parties have briefed it, and we shall address it. [ Footnote 6 ] As the Secretary states in his brief, Brief for Appellant 57, n. 28, "both the State Department and the Immigration and Naturalization Service have adopted administrative guidelines that attempt to ascertain the individual's intent by taking into consideration the nature of the expatriating act and the individual's statements and actions made in connection with that act." The State Department's guideline evidences a position on intent quite similar to that adopted here: "In the light of the Afroyim decision and the Attorney General's Statement of Interpretation of that decision, the Department now holds that the taking of a meaningful oath of allegiance to a foreign state is highly persuasive evidence of an intent to transfer or abandon allegiance. The taking of an oath that is not meaningful does not result in expatriation. The meaningfulness of the oath must be decided by the Department on the individual merits of each case." Department of State, 8 Foreign Affairs Manual § 224.2, p. 2 (1970) (emphasis in original). Cf. Immigration and Naturalization Service, Interpretations § 349.1(d)(2), p. 6976.4 (1970) (characterizing Afroyim as overruling Perez's holding "that expatriation could flow from a voluntary act even though the citizen did not intend thereby to relinquish his United States citizenship"). Contemporaneous academic commentary agreed that Afroyim imposed the requirement of intent to relinquish citizenship on a party seeking to establish expatriation. See Comment, An Expatriation Enigma: Afroyim v. Rusk, 48 B.U.L.Rev. 295, 298 (1968); Note, Acquisition of Foreign Citizenship: The Limits of Afroyim v. Rusk, 54 Cornell L.Rev. 624, 624-625 (1969); The Supreme Court: 1966 Term, 81 Harv.L.Rev. 69, 126 (1967); Note, 29 Ohio St.L.J. 797, 801 (1968). [ Footnote 7 ] In his response to the petition for certiorari in Matheson, the Solicitor General argued that " Afroyim broadly held that Congress has no power to prescribe any objective conduct that will automatically result in expatriation, absent the individual's voluntary relinquishment of citizenship. . . ." Brief in Opposition in Matheson v. United States, O T.1976, No. 75-1651, p. 8. In Matheson, it was maintained, "there is nothing in the record that would support a finding that decedent's application for a certificate of Mexican nationality was prompted by a specific intent to relinquish her American citizenship." Id. at 7. Thus, the Solicitor General concluded no expatriation could be said to have taken place. [ Footnote 8 ] The House Report accompanying § 1481(c), H.R.Rep. No. 108, 87th Cong., 1st Sess., 40 (1961), took direct aim at Nishikawa's holding that "the Government must in each case prove voluntary conduct by clear, convincing and unequivocal evidence." Nishikawa v. Dulles, 356 U.S. at 356 U. S. 138 . The Report quoted with approval from Mr. Justice Harlan's dissenting opinion in Nishikawa: "Although the Court recognizes the general rule that consciously performed acts are presumed voluntary [citations omitted], it in fact alters this rule in all denationalization cases by placing the burden of proving voluntariness on the Government, thus relieving citizen-claimants in such cases from the duty of proving that their presumably voluntary acts were actually involuntary." "One of the prime reasons for imposing the burden of proof on the party claiming involuntariness is that the evidence normally lies in his possession." "I . . . find myself compelled to dissent because, in my opinion, the majority's position can be squared neither with congressional intent nor with proper and well established rules governing the burden of proof on the issue of duress." H.R.Rep. No. 1086, supra at 41 (quoting Nishikawa v. Dulles, supra at 356 U. S. 144 -145). The Report continued: "In order to forestall further erosion of the statute designed to preserve and uphold the dignity and the priceless value of U.S. citizenship, with attendant obligations, [§ 1481(c)] sets up rules of evidence under which the burden of proof to establish loss of citizenship by preponderance of the evidence would rest upon the Government." H.R.Rep. No. 1086, supra at 41. The Report concluded by describing the rebuttable presumption of voluntariness in § 1481(c). [ Footnote 9 ] The Secretary asserts that the § 1481(c) presumption cannot survive constitutional scrutiny if we hold that intent to relinquish citizenship is a necessary element in proving expatriation. Brief for Appellant 26. The predicate for this assertion seems to be that § 1481(c) presumes intent to relinquish as well as voluntariness. We do not so read it. Even if we did, and even if we agreed that presuming the necessary intent is inconsistent with Afroyim, it would be unnecessary to invalidate the section insofar as it presumes that the expatriating act itself was performed voluntarily. [ Footnote 10 ] The Court's departure from the normal rule that duress is an affirmative defense to be proved by the party seeking to rely on it was noted when Nishikawa was handed down. See The Supreme Court: 1957 Term, 72 Harv.L.Rev. 77, 166, 171 (1958) ( Nishikawa "not only extended the Government's burden in expatriation proceedings to include the absence of duress if this issue is raised, but also determined the standard by which it must be shown. The position of the majority runs counter to the usual rule that duress is an affirmative defense"). [ Footnote 11 ] The rule that duress is an affirmative defense to be pleaded and proved by the party attempting to rely on it is well established. Even where a plaintiff's complaint improperly contains allegations that seek to avoid or defeat a potential affirmative defense, "it is inappropriate for the court to shift the burden of proof on the anticipated defense to plaintiff as a 'sanction' for failing to follow the burden of pleading structure established by Rule 8 or by adopting the fiction that plaintiff's anticipation of the issue evidences his intention to 'assume' the burden of proving it." 5 C. Wright & A. Miller, Federal Practice and Procedure § 1276, p 327 (1969). On affirmative defenses generally, see id. § 1270, at 289 et seq. MR. JUSTICE MARSHALL, concurring in part and dissenting in part. I agree with the Court's holding that a citizen of the United States may not lose his citizenship in the absence of a finding that he specifically intended to renounce it. I also concur in the adoption of a saving construction of 8 U.S.C. § 1481(a)(2) Page 444 U. S. 271 to require that the statutorily designated expatriating acts be done with a specific intent to relinquish citizenship. I cannot, however, accept the majority's conclusion that a person may be found to have relinquished his American citizenship upon a preponderance of the evidence that he intended to do so. The Court's discussion of congressional power to "prescribe rules of evidence and standards of proof in the federal courts," ante at 444 U. S. 265 , is the beginning, not the end, of the inquiry. It remains the task of this Court to determine when those rules and standards impinge on constitutional rights. As my Brother STEVENS indicates, the Court's casual dismissal of the importance of American citizenship cannot withstand scrutiny. And the mere fact that one who has been expatriated is not locked up in a prison does not dispose of the constitutional inquiry. As Mr. Chief Justice Warren stated over 20 years ago: "[T]he expatriate has lost the right to have rights." "This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies. It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious." Trop v. Dulles, 356 U. S. 86 , 356 U. S. 102 (1958) (plurality opinion) (footnotes omitted). For these reasons I cannot understand, much less accept, the Court's suggestion that "expatriation proceedings . . . do not threaten a loss of liberty." Ante at 444 U. S. 266 . Recognizing that Page 444 U. S. 272 a standard of proof ultimately " reflects the value society places'" on the interest at stake, Addington v. Texas, 441 U. S. 418 , 441 U. S. 425 (1979), I would hold that a citizen may not lose his citizenship in the absence of clear and convincing evidence that he intended to do so. MR. JUSTICE STEVENS, concurring in part and dissenting in part. The Court today unanimously reiterates the principle set forth in Afroyim v. Rusk, 387 U. S. 253 , that Congress may not deprive an American of his citizenship against his will, but may only effectuate the citizen's own intention to renounce his citizenship. I agree with the Court that Congress may establish certain standards for determining whether such a renunciation has occurred. It may, for example, provide that expatriation can be proved by evidence that a person has performed an act that is normally inconsistent with continued citizenship, and that the person thereby specifically intended to relinquish his American citizenship. I do not agree, however, with the conclusion that Congress has established a permissible standard in 8 U.S.C. § 1481(a)(2). Since we accept dual citizenship, taking an oath of allegiance to a foreign government is not necessarily inconsistent with an intent to remain an American citizen. Moreover, as now written, the statute cannot fairly be read to require a finding of specific intent to relinquish citizenship. The statute unambiguously states that "a national of the United States . . . shall lose his nationality by --" " * * * * " "(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof." There is no room in this provision to imply a requirement of a specific intent to relinquish citizenship. The Court does Page 444 U. S. 273 not attempt to do so, nor does it explain how any other part of the statute supports its conclusion that Congress required proof of specific intent. [ Footnote 2/1 ] I also disagree with the holding that a person may be deprived of his citizenship upon a showing by a mere preponderance of the evidence that he intended to relinquish it. The Court reasons that, because the proceedings in question are civil in nature, and do not result in any loss of physical liberty, no greater burden of proof is required than in the ordinary civil case. Such reasoning construes the constitutional concept of "liberty" too narrowly. The House Report accompanying the 1961 amendment to the Immigration and Naturalization Act of 1952 refers to "the dignity and the priceless value of U.S. citizenship." H.R.Rep. Page 444 U. S. 274 No. 1086, 87th Cong., 1st Sess., 41 (1961). That characterization is consistent with this Court's repeated appraisal of the quality of the interest at stake in this proceeding. [ Footnote 2/2 ] In my judgment, a person's interest in retaining his American citizenship is surely an aspect of "liberty" of which he cannot be deprived without due process of law. Because the interest at stake is comparable to that involved in Addington v. Texas, 441 U. S. 418 , essentially for the reasons stated in THE CHIEF JUSTICE's opinion for a unanimous Court in that case, see id. at 441 U. S. 425 -427, 441 U. S. 431 -433, I believe that due process requires that a clear and convincing standard of proof be met in this case as well before the deprivation may occur. [ Footnote 2/1 ] It could perhaps be argued that a specific intent requirement can be derived from 8 U.S.C. § 1481(c). That subsection creates a rebuttable presumption that any expatriating act set forth in subsection (a) was performed "voluntarily." The term "voluntary" could conceivably be stretched to include the concept of a specific intent to renounce one's citizenship. While the person seeking to retain his citizenship would thus have the burden of showing a lack of specific intent, such a construction would at least provide a statutory basis for bringing the issue of intent into the proceeding. The majority apparently would not be willing to accept such a construction in order to salvage the statute, however, inasmuch as it rejects the appellant Secretary's argument that, if there is a requirement of specific intent, it is also subject to the presumption applicable to voluntariness. Ante at 444 U. S. 268 . The majority's assumption that the statute can be read to require specific intent to relinquish citizenship as an element of proof is also contradicted by the Court's treatment in Afroyim of a different subsection of the same statute. Like the subsection at issue here, subsection (a)(5) provided that an American automatically lost his nationality by performing a specific act: in that case, voting in a foreign election. If the majority's analysis in this case were correct, the Court in Afroyim should not have invalidated that provision of the statute; rather, it should merely have remanded for a finding as to whether Afroyim had voted in a foreign election with specific intent to relinquish his American citizenship. That the Court did not do so is strong evidence of its belief that the statute could not be reformed as it is today. [ Footnote 2/2 ] See Kennedy v. Mendoza-Martinez, 372 U. S. 144 , 372 U. S. 160 , where the Court quoted another report describing American citizenship as " one of the most valuable rights in the world today.'" See also Afroyim v. Rusk, 387 U. S. 253 , 387 U. S. 267 -268; Trop v. Dulles, 356 U. S. 86 , 356 U. S. 92 . MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART joins as to Part II, dissenting. The Court holds that one may lose United States citizenship if the Government can prove by a preponderance of the evidence that certain acts, specified by statute, were done with the specific intent of giving up citizenship. Accordingly, the Court, in reversing the judgment of the Court of Appeals, holds that the District Court applied the correct evidentiary standards in determining that appellee was properly stripped of his citizenship. Because I would hold that one who acquires United States citizenship by virtue of being born in the United States, U.S.Const., Amdt. 14, § 1, can lose that citizenship only by formally renouncing it, and because I would hold that the act of which appellee is accused in this case cannot be an expatriating act, I dissent. I This case is governed by Afroyim v. Rusk, 387 U. S. 253 Page 444 U. S. 275 (1967). Afroyim , emphasizing the crucial importance of the right of citizenship, held unequivocally that a citizen has "a constitutional right to remain a citizen . . . unless he voluntarily relinquishes that citizenship." Id. at 387 U. S. 268 . "[T]he only way the citizenship . . . could be lost was by the voluntary renunciation or abandonment by the citizen himself." Id. at 387 U. S. 266 . The Court held that, because Congress could not "abridge," "affect," "restrict the effect of," or "take . . . away" citizenship, Congress was "without power to rob a citizen of his citizenship" because he voted in a foreign election. Id. at 387 U. S. 267 . The same clearly must be true of the Government's attempt to strip appellee of citizenship because he swore an oath of allegiance to Mexico. [ Footnote 3/1 ] Congress has provided for a procedure by which one may formally renounce citizenship. [ Footnote 3/2 ] In this case, the appellant concedes that appellee has not renounced his citizenship under that procedure. [ Footnote 3/3 ] Brief for Appellant 56. Because one can lose citizenship only by voluntarily renouncing it and because appellee has not formally renounced his, I would hold that he remains a citizen. Accordingly, I would remand the case with orders that appellee be given a declaration of United States nationality. [ Footnote 3/4 ] Page 444 U. S. 276 II I reach the same result by another, independent line of reasoning. Appellee was born a dual national. He is a citizen of the United States because he was born here, and a citizen of Mexico because his father was Mexican. The only expatriating act of which appellee stands accused is having sworn an oath of allegiance to Mexico. If dual citizenship, per se, can be consistent with United States citizenship, Perkins v. Elg, 307 U. S. 325 , 307 U. S. 329 , (1939), [ Footnote 3/5 ] then I cannot see why an oath of allegiance to the other country of which one is already a citizen should create inconsistency. One owes allegiance to any country of which one is a citizen, especially when one is living in that country. Kawakita v. United States, 343 U. S. 717 , 343 U. S. 733 -735 (1952). [ Footnote 3/6 ] The formal oath adds nothing to the existing foreign citizenship and, therefore, cannot affect his United States citizenship. [ Footnote 3/1 ] He was a Mexican citizen by virtue of his father's citizenship. [ Footnote 3/2 ] Title 8 U.S.C. § 1481(a)(6) provides that "a national of the United States whether by birth or naturalization, shall lose his nationality by . . ." " * * * *" "making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State." The Secretary of State has prescribed such procedures in 22 CFR § 50.50 (1979). See Department of State, 8 Foreign Affairs Manual § 225.6 (1972). Congress also provided for renunciation by citizens while in the United States in 8 U.S.C. § 1481(a) (7). This last provision is not relevant to our case. [ Footnote 3/3 ] Therefore, the appellant does not argue that appellee can be expatriated under 8 U.S.C. § 1481(a)(6). See 444 U.S. 252 fn3/2|>n. 2, supra. [ Footnote 3/4 ] I would not reach the issues concerning 8 U.S.C. § 1481(c). [ Footnote 3/5 ] Rogers v. Bellei, 401 U. S. 815 (1971), is not to the contrary. Bellei's citizenship was not based on the Fourteenth Amendment, id. at 401 U. S. 833 , 401 U. S. 835 , and the issue before the Court was whether Bellei could lose his statutory citizenship for failure to satisfy a condition subsequent contained in the same statute that accorded him citizenship. [ Footnote 3/6 ] Indeed, the opinion of the State Department once was "that a person with a dual citizenship who lives abroad in the other country claiming him as a national owes an allegiance to it which is paramount to the allegiance he owes the United States." Kawakita v. United States, 343 U.S. at 343 U. S. 734 -735.

In Vance v. Terrazas (1980), the US government argued that Terrazas, a dual citizen of the US and Mexico, had relinquished his US citizenship by obtaining a Mexican citizenship certificate and swearing allegiance to Mexico. The Supreme Court ruled that the government must prove Terrazas' intent to surrender US citizenship, not just the voluntary act of swearing allegiance to Mexico. The Court held that Terrazas' actions did not indicate a voluntary assent to relinquish US citizenship and that an oath of allegiance to another country of which one is already a citizen does not affect US citizenship. The Court also addressed the evidentiary standard, with the majority upholding the standard of "preponderance of the evidence" while dissenters argued for a higher standard of "clear, convincing, and unequivocal evidence."

Immigration & National Security

INS v. Cardoza-Fonseca

https://supreme.justia.com/cases/federal/us/480/421/

U.S. Supreme Court INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) Immigration and Naturalization Service v. Cardoza-Fonseca No. 85-782 Argued October 7, 1986 Decided March 9, 1987 480 U.S. 421 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus Section 243(h) of the Immigration and Nationality Act (Act) requires that the Attorney General withhold deportation of an alien who demonstrates that his "life or freedom would be threatened" thereby on account of specified factors. The above-quoted phrase requires a showing that "it is more likely than not that the alien would be subject to persecution" in the country to which he would be returned. In contrast, § 208(a) of the Act authorizes the Attorney General, in his discretion, to grant asylum to a "refugee," who, under § 101(a)(42)(A) of the Act, is unable or unwilling to return to his home country because of persecution or "a well founded fear" thereof on account of particular factors. At respondent illegal alien's deportation hearing, the Immigration Judge applied the § 243(h) "more likely than not" proof standard to her § 208(a) asylum claim, holding that she had not established "a clear probability of persecution," and therefore was not entitled to relief. The Board of Immigration Appeals (BIA) affirmed, but the Court of Appeals reversed, holding that § 208(a)'s "well founded fear" standard is more generous than the § 243(h) standard in that it only requires asylum applicants to show either past persecution or "good reason" to fear future persecution. Accordingly, the asylum claim was remanded so that BIA could evaluate it under the proper legal standard. Held: The § 243(h) "clear probability" standard of proof does not govern asylum applications under § 208(a). Pp. 480 U. S. 427 -449. (a) The plain meaning of the statutory language indicates a congressional intent that the proof standards under §§ 208(a) and 243(h) should differ. Section 243(h)'s "would be threatened" standard has no subjective component, but, in fact, requires objective evidence that it is more likely than not that the alien will be subject to persecution upon deportation. In contrast, § 208(a)'s reference to "fear" makes the asylum eligibility determination turn to some extent on the alien's subjective mental state, and the fact that the fear must be "well founded" does not transform the standard into a "more likely than not" one. Moreover, the different emphasis of the two standards is highlighted by the fact that, although Congress simultaneously drafted § 208(a)'s new standard and amended § 243(h), it left § 243(h)'s old standard intact. Pp. 480 U. S. 430 -432. Page 480 U. S. 422 (b) The legislative history demonstrates the congressional intent that different standards apply under §§ 208(a) and 243(h). Pp. 480 U.S. 432 -443. (c) The argument of the Immigration and Naturalization Service (INS) that it is anomalous for § 208(a) to have a less stringent eligibility standard than § 243(h), since § 208(a) affords greater benefits than § 243(h), fails, because it does not account for the fact that an alien who satisfies the § 208(a) standard must still face a discretionary asylum decision by the Attorney General, while an alien satisfying § 243(h)'s stricter standard is automatically entitled to withholding of deportation. Pp. 480 U. S. 443 -445. (d) The INS's argument that substantial deference should be accorded BIA's position that the "well founded fear" and "clear probability" standards are equivalent is unpersuasive, since the narrow legal question of identicality is a pure question of statutory construction within the traditional purview of the courts, and is not a question of case-by-case interpretation of the type traditionally left to administrative agencies. Pp. 480 U. S. 445 -448. 767 F.2d 1448, affirmed. STEVENS, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and O'CONNOR, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 480 U. S. 450 . SCALIA, J., filed an opinion concurring in the judgment, post, p. 480 U. S. 452 . POWELL, J., filed a dissenting opinion, in which REHNQUIST, C.J., and WHITE, J., joined, post, p. 480 U. S. 455 . Page 480 U. S. 423 JUSTICE STEVENS delivered the opinion of the Court. Since 1980, the Immigration and Nationality Act has provided two methods through which an otherwise deportable alien who claims that he will be persecuted if deported can seek relief. Section 243(h) of the Act, 8 U.S.C. § 1253(h), requires the Attorney General to withhold deportation of an alien who demonstrates that his "life or freedom would be threatened" on account of one of the listed factors if he is deported. In INS v. Stevic, 467 U. S. 407 (1984), we held that, to qualify for this entitlement to withholding of deportation, an alien must demonstrate that "it is more likely than not that the alien would be subject to persecution" in the country to which he would be returned. Id. at 467 U. S. 429 -430. The Refugee Act of 1980, 94 Stat. 102, also established a second type of broader relief. Section 208(a) of the Act, 8 U.S.C. § 1158(a), authorizes the Attorney General, in his discretion, to grant asylum to an alien who is unable or unwilling to return to his home country "because of persecution or a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." § 101(a)(42), 8 U.S.C. § 1101(a)(42). In Stevic, we rejected an alien's contention that the § 208(a) "well founded fear" standard governs applications for withholding of deportation under § 243(h). [ Footnote 1 ] Similarly, today we reject the Government's contention that the § 243(h) standard, which requires an alien to show that he is more likely than not to be subject to persecution, governs applications for asylum under § 208(a). Congress used different, broader language to define the term "refugee" as used in § 208(a) than it used to describe the class of aliens who have Page 480 U. S. 424 a right to withholding of deportation under § 243(h). The Act's establishment of a broad class of refugees who are eligible for a discretionary grant of asylum, and a narrower class of aliens who are given a statutory right not to be deported to the country where they are in danger, mirrors the provisions of the United Nations Protocol Relating to the Status of Refugees, which provided the motivation for the enactment of the Refugee Act of 1980. In addition, the legislative history of the 1980 Act makes it perfectly clear that Congress did not intend the class of aliens who qualify as refugees to be coextensive with the class who qualify for § 243(h) relief. I Respondent is a 38-year-old Nicaraguan citizen who entered the United States in 1979 as a visitor. After she remained in the United States longer than permitted, and failed to take advantage of the Immigration and Naturalization Service's (INS) offer of voluntary departure, the INS commenced deportation proceedings against her. Respondent conceded that she was in the country illegally, but requested withholding of deportation pursuant to § 243(h) and asylum as a refugee pursuant to § 208(a). To support her request under § 243(h), respondent attempted to show that, if she were returned to Nicaragua, her "life or freedom would be threatened" on account of her political views; to support her request under § 208(a), she attempted to show that she had a "well founded fear of persecution" upon her return. The evidence supporting both claims related primarily to the activities of respondent's brother, who had been tortured and imprisoned because of his political activities in Nicaragua. Both respondent and her brother testified that they believed the Sandinistas knew that the two of them had fled Nicaragua together, and that, even though she had not been active politically herself, she would be interrogated about her brother's whereabouts and Page 480 U. S. 425 activities. Respondent also testified that, because of her brother's status, her own political opposition to the Sandinistas would be brought to that government's attention. Based on these facts, respondent claimed that she would be tortured if forced to return. The Immigration Judge applied the same standard in evaluating respondent's claim for withholding of deportation under § 243(h) as he did in evaluating her application for asylum under § 208(a). He found that she had not established "a clear probability of persecution," and therefore was not entitled to either form of relief. App. to Pet. for Cert. 27a. On appeal, the Board of Immigration Appeals (BIA) agreed that respondent had "failed to establish that she would suffer persecution within the meaning of section 208(a) or 243(h) of the Immigration and Nationality Act." Id. at 21a. In the Court of Appeals for the Ninth Circuit, respondent did not challenge the BIA's decision that she was not entitled to withholding of deportation under § 243(h), but argued that she was eligible for consideration for asylum under § 208(a), and contended that the Immigration Judge and BIA erred in applying the "more likely than not" standard of proof from § 243(h) to her § 208(a) asylum claim. Instead, she asserted, they should have applied the "well founded fear" standard, which she considered to be more generous. The court agreed. Relying on both the text and the structure of the Act, the court held that the "well founded fear" standard which governs asylum proceedings is different, and in fact more generous, than the "clear probability" standard which governs withholding of deportation proceedings. 767 F.2d 1448, 1452-1453 (1985). Agreeing with the Court of Appeals for the Seventh Circuit, the court interpreted the standard to require asylum applicants to present " specific facts' through objective evidence to prove either past persecution or `good reason' to fear future persecution." Id. at 1453 (citing Carvajal-Munoz v. INS, 743 F.2d 562, 574 (CA7 1984)). Page 480 U. S. 426 The court remanded respondent's asylum claim to the BIA to evaluate under the proper legal standard. We granted certiorari to resolve a Circuit conflict on this important question. [ Footnote 2 ] 475 U.S. 1009 (1986). [ Footnote 3 ] Page 480 U. S. 427 II The Refugee Act of 1980 established a new statutory procedure for granting asylum to refugees. [ Footnote 4 ] The 1980 Act added a new § 208(a) to the Immigration and Nationality Act of 1952, reading as follows: "The Attorney General shall establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien's status, to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title." 94 Stat. 105, 8 U.S.C. § 1158(a). Under this section, eligibility for asylum depends entirely on the Attorney General's determination that an alien is a Page 480 U. S. 428 "refugee" as that term is defined in § 101(a)(42), which was also added to the Act in 1980. That section provides: "The term 'refugee' means (A) any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. . . ." 94 Stat. 102, 8 U.S.C. § 1101(a)(42). Thus, the "persecution or well founded fear of persecution" standard governs the Attorney General's determination whether an alien is eligible for asylum. [ Footnote 5 ] In addition to establishing a statutory asylum process, the 1980 Act amended the withholding of deportation provision, [ Footnote 6 ] Page 480 U. S. 429 § 243(h). See Stevic, 467 U.S. at 467 U. S. 421 , n. 15. Prior to 1968, the Attorney General had discretion whether to grant withholding of deportation to aliens under § 243(h). In 1968, however, the United States agreed to comply with the substantive provisions of Articles 2 through 34 of the 1951 United Nations Convention Relating to the Status of Refugees. See 19 U.S.T. 6223, 6259-6276, T.I.A.S. No. 6577 (1968); see generally Stevic, supra, at 467 U. S. 416 -417. Article 33.1 of the Convention, 189 U.N.T.S. 150, 176 (1954), reprinted in 19 U.S.T. 6259, 6276, which is the counterpart of § 243(h) of our statute, imposed a mandatory duty on contracting States not to return an alien to a country where his "life or freedom would be threatened" on account of one of the enumerated reasons. [ Footnote 7 ] See infra at 480 U. S. 441 . Thus, although § 243(h) itself did not constrain the Attorney General's discretion after 1968, presumably he honored the dictates of the United Nations Convention. [ Footnote 8 ] In any event, the 1980 Act removed the Attorney General's discretion in § 243(h) proceedings. [ Footnote 9 ] Page 480 U. S. 430 In Stevic, we considered it significant that, in enacting the 1980 Act, Congress did not amend the standard of eligibility for relief under § 243(h). While the terms "refugee" and hence "well founded fear" were made an integral part of the § 208(a) procedure, they continued to play no part in § 243(h). Thus we held that the prior consistent construction of § 243(h) that required an applicant for withholding of deportation to demonstrate a "clear probability of persecution" upon deportation remained in force. Of course, this reasoning, based in large part on the plain language of § 243(h), is of no avail here, since § 208(a) expressly provides that the "well founded fear" standard governs eligibility for asylum. The Government argues, however, that even though the "well founded fear" standard is applicable, there is no difference between it and the "would be threatened" test of § 243(h). It asks us to hold that the only way an applicant can demonstrate a "well founded fear of persecution" is to prove a "clear probability of persecution." The statutory language does not lend itself to this reading. To begin with, the language Congress used to describe the two standards conveys very different meanings. The "would be threatened" language of § 243(h) has no subjective component, but instead requires the alien to establish by objective evidence that it is more likely than not that he or she will be subject to persecution upon deportation. [ Footnote 10 ] See Stevic, supra. In contrast, the reference to "fear" in the § 208(a) standard obviously makes the eligibility determination turn to some extent on the subjective mental state of the Page 480 U. S. 431 alien. [ Footnote 11 ] "The linguistic difference between the words 'well founded fear' and 'clear probability' may be as striking as that between a subjective and an objective frame of reference. . . We simply cannot conclude that the standards are identical." Guevara-Flores v. INS, 786 F.2d 1242, 1250 (CA5 1986), cert. pending, No. 86-388; see also Carcamo-Flores v. INS, 805 F.2d 60, 64 (CA2 1986); 767 F.2d at 1452 (case below). That the fear must be "well founded" does not alter the obvious focus on the individual's subjective beliefs, nor does it transform the standard into a "more likely than not" one. One can certainly have a well founded fear of an event happening when there is less than a 50% chance of the occurrence taking place. As one leading authority has pointed out: "Let us . . . presume that it is known that, in the applicant's country of origin, every tenth adult male person is either put to death or sent to some remote labor camp. . . . In such a case, it would be only too apparent that anyone who has managed to escape from the country in question will have 'well founded fear of being persecuted' upon his eventual return." 1 A. Grahl-Madsen, The Status of Refugees in International Law 180 (1966). This ordinary and obvious meaning of the phrase is not to be lightly discounted. See Russello v. United States, 464 U. S. 16 , 464 U. S. 21 (1983); Ernst & Ernst v. Hochfelder, 425 U. S. 185 , 425 U. S. 198 -199 (1976). With regard to this very statutory scheme, we have considered ourselves bound to " assume "that the legislative purpose is expressed by the ordinary meaning of the words used."'" INS v. Phinpathya, 464 U. S. 183 , 464 U. S. 189 (1984) (quoting American Tobacco Co. v. Patterson , 456 Page 480 U. S. 432 U.S. 63, 456 U. S. 68 (1982), in turn quoting Richards v. United States, 369 U. S. 1 , 369 U. S. 9 (1962)). The different emphasis of the two standards which is so clear on the face of the statute is significantly highlighted by the fact that the same Congress simultaneously drafted § 208(a) and amended § 243(h). In doing so, Congress chose to maintain the old standard in § 243(h), but to incorporate a different standard in § 208(a). "'[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.'" Russello v. United States, supra, at 464 U. S. 23 (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (CA5 1972)). The contrast between the language used in the two standards, and the fact that Congress used a new standard to define the term "refugee," certainly indicate that Congress intended the two standards to differ. III The message conveyed by the plain language of the Act is confirmed by an examination of its history. [ Footnote 12 ] Three aspects of that history are particularly compelling: The pre-1980 experience under § 203(a)(7), the only prior statute dealing with asylum; the abundant evidence of an intent to conform the definition of "refugee" and our asylum law to the United Nations Protocol to which the United States has been bound Page 480 U. S. 433 since 1968, and the fact that Congress declined to enact the Senate version of the bill that would have made a refugee ineligible for asylum unless "his deportation or return would be prohibited by § 243(h)." The Practice Under § 203(a)(7). The statutory definition of the term "refugee" contained in § 101(a)(42) applies to two asylum provisions within the Immigration and Nationality Act. [ Footnote 13 ] Section 207, 8 U.S.C. § 1157, governs the admission of refugees who seek admission from foreign countries. Section 208, 8 U.S.C. § 1158, sets out the process by which refugees currently in the United States may be granted asylum. Prior to the 1980 amendments, there was no statutory basis for granting asylum to aliens who applied from within the United States. [ Footnote 14 ] Asylum for aliens applying for admission from foreign countries had, however, been the subject of a previous statutory provision, and Congress' intent with respect to the changes that it sought to create in that statute are instructive in discerning the meaning of the term "well founded fear." Section § 203(a)(7) of the pre-1980 statute authorized the Attorney General to permit "conditional entry" to a certain number of refugees fleeing from Communist-dominated areas or the Middle East "because of persecution or fear of persecution on account of race, religion, or political opinion." 79 Page 480 U. S. 434 Stat. 913, 8 U.S.C. § 1153(a)(7) (1976 ed.). The standard that was applied to aliens seeking admission pursuant to § 203(a)(7) was unquestionably more lenient than the "clear probability" standard applied in § 243(h) proceedings. In Matter of Tan, 12 I. & N.Dec. 564, 569-570 (1967), for example, the BIA "found no support" for the argument that "an alien deportee is required to do no more than meet the standards applied under section 203(a)(7) of the Act when seeking relief under section 243(h)." Similarly, in Matter of Adamska, 12 I. & N.Dec. 201, 202 (1967), the Board held that an alien's inability to satisfy § 243(h) was not determinative of her eligibility under the "substantially broader" standards of § 203(a)(7). One of the differences the Board highlighted between the statutes was that § 243(h) requires a showing that the applicant "would be" subject to persecution, while § 203(a)(7) only required a showing that the applicant was unwilling to return "because of persecution or fear of persecution. " 12 I. & N., at 202 (emphasis in original). In sum, it was repeatedly recognized that the standards were significantly different. [ Footnote 15 ] At first glance, one might conclude that this wide practice under the old § 203(a)(7), which spoke of "fear of persecution," is not probative of the meaning of the term "well founded fear of persecution" which Congress adopted in 1980. Analysis of the legislative history, however, demonstrates that Congress added the "well founded" language only because that was the language incorporated by the United Nations Protocol to which Congress sought to conform. See infra at 480 U. S. 436 -437. Congress was told that the extant asylum procedure Page 480 U. S. 435 for refugees outside of the United States was acceptable under the Protocol, except for the fact that it made various unacceptable geographic and political distinctions. [ Footnote 16 ] The legislative history indicates that Congress in no way wished to modify the standard that had been used under § 203(a)(7). [ Footnote 17 ] Page 480 U. S. 436 Adoption of the INS's argument that the term "well founded fear" requires a showing of clear probability of persecution would clearly do violence to Congress' intent that the standard for admission under § 207 be no different than the one previously applied under § 203(a)(7). [ Footnote 18 ] The United Nations Protocol. If one thing is clear from the legislative history of the new definition of "refugee," and indeed the entire 1980 Act, it is that one of Congress' primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577, to which the United States Page 480 U. S. 437 acceded in 1968. [ Footnote 19 ] Indeed, the definition of "refugee" that Congress adopted, see supra, at 480 U. S. 428 , is virtually identical to the one prescribed by Article 1(2) of the Convention which defines a "refugee" as an individual who, "owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." Compare 19 U.S.T. 6225 with 19 U.S.T. 6261. Not only did Congress adopt the Protocol's standard in the statute, but there were also many statements indicating Congress' intent that the new statutory definition of "refugee" be interpreted in conformance with the Protocol's definition. The Conference Committee Report, for example, stated that the definition was accepted "with the understanding that it is based directly upon the language of the Protocol, and it is intended that the provision be construed consistent with the Protocol." S.Rep. No. 96-590, p. 20 (1980); see also H.R.Rep. at 9. It is thus appropriate to consider what the phrase "well founded fear" means with relation to the Protocol. The origin of the Protocol's definition of "refugee" is found in the 1946 Constitution of the International Refugee Organization (IRO). See 62 Stat. 3037. The IRO defined a "refugee" as a person who had a "valid objection" to returning to his country of nationality, and specified that "fear, based on reasonable grounds of persecution because of race, religion, nationality, or political opinions . . . " constituted a valid objection. See IRO Constitution, Annex 1, Pt. 1, § C1(a)(i). The term was then incorporated in the United Nations Convention Page 480 U. S. 438 Relating to the Status of Refugees, [ Footnote 20 ] 189 U.N.T.S. 150 (July 28, 1951). The Committee that drafted the provision explained that "[t]he expression 'well founded fear of being the victim of persecution . . . ' means that a person has either been actually a victim of persecution or can show good reason why he fears persecution." U.N.Rep. at 39. The 1967 Protocol incorporated the "well founded fear" test without modification. The standard, as it has been consistently understood by those who drafted it as well as those drafting the documents that adopted it, certainly does not require an alien to show that it is more likely than not that he will be persecuted in order to be classified as a "refugee." [ Footnote 21 ] In interpreting the Protocol's definition of "refugee," we are further guided by the analysis set forth in the Office of the Page 480 U. S. 439 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1979). [ Footnote 22 ] The Handbook explains that, "[i]n general, the applicant's fear should be considered well founded if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him for the reasons stated in the definition, or would for the same reasons be intolerable if he returned there." Id. at Ch. IIB(2)(a) § 42; see also id. §§ 37-41. The High Commissioner's analysis of the United Nations' standard is consistent with our own examination of the origins of the Protocol's definition, [ Footnote 23 ] as well as the conclusions of Page 480 U. S. 440 many scholars who have studied the matter. [ Footnote 24 ] There is simply no room in the United Nations' definition for concluding that, because an applicant only has a 10% chance of being shot, tortured, or otherwise persecuted, he or she has no "well founded fear" of the event's happening. See supra at 480 U. S. 431 . As we pointed out in Stevic, a moderate interpretation of the "well founded fear" standard would indicate "that, so long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility." 467 U.S. at 467 U. S. 424 -425. In Stevic, we dealt with the issue of withholding of deportation, or nonrefoulement, under § 243(h). This provision corresponds to Article 33.1 of the Convention. [ Footnote 25 ] Significantly, though, Article 33.1 does not extend this right to everyone who meets the definition of "refugee." Rather, it provides that "[n]o Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers or territories where his life or freedom would be threatened on account of his race, religion, nationality, membership or a particular social group or political opinion." 19 U.S.T. at 6276, 189 U.N.T.S. at 176 (emphasis added). Thus, Article 33.1 requires that an applicant satisfy two burdens: first, that he or she be a "refugee," i.e., prove at least a "well-founded Page 480 U. S. 441 fear of persecution;" second, that the "refugee" show that his or her life or freedom "would be threatened" if deported. Section 243(h)'s imposition of a "would be threatened" requirement is entirely consistent with the United States' obligations under the Protocol. Section 208(a), by contrast, is a discretionary mechanism which gives the Attorney General the authority to grant the broader relief of asylum to refugees. As such, it does not correspond to Article 33 of the Convention, but instead corresponds to Article 34. See Carvajal-Munoz, 743 F.2d at 574, n. 15. That Article provides that the contracting States "shall as far as possible facilitate the assimilation and naturalization of refugees. . . ." Like § 208(a), the provision is precatory; it does not require the implementing authority actually to grant asylum to all those who are eligible. Also like § 208(a), an alien must only show that he or she is a "refugee" to establish eligibility for relief. No further showing that he or she "would be" persecuted is required. Thus, as made binding on the United States through the Protocol, Article 34 provides for a precatory, or discretionary, benefit for the entire class of persons who qualify as "refugees," whereas Article 33.1 provides an entitlement for the subcategory that "would be threatened" with persecution upon their return. This precise distinction between the broad class of refugees and the subcategory entitled to § 243(h) relief is plainly revealed in the 1980 Act. See Stevic, 467 U.S. at 467 U. S. 428 , n. 22. Congress' Rejection of S. 643. Both the House bill, H.R. 2816, 96th Cong., 1st Sess. (1979), and the Senate bill, S. 643, 96th Cong., 1st Sess. (1979), provided that an alien must be a a "refugee" within the meaning of the Act in order to be eligible for asylum. The two bills differed, however, in that the House bill authorized the Attorney General, in his discretion, to grant asylum to any refugee, whereas the Senate bill imposed the additional Page 480 U. S. 442 requirement that a refugee could not obtain asylum unless "his deportation or return would be prohibited under section 243(h)." [ Footnote 26 ] S.Rep. at 26. Although this restriction, if adopted, would have curtailed the Attorney General's discretion to grant asylum to refugees pursuant to § 208(a), it would not have affected the standard used to determine whether an alien is a "refugee." Thus, the inclusion of this prohibition in the Senate bill indicates that the Senate recognized that there is a difference between the "well founded fear" standard and the clear probability standard. [ Footnote 27 ] The enactment of the House bill, rather than the Senate bill, in turn demonstrates that Congress eventually refused to restrict eligibility for asylum only to aliens meeting the stricter standard. "Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub Page 480 U. S. 443 silentio to enact statutory language that it has earlier discarded in favor of other language." Nachman Corp. v. Pension Benefit Guaranty Corporation, 446 U. S. 359 , 446 U. S. 392 -393 (1980) (Stewart, J., dissenting); cf. Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186 , 419 U. S. 200 (1974); Russello v. United States, 464 U.S. at 464 U. S. 23 . IV The INS makes two major arguments to support its contention that we should reverse the Court of Appeals and hold that an applicant can only show a "well founded fear of persecution" by proving that it is more likely than not that he or she will be persecuted. We reject both of these arguments: the first ignores the structure of the Act; the second misconstrues the federal courts' role in reviewing an agency's statutory construction. First, the INS repeatedly argues that the structure of the Act dictates a decision in its favor, since it is anomalous for § 208(a), which affords greater benefits than § 243(h), see n 6, supra, to have a less stringent standard of eligibility. This argument sorely fails, because it does not take into account the fact that an alien who satisfies the applicable standard under § 208(a) does not have a right to remain in the United States; he or she is simply eligible for asylum, if the Attorney General, in his discretion, chooses to grant it. An alien satisfying § 243(h)'s stricter standard, in contrast, is automatically entitled to withholding of deportation. [ Footnote 28 ] In Matter of Salim, 18 I. & N.Dec. 311 (1982), for example, the Board held that the alien was eligible for both asylum and withholding of deportation, but granted him the more limited remedy only, exercising its discretion to deny him asylum. See also Walai v. INS, 552 F. Supp. 998 (SDNY 1982); Matter Page 480 U. S. 444 of Shirdel, Interim Decision No. 2958 (BIA Feb. 21, 1984). We do not consider it at all anomalous that, out of the entire class of "refugees," those who can show a clear probability of persecution are entitled to mandatory suspension of deportation and eligible for discretionary asylum, while those who can only show a well founded fear of persecution are not entitled to anything, but are eligible for the discretionary relief of asylum. There is no basis for the INS's assertion that the discretionary/mandatory distinction has no practical significance. Decisions such as Matter of Salim, supra, and Matter of Shirdel, supra, clearly demonstrate the practical import of the distinction. Moreover, the 1980 Act amended § 243(h) for the very purpose of changing it from a discretionary to a mandatory provision. See supra at 480 U. S. 428 -429. Congress surely considered the discretionary/mandatory distinction important then, as it did with respect to the very definition of "refugee" involved here. The House Report provides: "The Committee carefully considered arguments that the new definition might expand the numbers of refugees eligible to come to the United States and force substantially greater refugee admissions than the country could absorb. However, merely because an individual or group comes within the definition will not guarantee resettlement in the United States." H.R.Rep. at 10. This vesting of discretion in the Attorney General is quite typical in the immigration area, see, e.g., INS v. Jong Ha Wang, 450 U. S. 139 (1981). If anything is anomalous, it is that the Government now asks us to restrict its discretion to a narrow class of aliens. Congress has assigned to the Attorney General and his delegates the task of making these hard individualized decisions; although Congress could have crafted a narrower definition, it chose to authorize the Attorney Page 480 U. S. 445 General to determine which, if any, eligible refugees should be denied asylum. The INS's second principal argument in support of the proposition that the "well founded fear" and "clear probability" standard are equivalent is that the BIA so construes the two standards. The INS argues that the BIA's construction of the Refugee Act of 1980 is entitled to substantial deference, even if we conclude that the Court of Appeals' reading of the statutes is more in keeping with Congress' intent. [ Footnote 29 ] This argument is unpersuasive. Page 480 U. S. 446 The question whether Congress intended the two standards to be identical is a pure question of statutory construction for the courts to decide. Employing traditional tools of statutory construction, we have concluded that Congress did not intend the two standards to be identical. [ Footnote 30 ] In Chevron Page 480 U. S. 447 U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), we explained: "The judiciary is the final authority on issues of statutory construction, and must reject administrative constructions which are contrary to clear congressional Page 480 U. S. 448 intent. [Citing cases.] If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law, and must be given effect." Id. at 467 U. S. 843 , n. 9 (citations omitted). The narrow legal question whether the two standards are the same is, of course, quite different from the question of interpretation that arises in each case in which the agency is required to apply either or both standards to a particular set of facts. There is obviously some ambiguity in a term like "well founded fear" which can only be given concrete meaning through a process of case-by-case adjudication. In that process of filling " any gap left, implicitly or explicitly, by Congress,'" the courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program. See Chevron, supra, at 467 U. S. 843 , quoting Morton v. Ruiz, 415 U. S. 199 , 415 U. S. 231 (1974). But our task today is much narrower, and is well within the province of the Judiciary. We do not attempt to set forth a detailed description of how the "well founded fear" test should be applied. [ Footnote 31 ] Instead, we merely hold that the Immigration Judge and the BIA were incorrect in holding that the two standards are identical. [ Footnote 32 ] Page 480 U. S. 449 Our analysis of the plain language of the Act, its symmetry with the United Nations Protocol, and its legislative history, lead inexorably to the conclusion that, to show a "well founded fear of persecution," an alien need not prove that it is more likely than not that he or she will be persecuted in his or her home country. We find these ordinary canons of statutory construction compelling, even without regard to the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien. See INS v. Errico, 385 U. S. 214 , 385 U. S. 225 (1966); Costello v. INS, 376 U. S. 120 , 376 U. S. 128 (1964); Fong Haw Tan v. Phelan, 333 U. S. 6 , 333 U. S. 10 (1948). Deportation is always a harsh measure; it is all the more replete with danger when the alien makes a claim that he or she will be subject to death or persecution if forced to return to his or her home country. In enacting the Refugee Act of 1980, Congress sought to "give the United States sufficient flexibility to respond to situations involving political or religious dissidents and detainees throughout the world." H.R.Rep. at 9. Our holding today increases that flexibility by rejecting the Government's contention that the Attorney General may not even consider granting asylum to one who Page 480 U. S. 450 fails to satisfy the strict § 243(h) standard. Whether or not a "refugee" is eventually granted asylum is a matter which Congress has left for the Attorney General to decide. But it is clear that Congress did not intend to restrict eligibility for that relief to those who could prove that it is more likely than not that they will be persecuted if deported. The judgment of the Court of Appeals is Affirmed. [ Footnote 1 ] We explained that the Court of Appeals' decision had rested "on the mistaken premise that every alien who qualifies as a 'refugee' under the statutory definition is also entitled to a withholding of deportation under § 243(h). We find no support for this conclusion in either the language of § 243(h), the structure of the amended Act, or the legislative history." INS v. Stevic, 467 U.S. at 467 U. S. 428 . [ Footnote 2 ] Compare Carcamo-Flores v. INS, 806 F.2d 60 (CA2 1986); Guevara-Flores v. INS, 786 F.2d 1242 (CA5 1986), cert. pending, No. 86-388; Cardoza-Fonseca v. INS, 767 F.2d 1448 (CA9 1985) (case below); Carvajal-Munoz v. INS, 743 F.2d 562, 574 (CA7 1984); Youkhanna v. INS, 749 F.2d 360, 362 (CA6 1984); with Sankar v. INS, 757 F.2d 532, 533 (CA3 1985). The Third Circuit is the only Circuit to decide since our decision in INS v. Stevic, 467 U. S. 407 (1984), that the standards remain identical. It reached this conclusion, however, not because post- Stevic analysis compelled it, but because it considered itself bound by its pre- Stevic decision in Rejaie v. INS, 691 F.2d 139 (1982). See Sankar, supra, at 533. [ Footnote 3 ] We have considered whether this case has been rendered moot by the recent enactment of the Immigration Reform and Control Act of 1986. Pub.L. No. 99-603, 100 Stat. 3359. While nothing in that Act affects the statutory provisions related to asylum or withholding of deportation, Title II of the 1986 Act creates a mechanism by which certain aliens may obtain legalization of their status. Section 201(a) of the 1986 Act establishes that, with certain exceptions, an alien who has resided continuously in the United States in an unlawful status since before January 1, 1982, is entitled to have his or her status adjusted to that of an alien lawfully admitted for temporary residence. An alien who obtains this adjustment of status under the new Act is then eligible for a second adjustment to the status of permanent resident after a waiting period of 18 months. See § 245A(a). An alien who obtains permanent residence status through this route is not, however, eligible for all benefits usually available to permanent residents. For example, aliens who obtain permanent residence through this program are not eligible for certain public welfare benefits for five years after the grant of the new status. See § 245A(H). The record indicates that respondent may well be eligible for eventual adjustment of status if she makes a timely application after the Attorney General establishes the procedures for administering Title II. It would therefore appear that respondent might become a permanent resident by invoking the new procedures even if she is unsuccessful in her pending request for asylum. Nonetheless, the possibility of this relief does not render her request for asylum moot. First, the legalization provisions of the 1986 Act are not self-executing, and the procedures for administering the new Act are not yet in place. Even if the benefits were identical, therefore, there is no way of knowing at this time whether respondent will be able to satisfy whatever burden is placed upon her to demonstrate eligibility. Cf. INS v. Chadha, 462 U. S. 919 , 462 U. S. 937 (1983). Second, respondent might be able to obtain permanent residence through the asylum procedure sooner than through the legalization program; if she satisfies certain conditions, she may become eligible for adjustment of status to that of permanent resident 12 months after a grant of asylum. See 8 CFR §§ 209.1, 209.2 (1986). Under Title II of the new Act, by contrast, there is an 18-month waiting period. In light of these factors, we are persuaded that the controversy is not moot. Nor do we believe that the new Act makes it appropriate to exercise our discretion to dismiss the writ of certiorari as improvidently granted. The question presented in this case will arise, and has arisen, in hosts of other asylum proceedings brought by aliens who arrived in the United States after January 1, 1982, or who are seeking entry as refugees from other countries. The importance of the legal issue makes it appropriate for us to address the merits now. [ Footnote 4 ] Prior to the amendments, asylum for aliens who were within the United States had been governed by regulations promulgated by the INS, pursuant to the Attorney General's broad parole authority. See n. 14, infra. Asylum for applicants who were not within the United States was generally governed by the now-repealed § 203(a)(7) of the Act, 8 U.S.C. §1153(a)(7) (1976 ed.). See infra at 480 U. S. 433 . [ Footnote 5 ] It is important to note that the Attorney General is not required to grant asylum to everyone who meets the definition of refugee. Instead, a finding that an alien is a refugee does no more than establish that "the alien may be granted asylum in the discretion of the Attorney General. " § 208(a) (emphasis added). See Stevic, 467 U.S. at 467 U. S. 423 , n. 18; see also infra at 480 U. S. 441 -444. [ Footnote 6 ] Asylum and withholding of deportation are two distinct forms of relief. First, as we have mentioned, there is no entitlement to asylum; it is only granted to eligible refugees pursuant to the Attorney General's discretion. Once granted, however, asylum affords broader benefits. As the BIA explained in the context of an applicant from Afghanistan who was granted § 243(h) relief but was denied asylum: "Section 243(h) relief is 'country specific,' and accordingly, the applicant here would be presently protected from deportation to Afghanistan pursuant to section 243(h). But that section would not prevent his exclusion and deportation to Pakistan or any other hospitable country under section 237(a) if that country will accept him. In contrast, asylum is a greater form of relief. When granted asylum, the alien may be eligible for adjustment of status to that of a lawful permanent resident pursuant to section 209 of the Act, 8 U.S.C. 1169, after residing here one year, subject to numerical limitations and the applicable regulations." Matter of Salim, 18 I. & N.Dec. 311, 315 (1982). See also Matter of Lam, 18 I. & N.Dec. 15, 18 (BIA 1981). [ Footnote 7 ] Article 33.1 of the Convention provides: "No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." 189 U.N.T.S. 150, 176 (1954), 19 U.S.T. 6259, 6278, T.I.A.S. No. 6577 (1968). [ Footnote 8 ] While the Protocol constrained the Attorney General with respect to § 243(h) between 1968 and 1980, the Protocol does not require the granting of asylum to anyone, and hence does not subject the Attorney General to a similar constraint with respect to his discretion under § 208(a). See infra at 480 U. S. 440 -441. [ Footnote 9 ] As amended, the new § 243(h) provides: "The Attorney General shall not deport or return any alien . . . to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1253(h)(1) (emphasis added). [ Footnote 10 ] "The section literally provides for withholding of deportation only if the alien's life or freedom 'would' be threatened in the country to which he would be deported; it does not require withholding if the alien 'might' or 'could' be subject to persecution." Stevic, 467 U.S. at 467 U. S. 422 . [ Footnote 11 ] The BIA agrees that the term "fear," as used in this statute, refers to "a subjective condition, an emotion characterized by the anticipation or awareness of danger." Matter of Acosta, Interim Decision No. 2986, p. 14 (Mar. 1, 1985) (citing Webster's Third New International Dictionary 831 (16th ed.1971)). [ Footnote 12 ] As we have explained, the plain language of this statute appears to settle the question before us. Therefore, we look to the legislative history to determine only whether there is "clearly expressed legislative intention" contrary to that language, which would require us to question the strong presumption that Congress expresses its intent through the language it chooses. See United States v. James, 478 U. S. 597 , 478 U. S. 606 (1986); Consumer Product Safety Comm'n v. GTE Sylyania, Inc., 447 U. S. 102 , 447 U. S. 108 (1980). In this case, far from causing us to question the conclusion that flows from the statutory language, the legislative history adds compelling support to our holding that Congress never intended to restrict eligibility for asylum to aliens who can satisfy § 243(h)'s strict, objective standard. [ Footnote 13 ] The definition also applies to § 209, 8 U. .S.C. § 1159, which governs the adjustment of status of refugees after they have been granted asylum. [ Footnote 14 ] Such a procedure had been authorized by regulation since 1974, see 8 CFR pt. 108 (1976), but it was administered by INS District Directors, rather than the BIA. As we noted in Stevic, these "regulations did not explicitly adopt a standard for the exercise of discretion on the application, but did provide that a denial of an asylum application 'shall not preclude the alien, in a subsequent expulsion hearing, from applying for the benefits of section 243(h) of the Act and of Articles 32 and 33 of the Convention Relating to the Status of Refugees.' 8 CFR § 108.2 (1976)." 467 U.S. at 467 U. S. 420 , n. 13. In 1979, the regulations were amended to confer jurisdiction over asylum requests on the BIA for the first time. Ibid. [ Footnote 15 ] See also Matter of Janus and Janek, 12 I. & N.Dec. 866, 876 (BIA 1968). On the District Director level, where § 203(a)(7) claims were generally processed, see n 14, supra, this distinction was also recognized. In Matter of Ugricic, 14 I. & N.Dec. 384 (1972), a District Director articulated the test under § 203(a)(7) as whether the applicant could prove that "he was persecuted or had good reason to fear persecution." Id. at 385-386. [ Footnote 16 ] See S.Rep. No. 96-256, p. 9 (1979) (hereafter S.Rep.) (substantive standard for asylum is not changed); H.R.Rep. No. 96-608, p. 9 (1979) (hereafter H.R.Rep.) (discussing geographic limitations); Hearings before the House Subcommittee on International Operations of the Committee on Foreign Affairs on H.R. 2816, 96th Cong., 1st Sess., 72 (1979) (remarks of David Martin). [ Footnote 17 ] The INS argues that Congress intended to perpetuate the standard being used in the informal parole proceedings under the regulations, see n 14, supra, not the asylum procedure under § 203(a)(7). Until 1979, the regulations provided no standard, but they were amended in 1979 to provide that the applicant has the "burden of satisfying the immigration judge that he would be subject to persecution." 8 CFR § 108.3(a) (1980). This standard was identical to the one that was set forth in the regulations for the treatment of applications for withholding of deportation. See 8 CFR § 242.17(c) (1980). The argument that Congress intended to adhere to the standard used in the informal parole proceedings cannot be squared with Congress' use of an entirely different formulation of the standard for defining "refugee" -- one much closer to § 203(a)(7) than to § 243(h) (the statute which was the focus of the standard developed in the 1980 regulations). Moreover, to the extent that Congress was ambiguous as to which practice it sought to incorporate, it is far more reasonable to conclude that it sought to continue the practice under § 203(a)(7), a statutory provision, than to adhere to the informal parole practices of the Attorney General, a matter in which Congress had no involvement. The Government relies on the following passage from the Senate Report to support its contention that Congress sought to incorporate the standard from the parole proceedings -- not from § 203(a)(7): "[T]he bill establishes an asylum provision in the Immigration and Nationality Act for the first time by improving and clarifying the procedures for determining asylum claims filed by aliens who are physically present in the United States. The substantive standard is not changed." S.Rep. at 9. The bill that the Senate Committee was discussing indeed made no change in the standards to be applied to applications for asylum from aliens within the United States; the Senate version explicitly incorporated the same standard as used in § 243(h). See infra at 480 U. S. 441 -442. But the Senate version was rejected by Congress, and the well founded fear standard that was adopted mirrored § 203(a)(7), not § 243(h). JUSTICE POWELL's claim that the House Report also sought to incorporate the informal asylum standard is unfounded. Post at 480 U. S. 462 -463. As the passage he quotes and the context plainly indicate, the House Report referred to "means of entry" -- an issue dealt with under § 203(a)(7), not the asylum regulations. See H.R.Rep. at 10. The Committee's reference to the Attorney General's asylum procedures, seven pages later in the text, in a discussion labeled "Asylum," and not even dealing with the definition of "well founded fear," see id. at 17, certainly does nothing to support JUSTICE POWELL'S conclusion. [ Footnote 18 ] Although this evidence concerns application of the term "refugee" to § 207, not § 208, the term is defined in § 101(a)(42), and obviously can have only one meaning. JUSTICE POWELL suggests that the definition of "well founded fear" be interpreted as incorporating the standard from the asylum regulations, rather than the standard from § 203(a)(7), because "[i]t is more natural to speak of 'preserving' an interpretation that had governed the same form of relief than one that had applied to a different form of relief," post at 480 U. S. 462 (emphasis added). Since the definition in § 101(a)(42) applies to all asylum relief -- that corresponding to the old § 203(a)(7) as well as that corresponding to the old Attorney General regulations -- it is difficult to understand how JUSTICE POWELL reasons that it is likely that Congress preserved the " same form of relief" (emphasis added). The question is: the "same" as which? Our answer, based on Congress' choice of language and the legislative history, is that Congress sought to incorporate the "same" standard as that used in § 203(a)(7). [ Footnote 19 ] See H.R.Conf.Rep. No. 96-781, p. 19 (1980); H.R.Rep. at 9; S.Rep. at 4. [ Footnote 20 ] In the Displaced Persons Act of 1948, 62 Stat. 1009, §§ 2(a), (d), Congress adopted the IRO definition of the term "refugee," and thus used the "fear of persecution" standard. This standard was retained in the Refugee Relief Act of 1953, 67 Stat. 400 § 2(a), as well as in the Refugee Escapee Act of 1967, 71 Stat. 643 § 15(c)(1). In 1965, when Congress enacted § 203(a)(7) of the Act, it again used the "fear of persecution" standard. The interpretation afforded to the IRO definition is important in understanding the United Nations' definition, since the Committee drafting the United Nations' definition made it clear that it sought to "assure that the new consolidated convention should afford at least as much protection to refugees as had been provided by previous agreements." United Nations Economic and Social Council, Report of the Ad Hoc Committee on Statelessness and Related Problems 37 (Feb. 17, 1950) (U.N.Doc. E/1618, E/AC.32/5 (hereafter U.N.Rep.)). In its Manual for Eligibility Officers, the IRO had stated: "Fear of persecution is to be regarded as a valid objection whenever an applicant can make plausible that, owing to his religious or political convictions or to his race, he is afraid of discrimination or persecution on returning home. Reasonable grounds are to be understood as meaning that the applicant can give a plausible and coherent account of why he fears persecution." International Refugee Organization, Manual for Eligibility Officers No. 175, ch. IV, Annex 1, Pt. 1, § C19, p. 24 (undated, circulated in 1950). [ Footnote 21 ] Although the United States has never been party to the 1951 Convention, it is a party to the Protocol, which incorporates the Convention's definition in relevant part. See 19 U.S.T. 6225, T.I.A.S. No. 6577 (1968). [ Footnote 22 ] We do not suggest, of course, that the explanation in the U.N. Handbook has the force of law or in any way binds the INS with reference to the asylum provisions of § 208(a). Indeed, the Handbook itself disclaims such force, explaining that "the determination of refugee status under the 1951 Convention and the 1967 Protocol . . . is incumbent upon the Contracting State in whose territory the refugee finds himself." Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status 1(ii) (Geneva, 1979). Nonetheless, the Handbook provides significant guidance in construing the Protocol, to which Congress sought to conform. It has been widely considered useful in giving content to the obligations that the Protocol establishes. See McMullen v. INS, 668 F.2d 1312, 1319 (CA9 1981); Matter of Frentescu, 18 I. & N.Dec. 244 (BIA 1982); Matter of Rodriguez-Palma, 17 I. & N.Dec. 465 (BIA 1980). [ Footnote 23 ] The Board's decision in Matter of Dunar, 14 I. & N.Dec. 310 (1973), is not particularly probative of what the Protocol means and how it interacts with the provisions of the 1980 Act. In Dunar, the Board was faced with the question whether the United States' accession to the Protocol modified the standard of proof to be applied under § 243(h). The Board, after elaborating on the principle that treaties are not lightly to be read as superseding prior Acts of Congress, id. at 313-314, found no evidence that Congress sought to modify the § 243(h) standard, and therefore construed the provisions as not inherently inconsistent. Even so, the Board recognized some tension between the standards, but was satisfied that they could "be reconciled on a case-by-case consideration as they arise." Id. at 321. Whether or not the Board was correct in Dunar, its holding, based on a presumption that the two provisions were consistent, says little about how the Protocol should be interpreted absent such a presumption and given Congress' amendment of the statute to make it conform with the Protocol. See Carvajal-Munoz, 743 F.2d at 574 (distinguishing pre-1980 "prediction" about the relation of the standards with post-1980 analysis of Congress' actual intent). [ Footnote 24 ] See 1 A. Grahl-Madsen, The Status of Refugees in International Law 181 (1966) ("If there is a real chance that he will suffer persecution, that is reason good enough, and his fear' is `well founded"'); G. Goodwin-Gill, The Refugee in International Law 22-24 (1983) (balance of probability test is inappropriate; more appropriate test is "reasonable chance," "substantial grounds for thinking," or "serious possibility"); see generally Cox, "Well Founded Fear of Being Persecuted": The Sources and Application of a Criterion of Refugee Status, 10 Brooklyn J. Int'l Law 333 (1984). [ Footnote 25 ] The 1980 Act made withholding of deportation under § 243(h) mandatory in order to comply with Article 33.1. See supra at 480 U. S. 428 -429. [ Footnote 26 ] Section 207(b)(1) of the Senate bill provided: "The Attorney General shall establish a uniform procedure for an alien physically present in the United States, irrespective of his status, to apply for asylum, and the alien shall be granted asylum if he is a refugee within the meaning of section 101(a)(42)(A) and his deportation or return would be prohibited under section 243(h) of this Act." See S.Rep. at 26. [ Footnote 27 ] The 1980 Act was the culmination of a decade of legislative proposals for reform in the refugee laws. See generally Anker & Posner, The Forty Year Crisis: A Legislative History of the Refugee Act of 1980, 19 San Diego L.Rev. 9, 20-64 (1981). On a number of occasions during that period, the Government objected to the "well founded fear" standard, arguing: "[I]t should be limited by providing that it be a 'well founded fear in the opinion of the Attorney General.' Failure to add 'in the opinion of the Attorney General' would make it extremely difficult to administer this section, since it would be entirely subjective." Western Hemisphere Immigration, Hearings on H.R. 981 before Subcommittee No. 1 of the Committee on the Judiciary, 93d Cong., 1st Sess., 95 (1973) (statement of Hon. Francis Kellogg, Special Assistant to the Secretary of State). See also Anker & Posner, supra, at 25; Helton, Political Asylum Under the 1980 Refugee Act: An Unfulfilled Promise, 10 Mich.J.L.Ref. 243, 249-252 (1984). In light of this kind of testimony and attention to the issue, it is unrealistic to suggest that Congress did not realize that the "well founded fear" standard was significantly different from the standard that has continuously been part of § 243(h). [ Footnote 28 ] There are certain exceptions, not relevant here. See, e.g., § 243(h) (2)(A) (alien himself participated in "the persecution of any person . . ."); § 243(h)(2)(B) (alien was convicted of "serious crime" and "constitutes a danger to the community of the United States"). [ Footnote 29 ] In view of the INS's heavy reliance on the principle of deference as described in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , 467 U. S. 837 (1984), we set forth the relevant text in its entirety: "When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." " The power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress." " Morton v. Ruiz, 415 U. S. 199 , 415 U. S. 231 (1974). If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit, rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." "We have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations" "has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations. . . ." " . . . If this choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned." " United States v. Shimer, 367 U. S. 374 , 367 U. S. 382 , 367 U. S. 383 (1961)." " Accord, 467 U. S. Inc. v. Crisp, [ 467 U.S. 691 , 467 U. S. 699 -700 (1984)]." "In light of these well settled principles, it is clear that the Court of Appeals misconceived the nature of its role in reviewing the regulations at issue. Once it determined, after its own examination of the legislation, that Congress did not actually have an intent regarding the applicability of the bubble concept to the permit program, the question before it was not whether in its view the concept is 'inappropriate' in the general context of a program designed to improve air quality, but whether the Administrator's view that it is appropriate in the context of this particular program is a reasonable one. Based on the examination of the legislation and its history which follows, we agree with the Court of Appeals that Congress did not have a specific intention on the applicability of the bubble concept in these cases, and conclude that the EPA's use of that concept here is a reasonable policy choice for the agency to make." Id. at 467 U. S. 842 -845 (citations and footnotes omitted). [ Footnote 30 ] An additional reason for rejecting the INS's request for heightened deference to its position is the inconsistency of the positions the BIA has taken through the years. An agency interpretation of a relevant provision which conflicts with the agency's earlier interpretation is "entitled to considerably less deference" than a consistently held agency view. Watt v. Alaska, 451 U. S. 259 , 451 U. S. 273 (1981); see also General Electric Co. v. Gilbert, 429 U. S. 125 , 429 U. S. 143 (1976). The BIA has answered the question of the relationship between the objective § 243(h) standard and the fear-based standard of §§ 203(a)(7), 208, and the United Nations Protocol in at least three different ways. During the period between 1965, when § 203(a)(7) was enacted, and 1972, the BIA expressly recognized that § 203(a)(7) and § 243(h) prescribed different standards. See supra at 480 U. S. 433 -434. Moreover, although the BIA decided in 1973 that the two standards were not irreconcilably different, see Matter of Dunar, 14 I. & N.Dec. 310 (1973), as of 1981, the INS was still instructing its officials to apply a "good reason" test to requests for asylum from aliens not within the United States. See Dept. of Justice, INS Operating Instructions Regulations TM 101, § 208.4, p. 766.9 (Nov. 11, 1981) (explaining that "well founded fear" is satisfied if applicant "can show good reason why he/she fears persecution"). In 1984, when this case was decided by the BIA, it adhered to the view that the INS now espouses -- complete identity of the standards. In 1985, however, the BIA decided to reevaluate its position and issued a comprehensive opinion to explain its latest understanding of the "well founded fear" standard. Matter of Acosta, Interim Decision No. 2986 (Mar. 1, 1985). In Acosta, the BIA noted a number of similarities between the two standards and concluded that, in practical application, they are "comparable" or "essentially comparable," and that the differences between them are not "meaningful," but the agency never stated that they are identical, equivalent, or interchangeable. On the contrary, the Acosta opinion itself establishes that the two standards differ. In describing the objective component of the asylum standard, the BIA concluded that the alien is not required to establish the likelihood of persecution to any "particular degree of certainty." Id. at 22. There must be a "real chance" that the alien will become a victim of persecution, ibid., but it is not necessary to show "that persecution is more likely than not' to occur." Id. at 25. The Acosta opinion was written after we had decided in Stevic that the § 243(h) standard "requires that an application be supported by evidence establishing that it is more likely than not that the alien would be subject to persecution," 467 U.S. at 467 U. S. 429 -430. The decision in Acosta and the long pattern of erratic treatment of this issue make it apparent that the BIA has not consistently agreed, and even today does not completely agree, with the INS's litigation position that the two standards are equivalent. [ Footnote 31 ] How "meaningful" the differences between the two standards may be is a question that cannot be fully decided in the abstract, but the fact that Congress has prescribed two different standards in the same Act certainly implies that it intended them to have significantly different meanings. We cannot accept the INS's argument that it is impossible to think about a "well founded fear" except in "more likely than not" terms. The Board was able to do it for a long time under § 203(a)(7), see Matter of Tan, 12 I. & N.Dec. 564 (1967); Matter of Adamska, 12 1. & N.Dec. 201 (1967), and has apparently had little trouble applying the two separate standards in compliance with the recent Courts of Appeals' decisions. See, e.g., Matter of Sanchez and Escobar, Interim Decision No. 2996 (Oct. 15, 1985). [ Footnote 32 ] JUSTICE POWELL argues that the Court of Appeals should be reversed for a different reason -- that it misinterpreted the BIA's decision. See post at 480 U. S. 465 -468. This issue was not raised in any of the parties' briefs, and was neither "set forth" nor "fairly included" within the question presented in the petition for certiorari. See this Court's Rule 20.1. The question presented asked: "Whether an alien's burden of proving eligibility for asylum pursuant to Section 208 (a) of the Immigration and Nationality Act of 1952, 8 U.S.C. 1158 (a), is equivalent to his burden of proving eligibility for withholding of deportation pursuant to Section 243 (h) of the Act, 8 U.S.C. 1253 (h)." Pet. for Cert. (1). This question cannot be read as challenging the Court of Appeals' determination that the BIA in fact required respondent "to demonstrate a clear probability of persecution in order to be declared eligible for asylum." 767 F.2d at 1454. We therefore decline to address the issue. See United Parcel Service, Inc. v. Mitchell, 451 U. S. 56 , 451 U. S. 60 , n. 2 (1981); Irvine v. California, 347 U. S. 128 , 347 U. S. 129 (1954). JUSTICE BLACKMUN, concurring. I join the Court's opinion and judgment. Thus, I accept its "narrow" conclusion that "the Immigration Judge and the BIA were incorrect in holding that the [standards for withholding of deportation and granting asylum] are identical." Ante at 480 U. S. 448 . In accordance with this holding, the Court eschews any attempt to give substance to the term "well founded fear," and leaves that task to the "process of case-by-case adjudication" by the INS, the agency in charge of administering the immigration laws. Ibid. I write separately and briefly to emphasize my understanding that, in its opinion, the Court has directed the INS to the appropriate sources from which the agency should derive the meaning of the "well founded fear" standard, a meaning that will be refined in later adjudication. This emphasis, I believe, is particularly needed where, as here, an agency's previous interpretation of the statutory term is so strikingly contrary to plain language and legislative history. Thus, as the Court observes, ante at 480 U. S. 430 -431, the very language of the term "well founded fear" demands a particular type of analysis -- an examination of the subjective feelings of an applicant for asylum coupled with an inquiry into the objective nature of the articulated reasons for the fear. Moreover, in describing how, in the 1980 Act, Congress was attempting to bring this country's refugee laws into conformity with the United Nations Protocol, the Court notes that the Act's definition of refugee, wherein the "well founded fear" term appears, ante at 480 U. S. 427 , tracks the language of the Page 480 U. S. 451 Protocol. See ante at 480 U. S. 436 -437. Such language has a rich history of interpretation in international law and scholarly commentaries. See ante at 480 U. S. 437 -440, and nn. 20, 24. While the INS need not ignore other sources of guidance, the above directions by the Court should be significant in the agency's formulation of the "well founded fear" standard. Finally, in my view, the well reasoned opinions of the Courts of Appeals, that almost uniformly have rejected the INS's misreading of statutory language and legislative history, provide an admirable example of the very "case-by-case adjudication" needed for the development of the standard. Although the Court refers to a conflict among these courts, see ante at 480 U. S. 426 , n. 2, with one exception, see ibid., all the Courts of Appeals that have addressed this question have concluded that the standards for withholding of deportation and granting asylum are not the same. Rather, differences in opinion have arisen as to the precise formulation of the "well founded fear" standard. * Such differences can arise only when courts or agencies seriously grapple with the problems of developing a standard, whose form is at first given by the statutory language and the intimations of the legislative Page 480 U. S. 452 history, but whose final contours are shaped by the application of the standard to the facts of specific cases. The efforts of these courts stand in stark contrast to -- but, it is sad to say, alone cannot make up for -- the years of seemingly purposeful blindness by the INS, which only now begins its task of developing the standard entrusted to its care. * See, e.g., Carcamo-Flores v. INS, 805 F.2d 60, 68 (CA2 1986) ("What is relevant is the fear a reasonable person would have, keeping in mind the context of a reasonable person who is facing the possibility of persecution, perhaps including a loss of freedom or even, in some cases, the loss of life"); Guevara-Flores v. INS, 786 F.2d 1242, 1249 (CA5 1986), cert. pending, No. 86-388 ("An alien possesses a well founded fear of persecution if a reasonable person in her circumstances would fear persecution if she were to be returned to her native country"); Cardoza-Fonseca v. INS, 767 F.2d 1448, 1452-1453 (CA9 1985) (case below) ("In contrast, the term well founded fear' requires that (1) the alien have a subjective fear, and (2) that this fear have enough of a basis that it can be considered well founded"); Carvajal-Munoz v. INS, 743 F.2d 562, 574 (CA7 1984) ("The applicant must present specific facts establishing that he or she has actually been the victim of persecution or has some other good reason to fear that he or she will be singled out for persecution on account of race, religion, nationality, membership in a particular social group, or political opinion") (emphasis in original). JUSTICE SCALIA, concurring in the judgment. I agree with the Court that the plain meaning of "well founded fear" and the structure of the Immigration and Nationality Act (Act) clearly demonstrate that the "well founded fear" standard and the "clear probability" standard are not equivalent. I concur in the judgment rather than join the Court's opinion, however, for two reasons. First, despite having reached the above conclusion, the Court undertakes an exhaustive investigation of the legislative history of the Act. Ante at 480 U.S. 432 -443. It attempts to justify this inquiry by relying upon the doctrine that if the legislative history of an enactment reveals a " clearly expressed legislative intention' contrary to [the enactment's] language," the Court is required to "question the strong presumption that Congress expresses its intent through the language it chooses." Ante at 480 U.S. 432 , n. 12. Although it is true that the Court in recent times has expressed approval of this doctrine, that is to my mind an ill-advised deviation from the venerable principle that, if the language of a statute is clear, that language must be given effect -- at least in the absence of a patent absurdity. See, e.g., 18 U. S. Wiltberger, 5 Wheat. 76, 18 U. S. 95 -96 (1820) (opinion of Marshall, C.J.); United States v. Hartwell , 6 Wall. 385 (1868); Bate Refrigerating Co. v. Sulzberger, 157 U. S. 1 , 157 U. S. 34 (1895) (opinion of Harlan, J.); Caminetti v. United States, 242 U. S. 470 , 242 U. S. 485 (1917); Packard Motor Car Co. v. NLRB, 330 U. S. 485 , 330 U. S. 492 (1947) (opinion of Jackson, J.); United States v. Sullivan, 332 U. S. 689 , 332 U. S. 693 (1948) (opinion of Black, J.); Unexcelled Chemical Corp. v. United States, 345 U. S. 59 , 345 U. S. 64 (1953) (opinion of Douglas, J.). Judges interpret laws rather than reconstruct Page 480 U. S. 453 legislators' intentions. Where the language of those laws is clear, we are not free to replace it with an unenacted legislative intent. Even by its own lights, however, the Court's explication of the legislative history of the Act is excessive. The INS makes a number of specific arguments based upon the legislative history of the Act. It would have sufficed, it seems to me, for the Court to determine whether these specific arguments establish a "clearly expressed legislative intent" that the two standards be equivalent. I think it obvious that they do not, as apparently does the Court. That being so, there is simply no need for the lengthy effort to ascertain the import of the entire legislative history. And that effort is objectionable not only because it is gratuitous. I am concerned that it will be interpreted to suggest that similarly exhaustive analyses are generally appropriate (or, worse yet, required) in cases where the language of the enactment at issue is clear. I also fear that, in this case, the Court's conduct of that inquiry will be interpreted as a betrayal of its assurance that it does "not attempt to set forth a detailed description of how the well founded fear test should be applied," ante at 480 U. S. 448 . See, e.g., ante at 480 U. S. 438 -440 (appearing to endorse a particular interpretation of "well founded fear"). I am far more troubled, however, by the Court's discussion of the question whether the INS's interpretation of "well founded fear" is entitled to deference. Since the Court quite rightly concludes that the INS's interpretation is clearly inconsistent with the plain meaning of that phrase and the structure of the Act, see ante at 480 U. S. 431 -432, 480 U. S. 449 , and n. 12, there is simply no need, and thus no justification, for a discussion of whether the interpretation is entitled to deference. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , 467 U. S. 837 , 467 U. S. 842 -843 (1984) ("If the intent of Congress is clear, that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress" (footnote omitted)). Even more Page 480 U. S. 454 unjustifiable, however, is the Court's use of this superfluous discussion as the occasion to express controversial, and I believe erroneous, views on the meaning of this Court's decision in Chevron. Chevron stated that, where there is no "unambiguously expressed intent of Congress," id. at 467 U. S. 843 , "a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency," id. at 467 U. S. 844 . This Court has consistently interpreted Chevron -- which has been an extremely important and frequently cited opinion, not only in this Court but in the Courts of Appeals -- as holding that courts must give effect to a reasonable agency interpretation of a statute unless that interpretation is inconsistent with a clearly expressed congressional intent. See, e.g., Japan Whaling Assn. v. American Cetacean Soc., 478 U. S. 221 , 478 U. S. 233 -234 (1986); United States v. Fulton, 475 U. S. 657 , 475 U. S. 666 -667 (1986); Hillsborough County, Florida v. Automated Medical Laboratories, Inc., 471 U. S. 707 , 471 U. S. 714 (1985); Chemical Manufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116 , 470 U. S. 125 , 126 (1985). The Court's discussion is flatly inconsistent with this well established interpretation. The Court first implies that courts may substitute their interpretation of a statute for that of an agency whenever, "[e]mploying traditional tools of statutory construction," they are able to reach a conclusion as to the proper interpretation of the statute. Ante at 480 U. S. 446 . But this approach would make deference a doctrine of desperation, authorizing courts to defer only if they would otherwise be unable to construe the enactment at issue. This is not an interpretation, but an evisceration, of Chevron. The Court also implies that courts may substitute their interpretation of a statute for that of an agency whenever they face "a pure question of statutory construction for the courts to decide," ante at 480 U. S. 446 , rather than a "question of interpretation [in which] the agency is required to apply [a legal standard] to a particular set of facts," ante at 480 U. S. 448 . Page 480 U. S. 455 No support is adduced for this proposition, which is contradicted by the case the Court purports to be interpreting, since in Chevron the Court deferred to the Environmental Protection Agency's abstract interpretation of the phrase "stationary source." In my view, the Court badly misinterprets Chevron. More fundamentally, however, I neither share nor understand the Court's eagerness to refashion important principles of administrative law in a case in which such questions are completely unnecessary to the decision, and have not been fully briefed by the parties. I concur in the judgment. JUSTICE POWELL, with whom THE CHIEF JUSTICE and JUSTICE WHITE join, dissenting. Many people come to our country because they fear persecution in their homeland. Congress has provided two forms of relief for such people: asylum, see Immigration and Nationality Act of 1952, § 208(a), as added by 94 Stat. 105, 8 U.S.C. § 1158(a); and withholding of deportation, see 66 Stat. 212, § 243(h), as amended, 94 Stat. 107, 8 U.S.C. § 1253(h). The Board of Immigration Appeals (BIA) has concluded that there is no practical distinction between the objective proofs an alien must submit to be eligible for these two forms of relief. The Court rejects this conclusion. Because I believe the BIA's interpretation of the statute is reasonable, I dissent. I The Court's opinion seems to assume that the BIA has adopted a rigorous mathematical approach to asylum cases, requiring aliens to demonstrate an objectively quantifiable risk of persecution in their homeland that is more than 50%. The Court then argues that such a position is inconsistent with the language and history of the Act. But this has never been the BIA's position. Thus, it is useful to examine the BIA's approach in some detail before evaluating the Court's Page 480 U. S. 456 rejection of the BIA's approach. After all, the BIA is the tribunal with the primary responsibility for applying the Act, and the greatest experience in doing so. The BIA's interpretation of the statutory term "well founded fear" appears in Matter of Acosta, Interim Decision No. 2986 (Mar. 1, 1985). [ Footnote 2/1 ] Under the BIA's analysis, an immigration judge evaluating an asylum application should begin by determining the underlying historical facts. The burden of persuasion rests on the applicant, who must establish the truth of these facts by a preponderance of the evidence. See id. at 7 (citing, inter alia, 1A C. Gordon & H. Rosenfield, Immigration Law and Procedure § 5.10b, p. 5-121 (rev. ed. 1986)). Once the immigration judge has decided what historical facts the applicant has demonstrated, he then decides whether those facts meet the definition of "refugee" set forth in § 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A). The major point of contention in this case concerns that section's requirement that the fear be "well founded." [ Footnote 2/2 ] In Page 480 U. S. 457 Acosta, the BIA adhered to the interpretation of that language it had developed in Matter of Dunar, 14 I. & N.Dec. 310 (1973): ""[T]he requirement that the fear be well founded' rules out an apprehension which is purely subjective. . . . Some sort of showing must be made, and this can ordinarily be done only by objective evidence. The claimant's own testimony as to the facts will sometimes be all that is available, but the crucial question is whether the testimony, if accepted as true, makes out a realistic likelihood that he will be persecuted. "" Acosta, supra, at 18-19 (quoting Dunar, supra, at 319) (emphasis added by Acosta Board). The Acosta Board went on to caution: "By use of such words [as 'realistic likelihood'], we do not mean that 'a well founded fear of persecution' requires an alien to establish to a particular degree of certainty, such as a 'probability,' as opposed to a 'possibility,' that he will become a victim of persecution. Rather, as a practical matter, what we mean can best be described as follows: the evidence must demonstrate that (1) the alien possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort; (2) the persecutor is already aware, or could easily become aware, that the alien possesses this belief or characteristic; (3) the persecutor has the capability of punishing the alien; and (4) the persecutor has the inclination to punish the alien." Acosta, supra, at 22. Finally, the Acosta opinion compared this "realistic likelihood" standard to the "clear probability" standard applied to Page 480 U. S. 458 applications for withholding of deportation. The BIA's comments are insightful: "One might conclude that 'a well founded fear of persecution,' which requires a showing that persecution is likely to occur, refers to a standard that is different from 'a clear probability of persecution,' which requires a showing that persecution is 'more likely than not' to occur. As a practical matter, however, the facts in asylum and withholding cases do not produce clear-cut instances in which such fine distinctions can be meaningfully made. Our inquiry in these cases, after all, is not quantitative, i.e., we do not examine a variety of statistics to discern to some theoretical degree the likelihood of persecution. Rather our inquiry is qualitative: we examine the alien's experiences and other external events to determine if they are of a kind that enable us to conclude the alien is likely to become the victim of persecution. In this context, we find no meaningful distinction between a standard requiring a showing that persecution is likely to occur and a standard requiring a showing that persecution is more likely than not to occur. . . . Accordingly, we conclude that the standards for asylum and withholding of deportation are not meaningfully different and, in practical application, converge." Id. at 25. In sum, contrary to the Court's apparent conclusion, the BIA does not contend that both the "well founded fear" standard and the "clear probability" standard require proof of a 51% chance that the alien will suffer persecution if he is returned to his homeland. The BIA plainly eschews analysis resting on mathematical probabilities. Rather, the BIA has adopted a four-part test requiring proof of facts that demonstrate a realistic likelihood of persecution actually occurring. The heart of the Acosta decision is the BIA's empirical conclusion, based on its experience in adjudicating asylum applications, that, if the facts establish such a basis for an alien's Page 480 U. S. 459 fear, it rarely will make a difference whether the judge asks if persecution is "likely" to occur or "more likely than not" to occur. If the alien can establish such a basis, he normally will be eligible for relief under either standard. II In Part II of its opinion, the Court examines the language of the Act. Section 243(h) provides that the Attorney General shall grant withholding of deportation to any country where "such alien's life or freedom would be threatened." 8 U.S.C. § 1253(h). Section 208(a) provides that the Attorney General has discretion to grant asylum "if the Attorney General determines that such alien is a refugee." § 1158(a). The crucial language of § 101(a)(42)(A) of the Act, as added by 94 Stat. 102, defines a refugee as a person who has "a well founded fear of persecution." § 1101(a)(42)(A). In the Court's view, this language all but disposes of the case. Ante at 480 U. S. 427 -432. With respect to the issue presented by this case, I find the language far more ambiguous than the Court does. Respondent contends that the BIA has fallen into error by equating the objective showings required under §§ 208(a) and 243(h). The Court notes that the language of § 208(a) differs from the language of § 243(h) in that it contemplates a partially subjective inquiry. From this premise, the Court moves with little explanation to the conclusion that the objective inquiries under the two sections necessarily are different. In reaching this conclusion, the Court gives short shrift to the words "well founded," that clearly require some objective basis for the alien's fear. The critical question presented by this case is whether the objective basis required for a fear of persecution to be "well founded" differs in practice from the objective basis required for there to be a "clear probability" of persecution. Because both standards necessarily contemplate some objective basis, I cannot agree with the Court's Page 480 U. S. 460 implicit conclusion that the statute resolves this question on its face. In my view, the character of evidence sufficient to meet these two standards is a question best answered by an entity familiar with the types of evidence and issues that arise in such cases. Congress limited eligibility for asylum to those persons whom "the Attorney General determines" to be refugees. See § 208(a), 8 U.S.C. § 1158(a). The Attorney General has delegated the responsibility for making these determinations to the BIA. That Board has examined more of these cases than any court ever has or ever can. It has made a considered judgment that the difference between the "well founded" and the "clear probability" standards is of no practical import: that is, the evidence presented in asylum and withholding of deportation cases rarely, if ever, will meet one of these standards without meeting both. This is just the type of expert judgment -- formed by the entity to whom Congress has committed the question -- to which we should defer. The Court ignores the practical realities recognized by the expert agency, and instead concentrates on semantic niceties. It posits a hypothetical situation in which a government sought to execute every 10th adult male. In its view, fear of such executions would be "well founded" even if persecution of a particular individual would not be "more likely than not" to occur. See ante at 480 U. S. 431 . But this hypothetical is irrelevant; it addresses a mathematically demanding interpretation of "well founded" that has no relation to the BIA's actual treatment of asylum applications. Nor does it address the validity of the BIA's judgment that evidence presenting this distinction will be encountered infrequently, if ever. Common sense and human experience support the BIA's conclusion. Governments rarely,persecute people by the numbers. It is highly unlikely that the evidence presented at an asylum or withholding of deportation hearing will demonstrate the mathematically specific risk of persecution posited by the Court's hypothetical. Taking account of the Page 480 U. S. 461 types of evidence normally available in asylum cases, the BIA has chosen to make a qualitative evaluation of "realistic likelihoods." As I read the Acosta opinion, an individual who fled his country to avoid mass executions might be eligible for both withholding of deportation and asylum, whether or not he presented evidence of the numerical reach of the persecution. See Acosta, Interim Decision No. 2986, at 18-25. [ Footnote 2/3 ] Nowhere does the Court consider whether the BIA's four-element interpretation of "well founded" is unreasonable. Nor does the Court consider the BIA's view of the types of evidentiary presentations aliens generally make in asylum cases. In sum, the words Congress has chosen -- "well founded" fear -- are ambiguous. They contemplate some objective basis without specifying a particular evidentiary threshold. There is no reason to suppose this formulation is inconsistent with the analysis set forth in Acosta. The BIA has concluded that a fear is not "well founded" unless the fear has an objective basis indicating that there is a "realistic likelihood" that persecution would occur. Based on the text of the Act alone, I cannot conclude that this conclusion is unreasonable. III The Court bolsters its interpretation of the language of the Act by reference to three parts of the legislative history. A closer examination of these materials demonstrates that each of them is ambiguous. Nothing the Court relies on provides a positive basis for arguing that there is a material difference between the two standards. Page 480 U. S. 462 A First, the Court cites legislative history indicating that Congress wished to preserve some existing standard when it placed the words "well founded fear" in the Act. The Court concludes that the standard Congress intended to preserve was the BIA's practice under the old § 203(a)(7), 79 Stat. 913 (1965). That section authorized the Attorney General to grant conditional entry to aliens fleeing from Communist countries or the Middle East, so long as they established a "fear of persecution." The Court argues that Congress chose the words "well founded fear" to "preserve" as an asylum standard the prior interpretation of the word "fear" in the standard for conditional entry. In contrast, the United States argues that Congress chose the words "well founded fear" to preserve the Attorney General's regulations governing applications for asylum by aliens in the United States. [ Footnote 2/4 ] These regulations were substantially in accord with the BIA's view, namely that there is no significant difference between the "well founded fear" and "clear probability" standards. Compare 8 CFR §§ 108.3(a) and 236.3 (a)(2) (1980) (asylum) with 8 CFR § 242.17(c) (1980) (withholding of deportation). Common sense suggests that the United States has the better of this argument. It is more natural to speak of "preserving" an interpretation that had governed the same form of relief than one that had applied to a different form of relief. Moreover, the legislative history makes it clear that Congress was referring to the regulations, rather than to § 203(a)(7). The Senate Report states that the bill "improv[es] Page 480 U. S. 463 and clarif[ies] the procedures for determining asylum claims filed by aliens who are physically present in the United States. The substantive standard is not changed." S.Rep. No. 96-256, p. 9 (1979). As the Court recognizes, ante at 480 U. S. 435 , n. 17, this statement unquestionably refers to the informal procedures for aliens in the United States, not the statutory procedures under § 203(a)(7). [ Footnote 2/5 ] Similarly, the House Report states that "the new definition does not create a new and expanded means of entry, but instead regularizes and formalizes the policies and practices that have been followed in recent years." H.R.Rep. No. 96-608, p. 10 (1979) (emphasis added). Congress hardly would have felt a need to "formalize" the statutory procedures under § 203(a)(7). Indeed, the House Report cites the Attorney General's regulations as the extant procedures to which it was referring. H.R.Rep. at 17. In my view, the legislative history indicates that Congress' choice of the words "well founded" fear as the standard of eligibility for asylum was intended to carry forward the practice of the Attorney General in adjudicating asylum applications. The Attorney General had concluded that the standard for asylum was substantially identical to the standard for withholding of deportation. His decision to interpret the language of § 208 in the same way is entirely reasonable. B Second, the Court relies on materials interpreting the United Nations Protocol. Ante at 480 U. S. 437 -440. For several reasons, I find these materials to be only marginally relevant. Page 480 U. S. 464 Both the President and the Senate thought that the Protocol was perfectly consistent with our country's immigration laws. See INS v. Stevic, 467 U. S. 407 , 467 U. S. 417 (1984) (citing legislative history). We should be reluctant to assume that our country has been violating the Protocol during the 20 years since its adoption. Moreover, as the Court recognizes, statements by the United Nations High Commissioner for Refugees have no binding force, because " the determination of refugee status under the . . . Protocol . . . is incumbent upon the Contracting State.'" Ante at 480 U. S. 439 , n. 22 (quoting Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status 1(ii) (Geneva, 1979)). In any event, the materials discussed by the Court shed little or no light on the question presented by this case. None of them states that the burden of proof for nonrefoulement under Article 33.1 of the United Nations Protocol of 1967 -- a remedy essentially identical to withholding of deportation under § 243(h) of the Act -- is higher than the burden of proof for asylum under Article 34. The only thing the materials tend to establish is that a mathematical approach to the likelihood of persecution in asylum cases is arguably inconsistent with the sense of the drafters of the Protocol. The BIA has declined to adopt such an approach. See supra at 480 U. S. 457 -459. It is simply irrelevant that this approach might be inconsistent with the views of commentators on the Protocol. C Finally, the Court places great weight on the changes in the Act made by the Conference Committee. The Court notes that the Senate bill, S. 643, authorized the Attorney General to grant asylum if the applicant "is a refugee within the meaning of section 101(a)(42)(A) and his deportation or return would be prohibited under section 243(h) of this Act." S.Rep. No. 96-256, at 26. The Court conjectures that this language "indicates that the Senate recognized that Page 480 U. S. 465 there is a difference between the 'well founded fear' standard and the clear probability standard. The enactment of the House bill, rather than the Senate bill, in turn demonstrates that Congress eventually refused to restrict eligibility for asylum only to aliens meeting the stricter standard." Ante at 480 U. S. 442 (footnote omitted). Neither the premise of the Court nor its conclusion is justified. The language of the Senate bill does not demonstrate that the Senate recognized a difference between the two standards. The Senate just as easily could have included the language to ensure that the Attorney General held to his position that there was no difference between the standards. Moreover, there is no reason to believe that the changes made by the Conference Committee reflected a considered rejection of this portion of the Senate's definition of refugee. Rather, the Conference Committee Report demonstrates that the Conference thought both bills adopted the same general definition of refugee -- the U.N. definition. See H.R.Conf.Rep. No. 96-781, p. 19 (1980). The differences the Conference saw between the bills related to treatment of refugees still in their homeland and to refugees who have been "firmly resettled" in another country. See ibid. In short, I see no reason to believe that the minor differences in wording between the Senate bill and the Act as passed reflect a rejection of the position that there is no significant difference between the two standards. [ Footnote 2/6 ] Thus, I place no weight on the Conference Committee's choice of the language of the House bill. Even if I agreed with the Court's conclusion that there is a significant difference between the standards for asylum and Page 480 U. S. 466 withholding of deportation, I would reverse the decision of the Court of Appeals and uphold the decision of the BIA in this case. [ Footnote 2/7 ] A careful reading of the decisions of the BIA and the Immigration Judge demonstrates that the BIA applied the lower asylum standard to this case. Respondent's claim for asylum rested solely on testimony that her brother had experienced difficulties with the authorities in Nicaragua. The Immigration Judge rejected respondent's claim because he found "no evidence of any substance in the record other than her brother's claim to asylum." App. to Pet. for Cert. 27a. He further found: "None of the evidence indicates that the respondent would be persecuted for political beliefs, whatever they may be, or because she belongs to a particular social group. She has not proven that she or any other members of her family, other than her brother, has [ sic ] been detained, interrogated, arrested and imprisoned, tortured and convicted and sentenced by the regime presently in power in Nicaragua." Ibid. The absence of such evidence was particularly probative because many of the other members of respondent's family -- her parents, two sisters, her brother's wife, and her brother's Page 480 U. S. 467 two children -- were still in Nicaragua, and thus presumably subject to the persecution respondent feared. On appeal, the BIA affirmed. It decided this case after the passage of the Act, but before its opinion in Acosta. At that time, the BIA was confronted with a number of conflicting decisions by Courts of Appeals as to the correct standard for evaluating asylum applications. The BIA noted three different formulations of the "well founded fear" standard: the "clear probability" test, see Rejaie v. INS, 691 F.2d 139 (CA3 1982); the "good reason" test, see Stevic v. Sava, 678 F.2d 401 (CA2 1982), rev'd on other grounds, INS v. Stevic, 467 U. S. 407 (1984); and the "realistic likelihood" test the BIA had adopted in Matter of Dunar, 14 I. & N.Dec. 310 (1973). App. to Pet. for Cert. 21a. See supra at 480 U. S. 456 -459 (discussing Acosta ). Reviewing the evidence respondent had submitted to the Immigration Judge, the BIA concluded that respondent could not obtain relief under any of the standards. The BIA focused especially on the fact that respondent "has openly admitted that she herself has taken no actions against the Nicaraguan government. She admits that she has never been politically active. She testified that she never assisted her brother in any of his political activities. Moreover, she admits that she has never been singled out for persecution by the present government." App. to Pet. for Cert. 22a. [ Footnote 2/8 ] Respondent filed a petition for review with the Court of Appeals for the Ninth Circuit. Without examining either the factual or legal basis for the BIA's decision, the court granted the petition, reversed the BIA's decision, and remanded the application to the BIA for further consideration. Page 480 U. S. 468 767 F.2d 1448 (1985). The sole basis articulated for this action was a conclusion that the BIA had applied the wrong legal standard. The Court of Appeals repeated its position that the standards for asylum and withholding of deportation are different. According to that court, an asylum applicant must "present 'specific facts' through objective evidence to prove either past persecution or ' good reason ' to fear future persecution." Id. at 1453 (quoting Carvajal-Munoz v. INS, 743 F.2d 562, 574 (CA7 1984)) (emphasis added). It then noted that the BIA had reached a different conclusion in Acosta, and stated: "[T]he Board appears to feel that it is exempt from the holding of Marbury v. Madison . . . and not constrained by circuit court opinions. . . . [T]he Board applied its own construction of the applicant's burden of proof in an asylum case to the claims of both Cardoza-Fonseca and [her copetitioner]. It held that they were required to demonstrate a clear probability of persecution in order to be declared eligible for asylum." 767 F.2d at 1454 (citation omitted). This statement is simply inconsistent with the BIA's opinion. As I have explained, the BIA acknowledged the conflicting decisions of the various Courts of Appeals, and explicitly tested the application under three different standards. The least burdensome of these -- the "good reason" standard -- is identical to the court's statement quoted supra, this page. The Court of Appeals completely ignored the words in which the BIA framed its decision. It failed to examine the factual findings on which the decision rested. At least in this case, it appears that the Court of Appeals, and not the BIA, has misunderstood the proper relation between courts and agencies. That court properly could have considered whether substantial evidence supported the BIA's conclusion that respondent failed to demonstrate a "good reason" to fear persecution, but it should not have assumed that Page 480 U. S. 469 the BIA tested respondent's application by a higher standard than the BIA's own opinion reflects. V In my view, the Court misconstrues the Act and misreads its legislative history. Moreover, neither this Court nor the Court of Appeals has identified an error in the decision of the BIA in this case. Neither court has examined the factual findings on which the decision rested, or the legal standard the BIA applied to these facts. I would reverse the decision of the Court of Appeals. [ Footnote 2/1 ] The Court suggests that the BIA's interpretation of the "well founded fear" standard has been "erratic." Ante at 480 U. S. 446 -447, n. 30. An examination of the relevant BIA decisions leads to a contrary conclusion. The BIA first addressed the standard in Matter of Dunar, 14 I. & N.Dec. 310 (1973). In that case, the BIA considered the meaning of the term "well founded fear" in the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 6225, T.I.A.S. No. 6577 (1968). When Congress inserted this language in the asylum provisions of the Act in 1980, the BIA interpreted the language to mean exactly the same thing as the language in the Protocol. Matter of Acosta, Interim Decision No. 2986 (Mar. 1, 1985). Thus, the BIA's position has never changed. The Court bases its characterization of the BIA's record on decisions applying the more lenient "fear" standard. If anything about these statutes is clear, it is that a "well founded fear" is something more than a "fear." It is unfair to characterize the BIA's decisions as "erratic" when the agency was, in fact, interpreting two different standards. [ Footnote 2/2 ] The BIA has interpreted the statutory definition to require proof of four elements: (i) the alien must have a "fear" of "persecution;" (ii) the fear must be "well founded;" (iii) the persecution must be "on account of race, religion, nationality, membership in a particular social group, or political opinion;" and (iv) the alien must be unable or unwilling to return to his homeland because of persecution or his well founded fear of persecution. See id. at 11. [ Footnote 2/3 ] Of course, the applicant would have to meet all four elements of the well founded fear standards. See supra at 480 U. S. 457 (quoting Acosta, Interim Decision No. 2986, at 22). Although these requirements restrict grants of relief in some cases, none of them rests on the mathematical considerations that the Court suggests govern current BIA practice. Moreover, the Court's exegesis of the "plain meaning" of the phrase "well founded" in no way suggests that the BIA's four-part test is a misinterpretation of the statute. [ Footnote 2/4 ] Those regulations constituted this country's informal attempt to comply with the exhortation of the Convention Relating to the Status of Refugees to "facilitate the assimilation and naturalization," Art. 34, Jan. 31, 1967, [1968] 19 U.S.T. 6269, 6276, T.I.A.S. No. 6577, of persons who have a "well founded fear of being persecuted," Art. 1(A)(2), id. at 6261. All parties agree that the Convention's language was the ultimate source of the language Congress placed in the Act. [ Footnote 2/5 ] The Court concludes that the Senate Report has no probative force because the Conference Committee adopted the House language, rather than the Senate language. But the changes in language made by the Conference Committee do not help the Court's position. As I explain infra, this page, the House Report indicates that the House bill also was intended to adopt the standards set forth in the regulations. Moreover, there is no suggestion in the Conference Report that this change in language affected the substantive standard. See infra at 480 U. S. 464 -465. [ Footnote 2/6 ] This interpretation is supported by evidence that the House bill, like the Senate bill, was intended to preserve the Attorney General's regulations treating the two standards as substantially identical. See supra at 480 U. S. 463 . [ Footnote 2/7 ] The Court contends that this question is not before us. Ante at 480 U. S. 448 , n. 31. I find this suggestion quite strange. The Immigration and Naturalization Service asked the Court to determine "[w]hether an alien's burden of proving eligibility for asylum . . . is equivalent to his burden of proving eligibility for withholding of deportation." Pet. for Cert. (1). The question whether the two standards are equivalent "fairly includes," under this Court's Rule 21.1(a), the problem of defining the appropriate standard for asylum. And that question can only be answered on the facts of this case. The Court does not sit to answer hypothetical questions of statutory construction. Normally we resolve such questions only by examining the facts of the case before us. In this case, the Court affirms the Court of Appeals' decision that the BIA required an intolerably high burden of proof in this case. Yet, like the Court of Appeals, the Court examines neither the facts of the case before us nor the legal standard the BIA applied. In my view, Rule 21 does not contemplate this result. [ Footnote 2/8 ] In terms of the four-element Acosta test for well founded fear, respondent's claim would have failed both the first and the second elements. Respondent failed to show either that she "possesses a belief or characteristic the persecutor seeks to overcome" or that "the persecutor is already aware, or could easily become aware, that [she] possesses this belief or characteristic." Acosta, Interim Decision No. 2986, at 22.

In this case, the Supreme Court held that the "clear probability" standard of proof under Section 243(h) of the Immigration and Nationality Act does not govern asylum applications under Section 208(a). The Court found that the plain language of the statute and its legislative history indicate a congressional intent for different proof standards between the two sections. Section 243(h) requires objective evidence of likely persecution, while Section 208(a) considers the alien's subjective fear of persecution, as long as it is "well-founded." The Court also noted that Congress left Section 243(h)'s standard intact when it drafted Section 208(a), highlighting their differing emphasis.

Immigration & National Security

INS v. Elias-Zacarias

https://supreme.justia.com/cases/federal/us/502/478/

OCTOBER TERM, 1991 Syllabus IMMIGRATION AND NATURALIZATION SERVICE v. ELIAS-ZACARIAS CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 90-1342. Argued November 4, 1991-Decided January 22,1992 Respondent, a native of Guatemala, was apprehended for entering the United States without inspection. In his deportation proceedings, the Board of Immigration Appeals (BIA) determined that he was ineligible for a discretionary grant of asylum. In reversing that determination, the Court of Appeals ruled that a guerrilla organization's acts of conscription constitute persecution on account of political opinion and that respondent therefore had a well-founded fear of such persecution. Held: A guerrilla organization's attempt to coerce a person into performing military service does not necessarily constitute "persecution on account of ... political opinion" under § 101(a)(42) of the Immigration and Nationality Act, 8 U. S. C. § 1101(a)(42). Even one who supports the political aims of a guerrilla movement might resist military combat and thus become the object of such coercion. Moreover, persecution on ac count of political opinion is not established by the fact that the coercing guerrillas had "political" motives. In order to satisfy § 101(a)(42), the persecution must be on account of the victim's political opinion, not the persecutor's. Since respondent did not produce evidence so compelling that no reasonable factfinder could fail to find the requisite fear of persecution on account of political opinion, the Court of Appeals had no proper basis to set aside the BIA's determination. See 8 U. S. C. § 1l05a(a)(4); NLRB v. Columbian Enameling & Stamping Co., 306 U. S. 292 ,300. Pp.481-484. 921 F.2d 844 , reversed. SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, KENNEDY, SOUTER, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BLACKMUN and O'CONNOR, JJ., joined, post, p. 484. Maureen E. Mahoney argued the cause for petitioner. On the briefs were Solicitor General Starr, Assistant Attorney General Gerson, Acting Deputy Solicitor General Wright, Stephen J. Marzen, and Alice M. King. 479 James Robertson argued the cause for respondent. With him on the brief were Carol F. Lee and Peter A. Von Mehren.* JUSTICE SCALIA delivered the opinion of the Court. The principal question presented by this case is whether a guerrilla organization's attempt to coerce a person into performing military service necessarily constitutes "persecution on account of ... political opinion" under § 101(a)(42) of the Immigration and Nationality Act, as added, 94 Stat. 102, 8 U. S. C. § 1l01(a)(42). I Respondent Elias-Zacarias, a native of Guatemala, was apprehended in July 1987 for entering the United States without inspection. In deportation proceedings brought by petitioner Immigration and Naturalization Service (INS), Elias-Zacarias conceded his deportability but requested asylum and withholding of deportation. The Immigration Judge summarized Elias-Zacarias' testi mony as follows: "[A]round the end of January in 1987 [when EliasZacarias was 18], two armed, uniformed guerrillas with handkerchiefs covering part of their faces came to his home. Only he and his parents were there .... [T]he guerrillas asked his parents and himself to join with them, but they all refused. The guerrillas asked them why and told them that they would be back, and that they should think it over about joining them. *Briefs of amici curiae urging affirmance were filed for the American Immigration Lawyers Association by Kevin R. Johnson, Joshua R. Floum, and Robert Rubin; for the Lawyers Committee for Human Rights et al. by Arthur C. Helton, Q Thomas Johnson, Jr., and Andrew I. Schoenholtz; and for the United Nations High Commissioner for Refugees by Arthur L. Bentley III and Julian Fleet. 480 "[Elias-Zacarias] did not want to join the guerrillas because the guerrillas are against the government and he was afraid that the government would retaliate against him and his family if he did join the guerrillas. [H]e left Guatemala at the end of March [1987] ... because he was afraid that the guerrillas would return." App. to Pet. for Cert. 40a-41a. The Immigration Judge understood from this testimony that Elias-Zacarias' request for asylum and for withholding of deportation was "based on this one attempted recruitment by the guerrillas." Id., at 41a. She concluded that EliasZacarias had failed to demonstrate persecution or a wellfounded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, and was not eligible for asylum. See 8 U. S. C. §§ 1101(a)(42), 1158(a). She further concluded that he did not qualify for withholding of deportation. The Board of Immigration Appeals (BIA) summarily dismissed Elias-Zacarias' appeal on procedural grounds. EliasZacarias then moved the BIA to reopen his deportation hearing so that he could submit new evidence that, following his departure from Guatemala, the guerrillas had twice returned to his family's home in continued efforts to recruit him. The BIA denied reopening on the ground that even with this new evidence Elias-Zacarias had failed to make a prima facie showing of eligibility for asylum and had failed to show that the results of his deportation hearing would be changed. The Court of Appeals for the Ninth Circuit, treating the BIA's denial of the motion to reopen as an affirmance on the merits of the Immigration Judge's ruling, reversed. 921 F.2d 844 (1990). The court ruled that acts of conscription by a nongovernmental group constitute persecution on account of political opinion, and determined that Elias-Zacarias had a "well-founded fear" of such conscription. Id., at 850852. We granted certiorari. 500 U. S. 915 (1991). 481 II Section 208(a) of the Immigration and Nationality Act, 8 U. S. C. § 1158(a), authorizes the Attorney General, in his discretion, to grant asylum to an alien who is a "refugee" as defined in the Act, i. e., an alien who is unable or unwilling to return to his home country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." § 101(a)(42)(A), 8 U. S. C. § 1l01(a)(42)(A). See INS v. Cardoza-Fonseca, 480 U. S. 421 , 423, 428, n. 5 (1987). The BIA's determination that Elias-Zacarias was not eligible for asylum must be upheld if "supported by reasonable, substantial, and probative evidence on the record considered as a whole." 8 U. S. C. § 1l05a(a)(4). It can be reversed only if the evidence presented by Elias-Zacarias was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed. NLRB v. Co lumbian Enameling & Stamping Co., 306 U. S. 292 , 300 (1939).1 The Court of Appeals found reversal warranted. In its view, a guerrilla organization's attempt to conscript a person into its military forces necessarily constitutes "persecution on account of ... political opinion," because "the person resisting forced recruitment is expressing a political opinion hostile to the persecutor and because the persecutors' motive in carrying out the kidnapping is political." 921 F. 2d, at 850. The first half of this seems to us untrue, and the second half irrelevant. 1 Quite beside the point, therefore, is the dissent's assertion that "the record in this case is more than adequate to support the conclusion that this respondent's refusal [to join the guerrillas] was a form of expressive conduct that constituted the statement of a 'political opinion,'" post, at 488 (emphasis added). To reverse the BrA finding we must find that the evidence not only supports that conclusion, but compels it-and also compels the further conclusion that Elias-Zacarias had a well-founded fear that the guerrillas would persecute him because of that political opinion. 482 Even a person who supports a guerrilla movement might resist recruitment for a variety of reasons-fear of combat, a desire to remain with one's family and friends, a desire to earn a better living in civilian life, to mention only a few. The record in the present case not only failed to show a political motive on Elias-Zacarias' part; it showed the opposite. He testified that he refused to join the guerrillas because he was afraid that the government would retaliate against him and his family if he did so. Nor is there any indication (assuming, arguendo, it would suffice) that the guerrillas erroneously believed that Elias-Zacarias' refusal was politically based. As for the Court of Appeals' conclusion that the guerrillas' "motive in carrying out the kidnapping is political": It apparently meant by this that the guerrillas seek to fill their ranks in order to carry on their war against the government and pursue their political goals. See 921 F. 2d, at 850 (citing Arteaga v. INS, 836 F.2d 1227 , 1232, n. 8 (CA9 1988)); 921 F. 2d, at 852. But that does not render the forced recruitment "persecution on account of ... political opinion." In construing statutes, "we must, of course, start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used." Richards v. United States, 369 U. S. 1 , 9 (1962); see Cardoza-Fonseca, supra, at 431; INS v. Phinpathya, 464 U. S. 183 , 189 (1984). The ordinary meaning of the phrase "persecution on account of ... political opinion" in § 101(a)(42) is persecution on account of the victim's political opinion, not the persecutor's. If a Nazi regime persecutes Jews, it is not, within the ordinary meaning of language, engaging in persecution on account of political opinion; and if a fundamentalist Moslem regime persecutes democrats, it is not engaging in persecution on account of religion. Thus, the mere existence of a generalized "political" motive underlying the guerrillas' forced recruitment is inadequate to establish (and, indeed, goes far to refute) the proposition that Elias-Zacarias fears persecution on account of political opinion, as § 101(a)(42) requires. 483 Elias-Zacarias appears to argue that not taking sides with any political faction is itself the affirmative expression of a political opinion. That seems to us not ordinarily so, since we do not agree with the dissent that only a "narrow, grudging construction of the concept of 'political opinion,'" post, at 487, would distinguish it from such quite different concepts as indifference, indecisiveness, and risk averseness. But we need not decide whether the evidence compels the conclusion that Elias-Zacarias held a political opinion. Even if it does, Elias-Zacarias still has to establish that the record also compels the conclusion that he has a "well-founded fear" that the guerrillas will persecute him because of that political opinion, rather than because of his refusal to fight with them. He has not done so with the degree of clarity necessary to permit reversal of a BIA finding to the contrary; indeed, he has not done so at alP Elias-Zacarias objects that he cannot be expected to provide direct proof of his persecutors' motives. We do not require that. But since the statute makes motive critical, he must provide some evidence of it, direct or circumstantial. And if he seeks to obtain judicial reversal of the BIA's determination, he must show that the evidence he presented was 2 The dissent misdescribes the record on this point in several respects. For example, it exaggerates the "well foundedness" of whatever fear Elias-Zacarias possesses, by progressively transforming his testimony that he was afraid the guerrillas would" 'take me or kill me,'" post, at 484, into, first, "the guerrillas' implied threat to 'take' him or to 'kill' him," post, at 489 (emphasis added), and, then, into the flat assertion that the guerrillas "responded by threatening to 'take' or to 'kill' him," post, at 490 (emphasis added). The dissent also erroneously describes it as "undisputed" that the cause of the harm Elias-Zacarias fears, if that harm should occur, will be "the guerrilla organization's displeasure with his refusal to join them in their armed insurrection against the government." Post, at 484 (emphasis added). The record shows no such concession by the INS, and all Elias-Zacarias said on the point was that he feared being taken or killed by the guerrillas. It is quite plausible, indeed likely, that the taking would be engaged in by the guerrillas in order to augment their troops rather than show their displeasure; and the killing he feared might well be a killing in the course of resisting being taken. 484 so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. That he has not done. The BIA's determination should therefore have been upheld in all respects, and we reverse the Court of Appeals' judgment to the contrary. It is so ordered. JUSTICE STEVENS, with whom JUSTICE BLACKMUN and JUSTICE O'CONNOR join, dissenting. Respondent refused to join a guerrilla organization that engaged in forced recruitment in Guatemala. He fled the country because he was afraid the guerrillas would return and "take me and kill me." 1 After his departure, armed guerrillas visited his family on two occasions searching for him. In testimony that the hearing officer credited, he stated that he is still afraid to return to Guatemala because "these people" can come back to "take me or kill me." 2 It is undisputed that respondent has a well-founded fear that he will be harmed, if not killed, if he returns to Guatemala. It is also undisputed that the cause of that harm, if it should occur, is the guerrilla organization's displeasure with his refusal to join them in their armed insurrection against the government. The question of law that the case presents is whether respondent's well-founded fear is a "fear of persecution on account of ... political opinion" within the meaning of § lOl(a)(42) of the Immigration and Nationality Act.3 1 App. to Brief in Opposition 5a. 2Id., at 6a. 3 Section 101(a)(42), as codified in 8 U. S. C. § llOl(a)(42), provides: "(a) As used in this chapter- "(42) The term 'refugee' means (A) any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of perse- 485 If respondent were to prevail, as he did in the Court of Appeals, 921 F.2d 844 (CA9 1990), he would be classified as a "refugee" and therefore be eligible for a grant of asylum. He would not be automatically entitled to that relief, however, because "the Attorney General is not required to grant asylum to everyone who meets the definition of refugee." INS v. Cardoza-Fonseca, 480 U. S. 421 , 428, n. 5 (1987) (emphasis in original). Instead, § 208 of the Act provides that the Attorney General may, "in [his] discretion," grant asylum to refugees.4 cution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or (B) in such special circumstances as the President after appropriate consultation (as defined in section 1157(e) of this title) may specify, any person who is within the country of such person's nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a wellfounded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The term 'refugee' does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion." 4 Section 208(a) of the Act, as codified at 8 U. S. C. § 1158(a), provides: "The Attorney General shall establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien's status, to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title." As we recognized in INS v. Cardoza-Fonseca, 480 U. S. 421 , 444-445 (1987): "'The [House] Committee carefully considered arguments that the new definition might expand the numbers of refugees eligible to come to the United States and force substantially greater refugee admissions than the country could absorb. However, merely because an individual or group comes within the definition will not guarantee resettlement in the United States.' H. R. Rep. [96-608, p. 10 (1979)]. " ... Congress has assigned to the Attorney General and his delegates the task of making these hard individualized decisions; although Congress 486 Today the Court holds that respondent's fear of persecution is not "on account of ... political opinion" for two reasons. First, he failed to prove that his refusal to join the guerrillas was politically motivated; indeed, he testified that he was at least in part motivated by a fear that government forces would retaliate against him or his family if he joined the guerrillas. See ante, at 482-483. Second, he failed to prove that his persecutors' motives were political. In particular, the Court holds that the persecutors' implicit threat to retaliate against respondent "because of his refusal to fight with them," ante, at 483, is not persecution on account of political opinion. I disagree with both parts of the Court's reasoning. I A political opinion can be expressed negatively as well as affirmatively. A refusal to support a cause-by staying home on election day, by refusing to take an oath of allegiance, or by refusing to step forward at an induction center-can express a political opinion as effectively as an affirmative statement or affirmative conduct. Even if the refusal is motivated by nothing more than a simple desire to continue living an ordinary life with one's family, it is the kind of political expression that the asylum provisions of the statute were intended to protect. As the Court of Appeals explained in Bolanos-Hernandez "Choosing to remain neutral is no less a political decision than is choosing to affiliate with a particular political faction. Just as a nation's decision to remain neutral is a political one, see, e. g., Neutrality Act of 1939, 22 U. S. C. §§441-465 (1982), so is an individual's. When a person is aware of contending political forces and af- could have crafted a narrower definition, it chose to authorize the Attorney General to determine which, if any, eligible refugees should be denied asylum." 487 firmatively chooses not to join any faction, that choice is a political one. A rule that one must identify with one of two dominant warring political factions in order to possess a political opinion, when many persons may, in fact, be opposed to the views and policies of both, would frustrate one of the basic objectives of the Refugee Act of 1980-to provide protection to all victims of persecution regardless of ideology. Moreover, construing 'political opinion' in so short-sighted and grudging a manner could result in limiting the benefits under the ameliorative provisions of our immigration laws to those who join one political extreme or another; moderates who choose to sit out a battle would not qualify." Id., at 1286 (emphasis in original; footnote omitted). The narrow, grudging construction of the concept of "political opinion" that the Court adopts today is inconsistent with the basic approach to this statute that the Court endorsed in INS v. Cardoza-Fonseca, supra. In that case, relying heavily on the fact that an alien's status as a "refugee" merely makes him eligible for a discretionary grant of asylum-as contrasted with the entitlement to a withholding of deportation authorized by § 243(h) of the Act-the Court held that the alien's burden of proving a well-founded fear of persecution did not require proof that persecution was more likely than not to occur. We explained: "Our analysis of the plain language of the Act, its symmetry with the United Nations Protocol, and its legislative history, lead inexorably to the conclusion that to show a 'well-founded fear of persecution,' an alien need not prove that it is more likely than not that he or she will be persecuted in his or her home country. We find these ordinary canons of statutory construction compelling, even without regard to the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien. See INS v. Errico, 385 488 u. S. 214, 225 (1966); Costello v. INS, 376 U. S. 120 , 128 (1964); Fong Haw Tan v. Phelan, 333 U. S. 6 , 10 (1948). "Deportation is always a harsh measure; it is all the more replete with danger when the alien makes a claim that he or she will be subject to death or persecution if forced to return to his or her home country. In enacting the Refugee Act of 1980 Congress sought to 'give the United States sufficient flexibility to respond to situations involving political or religious dissidents and detainees throughout the world.' H. R. Rep. [96-608, p. 9 (1979)]. Our holding today increases that flexibility by rejecting the Government's contention that the Attorney General may not even consider granting asylum to one who fails to satisfy the strict § 243(h) standard. Whether or not a 'refugee' is eventually granted asylum is a matter which Congress has left for the Attorney General to decide. But it is clear that Congress did not intend to restrict eligibility for that relief to those who could prove that it is more likely than not that they will be persecuted if deported." 480 U. S., at 449-450. Similar reasoning should resolve any doubts concerning the political character of an alien's refusal to take arms against a legitimate government in favor of the alien. In my opinion, the record in this case is more than adequate to support the conclusion that this respondent's refusal was a form of expressive conduct that constituted the statement of a "political opinion" within the meaning of § 208(a).5 5 Here, respondent not only engaged in expressive conduct by refusing to join the guerrilla organization but also explained that he did so "[b]ecause they see very well, that if you join the guerrillas ... then you are against the government. You are against the government and if you join them then it is to die there. And, then the government is against you and against your family." App. to Brief in Opposition 5a. Respondent thus expressed the political view that he was for the government and against the guerrillas. The statute speaks simply in terms of a political opinion and does not require that the view be well developed or elegantly expressed. 489 II It follows as night follows day that the guerrillas' implied threat to "take" him or to "kill" him if he did not change his position constituted threatened persecution "on account of" that political opinion. As the Court of Appeals explained in Bo lanos- Hernandez: "It does not matter to the persecutors what the individual's motivation is. The guerrillas in EI Salvador do not inquire into the reasoning process of those who insist on remaining neutral and refuse to join their cause. They are concerned only with an act that constitutes an overt manifestation of a political opinion. Persecution because of that overt manifestation is persecution because of a political opinion." 767 F. 2d, at 1287.6 It is important to emphasize that the statute does not require that an applicant for asylum prove exactly why his persecutors would act against him; it only requires him to show that he has a "well-founded fear of persecution on account of ... political opinion." As we recognized in INS v. CardozaFonseca, the applicant meets this burden if he shows that there is a "'reasonable possibility'" that he will be perse- 6 The Government has argued that respondent's statement is analogous to that of a person who leaves a country to avoid being drafted into military service. The INS has long recognized, however, that the normal enforcement of Selective Service laws is not "persecution" within the meaning of the statute even if the draftee's motive is political. Thus, while holding that an Mghan soldier who refused to fight under Soviet command qualified as a political refugee, Matter of Salim, 18 I. & N. Dec. 311 (BrA 1982), the INS has adhered "to the long-accepted position that it is not persecution for a country to require military service of its citizens." Matter of A-G-, 19 I. & N. Dec. 502, 506 (BrA 1987); cf. United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status , 167 (1979) ("Fear of prosecution and punishment for desertion or draft-evasion does not in itself constitute wellfounded fear of persecution under the [1967 United Nations Protocol Relating to the Status of Refugees]"). 490 cuted on account of his political opinion. 480 U. S., at 440 (quoting INS v. Stevie, 467 U. S. 407 , 425 (1984)). Because respondent expressed a political opinion by refusing to join the guerrillas, and they responded by threatening to "take" or to "kill" him if he did not change his mind, his fear that the guerrillas will persecute him on account of his political opinion is well founded.7 Accordingly, I would affirm the judgment of the Court of Appeals. 7 In response to this dissent, the Court suggests that respondent and I have exaggerated the "well foundedness" of his fear. See ante, at 483, n. 2. The Court's legal analysis, however, would produce precisely the same result no matter how unambiguous the guerrillas' threatened retaliation might have been. Moreover, any doubts concerning the sinister character of a suggestion to "think it over" delivered by two uniformed masked men carrying machine guns should be resolved in respondent's favor.

The Supreme Court ruled that a guerrilla organization's attempt to coerce someone into performing military service does not necessarily count as "political opinion" and therefore does not make that person eligible for asylum. The Court of Appeals' decision was reversed, and the Board of Immigration Appeals' original determination that the respondent was ineligible for a discretionary grant of asylum was upheld.

Immigration & National Security

Fedorenko v. U.S.

https://supreme.justia.com/cases/federal/us/449/490/

U.S. Supreme Court Fedorenko v. United States, 449 U.S. 490 (1981) Fedorenko v. United States No. 79-5602 Argued October 15, 1980 Decided January 21, 1981 449 U.S. 490 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Syllabus The Displaced Persons Act of 1948 (DPA) enabled European refugees driven from their homelands by World War II to emigrate to the United States without regard to traditional immigration quotas. It provided that any person "who shall willfully make a misrepresentation for the purpose of gaining admission into the United States as an eligible displaced person shall thereafter not be admissible into the United States," and the applicable definition of "displaced persons" specifically excluded individuals who had "assisted the enemy in persecuting civil[ians]" or had "voluntarily assisted the enemy forces" in their operations. Petitioner was admitted to the United States under a DPA visa that had been issued on the basis of his 1949 application, which misrepresented his wartime activities and concealed the fact that, after being captured by the Germans while serving in the Russian Army, he had served as an armed guard at the Nazi concentration camp at Treblinka in Poland. Subsequently, he became an American citizen in 1970 on the basis of his visa papers and his naturalization application, which also did not disclose his wartime service as a concentration camp guard. The Government thereafter brought this denaturalization action under § 340(a) of the Immigration and Nationality Act of 1952, which requires revocation of United States citizenship that was "illegally procured" or "procured by concealment of a material fact or by willful misrepresentation." The Government charged that petitioner, in applying for his DPA visa and for citizenship, had willfully concealed that he had served as an armed guard at Treblinka and had committed crimes against inmates of the camp because they were Jewish, and that therefore he had procured his naturalization illegally or by willfully misrepresenting material facts. The Government presented witnesses who testified that they had seen petitioner commit acts of violence against camp inmates, and an expert witness in the interpretation and application of the DPA, who testified that petitioner would have been found ineligible for a visa as a matter of law if it had been determined that he had been an armed guard at the camp, regardless of whether or not he had volunteered for service or had committed atrocities against inmates. In his testimony, petitioner admitted that he deliberately gave false information in connection with Page 449 U. S. 491 his application for the DPA visa but claimed that he had been forced to serve as a guard and denied any personal involvement in the atrocities committed at the camp. The District Court entered judgment for petitioner, finding, inter alia, that, although petitioner had lied about his wartime activities when he applied for a visa in 1949, he had been forced to serve as a guard, and the Government had not met its burden of proving that he had committed war crimes or atrocities at Treblinka. The court held that, because disclosure of petitioner's involuntary service as a concentration camp guard would not have been grounds for denial of citizenship, his false statements about his wartime activities were not misrepresentations of "material facts" within the meaning of the denaturalization statute under the materiality standard announced in Chaunt v. United States, 364 U. S. 350 . As an alternative basis for its decision, the court held that, even assuming misrepresentation of material facts, equitable and mitigating circumstances -- the inconclusiveness of the evidence that petitioner had committed war crimes or atrocities and the uncontroverted evidence that he had been responsible and law-abiding since coming to the United States -- required that he be permitted to retain his citizenship. The Court of Appeals reversed, holding that the District Court had misinterpreted the Chaunt test and that it had no discretion to enter judgment for petitioner in the face of a finding that he had procured his naturalization by willfully concealing material facts. Held: Petitioner's citizenship must be revoked under § 340(a) of the Immigration and Nationality Act because it was "illegally procured." Pp. 449 U. S. 505 -518. (a) The Government carries a heavy burden of proof in a denaturalization proceeding, and evidence justifying revocation of citizenship must be clear, unequivocal, and convincing, and not leave the issue in doubt. However, there must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship. Failure to comply with any of these conditions renders the certificate of citizenship "illegally procured," and naturalization that is unlawfully procured can be set aside. Pp. 449 U. S. 505 -507. (b) The DPA's prohibition against admission of any person "who shall willfully make a misrepresentation" to gain admission into the United States as an "eligible displaced person," only applies to willful misrepresentations about "material facts." Under the analysis of the courts below, the misrepresentation that raised the materiality issue in this case was contained in petitioner's application for a visa. The plain language of the definition of "displaced persons" for purposes of the DPA as excluding individuals who "assisted the enemy in persecuting Page 449 U. S. 492 civil[ians]" mandates the literal interpretation, rejected by the District Court, that an individual's service as a concentration camp armed guard -- whether voluntary or involuntary -- made him ineligible for a visa. Since a misrepresentation must be considered material if disclosure of the true facts would have made the applicant ineligible for a visa, and since disclosure of the true facts here would, as a matter of law, have made petitioner ineligible for a visa, it is unnecessary to determine whether the materiality test of Chaunt as to applications for citizenship also applies to false statements in visa applications. Pp. 449 U. S. 507 -514. (c) In 1970, when petitioner filed his petition for and was admitted to citizenship, the Immigration and Nationality Act required an applicant for citizenship to be lawfully admitted to the United States for permanent residence, which admission, in turn, required that the individual possess a valid unexpired immigrant visa. And, under the law applicable at the time of petitioner's initial entry into the United States, a visa obtained through a material misrepresentation was not valid. Since petitioner thus failed to satisfy a statutory requirement which Congress had imposed as a prerequisite to the acquisition of citizenship by naturalization, his citizenship must be revoked because it was "illegally procured." Pp. 449 U. S. 514 -516. (d) Although a denaturalization action is a suit in equity, a district court lacks equitable discretion to refrain from entering a judgment of denaturalization against a naturalized citizen whose citizenship was procured illegally or by willful misrepresentation of material facts. Once a district court determines that the Government has met its burden of proving that a naturalized citizen obtained his citizenship illegally or by willful misrepresentation, it has no discretion to excuse the conduct. Pp. 449 U. S. 516 -518. 597 F.2d 946, affirmed. MARSHALL, J., delivered the opinion of the Court, in which BRENNAN, STEWART, POWELL, and REHNQUIST, JJ., joined. BURGER, C.J., concurred in the judgment. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 449 U. S. 518 . WHITE, J., post, p. 449 U. S. 526 , and STEVENS, J., post, p. 449 U. S. 530 , filed dissenting opinions Page 449 U. S. 493 JUSTICE MARSHALL delivered the opinion of the Court. Section 340(a) of the Immigration and Nationality Act of 1952, 66 Stat. 260, as amended, 8 U.S.C. § 1451(a), requires revocation of United States citizenship that was "illegally procured or . . . procured by concealment of a material fact or by willful misrepresentation." [ Footnote 1 ] The Government brought this denaturalization action, alleging that petitioner procured his citizenship illegally or by willfully misrepresenting a material fact. The District Court entered judgment for petitioner, but the Court of Appeals reversed and ordered entry of a judgment of denaturalization. We granted certiorari, 444 U.S. 1070, to resolve two questions: whether petitioner's failure to disclose, in his application for a visa to come to this country, that he had served during the Second World War as an armed guard at the Nazi concentration camp at Treblinka, Poland, rendered his citizenship revocable as "illegally procured" or procured by willful misrepresentation of a material fact, and if so, whether the District Court nonetheless possessed equitable discretion to refrain from entering judgment in favor of the Government under these circumstances. Page 449 U. S. 494 A Petitioner was born in the Ukraine in 1907. He was drafted into the Russian Army in June, 1941, but was captured by the Germans shortly thereafter. After being held in a series of prisoner-of-war camps, petitioner was selected to go to the German camp at Travnicki in Poland, where he received training as a concentration camp guard. In September, 1942, he was assigned to the Nazi concentration camp at Treblinka in Poland, where he was issued a uniform and rifle and where he served as a guard during 1942 and 1943. The infamous Treblinka concentration camp was described by the District Court as a "human abattoir" at which several hundred thousand Jewish civilians were murdered. [ Footnote 2 ] After an armed uprising by the inmates at Treblinka led to the closure of the camp in August, 1943, petitioner was transferred to a German labor camp at Danzig and then to the German prisoner of war camp at Poelitz, where he continued to serve as an armed guard. Petitioner was eventually transferred to Hamburg where he served as a warehouse guard. Shortly before the British forces entered that city in 1945, petitioner discarded his uniform and was able to pass as a civilian. For the next four years, he worked in Germany as a laborer. Page 449 U. S. 495 B In 1948, Congress enacted the Displaced Persons Act (DPA or Act), 62 Stat. 1009, to enable European refugees driven from their homelands by the war to emigrate to the United States without regard to traditional immigration quotas. The Act's definition of "displaced persons" [ Footnote 3 ] eligible for immigration to this country specifically excluded individuals who had "assisted the enemy in persecuting civil[ians]" or had "voluntarily assisted the enemy forces . . . in their operations. . . ." [ Footnote 4 ] Section 10 of the DPA, 62 Stat. 1013, placed the burden of proving eligibility under the Act on the person seeking admission, and provided that "[a]ny person who shall willfully make a misrepresentation for the purpose of gaining admission into the United States as an eligible displaced person shall thereafter not be admissible into the United States." The Act established an elaborate system for determining eligibility for displaced person status. Each applicant was first interviewed by representatives of the International Refugee Organization of the United Nations (IRO) who ascertained that the person was a refugee or displaced person. [ Footnote 5 ] The applicant Page 449 U. S. 496 was then interviewed by an official of the Displaced Persons Commission, [ Footnote 6 ] who made a preliminary determination about his eligibility under the DPA. The final decision was made by one of several State Department vice consuls who were specially trained for the task and sent to Europe to administer the Act. [ Footnote 7 ] Thereafter, the application was reviewed by officials of the Immigration and Naturalization Service (INS) to make sure that the applicant was admissible into the United States under the standard immigration laws. In October, 1949, petitioner applied for admission to the United States as a displaced person. Petitioner falsified his visa application by lying about his wartime activities. He told the investigators from the Displaced Persons Commission that he had been a farmer in Sarny, Poland, from 1937 until March, 1942, and that he had then been deported to Germany and forced to work in a factory in Poelitz until the end of the war, when he fled to Hamburg. [ Footnote 8 ] Petitioner told the same Page 449 U. S. 497 story to the vice consul who reviewed his case, and he signed a sworn statement containing these false representations as part of his application for a DPA visa. Petitioner's false statements were not discovered at the time, and he was issued a DPA visa and sailed to the United States, where he was admitted for permanent residence. He took up residence in Connecticut and, for three decades, led an uneventful and law-abiding life as a factory worker. In 1969, petitioner applied for naturalization at the INS office in Hartford, Conn. Petitioner did not disclose his wartime service as a concentration camp armed guard in his application, [ Footnote 9 ] and he did not mention it in his sworn testimony to INS naturalization examiners. The INS examiners took petitioner's visa papers at face value, and recommended that his citizenship application be granted. On this recommendation, the Superior Court of New Haven County granted his petition for naturalization, and he became an American citizen on April 23, 1970. C Seven years later, after petitioner had moved to Miami Beach and become a resident of Florida, [ Footnote 10 ] the Government filed this action in the United States District Court for the Southern District of Florida to revoke petitioner's citizenship. The complaint alleged that petitioner should have been deemed ineligible for a DPA visa because he had served as an armed guard at Treblinka and had committed crimes or atrocities Page 449 U. S. 498 against inmates of the camp because they were Jewish. The Government charged that petitioner had willfully concealed this information both in applying for a DPA visa and in applying for citizenship, and that, therefore, petitioner had procured his naturalization illegally or by willfully misrepresenting material facts. [ Footnote 11 ] The Government's witnesses at trial included six survivors of Treblinka who claimed that they had seen petitioner commit specific acts of violence against inmates of the camp. [ Footnote 12 ] Each witness made a pretrial identification of petitioner from a. photo array that included his 1949 visa photograph, and three of the witnesses made courtroom identifications. The Government also called as a witness Kempton Jenkins, a career foreign service officer who served in Germany after the war as one of the vice consuls who administered the DPA. Jenkins had been trained to administer the Act and had reviewed Page 449 U. S. 499 some 5,000 visa applications during his tour of duty. Record 711-714, 72722. Without objection from petitioner, Jenkins was proffered by the Government and accepted by the court, as an expert witness on the interpretation and application of the DPA. Id. at 719-721, 726-727, 734. Jenkins testified that the vice consuls made the final decision about an applicant's eligibility for displaced person status. [ Footnote 13 ] He indicated that, if there had been any suggestion that an applicant "had served or been involved in" a concentration camp, processing of his application would have been suspended to permit a thorough investigation. Id. at 766. If it were then determined that the applicant had been an armed guard at the camp, he would have been found ineligible for a visa as a matter of law. Id. at 767-768, 822. Jenkins explained that service as an armed guard at a concentration camp brought the applicant under the statutory exclusion of persons who "assisted the enemy in persecuting civil[ians]," regardless of whether the applicant had not volunteered for service [ Footnote 14 ] or had not committed atrocities against inmates. Id. at 768, 797-798. Jenkins emphasized that this interpretation of the Act was "uniformly" accepted by the vice consuls, and that, furthermore, he knew of no case in which a known concentration camp guard was found eligible for a DPA visa. [ Footnote 15 ] Id. at 767. Jenkins also described the elaborate Page 449 U. S. 500 system that was used to screen visa applicants, and he testified that, in interviewing applicants, the vice consuls bent over backwards in interrogating each person to make sure the applicant understood what he was doing. Id.; at 746. Petitioner took the stand in his own behalf. He admitted his service as an armed guard at Treblinka and that he had known that thousands of Jewish inmates were being murdered there. Id. at 1442, 1451-1452, 1465. Petitioner claimed that he was forced to serve as a guard, and denied any personal involvement in the atrocities committed at the camp, id. at 1276, 1297-1298, 1539-1540; he insisted that he had merely been a perimeter guard. Petitioner admitted, however, that he had followed orders and shot in the general direction of escaping inmates during the August, 1943, uprising that led to closure of the camp. Id. at 1507-1509, 1546, 1564. Petitioner maintained that he was a prisoner of war at Treblinka, id. at 1495, although he admitted that the Russian armed guards significantly outnumbered the German soldiers at the camp, [ Footnote 16 ] that he was paid a stipend and received a good service stripe from the Germans, and that he was allowed to leave the camp regularly, but never tried to escape. Id. at 1467-1471, 1489-1494, 1497, 1508. [ Footnote 17 ] Finally, petitioner conceded that he deliberately gave false statements about his wartime activities to the investigators from the Displaced Persons Commission and to the vice consul who reviewed his visa application. Id. at 1518-1524. The District Court entered judgment in favor of petitioner. Page 449 U. S. 501 455 F. Supp. 893 (1978). The court found that petitioner had served as an armed guard at Treblinka, and that he lied about his wartime activities when he applied for a PA visa in 1949. [ Footnote 18 ] The court found, however, that petitioner was forced to serve as a guard. The court concluded that it could credit neither the Treblinka survivors' identification of petitioner nor their testimony, [ Footnote 19 ] and it held that the Government had not met its burden of proving that petitioner committed war crimes or atrocities at Treblinka. Turning to the question whether petitioner's false statements about his activities during the war were misrepresentations of "material" facts, the District Court, relying on our decision in Chaunt v. United States, 364 U. S. 350 (1960), held that the Government had to prove "that either (1) facts were suppressed 'which, if known, would have warranted denial of citizenship' or (2) that their disclosure 'might have been useful in an investigation Page 449 U. S. 502 possibly leading to the discovery of other facts warranting denial of citizenship.'" 455 F. Supp. at 915 (quoting 364 U.S. at 364 U. S. 355 ). The District Court rejected the Government's claim that disclosure of petitioner's service as a concentration camp armed guard would have been grounds for denial of citizenship. The court therefore ruled that the withheld facts were not material under the first Chaunt test. The Government argued, however, that the second Chaunt test did not require proof that the concealed facts prevented an investigation that would have revealed facts warranting denial of citizenship. The Government contended, instead, that the second test merely required proof that an investigation might have uncovered such facts, and it argued that petitioner's concealment of his service at Treblinka fell within this test. The District Court conceded that the language of Chaunt was ambiguous enough to support the Government's interpretation of the second test. But relying on decisions by the United States Courts of Appeals for the Third and Ninth Circuits, [ Footnote 20 ] the District Court rejected the Government's position and interpreted both Chaunt tests as requiring proof that "the true facts would have warranted denial of citizenship." 455 F. Supp. at 916. Applying this test, the court ruled that petitioner's false statements were not "material" within the meaning of the denaturalization statute. In doing so, the court first rejected Jenkins' testimony and held that petitioner was not ineligible for a DPA visa. The court concluded that petitioner did not come under the DPA's exclusion of persons who had assisted in the persecution of civilians because he had served involuntarily. Second, the court found that, although disclosure of petitioner's service as a Treblinka guard "certainly would" have prompted an investigation into Page 449 U. S. 503 his activities, the Government had failed to prove that such an inquiry would have uncovered any additional facts warranting denial of petitioner's application for a visa. Id. at 916. [ Footnote 21 ] As an alternative basis for its decision, the District Court held that, even assuming that petitioner had misrepresented "material" facts, equitable and mitigating circumstances required that petitioner be permitted to retain his citizenship. Specifically, the court relied on its finding that the evidence that petitioner had committed any war crimes or atrocities at Treblinka was inconclusive, as well as the uncontroverted evidence that he had been responsible and law-abiding since coming to the United States. The District Court suggested that this Court had not previously considered the question whether a district court has discretion to consider the equities in a denaturalization case. The court reasoned that, since naturalization courts have considered the equities in determining whether citizenship should be granted, similar discretion should also be available in denaturalization proceedings. The Court of Appeals for the Fifth Circuit reversed and remanded the case with instructions to enter judgment for the Government and to cancel petitioner's certificate of citizenship. 597 F.2d 946 (1979). Although the Court of Appeals agreed with the District Court that Chaunt was controlling on the question of the materiality of petitioner's false statements, it disagreed with the District Court's interpretation Page 449 U. S. 504 of the second Chaunt test as requiring proof of ultimate facts warranting denial of citizenship. Instead, the Court of Appeals agreed with the Government that the second Chaunt test requires only clear and convincing proof that (a) disclosure of the true facts would have led to an investigation and (b) the investigation might have uncovered other facts warranting denial of citizenship. [ Footnote 22 ] In applying its formulation of the second Chaunt test to the facts of the case, the Court of Appeals concluded that one part of the test was satisfied by the District Court's finding that the American authorities would have conducted an investigation if petitioner had disclosed that he had served as an armed guard at Treblinka. The Court of Appeals then found that Jenkins' testimony and other evidence before the District Court clearly and convincingly proved that the investigation might have resulted in denial of petitioner's application for a visa, [ Footnote 23 ] and the Court of Appeals held that petitioner procured his naturalization "by misrepresentation and concealment of his whereabouts during the war years and his service as a concentration camp guard." 597 F.2d at 953. The Court of Appeals further held that the District Court had erred in supposing that it had discretion to enter judgment in favor of petitioner notwithstanding a finding that Page 449 U. S. 505 petitioner had procured his naturalization by willfully concealing material facts. The Court of Appeals concluded that "[t]he denaturalization statute . . . does not accord the district courts any authority to excuse the fraudulent procurement of citizenship." Id. at 954. Accordingly, the Court of Appeals held that petitioner's citizenship must be revoked. [ Footnote 24 ] We affirm, but for reasons which differ from those stated by the Court of Appeals. II Our examination of the questions presented by this case must proceed within the framework established by two lines of prior decisions of this Court that may, at first blush, appear to point in different directions. On the one hand, our decisions have recognized that the right to acquire American citizenship is a precious one, and that, once citizenship has been acquired, its loss can have severe and unsettling consequences. See Costello v. United States, 365 U. S. 265 , 365 U. S. 269 (1961); Chaunt v. United States, 364 U.S. at 364 U. S. 353 ; Baumgartner v. United States, 322 U. S. 665 , 322 U. S. 675 -676 (1944); Schneiderman v. United States, 320 U. S. 118 , 320 U. S. 122 (1943). For these reasons, we have held that the Government "carries a heavy burden of proof in a proceeding to divest a naturalized citizen of his citizenship." Costello v. United States, supra at 365 U. S. 269 . The evidence justifying revocation of citizenship must be " clear, unequivocal, and convincing'" and not leave "`the issue in doubt.'" Schneiderman v. United States, supra at 320 U. S. 125 (quoting Maxwell Land-Grant Case, 121 U. S. 325 , 121 U. S. 381 (1887)). Any less exacting standard would be inconsistent with the importance of the right that Page 449 U. S. 506 is at stake.in a denaturalization proceeding. And in reviewing denaturalization cases, we have carefully examined the record ourselves. See, e.g., Costello v. United States, supra; Chaunt v. United States, supra; Nowak v. United States, 356 U. S. 660 (1958); Baumgartner v. United States, supra. At the same time, our cases have also recognized that there must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship. Failure to comply with any of these conditions renders the certificate of citizenship "illegally procured," and naturalization that is unlawfully procured can be set aside. 8 U.S.C. § 1451(a); Afroyim v. Rusk, 387 U. S. 253 , 387 U. S. 267 , n. 23 (1967). See Maney v. United States, 278 U. S. 17 (1928); United States v. Ness, 245 U. S. 319 (1917); United States v. Ginsberg, 243 U. S. 472 (1917). As we explained in one of these prior decisions: "An alien who seeks political rights as a member of this Nation can rightfully obtain them only upon terms and conditions specified by Congress. . . ." " * * * *" "No alien has the slightest right to naturalization unless all statutory requirements are complied with; and every certificate of citizenship must be treated as granted upon condition that the government may challenge it . . . and demand its cancellation unless issued in accordance with such requirements." United States v. Ginsberg, supra at 243 U. S. 474 -475. This judicial insistence on strict compliance with the statutory conditions precedent to naturalization is simply an acknowledgment of the fact that Congress alone has the constitutional authority to prescribe rules for naturalization, [ Footnote 25 ] and the courts' task is to assure compliance with the particular prerequisites to the acquisition of United States citizenship Page 449 U. S. 507 by naturalization legislated to safeguard the integrity of this "priceless treasure." Johnson v. Eisentrager, 339 U. S. 763 , 339 U. S. 791 (1950) (Black, J., dissenting). Thus, what may at first glance appear to be two inconsistent lines of cases actually reflect our consistent recognition of the importance of the issues that are at stake -- for the citizen as well as the Government -- in a denaturalization proceeding. With this in mind, we turn to petitioner's contention that the Court of Appeals erred in reversing the judgment of the District Court. III Petitioner does not, and indeed cannot, challenge the Government's contention that he willfully misrepresented facts about his wartime activities when he applied for a DPA visa in 1949. Petitioner admitted at trial that he "willingly" gave false information in connection with his application for a DPA visa so as to avoid the possibility of repatriation to the Soviet Union. [ Footnote 26 ] Record 1520. The District Court specifically noted that there was no dispute that petitioner "lied" in his application. 455 F. Supp. at 914. Thus, petitioner falls within the plain language of the DPA's admonition that "[a]ny person who shall willfully make a misrepresentation for the purposes of gaining admission into the United States as an eligible displaced person shall thereafter not be admissible into the United States." 62 Stat. 1013. This does not, however, end our inquiry, because we agree with the Government [ Footnote 27 ] that this provision only applies to willful misrepresentations about "material" facts. [ Footnote 28 ] The first issue we must Page 449 U. S. 508 examine then, is whether petitioner's false statements about his activities during the war, particularly the concealment of his Treblinka service, were "material." A At the outset, we must determine the proper standard to be applied in judging whether petitioner's false statements were material. Both petitioner and the Government have assumed, as did the District Court and the Court of Appeals, that materiality under the above-quoted provision of the DPA is governed by the standard announced in Chaunt v. United States, 364 U. S. 350 (1960). But we do not find it so obvious that the Chaunt test is applicable here. In that case, the Government charged that Chaunt had procured his citizenship by concealing and misrepresenting his record of arrests in the United States in his application for citizenship, and that the arrest record was a "material" fact within the meaning of the denaturalization statute. [ Footnote 29 ] Thus, the materiality standard announced in that case pertained to false statements in applications for citizenship, and the arrests that Chaunt failed to disclose all took place after he came to this country. The case presented no question concerning the lawfulness of his initial entry into the United States. In the instant case, however, the events on which the Government relies in seeking to revoke petitioner's citizenship took place before he came to this country, and the Government Page 449 U. S. 509 is seeking to revoke petitioner's citizenship because of the alleged unlawfulness of his initial entry into the United States. Although the complaint charged that petitioner misrepresented facts about his wartime activities in both his application for a visa and his application for naturalization, both the District Court and the Court of Appeals focused on the false statements in petitioner's application for a visa. Thus, under the analysis of both the District Court and the Court of Appeals, the misrepresentation that raises the materiality issue in this case was contained in petitioner's application for a visa. [ Footnote 30 ] These distinctions plainly raise the important question whether the Chaunt test for materiality of misrepresentations in applications for citizenship also applies to false statements in visa applications. It is, of course, clear that the materiality of a false statement in a visa application must be measured in terms of its effect on the applicant's admissibility into this country. See United States v. Rossi, 299 F.2d 650, 652 (CA9 1962). At the very least, a misrepresentation must be considered material if disclosure of the true facts would have made the applicant ineligible for a visa. Because we conclude that disclosure of the true facts about petitioner's service as an armed guard at Treblinka would, as a matter of law, have made him ineligible for a visa under the DPA, we find it unnecessary to resolve the question whether Chaunt's materiality test also governs false statements in visa applications. Section 2(b) of the DPA, 62 Stat. 1009, by incorporating the definition of "[p]ersons who will not be [considered displaced Page 449 U. S. 510 persons]" contained in the Constitution of the IRO, see n 3, supra, specifically provided that individuals who "assisted the enemy in persecuting civil[ians]" were ineligible for visas under the Act. [ Footnote 31 ] Jenkins testified that petitioner's service as an armed guard at a concentration camp -- whether voluntary or not -- made him ineligible for a visa under this provision. [ Footnote 32 ] Jenkins' testimony was based on his firsthand Page 449 U. S. 511 experience as a vice consul in Germany after the war reviewing DPA visa applications. Jenkins also testified that the practice of the vice consuls was to circulate among the other vice consuls the case files of any visa applicant who was shown to have been a concentration camp armed guard. Record 826. Thus, Jenkins and the other vice consuls were particularly well informed about the practice concerning the eligibility of former camp guards for DPA visas. The District Court evidently agreed that a literal interpretation of the statute would confirm the accuracy of Jenkins' testimony. 455 F. Supp. at 913. But by construing § 2(a) as only excluding individuals who voluntarily assisted in the persecution of civilians, the District Court was able to ignore Jenkins' uncontroverted testimony about how the Act was interpreted by the officials who administered it. [ Footnote 33 ] Page 449 U. S. 512 The Court of Appeals evidently accepted the District Court's construction of the Act, since it agreed that the Government had failed to show that petitioner was ineligible for a DPA visa. 597 F.2d at 953. Because we are unable to find any basis for an "involuntary assistance" exception in the language of § 2(a), we conclude that the District Court's construction of the Act was incorrect. The plain language of the Act mandates precisely the literal interpretation that the District Court rejected: an individual's service as a concentration camp armed guard -- whether voluntary or involuntary -- made him ineligible for a visa. That Congress was perfectly capable of adopting a "voluntariness" limitation where it felt that one was necessary is plain from comparing § 2(a) with § 2(b), which excludes only those individuals who " voluntarily assisted the enemy forces . . . in their operations. . . ." Under traditional principles of statutory construction, the deliberate omission of the word "voluntary" from § 2(a) compels the conclusion that the statute made all those who assisted in the persecution of civilians ineligible for visas. [ Footnote 34 ] See National Railroad Passenger Corp. Page 449 U. S. 513 v. National Assoc. of Railroad Passengers, 414 U. S. 453 , 414 U. S. 458 (1974); Botany Worsted Mills v. United States, 278 U. S. 282 , 278 U. S. 289 (1929). As this Court has previously stated: "We are not at liberty to imply a condition which is opposed to the explicit terms of the statute. . . . To [so] hold . . . is not to construe the Act, but to amend it." Detroit Trust Co. v. The Thomas Barlum, 293 U. S. 21 , 293 U. S. 38 (1934). See FTC v. Sun Oil Co., 371 U. S. 505 , 371 U. S. 514 -515 (1963). Thus, the plain language of the statute and Jenkins' uncontradicted and unequivocal testimony leave no room for doubt that, if petitioner had disclosed the fact that he had been an armed guard at Treblinka, he would have been found ineligible for a visa under the DPA. [ Footnote 35 ] This being so, we must conclude that petitioner's Page 449 U. S. 514 false statements about his wartime activities were "willfu[l] [and material] misrepresentation[s] [made] for the purpose of gaining admission into the United States as an eligible displaced person." 62 Stat. 1013. Under the express terms of the statute, petitioner was "thereafter not . . . admissible into the United States." Ibid. Our conclusion that petitioner was, as a matter of law, ineligible for a visa under the DPA makes the resolution of this case fairly straightforward. As noted, supra at 449 U. S. 506 -507, our cases have established that a naturalized citizen's failure to comply with the statutory prerequisites for naturalization renders his certificate of citizenship revocable as "illegally procured" under 8 U.S.C. § 1451(a). In 1970, when petitioner filed his application for, and was admitted to, citizenship, §§ 316(a) and 318 of the Immigration and Nationality Act of 1952, 8 U.S.C. §§ 1427(a) and 1429, required an applicant for citizenship to be lawfully admitted to the United States for permanent residence. [ Footnote 36 ] Lawful admission for permanent Page 449 U. S. 515 residence, in turn, required that the individual possess a valid unexpired immigrant visa. At the time of petitioner's initial entry into this country, § 13(a) of the Immigration and Nationality Act of 1924, ch.190, 43 Stat. 153, 161 (repealed in 1952), provided that "[n]o immigrant shall be admitted to the United States unless he (1) has an unexpired immigration visa. . . ." [ Footnote 37 ] The courts at that time consistently held that § 13(a) required a valid visa, and that a visa obtained through a material misrepresentation was not valid. See, e.g., Ablett v. Brownell, 99 U.S.App.D.C. 387, 391, 240 F.2d 625, 629 (1957); United States ex rel. Jankowski v. Shaughnessy, 186 F.2d 580, 582 (CA2 1951). Section 10 of the DPA, 62 Stat. 1013, provided that "all immigration laws, . . . shall be applicable to . . . eligible displaced . . . persons who apply to be or who are admitted into the United States pursuant to this Act." And as previously noted, petitioner was inadmissible into this country under the express terms of the DPA. Accordingly, inasmuch as petitioner failed to satisfy a statutory requirement which Congress has imposed as a prerequisite to the acquisition of citizenship by naturalization, we must agree with the Government that petitioner's citizenship must be revoked because it was "illegally procured." See Polites v. United States, 364 U. S. 426 , 364 U. S. 436 -437 (1960); Schwinn v. United States, 311 U.S. 616 (1940); Maney v. United States, 278 U.S. at 278 U. S. 22 -23; United States v. Ginsberg, 243 U.S. at 475; Luria v. United States, 231 U. S. 9 , 231 U. S. 17 (1913); Johannessen v. United States, 225 U. S. 227 , 225 U. S. 240 (1912). Cf. Schneiderman v. United States, 320 U.S. at 320 U. S. 163 (Douglas, J., concurring). [ Footnote 38 ] In the lexicon Page 449 U. S. 516 of our cases, one of the "jurisdictional facts upon which the grant [of citizenship] is predicated," Johannessen v. United States, supra at 225 U. S. 240 , was missing at the time petitioner became a citizen. B This conclusion would lead us to affirm on statutory grounds (and not on the basis of our decision in Chaunt ), the judgment of the Court of Appeals. Petitioner argues, however, that, in a denaturalization proceeding, a district court has discretion to consider the equities in determining whether citizenship should be revoked. This is the view adopted by the District Court but rejected by the Court of Appeals. It is true, as petitioner notes, that this Court has held that a denaturalization action is a suit in equity. Knauer v. United States, 328 U. S. 654 , 328 U. S. 671 (1946); Luria v. United States, supra at 231 U. S. 27 -28. Petitioner further points to numerous cases in which the courts have exercised discretion in determining whether citizenship should be granted. See, e.g., In re Iwanenko's Petition, 145 F. Supp. 838 (ND Ill.1956); Petition of R., 56 F. Supp. 969 (Mass.1944). Petitioner would therefore have us conclude that similar discretion should be available to a denaturalization court to weigh the equities in light of all the circumstances in order to arrive at a solution that is just and fair. He then argues that, if such power exists, the facts of this case, particularly his record of good conduct over the past 29 years and the reasonable doubts about some of the allegations in the Government's complaint, all weigh in favor of permitting him to retain his citizenship. Although petitioner presents this argument with respect to revocation of citizenship procured through willful misrepresentation of material facts, we assume that petitioner believes that courts should also be allowed to weigh the equities in Page 449 U. S. 517 deciding whether to revoke citizenship that was "illegally procured," which is our holding in this case. We agree with the Court of Appeals that district courts lack equitable discretion to refrain from entering a judgment of denaturalization against a naturalized citizen whose citizenship was procured illegally or by willful misrepresentation of material facts. Petitioner is correct in noting that courts necessarily and properly exercise discretion in characterizing certain facts while determining whether an applicant for citizenship meets some of the requirements for naturalization. [ Footnote 39 ] But that limited discretion does not include the authority to excuse illegal or fraudulent procurement of citizenship. As the Court of Appeals stated: "Once it has been determined that a person does not qualify for citizenship, . . . the district court has no discretion to ignore the defect and grant citizenship." 597 F.2d at 954. By the same token, once a district court determines that the Government has met its burden of proving that a naturalized citizen obtained his citizenship illegally or by willful misrepresentation, it has no discretion to excuse the conduct. Indeed, contrary to the District Court's suggestion, see supra at 449 U. S. 503 , this issue had been settled by prior decisions of this Court. In case after case, we have rejected lower court efforts to moderate or otherwise avoid the statutory mandate of Congress in denaturalization proceedings. For example, in United States v. Ness, 245 U. S. 319 (1917), we ordered the denaturalization of an individual who "possessed the personal qualifications which entitle aliens to admission and to citizenship," id. at 245 U. S. 321 , but who had failed to file a certificate of arrival as required by statute. We explained that there was "no power . . . vested in the naturalization court to dispense with" this requirement. Page 449 U. S. 518 Id. at 245 U. S. 324 . We repeat here what we said in one of these earlier cases: "An alien who seeks political rights as a member of this Nation can rightfully obtain them only upon the terms and conditions specified by Congress. Courts are without authority to sanction changes or modifications; their duty is rigidly to enforce the legislative will in respect of a matter so vital to the public welfare. United States v. Ginsberg , 243 U.S. at 243 U. S. 474 -75." See Maney v. United States, 278 U.S. at 278 U. S. 22 -23; Johannessen v. United States, 225 U.S. at 241-242. In sum, we hold that petitioner's citizenship must be revoked under 8 U.S.C. § 1451(a) because it was illegally procured. Accordingly, the judgment of the Court of Appeals is affirmed. [ Footnote 40 ] So ordered. THE CHIEF JUSTICE concurs in the judgment. [ Footnote 1 ] Title 8 U.S.C. § 1451(a) provides in pertinent part: "It shall be the duty of the United States attorneys . . . to institute proceedings . . . in the judicial district in which the naturalized citizen may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were illegally procured or were procured by concealment of a material fact or by willful misrepresentation. . . ." [ Footnote 2 ] Historians estimate that some 800,000 people were murdered at Treblinka. See L. Dawidowicz, The War Against the Jews, 1933-1945, p. 149 (1975); R. Hilberg, The Destruction of the European Jews 572 (1978) . The District Court described Treblinka in this manner: "It contained only living facilities for the SS and the persons working there. The thousands who arrived daily on the trains had no need for barracks or mess halls: they would be dead before nightfall. It was operated with a barbarous methodology -- brutally efficient -- and such camps surely fill one of the darkest chapters in the annals of human existence, certainly the darkest in that which we call Western civilization." 455 F. Supp. 893 , 901, n. 12 (SD Fla.1978). [ Footnote 3 ] The DPA incorporated the definition of "refugees or displaced persons" contained in Annex I to the Constitution of the International Refugee Organization of the United Nations (IRO). See § 2(b), 62 Stat. 1009. The IRO Constitution, 62 Stat. 3037-3055, was ratified by the United States on December 16, 1946 (T.I.A.S. No. 1846), and became effective on August 20, 1948. See 62 Stat. 3037. [ Footnote 4 ] The IRO Constitution provided that the following persons would not be eligible for refugee or displaced person status: "1. War criminals, quislings and traitors." "2. Any other persons who can be shown:" "( a ) to have assisted the enemy in persecuting civil populations of countries, Members of the United Nations; or" "( b ) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the United Nations." Annex I, Part II, 62 Stat. 3051-3052. [ Footnote 5 ] The IRO was established in 1946 as a temporary specialized agency of the United Nations to deal with all aspects of the refugee problem in postwar Europe. The IRO established and administered a network of camps and resettlement centers where the refugees were registered, housed, fed, and provided with medical care. Where possible, the IRO provided for the refugees' rehabilitation and training, arranged legal protection for as long as they were stateless, and negotiated agreements for resettlement. See generally L. Holborn, The International Refugee Organization: A Specialized Agency of The United Nations: Its History and Work 1946-1952 (1956). [ Footnote 6 ] The DPA established a Displaced Persons Commission to oversee and administer the resettlement program envisaged by the Act. 62 Stat. 1012-1013. [ Footnote 7 ] According to testimony presented at trial by one of the Government's witnesses who served as a vice consul, between 35 and 40 vice consuls were involved in administering the Act. Record 715. Each vice consul spent three months in training in Washington and was then sent to Europe, where he received further training before he was put to work reviewing applications. Id. at 711-712, 719-721, 723, 726-727 [ Footnote 8 ] Petitioner also lied about his birthplace and nationality, claiming that he was born in Sarny, in Poland, when in fact he was born in Sivasch, in the Ukraine. App. 26. However, on November 21, 1950, after he arrived in this country, petitioner filed an Application for a Certificate of Arrival and Preliminary Form for a Declaration of Intention in which he correctly listed his birthplace as Sivasch in the Ukraine. Petitioner again provided the correct information when he filed a similar form on April 7, 1951. 455 F. Supp. at 911. [ Footnote 9 ] It should be noted that none of the questions in the application for citizenship explicitly required petitioner to disclose this information. Perhaps the most closely related question on the application form was one that required him to list his foreign military service. Petitioner indicated only that he had served in the Russian Army. App. 33. [ Footnote 10 ] See 455 F. Supp. at 896, n. 3. [ Footnote 11 ] The complaint also charged that petitioner had deliberately made false statements for the purpose of securing his naturalization, and had thereby failed to satisfy the statutory requirement of good moral character during the 5-year period immediately preceding the filing of his application for naturalization. See 8 U.S.C. § 1427(a). [ Footnote 12 ] One witness, Eugeun Turowski, testified that he saw petitioner shoot and whip Jewish prisoners at the camp. Record 134 136. Another, Schalom Kohn, testified that he saw petitioner almost every day for the first few months Kohn was at Treblinka, id. at 262-263, that petitioner beat him with an iron-tipped whip, and that he saw petitioner whip and shoot other prisoners. Id. at 268, 271, 322-323. The third witness, Josef Czarny, claimed that he saw petitioner beat arriving prisoners, id. at 434, and that he once saw him shoot a prisoner. Id. at 435-442. Gustaw Boraks testified that he saw petitioner repeatedly chase prisoners to the gas chambers, beating them as they went. Id. at 886-888. Boraks also claimed that, on one occasion, he heard a shot and ran outside to see petitioner, with a gun drawn, standing close to a wounded woman who later told him that petitioner was responsible for the shooting. Id. at 630-634. Sonia Lewkowicz testified that she saw petitioner shoot a Jewish prisoner. Id. at 973, 1013-1015, 1039-1040. Finally, Pinchas Epstein testified that petitioner shot and killed a friend of his after making him crawl naked on all fours. Id. at 1056-1070. [ Footnote 13 ] The vice consul's decision could be overridden by the consul general, but Jenkins testified that he knew of no situation in which this happened. Id. at 721-722. [ Footnote 14 ] On the basis of the vice consuls' experiences, Jenkins discounted the possibility that any concentration camp guards had served involuntarily. Id. at 756, 772, 795-796. Jenkins reported that all the guards who were questioned by the consular officials about their reasons for serving as guards invariably admitted that their service was voluntary. Id. at 807-808. In addition, Jenkins testified that, even if an applicant refused to acknowledge that his service as an armed guard was voluntary, he would still have been denied a visa. Id. at 822-826. [ Footnote 15 ] Jenkins testified that, at times, concentration camp survivors who recognized a visa applicant as a guard would notify consular officials, who, in turn, investigated the matter. If the accusation proved true, the applicant was confronted with it and invariably found ineligible for a visa. Id. at 804, 807, 82827. [ Footnote 16 ] Petitioner testified that there were between 120 and 150 armed Russian guards and some 20 to 30 Germans. Id. at 1111-1445. [ Footnote 17 ] Petitioner testified that between 15 and 20 Russian guards escaped from the camp. Four were caught and apparently executed, but petitioner testified that he did not know what happened to the others. Id. at 1535-1536, 1555. [ Footnote 18 ] The court also noted that there was no dispute about the fact that petitioner lied when he listed his birthplace as Sarny, Poland. 455 F. Supp. at 914. [ Footnote 19 ] The court rejected the witnesses' pretrial identifications because it found the photo spreads from which the identifications were made impermissibly suggestive. The court also rejected the in-court identifications by three of the witnesses. The court noted that the first witness initially picked out a spectator in the courtroom, and only identified petitioner when it became obvious from the crowd reaction that he had made a mistake. The other two witnesses identified petitioner, who was seated at counsel table surrounded by much younger men. The court concluded that the courtroom identifications were tainted by the photo identification and by discussion of the case among the witnesses. The court also found credibility problems with the testimony of the Treblinka survivors, and it concluded that, "[e]ven without defendant's testimony, the Government's evidence on the claimed commission of atrocities . . . fell short of meeting the 'clear, convincing and unequivocal' burden of proof. . . . With defendant's testimony, the Government's evidence . . . left the court with suspicions about whether defendant participated in atrocities at Treblinka, but they were only suspicions." Id. at 909. [ Footnote 20 ] United States v. Riela, 337 F.2d 986 (CA3 1964); United States v. Rossi, 299 F.2d 650 (CA9 1962); La Madrid-Peraza v. Immigration and Naturalization Service, 492 F.2d 1297 (CA9 1974). [ Footnote 21 ] The court also found that petitioner's false statements about his birthplace and nationality were not "material" misrepresentations. The court explained that the true facts would not, of themselves, have justified denial of citizenship, since Ukrainians per se were not excluded under the DPA. The court also noted that petitioner disclosed the truth about his place of birth and nationality when he filed Declarations of Intention in 1950 and 1951, and that the INS examiner who interviewed petitioner in connection with his application for citizenship testified that his previous false statements about these questions were not a cause for concern. 455 F. Supp. at 915. [ Footnote 22 ] The Court of Appeals explained that the District Court's interpretation "destroyed the utility of the second Chaunt test, since it would require, as does the first Chaunt test, that the government prove ultimate facts warranting denial of citizenship." 59 F.2d at 951. The court also pointed out that adopting the District Court's view would provide a strong incentive to an applicant for a visa or citizenship to lie about his background, and thereby prevent an inquiry into his fitness at a time when he has the burden of proving eligibility. If his deception were later uncovered, the Government would face the difficult tasks of conducting an inquiry into his past, discovering facts warranting disqualification, and proving those facts by clear and convincing evidence. Ibid. [ Footnote 23 ] The Court of Appeals noted that its formulation of the second Chaunt test was adopted by the Second Circuit in United States v. Oddo, 314 F.2d 115, cert. denied, 375 U.S. 833 (1963). [ Footnote 24 ] Because it ruled in favor of the Government under the second Chaunt test, the Court of Appeals had no reason to consider the Government's claim that, contrary to the District Court's findings, the evidence at trial clearly and convincingly proved that petitioner committed crimes and atrocities against inmates while he was an armed guard at Treblinka. We accept, for purposes of this case, the District Court's findings on this issue. [ Footnote 25 ] The Constitution empowers Congress to "establish an uniform Rule of Naturalization." Art. I, § 8, cl. 4. [ Footnote 26 ] That petitioner gave these false statements because he was motivated by fear of repatriation to the Soviet Union indicates that he understood that disclosing the truth would have affected his chances of being admitted to the United States, and confirms that his misrepresentation was willful. [ Footnote 27 ] See Brief for United States 18, n. 13. [ Footnote 28 ] Although the denaturalization statute speaks in terms of "willful misrepresentation" or "concealment of a material fact," this Court has indicated that the concealment, no less than the misrepresentation, must be willful, and that the misrepresentation must also relate to a material fact. See Costello v. United States, 365 U. S. 265 , 365 U. S. 271 -272, n. 3 (1961). Logically, the same principle should govern the interpretation of this provision of the DPA. [ Footnote 29 ] One question on the form Chaunt submitted in connection with his petition for citizenship asked if he had ever "been arrested or charged with violation of any law of the United States or State or city ordinance or traffic regulation," and, if so, give full particulars. To this question, Chaunt answered "no." [ Footnote 30 ] Neither the District Court nor the Court of Appeals directly focused on the distinction between false statements in a visa application and false statements in an application for citizenship. The District Court's opinion suggests that it concluded that there were no willful misrepresentations in petitioner's 1970 application for citizenship. See 455 F. Supp. at 916-917. The Court of Appeals characterized the case as involving "a misrepresentation by nondisclosure." 597 F.2d at 947. [ Footnote 31 ] Hereafter, references to §§ 2(a) and 2(b), rather than referring to §§ 2(a) and 2(b) of the DPA, follow the designation of the definitional provisions in the IRO Constitution, see 62 Stat. 3051-3052, incorporated in § 2(b) of the DPA. [ Footnote 32 ] Jenkins testified as follows: "Q If through investigation or interview you had determined that [a visa] applicant in fact did serve at a death camp . . . in occupied Poland as a Ukrainian Guard would you have denied the visa application?" "A Yes, I would." "Q And in your expert opinion, would such a person have qualified as an eligible displaced person?" "A No, he would not have." "Q I may have asked this question, if I have, permit me to ask it again, . . . are you aware of any case whatsoever in which an axis auxiliary who served in a capacity as a camp guard was ever legally qualified as a displaced person?" "A No, I am not. I am reasonably certain that there was no such case." " * * * *" "Q Mr. Jenkins, referring to the last question and answer, would it have made any difference whatsoever to you as a visa officer if the person could have been proven to have been a guard, but you could not prove that he committed an atrocity?" "A No." "THE COURT: Why? Why?" "THE WITNESS: Because, under the Displaced Persons Act and in the International Refugee Organization constitution, by . . . definition, such a person could not be a displaced person." Record 767-768. On cross-examination, Jenkins was asked: "Q Despite the apparent assumption that a guard at a concentration camp was there voluntarily, a non-German was there voluntarily, if a non-German guard came to you and said to you that his service there was involuntary would that guard have been eligible under the Displaced Persons Act, and would he have been granted a visa?" "A I don't believe so. In the first place ,I can't imagine this hypothetical situation. And secondly, I think the language of the Act is so clear that participation or even acquiesce[nce] in really doesn't leave the vice consul that kind of latitude." "THE COURT: . . . What is there about it that would make you think it was so clear that you had no latitude, if he had, according to the hypothetical, persuaded you that his service as a guard was involuntary? How would that differ from involuntary service in the Waffen SS [Axis combat unit]?" "A Because the crime against humanity that is involved in the concentration camp puts it into a different category. . . ." Id. at 822-823. [ Footnote 33 ] The District Court felt compelled to impose a voluntariness requirement because it was concerned that a literal interpretation of § 2(a) would "bar every Jewish prisoner who survived Treblinka because each one of them assisted the SS in the operation of the camp." 455 F. Supp. at 913. The court noted that working prisoners led arriving prisoners to the lazaret where they were murdered, cut the hair of the women who were to be executed, or played in the orchestra at the gate to the camp as part of the Germans' ruse to persuade new arrivals that the camp was other than what it was. The court pointed out that such actions could technically be deemed assistance, and concluded that it would be "absurd to deem their conduct 'assistance or acquiescence,' inasmuch as it was involuntary -- even though the word 'voluntarily' was omitted from the definition." Ibid. In addition, the court noted that Jenkins testified that visa applicants who had served in Axis combat units and who could prove that their service was involuntary were found eligible for visas. Id. at 912. But see n 34, infra. [ Footnote 34 ] The solution to the problem perceived by the District Court, see n 33, supra, lies not in "interpreting" the Act to include a voluntariness requirement that the statute itself does not impose, but in focusing on whether particular conduct can be considered assisting in the persecution of civilians. Thus, an individual who did no more than cut the hair of female inmates before they were executed cannot be found to have assisted in the persecution of civilians. On the other hand, there can be no question that a guard who was issued a uniform and armed with a rifle and a pistol, who was paid a stipend and was regularly allowed to leave the concentration camp to visit a nearby village, and who admitted to shooting at escaping inmates on orders from the commandant of the camp, fits within the statutory language about persons who assisted in the persecution of civilians. Other cases may present more difficult line-drawing problems, but we need decide only this case. As for the District Court's concern about the different treatment given to visa applicants who had served in Axis combat units who were found eligible for visas if they could show that they had served involuntarily, this distinction was made by the Act itself. [ Footnote 35 ] The District Court refused to give conclusive weight to Jenkins' testimony on this issue largely because it felt that Jenkins' testimony did not recognize the "voluntariness" exception that the court read into § 2(a). However, Jenkins' testimony was in accordance with the plain language of the statute. Because the District Court mistakenly applied the law to the facts of this case in concluding that petitioner was lawfully admitted into this country, 455 F. Supp. at 915, we reject its conclusion. The dissenting opinion of JUSTICE STEVENS argues that the Government "expressly disavowed" our interpretation of the DPA, post at 449 U. S. 530 , and that the Government "unequivocally accepted" the District Court's construction of § 2(a), post at 449 U. S. 535 . Elsewhere, the dissent suggests that the District Court's construction is "the Government's interpretation of the statute," post at 449 U. S. 536 . The sole basis for these assertions is a footnote in the Government's brief in the Court of Appeals which merely stated: "The United States has no quarrel with [the District Court's] construction [of § 2(a)] in this case " (emphasis added). In our judgment, none of the dissent's claims is borne out by this statement. The suggestion that the Government "unequivocally accepted" the District Court's interpretation of the Act is, at best, an exaggeration, and we have found no evidence in the record or briefs in this case of the Government's "express disavowal" of our construction of § 2(a). Furthermore, being neither endowed with psychic powers nor privy to the Government's deliberations, we cannot join JUSTICE STEVENS, see post at 449 U. S. 535 -536, in speculating about the reasons that the Government chose not to "quarrel with" the District Court's interpretation of § 2(a) "in this case." As for JUSTICE STEVENS' belief that our interpretation of the statute is "erroneous," see post at 449 U. S. 533 , we simply note that he is unable to point to anything in the language of the Act that justifies reading into § 2(a) the "voluntariness" limitation that Congress omitted. Thus, we must conclude that JUSTICE STEVENS' real quarrel is with Congress, which drafted the statute. It is not the function of the courts to amend statutes under the guise of "statutory interpretation." See Potomac Electric Power Co. v. Director, Office of Workers' Compensation Programs, ante at 449 U. S. 274 . Finally, since the term "persecution" does not apply to some of the tasks performed by concentration camp inmates, see n 34, supra, we reject the speculation that our decision "may jeopardize the citizenship of countless survivors of Nazi concentration camps," post at 449 U. S. 530 (STEVENS, J., dissenting). [ Footnote 36 ] Title 8 U.S.C. § 1429 provides in pertinent part: "[N]o person shall be naturalized unless he has been lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of this chapter." See also 8 U.S.C. § 1427(a). [ Footnote 37 ] The same requirement is now contained in 8 U.S.C. § 1181(a), which provides that "no immigrant shall be admitted into the United States unless at the time of application for admission he (1) has a valid unexpired immigrant visa. . . ." [ Footnote 38 ] See H.R.Rep. No. 1086, 87th Cong., 1st Sess., 39 (1961) (Citizenship is illegally procured if "some statutory requirement which is a condition precedent to naturalization is absent at the time the petition [for naturalization is] granted"). [ Footnote 39 ] Courts must consider the facts and circumstances in deciding whether an applicant satisfies such requirements for naturalization as good moral character and an understanding of the English language, American history, and civics. See 8 U.S.C. §§ 1423, 1427(d). [ Footnote 40 ] Our decision makes it unnecessary to resolve the question whether the Court of Appeals correctly interpreted the materiality test enunciated in Chaunt. JUSTICE BLACKMUN, concurring in the judgment. I agree with much of the Court's reasoning, as well as with the result it reaches. I am perplexed, however, by the Court's reluctance, ante at 449 U. S. 508 -509, to apply the materiality standard of Chaunt v. United States, 364 U. S. 350 (1960), to petitioner's circumstances. I write separately to express my understanding that application of Chaunt would yield no different result here, and to state my belief that a standard as rigorous as Chaunt's is necessary to protect the rights of our naturalized citizens. In Chaunt, the issue presented was whether failure to reveal certain prior arrests in response to a question on a citizenship application form constituted misrepresentation or concealment Page 449 U. S. 519 of a material fact for purposes of the denaturalization statute. [ Footnote 2/1 ] Id. at 364 U. S. 351 -352. As construed by Chaunt, the statute authorizes denaturalization on the basis of an applicant's failure to disclose suppressed facts which (1) "if known, would have warranted denial of citizenship," or (2) "might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship." Id. at 364 U. S. 355 . The Court says that Chaunt need not be invoked when denaturalization is premised on deliberate misstatements at the visa application stage, but does not explain why this is so. I fail to see any relevant limitation in the Chaunt decision or the governing statute that bars Chaunt's application to this case. By its terms, the denaturalization statute at the time of Chaunt, as now, was not restricted to any single stage of the citizenship process. [ Footnote 2/2 ] Although, in Chaunt, the nondisclosures arose in response to a question on a citizenship application form filed some years after the applicant first arrived in this country, nothing in the language or import of the opinion suggests that omissions or false statements should be assessed differently when they are tendered upon initial entry into this country. If such a distinction was intended, it has eluded the several courts that unquestioningly have applied Chaunt's materiality standard when reviewing alleged distortions in the visa request process. See, e.g., Kassab v. Immigration & Page 449 U. S. 520 Naturalization Service, 364 F.2d 806 (CA6 1966); United States v. Ross, 299 F.2d 650 (CA9 1962); Langhammer v. Hamilton, 295 F.2d 62 (CA1 1961). I doubt that the failure of these courts to raise any question about the relevance of Chaunt was an oversight. It is far from clear to me that the materiality of facts should vary because of the time at which they are concealed or misrepresented. Nor do I see why the events or activities underlying these facts become more or less material depending upon the country in which they transpired. [ Footnote 2/3 ] In each context, the inquiry concerning nondisclosure addresses the same fundamental issue: did the applicant shield from review facts material to his eligibility for citizenship? In Chaunt, the Court articulated two approaches to provide guidance and uniformity in such inquiries. The Court today adopts what it considers a new and minimal definition of materiality: it announces that a misrepresentation is material "if disclosure of the true facts would have made the applicant ineligible for a visa." Ante at 449 U. S. 509 . This standard bears no small resemblance to the "first test" of Chaunt, for it too deems material those facts "which, if known, would have warranted denial of" eligibility. 364 U.S. at 364 U. S. 355 . Because I see no effective difference between the standards, nor any persuasive grounds for contriving a difference, I would rely explicitly upon the Chaunt test here and avoid risking Page 449 U. S. 521 the confusion that is likely to be engendered by multiple standards. [ Footnote 2/4 ] Application of Chaunt to the instant record would not result in any significant departure from the Court's basic analysis. As the Court notes, ante at 449 U. S. 500 , petitioner admitted at trial that he deliberately misrepresented his wartime activities and whereabouts when communicating with representatives of the Displaced Persons Commission during the visa application process. Record 1518-1522. [ Footnote 2/5 ] The expert testimony of former Vice Consul Jenkins demonstrates convincingly that an applicant who had served as a concentration camp guard would not have qualified for a displaced person's visa. [ Footnote 2/6 ] The determination to exclude persons who had assisted in persecuting civilians was grounded in a clear statutory mandate, [ Footnote 2/7 ] and uncontroverted testimony established that Page 449 U. S. 522 the statute was consistently applied in just this fashion against individuals in petitioner's position. [ Footnote 2/8 ] Under these circumstances, I agree with the Court that petitioner's true activities, if known, would certainly have warranted denial of his visa application. Without a valid visa, petitioner could not have been considered for status as a United States citizen. Having proved this much by clear and convincing evidence, the Government has satisfied the first test of Chaunt. This test strikes a careful and necessary balance between the Government's commitment to supervising the citizenship process and the naturalized citizen's interest in preserving his status. The individual seeks to retain his citizenship right to full and equal status in our national community, a right conferring benefits of inestimable value upon those who possess it. The freedoms and opportunities secured by United States citizenship long have been treasured by persons fortunate enough to be born with them, and are yearned for by countless less fortunate. Indeed, citizenship has been described as "man's basic right, for it is nothing less than the right to have rights." [ Footnote 2/9 ] and the effects of its loss justly have been called "more serious than a taking of one's property, or Page 449 U. S. 523 the imposition of a fine or other penalty." [ Footnote 2/10 ] Where, as here, the Government seeks to revoke this right, the Court consistently and forcefully has held that it may do so only on scrupulously clear justification and proof. Costello v. United States, 365 U. S. 265 (1961); Nowak v. United States, 356 U. S. 660 (1958); Knauer v. United States, 328 U. S. 654 (1946); Baumgartner v. United States, 322 U. S. 665 (1944); Schneiderman v. United States, 320 U. S. 118 (1943). Before sustaining any decision to impose the grave consequences of denaturalization, the Court has regarded it as its duty "to scrutinize the record with the utmost care," [ Footnote 2/11 ] construing "the facts and the law . . . as far as is reasonably possible in favor of the citizen." [ Footnote 2/12 ] The Chaunt decision is properly attentive to this long-recognized unique interest in citizenship, and I must join the Court in not accepting the reasoning of the Court of Appeals, which would have diluted the materiality standard. The Court of Appeals reasoned that materiality was established if the nondisclosed facts would have triggered an inquiry that might have uncovered other unproved and disqualifying facts. See 597 F.2d 946, 950-951 (CA5 1979). By concluding that the Government has demonstrated the actual existence of disqualifying facts -- facts that themselves would have warranted denial of petitioner's citizenship this Court adheres to a more rigorous standard of proof. I believe that Chaunt indeed contemplated only this rigorous standard, and I suspect the Court's reluctance explicitly to apply it stems from a desire to sidestep the confusion over whether Chaunt created more than one standard. Chaunt, to be sure, did announce a disjunctive approach to the inquiry into materiality, but several factors support the conclusion that, under either "test," the Government's Page 449 U. S. 524 task is the same: it must prove the existence of disqualifying facts, not simply facts that might lead to hypothesized disqualifying facts. First, this Court's reasoning before Chaunt contains no suggestion that a naturalized citizen would be reduced to alien status merely because a thwarted Government inquiry might have shown him to be unqualified. Instead, the Court has been willing to approve denaturalization only upon a clear and convincing showing that the prescribed statutory conditions of citizenship had never been met. This, it seems to me, is the clear import of the Court's exhaustive reviews in Nowak v. United States, 356 U.S. at 356 U. S. 663 -668; Knauer v. United States, 328 U.S. at 328 U. S. 656 -669; Baumgartner v. United States, 322 U.S. at 322 U. S. 666 -678; and Schneiderman v. United States, 320 U.S. at 320 U. S. 131 -159. Of course, the Government's ability to investigate with vigor may be affected adversely by its inability to discover that certain facts have been suppressed. The standard announced by the Court of Appeals, however, seems to me to transform this interest in unhampered investigation into an end in itself. Application of that court's standard suggests that a deliberately false answer to any question the Government deems worth asking may be considered material. I do not believe that such a weak standard of proof was ever contemplated by this Court's decisions prior to Chaunt. Instead, I conclude that the Court in Chaunt intended to follow its earlier cases, and that its "two tests" are simply two methods by which the existence of ultimate disqualifying facts might be proved. This reading of Chaunt is consistent with the actual language of the so-called second test; [ Footnote 2/13 ] it Page 449 U. S. 525 also appears to be the meaning that the dissent in Chaunt believed the Court to have intended. [ Footnote 2/14 ] Significantly, this view accords with the policy considerations informing the Court's decisions in the area of denaturalization. If naturalization can be revoked years or decades after it is conferred, on the mere suspicion that certain Page 449 U. S. 526 undisclosed facts might have warranted exclusion, I fear that the valued rights of citizenship are in danger of erosion. If the weaker standard were employed, I doubt that the denaturalization process would remain as careful as it has been in the past in situations where a citizen's allegedly material misstatements were closely tied to his expression of political beliefs or activities implicating the First Amendment. [ Footnote 2/15 ] Citizenship determinations continue to involve judgments about a person's "good moral character" or his attachment "to the principles of the Constitution," see 8 U.S.C. § 1427(a), and the judiciary's task remains the difficult one of balancing a need to safeguard admission to United States citizenship, in accord with the will of Congress, against a citizen's right to feel secure in the exercise of his constitutional freedoms. By concluding that an impaired investigation may justify the loss of these freedoms, the Court of Appeals threatens to leave the naturalized citizen with "nothing more than citizenship in attenuated, if not suspended, animation." [ Footnote 2/16 ] The Court seems to reject this approach, and follows the essential teaching of Chaunt. I regret only its unwillingness to say so. [ Footnote 2/1 ] The statute is § 340(a) of the Immigration and Nationality Act of 1952, 66 Stat. 260, as amended, 8 U.S.C. § 1451(a). Its relevant provisions are quoted ante at 449 U. S. 493 , n. 1. [ Footnote 2/2 ] Except for the prohibition against "illegally procured" citizenship, added in 1961 by Pub.L. 87-301, § 18(a), 75 Stat. 656, the statute today is unchanged from the version considered in Chaunt. Now, as then, it authorizes the initiation of denaturalization proceedings should the Government discover that the order admitting a person to citizenship was "procured by concealment of a material fact or by willful misrepresentation." In accord with the Court's prior construction of this phrase, both the concealment and the misrepresentation must be willful, and each must also relate to a material fact. Ante at 449 U. S. 507 -508, n. 28, citing Costello v. United States, 365 U. S. 265 , 365 U. S. 271 -272, n. 3 (1961). [ Footnote 2/3 ] This discussion of materiality relates only to proceedings brought by the Government to denaturalize a United States citizen. I do not mean to suggest that, for purposes of attaining citizenship, a misrepresentation must be analyzed in an identical fashion. The immigration law historically has afforded greater protections to persons already admitted to citizenship than to those seeking to obtain its privileges and benefits. This choice, however, reflects a judgment that the weighty interest in citizenship should be neither casually conferred nor lightly revoked. See Berenyi v. District Director, 385 U. S. 630 , 385 U. S. 636 -637 (1967). In view of petitioner's status as a United States citizen, it is unnecessary to consider here the question of materiality at the naturalization stage. [ Footnote 2/4 ] Confusion to some extent is already present. We granted certiorari in this case primarily to resolve conflicting interpretations of the Chaunt materiality standard. Compare United States v. Riela, 337 F.2d 986 (CA3 1964), and United States v. Rossi, 299 F.2d 650 (CA9 1962), with Kassab v. Immigration & Naturalization Service, 364 F.2d 806 (CA6 1966), and Lanhammer v. Hamilton, 295 F.2d 642 (CA1 1961). [ Footnote 2/5 ] JUSTICE WHITE's observation in dissent, post at 449 U. S. 529 , and n. 10, is not to the contrary. The District Court found a lack of willfulness with respect to the nondisclosure on petitioner's citizenship application form, completed in 1969. As the Court correctly observes, ante at 449 U. S. 507 , n. 26, petitioner's misrepresentations at the visa application stage were plainly willful. [ Footnote 2/6 ] Record 766-768, 822-823, substantially reproduced ante at 449 U. S. 510 -511, n. 31. Jenkins further testified at length that, based on his knowledge and experience, "involuntary" guard service in Nazi concentration camps was unknown and virtually inconceivable. Record 754-758, 807-808, 823-824. While I find much of this testimony persuasive, I do not need to rely upon it here, since petitioner's ineligibility for a visa is independently established. See nn. 449 U.S. 490 fn2/7|>7 and 449 U.S. 490 fn2/8|>8, infra. [ Footnote 2/7 ] The Displaced Persons Act, 62 Stat. 1009, enabled refugees driven from their homelands during and after World War II to emigrate to the United States without regard to traditional immigration quotas. Eligibility was extended consistent with requirements set forth in Annex I to the Constitution of the International Refugee Organization of the United Nations. This excluded the following displaced persons from its ambit of concern: "1. War criminals, quislings and traitors." "2. Any other persons who can be shown:" "( a ) to have assisted the enemy in persecuting civil populations of countries, Members of the United Nations; or" "( b ) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the United Nations." Annex I, Part II, 62 Stat. 3051-3052. [ Footnote 2/8 ] Record 766-768. See also id. at 790 (concentration camp guards themselves understood that admission of their former status, without more, was enough to render them ineligible). [ Footnote 2/9 ] Perez v. Brownell, 356 U. S. 44 , 356 U. S. 64 (1958) (Warren, C.J., dissenting). [ Footnote 2/10 ] Schneiderman v. United States, 320 U. S. 118 , 320 U. S. 122 (1943). [ Footnote 2/11 ] Nowak v. United States, 356 U. S. 660 , 356 U. S. 663 (1958). [ Footnote 2/12 ] Schneiderman v. United States, 320 U.S. at 320 U. S. 122 . [ Footnote 2/13 ] Under the "second test" in Chaunt, the Government is required to prove with respect to suppressed facts "that their disclosure might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship." 364 U.S. at 364 U. S. 355 . The Court of Appeals in effect construes the word "possibly" to modify the entire following phrase. I believe the sounder construction is that adopted by the District Court, see 455 F. Supp. 893 , 915-916 (SD Fla.1978), whereby the word "possibly" modifies only the first part of the ensuing phrase. Because what would "possibly" be discovered is not "facts which might warrant denial of citizenship" but " other facts warranting denial of citizenship" (emphasis supplied), the "second test" simply asks whether knowledge of the suppressed facts could have enabled the Government to reach the ultimate disqualifying facts whose existence is now known. See also 364 U.S. at 364 U. S. 353 (second test stated as whether "disclosure of the true facts might have led to the discovery of other facts which would justify denial of citizenship"). [ Footnote 2/14 ] The dissent in Chaunt proposed its own standard, which it apparently believed was at odds with what the Court had adopted: "The test is not whether the truthful answer in itself, or the facts discovered through an investigation prompted by that answer, would have justified a denial of citizenship. It is whether the falsification, by misleading the examining officer, forestalled an investigation which might have resulted in the defeat of petitioner's application for naturalization." Id. at 364 U. S. 357 . (Emphasis in original.) The dissent also voiced concern that the Court, by imposing such a heavy burden of proof on the Government in denaturalization proceedings, in effect would invite dishonesty from future applicants for citizenship. Ibid. JUSTICE WHITE, in dissent today, expresses the same concern. Post at 449 U. S. 529 . It, of course, is never easy to demonstrate the existence of statements or events that occurred long ago. Records and witnesses disappear, memories fade, and even the actor's personal knowledge becomes less reliable. While recognizing the arduous nature of the task, the Court nonetheless has insisted that the Government meet a very high standard of proof in denaturalization proceedings. Chaunt's rigorous definition of materiality, it is true, may occasionally benefit an applicant who conceals disqualifying information. Yet, practically and constitutionally, naturalized citizens, as a class, are not less trustworthy or reliable than the native-born. The procedural protection of the high standard of proof is necessary to assure the naturalized citizen his right, equally with the native-born, to enjoy the benefits of citizenship in confidence and without fear. [ Footnote 2/15 ] Chaunt's prior activities involved distributing handbills and speaking in a public park, activities that merit a high degree of First Amendment protection. See also Schneiderman v. United States, supra, (membership in Communist Party in the United States); Nowak v. United States, supra (same) . [ Footnote 2/16 ] Schneiderman v. United States, 320 U.S. at 320 U. S. 166 (Rutledge, J., concurring). JUSTICE WHITE, dissenting. The primary issue presented in the petition for certiorari was whether the Court of Appeals had properly interpreted the test articulated in Chaunt v. United States, 364 U. S. 350 (1960), for determining whether an individual procured his citizenship by concealment or misrepresentation of a "material" fact. In Chaunt, the Government sought to revoke an Page 449 U. S. 527 individual's citizenship because he had not disclosed certain facts in his application for citizenship. [ Footnote 3/1 ] Although Chaunt did not address the standard of materiality with respect to visa applications, the parties before this Court have assumed that the Chaunt test should be used to determine whether petitioner concealed material facts when he applied for a visa. [ Footnote 3/2 ] Recognizing that the relevance of Chaunt to visa applications may be problematic, the majority turns to a wholly separate ground to decide this case, resting its decision on its interpretation of "adopted" § 2(a) of the Displaced Persons Act ( see ante at 449 U. S. 510 , n. 31). I am reluctant to resolve the issue of whether Chaunt extends to visa applications, since the parties have neither briefed nor argued the point. However, I am equally reluctant to adopt the course chosen by the majority, for the language of § 2(a) is not entirely unambiguous, [ Footnote 3/3 ] and the parties have not addressed the proper interpretation of the statute. [ Footnote 3/4 ] Under these circumstances, I would Page 449 U. S. 528 simply clarify the Chaunt materiality test and then remand to the Court of Appeals to review the District Court's findings on petitioner's concealment at the time he applied for citizenship. In Chaunt, the Court stated that, to prove misrepresentation or concealment of a material fact, the Government must prove by clear and convincing evidence "either (1) that facts were suppressed which, if known, would have warranted denial of citizenship or (2) that their disclosure might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship." 364 U.S. at 364 U. S. 355 . [ Footnote 3/5 ] Under the District Court's interpretation of the second Chaunt test and that urged by petitioner, the Government would be required to prove that an investigation prompted by a complete, truthful response would have revealed facts justifying denial of citizenship. [ Footnote 3/6 ] The Court of Appeals and the Government contend that, under the second Chaunt test, the Government must prove only that such an investigation might have led to the discovery of facts justifying denial of citizenship. [ Footnote 3/7 ] In my opinion, the latter interpretation is correct. [ Footnote 3/8 ] Page 449 U. S. 529 If the District Court's interpretation were adopted, the Government would bear the heavy, and in many cases impossible, burden of proving the true facts that existed many years prior to the time the defendant applied for citizenship, whether it proceeded under the first or the second Chaunt test. This definition of "materiality," by greatly improving the odds that concealment would be successful, would encourage applicants to withhold information, since the Government would often be unable to meet its burden by the time the concealment was discovered. In this case, the Government alleged that, when petitioner filled out his application for citizenship, he willfully concealed that he had served as an armed guard for the Germans during the war. Petitioner failed to disclose this information, although the application form required him to list his past or present membership in any organization in the United States or elsewhere, including foreign military service. Although the Government produced evidence to support a finding of materiality under its interpretation of the second Chaunt test, [ Footnote 3/9 ] the District Court concluded that petitioner's service as an armed guard for the Germans was immaterial under the District Court's interpretation of Chaunt. It also found that the nondisclosure was not willful. [ Footnote 3/10 ] Page 449 U. S. 530 The Court of Appeals failed to review this portion of the District Court's opinion. Instead, it focused solely on whether petitioner had willfully concealed or misrepresented material facts when he applied for a visa. Therefore, I would vacate the judgment of the Court of Appeals and remand the case to that court to review the District Court's application of the Chaunt test to petitioner's concealment at the time he applied for citizenship. [ Footnote 3/11 ] [ Footnote 3/1 ] Section 340(a) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1451(a), quoted in pertinent part in the majority opinion, ante at 449 U. S. 493 , n. 1, directs the Government to seek revocation of citizenship that was "procured by concealment of a material fact or by willful misrepresentation." [ Footnote 3/2 ] Similarly, both the District Court and the Court of Appeals assumed that the Chaunt materiality test should be applied to the Government's claim that petitioner concealed material information when he applied for a visa. [ Footnote 3/3 ] The majority asserts that the plain language of the statute compels the conclusion that § 2(a) excluded all those who assisted the enemy in persecuting civil populations, even those who involuntarily assisted the enemy. The majority explains in a footnote that, under § 2(a), one must focus on whether the individual assisted the enemy in persecuting civil populations, ante at 449 U. S. 512 -513, n. 34, rather than focusing on voluntariness. Yet one could argue that the words "assist" and "persecute" suggest that § 2(a) would not apply to an individual whose actions were truly coerced. [ Footnote 3/4 ] The Government did not contend that § 2(a) of the Displaced Persons Act should be interpreted as excluding persons who involuntarily assisted the enemy in persecuting civil populations. Rather, it argued that the finding that petitioner had "involuntarily" served as a concentration camp guard was clearly erroneous. It therefore urged us to affirm on the ground that the first Chaunt test had been satisfied. [ Footnote 3/5 ] In Chaunt, the Court also observed that complete, honest replies to all relevant questions are essential not only because concealed facts might, in and of themselves, justify denial of citizenship, but also because "disclosure of the true facts might have led to the discovery of other facts which would justify denial of citizenship." 364 U.S. at 364 U. S. 352 -353. [ Footnote 3/6 ] 455 F. Supp. 893 , 915-916 (SD Fla.1978). [ Footnote 3/7 ] 597 F.2d 946, 951 (CA5 1979). [ Footnote 3/8 ] The Government should be required to prove that an investigation would have occurred if a truthful response had been given, and that the investigation might have uncovered facts justifying denial of citizenship. The defendant could rebut the Government's showing that the investigation might have led to the discovery of facts justifying denial of citizenship by establishing that the underlying facts would not have justified denial of citizenship. [ Footnote 3/9 ] The naturalization examiner who processed petitioner's application testified at trial that, if petitioner had disclosed his service as an armed guard with the Germans during the war, the examiner would not have made any recommendation regarding petitioner's application for citizenship until an investigation had been conducted. He also testified that, if the investigation had disclosed that petitioner had physically hurt Jewish prisoners while serving as a guard at Treblinka, the examiner would have recommended that petitioner's application for citizenship be denied, either on the ground that petitioner lacked good moral character or on the ground that he had not been properly admitted into the United States. Waterbury, Conn., Trial Transcript 147-148. [ Footnote 3/10 ] The District Court decided that petitioner's failure to disclose that he had served as an armed guard for the Germans was not willful, since "there would be strong reason in [petitioner's] mind to view himself as a prisoner of war." 455 F. Supp. at 917. [ Footnote 3/11 ] I agree with the majority's view that a district court does not have discretion to weigh equitable considerations in determining whether citizenship should be revoked. JUSTICE STEVENS, dissenting. The story of this litigation is depressing. The Government failed to prove its right to relief on any of several theories advanced in the District Court. The Court of Appeals reversed on an untenable ground. Today, this Court affirms on a theory that no litigant argued, that the Government expressly disavowed, and that may jeopardize the citizenship of countless survivors of Nazi concentration camps. The seven-count complaint filed by the Government in the District Court prayed for a revocation of petitioner's citizenship on four different theories: (1) that his entry visa was invalid because he had misstated his birthplace and place of residence, and therefore he had never been lawfully admitted to the United States; (2) that he committed war crimes or atrocities, and therefore was not eligible for admission as a displaced person; (3) that he made material misstatements on his application for citizenship in 1970; and (4) that he was not a person of good moral character when he received his American citizenship. After a long trial, the District Court concluded that the Government had failed to prove its case. The trial judge was apparently convinced that the suggestive identification procedures endorsed by the prosecution Page 449 U. S. 531 had resulted in a misidentification of petitioner; that petitioner had not performed the atrocious acts witnessed by the survivors of Treblinka who testified; [ Footnote 4/1 ] 1 that Vice Consul Jenkins' testimony was not entirely reliable; [ Footnote 4/2 ] and that, for the most part, petitioner was a truthful witness. 455 F. Supp. 893 , 906-909. The District Judge specifically found that petitioner's visa was valid, and that petitioner therefore lawfully entered the United States, id. at 916; that his service at Treblinka was involuntary, id. at 914; that he made no misstatements in his application for citizenship, id. at 917; and that he was a person of good moral character. Ibid. Page 449 U. S. 532 As an alternative basis for decision, the District Court concluded that, because the Government had failed to prove that petitioner committed any atrocities at Treblinka, his record as a responsible and law-abiding resident of the United States for 29 years provided an equitable ground for refusing to revoke his citizenship. Id. at 918-920. The Court of Appeals reversed, holding that the District Court committed two errors of law. 597 F.2d 946. First, the Court of Appeals held that the District Court, in assessing the materiality of the misstatement in petitioner's 1949 visa application, had misapplied this Court's decision in Chaunt v. United States, 364 U. S. 350 ; second, the Court of Appeals rejected the equitable basis for the District Court's judgment. The Court of Appeals did not, however, disturb any of the District Court's findings of fact. Today the Court declines to endorse the Court of Appeals' first rationale. Because the Chaunt test was formulated in the context of applications for citizenship, and because the only misstatements here were made on petitioner's visa application, [ Footnote 4/3 ] the Court acknowledges that the Chaunt test is not Page 449 U. S. 533 automatically applicable. The Court does not reach the question of the applicability of Chaunt in the visa context, however, because it concludes that, at the very least, a misrepresentation is material if disclosure of the true facts would have rendered the applicant ineligible for a visa. Because the Court holds as a matter of law that petitioner's service as a guard at Treblinka, whether or not voluntary, made him ineligible for a visa, petitioner was not legally admitted to the country, and hence was not entitled to citizenship. I cannot accept the view that any citizen's past involuntary conduct can provide the basis for stripping him of his American citizenship. The Court's contrary holding today rests entirely on its construction of the Displaced Persons Act of 1948 (DPA). Although the Court purports to consider the materiality of petitioner's misstatements, the Court's construction of the DPA renders those misstatements entirely irrelevant to the decision of this case. Every person who entered the United States pursuant to the authority granted by that statute, who subsequently acquired American citizenship, and who can be shown "to have assisted the enemy in persecuting civil populations" -- even under the most severe duress -- has no right to retain his or her citizenship. I believe that the Court's construction of the DPA is erroneous, and that the Court of Appeals misapplied the Chaunt test. I Section 2(a) of the DPA was "adopted" from the Constitution of the International Refugee Organization ( see ante at 449 U. S. 510 , n. 31), which described in Part II of Annex I "Persons who will not be [considered as displaced persons]." The second listing had two classifications: "2. Any other persons who can be shown:" "( a ) to have assisted the enemy in persecuting civil populations of countries, Members of the United Nations; or " Page 449 U. S. 534 "( b ) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the United Nations." The District Court recognized that the section dealing with assisting enemy forces contained the word "voluntarily," while the section dealing with persecuting enemy populations did not. The District Court refused to construe the statute to bar relief to any person who assisted the enemy, whether voluntarily or not, however, because such a construction would have excluded the Jewish prisoners who assisted the SS in the operation of the concentration camp. 455 F. Supp. at 913. These prisoners performed such tasks as cutting the hair of female prisoners prior to their execution and performing in a camp orchestra as a ruse to conceal the true nature of the camp. I agree without hesitation with the District Court's conclusion that such prisoners did not perform their duties voluntarily and that such prisoners should not be considered excludable under the DPA. [ Footnote 4/4 ] The Court resolves the dilemma perceived by the District Court by concluding that prisoners who did no more than cut the hair of female inmates before they were executed could not be considered to be assisting the enemy in persecuting civilian populations. See ante at 449 U. S. 512 -513, n. 34. Thus the Court would give the word "persecution" some not yet defined specially limited reading. In my opinion, the term "persecution" clearly applies to such conduct; indeed, it probably encompasses almost every aspect of life or death in a concentration camp. The Court's resolution of this issue is particularly unpersuasive Page 449 U. S. 535 when applied to the "kapos," the Jewish prisoners who supervised the Jewish workers at the camp. According to witnesses who survived Treblinka, the kapos were commanded by the SS to administer beatings to the prisoners, and they did so with just enough force to make the beating appear realistic, yet avoid injury to the prisoner. Record 293-295, 300-302 (Kohn), 237 (Turowski). [ Footnote 4/5 ] Even if we assume that the kapos were completely successful in deceiving the SS guards and that the beatings caused no injury to other inmates, I believe their conduct would have to be characterized as assisting in the persecution of other prisoners. [ Footnote 4/6 ] In my view, the reason that such conduct should not make the kapos ineligible for citizenship is that it surely was not voluntary. The fact that the Court's interpretation of the DPA would exclude a group whose actions were uniformly defended by survivors of Treblinka, id. at 23239 (Turowski), 300 (Kohn), 1157-1159 (Epstein), merely underscores the strained reading the Court has given the statute. [ Footnote 4/7 ] The Government was apparently persuaded by the force of the District Court's reasoning. In the Court of Appeals, the Government unequivocally accepted the District Court's Page 449 U. S. 536 view that § 2(a) should be construed to read "persons who can be shown to have voluntarily assisted the enemy." [ Footnote 4/8 ] The Government did not retreat from that concession before this Court. [ Footnote 4/9 ] The reasons for agreeing with the Government's interpretation of the statute are compelling. II If the DPA is correctly construed, petitioner is entitled to retain his citizenship unless the Government proved that he made a material misstatement in his application for citizenship in 1970 or that he was ineligible for citizenship in 1970. Given the District Court's findings that he made no willful misstatement in 1970 and that he had not committed any crimes because his service at Treblinka was involuntary, the challenge to his citizenship rests entirely on the claim that he was not lawfully admitted to the United States in 1949 because he made material misstatements in his visa application. Even if the Chaunt test applies equally to visa applications and citizenship applications, I would hold that the Government failed to satisfy its burden under what I believe to be the proper interpretation of that test. The Court and the parties seem to assume that the Chaunt test contains only two components: (1) whether a truthful answer might have or would have triggered an investigation, and (2) whether such an investigation might have or would Page 449 U. S. 537 have revealed a disqualifying circumstance. Under this characterization of the Chaunt test, the only dispute is what probability is required with respect to each of the two components. There are really three inquiries, however: (1) whether a truthful answer would have led to an investigation, (2) whether a disqualifying circumstance actually existed, and (3) whether it would have been discovered by the investigation. Regardless of whether the misstatement was made on an application for a visa or for citizenship, in my opinion, the proper analysis should focus on the first and second components, and attach little or no weight to the third. Unless the Government can prove the existence of a circumstance that would have disqualified the applicant, I do not believe that citizenship should be revoked on the basis of speculation about what might have been discovered if an investigation had been initiated. But if the Government can establish the existence of a disqualifying fact, I would consider a willful misstatement material if it were more probable than not that a truthful answer would have prompted more inquiry. Thus, I would presume that an investigation, if begun at the time that the misstatement was made, would have been successful in finding whatever the Government is now able to prove. But if the Government is not able to prove the existence of facts that would have made the resident alien ineligible for citizenship at the time he executed his application, I would not denaturalize him on the basis of speculation about what might have been true years ago. The Government in this case failed to prove that petitioner materially misrepresented facts on his citizenship application. Because I do not believe that "adopted" § 2(a) of the DPA applies to persons whose assistance in the persecution of civilian populations was involuntary, and because the District Court found that petitioner's service was not voluntary, it necessarily follows that the Government failed to prove the existence of a disqualifying circumstance with respect to petitioner's Page 449 U. S. 538 visa application. [ Footnote 4/10 ] The misstatements in that application were therefore not material under a proper application of Chaunt. The gruesome facts recited in this record create what Justice Holmes described as a sort of "hydraulic pressure" that tends to distort our judgment. Perhaps my refusal to acquiesce in the conclusion reached by highly respected colleagues is attributable in part to an overreaction to that pressure. Even after recognizing and discounting that factor, however, I remain firmly convinced that the Court has committed the profoundest sort of error by venturing into the unknown to find a basis for affirming the judgment of the Court of Appeals. That human suffering will be a consequence of today's venture is certainly predictable; that any suffering will be allayed or avoided is, at best, doubtful. I respectfully dissent. [ Footnote 4/1 ] The District Judge's opinion contains a suggestion that the witnesses' identification of petitioner may have been a case of mistaken identity, inasmuch as petitioner resembled another guard who had a position of greater authority. See 455 F. Supp. 893 , 908. [ Footnote 4/2 ] In view of the extensive references to Jenkins in the Court's opinion, some of the District Court's observations should be quoted: "Unfortunately, and inexplicably, the Government did not find the Vice-Consul who approved defendant's application." " * * * *" "Jenkins' testimony about the structure of the death camp organization was hardly expert, and conflicts consistently with other evidence presented at the trial. For example, he testified that the Ukrainian guards had the same uniforms as the SS, with only slightly different insignia. However, the unanimous testimony was the Germans wore their usual gray-green uniforms, but the prisoner-guards didn't. He testified that the camp guards could get leave and get away from the camp, and could transfer. The testimony was clear that they could not take leave (and go to Berlin, as Jenkins opined), but could only get a two-to-four-hour pass to visit a small village a couple of miles away." " * * * *" "Jenkins also would have considered the kapos as excludable because they assisted the Germans. This is totally contrary to the reaction of every witness who survived Treblinka; each of the Israeli witnesses testified the kapos did only what they had to do, and the witnesses were quite indignant when asked if they had ever testified against the kapos. The witnesses replied that there was no reason to do so. In addition, Jenkins speculated that the kapos were probably shot in 1945 during a period of retaliation, but the testimony was to the contrary." Id. at 911-913. [ Footnote 4/3 ] In Count 4 of its complaint, the Government alleged that petitioner did not truthfully answer the question on his citizenship application whether he had ever committed a crime. Having found that his service in Treblinka was not voluntary, the District Court concluded that petitioner's negative answer was truthful. In Count 5 of its complaint (as amended at a pretrial conference), the Government alleged that petitioner had a duty to disclose his guard service at Treblinka in answer to the following question: "7. List your present and past membership in every organization, association, fund, foundation, party, club, society, or similar group in the United States and in any other place, and your foreign military service." The District Court concluded that, because petitioner regarded himself as a prisoner of war, and because he had listed his Russian military service, this omission could not be considered willful. See id. at 917. That conclusion was certainly permissible; indeed it is arguable that the Treblinka guard service was neither the sort of "membership" in a club or organization nor the sort of "military service" that the question contemplated. [ Footnote 4/4 ] One particular squad of Jewish prisoners was responsible for undressing the aged and infirm prisoners and leading them to the lazaret, the eternally burning pit, where they were shot. Record 287 (Kohn). One of the prisoners who worked in the camp stated when asked whether this squad "assist[ed] in bringing [prisoners] to their death": "We automatically assisted, all of us, but . . . it was under the fear and terror." Id. at 293 (Kohn). [ Footnote 4/5 ] Two of the witnesses, Czarny and Boraks, testified that they did not recall or hear of any kapos beating prisoners, id. at 551, 686, and one witness, Epstein, did not see or hear of beatings inflicted by kapos. Id. at 1159. [ Footnote 4/6 ] Moreover, the Court's distinction between the kapos and other Jewish workers, on the one hand and the Ukranian guards, on the other, is based in large part on such factors as the issuance of a uniform and weapons, the receipt of a stipend, and the privilege of being allowed to leave the camp and visit a nearby village. These supposedly distinguishing factors are essentially unrelated to the persecution of the victims of the concentration camp. [ Footnote 4/7 ] We also note that Vice Consul Jenkins, upon whose testimony the Court heavily relies, indicated that he would have considered kapos to be ineligible under the DPA if they could be proved to be "internal camp inmate collaborators." Id. at 828. [ Footnote 4/8 ] Emphasis added. Footnote 11 on p. 17 of the Government's brief in the Court of Appeals states: "The district court held that, in Section 2(a), 'persons who can be shown to have assisted the enemy' should be construed to read 'persons who can be shown to have voluntarily assisted the enemy.' 455 F. Supp. at 913. The United States has no quarrel with such a construction in this case." [ Footnote 4/9 ] Inasmuch as the Attorney General of the United States argued this case himself, presumably the decision not to question the District Court's construction of the statute was reached only after the matter had been reviewed with the utmost care. [ Footnote 4/10 ] Under my interpretation of the Chaunt test, the Government should not prevail on the speculation that it might have been able to uncover evidence that petitioner committed war crimes while at Treblinka. Similarly, I would hold that the District Court's findings with respect to willfulness of alleged misstatements on petitioner's citizenship application were not clearly erroneous. See 449 U.S. 490 fn4/2|>n. 2, supra. I surely would not rest decision in this Court on a de novo evaluation of the testimony of the witness Jenkins, rather than the findings of the District Court.

Here is a summary of the case: The United States Supreme Court decided on Fedorenko v. United States, a case concerning the denaturalization of a former Nazi concentration camp guard who gained entry into the US through the Displaced Persons Act of 1948 (DPA) by misrepresenting his wartime activities. The DPA allowed European refugees affected by World War II to immigrate to the US outside regular quotas, excluding those who assisted in persecuting civilians or voluntarily aided enemy forces. The case centered around the petitioner's admission to the US and subsequent citizenship based on false information about his role as an armed guard at the Treblinka camp in Poland. The government charged him with willfully concealing his wartime service and crimes against inmates. The District Court ruled in favor of the petitioner, finding that his lies about his activities did not constitute "assistance" under the DPA. The Supreme Court disagreed with the District Court's interpretation of "assistance" and ruled that any guard service at a concentration camp qualified as "assistance" in persecution, regardless of the individual's personal actions or voluntariness. The Court also noted that the petitioner's false statements about his past were sufficient grounds for denaturalization. The case highlights the importance of accurate and truthful disclosures in immigration and naturalization processes.

Immigration & National Security

Plyler v. Doe

https://supreme.justia.com/cases/federal/us/457/202/

U.S. Supreme Court Plyler v. Doe, 457 U.S. 202 (1982) Plyler v. Doe No. 80-1538 Argued December 1, 1981 Decided June 15, 1982 457 U.S. 202 ast|>* 457 U.S. 202 APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Syllabus Held: A Texas statute which withholds from local school districts any state funds for the education of children who were not "legally admitted" into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment. Pp. 457 U. S. 210 -230. (a) The illegal aliens who are plaintiffs in these cases challenging the statute may claim the benefit of the Equal Protection Clause, which provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." Whatever his status under the immigration laws, an alien is a "person" in any ordinary sense of that term. This Court's prior cases recognizing that illegal aliens are "persons" protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase "within its jurisdiction," cannot be distinguished on the asserted ground that persons who have entered the country illegally are not "within the jurisdiction" of a State even if they are present within its boundaries and subject to its laws. Nor do the logic and history of the Fourteenth Amendment support such a construction. Instead, use of the phrase "within its jurisdiction" confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. Pp. 457 U. S. 210 -216. (b) The discrimination contained in the Texas statute cannot be considered rational unless it furthers some substantial goal of the State. Although undocumented resident aliens cannot be treated as a "suspect class," and although education is not a "fundamental right," so as to require the State to justify the statutory classification by showing that it serves a compelling governmental interest, nevertheless the Texas statute imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. These children can neither affect their parents' conduct nor their own undocumented status. The deprivation Page 457 U. S. 203 of public education is not like the deprivation of some other governmental benefit. Public education has a pivotal role in maintaining the fabric of our society and in sustaining our political and cultural heritage; the deprivation of education takes an inestimable toll on the social, economic, intellectual, and psychological wellbeing of the individual, and poses an obstacle to individual achievement. In determining the rationality of the Texas statute, its costs to the Nation and to the innocent children may properly be considered. Pp. 457 U. S. 216 -224. (c) The undocumented status of these children vel non does not establish a sufficient rational basis for denying them benefits that the State affords other residents. It is true that, when faced with an equal protection challenge respecting a State's differential treatment of aliens, the courts must be attentive to congressional policy concerning aliens. But in the area of special constitutional sensitivity presented by these cases, and in the absence of any contrary indication fairly discernible in the legislative record, no national policy is perceived that might justify the State in denying these children an elementary education. Pp. 457 U. S. 224 -226. (d) Texas' statutory classification cannot be sustained as furthering its interest in the "preservation of the state's limited resources for the education of its lawful residents." While the State might have an interest in mitigating potentially harsh economic effects from an influx of illegal immigrants, the Texas statute does not offer an effective method of dealing with the problem. Even assuming that the net impact of illegal aliens on the economy is negative, charging tuition to undocumented children constitutes an ineffectual attempt to stem the tide of illegal immigration, at least when compared with the alternative of prohibiting employment of illegal aliens. Nor is there any merit to the suggestion that undocumented children are appropriately singled out for exclusion because of the special burdens they impose on the State's ability to provide high-quality public education. The record does not show that exclusion of undocumented children is likely to improve the overall quality of education in the State. Neither is there any merit to the claim that undocumented children are appropriately singled out because their unlawful presence within the United States renders them less likely than other children to remain within the State's boundaries and to put their education to productive social or political use within the State. Pp. 457 U. S. 227 -230. No. 80-1638, 628 F.2d 448, and No. 80-1934, affirmed. BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. MARSHALL, J., post, p. 457 U. S. 230 , BLACKMUN, J., post, p. 457 U. S. 231 , and POWELL, J., post, p. 457 U. S. 236 , filed concurring opinions. BURGER, C.J., filed a dissenting opinion, in which WHITE, REHNQUIST, and O'CONNOR, JJ., joined, post, p. 457 U. S. 242 . Page 457 U. S. 205 JUSTICE BRENNAN delivered the opinion of the Court. The question presented by these cases is whether, consistent with the Equal Protection Clause of the Fourteenth Amendment, Texas may deny to undocumented school-age children the free public education that it provides to children who are citizens of the United States or legally admitted aliens. I Since the late 19th century, the United States has restricted immigration into this country. Unsanctioned entry into the United States is a crime, 8 U.S.C. § 1325, and those who have entered unlawfully are subject to deportation, 8 U.S.C. §§ 1251, 1252 (1976 ed. and Supp. IV). But despite the existence of these legal restrictions, a substantial number of persons have succeeded in unlawfully entering the United States, and now live within various States, including the State of Texas. In May, 1975, the Texas Legislature revised its education laws to withhold from local school districts any state funds for the education of children who were not "legally admitted" into the United States. The 1975 revision also authorized local school districts to deny enrollment in their public schools to children not "legally admitted" to the country. Tex. Educ.Code Ann. § 21.031 (Vernon Supp.1981). [ Footnote 1 ] These cases involve constitutional challenges to those provisions. Page 457 U. S. 206 No. 8158 Plyler v. Doe This is a class action, filed in the United States District Court for the Eastern District of Texas in September, 1977, on behalf of certain school-age children of Mexican origin residing in Smith County, Tex., who could not establish that they had been legally admitted into the United States. The action complained of the exclusion of plaintiff children from the public schools of the Tyler Independent School District. [ Footnote 2 ] The Superintendent and members of the Board of Trustees of the School District were named as defendants; the State of Texas intervened as a party-defendant. After certifying a class consisting of all undocumented school-age children of Mexican origin residing within the School District, the District Court preliminarily enjoined defendants from denying a free education to members of the plaintiff class. In December, 1977, the court conducted an extensive hearing on plaintiffs' motion for permanent injunctive relief. Page 457 U. S. 207 In considering this motion, the District Court made extensive findings of fact. The court found that neither § 21.031 nor the School District policy implementing it had "either the purpose or effect of keeping illegal aliens out of the State of Texas." 458 F. Supp. 569 , 575 (1978). Respecting defendants' further claim that § 21.031 was simply a financial measure designed to avoid a drain on the State's fisc, the court recognized that the increases in population resulting from the immigration of Mexican nationals into the United States had created problems for the public schools of the State, and that these problems were exacerbated by the special educational needs of immigrant Mexican children. The court noted, however, that the increase in school enrollment was primarily attributable to the admission of children who were legal residents. Id. at 575-576. It also found that, while the "exclusion of all undocumented children from the public schools in Texas would eventually result in economies at some level," id. at 576, funding from both the State and Federal Governments was based primarily on the number of children enrolled. In net effect, then, barring undocumented children from the schools would save money, but it would "not necessarily" improve "the quality of education." Id. at 577. The court further observed that the impact of § 21.031 was borne primarily by a very small subclass of illegal aliens, "entire families who have migrated illegally and -- for all practical purposes -- permanently to the United States." Id. at 578. [ Footnote 3 ] Finally, the court noted that, under current laws and practices, "the illegal alien of today may well be the legal alien of tomorrow," [ Footnote 4 ] and that, without an education, these undocumented Page 457 U. S. 208 children, "[a]lready disadvantaged as a result of poverty, lack of English-speaking ability, and undeniable racial prejudices, . . . will become permanently locked into the lowest socio-economic class." Id. at 577. The District Court held that illegal aliens were entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment, and that § 21.031 violated that Clause. Suggesting that "the state's exclusion of undocumented children from its public schools . . . may well be the type of invidiously motivated state action for which the suspect classification doctrine was designed," the court held that it was unnecessary to decide whether the statute would survive a "strict scrutiny" analysis because, in any event, the discrimination embodied in the statute was not supported by a rational basis. Id. at 585. The District Court also concluded that the Texas statute violated the Supremacy Clause. [ Footnote 5 ] Id. at 590-592. The Court of Appeals for the Fifth Circuit upheld the District Court's injunction. 628 F.2d 448 (1980). The Court of Appeals held that the District Court had erred in finding the Texas statute preempted by federal law. [ Footnote 6 ] With respect to Page 457 U. S. 209 equal protection, however, the Court of Appeals affirmed in all essential respects the analysis of the District Court, id. at 454-458, concluding that § 21.031 was "constitutionally infirm regardless of whether it was tested using the mere rational basis standard or some more stringent test," id. at 458. We noted probable jurisdiction. 451 U.S. 968 (1981). No. 8194 I n re Alien Children Education Litigation During 1978 and 1979, suits challenging the constitutionality of 21.031 and various local practices undertaken on the authority of that provision were filed in the United States District Courts for the Southern, Western, and Northern Districts of Texas. Each suit named the State of Texas and the Texas Education Agency as defendants, along with local officials. In November, 1979, the Judicial Panel on Multidistrict Litigation, on motion of the State, consolidated the claims against the state officials into a single action to be heard in the District Court for the Southern District of Texas. A hearing was conducted in February and March, 1980. In July, 1980, the court entered an opinion and order holding that § 21.031 violated the Equal Protection Clause of the Fourteenth Amendment. In re Alien Children Education Litigation, 501 F. Supp. 544 . [ Footnote 7 ] The court held that "the absolute deprivation of education should trigger strict judicial scrutiny, particularly when the absolute deprivation is the result of complete inability to pay for the desired benefit." Id. at 582. The court determined that the State's concern for fiscal integrity was not a compelling state interest, id. at 582-583; that exclusion of these children had not been shown to be necessary to improve education within the State, id. at 583; and that the educational needs of the children statutorily excluded were not different from the needs of children not excluded, ibid. The court therefore concluded that Page 457 U. S. 210 § 21.031 was not carefully tailored to advance the asserted state interest in an acceptable manner. Id. at 583-584. While appeal of the District Court's decision was pending, the Court of Appeals rendered its decision in No. 80-1538. Apparently on the strength of that opinion, the Court of Appeals, on February 23, 1981, summarily affirmed the decision of the Southern District. We noted probable jurisdiction, 452 U.S. 937 (1981), and consolidated this case with No. 80-1538 for briefing and argument. [ Footnote 8 ] II The Fourteenth Amendment provides that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (Emphasis added.) Appellants argue at the outset that undocumented aliens, because of their immigration status, are not "persons within the jurisdiction" of the State of Texas, and that they therefore have no right to the equal protection of Texas law. We reject this argument. Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments. Shaughnessv v. Mezei, 345 U. S. 206 , 345 U. S. 212 (1953); Wong Wing v. United States, 163 U. S. 228 , 163 U. S. 238 (1896); Yick Wo v. Hopkins, 118 U. S. 356 , 118 U. S. 369 (1886). Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government. Mathews v. Diaz, 426 U. S. 67 , 426 U. S. 77 (1976). [ Footnote 9 ] Page 457 U. S. 211 Appellants seek to distinguish our prior cases, emphasizing that the Equal Protection Clause directs a State to afford its protection to persons within its jurisdiction, while the Due Process Clauses of the Fifth and Fourteenth Amendments contain no such assertedly limiting phrase. In appellants' view, persons who have entered the United States illegally are not "within the jurisdiction" of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment support that constricting construction of the phrase "within its jurisdiction." [ Footnote 10 ] We have never suggested that the class of persons who might avail themselves of the equal protection guarantee is less than coextensive with that entitled to due process. To the contrary, we have recognized Page 457 U. S. 212 that both provisions were fashioned to protect an identical class of persons, and to reach every exercise of state authority. "The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says:" "Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." " These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the protection of the laws is a pledge of the protection of equal laws." Yick Wo, supra, at 118 U. S. 369 (emphasis added). In concluding that "all persons within the territory of the United States," including aliens unlawfully present, may invoke the Fifth and Sixth Amendments to challenge actions of the Federal Government, we reasoned from the understanding that the Fourteenth Amendment was designed to afford its protection to all within the boundaries of a State. Wong Wing, supra, at 163 U. S. 238 . [ Footnote 11 ] Our cases applying the Equal Protection Clause reflect the same territorial theme: [ Footnote 12 ] Page 457 U. S. 213 "Manifestly, the obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. It is there that the equality of legal right must be maintained. That obligation is imposed by the Constitution upon the States severally as governmental entities, each responsible for its own laws establishing the rights and duties of persons within its borders." Missouri ex rel. Gaines v. Canada, 305 U. S. 337 , 305 U. S. 350 (1938). There is simply no support for appellants' suggestion that "due process" is somehow of greater stature than "equal protection," and therefore available to a larger class of persons. To the contrary, each aspect of the Fourteenth Amendment reflects an elementary limitation on state power. To permit a State to employ the phrase "within its jurisdiction" in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment. The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts here to classify persons subject to its laws as nonetheless excepted from its protection. Page 457 U. S. 214 Although the congressional debate concerning § 1 of the Fourteenth Amendment was limited, that debate clearly confirms the understanding that the phrase "within its jurisdiction" was intended in a broad sense to offer the guarantee of equal protection to all within a State's boundaries, and to all upon whom the State would impose the obligations of its laws. Indeed, it appears from those debates that Congress, by using the phrase "person within its jurisdiction," sought expressly to ensure that the equal protection of the laws was provided to the alien population. Representative Bingham reported to the House the draft resolution of the Joint Committee of Fifteen on Reconstruction (H.R. 63) that was to become the Fourteenth Amendment. [ Footnote 13 ] Cong.Globe, 39th Cong., 1st Sess., 1033 (1866). Two days later, Bingham posed the following question in support of the resolution: "Is it not essential to the unity of the people that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States? Is it not essential to the unity of the Government and the unity of the people that all persons, whether citizens or strangers, within this land, shall have equal protection in every State in this Union in the rights of life and liberty and property?" Id. at 1090. Senator Howard, also a member of the Joint Committee of Fifteen, and the floor manager of the Amendment in the Senate, was no less explicit about the broad objectives of the Amendment, and the intention to make its provisions applicable to all who "may happen to be" within the jurisdiction of a State: Page 457 U. S. 215 "The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. . . . It will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all person who may happen to be within their jurisdiction. " Id. at 2766 (emphasis added). Use of the phrase "within its jurisdiction" thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction -- either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States -- he is entitled to the equal protection of the laws that a State may choose to establish. Our conclusion that the illegal aliens who are plaintiffs in these cases may claim the benefit of the Fourteenth Amendment's guarantee of equal protection only begins the inquiry. The more difficult question is whether the Equal Protection Clause has been violated by the refusal of the State of Texas to reimburse local school boards for the education of children who cannot demonstrate that their presence within the Page 457 U. S. 216 United States is lawful, or by the imposition by those school boards of the burden of tuition on those children. It is to this question that we now turn. III The Equal Protection Clause directs that "all persons similarly circumstanced shall be treated alike." F. S. Royster Guano Co. v. Virginia, 253 U. S. 412 , 253 U. S. 415 (1920). But so too, "[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same." Tigner v. Texas, 310 U. S. 141 , 310 U. S. 147 (1940). The initial discretion to determine what is "different" and what is "the same" resides in the legislatures of the States. A legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill. In applying the Equal Protection Clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose. But we would not be faithful to our obligations under the Fourteenth Amendment if we applied so deferential a standard to every classification. The Equal Protection Clause was intended as a restriction on state legislative action inconsistent with elemental constitutional premises. Thus, we have treated as presumptively invidious those classifications that disadvantage a "suspect class," [ Footnote 14 ] or that impinge upon Page 457 U. S. 217 the exercise of a "fundamental right." [ Footnote 15 ] With respect to such classifications, it is appropriate to enforce the mandate of equal protection by requiring the State to demonstrate that its classification has been precisely tailored to serve a compelling governmental interest. In addition, we have recognized that certain forms of legislative classification, while not facially invidious, nonetheless give rise to recurring constitutional difficulties; in these limited circumstances, we have sought the assurance that the classification reflects a reasoned judgment consistent with the ideal of equal protection by inquiring whether it may fairly be viewed as furthering a Page 457 U. S. 218 substantial interest of the State. [ Footnote 16 ] We turn to a consideration of the standard appropriate for the evaluation of § 21.031. A Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial "shadow population" of illegal migrants -- numbering in the millions -- within our borders. [ Footnote 17 ] This situation raises the specter of a permanent Page 457 U. S. 219 caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents. [ Footnote 18 ] The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law. [ Footnote 19 ] The children who are plaintiffs in these cases are special members of this underclass. Persuasive arguments support the view that a State may withhold its beneficence from those whose very presence within the United States is the product of their own unlawful conduct. These arguments do not apply Page 457 U. S. 220 with the same force to classifications imposing disabilities on the minor children of such illegal entrants. At the least, those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation. But the children of those illegal entrants are not comparably situated. Their "parents have the ability to conform their conduct to societal norms," and presumably the ability to remove themselves from the State's jurisdiction; but the children who are plaintiffs in these cases "can affect neither their parents' conduct nor their own status." Trimble v. Gordon, 430 U. S. 762 , 430 U. S. 770 (1977). Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice. "[V]isiting . . . condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the . . . child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth, and penalizing the . . . child is an ineffectual -- as well as unjust -- way of deterring the parent." Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 , 406 U. S. 175 (1972) (footnote omitted). Of course, undocumented status is not irrelevant to any proper legislative goal. Nor is undocumented status an absolutely immutable characteristic, since it is the product of conscious, indeed unlawful, action. But § 21.031 is directed against children, and imposes its discriminatory burden on the basis of a legal characteristic over which children can have little control. It is thus difficult to conceive of a rational justification for penalizing these children for their presence within the United States. Yet that appears to be precisely the effect of § 21.031. Page 457 U. S. 221 Public education is not a "right" granted to individuals by the Constitution. San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1 , 411 U. S. 35 (1973). But neither is it merely some governmental "benefit" indistinguishable from other forms of social welfare legislation. Both the importance of education in maintaining our basic institutions and the lasting impact of its deprivation on the life of the child mark the distinction. The "American people have always regarded education and [the] acquisition of knowledge as matters of supreme importance." Meyer v. Nebraska, 262 U. S. 390 , 262 U. S. 400 (1923). We have recognized "the public schools as a most vital civic institution for the preservation of a democratic system of government," Abington School District v. Schempp, 374 U. S. 203 , 374 U. S. 230 (1963) (BRENNAN, J., concurring), and as the primary vehicle for transmitting "the values on which our society rests." Ambach v. Norwick, 441 U. S. 68 , 441 U. S. 76 (1979). "[A]s . . . pointed out early in our history, . . . some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence." Wisconsin v. Yoder, 406 U. S. 205 , 406 U. S. 221 (1972). And these historic "perceptions of the public schools as inculcating fundamental values necessary to the maintenance of a democratic political system have been confirmed by the observations of social scientists." Ambach v. Norwick, supra, at 441 U. S. 77 . In addition, education provides the basic tools by which individuals might lead economically productive lives to the benefit of us all. In sum, education has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests. In addition to the pivotal role of education in sustaining our political and cultural heritage, denial of education to some isolated group of children poses an affront to one of the goals Page 457 U. S. 222 of the Equal Protection Clause: the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit. Paradoxically, by depriving the children of any disfavored group of an education, we foreclose the means by which that group might raise the level of esteem in which it is held by the majority. But more directly, "education prepares individuals to be self-reliant and self-sufficient participants in society." Wisconsin v. Yoder, supra, at 406 U. S. 221 . Illiteracy is an enduring disability. The inability to read and write will handicap the individual deprived of a basic education each and every day of his life. The inestimable toll of that deprivation on the social, economic, intellectual, and psychological wellbeing of the individual, and the obstacle it poses to individual achievement, make it most difficult to reconcile the cost or the principle of a status-based denial of basic education with the framework of equality embodied in the Equal Protection Clause. [ Footnote 20 ] What we said 28 years ago in Brown v. Board of Education, 347 U. S. 483 (1954), still holds true: "Today, education is perhaps the most important function of state and local governments. Compulsory school Page 457 U. S. 223 attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms." Id. at 347 U. S. 493 . B These well-settled principles allow us to determine the proper level of deference to be afforded § 21.031. Undocumented aliens cannot be treated as a suspect class, because their presence in this country in violation of federal law is not a "constitutional irrelevancy." Nor is education a fundamental right; a State need not justify by compelling necessity every variation in the manner in which education is provided to its population. See San Antonio Independent School Dist. v. Rodriguez, supra, at 411 U. S. 28 -39. But more is involved in these cases than the abstract question whether § 21.031 discriminates against a suspect class, or whether education is a fundamental right. Section 21.031 imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. The stigma of illiteracy will mark them for the rest of their lives. By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation. In determining Page 457 U. S. 224 the rationality of § 21. 031, we may appropriately take into account its costs to the Nation and to the innocent children who are its victims. In light of these countervailing costs, the discrimination contained in § 21.031 can hardly be considered rational unless it furthers some substantial goal of the State. IV It is the State's principal argument, and apparently the view of the dissenting Justices, that the undocumented status of these children vel non establishes a sufficient rational basis for denying them benefits that a State might choose to afford other residents. The State notes that, while other aliens are admitted "on an equality of legal privileges with all citizens under nondiscriminatory laws," Takahashi v. Fish & Game Comm'n, 334 U. S. 410 , 334 U. S. 420 (1948), the asserted right of these children to an education can claim no implicit congressional imprimatur. [ Footnote 21 ] Indeed, in the State's view, Congress' apparent disapproval of the presence of these children within the United States, and the evasion of the federal regulatory program that is the mark of undocumented status, provides authority for its decision to impose upon them special disabilities. Faced with an equal protection challenge respecting the treatment of aliens, we agree that the courts must be attentive to congressional policy; the exercise of congressional power might well affect the State's prerogatives to afford differential treatment to a particular class of aliens. But we are unable to find in the congressional immigration scheme any statement of policy that might weigh significantly Page 457 U. S. 225 in arriving at an equal protection balance concerning the State's authority to deprive these children of an education. The Constitution grants Congress the power to "establish an uniform Rule of Naturalization." Art. I., § 8, cl. 4. Drawing upon this power, upon its plenary authority with respect to foreign relations and international commerce, and upon the inherent power of a sovereign to close its borders, Congress has developed a complex scheme governing admission to our Nation and status within our borders. See Mathews v. Diaz, 426 U. S. 67 (1976); Harisiades v. Shaughnessy, 342 U. S. 580 , 342 U. S. 588 -589 (1952). The obvious need for delicate policy judgments has counseled the Judicial Branch to avoid intrusion into this field. Mathews, supra, at 426 U. S. 81 . But this traditional caution does not persuade us that unusual deference must be shown the classification embodied in § 21.031. The States enjoy no power with respect to the classification of aliens. See Hines v. Davidowitz, 312 U. S. 52 (1941). This power is "committed to the political branches of the Federal Government." Mathews, 426 U.S. at 426 U. S. 81 . Although it is "a routine and normally legitimate part" of the business of the Federal Government to classify on the basis of alien status, id. at 426 U. S. 85 , and to "take into account the character of the relationship between the alien and this country," id. at 426 U. S. 80 , only rarely are such matters relevant to legislation by a State. See Id. at 426 U. S. 84 -85; Nyquist v. Mauclet, 432 U. S. 1 , 432 U. S. 7 , n. 8 (1977) As we recognized in De Canas v. Bica, 424 U. S. 351 (1976), the States do have some authority to act with respect to illegal aliens, at least where such action mirrors federal objectives and furthers a legitimate state goal. In De Canas, the State's program reflected Congress' intention to bar from employment all aliens except those possessing a grant of permission to work in this country. Id. at 424 U. S. 361 . In contrast, there is no indication that the disability imposed by § 21.031 corresponds to any identifiable congressional policy. The Page 457 U. S. 226 State does not claim that the conservation of state educational resources was ever a congressional concern in restricting immigration. More importantly, the classification reflected in § 21.031 does not operate harmoniously within the federal program. To be sure, like all persons who have entered the United States unlawfully, these children are subject to deportation. 8 U.S.C. §§ 1251, 1252 (1976 ed. and Supp. IV). But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in this country, or even to become a citizen. See, e.g., 8 U.S.C. §§ 1252, 1253(h), 1254 (1976 ed. and Supp. IV). In light of the discretionary federal power to grant relief from deportation, a State cannot realistically determine that any particular undocumented child will in fact be deported until after deportation proceedings have been completed. It would, of course, be most difficult for the State to justify a denial of education to a child enjoying an inchoate federal permission to remain. We are reluctant to impute to Congress the intention to withhold from these children, for so long as they are present in this country through no fault of their own, access to a basic education. In other contexts, undocumented status, coupled with some articulable federal policy, might enhance state authority with respect to the treatment of undocumented aliens. But in the area of special constitutional sensitivity presented by these cases, and in the absence of any contrary indication fairly discernible in the present legislative record, we perceive no national policy that supports the State in denying these children an elementary education. The State may borrow the federal classification. But to justify its use as a criterion for its own discriminatory policy, the State must demonstrate that the classification is reasonably adapted to " the purposes for which the state desires to use it. " Oyama v. California, 332 U. S. 633 , 332 U. S. 664 -665 (1948) (Murphy, J., concurring) (emphasis added). We therefore turn to the state objectives that are said to support § 21.031. Page 457 U. S. 227 V Appellants argue that the classification at issue furthers an interest in the "preservation of the state's limited resources for the education of its lawful residents." [ Footnote 22 ] Brief for Appellants 26. Of course, a concern for the preservation of resources, standing alone, can hardly justify the classification used in allocating those resources. Graham v. Richardson, 403 U. S. 365 , 403 U. S. 374 -375 (1971). The State must do more than justify its classification with a concise expression of an intention to discriminate. Examining Board v. Flores de Otero, 426 U. S. 572 , 426 U. S. 605 (1976). Apart from the asserted state prerogative to act against undocumented children solely on the basis of their undocumented status -- an asserted prerogative that carries only minimal force in the circumstances of these cases -- we discern three colorable state interests that might support § 21.031. Page 457 U. S. 228 First, appellants appear to suggest that the State may seek to protect itself from an influx of illegal immigrants. While a State might have an interest in mitigating the potentially harsh economic effects of sudden shifts in population, [ Footnote 23 ] § 21.031 hardly offers an effective method of dealing with an urgent demographic or economic problem. There is no evidence in the record suggesting that illegal entrants impose any significant burden on the State's economy. To the contrary, the available evidence suggests that illegal aliens underutilize public services, while contributing their labor to the local economy and tax money to the state fisc. 458 F. Supp. at 578; 501 F. Supp. at 570-571. The dominant incentive for illegal entry into the State of Texas is the availability of employment; few if any illegal immigrants come to this country, or presumably to the State of Texas, in order to avail themselves of a free education. [ Footnote 24 ] Thus, even making the doubtful assumption that the net impact of illegal aliens on the economy of the State is negative, we think it clear that "[c]harging tuition to undocumented children constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration," at least when compared with the alternative of Page 457 U. S. 229 prohibiting the employment of illegal aliens. 458 F. Supp. at 585. See 628 F.2d at 461; 501 F. Supp. at 579, and n. 88. Second, while it is apparent that a State may "not . . . reduce expenditures for education by barring [some arbitrarily chosen class of] children from its schools," Shapiro v. Thompson, 394 U. S. 618 , 394 U. S. 633 (1969), appellants suggest that undocumented children are appropriately singled out for exclusion because of the special burdens they impose on the State's ability to provide high-quality public education. But the record in no way supports the claim that exclusion of undocumented children is likely to improve the overall quality of education in the State. [ Footnote 25 ] As the District Court in No. 801934 noted, the State failed to offer any "credible supporting evidence that a proportionately small diminution of the funds spent on each child [which might result from devoting some state funds to the education of the excluded group] will have a grave impact on the quality of education." 501 F. Supp. at 583. And, after reviewing the State's school financing mechanism, the District Court in No. 80-1538 concluded that barring undocumented children from local schools would not necessarily improve the quality of education provided in those schools. 458 F. Supp. at 577. Of course, even if improvement in the quality of education were a likely result of barring some number of children from the schools of the State, the State must support its selection of this group as the appropriate target for exclusion. In terms of educational cost and need, however, undocumented children are "basically indistinguishable" from legally resident alien children. Id. at 589; 501 F. Supp. at 583, and n. 104. Finally, appellants suggest that undocumented children are appropriately singled out because their unlawful presence Page 457 U. S. 230 within the United States renders them less likely than other children to remain within the boundaries of the State, and to put their education to productive social or political use within the State. Even assuming that such an interest is legitimate, it is an interest that is most difficult to quantify. The State has no assurance that any child, citizen or not, will employ the education provided by the State within the confines of the State's borders. In any event, the record is clear that many of the undocumented children disabled by this classification will remain in this country indefinitely, and that some will become lawful residents or citizens of the United States. It is difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime. It is thus clear that whatever savings might be achieved by denying these children an education, they are wholly insubstantial in light of the costs involved to these children, the State, and the Nation. VI If the State is to deny a discrete group of innocent children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest. No such showing was made here. Accordingly, the judgment of the Court of Appeals in each of these cases is Affirmed. * Together with No. 80-1934, Texas et al. v. Certain Named and Unnamed Undocumented Alien Children et al., also on appeal from the same court. [ Footnote 1 ] That section provides, in pertinent part: "(a) All children who are citizens of the United States or legally admitted aliens and who are over the age of five years and under the age of 21 years on the first day of September of any scholastic year shall be entitled to the benefits of the Available School Fund for that year." "(b) Every child in this state who is a citizen of the United States or a legally admitted alien and who is over the age of five years and not over the age of 21 years on the first day of September of the year in which admission is sought shall be permitted to attend the public free schools of the district in which he resides or in which his parent, guardian, or the person having lawful control of him resides at the time he applies for admission." "(c) The board of trustees of any public free school district of this state shall admit into the public free schools of the district free of tuition all persons who are either citizens of the United States or legally admitted aliens and who are over five and not over 21 years of age at the beginning of the scholastic year if such person or his parent, guardian or person having lawful control resides within the school district." [ Footnote 2 ] Despite the enactment of § 21.031 in 1975, the School District had continued to enroll undocumented children free of charge until the 1977-1978 school year. In July, 1977, it adopted a policy requiring undocumented children to pay a "full tuition fee" in order to enroll. Section 21.031 had not provided a definition of "a legally admitted alien." Tyler offered the following clarification: "A legally admitted alien is one who has documentation that he or she is legally in the United States, or a person who is in the process of securing documentation from the United States Immigration Service, and the Service will state that the person is being processed and will be admitted with proper documentation." App. to Juris.Statement in No. 80-1538, p. A-38. [ Footnote 3 ] The court contrasted this group with those illegal aliens who entered the country alone in order to earn money to send to their dependents in Mexico, and who, in many instances, remained in this country for only a short period of time. 458 F. Supp. at 578. [ Footnote 4 ] Plaintiffs' expert, Dr. Gilbert Cardenas, testified that "fifty to sixty per cent . . . of current legal alien workers were formerly illegal aliens." Id. at 577. A defense witness, Rolan Heston, District Director of the Houston District of the Immigration and Naturalization Service, testified that "undocumented children can and do live in the United States for years, and adjust their status through marriage to a citizen or permanent resident." Ibid. The court also took notice of congressional proposals to "legalize" the status of many unlawful entrants. Id. at 577-578. See also n 17, infra. [ Footnote 5 ] The court found § 21.031 inconsistent with the scheme of national regulation under the Immigration and Nationality Act, and with federal laws pertaining to funding and discrimination in education. The court distinguished De Canas v. Bica, 424 U. S. 351 (1976), by emphasizing that the state bar on employment of illegal aliens involved in that case mirrored precisely the federal policy, of protecting the domestic labor market, underlying the immigration laws. The court discerned no express federal policy to bar illegal immigrants from education. 458 F. Supp. at 590-592. [ Footnote 6 ] The Court of Appeals noted that De Canas v. Bica, supra, had not foreclosed all state regulation with respect to illegal aliens, and found no express or implied congressional policy favoring the education of illegal aliens. The court therefore concluded that there was no preemptive conflict between state and federal law. 628 F.2d at 451-454. [ Footnote 7 ] The court concluded that § 21.031 was not preempted by federal laws or international agreements. 501 F. Supp. at 584-596. [ Footnote 8 ] Appellees in both cases continue to press the argument that § 21.031 is preempted by federal law and policy. In light of our disposition of the Fourteenth Amendment issue, we have no occasion to reach this claim. [ Footnote 9 ] It would be incongruous to hold that the United States, to which the Constitution assigns a broad authority over both naturalization and foreign affairs, is barred from invidious discrimination with respect to unlawful aliens, while exempting the States from a similar limitation. See 426 U.S. at 426 U. S. 84 -86. [ Footnote 10 ] Although we have not previously focused on the intended meaning of this phrase, we have had occasion to examine the first sentence of the Fourteenth Amendment, which provides that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. . . ." (Emphasis added.) Justice Gray, writing for the Court in United States v. Wong Kim Ark, 169 U. S. 649 (1898), detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term "jurisdiction" was used. He further noted that it was "impossible to construe the words 'subject to the jurisdiction thereof,' in the opening sentence [of the Fourteenth Amendment], as less comprehensive than the words 'within its jurisdiction,' in the concluding sentence of the same section; or to hold that persons 'within the jurisdiction' of one of the States of the Union are not 'subject to the jurisdiction of the United States.'" Id. at 169 U. S. 687 . Justice Gray concluded that "[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States." Id. at 169 U. S. 693 . As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful. See C. Bouve, Exclusion and Expulsion of Aliens in the United States 425-427 (1912). [ Footnote 11 ] In his separate opinion, Justice Field addressed the relationship between the Fifth and Fourteenth Amendments: "The term 'person,' used in the Fifth Amendment, is broad enough to include any and every human being within the jurisdiction of the republic. A resident, alien born, is entitled to the same protection under the laws that a citizen is entitled to. He owes obedience to the laws of the country in which he is domiciled, and, as a consequence, he is entitled to the equal protection of those laws. . . . The contention that persons within the territorial jurisdiction of this republic might be beyond the protection of the law was heard with pain on the argument at the bar -- in face of the great constitutional amendment which declares that no State shall deny to any person within its jurisdiction the equal protection of the laws." Wong Wing v. United States, 163 U.S. at 163 U. S. 242 -243 (concurring in part and dissenting in part). [ Footnote 12 ] Leng May Ma v. Barber, 357 U. S. 185 (1958), relied on by appellants, is not to the contrary. In that case, the Court held, as a matter of statutory construction, that an alien paroled into the United States pursuant to 212(d)(5) of the Immigration and Nationality Act, 8 U.S.C. 1182(d)(5) (1952 ed.), was not "within the United States" for the purpose of availing herself of § 243(h), which authorized the withholding of deportation in certain circumstance. The conclusion reflected the longstanding distinction between exclusion proceedings, involving the determination of admissibility, and deportation proceedings. The undocumented children who are appellees here, unlike the parolee in Leng May Ma, supra, could apparently be removed from the country only pursuant to deportation proceedings. 8 U.S.C. § 1251(a)(2). See 1A C. Gordon & H. Rosenfield, Immigration Law and Procedure § 3.16b, p. 3-161 (1981). [ Footnote 13 ] Representative Bingham's views are also reflected in his comments on the Civil Rights Bill of 1866. He repeatedly referred to the need to provide protection, not only to the freedmen, but to "the alien and stranger," and to "refugees . . . and all men." Cong.Globe, 39th Cong., 1st Sess., 1292 (1866). [ Footnote 14 ] Several formulations might explain our treatment of certain classifications as "suspect." Some classifications are more likely than others to reflect deep-seated prejudice, rather than legislative rationality in pursuit of some legitimate objective. Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law. Classifications treated as suspect tend to be irrelevant to any proper legislative goal. See McLaughlin v. Florida, 379 U. S. 184 , 379 U. S. 192 (1964); Hirabayashi v. United States, 320 U. S. 81 , 320 U. S. 100 (1943). Finally, certain groups, indeed largely the same groups, have historically been "relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1 , 411 U. S. 28 (1973); Graham v. Richardson, 403 U. S. 365 , 403 U. S. 372 (1971); see United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 152 -153, n. 4 (1938). The experience of our Nation has shown that prejudice may manifest itself in the treatment of some groups. Our response to that experience is reflected in the Equal Protection Clause of the Fourteenth Amendment. Legislation imposing special disabilities upon groups disfavored by virtue of circumstances beyond their control suggests the kind of "class or caste" treatment that the Fourteenth Amendment was designed to abolish. [ Footnote 15 ] In determining whether a class-based denial of a particular right is deserving of strict scrutiny under the Equal Protection Clause, we look to the Constitution to see if the right infringed has its source, explicitly or implicitly, therein. But we have also recognized the fundamentality of participation in state "elections on an equal basis with other citizens in the jurisdiction," Dunn v. Blumstein, 405 U. S. 330 , 405 U. S. 336 (1972), even though "the right to vote, per se, is not a constitutionally protected right." San Antonio Independent School Dist., supra, at 411 U. S. 35 , n. 78. With respect to suffrage, we have explained the need for strict scrutiny as arising from the significance of the franchise as the guardian of all other rights. See Harper v. Virginia Bd. of Elections, 383 U. S. 663 , 383 U. S. 667 (1966); Reynolds v. Sims, 377 U. S. 533 , 377 U. S. 562 (1964); Yick Wo v. Hopkins, 118 U. S. 356 , 118 U. S. 370 (1886). [ Footnote 16 ] See Craig v. Boren, 429 U. S. 190 (1976); Lalli v. Lalli, 439 U. S. 259 (1978). This technique of "intermediate" scrutiny permits us to evaluate the rationality of the legislative judgment with reference to well-settled constitutional principles. "In expounding the Constitution, the Court's role is to discern 'principles sufficiently absolute to give them roots throughout the community and continuity over significant periods of time, and to lift them above the level of the pragmatic political judgments of a particular time and place.'" University of California Regents v. Bakke, 438 U. S. 265 , 438 U. S. 299 (1978) (opinion of POWELL, J.), quoting A. Cox, The Role of the Supreme Court in American Government 114 (1976). Only when concerns sufficiently absolute and enduring can be clearly ascertained from the Constitution and our cases do we employ this standard to aid us in determining the rationality of the legislative choice. [ Footnote 17 ] The Attorney General recently estimated the number of illegal aliens within the United States at between 3 and 6 million. In presenting to both the Senate and House of Representatives several Presidential proposals for reform of the immigration laws -- including one to "legalize" many of the illegal entrants currently residing in the United States by creating for them a special status under the immigration laws -- the Attorney General noted that this subclass is largely composed of persons with a permanent attachment to the Nation, and that they are unlikely to be displaced from our territory: "We have neither the resources, the capability, nor the motivation to uproot and deport millions of illegal aliens, many of whom have become, in effect, members of the community. By granting limited legal status to the productive and law-abiding members of this shadow population, we will recognize reality and devote our enforcement resources to deterring future illegal arrivals." Joint Hearing before the Subcommittee on Immigration, Refugees, and International Law of the House Committee on the Judiciary and the Subcommittee on Immigration and Refugee Policy of the Senate Committee on the Judiciary, 97th Cong., 1st Sess., 9 (1981) (testimony of William French Smith, Attorney General). [ Footnote 18 ] As the District Court observed in No. 80-1538, the confluence of Government policies has resulted in "the existence of a large number of employed illegal aliens, such as the parents of plaintiffs in this case, whose presence is tolerated, whose employment is perhaps even welcomed, but who are virtually defenseless against any abuse, exploitation, or callous neglect to which the state or the state's natural citizens and business organizations may wish to subject them." 458 F. Supp. at 585. [ Footnote 19 ] We reject the claim that "illegal aliens" are a "suspect class." No case in which we have attempted to define a suspect class, see, e.g., n. 14, supra, has addressed the status of persons unlawfully in our country. Unlike most of the classifications that we have recognized as suspect, entry into this class, by virtue of entry into this country, is the product of voluntary action. Indeed, entry into the class is itself a crime. In addition, it could hardly be suggested that undocumented status is a "constitutional irrelevancy." With respect to the actions of the Federal Government, alienage classifications may be intimately related to the conduct of foreign policy, to the federal prerogative to control access to the United States, and to the plenary federal power to determine who has sufficiently manifested his allegiance to become a citizen of the Nation. No State may independently exercise a like power. But if the Federal Government has, by uniform rule, prescribed what it believes to be appropriate standards for the treatment of an alien subclass, the States may, of course, follow the federal direction. See De Canas v. Bica, 424 U. S. 351 (1976). [ Footnote 20 ] Because the State does not afford noncitizens the right to vote, and may bar noncitizens from participating in activities at the heart of its political community, appellants argue that denial of a basic education to these children is of less significance than the denial to some other group. Whatever the current status of these children, the courts below concluded that many will remain here permanently, and that some indeterminate number will eventually become citizens. The fact that many will not is not decisive, even with respect to the importance of education to participation in core political institutions. "[T]he benefits of education are not reserved to those whose productive utilization of them is a certainty. . . ." 458 F. Supp. at 581, n. 14. In addition, although a noncitizen "may be barred from full involvement in the political arena, he may play a role -- perhaps even a leadership role -- in other areas of import to the community." Nyquist v. Mauclet, 432 U. S. 1 , 432 U. S. 12 (1977). Moreover, the significance of education to our society is not limited to its political and cultural fruits. The public schools are an important socializing institution, imparting those shared values through which social order and stability are maintained. [ Footnote 21 ] If the constitutional guarantee of equal protection was available only to those upon whom Congress affirmatively granted its benefit, the State's argument would be virtually unanswerable. But the Equal Protection Clause operates of its own force to protect anyone "within [the State's] jurisdiction" from the State's arbitrary action. See 457 U. S. supra. The question we examine in text is whether the federal disapproval of the presence of these children assists the State in overcoming the presumption that denial of education to innocent children is not a rational response to legitimate state concerns. [ Footnote 22 ] Appellant School District sought at oral argument to characterize the alienage classification contained in § 21.031 as simply a test of residence. We are unable to uphold § 21.031 on that basis. Appellants conceded that, if, for example, a Virginian or a legally admitted Mexican citizen entered Tyler with his school-age children, intending to remain only six months, those children would be viewed as residents entitled to attend Tyler schools. Tr. of Oral Arg. 31-32. It is thus clear that Tyler's residence argument amounts to nothing more than the assertion that illegal entry, without more, prevents a person from becoming a resident for purposes of enrolling his children in the public schools. A State may not, however, accomplish what would otherwise be prohibited by the Equal Protection Clause merely by defining a disfavored group as nonresident. And illegal entry into the country would not, under traditional criteria, bar a person from obtaining domicile within a State. C. Bouve, Exclusion and Expulsion of Aliens in the United States 340 (1912). Appellants have not shown that the families of undocumented children do not comply with the established standards by which the State historically tests residence. Apart from the alienage limitation, § 21.031(b) requires a school district to provide education only to resident children. The school districts of the State are as free to apply to undocumented children established criteria for determining residence as they are to apply those criteria to any other child who seeks admission. [ Footnote 23 ] Although the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State's economy generally, or the State's ability to provide some important service. Despite the exclusive federal control of this Nation's borders, we cannot conclude that the States are without any power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns. See De Canas v. Bica, 424 U.S. at 424 U. S. 354 -356. [ Footnote 24 ] The courts below noted the ineffectiveness of the Texas provision as a means of controlling the influx of illegal entrants into the State. See 628 F.2d at 460-461; 458 F. Supp. at 585; 501 F. Supp. at 578 ("The evidence demonstrates that undocumented persons do not immigrate in search for a free public education. Virtually all of the undocumented persons who come into this country seek employment opportunities, and not educational benefits. . . . There was overwhelming evidence . . . of the unimportance of public education as a stimulus for immigration") (footnote omitted). [ Footnote 25 ] Nor does the record support the claim that the educational resources of the State are so direly limited that some form of "educational triage" might be deemed a reasonable (assuming that it were a permissible) response to the State's problems. Id. at 579-581. JUSTICE MARSHALL, concurring. While I join the Court opinion, I do so without in any way retreating from my opinion in San Antonio Independent School District v. Rodriguez, 411 U. S. 1 , 411 U. S. 70 -133 (1973) (dissenting opinion). I continue to believe that an individual's interest in education is fundamental, and that this view is amply supported "by the unique status accorded public education by our society, and by the close relationship between education and some of our most basic constitutional values. " Page 457 U. S. 231 Id. at 411 U. S. 111 . Furthermore, I believe that the facts of these cases demonstrate the wisdom of rejecting a rigidified approach to equal protection analysis, and of employing an approach that allows for varying levels of scrutiny depending upon "the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn." Id. at 411 U. S. 99 . See also Dandridge v. Williams, 397 U. S. 471 , 397 U. S. 519 -521 (1970) (MARSHALL, J., dissenting). It continues to be my view that a class-based denial of public education is utterly incompatible with the Equal Protection Clause of the Fourteenth Amendment. JUSTICE BLACKMUN, concurring. I join the opinion and judgment of the Court. Like JUSTICE POWELL, I believe that the children involved in this litigation "should not be left on the streets uneducated." Post at 457 U. S. 238 . I write separately, however, because, in my view, the nature of the interest at stake is crucial to the proper resolution of these cases. The "fundamental rights" aspect of the Court's equal protection analysis -- the now-familiar concept that governmental classifications bearing on certain interests must be closely scrutinized -- has been the subject of some controversy. Justice Harlan, for example, warned that "[v]irtually every state statute affects important rights. . . . [T]o extend the 'compelling interest' rule to all cases in which such rights are affected would go far toward making this Court a 'superlegislature.'" Shapiro v. Thompson, 394 U. S. 618 , 394 U. S. 661 (1969) (dissenting opinion). Others have noted that strict scrutiny under the Equal Protection Clause is unnecessary when classifications infringing enumerated constitutional rights are involved, for "a state law that impinges upon a substantive right or liberty created or conferred by the Constitution is, of course, presumptively invalid, whether or not the law's purpose or effect is to create any classifications." San Antonio Page 457 U. S. 232 Independent School Dist. v. Rodriguez, 411 U. S. 1 , 411 U. S. 61 (1973) (Stewart, J., concurring). See Shapiro v. Thompson, 394 U.S. at 394 U. S. 659 (Harlan, J., dissenting). Still others have suggested that fundamental rights are not properly a part of equal protection analysis at all, because they are unrelated to any defined principle of equality. [ Footnote 2/1 ] These considerations, combined with doubts about the judiciary's ability to make fine distinctions in assessing the effects of complex social policies, led the Court in Rodriguez to articulate a firm rule: fundamental rights are those that "explicitly or implicitly [are] guaranteed by the Constitution." 411 U.S. at 411 U. S. 33 -34. It therefore squarely rejected the notion that "an ad hoc determination as to the social or economic importance" of a given interest is relevant to the level of scrutiny accorded classifications involving that interest, id. at 411 U. S. 32 , and made clear that "[i]t is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws." Id. at 411 U. S. 33 . I joined JUSTICE POWELL's opinion for the Court in Rodriguez, and I continue to believe that it provides the appropriate model for resolving most equal protection disputes. Classifications infringing substantive constitutional rights necessarily will be invalid, if not by force of the Equal Protection Clause, then through operation of other provisions of the Constitution. Conversely, classifications bearing on nonconstitutional interests -- even those involving "the most basic economic needs of impoverished human beings," Dandridge v. Williams, 397 U. S. 471 , 397 U. S. 485 (1970) -- generally are not subject to special treatment under the Equal Protection Clause, because they are not distinguishable in any relevant way from other regulations in "the area of economics and social welfare." Ibid. With all this said, however, I believe the Court's experience has demonstrated that the Rodriguez formulation does Page 457 U. S. 233 not settle every issue of "fundamental rights" arising under the Equal Protection Clause. Only a pedant would insist that there are no meaningful distinctions among the multitude of social and political interests regulated by the States, and Rodriguez does not stand for quite so absolute a proposition. To the contrary, Rodriguez implicitly acknowledged that certain interests, though not constitutionally guaranteed, must be accorded a special place in equal protection analysis. Thus, the Court's decisions long have accorded strict scrutiny to classifications bearing on the right to vote in state elections, and Rodriguez confirmed the "constitutional underpinnings of the right to equal treatment in the voting process." 411 U.S. at 411 U. S. 34 , n. 74. Yet "the right to vote, per se, is not a constitutionally protected right," id. at 411 U. S. 35 , n. 78. See Harper v. Virginia Board of Elections, 383 U. S. 663 , 383 U. S. 665 (1966); Rodriguez, 411 U.S. at 411 U. S. 59 , n. 2 (Stewart, J., concurring). Instead, regulation of the electoral process receives unusual scrutiny because "the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights." Reynolds v. Sims, 377 U. S. 533 , 377 U. S. 562 (1964). See Dunn v. Blumstein, 405 U. S. 330 , 405 U. S. 336 (1972). In other words, the right to vote is accorded extraordinary treatment because it is, in equal protection terms, an extraordinary right: a citizen [ Footnote 2/2 ] cannot hope to achieve any meaningful degree of individual political equality if granted an inferior right of participation in the political process. Those denied the vote are relegated, by state fiat, in a most basic way to second-class status. It is arguable, of course, that the Court never should have applied fundamental rights doctrine in the fashion outlined above. Justice Harlan, for one, maintained that strict equal protection scrutiny was appropriate only when racial or analogous Page 457 U. S. 234 classifications were at issue. Shapiro v. Thompson, 394 U.S. at 394 U. S. 658 -663 (dissenting opinion). See Reynolds v. Sims, 377 U.S. at 377 U.S. 590 -591 (Harlan, J., dissenting). But it is too late to debate that point, and I believe that accepting the principle of the voting cases -- the idea that state classifications bearing on certain interests pose the risk of allocating rights in a fashion inherently contrary to any notion of "equality" -- dictates the outcome here. As both JUSTICE POWELL and THE CHIEF JUSTICE observe, the Texas scheme inevitably will create "a subclass of illiterate persons," post at 457 U. S. 241 (POWELL, J., concurring); see post at 457 U. S. 242 , 457 U. S. 254 (BURGER, C.J., dissenting); where I differ with THE CHIEF JUSTICE is in my conclusion that this makes the statutory scheme unconstitutional, as well as unwise. In my view, when the State provides an education to some and denies it to others, it immediately and inevitably creates class distinctions of a type fundamentally inconsistent with those purposes, mentioned above, of the Equal Protection Clause. Children denied an education are placed at a permanent and insurmountable competitive disadvantage, for an uneducated child is denied even the opportunity to achieve. And when those children are members of an identifiable group, that group -- through the State's action -- will have been converted into a discrete underclass. Other benefits provided by the State, such as housing and public assistance, are, of course, important; to an individual in immediate need, they may be more desirable than the right to be educated. But classifications involving the complete denial of education are, in a sense, unique, for they strike at the heart of equal protection values by involving the State in the creation of permanent class distinctions. Cf. Rodriguez, 411 U.S. at 411 U. S. 115 , n. 74 (MARSHALL, J., dissenting). In a sense, then, denial of an education is the analogue of denial of the right to vote: the former relegates the individual to second-class social status; the latter places him at a permanent political disadvantage. Page 457 U. S. 235 This conclusion is fully consistent with Rodriguez. The Court there reserved judgment on the constitutionality of a state system that "occasioned an absolute denial of educational opportunities to any of its children," noting that "no charge fairly could be made that the system [at issue in Rodriguez ] fails to provide each child with an opportunity to acquire . . . basic minimal skills." Id. at 411 U. S. 37 . And it cautioned that, in a case "involv[ing] the most persistent and difficult questions of educational policy, . . . [the] Court's lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels." Id. at 411 U. S. 42 . Thus Rodriguez held, and the Court now reaffirms, that "a State need not justify by compelling necessity every variation in the manner in which education is provided to its population." Ante at 457 U. S. 223 . Similarly, it is undeniable that education is not a "fundamental right" in the sense that it is constitutionally guaranteed. Here, however, the State has undertaken to provide an education to most of the children residing within its borders. And, in contrast to the situation in Rodriguez, it does not take an advanced degree to predict the effects of a complete denial of education upon those children targeted by the State's classification. In such circumstances, the voting decisions suggest that the State must offer something more than a rational basis for its classification. [ Footnote 2/3 ] Concededly, it would seem ironic to discuss the social necessity of an education in a case that concerned only undocumented aliens "whose very presence in the state and this country is illegal." Post at 457 U. S. 250 (BURGER, C.J., dissenting). But because of the nature of the federal immigration laws and the preeminent role of the Federal Government in Page 457 U. S. 236 regulating immigration, the class of children here is not a monolithic one. Thus, the District Court in the Alien Children Education case found as a factual matter that a significant number of illegal aliens will remain in this country permanently, 501 F. Supp. 544 , 558-559 (SD Tex.1980); that some of the children involved in this litigation are "documentable," id. at 573; and that "[m]any of the undocumented children are not deportable. None of the named plaintiffs is under an order of deportation." Id. at 583, n. 103. As the Court's alienage cases demonstrate, these children may not be denied rights that are granted to citizens, excepting only those rights bearing on political interests. See Nyquist v. Mauclet, 432 U. S. 1 (1977). And, as JUSTICE POWELL notes, the structure of the immigration statutes makes it impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported. Post at 457 U. S. 240 -241, n. 6. Indeed, any attempt to do so would involve the State in the administration of the immigration laws. Whatever the State's power to classify deportable aliens, then -- and whatever the Federal Government's ability to draw more precise and more acceptable alienage classifications -- the statute at issue here sweeps within it a substantial number of children who will in fact, and who may well be entitled to, remain in the United States. Given the extraordinary nature of the interest involved, this makes the classification here fatally imprecise. And, as the Court demonstrates, the Texas legislation is not otherwise supported by any substantial interests. Because I believe that the Court's carefully worded analysis recognizes the importance of the equal protection and preemption interests I consider crucial, I join its opinion as well as its judgment. [ Footnote 2/1 ] See, e.g., Perry, Modern Equal Protection: A Conceptualization and Appraisal, 79 Colum.L.Rev. 1023, 1075-1083 (1979). [ Footnote 2/2 ] I use the term "citizen" advisedly. The right to vote, of course, is a political interest of concern to citizens. The right to an education, in contrast, is a social benefit of relevance to a substantial number of those affected by Texas' statutory scheme, as is discussed below. [ Footnote 2/3 ] The Court concludes that the provision at issue must be invalidated "unless it furthers some substantial goal of the State." Ante at 457 U. S. 224 . Since the statute fails to survive this level of scrutiny, as the Court demonstrates, there is no need to determine whether a more probing level of review would be appropriate. JUSTICE POWELL, concurring. I join the opinion of the Court, and write separately to emphasize the unique character of the cases before us. Page 457 U. S. 237 The classification in question severely disadvantages children who are the victims of a combination of circumstances. Access from Mexico into this country, across our 2,000-mile border, is readily available and virtually uncontrollable. Illegal aliens are attracted by our employment opportunities, and perhaps by other benefits as well. This is a problem of serious national proportions, as the Attorney General recently has recognized. See ante at 457 U. S. 218 -219, n. 17. Perhaps because of the intractability of the problem, Congress -- vested by the Constitution with the responsibility of protecting our borders and legislating with respect to aliens -- has not provided effective leadership in dealing with this problem. [ Footnote 3/1 ] It therefore is certain that illegal aliens will continue Page 457 U. S. 238 to enter the United States and, as the record makes clear, an unknown percentage of them will remain here. I agree with the Court that their children should not be left on the streets uneducated. Although the analogy is not perfect, our holding today does find support in decisions of this Court with respect to the status of illegitimates. In Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 , 406 U. S. 175 (1972), we said: "[V]isiting . . . condemnation on the head of an infant" for the misdeeds of the parents is illogical, unjust, and "contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing." In these cases, the State of Texas effectively denies to the school-age children of illegal aliens the opportunity to attend the free public schools that the State makes available to all residents. They are excluded only because of a status resulting from the violation by parents or guardians of our immigration laws and the fact that they remain in our country unlawfully. The appellee children are innocent in this respect. They can "affect neither their parents' conduct nor their own status." Trimble v. Gordon, 430 U. S. 762 , 430 U. S. 770 (1977) Our review in a case such as these is properly heightened. [ Footnote 3/2 ] See id. at 430 U. S. 767 . Cf. Craig v. Boren, 429 U. S. 190 (1976). The classification at issue deprives a group of children of the opportunity for education afforded all other children simply because they have been assigned a legal status due to a violation of law by their parents. These children thus have been Page 457 U. S. 239 singled out for a lifelong penalty and stigma. A legislative classification that threatens the creation of an underclass of future citizens and residents cannot be reconciled with one of the fundamental purposes of the Fourteenth Amendment. In these unique circumstances, the Court properly may require that the State's interests be substantial and that the means bear a "fair and substantial relation" to these interests. [ Footnote 3/3 ] See Lalli v. Lalli, 439 U. S. 259 , 439 U. S. 265 (1978) ("classifications based on illegitimacy . . . are invalid under the Fourteenth Amendment if they are not substantially related to permissible state interests"); id. at 439 U. S. 271 ("[a]s the State's interests are substantial, we now consider the means adopted"). In my view, the State's denial of education to these children bears no substantial relation to any substantial state interest. Both of the District Courts found that an uncertain but significant percentage of illegal alien children will remain in Texas as residents, and many eventually will become citizens. The discussion by the Court, ante at 457 U. S. of the State's purported interests demonstrates that they are poorly served by the educational exclusion. Indeed, the interests relied upon by the State would seem to be insubstantial in view of the consequences to the State itself of wholly uneducated persons living indefinitely within its borders. By contrast, access to the public schools is made available to the children of lawful residents without regard to the temporary Page 457 U. S. 240 nature of their residency in the particular Texas school district. [ Footnote 3/4 ] The Court of Appeals and the District Courts that addressed these cases concluded that the classification could not satisfy even the bare requirements of rationality. One need not go so far to conclude that the exclusion of appellees' class [ Footnote 3/5 ] of children from state-provided education is a type of punitive discrimination based on status that is impermissible under the Equal Protection Clause. In reaching this conclusion, I am not unmindful of what must be the exasperation of responsible citizens and government authorities in Texas and other States similarly situated. Their responsibility, if any, for the influx of aliens is slight compared to that imposed by the Constitution on the Federal Government. [ Footnote 3/6 ] So long as the ease of entry remains inviting, Page 457 U. S. 241 and the power to deport is exercised infrequently by the Federal Government, the additional expense of admitting these children to public schools might fairly be shared by the Federal and State Governments. But it hardly can be argued rationally that anyone benefits from the creation within our borders of a subclass of illiterate persons, many of whom will remain in the State, adding to the problems and costs of both State and National Governments attendant upon unemployment, welfare, and crime. Page 457 U. S. 242 [ Footnote 3/1 ] Article I, 8, cl. 4, of the Constitution provides: "The Congress shall have Power . . . To establish an uniform Rule of Naturalization." The Federal Government has "broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization." Takahashi v. Fish & Game Comm'n, 334 U. S. 410 , 334 U. S. 419 (1948). See Graham v. Richardson, 403 U. S. 365 , 403 U. S. 378 (1971) (regulation of aliens is "constitutionally entrusted to the Federal Government"). The Court has traditionally shown great deference to federal authority over immigration and to federal classifications based upon alienage. See, e.g., Fiallo v. Bell, 430 U. S. 787 , 430 U. S. 792 (1977) ("it is important to underscore the limited scope of judicial inquiry into immigration legislation"); Harisiades v. Shaughnessy, 342 U. S. 580 , 342 U. S. 588 -589 (1952) ("It is pertinent to observe that any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference"). Indeed, even equal protection analysis in this area is based to a large extent on an underlying theme of preemption and exclusive federal power over immigration. See Takahashi v. Fish & Game Comm'n, supra, at 334 U. S. 420 (the Federal Government has admitted resident aliens to the country "on an equality of legal privileges with all citizens under nondiscriminatory laws," and the States may not alter the terms of this admission). Compare Graham v. Richardson, supra, and Sugarman v. Dougall, 413 U. S. 634 (1973), with Mathews v. Diaz, 426 U. S. 67 (1976), and Hampton v. Mow Sun Wong, 426 U. S. 88 (1976). Given that the States' power to regulate in this area is so limited, and that this is an area of such peculiarly strong federal authority, the necessity of federal leadership seems evident. [ Footnote 3/2 ] I emphasize the Court's conclusion that strict scrutiny is not appropriately applied to this classification. This exacting standard of review has been reserved for instances in which a "fundamental" constitutional right or a "suspect" classification is present. Neither is present in these cases, as the Court holds. [ Footnote 3/3 ] THE CHIEF JUSTICE argues in his dissenting opinion that this heightened standard of review is inconsistent with the Court's decision in San Antonio Independent School District v. Rodriguez, 411 U. S. 1 (1973). But in Rodriguez, no group of children was singled out by the State and then penalized because of their parents' status. Rather, funding for education varied across the State because of the tradition of local control. Nor, in that case, was any group of children totally deprived of all education, as in these cases. If the resident children of illegal aliens were denied welfare assistance, made available by government to all other children who qualify, this also -- in my opinion -- would be an impermissible penalizing of children because of their parents' status. [ Footnote 3/4 ] The State provides free public education to all lawful residents whether they intend to reside permanently in the State or only reside in the State temporarily. See ante at 457 U. S. 227 , n. 22. Of course, a school district may require that illegal alien children, like any other children, actually reside in the school district before admitting them to the schools. A requirement of de facto residency, uniformly applied, would not violate any principle of equal protection. [ Footnote 3/5 ] The classes certified in these cases included all undocumented school-age children of Mexican origin residing in the school district, see ante at 457 U. S. 206 , or the State. See In re Alien Children Education Litigation, 501 F. Supp. 544 , 553 (SD Tex.1980). Even so, it is clear that neither class was thought to include mature Mexican minors who were solely responsible for violating the immigration laws. In 458 F. Supp. 569 (ED Tex.1978), the court characterized plaintiffs as "entire families who have migrated illegally." Id. at 578. Each of the plaintiff children in that case was represented by a parent or guardian. Similarly, the court in In re Alien Children Education Litigation found that "[u]ndocumented children do not enter the United States unaccompanied by their parents." 501 F. Supp. at 573. A different case would be presented in the unlikely event that a minor, old enough to be responsible for illegal entry and yet still of school age, entered this country illegally on his own volition. [ Footnote 3/6 ] In addition, the States' ability to respond on their own to the problems caused by this migration may be limited by the principles of preemption that apply in this area. See, e.g., Hines v. Davidowitz, 312 U. S. 52 (1941). In De Canas v. Bica, 424 U. S. 351 (1976), the Court found that a state law making it a criminal offense to employ illegal aliens was not preempted by federal authority over aliens and immigration. The Court found evidence that Congress intended state regulation in this area. Id. at 424 U. S. 361 ("there is evidence . . . that Congress intends that States may, to the extent consistent with federal law, regulate the employment of illegal aliens"). Moreover, under federal immigration law, only immigrant aliens and nonimmigrant aliens with special permission are entitled to work. See 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure, 1.34a, 1.36, 2.6b (1981). Because federal law clearly indicates that only certain specified aliens may lawfully work in the country, and because these aliens have documentation establishing this right, the State in De Canas was able to identify with certainty which aliens had a federal permission to work in this country. The State did not need to concern itself with an alien's current or future deportability. By contrast, there is no comparable federal guidance in the area of education. No federal law invites state regulation; no federal regulations identify those aliens who have a right to attend public schools. In addition, the Texas educational exclusion requires the State to make predictions as to whether individual aliens eventually will be found to be deportable. But it is impossible for a State to determine which aliens the Federal Government will eventually deport, which the Federal Government will permit to stay, and which the Federal Government will ultimately naturalize. Until an undocumented alien is ordered deported by the Federal Government, no State can be assured that the alien will not be found to have a federal permission to reside in the country, perhaps even as a citizen. Indeed, even the Immigration and Naturalization Service cannot predict with certainty whether any individual alien has a right to reside in the country until deportation proceedings have run their course. See, e.g., 8 U.S.C. §§ 1252, 1253(h), 1254 (1976 ed. and Supp. IV). CHIEF JUSTICE BURGER, with whom JUSTICE WHITE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR join, dissenting. Were it our business to set the Nation's social policy, I would agree without hesitation that it is senseless for an enlightened society to deprive any children -- including illegal aliens -- of an elementary education. I fully agree that it would be folly -- and wrong -- to tolerate creation of a segment of society made up of illiterate persons, many having a limited or no command of our language. [ Footnote 4/1 ] However, the Constitution does not constitute us as "Platonic Guardians," nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, "wisdom," or "common sense." See TVA v. Hill, 437 U. S. 153 , 437 U. S. 194 -195 (1978). We trespass on the assigned function of the political branches under our structure of limited and separated powers when we assume a policymaking role as the Court does today. The Court makes no attempt to disguise that it is acting to make up for Congress' lack of "effective leadership" in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders. [ Footnote 4/2 ] Page 457 U. S. 243 See ante at 457 U. S. 237 -238 (POWELL, J., concurring). The failure of enforcement of the immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide "effective leadership" simply because the political branches of government fail to do so. The Court's holding today manifests the justly criticized judicial tendency to attempt speedy and wholesale formulation of "remedies" for the failures -- or simply the laggard pace -- of the political processes of our system of government. The Court employs, and, in my view, abuses, the Fourteenth Amendment in an effort to become an omnipotent and omniscient problem solver. That the motives for doing so are noble and compassionate does not alter the fact that the Court distorts our constitutional function to make amends for the defaults of others. I In a sense, the Court's opinion rests on such a unique confluence of theories and rationales that it will likely stand for little beyond the results in these particular cases. Yet the extent to which the Court departs from principled constitutional adjudication is nonetheless disturbing. I have no quarrel with the conclusion that the Equal Protection Clause of the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically "within the jurisdiction" of a state. However, as the Court concedes, this "only begins the inquiry." Ante at 457 U. S. 215 . The Equal Protection Clause does not mandate identical treatment of different categories of persons. Jefferson v. Hackney, 406 U. S. 535 , 406 U. S. 549 (1972); Reed v. Reed, 404 U. S. 71 , 404 U. S. 75 (1971); Tigner v. Texas, 310 U. S. 141 , 310 U. S. 147 -148 (1940). The dispositive issue in these cases, simply put, is whether, for purposes of allocating its finite resources, a state has a legitimate reason to differentiate between persons Page 457 U. S. 244 who are lawfully within the state and those who are unlawfully there. The distinction the State of Texas has drawn -- based not only upon its own legitimate interests but on classifications established by the Federal Government in its immigration laws and policies -- is not unconstitutional. A The Court acknowledges that, except in those cases when state classifications disadvantage a "suspect class" or impinge upon a "fundamental right," the Equal Protection Clause permits a state "substantial latitude" in distinguishing between different groups of persons. Ante at 457 U. S. 216 -217. Moreover, the Court expressly -- and correctly -- rejects any suggestion that illegal aliens are a suspect class, ante at 457 U. S. 219 , n.19, or that education is a fundamental right, ante at 457 U. S. 221 , 457 U. S. 223 . Yet by patching together bits and pieces of what might be termed quasi-suspect-class and quasi-fundamental-rights analysis, the Court spins out a theory custom-tailored to the facts of these cases. In the end, we are told little more than that the level of scrutiny employed to strike down the Texas law applies only when illegal alien children are deprived of a public education, see ante at 457 U. S. 223 -224. [ Footnote 4/3 ] If ever a court was guilty of an unabashedly result-oriented approach, this case is a prime example. (1) The Court first suggests that these illegal alien children, although not a suspect class, are entitled to special solicitude under the Equal Protection Clause because they lack "control" over or "responsibility" for their unlawful entry into this country. Ante at 457 U. S. 220 , 457 U. S. 223 -224. Similarly, the Court appears to take the position that § 21.031 is presumptively "irrational" because it has the effect of imposing "penalties" Page 457 U. S. 245 on "innocent" children. Ibid. See also ante at 457 U. S. 238 -239 (POWELL, J., concurring). [ Footnote 4/4 ] However, the Equal Protection Clause does not preclude legislators from classifying among persons on the basis of factors and characteristics over which individuals may be said to lack "control." Indeed, in some circumstances, persons generally, and children in particular, may have little control over or responsibility for such things as their ill health, need for public assistance, or place of residence. Yet a state legislature is not barred from considering, for example, relevant differences between the mentally healthy and the mentally ill, or between the residents of different counties [ Footnote 4/5 ] simply because these may be factors unrelated to individual choice or to any "wrongdoing." The Equal Protection Clause protects against arbitrary and irrational classifications, and against invidious discrimination stemming from prejudice and hostility; it is not an all-encompassing "equalizer" designed to eradicate every distinction for which persons are not "responsible." Page 457 U. S. 246 The Court does not presume to suggest that appellees' purported lack of culpability for their illegal status prevents them from being deported or otherwise "penalized" under federal law. Yet would deportation be any less a "penalty" than denial of privileges provided to legal residents? [ Footnote 4/6 ] Illegality of presence in the United States does not -- and need not -- depend on some amorphous concept of "guilt" or "innocence" concerning an alien's entry. Similarly, a state's use of federal immigration status as a basis for legislative classification is not necessarily rendered suspect for its failure to take such factors into account. The Court's analogy to cases involving discrimination against illegitimate children -- see ante at 457 U. S. 220 ; ante at 457 U. S. 238 -239 (POWELL, J., concurring) -- is grossly misleading. The State has not thrust any disabilities upon appellees due to their "status of birth." Cf. Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 , 406 U. S. 176 (1972). Rather, appellees' status is predicated upon the circumstances of their concededly illegal presence in this country, and is a direct result of Congress' obviously valid exercise of its "broad constitutional powers" in the field of immigration and naturalization. U.S.Const., Art. I, § 8, Cl. 4; see Takahashi v. Fish & Game Comm'n, 334 U. S. 410 , 334 U. S. 419 (1948). This Court has recognized that, in allocating governmental benefits to a given class of aliens, one "may take into account the character of the relationship between the alien and this country." Mathews v. Diaz, 426 U. S. 67 , 426 U. S. 80 (1976). When that "relationship" is a federally prohibited one, there can, of course, be no presumption that a state has a constitutional duty to include illegal aliens among the recipients of its governmental benefits. [ Footnote 4/7 ] Page 457 U. S. 247 (2) The second strand of the Court's analysis rests on the premise that, although public education is not a constitutionally guaranteed right, "neither is it merely some governmental benefit' indistinguishable from other forms of social welfare legislation." Ante at 457 U. S. 221 . Whatever meaning or relevance this opaque observation might have in some other context [ Footnote 4/8 ] it simply has no bearing on the issues at hand. Indeed, it is never made clear what the Court's opinion means on this score. The importance of education is beyond dispute. Yet we have held repeatedly that the importance of a governmental service does not elevate it to the status of a "fundamental right" for purposes of equal protection analysis. San Antonio Independent School Dist. v. Rodriguez , 411 U. S. 1 , 411 U. S. 301 (1973); Lindsey v. Normet, 405 U. S. 56 , 405 U. S. 73 -74 (1972). In San Antonio Independent School Dist., supra, JUSTICE POWELL, speaking for the Court, expressly rejected the proposition that state laws dealing with public education are subject to special scrutiny under the Equal Protection Clause. Moreover, the Court points to no meaningful way to distinguish between education and other governmental benefits Page 457 U. S. 248 in this context. Is the Court suggesting that education is more "fundamental" than food, shelter, or medical care? The Equal Protection Clause guarantees similar treatment of similarly situated persons, but it does not mandate a constitutional hierarchy of governmental services. JUSTICE POWELL, speaking for the Court in San Antonio Independent School Dist., supra, at 411 U. S. 31 , put it well in stating that, to the extent this Court raises or lowers the degree of "judicial scrutiny" in equal protection cases according to a transient Court majority's view of the societal importance of the interest affected, we "assum[e] a legislative role, and one for which the Court lacks both authority and competence." Yet that is precisely what the Court does today. See also Shapiro v. Thompson, 394 U. S. 618 , 394 U. S. 655 -661 (1969) (Harlan, J., dissenting). The central question in these cases, as in every equal protection case not involving truly fundamental rights "explicitly or implicitly guaranteed by the Constitution," San Antonio Independent School Dist., supra, at 411 U. S. 33 -34, is whether there is some legitimate basis for a legislative distinction between different classes of persons. The fact that the distinction is drawn in legislation affecting access to public education -- as opposed to legislation allocating other important governmental benefits, such as public assistance, health care, or housing -- cannot make a difference in the level of scrutiny applied. B Once it is conceded -- as the Court does -- that illegal aliens are not a suspect class, and that education is not a fundamental right, our inquiry should focus on and be limited to whether the legislative classification at issue bears a rational relationship to a legitimate state purpose. Vance v. Bradley, 440 U. S. 93 , 440 U. S. 97 (1979); Dandridge v. Williams, 397 U. S. 471 , 397 U. S. 486 -487 (1970); see ante at 457 U. S. 216 . [ Footnote 4/9 ] Page 457 U. S. 249 The State contends primarily that § 21.031 serves to prevent undue depletion of its limited revenues available for education, and to preserve the fiscal integrity of the State's school-financing system against an ever-increasing flood of illegal aliens -- aliens over whose entry or continued presence it has no control. Of course such fiscal concerns alone could not justify discrimination against a suspect class or an arbitrary and irrational denial of benefits to a particular group of persons. Yet I assume no Member of this Court would argue that prudent conservation of finite state revenues is, per se , an illegitimate goal. Indeed, the numerous classifications this Court has sustained in social welfare legislation were invariably related to the limited amount of revenues available to spend on any given program or set of programs. See, e.g., Jefferson v. Hackney, 406 U.S. at 406 U. S. 549 -551; Dandridge v. Williams, supra, at 397 U. S. 487 . The significant question here is whether the requirement of tuition from illegal aliens who attend the public schools -- as well as from residents of other states, for example -- is a rational and reasonable means of furthering the State's legitimate fiscal ends. [ Footnote 4/10 ] Page 457 U. S. 250 Without laboring what will undoubtedly seem obvious to many, it simply is not "irrational" for a state to conclude that it does not have the same responsibility to provide benefits for persons whose very presence in the state and this country is illegal as it does to provide for persons lawfully present. By definition, illegal aliens have no right whatever to be here, and the state may reasonably, and constitutionally, elect not to provide them with governmental services at the expense of those who are lawfully in the state. [ Footnote 4/11 ] In De Canas v. Bica, 424 U. S. 351 , 424 U. S. 357 (1976), we held that a State may protect its "fiscal interests and lawfully resident labor force from the deleterious effects on its economy resulting from the employment of illegal aliens." And, only recently, this Court made clear that a State has a legitimate interest in protecting and preserving the quality of its schools and "the right of its own bona fide residents to attend such institutions on a preferential tuition basis." Vlandis v. Kline, 412 U. S. 441 , 412 U. S. 453 (1973) (emphasis added). See also Elkins v. Moreno, 435 U. S. 647 , 435 U. S. 663 -668 (1978). The Court has failed to offer even a plausible explanation why illegality of residence Page 457 U. S. 251 in this country is not a factor that may legitimately bear upon the bona fides of state residence and entitlement to the benefits of lawful residence. [ Footnote 4/12 ] It is significant that the Federal Government has seen fit to exclude illegal aliens from numerous social welfare programs, such as the food stamp program, 7 U.S.C. § 2015(f) (1976 ed. and Supp. IV) and 7 CFR § 273.4 (1981), the old-age assistance, aid to families with dependent children, aid to the blind, aid to the permanently and totally disabled, and supplemental security income programs, 45 CFR § 233.50 (1981), the Medicare hospital insurance benefits program, 42 U.S.C. § 1395i-2 and 42 CFR § 405.205(b) (1981), and the Medicaid hospital insurance benefits for the aged and disabled program, 42 U.S.C. § 1395 o and 42 CFR § 405.103(a)(4) (1981). Although these exclusions do not conclusively demonstrate the constitutionality of the State's use of the same classification for comparable purposes, at the very least they tend to support the rationality of excluding illegal alien residents of a state from such programs so as to preserve the state's finite revenues for the benefit of lawful residents. See Mathews v. Diaz, 426 U.S. at 426 U. S. 80 ; see also 457 U.S. 202 fn4/7|>n. 7, supra. The Court maintains -- as if this were the issue -- that "barring undocumented children from local schools would not necessarily improve the quality of education provided in those Page 457 U. S. 252 schools." Ante at 457 U. S. 229 . See 458 F. Supp. 569 , 577 (ED Tex.1978). [ Footnote 4/13 ] However, the legitimacy of barring illegal aliens from programs such as Medicare or Medicaid does not depend on a showing that the barrier would "improve the quality" of medical care given to persons lawfully entitled to participate in such programs. Modern education, like medical care, is enormously expensive, and there can be no doubt that very large added costs will fall on the State or its local school districts as a result of the inclusion of illegal aliens in the tuition-free public schools. The State may, in its discretion, use any savings resulting from its tuition requirement to "improve the quality of education" in the public school system, or to enhance the funds available for other social programs, or to reduce the tax burden placed on its residents; each of these ends is legitimate.'" The State need not show, as the Court implies, that the incremental cost of educating illegal aliens will send it into bankruptcy, or have a "`grave impact on the quality of education,'" ante at 457 U. S. 229 ; that is not dispositive under a "rational basis" scrutiny. In the absence of a constitutional imperative to provide for the education of illegal aliens, the State may "rationally" choose to take advantage of whatever savings will accrue from limiting access to the tuition-free public schools to its own lawful residents, excluding even citizens of neighboring States. [ Footnote 4/14 ] Denying a free education to illegal alien children is not a choice I would make were I a legislator. Apart from compassionate considerations, the long-range costs of excluding any children from the public schools may well outweigh the costs of educating them. But that is not the issue; the fact Page 457 U. S. 253 that there are sound policy arguments against the Texas Legislature's choice does not render that choice an unconstitutional one. II The Constitution does not provide a cure for every social ill, nor does it vest judges with a mandate to try to remedy every social problem. Lindsey v. Normet, 405 U.S. at 405 U. S. 74 . See Reynolds v. Sims, 377 U. S. 533 , 377 U.S. 624 625 (1964) (Harlan, J., dissenting). Moreover, when this Court rushes in to remedy what it perceives to be the failings of the political processes, it deprives those processes of an opportunity to function. When the political institutions are not forced to exercise constitutionally allocated powers and responsibilities, those powers, like muscles not used, tend to atrophy. Today' cases, I regret to say, present yet another example of unwarranted judicial action which, in the long run, tends to contribute to the weakening of our political processes. [ Footnote 4/15 ] Congress, "vested by the Constitution with the responsibility of protecting our borders and legislating with respect to aliens," ante at 457 U. S. 237 (POWELL, J., concurring), bears primary responsibility for addressing the problems occasioned by the millions of illegal aliens flooding across our southern border. Similarly, it is for Congress, and not this Court, to Page 457 U. S. 254 assess the "social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests." Ante at 457 U. S. 221 ; see ante at 457 U. S. 223 -224. While the "specter of a permanent caste" of illegal Mexican residents of the United States is indeed a disturbing one, see ante at 457 U. S. 218 -219, it is but one segment of a larger problem, which is for the political branches to solve. I find it difficult to believe that Congress would long tolerate such a self-destructive result -- that it would fail to deport these illegal alien families or to provide for the education of their children. Yet instead of allowing the political processes to run their course -- albeit with some delay -- the Court seeks to do Congress' job for it, compensating for congressional inaction. It is not unreasonable to think that this encourages the political branches to pass their problems to the Judiciary. The solution to this seemingly intractable problem is to defer to the political processes, unpalatable as that may be to some. [ Footnote 4/1 ] It does not follow, however, that a state should bear the costs of educating children whose illegal presence in this country results from the default of the political branches of the Federal Government. A state has no power to prevent unlawful immigration, and no power to deport illegal aliens; those powers are reserved exclusively to Congress and the Executive. If the Federal Government, properly chargeable with deporting illegal aliens, fails to do so, it should bear the burdens of their presence here. Surely if illegal alien children can be identified for purposes of this litigation, their parents can be identified for purposes of prompt deportation. [ Footnote 4/2 ] The Department of Justice recently estimated the number of illegal aliens within the United States at between 3 and 6 million. Joint Hearing before the Subcommittee on Immigration, Refugees, and International Law of the House Committee on the Judiciary and the Subcommittee on Immigration and Refugee Policy of the Senate Committee on the Judiciary, 97th Cong., 1st Sess., 7 (1981) (testimony of Attorney General Smith). Other estimates run as high as 12 million. See Strout, Closing the Door on Immigration, Christian Science Monitor, May 21, 1982, p. 22, col. 4. [ Footnote 4/3 ] The Court implies, for example, that the Fourteenth Amendment would not require a state to provide welfare benefits to illegal aliens. [ Footnote 4/4 ] Both the opinion of the Court and JUSTICE POWELL's concurrence imply that appellees are being "penalized" because their parents are illegal entrants. Ante at 457 U. S. 220 ; ante at 457 U. S. 238 -239, and 457 U. S. 239 , n. 3 (POWELL, J., concurring). However, Texas has classified appellees on the basis of their own illegal status, not that of their parents. Children born in this country to illegal alien parents, including some of appellees' siblings, are not excluded from the Texas schools. Nor does Texas discriminate against appellees because of their Mexican origin or citizenship. Texas provides a free public education to countless thousands of Mexican immigrants who are lawfully in this country. [ Footnote 4/5 ] Appellees "lack control" over their illegal residence in this country in the same sense as lawfully resident children lack control over the school district in which their parents reside. Yet in San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1 (1973), we declined to review under "heightened scrutiny" a claim that a State discriminated against residents of less wealthy school districts in its provision of educational benefits. There was no suggestion in that case that a child's "lack of responsibility" for his residence in a particular school district had any relevance to the proper standard of review of his claims. The result was that children lawfully here but residing in different counties received different treatment. [ Footnote 4/6 ] Indeed, even children of illegal alien parents born in the United States can be said to be "penalized" when their parents are deported. [ Footnote 4/7 ] It is true that the Constitution imposes lesser constraints on the Federal Government than on the states with regard to discrimination against lawfully admitted aliens. E.g., Mathews v. Diaz, 426 U. S. 67 (1976); Hampton v. Mow Sun Wong, 426 U. S. 88 (1976). This is because "Congress and the President have broad power over immigration and naturalization which the States do not possess," Hampton, supra, at 426 U. S. 95 , and because state discrimination against legally resident aliens conflicts with and alters "the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states." Takahashi v. Fish & Game Comm'n, 334 U. S. 410 , 334 U. S. 419 (1948). However, the same cannot be said when Congress has decreed that certain aliens should not be admitted to the United States at all. [ Footnote 4/8 ] In support of this conclusion, the Court's opinion strings together quotations drawn from cases addressing such diverse matters as the right of individuals under the Due Process Clause to learn a foreign language, Meyer v. Nebraska, 262 U. S. 390 (1923); the First Amendment prohibition against state-mandated religious exercises in the public schools, Abington School District v. Schempp, 374 U. S. 203 (1963); and state impingements upon the free exercise of religion, Wisconsin v. Yoder, 406 U. S. 205 (1972). However, not every isolated utterance of this Court retains force when wrested from the context in which it was made. [ Footnote 4/9 ] This "rational basis standard" was applied by the Court of Appeals. 628 F.2d 448, 458-461 (1980). [ Footnote 4/10 ] The Texas law might also be justified as a means of deterring unlawful immigration. While regulation of immigration is an exclusively federal function, a state may take steps, consistent with federal immigration policy, to protect its economy and ability to provide governmental services from the "deleterious effects" of a massive influx of illegal immigrants. De Canas v. Bica, 424 U. S. 351 (1976); ante at 457 U. S. 228 , n. 23. The Court maintains that denying illegal aliens a free public education is an "ineffectual" means of deterring unlawful immigration, at least when compared to a prohibition against the employment of illegal aliens. Ante at 457 U. S. 228 -229. Perhaps that is correct, but it is not dispositive; the Equal Protection Clause does not mandate that a state choose either the most effective and all-encompassing means of addressing a problem or none at all. Dandridge v. Wiliams, 397 U. S. 471 , 397 U. S. 486 -487(1970). Texas might rationally conclude that more significant "demographic or economic problem[s]," ante at 457 U. S. 228 , are engendered by the illegal entry into the State of entire families of aliens for indefinite periods than by the periodic sojourns of single adults who intend to leave the State after short-term or seasonal employment. It blinks reality to maintain that the availability of governmental services such as education plays no role in an alien family's decision to enter, or remain in, this country; certainly, the availability of a free bilingual public education might well influence an alien to bring his children, rather than travel alone for better job opportunities. [ Footnote 4/11 ] The Court suggests that the State's classification is improper because "[a]n illegal entrant might be granted federal permission to continue to reside in this country, or even to become a citizen." Ante at 457 U. S. 226 . However, once an illegal alien is given federal permission to remain, he is no longer subject to exclusion from the tuition-free public schools under § 21.031. The Court acknowledges that the Tyler Independent School District provides a free public education to any alien who has obtained, or is in the process of obtaining, documentation from the United States Immigration and Naturalization Service. See ante at 457 U. S. 206 , n. 2. Thus, Texas has not taken it upon itself to determine which aliens are or are not entitled to United States residence. JUSTICE BLACKMUN's assertion that the Texas statute will be applied to aliens "who may well be entitled to . . . remain in the United States," ante at 457 U. S. 236 (concurring opinion), is wholly without foundation. [ Footnote 4/12 ] The Court's opinion is disingenuous when it suggests that the State has merely picked a "disfavored group" and arbitrarily defined its members as nonresidents. Ante at 457 U. S. 227 , n. 22. Appellees' "disfavored status" stems from the very fact that federal law explicitly prohibits them from being in this country. Moreover, the analogies to Virginians or legally admitted Mexican citizens entering Texas, ibid., are spurious. A Virginian's right to migrate to Texas, without penalty, is protected by the Constitution, see, e.g., Shapiro v. Thompson, 394 U. S. 618 (1969); and a lawfully admitted alien's right to enter the State is likewise protected by federal law. See Takahashi v. Fish & Game Comm'n, 334 U. S. 410 (1948). Cf. Zobel v. Williams, ante, p. 457 U. S. 55 . [ Footnote 4/13 ] The District Court so concluded primarily because the State would decrease its funding to local school districts in proportion to the exclusion of illegal alien children. 458 F. Supp. at 577. [ Footnote 4/14 ] I assume no Member of the Court would challenge Texas' right to charge tuition to students residing across the border in Louisiana who seek to attend the nearest school in Texas. [ Footnote 4/15 ] Professor Bickel noted that judicial review can have a "tendency over time seriously to weaken the democratic process." A. Bickel, The Least Dangerous Branch 21 (1962). He reiterated James Bradley Thayer's observation that "'the exercise of [the power of judicial review], even when unavoidable, is always attended with a serious evil, namely, that the correction of legislative mistakes comes from the outside, and the people thus lose the political experience, and the moral education and stimulus that comes from fighting the question out in the ordinary way, and correcting their own errors. The tendency of a common and easy resort to this great function, now lamentably too common, is to dwarf the political capacity of the people, and to deaden its sense of moral responsibility.'" Id. at 22 (quoting J. Thayer, John Marshall 106-107 (1901)).

Here is a summary of the key points from the case: - The case is about a Texas statute that denies state funding for the education of children who are not legally admitted into the United States and allows local school districts to refuse enrollment to these children. - The Supreme Court held that the Texas statute violates the Equal Protection Clause of the Fourteenth Amendment, which states that no state can deny equal protection of the laws to any person within its jurisdiction. - The Court found that illegal aliens are considered "persons" under the Equal Protection Clause, regardless of their immigration status, and are therefore protected by its provisions. - While education is not a fundamental right, the Court recognized that denying public education imposes a lifetime hardship on a discrete class of children who are not responsible for their undocumented status. - The Court considered the costs of the Texas statute to both the nation and the affected children, concluding that the discrimination in the statute was not rational as it did not further any substantial goal of the state. - The Court's decision acknowledged the pivotal role of public education in maintaining social fabric and cultural heritage, and highlighted the significant toll that deprivation of education can take on individuals. - The opinion also addressed concerns about the democratic process and the role of judicial review, citing the potential for judicial review to weaken democratic processes over time.

Immigration & National Security

Zadvydas v. Davis

https://supreme.justia.com/cases/federal/us/533/678/

OCTOBER TERM, 2000 Syllabus ZADVYDAS v. DAVIS ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No.99-7791. Argued February 21, 200l-Decided June 28, 2001* After a final removal order is entered, an alien ordered removed is held in custody during a 90-day removal period. If the alien is not removed in those 90 days, the post-removal-period detention statute authorizes further detention or supervised release, subject to administrative review. Kestutis Zadvydas, petitioner in No. 99-7791-a resident alien born, apparently of Lithuanian parents, in a German displaced persons camp-was ordered deported based on his criminal record. Germany and Lithuania refused to accept him because he was not a citizen of their countries; efforts to send him to his wife's native country also failed. When he remained in custody after the removal period expired, he filed a habeas action under 28 U. S. C. § 2241. The District Court granted the writ, reasoning that, because the Government would never remove him, his confinement would be permanent, in violation of the Constitution. In reversing, the Fifth Circuit concluded that Zadvydas' detention did not violate the Constitution because eventual deportation was not impossible, good-faith efforts to remove him continued, and his detention was subject to administrative review. Kim Ho Ma, respondent in No. 00-38, is a resident alien born in Cambodia who was ordered removed based on his aggravated felony conviction. When he remained in custody after the removal period expired, he filed a § 2241 habeas petition. In ordering his release, the District Court held that the Constitution forbids post-removal-period detention unless there is a realistic chance that an alien will be removed, and that no such chance existed here because Cambodia has no repatriation treaty with the United States. The Ninth Circuit affirmed, concluding that detention was not authorized for more than a reasonable time beyond the 90-day period, and that, given the lack of a repatriation agreement, that time had expired. Held: 1. Section 2241 habeas proceedings are available as a forum for statutory and constitutional challenges to post-removal-period detention. Statutory changes in the immigration law left habeas untouched as the *Together with No. 00-38, Ashcroft, Attorney General, et al. v. Kim Ho Ma, on certiorari to the United States Court of Appeals for the Ninth Circuit. 679 basic method for obtaining review of continued custody after a deportation order becomes final, and none of the statutory provisions limiting judicial review of removal decisions applies here. Pp. 687-688. 2. The post-removal-period detention statute, read in light of the Constitution's demands, implicitly limits an alien's detention to a period reasonably necessary to bring about that alien's removal from the United States, and does not permit indefinite detention. Pp. 688-699. (a) A statute permitting indefinite detention would raise serious constitutional questions. Freedom from imprisonment lies at the heart of the liberty protected by the Due Process Clause. Government detention violates the Clause unless it is ordered in a criminal proceeding with adequate procedural safeguards or a special justification outweighs the individual's liberty interest. The instant proceedings are civil and assumed to be nonpunitive, and the Government proffers no sufficiently strong justification for indefinite civil detention under this statute. The first justification-preventing flight-is weak or nonexistent where removal seems a remote possibility. Preventive detention based on the second justification-protecting the community-has been upheld only when limited to specially dangerous individuals and subject to strong procedural protections. When preventive detention is potentially indefinite, this dangerousness rationale must also be accompanied by some other special circumstance, such as mental illness, that helps to create the danger. The civil confinement here is potentially permanent, and once the flight risk justification evaporates, the only special circumstance is the alien's removable status, which bears no relation to dangerousness. Moreover, the sole procedural protections here are found in administrative proceedings, where the alien bears the burden of proving he is not dangerous, without (according to the Government) significant later judicial review. The Constitution may well preclude granting an administrative body unreviewable authority to make determinations implicating fundamental rights. Pp. 690-692. (b) Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206 -in which an alien was indefinitely detained as he attempted to reenter the country-does not support the Government's argument that alien status itself can justify indefinite detention. Once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all persons within the United States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent. Nor do cases holding that, because Congress has plenary power to create immigration law, the Judicial Branch must defer to Executive and Legislative Branch decisionmaking in that area help the Government, because that power is subject to constitutional limits. Finally, the aliens' liberty interest is not diminished by their lack of a legal right to live at large, for the choice at issue here is between imprisonment and supervision under 680 Syllabus release conditions that may not be violated and their liberty interest is strong enough to raise a serious constitutional problem with indefinite detention. Pp. 692-696. (c) Despite the constitutional problem here, if this Court were to find a clear congressional intent to grant the Attorney General the power to indefinitely detain an alien ordered removed, the Court would be required to give it effect. But this Court finds no clear indication of such intent. The statute's use of "may" is ambiguous and does not necessarily suggest unlimited discretion. Similar related statutes requiring detention of criminal aliens during removal proceedings and the removal period do not show that Congress authorized indefinite detention here. Finally, nothing in the statute's legislative history clearly demonstrates a congressional intent to authorize indefinite, perhaps permanent, detention. Pp. 696-699. 3. The application of the "reasonable time" limitation is subject to federal-court review. The basic federal habeas statute grants the federal courts authority to determine whether post-removal-period detention is pursuant to statutory authority. In answering that question, the court must ask whether the detention exceeds a period reasonably necessary to secure removal. It should measure reasonableness primarily in terms of the statute's purpose of assuring the alien's presence at the moment of removal. Thus, if removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no longer authorized. If it is foreseeable, the court should consider the risk of the alien's committing further crimes as a factor potentially justifying continued confinement. Without abdicating their responsibility to review the detention's lawfulness, the courts can take appropriate account of such matters as the Executive Branch's greater immigrationrelated expertise, the Immigration and Naturalization Service's administrative needs and concerns, and the Nation's need to speak with one voice on immigration. In order to limit the occasions when courts will need to make the difficult judgments called for by the recognition of this necessary Executive leeway, it is practically necessary to recognize a presumptively reasonable period of detention. It is unlikely that Congress believed that all reasonably foreseeable removals could be accomplished in 90 days, but there is reason to believe that it doubted the constitutionality of more than six months' detention. Thus, for the sake of uniform administration in the federal courts, six months is the appropriate period. After the 6-month period, once an alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must furnish evidence sufficient to rebut that showing. Pp. 699-701. 681 4. The standard that the Fifth Circuit applied in holding Zadvydas' continued detention lawful seems to require an alien seeking release to show the absence of any prospect of removal-no matter how unlikely or unforeseeable-and thus demands more than the statute can bear. The Ninth Circuit's conclusion that Ma should be released may have rested solely upon the absence of a repatriation agreement without giving due weight to the likelihood of successful future negotiations. P.702. 185 F.3d 279 and 208 F.3d 815 , vacated and remanded. BREYER, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined, post, p. 702. KENNEDY, J., filed a dissenting opinion, in which REHNQUIST, C. J., joined, and in which SCALIA and THOMAS, JJ., joined as to Part I, post, p. 705. Jay W Stansell argued the cause for respondent in No. 00-38. With him on the brief were Thomas W Hillier II and Jennifer E. Wellman. Robert F. Barnard argued the cause for petitioner in No. 99-7791. With him on the briefs was Virginia Laughlin Schlueter. Deputy Solicitor General Kneedler argued the cause for respondents in No. 99-7791 and petitioners in No. 00-38. With him on the briefs were Acting Solicitor General Underwood, former Solicitor General Waxman, Assistant Attorney General Ogden, Beth S. Brinkmann, Donald Keener, and Quynh Vu. * * Daniel J. Popeo and Richard A. Samp filed a brief for the Washington Legal Foundation et al. as amici curiae urging affirmance in No. 99-7791. Briefs of amici curiae urging affirmance in No. 00-38 were filed for the Catholic Legal Immigration Network, Inc., et al. by Laurie Joyce and Josh Dratel; for the American Association of Jews from the Former USSR et al. by Nancy Morawetz; for the Lawyers Committee for Human Rights by Seth M. M. Stodder; for the American Civil Liberties Union et al. by Judy Rabinovitz, Lucas Guttentag, Steven R. Shapiro, Wanyong Lai Austin, Jayashri Srikantiah, and Aaron H. Caplan; for Human Rights Watch et al. by William J. Aceves and Paul L. Hoffman; and for Carolyn Patty Blum et al. by George A. Cumming, Jr., and Charles D. Weisselberg. 682 JUSTICE BREYER delivered the opinion of the Court. When an alien has been found to be unlawfully present in the United States and a final order of removal has been entered, the Government ordinarily secures the alien's removal during a subsequent 90-day statutory "removal period," during which time the alien normally is held in custody. A special statute authorizes further detention if the Government fails to remove the alien during those 90 days. It says: "An alien ordered removed [1] who is inadmissible ... [2] [or] removable [as a result of violations of status requirements or entry conditions, violations of criminal law, or reasons of security or foreign policy] or [3] who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision .. "8 U. S. C. § 1231(a)(6) (1994 ed., Supp. V). In these cases, we must decide whether this postremoval-period statute authorizes the Attorney General to detain a removable alien indefinitely beyond the removal period or only for a period reasonably necessary to secure the alien's removal. We deal here with aliens who were admitted to the United States but subsequently ordered removed. Aliens who have not yet gained initial admission to this country would present a very different question. See infra, at 693-694. Based on our conclusion that indefinite detention of aliens in the former category would raise serious constitutional concerns, we construe the statute to contain an implicit "reasonable time" limitation, the application of which is subject to federal-court review. 683 I A The post-removal-period detention statute is one of a related set of statutes and regulations that govern detention during and after removal proceedings. While removal proceedings are in progress, most aliens may be released on bond or paroled. 66 Stat. 204, as added and amended, 110 Stat. 3009-585, 8 U. S. C. §§ 1226(a)(2), (c) (1994 ed., Supp. V). After entry of a final removal order and during the 90-day removal period, however, aliens must be held in custody. § 1231(a)(2). Subsequently, as the post-removal-period statute provides, the Government "may" continue to detain an alien who still remains here or release that alien under supervision. § 1231(a)(6). Related Immigration and Naturalization Service (INS) regulations add that the INS District Director will initially review the alien's records to decide whether further detention or release under supervision is warranted after the 90-day removal period expires. 8 CFR §§ 241.4(c)(1), (h), (k)(l)(i) (2001). If the decision is to detain, then an INS panel will review the matter further, at the expiration of a 3-month period or soon thereafter. § 241.4(k)(2)(ii). And the panel will decide, on the basis of records and a possible personal interview, between still further detention or release under supervision. § 241.4(i). In making this decision, the panel will consider, for example, the alien's disciplinary record, criminal record, mental health reports, evidence of rehabilitation, history of flight, prior immigration history, and favorable factors such as family ties. § 241.4(f). To authorize release, the panel must find that the alien is not likely to be violent, to pose a threat to the community, to flee if released, or to violate the conditions of release. § 241.4(e). And the alien must demonstrate "to the satisfaction of the Attorney General" that he will pose no danger or risk of flight. 684 § 241.4(d)(1). If the panel decides against release, it must review the matter again within a year, and can review it earlier if conditions change. §§ 241.4(k)(2)(iii), (v). B 1 We consider two separate instances of detention. The first concerns Kestutis Zadvydas, a resident alien who was born, apparently of Lithuanian parents, in a displaced persons camp in Germany in 1948. When he was eight years old, Zadvydas immigrated to the United States with his parents and other family members, and he has lived here ever since. Zadvydas has a long criminal record, involving drug crimes, attempted robbery, attempted burglary, and theft. He has a history of flight, from both criminal and deportation proceedings. Most recently, he was convicted of possessing, with intent to distribute, cocaine; sentenced to 16 years' imprisonment; released on parole after two years; taken into INS custody; and, in 1994, ordered deported to Germany. See 8 U. S. C. § 1251(a)(2) (1988 ed., Supp. V) (delineating crimes that make alien deportable). In 1994, Germany told the INS that it would not accept Zadvydas because he was not a German citizen. Shortly thereafter, Lithuania refused to accept Zadvydas because he was neither a Lithuanian citizen nor a permanent resident. In 1996, the INS asked the Dominican Republic (Zadvydas' wife's country) to accept him, but this effort proved unsuccessful. In 1998, Lithuania rejected, as inadequately documented, Zadvydas' effort to obtain Lithuanian citizenship based on his parents' citizenship; Zadvydas' reapplication is apparently still pending. The INS kept Zadvydas in custody after expiration of the removal period. In September 1995, Zadvydas filed a petition for a writ of habeas corpus under 28 U. S. C. § 2241 chal- 685 lenging his continued detention. In October 1997, a Federal District Court granted that writ and ordered him released under supervision. Zadvydas v. Caplinger, 986 F. Supp. 1011, 1027-1028 (ED La.). In its view, the Government would never succeed in its efforts to remove Zadvydas from the United States, leading to his permanent confinement, contrary to the Constitution. Id., at 1027. The Fifth Circuit reversed this decision. Zadvydas v. Underdown, 185 F.3d 279 (1999). It concluded that Zadvydas' detention did not violate the Constitution because eventual deportation was not "impossible," good-faith efforts to remove him from the United States continued, and his detention was subject to periodic administrative review. Id., at 294,297. The Fifth Circuit stayed its mandate pending potential review in this Court. 2 The second case is that of Kim Ho Ma. Ma was born in Cambodia in 1977. When he was two, his family fled, taking him to refugee camps in Thailand and the Philippines and eventually to the United States, where he has lived as a resident alien since the age of seven. In 1995, at age 17, Ma was involved in a gang-related shooting, convicted of manslaughter, and sentenced to 38 months' imprisonment. He served two years, after which he was released into INS custody. In light of his conviction of an "aggravated felony," Ma was ordered removed. See 8 U. S. C. §§ 1101(a)(43)(F) (defining certain violent crimes as aggravated felonies), 1227(a)(2)(A)(iii) (1994 ed., Supp. IV) (aliens convicted of aggravated felonies are deportable). The 90-day removal period expired in early 1999, but the INS continued to keep Ma in custody, because, in light of his former gang membership, the nature of his crime, and his planned participation in a prison hunger strike, it was "unable to conclude that 686 Mr. Ma would remain nonviolent and not violate the conditions of release." App. to Pet. for Cert. in No. 00-38, p. 87a. In 1999, Ma filed a petition for a writ of habeas corpus under 28 U. S. C. § 2241. A panel of five judges in the Federal District Court for the Western District of Washington, considering Ma's and about 100 similar cases together, issued a joint order holding that the Constitution forbids postremoval-period detention unless there is "a realistic chance that [the] alien will be deported" (thereby permitting classification of the detention as "in aid of deportation"). Binh Phan v. Reno, 56 F. Supp. 2d 1149, 1156 (1999). The District Court then held an evidentiary hearing, decided that there was no "realistic chance" that Cambodia (which has no repatriation treaty with the United States) would accept Ma, and ordered Ma released. App. to Pet. for Cert. in No. 00-38, at 60a-61a. The Ninth Circuit affirmed Ma's release. Kim Ho Ma v. Reno, 208 F.3d 815 (2000). It concluded, based in part on constitutional concerns, that the statute did not authorize detention for more than a "reasonable time" beyond the 90-day period authorized for removal. Id., at 818. And, given the lack of a repatriation agreement with Cambodia, that time had expired upon passage of the 90 days. Id., at 830-831. 3 Zadvydas asked us to review the decision of the Fifth Circuit authorizing his continued detention. The Government asked us to review the decision of the Ninth Circuit forbidding Ma's continued detention. We granted writs in both cases, agreeing to consider both statutory and related constitutional questions. See also Duy Dac Ho v. Greene, 204 F. 3d 1045, 1060 (CAlO 2000) (upholding Attorney General's statutory and constitutional authority to detain alien indefinitely). We consolidated the two cases for argument; and we now decide them together. 687 II We note at the outset that the primary federal habeas corpus statute, 28 U. S. C. § 2241, confers jurisdiction upon the federal courts to hear these cases. See § 2241(c)(3) (authorizing any person to claim in federal court that he or she is being held "in custody in violation of the Constitution or laws ... of the United States"). Before 1952, the federal courts considered challenges to the lawfulness of immigration-related detention, including challenges to the validity of a deportation order, in habeas proceedings. See Heikkila v. Barber, 345 U. S. 229 , 230, 235-236 (1953). Beginning in 1952, an alternative method for review of de portation orders, namely, actions brought in federal district court under the Administrative Procedure Act (AP A), became available. See Shaughnessy v. Pedreiro, 349 U. S. 48 , 51-52 (1955). And in 1961 Congress replaced district court AP A review with initial deportation order review in courts of appeals. See Act of Sept. 26, 1961, § 5, 75 Stat. 651 (formerly codified at 8 U. S. C. § 1l05a(a)) (repealed 1996). The 1961 Act specified that federal habeas courts were also available to hear statutory and constitutional challenges to deportation (and exclusion) orders. See 8 U. S. C. §§ 1l05a(a)(10), (b) (repealed 1996). These statutory changes left habeas untouched as the basic method for obtaining review of continued custody after a deportation order had become final. See Cheng Fan Kwok v. INS, 392 U. S. 206 , 212, 215-216 (1968) (holding that § 1l05a(a) applied only to challenges to determinations made during deportation proceedings and motions to reopen those proceedings). More recently, Congress has enacted several statutory provisions that limit the circumstances in which judicial review of deportation decisions is available. But none applies here. One provision, 8 U. S. C. § 1231(h) (1994 ed., Supp. V), simply forbids courts to construe that section "to create any ... procedural right or benefit that is legally enforce- 688 able"; it does not deprive an alien of the right to rely on 28 U. S. C. § 2241 to challenge detention that is without statutory authority. Another provision, 8 U. S. C. § 1252(a)(2)(B)(ii) (1994 ed., Supp. V), says that "no court shall have jurisdiction to review" decisions "specified ... to be in the discretion of the Attorney General." The aliens here, however, do not seek review of the Attorney General's exercise of discretion; rather, they challenge the extent of the Attorney General's authority under the post-removal-period detention statute. And the extent of that authority is not a matter of discretion. See also, e. g., § 1226(e) (applicable to certain detentionrelated decisions in period preceding entry of final removal order); § 1231(a)(4)(D) (applicable to assertion of causes or claims under §1231(a)(J,), which is not at issue here); §§ 1252(a)(1), (a)(2)(C) (applicable to judicial review of "final order[s] of removal"); § 1252(g) (applicable to decisions "to commence proceedings, adjudicate cases, or execute removalorders"). We conclude that § 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention. And we turn to the merits of the aliens' claims. III The post-removal-period detention statute applies to certain categories of aliens who have been ordered removed, namely, inadmissible aliens, criminal aliens, aliens who have violated their nonimmigrant status conditions, and aliens removable for certain national security or foreign relations reasons, as well as any alien "who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal." 8 U. S. C. § 1231(a)(6) (1994 ed., Supp. V); see also 8 CFR § 241.4(a) (2001). It says that an alien who falls into one of these cate- 689 gories "may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision." 8 U. S. C. § 1231(a)(6) (1994 ed., Supp. V). The Government argues that the statute means what it literally says. It sets no "limit on the length of time beyond the removal period that an alien who falls within one of the Section 1231(a)(6) categories may be detained." Brief for Petitioners in No. 00-38, p. 22. Hence, "whether to continue to detain such an alien and, if so, in what circumstances and for how long" is up to the Attorney General, not up to the courts. Ibid. "[I]t is a cardinal principle" of statutory interpretation, however, that when an Act of Congress raises "a serious doubt" as to its constitutionality, "this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Crowell v. Benson, 285 U. S. 22 , 62 (1932); see also United States v. X-Citement Video, Inc., 513 U. S. 64 , 78 (1994); United States v. Jin Fuey Moy, 241 U. S. 394 , 401 (1916); cf. Almendarez-Torres v. United States, 523 U. S. 224 , 238 (1998) (construction of statute that avoids invalidation best reflects congressional will). We have read significant limitations into other immigration statutes in order to avoid their constitutional invalidation. See United States v. Witkovich, 353 U. S. 194 , 195, 202 (1957) (construing a grant of authority to the Attorney General to ask aliens whatever questions he "deem[s] fit and proper" as limited to questions "reasonably calculated to keep the Attorney General advised regarding the continued availability for departure of aliens whose deportation is overdue"). For similar reasons, we read an implicit limitation into the statute before us. In our view, the statute, read in light of the Constitution's demands, limits an alien's post-removalperiod detention to a period reasonably necessary to bring about that alien's removal from the United States. It does not permit indefinite detention. 690 A A statute permitting indefinite detention of an alien would raise a serious constitutional problem. The Fifth Amendment's Due Process Clause forbids the Government to "depriv[e]" any "person ... of ... liberty ... without due process of law." Freedom from imprisonment-from government custody, detention, or other forms of physical restraint-lies at the heart of the liberty that Clause protects. See Foucha v. Louisiana, 504 U. S. 71 , 80 (1992). And this Court has said that government detention violates that Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, see United States v. Salerno, 481 U. S. 739 , 746 (1987), or, in certain special and "narrow" nonpunitive "circumstances," Foucha, supra, at 80, where a special justification, such as harm-threatening mental illness, outweighs the "individual's constitutionally protected interest in avoiding physical restraint." Kansas v. Hendricks, 521 U. S. 346 , 356 (1997). The proceedings at issue here are civil, not criminal, and we assume that they are nonpunitive in purpose and effect. There is no sufficiently strong special justification here for indefinite civil detention-at least as administered under this statute. The statute, says the Government, has two regulatory goals: "ensuring the appearance of aliens at future immigration proceedings" and "[p]reventing danger to the community." Brief for Respondents in No. 99-7791, p. 24. But by definition the first justification-preventing flight-is weak or nonexistent where removal seems a remote possibility at best. As this Court said in Jackson v. Indiana, 406 U. S. 715 (1972), where detention's goal is no longer practically attainable, detention no longer "bear[s] [a] reasonable relation to the purpose for which the individual [was] committed." Id., at 738. The second justification-protecting the community-does not necessarily diminish in force over time. But we have 691 upheld preventive detention based on dangerousness only when limited to specially dangerous individuals and subject to strong procedural protections. Compare Hendricks, supra, at 368 (upholding scheme that imposes detention upon "a small segment of particularly dangerous individuals" and provides "strict procedural safeguards"), and Salerno, supra, at 747, 750-752 (in upholding pretrial detention, stressing "stringent time limitations," the fact that detention is reserved for the "most serious of crimes," the requirement of proof of dangerousness by clear and convincing evidence, and the presence of judicial safeguards), with Foucha, supra, at 81-83 (striking down insanity-related detention system that placed burden on detainee to prove nondangerousness). In cases in which preventive detention is of potentially indefinite duration, we have also demanded that the dangerousness rationale be accompanied by some other special circumstance, such as mental illness, that helps to create the danger. See Hendricks, supra, at 358, 368. The civil confinement here at issue is not limited, but potentially permanent. Cf. Salerno, supra, at 747 (noting that "maximum length of pretrial detention is limited" by "stringent" requirements); Carlson v. Landon, 342 U. S. 524 , 545546 (1952) (upholding temporary detention of alien during deportation proceeding while noting that "problem of ... unusual delay" was not present). The provision authorizing detention does not apply narrowly to "a small segment of particularly dangerous individuals," Hendricks, supra, at 368, say, suspected terrorists, but broadly to aliens ordered removed for many and various reasons, including tourist visa violations. See 8 U. S. C. § 1231(a)(6) (1994 ed., Supp. V) (referencing § 1227(a)(1)(C)); cf. Hendricks, 521 U. S., at 357358 (only individuals with "past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in the future" may be detained). And, once the flight risk justification evaporates, the only special cir- 692 cum stance present is the alien's removable status itself, which bears no relation to a detainee's dangerousness. Cf. id., at 358; Foucha, supra, at 82. Moreover, the sole procedural protections available to the alien are found in administrative proceedings, where the alien bears the burden of proving he is not dangerous, without (in the Government's view) significant later judicial review. Compare 8 CFR § 241.4(d)(1) (2001) (imposing burden of proving nondangerousness upon alien) with Foucha, supra, at 82 (striking down insanity-related detention for that very reason). This Court has suggested, however, that the Constitution may well preclude granting "an administrative body the unreviewable authority to make determinations implicating fundamental rights." Superintendent, Mass. Correctional Institution at Walpole v. Hill, 472 U. S. 445 , 450 (1985) (O'CONNOR, J.); see also Crowell, 285 U. S., at 87 (Brandeis, J., dissenting) ("[U]nder certain circumstances, the constitutional requirement of due process is a requirement of judicial process"). The Constitution demands greater procedural protection even for property. See South Carolina v. Regan, 465 U. S. 367 , 393 (1984) (O'CONNOR, J., concurring in judgment); Phillips v. Commissioner, 283 U. S. 589 , 595-597 (1931) (Brandeis, J.). The serious constitutional problem arising out of a statute that, in these circumstances, permits an indefinite, perhaps permanent, deprivation of human liberty without any such protection is obvious. The Government argues that, from a constitutional perspective, alien status itself can justify indefinite detention, and points to Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206 (1953), as support. That case involved a once lawfully admitted alien who left the United States, returned after a trip abroad, was refused admission, and was left on Ellis Island, indefinitely detained there because the Government could not find another country to accept him. The Court held that Mezei's detention did not violate the Constitution. Id., at 215-216. 693 Although Mezei, like the present cases, involves indefinite detention, it differs from the present cases in a critical respect. As the Court emphasized, the alien's extended departure from the United States required him to seek entry into this country once again. His presence on Ellis Island did not count as entry into the United States. Hence, he was "treated," for constitutional purposes, "as if stopped at the border." Id., at 213, 215. And that made all the difference. The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law. See Kaplan v. Tod, 267 U. S. 228 , 230 (1925) (despite nine years' presence in the United States, an "excluded" alien "was still in theory of law at the boundary line and had gained no foothold in the United States"); Leng May Ma v. Barber, 357 U. S. 185 , 188-190 (1958) (alien "paroled" into the United States pending admissibility had not effected an "entry"). It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. See United States v. VerdugoUrquidez, 494 U. S. 259 , 269 (1990) (Fifth Amendment's protections do not extend to aliens outside the territorial boundaries); Johnson v. Eisentrager, 339 U. S. 763 , 784 (1950) (same). But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all "persons" within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. See Plyler v. Doe, 457 U. S. 202 , 210 (1982); Mathews v. Diaz, 426 U. S. 67 , 77 (1976); Kwong Hai Ghew v. Golding, 344 U. S. 590 , 596-598, and n. 5 (1953); Yick Wo v. Hopkins, 118 U. S. 356 , 369 (1886); cf. Mezei, supra, at 212 ("[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law"). Indeed, this Court has held that the Due Process 694 Clause protects an alien subject to a final order of deportation, see Wong Wing v. United States, 163 U. S. 228 , 238 (1896), though the nature of that protection may vary depending upon status and circumstance, see Landon v. Plasencia, 459 U. S. 21 , 32-34 (1982); Johnson, supra, at 770. In Wong Wing, supra, the Court held unconstitutional a statute that imposed a year of hard labor upon aliens subject to a final deportation order. That case concerned substantive protections for aliens who had been ordered removed, not procedural protections for aliens whose removability was being determined. Cf. post, at 704 (SCALIA, J., dissenting). The Court held that punitive measures could not be imposed upon aliens ordered removed because "all persons within the territory of the United States are entitled to the protection" of the Constitution. 163 U. S., at 238 (citing Yick Wo, supra, at 369 (holding that equal protection guarantee applies to Chinese aliens)); see also Witkovich, 353 U. S., at 199, 201 (construing statute which applied to aliens ordered deported in order to avoid substantive constitutional problems). And contrary to JUSTICE SCALIA'S characterization, see post, at 703-705, in Mezei itself, both this Court's rejection of Mezei's challenge to the procedures by which he was deemed excludable and its rejection of his challenge to continued detention rested upon a basic territorial distinction. See Mezei, supra, at 215 (holding that Mezei's presence on Ellis Island was not "considered a landing" and did "not affec[t]" his legal or constitutional status (internal quotation marks omitted)). In light of this critical distinction between Mezei and the present cases, Mezei does not offer the Government significant support, and we need not consider the aliens' claim that subsequent developments have undermined Mezei's legal authority. See Brief for Petitioner in No. 99-7791, p. 23; Brief for Respondent in No. 00-38, pp. 16-17; Brief for Lawyers' Committee for Human Rights as Amicus Curiae in No. 00-38, pp. 15-20. Nor are we aware of any other authority that would support JUSTICE KENNEDY'S limitation of 695 due process protection for removable aliens to freedom from detention that is arbitrary or capricious. See post, at 717722 (dissenting opinion). The Government also looks for support to cases holding that Congress has "plenary power" to create immigration law, and that the Judicial Branch must defer to Executive and Legislative Branch decisionmaking in that area. Brief for Respondents in No. 99-7791, at 17, 20 (citing Harisiades v. Shaughnessy, 342 U. S. 580 , 588-589 (1952)). But that power is subject to important constitutional limitations. See INS v. Chadha, 462 U. S. 919 , 941-942 (1983) (Congress must choose "a constitutionally permissible means of implementing" that power); The Chinese Exclusion Case, 130 U. S. 581, 604 (1889) (congressional authority limited "by the Constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations"). In these cases, we focus upon those limitations. In doing so, we nowhere deny the right of Congress to remove aliens, to subject them to supervision with conditions when released from detention, or to incarcerate them where appropriate for violations of those conditions. See 8 U. S. C. § 1231(a)(3) (1994 ed., Supp. V) (granting authority to Attorney General to prescribe regulations governing supervision of aliens not removed within 90 days); § 1253 (imposing penalties for failure to comply with release conditions). The question before us is not one of "'confer[ring] on those admitted the right to remain against the national will'" or "'sufferance of aliens'" who should be removed. Post, at 703 (SCALIA, J., dissenting) (emphasis deleted) (quoting Mezei, 345 U. S., at 222-223 (Jackson, J., dissenting)). Rather, the issue we address is whether aliens that the Government finds itself unable to remove are to be condemned to an indefinite term of imprisonment within the United States. Nor do the cases before us require us to consider the political branches' authority to control entry into the United States. Hence we leave no "unprotected spot in the Na- 696 tion's armor." Kwong Hai Chew, 344 U. S., at 602. Neither do we consider terrorism or other special circumstances where special arguments might be made for forms of preventive detention and for heightened deference to the judgments of the political branches with respect to matters of national security. The sole foreign policy consideration the Government mentions here is the concern lest courts interfere with "sensitive" repatriation negotiations. Brief for Respondents in No. 99-7791, at 21. But neither the Government nor the dissents explain how a habeas court's efforts to determine the likelihood of repatriation, if handled with appropriate sensitivity, could make a significant difference in this respect. See infra, at 699-700. Finally, the Government argues that, whatever liberty interest the aliens possess, it is "greatly diminished" by their lack of a legal right to "liv[e] at large in this country." Brief for Respondents in No. 99-7791, at 47; see also post, at 703 (SCALIA, J., dissenting) (characterizing right at issue as "right to release into this country"). The choice, however, is not between imprisonment and the alien "living at large." Brief for Respondents in No. 99-7791, at 47. It is between imprisonment and supervision under release conditions that may not be violated. See supra, at 695 (citing 8 U. S. C. §§ 1231(a)(3), 1253 (1994 ed., Supp. V)); 8 CFR § 241.5 (2001) (establishing conditions of release after removal period). And, for the reasons we have set forth, we believe that an alien's liberty interest is, at the least, strong enough to raise a serious question as to whether, irrespective of the procedures used, cf. post, at 722-724 (KENNEDY, J., dissenting), the Constitution permits detention that is indefinite and potentially permanent. B Despite this constitutional problem, if "Congress has made its intent" in the statute "clear, 'we must give effect to that intent.'" Miller v. French, 530 U. S. 327 , 336 (2000) (quoting Sinclair Refining Co. v. Atkinson, 370 U. S. 195 ,215 (1962)). 697 We cannot find here, however, any clear indication of congressional intent to grant the Attorney General the power to hold indefinitely in confinement an alien ordered removed. And that is so whether protecting the community from dangerous aliens is a primary or (as we believe) secondary statutory purpose. Cf. post, at 706, 708-709 (KENNEDY, J., dissenting). After all, the provision is part of a statute that has as its basic purpose effectuating an alien's removal. Why should we assume that Congress saw the alien's dangerousness as unrelated to this purpose? The Government points to the statute's word "may." But while "may" suggests discretion, it does not necessarily suggest unlimited discretion. In that respect the word "may" is ambiguous. Indeed, if Congress had meant to authorize long-term detention of unremovable aliens, it certainly could have spoken in clearer terms. Cf. 8 U. S. C. § 1537(b)(2)(C) (1994 ed., Supp. V) ("If no country is willing to receive" a terrorist alien ordered removed, "the Attorney General may, notwithstanding any other provision of law, retain the alien in custody" and must review the detention determination every six months). The Government points to similar related statutes that re quire detention of criminal aliens during removal proceedings and the removal period, and argues that these show that mandatory detention is the rule while discretionary release is the narrow exception. See Brief for Petitioners in No. 00-38, at 26-28 (citing 8 U. S. C. §§ 1226(c), 1231(a)(2)). But the statute before us applies not only to terrorists and criminals, but also to ordinary visa violators, see supra, at 691; and, more importantly, post-removal-period detention, unlike detention pending a determination of removability or during the subsequent 90-day removal period, has no obvious termination point. The Government also points to the statute's history. That history catalogs a series of changes, from an initial period (before 1952) when lower courts had interpreted statutory 698 silence, Immigration Act of 1917, ch. 29, §§ 19, 20, 39 Stat. 889, 890, to mean that deportation-related detention must end within a reasonable time, Spector v. Landon, 209 F.2d 481 , 482 (CA9 1954) (collecting cases); United States ex rel. Doukas v. Wiley, 160 F.2d 92, 95 (CA7 1947); United States ex rel. Ross v. Wallis, 279 F.4d 1 , 403-404 (CA2 1922), to a period (from the early 1950's through the late 1980's) when the statutes permitted, but did not require, postdeportation-order detention for up to six months, Immigration and Nationality Act of 1952, § 242(c), 66 Stat. 210, 8 U. S. C. §§ 1252(c), (d) (1982 ed.); Witkovich, 353 U. S., at 198, to more recent statutes that have at times mandated and at other times permitted the post-deportation-order detention of aliens falling into certain categories such as aggravated felons, Anti-Drug Abuse Act of 1988, § 7343(a), 102 Stat. 4470, 8 U. S. C. § 1252(a)(2) (mandating detention); Immigration Act of 1990, § 504(a), 104 Stat. 5049-5050, 8 U. S. C. §§ 1252(a)(2)(A), (B) (permitting release under certain circumstances); Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, § 306(a)(4), 105 Stat. 1751, 8 U. S. C. § 1252(a)(2)(B) (same). In early 1996, Congress explicitly expanded the group of aliens subject to mandatory detention, eliminating provisions that permitted release of criminal aliens who had at one time been lawfully admitted to the United States. Antiterrorism and Effective Death Penalty Act of 1996, § 439(c), 110 Stat. 1277. And later that year Congress enacted the present law, which liberalizes pre-existing law by shortening the removal period from six months to 90 days, mandates detention of certain criminal aliens during the removal proceedings and for the subsequent 90-day removal period, and adds the post-removal-period provision here at issue. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div. C, §§ 303, 305, 110 Stat. 3009-585, 3009-598 to 3009-599; 8 U. S. C. §§ 1226(c), 1231(a) (1994 ed., Supp. V). 699 We have found nothing in the history of these statutes that clearly demonstrates a congressional intent to authorize indefinite, perhaps permanent, detention. Consequently, interpreting the statute to avoid a serious constitutional threat, we conclude that, once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute. See 1 E. Coke, Institutes *70b ("Cessante ratione legis cessat ipse lex") (the rationale of a legal rule no longer being applicable, that rule itself no longer applies). IV The Government seems to argue that, even under our interpretation of the statute, a federal habeas court would have to accept the Government's view about whether the implicit statutory limitation is satisfied in a particular case, conducting little or no independent review of the matter. In our view, that is not so. Whether a set of particular circumstances amounts to detention within, or beyond, a period reasonably necessary to secure removal is determinative of whether the detention is, or is not, pursuant to statutory authority. The basic federal habeas corpus statute grants the federal courts authority to answer that question. See 28 U. S. C. § 2241(c)(3) (granting courts authority to determine whether detention is "in violation of the ... laws ... of the United States"). In doing so the courts carry out what this Court has described as the "historic purpose of the writ," namely, "to relieve detention by executive authorities without judicial triaL" Brown v. Allen, 344 U. S. 443 , 533 (1953) (Jackson, J., concurring in result). In answering that basic question, the habeas court must ask whether the detention in question exceeds a period reasonably necessary to secure removal. I t should measure reasonableness primarily in terms of the statute's basic purpose, namely, assuring the alien's presence at the moment of removal. Thus, if removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no 700 longer authorized by statute. In that case, of course, the alien's release may and should be conditioned on any of the various forms of supervised release that are appropriate in the circumstances, and the alien may no doubt be returned to custody upon a violation of those conditions. See supra, at 695 (citing 8 U. S. C. §§ 1231(a)(3), 1253 (1994 ed., Supp. V); 8 CFR § 241.5 (2001)). And if removal is reasonably foreseeable, the habeas court should consider the risk of the alien's committing further crimes as a factor potentially justifying confinement within that reasonable removal period. See supra, at 690-692. We recognize, as the Government points out, that review must take appropriate account of the greater immigrationrelated expertise of the Executive Branch, of the serious administrative needs and concerns inherent in the necessarily extensive INS efforts to enforce this complex statute, and the Nation's need to "speak with one voice" in immigration matters. Brief for Respondents in No. 99-7791, at 19. But we believe that courts can take appropriate account of such matters without abdicating their legal responsibility to review the lawfulness of an alien's continued detention. Ordinary principles of judicial review in this area recognize primary Executive Branch responsibility. They counsel judges to give expert agencies decisionmaking leeway in matters that invoke their expertise. See Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633 , 651-652 (1990). They recognize Executive Branch primacy in foreign policy matters. See Container Corp. of America v. Franchise Tax Bd., 463 U. S. 159 , 196 (1983). And they consequently require courts to listen with care when the Government's foreign policy judgments, including, for example, the status of repatriation negotiations, are at issue, and to grant the Government appropriate leeway when its judgments rest upon foreign policy expertise. We realize that recognizing this necessary Executive leeway will often call for difficult judgments. In order to limit 701 the occasions when courts will need to make them, we think it practically necessary to recognize some presumptively reasonable period of detention. We have adopted similar presumptions in other contexts to guide lower court determinations. See Cheff v. Schnackenberg, 384 U. S. 373 , 379-380 (1966) (plurality opinion) (adopting rule, based on definition of "petty offense" in United States Code, that right to jury trial extends to all cases in which sentence of six months or greater is imposed); County of Riverside v. McLaughlin, 500 U. S. 44, 56-58 (1991) (O'CONNOR, J.) (adopting presumption, based on lower court estimate of time needed to process arrestee, that 48-hour delay in probable-cause hearing after arrest is reasonable, hence constitutionally permissible). While an argument can be made for confining any presumption to 90 days, we doubt that when Congress shortened the removal period to 90 days in 1996 it believed that all reasonably foreseeable removals could be accomplished in that time. We do have reason to believe, however, that Congress previously doubted the constitutionality of detention for more than six months. See Juris. Statement in United States v. Witkovich, O. T. 1956, No. 295, pp. 8-9. Consequently, for the sake of uniform administration in the federal courts, we recognize that period. After this 6month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior postremoval confinement grows, what counts as the "reasonably foreseeable future" conversely would have to shrink. This 6-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future. 702 v The Fifth Circuit held Zadvydas' continued detention lawful as long as "good faith efforts to effectuate ... deportation continue" and Zadvydas failed to show that deportation will prove "impossible." 185 F. 3d, at 294, 297. But this standard would seem to require an alien seeking release to show the absence of any prospect of removal-no matter how unlikely or unforeseeable-which demands more than our reading of the statute can bear. The Ninth Circuit held that the Government was required to release Ma from detention because there was no reasonable likelihood of his removal in the foreseeable future. 208 F. 3d, at 831. But its conclusion may have rested solely upon the "absence" of an "extant or pending" repatriation agreement without giving due weight to the likelihood of successful future negotiations. See id., at 831, and n. 30. Consequently, we vacate the judgments below and remand both cases for further proceedings consistent with this opinion. It is so ordered. JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting. I join Part I of JUSTICE KENNEDY'S dissent, which establishes the Attorney General's clear statutory authority to detain criminal aliens with no specified time limit. I write separately because I do not believe that, as JUSTICE KENNEDY suggests in Part II of his opinion, there may be some situations in which the courts can order release. I believe that in both Zadvydas v. Davis, No. 99-7791, and Ashcroft v. Ma, No. 00-38, a "careful description" of the substantive right claimed, Reno v. Flores, 507 U. S. 292 , 302 (1993), suffices categorically to refute its existence. A criminal alien under final order of removal who allegedly will not be accepted by any other country in the reasonably foreseeable future claims a constitutional right of supervised release into the United States. This claim can be repackaged as freedom 703 from "physical restraint" or freedom from "indefinite detention," ante, at 689, 690, but it is at bottom a claimed right of release into this country by an individual who concededly has no legal right to be here. There is no such constitutional right. Like a criminal alien under final order of removal, an inadmissible alien at the border has no right to be in the United States. The Chinese Exclusion Case, 130 U. S. 581 , 603 (1889). In Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206 (1953), we upheld potentially indefinite detention of such an inadmissible alien whom the Government was unable to return anywhere else. We said that "we [did] not think that respondent's continued exclusion deprives him of any statutory or constitutional right." Id., at 215. While four Members of the Court thought that Mezei deserved greater procedural protections (the Attorney General had refused to divulge any information as to why Mezei was being detained, id., at 209), no Justice asserted that Mezei had a substantive constitutional right to release into this country. And Justice Jackson's dissent, joined by Justice Frankfurter, affirmatively asserted the opposite, with no contradiction from the Court: "Due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will. Nothing in the Constitution requires admission or sufferance of aliens hostile to our scheme of government." Id., at 222-223 (emphasis added). Insofar as a claimed legal right to release into this country is concerned, an alien under final order of removal stands on an equal footing with an inadmissible alien at the threshold of entry: He has no such right. The Court expressly declines to apply or overrule Mezei, ante, at 694, but attempts to distinguish it-or, I should rather say, to obscure it in a legal fog. First, the Court claims that "[t]he distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law." Ante, at 693. True enough, but only where that distinction makes perfect 704 sense: with regard to the question of what procedures are necessary to prevent entry, as opposed to what procedures are necessary to eject a person already in the United States. See, e. g., Landon v. Plasencia, 459 U. S. 21 , 32 (1982) ("Our cases have frequently suggested that a continuously present resident alien is entitled to a fair hearing when threatened with deportation" (emphasis added)). The Court's citation of Wong Wing v. United States, 163 U. S. 228 (1896), for the proposition that we have "held that the Due Process Clause protects an alien subject to a final order of deportation," ante, at 693-694, is arguably relevant. That case at least involved aliens under final order of deportation. * But all it held is that they could not be subjected to the punishment of hard labor without a judicial trial. I am sure they cannot be tortured, as well-but neither prohibition has anything to do with their right to be released into the United States. Nor does Wong Wing show that the rights of detained aliens subject to final order of deportation are different from the rights of aliens arrested and detained at the border-unless the Court believes that the detained alien in Mezei could have been set to hard labor. Mezei thus stands unexplained and undistinguished by the Court's opinion. We are offered no justification why an alien under a valid and final order of removal-which has totally extinguished whatever right to presence in this country he possessed-has any greater due process right to be released into the country than an alien at the border seeking entry. *The Court also cites Landon v. Plasencia, 459 U. S. 21 (1982), as oblique support for the claim that the due process protection afforded aliens under final order of removal "may vary depending upon status and circumstance." Ante, at 694. But that case is entirely inapt because it did not involve an alien subject to a final order of deportation. The Court also cites Johnson v. Eisentrager, 339 U. S. 763 , 770 (1950), ante, at 694, but that case is doubly irrelevant: because it dealt not with deportation but with the military's detention of enemy aliens outside the territorial jurisdiction of the United States, and because it rejected habeas corpus jurisdiction anyway. 705 Congress undoubtedly thought that both groups of aliensinadmissible aliens at the threshold and criminal aliens under final order of removal-could be constitutionally detained on the same terms, since it provided the authority to detain both groups in the very same statutory provision, see 8 U. S. C. § 1231(a)(6). Because I believe Mezei controls these cases, and, like the Court, I also see no reason to reconsider Mezei, I find no constitutional impediment to the discretion Congress gave to the Attorney General. JUSTICE KENNEDY'S dissent explains the clarity of the detention provision, and I see no obstacle to following the statute's plain meaning. JUSTICE KENNEDY, with whom THE CHIEF JUSTICE joins, and with whom JUSTICE SCALIA and JUSTICE THOMAS join as to Part I, dissenting. The Court says its duty is to avoid a constitutional question. It deems the duty performed by interpreting a statute in obvious disregard of congressional intent; curing the resulting gap by writing a statutory amendment of its own; committing its own grave constitutional error by arrogating to the Judicial Branch the power to summon high officers of the Executive to assess their progress in conducting some of the Nation's most sensitive negotiations with foreign powers; and then likely releasing into our general population at least hundreds of removable or inadmissible aliens who have been found by fair procedures to be flight risks, dangers to the community, or both. Far from avoiding a constitutional question, the Court's ruling causes systemic dislocation in the balance of powers, thus raising serious constitutional concerns not just for the cases at hand but for the Court's own view of its proper authority. Any supposed respect the Court seeks in not reaching the constitutional question is outweighed by the intrusive and erroneous exercise of its own powers. In the guise of judicial restraint the Court ought not to intrude upon the other branches. The constitutional question the statute presents, it must be acknowl- 706 edged, may be a significant one in some later case; but it ought not to drive us to an incorrect interpretation of the statute. The Court having reached the wrong result for the wrong reason, this respectful dissent is required. I The Immigration and Nationality Act (IN A), 8 U. s. C. § 1101 et seq. (1994 ed. and Supp. V), is straightforward enough. It provides: "An alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3)." 8 U. S. C. § 1231(a)(6) (1994 ed., Supp. V). By this statute, Congress confers upon the Attorney General discretion to detain an alien ordered removed. It gives express authorization to detain "beyond the removal period." Ibid. The class of removed aliens detainable under the section includes aliens who were inadmissible and aliens subject to final orders of removal, provided they are a risk to the community or likely to flee. The issue to be determined is whether the authorization to detain beyond the removal period is subject to the implied, nontextuallimitation that the detention be no longer than reasonably necessary to effect removal to another country. The majority invokes the canon of constitutional doubt to read that implied term into the statute. One can accept the premise that a substantial constitutional question is presented by the prospect of lengthy, even unending, detention in some instances; but the statutory construction the Court adopts should be rejected in any event. The interpretation has no basis in the lan- 707 guage or structure of the IN A and in fact contradicts and defeats the purpose set forth in the express terms of the statutory text. The Court, it is submitted, misunderstands the principle of constitutional avoidance which it seeks to invoke. The majority gives a brief bow to the rule that courts must respect the intention of Congress, ante, at 696, but then waltzes away from any analysis of the language, structure, or purpose of the statute. Its analysis is not consistent with our precedents explaining the limits of the constitutional doubt rule. The rule allows courts to choose among constructions which are "fairly possible," Crowell v. Benson, 285 U. S. 22, 62 (1932), not to "'press statutory construction to the point of disingenuous evasion even to avoid a constitutional question,'" Salinas v. United States, 522 U. S. 52 , 60 (1997) (quoting Seminole Tribe of Fla. v. Florida, 517 U. S. 44 , 57, n. 9 (1996)). Were a court to find two interpretations of equal plausibility, it should choose the construction that avoids confronting a constitutional question. The majority's reading of the statutory authorization to "detai[n] beyond the removal period," however, is not plausible. An interpretation which defeats the stated congressional purpose does not suffice to invoke the constitutional doubt rule, for it is "plainly contrary to the intent of Congress." United States v. X-Citement Video, Inc., 513 U. S. 64 , 78 (1994). The majority announces it will reject the Government's argument "that the statute means what it literally says," ante, at 689, but then declines to offer any other acceptable textual interpretation. The majority does not demonstrate an ambiguity in the delegation of the detention power to the Attorney General. It simply amends the statute to impose a time limit tied to the progress of negotiations to effect the aliens' removal. The statute cannot be so construed. The requirement the majority reads into the law simply bears no relation to the text; and in fact it defeats the statutory purpose and design. 708 Other provisions in § 1231 itself do link the requirement of a reasonable time period to the removal process. See, e. g., § 1231(c)(1)(A) (providing that an alien who arrives at a port of entry "shall be removed immediately on a vessel or aircraft" unless "it is impracticable" to do so "within a reasonable time" (emphasis added)); § 1231(c)(3)(A)(ii)(II) (requiring the "owner of a vessel or aircraft bringing an alien to the United States [to] pay the costs of detaining and maintaining the alien ... for the period of time reasonably necessary for the owner to arrange for repatriation" (emphasis added)). That Congress chose to impose the limitation in these sections and not in § 1231(a)(6) is evidence of its intent to measure the detention period by other standards. When Congress has made express provisions for the contingency that repatriation might be difficult or prolonged in other portions of the statute, it should be presumed that its omission of the same contingency in the detention section was purposeful. Indeed, the reasonable time limits in the provisions just mentioned simply excuse the duty of early removal. They do not mandate release. An alien within one of these categories, say, a ship stowaway, would be subject as well to detention beyond the removal period under § 1231(a)(6), if the statute is read as written. Under the majority's view, however, it appears the alien must be released in six months even if presenting a real danger to the community. The 6-month period invented by the Court, even when modified by its sliding standard of reasonableness for certain repatriation negotiations, see ante, at 701, makes the statutory purpose to protect the community ineffective. The risk to the community exists whether or not the repatriation negotiations have some end in sight; in fact, when the negotiations end, the risk may be greater. The authority to detain beyond the removal period is to protect the community, not to negotiate the aliens' return. The risk to the community survives repatriation negotiations. To a more limited, but still significant, extent, so does the concern with flight. It 709 is a fact of international diplomacy that governments and their policies change; and if repatriation efforts can be revived, the Attorney General has an interest in ensuring the alien can report so the removal process can begin again. Congress, moreover, was well aware of the difficulties confronting aliens who are removable but who cannot be repatriated. It made special provisions allowing them to be employed, a privilege denied to other deportable aliens. See § 1231(a)(7) (providing an "alien [who] cannot be removed due to the refusal of all countries designated by the alien or under this section to receive the alien" still remains eligible for employment in the United States). Congress' decision to ameliorate the condition of aliens subject to a final order of removal who cannot be repatriated, but who need not be detained, illustrates a balance in the statutory design. Yet the Court renders the other side of the balance meaningless. The risk to the community posed by a removable alien is a function of a variety of circumstances, circumstances that do not diminish just because the alien cannot be deported within some foreseeable time. Those circumstances include the seriousness of the alien's past offenses, his or her efforts at rehabilitation, and some indication from the alien that, given the real prospect of detention, the alien will conform his or her conduct. This is the purpose for the periodic review of detention status provided for by the regulations. See 8 CFR § 241.4 (2001). The Court's amendment of the statute reads out of the provision the congressional decision that dangerousness alone is a sufficient basis for detention, see ante, at 699 (citing 1 E. Coke, Institutes *70b), and reads out as well any meaningful structure for supervised release. The majority is correct to observe that in United States v. Witkovich, 353 U. S. 194 (1957), the Court "read significant limitations into" a statute, ante, at 689, but that does not permit us to avoid the proper reading of the enactment now before us. In Witkovich, the Court construed former § 1252(d), which required an alien under a final order of de- 710 portation "to give information under oath ... as the Attorney General may deem fit and proper." 353 U. S., at 195. The Court held that although the plain language "appears to confer upon the Attorney General unbounded authority to require whatever information he deems desirable of aliens whose deportation has not been effected within six months," id., at 199, the constitutional doubt this interpretation would raise meant the language would be construed as limited to the provision of information "reasonably calculated to keep the Attorney General advised regarding the continued availability for departure of aliens whose deportation is overdue," id., at 202. In Witkovich the interpretation of the text was in aid of the statutory purpose; in the instant cases the interpretation nullifies the statutory purpose. Here the statute by its own terms permits the Attorney General to consider factors the Court now makes irrelevant. The majority's unanchored interpretation ignores another indication that the Attorney General's detention discretion was not limited to this truncated period. Section 1231(a)(6) permits continued detention not only of removable aliens but also of inadmissible aliens, for instance those stopped at the border before entry. Congress provides for detention of both categories within the same statutory grant of authority. Accepting the majority's interpretation, then, there are two possibilities, neither of which is sustainable. On the one hand, it may be that the majority's rule applies to both categories of aliens, in which case we are asked to assume that Congress intended to restrict the discretion it could confer upon the Attorney General so that all inadmissible aliens must be allowed into our community within six months. On the other hand, the majority's logic might be that inadmissible and removable aliens can be treated differently. Yet it is not a plausible construction of § 1231(a)(6) to imply a time limit as to one class but not to another. The text does not admit of this possibility. As a result, it is difficult to see why "[a]liens who have not yet gained initial admission 711 to this country would present a very different question." Ante, at 682. Congress' power to detain aliens in connection with removal or exclusion, the Court has said, is part of the Legislature's considerable authority over immigration matters. See, e. g., Wong Wing v. United States, 163 U. S. 228 , 235 (1896) ("Proceedings to exclude or expel would be vain if those accused could not be held in custody pending the inquiry into their true character and while arrangements were being made for their deportation"). It is reasonable to assume, then, and it is the proper interpretation of the INA and § 1231(a)(6), that when Congress provided for detention "beyond the removal period," it exercised its considerable power over immigration and delegated to the Attorney General the discretion to detain inadmissible and other removable aliens for as long as they are determined to be either a flight risk or a danger to the Nation. The majority's interpretation, moreover, defeats the very repatriation goal in which it professes such interest. The Court rushes to substitute a judicial judgment for the Executive's discretion and authority. As the Government represents to us, judicial orders requiring release of removable aliens, even on a temporary basis, have the potential to undermine the obvious necessity that the Nation speak with one voice on immigration and foreign affairs matters. Brief for Respondents in No. 99-7791, p. 49. The result of the Court's rule is that, by refusing to accept repatriation of their own nationals, other countries can effect the release of these individuals back into the American community. Ibid. If their own nationals are now at large in the United States, the nation of origin may ignore or disclaim responsibility to accept their return. Ibid. The interference with sensitive foreign relations becomes even more acute where hostility or tension characterizes the relationship, for other countries can use the fact of judicially mandated release to their strategic advantage, refusing the return of their nation- 712 als to force dangerous aliens upon us. One of the more alarming aspects of the Court's new venture into foreign affairs management is the suggestion that the district court can expand or contract the reasonable period of detention based on its own assessment of the course of negotiations with foreign powers. The Court says it will allow the Executive to perform its duties on its own for six months; after that, foreign relations go into judicially supervised receivership. The cases which the Court relies upon to support the imposition of presumptions are inapposite. The rule announced in Cheff v. Schnackenberg, 384 U. S. 373 (1966)"that sentences exceeding six months for criminal contempt may not be imposed by federal courts absent a jury trial"was based on the definition of a "petty offense" that was still operable in the United States Code, and was proper "under the peculiar power of the federal courts to revise sentences in contempt cases." Id., at 380. The majority can point to no similar statutory or judicial source for its authority to create its own time-based rule in these cases. It cites only an observation in a brief filed by the Government in United States v. Witkovich, O. T. 1956, No. 295, pp. 8-9, see ante, at 701, relying, in turn, on doubts expressed in a 1952 Senate Report concerning detention for longer than six months under an Act with standards different from, and far less precise than, those applicable here. In County of Riverside v. McLaughlin, 500 U. S. 44 (1991), our reasonableness presumption for delays of less than 48 hours between an arrest and a probable-cause hearing was, as the majority recognizes, ante, at 701, based on the "Court of Appeals' determination of the time required to complete those procedures." 500 U. S., at 57. Here, as far as we know, the 6-month period bears no particular relationship to how long it now takes to deport any group of aliens, or, for that matter, how long it took in the past to remove. Zadvydas' case itself demonstrates that the repatriation process may often take years to 713 negotiate, involving difficult issues of establishing citizenship and the like. See Brief for Petitioner in No. 99-7791, pp.17-20. It is to be expected that from time to time a foreign power will adopt a truculent stance with respect to the United States and other nations. Yet the Court by its time limit, or presumptive time limit, goes far to undercut the position of the Executive in repatriation negotiations, thus ill serving the interest of all foreign nationals of the country concerned. Law-abiding aliens might wish to return to their home country, for instance, but the strained relationship caused by the difficult repatriation talks might prove to be a substantial obstacle for these aliens as well. In addition to weakening the hand of our Government, court ordered release cannot help but encourage dilatory and obstructive tactics by aliens who, emboldened by the Court's new rule, have good reason not to cooperate by making their own repatriation or transfer seem foreseeable. An alien ordered deported also has less incentive to cooperate or to facilitate expeditious removal when he has been released, even on a supervised basis, than does an alien held at an Immigration and Naturalization Service (INS) detention facility. Neither the alien nor his family would find any urgency in assisting with a petition to other countries to accept the alien back if the alien could simply remain in the United States indefinitely. The risk to the community posed by the mandatory release of aliens who are dangerous or a flight risk is far from insubstantial; the motivation to protect the citizenry from aliens determined to be dangerous is central to the immigration power itself. The Government cites statistical studies showing high recidivism rates for released aliens. One Government Accounting Office study cited by Congress in floor debates on the Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214, put the figure as high as 77 percent. 142 Congo Rec. 7972 (1996); Brief for Respondents in 714 No. 99-7791, at 27, n. 13. It seems evident a criminal record accumulated by an admitted alien during his or her time in the United States is likely to be a better indicator of risk than factors relied upon during the INS's initial decision to admit or exclude. Aliens ordered deported as the result of having committed a felony have proved to be dangerous. Any suggestion that aliens who have completed prison terms no longer present a danger simply does not accord with the reality that a significant risk may still exist, as determined by the many factors set forth in the regulations. See 8 CFR § 241.4(f) (2001). Underworld and terrorist links are subtle and may be overseas, beyond our jurisdiction to impose felony charges. Furthermore, the majority's rationale seems to apply to an alien who flees prosecution or escapes from custody in some other country. The fact an alien can be deemed inadmissible because of fraud at the time of entry does not necessarily distinguish his or her case from an alien whose entry was legal. Consider, for example, a fugitive alien who enters by fraud or stealth and resides here for five years with significant ties to the community, though still presenting a danger; contrast him with an alien who entered lawfully but a month later committed an act making him removable. Why the Court's rationale should apply to the second alien but not the first is not apparent. The majority cannot come to terms with these distinctions under its own rationale. The rule the majority creates permits consideration of nothing more than the reasonable foreseeability of removal. See ante, at 699-700. That standard is not only without sound basis in the statutory structure, but also is not susceptible to customary judicial inquiry. Cf. INS v. Aguirre-Aguirre, 526 U. S. 415 , 425 (1999) ("The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions"). The majority does say that the release of terrorists or other "special circumstances" might justify "heightened deference to the judgments of the politi- 715 cal branches with respect to matters of national security." Ante, at 696. Here the Court appears to rely on an assessment of risk, but this is the very premise it finds inadequate to sustain the natural reading of the statute. The Court ought not to reject a rationale in order to deny power to the Attorney General and then invoke the same rationale to save its own analysis. This rule of startling breadth invites potentially perverse results. Because other nations may refuse to admit aliens who have committed certain crimes-see, e. g., Brief for Petitioner in No. 99-7791, at 19 ("Lithuanian law precludes granting of citizenship to persons who, before coming to Lithuania, have been sentenced in another state to imprisonment for a deliberate crime for which criminal liability is imposed by the laws of the Republic of Lithuania" (citations and internal quotation marks omitted))-often the aliens who have committed the most serious crimes will be those who may be released immediately under the majority's rule. An example is presented in the case of Saroeut Ourk, a Cambodian alien determined to be removable and held pending deportation. See Ourk v. INS, No. 00-35645 (CA9, Sept. 18, 2000), cert. pending, No. 00-987. Ourk was convicted of rape by use of drugs in conjunction with the kidnaping of a 13-year-old girl; after serving 18 months of his prison term, he was released on parole but was returned to custody twice more for parole violations. Pet. for Cert. in No. 00-987, pp. 4-5. When he was ordered deported and transferred to the custody of the INS, it is no surprise the INS determined he was both a flight risk and a danger to the community. Yet the Court of Appeals for the Ninth Circuit concluded, based on its earlier decision in Kim Ho Ma v. Reno, 208 F.3d 815 (2000), that Ourk could no longer be held pending deportation, since removal to Cambodia was not reasonably foreseeable. App. to Pet. for Cert. in No. 00-987, pp. 3a-4a. See also Phetsany v. INS, No. 00-16286 (CA9, Sept. 18,2000), cert. pending, No. 00-986 (requiring release of a native and 716 citizen of Laos convicted of attempted, premeditated murder); Mounsaveng v. INS, No. 00-15309 (CA9, Aug. 11,2000), cert. pending, No. 00-751* (releasing a citizen of Laos convicted of rape of a 15-year-old girl and reckless endangerment for involvement in a fight in which gunshots were fired); Lim v. Reno, No. 99-36191 (CA9, Aug. 14, 2000), cert. pending, No. 00-777 (releasing a Cambodian convicted of rape and robbery); Phuong Phuc Le v. INS, No. 00-16095 (CA9, Sept. 18,2000), cert. pending, No. 00-1001 (releasing a Vietnamese citizen convicted of voluntary manslaughter in a crime involving the attempted murder of two other persons). Today's result will ensure these dangerous individuals, and hundreds more like them, will remain free while the Executive Branch tries to secure their removal. By contrast, aliens who violate mere tourist visa requirements, ante, at 691, can in the typical case be held pending deportation on grounds that a minor offender is more likely to be removed. There is no reason to suppose Congress intended this odd result. The majority's rule is not limited to aliens once lawfully admitted. Today's result may well mandate the release of those aliens who first gained entry illegally or by fraud, and, indeed, is broad enough to require even that inadmissible and excludable aliens detained at the border be set free in our community. In Rosales-Garcia v. Holland, 238 F.3d 704 , 725 (CA6 2001), for example, Rosales, a Cuban citizen, arrived in this country during the 1980 Mariel boatlift. Id., at 707. Upon arrival in the United States, Rosales was released into the custody of a relative under the Attorney General's authority to parole illegal aliens, see 8 U. S. C. § 1182(d)(5)(A), and there he committed multiple crimes for which he was convicted and imprisoned. 238 F. 3d, at 707708. While serving a sentence for burglary and grand larceny, Rosales escaped from prison, another of the offenses *[REPORTER'S NOTE: See post, p. 943.] 717 for which he ultimately served time. Id., at 708. The INS eventually revoked Rosales' immigration parole, ordered him deported, and held him pending deportation, subject to periodic consideration for parole under the Cuban Review Plan. See 8 CFR § 212.12(g)(2) (2001). In reasoning remarkably similar to the majority's, the Court of Appeals for the Sixth Circuit held that the indefinite detention of Rosales violated Fifth Amendment due process rights, because "the government has offered ... no credible proof that there is any possibility that Cuba may accept Rosales's return anytime in the foreseeable future." 238 F. 3d, at 725. This result-that Mariel Cubans and other illegal, inadmissible aliens will be released notwithstanding their criminal history and obvious flight risk-would seem a necessary consequence of the majority's construction of the statute. The majority's confidence that the Judiciary will handle these matters "with appropriate sensitivity," ante, at 696, 700, allows no meaningful category to confine or explain its own sweeping rule, provides no justification for wresting this sovereign power away from the political branches in the first place, and has no support in judicially manageable standards for deciding the foreseeability of removal. It is curious that the majority would approve of continued detention beyond the 90-day period, or, for that matter, during the 90-day period, where deportation is not reasonably foreseeable. If the INS cannot detain an alien because he is dangerous, it would seem irrelevant to the Constitution or to the majority's presumption that the INS has detained the alien for only a little while. The reason detention is permitted at all is that a removable alien does not have the same liberty interest as a citizen does. The Court cannot bring itself to acknowledge this established proposition. Likewise, it is far from evident under the majority's theory why the INS can condition and supervise the release of aliens who are not removable in the reasonably foreseeable future, or why "the alien may no doubt be returned to custody upon 718 a violation of those conditions." Ante, at 700. It is true that threat of revocation of supervised release is necessary to make the supervised release itself effective, a fact even counsel for Zadvydas acknowledged. Brief for Petitioner in No. 99-7791, at 20-21. If that is so, however, the whole foundation for the Court's position collapses. The Court today assumes a role in foreign relations which is unprecedented, unfortunate, and unwise. Its misstep results in part from a misunderstanding of the liberty interests these aliens retain, an issue next to be discussed. II The aliens' claims are substantial; their plight is real. They face continued detention, perhaps for life, unless it is shown they no longer present a flight risk or a danger to the community. In a later case the specific circumstances of a detention may present a substantial constitutional question. That is not a reason, however, for framing a rule which ignores the law governing alien status. As persons within our jurisdiction, the aliens are entitled to the protection of the Due Process Clause. Liberty under the Due Process Clause includes protection against unlawful or arbitrary personal restraint or detention. The liberty rights of the aliens before us here are subject to limitations and conditions not applicable to citizens, however. See, e. g., Mathews v. Diaz, 426 U. S. 67 , 79-80 (1976) ("In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens"). No party to this proceeding contests the initial premise that the aliens have been determined to be removable after a fair hearing under lawful and proper procedures. Section 1229a sets forth the proceedings required for deciding the inadmissibility or removability of an alien, including a hearing before an immigration judge, at which the INS carries "the burden of establishing by clear and convincing evidence that ... the alien is deportable." 8 719 u. S. C. § 1229a(c)(3)(A); see also Berenyi v. District Director, INS, 385 U. S. 630 , 636 (1967) ("When the Government seeks to ... deport a resident alien and send him from our shores, it carries the heavy burden of proving its case by clear, unequivocal, and convincing evidence" (internal quotation marks and footnotes omitted)). Aliens ordered removed pursuant to these procedures are given notice of their right to appeal the decision, 8 U. S. C. § 1229a(c)(4), may move the immigration judge to reconsider, § 1229a(c)(5), can seek discretionary cancellation of removal, § 1229b, and can obtain habeas review of the Attorney General's decision not to consider waiver of deportation. See INS v. St. Cyr, ante, at 314. As a result, aliens like Zadvydas and Ma do not arrive at their removable status without thorough, substantial procedural safeguards. The majority likely is correct to say that the distinction between an alien who entered the United States, as these aliens did, and one who has not, "runs throughout immigration law." Ante, at 693. The distinction is not so clear as it might seem, however, and I doubt it will suffice to confine the rationale adopted by the majority. The case which often comes to mind when one tests the distinction is Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206 (1953), where the Court considered the situation of an alien denied entry and detained on Ellis Island. The detention had no foreseeable end, for though Mezei was inadmissible to the United States it seemed no other country would have him. Id., at 209. The case presented a line-drawing problem, asking whether the alien was in our country; or whether his situation was the same as if he were still on foreign shores; or whether he fell in a legal category somewhere in between, though if this were true, it still would not be clear how to resolve the case. The Court held the alien had no right to a hearing to secure his release. Id., at 212-213. (Approximately 17 months after this Court denied Mezei relief, the Attorney General released him on parole. It appears Mezei 720 never returned to INS custody, though he was not admitted to the United States as a citizen or lawful permanent resident. See Weisselberg, The Exclusion and Detention of Aliens: Lessons From the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933, 979-984 (1995).) Here the majority says the earlier presence of these aliens in the United States distinguishes the cases from Mezei. For reasons given here it is submitted the majority is incorrect in its major conclusions in all events, so even if it were assumed these aliens are in a class with more rights than Mezei, it makes no difference. For purposes of this dissent it is not necessary to rely upon Mezei. That said, it must be made clear these aliens are in a position far different from aliens with a lawful right to remain here. They are removable, and their rights must be defined in accordance with that status. The due process analysis must begin with a "careful description of the asserted right." Reno v. Flores, 507 U. S. 292 , 302 (1993). We have "long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative." Landon v. Plasencia, 459 U. S. 21 , 32 (1982). The same is true for those aliens like Zadvydas and Ma, who face a final order of removal. When an alien is removable, he or she has no right under the basic immigration laws to remain in this country. The removal orders reflect the determination that the aliens' ties to this community are insufficient to justify their continued presence in the United States. An alien's admission to this country is conditioned upon compliance with our laws, and removal is the consequence of a breach of that understanding. It is true the Court has accorded more procedural protections to those aliens admitted to the country than those stopped at the border, observing that "a continuously present alien is entitled to a fair hearing when threatened with 721 deportation." Ibid.; Mezei, supra, at 212 ("[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law .... But an alien on the threshold of initial entry stands on a different footing: 'Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned'" (quoting United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537 , 544 (1950))). Removable and excludable aliens are situated differently before an order of removal is entered; the removable alien, by virtue of his continued presence here, possesses an interest in remaining, while the excludable alien seeks only the privilege of entry. Still, both removable and inadmissible aliens are entitled to be free from detention that is arbitrary or capricious. Where detention is incident to removal, the detention cannot be justified as punishment nor can the confinement or its conditions be designed in order to punish. See Wong Wing v. United States, 163 U. S. 228 (1896). This accords with international views on detention of refugees and asylum seekers. See Report of the United Nations Working Group on Arbitrary Detention, U. N. Doc. E/CNA/2000/4 (Dec. 28, 1999); United Nations High Commissioner for Refugees, Guidelines on Applicable Criteria and Standards Relating to the Detention on Asylum-Seekers (Feb. 10, 1999). It is neither arbitrary nor capricious to detain the aliens when necessary to avoid the risk of flight or danger to the community. Whether a due process right is denied when removable aliens who are flight risks or dangers to the community are detained turns, then, not on the substantive right to be free, but on whether there are adequate procedures to review their cases, allowing persons once subject to detention to show that through rehabilitation, new appreciation of their responsibilities, or under other standards, they no longer present special risks or danger if put at large. The proce- 722 dures to determine and to review the status-required detention go far toward this objective. By regulations, promulgated after notice and comment, the Attorney General has given structure to the discretion delegated by the INA in order to ensure fairness and regularity in INS detention decisions. First, the INS provides for an initial postcustody review, before the expiration of the gO-day removal period, at which a district director conducts a record review. 8 CFR § 241.4 (2001). The alien is entitled to present any relevant information in support of release, and the district director has the discretion to interview the alien for a personal evaluation. § 241.4(h)(1). At the end of the gO-day period, the alien, if held in custody, is transferred to a postorder detention unit at INS headquarters, which in the ordinary course will conduct an initial custody review within three months of the transfer. § 241.4(k)(2)(ii). If the INS determines the alien should remain in detention, a twomember panel of INS officers interviews the alien and makes a recommendation to INS headquarters. §§ 241.4(i)(1)-(3). The regulations provide an extensive, nonexhaustive list of factors that should be considered in the recommendation to release or further detain. Those include: "[t]he nature and number of disciplinary infractions"; "the detainee's criminal conduct and criminal convictions, including consideration of the nature and severity of the alien's convictions, sentences imposed and time actually served, probation and criminal parole history, evidence of recidivism, and other criminal history"; "psychiatric and psychological reports pertaining to the detainee's mental health"; "[e]vidence of rehabilitation"; "[f]avorable factors, including ties to the United States such as the number of close relatives"; "[p]rior immigration violations and history"; "[t]he likelihood that the alien is a significant flight risk or may abscond to avoid removal, including history of escapes"; and any other probative information. § 241.4(f). Another review must occur within one year, with mandatory evaluations each year thereafter; if the alien re- 723 quests, the INS has the discretion to grant more frequent reviews. § 241.4(k)(2)(iii). The INS must provide the alien 30-days advance, written notice of custody reviews; and it must afford the alien an opportunity to submit any relevant materials for consideration. § 241.4(i)(3)(ii). The alien may be assisted by a representative of his choice during the review, §§ 241.4(i)(3)(i), (ii), and the INS must provide the alien with a copy of its decision, including a brief statement of the reasons for any continued detention, § 241.4(d). In this context the proper analysis can be informed by our cases involving parole-eligibility or parole-revocation determinations. In Morrissey v. Brewer, 408 U. S. 471 (1972), for example, we held some amount of process was due an individual whose parole was revoked, for "the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty." Id., at 482; see also Board of Pardons v. Allen, 482 U. S. 369 (1987). We rejected in Morrissey the suggestion that the State could justify parole revocation "without some informal procedural guarantees," 408 U. S., at 483, but "[g]iven the previous conviction and the proper imposition of conditions," we recognized that "the State has an overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial," ibid. We held the review process need not include a judicial officer or formal court proceeding, but could be conducted by a neutral administrative official. Id., at 486. While the majority expresses some concern that the regulations place the burden on the alien to show he is no longer dangerous, that question could be adjudicated in a later case raising the issue. It should be noted the procedural protection here is real, not illusory; and the criteria for obtaining release are far from insurmountable. Statistics show that between February 1999 and mid-November 2000 some 6,200 aliens were provided custody reviews before expiration of the 90-day removal period, and of those aliens about 3,380 724 were released. 65 Fed. Reg. 80285 (2000); Reply Brief for Petitioners in No. 00-38, p. 15. As a result, although the alien carries the burden to prove detention is no longer justified, there is no showing this is an unreasonable burden. Like the parolee in Morrissey, who was aware of the conditions of his release, the aliens in the instant cases have notice, constructive or actual, that the INA imposes as a consequence of the commission of certain crimes not only deportation but also the possibility of continued detention in cases where deportation is not immediately feasible. And like the prisoner in Board of Pardons v. Allen, who sought federalcourt review of the discretionary decision denying him parole eligibility, removable aliens held pending deportation have a due process liberty right to have the INS conduct the review procedures in place. See 482 U. S., at 381. Were the INS, in an arbitrary or categorical manner, to deny an alien access to the administrative processes in place to review continued detention, habeas jurisdiction would lie to redress the due process violation caused by the denial of the mandated procedures under 8 CFR § 241.4 (2001). This is not the posture of the instant cases, however. Neither Zadvydas nor Ma argues that the Attorney General has applied the procedures in an improper manner; they challenge only the Attorney General's authority to detain at all where removal is no longer foreseeable. The Government has conceded that habeas jurisdiction is available under 28 U. S. C. § 2241 to review an alien's challenge to detention following entry of a final order of deportation, Brief for Respondents in No. 99-7791, at 9-10, n. 7; Tr. of Oral Arg. 59, although it does not detail what the nature of the habeas review would be. As a result, we need not decide today whether, and to what extent, a habeas court could review the Attorney General's determination that a detained alien continues to be dangerous or a flight risk. Given the undeniable deprivation of liberty caused by the detention, there might be substantial questions concerning the severity nec- 725 essary for there to be a community risk; the adequacy of judicial review in specific cases where it is alleged there is no justification for concluding an alien is dangerous or a flight risk; and other issues. These matters are not presented to us here. In all events, if judicial review is to be available, the inquiry required by the majority focuses on the wrong factors. Concepts of flight risk or future dangerousness are manageable legal categories. See, e. g., Kansas v. Hendricks, 521 U. S. 346 (1997); Foucha v. Louisiana, 504 U. S. 71 (1992). The majority instead would have the Judiciary review the status of repatriation negotiations, which, one would have thought, are the paradigmatic examples of nonjusticiable inquiry. See INS v. Aguirre-Aguirre, 526 U. S., at 425. The inquiry would require the Executive Branch to surrender its primacy in foreign affairs and submit reports to the courts respecting its ongoing negotiations in the international sphere. High officials of the Department of State could be called on to testify as to the status of these negotiations. The Court finds this to be a more manageable, more appropriate role for the Judiciary than to review a single, discrete case deciding whether there were fair procedures and adequate judicial safeguards to determine whether an alien is dangerous to the community so that long-term detention is justified. The Court's rule is a serious misconception of the proper judicial function, and it is not what Congress enacted. For these reasons, the Court should reverse the judgment of the Court of Appeals for the Ninth Circuit and affirm the judgment of the Court of Appeals for the Fifth Circuit. I dissent.

Here is a summary of the verdicts in the two Supreme Court cases, Zadvydas v. Davis and Ashcroft v. Ma: ## Zadvydas v. Davis: - Kestutis Zadvydas, a resident alien born to Lithuanian parents, was ordered to be deported due to his criminal record. However, Germany and Lithuania refused to accept him, and efforts to send him to his wife's native country also failed. - Zadvydas filed a habeas action under 28 U.S.C. § 2241 after remaining in custody beyond the 90-day removal period. The District Court granted the writ, reasoning that his confinement would violate the Constitution as the government would never remove him. - The Fifth Circuit reversed, stating that Zadvydas' detention was constitutional as eventual deportation was not impossible, and good-faith efforts to remove him continued with administrative review available. ## Ashcroft v. Ma: - Kim Ho Ma, a resident alien born in Cambodia, was ordered to be removed based on his aggravated felony conviction. He also remained in custody after the removal period and filed a § 2241 habeas petition. - The District Court ordered Ma's release, holding that the Constitution prohibits post-removal-period detention unless there is a realistic chance of removal, which was not the case for Ma as Cambodia has no repatriation treaty with the US. - The Ninth Circuit affirmed, concluding that detention beyond a reasonable time after the 90-day period was unauthorized. ## Supreme Court Verdict: - The Supreme Court held that § 2241 habeas proceedings are available for statutory and constitutional challenges to post-removal-period detention. - The Court interpreted the post-removal-period detention statute as implicitly limiting an alien's detention to a period reasonably necessary for removal, generally no more than six months. - The Court ruled that if removal is not foreseeable, continued detention is no longer authorized, and the alien must be released under supervision. - The Court reversed the Fifth Circuit's decision in Zadvydas and affirmed the Ninth Circuit's decision in Ma.

Immigration & National Security

Demore v. Kim

https://supreme.justia.com/cases/federal/us/538/510/

OCTOBER TERM, 2002 Syllabus DEMORE, DISTRICT DIRECTOR, SAN FRANCISCO DISTRICT OF IMMIGRATION AND NATURALIZATION SERVICE, ET AL. v. KIM CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 01-1491. Argued January 15, 2003-Decided April 29, 2003 Under the Immigration and Nationality Act, 8 U. S. C. § 1226(c), "[t]he Attorney General shall take into custody any alien who" is removable from this country because he has been convicted of one of a specified set of crimes, including an "aggravated felony." After respondent, a lawful permanent resident alien, was convicted in state court of first-degree burglary and, later, of "petty theft with priors," the Immigration and Naturalization Service (INS) charged him with being deportable from the United States in light of these convictions, and detained him pending his removal hearing. Without disputing the validity of his convictions or the INS' conclusion that he is deportable and therefore subject to mandatory detention under § 1226(c), respondent filed a habeas corpus action challenging § 1226(c) on the ground that his detention thereunder violated due process because the INS had made no determination that he posed either a danger to society or a flight risk. The District Court agreed and granted respondent's petition subject to the INS' prompt undertaking of an individualized bond hearing, after which respondent was released on bond. In affirming, the Ninth Circuit held that § 1226(c) violates substantive due process as applied to respondent because he is a lawful permanent resident, the most favored category of aliens. The court rejected the Government's two principal justifications for mandatory detention under § 1226(c), discounting the firstensuring the presence of criminal aliens at their removal proceedingsupon finding that not all aliens detained pursuant to § 1226(c) would ultimately be deported, and discounting the second-protecting the public from dangerous criminal aliens-on the grounds that the aggravated felony classification triggering respondent's detention included crimes (such as respondent's) that the court did not consider "egregious" or otherwise sufficiently dangerous to the public to necessitate mandatory detention. Relying on Zadvydas v. Davis, 533 U. S. 678 , the court concluded that the INS had not provided a justification for no-bail civil detention sufficient to overcome a permanent resident alien's liberty interest. 511 Held: 1. Section 1226(e)-which states that "[t]he Attorney General's discretionary judgment regarding the application of this section shall not be subject to review" and that "[n]o court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien" -does not deprive the federal courts of jurisdiction to grant habeas relief to aliens challenging their detention under § 1226(c). Respondent does not challenge a "discretionary judgment" by the Attorney General or a "decision" that the Attorney General has made regarding his detention or release. Rather, respondent challenges the statutory framework that permits his detention without bail. Where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear. E. g., Webster v. Doe, 486 U. S. 592 , 603. And, where a provision precluding review is claimed to bar habeas review, the Court requires a particularly clear statement that such is Congress' intent. See INS v. St. Cyr, 533 U. S. 289 , 308-309, 298, 327. Section 1226(e) contains no explicit provision barring habeas review. Pp. 516-517. 2. Congress, justifiably concerned with evidence that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers, may require that persons such as respondent be detained for the brief period necessary for their removal proceedings. In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens. Mathews v. Diaz, 426 U. S. 67, 79-80. Although the Fifth Amendment entitles aliens to due process in deportation proceedings, Reno v. Flores, 507 U. S. 292 , 306, detention during such proceedings is a constitutionally valid aspect of the process, e. g., Wong Wing v. United States, 163 U. S. 228 , 235, even where, as here, aliens challenge their detention on the grounds that there has been no finding that they are unlikely to appear for their deportation proceedings, Carlson v. Landon, 342 U. S. 524 , 538. The INS detention of respondent, a criminal alien who has conceded that he is deportable, for the limited period of his removal proceedings, is governed by these cases. Respondent argues unpersuasively that the § 1226(c) detention policy violates due process under Zadvydas, 533 U. S., at 699, in which the Court held that § 1231(a)(6) authorizes continued detention of an alien subject to a final removal order beyond that section's 90-day removal period for only such time as is reasonably necessary to secure the removal. Zadvydas is materially different from the present case in two respects. First, the aliens there challenging their detention following final deportation orders were ones for whom removal was "no longer practically attainable," such that their detention 512 Syllabus did not serve its purported immigration purpose. Id., at 690. In contrast, because the statutory provision at issue in this case governs detention of deportable criminal aliens pending their removal proceedings, the detention necessarily serves the purpose of preventing the aliens from fleeing prior to or during such proceedings. Second, while the period of detention at issue in Zadvydas was "indefinite" and "potentially permanent," id., at 690-691, the record shows that §1226(c) detention not only has a definite termination point, but lasts, in the majority of cases, for less than the 90 days the Court considered presumptively valid in Zadvydas. Pp. 517-531. 276 F.3d 523 , reversed. REHNQUIST, C. J., delivered the opinion of the Court, in which KENNEDY, J., joined in full, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined as to Part I, and in which O'CONNOR, SCALIA, and THOMAS, JJ., joined as to all but Part I. KENNEDY, J., filed a concurring opinion, post, p. 531. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in which SCALIA and THOMAS, JJ., joined, post, p. 533. SOUTER, J., filed an opinion concurring in part and dissenting in part, in which STEVENS and GINSBURG, JJ., joined, post, p. 540. BREYER, J., filed an opinion concurring in part and dissenting in part, post, p. 576. Solicitor General Olson argued the cause for petitioners. With him on the briefs were Assistant Attorney General McCallum, Deputy Solicitor General Kneedler, Austin C. Schlick, Donald E. Keener, and Mark C. Walters. Judy Rabinovitz argued the cause for respondent. With her on the brief were Lucas Guttentag, Lee Gelernt, Steven R. Shapiro, A. Stephen Hut, Jr., Christopher J. Meade, Liliana M. Garces, and Jayashri Srikantiah. * * Daniel J. Popeo and Richard A. Samp filed a brief for the Washington Legal Foundation et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the American Bar Association by Alfred P. Carlton, Jr., and Jeffrey L. Bleich; for Citizens and Immigrants for Equal Justice et al. by Nancy Morawetz; for International Human Rights Organizations by William J. Aceves and Paul L. Hoffman; for Law Professors by Daniel Kanstroom; for the National Asian Pacific American Legal Consortium et al. by Richard A. Cordray, Eugene F. Chay, Vincent A. Eng, and William L. Taylor; and for T. Alexander Aleinikoff et al. by Anthony J. Grler. 513 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. Section 236(c) of the Immigration and Nationality Act, 66 Stat. 200, as amended, 110 Stat. 3009-585, 8 U. S. C. § 1226(c), provides that "[t]he Attorney General shall take into custody any alien who" is removable from this country because he has been convicted of one of a specified set of crimes. Respondent is a citizen of the Republic of South Korea. He entered the United States in 1984, at the age of six, and became a lawful permanent resident of the United States two years later. In July 1996, he was convicted of first-degree burglary in state court in California and, in April 1997, he was convicted of a second crime, "petty theft with priors." The Immigration and Naturalization Service (INS) charged respondent with being deportable from the United States in light of these convictions, and detained him pending his removal hearing.1 We hold that Congress, justifiably concerned that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers, may require that persons such as respondent be detained for the brief period necessary for their removal proceedings. Respondent does not dispute the validity of his prior convictions, which were obtained following the full procedural protections our criminal justice system offers. Respondent also did not dispute the INS' conclusion that he is subject to 1 App. to Pet. for Cert. 32a; see 8 U. S. C. §§ 1l01(a)(43)(G), 1227(a)(2) (A)(iii). Section 1226(c) authorizes detention of aliens who have committed certain crimes including, inter alia, any "aggravated felony," §§ 1226(c)(1)(B), 1227(a)(2)(A)(iii), and any two "crimes involving moral turpitude," §§ 1226(c)(1)(B), 1227(a)(2)(A)(ii). Although the INS initially included only respondent's 1997 conviction in the charging document, it subsequently amended the immigration charges against him to include his 1996 conviction for first-degree burglary as another basis for mandatory detention and deportation. Brief for Petitioners 3, n. 2 (alleging that respondent's convictions reflected two" 'crimes involving moral turpitude' "). 514 mandatory detention under § 1226(c). See Brief in Opposition 1-2; App. 8-9.2 In conceding that he was deportable, respondent forwent a hearing at which he would have been entitled to raise any nonfrivolous argument available to demonstrate that he was not properly included in a mandatory detention category. See 8 CFR § 3.19(h)(2)(ii) (2002); Matter of Joseph, 22 1. & N. Dec. 799 (BIA 1999).3 Respondent instead filed a habeas corpus action pursuant to 28 U. S. C. § 2241 in the United States District Court for the Northern District of California challenging the constitutionality of § 1226(c) itself. App. to Pet. for Cert. 2a. He argued that his detention under § 1226(c) violated due process because the INS had made no determination that he posed either a danger to society or a flight risk. Id., at 31a, 33a. The District Court agreed with respondent that § 1226(c)'s requirement of mandatory detention for certain criminal aliens was unconstitutional. Kim v. Schiltgen, No. C 99- 2 As respondent explained: "The statute requires the [INS] to take into custody any alien who 'is deportable' from the United States based on having been convicted of any of a wide range of crimes .... [Respondent] does not challenge INS's authority to take him into custody after he finished serving his criminal sentence. His challenge is solely to Section 1226(c)'s absolute prohibition on his release from detention, even where, as here, the INS never asserted that he posed a danger or significant flight risk." Brief in Opposition 1-2. 3This "Joseph hearing" is immediately provided to a detainee who claims that he is not covered by § 1226(c). Tr. of Oral Arg. 22. At the hearing, the detainee may avoid mandatory detention by demonstrating that he is not an alien, was not convicted of the predicate crime, or that the INS is otherwise substantially unlikely to establish that he is in fact subject to mandatory detention. See 8 CFR § 3. 19(h)(2)(ii) (2002); Matter of Joseph, 22 1. & N. Dec. 799 (BIA 1999). Because respondent conceded that he was deportable because of a conviction that triggers § 1226(c) and thus sought no Joseph hearing, we have no occasion to review the adequacy of Joseph hearings generally in screening out those who are improperly detained pursuant to § 1226(c). Such individualized review is available, however, and JUSTICE SOUTER is mistaken if he means to suggest otherwise. See post, at 555-556, 558 (opinion concurring in part and dissenting in part) (hereinafter dissent). 515 2257 SI (Aug. 11, 1999), App. to Pet. for Cert. 31a-51a. The District Court therefore granted respondent's petition subject to the INS' prompt undertaking of an individualized bond hearing to determine whether respondent posed either a flight risk or a danger to the community. Id., at 50a. Following that decision, the District Director of the INS released respondent on $5,000 bond. The Court of Appeals for the Ninth Circuit affirmed. Kim v. Ziglar, 276 F.3d 523 (2002). That court held that § 1226(c) violates substantive due process as applied to respondent because he is a permanent resident alien. Id., at 528. It noted that permanent resident aliens constitute the most favored category of aliens and that they have the right to reside permanently in the United States, to work here, and to apply for citizenship. Ibid. The court recognized and rejected the Government's two principal justifications for mandatory detention under § 1226(c): (1) ensuring the presence of criminal aliens at their removal proceedings; and (2) protecting the public from dangerous criminal aliens. The Court of Appeals discounted the first justification because it found that not all aliens detained pursuant to § 1226(c) would ultimately be deported. Id., at 531-532. And it discounted the second justification on the grounds that the aggravated felony classification triggering respondent's detention included crimes that the court did not consider "egregious" or otherwise sufficiently dangerous to the public to necessitate mandatory detention. Id., at 532-533. Respondent's crimes of first-degree burglary (burglary of an inhabited dwelling) and petty theft, for instance, the Ninth Circuit dismissed as "rather ordinary crimes." Id., at 538. Relying upon our recent decision in Zadvydas v. Davis, 533 U. S. 678 (2001), the Court of Appeals concluded that the INS had not provided a justification "for no-bail civil detention sufficient to overcome a lawful permanent resident alien's liberty interest." 276 F. 3d, at 535. 516 Three other Courts of Appeals have reached the same conclusion. See Patel v. Zemski, 275 F.3d 299 (CA3 2001); Welch v. Ashcroft, 293 F.3d 213 (CA4 2002); Hoang v. Comfort, 282 F.3d 1247 (CAlO 2002). The Seventh Circuit, however, rejected a constitutional challenge to § 1226(c) by a permanent resident alien. Parra v. Perryman, 172 F.3d 954 (1999). We granted certiorari to resolve this conflict, see 536 U. S. 956 (2002), and now reverse. I We address first the argument that 8 U. S. C. § 1226(e) deprives us of jurisdiction to hear this case. See Florida v. Thomas, 532 U. S. 774 , 777 (2001) ("Although the parties did not raise the issue in their briefs on the merits, we must first consider whether we have jurisdiction to decide this case"). An amicus argues, and the concurring opinion agrees, that § 1226(e) deprives the federal courts of jurisdiction to grant habeas relief to aliens challenging their detention under § 1226(c). See Brief for Washington Legal Foundation et al. as Amici Curiae. Section 1226(e) states: "(e) Judicial review "The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole." The amicus argues that respondent is contesting a "decision by the Attorney General" to detain him under § 1226(c), and that, accordingly, no court may set aside that action. Brief for Washington Legal Foundation et al. as Amici Curiae 7-8. But respondent does not challenge a "discretionary judgment" by the Attorney General or a "decision" that the Attorney General has made regarding his detention or release. 517 Rather, respondent challenges the statutory framework that permits his detention without bail. Parra v. Perryman, supra, at 957 ("Section 1226(e) likewise deals with challenges to operational decisions, rather than to the legislation establishing the framework for those decisions"). This Court has held that "where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear." Webster v. Doe, 486 U. S. 592 , 603 (1988); see also Johnson v. Robison, 415 U. S. 361 , 367 (1974) (holding that provision barring review of "'decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans'" did not bar constitutional challenge (emphasis deleted)). And, where a provision precluding review is claimed to bar habeas review, the Court has required a particularly clear statement that such is Congress' intent. See INS v. St. Cyr, 533 U. S. 289 , 308-309 (2001) (holding that title of provision, "Elimination of Custody Review by Habeas Corpus," along with broad statement of intent to preclude review, was not sufficient to bar review of habeas corpus petitions); see also id., at 298 (citing cases refusing to find bar to habeas review where there was no specific mention of the Court's authority to hear habeas petitions); id., at 327 (SCALIA, J., dissenting) (arguing that opinion established "a superclear statement, 'magic words' requirement for the congressional expression of" an intent to preclude habeas review). Section 1226(e) contains no explicit provision barring habeas review, and we think that its clear text does not bar respondent's constitutional challenge to the legislation authorizing his detention without bail. II Having determined that the federal courts have jurisdiction to review a constitutional challenge to § 1226(c), we proceed to review respondent's claim. Section 1226(c) man- 518 dates detention during removal proceedings for a limited class of deportable aliens-including those convicted of an aggravated felony. Congress adopted this provision against a backdrop of wholesale failure by the INS to deal with increasing rates of criminal activity by aliens. See, e. g., Criminal Aliens in the United States: Hearings before the Permanent Subcommittee on Investigations of the Senate Committee on Governmental Affairs, 103d Cong., 1st Sess. (1993); S. Rep. No. 104-48, p. 1 (1995) (hereinafter S. Rep. 104-48) (confinement of criminal aliens alone cost $724 million in 1990). Criminal aliens were the fastest growing segment of the federal prison population, already constituting roughly 25% of all federal prisoners, and they formed a rapidly rising share of state prison populations as well. Id., at 6-9. Congress' investigations showed, however, that the INS could not even identify most deportable aliens, much less locate them and remove them from the country. Id., at 1. One study showed that, at the then-current rate of deportation, it would take 23 years to remove every criminal alien already subject to deportation. Id., at 5. Making matters worse, criminal aliens who were deported swiftly reentered the country illegally in great numbers. Id., at 3. The INS' near-total inability to remove deportable criminal aliens imposed more than a monetary cost on the Nation. First, as Congress explained, "[a]liens who enter or remain in the United States in violation of our law are effectively taking immigration opportunities that might otherwise be extended to others." S. Rep. No. 104-249, p. 7 (1996). Second, deportable criminal aliens who remained in the United States often committed more crimes before being removed. One 1986 study showed that, after criminal aliens were identified as deportable, 77% were arrested at least once more and 45%-nearly half-were arrested multiple times before their deportation proceedings even began. Hearing on H. R. 3333 before the Subcommittee on Immigration, Refugees, and International Law of the House Committee on the 519 Judiciary, 101st Cong., 1st Sess., 54, 52 (1989) (hereinafter 1989 House Hearing); see also Zadvydas, 533 U. S., at 713714 (KENNEDY, J., dissenting) (discussing high rates of recidivism for released criminal aliens). Congress also had before it evidence that one of the major causes of the INS' failure to remove deportable criminal aliens was the agency's failure to detain those aliens during their deportation proceedings. See Department of Justice, Office of the Inspector General, Immigration and N aturalization Service, Deportation of Aliens After Final Orders Have Been Issued, Rep. No. 1-96-03 (Mar. 1996), App. 46 (hereinafter Inspection Report) ("Detention is key to effective deportation"); see also H. R. Rep. No. 104-469, p. 123 (1995). The Attorney General at the time had broad discretion to conduct individualized bond hearings and to release criminal aliens from custody during their removal proceedings when those aliens were determined not to present an excessive flight risk or threat to society. See 8 U. S. C. § 1252(a) (1982 ed.). Despite this discretion to conduct bond hearings, however, in practice the INS faced severe limitations on funding and detention space, which considerations affected its release determinations. S. Rep. 104-48, at 23 ("[R]elease determinations are made by the INS in large part, according to the number of beds available in a particular region"); see also Reply Brief for Petitioners 9. Once released, more than 20% of deportable criminal aliens failed to appear for their removal hearings. See S. Rep. 104-48, at 2; see also Brief for Petitioners 19.4 The 4 Although the Attorney General had authority to release these aliens on bond, it is not clear that all of the aliens released were in fact given individualized bond hearings. See Brief for Petitioners 19 ("[M]ore than 20% of criminal aliens who were released on bond or otherwise not kept in custody throughout their deportation proceedings failed to appear for those proceedings" (emphasis added)), citing S. Rep. 104-48, at 2. The evidence does suggest, however, that many deportable criminal aliens in this "released criminal aliens" sample received such determinations. See 520 dissent disputes that statistic, post, at 562-564 (opinion of SOUTER, J.), but goes on to praise a subsequent study conducted by the Vera Institute of Justice that more than confirms it. Post, at 565-566. As the dissent explains, the Vera study found that "77% of those [deportable criminal aliens] released on bond" showed up for their removal proceedings. Post, at 565. This finding-that one out of four criminal aliens released on bond absconded prior to the completion of his removal proceedings-is even more striking than the one-in-five flight rate reflected in the evidence before Congress when it adopted § 1226(c).5 The Vera Institute study strongly supports Congress' concern that, even with individualized screening, releasing deportable criminal aliens on bond would lead to an unacceptable rate of flight. Congress amended the immigration laws several times toward the end of the 1980's. In 1988, Congress limited Brief for Petitioners 19 (noting that, for aliens not evaluated for flight risk at a bond hearing, the prehearing skip rate doubled to 40%). 5 The dissent also claims that the study demonstrated that "92% of criminal aliens ... who were released under supervisory conditions attended all of their hearings." Post, at 565 (opinion of SOUTER, J.). The study did manage to raise the appearance rate for criminal aliens through a supervision program known as the Appearance Assistance Program (AAP). But the AAP study is of limited value. First, the study included only 16 aliens who, like respondent, were released from prison and charged with being deportable on the basis of an aggravated felony. 1 Vera Institute of Justice, Testing Community Supervision for the INS: An Evaluation of the Appearance Assistance Program, pp. 33-34, 36 (Aug. 1, 2000). In addition, all 127 aliens in the AAP study were admitted into the study group only after being screened for "strength of family and community ties, appearance rates in prior legal proceedings, and eligibility to apply for a legal remedy." Id., at 13; see also id., at 37. Following this selection process, "supervision staff were in frequent, ongoing communication with participants," id., at 14, through, among other things, required reporting sessions, periodic home visits, and assistance in retaining legal representation, id., at 41-42. And, in any event, respondent seeks an individualized bond hearing, not "community supervision." The dissent's claim that criminal aliens released under supervisory conditions are likely to attend their hearings, post, at 565, therefore, is totally beside the point. 521 the Attorney General's discretion over custody determinations with respect to deportable aliens who had been convicted of aggravated felonies. See Pub. L. 100-690, Tit. VII, § 7343(a), 102 Stat. 4470. Then, in 1990, Congress broadened the definition of "aggravated felony," subjecting more criminal aliens to mandatory detention. See Pub. L. 101-649, Tit. V, § 501(a), 104 Stat. 5048. At the same time, however, Congress added a new provision, 8 U. S. C. § 1252(a)(2)(B) (1988 ed., Supp. II), authorizing the Attorney General to release permanent resident aliens during their deportation proceedings where such aliens were found not to constitute a flight risk or threat to the community. See Pub. L. 101-649, Tit. V, § 504(a)(5), 104 Stat. 5049. During the same period in which Congress was making incremental changes to the immigration laws, it was also considering wholesale reform of those laws. Some studies presented to Congress suggested that detention of criminal aliens during their removal proceedings might be the best way to ensure their successful removal from this country. See, e. g., 1989 House Hearing 75; Inspection Report, App. 46; S. Rep. 104-48, at 32 ("Congress should consider requiring that all aggravated felons be detained pending deportation. Such a step may be necessary because of the high rate of no-shows for those criminal aliens released on bond"). It was following those Reports that Congress enacted 8 U. S. C. § 1226, requiring the Attorney General to detain a subset of deportable criminal aliens pending a determination of their removability. "In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens." Mathews v. Diaz, 426 U. S. 67 , 79-80 (1976). The dissent seeks to avoid this fundamental premise of immigration law by repeatedly referring to it as "dictum." Post, at 547-549, n. 9 (opinion of SOUTER, J.). The Court in Mathews, however, made the statement the dissent now seeks to avoid in reliance on clear 522 precedent establishing that "'any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.'" 426 U. S., at 81, n. 17 (quoting Harisiades v. Shaughnessy, 342 U. S. 580 , 588-589 (1952)). And, since Mathews, this Court has firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens. See, e. g., Zadvydas, 533 U. S., at 718 (KENNEDY, J., dissenting) ("The liberty rights of the aliens before us here are subject to limitations and conditions not applicable to citizens"); Reno v. Flores, 507 U. S. 292 , 305-306 (1993) ("Thus, 'in the exercise of its broad power over immigration and naturalization, "Congress regularly makes rules that would be unacceptable if applied to citizens"'" (quoting Fiallo v. Bell, 430 U. S. 787 , 792 (1977), in turn quoting Mathews, supra, at 79-80)); United States v. Verdugo-Urquidez, 494 U. S. 259 , 273 (1990). In his habeas corpus challenge, respondent did not contest Congress' general authority to remove criminal aliens from the United States. Nor did he argue that he himself was not "deportable" within the meaning of § 1226(c).6 Rather, 6 Respondent's concession on this score is relevant for two reasons: First, because of the concession, respondent by his own choice did not receive one of the procedural protections otherwise provided to aliens detained under § 1226(c). And, second, because of the concession we do not reach a contrary argument raised by respondent for the first time in his brief on the merits in this Court. Specifically, in his brief on the merits, respondent suggests that he might not be subject to detention under § 1226(c) after all because his 1997 conviction for petty theft with priors might not qualify as an aggravated felony under recent Ninth Circuit precedent. Respondent now states that he intends to argue at his next removal hearing that "his 1997 conviction does not constitute an aggravated felony ... and his 1996 conviction [for first-degree burglary] does not constitute either an aggravated felony or a crime involving moral turpitude." Brief for Respondent 11-12. As respondent has conceded that he is deportable for purposes of his habeas corpus challenge to § 1226(c) at all previous stages of this proceeding, see n. 3, supra, we decide the case on that basis. 523 respondent argued that the Government may not, consistent with the Due Process Clause of the Fifth Amendment, detain him for the brief period necessary for his removal proceedings. The dissent, after an initial detour on the issue of respondent's concession, see post, at 541-543 (opinion of SouTER, J.), ultimately acknowledges the real issue in this case. Post, at 555-556, n. 11; see also Brief in Opposition 1-2 (explaining that respondent's "challenge is solely to Section 1226(c)'s absolute prohibition on his release from detention"). "It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings." Flores, supra, at 306. At the same time, however, this Court has recognized detention during deportation proceedings as a constitutionally valid aspect of the deportation process. As we said more than a century ago, deportation proceedings "would be vain if those accused could not be held in custody pending the inquiry into their true character." Wong Wing v. United States, 163 U. S. 228 , 235 (1896); see also Flores, supra, at 305-306; Zadvydas, 533 U. S., at 697 (distinguishing constitutionally questioned detention there at issue from "detention pending a determination of removability"); id., at 711 (KENNEDY, J., dissenting) ("Congress' power to detain aliens in connection with removal or exclusion ... is part of the Legislature's considerable authority over immigration matters").7 In Carlson v. Landon, 342 U. S. 524 (1952), the Court considered a challenge to the detention of aliens who were deportable because of their participation in Communist ac- Lest there be any confusion, we emphasize that by conceding he is "de portable" and, hence, subject to mandatory detention under § 1226(c), respondent did not concede that he will ultimately be deported. As the dissent notes, respondent has applied for withholding of removal. Post, at 541 (opinion of SOUTER, J.). 7 In fact, prior to 1907 there was no provision permitting bail for any aliens during the pendency of their deportation proceedings. See §20, 34 Stat. 905. 524 tivities. The detained aliens did not deny that they were members of the Communist Party or that they were therefore deportable. Id., at 530. Instead, like respondent in the present case, they challenged their detention on the grounds that there had been no finding that they were unlikely to appear for their deportation proceedings when ordered to do so. Id., at 531-532; see also Brief for Petitioner in Carlson v. Landon, O. T. 1951, No. 35, p. 12 (arguing that legislative determinations could not justify "depriving [an alien] of his liberty without facts personal to the individual"). Although the Attorney General ostensibly had discretion to release detained Communist aliens on bond, the INS had adopted a policy of refusing to grant bail to those aliens in light of what Justice Frankfurter viewed as the mistaken "conception that Congress had made [alien Communists] in effect unbailable." 342 U. S., at 559, 568 (dissenting opinion). The Court rejected the aliens' claims that they were entitled to be released from detention if they did not pose a flight risk, explaining "[d]etention is necessarily a part of this deportation procedure." Id., at 538; see also id., at 535. The Court noted that Congress had chosen to make such aliens deportable based on its "understanding of [Communists'] attitude toward the use of force and violence ... to accomplish their political aims." Id., at 541. And it concluded that the INS could deny bail to the detainees "by reference to the legislative scheme" even without any finding of flight risk. Id., at 543; see also id., at 550 (Black, J., dissenting) ("Denial [of bail] was not on the ground that if released [the aliens] might try to evade obedience to possible deportation orders"); id., at 551, and n. 6. The dissent argues that, even though the aliens in Carlson were not flight risks, "individualized findings of dangerousness were made" as to each of the aliens. Post, at 573 (opinion of SOUTER, J.). The dissent, again, is mistaken. The aliens in Carlson had not been found individually dangerous. 525 The only evidence against them was their membership in the Communist Party and "a degree ... of participation in Communist activities." 342 U. S., at 541. There was no "individualized findin[gJ" of likely future dangerousness as to any of the aliens and, in at least one case, there was a specific finding of nondangerousness.8 The Court nonetheless concluded that the denial of bail was permissible "by reference to the legislative scheme to eradicate the evils of Communist activity." Id., at 543.9 8 See Carlson v. Landon, 342 U. S., at 549 (Black, J., dissenting) (noting that, in at least one case, the alien involved had been found" 'not likely to engage in any subversive activities'" (emphasis added)); see also id., at 550, n. 5 (quoting the District Judge's finding in case No. 35 that '''I don't know whether it is true ... that their release is dangerous to the security of the United States' "); id., at 552 ("[T]he bureau agent is not required to prove that a person he throws in jail is ... 'dangerous'" (emphasis added)); see also id., at 567 (Frankfurter, J., dissenting) ("[T]he Attorney General ... did not deny bail from an individualized estimate of 'the danger to the public safety of [each person's] presence within the community'" (emphasis added)). 9 Apart from its error with respect to the dangerousness determination, the dissent attempts to distinguish Carlson from the present case by arguing that the aliens in Carlson had engaged in "'personal activity'" in support of a political party Congress considered "'a menace to the public.' " Post, at 569 (opinion of SOUTER, J.). In suggesting that this is a distinction, the dissent ignores the "personal activity" that aliens like respondent have undertaken in committing the crimes that subject them to detention in the first instance-personal activity that has been determined with far greater procedural protections than any finding of "active membership" in the Communist Party involved in Carlson. See 342 U. S., at 530 ("[T]he Director made allegation[s], supported by affidavits, that the Service's dossier of each petitioner contained evidence indicating to him that each was at the time of arrest a member of the Communist Party of the United States and had since 1930 participated ... in the Party's indoctrination of others"). In the present case, respondent became "deportable" under § 1226(c) only following criminal convictions that were secured following full procedural protections. These convictions, moreover, reflect "personal activity" that Congress considered relevant to future dangerousness. Cf. Zadvydas v. Davis, 533 U. S. 678 , 714 (2001) (KENNEDY, J., dissenting) (noting that "a criminal record accumulated by an 526 In Reno v. Flores, 507 U. S. 292 (1993), the Court considered another due process challenge to detention during deportation proceedings. The due process challenge there was brought by a class of alien juveniles. The INS had arrested them and was holding them in custody pending their deportation hearings. The aliens challenged the INS' policy of releasing detained alien juveniles only into the care of their parents, legal guardians, or certain other adult relatives. See, e. g., id., at 297 (citing Detention and Release of Juveniles, 53 Fed. Reg. 17449 (1988) (codified as to deportation at 8 CFR § 242.24 (1992))). The aliens argued that the policy improperly relied "upon a 'blanket' presumption of the unsuitability of custodians other than parents, close relatives, and guardians" to care for the detained juvenile aliens. 507 U. S., at 313. In rejecting this argument, the Court emphasized that "reasonable presumptions and generic rules," even when made by the INS rather than Congress, are not necessarily impermissible exercises of Congress' traditional power to legislate with respect to aliens. Ibid.; see also id., at 313-314 ("In the case of each detained alien juvenile, the INS makes those determinations that are specific to the individual and necessary to accurate application of the regulation .... The particularization and individuation need go no further than this"). Thus, as with the prior challenges to detention during deportation proceedings, the Court in Flores rejected the due process challenge and upheld the constitutionality of the detention. Despite this Court's longstanding view that the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings, respondent argues that the narrow detention policy reflected in 8 U. S. C. § 1226(c) violates due process. Respondent, like admitted alien" is a good indicator of future danger, and that "[a]ny suggestion that aliens who have completed prison terms no longer present a danger simply does not accord with the reality that a significant risk may still exist"). 527 the four Courts of Appeals that have held § 1226(c) to be unconstitutional, relies heavily upon our recent opinion in Zadvydas v. Davis, 533 U. S. 678 (2001). In Zadvydas, the Court considered a due process challenge to detention of aliens under 8 U. S. C. § 1231 (1994 ed., Supp. V), which governs detention following a final order of removal. Section 1231(a)(6) provides, among other things, that when an alien who has been ordered removed is not in fact removed during the 90-day statutory "removal period," that alien "may be detained beyond the removal period" in the discretion of the Attorney General. The Court in Zadvydas read § 1231 to authorize continued detention of an alien following the 90-day removal period for only such time as is reasonably necessary to secure the alien's removal. 533 U. S., at 699. But Zadvydas is materially different from the present case in two respects. First, in Zadvydas, the aliens challenging their detention following final orders of deportation were ones for whom removal was "no longer practically attainable." Id., at 690. The Court thus held that the detention there did not serve its purported immigration purpose. Ibid. In so holding, the Court rejected the Government's claim that, by detaining the aliens involved, it could prevent them from fleeing prior to their removal. The Court observed that where, as there, "detention's goal is no longer practically attainable, detention no longer bears a reasonable relation to the purpose for which the individual was committed." Ibid. (internal quotation marks and citation omitted).lO In the present case, the statutory provision at issue governs detention of deportable criminal aliens pending their 10 The dissent denies this point, insisting that the detention at issue in Zadvydas actually did bear a reasonable relation to its immigration purpose. Post, at 561 (opinion of SOUTER, J.) ("[T]he statute in Zadvydas ... served the purpose of preventing aliens ... from fleeing prior to actual deportation"). 528 removal proceedings. Such detention necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed. Respondent disagrees, arguing that there is no evidence that mandatory detention is necessary because the Government has never shown that individualized bond hearings would be ineffective. See Brief for Respondent 14. But as discussed above, see supra, at 519-520, in adopting § 1226(c), Congress had before it evidence suggesting that permitting discretionary release of aliens pending their removal hearings would lead to large numbers of deportable criminal aliens skipping their hearings and remaining at large in the United States unlawfully. Respondent argues that these statistics are irrelevant and do not demonstrate that individualized bond hearings "are ineffective or burdensome." Brief for Respondent 33-40. It is of course true that when Congress enacted § 1226, individualized bail determinations had not been tested under optimal conditions, or tested in all their possible permutations. But when the Government deals with deportable aliens, the Due Process Clause does not require it to employ the least burdensome means to accomplish its goal. The evidence Congress had before it certainly supports the approach it selected even if other, hypothetical studies might have suggested different courses of action. Cf., e. g., Los Angeles v. Alameda Books, Inc., 535 U. S. 425 , 436-437 (2002); Flores, supra, at 315 ("It may well be that other policies would be even better, but 'we are [not] a legislature charged with formulating public policy''' (quoting Schall v. Martin, 467 U. S. 253, 281 (1984))). Zadvydas is materially different from the present case in a second respect as well. While the period of detention at issue in Zadvydas was "indefinite" and "potentially permanent," 533 U. S., at 690-691, the detention here is of a much shorter duration. 529 Zadvydas distinguished the statutory prOVlSlon it was there considering from § 1226 on these very grounds, noting that "post-removal-period detention, unlike detention pending a determination of removability ... , has no obvious termination point." Id., at 697 (emphasis added). Under §1226(c), not only does detention have a definite termination point, in the majority of cases it lasts for less than the 90 days we considered presumptively valid in ZadvydasY The Executive Office for Immigration Review has calculated that, in 85% of the cases in which aliens are detained pursuant to § 1226(c), removal proceedings are completed in an average time of 47 days and a median of 30 days. Brief for Petitioners 39-40. In the remaining 15% of cases, in which the alien appeals the decision of the immigration judge to the Board of Immigration Appeals, appeal takes an average of four months, with a median time that is slightly shorter. Id., at 40.12 These statistics do not include the many cases in which removal proceedings are completed while the alien is still serving time for the underlying conviction. Id., at 40, 11 The dissent concedes that "[t]he scheme considered in Zadvydas did not provide review immediately .... [C]ustody review hearings usually occurred within three months of a transfer to a postorder detention unit." Post, at 555, n. 11 (opinion of SOUTER, J.). Yet, in discussing the present case, the dissent insists that "the due process requirement of an individualized finding of necessity applies to detention periods shorter than" respondent's. Post, at 568, n. 24 (citing Schall v. Martin, 467 U. S. 253 , 270, 276-277 (1984), in which "the detainee was entitled to a hearing" when threatened with "a maximum detention period of 17 days"). The dissent makes no attempt to reconcile its suggestion that aliens are entitled to an immediate hearing with the holding in Zadvydas permitting aliens to be detained for several months prior to such a hearing. 12 The very limited time of the detention at stake under § 1226(c) is not missed by the dissent. See post, at 568 (opinion of SOUTER, J.) ("Successful challenges often require several months"); ibid. (considering "[t]he potential for several months [worth] of confinement"); but see post, at 549 ("potentially lengthy detention"). 530 n. 17.13 In those cases, the aliens involved are never subjected to mandatory detention at all. In sum, the detention at stake under § 1226(c) lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal.14 Respondent was detained for some- 13 Congress has directed the INS to identify and track deportable criminal aliens while they are still in the criminal justice system, and to complete removal proceedings against them as promptly as possible. See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, §§432, 438(a), 110 Stat. 1273-1276; Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, §§ 326, 329, 110 Stat. 3009-630 to 3009-631 (codified at 8 U. S. C. § 1228). The INS therefore established the Institutional Hearing Program (IHP) (subsequently subsumed under the "Institutional Removal Program"). By 1997, the General Accounting Office found that nearly half of all deportable criminal aliens' cases were completed through the IHP prior to the aliens' release from prison. See General Accounting Office, Report to the Chairman, Subcommittee on Immigration and Claims of the House Committee on the Judiciary, INS' Efforts to Remove Imprisoned Aliens Continue to Need Improvement 10, Fig. 1 (Oct. 1998). The report urged, however, that the INS needed to improve its operations in order to complete removal proceedings against all deportable criminal aliens before their release. Id., at 13. Should this come to pass, of course, § 1226(c) and the temporary detention it mandates would be rendered obsolete. 14 Prior to the enactment of § 1226(c), when the vast majority of deportable criminal aliens were not detained during their deportation proceedings, many filed frivolous appeals in order to delay their deportation. See S. Rep. 104-48, at 2 ("Delays can earn criminal aliens more than work permits and wages-if they delay long enough they may even obtain U. S. citizenship"). Cf. Zadvydas, 533 U. S., at 713 (KENNEDY, J., dissenting) ("[C]ourt ordered release cannot help but encourage dilatory and obstructive tactics by aliens"). Respondent contends that the length of detention required to appeal may deter aliens from exercising their right to do so. Brief for Respondent 32. As we have explained before, however, "the legal system ... is replete with situations requiring the making of difficult judgments as to which course to follow," and, even in the criminal context, there is no constitutional prohibition against requiring parties to make such choices. McGautha v. California, 402 U. S. 183 ,213 (1971) (internal quotation marks omitted); accord, Chaffin v. Stynchcombe, 412 U. S. 17 , 30-31 (1973). 531 what longer than the average-spending six months in INS custody prior to the District Court's order granting habeas relief, but respondent himself had requested a continuance of his removal hearing. 15 For the reasons set forth above, respondent's claim must fail. Detention during removal proceedings is a constitutionally permissible part of that process. See, e. g., Wong Wing, 163 U. S., at 235 ("We think it clear that detention, or temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens would be valid"); Carlson v. Landon, 342 U. S. 524 (1952); Reno v. Flores, 507 U. S. 292 (1993). The INS detention of respondent, a criminal alien who has conceded that he is deportable, for the limited period of his removal proceedings, is governed by these cases. The judgment of the Court of Appeals is Reversed. JUSTICE KENNEDY, concurring. While the justification for 8 U. S. C. § 1226(c) is based upon the Government's concerns over the risks of flight and danger to the community, ante, at 518-521, the ultimate purpose behind the detention is premised upon the alien's deportability. As a consequence, due process requires individualized procedures to ensure there is at least some merit to the Immigration and Naturalization Service's (INS) charge and, therefore, sufficient justification to detain a lawful permanent resident alien pending a more formal hearing. See Zadvydas v. Davis, 533 U. S. 678 , 690 (2001) ("[W]here detention's goal is no longer practically attainable, detention no longer bears a reasonable relation to the purpose for which 15 Respondent was held in custody for three months before filing his habeas petition. His removal hearing was scheduled to occur two months later, but respondent requested and received a continuance to obtain documents relevant to his withholding application. See Brief for Respondent 9, n. 12. 532 the individual was committed" (internal quotation marks and brackets omitted)); id., at 718 (KENNEDY, J., dissenting) ("Liberty under the Due Process Clause includes protection against unlawful or arbitrary personal restraint or detention"). If the Government cannot satisfy this minimal, threshold burden, then the permissibility of continued detention pending deportation proceedings turns solely upon the alien's ability to satisfy the ordinary bond proceduresnamely, whether if released the alien would pose a risk of flight or a danger to the community. Id., at 721 (KENNEDY, J., dissenting). As the Court notes, these procedures were apparently available to respondent in this case. Respondent was entitled to a hearing in which he could have "raise[d] any nonfrivolous argument available to demonstrate that he was not properly included in a mandatory detention category." Ante, at 514, and n. 3 (citing 8 CFR § 3.19(h)(2)(ii) (2002); Matter of Joseph, 22 1. & N. Dec. 799 (BIA 1999)). Had he prevailed in such a proceeding, the Immigration Judge then would have had to determine if respondent "could be considered ... for release under the general bond provisions" of § 1226(a). Id., at 809. Respondent, however, did not seek relief under these procedures, and the Court had no occasion here to determine their adequacy. Ante, at 514, n. 3. For similar reasons, since the Due Process Clause prohibits arbitrary deprivations of liberty, a lawful permanent resident alien such as respondent could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified. Zadvydas, 533 U. S., at 684-686; id., at 721 (KENNEDY, J., dissenting) ("[A]liens are entitled to be free from detention that is arbitrary or capricious"). Were there to be an unreasonable delay by the INS in pursuing and completing deportation proceedings, it could become necessary then to inquire whether the detention is not to facilitate deportation, or to protect against risk of flight or dangerous- 533 ness, but to incarcerate for other reasons. That is not a proper inference, however, either from the statutory scheme itself or from the circumstances of this case. The Court's careful opinion is consistent with these premises, and I join it in full. JUSTICE O'CONNOR, with whom JUSTICE SCALIA and JusTICE THOMAS join, concurring in part and concurring in the judgment. I join all but Part I of the Court's opinion because, a majority having determined there is jurisdiction, I agree with the Court's resolution of respondent's challenge on the merits. I cannot join Part I because I believe that 8 U. S. C. § 1226(e) unequivocally deprives federal courts of jurisdiction to set aside "any action or decision" by the Attorney General in detaining criminal aliens under § 1226(c) while removal proceedings are ongoing. That is precisely the nature of the action before us. I I begin with the text of the statute: "The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole." § 1226(e) (emphasis added). There is no dispute that after respondent's release from prison in 1999, the Attorney General detained him "under this section," i. e., under § 1226. And, the action of which respondent complains is one "regarding the detention or release of a[n] alien or the grant, revocation, or denial of bond or parole." § 1226(e). In my view, the only plausible reading of § 1226(e) is that Congress intended to prohibit federal courts from "set[ting] aside" the Attorney General's decision 534 Opinion of O'CONNOR, J. to deem a criminal alien such as respondent ineligible for release during the limited duration of his or her removal proceedings. I recognize both the "strong presumption in favor of judicial review of administrative action" and our "longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction." INS v. St. Cyr, 533 U. S. 289 , 298 (2001). I also acknowledge that Congress will not be deemed to have repealed habeas jurisdiction in the absence of a specific and unambiguous statutory directive to that effect. See id., at 312-313; Ex parte Yerger, 8 Wall. 85, 105 (1869). Here, however, the signal sent by Congress in enacting § 1226(e) could not be clearer: "No court may set aside any action or decision ... regarding the detention or release of any alien." (Emphasis added.) There is simply no reasonable way to read this language other than as precluding all review, including habeas review, of the Attorney General's actions or decisions to detain criminal aliens pursuant to § 1226(c). In St. Cyr, the Court held that certain provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) do not strip federal courts of their jurisdiction to review an alien's habeas claim that he or she is eligible for a waiver of deportation. 533 U. S., at 312. I dissented in that case, and continue to believe it was wrongly decided. Nothing in St. Cyr, however, requires that we ignore the plain language and clear meaning of § 1226(e). In St. Cyr, the Court stressed the significance of Congress' use of the term "judicial review" in each of the jurisdictionallimiting provisions at issue. In concluding that Congress had not intended to limit habeas jurisdiction by limiting "judicial review," the Court reasoned as follows: "The term 'judicial review' or 'jurisdiction to review' is the focus of each of these three provisions. In the im- 535 migration context, 'judicial review' and 'habeas corpus' have historically distinct meanings. See Heikkila v. Barber, 345 U. S. 229 (1953). In Heikkila, the Court concluded that the finality provisions at issue 'preclud[ed] judicial review' to the maximum extent possible under the Constitution, and thus concluded that the [Administrative Procedure Act] was inapplicable. Id., at 235. Nevertheless, the Court reaffirmed the right to habeas corpus. Ibid. Noting that the limited role played by the courts in habeas corpus proceedings was far narrower than the judicial review authorized by the AP A, the Court concluded that 'it is the scope of inquiry on habeas corpus that differentiates' habeas review from 'judicial review.'" Id., at 311-312. In this case, however, § 1226(e) does not mention any limitations on "judicial review." To be sure, the first sentence of § 1226(e) precludes "review" of the Attorney General's "discretionary judgment[s]" to detain aliens under § 1226(c). But the second sentence is not so limited, and states unequivocally that "[n]o court may set aside any action or decision" to detain an alien under § 1226(c). It cannot seriously be maintained that the second sentence employs a term of art such that "no court" does not really mean "no court," or that a decision of the Attorney General may not be "set aside" in actions filed under the Immigration and Naturalization Act but may be set aside on habeas review. Congress' use of the term "Judicial review" as the title of § 1226(e) does not compel a different conclusion. As the Court stated in St. Cyr, "a title alone is not controlling," id., at 308, because the title of a statute has no power to give what the text of the statute takes away. Where as here the statutory text is clear, "'the title of a statute ... cannot limit the plain meaning of the text.'" Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206 , 212 (1998) (quoting Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519 , 528529 (1947)). 536 Opinion of O'CONNOR, J. The Court also focused in St. Cyr on the absence of any language in the relevant statutory provisions making explicit reference to habeas review under 28 U. S. C. § 2241. See 533 U. S., at 313, n. 36. This statutory silence spoke volumes, the Court reasoned, in light of the "historic use of § 2241 jurisdiction as a means of reviewing deportation and exclusion orders," ibid. In contrast, there is no analogous history of routine reliance on habeas jurisdiction to challenge the detention of aliens without bail pending the conclusion of removal proceedings. We have entertained such challenges only twice, and neither was successful on the merits. See Reno v. Flores, 507 U. S. 292 (1993); Carlson v. Landon, 342 U. S. 524 (1952). See also Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 1067, n. 120 (1998) (distinguishing detention pursuant to a final order of removal from the interlocutory detention at issue here). Congress' failure to mention § 2241 in this context therefore lacks the significance that the Court accorded Congress' silence on the issue in St. Cyr. In sum, nothing in St. Cyr requires us to interpret 8 U. S. C. § 1226(e) to mean anything other than what its plain language says. I recognize that the two Courts of Appeals that have considered the issue have held that § 1226(e) does not preclude habeas claims such as respondent's. See Patel v. Zemski, 275 F.3d 299 (CA3 2001); Parra v. Perryman, 172 F. 3d 954 (CA7 1999). In Parra, the Seventh Circuit held that § 1226(e) does not bar "challenges to § 1226(c) itself, as opposed to decisions implementing that subsection." Id., at 957. Though the Court's opinion today relies heavily on this distinction, I see no basis for importing it into the plain language of the statute. The Seventh Circuit sought support from our decision in Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471 (1999) (AADC), but our holding there supports my reading of § 1226(e). In AADC, the Court construed a statute that sharply limits review of claims "arising from the 537 decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this [Act]." 8 U. S. C. § 1252(g) (1994 ed., Supp. III). The Court concluded that this provision imposes jurisdictional limits only on claims addressing one of the three "'decision[s] or action[s]''' specifically enumerated in the statute. AADC, supra, at 482. Nowhere in AADC did the Court suggest, however, that the statute's jurisdictional limits might not apply depending on the particular grounds raised by an alien for challenging the Attorney General's decisions or actions in these three areas. AADC therefore provides no support for imposing artificial limitations on the broad scope of 8 U. S. C. § 1226(e). II Because § 1226(e) plainly deprives courts of federal habeas jurisdiction over claims that mandatory detention under § 1226(c) is unconstitutional, one could conceivably argue that such a repeal violates the Suspension Clause, which provides as follows: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U. S. Const., Art. I, § 9, cl. 2. The clarity of § 1226(e)'s text makes such a question unavoidable, unlike in St. Cyr, where the Court invoked the doctrine of constitutional doubt and interpreted the relevant provisions of AEDPA and IIRIRA not to repeal habeas jurisdiction. St. Cyr, supra, at 314; see also Seminole Tribe of Fla. v. Florida, 517 U. S. 44 , 57, n. 9 (1996) (where the text of a statute is clear, the "preference for avoiding a constitutional question" cannot be invoked to defeat the plainly expressed intent of Congress). In my view, any argument that § 1226(e) violates the Suspension Clause is likely unavailing. St. Cyr held that "at the absolute minimum, the Suspension Clause protects the writ 'as it existed in 1789.'" 533 U. S., at 301 (quoting Felker v. Turpin, 518 U. S. 651 , 663-664 (1996)). The consti- 538 Opinion of O'CONNOR, J. tutionality of § 1226(e)'s limitation on habeas review therefore turns on whether the writ was generally available to those in respondent's position in 1789 (or, possibly, thereafter) to challenge detention during removal proceedings. Admittedly, discerning the relevant habeas corpus law for purposes of Suspension Clause analysis is a complex task. Nonetheless, historical evidence suggests that respondent would not have been permitted to challenge his temporary detention pending removal until very recently. Because colonial America imposed few restrictions on immigration, there is little case law prior to that time about the availability of habeas review to challenge temporary detention pending exclusion or deportation. See St. Cyr, supra, at 305. The English experience, however, suggests that such review was not available: "In England, the only question that has ever been made in regard to the power to expel aliens has been whether it could be exercised by the King without the consent of Parliament. It was formerly exercised by the King, but in later times by Parliament, which passed several acts on the subject between 1793 and 1848. Eminent English judges, sitting in the Judicial Committee of the Privy Council, have gone very far in supporting the exclusion or expulsion, by the executive authority of a colony, of aliens having no absolute right to enter its territory or to remain therein." Fong Yue Ting v. United States, 149 U. S. 698 , 709 (1893) (citations omitted). In this country, Congress did not pass the first law regulating immigration until 1875. See 18 Stat. (pt. 3) 477. In the late 19th century, as statutory controls on immigration tightened, the number of challenges brought by aliens to Government deportation or exclusion decisions also increased. See St. Cyr, supra, at 305-306. Because federal immigration laws from 1891 until 1952 made no express provision for judicial review, what limited review existed took the form of pe- 539 titions for writs of habeas corpus. See, e. g., Ekiu v. United States, 142 U. S. 651 (1892); Fong Yue Ting v. United States, supra; The Japanese Immigrant Case, 189 U. S. 86 (1903); Chin Yow v. United States, 208 U. S. 8 (1908); Kwock Jan Fat v. White, 253 U. S. 454 (1920); Ng Fung Ho v. White, 259 U. S. 276 (1922). Though the Court was willing to entertain these habeas challenges to Government exclusion and deportation decisions, in no case did the Court question the right of immigration officials to temporarily detain aliens while exclusion or deportation proceedings were ongoing. By the mid-20th century, the number of aliens in deportation proceedings being released on parole rose considerably. See, e. g., Carlson v. Landon, 342 U. S., at 538, n. 31. Nonetheless, until 1952 habeas corpus petitions remained the only means by which deportation orders could be challenged. Heikkila v. Barber, 345 U. S. 229 , 236-237 (1953). Under this regime, an alien who had been paroled but wished to challenge a final deportation order had to place himself in Government custody before filing a habeas petition challenging the order. Bridges v. Wixon, 326 U. S. 135 , 140 (1945). Given this, it is not surprising that the Court was not faced with numerous habeas claims brought by aliens seeking release from detention pending deportation. So far as I am aware, not until 1952 did we entertain such a challenge. See Carlson v. Landon, supra. And there, we reaffirmed the power of Congress to order the temporary detention of aliens during removal proceedings. Id., at 538. In Reno v. Flores, we likewise rejected a similar challenge to such detention. And, Flores was a wide-ranging class action in which 28 U. S. C. § 2241 was but one of several statutes invoked as the basis for federal jurisdiction. 507 U. S., at 296. All in all, it appears that in 1789, and thereafter until very recently, the writ was not generally available to aliens to challenge their detention while removal proceedings were ongoing. 540 Opinion of SOUTER, J. Because a majority of the Court has determined that jurisdiction exists over respondent's claims, I need not conclusively decide the thorny question whether 8 U. S. C. § 1226(e) violates the Suspension Clause. For present purposes, it is enough to say that in my view, § 1226(e) unambiguously bars habeas challenges to the Attorney General's decisions regarding the temporary detention of criminal aliens under § 1226(c) pending removal. That said, because a majority of the Court has determined that there is jurisdiction, and because I agree with the majority's resolution of the merits of respondent's challenge, I join in all but Part I of the Court's opinion. JUSTICE SOUTER, with whom JUSTICE STEVENS and JusTICE GINSBURG join, concurring in part and dissenting in part. Respondent Kim is an alien lawfully admitted to permanent residence in the United States. He claims that the Constitution forbids the Immigration and Naturalization Service (INS) from detaining him under 8 U. S. C. § 1226(c) unless his detention serves a government interest, such as preventing flight or danger to the community. He contends that due process affords him a right to a hearing before an impartial officia1,1 giving him a chance to show that he poses no risk that would justify confining him between the moment the Government claims he is removable and the adjudication of the Government's claim. I join Part I of the Court's opinion, which upholds federal jurisdiction in this case, but I dissent from the Court's dispo- 1 Kim does not claim a hearing before any specific official. The generality of his claim may reflect the fact, noted just below, that the INS released him on bond without any hearing whatsoever after the District Court entered its judgment in this case. App. 11-13. Accordingly, there is no occasion to enquire whether due process requires access to any particular arbiter, such as one unaffiliated with the INS. I therefore use the neutral term "impartial" in describing the hearing Kim claims. 541 sition on the merits. The Court's holding that the Constitution permits the Government to lock up a lawful permanent resident of this country when there is concededly no reason to do so forgets over a century of precedent acknowledging the rights of permanent residents, including the basic liberty from physical confinement lying at the heart of due process. The INS has never argued that detaining Kim is necessary to guarantee his appearance for removal2 proceedings or to protect anyone from danger in the meantime. Instead, shortly after the District Court issued its order in this case, the INS, sua sponte and without even holding a custody hearing, concluded that Kim "would not be considered a threat" and that any risk of flight could be met by a bond of $5,000. App. 11-13. He was released soon thereafter, and there is no indication that he is not complying with the terms of his release. The Court's approval of lengthy mandatory detention can therefore claim no justification in national emergency or any risk posed by Kim particularly. The Court's judgment is unjustified by past cases or current facts, and I respectfully dissent. I At the outset, there is the Court's mistaken suggestion that Kim "conceded" his removability, ante, at 514, 523, and n. 6, 531. The Court cites no statement before any court conceding removability, and I can find none. At the first opportunity, Kim applied to the Immigration Court for withholding of removal, Brief for Respondent 9, n. 12, and he 2 In 1996, Congress combined "deportation" and "exclusion" proceedings into a single "removal" proceeding. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, § 304(a), 110 Stat. 3009-587, adding 8 U. S. C. § 1229a. Because this case requires consideration of cases decided both before and after 1996, this opinion refers to "removal" generally but, where the context requires, distinguishes between "deportation" of aliens who have entered the United States and "exclusion" of aliens who seek entry. 542 Opinion of SOUTER, J. represents that he intends to assert that his criminal convictions are not for removable offenses and that he is independently eligible for statutory relief from removal, id., at 11-12; see also ante, at 522-523, n. 6. In his brief before the Ninth Circuit, Kim stated that his removability was "an open question," that he was "still fighting [his] removal administratively," and that the Immigration Court had yet to hold a merits hearing. Brief of Petitioner-Appellee in No. 99-17373 (CA9), pp. 4, 13-14,24,33-34, and n. 28, 48-49. At oral argument here, his counsel stated that Kim was challenging his removability. See Tr. of Oral Arg. 36-38, 44. The suggestion that Kim should have contested his removability in this habeas corpus petition, ante, at 522-523, and n. 6, misses the point that all he claims, or could now claim, is that his detention pending removal proceedings violates the Constitution. Challenges to removability itself, and applications for relief from removal, are usually submitted in the first instance to an immigration judge. See 8 U. S. C. § 1229a(a)(3). The Immigration Judge had not yet held an initial hearing on the substantive issue of removability when Kim filed his habeas petition in the District Court, even though Kim had been detained for over three months under § 1226(c). If Kim's habeas corpus petition had claimed "that he himself was not 'deportable,'" as the Court suggests it should have, ante, at 522, the District Court would probably have dismissed the claim as unexhausted. E. g., Espinal v. Filion, No. 00-CIV-2647-HB-JCF, 2001 WL 395196 (SDNY, Apr. 17, 2001). Kim did not, therefore, "conced[e] that he is deportable," ante, at 531, by challenging removability before the Immigration Judge and challenging detention in a federal court.3 3 The Court's effort to explain its reference to a nonexistent concession, ante, at 522-523, n. 6, seeks to gain an advantage from the fact that the Immigration and Nationality Act uses the word "deportable" in various ways, one being to describe classes of aliens who may be removed if the necessary facts are proven, e. g., § 1227(a), and another to describe aliens who have actually been adjudged as being in the United States unlawfully, 543 Kim may continue to claim the benefit of his current status unless and until it is terminated by a final order of removal. 8 CFR § 1.1(p) (2002). He may therefore claim the due process to which a lawful permanent resident is entitled. II A It has been settled for over a century that all aliens within our territory are "persons" entitled to the protection of the Due Process Clause. Aliens "residing in the United States for a shorter or longer time, are entitled, so long as they are permitted by the government of the United States to remain in the country, to the safeguards of the Constitution, and to the protection of the laws, in regard to their rights of person and of property, and to their civil and criminal responsibility." Fong Yue Ting v. United States, 149 U. S. 698 , 724 (1893). The Japanese Immigrant Case, 189 U. S. 86 , 100101 (1903), settled any lingering doubt that the Fifth Amendment's Due Process Clause gives aliens a right to challenge mistreatment of their person or property. The constitutional protection of an alien's person and property is particularly strong in the case of aliens lawfully e. g., § 1229b. An alien is not adjudged "deportable" until an order enters "concluding that the alien is deportable or ordering deportation," and such an order is not final until affirmed by the Board of Immigration Appeals or until the time expires for seeking review. §§ 1l01(a)(47)(A)-(B). To suggest, as the Court seems to do, that an alien has conceded removability simply because he does not dispute that he has been charged with facts that will render him removable if those facts are later proven is like saying that a civil defendant has conceded liability by failing to move to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) or that a criminal defendant has conceded guilt by failing to dispute the validity of the indictment. But even if the Court's reasoning were sound, it would not cover Kim's situation, for he has stated (and the Court acknowledges) his intent to contest the sufficiency of his criminal convictions as a basis for removal. Ante, at 522-523, n. 6. This discussion, which the Court calls a "detour," ante, at 523, is necessary only because of the Court's insistence in stating that Kim conceded that he is "deportable." Ante, at 513, 522, 531. 544 Opinion of SOUTER, J. admitted to permanent residence (LPRs). The immigration laws give LPRs the opportunity to establish a life permanently in this country by developing economic, familial, and social ties indistinguishable from those of a citizen. In fact, the law of the United States goes out of its way to encourage just such attachments by creating immigration preferences for those with a citizen as a close relation, 8 U. S. C. §§ 1153(a)(1), (3)-(4), and those with valuable professional skills or other assets promising benefits to the United States, §§ 1153(b)(1)-(5). Once they are admitted to permanent residence, LPRs share in the economic freedom enjoyed by citizens: they may compete for most jobs in the private and public sectors without obtaining job-specific authorization, and apart from the franchise, jury duty, and certain forms of public assistance, their lives are generally indistinguishable from those of United States citizens. That goes for obligations as well as opportunities. Unlike temporary, nonimmigrant aliens, who are generally taxed only on income from domestic sources or connected with a domestic business, 26 U. S. C. § 872, LPRs, like citizens, are taxed on their worldwide income, 26 CFR §§ 1.1-1(b), 1.871-1(a), 1.871-2(b) (2002). Male LPRs between the ages of 18 and 26 must register under the Selective Service Act of 1948, ch. 625, Tit. I, § 3, 62 Stat. 605.4 "Resident aliens, like citizens, pay taxes, support the economy, serve in the Armed Forces, and contribute in myriad other ways to our society." In re Griffiths, 413 U. S. 717 , 722 (1973). And if they choose, they may apply for full membership in the national polity through naturalization. The attachments fostered through these legal mechanisms are all the more intense for LPRs brought to the United States as children. They grow up here as members of the society around them, probably without much touch with their country of citizenship, probably considering the United 4 Although an LPR may seek exemption or discharge from registration on the grounds of alienage, such an action permanently bars the LPR from seeking United States citizenship. 8 U. S. C. § 1426(a). 545 States as home just as much as a native-born, younger brother or sister entitled to United States citizenship. "[M]any resident aliens have lived in this country longer and established stronger family, social, and economic ties here than some who have become naturalized citizens." Woodby v. INS, 385 U. S. 276 , 286 (1966). Kim is an example. He moved to the United States at the age of six and was lawfully admitted to permanent residence when he was eight. His mother is a citizen, and his father and brother are LPRs. LPRs in Kim's situation have little or no reason to feel or to establish firm ties with any place besides the United States.5 Our decisions have reflected these realities. As early as 1892, we addressed an issue of statutory construction with the realization that "foreigners who have become domiciled in a country other than their own, acquire rights and must discharge duties in many respects the same as possessed by and imposed upon the citizens of that country, and no restriction on the footing upon which such persons stand by reason of their domicil of choice ... is to be presumed." Lau Ow Bew v. United States, 144 U. S. 47 , 61-62.6 Fifty years later in dealing with a question of evidentiary competence in Brid ges v. Wixon, 326 U. S. 135 (1945), we said that "the notions of fairness on which our legal system is founded" applied with full force to "aliens whose roots may have become, as 5 See also Welch v. Ashcroft, 293 F.3d 213 , 215 (CA4 2002) (detainee obtained LPR status at age 10); Hoang v. Comfort, 282 F.3d 1247 , 12521253 (CAW 2002) (ages 3 and 15), cert. pending, No. 01-1616 [REPORTER'S NOTE: See post, p. 1010]. 6 In The Venus, 8 Cranch 253 (1814), we held that property belonging to American citizens who were resident in England during the War of 1812 was to be treated as belonging to English proprietors for purposes of prize law. We stated that, as permanent residents of England, the American citizens were "bound, by such residence, to the society of which they are members, subject to the laws of the state, and owing a qualified allegiance thereto; they are obliged to defend it, (with an exception in favor of such a subject, in relation to his native country) in return for the protection it affords them, and the privileges which the laws bestow upon them as subjects," id., at 282. 546 Opinion of SOUTER, J. they are in the present case, deeply fixed in this land," id., at 154. And in Kwong Hai Chew v. Colding, 344 U. S. 590 (1953), we read the word "excludable" in a regulation as having no application to LPRs, since such a reading would have been questionable given "a resident alien's constitutional right to due process." Id., at 598-599.7 Kwong Hai Chew adopted the statement of Justice Murphy, concurring in Bridges, that "'once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders. Such rights include those protected by the First and the Fifth Amendments and by the due process clause of the Fourteenth Amendment. None of these provisions acknowledges any distinction between citizens and resident aliens. They extend their inalienable privileges to all "persons" and guard against any encroachment on those rights by federal or state authority.'" 344 U. S., at 596-597, n. 5 (quoting Bridges, supra, at 161). See also United States v. Verdugo-Urquidez, 494 U. S. 259 , 271 (1990) ("[A]liens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country"); Woodby, supra, at 285 (holding that deportation orders must be supported by clear, unequivocal, and convincing evidence owing to the "drastic deprivations that may follow when a resident of this country is compelled by our Government to forsake all the bonds formed here and go to a foreign land where he often has no contemporary identification"); Johnson v. Eisentrager, 339 U. S. 763 , 770-771 (1950) ("The alien, to whom the United States has been tradi- 7 "Although the holding [in Kwong Hai Chew] was one of regulatory interpretation, the rationale was one of constitutional law. Any doubts that Chew recognized constitutional rights in the resident alien returning from a brief trip abroad were dispelled by Rosenberg v. Fleuti, [ 374 U. S. 449 (1963),] where we described Chew as holding 'that the returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him.' 374 U. S., at 460." Landon v. Plasencia, 459 U. S. 21 , 33 (1982). 547 tionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society .... [A]t least since 1886, we have extended to the person and property of resident aliens important constitutional guaranties-such as the due process of law of the Fourteenth Amendment"). The law therefore considers an LPR to be at home in the United States, and even when the Government seeks removal, we have accorded LPRs greater protections than other aliens under the Due Process Clause. In Landon v. Plasencia, 459 U. S. 21 (1982), we held that a long-term resident who left the country for a brief period and was placed in exclusion proceedings upon return was entitled to claim greater procedural protections under that Clause than aliens seeking initial entry. The LPR's interest in remaining in the United States is, we said, "without question, a weighty one." Id., at 34. See also Rosenberg v. Fleuti, 374 U. S. 449 (1963); Kwong Hai Chew, supra. Although LPRs remain subject to the federal removal power, that power may not be exercised without due process, and any decision about the requirements of due process for an LPR must account for the difficulty of distinguishing in practical as well as doctrinal terms between the liberty interest of an LPR and that of a citizen.8 In evaluating Kim's challenge to his mandatory detention under 8 U. S. C. § 1226(c), the only reasonable starting point is the traditional doctrine concerning the Government's physical confinement of individuals.9 8 This case provides no occasion to determine the constitutionality of mandatory detention of aliens other than LPRs. 9 The statement that "[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens," Mathews v. Diaz, 426 U. S. 67 , 79-80 (1976), cannot be read to leave limitations on the liberty of aliens unreviewable. Ante, at 521-522. Diaz involved a federal statute that limited eligibility for a federal medical insurance program to United States citizens and LPRs who had been continuously resident in the United States 548 Opinion of SOUTER, J. B Kim's claim is a limited one: not that the Government may not detain LPRs to ensure their appearance at removal hear- for five years. 426 U. S., at 69-70. Reversing a lower court judgment that this statute violated equal protection, we said this: "In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens. The exclusion of aliens and the reservation of the power to deport have no permissible counterpart in the Federal Government's power to regulate the conduct of its own citizenry. The fact that an Act of Congress treats aliens differently from citizens does not in itself imply that such disparate treatment is 'invidious.''' Id., at 79-80 (footnotes omitted). Taken in full, the meaning of this paragraph is plain: through the exercise of the deportation and exclusion power, Congress exposes aliens to a treatment (expulsion) that cannot be imposed on citizens. The cases cited in the footnotes to this paragraph accordingly all concern Congress's power to enact grounds of exclusion or deportation. Id., at 80, nn. 14-15 (citing Kleindienst v. Mandel, 408 U. S. 753 (1972); Galvan v. Press, 347 U. S. 522 (1954); and Harisiades v. Shaughnessy, 342 U. S. 580 (1952)); cf. ante, at 522 (quoting Diaz, supra, at 81, n. 17, in turn quoting Harisiades). Nothing in Diaz addresses due process protection of liberty or purports to sanction any particular limitation on the liberty of LPRs under circumstances comparable to those here. Even on its terms, the Diaz statement is dictum. We acknowledged immediately that "[t]he real question presented by [Diaz] is not whether discrimination between citizens and aliens is permissible; rather, it is whether the statutory discrimination within the class of aliens-allowing benefits to some aliens but not to others-is permissible." 426 U. S., at 80. Our holding that Congress could consider length of residence and immigration status in allocating medical insurance in no way suggests the existence of a federal power to imprison a long-term resident alien when the Government concedes that there is no need to do so. The Court does not explain why it believes the Diaz dictum to be relevant to this case, other than to repeat it and identify prior instances of its quotation. Ante, at 521-522. The Court resists calling the statement "'dictum,'" ante, at 521, but it does not deny that Diaz involved "discrimination within the class of aliens" rather than "discrimination between citizens and aliens," 426 U. S., at 80, thus making any suggestion about Congress's power to treat citizens and aliens differently unnecessary to the holding. Nor does the Court deny that Diaz dealt with an equal protection challenge to the allocation of medical insurance and had nothing to 549 ings, but that due process under the Fifth Amendment conditions a potentially lengthy detention on a hearing and an impartial decisionmaker's finding that detention is necessary to a governmental purpose. He thus invokes our repeated decisions that the claim of liberty protected by the Fifth Amendment is at its strongest when government seeks to detain an individual. THE CHIEF JUSTICE wrote in 1987 that "[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." United States v. Salerno, 481 U. S. 739 , 755. See also Reno v. Flores, 507 U. S. 292 , 316 (1993) (O'CONNOR, J., concurring) ("The institutionalization of an adult by the government triggers heightened, substantive due process scrutiny"); Foucha v. Louisiana, 504 U. S. 71 , 80 (1992) ("Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action"); id., at 90 (KENNEDY, J., dissenting) ("As incarceration of persons is the most common and one of the most feared instruments of state oppression and state indifference, we ought to acknowledge at the outset that freedom from this restraint is essential to the basic definition of liberty in the Fifth and Fourteenth Amendments of the Constitution"). Accordingly, the Fifth Amendment permits detention only where "heightened, substantive due process scrutiny" finds a "'sufficiently compelling'" governmental need. Flores, supra, at 316 (O'CONNOR, J., concurring) (quoting Salerno, 481 U. S., at 748). In deciding in Salerno that this principle did not categorically bar pretrial detention of criminal defendants without bail under the Bail Reform Act of 1984, it was crucial that the statute provided that, "[i]n a full-blown adversary hearing, the Government must convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person." Id., at 750 (citing 18 U. S. C. say on the subject of the right of LPRs to protection of their liberty under the Due Process Clause. See supra, at 543-547. 550 Opinion of SOUTER, J. § 3142(f)). We stressed that the Act was not a "scattershot attempt to incapacitate those who are merely suspected of" serious offenses, 481 U. S., at 750, and held that due process allowed some pretrial detention because the Act confined it to a sphere of real need: "[w]hen the Government proves by clear and convincing evidence that an arrestee presents an identified and articulable threat to an individual or the community." Id., at 751; see also Foucha, supra, at 81 (calling the pretrial detention statute in Salerno a "sharply focused scheme"). We have reviewed involuntary civil commitment statutes the same way. In Addington v. Texas, 441 U. S. 418 (1979), we held that a State could not civilly commit the mentally ill without showing by "clear and convincing evidence" that the person was dangerous to others, id., at 433. The elevated burden of proof was demanded because "[l]oss of liberty calls for a showing that the individual suffers from something more serious than is demonstrated by idiosyncratic behavior." Id., at 427. The statutory deficiency was the same in Foucha, where we held that Louisiana's civil commitment statute failed due process because the individual was denied an "adversary hearing at which the State must prove by clear and convincing evidence that he is demonstrably dangerous to the community." 504 U. S., at 81. See also id., at 88 (opinion of O'CONNOR, J.) (civil commitment depends on a "necessary connection between the nature and purposes of confinement"). In addition to requiring a compelling reason for detention, we held that the class of persons affected must be narrow and, in pretrial-type lockup, the time must be no more than what is reasonably necessary before the merits can be resolved. In the case of the Bail Reform Act, we placed weight on the fact that the statute applied only to defendants suspected of "the most serious of crimes," Salerno, supra, at 747; see also Foucha, supra, at 81, while the statute in Kansas v. Hendricks, 521 U. S. 346 (1997), likewise provided 551 only for confinement of "a limited subclass of dangerous persons" who had committed "'a sexually violent offense'" and who suffered from" 'a mental abnormality or personality disorder' " portending" 'predatory acts of sexual violence,'" id., at 357 (quoting Kan. Stat. Ann. § 59-29a02(a) (1994)). Salerno relied on the restriction of detention "by the stringent time limitations of the Speedy Trial Act," 481 U. S., at 747, whereas in Foucha, it was a fault that the statute did not impose any comparable limitation, 504 U. S., at 82 (citing Salerno). See also Jackson v. Indiana, 406 U. S. 715 , 738 (1972) ("At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed"). The substantive demands of due process necessarily go hand in hand with the procedural, and the cases insist at the least on an opportunity for a detainee to challenge the reason claimed for committing him. E. g., Hendricks, supra, at 357 (stating that civil commitment was permitted where "the confinement takes place pursuant to proper procedures and evidentiary standards"); Foucha, supra, at 81-82 (invalidating a statute under which "the State need prove nothing to justify continued detention"); Salerno, supra, at 751 ("[T]he procedures by which a judicial officer evaluates the likelihood of future dangerousness are specifically designed to further the accuracy of that determination"); Addington, supra, at 427 (requiring a heightened burden of proof "to impress the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate commitments will be ordered"). These cases yield a simple distillate that should govern the result here. Due process calls for an individual determination before someone is locked away. In none of the cases cited did we ever suggest that the government could avoid the Due Process Clause by doing what § 1226(c) does, by selecting a class of people for confinement on a categorical basis and denying members of that class any chance to dispute the 552 Opinion of SOUTER, J. necessity of putting them away. The cases, of course, would mean nothing if citizens and comparable residents could be shorn of due process by this sort of categorical sleight of hand. Without any "full-blown adversary hearing" before detention, Salerno, supra, at 750, or heightened burden of proof, Addington, supra, or other procedures to show the government's interest in committing an individual, Foucha, supra; Jackson, supra, procedural rights would amount to nothing but mechanisms for testing group membership. Cf. Foucha, supra, at 88 (opinion of O'CONNOR, J.) ("Nor would it be permissible to treat all acquittees alike, without regard for their particular crimes"). And if procedure could be dispensed with so expediently, so presumably could the substantive requirements that the class of detainees be narrow and the detention period strictly limited. Salerno, supra; Hendricks, supra. C We held as much just two Terms ago in Zadvydas v. Davis, 533 U. S. 678 (2001), which stands for the proposition that detaining an alien requires more than the rationality of a general detention statute; any justification must go to the alien himself. Zadvydas considered detention of two aliens, Zadvydas and Ma, who had already been ordered removed and therefore enjoyed no lawful immigration status. Their cases arose because actual removal appeared unlikely owing to the refusal of their native countries to accept them, with the result that they had been detained not only for the standard 90-day removal period, during which time most removal orders are executed, but beyond that period because the INS considered them to be a "'risk to the community''' and "'unlikely to comply with the order of removal.'" Id., at 682 (quoting 8 U. S. C. § 1231(a)(6) (1994 ed., Supp. V)). Zadvydas and Ma challenged their continued and potentially indefinite detention under the Due Process Clause of the Fifth Amendment. 553 The Zadvydas opinion opened by noting the clear applicability of general due process standards: physical detention requires both a "special justification" that "outweighs the 'individual's constitutionally protected interest in avoiding physical restraint'" and "adequate procedural protections." 533 U. S., at 690 (quoting Hendricks, 521 U. S., at 356). Nowhere did we suggest that the "constitutionally protected liberty interest" in avoiding physical confinement, even for aliens already ordered removed, was conceptually different from the liberty interest of citizens considered in Jackson, Salerno, Foucha, and Hendricks. On the contrary, we cited those cases and expressly adopted their reasoning, even as applied to aliens whose right to remain in the United States had already been declared forfeited. Zadvydas, 533 U. S., at 690. Thus, we began by positing commonly accepted substantive standards and proceeded to enquire into any "special justification" that might outweigh the aliens' powerful interest in avoiding physical confinement "under [individually ordered] release conditions that may not be violated." Id., at 696. We found nothing to justify the Government's position. The statute was not narrowed to a particularly dangerous class of aliens, but rather affected "aliens ordered removed for many and various reasons, including tourist visa violations." Id., at 691. The detention itself was not subject to "stringent time limitations," Salerno, supra, at 747, but was potentially indefinite or even permanent, Zadvydas, 533 U. S., at 691. Finally, although both Zadvydas and Ma appeared to be dangerous, this conclusion was undermined by defects in the procedures resulting in the finding of dangerousness. Id., at 692. The upshot was such serious doubt about the constitutionality of the detention statute that we construed it as authorizing continuing detention only when an alien's removal was "reasonably foreseeable." Id., at 699. In the cases of Zadvydas and Ma, the fact that their countries of citizenship were not willing to accept their return weighed 554 Opinion of SOUTER, J. against the Government's interest in keeping them at hand for instant removal, even though both were serious flight risks, id., at 684-686,690, and we remanded the cases to the Courts of Appeals for a determination of the sufficiency of the Government's interests in Zadvydas's and Ma's individual detention, id., at 702. Our individualized analysis and disposition in Zadvydas support Kim's claim for an individualized review of his challenge to the reasons that are supposed to justify confining him prior to any determination of removability. In fact, aliens in removal proceedings have an additional interest in avoiding confinement, beyond anything considered in Zadvydas: detention prior to entry of a removal order may well impede the alien's ability to develop and present his case on the very issue of removability. See Brief for Citizens and Immigrants for Equal Justice et al. as Amici Curiae 20-23. After all, our recognition that the serious penalty of removal must be justified on a heightened standard of proof, Woodby v. INS, 385 U. S. 276 (1966), will not mean all that much when the INS can detain, transfer, and isolate aliens away from their lawyers, witnesses, and evidence. Cf. Stack v. Boyle, 342 U. S. 1 , 4 (1951). Kim's right to defend against removal gives him an even stronger claim than the aliens in Zadvydas could raise. In fact, the principal dissenters in Zadvydas, as well as the majority, accepted a theory that would compel success for Kim in this case. The dissent relied on the fact that Zadvydas and Ma were subject to a "final order of removal" and had "no right under the basic immigration laws to remain in this country," 533 U. S., at 720 (opinion of KENNEDY, J.), in distinguishing them "from aliens with a lawful right to remain here," ibid., which is Kim's position. The dissent recognized the right of all aliens, even "removable and inadmissible" ones, to be "free from detention that is arbitrary or capricious," id., at 721, and the opinion explained that detention would pass the "arbitrary or capricious" test "when 555 necessary to avoid the risk of flight or danger to the community," ibid. 10 Hence the Zadvydas dissent's focus on "whether there are adequate procedures" allowing "persons once subject to detention to show that through rehabilitation, new appreciation of their responsibilities, or under other standards, they no longer present special risks or danger if put at large." Ibid.; see also id., at 722-723. Indeed, there is further support for Kim's claim in the dissent's view that the process afforded to removable aliens like Zadvydas and Ma "[went] far toward thee] objective" of satisfying procedural due process, id., at 722; 11 that process stands in stark contrast to the total ab- 10 In support of its standard, the dissent relied on a report by the United Nations High Commissioner for Refugees, which likewise countenanced detention only "in cases of necessity" and stated, under a heading entitled "Guideline 3: Exceptional Grounds for Detention": "There should be a presumption against detention. Where there are monitoring mechanisms which can be employed as viable alternatives to detention, (such as reporting obligations or guarantor requirements ... ), these should be applied first unless there is evidence to suggest that such an alternative will not be effective in the individual case. Detention should therefore only take place after a full consideration of all possible alternatives, or when monitoring mechanisms have been demonstrated not to have achieved the lawful and legitimate purpose." United Nations High Commissioner for Refugees, Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (Feb. 1999) (hereinafter Detention Guidelines) (emphasis in original), cited in Zadvydas, 533 U. S., at 721 (opinion of KENNEDY, J.). The High Commissioner also referred to the "minimum procedural guarante[e]" for a detainee "either personally or through a representative, to challenge the necessity of the deprivation of liberty at the review hearing, and to rebut any findings made." Detention Guidelines, Guideline 5: Procedural Safeguards. 11 The scheme considered in Zadvydas did not provide review immediately after the removability determination; the dissent noted that custody review hearings usually occurred within three months of a transfer to a postorder detention unit, with further reviews annually or more frequently if the alien requested them. 533 U. S., at 722-723. But the lag was fitted to the circumstances. In the usual case, removal in fact would 556 Opinion of SOUTER, J. sence of custody review available in response to Kim's claim that he is neither dangerous nor a flight risk.12 The removable aliens in Zadvydas had the right to a hearing, to representation, and to consideration of facts bearing on risk of flight, including criminal history, evidence of rehabilitation, and ties to the United States. Ibid. The references to the "necessity" of an individual's detention and the discussion of the procedural requirements show that the principal Zadvydas dissenters envisioned due process as individualized review, and the Court of Appeals in this case correctly held that Kim's mandatory detention without benefit of individualized enquiry violated due process as understood by both the Zadvydas majority and JUSTICE KENNEDY in dissent. Kim v. Ziglar, 276 F.3d 523 , 535-537 (CA9 2002). Every Court of Appeals to consider the detention of come promptly; it is only when it did not that interim custody raised a substantial issue. The issue here, of course, is not timing but the right to individualized review at all. 12 The hearing recognized in Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999), is no response to this deficiency. As the Court notes, the" 'Joseph hearing'" only permits an alien to show that he does not meet the statutory criteria for mandatory detention under § 1226(c). Ante, at 514, and n. 3. Kim argues that, even assuming that he fits under the statute, the statute's application to LPRs like him does not fit under the Due Process Clause. JUSTICE KENNEDY recognizes that the Due Process Clause requires "an individualized determination as to [an LPR's] risk of flight and dangerousness if the continued detention [becomes] unreasonable or unjustified." Ante, at 532 (concurring opinion). It is difficult to see how Kim's detention in this case is anything but unreasonable and unjustified, since the Government concedes that detention is not necessary to completion of his removal proceedings or to the community's protection. Certainly the fact that "there is at least some merit to the [INS's] charge" that Kim should be held to be removable, ante, at 531, does not establish a compelling reason for detention. The INS releases many noncriminal aliens on bond or on conditional parole under § 1226(a)(2) pending removal proceedings, and the fact that Kim has been convicted of criminal offenses does not on its own justify his detention, see supra, at 550-553. 557 an LPR under § 1226(c) after Zadvydas reached the same conclusion. 13 D In sum, due process requires a "special justification" for physical detention that "outweighs the individual's constitutionally protected interest in avoiding physical restraint" as well as "adequate procedural protections." Zadvydas, 533 U. S., at 690-691 (internal quotation marks omitted). "There must be a 'sufficiently compelling' governmental interest to justify such [an] action, usually a punitive interest in imprisoning the convicted criminal or a regulatory interest in forestalling danger to the community." Flores, 507 U. S., at 316 (O'CONNOR, J., concurring) (quoting Salerno, 481 U. S., at 748). The class of persons subject to confinement must be commensurately narrow and the duration of confinement limited accordingly. Zadvydas, supra, at 691; Hendricks, 521 U. S., at 368; Foucha, 504 U. S., at 81-82; Salerno, supra, at 747, 750. JUSTICE KENNEDY'S dissenting view in Zadvydas, like that of the majority, disapproved detention that is not "necessary" to counter a risk of flight or danger; it is "arbitrary or capricious" and violates the substantive component of the Due Process Clause. 533 U. S., at 721. Finally, procedural due process requires, at a minimum, that a detainee have the benefit of an impartial decisionmaker able to consider particular circumstances on the issue of necessity. Id., at 691-692; id., at 722 (KENNEDY, J., dissenting); Foucha, supra, at 81; Salerno, supra, at 750. See also Kenyeres v. Ashcroft, post, at 1305 (KENNEDY, J., in chambers) ("An opportunity to present one's meritorious grievances to a court supports the legitimacy and public acceptance of a statutory regime"). 13 Welch v. Ashcroft, 293 F.3d 213 (CA4 2002); Hoang v. Comfort, 282 F. 3d 1247 (CAlO 2002), cert. pending, No. 01-1616 [REPORTER'S NOTE: See post, p. 10lO]; Patel v. Zemski, 275 F.3d 299 (CA32001). The Seventh Circuit's decision in Parra v. Perryman, 172 F.3d 954 (1999), preceded our decision in Zadvydas. 558 Opinion of SOUTER, J. By these standards, Kim's case is an easy one. "[H]eightened, substantive due process scrutiny," Flores, supra, at 316 (O'CONNOR, J., concurring), uncovers serious infirmities in § 1226(c). Detention is not limited to dangerous criminal aliens or those found likely to flee, but applies to all aliens claimed to be deportable for criminal convictions, even where the underlying offenses are minor. E. g., Michel v. INS, 206 F.3d 253 , 256 (CA2 2000) (possession of stolen bus transfers); Matter of Bart, 20 1. & N. Dec. 436 (BIA 1992) (issuance of a bad check). Detention under § 1226(c) is not limited by the kind of time limit imposed by the Speedy Trial Act, and while it lasts only as long as the removal proceedings, those proceedings have no deadline and may last over a year. See Brief for Citizens and Immigrants for Equal Justice et al. as Amici Curiae 23-26; see also id., at 10-20 (citing examples). Section 1226(c) neither requires nor permits an official to determine whether Kim's detention was necessary to prevent flight or danger. Kim's detention without particular justification in these respects, or the opportunity to enquire into it, violates both components of due process, and I would accordingly affirm the judgment of the Court of Appeals requiring the INS to hold a bail hearing to see whether detention is needed to avoid a risk of flight or a danger to the community.14 This is surely little enough, given the fact that 8 U. S. C. § 1536 gives an LPR charged with being a foreign terrorist the right to a release hearing pending a determination that he be removed. III The Court proceeds to the contrary conclusion on the premise that "the Government may constitutionally detain 14 Although Kim is a convicted criminal, we are not concerned here with a State's interest in punishing those who violate its criminal laws. Kim completed the criminal sentence imposed by the California courts on February 1, 1999, and California no longer has any interest in incarcerating him. 559 deportable aliens during the limited period necessary for their removal proceedings." Ante, at 526. Sometimes, maybe often, it may, but that is not the point in contention. Kim has never challenged the INS's general power to detain aliens in removal proceedings or even its power to detain him in particular, if it affords him a chance to participate in an enquiry whether he poses a flight risk or a danger to society. The question, rather, is whether Congress has chosen "'a constitutionally permissible means of implementing' [its immigration] power." Zadvydas, supra, at 695 (quoting INS v. Chadha, 462 U. S. 919 , 941-942 (1983)); see also Carlson v. Landon, 342 U. S. 524 , 537 (1952) (stating that the deportation power "is, of course, subject to judicial intervention under the 'paramount law of the Constitution' "). As in Zadvydas, we are here concerned not with the power to remove aliens but with the "important constitutionallimitations" on that power's exercise. Zadvydas, supra, at 695.15 15 The Court's citations to Wong Wing v. United States, 163 U. S. 228 (1896), are therefore inapposite. Ante, at 523, 531. In Wong Wing, we hypothesized that detention "necessary to give effect" to the removal of an alien "would be valid"; the use of the subjunctive mood makes plain that the issue was not before the Court. 163 U. S., at 235. Wong Wing certainly did not hold that detention in aid of removal was exempt from the Due Process Clause. Moreover, the Wong Wing dictum must be understood in light of the common contemporary practice in the federal courts of releasing aliens on bail pending deportation proceedings. While the Court is correct that the first statutory provision permitting Executive officials to release aliens on bond was enacted in 1907, ante, at 523, n. 7, the Court ignores the numerous judicial grants of bail prior to that year. See, e. g., United States ex rel. Turner v. Williams, 194 U. S. 279 , 283 (1904) (stating that the lower court admitted the appellant to bail pending appeal to this Court); Fong Yue Ting v. United States, 149 U. S. 698 , 704 (1893) (same); United States v. Moy Yee Tai, 109 F. 1 (CA2 1901) (per curiam); In re Lum Poy, 128 F.9d 4 , 975 (CC Mont. 1904) (noting that "the practice in California, Idaho, and Oregon has been and is to admit Chinese persons to 560 Opinion of SOUTER, J. A The Court spends much effort trying to distinguish Zadvydas, but even if the Court succeeded, success would not avail it much. Zadvydas was an application of principles developed in over a century of cases on the rights of aliens and the limits on the government's power to confine individuals. While there are differences between detention pending removal proceedings (this case) and detention after entry of a removal order (Zadvydas), the differences merely point up bail pending an investigation into the lawfulness of their residence within the United States, and before any order for deportation has been made"); In re Ah Tai, 125 F.7d 5 , 796-797 (Mass. 1903) (identifying a practice in several federal districts admitting aliens to bail, both before an initial finding of deportability and during the appeal therefrom); In re Chow Goo Pooi, 25 F. 77, 78 (CC Cal. 1884). The breadth of this practice is evident from one court's statement that "[tJo hold bail altogether inadmissible ... would invalidate hundreds of existing recognizances." Ah Tai, supra, at 797. As Judge Augustus Hand later noted, the only change in 1907 was that bail decisions were committed to the discretion of Executive officials, rather than judges: "Prior to the passage by Congress in 1907 of the act empowering the administrative official to fix bail, various courts made it a practice to grant bail to aliens during deportation hearings .... In our opinion that act was intended to place the general determination of granting bail in the hands of the authorities charged with the enforcement of the deportation laws as persons ordinarily best qualified to perform such a function .... " United States ex rel. Potash v. District Director of Immigration and Naturalization, 169 F.2d 747, 751 (CA2 1948) (citations omitted). Thus, while Wong Wing stated in passing that detention may be used where it was "part of the means necessary" to the removal of aliens, 163 U. S., at 235, that statement was written against the background of the general availability of judicial relief from detention pending deportation proceedings. The judicial grants of bail prior to 1907 arose in federal habeas proceedings. Contrary to JUSTICE O'CONNOR'S objection to federal jurisdiction in this matter, there is indeed a "history of routine reliance on habeas jurisdiction to challenge the detention of aliens without bail pending the conclusion of removal proceedings." Ante, at 536 (opinion concurring in part and concurring in judgment). 561 that Kim's is the stronger claim, see supra, at 554-556. In any case, the analytical framework set forth in Salerno, Foucha, Hendricks, Jackson, and other physical confinement cases applies to both, and the two differences the Court relies upon fail to remove Kim's challenge from the ambit of either the earlier cases or Zadvydas itself.16 First, the Court says that § 1226(c) "serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings." Ante, at 528. Yes it does, and the statute in Zadvydas, viewed outside the context of any individual alien's detention, served the purpose of preventing aliens ordered to be deported from fleeing prior to actual deportation. In each case, the fact that a statute serves its purpose in general fails to justify the detention of an individual in particular. Some individual aliens covered by § 1226(c) have meritorious challenges to removability or claims for relief from removal. See Brief for Citizens and Immigrants for Equal Justice et al. as Amici Curiae 10-20. As to such aliens, as with Zadvydas and Ma, the Government has only a weak reason under the immigration laws for detaining them. The Court appears to respond that Congress may require detention of removable aliens based on a general conclusion that detention is needed for effective removal of criminal aliens on a class-wide basis. But on that logic Zadvydas should have come out the other way, for detention of the entire class of aliens who have actually been ordered removed will in general "serv[e] the purpose" of their effective removal, ante, at 528. Yet neither the Court nor JUSTICE KENNEDY in dissent suggested that scrutiny under the Due Process Clause could be satisfied at such a general level. Rather, we remanded the individual cases of Zadvydas and Ma for determinations of the strength of the Government's 16 The Court tellingly does not even mention Salerno, Foucha, Hendricks, or Jackson. 562 Opinion of SOUTER, J. reasons for detaining them in particular. 533 U. S., at 702.17 We can insist on nothing less here, since the Government's justification for detaining individuals like Zadvydas and Ma, who had no right to remain in this country and were proven flight risks and dangers to society, id., at 684-686, is certainly stronger (and at least no weaker) than its interest in detaining a lawful permanent resident who has not been shown (or even claimed) to be either a flight risk or a threat to the community.18 The Court's closest approach to a reason justifying classwide detention without exception here is a Senate Report stating that over 20% of nondetained criminal aliens failed 17The Court is therefore mistaken in suggesting that I view the detention of the individual aliens in Zadvydas as serving a governmental purpose. Ante, at 527, n. 10. The Court confuses the "statute in Zadvydas, viewed outside the context of any individual alien's detention," supra, at 561, with the "detention at issue in Zadvydas," ante, at 527, n. 10, namely, the detention of Zadvydas and Ma as individuals. The due process analysis in Zadvydas concentrated on the latter, holding that the detention of Zadvydas and Ma would not serve a legitimate immigration purpose if there were no "significant likelihood of removal in the reasonably foreseeable future." 533 U. S., at 701. Thus, the Court's suggestion in this case that "the statutory provision" authorizes "detention" that prevents deportable aliens from fleeing as a general matter, ante, at 527-528, is no sufficient basis for claiming Zadvydas as support for the Court's methodology or result. Rather, the Court should consider whether the detention of Kim as an individual is necessary to a compelling Government interest, just as it did for the detention of Zadvydas and Ma as individuals. As the Government concedes, Kim's individual detention serves no Government purpose at all. 18 Nor can the general risk of recidivism, ante, at 518-519, justify this measure. The interest in preventing recidivism may be vindicated "by the ordinary criminal processes involving charge and conviction, the use of enhanced sentences for recidivists, and other permissible ways of dealing with patterns of criminal conduct." Foucha v. Louisiana, 504 U. S. 71 , 82 (1992). The ability to detain aliens in removal proceedings who pose threats to the community also satisfies this interest. Cf. United States v. Salerno, 481 U. S. 739 (1987). The alternative to detention, of course, is not unrestricted liberty, but supervised release, which also addresses the risk of recidivism. Zadvydas, 533 U. S., at 696. 563 to appear for removal hearings. Ante, at 519 (citing S. Rep. No. 104-48 (1995) (hereinafter Senate Report)). To begin with, the Senate Report's statistic treats all criminal aliens alike and does not distinguish between LPRs like Kim, who are likely to have developed strong ties within the United States, see supra, at 544-547, and temporary visitors or illegal entrants. Even more importantly, the statistic tells us nothing about flight risk at all because, as both the Court and the Senate Report recognize, the INS was making its custody determinations not on the ground of likelihood of flight or dangerousness, but "in large part, according to the number of beds available in a particular region." Senate Report 23, cited ante, at 519; see also H. R. Rep. No. 104-469, p. 124 (1995) (hereinafter House Report) ("[I]n deciding to release a deportable alien, the INS is making a decision that the alien cannot be detained given its limited resources"); App. 26-27. This meant that the INS often could not detain even the aliens who posed serious flight risks. Senate Report 23 (noting that the INS had only 3,500 detention beds for criminal aliens in the entire country and the INS district comprising Pennsylvania, Delaware, and West Virginia had only 15). The desperate lack of detention space likewise had led the INS to set bonds too low, because "if the alien is not able to pay, the alien cannot be released, and a needed bed space is lost." House Report 124. The Senate Report also recognized that, even when the INS identifies a criminal alien, the INS "often refuses to take action because of insufficient agents to transport prisoners, or because of limited detention space." Senate Report 2. Four former high-ranking INS officials explained the Court's statistics as follows: "Flight rates were so high in the early 1990s not as a result of chronic discretionary judgment failures by [the] INS in assessing which aliens might pose a flight risk. Rather, the rates were alarmingly high because decisions to release aliens in proceedings were driven over- 564 Opinion of SOUTER, J. whelmingly by a lack of detention facilities." Brief for T. Alexander Aleinikoff et al. as Amici Curiae 19. The Court's recognition that, at the time of the enactment of § 1226(c), "individualized bail determinations had not been tested under optimal conditions" is thus rather an understatement. Ante, at 528. The Court does not explain how the INS's resource-driven decisions to release individuals who pose serious flight risks, and their predictable failure to attend removal hearings, could justify a systemwide denial of any opportunity for release to individuals like Kim who are neither flight risks nor threats to the public. The Court also cites a report by the Department of Justice relied upon by the Government. Department of Justice, Office of the Inspector General, Immigration and N aturalization Service, Deportation of Aliens After Final Orders Have Been Issued, Rep. No. 1-96-03 (Mar. 1996), App. 14 (hereinafter Post-Order Report), cited ante, at 519, 521. But that report does not even address the issue of detention before a determination has been made that an alien is removable. As its title indicates, the Post-Order Report analyzed removal rates only for aliens who had already received final orders of removability. 19 See also Post-Order Report, App. 25 ("This current review was limited to actions taken by INS to remove aliens after [immigration judges or the Board of Immigration Appeals] had issued final orders").2o 19 Detention of such aliens is governed by the statute at issue in Zadvydas, § 1231(a), not by § 1226(c). 20 A prior study by the same body noted that nonappearance rates by aliens in deportation proceedings before issuance of orders to deport (aliens, that is, like Kim) were approximately 23% for the first half of 1993 and 21% for all of 1992. Department of Justice, Office of the Inspector General, Case Hearing Process in the Executive Office for Immigration Review, Rep. No. 1-93-03, p. 5 (May 1994) (hereinafter Case Hearing Report). Congress appears to have considered these relevant figures, Senate Report 2 ("Over 20 percent of nondetained criminal aliens fail to appear for deportation proceedings"), without referring to irrelevant postorder numbers. The Government relied on the Post-Order Report 565 More relevant to this case, and largely ignored by the Court, is a recent study conducted at the INS's request concluding that 92% of criminal aliens (most of whom were LPRs) who were released under supervisory conditions attended all of their hearings. 1 Vera Institute of Justice, Testing Community Supervision for the INS: An Evaluation of the Appearance Assistance Program, pp. ii, 33, 36 (Aug. 1, 2000) (hereinafter Vera Institute Study). Even without supervision, 82% of criminal aliens released on recognizance showed up, as did 77% of those released on bond, leading the reporters to conclude that "supervision was especially effective for criminal aliens" and that "mandatory detention of virtually all criminal aliens is not necessary." Id., at ii, 36,42.21 in its brief and at oral argument. Brief for Petitioners 7, 19-20, and n. 7; Tr. of Oral Arg. 23. The Government did not cite the Case Hearing Report. 21 The Court throws in minor criticisms of the Vera Institute Study that have no bearing on its relevance here. The institute's supervised release program included 127 criminal aliens who would be subject to mandatory detention under § 1226(c) because of their criminal histories. Vera Institute Study 33. Since the INS seeks Kim's removal on the grounds of either crimes of moral turpitude or an aggravated felony, see ante, at 513, n. 1, the fact that most of the Vera Institute Study's subjects were convicted of crimes of moral turpitude but not an aggravated felony, ante, at 520, n. 5, is of no moment. Nor were all of the aliens studied subject to intensive supervision, ibid.; most were subject to "regular supervision," which involved no mandatory reporting sessions beyond an initial orientation session with supervision staff and required only that the alien keep the staff apprised of a current mailing address, appear in court, and comply with the orders of the immigration judge, Vera Institute Study 17-18. That the institute considered various screening criteria before authorizing supervised release, ante, at 520, n. 5, does not undermine the value of the study, since any program adopted by the INS in lieu of mandatory detention could do the same. Cf. Zadvydas, 533 U. S., at 696. Finally, the fact that Kim sought and was granted release on bond rather than supervised release, ante, at 520, n. 5, does not detract from the relevance of the Vera Institute Study. Regardless of what methods the INS decides to employ to prevent flight, the study supports the conclusion that mandatory deten- 566 Opinion of SOUTER, J. The Court nowhere addresses the Vera Institute's conclusion that criminal aliens released under supervisory conditions are overwhelmingly likely to attend their hearings. Instead, the Court fixes on the fact that 23% of the comparison group of aliens released on bond failed to attend all of their hearings. Ante, at 519-520. Since the bond determinations were made by the INS, the fact remains that resource-driven concerns may well have led the INS to release individuals who were evident flight risks on bonds too low to ensure their attendance. See supra, at 563-564. The Court's assumption that the INS's bond determinations involved "individualized screening" for flight risk, ante, at 520, finds no support in the Vera Institute Study. Thus the Court's reliance on the failure rate of aliens released by the INS on bond, whether it comes from the Senate Report or the Vera Institute Study, ante, at 519-520, does not support its conclusion. In sum, the Court's inapposite statistics do not show that detention of criminal LPRs pending removal proceedings, even on a general level, is necessary to ensure attendance at removal hearings, and the Vera Institute Study reinforces the point by establishing the effectiveness of release under supervisory conditions, just as we did in Zadvydas. 533 U. S., at 696 (noting that imprisonment was constitutionally suspect given the possibility of "supervision under release conditions that may not be violated").22 The Court's first attempt to distinguish Zadvydas accordingly fails. tion under § 1226(c) is "not necessary" to prevent flight, Vera Institute Study 42, and therefore violates the Due Process Clause. 22 This case accordingly presents no issue of "'court ordered release,'" ante, at 530, n. 14 (quoting Zadvydas, supra, at 713 (KENNEDY, J., dissenting)); in this case, for example, the INS reached its own determination to release Kim on bond. This case concerns only the uncontroversial requirement that detention serve a compelling governmental interest and that detainees be afforded adequate procedures ensuring against erroneous confinement. E. g., Salerno, 481 U. S., at 751 ("[T]he procedures by 567 The Court's second effort is its claim that mandatory detention under § 1226(c) is generally of a "much shorter duration" than the incarceration at issue in Zadvydas. Ante, at 528. While it is true that removal proceedings are unlikely to prove "indefinite and potentially permanent," 533 U. S., at 696, they are not formally limited to any period, and often extend beyond the time suggested by the Court, that is, "an average time of 47 days" or, for aliens who exercise their right of appeal, "an average of four months," ante, at 529; see also Case Hearing Report 12 (finding that the average time from receipt of charging documents by a detained alien to a final decision by the immigration judge was 54 days). Even taking these averages on their face, however, they are no legitimate answer to the due process claim to individualized treatment and hearing. In the first place, the average time from receipt of charging documents to decision obscures the fact that the alien may receive charging documents only after being detained for a substantial period. Kim, for example, was not charged until five weeks after the INS detained him. Brief for Respondent 9. Even more revealing is an explanation of the raw numbers that are averaged out. As the Solicitor General conceded, the length of the average detention period in great part reflects the fact that the vast majority of cases involve aliens who raise no challenge to removability at all. Tr. of Oral Arg. 57. LPRs like Kim, however, will hardly fit that pattern. Unlike many illegal entrants and temporary nonimmigrants, LPRs are the aliens most likely to press substantial which a judicial officer evaluates the likelihood of future dangerousness are specifically designed to further the accuracy of that determination"); see also Zadvydas, supra, at 721 (KENNEDY, J., dissenting) (stating that due process requires "adequate procedures" permitting detained aliens to show that "they no longer present special risks or danger" warranting confinement). 568 Opinion of SOUTER, J. challenges to removability requiring lengthy proceedings.23 See Vera Institute Study 33, 37 (stating that many of the criminal aliens studied were "lawful permanent residents who have spent much or all of their adult lives in the United States" and that 40% of those released on supervision "were allowed to stay in the United States"). Successful challenges often require several months of proceedings, see Brief for Citizens and Immigrants for Equal Justice et al. as Amici Curiae 10-20; detention for an open-ended period like this falls far short of the "stringent time limitations" held to be significant in Salerno, 481 U. S., at 747. The potential for several months of confinement requires an individualized finding of necessity under Zadvydas. 24 B The Court has failed to distinguish Zadvydas in any way that matters. It does no better in its effort to portray its result in this case as controlled by Carlson v. Landon, 342 U. S. 524 (1952), and Reno v. Flores, 507 U. S. 292 (1993). 23 Criminal aliens whose "removal proceedings are completed while [they are] still serving time for the underlying conviction," ante, at 529, are irrelevant to this case, since they are never detained pending removal proceedings under § 1226(c). 24 The Court calls several months of unnecessary imprisonment a "very limited time," ante, at 529, n. 12. But the due process requirement of an individualized finding of necessity applies to detention periods shorter than Kim's. Schall v. Martin, 467 U. S. 253 (1984), involved a maximum detention period of 17 days, id., at 270, yet our due process analysis noted that the detainee was entitled to a hearing in which he could challenge the necessity of his confinement before an impartial decisionmaker required to state the facts and reasons underlying any decision to detain, id., at 276277. The 90-day removal period in § 1231(a)(1) not only has a fixed endpoint, but also applies only after the alien has been adjudged removable, § 1231(a)(1)(B). The discussion of that provision in Zadvydas cannot be read to indicate any standard of permissible treatment of an LPR who has not yet been found removable. 569 Carlson did not involve mandatory detention. It involved a system similar to the one Kim contends for here. The aliens' detention pending deportation proceedings in Carlson followed a decision on behalf of the Attorney General that custody was preferable to release on bond or on conditional parole. 342 U. S., at 528, n. 5 (citing Internal Security Act of 1950, § 23, 64 Stat. 1011). We sustained that decision because we found that the District Director of the INS, to whom the Attorney General had delegated the authority, did not abuse his discretion in concluding that "evidence of membership [in the Communist Party] plus personal activity in supporting and extending the Party's philosophy concerning violence" made the aliens "a menace to the public interest." 342 U. S., at 541. The significance of looking to "personal activity" in our analysis was complemented by our express recognition that there was "no evidence or contention that all persons arrested as deportable ... for Communist membership are denied bail," id., at 541-542, and by a Government report showing that in fact "the large majority" of aliens arrested on charges comparable to the Carlson petitioners' were allowed bail. Id., at 542; see also id., at 538, n. 31 (noting that it was "quite clear" that "detention without bond has been the exception"). Indeed, the Carlson Court's constitutional analysis relying on the opportunity for individualized bond determinations simply followed the argument in the brief for the United States in that case. In response to the aliens' argument that the statute made it "mandatory on the Attorney General to deny bail to alien communists," the Government stated, "[w]e need not consider the constitutionality of such a law for that is not what the present law provides." Brief for Respondent in Carlson v. Landon, O. T. 1951, No. 35, p. 19; see also id., at 20 ("[T]he act itself, by its terms, leaves no doubt that the power to detain is discretionary, not mandatory"). The 570 Opinion of SOUTER, J. Government also presented the following excerpt of a statement of the chairman of the House Judiciary Committee: "'No particular hardship is going to be worked on anyone because, bear this fact in mind, it is not mandatory on the Attorney General to hold people in detention. He is given discretionary power. If in his judgment one of the class of people I have just mentioned ought to be held for paramount national reasons, he may detain him, but he is not obliged to hold anybody, although I trust that in every case of a subversive or a hardened criminal he will.'" Id., at 19 (quoting 96 Congo Rec. 10449-10450 (1950) (statement of Rep. Walter) (emphasis added in Brief for Respondent in Carlson v. Landon, supra)). In short, Carlson addressed a very different scheme from the one here. It is also beside the point for the Court to suggest that "like respondent in the present case," the Carlson petitioners challenged their detention because "there had been no finding that they were unlikely to appear for their deportation proceedings." Ante, at 524. Each of them was detained after being found to be "a menace to the public interest," 342 U. S., at 541, and their challenge, unlike Kim's, was that the INS had locked them up for an impermissible reason (danger to society) whereas only a finding of risk of flight would have justified detention. Id., at 533-534 ("It is urged ... that where there is no evidence to justify a fear of unavailability for the hearings or for the carrying out of a possible judgment of deportation, denial of bail under the circumstances of these cases is an abuse of discretion"); see also id., at 551 (Black, J., dissenting) ("A power to put in jail because dangerous cannot be derived from a power to deport").25 25 Similarly, the question presented in Butterfield v. Zydok, argued and decided together with Carlson, was "[w]hether, in exercising his discretion to grant or withhold bail pending final determination of the deportability 571 We rejected that contention, leaving the petitioners in detention because they were dangerous to the public interest, and on that issue, an official had determined that the Carlson petitioners ought to be detained. Here, however, no impartial decisionmaker has determined that detaining Kim is required for any purpose at all, and neither the Government nor the Court even claims such a need. For the same reason it is beside the point to note that the unsuccessful Carlson petitioners' brief raised a claim that detention without reference to facts personal to their individual cases would violate the Due Process Clause. Ante, at 524. As the United States pointed out in its own Carlson brief, that issue was never presented, since the District Director's exercise of discretion was based on individualized determinations that the petitioners were dangerous to society. See supra, at 570.26 Nor is the Court entitled to invoke Carlson by saying that the INS "had adopted a policy of refusing to grant bail" to alien Communists, which made the Attorney General's discretion to release aliens on bond merely "ostensibl[e]." Ante, at 524. The Carlson Court found that "[t]here is no evidence or contention that all per- of an alien, the Attorney General is justified in denying bail on the ground that the alien is an active participant in Communist Party affairs, or whether he is bound also to consider other circumstances, particularly the likelihood that the alien will report as ordered." Pet. for Cert. in Butter field v. Zydok, O. T. 1951, No. 136, p. 2. 26 While a prior conviction may sometimes evidence a risk of future danger, it is not conclusive in all cases, and Kim is a good example, given that the Government found that he "would not be considered a threat." App. 13. Indeed, the Court acknowledges that convictions are only "relevant to" dangerousness, ante, at 525, n. 9; it does not state that they compel a finding of danger in all cases. As even the Zadvydas dissent recognized, due process requires that detained criminal aliens be given an opportunity to rebut the necessity of detention by showing "that through rehabilitation, new appreciation of their responsibilities, or under other standards, they no longer present special risks or danger if put at large." 533 U. S., at 721 (opinion of KENNEDY, J.). 572 Opinion of SOUTER, J. sons arrested as deportable ... for Communist membership are denied bail." 342 U. S., at 541-542. The Court refuses to accept the opinion of the Carlson Court and the representations made in the successful brief for the Government in that case. The Court not only fails to acknowledge the actual holding of Carlson; it improperly adopts as authority statements made in dissent. The Court's emphatic assertion that "[t]here was no 'individualized findin[gJ' of likely future dangerousness as to any of the aliens," ante, at 525, rests entirely on opinions voiced in dissent, although the Court only mentions this fact in a footnote, ante, at 525, n. 8 (citing 342 U. S., at 549, 550, n. 5, 552 (Black, J., dissenting), and id., at 567 (Frankfurter, J., dissenting)). Statements made in dissent do not override the Carlson Court's express finding that the petitioners in that case were found to be not only members of the Communist Party, but "active in Communist work" and to "a degree, minor perhaps in [one] case, [participants] in Communist activities." Id., at 541.27 Moreover, the Carlson dissenters did not suggest that no individualized determinations had occurred; rather, they contended that the District Director's individual findings of dangerousness were unsupported by sufficient reliable evidence. See id., at 549-550 (Black, J., dissenting) (arguing that the aliens were not in fact "'dangerous'" at all); id., at 552 (arguing that danger findings were based on "the rankest hearsay evidence" instead of the INS being "required to prove" that the detainee was dangerous); id., at 555-556 (arguing that activity within the Communist movement did not make the aliens "dangerous"); id., at 566-567 (Frankfurter, J., 27 In the footnote immediately following its citation of dissenting opinions, the Court cites a passage from the Carlson majority opinion confirming that the Carlson petitioners' detention rested on the "allegation, supported by affidavits, that the [INS's] dossier of each petitioner contained evidence" of Communist Party membership and activities "to the prejudice of the public interest." 342 U. S., at 530 (quoted ante, at 525, n. 9). 573 dissenting) (arguing that evidence of Communist party membership was "insufficient to show danger"; that evidence of some aliens' activities was stale; and that the history of treatment of the aliens involved forced him to conclude that the Attorney General was not actually exercising discretion on an individual basis).28 And even if the Carlson dissenters were factually correct, all that would show is that the Carlson Court was misled (by the Government, no less) into deciding the case on the basis that individualized findings of dangerousness were made. Given that the Carlson Court clearly believed that it was deciding a case in which individualized determinations occurred, it is serious error for this Court to treat Carlson as deciding a case in which they did not. Finally, the Court gets no help from the isolated passages of the Carlson opinion that it quotes. Although the Carlson Court stated that detention was "'a part'" of deportation procedure, ante, at 524 (quoting Carlson, 342 U. S., at 538), it nowhere said that detention was part of every deportation proceeding. Instead, it acknowledged that "the far larger part" of aliens deportable on "subversive charges" were re- 28 Justice Black's dissenting statement that one of the aliens was" 'not likely to engage in any subversive activities,'" 342 U. S., at 549, does not amount to a "specific finding of nondangerousness," ante, at 525. On the contrary, the Court expressly stated that the Government could prove dangerousness based on "personal activity" in the Communist Party; it simply was not required to go so far as to show "specific acts of sabotage or incitement to subversive action." Carlson, supra, at 541. Thus while there was no finding of "subversive action," there certainly was a finding of "danger," albeit one that Justice Black found unconvincing. Likewise, Justice Frankfurter's statement in dissent that the Solicitor General of the United States had "advised" that "it has been the Government's policy ... to terminate bail" for aliens awaiting deportation who were "present active Communists," 342 U. S., at 568, is difficult to reconcile with the contrary statements in both the majority opinion and the United States's brief in Carlson, see supra, at 569-572. Whatever its basis, Justice Frankfurter's reference to a "policy" of bail denials does not bear the weight that the Court places upon it today. 574 Opinion of SOUTER, J. leased on "modest bonds or personal recognizances" pending their deportation proceedings. Id., at 538, n. 31. Contrary to the Court's holding today, the Carlson Court understood that discretion to admit to bail was necessary, since "[o]f course [a] purpose to injure [the United States] could not be imputed generally to all aliens subject to deportation." Id., at 538. It was only in this light that the Court said that the INS could "justify [its] refusal of bail by reference to the legislative scheme to eradicate the evils of Communist activity"; the Court was referring to the INS's power to detain on a finding that a given alien was engaged in Communist activity that threatened society. Id., at 543. The Court nowhere addressed, much less approved, the notion that the INS could justify, or that Congress could compel, an individual's detention without any determination at all that his detention was necessary to some Government purpose. And if there was ever any doubt on this point, it failed to survive our subsequent, unanimous recognition that the detention scheme in Carlson required "some level of individualized determination" as a precondition to detention. INS v. National Center for Immigrants' Rights, Inc., 502 U. S. 183 , 194-195 (1991); see also Flores, 507 U. S., at 313. Carlson stands at odds with the Court's outcome in this case. 2 The Court's paragraph on Flores, supra, is no more help to it. Like Carlson, Flores did not involve mandatory detention, and the INS regulation at issue in Flores actually required that alien juveniles be released pending removal proceedings unless the INS determined that detention was required" 'to secure [the juvenile's] timely appearance before the [INS] or the immigration court or to ensure the juvenile's safety or that of others.''' 507 U. S., at 297 (quoting 8 CFR § 242.24(b)(1) (1992)). Again, Kim agrees that such a system is constitutional and contends for it here. Flores turned not on the necessity of detention, but on the regulation's restric- 575 tion that alien juveniles could only be released to the custody of the juvenile's parent, legal guardian, or another specified adult relative. Even this limitation, however, was subject to exception for releasing a juvenile to another person in " 'unusual and compelling circumstances and in the discretion of the [INS] district director or chief patrol agent.'" 507 U. S., at 297 (quoting 8 CFR § 242.24(b)(4) (1992)). Thus, the substantive due process issue in Flores was not whether the aliens' detention was necessary to a governmental purpose: "'freedom from physical restraint'" was "not at issue" at all because, as juveniles, the aliens were" 'always in some form of custody.'" 507 U. S., at 302 (quoting Schall v. Martin, 467 U. S. 253 , 265 (1984)). Since" '[l]egal custody' rather than 'detention' more accurately describes the reality of the arrangement" in Flores, 507 U. S., at 298, that case has no bearing on this one, which concerns the detention of an adult.29 Flores is equally distinguishable at the procedural level. We held that the procedures for the custody decision sufficed constitutionally because any determination to keep the alien "in the custody of the [INS], released on recognizance, or released under bond" was open to review by the immigration court, the Board of Immigration Appeals, and the federal courts. Id., at 308. Like the aliens in Carlson, the juveniles in Flores were subject to a different system and raised a different complaint from Kim's. While Flores holds that the INS may use "reasonable presumptions and generic rules" in carrying out its statutory discretion, 507 U. S., at 313, it gave no carte blanche to gen- 29 Nor is it to the point for the Court to quote Flores as rejecting the aliens' challenge to a " , "blanket" presumption of the unsuitability of custodians other than parents, close relatives, and guardians.''' Ante, at 526 (quoting 507 U. S., at 313). Flores expressly stated that the regulation did not implicate the core liberty interest in avoiding physical confinement. Id., at 302 ("The 'freedom from physical restraint' ... is not at issue in this case"). 576 Opinion of BREYER, J. eral legislation depriving an entire class of aliens of liberty during removal proceedings. Flores did not disturb established standards that detention of an adult must be justified in each individual instance.3o IV This case is not about the National Government's undisputed power to detain aliens in order to avoid flight or prevent danger to the community. The issue is whether that power may be exercised by detaining a still lawful permanent resident alien when there is no reason for it and no way to challenge it. The Court's holding that the Due Process Clause allows this under a blanket rule is devoid of even ostensible justification in fact and at odds with the settled standard of liberty. I respectfully dissent. JUSTICE BREYER, concurring in part and dissenting in part. I agree with the majority that the courts have jurisdiction, and I join Part I of its opinion. If I believed (as the majority apparently believes, see ante, at 513-514, and n. 3) that Kim had conceded that he is deportable, then I would conclude that the Government could detain him without bail for the few weeks ordinarily necessary for formal entry of a removal order. Brief for Petitioners 39-40; see ante, at 528-531. Time limits of the kind set forth in Zadvydas v. Davis, 533 U. S. 678 (2001), should govern these and longer periods of detention, for an alien's concession that he is deportable 30 Indeed, the passages the Court quotes from Flores did not concern the regulation's constitutionality at all, but rather its validity as an implementation of the authorizing statute. Id., at 313 ("Respondents also contend that the INS regulation violates the statute because it relies upon a 'blanket' presumption"). Flores clearly separated its analysis of the regulation under the Due Process Clause from its analysis of the regulation under the statute. See id., at 300; see also id., at 318-319 (O'CONNOR, J., concurring) (pointing out the substantive due process analysis at id., at 301-306, and the procedural due process analysis at id., at 306-309). 577 seems to me the rough equivalent of the entry of an order of removal. See id., at 699-701 (reading the statute, under constitutional compulsion, as commonly imposing a presumption of a 6-month "reasonable" time limit for post-removalorder detention). This case, however, is not one in which an alien concedes deportability. As JUSTICE SOUTER points out, Kim argues to the contrary. See ante, at 541-542 (opinion concurring in part and dissenting in part). Kim claims that his earlier convictions were neither for an "'aggravated felony''' nor for two crimes of "'moral turpitude.''' Brief for Respondent 3, 11-12, 31-32, and n. 29. And given shifting lower court views on such matters, I cannot say that his arguments are insubstantial or interposed solely for purposes of delay. See, e. g., United States v. Corona-Sanchez, 291 F.3d 1201 , 1213 (CA9 2002) (petty theft with a prior not an "aggravated felony"). Compare Omagah v. Ashcroft, 288 F.3d 254 , 259 (CA5 2002) (" 'Moral turpitude refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved' "), with Guarneri v. Kessler, 98 F.2d 580, 580-581 (CA5 1938) ("Moral turpitude" involves" '[a]nything done contrary to justice, honesty, principle or good morals' "), and Quilodran-Brau v. Holland, 232 F.2d 183 , 184 (CA3 1956) ("The borderline of 'moral turpitude' is not an easy one to locate"). That being so-as long as Kim's legal arguments are neither insubstantial nor interposed solely for purposes of delay-then the immigration statutes, interpreted in light of the Constitution, permit Kim (if neither dangerous nor a flight risk) to obtain bail. For one thing, Kim's constitutional claims to bail in these circumstances are strong. See ante, at 548-552, 557-558 (SOUTER, J., concurring in part and dissenting in part). Indeed, they are strong enough to require us to "ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may 578 Opinion of BREYER, J. be avoided." Crowell v. Benson, 285 U. S. 22 , 62 (1932); accord, Zadvydas, supra, at 689. For another, the relevant statutes literally say nothing about an individual who, armed with a strong argument against deportability, might, or might not, fall within their terms. Title 8 U. S. C. § 1226(c) tells the Attorney General to "take into custody any alien who ... is deportable" (emphasis added), not one who may, or may not, fall into that category. Indeed, the Government now permits such an alien to obtain bail if his argument against deportability is significantly stronger than substantial, i. e., strong enough to make it "substantially unlikely" that the Government will win. Matter of Joseph, 22 1. & N. Dec. 799 (BIA 1999). Cf. 8 CFR § 3.19(h)(2)(ii) (2002). Finally, bail standards drawn from the criminal justice system are available to fill this statutory gap. Federallaw makes bail available to a criminal defendant after conviction and pending appeal provided (1) the appeal is "not for the purpose of delay," (2) the appeal "raises a substantial question of law or fact," and (3) the defendant shows by "clear and convincing evidence" that, if released, he "is not likely to flee or pose a danger to the safety" of the community. 18 U. S. C. § 3143(b). These standards give considerable weight to any special governmental interest in detention (e. g., process-related concerns or class-related flight risks, see ante, at 528). The standards are more protective of a detained alien's liberty interest than those currently administered in the Immigration and Naturalization Service's Joseph hearings. And they have proved workable in practice in the criminal justice system. Nothing in the statute forbids their use when § 1226(c) deportability is in doubt. I would interpret the (silent) statute as imposing these bail standards. Cf. Zadvydas, supra, at 698; United States v. Witkovich, 353 U. S. 194 , 201-202 (1957); Kent v. Dulles, 357 U. S. 116 , 129 (1958). So interpreted, the statute would require the Government to permit a detained alien to seek 579 an individualized assessment of flight risk and dangerousness as long as the alien's claim that he is not deportable is (1) not interposed solely for purposes of delay and (2) raises a question of "law or fact" that is not insubstantial. And that interpretation, in my view, is consistent with what the Constitution demands. I would remand this case to the Ninth Circuit to determine whether Kim has raised such a claim. With respect, I dissent from the Court's contrary disposition.

The Supreme Court ruled that the Immigration and Nationality Act's provision for mandatory detention of certain criminal aliens during their removal proceedings does not violate due process, and that the Attorney General's discretionary judgment regarding detention is not subject to judicial review. However, Justice Breyer's dissenting opinion argued for an interpretation of the statute that would allow for bail under certain circumstances, and for a remand to the lower court to determine if the respondent met those circumstances.

Immigration & National Security

Rasul v. Bush

https://supreme.justia.com/cases/federal/us/542/466/

OPINION OF THE COURT RASUL V. BUSH 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NOS. 03-334 AND 03-343 SHAFIQ RASUL, et al., PETITIONERS 03–334 v. GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, et al. FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al ., PETITIONERS 03–343 v. UNITED STATES et al. on writs of certiorari to the united states court of appeals for the district of columbia circuit [June 28, 2004] Justice Stevens delivered the opinion of the Court.    These two cases present the narrow but important question whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba. I    On September 11, 2001, agents of the al Qaeda terrorist network hijacked four commercial airliners and used them as missiles to attack American targets. While one of the four attacks was foiled by the heroism of the plane’s passengers, the other three killed approximately 3,000 innocent civilians, destroyed hundreds of millions of dollars of property, and severely damaged the U. S. economy. In response to the attacks, Congress passed a joint resolution authorizing the President to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks … or harbored such organizations or persons.” Authorization for Use of Military Force, Pub. L. 107–40, §§1–2, 115 Stat. 224. Acting pursuant to that authorization, the President sent U. S. Armed Forces into Afghanistan to wage a military campaign against al Qaeda and the Taliban regime that had supported it.    Petitioners in these cases are 2 Australian citizens and 12 Kuwaiti citizens who were captured abroad during hostilities between the United States and the Taliban.[ Footnote 1 ] Since early 2002, the U. S. military has held them—along with, according to the Government’s estimate, approximately 640 other non-Americans captured abroad—at the Naval Base at Guantanamo Bay. Brief for United States 6. The United States occupies the Base, which comprises 45 square miles of land and water along the southeast coast of Cuba, pursuant to a 1903 Lease Agreement executed with the newly independent Republic of Cuba in the aftermath of the Spanish-American War. Under the Agreement, “the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the [leased areas],” while “the Republic of Cuba consents that during the period of the occupation by the United States … the United States shall exercise complete jurisdiction and control over and within said areas.”[ Footnote 2 ] In 1934, the parties entered into a treaty providing that, absent an agreement to modify or abrogate the lease, the lease would remain in effect “[s]o long as the United States of America shall not abandon the … naval station of Guantanamo.”[ Footnote 3 ]    In 2002, petitioners, through relatives acting as their next friends, filed various actions in the U. S. District Court for the District of Columbia challenging the legality of their detention at the Base. All alleged that none of the petitioners has ever been a combatant against the United States or has ever engaged in any terrorist acts.[ Footnote 4 ] They also alleged that none has been charged with any wrongdoing, permitted to consult with counsel, or provided access to the courts or any other tribunal. App. 29, 77, 108.[ Footnote 5 ]    The two Australians, Mamdouh Habib and David Hicks, each filed a petition for writ of habeas corpus, seeking release from custody, access to counsel, freedom from interrogations, and other relief. Id., at 98–99, 124–126. Fawzi Khalid Abdullah Fahad Al Odah and the 11 other Kuwaiti detainees filed a complaint seeking to be informed of the charges against them, to be allowed to meet with their families and with counsel, and to have access to the courts or some other impartial tribunal. Id., at 34. They claimed that denial of these rights violates the Constitution, international law, and treaties of the United States. Invoking the court’s jurisdiction under 28 U. S. C. §§1331 and 1350, among other statutory bases, they asserted causes of action under the Administrative Procedure Act, 5 U. S. C. §§555, 702, 706; the Alien Tort Statute, 28 U. S. C. §1350; and the general federal habeas corpus statute, §§2241–2243. App. 19.    Construing all three actions as petitions for writs of habeas corpus, the District Court dismissed them for want of jurisdiction. The court held, in reliance on our opinion in Johnson v. Eisentrager, 339 U. S. 763 (1950), that “aliens detained outside the sovereign territory of the United States [may not] invok[e] a petition for a writ of habeas corpus.” 215 F. Supp. 2d 55, 68 (DC 2002). The Court of Appeals affirmed. Reading Eisentrager to hold that “ ‘the privilege of litigation’ does not extend to aliens in military custody who have no presence in ‘any territory over which the United States is sovereign,’ ” 321 F. 3d 1134, 1144 (CADC 2003) (quoting Eisentrager, 339 U. S., at 777–778), it held that the District Court lacked jurisdiction over petitioners’ habeas actions, as well as their remaining federal statutory claims that do not sound in habeas. We granted certiorari, 540 U. S. 1003 (2003), and now reverse. II    Congress has granted federal district courts, “within their respective jurisdictions,” the authority to hear applications for habeas corpus by any person who claims to be held “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U. S. C. §§2241(a), (c)(3). The statute traces its ancestry to the first grant of federal court jurisdiction: Section 14 of the Judiciary Act of 1789 authorized federal courts to issue the writ of habeas corpus to prisoners “in custody, under or by colour of the authority of the United States, or committed for trial before some court of the same.” Act of Sept. 24, 1789, ch. 20, §14, 1 Stat. 82. In 1867, Congress extended the protections of the writ to “all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States.” Act of Feb. 5, 1867, ch. 28, 14 Stat. 385. See Felker v. Turpin, 518 U. S. 651 , 659–660 (1996).    Habeas corpus is, however, “a writ antecedent to statute, … throwing its root deep into the genius of our common law.” Williams v. Kaiser, 323 U. S. 471 , 484, n. 2 (1945) (internal quotation marks omitted). The writ appeared in English law several centuries ago, became “an integral part of our common-law heritage” by the time the Colonies achieved independence, Preiser v. Rodriguez, 411 U. S. 475 , 485 (1973), and received explicit recognition in the Constitution, which forbids suspension of “[t]he Privilege of the Writ of Habeas Corpus … unless when in Cases of Rebellion or Invasion the public Safety may require it,” Art. I, §9, cl. 2.    As it has evolved over the past two centuries, the habeas statute clearly has expanded habeas corpus “beyond the limits that obtained during the 17th and 18th centuries.” Swain v. Pressley, 430 U. S. 372 , 380, n. 13 (1977). But “[a]t its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.” INS v. St. Cyr, 533 U. S. 289 , 301 (2001). See also Brown v. Allen, 344 U. S. 443 , 533 (1953) (Jackson, J., concurring in result) (“The historic purpose of the writ has been to relieve detention by executive authorities without judicial trial”). As Justice Jackson wrote in an opinion respecting the availability of habeas corpus to aliens held in U. S. custody: “Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.” Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206 , 218–219 (1953) (dissenting opinion).    Consistent with the historic purpose of the writ, this Court has recognized the federal courts’ power to review applications for habeas relief in a wide variety of cases involving Executive detention, in wartime as well as in times of peace. The Court has, for example, entertained the habeas petitions of an American citizen who plotted an attack on military installations during the Civil War, Ex parte Milligan, 4 Wall. 2 (1866), and of admitted enemy aliens convicted of war crimes during a declared war and held in the United States, Ex parte Quirin, 317 U. S. 1 (1942), and its insular possessions, In re Yamashita, 327 U. S. 1 (1946).    The question now before us is whether the habeas statute confers a right to judicial review of the legality of Executive detention of aliens in a territory over which the United States exercises plenary and exclusive jurisdiction, but not “ultimate sovereignty.”[ Footnote 6 ] III    Respondents’ primary submission is that the answer to the jurisdictional question is controlled by our decision in Eisentrager . In that case, we held that a Federal District Court lacked authority to issue a writ of habeas corpus to 21 German citizens who had been captured by U. S. forces in China, tried and convicted of war crimes by an American military commission headquartered in Nanking, and incarcerated in the Landsberg Prison in occupied Germany. The Court of Appeals in Eisentrager had found jurisdiction, reasoning that “any person who is deprived of his liberty by officials of the United States, acting under purported authority of that Government, and who can show that his confinement is in violation of a prohibition of the Constitution, has a right to the writ.” Eisentrager v. Forrestal, 174 F. 2d 961, 963 (CADC 1949). In reversing that determination, this Court summarized the six critical facts in the case: “We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus . To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.” 339 U. S., at 777. On this set of facts, the Court concluded, “no right to the writ of habeas corpus appears.” Id., at 781.    Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.    Not only are petitioners differently situated from the Eisentrager detainees, but the Court in Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners’ constitutional entitlement to habeas corpus. Id. , at 777. The Court had far less to say on the question of the petitioners’ statutory entitlement to habeas review. Its only statement on the subject was a passing reference to the absence of statutory authorization: “Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.” Id., at 768.    Reference to the historical context in which Eisentrager was decided explains why the opinion devoted so little attention to question of statutory jurisdiction. In 1948, just two months after the Eisentrager petitioners filed their petition for habeas corpus in the U. S. District Court for the District of Columbia, this Court issued its decision in Ahrens v. Clark, 335 U. S. 188 , a case concerning the application of the habeas statute to the petitions of 120 Germans who were then being detained at Ellis Island, New York, for deportation to Germany. The Ahrens detainees had also filed their petitions in the U. S. District Court for the District of Columbia, naming the Attorney General as the respondent. Reading the phrase “within their respective jurisdictions” as used in the habeas statute to require the petitioners’ presence within the district court’s territorial jurisdiction, the Court held that the District of Columbia court lacked jurisdiction to entertain the detainees’ claims. Id., at 192. Ahrens expressly reserved the question “of what process, if any, a person confined in an area not subject to the jurisdiction of any district court may employ to assert federal rights.” Id., 192, n. 4. But as the dissent noted, if the presence of the petitioner in the territorial jurisdiction of a federal district court were truly a jurisdictional requirement, there could be only one response to that question. Id., at 209 (opinion of Rutledge, J.).[ Footnote 7 ]    When the District Court for the District of Columbia reviewed the German prisoners’ habeas application in Eisentrager , it thus dismissed their action on the authority of Ahrens . See Eisentrager, 339 U. S., at 767, 790. Although the Court of Appeals reversed the District Court, it implicitly conceded that the District Court lacked jurisdiction under the habeas statute as it had been interpreted in Ahrens . The Court of Appeals instead held that petitioners had a constitutional right to habeas corpus secured by the Suspension Clause, U. S. Const., Art. I, §9, cl. 2, reasoning that “if a person has a right to a writ of habeas corpus, he cannot be deprived of the privilege by an omission in a federal jurisdictional statute.” Eisentrager v. Forrestal, 174 F. 2d, at 965. In essence, the Court of Appeals concluded that the habeas statute, as construed in Ahrens , had created an unconstitutional gap that had to be filled by reference to “fundamentals.” 174 F. 2d , at 963. In its review of that decision, this Court, like the Court of Appeals, proceeded from the premise that “nothing in our statutes” conferred federal-court jurisdiction, and accordingly evaluated the Court of Appeals’ resort to “fundamentals” on its own terms. 339 U. S., at 768.[ Footnote 8 ]    Because subsequent decisions of this Court have filled the statutory gap that had occasioned Eisentrager ’s resort to “fundamentals,” persons detained outside the territorial jurisdiction of any federal district court no longer need rely on the Constitution as the source of their right to federal habeas review. In Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 , 495 (1973), this Court held, contrary to Ahrens , that the prisoner’s presence within the territorial jurisdiction of the district court is not “an invariable prerequisite” to the exercise of district court jurisdiction under the federal habeas statute. Rather, because “the writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody,” a district court acts “within [its] respective jurisdiction” within the meaning of §2241 as long as “the custodian can be reached by service of process.” 410 U. S., at 494–495 . Braden reasoned that its departure from the rule of Ahrens was warranted in light of developments that “had a profound impact on the continuing vitality of that decision.” 410 U. S. , at 497. These developments included, notably, decisions of this Court in cases involving habeas petitioners “confined overseas (and thus outside the territory of any district court),” in which the Court “held, if only implicitly, that the petitioners’ absence from the district does not present a jurisdictional obstacle to the consideration of the claim.” Id., at 498 (citing Burns v. Wilson, 346 U. S. 137 (1953), rehearing denied, 346 U. S. 844 , 851–852 (opinion of Frankfurter, J.); United States ex rel. Toth v. Quarles, 350 U. S. 11 (1955); Hirota v. MacArthur, 338 U. S. 197 , 199 (1948) (Douglas, J., concurring)). Braden thus established that Ahrens can no longer be viewed as establishing “an inflexible jurisdictional rule,” and is strictly relevant only to the question of the appropriate forum, not to whether the claim can be heard at all. 410 U. S. , at 499–500.    Because Braden overruled the statutory predicate to Eisentrager ’s holding, Eisentrager plainly does not preclude the exercise of §2241 jurisdiction over petitioners’ claims.[ Footnote 9 ] IV    Putting Eisentrager and Ahrens to one side, respondents contend that we can discern a limit on §2241 through application of the “longstanding principle of American law” that congressional legislation is presumed not to have extraterritorial application unless such intent is clearly manifested. EEOC v. Arabian American Oil Co., 499 U. S. 244 , 248 (1991). Whatever traction the presumption against extraterritoriality might have in other contexts, it certainly has no application to the operation of the habeas statute with respect to persons detained within “the territorial jurisdiction” of the United States. Foley Bros., Inc. v. Filardo, 336 U. S. 281 , 285 (1949). By the express terms of its agreements with Cuba, the United States exercises “complete jurisdiction and control” over the Guantanamo Bay Naval Base, and may continue to exercise such control permanently if it so chooses. 1903 Lease Agreement, Art. III; 1934 Treaty, Art. III. Respondents themselves concede that the habeas statute would create federal-court jurisdiction over the claims of an American citizen held at the base. Tr. of Oral Arg. 27. Considering that the statute draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the geographical coverage of the statute to vary depending on the detainee’s citizenship.[ Footnote 10 ] Aliens held at the base, no less than American citizens, are entitled to invoke the federal courts’ authority under §2241.    Application of the habeas statute to persons detained at the base is consistent with the historical reach of the writ of habeas corpus. At common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm,[ Footnote 11 ] as well as the claims of persons detained in the so-called “exempt jurisdictions,” where ordinary writs did not run,[ Footnote 12 ] and all other dominions under the sovereign’s control.[ Footnote 13 ] As Lord Mansfield wrote in 1759, even if a territory was “no part of the realm,” there was “no doubt” as to the court’s power to issue writs of habeas corpus if the territory was “under the subjection of the Crown.” King v. Cowle, 2 Burr. 834, 854–855, 97 Eng. Rep. 587, 598–599 (K. B.). Later cases confirmed that the reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of “the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown.” Ex parte Mwenya, [1960] 1 Q. B. 241, 303 (C. A.) (Lord Evershed, M. R.).[ Footnote 14 ]    In the end, the answer to the question presented is clear. Petitioners contend that they are being held in federal custody in violation of the laws of the United States.[ Footnote 15 ] No party questions the District Court’s jurisdiction over petitioners’ custodians. Cf. Braden, 410 U. S., at 495. Section 2241, by its terms, requires nothing more. We therefore hold that §2241 confers on the District Court jurisdiction to hear petitioners’ habeas corpus challenges to the legality of their detention at the Guantanamo Bay Naval Base. V    In addition to invoking the District Court’s jurisdiction under §2241, the Al Odah petitioners’ complaint invoked the court’s jurisdiction under 28 U. S. C. §1331, the federal question statute, as well as §1350, the Alien Tort Statute. The Court of Appeals, again relying on Eisentrager , held that the District Court correctly dismissed the claims founded on §1331 and §1350 for lack of jurisdiction, even to the extent that these claims “deal only with conditions of confinement and do not sound in habeas,” because petitioners lack the “privilege of litigation” in U. S. courts. 321 F. 3d, at 1144 (internal quotation marks omitted). Specifically, the court held that because petitioners’ §1331 and §1350 claims “necessarily rest on alleged violations of the same category of laws listed in the habeas corpus statute,” they, like claims founded on the habeas statute itself, must be “beyond the jurisdiction of the federal courts.” Id. , at 1144–1145.    As explained above, Eisentrager itself erects no bar to the exercise of federal court jurisdiction over the petitioners’ habeas corpus claims. It therefore certainly does not bar the exercise of federal-court jurisdiction over claims that merely implicate the “same category of laws listed in the habeas corpus statute.” But in any event, nothing in Eisentrager or in any of our other cases categorically excludes aliens detained in military custody outside the United States from the “ ‘privilege of litigation’ ” in U. S. courts. 321 F. 3d, at 1139. The courts of the United States have traditionally been open to nonresident aliens. Cf. Disconto Gesellschaft v. Umbreit, 208 U. S. 570 , 578 (1908) (“Alien citizens, by the policy and practice of the courts of this country, are ordinarily permitted to resort to the courts for the redress of wrongs and the protection of their rights”). And indeed, 28 U. S. C. §1350 explicitly confers the privilege of suing for an actionable “tort … committed in violation of the law of nations or a treaty of the United States” on aliens alone. The fact that petitioners in these cases are being held in military custody is immaterial to the question of the District Court’s jurisdiction over their nonhabeas statutory claims. VI    Whether and what further proceedings may become necessary after respondents make their response to the merits of petitioners’ claims are matters that we need not address now. What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing. Answering that question in the affirmative, we reverse the judgment of the Court of Appeals and remand for the District Court to consider in the first instance the merits of petitioners’ claims. It is so ordered. Footnote 1 When we granted certiorari, the petitioners also included two British citizens, Shafiq Rasul and Asif Iqbal. These petitioners have since been released from custody. Footnote 2 Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U. S.-Cuba, Art. III, T. S. No. 418 (hereinafter 1903 Lease Agreement). A supplemental lease agreement, executed in July 1903, obligates the United States to pay an annual rent in the amount of “two thousand dollars, in gold coin of the United States” and to maintain “permanent fences” around the base. Lease of Certain Areas for Naval or Coaling Stations, July 2, 1903, U. S.-Cuba, Arts. I–II, T. S. No. 426. Footnote 3 Treaty Defining Relations with Cuba, May 29, 1934, U. S.-Cuba, Art. III, 48 Stat. 1683, T. S. No. 866 (hereinafter 1934 Treaty). Footnote 4 Relatives of the Kuwaiti detainees allege that the detainees were taken captive “by local villagers seeking promised bounties or other financial rewards” while they were providing humanitarian aid in Afghanistan and Pakistan, and were subsequently turned over to U. S. custody. App. 24–25. The Australian David Hicks was allegedly captured in Afghanistan by the Northern Alliance, a coalition of Afghan groups opposed to the Taliban, before he was turned over to the United States. Id., at 84. The Australian Mamdouh Habib was allegedly arrested in Pakistan by Pakistani authorities and turned over to Egyptian authorities, who in turn transferred him to U. S. custody. Id., at 110–111. Footnote 5 David Hicks has since been permitted to meet with counsel. Brief for United States 9. Footnote 6 1903 Lease Agreement, Art. III. Footnote 7 Justice Rutledge wrote:    “[I]f absence of the body detained from the territorial jurisdiction of the court having jurisdiction of the jailer creates a total and irremediable void in the court’s capacity to act, … then it is hard to see how that gap can be filled by such extraneous considerations as whether there is no other court in the place of detention from which remedy might be had … .” 335 U. S., at 209. Footnote 8 Although Justice Scalia disputes the basis for the Court of Appeals’ holding, post, at 4, what is most pertinent for present purposes is that this Court clearly understood the Court of Appeals’ decision to rest on constitutional and not statutory grounds. Eisentrager, 339 U. S., at 767 (“[The Court of Appeals] concluded that any person, including an enemy alien, deprived of his liberty anywhere under any purported authority of the United States is entitled to the writ if he can show that extension to his case of any constitutional rights or limitations would show his imprisonment illegal; [and] that, although no statutory jurisdiction of such cases is given , courts must be held to possess it as part of the judicial power of the United States …” (emphasis added)). Footnote 9 The dissent argues that Braden did not overrule Ahrens ’ jurisdictional holding, but simply distinguished it. Post, at 7. Of course, Braden itself indicated otherwise, 410 U. S., at 495–500, and a long line of judicial and scholarly interpretations, beginning with then-Justice Rehnquist’s dissenting opinion, have so understood the decision. See, e.g., id., at 502 (“Today the Court overrules Ahrens ”); Moore v. Olson , 368 F. 3d 757, 758 (CA7 2004) (“[A]fter Braden … , which overruled Ahrens , the location of a collateral attack is best understood as a matter of venue”); Armentero v. INS , 340 F. 3d 1058, 1063 (CA9 2003) (“[T]he Court in [Braden] declared that Ahrens was overruled” (citations omitted)); Henderson v. INS, 157 F. 3d 106, 126, n. 20 (CA2 1998) (“On the issue of territorial jurisdiction, Ahrens was subsequently overruled by Braden ”); Chatman-Bey v. Thornburgh, 864 F. 2d 804, 811 (CADC 1988) (en banc) (“[I]n Braden , the Court cut back substantially on Ahrens (and indeed overruled its territorially-based jurisdictional holding)”). See also, e.g., Patterson v. McLean Credit Union, 485 U. S. 617 , 618 (1988) (per curiam); Eskridge, Overruling Statutory Precedents, 76 Geo. L. J. 1361, App. A (1988).    The dissent also disingenuously contends that the continuing vitality of Ahrens ’ jurisdictional holding is irrelevant to the question presented in these cases, “inasmuch as Ahrens did not pass upon any of the statutory issues decided by Eisentrager .” Post, at 7. But what Justice Scalia describes as Eisentrager ’s statutory holding—“that, unaided by the canon of constitutional avoidance, the statute did not confer jurisdiction over an alien detained outside the territorial jurisdiction of the courts of the United States,” post, at 6—is little more than the rule of Ahrens cloaked in the garb of Eisentrager ’s facts. To contend plausibly that this holding survived Braden , Justice Scalia at a minimum must find a textual basis for the rule other than the phrase “within their respective jurisdictions”—a phrase which, after Braden , can no longer be read to require the habeas petitioner’s physical presence within the territorial jurisdiction of a federal district court. Two references to the district of confinement in provisions relating to recordkeeping and pleading requirements in proceedings before circuit judges hardly suffice in that regard. See post, at 2 (citing 28 U. S. C. §§2241(a), 2242). Footnote 10 Justice Scalia appears to agree that neither the plain text of the statute nor his interpretation of that text provides a basis for treating American citizens differently from aliens. Post, at 10. But resisting the practical consequences of his position, he suggests that he might nevertheless recognize an “atextual exception” to his statutory rule for citizens held beyond the territorial jurisdiction of the federal district courts. Ibid . Footnote 11 See, e.g., King v. Schiever, 2 Burr. 765, 97 Eng. Rep. 551 (K. B. 1759) (reviewing the habeas petition of a neutral alien deemed a prisoner of war because he was captured aboard an enemy French privateer during a war between England and France); Sommersett v. Stewart, 20 How. St. Tr. 1, 79–82 (K. B. 1772) (releasing on habeas an African slave purchased in Virginia and detained on a ship docked in England and bound for Jamaica); Case of the Hottentot Venus, 13 East 195, 104 Eng. Rep. 344 (K. B. 1810) (reviewing the habeas petition of a “native of South Africa ” allegedly held in private custody). American courts followed a similar practice in the early years of the Republic. See, e.g., United States v. Villato, 2 Dall. 370 (CC Pa. 1797) (granting habeas relief to Spanish-born prisoner charged with treason on the ground that he had never become a citizen of the United States); Ex parte D’Olivera, 7 F. Cas. 853 (No, 3,967) (CC Mass. 1813) (Story, J., on circuit) (ordering the release of Portuguese sailors arrested for deserting their ship); Wilson v. Izard, 30 F. Cas. 131 (No. 17,810) (CC NY 1815) (Livingston, J., on circuit) (reviewing the habeas petition of enlistees who claimed that they were entitled to discharge because of their status as enemy aliens). Footnote 12 See, e.g., Bourn’s Case, Cro. Jac. 543, 79 Eng. Rep. 465 (K. B. 1619) (writ issued to the Cinque-Ports town of Dover); Alder v. Puisy, 1 Freeman 12, 89 Eng. Rep. 10 (K. B. 1671) (same); Jobson’s Case, Latch 160, 82 Eng. Rep. 325 (K. B. 1626) (entertaining the habeas petition of a prisoner held in the County Palatine of Durham). See also 3 W. Blackstone, Commentaries on the Laws of England 79 (1769) (hereinafter Blackstone) (“[A]ll prerogative writs (as those of habeas corpus , prohibition, certiorari , and mandamus ) may issue … to all these exempt jurisdictions; because the privilege, that the king’s writ runs not, must be intended between party and party, for there can be no such privilege against the king” (footnotes omitted)); R. Sharpe, Law of Habeas Corpus 188–189 (2d ed. 1989) (describing the “extraordinary territorial ambit” of the writ at common law). Footnote 13 See, e.g., King v. Overton, 1 Sid. 387, 82 Eng. Rep. 1173 (K. B. 1668) (writ issued to Isle of Jersey); King v. Salmon, 2 Keble 450, 84 Eng. Rep. 282 (K. B. 1669) (same). See also 3 Blackstone 131 (habeas corpus “run[s] into all parts of the king’s dominions: for the king is at all times [e]ntitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted” (footnotes omitted)); M. Hale, History of the Common Law 120–121 (C. Gray ed. 1971) (writ of habeas corpus runs to the Channel Islands, even though “they are not Parcel of the Realm of England”). Footnote 14 Ex parte Mwenya held that the writ ran to a territory described as a “foreign country within which [the Crown] ha[d] power and jurisdiction by treaty, grant, usage, sufferance, and other lawful means.” Ex parte Mwenya, 1 Q. B., at 265 (internal quotation marks omitted). See also King v. The Earl of Crewe ex parte Sekgome, [1910] 2 K. B. 576, 606 (C. A.) (Williams, L. J.) (concluding that the writ would run to such a territory); id., at 618 (Farwell, L. J.) (same). As Lord Justice Sellers explained:    “Lord Mansfield gave the writ the greatest breadth of application which in the then circumstances could well be conceived… . ‘Subjection’ is fully appropriate to the powers exercised or exercisable by this country irrespective of territorial sovereignty or dominion, and it embraces in outlook the power of the Crown in the place concerned.’ ” 1 Q. B. , at 310.    Justice Scalia cites In re Ning Yi-Ching , 56 T. L. R. 3 (Vacation Ct. 1939), for the broad proposition that habeas corpus has been categorically unavailable to aliens held outside sovereign territory. Post, at 18. Ex parte Mwenya , however, casts considerable doubt on this narrow view of the territorial reach of the writ. See Ex parte Mwenya, 1 Q. B., at 295 (Lord Evershed, M. R.) (noting that In re Ning Yi-Ching relied on Lord Justice Kennedy’s opinion in Ex parte Sekgome concerning the territorial reach of the writ, despite the opinions of two members of the court who “took a different view upon this matter”). And In re Ning Yi-Ching itself made quite clear that “the remedy of habeas corpus was not confined to British subjects,” but would extend to “any person … detained” within reach of the writ. 56 T. L. R., at 5 (citing Ex parte Sekgome, 2 K. B., at 620 (Kennedy, L. J.)). Moreover, the result in that case can be explained by the peculiar nature of British control over the area where the petitioners, four Chinese nationals accused of various criminal offenses, were being held pending transfer to the local district court. Although the treaties governing the British Concession at Tientsin did confer on Britain “certain rights of administration and control,” “the right to administer justice” to Chinese nationals was not among them. 56 T. L. R., at 4–6. Footnote 15 Petitioners’ allegations—that, although they have engaged neither in combat nor in acts of terrorism against the United States, they have been held in Executive detention for more than two years in territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without being charged with any wrongdoing—unquestionably describe “custody in violation of the Constitution or laws or treaties of the United States.” 28 U. S. C. §2241(c)(3). Cf. United States v. Verdugo-Urquidez, 494 U. S. 259 , 277–278 (1990) (Kennedy, J., concurring), and cases cited therein. KENNEDY, J., CONCURRING IN JUDGMENT RASUL V. BUSH 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NOS. 03-334 AND 03-343 SHAFIQ RASUL, et al., PETITIONERS 03–334 v. GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, et al. FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al ., PETITIONERS 03–343 v. UNITED STATES et al. on writs of certiorari to the united states court of appeals for the district of columbia circuit [June 28, 2004] Justice Kennedy , concurring in the judgment.    The Court is correct, in my view, to conclude that federal courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals held at the Guantanamo Bay Naval Base in Cuba. While I reach the same conclusion, my analysis follows a different course. Justice Scalia exposes the weakness in the Court’s conclusion that Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973), “overruled the statutory predicate to Eisentrager ’s holding,” ante, at 10–11. As he explains, the Court’s approach is not a plausible reading of Braden or Johnson v. Eisentrager, 339 U. S. 763 (1950). In my view, the correct course is to follow the framework of Eisentrager. Eisentrager considered the scope of the right to petition for a writ of habeas corpus against the backdrop of the constitutional command of the separation of powers. The issue before the Court was whether the Judiciary could exercise jurisdiction over the claims of German prisoners held in the Landsberg prison in Germany following the cessation of hostilities in Europe. The Court concluded the petition could not be entertained. The petition was not within the proper realm of the judicial power. It concerned matters within the exclusive province of the Executive, or the Executive and Congress, to determine.    The Court began by noting the “ascending scale of rights” that courts have recognized for individuals depending on their connection to the United States. Id ., at 770. Citizenship provides a longstanding basis for jurisdiction, the Court noted, and among aliens physical presence within the United States also “gave the Judiciary power to act.” Id ., at 769, 771. This contrasted with the “essential pattern for seasonable Executive constraint of enemy aliens.” Id ., at 773. The place of the detention was also important to the jurisdictional question, the Court noted. Physical presence in the United States “implied protection,” id ., at 777–778, whereas in Eisentrager “th[e] prisoners at no relevant time were within any territory over which the United States is sovereign,” id., at 778. The Court next noted that the prisoners in Eisentrager “were actual enemies” of the United States, proven to be so at trial, and thus could not justify “a limited opening of our courts” to distinguish the “many [aliens] of friendly personal disposition to whom the status of enemy” was unproven. Id ., at 778. Finally, the Court considered the extent to which jurisdiction would “hamper the war effort and bring aid and comfort to the enemy.” Id ., at 779. Because the prisoners in Eisentrager were proven enemy aliens found and detained outside the United States, and because the existence of jurisdiction would have had a clear harmful effect on the Nation’s military affairs, the matter was appropriately left to the Executive Branch and there was no jurisdiction for the courts to hear the prisoner’s claims.    The decision in Eisentrager indicates that there is a realm of political authority over military affairs where the judicial power may not enter. The existence of this realm acknowledges the power of the President as Commander in Chief, and the joint role of the President and the Congress, in the conduct of military affairs. A faithful application of Eisentrager , then, requires an initial inquiry into the general circumstances of the detention to determine whether the Court has the authority to entertain the petition and to grant relief after considering all of the facts presented. A necessary corollary of Eisentrager is that there are circumstances in which the courts maintain the power and the responsibility to protect persons from unlawful detention even where military affairs are implicated. See also Ex parte Milligan, 4 Wall. 2 (1866).    The facts here are distinguishable from those in Eisentrager in two critical ways, leading to the conclusion that a federal court may entertain the petitions. First, Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities. The opinion of the Court well explains the history of its possession by the United States. In a formal sense, the United States leases the Bay; the 1903 lease agreement states that Cuba retains “ultimate sovereignty” over it. Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U. S.-Cuba, Art. III, T. S. No. 418. At the same time, this lease is no ordinary lease. Its term is indefinite and at the discretion of the United States. What matters is the unchallenged and indefinite control that the United States has long exercised over Guantanamo Bay. From a practical perspective, the indefinite lease of Guantanamo Bay has produced a place that belongs to the United States, extending the “implied protection” of the United States to it. Eisentrager, supra, at 777–778.    The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status. In Eisentrager , the prisoners were tried and convicted by a military commission of violating the laws of war and were sentenced to prison terms. Having already been subject to procedures establishing their status, they could not justify “a limited opening of our courts” to show that they were “of friendly personal disposition” and not enemy aliens. 339 U. S., at 778. Indefinite detention without trial or other proceeding presents altogether different considerations. It allows friends and foes alike to remain in detention. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus. Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.    In light of the status of Guantanamo Bay and the indefinite pretrial detention of the detainees, I would hold that federal-court jurisdiction is permitted in these cases. This approach would avoid creating automatic statutory authority to adjudicate the claims of persons located outside the United States, and remains true to the reasoning of Eisentrager . For these reasons, I concur in the judgment of the Court. SCALIA, J., DISSENTING RASUL V. BUSH 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NOS. 03-334 AND 03-343 SHAFIQ RASUL, et al., PETITIONERS 03–334 v. GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, et al. FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al ., PETITIONERS 03–343 v. UNITED STATES et al. on writs of certiorari to the united states court of appeals for the district of columbia circuit [June 28, 2004] Justice Scalia , with whom The Chief Justice and Justice Thomas join, dissenting.    The Court today holds that the habeas statute, 28 U. S. C. §2241, extends to aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. This is not only a novel holding; it contradicts a half-century-old precedent on which the military undoubtedly relied, Johnson v. Eisentrager, 339 U. S. 763 (1950). The Court’s contention that Eisentrager was somehow negated by Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973)—a decision that dealt with a different issue and did not so much as mention Eisentrager —is implausible in the extreme. This is an irresponsible overturning of settled law in a matter of extreme importance to our forces currently in the field. I would leave it to Congress to change §2241, and dissent from the Court’s unprecedented holding. I    As we have repeatedly said: “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction . . . .” Kokkonen v. Guardian Life Ins. Co. of America, 511 U. S. 375 , 377 (1994) (citations omitted). The petitioners do not argue that the Constitution independently requires jurisdiction here.[ Footnote 1 ] Accordingly, this case turns on the words of §2241, a text the Court today largely ignores. Even a cursory reading of the habeas statute shows that it presupposes a federal district court with territorial jurisdiction over the detainee. Section 2241(a) states: “Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions .” (Emphasis added). It further requires that “[t]he order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had .” 28 U. S. C. §2241(a) (emphases added). And §2242 provides that a petition “addressed to the Supreme Court, a justice thereof or a circuit judge . . . shall state the reasons for not making application to the district court of the district in which the applicant is held .” (Emphases added). No matter to whom the writ is directed, custodian or detainee, the statute could not be clearer that a necessary requirement for issuing the writ is that some federal district court have territorial jurisdiction over the detainee. Here, as the Court allows, see ante , at 10, the Guantanamo Bay detainees are not located within the territorial jurisdiction of any federal district court. One would think that is the end of this case.    The Court asserts, however, that the decisions of this Court have placed a gloss on the phrase “within their respective jurisdictions” in §2241 which allows jurisdiction in this case. That is not so. In fact, the only case in point holds just the opposite (and just what the statute plainly says). That case is Eisentrager , but to fully understand its implications for the present dispute, I must also discuss our decisions in the earlier case of Ahrens v. Clark, 335 U. S. 188 (1948), and the later case of Braden .    In Ahrens , the Court considered “whether the presence within the territorial jurisdiction of the District Court of the person detained is prerequisite to filing a petition for a writ of habeas corpus.” 335 U. S., at 189 (construing 28 U. S. C. §452, the statutory precursor to §2241). The Ahrens detainees were held at Ellis Island, New York, but brought their petitions in the District Court for the District of Columbia. Interpreting “within their respective jurisdictions,” the Court held that a district court has jurisdiction to issue the writ only on behalf of petitioners detained within its territorial jurisdiction. It was “not sufficient . . . that the jailer or custodian alone be found in the jurisdiction.” 335 U. S., at 190. Ahrens explicitly reserved “the question of what process, if any, a person confined in an area not subject to the jurisdiction of any district court may employ to assert federal rights.” Id. , at 192, n. 4. That question, the same question presented to this Court today, was shortly thereafter resolved in Eisentrager insofar as noncitizens are concerned. Eisentrager involved petitions for writs of habeas corpus filed in the District Court for the District of Columbia by German nationals imprisoned in Landsberg Prison, Germany. The District Court, relying on Ahrens , dismissed the petitions because the petitioners were not located within its territorial jurisdiction. The Court of Appeals reversed. According to the Court today, the Court of Appeals “implicitly conceded that the District Court lacked jurisdiction under the habeas statute as it had been interpreted in Ahrens ,” and “[i]n essence . . . concluded that the habeas statute, as construed in Ahrens , had created an unconstitutional gap that had to be filled by reference to ‘fundamentals.’ ” Ante , at 9. That is not so. The Court of Appeals concluded that there was statutory jurisdiction. It arrived at that conclusion by applying the canon of constitutional avoidance: “[I]f the existing jurisdictional act be construed to deny the writ to a person entitled to it as a substantive right, the act would be unconstitutional. It should be construed, if possible, to avoid that result.” Eisentrager v. Forrestal , 174 F. 2d 961, 966 (CADC 1949). In cases where there was no territorial jurisdiction over the detainee, the Court of Appeals held, the writ would lie at the place of a respondent with directive power over the detainee. “It is not too violent an interpretation of ‘custody’ to construe it as including those who have directive custody, as well as those who have immediate custody, where such interpretation is necessary to comply with constitutional requirements. . . . The statute must be so construed , lest it be invalid as constituting a suspension of the writ in violation of the constitutional provision.” Id. , at 967 (emphasis added).[ Footnote 2 ]    This Court’s judgment in Eisentrager reversed the Court of Appeals. The opinion was largely devoted to rejecting the lower court’s constitutional analysis, since the doctrine of constitutional avoidance underlay its statutory conclusion. But the opinion had to pass judgment on whether the statute granted jurisdiction, since that was the basis for the judgments of both lower courts. A conclusion of no constitutionally conferred right would obviously not support reversal of a judgment that rested upon a statutorily conferred right.[ Footnote 3 ] And absence of a right to the writ under the clear wording of the habeas statute is what the Eisentrager opinion held: “Nothing in the text of the Constitution extends such a right, nor does anything in our statutes .” 339 U. S., at 768 (emphasis added). “[T]hese prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States .” Id. , at 777–778. See also id. , at 781 (concluding that “no right to the writ of habeas corpus appears”); id. , at 790 (finding “no basis for invoking federal judicial power in any district”). The brevity of the Court’s statutory analysis signifies nothing more than that the Court considered it obvious (as indeed it is) that, unaided by the canon of constitutional avoidance, the statute did not confer jurisdiction over an alien detained outside the territorial jurisdiction of the courts of the United States. Eisentrager ’s directly-on-point statutory holding makes it exceedingly difficult for the Court to reach the result it desires today. To do so neatly and cleanly, it must either argue that our decision in Braden overruled Eisentrager , or admit that it is overruling Eisentrager . The former course would not pass the laugh test, inasmuch as Braden dealt with a detainee held within the territorial jurisdiction of a district court, and never mentioned Eisentrager . And the latter course would require the Court to explain why our almost categorical rule of stare decisis in statutory cases should be set aside in order to complicate the present war, and , having set it aside, to explain why the habeas statute does not mean what it plainly says. So instead the Court tries an oblique course: “ Braden ,” it claims, “overruled the statutory predicate to Eisentrager ’s holding,” ante , at 11 (emphasis added), by which it means the statutory analysis of Ahrens . Even assuming, for the moment, that Braden overruled some aspect of Ahrens , inasmuch as Ahrens did not pass upon any of the statutory issues decided by Eisentrager , it is hard to see how any of that case’s “statutory predicate” could have been impaired.    But in fact Braden did not overrule Ahrens; it distinguished Ahrens . Braden dealt with a habeas petitioner incarcerated in Alabama. The petitioner filed an application for a writ of habeas corpus in Kentucky, challenging an indictment that had been filed against him in that Commonwealth and naming as respondent the Kentucky court in which the proceedings were pending. This Court held that Braden was in custody because a detainer had been issued against him by Kentucky, and was being executed by Alabama, serving as an agent for Kentucky. We found that jurisdiction existed in Kentucky for Braden’s petition challenging the Kentucky detainer, notwithstanding his physical confinement in Alabama. Braden was careful to distinguish that situation from the general rule established in Ahrens . “A further, critical development since our decision in Ahrens is the emergence of new classes of prisoners who are able to petition for habeas corpus because of the adoption of a more expansive definition of the ‘custody’ requirement of the habeas statute. The overruling of McNally v. Hill, 293 U. S. 131 (1934), made it possible for prisoners in custody under one sentence to attack a sentence which they had not yet begun to serve. And it also enabled a petitioner held in one State to attack a detainer lodged against him by another State. In such a case, the State holding the prisoner in immediate confinement acts as agent for the demanding State, and the custodian State is presumably indifferent to the resolution of the prisoner’s attack on the detainer. Here, for example, the petitioner is confined in Alabama, but his dispute is with the Commonwealth of Kentucky, not the State of Alabama. Under these circumstances , it would serve no useful purpose to apply the Ahrens rule and require that the action be brought in Alabama.” 410 U. S., at 498–499 (citations and footnotes omitted; emphases added). This cannot conceivably be construed as an overturning of the Ahrens rule in other circumstances . See also Braden , supra , at 499–500 (noting that Ahrens does not establish “an inflexible jurisdictional rule dictating the choice of an inconvenient forum even in a class of cases which could not have been foreseen at the time of that decision ” (emphasis added)). Thus, Braden stands for the proposition, and only the proposition, that where a petitioner is in custody in multiple jurisdictions within the United States, he may seek a writ of habeas corpus in a jurisdiction in which he suffers legal confinement, though not physical confinement, if his challenge is to that legal confinement. Outside that class of cases, Braden did not question the general rule of Ahrens (much less that of Eisentrager ). Where, as here, present physical custody is at issue, Braden is inapposite, and Eisentrager unquestionably controls.[ Footnote 4 ]    The considerations of forum convenience that drove the analysis in Braden do not call into question Eisentrager ’s holding. The Braden opinion is littered with venue reasoning of the following sort: “The expense and risk of transporting the petitioner to the Western District of Kentucky, should his presence at a hearing prove necessary, would in all likelihood be outweighed by the difficulties of transporting records and witnesses from Kentucky to the district where petitioner is confined.” 410 U. S., at 494. Of course nothing could be more inconvenient than what the Court (on the alleged authority of Braden ) prescribes today: a domestic hearing for persons held abroad, dealing with events that transpired abroad.    Attempting to paint Braden as a refutation of Ahrens (and thereby, it is suggested, Eisentrager ), today’s Court imprecisely describes Braden as citing with approval post- Ahrens cases in which “habeas petitioners” located overseas were allowed to proceed (without consideration of the jurisdictional issue) in the District Court for the District of Columbia. Ante , at 10. In fact, what Braden said is that “[w]here American citizens confined overseas (and thus outside the territory of any district court) have sought relief in habeas corpus, we have held, if only implicitly, that the petitioners’ absence from the district does not present a jurisdictional obstacle to consideration of the claim.” 410 U. S., at 498 (emphasis added). Of course “the existence of unaddressed jurisdictional defects has no precedential effect,” Lewis v. Casey, 518 U. S. 343 , 352, n. 2 (1996) (citing cases), but we need not “overrule” those implicit holdings to decide this case. Since Eisentrager itself made an exception for such cases, they in no way impugn its holding. “With the citizen,” Eisentrager said, “we are now little concerned, except to set his case apart as untouched by this decision and to take measure of the difference between his status and that of all categories of aliens.” 339 U. S., at 769. The constitutional doubt that the Court of Appeals in Eisentrager had erroneously attributed to the lack of habeas for an alien abroad might indeed exist with regard to a citizen abroad—justifying a strained construction of the habeas statute, or (more honestly) a determination of constitutional right to habeas. Neither party to the present case challenges the atextual extension of the habeas statute to United States citizens held beyond the territorial jurisdictions of the United States courts; but the possibility of one atextual exception thought to be required by the Constitution is no justification for abandoning the clear application of the text to a situation in which it raises no constitutional doubt.    The reality is this: Today’s opinion, and today’s opinion alone, overrules Eisentrager; today’s opinion, and today’s opinion alone, extends the habeas statute, for the first time, to aliens held beyond the sovereign territory of the United States and beyond the territorial jurisdiction of its courts. No reasons are given for this result; no acknowledgment of its consequences made. By spurious reliance on Braden the Court evades explaining why stare decisis can be disregarded, and why Eisentrager was wrong . Normally, we consider the interests of those who have relied on our decisions. Today, the Court springs a trap on the Executive, subjecting Guantanamo Bay to the oversight of the federal courts even though it has never before been thought to be within their jurisdiction—and thus making it a foolish place to have housed alien wartime detainees. II    In abandoning the venerable statutory line drawn in Eisentrager , the Court boldly extends the scope of the habeas statute to the four corners of the earth. Part III of its opinion asserts that Braden stands for the proposition that “a district court acts ‘within [its] respective jurisdiction’ within the meaning of §2241 as long as ‘the custodian can be reached by service of process.’ ” Ante , at 10. Endorsement of that proposition is repeated in Part IV. Ante , at 16 (“Section 2241, by its terms, requires nothing more [than the District Court’s jurisdiction over petitioners’ custodians]”).    The consequence of this holding, as applied to aliens outside the country, is breathtaking. It permits an alien captured in a foreign theater of active combat to bring a §2241 petition against the Secretary of Defense. Over the course of the last century, the United States has held millions of alien prisoners abroad. See, e.g. , Department of Army, G. Lewis & J. Mewha, History of Prisoner of War Utilization by the United States Army 1776–1945, Pamphlet No. 20–213, p. 244 (1955) (noting that, “[b]y the end of hostilities [in World War II], U. S. forces had in custody approximately two million enemy soldiers”). A great many of these prisoners would no doubt have complained about the circumstances of their capture and the terms of their confinement. The military is currently detaining over 600 prisoners at Guantanamo Bay alone; each detainee undoubtedly has complaints—real or contrived—about those terms and circumstances. The Court’s unheralded expansion of federal-court jurisdiction is not even mitigated by a comforting assurance that the legion of ensuing claims will be easily resolved on the merits. To the contrary, the Court says that the “[p]etitioners’ allegations . . . unquestionably describe ‘custody in violation of the Constitution or laws or treaties of the United States.’ ” Ante , at 15, n. 15 (citing United States v. Verdugo-Urquidez, 494 U. S. 259 , 277–278 (1990) (Kennedy, J., concurring)). From this point forward, federal courts will entertain petitions from these prisoners, and others like them around the world, challenging actions and events far away, and forcing the courts to oversee one aspect of the Executive’s conduct of a foreign war.    Today’s carefree Court disregards, without a word of acknowledgment, the dire warning of a more circumspect Court in Eisentrager: “To grant the writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation for shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be conflict between judicial and military opinion highly comforting to enemies of the United States.” 339 U. S., at 778–779. These results should not be brought about lightly, and certainly not without a textual basis in the statute and on the strength of nothing more than a decision dealing with an Alabama prisoner’s ability to seek habeas in Kentucky. III Part IV of the Court’s opinion, dealing with the status of Guantanamo Bay, is a puzzlement.    The Court might have made an effort (a vain one, as I shall discuss) to distinguish Eisentrager on the basis of a difference between the status of Landsberg Prison in Germany and Guantanamo Bay Naval Base. But Part III flatly rejected such an approach, holding that the place of detention of an alien has no bearing on the statutory availability of habeas relief, but “is strictly relevant only to the question of the appropriate forum.” Ante , at 11. That rejection is repeated at the end of Part IV: “In the end, the answer to the question presented is clear. . . . No party questions the District Court’s jurisdiction over petitioners’ custodians. . . . Section 2241, by its terms, requires nothing more.” Ante , at 15–16. Once that has been said, the status of Guantanamo Bay is entirely irrelevant to the issue here. The habeas statute is (according to the Court) being applied domestically , to “petitioners’ custodians,” and the doctrine that statutes are presumed to have no extraterritorial effect simply has no application.    Nevertheless, the Court spends most of Part IV rejecting respondents’ invocation of that doctrine on the peculiar ground that it has no application to Guantanamo Bay. Of course if the Court is right about that, not only §2241 but presumably all United States law applies there—including, for example, the federal cause of action recognized in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), which would allow prisoners to sue their captors for damages. Fortunately, however, the Court’s irrelevant discussion also happens to be wrong.    The Court gives only two reasons why the presumption against extraterritorial effect does not apply to Guantanamo Bay. First, the Court says (without any further elaboration) that “the United States exercises ‘complete jurisdiction and control’ over the Guantanamo Bay Naval Base [under the terms of a 1903 lease agreement], and may continue to exercise such control permanently if it so chooses [under the terms of a 1934 Treaty].” Ante , at 12; see ante , at 2–3. But that lease agreement explicitly recognized “the continuance of the ultimate sovereignty of the Republic of Cuba over the [leased areas],” Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U. S.-Cuba, Art. III, T. S. No. 418, and the Executive Branch—whose head is “exclusively responsible” for the “conduct of diplomatic and foreign affairs,” Eisentrager , supra , at 789—affirms that the lease and treaty do not render Guantanamo Bay the sovereign territory of the United States, see Brief for Respondents 21.    The Court does not explain how “complete jurisdiction and control” without sovereignty causes an enclave to be part of the United States for purposes of its domestic laws. Since “jurisdiction and control” obtained through a lease is no different in effect from “jurisdiction and control” acquired by lawful force of arms, parts of Afghanistan and Iraq should logically be regarded as subject to our domestic laws. Indeed, if “jurisdiction and control” rather than sovereignty were the test, so should the Landsberg Prison in Germany, where the United States held the Eisentrager detainees.    The second and last reason the Court gives for the proposition that domestic law applies to Guantanamo Bay is the Solicitor General’s concession that there would be habeas jurisdiction over a United States citizen in Guantanamo Bay. “Considering that the statute draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the geographical coverage of the statute to vary depending on the detainee’s citizenship.” Ante , at 12–13. But the reason the Solicitor General conceded there would be jurisdiction over a detainee who was a United States citizen had nothing to do with the special status of Guantanamo Bay: “Our answer to that question, Justice Souter, is that citizens of the United States, because of their constitutional circumstances, may have greater rights with respect to the scope and reach of the Habeas Statute as the Court has or would interpret it.” Tr. of Oral Arg. 40. See also id. , at 27–28. And that position—the position that United States citizens throughout the world may be entitled to habeas corpus rights—is precisely the position that this Court adopted in Eisentrager , see 339 U. S., at 769–770, even while holding that aliens abroad did not have habeas corpus rights. Quite obviously, the Court’s second reason has no force whatever.    The last part of the Court’s Part IV analysis digresses from the point that the presumption against extraterritorial application does not apply to Guantanamo Bay. Rather, it is directed to the contention that the Court’s approach to habeas jurisdiction—applying it to aliens abroad—is “consistent with the historical reach of the writ.” Ante , at 13. None of the authorities it cites comes close to supporting that claim. Its first set of authorities involves claims by aliens detained in what is indisputably domestic territory. Ante , at 13, n. 11. Those cases are irrelevant because they do not purport to address the territorial reach of the writ. The remaining cases involve issuance of the writ to “ ‘exempt jurisdictions’ ” and “other dominions under the sovereign’s control.” Ante , at 13–14, and nn. 12–13. These cases are inapposite for two reasons: Guantanamo Bay is not a sovereign dominion, and even if it were, jurisdiction would be limited to subjects.    “Exempt jurisdictions”—the Cinque Ports and Counties Palatine (located in modern-day England)—were local franchises granted by the Crown. See 1 W. Holdsworth, History of English Law 108, 532 (7th ed. rev. 1956); 3 W. Blackstone, Commentaries *78–*79 (hereinafter Blackstone). These jurisdictions were “exempt” in the sense that the Crown had ceded management of municipal affairs to local authorities, whose courts had exclusive jurisdiction over private disputes among residents (although review was still available in the royal courts by writ of error). See id. , at *79. Habeas jurisdiction nevertheless extended to those regions on the theory that the delegation of the King’s authority did not include his own prerogative writs. Ibid.; R. Sharpe, Law of Habeas Corpus 188–189 (2d ed. 1989) (hereinafter Sharpe). Guantanamo Bay involves no comparable local delegation of pre-existing sovereign authority.    The cases involving “other dominions under the sovereign’s control” fare no better. These cases stand only for the proposition that the writ extended to dominions of the Crown outside England proper. The authorities relating to Jersey and the other Channel Islands, for example, see ante , at 14, n. 13, involve territories that are “dominions of the crown of Great Britain” even though not “part of the kingdom of England,” 1 Blackstone *102–*105, much as were the colonies in America, id. , at *104–*105, and Scotland, Ireland, and Wales, id. , at *93. See also King v. Cowle , 2 Burr. 834, 853–854, 97 Eng. Rep. 587, 598 (K. B. 1759) (even if Berwick was “no part of the realm of England,” it was still a “dominion of the Crown”). All of the dominions in the cases the Court cites—and all of the territories Blackstone lists as dominions, see 1 Blackstone *93–*106—are the sovereign territory of the Crown: colonies, acquisitions and conquests, and so on. It is an enormous extension of the term to apply it to installations merely leased for a particular use from another nation that still retains ultimate sovereignty.    The Court’s historical analysis fails for yet another reason: To the extent the writ’s “extraordinary territorial ambit” did extend to exempt jurisdictions, outlying dominions, and the like, that extension applied only to British subjects . The very sources the majority relies on say so: Sharpe explains the “broader ambit” of the writ on the ground that it is “said to depend not on the ordinary jurisdiction of the court for its effectiveness, but upon the authority of the sovereign over all her subjects .” Sharpe, supra , at 188 (emphasis added). Likewise, Blackstone explained that the writ “run[s] into all parts of the king’s dominions” because “the king is at all times entitled to have an account why the liberty of any of his subjects is restrained.” 3 Blackstone *131 (emphasis added). Ex parte Mwenya , [1960] 1 Q. B. 241 (C. A.), which can hardly be viewed as evidence of the historic scope of the writ, only confirms the ongoing relevance of the sovereign-subject relationship to the scope of the writ. There, the question was whether “the Court of Queen’s Bench can be debarred from making an order in favour of a British citizen unlawfully or arbitrarily detained” in Northern Rhodesia, which was at the time a protectorate of the Crown. Id. , at 300 (Lord Evershed M. R.). Each judge made clear that the detainee’s status as a subject was material to the resolution of the case. See id. , at 300, 302 (Lord Evershed, M. R.); id. , at 305 (Romer, L. J.) (“[I]t is difficult to see why the sovereign should be deprived of her right to be informed through her High Court as to the validity of the detention of her subjects in that territory”); id. , at 311 (Sellers, L. J.) (“I am not prepared to say, as we are solely asked to say on this appeal, that the English courts have no jurisdiction in any circumstances to entertain an application for a writ of habeas corpus ad subjiciendum in respect of an unlawful detention of a British subject in a British protectorate”). None of the exempt-jurisdiction or dominion cases the Court cites involves someone not a subject of the Crown.    The rule against issuing the writ to aliens in foreign lands was still the law when, in In re Ning Yi-Ching , 56 T. L. R. 3 (Vacation Ct. 1939), an English court considered the habeas claims of four Chinese subjects detained on criminal charges in Tientsin, China, an area over which Britain had by treaty acquired a lease and “therewith exercised certain rights of administration and control.” Id. , at 4. The court held that Tientsin was a foreign territory, and that the writ would not issue to a foreigner detained there. The Solicitor-General had argued that “[t]here was no case on record in which a writ of habeas corpus had been obtained on behalf of a foreign subject on foreign territory,” id. , at 5, and the court “listened in vain for a case in which the writ of habeas corpus had issued in respect of a foreigner detained in a part of the world which was not a part of the King’s dominions or realm,” id. , at 6.[ Footnote 5 ]    In sum, the Court’s treatment of Guantanamo Bay, like its treatment of §2241, is a wrenching departure from precedent.[ Footnote 6 ] * * *    Departure from our rule of stare decisis in statutory cases is always extraordinary; it ought to be unthinkable when the departure has a potentially harmful effect upon the Nation’s conduct of a war. The Commander in Chief and his subordinates had every reason to expect that the internment of combatants at Guantanamo Bay would not have the consequence of bringing the cumbersome machinery of our domestic courts into military affairs. Congress is in session. If it wished to change federal judges’ habeas jurisdiction from what this Court had previously held that to be, it could have done so. And it could have done so by intelligent revision of the statute,[ Footnote 7 ] instead of by today’s clumsy, countertextual reinterpretation that confers upon wartime prisoners greater habeas rights than domestic detainees. The latter must challenge their present physical confinement in the district of their confinement, see Rumsfeld v. Padilla , ante , whereas under today’s strange holding Guantanamo Bay detainees can petition in any of the 94 federal judicial districts. The fact that extraterritorially located detainees lack the district of detention that the statute requires has been converted from a factor that precludes their ability to bring a petition at all into a factor that frees them to petition wherever they wish—and, as a result, to forum shop. For this Court to create such a monstrous scheme in time of war, and in frustration of our military commanders’ reliance upon clearly stated prior law, is judicial adventurism of the worst sort. I dissent. Footnote 1 See Tr. of Oral Arg. 5 (“Question: And you don’t raise the issue of any potential jurisdiction on the basis of the Constitution alone. We are here debating the jurisdiction under the Habeas Statute, is that right? [Answer]: That’s correct. . .”). Footnote 2 The parties’ submissions to the Court in Eisentrager construed the Court of Appeals’ decision as I do. See Pet. for Cert., O. T. 1949, No. 306, pp. 8–9 (“[T]he court felt constrained to construe the habeas corpus jurisdictional statute—despite its reference to the ‘respective jurisdictions’ of the various courts and the gloss put on that terminology in the Ahrens and previous decisions—to permit a petition to be filed in the district court with territorial jurisdiction over the officials who have directive authority over the immediate jailer in Germany”); Brief for Respondent, O. T. 1949, No. 306, p. 9 (“Respondent contends that the U. S. Court of Appeals . . . was correct in its holding that the statute, 28 U. S. C. 2241, provides that the U. S. District Court for the District of Columbia has jurisdiction to entertain the petition for a writ of habeas corpus in the case at bar”). Indeed, the briefing in Eisentrager was mainly devoted to the question of whether there was statutory jurisdiction. See, e.g. , Brief for Petitioner, O. T. 1949, No. 306, pp. 15–59; Brief for Respondent, O. T. 1949, No. 306, pp. 9–27, 38–49. Footnote 3 The Court does not seriously dispute my analysis of the Court of Appeals’ holding in Eisentrager . Instead, it argues that this Court in Eisentrager “understood the Court of Appeals’ decision to rest on constitutional and not statutory grounds.” Ante , at 10, n. 8. That is inherently implausible, given that the Court of Appeals’ opinion clearly reached a statutory holding, and that both parties argued the case to this Court on that basis, see n. 2, supra . The only evidence of misunderstanding the Court adduces today is the Eisentrager Court’s description of the Court of Appeals’ reasoning as “that, although no statutory jurisdiction of such cases is given, courts must be held to possess it as part of the judicial power of the United States . . . .” 339 U. S., at 767. That is no misunderstanding, but an entirely accurate description of the Court of Appeals’ reasoning—the penultimate step of that reasoning rather than its conclusion. The Court of Appeals went on to hold that, in light of the constitutional imperative, the statute should be interpreted as supplying jurisdiction. See Eisentrager v. Forrestal , 174 F. 2d 961, 965–967 (CADC 1949). This Court in Eisentrager undoubtedly understood that, which is why it immediately followed the foregoing description with a description of the Court of Appeals’ conclusion tied to the language of the habeas statute: “[w]here deprivation of liberty by an official act occurs outside the territorial jurisdiction of any District Court, the petition will lie in the District Court which has territorial jurisdiction over officials who have directive power over the immediate jailer.” 339 U. S., at 767. Footnote 4 The Court points to Court of Appeals cases that have described Braden as “overruling” Ahrens . See ante , at 11, n. 9. Even if that description (rather than what I think the correct one, “distinguishing”) is accepted, it would not support the Court’s view that Ahrens was overruled with regard to the point on which Eisentrager relied . The ratio decidendi of Braden does not call into question the principle of Ahrens applied in Eisentrager : that habeas challenge to present physical confinement must be made in the district where the physical confinement exists. The Court is unable to produce a single authority that agrees with its conclusion that Braden overruled Eisentrager . Justice Kennedy recognizes that Eisentrager controls, ante , at 1 (opinion concurring in judgment), but misconstrues that opinion. He thinks it makes jurisdiction under the habeas statute turn on the circumstances of the detainees’ confinement—including, apparently, the availability of legal proceedings and the length of detention, see ante , at 3–4. The Eisentrager Court mentioned those circumstances, however, only in the course of its constitutional analysis, and not in its application of the statute. It is quite impossible to read §2241 as conditioning its geographic scope upon them. Among the consequences of making jurisdiction turn upon circumstances of confinement are (1) that courts would always have authority to inquire into circumstances of confinement, and (2) that the Executive would be unable to know with certainty that any given prisoner-of-war camp is immune from writs of habeas corpus. And among the questions this approach raises: When does definite detention become indefinite? How much process will suffice to stave off jurisdiction? If there is a terrorist attack at Guantanamo Bay, will the area suddenly fall outside the habeas statute because it is no longer “far removed from any hostilities,” ante , at 3? Justice Kennedy’s approach provides enticing law-school-exam imponderables in an area where certainty is called for. Footnote 5 The Court argues at some length that Ex parte Mwenya , [1960] 1 Q. B. 241 (C. A.), calls into question my reliance on In re Ning Yi-Ching . See ante , at 15, n. 14. But as I have explained, see supra , at 17–18, Mwenya dealt with a British subject and the court went out of its way to explain that its expansive description of the scope of the writ was premised on that fact. The Court cites not a single case holding that aliens held outside the territory of the sovereign were within reach of the writ. Footnote 6 The Court grasps at two other bases for jurisdiction: the Alien Tort Statute (ATS), 28 U. S. C. §1350, and the federal-question statute, 28 U. S. C. §1331. The former is not presented to us. The ATS, while invoked below, was repudiated as a basis for jurisdiction by all petitioners, either in their petition for certiorari, in their briefing before this Court, or at oral argument. See Pet. for Cert. in No. 03–334, p. 2, n. 1 (“Petitioners withdraw any reliance on the Alien Tort Claims Act …”); Brief for Petitioners in No. 03–343, p. 13; Tr. of Oral Arg. 6. With respect to §1331, petitioners assert a variety of claims arising under the Constitution, treaties, and laws of the United States. In Eisentrager , though the Court’s holding focused on §2241, its analysis spoke more broadly: “We have pointed out that the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.” 339 U. S., at 777–778. That reasoning dooms petitioners’ claims under §1331, at least where Congress has erected a jurisdictional bar to their raising such claims in habeas. Footnote 7 It could, for example, provide for jurisdiction by placing Guantanamo Bay within the territory of an existing district court; or by creating a district court for Guantanamo Bay, as it did for the Panama Canal Zone, see 22 U. S. C. §3841(a) (repealed 1979).

The Supreme Court ruled that US courts have the authority to consider the legality of detaining foreign nationals captured during hostilities and held at Guantanamo Bay, Cuba. The Court's decision was based on the right of prisoners to challenge their detention through habeas corpus petitions and the US lease agreement with Cuba, which grants the US jurisdiction over the area. The Court rejected the argument that the detainees were outside US sovereign territory and thus not entitled to legal protections.

Immigration & National Security

Reno v. AADC

https://supreme.justia.com/cases/federal/us/525/471/

OCTOBER TERM, 1998 Syllabus RENO, ATTORNEY GENERAL, ET AL. v. AMERICANARAB ANTI-DISCRIMINATION COMMITTEE ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 97-1252. Argued November 4, 1998-Decided February 24,1999 Respondent resident aliens filed this suit, claiming that petitioners, the Attorney General and other federal parties, targeted them for deportation because of their affiliation with a politically unpopular group, in violation of their First and Fifth Amendment rights. After the District Court preliminarily enjoined the proceedings against respondents, but while an appeal by the Attorney General was pending, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which, inter alia, repealed the old judicial-review scheme in the Immigration and Nationality Act, 8 U. S. C. § n05a, and instituted a new provision, 8 U. S. C. § 1252(g), which restricts judicial review of the Attorney General's "decision or action" to "commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act" "[e]xcept as provided in this section." The Attorney General filed motions in both the District Court and the Ninth Circuit, arguing that § 1252(g) deprived them of jurisdiction over respondents' selective-enforcement claim. The District Court denied the motion. The Ninth Circuit, consolidating an appeal from that denial with the pending appeal, upheld jurisdiction and affirmed the District Court's decision on the merits. Held: Section 1252(g) deprives the federal courts of jurisdiction over respondents' suit. Pp. 476-492. (a) Although IIRIRA § 309(c)(1)'s general rule is that the revised procedures for removing aliens, including § 1252's judicial-review procedures, do not apply in exclusion or deportation proceedings pending on IIRIRA's effective date, IIRIRA § 306(c)(1) directs that a single provision, § 1252(g), shall apply "without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings." Section 1252(g) applies to three discrete actions that the Attorney General may take: her "decision or action" to "commence proceedings, adjudicate cases, or execute removal orders." (Emphasis added.) The provision seems designed to give some measure of protection to such discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process designed by Congress. 472 472 RENO v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM. Respondents' challenge to the Attorney General's decision to "commence proceedings" against them falls squarely within § 1252(g), and § 1252 does not otherwise provide jurisdiction. Pp.476-487. (b) The doctrine of constitutional doubt does not require that § 1252(g) be interpreted in such fashion as to permit immediate review of respondents' selective-enforcement claims. An alien unlawfully in this country has no constitutional right to assert such a claim as a defense against his deportation. Pp. 487-492. 119 F.3d 1367 , vacated and remanded. SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, and THOMAS, JJ., joined, and in which GINSBURG and BREYER, JJ., joined as to Parts I and II. GINSBURG, J., filed an opinion concurring in part and concurring in the judgment, in which BREYER, J., joined as to Part I, post, p. 492. STEVENS, J., filed an opinion concurring in the judgment, post, p. 498. SOUTER, J., filed a dissenting opinion, post, p. 501. Malcolm L. Stewart argued the cause for petitioners. With him on the briefs were Solicitor General Waxman, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, and Douglas N. Letter. David D. Cole argued the cause for respondents. With him on the brief were Steven R. Shapiro, Lucas Guttentag, Marc Van Der Hout, and Paul L. Hoffman. * JUSTICE SCALIA delivered the opinion of the Court.t Respondents sued petitioners for allegedly targeting them for deportation because of their affiliation with a politically unpopular group. While their suit was pending, Congress *Briefs of amici curiae urging reversal were filed for the Criminal Justice Legal Foundation by Kent S. Scheidegger; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp. Briefs of amici curiae urging affirmance were filed for the American Bar Association by Philip S. Anderson, Jeffrey L. Bleich, and Carol Wolchok; for the American Immigration Law Foundation et al. by Ira J. Kurzban and Nadine K. Wettstein; for the Brennan Center for Justice at New York University School of Law by Burt Neuborne; and for the National Immigration Law Center by Linton Joaquin and Gerald L. Neuman. tJUSTICE BREYER joins Parts I and II of this opinion. 473 passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009-546, which contains a provision restricting judicial review of the Attorney General's "decision or action" to "commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act." 8 U. S. C. § 1252(g) (1994 ed., Supp. III). The issue before us is whether, as petitioners contend, this provision deprives the federal courts of jurisdiction over respondents' suit. I The Immigration and Naturalization Service (INS), a division of the Department of Justice, instituted deportation proceedings in 1987 against Bashar Amer, Aiad Barakat, Julie Mungai, Amjad Obeid, Ayman Obeid, Nairn Sharif, Khader Hamide, and Michel Shehadeh, all of whom belong to the Popular Front for the Liberation of Palestine (PFLP), a group that the Government characterizes as an international terrorist and communist organization. The INS charged all eight under the McCarran-Walter Act, which, though now repealed, provided at the time for the deportation of aliens who "advocate ... world communism." See 8 U. S. C. §§ 1251(a)(6)(D), (G)(v), and (H) (1982 ed.). In addition, the INS charged the first six, who were only temporary residents, with routine status violations such as overstaying a visa and failure to maintain student status.1 See 8 U. S. C. §§ 1251(a)(2) and (a)(9) (1988 ed.). Almost immediately, the aliens filed suit in District Court, challenging the constitutionality of the anticommunism provisions of the McCarran- Walter Act and seeking declaratory and injunctive relief against the Attorney General, the INS, and various immigration officials in their personal and official capacities. The INS responded by dropping the advocacy- 1 Respondents Barakat and Sharif were subsequently granted legalization and are no longer deportable based on the original status violations. Brief for Petitioners 11, n. 5. 474 474 RENO v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM. of-communism charges, but it retained the technical violation charges against the six temporary residents and charged Hamide and Shehadeh, who were permanent residents, under a different section of the McCarran- Walter Act, which authorized the deportation of aliens who were members of an organization advocating "the duty, necessity, or propriety of the unlawful assaulting or killing of any [government] officer or officers" and "the unlawful damage, injury, or destruction of property." See 8 U. S. C. §§ 1251(a)(6)(F)(ii)(iii) (1982 ed.).2 INS regional counsel William Odencrantz said at a press conference that the charges had been changed for tactical reasons but the INS was still seeking respondents' deportation because of their affiliation with the PFLP. See American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045 , 1053 (CA9 1995) (AADC I). Respondents amended their complaint to include an allegation that the INS was selectively enforcing immigration laws against them in violation of their First and Fifth Amendment rights.3 Since this suit seeking to prevent the initiation of deportation proceedings was filed-in 1987, during the administration of Attorney General Edwin Meese-it has made four trips through the District Court for the Central District of California and the United States Court of Appeals for the Ninth Circuit. The first two concerned jurisdictional issues not now before us. See Hamide v. United States District Court, No. 87-7249 (CA9, Feb. 24, 1988); American-Arab Anti-Discrimination Committee v. Thornburgh, 970 F. 2d 2When the McCarran-Walter Act was repealed, a new "terrorist activity" provision was added by the Immigration Act of 1990. See 8 U. S. C. § 1227(a)(4)(B) (1994 ed., Supp. III). The INS charged Hamide and Shehadeh under this, but it is unclear whether that was in addition to, or in substitution for, the old McCarran-Walter charges. 3 The amended complaint was styled as an action for "damages and for declaratory and injunctive relief," but the only monetary relief specifically requested was "costs of suit and attorneys fees." App. 20, 51. 475 501 (CA9 1991). Then, in 1994, the District Court preliminarily enjoined deportation proceedings against the six temporary residents, holding that they were likely to prove that the INS did not enforce routine status requirements against immigrants who were not members of disfavored terrorist groups and that the possibility of deportation, combined with the chill to their First Amendment rights while the proceedings were pending, constituted irreparable injury. With regard to Hamide and Shehadeh's claims, however, the District Court granted summary judgment to the federal parties for reasons not pertinent here. AADC I, supra, was the Ninth Circuit's first merits determination in this case, upholding the injunction as to the six and reversing the District Court with regard to Hamide and Shehadeh. The opinion rejected the Attorney General's argument that selective-enforcement claims are inappropriate in the immigration context, and her alternative argument that the special statutory-review provision of the Immigration and Nationality Act (INA), 8 U. S. C. § 1l05a, precluded review of such a claim until a deportation order issued. See 70 F. 3d, at 1056-1057. The Ninth Circuit remanded the case to the District Court, which entered an injunction in favor of Hamide and Shehadeh and denied the Attorney General's request that the existing injunction be dissolved in light of new evidence that all respondents participated in fundraising activities of the PFLP. While the Attorney General's appeal of this last decision was pending, Congress passed IIRIRA which, inter alia, repealed the old judicial-review scheme set forth in § 1l05a and instituted a new (and significantly more restrictive) one in 8 U. S. C. § 1252. The Attorney General filed motions in both the District Court and Court of Appeals, arguing that § 1252(g) deprived them of jurisdiction over respondents' selective-enforcement claim. The District Court denied the motion, and the Attorney General's appeal from that denial 476 476 RENO v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM. was consolidated with the appeal already pending in the Ninth Circuit. It is the judgment and opinion in that appeal which is before us here: 119 F.3d 1367 (CA9 1997). It affirmed the existence of jurisdiction under § 1252, see id., at 1374, and reaching the merits of the injunctions, again affirmed the District Court, id., at 1374-1376. The Attorney General's petition for rehearing en banc was denied over the dissent of three judges, 132 F.3d 531 (CA9 1997). The Attorney General sought our review, and we granted certiorari, 524 U. S. 903 (1998). II Before enactment of IIRIRA, judicial review of most administrative action under the INA was governed by 8 U. S. C. § 1105a, a special statutory-review provision directing that "the sole and exclusive procedure for ... the judicial review of all final orders of deportation" shall be that set forth in the Hobbs Act, 28 U. S. C. § 2341 et seq., which gives exclusive jurisdiction to the courts of appeals, see § 2342. Much of the Court of Appeals' analysis in AADC I was devoted to the question whether this pre- IIRIRA provision applied to selective-enforcement claims. Since neither the Immigration Judge nor the Board of Immigration Appeals has authority to hear such claims (a point conceded by the Attorney General in AADC I, see 70 F. 3d, at 1055), a challenge to a final order of deportation based upon such a claim would arrive in the court of appeals without the factual development necessary for decision. The Attorney General argued unsuccessfully below that the Hobbs Act permits a court of appeals to remand the case to the agency, see 28 U. S. C. § 2347(c), or transfer it to a district court, see § 2347(b)(3), for further factfinding. The Ninth Circuit, believing these options unavailable, concluded that an original district-court action was respondents' only means of obtaining factual development and thus judicial review of their selective- 477 enforcement claims. Relying on our decision in Cheng Fan Kwok v. INS, 392 U. S. 206 (1968), it held that the District Court could entertain the suit under either its general federal-question jurisdiction, see 28 U. S. C. § 1331, or the general jurisdictional provision of the INA, see 8 U. S. C. § 1329.4 Whether we must delve further into the details of this issue depends upon whether, after the enactment of IIRIRA, § 1105a continues to apply to this case. On the surface of things, at least, it does not. Although the general rule set forth in § 309(c)(1) of IIRIRA is that the revised procedures for removing aliens, including the judicial-review procedures of § 1252, do not apply to aliens who were already in either exclusion or deportation proceedings on IIRIRA's effective date, see note following 8 U. S. C. § 1101 (1994 ed., Supp. III),5 § 306(c)(1) of IIRIRA directs that a single provision, § 1252(g), shall apply "without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings." See note following 8 U. S. C. § 1252 (1994 ed., Supp. III). Section 1252(g) reads as follows: "(g) EXCLUSIVE JURISDICTION "Except as provided in this section and notwithstanding any other provision of law, no court shall have juris- 4 This latter provision was subsequently amended by IIRIRA to make clear that it applies only to actions brought by the United States. See 8 "(c) TRANSITION FOR ALIENS IN PROCEEDINGS.- "(1) GENERAL RULE THAT NEW RULES DO NOT APPLY.-Subject to the succeeding provisions of this subsection [§ 309(a) carves out § 306(c) as an exception], in the case of an alien who is in exclusion or deportation proceedings as of the title III -A effective date- "(A) the amendments made by this subtitle shall not apply, and "(E) the proceedings (including judicial review thereof) shall continue to be conducted without regard to such amendments." 110 Stat. 3009-625. 478 478 RENO v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM. diction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act." This provision seemingly governs here, depriving the federal courts of jurisdiction "[e]xcept as provided in this section." But whether it is as straightforward as that depends upon the scope of the quoted text. Here, and in the courts below, both petitioners and respondents have treated § 1252(g) as covering all or nearly all deportation claims. The Attorney General has characterized it as "a channeling provision, requiring aliens to bring all deportation-related claims in the context of a petition for review of a final order of deportation filed in the court of appeals." Supplemental Brief for Appellants in No. 96-55929 (CA9), p. 2. Respondents have described it as applying to "most of what INS does." Corrected Supplemental Brief for Appellees in No. 96-55929 (CA9), p. 7. This broad understanding of § 1252(g), combined with IIRIRA's effective-date provisions, creates an interpretive anomaly. If the jurisdictionexcluding provision of § 1252(g) eliminates other sources of jurisdiction in all deportation-related cases, and if the phrase in § 1252(g) "[e]xcept as provided in this section" incorporates (as one would suppose) all the other jurisdiction-related provisions of § 1252, then § 309(c)(1) would be rendered a virtual nullity. To say that there is no jurisdiction in pending INS cases "except as" § 1252 provides jurisdiction is simply to say that § 1252's jurisdictional limitations apply to pending cases as well as future cases-which seems hardly what § 309(c)(1) is about. If, on the other hand, the phrase "[e]xcept as provided in this section" were (somehow) interpreted not to incorporate the other jurisdictional provisions of § 1252-if § 1252(g) stood alone, so to speak-judicial review would be foreclosed for all deportation claims in all pending deportation cases, even after entry of a final order. 479 The Attorney General would have us avoid the horns of this dilemma by interpreting § 1252(g)'s phrase "[e]xcept as provided in this section" to mean "except as provided in § 1l05a." Because § 1l05a authorizes review of only final orders, respondents must, she says, wait until their administrative proceedings come to a close and then seek review in a court of appeals. (For reasons mentioned above, the Attorney General of course rejects the Ninth Circuit's position in AADC I that application of § 1l05a would leave respondents without a judicial forum because evidence of selective prosecution cannot be introduced into the administrative record.) The obvious difficulty with the Attorney General's interpretation is that it is impossible to understand how the qualifier in § 1252(g), "[e]xcept as provided in this section" (emphasis added), can possibly mean "except as provided in § 1l05a." And indeed the Attorney General makes no attempt to explain how this can be, except to observe that what she calls a "literal application" of the statute "would create an anomalous result." Brief for Petitioners 30, n. 15. Respondents note this deficiency, but offer an equally implausible means of avoiding the dilemma. Section 309(c)(3) allows the Attorney General to terminate pending deportation proceedings and reinitiate them under § 1252.6 They argue that § 1252(g) applies only to those pending cases in which the Attorney General has made that election. That way, they claim, the phrase "[e]xcept as provided in this section" can, without producing an anomalous result, be allowed to refer (as it says) to all the rest of § 1252. But this approach collides head-on with § 306(c)'s prescription that § 1252(g) shall apply "without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings." See note following 8 U. S. C. § 1252 (1994 ed., Supp. III) (emphasis added). (Respondents argue 6 It is unclear why the Attorney General has not exercised this option in this case. Respondents have taken the position that the District Court's injunction prevents her from doing so. Brief for Respondents 41, n. 38. 480 480 RENO v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM. in the alternative, of course, that if the Attorney General is right and § 1105a does apply, AADC I is correct that their claims will be effectively unreviewable upon entry of a final order. For this reason, and because they say that habeas review, if still available after IIRIRA,7 will come too late to remedy this First Amendment injury, respondents contend that we must construe § 1252(g) not to bar constitutional claims.) The Ninth Circuit, for its part, accepted the parties' broad reading of § 1252(g) and concluded, reasonably enough, that on that reading Congress could not have meant § 1252(g) to stand alone: "Divorced from all other jurisdictional provisions of IIRIRA, subsection (g) would have a more sweeping impact on cases filed before the statute's enactment than after that date. Without incorporating any exceptions, the provision appears to cut off federal jurisdiction over all deportation decisions. We do not think that Congress intended such an absurd result." 119 F. 3d, at 1372. It recognized, however, the existence of the other horn of the dilemma ("that retroactive application of the entire amended version of 8 U. s. C. § 1252 would threaten to render meaningless section 306(c) of IIRIRA," ibid.), and resolved the difficulty to its satisfaction by concluding that "at least some of the other provisions of section 1252" must be included in 7 There is disagreement on this point in the Courts of Appeals. Compare Hose v. INS, 141 F.3d 932 , 935 (CA9) (habeas not available), withdrawn and reh'g en banc granted, 161 F.3d 1225 (1998), Richardson v. Reno, 162 F.3d 1338 (CAll 1998) (same), and Yang v. INS, 109 F.3d 1185 , 1195 (CA7 1997) (same), with Goncalves v. Reno, 144 F.3d 110 , 122 (CA1 1998) (habeas available), and Henderson v. INS, 157 F.3d 106 , 117-122 (CA2 1998) (same). See also Magana-Pizano v. INS, 152 F.3d 1213 , 1220 (CA9 1998) (elimination of habeas unconstitutional); Ramallo v. Reno, 114 F. 3d 1210, 1214 (CADC 1997) (§ 1252(g) removes statutory habeas but leaves "constitutional" habeas intact). 481 subsection (g) "when it applies to pending cases." Ibid. (emphasis added). One of those provisions, it thought, must be subsection (f), entitled "Limit on Injunctive Relief," which reads as follows: "Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of chapter 4 of title II, as amended by [IIRIRA], other than with respect to the application of such provisions to an individual alien against whom proceedings under such chapter have been initiated." The Ninth Circuit found in this an affirmative grant of jurisdiction that covered the present case. The Attorney General argued that any such grant of jurisdiction would be limited (and rendered inapplicable to this case) by § 1252(b)(9), which provides: "Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this chapter shall be available only in judicial review of a final order under this section." The Ninth Circuit replied that, even if § 1252(b)(9) were one of those provisions incorporated into the transitional application of § 1252(g), it could not preclude this suit for the same reason AADC I had held that § l105a could not do sonamely, the Court of Appeals' lack of access to factual findings regarding selective enforcement. Even respondents scarcely try to defend the Ninth Circuit's reading of § 1252(f) as a jurisdictional grant. By its plain terms, and even by its title, that provision is nothing more or less than a limit on injunctive relief. It prohibits federal courts from granting classwide injunctive relief against the operation of §§ 1221-1231, but specifies that this 482 482 RENO v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM. ban does not extend to individual cases. To find in this an affirmative grant of jurisdiction is to go beyond what the language will bear. We think the seeming anomaly that prompted the parties' strained readings of § 1252(g)-and that at least accompanied the Court of Appeals' strained reading-is a mirage. The parties' interpretive acrobatics flow from the belief that § 306(c)(1) cannot be read to envision a straightforward application of the "[e]xcept as provided in this section" portion of § 1252(g), since that would produce in all pending INS cases jurisdictional restrictions identical to those that were contained in IIRIRA anyway. That belief, however, rests on the unexamined assumption that § 1252(g) covers the universe of deportation claims-that it is a sort of "zipper" clause that says "no judicial review in deportation cases unless this section provides judicial review." In fact, what § 1252(g) says is much narrower. The provision applies only to three discrete actions that the Attorney General may take: her "decision or action" to "commence proceedings, adjudicate cases, or execute removal orders." (Emphasis added.) There are of course many other decisions or actions that may be part of the deportation process-such as the decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order. It is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings. Not because Congress is too unpoetic to use synecdoche, but because that literary device is incompatible with the need for precision in legislative drafting. We are aware of no other instance in the United States Code in which language such as this has been used to impose a general jurisdictionallimitation; and that those who enacted IIRIRA were familiar with the normal manner of imposing such a limitation is dem- 483 onstrated by the text of § 1252(b)(9), which stands in stark contrast to § 1252(g). It could be argued, perhaps, that § 1252(g) is redundant if it channels judicial review of only some decisions and actions, since § 1252(b)(9) channels judicial review of all of them anyway. But that is not so, since only § 1252(g), and not § 1252(b)(9) (except to the extent it is incorporated within § 1252(g)), applies to what § 309(c)(1) calls "transitional cases," that is, cases pending on the effective date of IIRIRA. That alone justifies its existence. It performs the function of categorically excluding from non-final-order judicial review-even as to transitional cases otherwise governed by § l105a rather than the unmistakable "zipper" clause of § 1252(b)(9)-certain specified decisions and actions of the INS. In addition, even after all the transitional cases have passed through the system, § 1252(g) as we interpret it serves the continuing function of making it clear that those specified decisions and actions, which (as we shall discuss in detail below) some courts had held not to be included within the non-final-order review prohibition of § l105a, are covered by the "zipper" clause of § 1252(b)(9). It is rather the Court of Appeals' and the parties' interpretation which renders § 1252(g) entirely redundant, adding to one "zipper" clause that does not apply to transitional cases, another one of equal scope that does apply to transitional cases. That makes it entirely inexplicable why the transitional provisions of § 306(c) refer to § 1252(g) instead of § 1252(b)(9)-and why § 1252(g) exists at all. There was good reason for Congress to focus special attention upon, and make special provision for, judicial review of the Attorney General's discrete acts of "commenc[ing] proceedings, adjudicat[ing] cases, [and] execut[ing] removal orders"-which represent the initiation or prosecution of various stages in the deportation process. At each stage the Executive has discretion to abandon the endeavor, and at the time IIRIRA was enacted the INS had been engaging in a 484 484 RENO v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM. regular practice (which had come to be known as "deferred action") of exercising that discretion for humanitarian reasons or simply for its own convenience.8 As one treatise describes it: "To ameliorate a harsh and unjust outcome, the INS may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation. This commendable exercise in administrative discretion, developed without express statutory authorization, originally was known as nonpriority and is now designated as deferred action. A case may be selected for deferred action treatment at any stage of the administrative process. Approval of deferred action status means that, for the humanitarian reasons described below, no action will thereafter be taken to proceed against an apparently deportable alien, even on grounds normally regarded as aggravated." 6 C. Gordon, S. Mailman, & S. YaleLoehr, Immigration Law and Procedure § 72.03[2][h] (1998). See also Johns v. Department of Justice, 653 F.2d 884 , 890892 (CAS 1981). Since no generous act goes unpunished, however, the INS's exercise of this discretion opened the door to litigation in instances where the INS chose not to exercise it. "[I]n each such instance, the determination to withhold or terminate deportation is confined to administrative 8 Prior to 1997, deferred-action decisions were governed by internal INS guidelines which considered, inter alia, such factors as the likelihood of ultimately removing the alien, the presence of sympathetic factors that could adversely affect future cases or generate bad publicity for the INS, and whether the alien had violated a provision that had been given high enforcement priority. See 16 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 242.1 (1998). These were apparently rescinded on June 27, 1997, but there is no indication that the INS has ceased making this sort of determination on a case-by-case basis. See ibid. 485 discretion .... Efforts to challenge the refusal to exercise such discretion on behalf of specific aliens sometimes have been favorably considered by the courts, upon contentions that there was selective prosecution in violation of equal protection or due process, such as improper reliance on political considerations, on racial, religious, or nationality discriminations, on arbitrary or unconstitutional criteria, or on other grounds constituting abuse of discretion." Gordon, Mailman, & YaleLoehr, supra, § 72.03[2][a] (footnotes omitted). Such litigation was possible because courts read § 1105a's prescription that the Hobbs Act shall be "the sole and exclusive procedure for the judicial review of all final orders of deportation" to be inapplicable to various decisions and actions leading up to or consequent upon final orders of deportation, and relied on other jurisdictional statutes to permit review. See, e. g., Cheng Fan Kwok v. INS, 392 U. S. 206 (1968) (review of refusal to stay deportation); Ramallo v. Reno, Civ. No. 95-01851 (D. D. C., July 23, 1996) (review of execution of removal order), described in and rev'd on other grounds, 114 F.3d 1210 (CADC 1997); AADC I, 70 F. 3d 1045 (CA9 1995) (review of commencement of deportation proceedings); Lennon v. INS, 527 F.2d 187 , 195 (CA2 1975) (same, dicta). Section 1252(g) seems clearly designed to give some measure of protection to "no deferred action" decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress has designed.9 9 This history explains why JUSTICE SOUTER ought not find it "hard to imagine that Congress meant to bar aliens already in proceedings ... from challenging the commencement of proceedings against them, but to permit the same aliens to challenge, say, the decision of the Attorney General to open an investigation of them or to issue a show-cause order." Post, at 506 (dissenting opinion). It was the acts covered by § 1252(g) that had prompted challenges to the Attorney General's exercise of prosecutorial 486 486 RENO v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM. Of course many provisions of IIRIRA are aimed at protecting the Executive's discretion from the courts-indeed, that can fairly be said to be the theme of the legislation. See, e. g., 8 U. S. C. § 1252(a)(2)(A) (limiting review of any claim arising from the inspection of aliens arriving in the United States); § 1252(a)(2)(B) (barring review of denials of discretionary relief authorized by various statutory provisions); § 1252(a)(2)(C) (barring review of final removal orders discretion. We know of no case involving a challenge to "the decision ... to open an investigation"-perhaps because such decisions are rarely made public. And we know of no case challenging "the decision ... to issue a show cause order" (though that might well be considered a mere specification of the decision to "commence proceedings" which some cases do challenge and which § 1252(g) covers). Section 1252(g) was directed against a particular evil: attempts to impose judicial constraints upon prosecutorial discretion. It does not tax the imagination to understand why it focuses upon the stages of administration where those attempts have occurred. But in any event, any challenge to imagination posed by reading § 1252(g) as written would be small price to pay for escaping the overwhelming difficulties of JUSTICE SOUTER'S theory. He makes no effort to explain why his broad, catchall reading of § 1252(g) does not render it redundant of § 1252(b)(9). And his throw-in-the-towel approach to § 306(c)(1), which reads it out of the statute because he finds it difficult to explain, see post, at 509, not only strains the imagination but ruptures the faculty of reason. We do not think our interpretation "parses [§ 1252(g)] too finely," post, at 505; but if it did, we would think that modest fault preferable to the exercise of such a novel power of nullification. JUSTICE STEVENS, like JUSTICE SOUTER, rejects § 1252(g)'s explicit limitation to specific steps in the deportation process. He then invokes the conflict with § 306(c)(1) that this expansive interpretation creates as justification for concluding that, when § 1252(g) uses the word "section," it "can't mean what it says," Green v. Bock Laundry Machine Co., 490 U. S. 504 , 511 (1989) (internal quotation marks omitted)-empowering him to declare a "scrivener's error," post, at 498 (opinion concurring in judgment), and to change the word "section" to "Act." JUSTICE STEVENS' approach, like JUSTICE SOUTER'S, renders § 1252(g) redundant of § 1252(b)(9). That problem is solved by our more conventional solution: reading both "commence proceedings, adjudicate cases, or execute removal orders" and "section" to mean precisely what they say. 487 against criminal aliens); § 1252(b)(4)(D) (limiting review of asylum determinations for resident aliens). It is entirely understandable, however, why Congress would want only the discretion-protecting provision of § 1252(g) applied even to pending cases: because that provision is specifically directed at the deconstruction, fragmentation, and hence prolongation of removal proceedings. Our narrow reading of § 1252(g) makes sense of the statutory scheme as a whole, for it resolves the supposed tension between § 306(c)(1) and § 309(c)(1). In cases to which § 1252(g) applies, the rest of § 1252 is incorporated through the "[e]xcept as provided in this section" clause. This incorporation does not swallow § 309(c)(1)'s general rule that §§ 1252(a)-(f) do not apply to pending cases, for § 1252(g) applies to only a limited subset of deportation claims. Yet it is also faithful to § 306(c)(1)'s command that § 1252(g) be applied "without limitation" (i. e., including the "[e]xcept as provided" clause) to "claims arising from all past, pending, or future exclusion, deportation, or removal proceedings." Respondents' challenge to the Attorney General's decision to "commence proceedings" against them falls squarely within § 1252(g)-indeed, as we have discussed, the language seems to have been crafted with such a challenge precisely in mind-and nothing elsewhere in § 1252 provides for jurisdiction. Cf. § 1252(a)(1) (review of final orders); § 1252(e)(2) (limited habeas review for excluded aliens); § 1252(e)(3)(A) (limited review of statutes and regulations pertaining to the exclusion of aliens). As we concluded earlier, § 1252(f) plainly serves as a limit on injunctive relief rather than a jurisdictional grant. III Finally, we must address respondents' contention that, since the lack of prior factual development for their claim will render the § 1252(a)(1) exception to § 1252(g) unavailing; since habeas relief will also be unavailable; and since even if 488 488 RENO v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM. one or both were available they would come too late to prevent the "chilling effect" upon their First Amendment rights; the doctrine of constitutional doubt requires us to interpret § 1252(g) in such fashion as to permit immediate review of their selective-enforcement claims. We do not believe that the doctrine of constitutional doubt has any application here. As a general matter-and assuredly in the context of claims such as those put forward in the present case-an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.10 10 Instead of resolving this constitutional question, JUSTICE GINSBURG chooses to resolve the constitutional question whether Congress can exclude the courts from remedying an alleged First Amendment violation with immediate effects, pending the completion of administrative proceedings. It is not clear to us that this is easier to answer than the question we address-as is evident from the fact that in resolving it JUSTICE GINSBURG relies almost exclusively on cases dealing with the quite different question of federal-court intervention in state proceedings. (Even in that area, most of the cases she cites where we did not intervene involved no claim of present injury from the state action-and none involved what we have here: an admission by the Government that the alleged First Amendment activity was the basis for selecting the individuals for adverse action. Cf. Dombrowski v. Pfister, 380 U. S. 479 , 487-488, n. 4 (1965).) The one case not involving federal-state relations in fact overrode a congressional requirement for completion of administrative proceedingseven though, unlike here, no immediate harm was apparent. See Oestereich v. Selective Servo System Local Bd. No. 11, 393 U. S. 233 (1968). JUSTICE GINSBURG counts the case as one for her side on the basis of nothing more substantial than the Court's characterization of the agency action at issue as "blatantly lawless," id., at 238. See post, at 494 (opinion concurring in part and concurring in judgment). Nor is it clear that the constitutional question JUSTICE GINSBURG addresses has narrower application and effect than the one we resolve. Our holding generally deprives deportable aliens of the defense of selective prosecution. Hers allows all citizens and resident aliens to be deprived of constitutional rights (at least where the deprivation is not "blatantly lawless") pending the completion of agency proceedings. Finally, JUSTICE GINSBURG acknowledges that her constitutional conclusion might be different if "a court of appeals reviewing final orders of 489 Even in the criminal-law field, a selective prosecution claim is a rara avis. Because such claims invade a special province of the Executive-its prosecutorial discretion-we have emphasized that the standard for proving them is particularly demanding, requiring a criminal defendant to introduce "clear evidence" displacing the presumption that a prosecutor has acted lawfully. United States v. Armstrong, 517 U. S. 456 , 463-465 (1996). We have said: "This broad discretion [afforded the Executive] rests largely on the recognition that the decision to prosecute removal against respondents could not consider their selective enforcement claims." Post, at 495. But she never establishes that a court of appeals can consider their selective enforcement claims, though she expresses "confiden[ce]" (despite the Ninth Circuit's holding to the contrary) that that would be the outcome. Post, at 496, n. 2. How well-founded that confidence is may be assessed by considering the first and most substantial option upon which it is based, namely, "the Attorney General's position that the reviewing court of appeals may transfer a case to a district court ... and counsel's assurance at oral argument that petitioners will adhere to that position .... " Post, at 495-496. What petitioners primarily rely upon for this concession is the provision of the Hobbs Act that authorizes remand to the agency or transfer to a district court "[w]hen the agency has not held a hearing." 28 U. S. C. §2347(b). It is not at all clear that this should be interpreted to mean "when the agency's hearing has not addressed the particular point at issue"-especially since that situation is specifically covered by § 2347(c) (providing for remand in such circumstances), which the new amendments explicitly render inapplicable to deportation cases, see 8 U. S. C. § 1252(a)(1) (1994 ed., Supp. III). Petitioners' position is cast further in doubt by the fact that the Hobbs Act remedy for failure to hold a hearing "required by law" is not the transfer which petitioners assert, but remand, see 28 U. S. C. §2347(b)(1). Of course petitioners' promise not to quibble over this transfer point is of no value, since the point goes to jurisdiction and must be raised by the District Court sua sponte. It is quite possible, therefore, that what JusTICE GINSBURG'S approach would ultimately accomplish in this litigation is requiring us to address both the constitutional issue she now addresses and (upon termination of the administrative proceedings) the constitutional issue we now resolve. We think it preferable to resolve only the one (and we think narrower) issue at once. 490 490 RENO v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM. is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy. All of these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute." Wayte v. United States, 470 U. S. 598 , 607608 (1985). These concerns are greatly magnified in the deportation context. Regarding, for example, the potential for delay: Whereas in criminal proceedings the consequence of delay is merely to postpone the criminal's receipt of his just deserts, in deportation proceedings the consequence is to permit and prolong a continuing violation of United States law. Postponing justifiable deportation (in the hope that the alien's status will change-by, for example, marriage to an American citizen-or simply with the object of extending the alien's unlawful stay) is often the principal object of resistance to a deportation proceeding, and the additional obstacle of selective-enforcement suits could leave the INS hard pressed to enforce routine status requirements. And as for "chill[ing] law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry": What will be involved in deportation cases is not merely the disclosure of normal domestic law enforcement priorities and tech- 491 niques, but often the disclosure of foreign-policy objectives and (as in this case) foreign-intelligence products and techniques. The Executive should not have to disclose its "real" reasons for deeming nationals of a particular country a special threat-or indeed for simply wishing to antagonize a particular foreign country by focusing on that country's nationals-and even if it did disclose them a court would be ill equipped to determine their authenticity and utterly unable to assess their adequacy. Moreover, the consideration on the other side of the ledger in deportation cases-the interest of the target in avoiding "selective" treatment-is less compelling than in criminal prosecutions. While the consequences of deportation may assuredly be grave, they are not imposed as a punishment, see Carlson v. Landon, 342 U. S. 524 , 537 (1952). In many cases (for six of the eight aliens here) deportation is sought simply because the time of permitted residence in this country has expired, or the activity for which residence was permitted has been completed. Even when deportation is sought because of some act the alien has committed, in principle the alien is not being punished for that act (criminal charges may be available for that separate purpose) but is merely being held to the terms under which he was admitted. And in all cases, deportation is necessary in order to bring to an end an ongoing vio lation of United States law. The contention that a violation must be allowed to continue because it has been improperly selected is not powerfully appealing. To resolve the present controversy, we need not rule out the possibility of a rare case in which the alleged basis of discrimination is so outrageous that the foregoing considerations can be overcome. Whether or not there be such exceptions, the general rule certainly applies here. When an alien's continuing presence in this country is in violation of the immigration laws, the Government does not offend the 492 492 RENO v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM. Opinion of GINSBURG, J. Constitution by deporting him for the additional reason that it believes him to be a member of an organization that supports terrorist activity. *** Because 8 U. S. C. § 1252(g) deprives the federal courts of jurisdiction over respondents' claims, we vacate the judgment of the Ninth Circuit and remand with instructions for it to vacate the judgment of the District Court. It is so ordered. JUSTICE GINSBURG, with whom JUSTICE BREYER joins as to Part I, concurring in part and concurring in the judgment. I agree with JUSTICE SCALIA that 8 U. S. C. § 1252(g) (1994 ed., Supp. III) applies to this case and deprives the federal courts of jurisdiction over respondents' pre-final-order suit. Under § 1252, respondents may obtain circuit court review of final orders of removal pursuant to the Hobbs Act, 28 U. S. C. § 2341 et seq. (1994 ed. and Supp. II). See 8 U. S. C. § 1252(a)(1) (1994 ed., Supp. III). I would not prejudge the question whether respondents may assert a selective enforcement objection when and if they pursue such review. It suffices to inquire whether the First Amendment necessitates immediate judicial consideration of their selective enforcement plea. I conclude that it does not. I Respondents argue that they are suffering irreparable injury to their First Amendment rights and therefore require instant review of their selective enforcement claims. We have not previously determined the circumstances under which the Constitution requires immediate judicial intervention in federal administrative proceedings of this order. Respondents point to our cases addressing federal injunctions 493 that stop state proceedings, in order to secure constitutional rights. They feature in this regard Dombrowski v. Pfister, 380 U. S. 479 (1965), as interpreted in Younger v. Harris, 401 U. S. 37,47-53 (1971). Respondents also refer to Oestereich v. Selective Servo System Local Bd. No. 11, 393 U. S. 233 (1968). Those cases provide a helpful framework. In Younger, this Court declared that federal restraint of state prosecutions is permissible only if the state defendant establishes "great and immediate" irreparable injury, beyond "that incidental to every criminal proceeding brought lawfully and in good faith." 401 U. S., at 46,47 (internal quotation marks omitted). A chilling effect, the Court cautioned, does not "by itself justify federal intervention." Id., at 50. Younger recognized, however, the prospect of extraordinary circumstances in which immediate federal injunctive relief might be obtained. The Court referred, initially, to bad faith, harassing police and prosecutorial actions pursued without "any expectation of securing valid convictions." I d., at 48 (internal quotation marks omitted).l Further, the Court observed that there may be other "extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment," for example, where a statute is "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it." Id., at 53-54 (internal quotation marks omitted). 1 Specifically, the Younger Court noted that Dombrowski's complaint made substantial allegations that "'threats to enforce the statutes ... [were] not made with any expectation of securing valid convictions, but rather [were] part of a plan to employ arrests, seizures, and threats of prosecution under color of the statutes to harass appellants and discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana.''' 401 U. S., at 48 (quoting Dombrowski V. Pfister, 380 U. S. 479 , 482 (1965)). 494 494 RENO v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM. Opinion of GINSBURG, J. In Oestereich, the Selective Service Board had withdrawn a ministry student's statutory exemption from the draft after he engaged in an act of protest. See 393 U. S., at 234. The student brought suit to restrain his induction, and this Court allowed the suit to go forward, notwithstanding a statutory bar of preinduction judicial review. Finding the Board's action "blatantly lawless," the Court concluded that to require the student to raise his claim through habeas corpus or as a defense to a criminal prosecution would be "to construe the Act with unnecessary harshness." Id., at 238. The precedent in point suggests that interlocutory intervention in Immigration and Naturalization Service (INS) proceedings would be in order, notwithstanding a statutory bar, if the INS acts in bad faith, lawlessly, or in patent violation of constitutional rights. Resembling, but more stringent than, the evaluation made when a preliminary injunction is sought, see, e. g., Doran v. Salem Inn, Inc., 422 U. S. 922 , 931 (1975) ("The traditional standard for granting a preliminary injunction requires the plaintiff to show that in the absence of its issuance he will suffer irreparable injury and also that he is likely to prevail on the merits."), this test would demand, as an essential element, demonstration of a strong likelihood of success on the merits. The merits of respondents' objection are too uncertain to establish that likelihood. The Attorney General argued in the court below and in the petition for certiorari that the INS may select for deportation aliens who it has reason to believe have carried out fundraising for a foreign terrorist organization. See App. to Pet. for Cert. 20a; Pet. for Cert. 21-25. Whether the INS may do so presents a complex question in an uncharted area of the law, which we should not rush to resolve here. Relying on Middlesex County Ethics Comm. v. Garden State Bar Assn., 457 U. S. 423 (1982), respondents argue that their inability to raise their selective enforcement claims 495 during the administrative proceedings, see ante, at 476, makes immediate judicial intervention necessary. As we explained in Middlesex County, Younger abstention is appropriate only when there is "an adequate opportunity in the state proceedings to raise constitutional challenges." 457 U. S., at 432; see Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U. S. 619 , 629 (1986) (even if complainants could not raise their First Amendment objections in the administrative hearing, it sufficed that objections could be aired in state-court judicial review of any administrative decision). Here, Congress has established an integrated scheme for deportation proceedings, channeling judicial review to the final order, and deferring issues outside the agency's authority until that point. Given Congress' strong interest in avoiding delay of deportation proceedings, see ante, at 490, I find the opportunity to raise a claim during the judicial review phase sufficient. If a court of appeals reviewing final orders of removal against respondents could not consider their selective enforcement claims, the equation would be different. See Webster v. Doe, 486 U. S. 592 , 603 (1988) (a "serious constitutional question ... would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim" (internal quotation marks omitted)). Respondents argue that that is the case, because their claims require factfinding beyond the administrative record. Section 1252(a)(1) authorizes judicial review of "final order[s] of removal." We have previously construed such "final order" language to authorize judicial review of "all matters on which the validity of the final order is contingent, rather than only those determinations actually made at the hearing." INS v. Chadha, 462 U. S. 919 , 938 (1983) (internal quotation marks omitted). Whether there is here a need for factfinding beyond the administrative record is a matter properly postponed. I note, however, the Attorney Gener- 496 496 RENO v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM. Opinion of GINSBURG, J. aI's position that the reviewing court of appeals may transfer a case to a district court for resolution of pertinent issues of material fact, see Brief for Petitioners 44, 48-49, and n. 23,2 and counsel's assurance at oral argument that petitioners will adhere to that position, see Tr. of Oral Arg. 5-6.3 2 The Hobbs Act authorizes a reviewing court of appeals to transfer the proceedings to a district court for the resolution of material facts when "the agency has not held a hearing before taking the action of which review is sought," 28 U. S. C. §2347(b), and "a hearing is not required by law," § 2347(b)(3). Sensitive to the constitutional concerns that would be presented by complete preclusion of judicial review, the Attorney General argues that "[s]ection 2347(b)(3) on its face permits transfer to a district court, in an appropriate case, for resolution of a substantial selective enforcement challenge to a final order of deportation," because the INS is not required to hold a hearing before filing deportation charges. Reply Brief 12, 14. The Attorney General also suggests that other provisions, in particular Federal Rule of Appellate Procedure 48's authorization of special masters, might be available. See Reply Brief 12-13. Finally, the Attorney General argues that, upon a finding of constitutional necessity, a court of appeals could "fashion an appropriate mechanism-most likely a procedure similar to a Section 2347(b)(3) transfer." Id., at 13. While it is best left to the courts of appeals in the first instance to determine the appropriate mechanism for factfinding necessary to the resolution of a constitutional claim, I am confident that provision for such factfinding is not beyond the courts of appeals' authority. 3 The following exchange at oral argument so confirms: Counsel for petitioners: " ... [I]f there were ultimately final orders of deportation entered, and the respondents raised a constitutional challenge based on selective enforcement, and if the court of appeals then concluded that fact-finding was necessary in order to resolve the constitutional issue, it would then be required to determine whether a mechanism existed under the applicable statute. "Now, we believe 28 U. S. C. 2347(b)(3) would provide that mechanism, but- Court: "It might provide the mechanism if the issue is properly raised, but can the issue be properly raised when it would not be based on anything in the record of the proceedings at the administrative level?" Counsel for petitioners: " ... [I]f the respondents claimed that execution of the deportation order would violate their constitutional rights because the charges were initiated on the basis of unconstitutional consid- 497 II The petition for certiorari asked this Court to review the merits of respondents' selective enforcement objection, but we declined to do so, granting certiorari on the jurisdictional question only. See Pet. for Cert. I, 20-30; 524 U. S. 903 (1998). We thus lack full briefing on respondents' selective enforcement plea and on the viability of such objections generally. I would therefore leave the question an open one. I note, however, that there is more to "the other side of the ledger," ante, at 491, than the Court allows. It is well settled that "[f]reedom of speech and of press is accorded aliens residing in this country." Bridges v. Wixon, 326 U. S. 135 , 148 (1945). Under our selective prosecution doctrine, "the decision to prosecute may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification, including the exercise of protected statutory and constitutional rights." Wayte v. United States, 470 U. S. 598 , 608 (1985) (internal citations and quotation marks omitted). I am not persuaded that selective enforcement of deportation laws should be exempt from that prescription. If the Government decides to deport an alien "for reasons forbidden by the Constitution," United States v. Armstrong, 517 U. S. 456 , 463 (1996), it does not seem to me that redress for the constitutional violation should turn on the gravity of the governmental sanction. Deportation, in any event, is a grave sanction. As this Court has long recognized, "[t]hat deportation is a penaltyat times a most serious one-cannot be doubted." Bridges, 326 U. S., at 154; see also ibid. (Deportation places "the lib- erations, I think that is a claim that would properly be before the court of appeals." Court: "So is that the Government's position, that we may rely on that representation that you have just made about the legal position that the Government would take in those circumstances?" Counsel for petitioners: "That is correct." Tr. of Oral Arg. 5-6. 498 498 RENO v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM. STEVENS, J., concurring in judgment erty of an individual ... at stake .... Though deportation is not technically a criminal proceeding, it visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom."); G. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law 162 (1996) ("Deportation has a far harsher impact on most resident aliens than many conceded 'punishment[sJ' .... Uprooting the alien from home, friends, family, and work would be severe regardless of the country to which the alien was being returned; breaking these attachments inflicts more pain than preventing them from being made."). *** In sum, were respondents to demonstrate strong likelihood of ultimate success on the merits and a chilling effect on current speech, and were we to find the agency's action flagrantly improper, precedent and sense would counsel immediate judicial intervention. But respondents have made no such demonstration. Further, were respondents to assert a colorable First Amendment claim as a now or never matterwere that claim not cognizable upon judicial review of a final order-again precedent and sense would counsel immediate resort to a judicial forum. In common with the Attorney General, however, I conclude that in the final judicial episode, factfinding, to the extent necessary to fairly address respondents' claims, is not beyond the federal judiciary's ken. For the reasons stated, I join in Parts I and II of the Court's opinion and concur in the judgment. JUSTICE STEVENS, concurring in the judgment. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA or Act) is a part of an omnibus enactment that occupies 750 pages in the Statutes at Large. Pub. L. 104-208, 110 Stat. 3009-546. It is not surprising that it contains a scrivener's error. See Green v. Bock 499 Laundry Machine Co., 490 U. S. 504 , 511 (1989). Despite that error, Congress' intended disposition of cases like this is plain. It must be dismissed. The textual difficulty that is debated by my colleagues concerns the impact of IIRIRA on proceedings that were pending on the effective date of the Act. Putting those cases to one side for the moment, the meaning of 8 U. S. C. §§ 1252(b)(9) and (g) (1994 ed., Supp. III) is perfectly clear. The former postpones judicial review of removal proceedings until the entry of a final order1 and the latter deprives federal courts of jurisdiction over collateral challenges to ongoing administrative proceedings.2 Thus, if § 1252 applies to these respondents, the deportation proceedings pending before the Immigration and Naturalization Service (INS) are not yet ripe for review, and this collateral attack on those proceedings must be dismissed. If we substitute the word "Act" for the word "section" in the introductory clause of § 1252(g), the impact of this provision on pending proceedings is equally clear. That substitution would remove any obstacle to giving effect to the plain meaning of IIRIRA §§ 306(c)(1) and 309(c)(1). The former defines the effective date of the Act and makes § 1252(g)'s 1 Section 1252(b)(9) provides: "CONSOLIDATION OF QUESTIONS FOR JUDICIAL REVIEW.-Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this title shall be available only in judicial review of a final order under this section." 110 Stat. 3009-610. 2 Section 1252(g) provides: "EXCLUSIVE JURISDICTION.-Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act." Id., at 3009-612. 500 500 RENO v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM. STEVENS, J., concurring in judgment prohibition against collateral attacks effective immediately; 3 the latter makes the new rules inapplicable to aliens in exclusion or deportation proceedings pending before the INS on the effective date of the Act.4 Judicial review of those administrative proceedings remains available in the courts of appeal under the old statutory regime. See 8 U. S. C. § 1l05a. Admittedly, there is a slight ambiguity in the text of § 309 because it refers to the "case of an alien who is in exclusion or deportation proceedings" before the effective date of the new Act. Respondents are such aliens, and therefore the word "case" arguably could be read to include their present collateral attack on the INS proceedings as well as to an eventual challenge to the final order of deportation. Because that reading would be inconsistent with § 306, however, it is clear that Congress intended § 309 to apply only to the INS "exclusion or deportation" proceedings that it expressly mentions. To summarize, I think a fair reading of all relevant provisions in the statute makes it clear that Congress intended its prohibition of collateral attacks on ongoing INS proceedings 3 Section 306(c)(1) provides: "EFFECTIVE DATE.- "(1) IN GENERAL.-Subject to paragraph (2), the amendments made by subsections (a) and (b) shall apply [as provided under section 309, except that] subsection (g) of section 242 of the Immigration and Nationality Act (as added by subsection (a)), shall apply without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings under such Act." Ibid. 4 Section 309(c)(1) provides: "TRANSITION FOR ALIENS IN PROCEEDINGS.- "(1) GENERAL RULE THAT NEW RULES DO NOT APPLY.-Subject to the succeeding provisions of this subsection, in the case of an alien who is in exclusion or deportation proceedings as of the title III-A effective date- "(A) the amendments made by this subtitle shall not apply, and "(B) the proceedings (including judicial review thereof) shall continue to be conducted without regard to such amendments." Id., at 3009-625. 501 to become effective immediately while providing that pending administrative proceedings should be completed under the scheme of judicial review in effect when they were commenced. I should add that I agree with JUSTICE SOUTER'S explanation of why § 1252(g) applies broadly to removal proceedings rather than to only three discrete parts of such proceedings. See post, at 505-507 (dissenting opinion). I do not, however, share his constitutional doubt concerning the prohibition of collateral proceedings such as this one. Of course, Congress could not authorize punishment of innocent persons because they happen to be members of an organization that engaged in terrorism. For the reasons stated in Part III of the Court's opinion, however, I have no doubt that the Attorney General may give priority to the removal of deportable aliens who are members of such an organization. See ante, at 487-492. Accordingly, I agree that the judgment of the District Court must be vacated. JUSTICE SOUTER, dissenting. The unhappy history of the provisions at issue in this case reveals that Congress, apparently unintentionally, enacted legislation that simultaneously grants and denies the right of judicial review to certain aliens who were in deportation proceedings before April 1, 1997. Finding no trump in the two mutually exclusive statutory provisions, I would invoke the principle of constitutional doubt and apply the provision that avoids a potential constitutional difficulty. Because the Court today instead purports to resolve the contradiction with a reading that strains the meaning of the text beyond what I think it can bear, I respectfully dissent. I The first of the contradictory provisions is put in play by § 306(c)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009-612, as 502 502 RENO v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM. SOUTER, J., dissenting amended by § 2 of the Act of Oct. 11, 1996, 110 Stat. 3657, which makes new 8 U. S. C. § 1252(g) (1994 ed., Supp. III) immediately applicable as of the date of its enactment (i. e., October 11, 1996) to "claims arising from all past, pending, or future" removal proceedings. Subsection (g), for its part, bars review in any court of "the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien," except as provided in § 1252. The exception, however, is cold comfort to applicants for review of proceedings pending when IIRIRA took effect, because the rest of § 1252 is inapplicable to "an alien who is in exclusion or deportation proceedings" on the effective date of IIRIRA, April 1, 1997. Section 309(c)(1)(A) of IIRIRA, 110 Stat. 3009-625, as amended by § 2 of the Act of Oct. 11, 1996, 110 Stat. 3657. Hence, by operation of § 306(c)(1), it would appear that aliens who did not obtain judicial review as of the enactment date of October 11, 1996, and who were in proceedings as of IIRIRA's effective date of April 1, 1997, can never obtain judicial review of "the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien" in any forum. In short, § 306(c)(1) appears to bar members of this class of aliens from any review of any aspect of their claims. Yet § 306(c)(1) is not the only statutory provision applicable to aliens in proceedings before April 1, 1997. Section 309(c)(1)(B) provides that, in the case of aliens in proceedings before the effective date, "the proceedings (including judicial review thereof) shall continue to be conducted without regard to [new § 1252]." The parenthetical expression in this section specifically provides that the judicial review available to aliens before the April 1, 1997, effective date of § 1252 continues to be available even after the effective date to aliens who were already in proceedings before the effective date. In other words, the terms of § 309(c)(1)(B) preserve 503 pre-existing judicial review for the self-same class of aliens to whom § 306(c)(1) bars review. We do not have to dwell on how this contradiction arose.1 What matters for our purposes is that §§ 306(c)(1) 1 Section 306(c)(1) was originally enacted on September 30, 1996. As it then read, it first provided that new 8 U. S. C. § 1252 (1994 ed., Supp. III) would apply "to all final orders of deportation or removal and motions to reopen filed on or after the date of the enactment of this Act," 110 Stat. 3009-612, and then provided that subsection (g) would apply without limitation. Under this transitional arrangement, no review was available to an alien in proceedings after September 30, 1996, until such time as a final order was issued against the alien. When a final order issued, the alien would be entitled to any judicial review available under new § 1252. The intent of this provision was thus presumably to preclude judicial review of nonfinal steps in the removal procedure in the interim before IIRIRA's effective date of April 1, 1997. This arrangement, however, conflicted with the different transitional provision set out in § 309(c)(4). This section, entitled "Transitional Changes in Judicial Review," provides that where a final order was "entered more than 30 days after the date of enactment of this Act," subsection (b) of the old 8 U. S. C. § 1105a does not apply. This subsection provides for habeas corpus proceedings for "any alien against whom a final order of exclusion has been made." In other words, § 309(c)(4) expressly contemplates that old § 1105a, less its habeas provision, applies to cases where a final order is issued more than 30 days after September 30, 1996, whereas the original § 306(c)(1) as enacted contemplated that when a final order was issued on or after September 30, 1996, the new § 1252 would apply. It appears that Congress noticed this discrepancy. On October 4, 1996, Representative Lamar Smith of Texas explained on the floor of the House that he had "become aware of an apparent technical error in two provisions" of IIRIRA. 142 Congo Rec. H12293. He explained that "[i]t was the clear intent of the conferees that, as a general matter, the full package of changes made by [new 8 U. S. C. § 1252] effect [sic] those cases filed in court after the enactment of the new law, leaving cases already pending before the courts to continue under existing law." Ibid. By "before the courts," Representative Smith seems to have meant the immigration courts. He went on to explain § 309(c)(4): "The conferees also intended, however, to accelerate the implementation of certain of the reforms [in new § 1252]. This intent is clearly spelled out in section 309 of the act. Specifically, section 309(c)(4) calls for accelerated implementation of some of the reforms made in section 306 regarding judicial review, but does not 504 504 RENO v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM. SOUTER, J., dissenting and 309(c)(1) cannot be reconciled. Either aliens in proceedings on April 1, 1997, have no access to judicial review or else they have the access available under the law that applied before § 1252 came into effect.2 call for immediate implementation of all of these reforms." Ibid. Representative Smith then proposed the first technical change, which does not concern us. He then added that "there is a need to clarify the scope of section 306(c) to ensure that it does not conflict with section 309(c)(4)," and introduced an amendment to § 306(c)(1). Ibid. That amendment, enacted October 11, 1996, eliminated the part of the original § 306(c)(1) that applied new § 1252 to final orders filed on or after the date of enactment, but left untouched the immediate application of subsection (g). 110 Stat. 3657. The result of this amendment was that § 306(c)(1) no longer qualified its preclusion of judicial review for aliens from the date of enactment with the application of the new judicial review provisions of § 1252 to those aliens once final orders were issued against them. Instead, the amended language of § 306(c)(1) now simply barred judicial review altogether. Thus the anomaly appears to have resulted from incomplete technical amendment. 2 Although the parties have not so argued, it might at first blush be thought that because § 1252(g) includes the language "notwithstanding any other provision of law," it carves an exception out of the general rule of § 309(c)(1). The two problems with this notion are, first, that such an exception would swallow the rule, and, second, that § 309(c)(1)(A) makes "the amendments made by this subtitle," including § 1252(g) itself, inapplicable to aliens in proceedings as of April 1, 1997. If § 1252(g) is not applicable to such aliens, then the words "notwithstanding any other provision of law" cannot have any special force regarding such aliens. It might also be thought that, because § 309(a) announces that IIRIRA shall take effect on April 1, 1997, except as provided in various sections, including § 306(c), and § 309(c)(1) is enacted "[s]ubject to the succeeding provisions of this subsection," somehow § 309(c)(1) does not apply to § 306(c). Ante, at 477, n. 5. This cannot be so, of course, because the "subsection" in question is § 309(c), not § 309(a). The exception in § 309(a) means only to acknowledge that § 306(c) is effective immediately upon enactment, not on April 1, 1997. Finally, neither § 306(c) nor § 309(c) may be said to be enacted later than the other for purposes of implicit repeal. Both were enacted on September 30, 1996, and both were amended by the removal or alteration of some language on October 11, 1996. Because of this simultaneous enactment, 505 The Court acknowledges the existence of an "interpretive anomaly," ante, at 478, and attempts to avoid the contradiction by a creative interpretation of § 1252(g). It reads the § 1252(g) bar to review of "the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien" to "appl[y] only to three discrete actions that the Attorney General may take." Ante, at 482. The Court claims that a bar to review of commencement of proceedings, adjudication of cases, and execution of removal orders does not bar review of every sort of claim, because "many other decisions or actions that may be part of the deportation process," ibid., remain unaffected by the limitation of § 1252(g). On this reading, the Court says, review of some aspects of the Attorney General's possible actions regarding aliens in proceedings before April 1, 1997, is preserved, even though the rest of § 1252 does not apply. The actions that still may be reviewed when challenged by aliens already in proceedings before the effective date of IIRIRA include, the Court tells us, "decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order." Ibid. The Court's interpretation, it seems to me, parses the language of subsection (g) too finely for the business at hand. The chronological march from commencing proceedings, through adjudicating cases, to executing removal orders, surely gives a reasonable first impression of speaking exhaustively. While it is grammatically possible to read the series without total inclusion, ibid., the implausibility of doing this appears the moment one asks why Congress would have wanted to preserve interim review of the particular set of decisions by the Attorney General to which the Court to give primary influence to the "notwithstanding" clause would simply beg the question of legislative intent. 506 506 RENO v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM. SOUTER, J., dissenting adverts. It is hard to imagine that Congress meant to bar aliens already in proceedings before the effective date from challenging the commencement of proceedings against them, but to permit the same aliens to challenge, say, the decision of the Attorney General to open an investigation of them or to issue a show-cause order. Nor is there a plausible explanation of why the exclusivity provisions of subsection (g) should not apply after the effective date to review of decisions to open investigations or invite cause to be shown. The Court offers two arguments in support of its ingenious reading, neither of which suffices to convince me of its plausibility. First, the Court suggests that Congress could not have intended the words "commence proceedings, adjudicate cases, and execute removal orders" to refer to all deportation-related claims, because this would require these parts of deportation proceedings to stand for the whole of the process, and such a use of language "is incompatible with the need for precision in legislative drafting." Ibid. But without delving into the wisdom of using rhetorical figures in statutory drafting, one can still conclude naturally that Congress employed three subject headings to bar review of all those stages in the deportation process to which challenges might conceivably be brought. Indeed, each one of the Court's examples of reviewable actions of the Attorney General falls comfortably into one or another of the three phases of the deportation process captured under the headings of commencement, adjudication, and removal. The decisions to open an investigation or subject an alien to surveillance belong to the commencement of proceedings (which presumably differs from adjudication, separately mentioned); issuing an order to show cause, composing the final order, and refusing reconsideration all easily belong to an adjudication. Far from employing synecdoche, Congress used familiar, general terms to refer to the familiar stages of the exclusion process, and the acceptability of interpreting the three 507 items to exclude others requires considerable determination to indulge in such a reading. Second, the Court explains that Congress had "good reason," ante, at 483, to focus on commencement, adjudication, and execution, because these are distinct stages of the deportation process at which the Executive was in the habit of exercising its discretion to defer action. To show the existence of this practice, the Court quotes a passage from a treatise on immigration law, which says descriptively that" 'the INS may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation,'" ante, at 484 (quoting 6 C. Gordon, S. Mailman, & S. YaleLoehr, Immigration Law and Procedure § 72.03[2][h] (1998)). The treatise also says that the courts have sometimes entertained efforts to challenge the refusal to exercise discretion, ante, at 485. The Court notes, perfectly plausibly, that the purpose of § 1252(g) may well have been to bar such challenges. But this is hardly a smoking gun. The passage in question uses the notions of instituting and terminating proceedings, and declining to execute final removal orders, in the very same inclusive sense that § 1252(g) does. The treatise says that" '[a] case may be selected for deferred action treatment at any stage of the administrative process,'" ante, at 484, by which its authors evidently meant to say simply that from time to time the Executive exercises discretion at various points in the process, and that some courts have considered challenges to the failure to exercise discretion. This is no support for the Court's argument that Congress meant to bar review only of the "discrete" actions of commencement, adjudication, or execution. Because I cannot subscribe to the Court's attempt to render the inclusive series incomplete, I have to confront the irreconcilable contradiction between § 306(c)(1) and § 309(c)(1). Both context and principle point me to the conclusion that the latter provision must prevail over the former. First, it seems highly improbable that Congress actu- 508 508 RENO v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM. SOUTER, J., dissenting ally intended to raise a permanent barrier to judicial review for aliens in proceedings ongoing on April 1, 1997. Judicial review was available under old 8 U. S. C. § 1105a to those aliens whose proceedings concluded before the enactment of the amended § 306(c)(1) on October 11, 1996, and judicial review of a different scope is also available under new 8 U. S. C. § 1252 (1994 ed., Supp. III) to those whose proceedings commenced after the effective date of IIRIRA, April 1, 1997. There is no reason whatever to believe that Congress intentionally singled out for especially harsh treatment the hapless aliens who were in proceedings during the interim. This point is underscored by transitional § 309(c)(4)(A), which expressly applies subsections (a) and (c) of old 8 U. S. C. § 1105a (but not subsection (b) thereof) to judicial review of final orders of deportation or exclusion filed more than 30 days after the date of enactment. Section 309(c)(4)(A), in other words, contemplates judicial review of final orders of exclusion against aliens who were in proceedings as of the date of enactment. Second, complete preclusion of judicial review of any kind for claims brought by aliens subject to proceedings for removal would raise the serious constitutional question whether Congress may block every remedy for enforcing a constitutional right. See Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667 , 681, n. 12 (1986). The principle of constitutional doubt counsels against adopting the interpretation that raises this question. "[W]here a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter." United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366 , 408 (1909); see also United States v. Jin Fuey Moy, 241 U. S. 394 , 401 (1916). Here, constitutional doubt lends considerable weight to the view that § 309(c)(1) ought to prevail over § 306(c)(1) and preserve judicial review under the law as it was before the en- 509 actment of IIRIRA for aliens in proceedings before April 1, 1997. While I do not lightly reach the conclusion that § 306(c)(1) is essentially without force, my respect for Congress's intent in enacting § 309(c)(1) is necessarily balanced by respect for Congress's intent in enacting § 306(c)(1). No canon of statutory construction familiar to me specifically addresses the situation in which two simultaneously enacted provisions of the same statute flatly contradict one another. 3 We are, of course, bound to avoid such a dilemma if we can, by glimpsing some uncontradicted meaning for each provision. But the attempt to salvage an application for each must have some stopping place, and the Court's attempt here seems to me to go beyond that point. In this anomalous situation where the two statutory provisions are fundamentally at odds, constitutional doubt will have to serve as the best guide to breaking the tie. Because I think that § 309(c)(1) applies to aliens in proceedings before April 1, 1997, I think it applies to respondents in this case. The law governing their proceedings and subsequent judicial review should therefore be the law prevailing before IIRIRA. That law, in my view, afforded respondents an opportunity to litigate their claims before the District Court. Former 8 U. s. C. § 1l05a(a) governed "judicial review of all final orders of deportation." For actions that fell outside the scope of this provision, an "alien's remedies would, of course, ordinarily lie first in an action brought in an appropriate district court." Cheng Fan Kwok v. INS, 392 U. S. 206 , 210 (1968). In McNary v. Haitian Refugee Center, Inc., 498 U. S. 479 (1991), we applied this principle in 3 In such a situation, one court held some 70 years ago that "[i]t being conceded that the two acts are contradictory and irreconcilable, and being unable to determine that either became effective, in point of time, before the other, it results that both are invalid." Maddux v. Nashville, 158 Tenn. 307, 312, 13 S. W. 2d 319, 321 (1929). In our case, invalidating §§ 306(c)(I) and 309(c)(I) would enable us to apply the law in place before the enactment of IIRIRA, as we ought to do on the other grounds here. 510 510 RENO v. AMERICAN-ARAB ANTI-DISCRIMINATION COMM. SOUTER, J., dissenting finding a right of action before the district court in a constitutional challenge to procedures of the Immigration and N aturalization Service. Respondents' challenge to the constitutionality of their prosecution was filed prior to the entry of a final order of deportation, and so district court jurisdiction was appropriate here.4 II The approach I would take in this case avoids a troubling problem that the Court chooses to address despite the fact that it was not briefed before the Court: whether selective prosecution claims have vitality in the immigration context. Of course, in principle, the Court's approach itself obviates the need to address that issue: if respondents' suit is barred by § 1252(g), the Court need not address the merits of their claims. Yet the Court goes on, in what I take as dictum,5 to argue that the alien's interest in avoiding selective treatment in the deportation context "is less compelling than in criminal prosecutions," ante, at 491, either because the alien is not 4 Respondents' challenge fell outside the scope of § 1105a, and was not subject to the requirement of exhaustion contained therein in the former § 1105a(c). As in McNary, the waiver of sovereign immunity is to be found in 5 U. S. C. § 702, which waives the immunity of the United States in actions for relief other than money damages. This waiver of immunity is not restricted by the requirement of final agency action that applies to suits under the Administrative Procedure Act. See The Presbyterian Church (u. S. A.) v. United States, 870 F.2d 518 , 523-526 (CA9 1989). 5 The Court says it "must address" respondents' various contentions, ante, at 487, and on that basis it takes up the selective prosecution issue. Notwithstanding the usefulness of addressing the parties' arguments, a line of argument unnecessary to the decision of the case remains dictum. See United States v. Dixon, 509 U. S. 688 , 706 (1993) (quoting with approval United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439 , 463, n. 11 (1993), on '''the need to distinguish an opinion's holding from its dicta' "). Respondents' contention that their speech has been impermissibly chilled cannot require the Court to say that no action for selective prosecution may lie in this case; a claim of chilled speech cannot place the selective prosecution claim within the statutory jurisdiction that § 1252(g) forecloses on the Court's view. 511 being punished for an act he has committed, or because the presence of an alien in the United States is, unlike a past crime, "an ongoing violation of United States law," ibid. (emphasis deleted). While the distinctions are clear, the difference is not. The interest in avoiding selective enforcement of the criminal law, shared by the government and the accused, is that prosecutorial discretion not be exercised to violate constitutionally prescribed guaranties of equality or liberty. See United States v. Armstrong, 517 U. S. 456 , 464465 (1996); Wayte v. United States, 470 U. S. 598 , 608 (1985). This interest applies to the like degree in immigration litigation, and is not attenuated because the deportation is not a penalty for a criminal act or because the violation is ongoing. If authorities prosecute only those tax evaders against whom they bear some prejudice or whose protected liberties they wish to curtail, the ongoing nature of the nonpayers' violation does not obviate the interest against selective prosecution. No doubt more could be said with regard to the theory of selective prosecution in the immigration context, and I do not assume that the Government would lose the argument. That this is so underscores the danger of addressing an unbriefed issue that does not call for resolution even on the Court's own logic. Because I am unconvinced by the Court's statutory interpretation, and because I do not think the Court should reach the selective prosecution issue, I respectfully dissent. 512 The next page is purposely numbered 801. The numbers between 511 and 801 were intentionally omitted, in order to make it possible to publish the orders with permanent page numbers, thus making the official citations available upon publication of the preliminary prints of the United States Reports. 513 OCTOBER 5, 1998 Dismissal Under Rule 46 No. 98-346. STROHMEYER V. NEVADA. Sup. Ct. Nev. Certiorari dismissed under this Court's Rule 46. Reported below: 114 Nev. 1749, 988 P. 2d 868. Certiorari Granted-Vacated and Remanded No. 97-1623. UNITED STATES V. FOSTER. C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Muscarello v. United States, 524 No. 97-1656. SLOAN V. SHARP, COMPTROLLER OF PUBLIC AcCOUNTS OF TEXAS, ET AL. C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Faragher v. Boca Raton, 524 U. S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998). Reported below: 136 F.3d 136 . No. 97-1751. PFAU V. REED, DIRECTOR, DEFENSE CONTRACT AUDIT AGENCY. C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Faragher v. Boca Raton, 524 U. S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998). Reported below: 125 F.3d 927 . No. 97-1969. WILSON V. CITY OF PLANO. C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Faragher v. Boca Raton, 524 U. S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998). Reported below: 139 F.3d 899 . No. 97-2018. KIOWA TRIBE OF OKLAHOMA V. HOOVER. Sup. Ct. Okla. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Kiowa Tribe of 801

In *Reno v. American-Arab Anti-Discrimination Committee et al.*, the Supreme Court ruled that federal courts do not have jurisdiction over lawsuits filed by resident aliens claiming that they were targeted for deportation due to their political affiliations. The Court interpreted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) as restricting judicial review of the Attorney General's decisions to "commence proceedings, adjudicate cases, or execute removal orders against any alien." The Court's ruling was based on the statutory interpretation of the IIRIRA and did not address the merits of the selective prosecution claim.

Immigration & National Security

U.S. v. Verdugo-Urquidez

https://supreme.justia.com/cases/federal/us/494/259/

U.S. Supreme Court United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) United States v. Verdugo-Urquidez No. 88-1353 Argued Nov. 7, 1989 Decided Feb. 28, 1990 494 U.S. 259 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus After the Government obtained an arrest warrant for respondent -- a Mexican citizen and resident believed to be a leader of an organization that smuggles narcotics into this country -- he was apprehended by Mexican police and transported here, where he was arrested. Following his arrest, Drug Enforcement Administration agents, working with Mexican officials, searched his Mexican residences and seized certain documents. The District Court granted his motion to suppress the evidence, concluding that the Fourth Amendment -- which protects "the people" against unreasonable searches and seizures -- applied to the searches, and that the DEA agents had failed to justify searching the premises without a warrant. The Court of Appeals affirmed. Citing Reid v. Covert, 354 U. S. 1 -- which held that American citizens tried abroad by United States military officials were entitled to Fifth and Sixth Amendment protections -- the court concluded that the Constitution imposes substantive constraints on the Federal Government, even when it operates abroad. Relying on INS v. Lopez-Mendoza, 468 U. S. 1032 -- where a majority assumed that illegal aliens in the United States have Fourth Amendment rights -- the court observed that it would be odd to acknowledge that respondent was entitled to trial-related rights guaranteed by the Fifth and Sixth Amendments, but not to Fourth Amendment protection. Held: The Fourth Amendment does not apply to the search and seizure by United States agents of property owned by a nonresident alien and located in a foreign country. Pp. 494 U. S. 264 -275. (a) If there were a constitutional violation in this case, it occurred solely in Mexico, since a Fourth Amendment violation is fully accomplished at the time of an unreasonable governmental intrusion whether or not the evidence seized is sought for use in a criminal trial. Thus, the Fourth Amendment functions differently from the Fifth Amendment, whose privilege against selfincrimination is a fundamental trial right of criminal defendants. P. 494 U. S. 264 . (b) The Fourth Amendment phrase "the people" seems to be a term of art used in select parts of the Constitution, and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that "the people" Page 494 U. S. 260 refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. Pp. 494 U. S. 264 -266. (c) The Fourth Amendment's drafting history shows that its purpose was to protect the people of the United States against arbitrary action by their own Government, and not to restrain the Federal Government's actions against aliens outside United States territory. Nor is there any indication that the Amendment was understood by the Framers' contemporaries to apply to United States activities directed against aliens in foreign territory or in international waters. Pp. 494 U. S. 266 -268. (d) The view that every constitutional provision applies wherever the Government exercises its power is contrary to this Court's decisions in the Insular Cases, which held that not all constitutional provisions apply to governmental activity even in territories where the United States has sovereign power. See, e.g., Balzac v. Porto Rico, 258 U. S. 298 . Indeed, the claim that extraterritorial aliens are entitled to rights under the Fifth Amendment -- which speaks in the relatively universal term of "person" -- has been emphatically rejected. Johnson v. Eisentrager, 339 U. S. 763 , 339 U. S. 784 . Pp. 494 U. S. 268 -269. (e) Respondent's reliance on Reid, supra, is misplaced, since that case stands only for the proposition that United States citizens stationed abroad could invoke the protection of the Fifth and Sixth Amendments. Similarly, those cases in which aliens have been determined to enjoy certain constitutional rights establish only that aliens receive such protections when they have come within the territory of, and have developed substantial connections with, this country. See, e.g., Plyler v. Doe, 457 U. S. 202 , 457 U. S. 212 . Respondent, however, is an alien with no previous significant voluntary connection with the United States, and his legal but involuntary presence here does not indicate any substantial connection with this country. The Court of Appeals' reliance on INS v. Lopez-Mendoza, supra, is also misplaced, since that case assumed that, but did not expressly address the question whether, the Fourth Amendment applies to illegal aliens in the United States. Even assuming such aliens -- who are in this country voluntarily and presumably have accepted some societal obligations -- would be entitled to Fourth Amendment protections, their situation differs from that of respondent, who had no voluntary connection with this country that might place him among "the people." This Court's decisions expressly according differing protection to aliens than to citizens also undermine respondent's claim that treating aliens differently under the Fourth Amendment violates the equal protection component of the Fifth Amendment. Pp. 494 U. S. 269 -273. (f) The Court of Appeals' rule would have significant and deleterious consequences for the United States in conducting activities beyond its Page 494 U. S. 261 borders. The rule would apply not only to law enforcement operations abroad, but also to other foreign operations -- such as armed forces actions -- which might result in "searches and seizures." Under the rule, aliens with no attachment to this country might bring actions for damages to remedy claimed violations of the Fourth Amendment in foreign countries or in international waters, and Members of the Executive and Legislative Branches would be plunged into a sea of uncertainty as to what might be reasonable in the way of searches and seizures conducted abroad. Any restrictions on searches and seizures incident to American action abroad must be imposed by the political branches through diplomatic understanding, treaty, or legislation. Pp. 494 U. S. 273 -275. 856 F.2d 1214 (CA9 1988), reversed. REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 494 U. S. 275 . STEVENS, J., filed an opinion concurring in the judgment, post, p. 494 U. S. 279 . BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 494 U. S. 279 . BLACKMUN, J., filed a dissenting opinion, post, p. 494 U. S. 297 . Chief Justice REHNQUIST delivered the opinion of the Court. The question presented by this case is whether the Fourth Amendment applies to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country. We hold that it does not. Page 494 U. S. 262 Respondent Rene Martin Verdugo-Urquidez is a citizen and resident of Mexico. He is believed by the United States Drug Enforcement Agency (DEA) to be one of the leaders of a large and violent organization in Mexico that smuggles narcotics into the United States. Based on a complaint charging respondent with various narcotics-related offenses, the Government obtained a warrant for his arrest on August 3, 1985. In January, 1986, Mexican police officers, after discussions with United States Marshals, apprehended Verdugo-Urquidez in Mexico and transported him to the United States Border Patrol station in Calexico, California. There, United States Marshals arrested respondent and eventually moved him to a correctional center in San Diego, California, where he remains incarcerated pending trial. Following respondent's arrest, Terry Bowen, a DEA agent assigned to the Calexico DEA office, decided to arrange for searches of Verdugo-Urquidez's Mexican residences located in Mexicali and San Felipe. Bowen believed that the searches would reveal evidence related to respondent's alleged narcotics trafficking activities and his involvement in the kidnaping and torture-murder of DEA Special Agent Enrique Camarena Salazar (for which respondent subsequently has been convicted in a separate prosecution). Bowen telephoned Walter White, the Assistant Special Agent in charge of the DEA office in Mexico City, and asked him to seek authorization for the search from the Director General of the Mexican Federal Judicial Police (MFJP). After several attempts to reach high-ranking Mexican officials, White eventually contacted the Director General, who authorized the searches and promised the cooperation of Mexican authorities. Thereafter, DEA agents working in concert with officers of the MFJP searched respondent's properties in Mexicali and San Felipe and seized certain documents. In particular, the search of the Mexicali residence uncovered a tally sheet, which the Government Page 494 U. S. 263 believes reflects the quantities of marijuana smuggled by Verdugo-Urquidez into the United States. The District Court granted respondent's motion to suppress evidence seized during the searches, concluding that the Fourth Amendment applied to the searches and that the DEA agents had failed to justify searching respondent's premises without a warrant. A divided panel of the Court of Appeals for the Ninth Circuit affirmed. 856 F.2d 1214 (1988). It cited this Court's decision in Reid v. Covert, 354 U. S. 1 (1957), which held that American citizens tried by United States military authorities in a foreign country were entitled to the protections of the Fifth and Sixth Amendments, and concluded that "[t]he Constitution imposes substantive constraints on the federal government, even when it operates abroad." 856 F.2d at 1218. Relying on our decision in INS v. Lopez-Mendoza, 468 U. S. 1032 , where a majority of Justices assumed that illegal aliens in the United States have Fourth Amendment rights, the Ninth Circuit majority found it "difficult to conclude that Verdugo-Urquidez lacks these same protections." 856 F.2d at 1223. It also observed that persons in respondent's position enjoy certain trial-related rights, and reasoned that "[i]t would be odd indeed to acknowledge that Verdugo-Urquidez is entitled to due process under the fifth amendment, and to a fair trial under the sixth amendment, . . . and deny him the protection from unreasonable searches and seizures afforded under the fourth amendment." Id. at 1224. Having concluded that the Fourth Amendment applied to the searches of respondent's properties, the court went on to decide that the searches violated the Constitution because the DEA agents failed to procure a search warrant. Although recognizing that "an American search warrant would be of no legal validity in Mexico," the majority deemed it sufficient that a warrant would have "substantial constitutional value in this country," because it would reflect a magistrate's determination Page 494 U. S. 264 that there existed probable cause to search and would define the scope of the search. Id. at 1230. The dissenting judge argued that this Court's statement in United States v. Curtiss-Wright Export Corp., 299 U. S. 304 , 299 U. S. 318 (1936), that "[n]either the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens," foreclosed any claim by respondent to Fourth Amendment rights. More broadly, he viewed the Constitution as a "compact" among the people of the United States, and the protections of the Fourth Amendment were expressly limited to "the people." We granted certiorari, 490 U.S. 1019 (1989). Before analyzing the scope of the Fourth Amendment, we think it significant to note that it operates in a different manner than the Fifth Amendment, which is not at issue in this case. The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. See Malloy v. Hogan, 378 U. S. 1 (1964). Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial. Kastigar v. United States, 406 U. S. 441 , 406 U. S. 453 (1972). The Fourth Amendment functions differently. It prohibits "unreasonable searches and seizures" whether or not the evidence is sought to be used in a criminal trial, and a violation of the Amendment is "fully accomplished" at the time of an unreasonable governmental intrusion. United States v. Calandra, 414 U. S. 338 , 414 U. S. 354 (1974); United States v. Leon, 468 U. S. 897 , 468 U. S. 906 (1984). For purposes of this case, therefore, if there were a constitutional violation, it occurred solely in Mexico. Whether evidence obtained from respondent's Mexican residences should be excluded at trial in the United States is a remedial question separate from the existence vel non of the constitutional violation. Calandra, supra, 414 U.S. at 414 U. S. 354 ; Leon, supra, 468 U.S. at 468 U. S. 906 . The Fourth Amendment provides: Page 494 U. S. 265 "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to "the people." Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to avoid [an] awkward rhetorical redundancy," Brief for American Civil Liberties Union as Amici Curiae et al. 12, n. 4, "the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the People of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1, ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble"); Art. I, § 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States ") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U. S. 279 , 194 U. S. 292 (1904) (Excludable alien is not entitled to First Amendment rights, because "[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law"). The language of these Amendments contrasts with the words Page 494 U. S. 266 "person" and "accused" used in the Fifth and Sixth Amendments regulating procedure in criminal cases. What we know of the history of the drafting of the Fourth Amendment also suggests that its purpose was to restrict searches and seizures which might be conducted by the United States in domestic matters. The Framers originally decided not to include a provision like the Fourth Amendment, because they believed the National Government lacked power to conduct searches and seizures. See C. Warren, The Making of the Constitution 508-509 (1928); The Federalist No. 84, p. 513 (C. Rossiter ed. 1961) (A. Hamilton); 1 Annals of Cong. 437 (1789) (statement of J. Madison). Many disputed the original view that the Federal Government possessed only narrow delegated powers over domestic affairs, however, and ultimately felt an Amendment prohibiting unreasonable searches and seizures was necessary. Madison, for example, argued that "there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all of the powers vested in the Government of the United States," and that general warrants might be considered "necessary" for the purpose of collecting revenue. Id. at 438. The driving force behind the adoption of the Amendment, as suggested by Madison's advocacy, was widespread hostility among the former Colonists to the issuance of writs of assistance empowering revenue officers to search suspected places for smuggled goods, and general search warrants permitting the search of private houses, often to uncover papers that might be used to convict persons of libel. See Boyd v. United States, 116 U. S. 616 , 116 U. S. 625 -626 (1886). The available historical data show, therefore, that the purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government; it was never suggested that the provision was intended to restrain the actions of the Federal Government against aliens outside of the United States territory. Page 494 U. S. 267 There is likewise no indication that the Fourth Amendment was understood by contemporaries of the Framers to apply to activities of the United States directed against aliens in foreign territory or in international waters. Only seven years after the ratification of the Amendment, French interference with American commercial vessels engaged in neutral trade triggered what came to be known as the "undeclared war" with France. In an Act to "protect the Commerce of the United States" in 1798, Congress authorized President Adams to "instruct the commanders of the public armed vessels which are, or which shall be employed in the service of the United States, to subdue, seize and take any armed French vessel, which shall be found within the jurisdictional limits of the United States, or elsewhere, on the high seas." § 1 of An Act Further to Protect the Commerce of the United States, Ch. 68, 1 Stat. 578. This public naval force consisted of only 45 vessels, so Congress also gave the President power to grant to the owners of private armed ships and vessels of the United States "special commissions," which would allow them "the same license and authority for the subduing, seizing and capturing any armed French vessel, and for the recapture of the vessels, goods and effects of the people of the United States, as the public armed vessels of the United States may by law have." § 2, 1 Stat. 579; see U.S. Const., Art. I, § 8, cl. 11 (Congress has power to grant letters of marque and reprisal). Under the latter provision, 365 private armed vessels were commissioned before March 1, 1799, see G. Allen, Our Naval War with France 59 (1967); together, these enactments resulted in scores of seizures of foreign vessels under congressional authority. See M. Palmer, Stoddert's War: Naval Operations during the Quasi-War with France 1798-1801, p. 235 (1987). See also An Act further to suspend the Commercial Intercourse between the United States and France, Ch. 2, 1 Stat. 613. Some commanders were held liable by this Court for unlawful seizures because their actions were beyond the scope of the congressional Page 494 U. S. 268 grant of authority, see, e.g., 6 U. S. Barreme, 2 Cranch 170, 6 U. S. 177 -178 (1804); cf. 5 U. S. Seeman, 1 Cranch 1, 5 U. S. 31 , (1801) (seizure of neutral ship lawful where American captain had probable cause to believe vessel was French), but it was never suggested that the Fourth Amendment restrained the authority of Congress or of United States agents to conduct operations such as this. The global view taken by the Court of Appeals of the application of the Constitution is also contrary to this Court's decisions in the Insular Cases, which held that not every constitutional provision applies to governmental activity even where the United States has sovereign power. See, e.g., Balzac v. Porto Rico, 258 U. S. 298 (1922) (Fifth Amendment right to jury trial inapplicable in Puerto Rico); Ocampo v. United States, 234 U. S. 91 (1914) (Sixth Amendment grand jury provision inapplicable in Philippines); Dorr v. United States, 195 U. S. 138 (1904) (jury trial provision inapplicable in Philippines); Hawaii v. Mankichi, 190 U. S. 197 (1903) (provisions on indictment by grand jury and jury trial inapplicable in Hawaii); Downes v. Bidwell, 182 U. S. 244 (1901) (revenue clauses of Constitution inapplicable to Puerto Rico). In Dorr, we declared the general rule that in an unincorporated territory -- one not clearly destined for statehood -- Congress was not required to adopt "a system of laws which shall include the right of trial by jury, and that the Constitution does not without legislation and of its own force, carry such right to territory so situated. " 195 U.S. at 195 U. S. 149 (emphasis added). Only "fundamental" constitutional rights are guaranteed to inhabitants of those territories. Id. at 148; Balzac, supra, 258 U.S. at 258 U. S. 312 -313; see Examining Board of Engineers, Architects and Surveyors v. Flores de Otero, 426 U. S. 572 , 426 U. S. 599 , n. 30 (1976). If that is true with respect to territories ultimately governed by Congress, respondent's claim that the protections of the Fourth Amendment extend to aliens in foreign nations is even weaker. And certainly, it is not open to us in light of the Insular Cases to endorse the Page 494 U. S. 269 view that every constitutional provision applies wherever the United States Government exercises its power. Indeed, we have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States. In Johnson v. Eisentrager, 339 U. S. 763 (1950), the Court held that enemy aliens arrested in China and imprisoned in Germany after World War II could not obtain writs of habeas corpus in our federal courts on the ground that their convictions for war crimes had violated the Fifth Amendment and other constitutional provisions. The Eisentrager opinion acknowledged that in some cases constitutional provisions extend beyond the citizenry; "[t]he alien . . . has been accorded a generous and ascending scale of rights as he increases his identity with our society." Id. at 339 U. S. 770 . But our rejection of extraterritorial application of the Fifth Amendment was emphatic: "Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view. Cf. Downes v. Bidwell, 182 U. S. 244 (1901). None of the learned commentators on our Constitution has even hinted at it. The practice of every modern government is opposed to it." Id. at 339 U. S. 784 . If such is true of the Fifth Amendment, which speaks in the relatively universal term of "person," it would seem even more true with respect to the Fourth Amendment, which applies only to "the people." To support his all-encompassing view of the Fourth Amendment, respondent points to language from a plurality opinion in Reid v. Covert, 354 U. S. 1 (1957). Reid involved an attempt by Congress to subject the wives of American servicemen to trial by military tribunals without the protection of the Fifth and Sixth Amendments. The Court held that it was unconstitutional to apply the Uniform Code of Military Page 494 U. S. 270 Justice to the trials of the American women for capital crimes. Four Justices "reject[ed] the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights." Id. at 354 U. S. 5 (emphasis added). The plurality went on to say: "The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land." Id. at 354 U. S. 5 -6 (emphasis added; footnote omitted). Respondent urges that we interpret this discussion to mean that federal officials are constrained by the Fourth Amendment wherever and against whomever they act. But the holding of Reid stands for no such sweeping proposition: it decided that United States citizens stationed abroad could invoke the protection of the Fifth and Sixth Amendments. The concurring opinions by Justices Frankfurter and Harlan in Reid resolved the case on much narrower grounds than the plurality and declined even to hold that United States citizens were entitled to the full range of constitutional protections in all overseas criminal prosecutions. See id. at 354 U. S. 75 (Harlan, J., concurring in result) ("I agree with my brother FRANKFURTER that . . . we have before us a question analogous, ultimately, to issues of due process; one can say, in fact, that the question of which specific safeguards of the Constitution are appropriately to be applied in a particular context overseas can be reduced to the issue of what process is due' a defendant in the particular circumstances of a particular case"). Since respondent is not a United States citizen, he can derive no comfort from the Reid holding. Verdugo-Urquidez also relies on a series of cases in which we have held that aliens enjoy certain constitutional rights. Page 494 U. S. 271 See, e.g., Plyler v. Doe, 457 U. S. 202 , 457 U. S. 211 -212 (1982) (illegal aliens protected by Equal Protection Clause); Kwong Hai Chew v. Colding, 344 U. S. 590 , 344 U. S. 596 (1953) (resident alien is a "person" within the meaning of the Fifth Amendment); Bridges v. Wixon, 326 U. S. 135 , 326 U. S. 148 (1945) (resident aliens have First Amendment rights); Russian Volunteer Fleet v. United States, 282 U. S. 481 (1931) (Just Compensation Clause of Fifth Amendment); Wong Wing v. United States, 163 U. S. 228 , 163 U. S. 238 (1896) (resident aliens entitled to Fifth and Sixth Amendment rights); Yick Wo v. Hopkins, 118 U. S. 356 , 118 U. S. 369 (1886) (Fourteenth Amendment protects resident aliens). These cases, however, establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country. See, e.g., Plyler, supra, 457 U.S. at 457 U. S. 212 (The provisions of the Fourteenth Amendment " are universal in their application, to all persons within the territorial jurisdiction. . . . '") (quoting Yick Wo, supra, 118 U.S. at 118 U. S. 369 ); Kwong Hai Chew, supra, 344 U.S. at 344 U. S. 596 , n. 5 ("The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders.") (quoting Bridges, supra, 326 U.S. at 326 U. S. 161 (concurring opinion) (emphasis added)). Respondent is an alien who has had no previous significant voluntary connection with the United States, so these cases avail him not. Justice STEVENS' concurrence in the judgment takes the view that, even though the search took place in Mexico, it is nonetheless governed by the requirements of the Fourth Amendment because respondent was "lawfully present in the United States . . . even though he was brought and held here against his will." Post at 494 U. S. 279 . But this sort of presence -- lawful but involuntary -- is not of the sort to indicate any substantial connection with our country. The extent to which respondent might claim the protection of the Fourth Amendment Page 494 U. S. 272 if the duration of his stay in the United States were to be prolonged -- by a prison sentence, for example -- we need not decide. When the search of his house in Mexico took place, he had been present in the United States for only a matter of days. We do not think the applicability of the Fourth Amendment to the search of premises in Mexico should turn on the fortuitous circumstance of whether the custodian of its nonresident alien owner had or had not transported him to the United States at the time the search was made. The Court of Appeals found some support for its holding in our decision in INS v. Lopez-Mendoza, 468 U. S. 1032 (1984), where a majority of Justices assumed that the Fourth Amendment applied to illegal aliens in the United States. We cannot fault the Court of Appeals for placing some reliance on the case, but our decision did not expressly address the proposition gleaned by the court below. The question presented for decision in Lopez-Mendoza was limited to whether the Fourth Amendment's exclusionary rule should be extended to civil deportation proceedings; it did not encompass whether the protections of the Fourth Amendment extend to illegal aliens in this country. The Court often grants certiorari to decide particular legal issues while assuming without deciding the validity of antecedent propositions, compare, e.g., Maine v. Thiboutot, 448 U. S. 1 (1980) (assuming State is a "person" within the meaning of 42 U.S.C. § 1983) with Will v. Michigan Dept. of State Police, 491 U. S. 58 (1989) (State is not a "person"), and such assumptions -- even on jurisdictional issues -- are not binding in future cases that directly raise the questions. Id. at 491 U. S. 63 , n. 4; Hagans v. Levine, 415 U. S. 528 , 415 U. S. 535 , n. 5 (1974). Our statements in Lopez-Mendoza are therefore not dispositive of how the Court would rule on a Fourth Amendment claim by illegal aliens in the United States if such a claim were squarely before us. Even assuming such aliens would be entitled to Fourth Amendment protections, their situation is Page 494 U. S. 273 different from respondent's. The illegal aliens in Lopez-Mendoza were in the United States voluntarily and presumably had accepted some societal obligations; but respondent had no voluntary connection with this country that might place him among "the people" of the United States. Respondent also contends that to treat aliens differently from citizens with respect to the Fourth Amendment somehow violates the equal protection component of the Fifth Amendment to the United States Constitution. He relies on Graham v. Richardson, 403 U. S. 365 (1971), and Foley v. Connelie, 435 U. S. 291 (1978), for this proposition. But the very cases previously cited with respect to the protection extended by the Constitution to aliens undermine this claim. They are constitutional decisions of this Court expressly according differing protection to aliens than to citizens, based on our conclusion that the particular provisions in question were not intended to extend to aliens in the same degree as to citizens. Cf. Mathews v. Diaz, 426 U. S. 67 , 426 U. S. 79 -80 (1976) ("In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens"). Not only are history and case law against respondent, but as pointed out in Johnson v. Eisentrager, supra, the result of accepting his claim would have significant and deleterious consequences for the United States in conducting activities beyond its boundaries. The rule adopted by the Court of Appeals would apply not only to law enforcement operations abroad, but also to other foreign policy operations which might result in "searches or seizures." The United States frequently employs armed forces outside this country -- over 200 times in our history -- for the protection of American citizens or national security. Congressional Research Service, Instances of Use of United States Armed Forces Abroad, 1798-1983 (E. Collier ed. 1983). Application of the Fourth Amendment to those circumstances could significantly disrupt the ability of the political Page 494 U. S. 274 branches to respond to foreign situations involving our national interest. Were respondent to prevail, aliens with no attachment to this country might well bring actions for damages to remedy claimed violations of the Fourth Amendment in foreign countries or in international waters. See Bivens v. Six Unknown Federal Narcotics Agents, 403 U. S. 388 (1971); cf. Tennessee v. Garner, 471 U. S. 1 (1985); Graham v. Connor, 490 U. S. 386 (1989). Perhaps a Bivens action might be unavailable in some or all of these situations due to " special factors counselling hesitation,'" see Chappell v. Wallace, 462 U. S. 296 , 462 U. S. 298 (1983) (quoting Bivens, supra, 403 U.S. at 403 U. S. 396 ), but the Government would still be faced with case-by-case adjudications concerning the availability of such an action. And even were Bivens deemed wholly inapplicable in cases of foreign activity, that would not obviate the problems attending the application of the Fourth Amendment abroad to aliens. The Members of the Executive and Legislative Branches are sworn to uphold the Constitution, and they presumably desire to follow its commands. But the Court of Appeals' global view of its applicability would plunge them into a sea of uncertainty as to what might be reasonable in the way of searches and seizures conducted abroad. Indeed, the Court of Appeals held that absent exigent circumstances, United States agents could not effect a "search or seizure" for law enforcement purposes in a foreign country without first obtaining a warrant -- which would be a dead letter outside the United States -- from a magistrate in this country. Even if no warrant were required, American agents would have to articulate specific facts giving them probable cause to undertake a search or seizure if they wished to comply with the Fourth Amendment as conceived by the Court of Appeals. We think that the text of the Fourth Amendment, its history, and our cases discussing the application of the Constitution to aliens and extraterritorially require rejection of respondent's claim. At the time of the search, he was a citizen and resident of Mexico with no voluntary attachment to the Page 494 U. S. 275 United States, and the place searched was located in Mexico. Under these circumstances, the Fourth Amendment has no application. For better or for worse, we live in a world of nation-states in which our Government must be able to "functio[n] effectively in the company of sovereign nations." Perez v. Brownell, 356 U. S. 44 , 356 U. S. 57 (1958). Some who violate our laws may live outside our borders under a regime quite different from that which obtains in this country. Situations threatening to important American interests may arise half-way around the globe, situations which in the view of the political branches of our Government require an American response with armed force. If there are to be restrictions on searches and seizures which occur incident to such American action, they must be imposed by the political branches through diplomatic understanding, treaty, or legislation. The judgment of the Court of Appeals is accordingly Reversed. Justice KENNEDY, concurring. I agree that no violation of the Fourth Amendment has occurred and that we must reverse the judgment of the Court of Appeals. Although some explanation of my views is appropriate given the difficulties of this case, I do not believe they depart in fundamental respects from the opinion of the Court, which I join. In cases involving the extraterritorial application of the Constitution, we have taken care to state whether the person claiming its protection is a citizen, see, e.g., Reid v. Covert, 354 U. S. 1 (1957), or an alien, see, e.g., Johnson v. Eisentrager, 339 U. S. 763 (1950). The distinction between citizens and aliens follows from the undoubted proposition that the Constitution does not create, nor do general principles of law create, any juridical relation between our country and some undefined, limitless class of noncitizens who are beyond our territory. We should note, however, that the absence of Page 494 U. S. 276 this relation does not depend on the idea that only a limited class of persons ratified the instrument that formed our Government. Though it must be beyond dispute that persons outside the United States did not and could not assent to the Constitution, that is quite irrelevant to any construction of the powers conferred or the limitations imposed by it. As Justice Story explained in his Commentaries: "A government may originate in the voluntary compact or assent of the people of several states, or of a people never before united, and yet when adopted and ratified by them, be no longer a matter resting in compact; but become an executed government or constitution, a fundamental law, and not a mere league. But the difficulty in asserting it to be a compact between the people of each state, and all the people of the other states is, that the constitution itself contains no such expression, and no such designation of parties." 1 J. Story, Commentaries on the Constitution § 365, p. 335 (1833) (footnote omitted). The force of the Constitution is not confined because it was brought into being by certain persons who gave their immediate assent to its terms. For somewhat similar reasons, I cannot place any weight on the reference to "the people" in the Fourth Amendment as a source of restricting its protections. With respect, I submit these words do not detract from its force or its reach. Given the history of our Nation's concern over warrantless and unreasonable searches, explicit recognition of "the right of the people" to Fourth Amendment protection may be interpreted to underscore the importance of the right, rather than to restrict the category of persons who may assert it. The restrictions that the United States must observe with reference to aliens beyond its territory or jurisdiction depend, as a consequence, on general principles of interpretation, not on an inquiry as to who formed the Constitution or a construction that some rights are mentioned as being those of "the people." Page 494 U. S. 277 I take it to be correct, as the plurality opinion in Reid v. Covert sets forth, that the Government may act only as the Constitution authorizes, whether the actions in question are foreign or domestic. See 354 U.S. at 354 U. S. 6 . But this principle is only a first step in resolving this case. The question before us then becomes what constitutional standards apply when the Government acts, in reference to an alien, within its sphere of foreign operations. We have not overruled either In re Ross, 140 U. S. 453 (1891), or the so-called Insular Cases ( i.e., Downes v. Bidwell, 182 U. S. 244 (1901); Hawaii v. Mankichi, 190 U. S. 197 (1903); Dorr v. United States, 195 U. S. 138 (1904); Balzac v. Porto Rico, 258 U. S. 298 (1922)). These authorities, as well as United States v. Curtiss-Wright Export Corp., 299 U. S. 304 , 299 U. S. 318 (1936), stand for the proposition that we must interpret constitutional protections in light of the undoubted power of the United States to take actions to assert its legitimate power and authority abroad. Justice Harlan made this observation in his opinion concurring in the judgment in Reid v. Covert: "I cannot agree with the suggestion that every provision of the Constitution must always be deemed automatically applicable to American citizens in every part of the world. For Ross and the Insular Cases do stand for an important proposition, one which seems to me a wise and necessary gloss on our Constitution. The proposition is, of course, not that the Constitution 'does not apply' overseas, but that there are provisions in the Constitution which do not necessarily apply in all circumstances in every foreign place. In other words, it seems to me that the basic teaching of Ross and the Insular Cases is that there is no rigid and abstract rule that Congress, as a condition precedent to exercising power over Americans overseas, must exercise it subject to all the guarantees of the Constitution, no matter what the conditions and considerations are that would make adherence to a Page 494 U. S. 278 specific guarantee altogether impracticable and anomalous." 354 U.S. at 354 U. S. 74 . The conditions and considerations of this case would.make adherence to the Fourth Amendment's warrant requirement impracticable and anomalous. Just as the Constitution in the Insular Cases did not require Congress to implement all constitutional guarantees in its territories because of their "wholly dissimilar traditions and institutions," the Constitution does not require United States agents to obtain a warrant when searching the foreign home of a nonresident alien. If the search had occurred in a residence within the United States, I have little doubt that the full protections of the Fourth Amendment would apply. But that is not this case. The absence of local judges or magistrates available to issue warrants, the differing and perhaps unascertainable conceptions of reasonableness and privacy that prevail abroad, and the need to cooperate with foreign officials all indicate that the Fourth Amendment's warrant requirement should not apply in Mexico as it does in this country. For this reason, in addition to the other persuasive justifications stated by the Court, I agree that no violation of the Fourth Amendment has occurred in the case before us. The rights of a citizen, as to whom the United States has continuing obligations, are not presented by this case. I do not mean to imply, and the Court has not decided, that persons in the position of the respondent have no constitutional protection. The United States is prosecuting a foreign national in a court established under Article III, and all of the trial proceedings are governed by the Constitution. All would agree, for instance, that the dictates of the Due Process Clause of the Fifth Amendment protect the defendant. Indeed, as Justice Harlan put it, "the question of which specific safeguards . . . are appropriately to be applied in a particular context . . . can be reduced to the issue of what process is 'due' a defendant in the particular circumstances of a particular case." Reid, 354 U.S. at 354 U. S. 75 . Nothing approaching a violation of due process has occurred in this case. Page 494 U. S. 279 Justice STEVENS, concurring in judgment. In my opinion aliens who are lawfully present in the United States are among those "people" who are entitled to the protection of the Bill of Rights, including the Fourth Amendment. Respondent is surely such a person even though he was brought and held here against his will. I therefore cannot join the Court's sweeping opinion.{*} I do agree, however, with the Government's submission that the search conducted by the United States agents with the approval and cooperation of the Mexican authorities was not "unreasonable" as that term is used in the first clause of the Amendment. I do not believe the Warrant Clause has any application to searches of noncitizens' homes in foreign jurisdictions because American magistrates have no power to authorize such searches. I therefore concur in the Court's judgment. * The Court's interesting historical discussion is simply irrelevant to the question whether an alien lawfully within the sovereign territory of the United States is entitled to the protection of our laws. Nor is comment on illegal aliens' entitlement to the protections of the Fourth Amendment necessary to resolve this case. Justice BRENNAN, with whom Justice MARSHALL joins, dissenting. Today the Court holds that although foreign nationals must abide by our laws even when in their own countries, our Government need not abide by the Fourth Amendment when it investigates them for violations of our laws. I respectfully dissent. Particularly in the past decade, our Government has sought, successfully, to hold foreign nationals criminally liable under federal laws for conduct committed entirely beyond the territorial limits of the United States that nevertheless has effects Page 494 U. S. 280 in this country. Foreign nationals must now take care not to violate our drug laws, [ Footnote 2/1 ] our antitrust laws, [ Footnote 2/2 ] our securities laws, [ Footnote 2/3 ] and a host of other federal criminal statutes. [ Footnote 2/4 ] The Page 494 U. S. 281 enormous expansion of federal criminal jurisdiction outside our Nation's boundaries has led one commentator to suggest that our country's three largest exports are now "rock music, blue jeans, and United States law." Grundman, The New Imperialism: The Extraterritorial Application of United States Law, 14 Int'l Law. 257, 257 (1980). The Constitution is the source of Congress' authority to criminalize conduct, whether here or abroad, and of the Executive's authority to investigate and prosecute such conduct. But the same Constitution also prescribes limits on our Government's authority to investigate, prosecute, and punish criminal conduct, whether foreign or domestic. As a plurality of the Court noted in Reid v. Covert, 354 U. S. 1 , 354 U. S. 5 -6 (1957): "The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution." (Footnotes omitted.) See also ante at 494 U. S. 277 (KENNEDY, J., concurring) ("[T]he Government may act only as the Constitution authorizes, whether the actions in question are foreign or domestic"). In particular, the Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Page 494 U. S. 282 Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Court today creates an antilogy: the Constitution authorizes our Government to enforce our criminal laws abroad, but when Government agents exercise this authority, the Fourth Amendment does not travel with them. This cannot be. At the very least, the Fourth Amendment is an unavoidable correlative of the Government's power to enforce the criminal law. A The Fourth Amendment guarantees the right of "the people" to be free from unreasonable searches and seizures and provides that a warrant shall issue only upon presentation of an oath or affirmation demonstrating probable cause and particularly describing the place to be searched and the persons or things to be seized. According to the majority, the term "the people" refers to "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." Ante at 494 U. S. 265 . The Court admits that "the people" extends beyond the citizenry, but leaves the precise contours of its "sufficient connection" test unclear. At one point the majority hints that aliens are protected by the Fourth Amendment only when they come within the United States and develop "substantial connections" with our country. Ante at 494 U. S. 271 . At other junctures, the Court suggests that an alien's presence in the United States must be voluntary [ Footnote 2/5 ] and that the alien must have "accepted some societal Page 494 U. S. 283 obligations." [ Footnote 2/6 ] Ante at 494 U. S. 273 . At yet other points, the majority implies that respondent would be protected by the Fourth Amendment if the place searched were in the United States. [ Footnote 2/7 ] Ante at 494 U. S. 266 , 494 U. S. 274 -275. What the majority ignores, however, is the most obvious connection between Verdugo-Urquidez and the United States: he was investigated and is being prosecuted for violations of United States law and may well spend the rest of his life in a United States prison. The "sufficient connection" is supplied not by Verdugo-Urquidez, but by the Government. Page 494 U. S. 284 Respondent is entitled to the protections of the Fourth Amendment because our Government, by investigating him and attempting to hold him accountable under United States criminal laws, has treated him as a member of our community for purposes of enforcing our laws. He has become, quite literally, one of the governed. Fundamental fairness and the ideals underlying our Bill of Rights compel the conclusion that when we impose "societal obligations," ante at 494 U. S. 273 , such as the obligation to comply with our criminal laws, on foreign nationals, we in turn are obliged to respect certain correlative rights, among them the Fourth Amendment. By concluding that respondent is not one of "the people" protected by the Fourth Amendment, the majority disregards basic notions of mutuality. If we expect aliens to obey our laws, aliens should be able to expect that we will obey our Constitution when we investigate, prosecute, and punish them. We have recognized this fundamental principle of mutuality since the time of the Framers. James Madison, universally recognized as the primary architect of the Bill of Rights, emphasized the importance of mutuality when he spoke out against the Alien and Sedition Acts less than a decade after the adoption of the Fourth Amendment: "[I]t does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that, whilst they actually conform to it, they have no right to its protection. Aliens are no more parties to the laws than they are parties to the Constitution; yet it will not be disputed that, as they owe, on one hand, a temporary obedience, they are entitled, in return, to their protection and advantage." Madison's Report on the Virginia Resolutions (1800), reprinted in 4 Elliot's Debates 556 (2d ed. 1836). Mutuality is essential to ensure the fundamental fairness that underlies our Bill of Rights. Foreign nationals investigated and prosecuted for alleged violations of United States criminal laws are just as vulnerable to oppressive government Page 494 U. S. 285 behavior as are United States citizens investigated and prosecuted for the same alleged violations. Indeed, in a case such as this where the Government claims the existence of an international criminal conspiracy, citizens and foreign nationals may be codefendants, charged under the same statutes for the same conduct and facing the same penalties if convicted. They may have been investigated by the same agents pursuant to the same enforcement authority. When our Government holds these co-defendants to the same standards of conduct, the Fourth Amendment, which protects the citizen from unreasonable searches and seizures, should protect the foreign national as well. Mutuality also serves to inculcate the values of law and order. By respecting the rights of foreign nationals, we encourage other nations to respect the rights of our citizens. Moreover, as our Nation becomes increasingly concerned about the domestic effects of international crime, we cannot forget that the behavior of our law enforcement agents abroad sends a powerful message about the rule of law to individuals everywhere. As Justice Brandeis warned in Olmstead v. United States, 277 U. S. 438 (1928): "If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means . . . would bring terrible retribution. Against that pernicious doctrine, this Court should resolutely set its face." Id. at 277 U. S. 485 (dissenting opinion). This principle is no different when the United States applies its rules of conduct to foreign nationals. If we seek respect for law and order, we must observe these principles ourselves. Lawlessness breeds lawlessness. Finally, when United States agents conduct unreasonable searches, whether at home or abroad, they disregard our Nation's values. For over 200 years, our country has considered itself the world's foremost protector of liberties. The Page 494 U. S. 286 privacy and sanctity of the home have been primary tenets of our moral, philosophical, and judicial beliefs. [ Footnote 2/8 ] Our national interest is defined by those values and by the need to preserve our own just institutions. We take pride in our commitment to a government that cannot, on mere whim, break down doors and invade the most personal of places. We exhort other nations to follow our example. How can we explain to others -- and to ourselves -- that these long cherished ideals are suddenly of no consequence when the door being broken belongs to a foreigner? The majority today brushes aside the principles of mutuality and fundamental fairness that are central to our Nation's constitutional conscience. The Court articulates a "sufficient connection" test but then refuses to discuss the underlying principles upon which any interpretation of that test must rest. I believe that by placing respondent among those governed by federal criminal laws and investigating him for violations of those laws, the Government has made him a part of our community for purposes of the Fourth Amendment. B In its effort to establish that respondent does not have sufficient connection to the United States to be considered one of "the people" protected by the Fourth Amendment, the Court relies on the text of the Amendment, historical evidence, and cases refusing to apply certain constitutional provisions outside the United States. None of these, however, justifies the majority's cramped interpretation of the Fourth Amendment's applicability. Page 494 U. S. 287 The majority looks to various constitutional provisions and suggests that " the people' seems to have been a term of art." Ante at 494 U. S. 265 . But the majority admits that its "textual exegesis is by no means conclusive." Ante at 494 U. S. 265 . [ Footnote 2/9 ] One Member of the majority even states that he "cannot place any weight on the reference to `the people' in the Fourth Amendment as a source of restricting its protections." Ante at 494 U. S. 276 (KENNEDY, J., concurring). The majority suggests a restrictive interpretation of those with "sufficient connection" to this country to be considered among "the people," but the term "the people" is better understood as a rhetorical counterpoint to "the government," such that rights that were reserved to "the people" were to protect all those subject to "the government." Cf. New Jersey v. T.L.0., 469 U. S. 325 , 469 U. S. 335 (1985) ("[T]he Court has long spoken of the Fourth Amendment's strictures as restraints imposed upon `governmental action'"). "The people" are "the governed." In drafting both the Constitution and the Bill of Rights, the Framers strove to create a form of government decidedly different from their British heritage. Whereas the British Parliament was unconstrained, the Framers intended to create a government of limited powers. See B. Bailyn, The Ideological Origins of the American Revolution 182 (1967); 1 The Complete Anti-Federalist 65 (H. Storing ed. 1981). The colonists considered the British government dangerously omnipotent. After all, the British declaration of rights in Page 494 U. S. 288 1688 had been enacted not by the people, but by Parliament. The Federalist No. 84, p. 439 (M. Beloff ed. 1987). Americans vehemently attacked the notion that rights were matters of " favor and grace,'" given to the people from the government. B. Bailyn, supra, at 187 (quoting John Dickinson). Thus, the Framers of the Bill of Rights did not purport to "create" rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be preexisting. See, e.g., U.S. Const., Amdt. 9 ("The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people"). The Fourth Amendment, for example, does not create a new right of security against unreasonable searches and seizures. It states that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." The focus of the Fourth Amendment is on what the Government can and cannot do, and how it may act, not on against whom these actions may be taken. Bestowing rights and delineating protected groups would have been inconsistent with the drafters' fundamental conception of a Bill of Rights as a limitation on the Government's conduct with respect to all whom it seeks to govern. It is thus extremely unlikely that the Framers intended the narrow construction of the term "the people" presented today. by the majority. The drafting history of the Fourth Amendment also does not support the majority's interpretation of "the people." First, the drafters chose not to limit the right against unreasonable searches and seizures in more specific ways. They could have limited the right to "citizens," "freemen," "residents," or "the American people." The conventions called to ratify the Constitution in New York and Virginia, for example, each recommended an amendment stating, "That every freeman has a right to be secure from all unreasonable searches and seizures. . . . " W. Cuddihy, Search and Seizure Page 494 U. S. 289 in Great Britain and the American Colonies, pt. 2, p. 571, n. 129, 574, n. 134 (1974). But the drafters of the Fourth Amendment rejected this limitation, and instead provided broadly for "[t]he right of the people to be secure in their persons, houses, papers, and effects." Second, historical materials contain no evidence that the drafters intended to limit the availability of the right expressed in the Fourth Amendment. [ Footnote 2/10 ] The Amendment was introduced on the floor of Congress, considered by Committee, debated by the House of Representatives and the Senate, and submitted to the 13 States for approval. Throughout that entire process, no speaker or commentator, pro or con, referred to the term "the people" as a limitation. Page 494 U. S. 290 The Court also relies on a series of cases dealing with the application of criminal procedural protections outside of the United States to conclude that "not every constitutional provision applies to governmental activity even where the United States has sovereign power." Ante at 494 U. S. 268 . None of these cases, however, purports to read the phrase "the people" as limiting the protections of the Fourth Amendment to those with "sufficient connection" to the United States, and thus none gives content to the majority's analysis. The cases shed no light on the question of whether respondent -- a citizen of a nonenemy nation being tried in a United States federal court -- is one of "the people" protected by the Fourth Amendment. The majority mischaracterizes Johnson v. Eisentrager, 339 U. S. 763 (1950), as having "rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States." Ante at 494 U. S. 269 . In Johnson, 21 German nationals were convicted of engaging in continued military activity against the United States after the surrender of Germany and before the surrender of Japan in World War II. The Court held that "the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States." Johnson, 339 U.S. at 339 U. S. 785 (emphasis added). As the Court wrote: "It is war that exposes the relative vulnerability of the alien's status. The security and protection enjoyed while the nation of his allegiance remains in amity with the United States are greatly impaired when his nation takes up arms against us. . . . But disabilities this country lays upon the alien who becomes also an enemy are imposed temporarily as an incident of war and not as an incident of alienage." Id. at 339 U. S. 771 -772. Page 494 U. S. 291 The Court rejected the German nationals' efforts to obtain writs of habeas corpus not because they were foreign nationals, but because they were enemy soldiers. The Insular Cases, Balzac v. Porto Rico, 258 U. S. 298 (1922), Ocampo v. United States, 234 U. S. 91 (1914), Dorr v. United States, 195 U. S. 138 (1904), and Hawaii v. Mankichi, 190 U. S. 197 (1903), are likewise inapposite. The Insular Cases all concerned whether accused persons enjoyed the protections of certain rights in criminal prosecutions brought by territorial authorities in territorial courts. These cases were limited to their facts long ago, see Reid v. Covert, 354 U. S. 1 , 354 U. S. 14 (1957) (plurality opinion) ("[I]t is our judgment that neither the cases nor their reasoning should be given any further expansion"), and they are of no analytical value when a criminal defendant seeks to invoke the Fourth Amendment in a prosecution by the Federal Government in a federal court. [ Footnote 2/11 ] C The majority's rejection of respondent's claim to Fourth Amendment protection is apparently motivated by its fear that application of the Amendment to law enforcement searches against foreign nationals overseas "could significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest." Ante at 494 U. S. 273 -274. The majority's doomsday scenario -- that American Armed Forces conducting a mission to protect our national security with no law enforcement objective "would have to articulate specific facts giving them probable cause to undertake a search or seizure," ante at 494 U. S. 274 -- is fanciful. Verdugo-Urquidez is protected by the Fourth Amendment Page 494 U. S. 292 because our Government, by investigating and prosecuting him, has made him one of "the governed." See supra, at 494 U. S. 284 , 494 U. S. 287 . Accepting respondent as one of "the governed," however, hardly requires the Court to accept enemy aliens in wartime as among "the governed" entitled to invoke the protection of the Fourth Amendment. See Johnson v. Eisentrager, supra. Moreover, with respect to non-law enforcement activities not directed against enemy aliens in wartime but nevertheless implicating national security, doctrinal exceptions to the general requirements of a warrant and probable cause likely would be applicable more frequently abroad, thus lessening the purported tension between the Fourth Amendment's strictures and the Executive's foreign affairs power. Many situations involving sensitive operations abroad likely would involve exigent circumstances such that the warrant requirement would be excused. Cf. Warden v. Hayden, 387 U. S. 294 , 387 U. S. 298 (1967). Therefore, the Government's conduct would be assessed only under the reasonableness standard, the application of which depends on context. See United States v. Montoya de Hernandez, 473 U. S. 531 , 473 U. S. 537 (1985) ("What is reasonable depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself"). In addition, where the precise contours of a "reasonable" search and seizure are unclear, the Executive Branch will not be "plunge[d] . . . into a sea of uncertainty," ante at 494 U. S. 274 , that will impair materially its ability to conduct foreign affairs. Doctrines such as official immunity have long protected Government agents from any undue chill on the exercise of lawful discretion. See, e.g., Butz v. Economou, 438 U. S. 478 (1978). Similarly, the Court has recognized that there may be certain situations in which the offensive use of constitutional rights should be limited. Cf. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 , 403 U. S. 396 (1971) (precluding suits for damages for violations of the Fourth Amendment where there are "special factors Page 494 U. S. 293 counseling hesitation"). In most cases implicating foreign policy concerns in which the reasonableness of an overseas search or seizure is unclear, application of the Fourth Amendment will not interfere with the Executive's traditional prerogative in foreign affairs because a court will have occasion to decide the constitutionality of such a search only if the Executive decides to bring a criminal prosecution and introduce evidence seized abroad. When the Executive decides to conduct a search as part of an ongoing criminal investigation, fails to get a warrant, and then seeks to introduce the fruits of that search at trial, however, the courts must enforce the Constitution. II Because the Fourth Amendment governs the search of respondent's Mexican residences, the District Court properly suppressed the evidence found in that search because the officers conducting the search did not obtain a warrant. [ Footnote 2/12 ] I cannot agree with Justice BLACKMUN and Justice STEVENS that the Warrant Clause has no application to searches Page 494 U. S. 294 of noncitizens' homes in foreign jurisdictions because American magistrates lack the power to authorize such searches. [ Footnote 2/13 ] See post at 494 U. S. 297 (BLACKMUN, J., dissenting); ante at 494 U. S. 279 (STEVENS, J., concurring in judgment). The Warrant Clause would serve the same primary functions abroad as it does domestically, and I see no reason to distinguish between foreign and domestic searches. The primary purpose of the warrant requirement is its assurance of neutrality. As Justice Jackson stated for Page 494 U. S. 295 the Court in Johnson v. United States, 333 U. S. 10 , 333 U. S. 13 -14 (1948) (footnotes omitted): "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. . . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent." See also Welsh v. Wisconsin, 466 U. S. 740 , 466 U. S. 748 -749, and n. 10 (1984); Coolidge v. New Hampshire, 403 U. S. 443 , 403 U. S. 449 (1971). A warrant also defines the scope of a search and limits the discretion of the inspecting officers. See New York v. Burger, 482 U. S. 691 , 482 U. S. 703 (1987); Marron v. United States, 275 U. S. 192 , 275 U. S. 196 (1927). These purposes would be served no less in the foreign than in the domestic context. The Warrant Clause cannot be ignored simply because Congress has not given any United States magistrate authority to issue search warrants for foreign searches. See Fed. Rule Crim.Proc. 41(a). Congress cannot define the contours of the Constitution. If the Warrant Clause applies, Congress cannot excise the Clause from the Constitution by failing to provide a means for United States agents to obtain a warrant. See Best v. United States, 184 F.2d 131, 138 (CA1 1950) ("Obviously, Congress may not nullify the guarantees of the Fourth Amendment by the simple expedient of Page 494 U. S. 296 not empowering any judicial officer to act on an application for a warrant"), cert. denied, 340 U.S. 939 (1951). Nor is the Warrant Clause inapplicable merely because a warrant from a United States magistrate could not "authorize" a search in a foreign country. Although this may be true as a matter of international law, it is irrelevant to our interpretation of the Fourth Amendment. As a matter of United States constitutional law, a warrant serves the same primary function overseas as it does domestically: it assures that a neutral magistrate has authorized the search and limited its scope. The need to protect those suspected of criminal activity from the unbridled discretion of investigating officers is no less important abroad than at home. [ Footnote 2/14 ] III When our Government conducts a law enforcement search against a foreign national outside of the United States and its territories, it must comply with the Fourth Amendment. Absent exigent circumstances or consent, it must obtain a Page 494 U. S. 297 search warrant from a United States court. When we tell the world that we expect all people, wherever they may be, to abide by our laws, we cannot in the same breath tell the world that our law enforcement officers need not do the same. Because we cannot expect others to respect our laws until we respect our Constitution, I respectfully dissent. [ Footnote 2/1 ] Federal drug enforcement statutes written broadly enough to permit extraterritorial application include laws proscribing the manufacture, distribution, or possession with intent to manufacture or distribute controlled substances on board vessels, see 46 U.S.C.App. § 1903(h) (1982 ed., Supp. V) ("This section is intended to reach acts . . . committed outside the territorial jurisdiction of the United States"), the possession, manufacture, or distribution of a controlled substance for purposes of unlawful importation, see 21 U.S.C. § 959(c) (same), and conspiracy to violate federal narcotics laws, see Chua Han Mow v. United States, 730 F.2d 1308, 1311-1312 (CA9 1984) (applying 21 U.S.C. §§ 846 and 963 to conduct by a Malaysian citizen in Malaysia), cert. denied, 470 U. S. 1031 (1985). [ Footnote 2/2 ] The Sherman Act defines "person" to include foreign corporations, 15 U.S.C. § 7, and has been applied to certain conduct beyond the territorial limits of the United States by foreign corporations and nationals for at least 45 years. See United States v. Aluminum Co. of America, 148 F.2d 416, 443-444 (CA2 1945). [ Footnote 2/3 ] Foreign corporations may be liable under section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), for transactions that occur outside the United States if the transactions involve stock registered and listed on a national securities exchange and the alleged conduct is "detrimental to the interests of American investors." Schoenbaum v. Firstbrook, 405 F.2d 200, 208 (CA2 1968), rev'd on rehearing on other grounds, 405 F.2d 215 (CA2 1968) (en banc), cert. denied, sub nom. Manley v. Schoenbaum, 395 U.S. 906 (1969). [ Footnote 2/4 ] See e.g, 18 U.S.C. § 32(b) (violence against an individual aboard or destruction of any "civil aircraft registered in a country other than the United States while such aircraft is in flight"); § 111 (assaulting, resisting, or impeding certain officers or employees); § 115 (influencing, impeding, or retaliating against a federal official by threatening or injuring a family member); §§ 1114, 1117 (murder, attempted murder, and conspiracy to murder certain federal officers and employees); § 1201(a)(5) (kidnaping of federal officers and employees listed in § 1114); § 1201(e) (kidnaping of "an internationally protected person," if the alleged offender is found in the United States, "irrespective of the place where the offense was committed or the nationality of the victim or the alleged offender"); § 1203 (hostage taking outside the United States, if the offender or the person seized is a United States national, if the offender is found in the United States, or if "the governmental organization sought to be compelled is the Government of the United States"); § 1546 (fraud and misuse of visas, permits, and other immigration documents); § 2331 (terrorist acts abroad against United States nationals); 49 U.S. C.App. § 1472(n) (1982 ed. and Supp. V) (aircraft piracy outside the special aircraft jurisdiction of the United States, if the offender is found in the United States). Foreign nationals may also be criminally liable for numerous federal crimes falling within the "special maritime and territorial jurisdiction of the United States," which includes "[a]ny place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States." 18 U.S.C. § 7(7). Finally, broad construction of federal conspiracy statutes may permit prosecution of foreign nationals who have had no direct contact with anyone or anything in the United States. See Ford v. United States, 273 U. S. 593 , 273 U. S. 619 -620 (1927). [ Footnote 2/5 ] None of the cases cited by the majority, ante at 494 U. S. 271 , require an alien's connections to the United States to be "voluntary" before the alien can claim the benefits of the Constitution. Indeed, Mathews v. Diaz, 426 U. S. 67 , 426 U. S. 77 (1976), explicitly rejects the notion that an individual's connections to the United States must be voluntary or sustained to qualify for constitutional protection. Furthermore, even if a voluntariness requirement were sensible in cases guaranteeing certain governmental benefits to illegal aliens, e.g., Plyler v. Doe, 457 U. S. 202 (1982) (holding that States cannot deny to illegal aliens the free public education they provide to citizens and legally documented aliens), it is not a sensible requirement when our Government chooses to impose our criminal laws on others. [ Footnote 2/6 ] In this discussion, the Court implicitly suggests that the Fourth Amendment may not protect illegal aliens in the United States. Ante at 494 U. S. 273 . Numerous lower courts, however, have held that illegal aliens in the United States are protected by the Fourth Amendment, and not a single lower court has held to the contrary. See, e.g., Benitez-Mendez v. INS, 760 F.2d 907 (CA9 1985); United States v. Rodriguez, 532 F.2d 834, 838 (CA2 1976); Au YiLau v. INS, 144 U.S.App.D.C. 147, 156, 445 F.2d 217, 225, cert. denied, 404 U.S. 864 (1971); Yam Sang Kwai v. INS, 133 U.S.App. D.C. 369, 372, 411 F.2d 683, 686, cert. denied, 396 U.S. 877 (1969). [ Footnote 2/7 ] The Fourth Amendment contains no express or implied territorial limitations, and the majority does not hold that the Fourth Amendment is inapplicable to searches outside the United States and its territories. It holds that respondent is not protected by the Fourth Amendment because he is not one of "the people." Indeed, the majority's analysis implies that a foreign national who had "developed sufficient connection with this country to be considered part of [our] community" would be protected by the Fourth Amendment regardless of the location of the search. Certainly nothing in the Court's opinion questions the validity of the rule, accepted by every Court of Appeals to have considered the question, that the Fourth Amendment applies to searches conducted by the United States Government against United States citizens abroad. See, e.g., United States v. Conroy, 589 F.2d 1258, 1264 (CA5), cert. denied, 444 U.S. 831 (1979); United States v. Rose, 570 F.2d 1358, 1362 (CA9 1978). A warrantless, unreasonable search and seizure is no less a violation of the Fourth Amendment because it occurs in Mexicali, Mexico, rather than Calexico, California. [ Footnote 2/8 ] President John Adams traced the origins of our independence from England to James Otis' impassioned argument in 1761 against the British writs of assistance, which allowed revenue officers to search American homes wherever and whenever they wanted. Otis argued that "[a] man's house is his castle," 2 Works of John Adams 524 (C. Adams ed. 1850), and Adams declared that "[t]hen and there the child Independence was born." 10 Works of John Adams 248 (C. Adams ed. 1856). [ Footnote 2/9 ] The majority places an unsupportable reliance on the fact that the drafters used "the people" in the Fourth Amendment while using "person" and "accused" in the Fifth and Sixth Amendments respectively, see ante at 494 U. S. 265 -266. The drafters purposely did not use the term "accused." As the majority recognizes, ante at 494 U. S. 264 , the Fourth Amendment is violated at the time of an unreasonable governmental intrusion, even if the victim of unreasonable governmental action is never formally "accused" of any wrongdoing. The majority's suggestion that the drafters could have used "person" ignores the fact that the Fourth Amendment then would have begun quite awkwardly: "The right of persons to be secure in their persons. . . . " [ Footnote 2/10 ] The only historical evidence the majority sets forth in support of its restrictive interpretation of the Fourth Amendment involves the seizure of French vessels during an "undeclared war" with France in 1798 and 1799. Because opinions in two Supreme Court cases, Little v. Barreme , 2 Cranch 170 (1804), and Talbot v. Seeman , 1 Cranch 1 (1801), "never suggested that the Fourth Amendment restrained the authority of Congress or of United States agents to conduct operations such as this," ante at 494 U. S. 268 , the majority deduces that those alive when the Fourth Amendment was adopted did not believe it protected foreign nationals. Relying on the absence of any discussion of the Fourth Amendment in these decisions, however, runs directly contrary to the majority's admonition that the Court only truly decides that which it "expressly address[es]." Ante at 494 U. S. 272 (discussing INS v. Lopez-Mendoza, 468 U. S. 1032 (1984)). Moreover, the Court in Little found that the American commander had violated the statute authorizing seizures, thus rendering any discussion of the constitutional question superfluous. See, e.g., Ashwander v. TVA, 297 U. S. 288 , 297 U. S. 347 (1936) (Brandeis, J., concurring). And in Talbot, the vessel's owners opposed the seizure on purely factual grounds, claiming the vessel was not French. Furthermore, although neither Little nor Talbot expressly mentions the Fourth Amendment, both opinions adopt a "probable cause" standard, suggesting that the Court may have either applied or been informed by the Fourth Amendment's standards of conduct. Little, supra, at 2 Cranch 6 U. S. 179 ; Talbot, supra, 1 Cranch at 5 U. S. 31 -32 (declaring that "where there is probable cause to believe the Vessel met with at sea is in the condition of one liable to capture, it is lawful to take her, and subject her to the examination and adjudication of the courts"). [ Footnote 2/11 ] The last of the Insular Cases cited by the majority, Downes v. Bidwell, 182 U. S. 244 (1901), is equally irrelevant. In Downes, the Court held that Puerto Rico was not part of "the United States" with respect to the constitutional provision that "all Duties, Imposts and Excises shall be uniform throughout the United States," U.S. Const., Art. 1, § 8, cl. 1. 182 U.S. at 182 U. S. 249 . Unlike the uniform duties clause, the Fourth Amendment contains no express territorial limitations. See 494 U.S. 259 fn2/7|>n. 7, supra. [ Footnote 2/12 ] The District Court found no exigent circumstances that would justify a warrantless search. After respondent's arrest in Mexico, he was transported to the United States and held in custody in southern California. Only after respondent was in custody in the United States did the Drug Enforcement Administration (DEA) begin preparations for a search of his Mexican residences. On the night respondent was arrested, DEA Agent Terry Bowen contacted DEA Special Agent Walter White in Mexico to seek his assistance in conducting the search. Special Agent White contacted Mexican officials the next morning and at 1 p.m. authorized Agent Bowen to conduct the search. A team of DEA agents then drove to Mexico, met with Mexican officials, and arrived at the first of respondent's two residences after dark. 856 F.2d 1214, 1226 (CA9 1988). The search did not begin until approximately 10 p.m. the day after respondent was taken into custody.App. to Pet. for Cert. 101a. In all that time, particularly when respondent and Agent Bowen were both in the United States and Agent Bowen was awaiting further communications from Special Agent White, DEA agents could easily have sought a warrant from a United States Magistrate. [ Footnote 2/13 ] Justice STEVENS concurs in the judgment because he believes that the search in this case "was not unreasonable' as that term is used in the first clause of the Amendment." Ante at 494 U. S. 279 . I do not understand why Justice STEVENS reaches the reasonableness question in the first instance rather than remanding that issue to the Court of Appeals. The District Court found that, even if a warrant were not required for this search, the search was nevertheless unreasonable. The court found that the search was unconstitutionally general in its scope, as the agents were not limited by any precise written or oral descriptions of the type of documentary evidence sought.App. to Pet. for Cert. 102a. Furthermore, the Government demonstrated no specific exigent circumstances that would justify the increased intrusiveness of searching respondent's residences between 10 p.m. and 4 a.m., rather than during the day. Id. at 101a. Finally, the DEA agents who conducted the search did not prepare contemporaneous inventories of the items seized or leave receipts to inform the residents of the search and the items seized. Id. at 102a. Because the Court of Appeals found that the search violated the Warrant Clause, it never reviewed the District Court's alternative holding that the search was unreasonable even if no warrant were required. Thus, even if I agreed with Justice STEVENS that the Warrant Clause did not apply in this case, I would remand to the Court of Appeals for consideration of whether the search was unreasonable. Barring a detailed review of the record, I think it is inappropriate to draw any conclusion about the reasonableness of the Government's conduct, particularly when the conclusion reached contradicts the specific findings of the District Court. Justice KENNEDY rejects application of the Warrant Clause not because of the identity of the individual seeking protection, but because of the location of the search. See ante at 494 U. S. 278 (KENNEDY, J., concurring) ("[T]he Fourth Amendment's warrant requirement should not apply in Mexico as it does in this country"). Justice KENNEDY, however, never explains why the reasonableness clause, as opposed to the Warrant Clause, would not apply to searches abroad. [ Footnote 2/14 ] The United States Government has already recognized the importance of these constitutional requirements by adopting a warrant requirement for certain foreign searches. Department of the Army regulations state that the Army must seek a "judicial warrant" from a United States court whenever the Army seeks to intercept the wire or oral communications of a person not subject to the Uniform Code of Military Justice outside of the United States and its territories. Army Regulation 190-53 � 2-2(b) (1986). Any request for a judicial warrant must be supported by sufficient facts to meet the probable cause standard applied to interceptions of wire or oral communications in the United States, 18 U.S.C. § 2518(3). Army Regulation 190-53 � 2-2(b). If the foreign country in which the interception will occur has certain requirements that must be met before other nations can intercept wire or oral communications, an American judicial warrant will not alone authorize the interception under international law. Nevertheless, the Army has recognized that an order from a United States court is necessary under domestic law. By its own regulations, the United States Government has conceded that although an American warrant might be a "dead letter" in a foreign country, a warrant procedure in an American court plays a vital and indispensable role in circumscribing the discretion of agents of the Federal Government. Justice BLACKMUN, dissenting. I cannot accept the Court of Appeals' conclusion, echoed in some portions of Justice BRENNAN's dissent, that the Fourth Amendment governs every action by an American official that can be characterized as a search or seizure. American agents acting abroad generally do not purport to exercise sovereign authority over the foreign nationals with whom they come in contact. The relationship between these agents and foreign nationals is therefore fundamentally different from the relationship between United States officials and individuals residing within this country. I am inclined to agree with Justice BRENNAN, however, that when a foreign national is held accountable for purported violations of United States criminal laws, he has effectively been treated as one of "the governed" and therefore is entitled to Fourth Amendment protections. Although the Government's exercise of power abroad does not ordinarily implicate the Fourth Amendment, the enforcement of domestic criminal law seems to me to be the paradigmatic exercise of sovereignty over those who are compelled to obey. In any event, as Justice STEVENS notes, ante at 494 U. S. 279 , respondent was lawfully (though involuntarily) within this country at the time the search occurred. Under these circumstances I believe that respondent is entitled to invoke protections of the Fourth Amendment. I agree with the Government, however, that an American magistrate's lack of power to authorize a search abroad renders the Warrant Clause inapplicable to the search of a noncitizen's residence outside this country. The Fourth Amendment nevertheless requires that the search be "reasonable." And when the purpose of a search is Page 494 U. S. 298 the procurement of evidence for a criminal prosecution, we have consistently held that the search, to be reasonable, must be based upon probable cause. Neither the District Court nor the Court of Appeals addressed the issue of probable cause, and I do not believe that a reliable determination could be made on the basis of the record before us. I therefore would vacate the judgment of the Court of Appeals and remand the case for further proceedings.

The Supreme Court ruled that the Fourth Amendment does not apply to searches and seizures by US agents of property owned by non-resident aliens in a foreign country. The Court interpreted the phrase "the people" in the Fourth Amendment as referring to those with a significant connection to the US, excluding the respondent, a Mexican citizen and resident. The case involved a search of the respondent's Mexican residence by DEA agents working with Mexican officials, with the evidence obtained sought for use in a US criminal trial.

Health Care

King v. Burwell

https://supreme.justia.com/cases/federal/us/576/14-114/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 14–114 _________________ DAVID KING, et al., PETITIONERS v. SYLVIA BURWELL, SECRETARY OF HEALTHAND HUMAN SERVICES, et al. on writ of certiorari to the united states court of appeals for the fourth circuit [June 25, 2015] Chief Justice Roberts delivered the opinion of the Court. The Patient Protection and Affordable Care Act adopts a series of interlocking reforms designed to expand coverage in the individual health insurance market. First, the Act bars insurers from taking a person’s health into account when deciding whether to sell health insurance or how much to charge. Second, the Act generally requires each person to maintain insurance coverage or make a payment to the Internal Revenue Service. And third, the Act gives tax credits to certain people to make insurance more affordable. In addition to those reforms, the Act requires the creation of an “Exchange” in each State—basically, a marketplace that allows people to compare and purchase insurance plans. The Act gives each State the opportunity to establish its own Exchange, but provides that the Federal Government will establish the Exchange if the State does not. This case is about whether the Act’s interlocking reforms apply equally in each State no matter who establishes the State’s Exchange. Specifically, the question pre-sented is whether the Act’s tax credits are available in States that have a Federal Exchange. I A The Patient Protection and Affordable Care Act, 124Stat. 119, grew out of a long history of failed health insurance reform. In the 1990s, several States began experimenting with ways to expand people’s access to coverage. One common approach was to impose a pair of insurance market regulations—a “guaranteed issue” requirement, which barred insurers from denying coverage to any person because of his health, and a “community rating” requirement, which barred insurers from charging a person higher premiums for the same reason. Together, those requirements were designed to ensure that anyone who wanted to buy health insurance could do so. The guaranteed issue and community rating requirements achieved that goal, but they had an unintended consequence: They encouraged people to wait until they got sick to buy insurance. Why buy insurance coverage when you are healthy, if you can buy the same coverage for the same price when you become ill? This consequence—known as “adverse selection”—led to a second: Insurers were forced to increase premiums to account for the fact that, more and more, it was the sick rather than the healthy who were buying insurance. And that consequence fed back into the first: As the cost of insurance rose, even more people waited until they became ill tobuy it. This led to an economic “death spiral.” As premiums rose higher and higher, and the number of people buying insurance sank lower and lower, insurers began to leave the market entirely. As a result, the number of people without insurance increased dramatically. This cycle happened repeatedly during the 1990s. For example, in 1993, the State of Washington reformed its individual insurance market by adopting the guaranteed issue and community rating requirements. Over the next three years, premiums rose by 78 percent and the number of people enrolled fell by 25 percent. By 1999, 17 of the State’s 19 private insurers had left the market, and the remaining two had announced their intention to do so. Brief for America’s Health Insurance Plans as Amicus Curiae 10–11. For another example, also in 1993, New York adopted the guaranteed issue and community rating requirements. Over the next few years, some major insurers in the individual market raised premiums by roughly 40 percent. By 1996, these reforms had “effectively eliminated the commercial individual indemnity market in New York with the largest individual health insurer exiting the market.” L. Wachenheim & H. Leida, The Impact of Guaranteed Issue and Community Rating Reforms on States’ Individual Insurance Markets 38 (2012). In 1996, Massachusetts adopted the guaranteed issue and community rating requirements and experienced similar results. But in 2006, Massachusetts added two more reforms: The Commonwealth required individuals to buy insurance or pay a penalty, and it gave tax credits to certain individuals to ensure that they could afford the insurance they were required to buy. Brief for Bipartisan Economic Scholars as Amici Curiae 24–25. The combination of these three reforms—insurance market regulations, a coverage mandate, and tax credits—reduced the uninsured rate in Massachusetts to 2.6 percent, by far the lowest in the Nation. Hearing on Examining Individual State Experiences with Health Care Reform Coverage Initiatives in the Context of National Reform before the Senate Committee on Health, Education, Labor, and Pensions, 111th Cong., 1st Sess., 9 (2009). B The Affordable Care Act adopts a version of the three key reforms that made the Massachusetts system successful. First, the Act adopts the guaranteed issue and community rating requirements. The Act provides that “each health insurance issuer that offers health insurance coverage in the individual . . . market in a State must accept every . . . individual in the State that applies for such coverage.” 42 U. S. C. §300gg–1(a). The Act also bars insurers from charging higher premiums on the basis of a person’s health. §300gg. Second, the Act generally requires individuals to maintain health insurance coverage or make a payment to the IRS. 26 U. S. C. §5000A. Congress recognized that, without an incentive, “many individuals would wait to purchase health insurance until they needed care.” 42 U. S. C. §18091(2)(I). So Congress adopted a coverage requirement to “minimize this adverse selection and broaden the health insurance risk pool to include healthy individuals, which will lower health insurance premiums.” Ibid. In Congress’s view, that coverage requirement was “essential to creating effective health insurance markets.” Ibid. Congress also provided an exemption from the coverage requirement for anyone who has to spend more than eight percent of his income on health insurance. 26 U. S. C. §§5000A(e)(1)(A), (e)(1)(B)(ii). Third, the Act seeks to make insurance more affordable by giving refundable tax credits to individuals with household incomes between 100 percent and 400 percent of the federal poverty line. §36B. Individuals who meet the Act’s requirements may purchase insurance with the tax credits, which are provided in advance directly to the individual’s insurer. 42 U. S. C. §§18081, 18082. These three reforms are closely intertwined. As noted, Congress found that the guaranteed issue and community rating requirements would not work without the coverage requirement. §18091(2)(I). And the coverage requirement would not work without the tax credits. The reason is that, without the tax credits, the cost of buying insurance would exceed eight percent of income for a large number of individuals, which would exempt them from the coverage requirement. Given the relationship between these three reforms, the Act provided that they should take effect on the same day—January 1, 2014. See Affordable Care Act, §1253, redesignated §1255, 124Stat. 162, 895; §§1401(e), 1501(d), id., at 220, 249. C In addition to those three reforms, the Act requires the creation of an “Exchange” in each State where peoplecan shop for insurance, usually online. 42 U. S. C. §18031(b)(1). An Exchange may be created in one of two ways. First, the Act provides that “[e]ach State shall . . . establish an American Health Benefit Exchange . . . for the State.” Ibid. Second, if a State nonetheless chooses not to establish its own Exchange, the Act provides that the Secretary of Health and Human Services “shall . . . establish and operate such Exchange within the State.” §18041(c)(1). The issue in this case is whether the Act’s tax credits are available in States that have a Federal Exchange rather than a State Exchange. The Act initially provides that tax credits “shall be allowed” for any “applicable taxpayer.” 26 U. S. C. §36B(a). The Act then provides that the amount of the tax credit depends in part on whether the taxpayer has enrolled in an insurance plan through “an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act [hereinafter 42 U. S. C. §18031].” 26 U. S. C. §§36B(b)–(c) (emphasis added). The IRS addressed the availability of tax credits by promulgating a rule that made them available on both State and Federal Exchanges. 77 Fed. Reg. 30378 (2012). As relevant here, the IRS Rule provides that a taxpayer is eligible for a tax credit if he enrolled in an insurance plan through “an Exchange,” 26 CFR §1.36B–2 (2013), which is defined as “an Exchange serving the individual market . . . regardless of whether the Exchange is established and operated by a State . . . or by HHS,” 45 CFR §155.20 (2014). At this point, 16 States and the District of Columbia have established their own Exchanges; the other 34 States have elected to have HHS do so. D Petitioners are four individuals who live in Virginia, which has a Federal Exchange. They do not wish to purchase health insurance. In their view, Virginia’s Exchange does not qualify as “an Exchange established by the State under [ 42 U. S. C. §18031],” so they should not receive any tax credits. That would make the cost of buying insurance more than eight percent of their income, which would exempt them from the Act’s coverage requirement. 26 U. S. C. §5000A(e)(1). Under the IRS Rule, however, Virginia’s Exchange would qualify as “an Exchange established by the State under [ 42 U. S. C. §18031],” so petitioners would receive tax credits. That would make the cost of buying insurance less than eight percent of petitioners’ income, which would subject them to the Act’s coverage requirement. The IRS Rule therefore requires petitioners to either buy health insurance they do not want, or make a payment to the IRS. Petitioners challenged the IRS Rule in Federal District Court. The District Court dismissed the suit, holding that the Act unambiguously made tax credits available to individuals enrolled through a Federal Exchange. King v. Sebelius , 997 F. Supp. 2d 415 (ED Va. 2014). The Court of Appeals for the Fourth Circuit affirmed. 759 F. 3d 358 (2014). The Fourth Circuit viewed the Act as “ambiguous and subject to at least two different interpretations.” Id., at 372. The court therefore deferred to the IRS’s interpretation under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. , 467 U. S. 837 (1984) . 759 F. 3d, at 376. The same day that the Fourth Circuit issued its decision, the Court of Appeals for the District of Columbia Circuit vacated the IRS Rule in a different case, holding that the Act “unambiguously restricts” the tax credits to State Exchanges. Halbig v. Burwell , 758 F. 3d 390, 394 (2014). We granted certiorari in the present case. 574 U. S. ___ (2014). II The Affordable Care Act addresses tax credits in what is now Section 36B of the Internal Revenue Code. That section provides: “In the case of an applicable taxpayer, there shall be allowed as a credit against the tax imposed by this subtitle . . . an amount equal to the premium assistance credit amount.” 26 U. S. C. §36B(a). Section 36B then defines the term “premium assistance credit amount” as “the sum of the premium assistance amounts determined under paragraph (2) with respect to all coverage months of the taxpayer occurring during the taxable year.” §36B(b)(1) (emphasis added). Section 36B goes on to define the two italicized terms—“premium assistance amount” and “coverage month”—in part by referring to an insurance plan that is enrolled in through “an Exchange established by the State under [ 42 U. S. C. §18031].” 26 U. S. C. §§36B(b)(2)(A), (c)(2)(A)(i). The parties dispute whether Section 36B authorizes tax credits for individuals who enroll in an insurance plan through a Federal Exchange. Petitioners argue that a Federal Exchange is not “an Exchange established by the State under [ 42 U. S. C. §18031],” and that the IRS Rule therefore contradicts Section 36B. Brief for Petitioners 18–20. The Government responds that the IRS Rule is lawful because the phrase “an Exchange established by the State under [ 42 U. S. C. §18031]” should be read to include Federal Exchanges. Brief for Respondents 20–25. When analyzing an agency’s interpretation of a statute, we often apply the two-step framework announced in Chevron , 467 U. S. 837 . Under that framework, we ask whether the statute is ambiguous and, if so, whether the agency’s interpretation is reasonable. Id. , at 842–843. This approach “is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.” FDA v. Brown & Williamson Tobacco Corp. , 529 U. S. 120, 159 (2000) . “In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.” Ibid. This is one of those cases. The tax credits are among the Act’s key reforms, involving billions of dollars in spending each year and affecting the price of health insurance for millions of people. Whether those credits are available on Federal Exchanges is thus a question of deep “economic and political significance” that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly. Utility Air Regulatory Group v. EPA , 573 U. S. ___, ___ (2014) (slip op., at 19) (quoting Brown & Williamson , 529 U. S., at 160). It is especially unlikely that Congress would have delegated this decision to the IRS , which has no expertise in crafting health insurance policy of this sort. See Gonzales v. Oregon , 546 U. S. 243 –267 (2006). This is not a case for the IRS. It is instead our task to determine the correct reading of Section 36B. If the statutory language is plain, we must enforce it according to its terms. Hardt v. Reliance Standard Life Ins. Co. , 560 U. S. 242, 251 (2010) . But oftentimes the “meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.” Brown & Williamson , 529 U. S., at 132. So when deciding whether the language is plain, we must read the words “in their context and with a view to their place in the overall statutory scheme.” Id., at 133 (internal quotation marks omitted). Our duty, after all, is “to construe statutes, not isolated provisions.” Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson , 559 U. S. 280, 290 (2010) (internal quotation marks omitted). A We begin with the text of Section 36B. As relevant here, Section 36B allows an individual to receive tax credits only if the individual enrolls in an insurance plan through “an Exchange established by the State under [ 42 U. S. C. §18031].” In other words, three things must be true: First, the individual must enroll in an insurance plan through “an Exchange.” Second, that Exchange must be “established by the State.” And third, that Exchange must be established “under [ 42 U. S. C. §18031].” We address each requirement in turn. First, all parties agree that a Federal Exchange qualifies as “an Exchange” for purposes of Section 36B. See Brief for Petitioners 22; Brief for Respondents 22. Section 18031 provides that “[e]ach State shall . . . establish an American Health Benefit Exchange . . . for the State.” §18031(b)(1). Although phrased as a requirement, the Act gives the States “flexibility” by allowing them to “elect” whether they want to establish an Exchange. §18041(b). If the State chooses not to do so, Section 18041 provides that the Secretary “shall . . . establish and operate such Exchange within the State.” §18041(c)(1) (emphasis added). By using the phrase “such Exchange,” Section 18041 instructs the Secretary to establish and operate the same Exchange that the State was directed to establish under Section 18031. See Black’s Law Dictionary 1661 (10th ed. 2014) (defining “such” as “That or those; having just been mentioned”). In other words, State Exchanges and Fed-eral Exchanges are equivalent—they must meet the same requirements, perform the same functions, and serve the same purposes. Although State and Federal Exchanges are established by different sovereigns, Sections 18031 and 18041 do not suggest that they differ in any meaningful way. A Federal Exchange therefore counts as “an Exchange” under Section 36B. Second, we must determine whether a Federal Exchange is “established by the State” for purposes of Section 36B. At the outset, it might seem that a Federal Exchange cannot fulfill this requirement. After all, the Act defines “State” to mean “each of the 50 States and the District of Columbia”—a definition that does not include the Federal Government. 42 U. S. C. §18024(d). But when read in context, “with a view to [its] place in the overall statutory scheme,” the meaning of the phrase “established by the State” is not so clear. Brown &Williamson , 529 U. S., at 133 (internal quotation marks omitted). After telling each State to establish an Exchange, Section 18031 provides that all Exchanges “shall make available qualified health plans to qualified individuals.” 42 U. S. C. §18031(d)(2)(A). Section 18032 then defines the term “qualified individual” in part as an individual who “resides in the State that established the Exchange.” §18032(f)(1)(A). And that’s a problem: If we give the phrase “the State that established the Exchange” its most natural meaning, there would be no “qualified individuals” on Federal Exchanges. But the Act clearly contemplates that there will be qualified individuals on every Exchange. As we just mentioned, the Act requires all Exchanges to “make available qualified health plans to qualified individuals”—something an Exchange could not do if there were no such individuals. §18031(d)(2)(A). And the Act tells the Exchange, in deciding which health plans to offer, to consider “the interests of qualified individuals . . . in the State or States in which such Exchange operates”—again, something the Exchange could not do if qualified individ-uals did not exist. §18031(e)(1)(B). This problem arises repeatedly throughout the Act. See, e.g. , §18031(b)(2) (allowing a State to create “one Exchange . . . for providing . . . services to both qualified individuals and qualified small employers,” rather than creating separate Exchanges for those two groups).[ 1 ] These provisions suggest that the Act may not always use the phrase “established by the State” in its most natural sense. Thus, the meaning of that phrase may not be as clear as it appears when read out of context. Third, we must determine whether a Federal Exchange is established “under [ 42 U. S. C. §18031].” This too might seem a requirement that a Federal Exchange cannot fulfill, because it is Section 18041 that tells the Secretary when to “establish and operate such Exchange.” But here again, the way different provisions in the statute interact suggests otherwise. The Act defines the term “Exchange” to mean “an American Health Benefit Exchange established under section 18031.” §300gg–91(d)(21). If we import that definition into Section 18041, the Act tells the Secretary to “establish and operate such ‘American Health Benefit Exchange established under section 18031.’ ” That suggests that Section 18041 authorizes the Secretary to establish an Exchange under Section 18031, not (or not only) under Section 18041. Otherwise, the Federal Exchange, by definition, would not be an “Exchange” at all. See Halbig , 758 F. 3d, at 399–400 (acknowledging that the Secretary establishes Federal Exchanges under Section 18031). This interpretation of “under [ 42 U. S. C. §18031]” fits best with the statutory context. All of the requirements that an Exchange must meet are in Section 18031, so it is sensible to regard all Exchanges as established under that provision. In addition, every time the Act uses the word “Exchange,” the definitional provision requires that we substitute the phrase “Exchange established under section 18031.” If Federal Exchanges were not established under Section 18031, therefore, literally none of the Act’s requirements would apply to them. Finally, the Act repeatedly uses the phrase “established under [ 42 U. S. C. §18031]” in situations where it would make no sense to distinguish between State and Federal Exchanges. See, e.g. , 26 U. S. C. §125(f)(3)(A) (2012 ed., Supp. I) (“The term ‘qualified benefit’ shall not include any qualified health plan . . . offered through an Exchange established under [ 42 U. S. C. §18031]”); 26 U. S. C. §6055(b)(1)(B)(iii)(I) (2012 ed.) (requiring insurers to report whether each insurance plan they provided “is a qualified health plan offered through an Exchange established under [ 42 U. S. C. §18031]”). A Federal Exchange may therefore be considered one established “under [ 42 U. S. C. §18031].” The upshot of all this is that the phrase “an Exchange established by the State under [ 42 U. S. C. §18031]” is properly viewed as ambiguous. The phrase may be limited in its reach to State Exchanges. But it is also possible that the phrase refers to all Exchanges—both State and Federal—at least for purposes of the tax credits. If a State chooses not to follow the directive in Section 18031 that it establish an Exchange, the Act tells the Secretary to establish “such Exchange.” §18041. And by using the words “such Exchange,” the Act indicates that State and Federal Exchanges should be the same. But State and Federal Exchanges would differ in a fundamental way if tax credits were available only on State Exchanges—one type of Exchange would help make insurance more affordable by providing billions of dollars to the States’ citizens; the other type of Exchange would not.[ 2 ] The conclusion that Section 36B is ambiguous is further supported by several provisions that assume tax credits will be available on both State and Federal Exchanges. For example, the Act requires all Exchanges to create outreach programs that must “distribute fair and impartial information concerning . . . the availability of premium tax credits under section 36B.” §18031(i)(3)(B). The Act also requires all Exchanges to “establish and make avail-able by electronic means a calculator to determine the actual cost of coverage after the application of any pre-mium tax credit under section 36B.” §18031(d)(4)(G). And the Act requires all Exchanges to report to the Treasury Secretary information about each health plan they sell, including the “aggregate amount of any advance payment of such credit,” “[a]ny information . . . necessary to determine eligibility for, and the amount of, such credit,” and any “[i]nformation necessary to determine whether a taxpayer has received excess advance payments.” 26 U. S. C. §36B(f)(3). If tax credits were not available on Federal Exchanges, these provisions would make little sense. Petitioners and the dissent respond that the words “established by the State” would be unnecessary if Congress meant to extend tax credits to both State and Fed-eral Exchanges. Brief for Petitioners 20; post , at 4–5. But “our preference for avoiding surplusage constructions is not absolute.” Lamie v. United States Trustee , 540 U. S. 526, 536 (2004) ; see also Marx v. General Revenue Corp. , 568 U. S. ___, ___ (2013) (slip op., at 13) (“The canon against surplusage is not an absolute rule”). And specifically with respect to this Act, rigorous application of the canon does not seem a particularly useful guide to a fair construction of the statute. The Affordable Care Act contains more than a few examples of inartful drafting. (To cite just one, the Act creates three separate Section 1563s. See 124Stat. 270, 911, 912.) Several features of the Act’s passage contributed to that unfortunate reality. Congress wrote key partsof the Act behind closed doors, rather than through “the traditional legislative process.” Cannan, A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History, 105 L. Lib. J. 131, 163 (2013). And Congress passed much of the Act using a complicated budgetary procedure known as “reconciliation,” which limited opportunities for debate and amendment, and bypassed the Senate’s normal 60-vote filibuster requirement. Id., at 159–167. As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation. Cf. Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 545 (1947) (describing a cartoon “in which a senator tells his colleagues ‘I admit this new bill is too complicated to understand. We’ll just have to pass it to find out what it means.’ ”). Anyway, we “must do our best, bearing in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Util-ity Air Regulatory Group , 573 U. S., at ___ (slip op., at 15) (internal quotation marks omitted). After reading Section 36B along with other related provisions in the Act, we cannot conclude that the phrase “an Exchange established by the State under [Section 18031]” is unambiguous. B Given that the text is ambiguous, we must turn to the broader structure of the Act to determine the meaning of Section 36B. “A provision that may seem ambiguous in isolation is often clarified by the remainder of the statu-tory scheme . . . because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd. , 484 U. S. 365, 371 (1988) . Here, the statutory scheme compels us to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very “death spirals” that Congress designed the Act to avoid. See New York State Dept. of Social Servs. v. Dublino , 413 U. S. 405 –420 (1973) (“We cannot interpret federal statutes to negate their own stated purposes.”).[ 3 ] As discussed above, Congress based the Affordable Care Act on three major reforms: first, the guaranteed issue and community rating requirements; second, a requirement that individuals maintain health insurance coverage or make a payment to the IRS; and third, the tax credits for individuals with household incomes between 100 percent and 400 percent of the federal poverty line. In a State that establishes its own Exchange, these three reforms work together to expand insurance coverage. The guaranteed issue and community rating requirements ensure that anyone can buy insurance; the coverage requirement creates an incentive for people to do so before they get sick; and the tax credits—it is hoped—make insurance more affordable. Together, those reforms “minimize . . . adverse selection and broaden the health in-surance risk pool to include healthy individuals, which will lower health insurance premiums.” 42 U. S. C. §18091(2)(I). Under petitioners’ reading, however, the Act would operate quite differently in a State with a Federal Exchange. As they see it, one of the Act’s three major reforms—the tax credits—would not apply. And a second major reform—the coverage requirement—would not apply in a meaningful way. As explained earlier, the coverage requirement applies only when the cost of buying health insurance (minus the amount of the tax credits) is less than eight percent of an individual’s income. 26 U. S. C. §§5000A(e)(1)(A), (e)(1)(B)(ii). So without the tax credits, the coverage requirement would apply to fewer individuals. And it would be a lot fewer. In 2014, approximately 87 percent of people who bought insurance on a Federal Exchange did so with tax credits, and virtually all of those people would become exempt. HHS, A. Burke, A. Misra, & S. Sheingold, Premium Affordability, Competition, and Choice in the Health Insurance Marketplace 5 (2014); Brief for Bipartisan Economic Scholars as Amici Curiae 19–20. If petitioners are right, therefore, only one of the Act’s three major reforms would apply in States with a Federal Exchange. The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral. One study predicts that premiums would increase by 47 percent and enrollment would decrease by 70 percent. E. Saltzman & C. Eibner, The Effect of Eliminating the Affordable Care Act’s Tax Credits in Federally Facilitated Marketplaces (2015). Another study predicts that premiums would increase by 35 percent and enrollment would decrease by 69 percent. L. Blumberg, M. Buettgens, & J. Holahan, The Implications of a Supreme Court Finding for the Plaintiff in King vs. Burwell: 8.2 Million More Uninsured and 35% Higher Premiums (2015). And those effects would not be limited to individuals who purchase insurance on the Exchanges. Because the Act requires insurers to treat the entire individual market as a single risk pool, 42 U. S. C. §18032(c)(1), premiums outside the Exchange would rise along with those inside the Exchange. Brief for Bipartisan Economic Scholars as Amici Curiae 11–12. It is implausible that Congress meant the Act to operate in this manner. See National Federation of Independent Business v. Sebelius , 567 U. S. ___, ___ (2012) (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting) (slip op., at 60) (“Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”). Congress made the guaranteed issue and community rating requirements applicable in every State in the Nation. But those requirements only work when combined with the coverage requirement and the tax credits. So it stands to reason that Congress meant for those provisions to apply in every State as well.[ 4 ] Petitioners respond that Congress was not worried about the effects of withholding tax credits from States with Federal Exchanges because “Congress evidently believed it was offering states a deal they would not refuse.” Brief for Petitioners 36. Congress may have been wrong about the States’ willingness to establish their own Exchanges, petitioners continue, but that does not allow this Court to rewrite the Act to fix that problem. That is particularly true, petitioners conclude, because the States likely would have created their own Exchanges in the absence of the IRS Rule, which eliminated any incentive that the States had to do so. Id., at 36–38. Section 18041 refutes the argument that Congress believed it was offering the States a deal they would not refuse. That section provides that, if a State elects not to establish an Exchange, the Secretary “shall . . . establish and operate such Exchange within the State.” 42 U. S. C. §18041(c)(1)(A). The whole point of that provision is to create a federal fallback in case a State chooses not to establish its own Exchange. Contrary to petitioners’ argument, Congress did not believe it was offering States a deal they would not refuse—it expressly addressed what would happen if a State did refuse the deal. C Finally, the structure of Section 36B itself suggests that tax credits are not limited to State Exchanges. Section 36B(a) initially provides that tax credits “shall be allowed” for any “applicable taxpayer.” Section 36B(c)(1) then defines an “applicable taxpayer” as someone who (among other things) has a household income between 100 percent and 400 percent of the federal poverty line. Together, these two provisions appear to make anyone in the specified income range eligible to receive a tax credit. According to petitioners, however, those provisions are an empty promise in States with a Federal Exchange. In their view, an applicable taxpayer in such a State would be eligible for a tax credit—but the amount of that tax credit would always be zero. And that is because—diving several layers down into the Tax Code—Section 36B says that the amount of the tax credits shall be “an amount equal to the premium assistance credit amount,” §36B(a); and then says that the term “premium assistance credit amount” means “the sum of the premium assistance amounts determined under paragraph (2) with respect to all coverage months of the taxpayer occurring during the taxable year,” §36B(b)(1); and then says that the term “premium assistance amount” is tied to the amount of the monthly premium for insurance purchased on “an Exchange established by the State under [42 U. S. C. §18031],” §36B(b)(2); and then says that the term “coverage month” means any month in which the taxpayer has insurance through “an Exchange established by the State under [ 42 U. S. C. §18031],” §36B(c)(2)(A)(i). We have held that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” Whitman v. American Trucking Assns., Inc. , 531 U. S. 457, 468 (2001) . But in petitioners’ view, Congress made the viability of the entire Affordable Care Act turn on the ultimate ancillary provision: a sub-sub-sub section of the Tax Code. We doubt that is what Congress meant to do. Had Congress meant to limit tax credits to State Exchanges, it likely would have done so in the definition of “applicable taxpayer” or in some other prominent manner. It would not have used such a winding path of connect-the-dots provisions about the amount of the credit.[ 5 ] D Petitioners’ arguments about the plain meaning of Section 36B are strong. But while the meaning of the phrase “an Exchange established by the State under [ 42 U. S. C. §18031]” may seem plain “when viewed in isolation,” such a reading turns out to be “untenable in light of [the statute] as a whole.” Department of Revenue of Ore. v. ACF Industries, Inc. , 510 U. S. 332, 343 (1994) . In this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase. Reliance on context and structure in statutory interpretation is a “subtle business, calling for great wariness lest what professes to be mere rendering becomes creation and attempted interpretation of legislation becomes legislation itself.” Palmer v. Massachusetts , 308 U. S. 79, 83 (1939) . For the reasons we have given, however, such reliance is appropriate in this case, and leads us to conclude that Section 36B allows tax credits for insurance purchased on any Exchange created under the Act. Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid. *  *  * In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—“to say what the law is.” Marbury v. Madison , 1 Cranch 137, 177 (1803). That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan. Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt. The judgment of the United States Court of Appeals for the Fourth Circuit is Affirmed. Notes 1 The dissent argues that one would “naturally read instructions about qualified individuals to be inapplicable to the extent a particular Exchange has no such individuals.” Post , at 10–11 (Scalia, J., dissenting). But the fact that the dissent’s interpretation would make so many parts of the Act “inapplicable” to Federal Exchanges is precisely what creates the problem. It would be odd indeed for Congress to write such detailed instructions about customers on a State Exchange, while having nothing to say about those on a Federal Exchange. 2 The dissent argues that the phrase “such Exchange” does not suggest that State and Federal Exchanges “are in all respects equivalent.” Post , at 8. In support, it quotes the Constitution’s Elections Clause, which makes the state legislature primarily responsible for prescribing election regulations, but allows Congress to “make or alter such Regulations.” Art. I, §4, cl. 1. No one would say that state and federal election regulations are in all respects equivalent, the dissent contends, so we should not say that State and Federal Exchanges are. But the Elections Clause does not precisely define what an election regulation must look like, so Congress can prescribe regulations that differ from what the State would prescribe. The Affordable Care Act does precisely define what an Exchange must look like, however, so a Federal Exchange cannot differ from a State Exchange. 3 The dissent notes that several other provisions in the Act use the phrase “established by the State,” and argues that our holding applies to each of those provisions. Post , at 5–6. But “the presumption of consistent usage readily yields to context,” and a statutory term may mean different things in different places. Utility Air Regulatory Group v. EPA , 573 U. S. ___, ___ (2014) (slip op., at 15) (internal quotation marks omitted). That is particularly true when, as here, “the Act is far from a chef d’oeuvre of legislative draftsmanship.” Ibid. Because the other provisions cited by the dissent are not at issue here, we do not address them. 4 The dissent argues that our analysis “show[s] only that the statu-tory scheme contains a flaw,” one “that appeared as well in other parts of the Act.” Post , at 14. For support, the dissent notes that the guaranteed issue and community rating requirements might apply in the federal territories, even though the coverage requirement does not. Id., at 14–15. The confusion arises from the fact that the guaranteed issue and community rating requirements were added as amendments to the Public Health Service Act, which contains a definition of the word “State” that includes the territories, 42 U. S. C. §201(f), while the later-enacted Affordable Care Act contains a definition of the word “State” that excludes the territories, §18024(d). The predicate for the dissent’s point is therefore uncertain at best. 5 The dissent cites several provisions that “make[ ] taxpayers of all States eligible for a credit, only to provide later that the amount of the credit may be zero.” Post , at 11 (citing 26 U. S. C. §§24, 32, 35, 36). None of those provisions, however, is crucial to the viability of a comprehensive program like the Affordable Care Act. No one suggests, for example, that the first-time-homebuyer tax credit, §36, is essential to the viability of federal housing regulation. SUPREME COURT OF THE UNITED STATES _________________ No. 14–114 _________________ DAVID KING, et al., PETITIONERS v. SYLVIA BURWELL, SECRETARY OF HEALTHAND HUMAN SERVICES, et al. on writ of certiorari to the united states court of appeals for the fourth circuit [June 25, 2015] Justice Scalia, with whom Justice Thomas and Justice Alito join, dissenting. The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so. I The Patient Protection and Affordable Care Act makes major reforms to the American health-insurance market. It provides, among other things, that every State “shall . . . establish an American Health Benefit Exchange”—a marketplace where people can shop for health-insurance plans. 42 U. S. C. §18031(b)(1). And it provides that if a State does not comply with this instruction, the Secretary of Health and Human Services must “establish and operate such Exchange within the State.” §18041(c)(1). A separate part of the Act—housed in §36B of the Internal Revenue Code—grants “premium tax credits” to subsidize certain purchases of health insurance made on Exchanges. The tax credit consists of “premium assistance amounts” for “coverage months.” 26 U. S. C. §36B(b)(1). An individual has a coverage month only when he is covered by an insurance plan “that was enrolled in through an Exchange established by the State under [§18031].” §36B(c)(2)(A). And the law ties the size of the premium assistance amount to the premiums for health plans which cover the individual “and which were enrolled in through an Exchange established by the State under [§18031].” §36B(b)(2)(A). The premium assistance amount further depends on the cost of certain other insurance plans “offered through the same Exchange.” §36B(b)(3)(B)(i). This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B. Words no longer have meaning if an Exchange that is not established by a State is “established by the State.” It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words “established by the State.” And it is hard to come up with a reason to include the words “by the State” other than the purpose of limiting credits to state Exchanges. “[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.” Lynch v. Alworth-Stephens Co., 267 U. S. 364, 370 (1925) (internal quotation marks omitted). Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved. II The Court interprets §36B to award tax credits on both federal and state Exchanges. It accepts that the “most natural sense” of the phrase “Exchange established by the State” is an Exchange established by a State. Ante, at 11. (Understatement, thy name is an opinion on the Afford-able Care Act!) Yet the opinion continues, with no semblance of shame, that “it is also possible that the phrase refers to all Exchanges—both State and Federal.” Ante, at 13. (Impossible possibility, thy name is an opinion on the Affordable Care Act!) The Court claims that “the context and structure of the Act compel [it] to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.” Ante, at 21. I wholeheartedly agree with the Court that sound interpretation requires paying attention to the whole law, not homing in on isolated words or even isolated sections. Context always matters. Let us not forget, however, why context matters: It is a tool for understanding the terms of the law, not an excuse for rewriting them. Any effort to understand rather than to rewrite a law must accept and apply the presumption that lawmakers use words in “their natural and ordinary signification.” Pensacola Telegraph Co. v. Western Union Telegraph Co. , 96 U. S. 1, 12 (1878) . Ordinary connotation does not always prevail, but the more unnatural the proposed interpretation of a law, the more compelling the contex-tual evidence must be to show that it is correct. Today’s interpretation is not merely unnatural; it is unheard of. Who would ever have dreamt that “Exchange established by the State” means “Exchange established by the State or the Federal Government ”? Little short of an express statutory definition could justify adopting this singular reading. Yet the only pertinent definition here provides that “State” means “each of the 50 States and the District of Columbia.” 42 U. S. C. §18024(d). Because the Secretary is neither one of the 50 States nor the District of Columbia, that definition positively contradicts the eccentric theory that an Exchange established by the Secretary has been established by the State. Far from offering the overwhelming evidence of meaning needed to justify the Court’s interpretation, other contextual clues undermine it at every turn. To begin with, other parts of the Act sharply distinguish between the establishment of an Exchange by a State and the establishment of an Exchange by the Federal Government. The States’ authority to set up Exchanges comes from one provision, §18031(b); the Secretary’s authority comes from an entirely different provision, §18041(c). Funding for States to establish Exchanges comes from one part of the law, §18031(a); funding for the Secretary to establish Exchanges comes from an entirely different part of the law, §18121. States generally run state-created Ex-changes; the Secretary generally runs federally created Exchanges. §18041(b)–(c). And the Secretary’s authority to set up an Exchange in a State depends upon the State’s “ [f]ailure to establish [an] Exchange.” §18041(c) (emphasis added). Provisions such as these destroy any pretense that a federal Exchange is in some sense also established by a State. Reading the rest of the Act also confirms that, as relevant here, there are only two ways to set up an Exchange in a State: establishment by a State and establishment by the Secretary. §§18031(b), 18041(c). So saying that an Exchange established by the Federal Government is “established by the State” goes beyond giving words bizarre meanings; it leaves the limiting phrase “by the State” with no operative effect at all. That is a stark violation of the elementary principle that requires an interpreter “to give effect, if possible, to every clause and word of a statute.” Montclair v. Ramsdell , 107 U. S. 147, 152 (1883) . In weighing this argument, it is well to remember the difference between giving a term a meaning that duplicates another part of the law, and giving a term no meaning at all. Lawmakers sometimes repeat themselves—whether out of a desire to add emphasis, a sense of belt-and-suspenders caution, or a lawyerly penchant for doublets (aid and abet, cease and desist, null and void). Lawmakers do not, however, tend to use terms that “have no operation at all.” Marbury v. Madison , 1 Cranch 137, 174 (1803). So while the rule against treating a term as a redundancy is far from categorical, the rule against treating it as a nullity is as close to absolute as interpretive principles get. The Court’s reading does not merely give “by the State” a duplicative effect; it causes the phrase to have no effect whatever. Making matters worse, the reader of the whole Act will come across a number of provisions beyond §36B that refer to the establishment of Exchanges by States. Adopting the Court’s interpretation means nullifying the term “by the State” not just once, but again and again throughout the Act. Consider for the moment only those parts of the Act that mention an “Exchange established by the State” in connection with tax credits: The formula for calculating the amount of the tax credit, as already explained, twice mentions “an Exchange established by the State.” 26 U. S. C. §36B(b)(2)(A), (c)(2)(A)(i). The Act directs States to screen children for eligibility for “[tax credits] under section 36B” and for “anyother assistance or subsidies available for coverage obtained through” an “Exchange established by the State.” 42 U. S. C. §1396w–3(b)(1)(B)–(C). The Act requires “an Exchange established by the State” to use a “secure electronic interface” to determine eligibility for (among other things) tax credits. §1396w–3(b)(1)(D). The Act authorizes “an Exchange established by the State” to make arrangements under which other state agencies “determine whether a State resident is eligible for [tax credits] under section 36B.” §1396w–3(b)(2). The Act directs States to operate Web sites that allow anyone “who is eligible to receive [tax credits] under section 36B” to compare insurance plans offered through “an Exchange established by the State.” §1396w–3(b)(4). One of the Act’s provisions addresses the enrollment of certain children in health plans “offered through an Exchange established by the State” and then dis-cusses the eligibility of these children for tax credits. §1397ee(d)(3)(B). It is bad enough for a court to cross out “by the State” once. But seven times? Congress did not, by the way, repeat “Exchange established by the State under [§18031]” by rote throughout the Act. Quite the contrary, clause after clause of the law uses a more general term such as “Exchange” or “Exchange established under [§18031].” See, e.g., 42 U. S. C. §§18031(k), 18033; 26 U. S. C. §6055. It is common sense that any speaker who says “Exchange” some of the time, but “Exchange established by the State” the rest of the time, probably means something by the contrast. Equating establishment “by the State” with establishment by the Federal Government makes nonsense of other parts of the Act. The Act requires States to ensure (on pain of losing Medicaid funding) that any “Exchange established by the State” uses a “secure electronic interface” to determine an individual’s eligibility for various benefits (including tax credits). 42 U. S. C. §1396w–3(b)(1)(D). How could a State control the type of electronic interface used by a federal Exchange? The Act allows a State to control contracting decisions made by “an Exchange established by the State.” §18031(f )(3). Why would a State get to control the contracting decisions of a federal Exchange? The Act also provides “Assistance to States to establish American Health Benefit Exchanges” and directs the Secretary to renew this funding “if the State . . . is making progress . . . toward . . . establishing an Exchange.” §18031(a). Does a State that refuses to set up an Exchange still receive this funding, on the premise that Exchanges established by the Federal Government are really established by States? It is presumably in order to avoid these questions that the Court concludes that federal Exchanges count as state Exchanges only “for purposes of the tax credits.” Ante, at 13. (Contrivance, thy name is an opinion on the Affordable Care Act!) It is probably piling on to add that the Congress that wrote the Affordable Care Act knew how to equate two different types of Exchanges when it wanted to do so. The Act includes a clause providing that “[a] territory that . . . establishes . . . an Exchange . . . shall be treated as a State” for certain purposes. §18043(a) (emphasis added). Tellingly, it does not include a comparable clause providing that the Secretary shall be treated as a State for purposes of §36B when she establishes an Exchange. Faced with overwhelming confirmation that “Exchange established by the State” means what it looks like it means, the Court comes up with argument after feeble argument to support its contrary interpretation. None of its tries comes close to establishing the implausible conclusion that Congress used “by the State” to mean “by the State or not by the State.” The Court emphasizes that if a State does not set up an Exchange, the Secretary must establish “such Exchange.” §18041(c). It claims that the word “such” implies that federal and state Exchanges are “the same.” Ante, at 13. To see the error in this reasoning, one need only consider a parallel provision from our Constitution: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations .” Art. I, §4, cl. 1 (emphasis added). Just as the Affordable Care Act directs States to establish Exchanges while allowing the Secretary to establish “such Exchange” as a fallback, the Elections Clause directs state legislatures to prescribe election regulations while allowing Congress to make “such Regulations” as a fallback. Would anybody refer to an election regulation made by Congress as a “regulation prescribed by the state legislature”? Would anybody say that a federal election law and a state election law are in all respects equivalent? Of course not. The word “such” does not help the Court one whit. The Court’s argument also overlooks the rudimentary principle that a specific provision governs a general one. Even if it were true that the term “such Exchange” in §18041(c) implies that federal and state Exchanges are the same in general, the term “established by the State” in §36B makes plain that they differ when it comes to tax credits in particular. The Court’s next bit of interpretive jiggery-pokery involves other parts of the Act that purportedly presuppose the availability of tax credits on both federal and state Exchanges. Ante, at 13–14. It is curious that the Court is willing to subordinate the express words of the section that grants tax credits to the mere implications of other provisions with only tangential connections to tax credits. One would think that interpretation would work the other way around. In any event, each of the provisions mentioned by the Court is perfectly consistent with limiting tax credits to state Exchanges. One of them says that the minimum functions of an Exchange include (alongside several tasks that have nothing to do with tax credits) setting up an electronic calculator that shows “the actual cost of coverage after the application of any premium tax credit.” 42 U. S. C. §18031(d)(4)(G). What stops a federal Exchange’s electronic calculator from telling a customer that his tax credit is zero? Another provision requires an Exchange’s outreach program to educate the public about health plans, to facilitate enrollment, and to “distribute fair and impartial information” about enrollment and “the availability of premium tax credits.” §18031(i)(3)(B). What stops a federal Exchange’s outreach program from fairly and impartially telling customers that no tax credits are available? A third provision requires an Exchange to report information about each insurance plan sold—including level of coverage, premium, name of the insured, and “amount of any advance payment” of the tax credit. 26 U. S. C. §36B(f)(3). What stops a federal Exchange’s report from confirming that no tax credits have been paid out? The Court persists that these provisions “would make little sense” if no tax credits were available on federal Exchanges. Ante, at 14. Even if that observation were true, it would show only oddity, not ambiguity. Laws often include unusual or mismatched provisions. The Affordable Care Act spans 900 pages; it would be amazing if its provisions all lined up perfectly with each other. This Court “does not revise legislation . . . just because the text as written creates an apparent anomaly.” Michigan v. Bay Mills Indian Community , 572 U. S. ___, ___ (2014) (slip op., at 10). At any rate, the provisions cited by the Court are not particularly unusual. Each requires an Exchange to perform a standardized series of tasks, some aspects of which relate in some way to tax credits. It is entirely natural for slight mismatches to occur when, as here, lawmakers draft “a single statutory provision” to cover “different kinds” of situations. Robers v. United States , 572 U. S. ___, ___ (2014) (slip op., at 4). Lawmakers need not, and often do not, “write extra language specifically exempting, phrase by phrase, applications in respect to which a portion of a phrase is not needed.” Ibid. Roaming even farther afield from §36B, the Court turns to the Act’s provisions about “qualified individuals.” Ante, at 10–11. Qualified individuals receive favored treatment on Exchanges, although customers who are not qualified individuals may also shop there. See Halbig v. Burwell , 758 F. 3d 390, 404–405 (CADC 2014). The Court claims that the Act must equate federal and state establishment of Exchanges when it defines a qualified individual as someone who (among other things) lives in the “State that established the Exchange,” 42 U. S. C. §18032(f )(1)(A). Otherwise, the Court says, there would be no qualified individuals on federal Exchanges, contradicting (for example) the provision requiring every Exchange to takethe “ ‘interests of qualified individuals’ ” into accountwhen selecting health plans. Ante, at 11 (quoting §18031(e)(1)(b)). Pure applesauce. Imagine that a university sends around a bulletin reminding every professor to take the “interests of graduate students” into account when setting office hours, but that some professors teach only undergraduates. Would anybody reason that the bulletin implicitly presupposes that every professor has “graduate students,” so that “graduate students” must really mean “graduate or undergraduate students”? Surely not. Just as one naturally reads instructions aboutgraduate students to be inapplicable to the extent a particular professor has no such students, so too would one naturally read instructions about qualified individuals to be inapplicable to the extent a particular Exchange has no such individuals. There is no need to rewrite the term “State that established the Exchange” in the definition of “qualified individual,” much less a need to rewrite the separate term “Exchange established by the State” in a separate part of the Act. Least convincing of all, however, is the Court’s attempt to uncover support for its interpretation in “the structure of Section 36B itself.” Ante, at 19. The Court finds it strange that Congress limited the tax credit to state Exchanges in the formula for calculating the amount of the credit, rather than in the provision defining the range of taxpayers eligible for the credit. Had the Court bothered to look at the rest of the Tax Code, it would have seen that the structure it finds strange is in fact quite common. Consider, for example, the many provisions that initially make taxpayers of all incomes eligible for a tax credit, only to provide later that the amount of the credit is zero if the taxpayer’s income exceeds a specified threshold. See, e.g., 26 U. S. C. §24 (child tax credit); §32 (earned-income tax credit); §36 (first-time-homebuyer tax credit). Or consider, for an even closer parallel, a neighboring provision that initially makes taxpayers of all States eligible for a credit, only to provide later that the amount of the credit may be zero if the taxpayer’s State does not satisfy certain requirements. See §35 (health-insurance-costs tax credit). One begins to get the sense that the Court’s insistence on reading things in context applies to “established by the State,” but to nothing else. For what it is worth, lawmakers usually draft tax-credit provisions the way they do— i.e. , the way they drafted §36B—because the mechanics of the credit require it. Many Americans move to new States in the middle of the year. Mentioning state Exchanges in the definition of “coverage month”—rather than (as the Court proposes) in the provisions concerning taxpayers’ eligibility for the credit—accounts for taxpayers who live in a State with a state Exchange for a part of the year, but a State with a federal Exchange for the rest of the year. In addition, §36B awards a credit with respect to insurance plans “which cover the taxpayer, the taxpayer’s spouse, or any dependent . . . of the taxpayer and which were enrolled in through an Exchange established by the State.” §36B(b)(2)(A) (emphasis added). If Congress had mentioned state Exchanges in the provisions discussing taxpayers’ eligibility for the credit, a taxpayer who buys insurance from a federal Exchange would get no money, even if he has a spouse or dependent who buys insurance from a state Exchange—say a child attending college in a different State. It thus makes perfect sense for “Exchange established by the State” to appear where it does, rather than where the Court suggests. Even if that were not so, of course, its location would not make it any less clear. The Court has not come close to presenting the compelling contextual case necessary to justify departing from the ordinary meaning of the terms of the law. Quite the contrary, context only underscores the outlandishness of the Court’s interpretation. Reading the Act as a whole leaves no doubt about the matter: “Exchange established by the State” means what it looks like it means. III For its next defense of the indefensible, the Court turns to the Affordable Care Act’s design and purposes. As relevant here, the Act makes three major reforms. The guaranteed-issue and community-rating requirements prohibit insurers from considering a customer’s health when deciding whether to sell insurance and how much to charge, 42 U. S. C. §§300gg, 300gg–1; its famous individ-ual mandate requires everyone to maintain insurance coverage or to pay what the Act calls a “penalty,” 26 U. S. C. §5000A(b)(1), and what we have nonetheless called a tax, see National Federation of Independent Business v. Sebelius , 567 U. S. ___, ___ (2012) (slip op., at 39); and its tax credits help make insurance more affordable. The Court reasons that Congress intended these three reforms to “work together to expand insurance coverage”; and because the first two apply in every State, so must the third. Ante, at 16. This reasoning suffers from no shortage of flaws. To begin with, “even the most formidable argument concerning the statute’s purposes could not overcome the clarity [of ] the statute’s text.” Kloeckner v. Solis , 568 U. S. ___, ___, n. 4 (2012) (slip op., at 14, n. 4). Statutory design and purpose matter only to the extent they help clarify an otherwise ambiguous provision. Could anyone maintain with a straight face that §36B is unclear? To mention just the highlights, the Court’s interpretation clashes with a statutory definition, renders words inoperative in at least seven separate provisions of the Act, overlooks the contrast between provisions that say “Exchange” and those that say “Exchange established by the State,” gives the same phrase one meaning for purposes of tax credits but an entirely different meaning for other purposes, and (let us not forget) contradicts the ordinary meaning of the words Congress used. On the other side of the ledger, the Court has come up with nothing more than a general provision that turns out to be controlled by a specific one, a handful of clauses that are consistent with either understanding of establishment by the State, and a resemblance between the tax-credit provision and the rest of the Tax Code. If that is all it takes to make something ambiguous, everything is ambiguous. Having gone wrong in consulting statutory purpose at all, the Court goes wrong again in analyzing it. The purposes of a law must be “collected chiefly from its words,” not “from extrinsic circumstances.” Sturges v. Crowninshield , 4 Wheat. 122, 202 (1819) (Marshall, C. J.). Only by concentrating on the law’s terms can a judge hope to uncover the scheme of the statute , rather than some other scheme that the judge thinks desirable. Like it or not, the express terms of the Affordable Care Act make only two of the three reforms mentioned by the Court applicable in States that do not establish Exchanges. It is perfectly possible for them to operate independently of tax credits. The guaranteed-issue and community-rating requirements continue to ensure that insurance companies treat all customers the same no matter their health, and the individual mandate continues to encourage people to maintain coverage, lest they be “taxed.” The Court protests that without the tax credits, the number of people covered by the individual mandate shrinks, and without a broadly applicable individual mandate the guaranteed-issue and community-rating requirements “would destabilize the individual insurance market.” Ante, at 15. If true, these projections would show only that the statutory scheme contains a flaw; they would not show that the statute means the opposite of what it says. Moreover, it is a flaw that appeared as well in other parts of the Act. A different title established a long-term-care insurance program with guaranteed-issue and community-rating requirements, but without an individual mandate or subsidies. §§8001–8002, 124Stat. 828–847 (2010). This program never came into effect “only because Congress, in response to actuarial analyses predicting that the [program] would be fiscally unsustainable, repealed the provision in 2013.” Halbig , 758 F. 3d, at 410. How could the Court say that Congress would never dream of combining guaranteed-issue and community-rating requirements with a narrow individual mandate, when it combined those requirements with no individual mandate in the context of long-term-care insurance? Similarly, the Department of Health and Human Services originally interpreted the Act to impose guaranteed-issue and community-rating requirements in the Federal Territories, even though the Act plainly does not make the individual mandate applicable there. Ibid. ; see 26 U. S. C. §5000A(f)(4); 42 U. S. C. §201(f). “This combination, predictably, [threw] individual insurance markets in the territories into turmoil.” Halbig, supra, at 410. Responding to complaints from the Territories, the Department at first insisted that it had “no statutory authority” to address the problem and suggested that the Territories “seek legislative relief from Congress” instead. Letter from G. Cohen, Director of the Center for Consumer Information and Insurance Oversight, to S. Igisomar, Secretary of Commerce of the Commonwealth of Northern Mariana Islands (July 12, 2013). The Department changed its mind a year later, after what it described as “a careful review of [the] situation and the relevant statutory language.” Letter from M. Tavenner, Administrator of the Centers for Medicare and Medicaid Services, to G. Francis, Insurance Commissioner of the Virgin Islands (July 16, 2014). How could the Court pronounce it “implausible” for Congress to have tolerated instability in insurance markets in States with federal Exchanges, ante, at 17, when even the Government maintained until recently that Congress did exactly that in American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands? Compounding its errors, the Court forgets that it is no more appropriate to consider one of a statute’s purposes in isolation than it is to consider one of its words that way. No law pursues just one purpose at all costs, and no statutory scheme encompasses just one element. Most relevant here, the Affordable Care Act displays a congressional preference for state participation in the establishment of Exchanges: Each State gets the first opportunity to set up its Exchange, 42 U. S. C. §18031(b); States that take up the opportunity receive federal funding for “activities . . . related to establishing” an Exchange, §18031(a)(3); and the Secretary may establish an Exchange in a State only as a fallback, §18041(c). But setting up and running an Exchange involve significant burdens—meeting strict deadlines, §18041(b), implementing requirements related to the offering of insurance plans, §18031(d)(4), setting up outreach programs, §18031(i), and ensuring that the Exchange is self-sustaining by 2015, §18031(d)(5)(A). A State would have much less reason to take on these burdens if its citizens could receive tax credits no matter who establishes its Exchange. (Now that the Internal Revenue Service has interpreted §36B to authorize tax credits everywhere, by the way, 34 States have failed to set up their own Exchanges. Ante, at 6.) So even if making credits available on all Exchanges advances the goal of improving healthcare markets, it frustrates the goal of encouraging state involvement in the implementation of the Act. This is what justifies going out of our way to read “established by the State” to mean “established by the State or not established by the State”? Worst of all for the repute of today’s decision, the Court’s reasoning is largely self-defeating. The Court predicts that making tax credits unavailable in States that do not set up their own Exchanges would cause disastrous economic consequences there. If that is so, however, wouldn’t one expect States to react by setting up their own Exchanges? And wouldn’t that outcome satisfy two of the Act’s goals rather than just one: enabling the Act’s reforms to work and promoting state involvement in the Act’s implementation? The Court protests that the very existence of a federal fallback shows that Congress expected that some States might fail to set up their own Exchanges. Ante, at 19. So it does. It does not show, however, that Congress expected the number of recalcitrant States to be particularly large. The more accurate the Court’s dire economic predictions, the smaller that number is likely to be. That reality destroys the Court’s pretense that applying the law as written would imperil “the viability of the entire Affordable Care Act.” Ante, at 20. All in all, the Court’s arguments about the law’s purpose and design are no more convincing than its arguments about context. IV Perhaps sensing the dismal failure of its efforts to show that “established by the State” means “established by the State or the Federal Government,” the Court tries to palm off the pertinent statutory phrase as “inartful drafting.” Ante, at 14. This Court, however, has no free-floating power “to rescue Congress from its drafting errors.” Lamie v. United States Trustee , 540 U. S. 526, 542 (2004) (internal quotation marks omitted). Only when it is patently obvious to a reasonable reader that a drafting mistake has occurred may a court correct the mistake. The occurrence of a misprint may be apparent from the face of the law, as it is where the Affordable Care Act “creates three separate Section 1563s.” Ante, at 14. But the Court does not pretend that there is any such indication of a drafting error on the face of §36B. The occurrence of a misprint may also be apparent because a provision decrees an absurd result—a consequence “so monstrous, that all mankind would, without hesitation, unite in rejecting the application.” Sturges , 4 Wheat., at 203. But §36B does not come remotely close to satisfying that demanding standard. It is entirely plausible that tax credits were restricted to state Exchanges deliberately—for example,in order to encourage States to establish their own Exchanges. We therefore have no authority to dismiss the terms of the law as a drafting fumble. Let us not forget that the term “Exchange established by the State” appears twice in §36B and five more times in other parts of the Act that mention tax credits. What are the odds, do you think, that the same slip of the pen occurred in seven separate places? No provision of the Act—none at all—contradicts the limitation of tax credits to state Exchanges. And as I have already explained, uses of the term “Exchange established by the State” beyond the context of tax credits look anything but accidental. Supra, at 6. If there was a mistake here, context suggests it was a substantive mistake in designing this part of the law, not a technical mistake in transcribing it. V The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress “[a]ll legislative Powers” enumerated in the Constitution. Art. I, §1. They made Congress, not this Court, responsible for both making laws and mending them. This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. We must always remember, therefore, that “[o]ur task is to apply the text, not to improve upon it.” Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries Corp. , 493 U. S. 120, 126 (1989) . Trying to make its judge-empowering approach seem respectful of congressional authority, the Court asserts that its decision merely ensures that the Affordable Care Act operates the way Congress “meant [it] to operate.” Ante, at 17. First of all, what makes the Court so sure that Congress “meant” tax credits to be available everywhere? Our only evidence of what Congress meant comes from the terms of the law, and those terms show beyond all question that tax credits are available only on state Exchanges. More importantly, the Court forgets that ours is a government of laws and not of men. That means we are governed by the terms of our laws, not by the unen-acted will of our lawmakers. “If Congress enacted into law something different from what it intended, then it should amend the statute to conform to its intent.” Lamie , supra , at 542. In the meantime, this Court “has no roving license . . . to disregard clear language simply on the view that . . . Congress ‘must have intended’ something broader.” Bay Mills , 572 U. S., at ___ (slip op., at 11). Even less defensible, if possible, is the Court’s claim that its interpretive approach is justified because this Act “does not reflect the type of care and deliberation that one might expect of such significant legislation.” Ante, at 14–15. It is not our place to judge the quality of the care and deliberation that went into this or any other law. A law enacted by voice vote with no deliberation whatever is fully as binding upon us as one enacted after years of study, months of committee hearings, and weeks of debate. Much less is it our place to make everything come out right when Congress does not do its job properly. It is up to Congress to design its laws with care, and it is up to the people to hold them to account if they fail to carry out that responsibility. Rather than rewriting the law under the pretense of interpreting it, the Court should have left it to Congress to decide what to do about the Act’s limitation of tax credits to state Exchanges. If Congress values above everything else the Act’s applicability across the country, it could make tax credits available in every Exchange. If it prizes state involvement in the Act’s implementation, it could continue to limit tax credits to state Exchanges while taking other steps to mitigate the economic consequences predicted by the Court. If Congress wants to accommodate both goals, it could make tax credits available everywhere while offering new incentives for States to set up their own Exchanges. And if Congress thinks that the present design of the Act works well enough, it could do nothing. Congress could also do something else alto-gether, entirely abandoning the structure of the Affordable Care Act. The Court’s insistence on making a choice that should be made by Congress both aggrandizes judicial power and encourages congressional lassitude. Just ponder the significance of the Court’s decision to take matters into its own hands. The Court’s revision of the law authorizes the Internal Revenue Service to spend tens of billions of dollars every year in tax credits on federal Exchanges. It affects the price of insurance for millions of Americans. It diminishes the participation of the States in the implementation of the Act. It vastly expands the reach of the Act’s individual mandate, whose scope depends in part on the availability of credits. What a parody today’s decision makes of Hamilton’s assurances to the people of New York: “The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over . . . the purse; no direction . . . of the wealth of society, and can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961). *  *  * Today’s opinion changes the usual rules of statutory interpretation for the sake of the Affordable Care Act. That, alas, is not a novelty. In National Federation of Independent Business v. Sebelius , 567 U. S. ___, this Court revised major components of the statute in order to save them from unconstitutionality. The Act that Congress passed provides that every individual “shall” maintain insurance or else pay a “penalty.” 26 U. S. C. §5000A. This Court, however, saw that the Commerce Clause does not authorize a federal mandate to buy health insurance. So it rewrote the mandate-cum-penalty as a tax. 567 U. S., at ___–___ (principal opinion) (slip op., at 15–45). The Act that Congress passed also requires every State to accept an expansion of its Medicaid program, or else risk losing all Medicaid funding. 42 U. S. C. §1396c. This Court, however, saw that the Spending Clause does not authorize this coercive condition. So it rewrote the law to withhold only the incremental funds associated with the Medicaid expansion. 567 U. S., at ___–___ (principal opinion) (slip op., at 45–58). Having transformed two major parts of the law, the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an “Exchange established by the State.” This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare. Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites. I dissent.

The Supreme Court ruled that the Patient Protection and Affordable Care Act allows tax credits to be provided to individuals in states that have a Federal Exchange, not just those with state-established exchanges. The Act includes a series of reforms to expand health insurance coverage, including requiring individuals to maintain insurance or pay a penalty, and providing tax credits to make insurance more affordable. The Act also mandates the creation of an "Exchange" in each state, allowing individuals to compare and purchase insurance plans. The Court's decision ensures that individuals in all states, regardless of whether their state established its own Exchange, are eligible for tax credits to help purchase insurance.

Immigration & National Security

Padilla v. Kentucky

https://supreme.justia.com/cases/federal/us/559/356/

OPINION OF THE COURT PADILLA V. KENTUCKY 559 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-651 JOSE PADILLA, PETITIONER v. KENTUCKY on writ of certiorari to the supreme court of kentucky [March 31, 2010]    Justice Stevens delivered the opinion of the Court.    Petitioner Jose Padilla, a native of Honduras, has been a lawful permanent resident of the United States for more than 40 years. Padilla served this Nation with honor as a member of the U. S. Armed Forces during the Vietnam War. He now faces deportation after pleading guilty to the transportation of a large amount of marijuana in his tractor-trailer in the Commonwealth of Kentucky.[ Footnote 1 ]    In this postconviction proceeding, Padilla claims that his counsel not only failed to advise him of this consequence prior to his entering the plea, but also told him that he “ ‘did not have to worry about immigration status since he had been in the country so long.’ ” 253 S. W. 3d 482, 483 (Ky. 2008). Padilla relied on his counsel’s erroneous advice when he pleaded guilty to the drug charges that made his deportation virtually mandatory. He alleges that he would have insisted on going to trial if he had not received incorrect advice from his attorney.    Assuming the truth of his allegations, the Supreme Court of Kentucky denied Padilla postconviction relief without the benefit of an evidentiary hearing. The court held that the Sixth Amendment’s guarantee of effective assistance of counsel does not protect a criminal defendant from erroneous advice about deportation because it is merely a “collateral” consequence of his conviction. Id. , at 485. In its view, neither counsel’s failure to advise petitioner about the possibility of removal, nor counsel’s incorrect advice, could provide a basis for relief.    We granted certiorari, 555 U. S. ___ (2009), to decide whether, as a matter of federal law, Padilla’s counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country. We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation. Whether he is entitled to relief depends on whether he has been prejudiced, a matter that we do not address. I    The landscape of federal immigration law has changed dramatically over the last 90 years. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation. The “drastic measure” of deportation or removal, Fong Haw Tan v. Phelan , 333 U. S. 6 , 10 (1948), is now virtually inevitable for a vast number of noncitizens convicted of crimes.    The Nation’s first 100 years was “a period of unimpeded immigration.” C. Gordon & H. Rosenfield, Immigration Law and Procedure §1.(2)(a), p. 5 (1959). An early effort to empower the President to order the deportation of those immigrants he “judge[d] dangerous to the peace and safety of the United States,” Act of June 25, 1798, ch. 58, 1 Stat. 571, was short lived and unpopular. Gordon §1.2, at 5. It was not until 1875 that Congress first passed a statute barring convicts and prostitutes from entering the country, Act of Mar. 3, 1875, ch. 141, 18 Stat. 477. Gordon §1.2b, at 6. In 1891, Congress added to the list of excludable persons those “who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude.” Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084.[ Footnote 2 ]    The Immigration and Nationality Act of 1917 (1917 Act) brought “radical changes” to our law. S. Rep. No. 1515, 81st Cong., 2d Sess., pp. 54–55 (1950). For the first time in our history, Congress made classes of noncitizens deportable based on conduct committed on American soil. Id. , at 55. Section 19 of the 1917 Act authorized the deportation of “any alien who is hereafter sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United States … .” 39 Stat. 889. And §19 also rendered deportable noncitizen recidivists who commit two or more crimes of moral turpitude at any time after entry. Ibid. Congress did not, however, define the term “moral turpitude.”    While the 1917 Act was “radical” because it authorized deportation as a consequence of certain convictions, the Act also included a critically important procedural protection to minimize the risk of unjust deportation: At the time of sentencing or within 30 days thereafter, the sentencing judge in both state and federal prosecutions had the power to make a recommendation “that such alien shall not be deported.” Id., at 890.[ Footnote 3 ] This procedure, known as a judicial recommendation against deportation, or JRAD, had the effect of binding the Executive to prevent deportation; the statute was “consistently … interpreted as giving the sentencing judge conclusive authority to decide whether a particular conviction should be disregarded as a basis for deportation,” Janvier v. United States , 793 F. 2d 449, 452 (CA2 1986). Thus, from 1917 forward, there was no such creature as an automatically deportable offense. Even as the class of deportable offenses expanded, judges retained discretion to ameliorate unjust results on a case-by-case basis.    Although narcotics offenses—such as the offense at issue in this case—provided a distinct basis for deportation as early as 1922,[ Footnote 4 ] the JRAD procedure was generally available to avoid deportation in narcotics convictions. See United States v. O’Rourke , 213 F. 2d 759, 762 (CA8 1954). Except for “technical, inadvertent and insignificant violations of the laws relating to narcotics,” ibid. , it appears that courts treated narcotics offenses as crimes involving moral turpitude for purposes of the 1917 Act’s broad JRAD provision. See ibid. (recognizing that until 1952 a JRAD in a narcotics case “was effective to prevent deportation” (citing Dang Nam v. Bryan , 74 F. 2d 379, 380–381 (CA9 1934))).    In light of both the steady expansion of deportable offenses and the significant ameliorative effect of a JRAD, it is unsurprising that, in the wake of Strickland v. Washington , 466 U. S. 668 (1984), the Second Circuit held that the Sixth Amendment right to effective assistance of counsel applies to a JRAD request or lack thereof, see Janvier, 793 F. 2d 449. See also United States v. Castro , 26 F. 3d 557 (CA5 1994). In its view, seeking a JRAD was “part of the sentencing” process, Janvier , 793 F. 2d, at 452, even if deportation itself is a civil action. Under the Second Circuit’s reasoning, the impact of a conviction on a noncitizen’s ability to remain in the country was a central issue to be resolved during the sentencing process—not merely a collateral matter outside the scope of counsel’s duty to provide effective representation.    However, the JRAD procedure is no longer part of our law. Congress first circumscribed the JRAD provision in the 1952 Immigration and Nationality Act (INA),[ Footnote 5 ] and in 1990 Congress entirely eliminated it, 104 Stat. 5050. In 1996, Congress also eliminated the Attorney General’s authority to grant discretionary relief from deportation, 110 Stat. 3009–596, an authority that had been exercised to prevent the deportation of over 10,000 noncitizens during the 5-year period prior to 1996, INS v. St. Cyr , 533 U. S. 289 , 296 (2001). Under contemporary law, if a noncitizen has committed a removable offense after the 1996 effective date of these amendments, his removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses.[ Footnote 6 ] See 8 U. S. C. §1229b. Subject to limited exceptions, this discretionary relief is not available for an offense related to trafficking in a controlled substance. See §1101(a)(43)(B); §1228.    These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important. These changes confirm our view that, as a matter of federal law, deportation is an integral part—indeed, sometimes the most important part [ Footnote 7 ]—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. II    Before deciding whether to plead guilty, a defendant is entitled to “the effective assistance of competent counsel.” McMann v. Richardson , 397 U. S. 759 , 771 (1970); Strickland , 466 U. S., at 686. The Supreme Court of Kentucky rejected Padilla’s ineffectiveness claim on the ground that the advice he sought about the risk of deportation concerned only collateral matters, i.e. , those matters not within the sentencing authority of the state trial court.[ Footnote 8 ] 253 S. W. 3d, at 483–484 (citing Commonwealth v. Fuartado , 170 S. W. 3d 384 (2005)). In its view, “collateral consequences are outside the scope of representation required by the Sixth Amendment,” and, therefore, the “failure of defense counsel to advise the defendant of possible deportation consequences is not cognizable as a claim for ineffective assistance of counsel.” 253 S. W. 3d, at 483. The Kentucky high court is far from alone in this view.[ Footnote 9 ]    We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strickland , 466 U. S., at 689. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.    We have long recognized that deportation is a particularly severe “penalty,” Fong Yue Ting v. United States , 149 U. S. 698 , 740 (1893); but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature, see INS v. Lopez-Mendoza , 468 U. S. 1032 , 1038 (1984), deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century, see Part I, supra , at 2–7. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it “most difficult” to divorce the penalty from the conviction in the deportation context. United States v. Russell , 686 F. 2d 35, 38 (CADC 1982). Moreover, we are quite confident that noncitizen defendants facing a risk of deportation for a particular offense find it even more difficult. See St. Cyr , 533 U. S., at 322 (“There can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions”).    Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla’s claim. III    Under Strickland , we first determine whether counsel’s representation “fell below an objective standard of reasonableness.” 466 U. S., at 688. Then we ask whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. , at 694. The first prong—constitu-tional deficiency—is necessarily linked to the practice and expectations of the legal community: “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id. , at 688. We long have recognized that “[p]revailing norms of practice as reflected in American Bar Association standards and the like … are guides to determining what is reasonable … .” Ibid.; Bobby v. Van Hook , 558 U. S. ___, ___ (2009) (per curiam) (slip op., at 3); Florida v. Nixon , 543 U. S. 175 , 191, and n. 6 (2004); Wiggins v. Smith, 539 U. S. 510 , 524 (2003); Williams v. Taylor , 529 U. S. 362 , 396 (2000). Although they are “only guides,” Strickland , 466 U. S., at 688, and not “inexorable commands,” Bobby , 558 U. S., at ___ (slip op., at 5), these standards may be valuable measures of the prevailing professional norms of effective representation, especially as these standards have been adapted to deal with the intersection of modern criminal prosecutions and immigration law.    The weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation. National Legal Aid and Defender Assn., Performance Guidelines for Criminal Representation §6.2 (1995); G. Herman, Plea Bargaining §3.03, pp. 20–21 (1997); Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 713–718 (2002); A. Campbell, Law of Sentencing §13:23, pp. 555, 560 (3d ed. 2004); Dept. of Justice, Office of Justice Programs, 2 Compendium of Standards for Indigent Defense Systems, Standards for Attorney Performance, pp. D10, H8–H9, J8 (2000) (providing survey of guidelines across multiple jurisdictions); ABA Standards for Criminal Justice, Prosecution Function and Defense Function 4–5.1(a), p. 197 (3d ed. 1993); ABA Standards for Criminal Justice, Pleas of Guilty 14–3.2(f), p. 116 (3d ed. 1999). “[A]uthorities of every stripe—including the American Bar Association, criminal defense and public defender organizations, authoritative treatises, and state and city bar publications—universally require defense attorneys to advise as to the risk of deportation consequences for non-citizen clients … .” Brief for Legal Ethics, Criminal Procedure, and Criminal Law Professors as Amici Curiae 12–14 (footnotes omitted) (citing, inter alia , National Legal Aid and Defender Assn., Guidelines, supra, §§6.2–6.4 (1997); S. Bratton & E. Kelley, Practice Points: Representing a Noncitizen in a Criminal Case, 31 The Champion 61 (Jan./Feb. 2007); N. Tooby, Criminal Defense of Immigrants §1.3 (3d ed. 2003); 2 Criminal Practice Manual §§45:3, 45:15 (2009)). We too have previously recognized that “ ‘[p]reserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.’ ” St. Cyr , 533 U. S., at 323 (quoting 3 Criminal Defense Techniques §§60A.01, 60A.02[2] (1999)). Likewise, we have recognized that “preserving the possibility of” discretionary relief from deportation under §212(c) of the 1952 INA, 66 Stat. 187, repealed by Congress in 1996, “would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial.” St. Cyr , 533 U. S., at 323. We expected that counsel who were unaware of the discretionary relief measures would “follo[w] the advice of numerous practice guides” to advise themselves of the importance of this particular form of discretionary relief. Ibid., n. 50. In the instant case, the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla’s conviction. See 8 U. S. C. §1227(a)(2)(B)(i) (“Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States or a foreign country relating to a controlled substance … , other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable”). Padilla’s counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses. Instead, Padilla’s counsel provided him false assurance that his conviction would not result in his removal from this country. This is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect. Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by Justice Alito), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.[ Footnote 10 ] But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear. Accepting his allegations as true, Padilla has sufficiently alleged constitutional deficiency to satisfy the first prong of Strickland . Whether Padilla is entitled to relief on his claim will depend on whether he can satisfy Strickland ’s second prong, prejudice, a matter we leave to the Kentucky courts to consider in the first instance. IV The Solicitor General has urged us to conclude that Strickland applies to Padilla’s claim only to the extent that he has alleged affirmative misadvice. In the United States’ view, “counsel is not constitutionally required to provide advice on matters that will not be decided in the criminal case … ,” though counsel is required to provide accurate advice if she chooses to discusses these matters. Brief for United States as Amicus Curiae 10. Respondent and Padilla both find the Solicitor General’s proposed rule unpersuasive, although it has support among the lower courts. See, e.g. , United States v. Couto , 311 F. 3d 179, 188 (CA2 2002); United States v. Kwan , 407 F. 3d 1005 (CA9 2005); Sparks v. Sowders , 852 F. 2d 882 (CA6 1988); United States v. Russell , 686 F. 2d 35 (CADC 1982); State v. Rojas-Martinez , 2005 UT 86, 125 P. 3d 930, 935; In re Resendiz , 25 Cal. 4th 230, 19 P. 3d 1171 (2001). Kentucky describes these decisions isolating an affirmative misadvice claim as “result-driven, incestuous … [,and] completely lacking in legal or rational bases.” Brief for Respondent 31. We do not share that view, but we agree that there is no relevant difference “between an act of commission and an act of omission” in this context. Id. , at 30; Strickland , 466 U. S., at 690 (“The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance”); see also State v. Paredez , 2004–NMSC–036, 136 N. M. 533, 538–539. A holding limited to affirmative misadvice would invite two absurd results. First, it would give counsel an incentive to remain silent on matters of great importance, even when answers are readily available. Silence under these circumstances would be fundamentally at odds with the critical obligation of counsel to advise the client of “the advantages and disadvantages of a plea agreement.” Libretti v. United States , 516 U. S. 29 , 50–51 (1995). When attorneys know that their clients face possible exile from this country and separation from their families, they should not be encouraged to say nothing at all.[ Footnote 11 ] Second, it would deny a class of clients least able to represent themselves the most rudimentary advice on deportation even when it is readily available. It is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so “clearly satisfies the first prong of the Strickland analysis.” Hill v. Lockhart , 474 U. S. 52 , 62 (1985) (White, J., concurring in judgment). We have given serious consideration to the concerns that the Solicitor General, respondent, and amici have stressed regarding the importance of protecting the finality of convictions obtained through guilty pleas. We confronted a similar “floodgates” concern in Hill , see id., at 58, but nevertheless applied Strickland to a claim that counsel had failed to advise the client regarding his parole eligibility before he pleaded guilty.[ Footnote 12 ] A flood did not follow in that decision’s wake. Surmounting Strickland ’s high bar is never an easy task. See, e.g. , 466 U. S., at 689 (“Judicial scrutiny of counsel’s performance must be highly deferential”); id. , at 693 (observing that “[a]ttorney errors … are as likely to be utterly harmless in a particular case as they are to be prejudicial”). Moreover, to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances. See Roe v. Flores-Ortega , 528 U. S. 470 , 480, 486 (2000). There is no reason to doubt that lower courts—now quite experienced with applying Strickland —can effectively and efficiently use its framework to separate specious claims from those with substantial merit. It seems unlikely that our decision today will have a significant effect on those convictions already obtained as the result of plea bargains. For at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client’s plea. See, supra , at 11–13. We should, therefore, presume that counsel satisfied their obligation to render competent advice at the time their clients considered pleading guilty. Strickland , 466 U. S., at 689. Likewise, although we must be especially careful about recognizing new grounds for attacking the validity of guilty pleas, in the 25 years since we first applied Strickland to claims of ineffective assistance at the plea stage, practice has shown that pleas are less frequently the subject of collateral challenges than convictions obtained after a trial. Pleas account for nearly 95% of all criminal convictions.[ Footnote 13 ] But they account for only approximately 30% of the habeas petitions filed.[ Footnote 14 ] The nature of relief secured by a successful collateral challenge to a guilty plea—an opportunity to withdraw the plea and proceed to trial—imposes its own significant limiting principle: Those who collaterally attack their guilty pleas lose the benefit of the bargain obtained as a result of the plea. Thus, a different calculus informs whether it is wise to challenge a guilty plea in a habeas proceeding because, ultimately, the challenge may result in a less favorable outcome for the defendant, whereas a collateral challenge to a conviction obtained after a jury trial has no similar downside potential. Finally, informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties. As in this case, a criminal episode may provide the basis for multiple charges, of which only a subset mandate deportation following conviction. Counsel who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence. At the same time, the threat of deportation may provide the defendant with a powerful incentive to plead guilty to an offense that does not mandate that penalty in exchange for a dismissal of a charge that does. In sum, we have long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel. Hill , 474 U. S., at 57; see also Richardson , 397 U. S., at 770–771. The severity of deportation—“the equivalent of banishment or exile,” Delgadillo v. Carmichael , 332 U. S. 388 , 390–391 (1947)—only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation.[ Footnote 15 ] V It is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the “mercies of incompetent counsel.” Richardson , 397 U. S., at 771. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less. Taking as true the basis for his motion for postconviction relief, we have little difficulty concluding that Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether Padilla is entitled to relief will depend on whether he can demonstrate prejudice as a result thereof, a question we do not reach because it was not passed on below. See Verizon Communications Inc. v. FCC , 535 U. S. 467 , 530 (2002). The judgment of the Supreme Court of Kentucky is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 Padilla’s crime, like virtually every drug offense except for only the most insignificant marijuana offenses, is a deportable offense under 8 U. S. C. §1227(a)(2)(B)(i). Footnote 2 In 1907, Congress expanded the class of excluded persons to include individuals who “admit” to having committed a crime of moral turpitude. Act of Feb. 20, 1907, ch. 1134, 34 Stat. 899. Footnote 3 As enacted, the statute provided: “That the provision of this section respecting the deportation of aliens convicted of a crime involving moral turpitude shall not apply to one who has been pardoned, nor shall such deportation be made or directed if the court, or judge thereof, sentencing such alien for such crime shall, at the time of imposing judgment or passing sentence or within thirty days thereafter, … make a recommendation to the Secretary of Labor that such alien shall not be deported in pursuance of this Act.” 1917 Act, 39 Stat. 889–890. This provision was codified in 8 U. S. C. §1251(b) (1994 ed.) (transferred to §1227 (2006 ed. )). The judge’s nondeportation recommendation was binding on the Secretary of Labor and, later, the Attorney General after control of immigration removal matters was transferred from the former to the latter. See Janvier v. United States , 793 F. 2d 449, 452 (CA2 1986). Footnote 4 Congress first identified narcotics offenses as a special category of crimes triggering deportation in the 1922 Narcotic Drug Act. Act of May 26, 1922, ch. 202, 42 Stat. 596. After the 1922 Act took effect, there was some initial confusion over whether a narcotics offense also had to be a crime of moral turpitude for an individual to be deportable. See Weedin v. Moy Fat , 8 F. 2d 488, 489 (CA9 1925) (holding that an individual who committed narcotics offense was not deportable because offense did not involve moral turpitude). However, lower courts eventually agreed that the narcotics offense provision was “special,” Chung Que Fong v. Nagle , 15 F. 2d 789, 790 (CA9 1926); thus, a narcotics offense did not need also to be a crime of moral turpitude (or to satisfy other requirements of the 1917 Act) to trigger deportation. See United States ex rel. Grimaldi v. Ebey , 12 F. 2d 922, 923 (CA7 1926); Todaro v. Munster , 62 F. 2d 963, 964 (CA10 1933). Footnote 5 The Act separately codified the moral turpitude offense provision and the narcotics offense provision within 8 U. S. C. §1251(a) (1994 ed.) under subsections (a)(4) and (a)(11), respectively. See 66 Stat. 201, 204, 206. The JRAD procedure, codified in 8 U. S. C. §1251(b) (1994 ed.), applied only to the “provisions of subsection (a)(4),” the crimes-of-moral-turpitude provision. 66 Stat. 208; see United States v. O’Rourke , 213 F. 2d 759, 762 (CA8 1954) (recognizing that, under the 1952 Act, narcotics offenses were no longer eligible for JRADs). Footnote 6 The changes to our immigration law have also involved a change in nomenclature; the statutory text now uses the term “removal” rather than “deportation.” See Calcano-Martinez v. INS , 533 U. S. 348 , 350, n. 1 (2001). Footnote 7 See Brief for Asian American Justice Center et al. as Amici Curiae 12–27 (providing real-world examples). Footnote 8 There is some disagreement among the courts over how to distinguish between direct and collateral consequences. See Roberts, Ignorance is Effectively Bliss: Collateral Consequences, Silence, and Misinformation in the Guilty-Plea Process, 95 Iowa L. Rev. 119, 124, n. 15 (2009). The disagreement over how to apply the direct/collateral distinction has no bearing on the disposition of this case because, as even Justice Alito agrees, counsel must, at the very least, advise a noncitizen “defendant that a criminal conviction may have adverse immigration consequences,” post , at 1 (opinion concurring in judgment). See also post , at 14 (“I do not mean to suggest that the Sixth Amendment does no more than require defense counsel to avoid misinformation”). In his concurring opinion, Justice Alito has thus departed from the strict rule applied by the Supreme Court of Kentucky and in the two federal cases that he cites, post , at 2. Footnote 9 See, e.g. , United States v. Gonzalez , 202 F. 3d 20 (CA1 2000); United States v. Del Rosario , 902 F. 2d 55 (CADC 1990); United States v. Yearwood , 863 F. 2d 6 (CA4 1988); Santos-Sanchez v. United States , 548 F. 3d 327 (CA5 2008); Broomes v. Ashcroft , 358 F. 3d 1251 (CA10 2004); United States v. Campbell , 778 F. 2d 764 (CA11 1985); Oyekoya v. State , 558 So. 2d 990 (Ala. Ct. Crim. App. 1989); State v. Rosas , 183 Ariz. 421, 904 P. 2d 1245 (App. 1995); State v. Montalban , 2000–2739 (La. 2/26/02), 810 So. 2d 1106; Commonwealth v. Frometa , 520 Pa. 552, 555 A. 2d 92 (1989). Footnote 10 As Justice Alito explains at length, deportation consequences are often unclear. Lack of clarity in the law, however, does not obviate the need for counsel to say something about the possibility of deportation, even though it will affect the scope and nature of counsel’s advice. Footnote 11 As the Commonwealth conceded at oral argument, were a defendant’s lawyer to know that a particular offense would result in the client’s deportation and that, upon deportation, the client and his family might well be killed due to circumstances in the client’s home country, any decent attorney would inform the client of the consequences of his plea. Tr. of Oral Arg. 37–38. We think the same result should follow when the stakes are not life and death but merely “banishment or exile,” Delgadillo v. Carmichael , 332 U. S. 388 , 390–391 (1947). Footnote 12 However, we concluded that, even though Strickland applied to petitioner’s claim, he had not sufficiently alleged prejudice to satisfy Strickland ’s second prong. Hill , 474 U. S., at 59–60. This disposition further underscores the fact that it is often quite difficult for petitioners who have acknowledged their guilt to satisfy Strickland ’s prejudice prong. Justice Alito believes that the Court misreads Hill , post , at 10–11. In Hill , the Court recognized—for the first time—that Strickland applies to advice respecting a guilty plea. 474 U. S., at 58 (“We hold, therefore, that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel”). It is true that Hill does not control the question before us. But its import is nevertheless clear. Whether Strickland applies to Padilla’s claim follows from Hill , regardless of the fact that the Hill Court did not resolve the particular question respecting misadvice that was before it. Footnote 13 See Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 2003, p. 418 (31st ed. 2005) (Table 5.17) (only approximately 5%, or 8,612 out of 68,533, of federal criminal prosecutions go to trial); id. , at 450 (Table 5.46) (only approximately 5% of all state felony criminal prosecutions go to trial). Footnote 14 See V. Flango, National Center for State Courts, Habeas Corpus in State and Federal Courts 36–38 (1994) (demonstrating that 5% of defendants whose conviction was the result of a trial account for approximately 70% of the habeas petitions filed). Footnote 15 To this end, we find it significant that the plea form currently used in Kentucky courts provides notice of possible immigration consequences. Ky. Admin. Office of Courts, Motion to Enter Guilty Plea, Form AOC–491 (Rev. 2/2003), http://courts.ky.gov/NR/rdonlyres/ 55E1F54E-ED5C-4A30-B1D5-4C43C7ADD63C/0/491.pdf (as visited Mar. 29, 2010, and available in Clerk of Court’s case file). Further, many States require trial courts to advise defendants of possible immigration consequences. See, e.g. , Alaska Rule Crim. Proc. 11(c)(3)(C) (2009–2010); Cal. Penal Code Ann. §1016.5 (West 2008); Conn. Gen. Stat. §54–1j (2009); D. C. Code §16–713 (2001); Fla. Rule Crim. Proc. 3.172(c)(8) (Supp. 2010); Ga. Code Ann. §17–7–93(c) (1997); Haw. Rev. Stat. Ann. §802E–2 (2007); Iowa Rule Crim. Proc. 2.8(2) (b) (3) (Supp. 2009); Md. Rule 4–242 (Lexis 2009); Mass. Gen. Laws, ch. 278, §29D (2009); Minn. Rule Crim. Proc. 15.01 (2009); Mont. Code Ann. §46–12–210 (2009); N. M. Rule Crim. Form 9–406 (2009); N. Y. Crim. Proc. Law Ann. §220.50(7) (West Supp. 2009); N. C. Gen. Stat. Ann. §15A–1022 (Lexis 2007); Ohio Rev. Code Ann. §2943.031 (West 2006); Ore. Rev. Stat. §135.385 (2007); R. I. Gen. Laws §12–12–22 (Lexis Supp. 2008); Tex. Code. Ann. Crim. Proc., Art. 26.13(a)(4) (Vernon Supp. 2009); Vt. Stat. Ann., Tit. 13, §6565(c)(1) (Supp. 2009); Wash. Rev. Code §10.40.200 (2008); Wis. Stat. §971.08 (2005–2006). ALITO, J., CONCURRING IN JUDGMENT PADILLA V. KENTUCKY 559 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-651 JOSE PADILLA, PETITIONER v. KENTUCKY on writ of certiorari to the supreme court of kentucky [March 31, 2010]    Justice Alito, with whom The Chief Justice joins, concurring in the judgment.    I concur in the judgment because a criminal defense attorney fails to provide effective assistance within the meaning of Strickland v. Washington , 466 U. S. 668 (1984), if the attorney misleads a noncitizen client regarding the removal consequences of a conviction. In my view, such an attorney must (1) refrain from unreasonably providing incorrect advice and (2) advise the defendant that a criminal conviction may have adverse immigration consequences and that, if the alien wants advice on this issue, the alien should consult an immigration attorney. I do not agree with the Court that the attorney must attempt to explain what those consequences may be. As the Court concedes, “[i]mmigration law can be complex”; “it is a legal specialty of its own”; and “[s]ome members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it.” Ante , at 11. The Court nevertheless holds that a criminal defense attorney must provide advice in this specialized area in those cases in which the law is “succinct and straightforward”—but not, perhaps, in other situations. Ante , at 11–12. This vague, halfway test will lead to much confusion and needless litigation. I    Under Strickland , an attorney provides ineffective assistance if the attorney’s representation does not meet reasonable professional standards. 466 U. S., at 688. Until today, the longstanding and unanimous position of the federal courts was that reasonable defense counsel generally need only advise a client about the direct consequences of a criminal conviction. See, e.g. , United States v . Gonzalez , 202 F. 3d 20, 28 (CA1 2000) (ineffective-assistance-of-counsel claim fails if “based on an attorney’s failure to advise a client of his plea’s immigration consequences”); United States v. Banda , 1 F. 3d 354, 355 (CA5 1993) (holding that “an attorney’s failure to advise a client that deportation is a possible consequence of a guilty plea does not constitute ineffective assistance of counsel”); see generally Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 699 (2002) (hereinafter Chin & Holmes) (noting that “virtually all jurisdictions”—including “eleven federal circuits, more than thirty states, and the District of Columbia”—“hold that defense counsel need not discuss with their clients the collateral consequences of a conviction,” including deportation). While the line between “direct” and “collateral” consequences is not always clear, see ante, at 7, n. 8, the collateral-consequences rule expresses an important truth: Criminal defense attorneys have expertise regarding the conduct of criminal proceedings. They are not expected to possess—and very often do not possess—expertise in other areas of the law, and it is unrealistic to expect them to provide expert advice on matters that lie outside their area of training and experience.    This case happens to involve removal, but criminal convictions can carry a wide variety of consequences other than conviction and sentencing, including civil commitment, civil forfeiture, the loss of the right to vote, disqualification from public benefits, ineligibility to possess firearms, dishonorable discharge from the Armed Forces, and loss of business or professional licenses. Chin & Holmes 705–706. A criminal conviction may also severely damage a defendant’s reputation and thus impair the defendant’s ability to obtain future employment or business opportunities. All of those consequences are “seriou[s],” see ante , at 17, but this Court has never held that a criminal defense attorney’s Sixth Amendment duties extend to providing advice about such matters.    The Court tries to justify its dramatic departure from precedent by pointing to the views of various professional organizations. See ante , at 9 (“The weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation”). However, ascertaining the level of professional competence required by the Sixth Amendment is ultimately a task for the courts. E.g. , Roe v. Flores-Ortega , 528 U. S. 470 , 477 (2000). Although we may appropriately consult standards promulgated by private bar groups, we cannot delegate to these groups our task of determining what the Constitution commands. See Strickland , supra, at 688 (explaining that “[p]revailing norms of practice as reflected in American Bar Association standards … are guides to determining what is reasonable, but they are only guides”). And we must recognize that such standards may represent only the aspirations of a bar group rather than an empirical assessment of actual practice.    Even if the only relevant consideration were “prevailing professional norms,” it is hard to see how those norms can support the duty the Court today imposes on defense counsel. Because many criminal defense attorneys have little understanding of immigration law, see ante , at 11, it should follow that a criminal defense attorney who refrains from providing immigration advice does not violate prevailing professional norms. But the Court’s opinion would not just require defense counsel to warn the client of a general risk of removal; it would also require counsel in at least some cases, to specify what the removal consequences of a conviction would be. See ante , at 11–12 . The Court’s new approach is particularly problematic because providing advice on whether a conviction for a particular offense will make an alien removable is often quite complex. “Most crimes affecting immigration status are not specifically mentioned by the [Immigration and Nationality Act (INA)], but instead fall under a broad category of crimes, such as crimes involving moral turpitude or aggravated felonies .” M. Garcia & L. Eig, CRS Report for Congress, Immigration Consequences of Criminal Activity (Sept. 20, 2006) (summary) (emphasis in original). As has been widely acknowledged, determining whether a particular crime is an “aggravated felony” or a “crime involving moral turpitude [(CIMT)]” is not an easy task. See R. McWhirter, ABA, The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers 128 (2d ed. 2006) (hereinafter ABA Guidebook) (“Because of the increased complexity of aggravated felony law, this edition devotes a new [30-page] chapter to the subject”); id ., §5.2, at 146 (stating that the aggravated felony list at 8 U. S. C. §1101(a)(43) is not clear with respect to several of the listed categories, that “the term ‘aggravated felonies’ can include misdemeanors,” and that the determination of whether a crime is an “aggravated felony” is made “even more difficult” because “several agencies and courts interpret the statute,” including Immigration and Customs Enforcement, the Board of Immigration Appeals (BIA), and Federal Circuit and district courts considering immigration-law and criminal-law issues); ABA Guidebook §4.65, at 130 (“Because nothing is ever simple with immigration law, the terms ‘conviction,’ ‘moral turpitude,’ and ‘single scheme of criminal misconduct’ are terms of art”); id., §4.67, at 130 (“[T]he term ‘moral turpitude’ evades precise definition”).    Defense counsel who consults a guidebook on whether a particular crime is an “aggravated felony” will often find that the answer is not ‘‘easily ascertained.” For example, the ABA Guidebook answers the question “Does simple possession count as an aggravated felony?” as follows: “Yes, at least in the Ninth Circuit .” §5.35, at 160 (emphasis added). After a dizzying paragraph that attempts to explain the evolution of the Ninth Circuit’s view, the ABA Guidebook continues: “Adding to the confusion, however, is that the Ninth Circuit has conflicting opinions depending on the context on whether simple drug possession constitutes an aggravated felony under 8 U. S. C. §1101(a)(43).” Id. , §5.35, at 161 (citing cases distinguishing between whether a simple possession offense is an aggravated felony “for immigration purposes” or for “sentencing purposes”). The ABA Guidebook then proceeds to explain that “ attempted possession,” id., §5.36, at 161 (emphasis added), of a controlled substance is an aggravated felony, while “[c]onviction under the federal accessory after the fact statute is probably not an aggravated felony, but a conviction for accessory after the fact to the manufacture of methamphetamine is an aggravated felony,” id. , §537, at 161 (emphasis added). Conspiracy or attempt to commit drug trafficking are aggravated felonies, but “[s]olicitation is not a drug-trafficking offense because a generic solicitation offense is not an offense related to a controlled substance and therefore not an aggravated felony.” Id. , §5.41, at 162.    Determining whether a particular crime is one involving moral turpitude is no easier. See id ., at 134 (“Writing bad checks may or may not be a CIMT” (emphasis added)); ibid . (“[R]eckless assault coupled with an element of injury, but not serious injury, is probably not a CIMT” (emphasis added)); id ., at 135 (misdemeanor driving under the influence is generally not a CIMT, but may be a CIMT if the DUI results in injury or if the driver knew that his license had been suspended or revoked); id ., at 136 (“If there is no element of actual injury, the endangerment offense may not be a CIMT” (emphasis added)); ibid . (“Whether [a child abuse] conviction involves moral turpitude may depend on the subsection under which the individual is convicted. Child abuse done with criminal negligence probably is not a CIMT” (emphasis added)).    Many other terms of the INA are similarly ambiguous or may be confusing to practitioners not versed in the intricacies of immigration law. To take just a few examples, it may be hard, in some cases, for defense counsel even to determine whether a client is an alien,[ Footnote 1 ] or whether a particular state disposition will result in a “conviction” for purposes of federal immigration law.[ Footnote 2 ] The task of offering advice about the immigration consequences of a criminal conviction is further complicated by other problems, including significant variations among Circuit interpretations of federal immigration statutes; the frequency with which immigration law changes; different rules governing the immigration consequences of juvenile, first-offender, and foreign convictions; and the relationship between the “length and type of sentence” and the determination “whether [an alien] is subject to removal, eligible for relief from removal, or qualified to become a naturalized citizen,” Immigration Law and Crimes §2:1, at 2–2 to 2–3.    In short, the professional organizations and guidebooks on which the Court so heavily relies are right to say that “nothing is ever simple with immigration law”—including the determination whether immigration law clearly makes a particular offense removable. ABA Guidebook §4.65, at 130; Immigration Law and Crimes §2:1. I therefore cannot agree with the Court’s apparent view that the Sixth Amendment requires criminal defense attorneys to provide immigration advice.    The Court tries to downplay the severity of the burden it imposes on defense counsel by suggesting that the scope of counsel’s duty to offer advice concerning deportation consequences may turn on how hard it is to determine those consequences. Where “the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence[s]” of a conviction, the Court says, counsel has an affirmative duty to advise the client that he will be subject to deportation as a result of the plea. Ante , at 11. But “[w]hen the law is not succinct and straightforward … , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Ante , at 11–12. This approach is problematic for at least four reasons.    First, it will not always be easy to tell whether a particular statutory provision is “succinct, clear, and explicit.” How can an attorney who lacks general immigration law expertise be sure that a seemingly clear statutory provision actually means what it seems to say when read in isolation? What if the application of the provision to a particular case is not clear but a cursory examination of case law or administrative decisions would provide a definitive answer? See Immigration Law and Crimes §2:1, at 2–2 (“Unfortunately, a practitioner or respondent cannot tell easily whether a conviction is for a removable offense… . [T]he cautious practitioner or apprehensive respondent will not know conclusively the future immigration consequences of a guilty plea”).    Second, if defense counsel must provide advice regarding only one of the many collateral consequences of a criminal conviction, many defendants are likely to be misled. To take just one example, a conviction for a particular offense may render an alien excludable but not removable. If an alien charged with such an offense is advised only that pleading guilty to such an offense will not result in removal, the alien may be induced to enter a guilty plea without realizing that a consequence of the plea is that the alien will be unable to reenter the United States if the alien returns to his or her home country for any reason, such as to visit an elderly parent or to attend a funeral. See ABA Guidebook §4.14, at 111 (“Often the alien is both excludable and removable . At times, however, the lists are different. Thus, the oddity of an alien that is inadmissible but not deportable. This alien should not leave the United States because the government will not let him back in” (emphasis in original)). Incomplete legal advice may be worse than no advice at all because it may mislead and may dissuade the client from seeking advice from a more knowledgeable source.    Third, the Court’s rigid constitutional rule could inadvertently head off more promising ways of addressing the underlying problem—such as statutory or administrative reforms requiring trial judges to inform a defendant on the record that a guilty plea may carry adverse immigration consequences. As amici point out, “28 states and the District of Columbia have already adopted rules, plea forms, or statutes requiring courts to advise criminal defendants of the possible immigration consequences of their pleas.” Brief for State of Louisiana et al. 25; accord, Chin & Holmes 708 (“A growing number of states require advice about deportation by statute or court rule”). A nonconstitutional rule requiring trial judges to inform defendants on the record of the risk of adverse immigration consequences can ensure that a defendant receives needed information without putting a large number of criminal convictions at risk; and because such a warning would be given on the record, courts would not later have to determine whether the defendant was misrepresenting the advice of counsel. Likewise, flexible statutory procedures for withdrawing guilty pleas might give courts appropriate discretion to determine whether the interests of justice would be served by allowing a particular defendant to withdraw a plea entered into on the basis of incomplete information. Cf. United States v. Russell , 686 F. 2d 35, 39–40 (CADC 1982) (explaining that a district court’s discretion to set aside a guilty plea under the Federal Rules of Criminal Procedure should be guided by, among other considerations, “the possible existence of prejudice to the government’s case as a result of the defendant’s untimely request to stand trial” and “the strength of the defendant’s reason for withdrawing the plea, including whether the defendant asserts his innocence of the charge”).    Fourth, the Court’s decision marks a major upheaval in Sixth Amendment law. This Court decided Strickland in 1984, but the majority does not cite a single case, from this or any other federal court, holding that criminal defense counsel’s failure to provide advice concerning the removal consequences of a criminal conviction violates a defendant’s Sixth Amendment right to counsel. As noted above, the Court’s view has been rejected by every Federal Court of Appeals to have considered the issue thus far. See, e.g. , Gonzalez , 202 F. 3d, at 28; Banda , 1 F. 3d, at 355; Chin & Holmes 697, 699. The majority appropriately acknowledges that the lower courts are “now quite experienced with applying Strickland ,” ante , at 14, but it casually dismisses the longstanding and unanimous position of the lower federal courts with respect to the scope of criminal defense counsel’s duty to advise on collateral consequences.    The majority seeks to downplay its dramatic expansion of the scope of criminal defense counsel’s duties under the Sixth Amendment by claiming that this Court in Hill v. Lockhart , 474 U. S. 52 (1985), similarly “applied Strickland to a claim that counsel had failed to advise the client regarding his parole eligibility before he pleaded guilty.” Ante , at 14. That characterization of Hill obscures much more than it reveals. The issue in Hill was whether a criminal defendant’s Sixth Amendment right to counsel was violated where counsel misinformed the client about his eligibility for parole. The Court found it “unnecessary to determine whether there may be circumstances under which erroneous advice by counsel as to parole eligibility may be deemed constitutionally ineffective assistance of counsel, because in the present case we conclude that petitioner’s allegations are insufficient to satisfy the Strickland v. Washington requirement of ‘prejudice.’ ” 474 U. S., at 60. Given that Hill expressly and unambiguously refused to decide whether criminal defense counsel must avoid misinforming his or her client as to one consequence of a criminal conviction (parole eligibility), that case plainly provides no support whatsoever for the proposition that counsel must affirmatively advise his or her client as to another collateral consequence (removal). By the Court’s strange logic, Hill would support its decision here even if the Court had held that misadvice concerning parole eligibility does not make counsel’s performance objectively unreasonable. After all, the Court still would have “applied Strickland ” to the facts of the case at hand. II    While mastery of immigration law is not required by Strickland , several considerations support the conclusion that affirmative misadvice regarding the removal consequences of a conviction may constitute ineffective assistance.    First, a rule prohibiting affirmative misadvice regarding a matter as crucial to the defendant’s plea decision as deportation appears faithful to the scope and nature of the Sixth Amendment duty this Court has recognized in its past cases. In particular, we have explained that “a guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not ‘a reasonably competent attorney’ and the advice was not ‘within the range of competence demanded of attorneys in criminal cases .’ ” Strickland , 466 U. S., at 687 (quoting McMann v. Richardson , 397 U. S. 759 , 770, 771 (1970); emphasis added). As the Court appears to acknowledge, thorough understanding of the intricacies of immigration law is not “within the range of competence demanded of attorneys in criminal cases .” See ante , at 11 (“Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it”). By contrast, reasonably competent attorneys should know that it is not appropriate or responsible to hold themselves out as authorities on a difficult and complicated subject matter with which they are not familiar. Candor concerning the limits of one’s professional expertise, in other words, is within the range of duties reasonably expected of defense attorneys in criminal cases. As the dissenting judge on the Kentucky Supreme Court put it, “I do not believe it is too much of a burden to place on our defense bar the duty to say, ‘I do not know.’ ” 253 S. W. 3d 482, 485 (2008).    Second, incompetent advice distorts the defendant’s decisionmaking process and seems to call the fairness and integrity of the criminal proceeding itself into question. See Strickland , 466 U. S., at 686 (“In giving meaning to the requirement [of effective assistance of counsel], we must take its purpose—to ensure a fair trial—as the guide”). When a defendant opts to plead guilty without definitive information concerning the likely effects of the plea, the defendant can fairly be said to assume the risk that the conviction may carry indirect consequences of which he or she is not aware. That is not the case when a defendant bases the decision to plead guilty on counsel’s express misrepresentation that the defendant will not be removable. In the latter case, it seems hard to say that the plea was entered with the advice of constitutionally competent counsel—or that it embodies a voluntary and intelligent decision to forsake constitutional rights. See ibid. (“The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result”).    Third, a rule prohibiting unreasonable misadvice regarding exceptionally important collateral matters would not deter or interfere with ongoing political and administrative efforts to devise fair and reasonable solutions to the difficult problem posed by defendants who plead guilty without knowing of certain important collateral consequences.    Finally, the conclusion that affirmative misadvice regarding the removal consequences of a conviction can give rise to ineffective assistance would, unlike the Court’s approach, not require any upheaval in the law. As the Solicitor General points out, “[t]he vast majority of the lower courts considering claims of ineffective assistance in the plea context have [distinguished] between defense counsel who remain silent and defense counsel who give affirmative misadvice.” Brief for United States as Amicus Curiae 8 (citing cases). At least three Courts of Appeals have held that affirmative misadvice on immigration matters can give rise to ineffective assistance of counsel, at least in some circumstances.[ Footnote 3 ] And several other Circuits have held that affirmative misadvice concerning nonimmigration consequences of a conviction can violate the Sixth Amendment even if those consequences might be deemed “collateral.”[ Footnote 4 ] By contrast, it appears that no court of appeals holds that affirmative misadvice concerning collateral consequences in general and removal in particular can never give rise to ineffective assistance. In short, the considered and thus far unanimous view of the lower federal courts charged with administering Strickland clearly supports the conclusion that that Kentucky Supreme Court’s position goes too far.    In concluding that affirmative misadvice regarding the removal consequences of a criminal conviction may constitute ineffective assistance, I do not mean to suggest that the Sixth Amendment does no more than require defense counsel to avoid misinformation. When a criminal defense attorney is aware that a client is an alien, the attorney should advise the client that a criminal conviction may have adverse consequences under the immigration laws and that the client should consult an immigration specialist if the client wants advice on that subject. By putting the client on notice of the danger of removal, such advice would significantly reduce the chance that the client would plead guilty under a mistaken premise. III    In sum, a criminal defense attorney should not be required to provide advice on immigration law, a complex specialty that generally lies outside the scope of a criminal defense attorney’s expertise. On the other hand, any competent criminal defense attorney should appreciate the extraordinary importance that the risk of removal might have in the client’s determination whether to enter a guilty plea. Accordingly, unreasonable and incorrect information concerning the risk of removal can give rise to an ineffectiveness claim. In addition, silence alone is not enough to satisfy counsel’s duty to assist the client. Instead, an alien defendant’s Sixth Amendment right to counsel is satisfied if defense counsel advises the client that a conviction may have immigration consequences, that immigration law is a specialized field, that the attorney is not an immigration lawyer, and that the client should consult an immigration specialist if the client wants advice on that subject. Footnote 1 Citizens are not deportable, but “[q]uestions of citizenship are not always simple.” ABA Guidebook §4.20, at 113 (explaining that U.S. citizenship conferred by blood is “ ‘derivative,’ ” and that “[d]erivative citizenship depends on a number of confusing factors, including whether the citizen parent was the mother or father, the immigration laws in effect at the time of the parents’ and/or defendant’s birth, and the parents’ marital status”). Footnote 2 “A disposition that is not a ‘conviction,’ under state law may still be a ‘conviction’ for immigration purposes.” Id., §4.32, at 117 (citing Matter of Salazar , 23 I. & N. Dec. 223, 231 (BIA 2002) (en banc)). For example, state law may define the term “conviction” not to include a deferred adjudication, but such an adjudication would be deemed a conviction for purposes of federal immigration law. See ABA Guidebook §4.37; accord, D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes §2:1, p. 2–2 (2008) (hereinafter Immigration Law and Crimes) (“A practitioner or respondent will not even know whether the Department of Homeland Security (DHS) or the Executive Office for Immigration Review (EOIR) will treat a particular state disposition as a conviction for immigration purposes. In fact, the [BIA] treats certain state criminal dispositions as convictions even though the state treats the same disposition as a dismissal”). Footnote 3 See United States v. Kwan , 407 F. 3d 1005, 1015–1017 (CA9 2005); United States v. Couto , 311 F. 3d 179, 188 (CA2 2002); Downs-Morgan v. United States , 765 F. 2d 1534, 1540–1541 (CA11 1985) (limiting holding to the facts of the case); see also Santos-Sanchez v. United Stat es, 548 F. 3d 327, 333–334 (CA5 2008) (concluding that counsel’s advice was not objectively unreasonable where counsel did not purport to answer questions about immigration law, did not claim any expertise in immigration law, and simply warned of “possible” deportation consequence; use of the word “possible” was not an affirmative misrepresentation, even though it could indicate that deportation was not a certain consequence). Footnote 4 See Hill v. Lockhart , 894 F. 2d 1009, 1010 (CA8 1990) (en banc) (“[T]he erroneous parole-eligibility advice given to Mr. Hill was ineffective assistance of counsel under Strickland v. Washington ”); Sparks v . Sowders , 852 F. 2d 882, 885 (CA6 1988) (“[G]ross misadvice concerning parole eligibility can amount to ineffective assistance of counsel”); id., at 886 (Kennedy, J., concurring) (“When the maximum possible exposure is overstated, the defendant might well be influenced to accept a plea agreement he would otherwise reject”); Strader v. Garrison , 611 F. 2d 61, 65 (CA4 1979) (“[T]hough parole eligibility dates are collateral consequences of the entry of a guilty plea of which a defendant need not be informed if he does not inquire, when he is grossly misinformed about it by his lawyer, and relies upon that misinformation, he is deprived of his constitutional right to counsel”). SCALIA, J., DISSENTING PADILLA V. KENTUCKY 559 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-651 JOSE PADILLA, PETITIONER v. KENTUCKY on writ of certiorari to the supreme court of kentucky [March 31, 2010]    Justice Scalia, with whom Justice Thomas joins, dissenting.    In the best of all possible worlds, criminal defendants contemplating a guilty plea ought to be advised of all serious collateral consequences of conviction, and surely ought not to be misadvised. The Constitution, however, is not an all-purpose tool for judicial construction of a perfect world; and when we ignore its text in order to make it that, we often find ourselves swinging a sledge where a tack hammer is needed.    The Sixth Amendment guarantees the accused a lawyer “for his defense” against a “criminal prosecutio[n]”—not for sound advice about the collateral consequences of conviction. For that reason, and for the practical reasons set forth in Part I of Justice Alito’s concurrence, I dissent from the Court’s conclusion that the Sixth Amendment requires counsel to provide accurate advice concerning the potential removal consequences of a guilty plea. For the same reasons, but unlike the concurrence, I do not believe that affirmative misadvice about those consequences renders an attorney’s assistance in defending against the prosecution constitutionally inadequate; or that the Sixth Amendment requires counsel to warn immigrant defendants that a conviction may render them removable. Statutory provisions can remedy these concerns in a more targeted fashion, and without producing permanent, and legislatively irreparable, overkill. *  *  *    The Sixth Amendment as originally understood and ratified meant only that a defendant had a right to employ counsel, or to use volunteered services of counsel. See, United States v. Van Duzee , 140 U. S. 169 , 173 (1891); W. Beaney, Right to Counsel in American Courts 21, 28–29 (1955). We have held, however, that the Sixth Amendment requires the provision of counsel to indigent defendants at government expense, Gideon v. Wainwright , 372 U. S. 335 , 344–345 (1963), and that the right to “the assistance of counsel” includes the right to effective assistance, Strickland v. Washington , 466 U. S. 668 , 686 (1984). Even assuming the validity of these holdings, I reject the significant further extension that the Court, and to a lesser extent the concurrence, would create. We have until today at least retained the Sixth Amendment’s textual limitation to criminal prosecutions. “[W]e have held that ‘defence’ means defense at trial, not defense in relation to other objectives that may be important to the accused.” Rothgery v. Gillespie County, 554 U. S. ___, ___ (2008) (Alito, J., concurring) (slip op., at 4) (summarizing cases). We have limited the Sixth Amendment to legal advice directly related to defense against prosecution of the charged offense—advice at trial, of course, but also advice at postindictment interrogations and lineups, Massiah v. United States , 377 U. S. 201 , 205–206 (1964); United States v. Wade , 388 U. S. 218 , 236–238 (1967), and in general advice at all phases of the prosecution where the defendant would be at a disadvantage when pitted alone against the legally trained agents of the state, see Moran v. Burbine , 475 U. S. 412 , 430 (1986). Not only have we not required advice of counsel regarding consequences collateral to prosecution, we have not even required counsel appointed to defend against one prosecution to be present when the defendant is interrogated in connection with another possible prosecution arising from the same event. Texas v. Cobb , 532 U. S. 162 , 164 (2001).    There is no basis in text or in principle to extend the constitutionally required advice regarding guilty pleas beyond those matters germane to the criminal prosecution at hand—to wit, the sentence that the plea will produce, the higher sentence that conviction after trial might entail, and the chances of such a conviction. Such matters fall within “the range of competence demanded of attorneys in criminal cases,” McMann v. Richardson , 397 U. S. 759 , 771 (1970). See id., at 769–770 (describing the matters counsel and client must consider in connection with a contemplated guilty plea). We have never held, as the logic of the Court’s opinion assumes, that once counsel is appointed all professional responsibilities of counsel—even those extending beyond defense against the prosecution—become constitutional commands. Cf. Cobb , supra , at 171, n. 2; Moran , supra , at 430. Because the subject of the misadvice here was not the prosecution for which Jose Padilla was entitled to effective assistance of counsel, the Sixth Amendment has no application.    Adding to counsel’s duties an obligation to advise about a conviction’s collateral consequences has no logical stopping-point. As the concurrence observes, “[A] criminal convictio[n] can carry a wide variety of consequences other than conviction and sentencing, including civil commitment, civil forfeiture, the loss of the right to vote, disqualification from public benefits, ineligibility to possess firearms, dishonorable discharge from the Armed Forces, and loss of business or professional licenses. . . . All of those consequences are ‘serious,’ … .” Ante , at 2–3 (Alito, J., concurring in judgment). But it seems to me that the concurrence suffers from the same defect. The same indeterminacy, the same inability to know what areas of advice are relevant, attaches to misadvice. And the concurrence’s suggestion that counsel must warn defendants of potential removal consequences, see ante , at 14–15—what would come to be known as the “ Padilla warning”—cannot be limited to those consequences except by judicial caprice. It is difficult to believe that the warning requirement would not be extended, for example, to the risk of heightened sentences in later federal prosecutions pursuant to the Armed Career Criminal Act, 18 U. S. C. §924(e). We could expect years of elaboration upon these new issues in the lower courts, prompted by the defense bar’s devising of ever-expanding categories of plea-invalidating misadvice and failures to warn—not to mention innumerable evidentiary hearings to determine whether misadvice really occurred or whether the warning was really given.    The concurrence’s treatment of misadvice seems driven by concern about the voluntariness of Padilla’s guilty plea. See ante , at 12. But that concern properly relates to the Due Process Clauses of the Fifth and Fourteenth Amendments, not to the Sixth Amendment. See McCarthy v. United States , 394 U. S. 459 , 466 (1969); Brady v. United States , 397 U. S. 742 , 748 (1970). Padilla has not argued before us that his guilty plea was not knowing and voluntary. If that is, however, the true substance of his claim (and if he has properly preserved it) the state court can address it on remand.[ Footnote 1 ] But we should not smuggle the claim into the Sixth Amendment.    The Court’s holding prevents legislation that could solve the problems addressed by today’s opinions in a more precise and targeted fashion. If the subject had not been constitutionalized, legislation could specify which categories of misadvice about matters ancillary to the prosecution invalidate plea agreements, what collateral consequences counsel must bring to a defendant’s attention, and what warnings must be given.[ Footnote 2 ] Moreover, legislation could provide consequences for the misadvice, nonadvice, or failure to warn, other than nullification of a criminal conviction after the witnesses and evidence needed for retrial have disappeared. Federal immigration law might provide, for example, that the near-automatic removal which follows from certain criminal convictions will not apply where the conviction rested upon a guilty plea induced by counsel’s misadvice regarding removal consequences. Or legislation might put the government to a choice in such circumstances: Either retry the defendant or forgo the removal. But all that has been precluded in favor of today’s sledge hammer.    In sum, the Sixth Amendment guarantees adequate assistance of counsel in defending against a pending criminal prosecution. We should limit both the constitutional obligation to provide advice and the consequences of bad advice to that well defined area. Footnote 1 I do not mean to suggest that the Due Process Clause would surely provide relief. We have indicated that awareness of “direct consequences” suffices for the validity of a guilty plea. See Brady , 397 U. S., at 755 (internal quotation marks omitted). And the required colloquy between a federal district court and a defendant required by Federal Rule of Criminal Procedure 11(b) (formerly Rule 11(c)), which we have said approximates the due process requirements for a valid plea, see Libretti v. United States , 516 U. S. 29 , 49–50 (1995), does not mention collateral consequences. Whatever the outcome, however, the effect of misadvice regarding such consequences upon the validity of a guilty plea should be analyzed under the Due Process Clause. Footnote 2 As the Court’s opinion notes, ante, at 16–17, n. 15, many States—including Kentucky—already require that criminal defendants be warned of potential removal consequences.

In Padilla v. Kentucky, the Supreme Court ruled that constitutionally competent counsel must inform their clients if pleading guilty to a crime would result in their deportation. The Court found that Padilla's lawyer provided incorrect advice about the deportation consequences of his guilty plea, which Padilla relied on when deciding to plead guilty. The Court sent the case back to the lower court to determine if Padilla was prejudiced by his lawyer's mistake and if he is entitled to relief.

Immigration & National Security

INS v. St. Cyr

https://supreme.justia.com/cases/federal/us/533/289/

OCTOBER TERM, 2000 Syllabus IMMIGRATION AND NATURALIZATION SERVICE v. ST. CYR CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 00-767. Argued April 24, 200l-Decided June 25, 2001 Before the effective dates of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), § 212(c) of the Immigration and Nationality Act of 1952 was interpreted to give the Attorney General broad discretion to waive deportation of resident aliens. As relevant here, the large class of aliens depending on § 212(c) relief was reduced in 1996 by §401 of AEDPA, which identified a broad set of offenses for which convictions would preclude such relief; and by IIRIRA, which repealed § 212(c) and replaced it with a new section excluding from the class anyone "convicted of an aggravated felony," 8 U. S. C. § 1229b(a)(3). Respondent St. Cyr, a lawful permanent United States resident, pleaded guilty to a criminal charge that made him deportable. He would have been eligible for a waiver of deportation under the immigration law in effect when he was convicted, but his removal proceedings were commenced after AEDPA's and IIRIRA's effective dates. The Attorney General claims that those Acts withdrew his authority to grant St. Cyr a waiver. The Federal District Court accepted St. Cyr's habeas corpus application and agreed that the new restrictions do not apply to removal proceedings brought against an alien who pleaded guilty to a deportable crime before their enactment. The Second Circuit affirmed. Held: 1. Courts have jurisdiction under 28 U. S. C. § 2241 to decide the legal issue raised by St. Cyr's habeas petition. Pp. 298-314. (a) To prevail on its claim that AEDPA and IIRIRA stripped federal courts of jurisdiction to decide a pure question of law, as in this case, petitioner Immigration and Naturalization Service (INS) must overcome both the strong presumption in favor of judicial review of administrative action and the longstanding rule requiring a clear and unambiguous statement of congressional intent to repeal habeas jurisdiction. Here, that plain statement rule draws additional reinforcement from other canons of statutory construction: First, when a statutory interpretation invokes the outer limits of Congress' power, there must be a clear indication that Congress intended that result; and 290 Syllabus second, if an otherwise acceptable construction would raise serious constitutional problems and an alternative interpretation is fairly possible, the statute must be construed to avoid such problems. Pp. 298-300. (b) Construing the amendments at issue to preclude court review of a pure question of law would give rise to substantial constitutional questions. The Constitution's Suspension Clause, which protects the privilege of the habeas corpus writ, unquestionably requires some judicial intervention in deportation cases. Heikkila v. Barber, 345 U. S. 229 , 235. Even assuming that the Clause protects only the writ as it existed in 1789, substantial evidence supports St. Cyr's claim that pure questions of law could have been answered in 1789 by a common-law judge with power to issue the writ. Thus, a serious Suspension Clause issue would arise if the 1996 statutes have withdrawn that power from federal judges and provided no adequate substitute. The need to resolve such a serious and difficult constitutional question and the desirability of avoiding that necessity reinforce the reasons for requiring a clear and unambiguous statement of congressional intent. Pp. 300-305. (c) To conclude that the writ is no longer available in this context would also represent a marked departure from historical immigration law practice. The writ has always been available to review the legality of Executive detention, see, e. g., Felker v. Turpin, 518 U. S. 651 , 663, and, until the 1952 Act, a habeas action was the sole means of challenging a deportation order's legality, see, e. g., Heikkila, 345 U. S., at 235. Habeas courts have answered questions of law in alien suits challenging Executive interpretations of immigration law and questions of law that arose in the discretionary relief context. Pp. 305-308. (d) Neither AEDPA §401(e) nor three IIRIRA provisions, 8 U. S. C. §§ 1252(a)(I), (a)(2)(C), and (b)(9), express a clear and unambiguous statement of Congress' intent to bar 28 U. S. C. §2241 petitions. None of these sections even mentions § 2241. Section 401(e)'s repeal of a subsection of the 1961 Act, which provided, inter alia, habeas relief for an alien in custody pursuant to a deportation order, is not sufficient to eliminate what the repealed section did not grant-namely, habeas jurisdiction pursuant to § 2241. See Ex parte Yerger, 8 Wall. 85, 105106. The three IIRIRA provisions do not speak with sufficient clarity to bar habeas jurisdiction. They focus on "judicial review" or "jurisdiction to review." In the immigration context, however, "judicial review" and "habeas corpus" have historically distinct meanings, with habeas courts playing a far narrower role. Pp. 308-314. 2. Section 212(c) relief remains available for aliens, like St. Cyr, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect. Pp. 314-326. 291 (a) A statute's language must require that it be applied retroactively. Bowen v. Georgetown Univ. Hospital, 488 U. S. 204 , 208. The first step in the impermissible-retroactive-effect determination is to ascertain whether Congress has directed with the requisite clarity that the law be applied retrospectively. Martin v. Hadix, 527 U. S. 343 , 352. Such clarity is not shown by the comprehensiveness of IIRIRA's revision of federal immigration law, see Landgraf v. USI Film Products, 511 U. S. 244 , 260-261, by the promulgation of IIRIRA's effective date, see id., at 257, or by IIRIRA § 309(c)(1)'s "saving provision." Pp. 314-320. (b) The second step is to determine whether IIRIRA attaches new legal consequences to events completed before its enactment, a judgment informed and guided by considerations of fair notice, reasonable reliance, and settled expectations. Landgraf, 511 U. S., at 270. IIRIRA's elimination of § 212(c) relief for people who entered into plea agreements expecting that they would be eligible for such relief clearly attaches a new disability to past transactions or considerations. Plea agreements involve a quid pro quo between a criminal defendant and the government, and there is little doubt that alien defendants considering whether to enter into such agreements are acutely aware of their convictions' immigration consequences. The potential for unfairness to people like St. Cyr is significant and manifest. Now that prosecutors have received the benefit of plea agreements, facilitated by the aliens' belief in their continued eligibility for § 212(c) relief, it would be contrary to considerations of fair notice, reasonable reliance, and settled expectations to hold that IIRIRA deprives them of any possibility of such relief. The INS' argument that application of deportation law can never have retroactive effect because deportation proceedings are inherently prospective is not particularly helpful in undertaking Landgraf's analysis, and the fact that deportation is not punishment for past crimes does not mean that the Court cannot consider an alien's reasonable reliance on the continued availability of discretionary relief from deportation when deciding the retroactive effect of eliminating such relief. That § 212(c) relief is discretionary does not affect the propriety of this Court's conclusion, for there is a clear difference between facing possible deportation and facing certain deportation. pp. 320-326. 229 F.3d 406 , affirmed. STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed a dissenting opinion, post, p. 326. SCALIA, J., filed a dissenting opinion, in 292 which REHNQUIST, C. J., and THOMAS, J., joined, and in which O'CONNOR, J., joined as to Parts I and III, post, p. 326. Deputy Solicitor General Kneedler argued the cause for petitioner. With him on the briefs were Acting Solicitor General Underwood, Acting Assistant Attorney General Schiffer, Paul R. Q. Wolfson, Stephen C. Robinson, Donald E. Keener, Alison R. Drucker, Ernesto H. Molina, and James K. Filan, Jr. Lucas Guttentag argued the cause for respondent. With him on the brief were Lee Gelernt, Judy Rabinovitz, Steven R. Shapiro, Jayashri Srikantiah, Michael G. Moore, and Paul A. Engelmayer. * JUSTICE STEVENS delivered the opinion of the Court. Both the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), enacted on April 24, 1996, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), enacted on September 30, 1996, 110 Stat. 3009-546, contain comprehensive amendments to the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U. S. C. § 1101 et seq. This case raises two important questions about the impact of those amendments. The first question is a procedural one, concerning the effect of those amendments on the availability of habeas corpus jurisdiction under 28 U. S. C. § 2241. The second question is a substantive one, concerning the impact of the amendments on conduct that occurred before * Daniel J. Popeo and R. Shawn Gunnarson filed a brief for the Washington Legal Foundation as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the Florida Immigrant Advocacy Center et al. by Rebecca Sharpless; and for the National Association of Criminal Defense Lawyers et al. by Manuel D. Vargas and Joshua L. Dratel. James Oldham, Michael J. Wishnie, and Douglas W Baruch filed a brief for Legal Historians as amici curiae. 293 their enactment and on the availability of discretionary relief from deportation. Respondent, Enrico St. Cyr, is a citizen of Haiti who was admitted to the United States as a lawful permanent resident in 1986. Ten years later, on March 8, 1996, he pleaded guilty in a state court to a charge of selling a controlled substance in violation of Connecticut law. That conviction made him deportable. Under pre-AEDPA law applicable at the time of his conviction, St. Cyr would have been eligible for a waiver of deportation at the discretion of the Attorney General. However, removal proceedings against him were not commenced until April 10, 1997, after both AEDPA and IIRIRA became effective, and, as the Attorney General interprets those statutes, he no longer has discretion to grant such a waiver. In his habeas corpus petition, respondent has alleged that the restrictions on discretionary relief from deportation contained in the 1996 statutes do not apply to removal proceedings brought against an alien who pleaded guilty to a deportable crime before their enactment. The District Court accepted jurisdiction of his application and agreed with his submission. In accord with the decisions of four other Circuits, the Court of Appeals for the Second Circuit affirmed.1 229 F.3d 406 (2000). The importance of both questions warranted our grant of certiorari. 531 U. S. 1107 (2001). I The character of the pre-AEDPA and pre-IIRIRA law that gave the Attorney General discretion to waive deportation in certain cases is relevant to our appraisal of both the substantive and the procedural questions raised by 1 See Mahadeo v. Reno, 226 F.3d 3 (CA1 2000); Liang v. INS, 206 F.3d 308 (CA3 2000); Tasios v. Reno, 204 F.3d 544 (CA4 2000); FloresMiramontes v. INS, 212 F.3d 1133 (CA9 2000). But see Max-George v. Reno, 205 F.3d 194 (CA5 2000); Morales-Ramirez v. Reno, 209 F.3d 977 (CA7 2000); Richardson v. Reno, 180 F.3d 1311 (CA111999). 294 the petition of the Immigration and Naturalization Service (INS). We shall therefore preface our discussion of those questions with an overview of the sources, history, and scope of that law. Subject to certain exceptions, § 3 of the Immigration Act of 1917 excluded from admission to the United States several classes of aliens, including, for example, those who had committed crimes "involving moral turpitude." 39 Stat. 875. The seventh exception provided "[t]hat aliens returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years may be admitted in the discretion of the Secretary of Labor, and under such conditions as he may prescribe." Id., at 878.2 Although that provision applied literally only to exclusion proceedings, and although the deportation provisions of the statute did not contain a similar provision, the INS relied on § 3 to grant relief in deportation proceedings involving aliens who had departed and returned to this country after the ground for deportation arose. See, e. g., Matter of L, 1 1. & N. Dec. 1, 2 (1940).3 Section 212 of the Immigration and Nationality Act of 1952, which replaced and roughly paralleled § 3 of the 1917 Act, excluded from the United States several classes of aliens, including those convicted of offenses involving moral turpitude or the illicit traffic in narcotics. See 66 Stat. 182187. As with the prior law, this section was subject to a proviso granting the Attorney General broad discretion to 2 The INS was subsequently transferred to the Department of Justice. See Matter of L, 1 1. & N. Dec. 1, n. 1 (1940). As a result, the powers previously delegated to the Secretary of Labor were transferred to the Attorney General. See id., at 2. 3 The exercise of discretion was deemed a nunc pro tunc correction of the record of reentry. In approving of this construction, the Attorney General concluded that strictly limiting the seventh exception to exclusion proceedings would be "capricious and whimsical." Id., at 5. 295 admit excludable aliens. See id., at 187. That proviso, codified at 8 U. S. C. § 1182(c), stated: "Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General .... " Like § 3 of the 1917 Act, § 212(c) was literally applicable only to exclusion proceedings, but it too has been interpreted by the Board of Immigration Appeals (BIA) to authorize any permanent resident alien with "a lawful unrelinquished domicile of seven consecutive years" to apply for a discretionary waiver from deportation. See Matter of Silva, 16 1. & N. Dec. 26, 30 (1976) (adopting position of Francis v. INS, 532 F. 2d 268 (CA2 1976)). If relief is granted, the deportation proceeding is terminated and the alien remains a permanent resident. The extension of § 212(c) relief to the deportation context has had great practical importance, because deportable offenses have historically been defined broadly. For example, under the INA, aliens are deportable upon conviction for two crimes of "moral turpitude" (or for one such crime if it occurred within five years of entry into the country and resulted in a jail term of at least one year). See 8 U. S. C. §§ 1227(a)(2)(A)(i)-(ii) (1994 ed., Supp. V). In 1988, Congress further specified that an alien is deportable upon conviction for any "aggravated felony," Anti-Drug Abuse Act of 1988, 102 Stat. 4469-4470, § 1227(a)(2)(A)(iii), which was defined to include numerous offenses without regard to how long ago they were committed.4 Thus, the class of aliens 4 See 8 U. S. C. § 1l01(a)(43) (1994 ed. and Supp. V). While the term has always been defined expansively, it was broadened substantially by IIRIRA. For example, as amended by that statute, the term includes all convictions for theft or burglary for which a term of imprisonment 296 whose continued residence in this country has depended on their eligibility for § 212(c) relief is extremely large, and not surprisingly, a substantial percentage of their applications for § 212(c) relief have been granted.5 Consequently, in the period between 1989 and 1995 alone, § 212(c) relief was granted to over 10,000 aliens.6 of at least one year is imposed (as opposed to five years pre-IIRIRA), compare § 1l01(a)(43)(G) (1994 ed., Supp. V) with § 1l01(a)(43)(G) (1994 ed.), and all convictions involving fraud or deceit in which the loss to the victim exceeds $10,000 (as opposed to $200,000 pre-IIRIRA), compare § 1l01(a)(43)(M)(i) (1994 ed., Supp. V) with § 1l01(a)(43)(M)(i) (1994 ed.). In addition, the term includes any "crime of violence" resulting in a prison sentence of at least one year (as opposed to five years pre-IIRIRA), compare § 1l01(a)(43)(F) (1994 ed., Supp. V) with § 1l01(a)(43)(F) (1994 ed.), and that phrase is itself broadly defined. See 18 U. S. C. § 16 ("[A]n offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another," or "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense"). 5 See, e. g., Rannik, The Anti-Terrorism and Effective Death Penalty Act of 1996: A Death Sentence for the 212(c) Waiver, 28 U. Miami Inter-Am. L. Rev. 123, 150, n. 80 (1996) (providing statistics indicating that 51.5% of the applications for which a final decision was reached between 1989 and 1995 were granted); see also Mattis v. Reno, 212 F.3d 31 , 33 (CA1 2000) ("[I]n the years immediately preceding the statute's passage, over half the applications were granted"); Tasios, 204 F. 3d, at 551 (same). In developing these changes, the BIA developed criteria, comparable to common-law rules, for deciding when deportation is appropriate. Those criteria, which have been set forth in several BIA opinions, see, e. g., Matter of Marin, 16 I. & N. Dec. 581 (1978), include the seriousness of the offense, evidence of either rehabilitation or recidivism, the duration of the alien's residence, the impact of deportation on the family, the number of citizens in the family, and the character of any service in the Armed Forces. 6 See Rannik, 28 U. Miami Inter-Am. L. Rev., at 150, n. 80. However, based on these statistics, one cannot form a reliable estimate of the number of individuals who will be affected by today's decision. Since the 1996 statutes expanded the definition of "aggravated felony" substantially-and retroactively-the number of individuals now subject to deportation absent § 212(c) relief is significantly higher than these figures would sug- 297 Three statutes enacted in recent years have reduced the size of the class of aliens eligible for such discretionary relief. In 1990, Congress amended § 212(c) to preclude from discretionary relief anyone convicted of an aggravated felony who had served a term of imprisonment of at least five years. § 511, 104 Stat. 5052 (amending 8 U. S. C. § 1182(c)). In 1996, in §440(d) of AEDPA, Congress identified a broad set of offenses for which convictions would preclude such relief. See 110 Stat. 1277 (amending 8 U. S. C. § 1182(c)).7 And finally, that same year, Congress passed IIRIRA. That statute, inter alia, repealed § 212(c), see § 304(b), 110 Stat. 3009-597, and replaced it with a new section that gives the Attorney General the authority to cancel removal for a narrow class of inadmissible or deportable aliens, see id., at 3009-594 (creating 8 U. S. C. § 1229b (1994 ed., Supp. V)). So narrowed, that class does not include anyone previously "convicted of any aggravated felony." § 1229b(a)(3) (1994 ed., Supp. V). In the Attorney General's opinion, these amendments have entirely withdrawn his § 212(c) authority to waive deportation for aliens previously convicted of aggravated felonies. Moreover, as a result of other amendments adopted in AEDPA and IIRIRA, the Attorney General also maintains that there is no judicial forum available to decide whether these statutes did, in fact, deprive him of the power to grant such relief. As we shall explain below, we disagree on both points. In our view, a federal court does have jurisdiction to decide the merits of the legal question, and gest. In addition, the nature of the changes (bringing under the definition more minor crimes which may have been committed many years ago) suggests that an increased percentage of applicants will meet the stated criteria for § 212(c) relief. 7The new provision barred review for individuals ordered deported because of a conviction for an aggravated felony, for a drug conviction, for certain weapons or national security violations, and for multiple convictions involving crimes of moral turpitude. See 110 Stat. 1277. 298 the District Court and the Court of Appeals decided that question correctly in this case. II The first question we must consider is whether the District Court retains jurisdiction under the general habeas corpus statute, 28 U. S. C. § 2241, to entertain St. Cyr's challenge. His application for a writ raises a pure question of law. He does not dispute any of the facts that establish his deportability or the conclusion that he is deportable. Nor does he contend that he would have any right to have an unfavorable exercise of the Attorney General's discretion reviewed in a judicial forum. Rather, he contests the Attorney General's conclusion that, as a matter of statutory interpretation, he is not eligible for discretionary relief. The District Court held, and the Court of Appeals agreed, that it had jurisdiction to answer that question in a habeas corpus proceeding.8 The INS argues, however, that four sections of the 1996 statutes-specifically, §401(e) of AEDPA and three sections of IIRIRA (8 U. S. C. §§ 1252(a)(1), 1252(a)(2)(C), and 1252(b)(9) (1994 ed., Supp. V))-stripped the courts of jurisdiction to decide the question of law presented by respondent's habeas corpus application. For the INS to prevail it must overcome both the strong presumption in favor of judicial review of administrative action 9 and the longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction. See Ex parte Yerger, 8 Wall. 85, 102 (1869) ("We are not at liberty to except from [habeas corpus jurisdiction] any cases not plainly excepted by law"); Felker v. Turpin, 518 U. S. 651 , 660-661 (1996) (noting that "[n]o provision of Title I 8 See n. 1, supra; n. 33, infra. 9 See, e. g., Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667 , 670 (1986); see also McNary v. Haitian Refugee Center, Inc., 498 U. S. 479 , 498 (1991); Webster v. Doe, 486 U. S. 592 , 603 (1988); Johnson v. Robison, 415 U. S. 361 , 373-374 (1974). 299 mentions our authority to entertain original habeas petitions," and the statute "makes no mention of our authority to hear habeas petitions filed as original matters in this Court").10 Implications from statutory text or legislative history are not sufficient to repeal habeas jurisdiction; instead, Congress must articulate specific and unambiguous statutory directives to effect a repeal. Ex parte Yerger, 8 Wall., at 105 ("Repeals by implication are not favored. They are seldom admitted except on the ground of repugnancy; and never, we think, when the former act can stand together with the new act").l1 In this case, the plain statement rule draws additional reinforcement from other canons of statutory construction. First, as a general matter, when a particular interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568 , 575 (1988). Second, if an otherwise acceptable construction of a statute 10 "In traditionally sensitive areas, ... the requirement of [a] clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision." Gregory v. Ashcroft, 501 U. S. 452 , 461 (1991) (internal quotation marks and citations omitted); see United States v. Nordic Village, Inc., 503 U. S. 30 , 33 (1992) ("Waivers of the [Federal] Government's sovereign immunity, to be effective, must be 'unequivocally expressed' "); Atascadero State Hospital v. Scanlon, 473 U. S. 234 , 242 (1985) ("Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute"); see also Eskridge & Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 597 (1992) ("[T]he Court ... has tended to create the strongest clear statement rules to confine Congress's power in areas in which Congress has the constitutional power to do virtually anything"). 11 Cf. Ruckelshaus v. Monsanto Co., 467 U. S. 986 , 1018 (1984) ("[W]here two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective" (internal quotation marks omitted)). 300 would raise serious constitutional problems, and where an alternative interpretation of the statute is "fairly possible," see Crowell v. Benson, 285 U. S. 22 , 62 (1932), we are obligated to construe the statute to avoid such problems. See Ashwander v. TVA, 297 U. S. 288 , 341, 345-348 (1936) (Brandeis, J., concurring); United States ex rel. Attorney General A construction of the amendments at issue that would entirely preclude review of a pure question of law by any court would give rise to substantial constitutional questions. Article I, § 9, cl. 2, of the Constitution provides: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Because of that Clause, some "judicial intervention in deportation cases" is unquestionably "required by the Constitution." Heikkila v. Barber, 345 U. S. 229, 235 (1953). Unlike the provisions of AEDPA that we construed in Felker v. Turpin, 518 U. S. 651 (1996), this case involves an alien subject to a federal removal order rather than a person confined pursuant to a state-court conviction. Accordingly, regardless of whether the protection of the Suspension 12"As was stated in Hooper v. California, 155 U. S. 648 , 657 (1895), '[t]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.' This approach ... also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Constitution. The courts will therefore not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it." Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568 , 575 (1988) (citing Grenada County Supervisors v. Brogden, 112 U. S. 261 , 269 (1884)); see also NLRB v. Catholic Bishop of Chicago, 440 U. S. 490 , 499-501, 504 (1979); Murray v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804); Machinists v. Street, 367 U. S. 740 , 749-750 (1961); Crowell v. Benson, 285 U. S. 22 , 62 (1932); Lucas v. Alexander, 279 U. S. 573 , 577 (1929); Panama R. Co. v. Johnson, 264 U. S. 375 , 390 (1924); Delaware & Hudson Co., 213 U. S., at 407-408; Parsons v. Bedford, 3 Pet. 433, 448-449 (1830) (Story, J.). 301 Clause encompasses all cases covered by the 1867 Amendment extending the protection of the writ to state prisoners, cf. id., at 663-664, or by subsequent legal developments, see LaGuerre v. Reno, 164 F.3d 1035 (CA7 1998), at the absolute minimum, the Suspension Clause protects the writ "as it existed in 1789." 13 Felker, 518 U. S., at 663-664. At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.14 See, e. g., Swain v. Pressley, 430 U. S. 372 , 380, n. 13 (1977); id., at 385-386 (Burger, C. J., concurring) (noting that "the traditional Great Writ was largely a remedy against executive detention"); Brown v. Allen, 344 U. S. 443 , 533 (1953) (Jackson, J., concurring in result) ("The historic purpose of the writ has been to relieve detention by executive authorities without judicial trial"). In England prior to 1789, in the Colonies,15 and in this Nation during the formative years of our Government, the writ of habeas corpus was available to nonenemy aliens as well as to citi- 13 The fact that this Court would be required to answer the difficult question of what the Suspension Clause protects is in and of itself a reason to avoid answering the constitutional questions that would be raised by concluding that review was barred entirely. Cf. Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 980 (1998) (noting that "reconstructing habeas corpus law ... [for purposes of a Suspension Clause analysis] would be a difficult enterprise, given fragmentary documentation, state-by-state disuniformity, and uncertainty about how state practices should be transferred to new national institutions"). 14 At common law, "[w]hile habeas review of a court judgment was limited to the issue of the sentencing court's jurisdictional competency, an attack on an executive order could raise all issues relating to the legality of the detention." Note, Developments in the Law-Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1238 (1970). 15 See W. Duker, A Constitutional History of Habeas Corpus 115 (1980) (noting that "the common-law writ of habeas corpus was in operation in all thirteen of the British colonies that rebelled in 1776"). 302 zens.16 It enabled them to challenge Executive and private detention in civil cases as well as criminap7 Moreover, the issuance of the writ was not limited to challenges to the jurisdiction of the custodian, but encompassed detentions based on errors of law, including the erroneous application or interpretation of statutes.18 It was used to command the discharge of seamen who had a statutory exemption from impressment into the British Navy,19 to emancipate slaves,2o and to obtain the freedom of apprentices 21 and asylum inmates.22 Most important, for our purposes, those early cases contain no suggestion that habeas relief in cases in- 16 See Sommersett v. Stewart, 20 How. St. Tr. 1, 79-82 (K. B. 1772); Case of the Hottentot Venus, 13 East 195, 104 Eng. Rep. 344 (K. B. 1810); King v. Schiever, 2 Burr. 765, 97 Eng. Rep. 551 (K. B. 1759); United States v. Villato, 28 F. Cas. 377 (No. 16,622) (CC Pa. 1797); Commonwealth v. Holloway, 1 Sergo & Rawle 392 (Pa. 1815); Ex parte D'Olivera, 7 F. Cas. 853 (No. 3,967) (CC Mass. 1813); see also Brief for Legal Historians as Amici Curiae 10-11; Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev., at 990-1004. 17See King V. Nathan, 2 Strange 880, 93 Eng. Rep. 914 (K. B. 1724); Ex parte Boggin, 13 East 549, 104 Eng. Rep. 484 (K. B. 1811); Hollingshead's Case, 1 Salkeld 351, 91 Eng. Rep. 307 (K. B. 1702); Dr. Groenvelt's Case, 1 Ld. Raym. 213, 91 Eng. Rep. 1038 (K. B. 1702); Bushell's Case, Vaughan 135, 124 Eng. Rep. 1006 (C. P. 1670); Ex parte Randolph, 20 F. Cas. 242 (No. 11,558) (CC Va. 1833) (Marshall, C. J., on circuit); Ex parte D'Olivera, 7 F. Cas. 853 (No. 3,967) (CC Mass. 1813); Respublica V. Keppele, 2 Dall. 197 (Pa. 1793). 18 See, e. g., Hollingshead's Case, 1 Salkeld 351, 91 Eng. Rep. 307 (K. B. 1702); King V. Nathan, 2 Strange 880, 93 Eng. Rep. 914 (K. B. 1724); United States V. Bainbridge, 24 F. Cas. 946 (No. 14,497) (CC Mass. 1816); Ex parte Randolph, 20 F. Cas. 242 (No. 11,558) (CC Va. 1833) (Marshall, C. J., on circuit); see also Brief for Legal Historians as Amici Curiae 3-10 (collecting cases). 19 See, e. g., the case of King V. White (1746) quoted in the addendum to Sommersett V. Stewart, 20 How. St. Tr., at 1376. 2°Id., at 79-82. 21 King V. Delaval, 3 Burr. 1434,97 Eng. Rep. 913 (K. B. 1763). 22 King V. Turlington, 2 Burr. 1115,97 Eng. Rep. 741 (K. B. 1761). 303 volving Executive detention was only available for constitutional error.23 Notwithstanding the historical use of habeas corpus to remedy unlawful Executive action, the INS argues that this case falls outside the traditional scope of the writ at common law. It acknowledges that the writ protected an individual who was held without legal authority, but argues that the writ would not issue where "an official had statutory authorization to detain the individual ... but ... the official was not properly exercising his discretionary power to determine whether the individual should be released." Brief for Respondent in Colcano-Martinez v. INS, O. T. 2000, No. 00-1011, p. 33. In this case, the INS points out, there is no dispute that the INS had authority in law to hold St. Cyr, as he is eligible for removal. St. Cyr counters that there is historical evidence of the writ issuing to redress the 23 See, e. g., Ex parte Boggin, 13 East 549, n. (b), 104 Eng. Rep. 484, n. (a)2 (K. B. 1811) (referring to Chalacombe's Case, in which the court required a response from the Admiralty in a case involving the impressment of a master of a coal vessel, despite the argument that exemptions for "seafaring persons of this description" were given only as a matter of "grace and favour," not "of right"); Hollingshead's Case, 1 Salkeld 351, 91 Eng. Rep. 307 (K. B. 1702) (granting relief on the grounds that the language of the warrant of commitment-authorizing detention until "otherwise discharged by due course of law"-exceeded the authority granted under the statute to commit "till [the bankrupt] submit himself to be examined by the commissioners"); see also Brief for Legal Historians as Amici Curiae 8-10, 18-28. The dissent, however, relies on Chalacombe's Case as its sole support for the proposition that courts treated Executive discretion as "lying entirely beyond the judicial ken." See post, at 343 (opinion of SCALIA, J.). Although Lord Ellenborough expressed "some hesitation" as to whether the case should "stand over for the consideration of the Admiralty," he concluded that, given the public importance of the question, the response should be called for. 13 East, at 549, n. (b), 104 Eng. Rep., at 484, n. (a)2. The case ultimately became moot when the Admiralty discharged Chalacombe, but it is significant that, despite some initial hesitation, the court decided to proceed. 304 improper exercise of official discretion. See n. 23, supra; Hafetz, The Untold Story of Noncriminal Habeas Corpus and the 1996 Immigration Acts, 107 Yale L. J. 2509 (1998). St. Cyr's constitutional position also finds some support in our prior immigration cases. In Heikkila v. Barber, the Court observed that the then-existing statutory immigration scheme "had the effect of precluding judicial intervention in deportation cases except insofar as it was required by the Constitution," 345 U. S., at 234-235 (emphasis added)-and that scheme, as discussed below, did allow for review on habeas of questions of law concerning an alien's eligibility for discretionary relief. Therefore, while the INS' historical arguments are not insubstantial, the ambiguities in the scope of the exercise of the writ at common law identified by St. Cyr, and the suggestions in this Court's prior decisions as to the extent to which habeas review could be limited consistent with the Constitution, convince us that the Suspension Clause questions that would be presented by the INS' reading of the immigration statutes before us are difficult and significant.24 In sum, even assuming that the Suspension Clause protects only the writ as it existed in 1789, there is substantial 24 The dissent reads into Chief Justice Marshall's opinion in Ex parte Bollman, 4 Cranch 75 (1807), support for a proposition that the Chief Justice did not endorse, either explicitly or implicitly. See post, at 339340 (opinion of SCALIA, J.). He did note that "the first congress of the United States" acted under "the immediate influence" of the injunction provided by the Suspension Clause when it gave "life and activity" to "this great constitutional privilege" in the Judiciary Act of 1789, and that the writ could not be suspended until after the statute was enacted. 4 Cranch, at 95. That statement, however, surely does not imply that Marshall believed the Framers had drafted a Clause that would proscribe a temporary abrogation of the writ, while permitting its permanent suspension. Indeed, Marshall's comment expresses the far more sensible view that the Clause was intended to preclude any possibility that "the privilege itself would be lost" by either the inaction or the action of Congress. See, e. g., ibid. (noting that the Founders "must have felt, with peculiar force, the obligation" imposed by the Suspension Clause). 305 evidence to support the proposition that pure questions of law like the one raised by the respondent in this case could have been answered in 1789 by a common-law judge with power to issue the writ of habeas corpus. It necessarily follows that a serious Suspension Clause issue would be presented if we were to accept the INS' submission that the 1996 statutes have withdrawn that power from federal judges and provided no adequate substitute for its exercise. See Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1395-1397 (1953). The necessity of resolving such a serious and difficult constitutional issue-and the desirability of avoiding that necessity-simply reinforce the reasons for requiring a clear and unambiguous statement of congressional intent. Moreover, to conclude that the writ is no longer available in this context would represent a departure from historical practice in immigration law. The writ of habeas corpus has always been available to review the legality of Executive detention. See Felker, 518 U. S., at 663; Swain v. Pressley, 430 U. S., at 380, n. 13; id., at 385-386 (Burger, C. J., concurring); Brown v. Allen, 344 U. S., at 533 (Jackson, J., concurring in result). Federal courts have been authorized to issue writs of habeas corpus since the enactment of the Judiciary Act of 1789, and § 2241 of the Judicial Code provides that federal judges may grant the writ of habeas corpus on the application of a prisoner held "in custody in violation of the Constitution or laws or treaties of the United States." 25 28 U. S. C. § 2241. Before and after the enactment in 1875 of the first statute regulating immigration, 18 Stat. 477, that jurisdiction was regularly invoked on behalf of noncitizens, particularly in the immigration context. See, e. g., In re 25 In fact, § 2241 descends directly from § 14 of the Judiciary Act of 1789 and the 1867 Act. See Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 82; Act of Feb. 5, 1867, ch. 28, 14 Stat. 385. Its text remained undisturbed by either AEDPA or IIRIRA. 306 Kaine, 14 How. 103 (1853); United States v. Jung Ah Lung, 124 U. S. 621 , 626-632 (1888). Until the enactment of the 1952 Immigration and Nationality Act, the sole means by which an alien could test the legality of his or her deportation order was by bringing a habeas corpus action in district court.26 See, e. g., United States v. Jung Ah Lung, 124 U. S. 621 (1888); Heikkila, 345 U. S., at 235; Chin Yow v. United States, 208 U. S. 8 (1908); Ng Fung Ho v. White, 259 U. S. 276 , 284 (1922). In such cases, other than the question whether there was some evidence to support the order,27 the courts generally did not review factual determinations made by the Executive. See Ekiu v. United States, 142 U. S. 651 , 659 (1892). However, they did review the Executive's legal determinations. See Gegiow v. Uhl, 239 U. S. 3 , 9 (1915) ("The statute by enumerating the conditions upon which the allowance to land may be denied, prohibits the denial in other cases. And when the record shows that a commissioner of immigration is exceeding his power, the alien may demand his release upon habeas corpus"); see also Neuman, Jurisdiction and the Rule of Law after the 1996 Immigration Act, 113 Harv. L. Rev. 1963, 1965-1969 (2000).28 In case after case, courts answered questions of law in ha- 26 After 1952, judicial review of deportation orders could also be obtained by declaratory judgment actions brought in federal district court. Shaughnessy v. Pedreiro, 349 U. S. 48 (1955). However, in 1961, Congress acted to consolidate review in the courts of appeals. See Foti v. INS, 375 27 See, e. g., United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103 , 106 (1927) (holding that deportation "on charges unsupported by any evidence is a denial of due process which may be corrected on habeas corpus"). 28 "And when the record shows that a commissioner of immigration is exceeding his power, the alien may demand his release upon habeas corpus. The conclusiveness of the decisions of immigration officers under § 25 is conclusiveness upon matters of fact. This was implied in Nishimura Ekiu v. United States, 142 U. S. 651 , relied on by the Government." Gegiow v. Uhl, 239 U. S. 3 , 9 (1915). 307 beas corpus proceedings brought by aliens challenging Executive interpretations of the immigration laws.29 Habeas courts also regularly answered questions of law that arose in the context of discretionary relief. See, e. g., United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (1954); United States ex rel. Hintopoulos v. Shaughnessy, 353 U. S. 72 , 77 (1957).30 Traditionally, courts recognized a distinction between eligibility for discretionary relief, on the one hand, and the favorable exercise of discretion, on the other hand. See Neuman, 113 Harv. L. Rev., at 1991 (noting the "strong tradition in habeas corpus law ... that subjects the legally erroneous failure to exercise discretion, unlike a substantively unwise exercise of discretion, to inquiry on the writ"). Eligibility that was "governed by spe- 29 See, e. g., Delgadillo v. Carmichael, 332 U. S. 388 ,391 (1947) (rejecting on habeas the Government's interpretation of the statutory term "entry"); Bridges v. Wixon, 326 U. S. 135 , 149 (1945) (rejecting on habeas the Government's interpretation of the term "affiliation" with the Communist Party); Kessler v. Strecker, 307 U. S. 22 , 35 (1939) (holding that "as the Secretary erred in the construction of the statute, the writ must be granted"). Cf. Mahler v. Eby, 264 U. S. 32 , 46 (1924) (reviewing on habeas the question whether the absence of an explicit factual finding that the aliens were "undesirable" invalidated the warrant of deportation). 30 Indeed, under the pre-1952 regime which provided only what Heikkila termed the constitutional minimum of review, on habeas lower federal courts routinely reviewed decisions under the Seventh Proviso, the statutory predecessor to § 212(c), to ensure the lawful exercise of discretion. See, e. g., United States ex rel. Devenuto v. Curran, 299 F.2d 6 (CA2 1924); Hee Fuk Yuen v. White, 273 F. 10 (CA9 1921); United States ex rel. Patti v. Curran, 22 F.2d 314 (SDNY 1926); Gabriel v. Johnson, 29 F.2d 347 (CA1 1928). During the same period, habeas was also used to review legal questions that arose in the context of the Government's exercise of other forms of discretionary relief under the 1917 Act. See, e. g., United States ex rel. Adel v. Shaughnessy, 183 F.2d 371 (CA2 1950); United States ex rel. Kaloudis v. Shaughnessy, 180 F.2d 489 (CA2 1950); Mastrapasqua v. Shaughnessy, 180 F.2d 999 (CA2 1950); United States ex rel. de Sousa v. Day, 22 F.2d 472 (CA2 1927); Gonzalez-Martinez v. Landon, 203 F. 2d 196 (CA9 1953); United States ex rel. Berman v. Curran, 13 F.2d 96 (CA3 1926). 308 cific statutory standards" provided "a right to a ruling on an applicant's eligibility," even though the actual granting of relief was "not a matter of right under any circumstances, but rather is in all cases a matter of grace." Jay v. Boyd, 351 U. S. 345 , 353-354 (1956). Thus, even though the actual suspension of deportation authorized by § 19(c) of the Immigration Act of 1917 was a matter of grace, in United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (1954), we held that a deportable alien had a right to challenge the Executive's failure to exercise the discretion authorized by the law. The exercise of the District Court's habeas corpus jurisdiction to answer a pure question of law in this case is entirely consistent with the exercise of such jurisdiction in Accardi. See also United States ex rel. Hintopoulos v. Shaughnessy, 353 U. S., at 77. Thus, under the pre-1996 statutory scheme-and consistent with its common-law antecedents-it is clear that St. Cyr could have brought his challenge to the BIA's legal determination in a habeas corpus petition under 28 U. S. C. § 2241. The INS argues, however, that AEDPA and IIRIRA contain four provisions that express a clear and unambiguous statement of Congress' intent to bar petitions brought under § 2241, despite the fact that none of them mention that section. The first of those provisions is AEDPA's § 401(e). While the title of § 401(e)-"ELIMINATION OF CUSTODY REVIEW BY HABEAS CORPus"-would seem to support the INS' submission, the actual text of that provision does not.31 As we have previously noted, a title alone is not controlling. Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206 , 31 The section reads as follows: "(e) ELIMINATION OF CUSTODY REVIEW BY HABEAS CORPUS.-Section 106(a) of the Immigration and Nationality Act (8 U. S. C. 1105a(a)) is amended- "(1) in paragraph (8), by adding 'and' at the end; "(2) in paragraph (9), by striking '; and' at the end and inserting a period; and "(3) by striking paragraph (10)." 110 Stat. 1268. 309 212 (1998) (" '[T]he title of a statute ... cannot limit the plain meaning of the text. For interpretive purposes, [it is] of use only when [it] shed[s] light on some ambiguous word or phrase'" (quoting Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519 , 528-529 (1947))). The actual text of § 401(e), unlike its title, merely repeals a subsection of the 1961 statute amending the judicial review provisions of the 1952 Immigration and Nationality Act. See n. 31, supra. Neither the title nor the text makes any mention of 28 U. S. C. § 2241. Under the 1952 Act, district courts had broad authority to grant declaratory and injunctive relief in immigration cases, including orders adjudicating deportability and those denying suspensions of deportability. See Foti v. INS, 375 U. S. 217 , 225-226 (1963). The 1961 Act withdrew that jurisdiction from the district courts and provided that the procedures set forth in the Hobbs Act would be the "sole and exclusive procedure" for judicial review of final orders of deportation, subject to a series of exceptions. See 75 Stat. 651. The last of those exceptions stated that "any alien held in custody pursuant to an order of deportation may obtain review thereof by habeas corpus proceedings." See id., at 652, codified at 8 U. S. C. § 1l05a(10) (repealed Sept. 30, 1996). The INS argues that the inclusion of that exception in the 1961 Act indicates that Congress must have believed that it would otherwise have withdrawn the pre-existing habeas corpus jurisdiction in deportation cases, and that, as a result, the repeal of that exception in AEDPA in 1996 implicitly achieved that result. It seems to us, however, that the 1961 exception is best explained as merely confirming the limited scope of the new review procedures. In fact, the 1961 House Report provides that this section "in no way disturbs the Habeas Corpus Act." 32 H. R. Rep. No. 1086, 87th Cong., 1st 32 Moreover, the focus of the 1961 amendments appears to have been the elimination of Administrative Procedure Act (APA) suits that were brought in the district court and that sought declaratory relief. See, e. g., 310 Sess., 29 (1961). Moreover, a number of the courts that considered the interplay between the general habeas provision and INA § 106(a)(10) after the 1961 Act and before the enactment of AEDPA did not read the 1961 Act's specific habeas provision as supplanting jurisdiction under § 2241. Orozco v. INS, 911 F.2d 539 , 541 (CAll 1990); United States ex rel. Marcello v. INS, 634 F.2d 964 , 967 (CA5 1981); Sotelo Mondragon v. Ilchert, 653 F.2d 1254 , 1255 (CA9 1980). In any case, whether § 106(a)(10) served as an independent grant of habeas jurisdiction or simply as an acknowledgment of continued jurisdiction pursuant to § 2241, its repeal cannot be sufficient to eliminate what it did not originally grantnamely, habeas jurisdiction pursuant to 28 U. S. C. § 2241. 33 See Ex parte Yerger, 8 Wall., at 105-106 (concluding that the repeal of "an additional grant of jurisdiction" does not "operate as a repeal of jurisdiction theretofore allowed"); Ex parte McCardle, 7 Wall. 506, 515 (1869) (concluding that the repeal of portions of the 1867 statute conferring appellate jurisdiction on the Supreme Court in habeas proceedings did "not affect the jurisdiction which was previously exercised"). The INS also relies on three provisions of IIRIRA, now codified at 8 U. S. C. §§ 1252(a)(1), 1252(a)(2)(C), and H. R. No. 2478, 85th Cong., 2d Sess., 9 (1958) ("[H]abeas corpus is a far more expeditious judicial remedy than that of declaratory judgment"); 104 Congo Rec. 17173 (1958) (statement of Rep. Walter) (stating that courts would be "relieved of a great burden" once declaratory actions were eliminated and noting that habeas corpus was an "expeditious" means of review). 33 As the INS acknowledges, the overwhelming majority of Courts of Appeals concluded that district courts retained habeas jurisdiction under §2241 after AEDPA. See Goncalves V. Reno, 144 F.3d 110 (CA1 1998); Henderson V. INS, 157 F.3d 106 (CA2 1998); Sandoval V. Reno, 166 F. 3d 225 (CA3 1999); Bowrin V. INS, 194 F.3d 483 (CA4 1999); RequenaRodriguez V. Pasquarell, 190 F.3d 299 (CA5 1999); Pak V. Reno, 196 F. 3d 666 (CA6 1999); Shah V. Reno, 184 F.3d 719 (CA8 1999); Magana-Pizano V. INS, 200 F.3d 603 (CA9 1999); Jurado-Gutierrez V. Greene, 190 F.3d 1135 (CAlO 1999); Mayers V. INS, 175 F.3d 1289 (CAll 1999). But see LaGuerre V. Reno, 164 F.3d 1035 (CA7 1998). 311 1252(b)(9) (1994 ed., Supp. V). As amended by § 306 of IIRIRA, 8 U. S. C. § 1252(a)(1) (1994 ed., Supp. V) now provides that, with certain exceptions, including those set out in subsection (b) of the same statutory provision, "[j]udicial review of a final order of removal ... is governed only by" the Hobbs Act's procedures for review of agency orders in the courts of appeals. Similarly, § 1252(b)(9), which addresses the "[c]onsolidation of questions for judicial review," provides that "[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section." 34 Finally, § 1252(a)(2)(C), which concerns "[m]atters not subject to judicial review," states: "Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed" certain enumerated criminal offenses. The term "judicial review" or "jurisdiction to review" is the focus of each of these three provisions. In the immigration context, "judicial review" and "habeas corpus" have historically distinct meanings. See Heikkila v. Barber, 345 U. S. 229 (1953). In Heikkila, the Court concluded that the finality provisions at issue "preclud[ed] judicial review" to the maximum extent possible under the Constitution, and thus concluded that the APA was inapplicable. Id., at 235. Nevertheless, the Court reaffirmed the right to habeas 34 Title 8 U. S. C. § 1252(g) (1994 ed., Supp. V), entitled "Exclusive jurisdiction," is not relevant to our analysis of the jurisdictional issue. In Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471 (1999) (AADC), we explained that that provision applied only to three types of discretionary decisions by the Attorney General-specifically, to commence proceedings, to adjudicate cases, or to execute removal ordersnone of which are at issue here. 312 corpus. Ibid. Noting that the limited role played by the courts in habeas corpus proceedings was far narrower than the judicial review authorized by the AP A, the Court concluded that "it is the scope of inquiry on habeas corpus that differentiates" habeas review from "judicial review." Id., at 236; see also, e. g., Terlinden v. Ames, 184 U. S. 270 , 278 (1902) (noting that under the extradition statute then in effect there was "no right of review to be exercised by any court or judicial officer," but that limited review on habeas was nevertheless available); Ekiu, 142 U. S., at 663 (observing that while a decision to exclude an alien was subject to inquiry on habeas, it could not be "impeached or reviewed"). Both §§ 1252(a)(1) and (a)(2)(C) speak of "judicial review"that is, full, nonhabeas review. Neither explicitly mentions habeas,35 or 28 U. S. C. § 2241.36 Accordingly, neither pro- 35 Contrary to the dissent, see post, at 330 (opinion of SCALIA, J.), we do not think, given the longstanding distinction between "judicial review" and "habeas," that § 1252(e)(2)'s mention of habeas in the subsection governing "[j]udicial review of orders under section 1225(b)(1)" is sufficient to establish that Congress intended to abrogate the historical distinction between two terms of art in the immigration context when enacting IIRIRA. "[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them." Morissette At most, § 1252(e)(2) introduces additional statutory ambiguity, but ambiguity does not help the INS in this case. As we noted above, only the clearest statement of congressional intent will support the INS' position. See supra, at 305. 36 It is worth noting that in enacting the provisions of AEDPA and IIRIRA that restricted or altered judicial review, Congress did refer specifically to several different sources of jurisdiction. See, e. g., § 381, 110 Stat. 3009-650 (adding to grant of jurisdiction under 8 U. S. C. § 1329 (1994 ed., Supp. V) a provision barring jurisdiction under that provision 313 vision speaks with sufficient clarity to bar jurisdiction pursuant to the general habeas statute. The INS also makes a separate argument based on 8 U. S. C. § 1252(b)(9) (1994 ed., Supp. V). We have previously described § 1252(b)(9) as a "zipper clause." AADC, 525 U. S. 471 , 483 (1999). Its purpose is to consolidate "judicial review" of immigration proceedings into one action in the court of appeals, but it applies only "[w]ith respect to review of an order of removal under subsection (a)(l)." 8 U. S. C. § 1252(b) (1994 ed., Supp. V).37 Accordingly, this provision, by its own terms, does not bar habeas jurisdiction over removal orders not subject to judicial review under § 1252(a)(1)-including orders against aliens who are removable by reason of having committed one or more criminal offenses. Subsection (b)(9) simply provides for the consolidation of issues to be brought in petitions for "[j]udicial review," which, as we note above, is a term historically dis- for suits against the United States or its officers or agents). Section 401(e), which eliminated supplemental habeas jurisdiction under the INA, expressly strikes paragraph 10 of § 106(a) of the INA, not 28 U. S. C. §2241. Similarly, §306 of IIRIRA, which enacted the new INA §242, specifically precludes reliance on the provisions of the APA providing for the taking of additional evidence, and imposes specific limits on the availability of declaratory relief. See, e. g., 8 U. S. C. § 1535(e)(2) (1994 ed., Supp. V) (explicitly barring aliens detained under "alien terrorist removal" procedures from seeking "judicial review, including application for a writ of habeas corpus, except for a claim by the alien that continued detention violates the alien's rights under the Constitution"). At no point, however, does IIRIRA make express reference to § 2241. Given the historic use of § 2241 jurisdiction as a means of reviewing deportation and exclusion orders, Congress' failure to refer specifically to § 2241 is particularly significant. Cf. Chisom v. Roemer, 501 U. S. 380 , 396, n. 23 (1991). 37 As we noted in AADC, courts construed the 1961 amendments as channeling review of final orders to the courts of appeals, but still permitting district courts to exercise their traditional jurisdiction over claims that were viewed as being outside of a "final order." 525 U. S., at 485. Read in light of this history, § 1252(b)(9) ensures that review of those types of claims will now be consolidated in a petition for review and considered by the courts of appeals. 314 tinct from habeas. See Mahadeo v. Reno, 226 F.3d 3 , 12 (GAl 2000); Flores-Miramontes v. INS, 212 F.3d 1133 , 1140 (GA9 2000). It follows that § 1252(b)(9) does not clearly apply to actions brought pursuant to the general habeas statute, and thus cannot repeal that statute either in part or in whole. If it were clear that the question of law could be answered in another judicial forum, it might be permissible to accept the INS' reading of § 1252. But the absence of such a forum, coupled with the lack of a clear, unambiguous, and express statement of congressional intent to preclude judicial consideration on habeas of such an important question of law, strongly counsels against adopting a construction that would raise serious constitutional questions.38 Gf. Felker, 518 U. S., at 660-661. Accordingly, we conclude that habeas jurisdiction under § 2241 was not repealed by AEDPA and IIRIRA. III The absence of a clearly expressed statement of congressional intent also pervades our review of the merits of St. Gyr's claim. Two important legal consequences ensued from respondent's entry of a guilty plea in March 1996: (1) He became subject to deportation, and (2) he became eligible for a discretionary waiver of that deportation under the pre- 38 The dissent argues that our decision will afford more rights to criminal aliens than to noncriminal aliens. However, as we have noted, the scope of review on habeas is considerably more limited than on APA-style review. Moreover, this case raises only a pure question of law as to respondent's statutory eligibility for discretionary relief, not, as the dissent suggests, an objection to the manner in which discretion was exercised. As to the question of timing and congruent means of review, we note that Congress could, without raising any constitutional questions, provide an adequate substitute through the courts of appeals. See, e. g., Swain v. Pressley, 430 U. S. 372 , 381 (1977) ("[T]he substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention" does not violate the Suspension Clause). 315 vailing interpretation of § 212(c). When IIRIRA went into effect in April 1997, the first consequence was unchanged except for the fact that the term "removal" was substituted for "deportation." The issue that remains to be resolved is whether IIRIRA § 304(b) changed the second consequence by eliminating respondent's eligibility for a waiver. The INS submits that the statute resolves the issue because it unambiguously communicates Congress' intent to apply the provisions of IIRIRA's Title III-A to all removals initiated after the effective date of the statute, and, in any event, its provisions only operate prospectively and not retrospectively. The Court of Appeals, relying primarily on the analysis in our opinion in Landgrafv. USI Film Prod ucts, 511 U. S. 244 (1994), held, contrary to the INS' arguments, that Congress' intentions concerning the application of the "Cancellation of Removal" procedure are ambiguous and that the statute imposes an impermissible retroactive effect on aliens who, in reliance on the possibility of § 212(c) relief, pleaded guilty to aggravated felonies. See 229 F. 3d, at 416, 420. We agree. Retroactive statutes raise special concerns. See Landgraf, 511 U. S., at 266. "The Legislature's unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals." 39 Ibid. Accordingly, "congressional enactments ... will not be construed to have retroactive effect unless their language requires this 39 The INS appears skeptical of the notion that immigrants might be considered an "'unpopular group.''' See Brief for Petitioner 15, n. 8. But see Legomsky, Fear and Loathing in Congress and the Courts: Immigration and Judicial Review, 78 Texas L. Rev. 1615, 1626 (2000) (observing that, because noncitizens cannot vote, they are particularly vulnerable to adverse legislation). 316 result." Bowen v. Georgetown Univ. Hospital, 488 U. S. 204 , 208 (1988). "[This] presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. For that reason, the 'principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal human appeal.' Kaiser, 494 U. S., at 855 (SCALIA, J., concurring). In a free, dynamic society, creativity in both commercial and artistic endeavors is fostered by a rule of law that gives people confidence about the legal consequences of their actions." Landgraf, 511 U. S., at 265-266 (footnote omitted). Despite the dangers inherent in retroactive legislation, it is beyond dispute that, within constitutional limits, Congress has the power to enact laws with retrospective effect. See id., at 268. A statute may not be applied retroactively, however, absent a clear indication from Congress that it intended such a result. "Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits." Id., at 272-273. Accordingly, the first step in determining whether a statute has an impermissible retroactive effect is to ascertain whether Congress has directed with the requisite clarity that the law be applied retrospectively. Martin The standard for finding such unambiguous direction is a demanding one. "[C]ases where this Court has found truly 'retroactive' effect adequately authorized by statute have 317 involved statutory language that was so clear that it could sustain only one interpretation." Lindh v. Murphy, 521 U. S. 320, 328, n. 4 (1997). The INS makes several arguments in favor of its position that IIRIRA achieves this high level of clarity. First, the INS points to the comprehensive nature of IIRIRA's revision of federal immigration law. "Congress's comprehensive establishment of a new immigration framework," the INS argues, "shows its intent that, after a transition period, the provisions of the old law should no longer be applied at all." Brief for Petitioner 33-34. We rejected a similar argument, however, in Landgraf, a case that, like this one, involved Congress' comprehensive revision of an important federal statute. 511 U. S., at 260-261. By itself, the comprehensiveness of a congressional enactment says nothing about Congress' intentions with respect to the retroactivity of the enactment's individual provisions.40 The INS also points to the effective date for Title III-A as providing a clear statement of congressional intent to apply IIRIRA's repeal of § 212(c) retroactively. See IIRIRA § 309(a), 110 Stat. 3009-625. But the mere promulgation of an effective date for a statute does not provide sufficient assurance that Congress specifically considered the potential unfairness that retroactive application would produce. For that reason, a "statement that a statute will become effective on a certain date does not even arguably suggest that it has any application to conduct that occurred at an earlier date." Landgraf, 511 U. S., at 257. The INS further argues that any ambiguity in Congress' intent is wiped away by the "saving provision" in IIRIRA § 309(c)(1), 110 Stat. 3009-625. Brief for Petitioner 34-36. That provision states that, for aliens whose exclusion or deportation proceedings began prior to the Title III-A effec- 40 The INS' argument that refusing to apply § 304(b) retroactively creates an unrecognizable hybrid of old and new is, for the same reason, unconvincing. 318 tive date, "the amendments made by [Title III-A] shall not apply, and ... the proceedings (including judicial review thereof) shall continue to be conducted without regard to such amendments."41 This rule, however, does not communicate with unmistakable clarity Congress' intention to apply its repeal of § 212(c) retroactively. Nothing in either § 309(c)(1) or the statute's legislative history even discusses the effect of the statute on proceedings based on pre- IIRIRA convictions that are commenced after its effective date.42 Section 309(c)(1) is best read as merely setting out the procedural rules to be applied to removal proceedings pending on the effective date of the statute. Because "[c]hanges in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity," Landgraf, 511 U. S., at 275, it was necessary for Congress to identify which set of procedures would apply in those circumstances. As the Conference Report expressly explained, "[§ 309(c)] provides for the transition to new procedures in the case of an alien already in exclusion or deportation proceedings on the effective date." H. R. Conf. Rep. No. 104-828, p. 222 (1996) (emphasis added). Another reason for declining to accept the INS' invitation to read § 309(c)(1) as dictating the temporal reach of IIRIRA § 304(b) is provided by Congress' willingness, in other sections of IIRIRA, to indicate unambiguously its intention 41 "(c) TRANSITION FOR ALIENS IN PROCEEDINGS.- "(1) GENERAL RULE THAT NEW RULES DO NOT APPLY.-Subject to the succeeding provisions of this subsection, in the case of an alien who is in exclusion or deportation proceedings as of the title III-A effective date"(A) the amendments made by this subtitle shall not apply, and "(B) the proceedings (including judicial review thereof) shall continue to be conducted without regard to such amendments." § 309, 110 Stat. 3009-625. 42 The INS' reliance, see Reply Brief for Petitioner 12, on INS v. Aguirre-Aguirre, 526 U. S. 415 , 420 (1999), is beside the point because that decision simply observed that the new rules would not apply to a proceeding filed before IIRIRA's effective date. 319 to apply specific provisions retroactively. IIRIRA's amendment of the definition of "aggravated felony," for example, clearly states that it applies with respect to "conviction[s] ... entered before, on, or after" the statute's enactment date. § 321(b).43 As the Court of Appeals noted, the fact that Con- 43 See also IIRIRA § 321(c) ("The amendments made by this section shall apply to actions taken on or after the date of the enactment of this Act, regardless of when the conviction occurred ... "); § 322(c) ("The amendments made by subsection (a) shall apply to convictions and sentences entered before, on, or after the date of the enactment of this Act"); § 342(b) (the amendment adding incitement of terrorist activity as a ground for exclusion "shall apply to incitement regardless of when it occurs"); § 344(c) (the amendment adding false claims of U. S. citizenship as ground for removal "shall apply to representations made on or after the date" of enactment); § 347(c) (amendments rendering alien excludable or deportable any alien who votes unlawfully "shall apply to voting occurring before, on, or after the date" of enactment); § 348(b) (amendment providing for automatic denial of discretionary waiver from exclusion "shall be effective on the date of the enactment ... and shall apply in the case of any alien who is in exclusion or deportation proceedings as of such date unless a final administrative order in such proceedings has been entered as of such date"); § 350(b) (amendment adding domestic violence and stalking as grounds for deportation "shall apply to convictions, or violations of court orders, occurring after the date" of enactment); § 351(c) (discussing deportation for smuggling and providing that amendments "shall apply to applications for waivers filed before, on, or after the date" of enactment); § 352(b) (amendments adding renouncement of citizenship to avoid taxation as a ground for exclusion "shall apply to individuals who renounce United States citizenship on and after the date" of enactment); § 380(c) (amendment imposing civil penalties on aliens for failure to depart "shall apply to actions occurring on or after" effective date); § 384(d)(2) (amendments adding penalties for disclosure of information shall apply to "offenses occurring on or after the date" of enactment); § 531(b) (public charge considerations as a ground for exclusion "shall apply to applications submitted on or after such date"); § 604(c) (new asylum provision "shall apply to applications for asylum filed on or after the first day of the first month beginning more than 180 days after the date" of enactment). The INS argues that the Title III-B amendments containing such express temporal provisions are unrelated to the subject matter of § 304(b). Brief for Petitioner 37-38. But it is clear that provisions such as IIRIRA § 321(b), which addresses IIRIRA's redefinition of "aggravated 320 gress made some provisions of IIRIRA expressly applicable to prior convictions, but did not do so in regard to § 304(b), is an indication "that Congress did not definitively decide the issue of § 304's retroactive application to pre-enactment convictions." See 229 F. 3d, at 415. The "saving provision" is therefore no more significant than the specification of an effective date. The presumption against retroactive application of ambiguous statutory provisions, buttressed by "the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien," INS v. Cardoza-Fonseca, 480 U. S. 421 , 449 (1987), forecloses the conclusion that, in enacting § 304(b), "Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits." 44 Landgraf, 511 U. S., at 272-273. We therefore proceed to the second step of Landgraf's retroactivity analysis in order to determine whether depriving removable aliens of consideration for § 212(c) relief produces an impermissible retroactive effect for aliens who, like respondent, were convicted pursuant to a plea agreement at a time when their plea would not have rendered them ineligible for § 212(c) relief.45 felony," deal with subjects quite closely related to § 304(b)'s elimination of § 212(c) relief for aliens convicted of aggravated felonies. 44 The legislative history is significant because, despite its comprehensive character, it contains no evidence that Congress specifically considered the question of the applicability of IIRIRA § 304(b) to pre-IIRIRA convictions. Cf. Harrison v. P PG Industries, Inc., 446 U. S. 578 , 602 (1980) (REHNQUIST, J., dissenting) (" 'In a case where the construction of legislative language such as this makes so sweeping and so relatively unorthodox a change as that made here, I think judges as well as detectives may take into consideration the fact that a watchdog did not bark in the night' "), cited in Chisom v. Roemer, 501 U. S., at 396, n. 23 (citing A. Doyle, Silver Blaze, in The Complete Sherlock Holmes 335 (1927)). 45 The INS argues that we should extend deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), to the BIA's interpretation of IIRIRA as applying to all de- 321 "The inquiry into whether a statute operates retroactively demands a commonsense, functional judgment about 'whether the new provision attaches new legal consequences to events completed before its enactment.'" Martin, 527 U. S., at 357-358 (quoting Landgraf, 511 U. S., at 270). A statute has retroactive effect when it "'takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past .... "'46 Id., at 269 (quoting Society for Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767 (No. 13,156) (CC NH 1814) (Story, J.)). As we have repeatedly counseled, the judgment whether a particular statute acts retroactively "should be informed and guided by 'familiar considerations of fair notice, reasonable reliance, and settled expectations.'" Martin, 527 U. S., at 358 (quoting Landgraf, 511 U. S., at 270). IIRIRA's elimination of any possibility of § 212(c) relief for people who entered into plea agreements with the expectation that they would be eligible for such relief clearly "'attaches a new disability, in respect to transactions or considerations already past.'" Id., at 269. Plea agreements involve a quid pro quo between a criminal defendant and the government. See Newton v. Rumery, 480 U. S. 386 , portation proceedings initiated after IIRIRA's effective date. We only defer, however, to agency interpretations of statutes that, applying the normal "tools of statutory construction," are ambiguous. Id., at 843, n. 9; INS v. Cardoza-Fonseca, 480 U. S., at 447-448. Because a statute that is ambiguous with respect to retroactive application is construed under our precedent to be unambiguously prospective, Landgraf, 511 U. S., at 264, there is, for Chevron purposes, no ambiguity in such a statute for an agency to resolve. 46 As we noted in Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939 (1997), this language by Justice Story "does not purport to define the outer limit of impermissible retroactivity." Id., at 947. Instead, it simply describes several "sufficient," as opposed to "necessary," conditions for finding retroactivity. Ibid. 322 393, n. 3 (1987). In exchange for some perceived benefit, defendants waive several of their constitutional rights (including the right to a trial) and grant the government numerous "tangible benefits, such as promptly imposed punishment without the expenditure of prose cut oria I resources." 47 Ibid. There can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions.48 See Magana-Pizano v. INS, 200 F.3d 603 , 612 (CA9 1999) ("That an alien charged with a crime ... would factor the immigration consequences of conviction in deciding whether to plead or proceed to trial is welldocumented"); see also 3 Bender, Criminal Defense Techniques §§ 60A.01, 60A.02[2] (1999) (" 'Preserving the client's right to remain in the United States may be more important to the client than any potential jail sentence'" (quoted in Brief for National Association of Criminal Defense Law- 47 "If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities." Santobello v. New York, 404 U. S. 257 , 260 (1971). 48 Many States, including Connecticut, the State in which respondent pleaded guilty, require that trial judges advise defendants that immigration consequences may result from accepting a plea agreement. See Cal. Penal Code Ann. § 1016.5 (West 1985); Conn. Gen. Stat. § 54-1j (2001); D. C. Code Ann. § 16-713 (1981-1997); Fla. Rule Crim. Proc. 3.172(c)(8) (1999); Ga. Code Ann. § 17-7-93 (1997); Haw. Rev. Stat. §802E-2 (1993); Md. Rule 4-242 (2001); Mass. Gen. Laws § 278:29D (1996 Supp.); Minn. Rule Crim. Proc. 15.01 (2000); Mont. Code Ann. §46-12-21O (1997); N. M. Rule Crim. Form 9-406 (2001); N. Y. Crim. Proc. Law § 220.50(7) (McKinney 2001 Cum. Supp. Pamphlet); N. C. Gen. Stat. § 15A-1022 (1999); Ohio Rev. Code Ann. § 2943.031 (1997); Ore. Rev. Stat. § 135.385 (1997); R. I. Gen. Laws § 12-12-22 (2000); Tex. Code Crim. Proc. Ann., Art. 26.13(a)(4) (Vernon 1989 and Supp. 2001); Wash. Rev. Code § 10.40.200 (1990); Wis. Stat. § 971.08 (1993-1994). And the American Bar Association's Standards for Criminal Justice provide that, if a defendant will face deportation as a result of a conviction, defense counsel "should fully advise the defendant of these consequences." 3 ABA Standards for Criminal Justice 14-3.2 Comment, 75 (2d ed. 1982). 323 yers et al. as Amici Curiae 13)). Given the frequency with which § 212(c) relief was granted in the years leading up to AEDPA and IIRIRA,49 preserving the possibility of such relief would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial. 50 The case of Charles Jideonwo, a petitioner in a parallel litigation in the Seventh Circuit, is instructive. Charged in 1994 with violating federal narcotics law, Jideonwo entered into extensive plea negotiations with the Government, the sole purpose of which was to ensure that "'he got less than five years to avoid what would have been a statutory bar on 212(c) relief.'" Jideonwo v. INS, 224 F.3d 692 , 699 (CA7 2000) (quoting the Immigration Judge's findings of fact). The potential for unfairness in the retroactive application of IIRIRA § 304(b) to people like Jideonwo and St. Cyr is significant and manifest. Relying upon settled practice, the advice of counsel, and perhaps even assurances in open court that the entry of the plea would not foreclose § 212(c) relief, a great number of defendants in Jideonwo's and St. Cyr's position agreed to plead guilty. 51 Now that prosecutors have received the benefit of these plea agreements, agreements that were likely facilitated by the aliens' belief in their continued eligibility for § 212(c) relief, it would surely be contrary to "familiar considerations of fair notice, reasonable reliance, and settled expectations," Landgraf, 511 U. S., 49 See n. 5, supra. 50 Even if the defendant were not initially aware of § 212(c), competent defense counsel, following the advice of numerous practice guides, would have advised him concerning the provision's importance. See Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 6-8. 51 Ninety percent of criminal convictions today are obtained by guilty plea. See U. S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Section 5: Judicial Processing of Defendants, in United States Sentencing Commission, 1999 Sourcebook of Criminal Justice Statistics (2000) (Tables 5.30, 5.51). 324 at 270, to hold that IIRIRA's subsequent restrictions deprive them of any possibility of such relief. 52 The INS argues that deportation proceedings (and the Attorney General's discretionary power to grant relief from deportation) are "inherently prospective" and that, as a result, application of the law of deportation can never have a retroactive effect. Such categorical arguments are not particularly helpful in undertaking Landgrafs commonsense, functional retroactivity analysis. See Martin, 527 U. S., at 359. Moreover, although we have characterized deportation as "look[ing] prospectively to the respondent's right to remain in this country in the future," INS v. LopezMendoza, 468 U. S. 1032 , 1038 (1984), we have done so in order to reject the argument that deportation is punishment for past behavior and that deportation proceedings are therefore subject to the "various protections that apply in the context of a criminal trial." Ibid. As our cases make clear, the presumption against retroactivity applies far beyond the confines of the criminal law. See Landgraf, 511 U. S., at 272. And our mere statement that deportation is not punishment for past crimes does not mean that we cannot consider an alien's reasonable reliance on the continued availability of discretionary relief from deportation when deciding whether the elimination of such relief has a retroactive effect.53 52 The significance of that reliance is obvious to those who have participated in the exercise of the discretion that was previously available to delegates of the Attorney General under § 212(c). See In re Soriano, 16 BrA Immig. Rptr. Bl-227, Bl-238 to Bl-239 (1996) (Rosenberg, Board Member, concurring and dissenting) ("I find compelling policy and practical reasons to go beyond such a limited interpretation as the one the majority proposes in this case. All of these people, and no doubt many others, had settled expectations to which they conformed their conduct"). 53 We are equally unconvinced by the INS' comparison of the elimination of § 212(c) relief for people like St. Cyr with the Clayton Act's elimination of federal courts' power to enjoin peaceful labor actions. In American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184 (1921), and Duplex Printing Press Co. v. Deering, 254 U. S. 443 ,464 (1921), 325 Finally, the fact that § 212(c) relief is discretionary does not affect the propriety of our conclusion. There is a clear difference, for the purposes of retroactivity analysis, between facing possible deportation and facing certain deportation. Cf. Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939 , 949 (1997) (an increased likelihood of facing a qui tam action constitutes an impermissible retroactive effect for the defendant); Lindsey v. Washington, 301 U. S. 397 , 401 (1937) ("Removal of the possibility of a sentence of less than fifteen years ... operates to [defendants'] detriment" (emphasis added)). Prior to AEDPA and IIRIRA, aliens like St. Cyr had a significant likelihood of receiving § 212(c) relief.54 Because respondent, and other aliens like him, almost certainly relied upon that likelihood in deciding whether to forgo their right to a trial, the elimination of any possibility of § 212(c) relief by IIRIRA has an obvious and severe retroactive effect.55 we applied the Clayton Act's limitations on injunctive relief to cases pending at the time of the statute's passage. But unlike the elimination of § 212(c) relief in this case, which depends upon an alien's decision to plead guilty to an "aggravated felony," the deprivation of the District Court's power to grant injunctive relief at issue in Duplex Printing did not in any way result from or depend on the past action of the party seeking the injunction. Thus, it could not plausibly have been argued that the Clayton Act attached a "'new disability, in respect to transactions or considerations already past.''' Landgraf, 511 U. S., at 269. 54 See n. 5, supra. 55 The INS cites several cases affirming Congress' power to retroactively unsettle such expectations in the immigration context. See Brief for Petitioner 40-41, and n. 21. But our recognition that Congress has the power to act retrospectively in the immigration context sheds no light on the question at issue at this stage of the Landgraf analysis: whether a particular statute in fact has such a retroactive effect. Moreover, our decision today is fully consistent with a recognition of Congress' power to act retrospectively. We simply assert, as we have consistently done in the past, that in legislating retroactively, Congress must make its intention plain. Similarly, the fact that Congress has the power to alter the rights of resident aliens to remain in the United States is not determinative of the question whether a particular statute has a retroactive effect. See Chew Heong v. United States, 112 U. S. 536 (1884). Applying a statute barring 326 We find nothing in IIRIRA unmistakably indicating that Congress considered the question whether to apply its repeal of § 212(c) retroactively to such aliens. We therefore hold that § 212(c) relief remains available for aliens, like respondent, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect. The judgment is affirmed. It is so ordered. JUSTICE O'CONNOR, dissenting. I join Parts I and III of JUSTICE SCALIA'S dissenting opinion in this case. I do not join Part II because I believe that, assuming, arguendo, that the Suspension Clause guarantees some minimum extent of habeas review, the right asserted by the alien in this case falls outside the scope of that review for the reasons explained by JUSTICE SCALIA in Part II-B of his dissenting opinion. The question whether the Suspension Clause assures habeas jurisdiction in this particular case properly is resolved on this ground alone, and there is no need to say more. JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, and with whom JUSTICE O'CONNOR joins as to Parts I and III, dissenting. The Court today finds ambiguity in the utterly clear language of a statute that forbids the district court (and all Chinese nationals from reentering the country without a certificate prepared when they left to people who exited the country before the statute went into effect would have retroactively unsettled their reliance on the state of the law when they departed. See id., at 559. So too, applying IIRIRA § 304(b) to aliens who pleaded guilty or nolo contendere to crimes on the understanding that, in so doing, they would retain the ability to seek discretionary § 212(c) relief would retroactively unsettle their reliance on the state of the law at the time of their plea agreement. 327 other courts) to entertain the claims of aliens such as respondent St. Cyr, who have been found deportable by reason of their criminal acts. It fabricates a superclear statement, "magic words" requirement for the congressional expression of such an intent, unjustified in law and unparalleled in any other area of our jurisprudence. And as the fruit of its labors, it brings forth a version of the statute that affords criminal aliens more opportunities for delay-inducing judicial review than are afforded to noncriminal aliens, or even than were afforded to criminal aliens prior to this legislation concededly designed to expedite their removal. Because it is clear that the law deprives us of jurisdiction to entertain this suit, I respectfully dissent. I In categorical terms that admit of no exception, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009-546, unambiguously repeals the application of 28 U. S. C. § 2241 (the general habeas corpus provision), and of all other provisions for judicial review, to deportation challenges brought by certain kinds of criminal aliens. This would have been readily apparent to the reader, had the Court at the outset of its opinion set forth the relevant provisions of IIRIRA and of its statutory predecessor, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214. I will begin by supplying that deficiency, and explaining IIRIRA's jurisdictional scheme. It begins with what we have called a channeling or "'zipper' clause," Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471 , 483 (1999)namely, 8 U. S. C. § 1252(b)(9) (1994 ed., Supp. V). This provision, entitled "Consolidation of questions for judicial review," provides as follows: "Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken 328 or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section." (Emphases added.) In other words, if any review is available of any "questio[n] of law ... arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter," it is available "only in judicial review of a final order under this section [§ 1252]." What kind of review does that section provide? That is set forth in § 1252(a)(1), which states: "Judicial review of a final order of removal (other than an order of removal without a hearing pursuant to [the expedited-removal provisions for undocumented aliens arriving at the border found in] section 1225(b)(1) of this title) is governed only by chapter 158 of title 28 [the Hobbs Act], except as provided in subsection (b) of this section [which modifies some of the Hobbs Act provisions] and except that the court may not order the taking of additional evidence under section 2347(c) of [Title 28]." In other words, if judicial review is available, it consists only of the modified Hobbs Act review specified in § 1252(a)(1). In some cases (including, as it happens, the one before us), there can be no review at all, because IIRIRA categorically and unequivocally rules out judicial review of challenges to deportation brought by certain kinds of criminal aliens. Section 1252(a)(2)(C) provides: "Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed [one or more enumerated] criminal offense[s] [including drug-trafficking offenses of the sort of which respondent had been convicted]." (Emphases added.) 329 Finally, the pre- IIRIRA antecedent to the foregoing provisions-AEDPA §401(e)-and the statutory background against which that was enacted, confirm that § 2241 habeas review, in the district court or elsewhere, has been unequivocally repealed. In 1961, Congress amended the Immigration and Nationality Act of 1952 (INA), 66 Stat. 163, by directing that the procedure for Hobbs Act review in the courts of appeals "shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation" under the INA. 8 U. S. C. § 1105a(a) (repealed Sept. 30, 1996) (emphasis added). Like 8 U. S. C. § 1252(a)(2)(C) (1994 ed., Supp. V), this provision squarely prohibited § 2241 district-court habeas review. At the same time that it enacted this provision, however, the 1961 Congress enacted a specific exception: "any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings," 8 U. S. C. § 1105a(a)(10) (1994 ed.). (This would of course have been surplusage had § 2241 habeas review not been covered by the "sole and exclusive procedure" provision.) Section 401(e) of AEDPA repealed this narrow exception, and there is no doubt what the repeal was thought to accomplish: the provision was entitled "ELIMINATION OF CUSTODY REVIEW BY HABEAS CORPUS." 110 Stat. 1268. It gave universal preclusive effect to the "sole and exclusive procedure" language of § 1105a(a). And it is this regime that IIRIRA has carried forward. The Court's efforts to derive ambiguity from this utmost clarity are unconvincing. First, the Court argues that §§ 1252(a)(2)(C) and 1252(b)(9) are not as clear as one might think-that, even though they are sufficient to repeal the jurisdiction of the courts of appeals, see Galeano-Martinez v. INS, post, at 351-352,1 they do not cover habeas jurisdiction in the district court, since, "[i]n the immigration context, 'judicial review' and 'habeas corpus' have historically dis- 1 In the course of this opinion I shall refer to some of the Court's analysis in this companion case; the two opinions are intertwined. 330 tinct meanings," ante, at 311, 312, n. 35. Of course § 1252(a)(2)(C) does not even use the term "judicial review" (it says "jurisdiction to review")-but let us make believe it does. The Court's contention that in this statute it does not include habeas corpus is decisively refuted by the language of § 1252(e)(2), enacted along with §§ 1252(a)(2)(C) and 1252(b)(9): "Judicial review of any determination made under section 1225(b)(1) of this title [governing review of expedited removal orders against undocumented aliens arriving at the border] is available in habeas corpus proceedings .... " (Emphases added.) It is hard to imagine how Congress could have made it any clearer that, when it used the term "judicial review" in IIRIRA, it included judicial review through habeas corpus. Research into the "historical" usage of the term "judicial review" is thus quite beside the point. But the Court is demonstrably wrong about that as well. Before IIRIRA was enacted, from 1961 to 1996, the governing immigration statutes unquestionably treated "judicial review" as encompassing review by habeas corpus. As discussed earlier, 8 U. S. C. § l105a (1994 ed.) made Hobbs Act review "the sole and exclusive procedure for, the judicial review of all final orders of deportation" (emphasis added), but created (in subsection (a)(10)) a limited exception for habeas corpus review. Section l105a was entitled "Judicial review of orders of deportation and exclusion" (emphasis added), and the exception for habeas corpus stated that "any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings," § l105a(a)(10) (emphases added). Apart from this prior statutory usage, many of our own immigration cases belie the Court's suggestion that the term "judicial review," when used in the immigration context, does not include review by habeas corpus. See, e. g., United States v. Mendoza-Lopez, 481 U. S. 828 , 836-837 (1987) ("[A]ny alien held in custody pursuant to an order of deportation may ob- 331 tain judicial review of that order in a habeas corpus proceeding" (emphases added)); Shaughnessy v. Pedreiro, 349 U. S. 48, 52 (1955) ("Our holding is that there is a right of judicial review of deportation orders other than by habeas corpus ... " (emphases added)); see also id., at 49. The only support the Court offers in support of the asserted "longstanding distinction between 'judicial review' and 'habeas,'" ante, at 312, n. 35, is language from a single opinion of this Court, Heikkila v. Barber, 345 U. S. 229 (1953).2 There, we "differentiate[d]" "habeas corpus" from "judicial review as that term is used in the Administrative Procedure Act." Id., at 236 (emphasis added). But that simply asserts that habeas corpus review is different from ordinary AP A review, which no one doubts. It does not assert that habeas corpus review is not judicial review at all. Nowhere does Heikkila make such an implausible contention.3 2 The recent Circuit authorities cited by the Court, which postdate IIRIRA, see Mahadeo v. Reno, 226 F.3d 3 , 12 (CA1 2000); and FloresMiramontes v. INS, 212 F.3d 1133 , 1140 (CA9 2000)), cited ante, at 314, hardly demonstrate any historical usage upon which IIRIRA was based. Anyway, these cases rely for their analysis upon a third Court of Appeals decision-Sandoval v. Reno, 166 F.3d 225 , 235 (CA3 1999)-which simply relies on the passage from Heikkila under discussion. 3 The older, pre-1961 judicial interpretations relied upon by the Court, see ante, at 312, are similarly unavailing. Ekiu v. United States, 142 U. S. 651 (1892), never purported to distinguish "judicial review" from habeas, and the Court's attempt to extract such a distinction from the opinion is unpersuasive. Ekiu did state that the statute "prevent[ed] the question of an alien immigrant's right to land, when once decided adversely by an inspector, acting within the jurisdiction conferred upon him, from being impeached or reviewed," id., at 663 (emphasis added; italicized words quoted ante, at 312); but the clear implication was that the question whether the inspector was "acting within the jurisdiction conferred upon him" was reviewable. The distinction pertained, in short, to the scope of judicial review on habeas-not to whether judicial review was available. Terlinden v. Ames, 184 U. S. 270 , 278 (1902), likewise drew no distinction between "judicial review" and habeas; it simply stated that the extradition statute "gives no right of review to be exercised by any court 332 The Court next contends that the zipper clause, § 1252(b)(9), "by its own terms, does not bar" § 2241 districtcourt habeas review of removal orders, ante, at 313, because the opening sentence of subsection (b) states that "[w]ith respect to review of an order of removal under subsection (a)(l) of this section, the following requirements apply .... " (Emphasis added.) But in the broad sense, § 1252(b)(9) does "apply" "to review of an order of removal under subsection (a)(l)," because it mandates that "review of all questions of law and fact ... arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter" must take place in connection with such review. This is "application" enough-and to insist that subsection (b)(9) be given effect only within the review of removal orders that takes place under subsection (a)(l), is to render it meaningless. Moreover, other of the numbered subparagraphs of subsection (b) make clear that the introductory sentence does not at all operate as a limitation upon what follows. Subsection (b)(7) specifies the procedure by which "a defendant in a criminal proceeding" charged with failing to depart after being ordered to do so may contest "the validity of [a removal] order" before trial; and subsection (b)(8) prescribes some of the prerogatives and responsibilities of the Attorney General and the alien after entry of a final removal order. These provisions have no effect if they must apply (even in the broad sense that subsection (b)(9) can be said to apply) "to review of an order of removal under subsection (a)(l)." Unquestionably, unambiguously, and unmistakably, IIRIRA expressly supersedes § 2241's general provision for habeas jurisdiction. The Court asserts that Felker v. Turpin, 518 U. S. 651 (1996), and Ex parte Yerger, 8 Wall. 85 or judicial officer, and what cannot be done directly [under the extradition statute] cannot be done indirectly through the writ of habeas corpus." Far from saying that habeas is not a form of judicial review, it says that habeas is an indirect means of review. 333 (1869), reflect a "longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction," ante, at 298. They do no such thing. Those cases simply applied the general principle-not unique to habeas-that "[r]epeals by implication are not favored." Felker, supra, at 660; Yerger, supra, at 105. Felker held that a statute which by its terms prohibited only further review by this Court (or by an en banc court of appeals) of a court-of-appeals panel's "'grant or denial of ... authorization ... to file a second or successive [habeas] application,'" 518 U. S., at 657 (quoting 28 U. S. C. § 2244(b)(3)(E) (1994 ed., Supp. II)), should not be read to imply the repeal of this Court's separate and distinct "authority [under 28 U. S. C. § 2241 and 28 U. S. C. § 2254 (1994 ed. and Supp. V)] to hear habeas petitions filed as original matters in this Court," 518 U. S., at 661. Yerger held that an 1868 Act that by its terms "repeal[ed] only so much of the act of 1867 as authorized appeals, or the exercise of appellate jurisdiction by this court," should be read to "reach no [further than] the act of 1867," and did not repeal by implication the appellate jurisdiction conferred by the Judiciary Act of 1789 and other pre-1867 enactments. 8 Wall., at 105. In the present case, unlike in Felker and Yerger, none of the statutory provisions relied upon-§ 1252(a)(2)(C), § 1252(b)(9), or 8 U. S. C. § 1l05a(a) (1994 ed.)-requires us to imply from one statutory provision the repeal of another. All by their terms prohibit the judicial review at issue in this case. The Court insists, however, that since" [n]either [§ 1252(a)(1) nor § 1252(a)(2)(C)] explicitly mentions habeas, or 28 U. S. C. § 2241," "neither provision speaks with sufficient clarity to bar jurisdiction pursuant to the general habeas statute." Ante, at 312-313. Even in those areas of our jurisprudence where we have adopted a "clear statement" rule (notably, the sovereign immunity cases to which the Court adverts, ante, at 299, n. 10), clear statement has never meant the kind of magic words demanded by the Court 334 today-explicit reference to habeas or to § 2241-rather than reference to "judicial review" in a statute that explicitly calls habeas corpus a form of judicial review. In Gregory v. Ashcroft, 501 U. S. 452 , 467 (1991), we said: "This [the Court's clear-statement requirement] does not mean that the [Age Discrimination in Employment] Act must mention [state] judges explicitly, though it does not. Cf. Dellmuth v. Muth, 491 U. S. 223 , 233 (1989) (SCALIA, J., concurring). Rather, it must be plain to anyone reading the Act that it covers judges." In Gregory, as in United States v. Nordic Village, Inc., 503 U. S. 30, 34-35 (1992), and Atascadero State Hospital v. Scanlon, 473 U. S. 234 , 241, 246 (1985), we held that the clear-statement requirement was not met, not because there was no explicit reference to the Eleventh Amendment, but because the statutory intent to eliminate state sovereign immunity was not clear. For the reasons discussed above, the intent to eliminate habeas jurisdiction in the present case is entirely clear, and that is all that is required. It has happened before-too frequently, alas-that courts have distorted plain statutory text in order to produce a "more sensible" result. The unique accomplishment of today's opinion is that the result it produces is as far removed from what is sensible as its statutory construction is from the language of the text. One would have to study our statute books for a long time to come up with a more unlikely disposition. By authorizing § 2241 habeas review in the district court but foreclosing review in the court of appeals, see Galeano-Martinez, post, at 351-352, the Court's interpretation routes all legal challenges to removal orders brought by criminal aliens to the district court, to be adjudicated under that court's § 2241 habeas authority, which specifies no time limits. After review by that court, criminal aliens will presumably have an appeal as of right to the court of appeals, and can then petition this Court for a writ of cer- 335 tiorari. In contrast, noncriminal aliens seeking to challenge their removal orders-for example, those charged with having been inadmissible at the time of entry, with having failed to maintain their nonimmigrant status, with having procured a visa through a marriage that was not bona fide, or with having become, within five years after the date of entry, a public charge, see 8 U. S. C. §§ 1227(a)(1)(A), (a)(l)(C), (a)(l)(G), (a)(5) (1994 ed., Supp. V)-will still presumably be required to proceed directly to the court of appeals by way of petition for review, under the restrictive modified Hobbs Act review provisions set forth in § 1252(a)(1), including the 30-day filing deadline, see § 1252(b)(1). In fact, prior to the enactment of IIRIRA, criminal aliens also had to follow this procedure for immediate modified Hobbs Act review in the court of appeals. See 8 U. S. C. § l105a(a) (1994 ed.). The Court has therefore succeeded in perverting a statutory scheme designed to expedite the removal of criminal aliens into one that now affords them more opportunities for (and layers of) judicial review (and hence more opportunities for delay) than are afforded non-criminal aliens-and more than were afforded criminal aliens prior to the enactment of IIRIRA.4 This outcome speaks for itself; no Congress ever imagined it. To excuse the violence it does to the statutory text, the Court invokes the doctrine of constitutional doubt, which it asserts is raised by the Suspension Clause, U. S. Const., Art. I, § 9, cl. 2. This uses one distortion to justify another, transmogrifying a doctrine designed to maintain "a just re- 4 The Court disputes this conclusion by observing that "the scope of review on habeas is considerably more limited than on APA-style review," ante, at 314, n. 38 (a statement, by the way, that confirms our contention that habeas is, along with the Administrative Procedure Act (APA), one form of judicial review). It is more limited, to be sure-but not "considerably more limited" in any respect that would disprove the fact that criminal aliens are much better off than others. In all the many cases that (like the present one) involve "question[s] of law," ibid., the Court's statutory misconstruction gives criminal aliens a preferred position. 336 spect for the legislature," Ex parte Randolph, 20 F. Cas. 242, 254 (No. 11,558) (CC Va. 1833) (Marshall, C. J., on circuit), into a means of thwarting the clearly expressed intent of the legislature. The doctrine of constitutional doubt is meant to effectuate, not to subvert, congressional intent, by giving ambiguous provisions a meaning that will avoid constitutional peril, and that will conform with Congress's presumed intent not to enact measures of dubious validity. The condition precedent for application of the doctrine is that the statute can reasonably be construed to avoid the constitutional difficulty. See, e. g., Miller v. French, 530 U. S. 327 , 341 (2000) (" 'We cannot press statutory construction "to the point of disingenuous evasion" even to avoid a constitutional question'" (quoting United States v. Locke, 471 U. S. 84 , 96 (1985), in turn quoting George Moore Ice Cream Co. v. Rose, 289 U. S. 373 , 379 (1933))); Salinas v. United States, 522 U. S. 52 , 60 (1997) (quoting Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 57, n. 9 (1996)). It is a device for interpreting what the statute says-not for ignoring what the statute says in order to avoid the trouble of determining whether what it says is unconstitutional. For the reasons I have set forth above, it is crystal clear that the statute before us here bars criminal aliens from obtaining judicial review, including § 2241 district-court review, of their removal orders. It is therefore also crystal clear that the doctrine of constitutional doubt has no application. In the remainder of this opinion I address the question the Court should have addressed: Whether these provisions of IIRIRA are unconstitutional. II A The Suspension Clause of the Constitution, Art. I, § 9, cl. 2, provides as follows: 337 "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." A straightforward reading of this text discloses that it does not guarantee any content to (or even the existence of) the writ of habeas corpus, but merely provides that the writ shall not (except in case of rebellion or invasion) be suspended. See R. Fallon, D. Meltzer, & D. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System 1369 (4th ed. 1996) ("[T]he text [of the Suspension Clause] does not confer a right to habeas relief, but merely sets forth when the 'Privilege of the Writ' may be suspended"). Indeed, that was precisely the objection expressed by four of the state ratifying conventions-that the Constitution failed affirmatively to guarantee a right to habeas corpus. See Collings, Habeas Corpus for Convicts-Constitutional Right or Legislative Grace?, 40 Calif. L. Rev. 335, 340, and nn. 39-41 (1952) (citing 1 J. Elliott, Debates on the Federal Constitution 328 (2d ed. 1836) (New York); 3 id., at 658 (Virginia); 4 id., at 243 (North Carolina); 1 id., at 334 (Rhode Island)). To "suspend" the writ was not to fail to enact it, much less to refuse to accord it particular content. Noah Webster, in his American Dictionary of the English Language, defined it-with patriotic allusion to the constitutional textas "[t]o cause to cease for a time from operation or effect; as, to suspend the habeas corpus act." Vol. 2, p.86 (1828 ed.). See also N. Bailey, An Universal Etymological English Dictionary (1789) ("To Suspend [in Law] signifies a temporal stop of a man's right"); 2 S. Johnson, A Dictionary of the English Language 1958 (1773) ("to make to stop for a time"). This was a distinct abuse of majority power, and one that had manifested itself often in the Framers' experience: temporarily but entirely eliminating the "Privilege of the Writ" for a certain geographic area or areas, or for a certain class 338 or classes of individuals. Suspension Acts had been adopted (and many more proposed) both in this country and in England during the late 18th century, see B. Mian, American Habeas Corpus: Law, History, and Politics 109-127 (1984)including a 7 -month suspension by the Massachusetts Assembly during Shay's Rebellion in 1787, id., at 117. Typical of the genre was the prescription by the Statute of 1794, 34 Geo. 3, c. 54, § 2, that" '[an Act for preventing wrongous imprisonment, and against undue delays in trials], insofar as the same may be construed to relate to the cases of Treason and suspicion of Treason, be suspended [for one year] .... '" Mian, supra, at 110. See also 16 Annals of Congo 44, 402-425 (1852) (recording the debate on a bill, reported to the House of Representatives from the Senate on January 26, 1807, and ultimately rejected, to "suspen[d], for and during the term of three months," "the privilege of the writ of habeas corpus" for "any person or persons, charged on oath with treason, misprision of treason," and other specified offenses arising out of the Aaron Burr conspiracy). In the present case, of course, Congress has not temporarily withheld operation of the writ, but has permanently altered its content. That is, to be sure, an act subject to majoritarian abuse, as is Congress's framing (or its determination not to frame) a habeas statute in the first place. But that is not the majoritarian abuse against which the Suspension Clause was directed. It is no more irrational to guard against the common and well known "suspension" abuse, without guaranteeing any particular habeas right that enjoys immunity from suspension, than it is, in the Equal Protection Clause, to guard against unequal application of the laws, without guaranteeing any particular law which enjoys that protection. And it is no more acceptable for this Court to write a habeas law, in order that the Suspension Clause might have some effect, than it would be for this Court to write other laws, in order that the Equal Protection Clause might have some effect. 339 The Court cites many cases which it says establish that it is a "serious and difficult constitutional issue," ante, at 305, whether the Suspension Clause prohibits the elimination of habeas jurisdiction effected by IIRIRA. Every one of those cases, however, pertains not to the meaning of the Suspension Clause, but to the content of the habeas corpus provision of the United States Code, which is quite a different matter. The closest the Court can come is a statement in one of those cases to the effect that the Immigration Act of 1917 "had the effect of precluding judicial intervention in deportation cases except insofar as it was required by the Constitution," Heikkila, 345 U. S., at 234-235. That statement (1) was pure dictum, since the Court went on to hold that the judicial review of petitioner's deportation order was unavailable; (2) does not specify to what extent judicial review was "required by the Constitution," which could (as far as the Court's holding was concerned) be zero; and, most important of all, (3) does not refer to the Suspension Clause, so could well have had in mind the due process limitations upon the procedures for determining deportability that our later cases establish, see Part III, infra. There is, however, another Supreme Court dictum that is unquestionably in point-an unusually authoritative one at that, since it was written by Chief Justice Marshall in 1807. It supports precisely the interpretation of the Suspension Clause I have set forth above. In Ex parte Bollman, 4 Cranch 75, one of the cases arising out of the Burr conspiracy, the issue presented was whether the Supreme Court had the power to issue a writ of habeas corpus for the release of two prisoners held for trial under warrant of the Circuit Court of the District of Columbia. Counsel for the detainees asserted not only statutory authority for issuance of the writ, but inherent power. See id., at 77-93. The Court would have nothing to do with that, whether under Article III or any other provision. While acknowledging an inherent power of the courts "over their own officers, or 340 to protect themselves, and their members, from being disturbed in the exercise of their functions," Marshall says that "the power of taking cognizance of any question between individuals, or between the government and individuals," "must be given by written law. "The inquiry, therefore, on this motion will be, whether by any statute compatible with the constitution of the United States, the power to award a writ of habeas corpus, in such a case as that of Erick Bollman and Samuel Swartwout, has been given to this court." Id., at 94. In the ensuing discussion of the Judiciary Act of 1789, the opinion specifically addresses the Suspension Clause-not invoking it as a source of habeas jurisdiction, but to the contrary pointing out that without legislated habeas jurisdiction the Suspension Clause would have no effect. "It may be worthy of remark, that this act was passed by the first congress of the United States, sitting under a constitution which had declared 'that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it.' "Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give to all the courts the power of awarding writs of habeas corpus." Id., at 95.5 5 The Court claims that I "rea[d] into Chief Justice Marshall's opinion in Ex parte Bollman ... support for a proposition that the Chief Justice did not endorse, either explicitly or implicitly," ante, at 304, n. 24. Its support for this claim is a highly selective quotation from the opinion, 341 There is no more reason for us to believe, than there was for the Marshall Court to believe, that the Suspension Clause means anything other than what it says. B Even if one were to assume that the Suspension Clause, despite its text and the Marshall Court's understanding, guarantees some constitutional minimum of habeas relief, that minimum would assuredly not embrace the rarified right asserted here: the right to judicial compulsion of the exercise of Executive discretion (which may be exercised favorably or unfavorably) regarding a prisoner's release. If one reads the Suspension Clause as a guarantee of habeas relief, the obvious question presented is: What habeas relief? There are only two alternatives, the first of which is too absurd to be seriously entertained. It could be contended that Congress "suspends" the writ whenever it eliminates any prior ground for the writ that it adopted. Thus, if Congress should ever (in the view of this Court) have authorized immediate habeas corpus-without the need to exhaust administrative remedies-for a person arrested as an illegal alien, Congress would never be able (in the light of sad experience) to revise that disposition. The Suspen- see ibid. There is nothing "implici[t]" whatsoever about Chief Justice Marshall's categorical statement that "the power to award the writ [of habeas corpus] by any of the courts of the United States, must be given by written law," 4 Cranch, at 94. See also ibid., quoted supra, at 340 ("[T]he power of taking cognizance of any question between individuals, or between the government and individuals ... must be given by written law"). If, as the Court concedes, "the writ could not be suspended," ante, at 304, n. 24, within the meaning of the Suspension Clause until Congress affirmatively provided for habeas by statute, then surely Congress may subsequently alter what it had initially provided for, lest the Clause become a one-way ratchet, see infra this page and 342. The Court's position that a permanent repeal of habeas jurisdiction is unthinkable (and hence a violation of the Suspension Clause) is simply incompatible with its (and Marshall's) belief that a failure to confer habeas jurisdiction is not unthinkable. 342 sion Clause, in other words, would be a one-way ratchet that enshrines in the Constitution every grant of habeas jurisdiction. This is, as I say, too absurd to be contemplated, and I shall contemplate it no further. The other alternative is that the Suspension Clause guarantees the common-law right of habeas corpus, as it was understood when the Constitution was ratified. There is no doubt whatever that this did not include the right to obtain discretionary release. The Court notes with apparent credulity respondent's contention "that there is historical evidence of the writ issuing to redress the improper exercise of official discretion," ante, at 303-304. The only framing-era or earlier cases it alludes to in support of that contention, see ante, at 303, n. 23, referred to ante, at 303-304, establish no such thing. In Ex parte Boggin, 13 East 549, 104 Eng. Rep. 484 (K. B. 1811), the court did not even bother calling for a response from the custodian, where the applicant failed to show that he was statutorily exempt from impressment under any statute then in force. In Chalacombe's Case, reported in a footnote in Ex parte Boggin, the court did "let the writ go"-i. e., called for a response from the Admiralty to Chalacombe's petition-even though counsel for the Admiralty had argued that the Admiralty's general policy of not impressing "seafaring persons of [Chalacombe's] description" was "a matter of grace and favour, [and not] of right." But the court never decided that it had authority to grant the relief requested (since the Admiralty promptly discharged Chalacombe of its own accord); in fact, it expressed doubt whether it had that authority. See 13 East, at 550, n. (b), 104 Eng. Rep., at 484, n. (a)Z (Lord Ellenborough, C. J.) ("[C]onsidering it merely as a question of discretion, is it not more fit that this should stand over for the consideration of the Admiralty, to whom the matter ought to be disclosed?"). And in Hollingshead's Case, 1 Salkeld 351, 91 Eng. Rep. 307 (K. B. 1702), the "warrant of commitment" issued by the "commissioners of bankrupt" was "held naught," since it au- 343 thorized the bankrupt's continued detention by the commissioners until "otherwise discharged by due course of law," whereas the statute authorized commitment only "till [the bankrupt] submit himself to be examined by the commissioners." (Emphasis deleted.) There is nothing pertaining to executive discretion here. All the other framing-era or earlier cases cited in the Court's opinion-indeed, all the later Supreme Court cases until United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 , in 1954-provide habeas relief from executive detention only when the custodian had no legal authority to detain. See 3 J. Story, Commentaries on the Constitution of the United States § 1333, p. 206 (1833) (the writ lies to ascertain whether a "sufficient ground of detention appears"). The fact is that, far from forming a traditional basis for issuance of the writ of habeas corpus, the whole "concept of 'discretion' was not well developed at common law," Hafetz, The Untold Story of Noncriminal Habeas Corpus and the 1996 Immigration Acts, 107 Yale L. J. 2509, 2534 (1998), quoted in Brief for Respondent in Calcano-Martinez v. INS, O. T. 2000, No. 00-1011, p. 37. An exhaustive search of cases antedating the Suspension Clause discloses few instances in which courts even discussed the concept of executive discretion; and on the rare occasions when they did, they simply confirmed what seems obvious from the paucity of such discussions-namely, that courts understood executive discretion as lying entirely beyond the judicial ken. See, e. g., Chalacombe's Case, supra, at 342. That is precisely what one would expect, since even the executive's evaluation of the facts-a duty that was a good deal more than discretionary-was not subject to review on habeas. Both in this country, until passage of the Habeas Corpus Act of 1867, and in England, the longstanding rule had been that the truth of the custodian's return could not be controverted. See, e. g., Opinion on the Writ of Habeas Corpus, Wilm. 77, 107,97 Eng. Rep. 29, 43 (H. L. 1758); Note, Developments in 344 the Law-Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1113-1114, and nn. 9-11 (1970) (quoting Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385); Oaks, Legal History in the High Court-Habeas Corpus, 64 Mich. L. Rev. 451, 453 (1966). And, of course, going beyond inquiry into the legal authority of the executive to detain would have been utterly incompatible with the well-established limitation upon habeas relief for a convicted prisoner: "[O]nce a person had been convicted by a superior court of general jurisdiction, a court disposing of a habeas corpus petition could not go behind the conviction for any purpose other than to verify the formal jurisdiction of the committing court." Id., at 468, quoted in Swain v. Pressley, 430 U. S. 372 , 384-385 (1977) (Burger, C. J., concurring in part and concurring in judgment). In sum, there is no authority whatever for the proposition that, at the time the Suspension Clause was ratified-or, for that matter, even for a century and a half thereafter-habeas corpus relief was available to compel the Executive's allegedly wrongful refusal to exercise discretion. The striking proof of that proposition is that when, in 1954, the Warren Court held that the Attorney General's alleged refusal to exercise his discretion under the Immigration Act of 1917 could be reviewed on habeas, see United States ex rel. Accardi v. Shaughnessy, supra, it did so without citation of any supporting authority, and over the dissent of Justice Jackson, joined by three other Justices, who wrote: "Of course, it may be thought that it would be better government if even executive acts of grace were subject to judicial review. But the process of the Court seems adapted only to the determination of legal rights, and here the decision is thrusting upon the courts the task of reviewing a discretionary and purely executive function. Habeas corpus, like the currency, can be debased by over-issue quite as certainly as by too niggardly use. We would ... leave the responsibility for suspension or 345 execution of this deportation squarely on the Attorney General, where Congress has put it." Id., at 271. III Given the insubstantiality of the due process and Article III arguments against barring judicial review of respondent's claim (the Court does not even bother to mention them, and the Court of Appeals barely acknowledges them), I will address them only briefly. The Due Process Clause does not "[r]equir[e] [j]udicial [d]etermination [o]f" respondent's claim, Brief for Petitioners in Galeano-Martinez v. INS, O. T. 2000, No. 00-1011, p. 34. Respondent has no legal entitlement to suspension of deportation, no matter how appealing his case. "[T]he Attorney General's suspension of deportation [is] "an act of grace" which is accorded pursuant to her 'unfettered discretion,' Jay v. Boyd, 351 U. S. 345 , 354 (1956) ... , and [can be likened, as Judge Learned Hand observed,] to "a judge's power to suspend the execution of a sentence, or the President's to pardon a convict," 351 U. S., at 354, n. 16 .... " INS v. Yueh-Shaio Yang, 519 U. S. 26 , 30 (1996). The furthest our cases have gone in imposing due process requirements upon analogous exercises of Executive discretion is the following. (1) We have required "minimal procedural safeguards" for death-penalty clemency proceedings, to prevent them from becoming so capricious as to involve "a state official flipp[ing] a coin to determine whether to grant clemency," Ohio Adult Parole Authority v. Woodard, 523 U. S. 272 , 289 (1998) (O'CONNOR, J., concurring in part and concurring in judgment). Even assuming that this holding is not part of our "death-is-different" jurisprudence, Shafer v. South Garolina, 532 U. S. 36 , 55 (2001) (SCALIA, J., dissenting) (citation omitted), respondent here is not complaining about the absence of procedural safeguards; he disagrees with the Attorney General's judgment on a point of law. (2) We have recognized the existence of a due process liberty interest when 346 a State's statutory parole procedures prescribe that a prisoner "shall" be paroled if certain conditions are satisfied, see Board of Pardons v. Allen, 482 U. S. 369 , 370-371, 381 (1987); Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U. S. 1 , 12 (1979). There is no such statutory entitlement to suspension of deportation, no matter what the facts. Moreover, in neither Woodard, nor Allen, nor Greenholtz did we intimate that the Due Process Clause conferred jurisdiction of its own force, without benefit of statutory authorization. All three cases were brought under 42 U. S. C. § 1983. Article III, § l's investment of the "judicial Power of the United States" in the federal courts does not prevent Congress from committing the adjudication of respondent's legal claim wholly to "non-Article III federal adjudicative bodies," Brief for Petitioners in Caleano-Martinez v. INS, O. T. 2000, No. 00-1011, at 38. The notion that Article III requires every Executive determination, on a question of law or of fact, to be subject to judicial review has no support in our jurisprudence. Were it correct, the doctrine of sovereign immunity would not exist, and the AP A's general permission of suits challenging administrative action, see 5 U. S. C. § 702, would have been superfluous. Of its own force, Article III does no more than commit to the courts matters that are "the stuff of the traditional actions at common law tried by the courts at Westminster in 1789," Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50 , 90 (1982) (REHNQUIST, J., concurring in judgment)-which (as I have discussed earlier) did not include supervision of discretionary Executive action. *** The Court has created a version of IIRIRA that is not only unrecognizable to its framers (or to anyone who can read) but gives the statutory scheme precisely the opposite of its intended effect, affording criminal aliens more opportu- 347 nities for delay-inducing judicial review than others have, or even than criminal aliens had prior to the enactment of this legislation. Because § 2241's exclusion of judicial review is unmistakably clear, and unquestionably constitutional, both this Court and the courts below were without power to entertain respondent's claims. I would set aside the judgment of the court below and remand with instructions to have the District Court dismiss for want of jurisdiction. I respectfully dissent from the judgment of the Court.

In *INS v. St. Cyr*, the Supreme Court held that federal courts have jurisdiction to decide legal issues related to deportation and that the Attorney General's judgment on a point of law can be reviewed. The Court also recognized a due process liberty interest in statutory parole procedures but clarified that Article III does not require judicial review of every executive determination. The case involved a lawful permanent resident of the US, St. Cyr, who pleaded guilty to a criminal charge that made him deportable, but he sought a waiver of deportation under pre-AEDPA and pre-IIRIRA immigration law. The Court's decision allowed St. Cyr to challenge his deportation order.

Immigration & National Security

Lopez v. Gonzales

https://supreme.justia.com/cases/federal/us/549/47/

OPINION OF THE COURT LOPEZ V. GONZALES 549 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-547 JOSE ANTONIO LOPEZ, PETITIONER v. ALBERTO R. GONZALES, Attorney General on writ of certiorari to the united states court of appeals for the eighth circuit [December 5, 2006] Justice Souter delivered the opinion of the Court. The question raised is whether conduct made a felony under state law but a misdemeanor under the Controlled Substances Act is a “felony punishable under the Controlled Substances Act.” 18 U. S. C. §924(c)(2). We hold it is not. I A The Immigration and Nationality Act (INA) defines the term “aggravated felony” by a list that mentions “illicit trafficking in a controlled substance … including a drug trafficking crime (as defined in section 924(c) of title 18).” §101(a)(43)(B), as added by §7342, 102 Stat. 4469, and as amended by §222(a), 108 Stat. 4320, 8 U. S. C. §1101(a)(43)(B). The general phrase “illicit trafficking” is left undefined, but §924(c)(2) of Title 18 identifies the subcategory by defining “drug trafficking crime” as “any felony punishable under the Controlled Substances Act” or under either of two other federal statutes having no bearing on this case. Following the listing, §101(a)43 of the INA provides in its penultimate sentence that “[t]he term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law” or, in certain circumstances, “the law of a foreign country.” 8 U. S. C. §1101(a)(43). An aggravated felony on a criminal record has worse collateral effects than a felony conviction simple. Under the immigration statutes, for example, the Attorney General’s discretion to cancel the removal of a person otherwise deportable does not reach a convict of an aggravated felony. §1229b(a)(3). Nor is an aggravated felon eligible for asylum. §§1158(b)(2)(A)(ii), 1158(b)(2)(B)(i). And under the sentencing law, the Federal Guidelines attach special significance to the “aggravated felony” designation: a conviction of unlawfully entering or remaining in the United States receives an eight-level increase for a prior aggravated felony conviction, but only four levels for “any other felony.” United States Sentencing Commission, Guidelines Manual §2L1.2 (Nov. 2005) (hereinafter USSG); id. , comment., n. 3 (adopting INA definition of aggravated felony). B Although petitioner Jose Antonio Lopez entered the United States illegally in 1986, in 1990 he became a legal permanent resident. In 1997, he was arrested on state charges in South Dakota, pleaded guilty to aiding and abetting another person’s possession of cocaine, and was sentenced to five years’ imprisonment. See S. D. Codified Laws §22–42–5 (1988); §22–6–1 (Supp. 1997); §22–3–3 (1988). He was released for good conduct after 15 months. After his release, the Immigration and Naturalization Service (INS)[ Footnote 1 ] began removal proceedings against Lopez, on two grounds: that his state conviction was a controlled substance violation, see 8 U. S. C. §1227(a)(2)(B)(i), and was also for an aggravated felony, see §1227(a)(2)(A)(iii). Lopez conceded the controlled substance violation but contested the aggravated felony determination, which would disqualify him from discretionary cancellation of removal. See §1229b(a)(3). At first, the Immigration Judge agreed with Lopez that his state offense was not an aggravated felony because the conduct it proscribed was no felony under the Controlled Substances Act (CSA). But after the Board of Immigration Appeals (BIA) switched its position on the issue, the same judge ruled that Lopez’s drug crime was an aggravated felony after all, owing to its being a felony under state law. See Matter of Yanez-Garcia , 23 I. & N. Dec. 390 (2002) (announcing that BIA decisions would conform to the applicable Circuit law); United States v. Briones-Mata , 116 F. 3d 308 (CA8 1997) (per curiam) (holding state felony possession offenses are aggravated felonies). That left Lopez ineligible for cancellation of removal, and the judge ordered him removed. The BIA affirmed, and the Court of Appeals affirmed the BIA, 417 F. 3d 934 (CA8 2005).[ Footnote 2 ] We granted certiorari to resolve a conflict in the Circuits about the proper understanding of conduct treated as a felony by the State that convicted a defendant of committing it, but as a misdemeanor under the CSA.[ Footnote 3 ] 547 U. S. ___ (2006). We now reverse. II The INA makes Lopez guilty of an aggravated felony if he has been convicted of “illicit trafficking in a controlled substance … including,” but not limited to, “a drug trafficking crime (as defined in section 924(c) of title 18).” 8 U. S. C. §1101(a)(43)(B). Lopez’s state conviction was for helping someone else possess cocaine in South Dakota, which state law treated as the equivalent of possessing the drug, S. D. Codified Laws §22–3–3, a state felony, §22–42–5. Mere possession is not, however, a felony under the federal CSA, see 21 U. S. C. §844(a), although possessing more than what one person would have for himself will support conviction for the federal felony of possession with intent to distribute, see §841 (2000 ed. and Supp. III); United States v. Kates , 174 F. 3d 580, 582 (CA5 1999) (per curiam) (“Intent to distribute may be inferred from the possession of a quantity of drugs too large to be used by the defendant alone”). Despite this federal misdemeanor treatment, the Government argues that possession’s felonious character as a state crime can turn it into an aggravated felony under the INA. There, it says, illicit trafficking includes a drug trafficking crime as defined in federal Title 18. Title 18 defines “drug trafficking crime” as “any felony punishable under the Controlled Substances Act (21 U. S. C. 801 et seq.),” §924(c)(2), and the CSA punishes possession, albeit as a misdemeanor, see §405(a), 102 Stat. 4384, as renumbered and amended by §1002(g), 104 Stat. 4828, 21 U. S. C. §844(a). That is enough, says the Government, because §924(c)(2) requires only that the offense be punishable, not that it be punishable as a federal felony. Hence, a prior conviction in state court will satisfy the felony element because the State treats possession that way. There are a few things wrong with this argument, the first being its incoherence with any commonsense conception of “illicit trafficking,” the term ultimately being defined. The everyday understanding of “trafficking” should count for a lot here, for the statutes in play do not define the term, and so remit us to regular usage to see what Congress probably meant. FDIC v. Meyer , 510 U. S. 471 , 476 (1994). And ordinarily “trafficking” means some sort of commercial dealing. See Black’s Law Dictionary 1534 (8th ed. 2004) (defining to “traffic” as to “trade or deal in (goods, esp. illicit drugs or other contraband)”); see also Urena-Ramirez v. Ashcroft , 341 F. 3d 51, 57 (CA1 2003) (similar definition); State v. Ezell , 321 S. C. 421, 425, 468 S. E. 2d 679, 681 (App. 1996) (same). Commerce, however, was no part of Lopez’s South Dakota offense of helping someone else to possess, and certainly it is no element of simple possession, with which the State equates that crime. Nor is the anomaly of the Government’s reading limited to South Dakota cases: while federal law typically treats trafficking offenses as felonies and nontrafficking offenses as misdemeanors, several States deviate significantly from this pattern.[ Footnote 4 ] Reading §924(c) the Government’s way, then, would often turn simple possession into trafficking, just what the English language tells us not to expect, and that result makes us very wary of the Government’s position. Cf. Leocal v. Ashcroft , 543 U. S. 1 , 11 (2004) (“[W]e cannot forget that we ultimately are determining the meaning of the term ‘crime of violence’ ”). Which is not to deny that the Government might still be right; Humpty Dumpty used a word to mean “ ‘just what [he chose] it to mean—neither more nor less,’ ”[ Footnote 5 ] and legislatures, too, are free to be unorthodox. Congress can define an aggravated felony of illicit trafficking in an unexpected way. But Congress would need to tell us so, and there are good reasons to think it was doing no such thing here.[ Footnote 6 ] First, an offense that necessarily counts as “illicit trafficking” under the INA is a “drug trafficking crime” under §924(c), that is, a “felony punishable under the [CSA],” §924(c)(2). And if we want to know what felonies might qualify, the place to go is to the definitions of crimes punishable as felonies under the Act; where else would one naturally look? Although the Government would have us look to state law, we suspect that if Congress had meant us to do that it would have found a much less misleading way to make its point. Indeed, other parts of §924 expressly refer to guilt under state law, see §§924(g)(3), (k)(2), and the implication confirms that the reference solely to a “felony punishable under the [CSA]” in §924(c)(2) is to a crime punishable as a felony under the federal Act. See Russello v. United States , 464 U. S. 16 , 23 (1983) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion” (alteration in original; internal quotation marks omitted)). Unless a state offense is punishable as a federal felony it does not count. The Government stresses that the text does not read “punishable as a felony,” and that by saying simply “punishable” Congress left the door open to counting state felonies, so long as they would be punishable at all under the CSA. But we do not normally speak or write the Government’s way. We do not use a phrase like “felony punishable under the [CSA]” when we mean to signal or allow a break between the noun “felony” and the contiguous modifier “punishable under the [CSA],” let alone a break that would let us read the phrase as if it said “felony punishable under the CSA whether or not as a felony.” Regular usage points in the other direction, and when we read “felony punishable under the … Act,” we instinctively understand “felony punishable as such under the Act” or “felony as defined by the Act.”[ Footnote 7 ] Without some further explanation, using the phrase to cover even a misdemeanor punishable under the Act would be so much trickery, violating “the cardinal rule that statutory language must be read in context.” General Dynamics Land Systems, Inc. v. Cline , 540 U. S. 581 , 596 (2004) (internal quotation marks and brackets omitted). That is why our interpretive regime reads whole sections of a statute together to fix on the meaning of any one of them, and the last thing this approach would do is divorce a noun from the modifier next to it without some extraordinary reason. The Government thinks it has a good enough reason for doing just that, in the INA provision already mentioned, that the term “aggravated felony” “applies to an offense described in this paragraph whether in violation of Federal or State law.” 8 U. S. C. §1101(a)(43). But before this provision is given the Government’s expansive treatment, it makes sense to ask whether it would have some use short of wrenching the expectations raised by normal English usage, and in fact it has two perfectly straightforward jobs to do: it provides that a generic description of “an offense … in this paragraph,” one not specifically couched as a state offense or a federal one, covers either one, and it confirms that a state offense whose elements include the elements of a felony punishable under the CSA is an aggravated felony. Thus, if Lopez’s state crime actually fell within the general term “illicit trafficking,” the state felony conviction would count as an “aggravated felony,” regardless of the existence of a federal felony counterpart; and a state offense of possessing more than five grams of cocaine base is an aggravated felony because it is a felony under the CSA, 21 U. S. C. §844(a).[ Footnote 8 ] The Government’s reliance on the penultimate sentence of 8 U. S. C. §1101(a)(43) is misplaced for a second reason. The Government tries to justify its unusual reading of a defined term in the criminal code on the basis of a single sentence in the INA. But nothing in the penultimate sentence of §1101(a)(43) suggests that Congress changed the meaning of “felony punishable under the [CSA]” when it took that phrase from Title 18 and incorporated it into Title 8’s definition of “aggravated felony.” Yet the Government admits it has never begun a prosecution under 18 U. S. C. §924(c)(1)(A) where the underlying “drug trafficking crime” was a state felony but a federal misdemeanor. See Tr. of Oral Arg. 33–36. This is telling: the failure of even a single eager Assistant United States Attorney to act on the Government’s interpretation of “felony punishable under the [CSA]” in the very context in which that phrase appears in the United States Code belies the Government’s claim that its interpretation is the more natural one.[ Footnote 9 ] Finally, the Government’s reading would render the law of alien removal, see 8 U. S. C. §1229b(a)(3), and the law of sentencing for illegal entry into the country, see USSG §2L1.2, dependent on varying state criminal classifications even when Congress has apparently pegged the immigration statutes to the classifications Congress itself chose. It may not be all that remarkable that federal consequences of state crimes will vary according to state severity classification when Congress describes an aggravated felony in generic terms, without express reference to the definition of a crime in a federal statute (as in the case of “illicit trafficking in a controlled substance”). But it would have been passing strange for Congress to intend any such result when a state criminal classification is at odds with a federal provision that the INA expressly provides as a specific example of an “aggravated felony” (like the §924(c)(2) definition of “drug trafficking crime”). We cannot imagine that Congress took the trouble to incorporate its own statutory scheme of felonies and misdemeanors if it meant courts to ignore it whenever a State chose to punish a given act more heavily. Two examples show the untoward consequences of the Government’s approach. Consider simple possession of marijuana. Not only is it a misdemeanor under the CSA, see 21 U. S. C. §844(a), but the INA expressly excludes “a single offense involving possession for one’s own use of 30 grams or less” from the controlled substance violations that are grounds for deportation, 8 U. S. C. §1227(a) (2)(B)(i). Yet by the Government’s lights, if a State makes it a felony to possess a gram of marijuana the congressional judgment is supplanted, and a state convict is subject to mandatory deportation because the alien is ineligible for cancellation of removal. See §1229b(a)(3).[ Footnote 10 ] There is no hint in the statute’s text that Congress was courting any such state-by-state disparity. The situation in reverse flouts probability just as much. Possessing more than five grams of cocaine base is a felony under federal law. See 21 U. S. C. §844(a). If a State drew the misdemeanor-felony line at six grams plus, a person convicted in state court of possessing six grams would not be guilty of an aggravated felony on the Government’s reading, which makes the law of the convicting jurisdiction dispositive. See Brief for Respondent 48. Again, it is just not plausible that Congress meant to authorize a State to overrule its judgment about the consequences of federal offenses to which its immigration law expressly refers. True, the argument is not all one-sided. The Government points out that some States graduate offenses of drug possession from misdemeanor to felony depending on quantity, whereas Congress generally treats possession alone as a misdemeanor whatever the amount (but leaves it open to charge the felony of possession with intent to distribute when the amount is large). Thus, an alien convicted by a State of possessing large quantities of drugs would escape the aggravated felony designation simply for want of a federal felony defined as possessing a substantial amount. This is so, but we do not weigh it as heavily as the anomalies just mentioned on the other side. After all, Congress knows that any resort to state law will implicate some disuniformity in state misdemeanor-felony classifications, but that is no reason to think Congress meant to allow the States to supplant its own classifications when it specifically constructed its immigration law to turn on them. In sum, we hold that a state offense constitutes a “felony punishable under the Controlled Substances Act” only if it proscribes conduct punishable as a felony under that federal law. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 The INS’s immigration-enforcement functions are now handled by the Bureau of Immigration and Customs Enforcement in the Department of Homeland Security. See Clark v. Martinez , 543 U. S. 371 , 374, n. 1 (2005). Footnote 2 Although the Government has deported Lopez, we agree with the parties that the case is not moot. Lopez can benefit from relief in this Court by pursuing his application for cancellation of removal, which the Immigration Judge refused to consider after determining that Lopez had committed an aggravated felony. Footnote 3 Compare United States v. Wilson , 316 F. 3d 506 (CA4 2003) (state-law felony is an aggravated felony); United States v. Simon , 168 F. 3d 1271 (CA11 1999) (same); United States v. Hinojosa-Lopez , 130 F. 3d 691 (CA5 1997) (same); United States v. Briones-Mata , 116 F. 3d 308 (CA8 1997) (per curiam) (same); United States v. Cabrera-Sosa , 81 F. 3d 998 (CA10 1996) (same); United States v. Restrepo-Aguilar , 74 F. 3d 361 (CA1 1996) (same), with Gonzales-Gomez v. Achim , 441 F. 3d 532 (CA7 2006) (state-law felony is not an aggravated felony); United States v. Palacios-Suarez , 418 F. 3d 692 (CA6 2005) (same); Gerbier v. Holmes , 280 F. 3d 297 (CA3 2002) (same). Two Circuits have construed the aggravated felony definition one way in the sentencing context and another in the immigration context. Compare United States v. Ibarra-Galindo , 206 F. 3d 1337 (CA9 2000) (in sentencing case, state-law felony is an aggravated felony); United States v. Pornes-Garcia , 171 F. 3d 142 (CA2 1999) (same), with Cazarez-Gutierrez v. Ashcroft , 382 F. 3d 905 (CA9 2004) (in immigration case, state-law felony is not an aggravated felony); Aguirre v. INS , 79 F. 3d 315 (CA2 1996) (same). Footnote 4 Several States punish possession as a felony. See, e. g. , S. D. Codified Laws §§22–42–5 (2004), 22–6–1 (2005 Supp.); Tex. Health & Safety Code Ann. §481.115 (West 2003); Tex. Penal Code Ann. §§12.32–12.35 (West 2003); see also n. 10, infra . In contrast, with a few exceptions, the CSA punishes drug possession offenses as misdemeanors (that is, by one year’s imprisonment or less, cf. 18 U. S. C. §3559(a)), see 21 U. S. C. §844(a) (providing for “a term of imprisonment of not more than 1 year” for possession offenses except for repeat offenders, persons who possess more than five grams of cocaine base, and persons who possess flunitrazepam), and trafficking offenses as felonies, see §841 (2000 ed. and Supp. III). Footnote 5 L. Carroll, Alice in Wonderland and Through the Looking Glass 198 (Messner 1982). Footnote 6 Of course, we must acknowledge that Congress did counterintuitively define some possession offenses as “illicit trafficking.” Those state possession crimes that correspond to felony violations of one of the three statutes enumerated in §924(c)(2), such as possession of cocaine base and recidivist possession, see 21 U. S. C. §844(a), clearly fall within the definitions used by Congress in 8 U. S. C. §1101(a)(43)(B) and 18 U. S. C. §924(c)(2), regardless of whether these federal possession felonies or their state counterparts constitute “illicit trafficking in a controlled substance” or “drug trafficking” as those terms are used in ordinary speech. But this coerced inclusion of a few possession offenses in the definition of “illicit trafficking” does not call for reading the statute to cover others for which there is no clear statutory command to override ordinary meaning. Footnote 7 With respect to this last possibility, for purposes of §924(c)(2) the crimes the CSA defines as “felonies” are those crimes to which it assigns a punishment exceeding one year’s imprisonment. As the Government wisely concedes, see Brief for Respondent 25, although for its own purposes the CSA defines the term “felony” standing alone as “any Federal or State offense classified by applicable Federal or State law as a felony,” 21 U. S. C. §802(13), that definition does not apply here: §924(c)(2) refers to a felony “punishable under the [CSA],” not to conduct punishable under some other law but defined as a felony by the CSA. Footnote 8 Although the parties agree that Congress added the provision that both state and federal offenses qualify as aggravated felonies to codify the BIA’s decision in Matter of Barrett , 20 I. & N. Dec. 171 (1990), see also H. R. Rep. No. 101–681, pt. 1, p. 147 (1990) (noting that the provision reflects congressional approval of Barrett ), our enquiry requires looking beyond Congress’s evident acceptance of Barrett . In Barrett , the BIA held only that the phrase “ ‘drug trafficking crime’ ” includes state “crimes analogous to offenses under the Controlled Substances Act,” Barrett , supra , at 177, 178, without specifying whether a state crime must be “analogous” to a CSA felony, as opposed to a CSA misdemeanor, to count. Footnote 9 Contrary to the Government’s response at oral argument, such a prosecution should be possible under the Government’s proffered interpretation because this subset of “drug trafficking crime[s]” still “may be prosecuted in a court of the United States,” 18 U. S. C. §924(c)(1)(A), albeit at the misdemeanor level. For the same reason, the dissent’s argument that our reading renders superfluous the requirement in §924(c)(1)(A) that the crime “may be prosecuted in a court of the United States” misses the mark. Post , at 3 (opinion of Thomas, J.). That phrase would be no less superfluous under the dissent’s preferred reading, which would still require that the offense be “capable of punishment under the Controlled Substances Act,” post , at 1, and therefore subject to prosecution in federal court. Footnote 10 Indeed, several States treat possession of less than 30 grams of marijuana as a felony. See Fla. Stat. §§893.13(6)(a)–(b), 775.082(3)(d) (2006) (punishing possession of over 20 grams of marijuana as a felony); Nev. Rev. Stat. §§453.336(1)–(2) (2004), §§453.336(4), 193.130 (2003) (punishing possession of more than one ounce, or 28.3 grams, of marijuana as a felony); N. D. Cent. Code Ann. §§19–03.1–23(6) (Lexis Supp. 2005), 12.1–32–01(4) (Lexis 1997) (same); Ore. Rev. Stat. §161.605(3) (2003), Act Relating to Controlled Substances, §33, 2005 Ore. Laws p. 2006 (same). THOMAS, J., DISSENTING LOPEZ V. GONZALES 549 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-547 JOSE ANTONIO LOPEZ, PETITIONER v. ALBERTO R. GONZALES, Attorney General on writ of certiorari to the united states court of appeals for the eighth circuit [December 5, 2006] Justice Thomas, dissenting. Jose Antonio Lopez pleaded guilty to aiding and abetting the possession of cocaine, a felony under South Dakota law. The Court holds that Lopez’s conviction does not constitute an “aggravated felony” because federal law would classify Lopez’s possession offense as a misdemeanor. I respectfully dissent. I The Immigration and Nationality Act (INA) provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U. S. C. §1227(a)(2)(A)(iii). As relevant to this case, the INA defines an “aggravated felony” as “illicit trafficking in a controlled substance … including a drug trafficking crime (as defined in section 924(c) of title 18).” §1101(a)(43)(B). And “the term ‘drug trafficking crime’ means any felony punishable under the Controlled Substances Act … .” 18 U. S. C. §924(c)(2). Lopez’s state felony offense qualifies as a “drug trafficking crime” as defined in §924(c)(2). A plain reading of this definition identifies two elements: First, the offense must be a felony; second, the offense must be capable of punishment under the Controlled Substances Act (CSA). No one disputes that South Dakota punishes Lopez’s crime as a felony. See S. D. Codified Laws §22–42–5 (1988). Likewise, no one disputes that the offense was capable of punishment under the CSA. See 21 U. S. C. §844(a). Lopez’s possession offense therefore satisfies both elements, and the inquiry should end there. The Court, however, takes the inquiry further by reasoning that only federal felonies qualify as drug trafficking crimes. According to the Court, the definition of drug trafficking crime contains an implied limitation: “any felony punishable [as a felony] under the” CSA. The text does not support this interpretation. Most obviously, the language “as a felony” appears nowhere in §924(c)(2). Without doubt, Congress could have written the definition with this limitation, but it did not. Furthermore, Lopez’s suggested addition conflicts with the clear meaning of §924(c)(2), which extends to both state and federal felonies. Specifically, the definition broadly encompasses “ any felony” capable of being punished under the CSA. 18 U. S. C. §924(c)(2) (emphasis added). “Read naturally, the word ‘any’ has an expansive meaning … .” United States v. Gonzales , 520 U. S. 1 , 5 (1997) (plurality opinion); see also Small v. United States , 544 U. S. 385 , 397 (2005) (Thomas, J., dissenting) (“The broad phrase ‘any court’ unambiguously includes all judicial bodies with jurisdiction to impose the requisite conviction …” (footnote omitted)). The term “felony” takes its meaning from Title 18, which classifies crimes as felonies when punishable by death or greater than one year of imprisonment. §3559(a). “[A]ny felony” therefore includes both federal and state felonies: The classification depends only on the authorized term of imprisonment. Accordingly, by the plain terms of §924(c)(2), conduct prohibited by the CSA may qualify as a “drug trafficking crime” if under either federal law or state law the conduct is punishable by more than one year of imprisonment. This interpretation finds support in other provisions in which Congress placed limits on the types of drug trafficking crimes eligible for consideration. In particular, §924(c)(1)(A) proscribes the use or possession of a firearm “during and in relation to any … drug trafficking crime … for which the person may be prosecuted in a court of the United States … .” (emphasis added); see also 18 U. S. C. A. §924(c)(5) (Supp. 2006) (using identical language in proscribing the use or possession of “armor piercing ammunition”). The Court has previously interpreted this language to limit “any … drug trafficking crime” to federal crimes. Gonzales , supra, at 5. This language, therefore, acts as a jurisdictional limitation, carving out the subset of federal drug trafficking crimes and making only those eligible for use in §§924(c)(1)(A) and 924(c)(5). No similar federal-crime limitation appears in §924(c)(2). Interpreting the term “drug trafficking crime,” as defined in §924(c)(2), to reach only federal felonies would render superfluous the federal-crime limitations in these other provisions. See Duncan v. Walker , 533 U. S. 167 , 174 (2001) (plurality opinion) (counseling against interpretations that result in surplus language).[ Footnote 1 ] This interpretation also finds support in the INA, which lists “illicit trafficking” and its subset of “drug trafficking crime[s]” as aggravated felonies. 8 U. S. C. §1101(a)(43)(B). The INA considers these offenses aggravated felonies “whether in violation of Federal or State law … .” §1101(a)(43) (penultimate sentence). Thus, by incorporating §924(c)(2)’s definition of “drug trafficking crime,” the INA supports and confirms the conclusion that the definition of “drug trafficking crime” applies to both federal and state felonies. Moreover, the INA isolates the relevant inquiry to the prosecuting jurisdiction. Section 1227(a)(2)(A)(iii) of Title 8 makes an alien eligible for deportation only upon a conviction for an “aggravated felony.” The conviction requirement suggests that the jurisdiction issuing the conviction determines whether the offense is a felony. This result makes sense. When faced with an actual conviction, it would be unusual to ask, hypothetically, whether that conviction would have been a felony in a different jurisdiction. Furthermore, that hypothetical inquiry could cause significant inconsistencies. For instance, where a State convicts an alien of a misdemeanor drug crime, but federal law classifies the crime as a felony, the misdemeanor conviction would constitute an aggravated felony. This anomaly does not arise when relying on the prosecuting jurisdiction’s classification of the crime. II The Court’s approach is unpersuasive. At the outset of its analysis, the Court avers that it must look to the ordinary meaning of “illicit trafficking” because “the statutes in play do not define the term.” Ante , at 5. That statement is incorrect. Section 1101(a)(43)(B) of Title 8 clearly defines “illicit trafficking in a controlled substance,” at least in part, as “a drug trafficking crime ( as defined in section 924(c) of title 18 ).” (Emphasis added.) Therefore, whatever else “illicit trafficking” might mean, it must include anything defined as a “drug trafficking crime” in §924(c)(2). Rather than grappling with this definition of the relevant term, the Court instead sets up a conflicting strawman definition. The majority states that the ordinary meaning of “illicit trafficking” involves “some sort of commercial dealing.” Ante , at 5. Because mere possession does not constitute commercial dealing, the Court concludes that Lopez’s possession offense cannot qualify as an “illicit trafficking” offense—or, by implication, a “drug trafficking crime.” Yet even the Court admits that the term “drug trafficking crime” includes federal drug felonies, several of which are mere possession offenses. See 21 U. S. C. §844(a) (possession of more than five grams of cocaine base, possession of flunitrazepam, and repeat possession offenses). If the Court recognizes, in light of §924(c)(2), some mere possession offenses under the umbrella of “illicit trafficking,” it cannot reject Lopez’s conviction out of hand. Yet the Court downplays these “few exceptions” in two footnotes, concluding that “this coerced inclusion of a few possession offenses” gives no reason to “override [the] ordinary meaning” of “illicit trafficking.” Ante , at 6, nn. 4 and 6. The inconsistency deserves more than the Court’s passing reference. By encompassing repeat possession offenses, the term “illicit trafficking” includes far more than “a few” offenses outside of its ordinary meaning. It must include every type of possession offense under the CSA, so long as the offender has had a previous possession offense. If defining “illicit trafficking” to include the entire range of unlawful possession does not provide a “clear statutory command to override ordinary meaning,” I do not know what would.[ Footnote 2 ] The Court, however, gives only fleeting consideration to the text of §924(c)(2) itself. After referencing the phrase “felony punishable under” the CSA, the Court asks “where else would one naturally look” other than the CSA to determine whether a felony qualifies as a drug trafficking crime. Ante , at 7. In response to the Court’s rhetorical question, I suggest that one might naturally look to the conviction itself to determine whether it is a felony. When presented with an actual conviction, one would not expect to look to a hypothetical prosecution to determine whether an offender has committed a felony. Continuing to avoid the text of §924(c)(2), the Court instead focuses on what the statute does not say. It concludes that Congress could have expressly referenced state law as in §924(g)(3) and (k)(2). Ante , at 7. The response, of course, is that Congress could just as well have defined a “drug trafficking crime” as “any felony punishable as a felony under the CSA.” Rejoining, the Court resorts to an “instinctiv[e] understand[ing]” that the statutory definition actually means “felony as defined by the Act.” Ibid . Instinct notwithstanding, we must interpret what Congress actually wrote, not what it could have written. Furthermore, the Court’s “instinct” to interpret §924(c)(2) to mean “felony as defined by” the CSA creates an unnecessary ambiguity in the meaning of “felony.” The CSA defines “felony” as “any Federal or State offense classified by applicable Federal or State law as a felony.” 21 U. S. C. §802(13).[ Footnote 3 ] Under the Court’s interpretation, that definition seemingly should apply. The Court concludes otherwise but never resolves the ambiguity it creates: It instead explains that “felony” is defined by the CSA as something other than the CSA’s definition of “felony.” Ante , at 8, n. 7. That explanation is, at best, unsatisfying. After gliding past the statutory text, the Court expresses concern over the fact that the Government’s interpretation allows federal immigration law to turn on varying state criminal classifications. Congress apparently did not share this concern because some definitions of “aggravated felony” explicitly turn on the State’s authorized term of imprisonment, not a uniform federal classification. See 8 U. S. C. §1101(a)(43)(F), (G), (J), (P)–(T). Even the Court finds this variance “not … all that remarkable.” Ante , at 10. The Court’s real concern therefore has little to do with variations in state law. Rather, it worries that “a state criminal classification [may be] at odds with a federal provision.” Ibid. But, obviously, if a state offense does not qualify under the definitions in §1101(a)(43), then the offense cannot be an “aggravated felony.” As shown in Part I, though, nothing about Lopez’s offense conflicts with the plain language of §924(c)(2) as incorporated into §1101(a)(43)(B). He was convicted of a “felony,” and his offense was “punishable under the” CSA. The Court also notes apparent anomalies in the Government’s approach. It asserts that, under the Government’s interpretation, a state felony conviction for simple possession of less than 30 grams of marijuana could be an “aggravated felony” even though the INA expressly excludes such an offense as grounds for deportation under 8 U. S. C. §1227(a)(2)(B)(i). Ante , at 10–11. The Court’s concern has little basis in reality. Only one State authorizes more than one year of imprisonment for possession of over 20 grams. See Fla. Stat. §§893.13(6)(a)–(b), 775.082(3)(a)(3) (2006). A few others classify possession of one ounce (or 28.3 grams) as a felony. See, e.g., Nev. Rev. Stat. §§453.336(1)–(2) (2004), (4), 193.130 (2003). The mere possibility that a case could fall into this small gap and lead to removal provides no ground for the Court to depart from the plain meaning of §924(c)(2). In fact, it is the Court’s interpretation that will have a significant effect on removal proceedings involving state possession offenses. Federal law treats possession of large quantities of controlled substances as felonious possession with intent to distribute. States frequently treat the same conduct as simple possession offenses, which would escape classification as aggravated felonies under the Court’s interpretation. Thus, the Court’s interpretation will result in a large disparity between the treatment of federal and state convictions for possession of large amounts of drugs. And it is difficult to see why Congress would “authorize a State to overrule its judgment” about possession of large quantities of drugs any more than it would about other possession offenses. Ante , at 11. Finally, the Court admits that its reading will subject an alien defendant convicted of a state misdemeanor to deportation if his conduct was punishable as a felony under the CSA. Accordingly, even if never convicted of an actual felony, an alien defendant becomes eligible for deportation based on a hypothetical federal prosecution. It is at least anomalous, if not inconsistent, that an actual misdemeanor may be considered an “aggravated felony.” III Because a plain reading of the statute would avoid the ambiguities and anomalies created by today’s majority opinion, I respectfully dissent. Footnote 1 The majority mistakenly contends that my interpretation also renders this language superfluous. Ante , at 10 n. 9. As I have stated, the plain meaning of “drug trafficking crime” includes two categories of felonies—state and federal. For the limiting language in §924(c)(1)(A) to have meaning, it must exclude one of those categories. As a state felony, Lopez’s possession offense does not fall within the category of federal drug trafficking crimes. Consequently, it is not eligible for use under §924(c)(1)(A). Footnote 2 In its discussion of whether possession may constitute “trafficking,” the Court takes its own trip “through the looking glass.” See ante, at 6. “Commerce,” according to the Court, “certainly … is no element of simple possession … .” Ante , at 5. Not long ago, the Court found the opposite to be true when interpreting the scope of Congress’ power under the Commerce Clause. See Gonzales v. Raich , 545 U. S. 1 , 22 (2005) (plurality opinion) (concluding that Congress may regulate the mere possession of marijuana as affecting “commerce”). In Raich , the Court fell into the very trap it purports to identify today by “turn[ing] simple possession into [commerce], just what the English language tells us not to expect.” Ante , at 6; see also Raich, supra, at 57–58 (Thomas, J., dissenting). The Court’s broadening of the Commerce Clause stands in tension with its present narrow interpretation of “trafficking,” which 8 U. S. C. §1101(a)(43)(B) explicitly alters to include at least some possession offenses. Footnote 3 Several Courts of Appeals looked to this definition of “felony” when construing the meaning of “drug trafficking crime.” See, e.g., United States v. Wilson , 316 F. 3d 506, 512 (CA4 2003). Although the Government would clearly prevail under 21 U. S. C. §802(13), it has conceded that this definition does not apply. This concession makes good sense: The definition of “drug trafficking crime” resides in Title 18, and it is therefore most natural to construe “felony” as used in that title. See, n. 1, supra . As discussed above, that definition as well requires that a crime be considered a felony if the State defines it as a felony.

In Lopez v. Gonzales, the Supreme Court held that a state felony drug offense punishable as a misdemeanor under the Controlled Substances Act is not considered a "felony punishable under the Controlled Substances Act" for immigration purposes. This means that a non-citizen convicted of a state drug felony that would be a misdemeanor under federal law is not automatically subject to deportation as an "aggravated felon."

Immigration & National Security

Hamdi v. Rumsfeld

https://supreme.justia.com/cases/federal/us/542/507/

OPINION OF O'CONNOR, J. HAMDI V. RUMSFELD 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-6696 YASER ESAM HAMDI and ESAM FOUAD HAMDI, as next friend of YASER ESAM HAMDI, PETITION- ERS v. DONALD H. RUMSFELD, SECRETARY OF DEFENSE, et al. on writ of certiorari to the united states court of appeals for the fourth circuit [June 28, 2004]    Justice O’Connor announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Kennedy, and Justice Breyer join.    At this difficult time in our Nation’s history, we are called upon to consider the legality of the Government’s detention of a United States citizen on United States soil as an “enemy combatant” and to address the process that is constitutionally owed to one who seeks to challenge his classification as such. The United States Court of Appeals for the Fourth Circuit held that petitioner’s detention was legally authorized and that he was entitled to no further opportunity to challenge his enemy-combatant label. We now vacate and remand. We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. I    On September 11, 2001, the al Qaeda terrorist network used hijacked commercial airliners to attack prominent targets in the United States. Approximately 3,000 people were killed in those attacks. One week later, in response to these “acts of treacherous violence,” Congress passed a resolution authorizing the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” or “harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Authorization for Use of Military Force (“the AUMF”), 115 Stat. 224. Soon thereafter, the President ordered United States Armed Forces to Afghanistan, with a mission to subdue al Qaeda and quell the Taliban regime that was known to support it.    This case arises out of the detention of a man whom the Government alleges took up arms with the Taliban during this conflict. His name is Yaser Esam Hamdi. Born an American citizen in Louisiana in 1980, Hamdi moved with his family to Saudi Arabia as a child. By 2001, the parties agree, he resided in Afghanistan. At some point that year, he was seized by members of the Northern Alliance, a coalition of military groups opposed to the Taliban government, and eventually was turned over to the United States military. The Government asserts that it initially detained and interrogated Hamdi in Afghanistan before transferring him to the United States Naval Base in Guantanamo Bay in January 2002. In April 2002, upon learning that Hamdi is an American citizen, authorities transferred him to a naval brig in Norfolk, Virginia, where he remained until a recent transfer to a brig in Charleston, South Carolina. The Government contends that Hamdi is an “enemy combatant,” and that this status justifies holding him in the United States indefinitely—without formal charges or proceedings—unless and until it makes the determination that access to counsel or further process is warranted.    In June 2002, Hamdi’s father, Esam Fouad Hamdi, filed the present petition for a writ of habeas corpus under 28 U. S. C. §2241 in the Eastern District of Virginia, naming as petitioners his son and himself as next friend. The elder Hamdi alleges in the petition that he has had no contact with his son since the Government took custody of him in 2001, and that the Government has held his son “without access to legal counsel or notice of any charges pending against him.” App. 103, 104. The petition contends that Hamdi’s detention was not legally authorized. Id ., at 105. It argues that, “[a]s an American citizen, … Hamdi enjoys the full protections of the Constitution,” and that Hamdi’s detention in the United States without charges, access to an impartial tribunal, or assistance of counsel “violated and continue[s] to violate the Fifth and Fourteenth Amendments to the United States Constitution.” Id ., at 107. The habeas petition asks that the court, among other things, (1) appoint counsel for Hamdi; (2) order respondents to cease interrogating him; (3) declare that he is being held in violation of the Fifth and Fourteenth Amendments; (4) “[t]o the extent Respondents contest any material factual allegations in this Petition, schedule an evidentiary hearing, at which Petitioners may adduce proof in support of their allegations”; and (5) order that Hamdi be released from his “unlawful custody.” Id ., at 108–109. Although his habeas petition provides no details with regard to the factual circumstances surrounding his son’s capture and detention, Hamdi’s father has asserted in documents found elsewhere in the record that his son went to Afghanistan to do “relief work,” and that he had been in that country less than two months before September 11, 2001, and could not have received military training. Id ., at 188–189. The 20-year-old was traveling on his own for the first time, his father says, and “[b]ecause of his lack of experience, he was trapped in Afghanistan once that military campaign began.” Id ., at 188–189.    The District Court found that Hamdi’s father was a proper next friend, appointed the federal public defender as counsel for the petitioners, and ordered that counsel be given access to Hamdi. Id ., at 113–116. The United States Court of Appeals for the Fourth Circuit reversed that order, holding that the District Court had failed to extend appropriate deference to the Government’s security and intelligence interests. 296 F. 3d 278, 279, 283 (2002). It directed the District Court to consider “the most cautious procedures first,” id ., at 284, and to conduct a deferential inquiry into Hamdi’s status, id ., at 283. It opined that “if Hamdi is indeed an ‘enemy combatant’ who was captured during hostilities in Afghanistan, the government’s present detention of him is a lawful one.” Ibid .    On remand, the Government filed a response and a motion to dismiss the petition. It attached to its response a declaration from one Michael Mobbs (hereinafter “Mobbs Declaration”), who identified himself as Special Advisor to the Under Secretary of Defense for Policy. Mobbs indicated that in this position, he has been “substantially involved with matters related to the detention of enemy combatants in the current war against the al Qaeda terrorists and those who support and harbor them (including the Taliban).” App. 148. He expressed his “familiar[ity]” with Department of Defense and United States military policies and procedures applicable to the detention, control, and transfer of al Qaeda and Taliban personnel, and declared that “[b]ased upon my review of relevant records and reports, I am also familiar with the facts and circumstances related to the capture of … Hamdi and his detention by U. S. military forces.” Ibid .    Mobbs then set forth what remains the sole evidentiary support that the Government has provided to the courts for Hamdi’s detention. The declaration states that Hamdi “traveled to Afghanistan” in July or August 2001, and that he thereafter “affiliated with a Taliban military unit and received weapons training.” Ibid . It asserts that Hamdi “remained with his Taliban unit following the attacks of September 11” and that, during the time when Northern Alliance forces were “engaged in battle with the Taliban,” “Hamdi’s Taliban unit surrendered” to those forces, after which he “surrender[ed] his Kalishnikov assault rifle” to them. Id ., at 148–149. The Mobbs Declaration also states that, because al Qaeda and the Taliban “were and are hostile forces engaged in armed conflict with the armed forces of the United States,” “individuals associated with” those groups “were and continue to be enemy combatants.” Id ., at 149. Mobbs states that Hamdi was labeled an enemy combatant “[b]ased upon his interviews and in light of his association with the Taliban.” Ibid . According to the declaration, a series of “U. S. military screening team[s]” determined that Hamdi met “the criteria for enemy combatants,” and “a subsequent interview of Hamdi has confirmed that he surrendered and gave his firearm to Northern Alliance forces, which supports his classification as an enemy combatant.” Id ., at 149–150.    After the Government submitted this declaration, the Fourth Circuit directed the District Court to proceed in accordance with its earlier ruling and, specifically, to “ ‘consider the sufficiency of the Mobbs Declaration as an independent matter before proceeding further.’ ” 316 F. 3d at 450, 462 (2003) . The District Court found that the Mobbs Declaration fell “far short” of supporting Hamdi’s detention. App. 292. It criticized the generic and hearsay nature of the affidavit, calling it “little more than the government’s ‘say-so.’ ” Id ., at 298. It ordered the Government to turn over numerous materials for in camera review, including copies of all of Hamdi’s statements and the notes taken from interviews with him that related to his reasons for going to Afghanistan and his activities therein; a list of all interrogators who had questioned Hamdi and their names and addresses; statements by members of the Northern Alliance regarding Hamdi’s surrender and capture; a list of the dates and locations of his capture and subsequent detentions; and the names and titles of the United States Government officials who made the determinations that Hamdi was an enemy combatant and that he should be moved to a naval brig. Id ., at 185–186. The court indicated that all of these materials were necessary for “meaningful judicial review” of whether Hamdi’s detention was legally authorized and whether Hamdi had received sufficient process to satisfy the Due Process Clause of the Constitution and relevant treaties or military regulations. Id ., at 291–292. The Government sought to appeal the production order, and the District Court certified the question of whether the Mobbs Declaration, “ ‘standing alone, is sufficient as a matter of law to allow meaningful judicial review of [Hamdi’s] classification as an enemy combatant.’ ” 316 F. 3d, at 462. The Fourth Circuit reversed, but did not squarely answer the certified question. It instead stressed that, because it was “undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict,” no factual inquiry or evidentiary hearing allowing Hamdi to be heard or to rebut the Government’s assertions was necessary or proper. Id ., at 459. Concluding that the factual averments in the Mobbs Declaration, “if accurate,” provided a sufficient basis upon which to conclude that the President had constitutionally detained Hamdi pursuant to the President’s war powers, it ordered the habeas petition dismissed. Id ., at 473. The Fourth Circuit emphasized that the “vital purposes” of the detention of uncharged enemy combatants—preventing those combatants from rejoining the enemy while relieving the military of the burden of litigating the circumstances of wartime captures halfway around the globe—were interests “directly derived from the war powers of Articles I and II.” Id ., at 465–466. In that court’s view, because “Article III contains nothing analogous to the specific powers of war so carefully enumerated in Articles I and II,” id ., at 463, separation of powers principles prohibited a federal court from “delv[ing] further into Hamdi’s status and capture,” id ., at 473. Accordingly, the District Court’s more vigorous inquiry “went far beyond the acceptable scope of review.” Ibid . On the more global question of whether legal authorization exists for the detention of citizen enemy combatants at all, the Fourth Circuit rejected Hamdi’s arguments that 18 U. S. C. §4001(a) and Article 5 of the Geneva Convention rendered any such detentions unlawful. The court expressed doubt as to Hamdi’s argument that §4001(a), which provides that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress,” required express congressional authorization of detentions of this sort. But it held that, in any event, such authorization was found in the post-September 11 Authorization for Use of Military Force. 316 F. 3d, at 467. Because “capturing and detaining enemy combatants is an inherent part of warfare,” the court held, “the ‘necessary and appropriate force’ referenced in the congressional resolution necessarily includes the capture and detention of any and all hostile forces arrayed against our troops.” Ibid . ; see also id. , at 467–468 (noting that Congress, in 10 U. S. C. §956(5), had specifically authorized the expenditure of funds for keeping prisoners of war and persons whose status was determined “to be similar to prisoners of war,” and concluding that this appropriation measure also demonstrated that Congress had “authorized [these individuals’] detention in the first instance”). The court likewise rejected Hamdi’s Geneva Convention claim, concluding that the convention is not self-executing and that, even if it were, it would not preclude the Executive from detaining Hamdi until the cessation of hostilities. 316 F. 3d, at 468–469. Finally, the Fourth Circuit rejected Hamdi’s contention that its legal analyses with regard to the authorization for the detention scheme and the process to which he was constitutionally entitled should be altered by the fact that he is an American citizen detained on American soil. Relying on Ex parte Quirin , 317 U. S. 1 (1942), the court emphasized that “[o]ne who takes up arms against the United States in a foreign theater of war, regardless of his citizenship, may properly be designated an enemy combatant and treated as such.” 316 F.3d, at 475. “The privilege of citizenship,” the court held, “entitles Hamdi to a limited judicial inquiry into his detention, but only to determine its legality under the war powers of the political branches. At least where it is undisputed that he was present in a zone of active combat operations, we are satisfied that the Constitution does not entitle him to a searching review of the factual determinations underlying his seizure there.” Ibid . The Fourth Circuit denied rehearing en banc, 337 F. 3d 335 (2003), and we granted certiorari. 540 U. S. __ (2004). We now vacate the judgment below and remand. II The threshold question before us is whether the Executive has the authority to detain citizens who qualify as “enemy combatants.” There is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such. It has made clear, however, that, for purposes of this case, the “enemy combatant” that it is seeking to detain is an individual who, it alleges, was “ ‘part of or supporting forces hostile to the United States or coalition partners’ ” in Afghanistan and who “ ‘engaged in an armed conflict against the United States’ ” there. Brief for Respondents 3. We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized. The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government’s alternative position, that Congress has in fact authorized Hamdi’s detention, through the AUMF. Our analysis on that point, set forth below, substantially overlaps with our analysis of Hamdi’s principal argument for the illegality of his detention. He posits that his detention is forbidden by 18 U. S. C. §4001(a). Section 4001(a) states that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Congress passed §4001(a) in 1971 as part of a bill to repeal the Emergency Detention Act of 1950, 50 U. S. C. §811 et seq ., which provided procedures for executive detention, during times of emergency, of individuals deemed likely to engage in espionage or sabotage. Congress was particularly concerned about the possibility that the Act could be used to reprise the Japanese internment camps of World War II. H. R. Rep. No. 92–116 (1971); id. , at 4 (“The concentration camp implications of the legislation render it abhorrent”).   The Government again presses two alternative positions. First, it argues that §4001(a), in light of its legislative history and its location in Title 18, applies only to “the control of civilian prisons and related detentions,” not to military detentions. Brief for Respondents 21. Second, it maintains that §4001(a) is satisfied, because Hamdi is being detained “pursuant to an Act of Congress”—the AUMF. Id ., at 21–22. Again, because we conclude that the Government’s second assertion is correct, we do not address the first. In other words, for the reasons that follow, we conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe (assuming, without deciding, that such authorization is required), and that the AUMF satisfied §4001(a)’s requirement that a detention be “pursuant to an Act of Congress” (assuming, without deciding, that §4001(a) applies to military detentions). The AUMF authorizes the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the “necessary and appropriate force” Congress has authorized the President to use. The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by “universal agreement and practice,” are “important incident[s] of war.” Ex parte Quirin, 317 U. S., at 28. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. Naqvi, Doubtful Prisoner-of-War Status, 84 Int’l Rev. Red Cross 571, 572 (2002) (“[C]aptivity in war is ‘neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war’ ” (quoting decision of Nuremberg Military Tribunal, reprinted in 41 Am. J. Int’l L. 172, 229 (1947)); W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920) (“The time has long passed when ‘no quarter’ was the rule on the battlefield … . It is now recognized that ‘Captivity is neither a punishment nor an act of vengeance,’ but ‘merely a temporary detention which is devoid of all penal character.’ … ‘A prisoner of war is no convict; his imprisonment is a simple war measure.’ ” (citations omitted); cf. In re Territo , 156 F.2d 142, 145 (CA9 1946) (“The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on must be removed as completely as practicable from the front, treated humanely, and in time exchanged, repatriated, or otherwise released” (footnotes omitted)). There is no bar to this Nation’s holding one of its own citizens as an enemy combatant. In Quirin , one of the detainees, Haupt, alleged that he was a naturalized United States citizen. 317 U. S., at 20. We held that “[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of … the law of war.” Id . , at 37–38. While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. See id . , at 30–31. See also Lieber Code, ¶ ;153, Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 (1863), reprinted in 2 Lieber, Miscellaneous Writings, p. 273 (contemplating, in code binding the Union Army during the Civil War, that “captured rebels” would be treated “as prisoners of war”). Nor can we see any reason for drawing such a line here. A citizen, no less than an alien, can be “part of or supporting forces hostile to the United States or coalition partners” and “engaged in an armed conflict against the United States,” Brief for Respondents 3; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict. In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of “necessary and appropriate force,” Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here. Hamdi objects, nevertheless, that Congress has not authorized the indefinite detention to which he is now subject. The Government responds that “the detention of enemy combatants during World War II was just as ‘indefinite’ while that war was being fought.” Id ., at 16. We take Hamdi’s objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention. We recognize that the national security underpinnings of the “war on terror,” although crucially important, are broad and malleable. As the Government concedes, “given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement.” Ibid . The prospect Hamdi raises is therefore not far-fetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi’s detention could last for the rest of his life. It is a clearly established principle of the law of war that detention may last no longer than active hostilities. See Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3406, T. I. A. S. No. 3364 (“Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities”). See also Article 20 of the Hague Convention (II) on Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1817 (as soon as possible after “conclusion of peace”); Hague Convention (IV), supra , Oct. 18, 1907, 36 Stat. 2301(“conclusion of peace” (Art. 20)); Geneva Convention, supra , July 27, 1929, 47 Stat. 2055 (repatriation should be accomplished with the least possible delay after conclusion of peace (Art. 75)); Praust, Judicial Power to Determine the Status and Rights of Persons Detained without Trial, 44 Harv. Int’l L. J. 503, 510–511 (2003) (prisoners of war “can be detained during an armed conflict, but the detaining country must release and repatriate them ‘without delay after the cessation of active hostilities,’ unless they are being lawfully prosecuted or have been lawfully convicted of crimes and are serving sentences” (citing Arts. 118, 85, 99, 119, 129, Geneva Convention (III), 6 T. I .A. S., at 3384, 3392, 3406, 3418)). Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. See, e.g., Constable, U. S. Launches New Operation in Afghanistan, Washington Post, Mar. 14, 2004, p. A22 (reporting that 13,500 United States troops remain in Afghanistan, including several thousand new arrivals); J. Abizaid, Dept. of Defense, Gen. Abizaid Central Command Operations Update Briefing, Apr. 30, 2004, http://www.defenselink.mil/transcripts/2004/tr20040430-1402.html (as visited June 8, 2004, and available in the Clerk of Court’s case file) (media briefing describing ongoing operations in Afghanistan involving 20,000 United States troops). The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF. Ex parte Milligan, 4 Wall. 2, 125 (1866), does not undermine our holding about the Government’s authority to seize enemy combatants, as we define that term today. In that case, the Court made repeated reference to the fact that its inquiry into whether the military tribunal had jurisdiction to try and punish Milligan turned in large part on the fact that Milligan was not a prisoner of war, but a resident of Indiana arrested while at home there. Id ., at 118, 131. That fact was central to its conclusion. Had Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different. The Court’s repeated explanations that Milligan was not a prisoner of war suggest that had these different circumstances been present he could have been detained under military authority for the duration of the conflict, whether or not he was a citizen.[ Footnote 1 ] Moreover, as Justice Scalia acknowledges, the Court in Ex parte Quirin , 317 U. S. 1 (1942), dismissed the language of Milligan that the petitioners had suggested prevented them from being subject to military process. Post , at 17–18 (dissenting opinion). Clear in this rejection was a disavowal of the New York State cases cited in Milligan , 4 Wall., at 128–129, on which Justice Scalia relies. See id ., at 128–129. Both Smith v. Shaw , 12 Johns. *257 (N. Y. 1815), and M’Connell v. Hampton , 12 Johns. *234 (N. Y. 1815), were civil suits for false imprisonment. Even accepting that these cases once could have been viewed as standing for the sweeping proposition for which Justice Scalia cites them—that the military does not have authority to try an American citizen accused of spying against his country during wartime— Quirin makes undeniably clear that this is not the law today. Haupt, like the citizens in Smith and M’Connell , was accused of being a spy. The Court in Quirin found him “subject to trial and punishment by [a] military tribunal[ ]” for those acts, and held that his citizenship did not change this result. 317 U. S., at 31, 37–38. Quirin was a unanimous opinion. It both postdates and clarifies Milligan , providing us with the most apposite precedent that we have on the question of whether citizens may be detained in such circumstances. Brushing aside such precedent—particularly when doing so gives rise to a host of new questions never dealt with by this Court—is unjustified and unwise. To the extent that Justice Scalia accepts the precedential value of Quirin , he argues that it cannot guide our inquiry here because “[i]n Quirin it was uncontested that the petitioners were members of enemy forces,” while Hamdi challenges his classification as an enemy combatant. Post , at 19. But it is unclear why, in the paradigm outlined by Justice Scalia, such a concession should have any relevance. Justice Scalia envisions a system in which the only options are congressional suspension of the writ of habeas corpus or prosecution for treason or some other crime. Post , at 1. He does not explain how his historical analysis supports the addition of a third option—detention under some other process after concession of enemy-combatant status—or why a concession should carry any different effect than proof of enemy-combatant status in a proceeding that comports with due process. To be clear, our opinion only finds legislative authority to detain under the AUMF once it is sufficiently clear that the individual is, in fact, an enemy combatant; whether that is established by concession or by some other process that verifies this fact with sufficient certainty seems beside the point. Further, Justice Scalia largely ignores the context of this case: a United States citizen captured in a foreign combat zone. Justice Scalia refers to only one case involving this factual scenario—a case in which a United States citizen-POW (a member of the Italian army) from World War II was seized on the battlefield in Sicily and then held in the United States. The court in that case held that the military detention of that United States citizen was lawful. See In re Territo , 156 F. 2d, at 148. Justice Scalia’s treatment of that case—in a footnote—suffers from the same defect as does his treatment of Quirin: Because Justice Scalia finds the fact of battlefield capture irrelevant, his distinction based on the fact that the petitioner “conceded” enemy combatant status is beside the point. See supra , at 15–16. Justice Scalia can point to no case or other authority for the proposition that those captured on a foreign battlefield (whether detained there or in U. S. territory) cannot be detained outside the criminal process. Moreover, Justice Scalia presumably would come to a different result if Hamdi had been kept in Afghanistan or even Guantanamo Bay. See post , at 25 (Scalia, J., dissenting). This creates a perverse incentive. Military authorities faced with the stark choice of submitting to the full-blown criminal process or releasing a suspected enemy combatant captured on the battlefield will simply keep citizen-detainees abroad. Indeed, the Government transferred Hamdi from Guantanamo Bay to the United States naval brig only after it learned that he might be an American citizen. It is not at all clear why that should make a determinative constitutional difference. III Even in cases in which the detention of enemy combatants is legally authorized, there remains the question of what process is constitutionally due to a citizen who disputes his enemy-combatant status. Hamdi argues that he is owed a meaningful and timely hearing and that “extra-judicial detention [that] begins and ends with the submission of an affidavit based on third-hand hearsay” does not comport with the Fifth and Fourteenth Amendments. Brief for Petitioners 16. The Government counters that any more process than was provided below would be both unworkable and “constitutionally intolerable.” Brief for Respondents 46. Our resolution of this dispute requires a careful examination both of the writ of habeas corpus, which Hamdi now seeks to employ as a mechanism of judicial review, and of the Due Process Clause, which informs the procedural contours of that mechanism in this instance. A Though they reach radically different conclusions on the process that ought to attend the present proceeding, the parties begin on common ground. All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States. U. S. Const., Art. I, §9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”). Only in the rarest of circumstances has Congress seen fit to suspend the writ. See, e.g. , Act of Mar. 3, 1863, ch. 81, §1, 12 Stat. 755; Act of April 20, 1871, ch. 22, §4, 17 Stat. 14. At all other times, it has remained a critical check on the Executive, ensuring that it does not detain individuals except in accordance with law. See INS v. St. Cyr, 533 U. S. 289 , 301 (2001). All agree suspension of the writ has not occurred here. Thus, it is undisputed that Hamdi was properly before an Article III court to challenge his detention under 28 U. S. C. §2241. Brief for Respondents 12. Further, all agree that §2241 and its companion provisions provide at least a skeletal outline of the procedures to be afforded a petitioner in federal habeas review. Most notably, §2243 provides that “the person detained may, under oath, deny any of the facts set forth in the return or allege any other material facts,” and §2246 allows the taking of evidence in habeas proceedings by deposition, affidavit, or interrogatories. The simple outline of §2241 makes clear both that Congress envisioned that habeas petitioners would have some opportunity to present and rebut facts and that courts in cases like this retain some ability to vary the ways in which they do so as mandated by due process. The Government recognizes the basic procedural protections required by the habeas statute, Id ., at 37–38, but asks us to hold that, given both the flexibility of the habeas mechanism and the circumstances presented in this case, the presentation of the Mobbs Declaration to the habeas court completed the required factual development. It suggests two separate reasons for its position that no further process is due. B First, the Government urges the adoption of the Fourth Circuit’s holding below—that because it is “undisputed” that Hamdi’s seizure took place in a combat zone, the habeas determination can be made purely as a matter of law, with no further hearing or factfinding necessary. This argument is easily rejected. As the dissenters from the denial of rehearing en banc noted, the circumstances surrounding Hamdi’s seizure cannot in any way be characterized as “undisputed,” as “those circumstances are neither conceded in fact, nor susceptible to concession in law, because Hamdi has not been permitted to speak for himself or even through counsel as to those circumstances.” 337 F. 3d 335, 357 (CA4 2003) (Luttig, J., dissenting from denial of rehearing en banc); see also id ., at 371–372 (Motz, J., dissenting from denial of rehearing en banc). Further, the “facts” that constitute the alleged concession are insufficient to support Hamdi’s detention. Under the definition of enemy combatant that we accept today as falling within the scope of Congress’ authorization, Hamdi would need to be “part of or supporting forces hostile to the United States or coalition partners” and “engaged in an armed conflict against the United States” to justify his detention in the United States for the duration of the relevant conflict. Brief for Respondents 3. The habeas petition states only that “[w]hen seized by the United States Government, Mr. Hamdi resided in Afghanistan.” App. 104. An assertion that one resided in a country in which combat operations are taking place is not a concession that one was “ captured in a zone of active combat operations in a foreign theater of war,” 316 F. 3d, at 459 (emphasis added), and certainly is not a concession that one was “part of or supporting forces hostile to the United States or coalition partners” and “engaged in an armed conflict against the United States.” Accordingly, we reject any argument that Hamdi has made concessions that eliminate any right to further process. C The Government’s second argument requires closer consideration. This is the argument that further factual exploration is unwarranted and inappropriate in light of the extraordinary constitutional interests at stake. Under the Government’s most extreme rendition of this argument, “[r]espect for separation of powers and the limited institutional capabilities of courts in matters of military decision-making in connection with an ongoing conflict” ought to eliminate entirely any individual process, restricting the courts to investigating only whether legal authorization exists for the broader detention scheme. Brief for Respondents 26. At most, the Government argues, courts should review its determination that a citizen is an enemy combatant under a very deferential “some evidence” standard. Id ., at 34 (“Under the some evidence standard, the focus is exclusively on the factual basis supplied by the Executive to support its own determination” (citing Superintendent, Mass. Correctional Institution at Walpole v. Hill, 472 U. S. 445 , 455–457 (1985) (explaining that the some evidence standard “does not require” a “weighing of the evidence,” but rather calls for assessing “whether there is any evidence in the record that could support the conclusion”)). Under this review, a court would assume the accuracy of the Government’s articulated basis for Hamdi’s detention, as set forth in the Mobbs Declaration, and assess only whether that articulated basis was a legitimate one. Brief for Respondents 36; see also 316 F. 3d, at 473–474 (declining to address whether the “some evidence” standard should govern the adjudication of such claims, but noting that “[t]he factual averments in the [Mobbs] affidavit, if accurate, are sufficient to confirm” the legality of Hamdi’s detention). In response, Hamdi emphasizes that this Court consistently has recognized that an individual challenging his detention may not be held at the will of the Executive without recourse to some proceeding before a neutral tribunal to determine whether the Executive’s asserted justifications for that detention have basis in fact and warrant in law. See, e.g ., Zadvydas v. Davis, 533 U. S. 678 , 690 (2001); Addington v. Texas, 441 U. S. 418 , 425–427 (1979). He argues that the Fourth Circuit inappropriately “ceded power to the Executive during wartime to define the conduct for which a citizen may be detained, judge whether that citizen has engaged in the proscribed conduct, and imprison that citizen indefinitely,” Brief for Petitioners 21, and that due process demands that he receive a hearing in which he may challenge the Mobbs Declaration and adduce his own counter evidence. The District Court, agreeing with Hamdi, apparently believed that the appropriate process would approach the process that accompanies a criminal trial. It therefore disapproved of the hearsay nature of the Mobbs Declaration and anticipated quite extensive discovery of various military affairs. Anything less, it concluded, would not be “meaningful judicial review.” App. 291. Both of these positions highlight legitimate concerns. And both emphasize the tension that often exists between the autonomy that the Government asserts is necessary in order to pursue effectively a particular goal and the process that a citizen contends he is due before he is deprived of a constitutional right. The ordinary mechanism that we use for balancing such serious competing interests, and for determining the procedures that are necessary to ensure that a citizen is not “deprived of life, liberty, or property, without due process of law,” U. S. Const., Amdt. 5, is the test that we articulated in Mathews v. Eldridge, 424 U. S. 319 (1976). See, e.g. , Heller v. Doe, 509 U. S. 312 , 330–331 (1993); Zinermon v. Burch, 494 U. S. 113 , 127–128 (1990); United States v. Salerno, 481 U. S. 739 , 746 (1987); Schall v. Martin, 467 U. S. 253 , 274–275 (1984); Addington v. Texas, supra , at 425. Mathews dictates that the process due in any given instance is determined by weighing “the private interest that will be affected by the official action” against the Government’s asserted interest, “including the function involved” and the burdens the Government would face in providing greater process. 424 U. S., at 335. The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of “the risk of an erroneous deprivation” of the private interest if the process were reduced and the “probable value, if any, of additional or substitute safeguards.” Ibid . We take each of these steps in turn. 1 It is beyond question that substantial interests lie on both sides of the scale in this case. Hamdi’s “private interest … affected by the official action,” ibid ., is the most elemental of liberty interests—the interest in being free from physical detention by one’s own government. Foucha v. Louisiana, 504 U. S. 71 , 80 (1992) (“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action”); see also Parham v. J. R., 442 U. S. 584 , 600 (1979) (noting the “substantial liberty interest in not being confined unnecessarily”). “In our society liberty is the norm,” and detention without trial “is the carefully limited exception.” Salerno, supra , at 755. “We have always been careful not to ‘minimize the importance and fundamental nature’ of the individual’s right to liberty,” Foucha, supra , at 80 (quoting Salerno , supra , at 750), and we will not do so today. Nor is the weight on this side of the Mathews scale offset by the circumstances of war or the accusation of treasonous behavior, for “[i]t is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection,” Jones v. United States, 463 U. S. 354 , 361 (1983) (emphasis added; internal quotation marks omitted), and at this stage in the Mathews calculus, we consider the interest of the erroneously detained individual. Carey v. Piphus, 435 U. S. 247 , 259 (1978) (“Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property”); see also id ., at 266 (noting “the importance to organized society that procedural due process be observed,” and emphasizing that “the right to procedural due process is ‘absolute’ in the sense that it does not depend upon the merits of a claimant’s substantive assertions”). Indeed, as amicus briefs from media and relief organizations emphasize, the risk of erroneous deprivation of a citizen’s liberty in the absence of sufficient process here is very real. See Brief for AmeriCares et al. as Amici Curiae 13–22 (noting ways in which “[t]he nature of humanitarian relief work and journalism present a significant risk of mistaken military detentions”). Moreover, as critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat. See Ex parte Milligan, 4 Wall., at 125 (“[The Founders] knew—the history of the world told them—the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen”). Because we live in a society in which “[m]ere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty,” O’Connor v. Donaldson, 422 U. S. 563 , 575 (1975), our starting point for the Mathews v. Eldridge analysis is unaltered by the allegations surrounding the particular detainee or the organizations with which he is alleged to have associated. We reaffirm today the fundamental nature of a citizen’s right to be free from involuntary confinement by his own government without due process of law, and we weigh the opposing governmental interests against the curtailment of liberty that such confinement entails. 2 On the other side of the scale are the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States. As discussed above, supra , at 10, the law of war and the realities of combat may render such detentions both necessary and appropriate, and our due process analysis need not blink at those realities. Without doubt, our Constitution recognizes that core strategic matters of warmaking belong in the hands of those who are best positioned and most politically accountable for making them. Department of Navy v. Egan, 484 U. S. 518 , 530 (1988) (noting the reluctance of the courts “to intrude upon the authority of the Executive in military and national security affairs”); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 587 (1952) (acknowledging “broad powers in military commanders engaged in day-to-day fighting in a theater of war”). The Government also argues at some length that its interests in reducing the process available to alleged enemy combatants are heightened by the practical difficulties that would accompany a system of trial-like process. In its view, military officers who are engaged in the serious work of waging battle would be unnecessarily and dangerously distracted by litigation half a world away, and discovery into military operations would both intrude on the sensitive secrets of national defense and result in a futile search for evidence buried under the rubble of war. Brief for Respondents 46–49. To the extent that these burdens are triggered by heightened procedures, they are properly taken into account in our due process analysis. 3 Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. See Kennedy v. Mendoza&nbhyph;Martinez, 372 U. S. 144 , 164–165 (1963) (“The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with guarantees which, it is feared, will inhibit government action”); see also United States v. Robel, 389 U. S. 258 , 264 (1967) (“It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties … which makes the defense of the Nation worthwhile”). With due recognition of these competing concerns, we believe that neither the process proposed by the Government nor the process apparently envisioned by the District Court below strikes the proper constitutional balance when a United States citizen is detained in the United States as an enemy combatant. That is, “the risk of erroneous deprivation” of a detainee’s liberty interest is unacceptably high under the Government’s proposed rule, while some of the “additional or substitute procedural safeguards” suggested by the District Court are unwarranted in light of their limited “probable value” and the burdens they may impose on the military in such cases. Mathews , 424 U. S., at 335. We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker. See Cleveland Bd. of Ed. v. Loudermill, 470 U. S. 532 , 542 (1985) (“An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case’ ” (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 , 313 (1950)); Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U. S. 602 , 617 (1993) (“due process requires a ‘neutral and detached judge in the first instance’ ” (quoting Ward v. Monroeville, 409 U. S. 57 , 61–62 (1972)). “For more than a century the central meaning of procedural due process has been clear: ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.’ It is equally fundamental that the right to notice and an opportunity to be heard ‘must be granted at a meaningful time and in a meaningful manner.’ ” Fuentes v. Shevin, 407 U. S. 67 , 80 (1972) (quoting Baldwin v. Hale, 1 Wall. 223, 233 (1864); Armstrong v. Manzo, 380 U. S. 545 , 552 (1965) (other citations omitted)). These essential constitutional promises may not be eroded. At the same time, the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government’s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant. In the words of Mathews , process of this sort would sufficiently address the “risk of erroneous deprivation” of a detainee’s liberty interest while eliminating certain procedures that have questionable additional value in light of the burden on the Government. 424 U. S., at 335.[ Footnote 2 ] We think it unlikely that this basic process will have the dire impact on the central functions of warmaking that the Government forecasts. The parties agree that initial captures on the battlefield need not receive the process we have discussed here; that process is due only when the determination is made to continue to hold those who have been seized. The Government has made clear in its briefing that documentation regarding battlefield detainees already is kept in the ordinary course of military affairs. Brief for Respondents 3–4. Any factfinding imposition created by requiring a knowledgeable affiant to summarize these records to an independent tribunal is a minimal one. Likewise, arguments that military officers ought not have to wage war under the threat of litigation lose much of their steam when factual disputes at enemy-combatant hearings are limited to the alleged combatant’s acts. This focus meddles little, if at all, in the strategy or conduct of war, inquiring only into the appropriateness of continuing to detain an individual claimed to have taken up arms against the United States. While we accord the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of a war, and recognize that the scope of that discretion necessarily is wide, it does not infringe on the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims like those presented here. Cf. Korematsu v. United States , 323 U. S. 214 , 233–234 (1944) (Murphy, J., dissenting) (“[L]ike other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled”); Sterling v. Constantin, 287 U. S. 378 , 401 (1932) (“What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions”). In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator. D In so holding, we necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Youngstown Sheet & Tube , 343 U. S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. Mistretta v. United States, 488 U. S. 361 , 380 (1989) (it was “the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty”); Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398 , 426 (1934) (The war power “is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties”). Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive’s discretion in the realm of detentions. See St. Cyr , 533 U. S., at 301 (“At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest”). Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process. Because we conclude that due process demands some system for a citizen detainee to refute his classification, the proposed “some evidence” standard is inadequate. Any process in which the Executive’s factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short. As the Government itself has recognized, we have utilized the “some evidence” standard in the past as a standard of review, not as a standard of proof. Brief for Respondents 35. That is, it primarily has been employed by courts in examining an administrative record developed after an adversarial proceeding—one with process at least of the sort that we today hold is constitutionally mandated in the citizen enemy-combatant setting. See, e.g. , St. Cyr , supra; Hill , 472 U. S., at 455–457. This standard therefore is ill suited to the situation in which a habeas petitioner has received no prior proceedings before any tribunal and had no prior opportunity to rebut the Executive’s factual assertions before a neutral decisionmaker. Today we are faced only with such a case. Aside from unspecified “screening” processes, Brief for Respondents 3–4, and military interrogations in which the Government suggests Hamdi could have contested his classification, Tr. of Oral Arg. 40, 42, Hamdi has received no process. An interrogation by one’s captor, however effective an intelligence-gathering tool, hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker. Compare Brief for Respondents 42–43 (discussing the “secure interrogation environment,” and noting that military interrogations require a controlled “interrogation dynamic” and “a relationship of trust and dependency” and are “a critical source” of “timely and effective intelligence”) with Concrete Pipe , 508 U. S., at 617–618 (“one is entitled as a matter of due process of law to an adjudicator who is not in a situation which would offer a possible temptation to the average man as a judge . . . which might lead him not to hold the balance nice, clear and true” (internal quotation marks omitted). That even purportedly fair adjudicators “are disqualified by their interest in the controversy to be decided is, of course, the general rule.” Tumey v. Ohio, 273 U. S. 510 , 522 (1927). Plainly, the “process” Hamdi has received is not that to which he is entitled under the Due Process Clause. There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Indeed, it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Convention. See Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Regulation 190–8, §1–6 (1997). In the absence of such process, however, a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved. Both courts below recognized as much, focusing their energies on the question of whether Hamdi was due an opportunity to rebut the Government’s case against him. The Government, too, proceeded on this assumption, presenting its affidavit and then seeking that it be evaluated under a deferential standard of review based on burdens that it alleged would accompany any greater process. As we have discussed, a habeas court in a case such as this may accept affidavit evidence like that contained in the Mobbs Declaration, so long as it also permits the alleged combatant to present his own factual case to rebut the Government’s return. We anticipate that a District Court would proceed with the caution that we have indicated is necessary in this setting, engaging in a factfinding process that is both prudent and incremental. We have no reason to doubt that courts faced with these sensitive matters will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns. IV Hamdi asks us to hold that the Fourth Circuit also erred by denying him immediate access to counsel upon his detention and by disposing of the case without permitting him to meet with an attorney. Brief for Petitioners 19. Since our grant of certiorari in this case, Hamdi has been appointed counsel, with whom he has met for consultation purposes on several occasions, and with whom he is now being granted unmonitored meetings. He unquestionably has the right to access to counsel in connection with the proceedings on remand. No further consideration of this issue is necessary at this stage of the case. * * * The judgment of the United States Court of Appeals for the Fourth Circuit is vacated, and the case is remanded for further proceedings. It is so ordered. Footnote 1 Here the basis asserted for detention by the military is that Hamdi was carrying a weapon against American troops on a foreign battlefield; that is, that he was an enemy combatant. The legal category of enemy combatant has not been elaborated upon in great detail. The permissible bounds of the category will be defined by the lower courts as subsequent cases are presented to them. Footnote 2 Because we hold that Hamdi is constitutionally entitled to the process described above, we need not address at this time whether any treaty guarantees him similar access to a tribunal for a determination of his status. SCALIA, J., DISSENTING HAMDI V. RUMSFELD 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-6696 YASER ESAM HAMDI and ESAM FOUAD HAMDI, as next friend of YASER ESAM HAMDI, PETITION- ERS v. DONALD H. RUMSFELD, SECRETARY OF DEFENSE, et al. on writ of certiorari to the united states court of appeals for the fourth circuit [June 28, 2004]    Justice Scalia, with whom Justice Stevens joins, dissenting.    Petitioner, a presumed American citizen, has been imprisoned without charge or hearing in the Norfolk and Charleston Naval Brigs for more than two years, on the allegation that he is an enemy combatant who bore arms against his country for the Taliban. His father claims to the contrary, that he is an inexperienced aid worker caught in the wrong place at the wrong time. This case brings into conflict the competing demands of national security and our citizens’ constitutional right to personal liberty. Although I share the Court’s evident unease as it seeks to reconcile the two, I do not agree with its resolution.    Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution’s Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause. Accordingly, I would reverse the decision below. I    The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive. Blackstone stated this principle clearly:    “Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper … there would soon be an end of all other rights and immunities. … To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. …    “To make imprisonment lawful, it must either be, by process from the courts of judicature, or by warrant from some legal officer, having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into (if necessary) upon a habeas corpus . If there be no cause expressed, the gaoler is not bound to detain the prisoner. For the law judges in this respect, … that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged against him.” 1 W. Blackstone, Commentaries on the Laws of England 132–133 (1765) (hereinafter Blackstone). These words were well known to the Founders. Hamilton quoted from this very passage in The Federalist No. 84, p. 444 (G. Carey & J. McClellan eds. 2001). The two ideas central to Blackstone’s understanding—due process as the right secured, and habeas corpus as the instrument by which due process could be insisted upon by a citizen illegally imprisoned—found expression in the Constitution’s Due Process and Suspension Clauses. See Amdt. 5; Art. I, §9, cl. 2.    The gist of the Due Process Clause, as understood at the founding and since, was to force the Government to follow those common-law procedures traditionally deemed necessary before depriving a person of life, liberty, or property. When a citizen was deprived of liberty because of alleged criminal conduct, those procedures typically required committal by a magistrate followed by indictment and trial. See, e.g., 2 & 3 Phil. & M., c. 10 (1555); 3 J. Story, Commentaries on the Constitution of the United States §1783, p. 661 (1833) (hereinafter Story) (equating “due process of law” with “due presentment or indictment, and being brought in to answer thereto by due process of the common law”). The Due Process Clause “in effect affirms the right of trial according to the process and proceedings of the common law.” Ibid . See also T. Cooley, General Principles of Constitutional Law 224 (1880) (“When life and liberty are in question, there must in every instance be judicial proceedings; and that requirement implies an accusation, a hearing before an impartial tribunal, with proper jurisdiction, and a conviction and judgment before the punishment can be inflicted” (internal quotation marks omitted)).    To be sure, certain types of permissible non criminal detention—that is, those not dependent upon the contention that the citizen had committed a criminal act—did not require the protections of criminal procedure. However, these fell into a limited number of well-recognized exceptions—civil commitment of the mentally ill, for example, and temporary detention in quarantine of the infectious. See Opinion on the Writ of Habeas Corpus , 97 Eng. Rep. 29, 36–37 (H. L. 1758) (Wilmot, J.). It is unthinkable that the Executive could render otherwise criminal grounds for detention noncriminal merely by disclaiming an intent to prosecute, or by asserting that it was incapacitating dangerous offenders rather than punishing wrongdoing. Cf. Kansas v. Hendricks, 521 U. S. 346 , 358 (1997) (“A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment”).    These due process rights have historically been vindicated by the writ of habeas corpus. In England before the founding, the writ developed into a tool for challenging executive confinement. It was not always effective. For example, in Darnel’s Case , 3 How. St. Tr. 1 (K. B. 1627), King Charles I detained without charge several individuals for failing to assist England’s war against France and Spain. The prisoners sought writs of habeas corpus, arguing that without specific charges, “imprisonment shall not continue on for a time, but for ever; and the subjects of this kingdom may be restrained of their liberties perpetually.” Id. , at 8. The Attorney General replied that the Crown’s interest in protecting the realm justified imprisonment in “a matter of state … not ripe nor timely” for the ordinary process of accusation and trial. Id. , at 37. The court denied relief, producing widespread outrage, and Parliament responded with the Petition of Right, accepted by the King in 1628, which expressly prohibited imprisonment without formal charges, see 3 Car. 1, c. 1, §§5, 10.    The struggle between subject and Crown continued, and culminated in the Habeas Corpus Act of 1679, 31 Car. 2, c. 2, described by Blackstone as a “second magna charta , and stable bulwark of our liberties.” 1 Blackstone 133. The Act governed all persons “committed or detained … for any crime.” §3. In cases other than felony or treason plainly expressed in the warrant of commitment, the Act required release upon appropriate sureties (unless the commitment was for a nonbailable offense). Ibid. Where the commitment was for felony or high treason, the Act did not require immediate release, but instead required the Crown to commence criminal proceedings within a specified time. §7. If the prisoner was not “indicted some Time in the next Term,” the judge was “required … to set at Liberty the Prisoner upon Bail” unless the King was unable to produce his witnesses. Ibid. Able or no, if the prisoner was not brought to trial by the next succeeding term, the Act provided that “he shall be discharged from his Imprisonment.” Ibid. English courts sat four terms per year, see 3 Blackstone 275–277, so the practical effect of this provision was that imprisonment without indictment or trial for felony or high treason under §7 would not exceed approximately three to six months.    The writ of habeas corpus was preserved in the Constitution—the only common-law writ to be explicitly mentioned. See Art. I, §9, cl. 2. Hamilton lauded “the establishment of the writ of habeas corpus ” in his Federalist defense as a means to protect against “the practice of arbitrary imprisonments … in all ages, [one of] the favourite and most formidable instruments of tyranny.” The Federalist No. 84, supra, at 444. Indeed, availability of the writ under the new Constitution (along with the requirement of trial by jury in criminal cases, see Art. III, §2, cl. 3) was his basis for arguing that additional, explicit procedural protections were unnecessary. See The Federalist No. 83, at 433. II    The allegations here, of course, are no ordinary accusations of criminal activity. Yaser Esam Hamdi has been imprisoned because the Government believes he participated in the waging of war against the United States. The relevant question, then, is whether there is a different, special procedure for imprisonment of a citizen accused of wrongdoing by aiding the enemy in wartime . A    Justice O’Connor, writing for a plurality of this Court, asserts that captured enemy combatants (other than those suspected of war crimes) have traditionally been detained until the cessation of hostilities and then released. Ante , at 10–11. That is probably an accurate description of wartime practice with respect to enemy aliens . The tradition with respect to American citizens, however, has been quite different. Citizens aiding the enemy have been treated as traitors subject to the criminal process.    As early as 1350, England’s Statute of Treasons made it a crime to “levy War against our Lord the King in his Realm, or be adherent to the King’s Enemies in his Realm, giving to them Aid and Comfort, in the Realm, or elsewhere.” 25 Edw. 3, Stat. 5, c. 2. In his 1762 Discourse on High Treason, Sir Michael Foster explained:    “With regard to Natural-born Subjects there can be no Doubt. They owe Allegiance to the Crown at all Times and in all Places.    . . . . .    “The joining with Rebels in an Act of Rebellion, or with Enemies in Acts of Hostility, will make a Man a Traitor: in the one Case within the Clause of Levying War, in the other within that of Adhering to the King’s enemies. . . . . .    “States in Actual Hostility with Us, though no War be solemnly Declared, are Enemies within the meaning of the Act. And therefore in an Indictment on the Clause of Adhering to the King’s Enemies, it is sufficient to Aver that the Prince or State Adhered to is an Enemy , without shewing any War Proclaimed… . And if the Subject of a Foreign Prince in Amity with Us, invadeth the Kingdom without Commission from his Sovereign, He is an Enemy. And a Subject of England adhering to Him is a Traitor within this Clause of the Act.” A Report of Some Proceedings on the Commission … for the Trial of the Rebels in the Year 1746 in the County of Surry, and of Other Crown Cases, Introduction, §1, p. 183; Ch. 2, §8, p. 216; §12, p. 219. Subjects accused of levying war against the King were routinely prosecuted for treason. E.g. , Harding’s Case , 2 Ventris 315, 86 Eng. Rep. 461 (K. B. 1690); Trial of Parkyns , 13 How. St. Tr. 63 (K. B. 1696); Trial of Vaughan , 13 How. St. Tr. 485 (K. B. 1696); Trial of Downie , 24 How. St. Tr. 1 (1794). The Founders inherited the understanding that a citizen’s levying war against the Government was to be punished criminally. The Constitution provides: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort”; and establishes a heightened proof requirement (two witnesses) in order to “convic[t]” of that offense. Art. III, §3, cl. 1.    In more recent times, too, citizens have been charged and tried in Article III courts for acts of war against the United States, even when their noncitizen co-conspirators were not. For example, two American citizens alleged to have participated during World War I in a spying conspiracy on behalf of Germany were tried in federal court. See United States v. Fricke , 259 F. 673 (SDNY 1919); United States v. Robinson , 259 F. 685 (SDNY 1919). A German member of the same conspiracy was subjected to military process. See United States ex rel. Wessels v. McDonald , 265 F. 754 (EDNY 1920). During World War II, the famous German saboteurs of Ex parte Quirin, 317 U. S. 1 (1942), received military process, but the citizens who associated with them (with the exception of one citizen-saboteur, discussed below) were punished under the criminal process. See Haupt v. United States, 330 U. S. 631 (1947); L. Fisher, Nazi Saboteurs on Trial 80–84 (2003); see also Cramer v. United States, 325 U. S. 1 (1945). The modern treason statute is 18 U. S. C. §2381; it basically tracks the language of the constitutional provision. Other provisions of Title 18 criminalize various acts of warmaking and adherence to the enemy. See, e.g., §32 (destruction of aircraft or aircraft facilities), §2332a (use of weapons of mass destruction), §2332b (acts of terrorism transcending national boundaries), §2339A (providing material support to terrorists), §2339B (providing material support to certain terrorist organizations), §2382 (misprision of treason), §2383 (rebellion or insurrection), §2384 (seditious conspiracy), §2390 (enlistment to serve in armed hostility against the United States). See also 31 CFR §595.204 (2003) (prohibiting the “making or receiving of any contribution of funds, goods, or services” to terrorists); 50 U. S. C. §1705(b) (criminalizing violations of 31 CFR §595.204). The only citizen other than Hamdi known to be imprisoned in connection with military hostilities in Afghanistan against the United States was subjected to criminal process and convicted upon a guilty plea. See United States v. Lindh , 212 F. Supp. 2d 541 (ED Va. 2002) (denying motions for dismissal); Seelye, N. Y. Times, Oct. 5, 2002, p. A1, col. 5. B There are times when military exigency renders resort to the traditional criminal process impracticable. English law accommodated such exigencies by allowing legislative suspension of the writ of habeas corpus for brief periods. Blackstone explained: “And yet sometimes, when the state is in real danger, even this [ i.e. , executive detention] may be a necessary measure. But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient. For the parliament only, or legislative power, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing… . In like manner this experiment ought only to be tried in case of extreme emergency; and in these the nation parts with it[s] liberty for a while, in order to preserve it for ever.” 1 Blackstone 132. Where the Executive has not pursued the usual course of charge, committal, and conviction, it has historically secured the Legislature’s explicit approval of a suspension. In England, Parliament on numerous occasions passed temporary suspensions in times of threatened invasion or rebellion. E.g. , 1 W. & M., c. 7 (1688) (threatened return of James II); 7 & 8 Will. 3, c. 11 (1696) (same); 17 Geo. 2, c. 6 (1744) (threatened French invasion); 19 Geo. 2, c. 1 (1746) (threatened rebellion in Scotland); 17 Geo. 3, c. 9 (1777) (the American Revolution). Not long after Massachusetts had adopted a clause in its constitution explicitly providing for habeas corpus, see Mass. Const. pt. 2, ch. 6, art. VII (1780), reprinted in 3 Federal and State Constitutions, Colonial Charters and Other Organic Laws 1888, 1910 (F. Thorpe ed. 1909), it suspended the writ in order to deal with Shay’s Rebellion, see Act for Suspending the Privilege of the Writ of Habeas Corpus, ch. 10, 1786 Mass. Acts 510. Our Federal Constitution contains a provision explicitly permitting suspension, but limiting the situations in which it may be invoked: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Art. I, §9, cl. 2. Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause’s placement in Article I. See Ex parte Bollman, 4 Cranch 75, 101 (1807); Ex parte Merryman , 17 F. Cas. 144, 151–152 (CD Md. 1861) (Taney, C. J., rejecting Lincoln’s unauthorized suspension); 3 Story §1336, at 208–209. The Suspension Clause was by design a safety valve, the Constitution’s only “express provision for exercise of extraordinary authority because of a crisis,” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 650 (1952) (Jackson, J., concurring). Very early in the Nation’s history, President Jefferson unsuccessfully sought a suspension of habeas corpus to deal with Aaron Burr’s conspiracy to overthrow the Government. See 16 Annals of Congress 402–425 (1807). During the Civil War, Congress passed its first Act authorizing Executive suspension of the writ of habeas corpus, see Act of Mar. 3, 1863, 12 Stat. 755, to the relief of those many who thought President Lincoln’s unauthorized proclamations of suspension ( e.g. , Proclamation No. 1, 13 Stat. 730 (1862)) unconstitutional. Later Presidential proclamations of suspension relied upon the congressional authorization, e.g. , Proclamation No. 7, 13 Stat. 734 (1863). During Reconstruction, Congress passed the Ku Klux Klan Act, which included a provision authorizing suspension of the writ, invoked by President Grant in quelling a rebellion in nine South Carolina counties. See Act of Apr. 20, 1871, ch. 22, §4, 17 Stat. 14; A Proclamation [of Oct. 17, 1871], 7 Compilation of the Messages and Papers of the Presidents 136–138 (J. Richardson ed. 1899) (hereinafter Messages and Papers); id. , at 138–139. Two later Acts of Congress provided broad suspension authority to governors of U. S. possessions. The Philippine Civil Government Act of 1902 provided that the Governor of the Philippines could suspend the writ in case of rebellion, insurrection, or invasion. Act of July 1, 1902, ch. 1369, §5, 32 Stat. 691. In 1905 the writ was suspended for nine months by proclamation of the Governor. See Fisher v. Baker, 203 U. S. 174 , 179–181 (1906). The Hawaiian Organic Act of 1900 likewise provided that the Governor of Hawaii could suspend the writ in case of rebellion or invasion (or threat thereof). Ch. 339, §67, 31 Stat. 153. III Of course the extensive historical evidence of criminal convictions and habeas suspensions does not necessarily refute the Government’s position in this case. When the writ is suspended, the Government is entirely free from judicial oversight. It does not claim such total liberation here, but argues that it need only produce what it calls “some evidence” to satisfy a habeas court that a detained individual is an enemy combatant. See Brief for Respondents 34. Even if suspension of the writ on the one hand, and committal for criminal charges on the other hand, have been the only traditional means of dealing with citizens who levied war against their own country, it is theoretically possible that the Constitution does not require a choice between these alternatives. I believe, however, that substantial evidence does refute that possibility. First, the text of the 1679 Habeas Corpus Act makes clear that indefinite imprisonment on reasonable suspicion is not an available option of treatment for those accused of aiding the enemy, absent a suspension of the writ. In the United States, this Act was read as “enforc[ing] the common law,” Ex parte Watkins , 3 Pet. 193, 202 (1830), and shaped the early understanding of the scope of the writ. As noted above, see supra , at 5, §7 of the Act specifically addressed those committed for high treason, and provided a remedy if they were not indicted and tried by the second succeeding court term. That remedy was not a bobtailed judicial inquiry into whether there were reasonable grounds to believe the prisoner had taken up arms against the King. Rather, if the prisoner was not indicted and tried within the prescribed time, “he shall be discharged from his Imprisonment.” 31 Car. 2, c. 2, §7. The Act does not contain any exception for wartime. That omission is conspicuous, since §7 explicitly addresses the offense of “High Treason,” which often involved offenses of a military nature. See cases cited supra , at 7. Writings from the founding generation also suggest that, without exception, the only constitutional alternatives are to charge the crime or suspend the writ. In 1788, Thomas Jefferson wrote to James Madison questioning the need for a Suspension Clause in cases of rebellion in the proposed Constitution. His letter illustrates the constraints under which the Founders understood themselves to operate: “Why suspend the Hab. corp. in insurrections and rebellions? The parties who may be arrested may be charged instantly with a well defined crime. Of course the judge will remand them. If the publick safety requires that the government should have a man imprisoned on less probable testimony in those than in other emergencies; let him be taken and tried, retaken and retried, while the necessity continues, only giving him redress against the government for damages.” 13 Papers of Thomas Jefferson 442 (July 31, 1788) (J. Boyd ed. 1956). A similar view was reflected in the 1807 House debates over suspension during the armed uprising that came to be known as Burr’s conspiracy: “With regard to those persons who may be implicated in the conspiracy, if the writ of habeas corpus be not suspended, what will be the consequence? When apprehended, they will be brought before a court of justice, who will decide whether there is any evidence that will justify their commitment for farther prosecution. From the communication of the Executive, it appeared there was sufficient evidence to authorize their commitment. Several months would elapse before their final trial, which would give time to collect evidence, and if this shall be sufficient, they will not fail to receive the punishment merited by their crimes, and inflicted by the laws of their country.” 16 Annals of Congress, at 405 (remarks of Rep. Burwell). The absence of military authority to imprison citizens indefinitely in wartime—whether or not a probability of treason had been established by means less than jury trial—was confirmed by three cases decided during and immediately after the War of 1812. In the first, In re Stacy , 10 Johns. *328 (N. Y. 1813), a citizen was taken into military custody on suspicion that he was “carrying provisions and giving information to the enemy.” Id. , at *330 (emphasis deleted). Stacy petitioned for a writ of habeas corpus, and, after the defendant custodian attempted to avoid complying, Chief Justice Kent ordered attachment against him. Kent noted that the military was “without any color of authority in any military tribunal to try a citizen for that crime” and that it was “holding him in the closest confinement, and contemning the civil authority of the state.” Id. , at *333–*334. Two other cases, later cited with approval by this Court in Ex parte Milligan, 4 Wall. 2, 128–129 (1866), upheld verdicts for false imprisonment against military officers. In Smith v. Shaw , 12 Johns. *257 (N. Y. 1815), the court affirmed an award of damages for detention of a citizen on suspicion that he was, among other things, “an enemy’s spy in time of war.” Id. , at *265. The court held that “[n]one of the offences charged against Shaw were cognizable by a court-martial, except that which related to his being a spy; and if he was an American citizen, he could not be charged with such an offence. He might be amenable to the civil authority for treason; but could not be punished, under martial law, as a spy.” Ibid . “If the defendant was justifiable in doing what he did, every citizen of the United States would, in time of war, be equally exposed to a like exercise of military power and authority.” Id. , at *266. Finally, in M’Connell v. Hampton , 12 Johns. *234 (N. Y. 1815), a jury awarded $9,000 for false imprisonment after a military officer confined a citizen on charges of treason; the judges on appeal did not question the verdict but found the damages excessive, in part because “it does not appear that [the defendant] … knew [the plaintiff] was a citizen.” Id. , at *238 (Spencer, J.). See generally Wuerth, The President’s Power to Detain “Enemy Combatants”: Modern Lessons from Mr. Madison’s Forgotten War, 98 Nw. U. L. Rev. (forthcoming 2004) (available in Clerk of Court’s case file). President Lincoln, when he purported to suspend habeas corpus without congressional authorization during the Civil War, apparently did not doubt that suspension was required if the prisoner was to be held without criminal trial. In his famous message to Congress on July 4, 1861, he argued only that he could suspend the writ, not that even without suspension, his imprisonment of citizens without criminal trial was permitted. See Special Session Message, 6 Messages and Papers 20–31. Further evidence comes from this Court’s decision in Ex parte Milligan , supra . There, the Court issued the writ to an American citizen who had been tried by military commission for offenses that included conspiring to overthrow the Government, seize munitions, and liberate prisoners of war. Id. , at 6–7. The Court rejected in no uncertain terms the Government’s assertion that military jurisdiction was proper “under the ‘laws and usages of war,’ ” id. , at 121: “It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed.” Ibid .[ Footnote 1 ] Milligan is not exactly this case, of course, since the petitioner was threatened with death, not merely imprisonment. But the reasoning and conclusion of Milligan logically cover the present case. The Government justifies imprisonment of Hamdi on principles of the law of war and admits that, absent the war, it would have no such authority. But if the law of war cannot be applied to citizens where courts are open, then Hamdi’s imprisonment without criminal trial is no less unlawful than Milligan’s trial by military tribunal. Milligan responded to the argument, repeated by the Government in this case, that it is dangerous to leave suspected traitors at large in time of war: “If it was dangerous, in the distracted condition of affairs, to leave Milligan unrestrained of his liberty, because he ‘conspired against the government, afforded aid and comfort to rebels, and incited the people to insurrection,’ the law said arrest him, confine him closely, render him powerless to do further mischief; and then present his case to the grand jury of the district, with proofs of his guilt, and, if indicted, try him according to the course of the common law. If this had been done, the Constitution would have been vindicated, the law of 1863 enforced, and the securities for personal liberty preserved and defended.” Id ., at 122. Thus, criminal process was viewed as the primary means—and the only means absent congressional action suspending the writ—not only to punish traitors, but to incapacitate them. The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders’ general mistrust of military power permanently at the Executive’s disposal. In the Founders’ view, the “blessings of liberty” were threatened by “those military establishments which must gradually poison its very fountain.” The Federalist No. 45, p. 238 (J. Madison). No fewer than 10 issues of the Federalist were devoted in whole or part to allaying fears of oppression from the proposed Constitution’s authorization of standing armies in peacetime. Many safeguards in the Constitution reflect these concerns. Congress’s authority “[t]o raise and support Armies” was hedged with the proviso that “no Appropriation of Money to that Use shall be for a longer Term than two Years.” U. S. Const., Art. 1, §8, cl. 12. Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II. As Hamilton explained, the President’s military authority would be “much inferior” to that of the British King: “It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature.” The Federalist No. 69, p. 357. A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions. IV The Government argues that our more recent jurisprudence ratifies its indefinite imprisonment of a citizen within the territorial jurisdiction of federal courts. It places primary reliance upon Ex parte Quirin, 317 U. S. 1 (1942), a World War II case upholding the trial by military commission of eight German saboteurs, one of whom, Hans Haupt, was a U. S. citizen. The case was not this Court’s finest hour. The Court upheld the commission and denied relief in a brief per curiam issued the day after oral argument concluded, see id. , at 18–19, unnumbered note; a week later the Government carried out the commission’s death sentence upon six saboteurs, including Haupt. The Court eventually explained its reasoning in a written opinion issued several months later. Only three paragraphs of the Court’s lengthy opinion dealt with the particular circumstances of Haupt’s case. See id ., at 37–38, 45–46. The Government argued that Haupt, like the other petitioners, could be tried by military commission under the laws of war. In agreeing with that contention, Quirin purported to interpret the language of Milligan quoted above (the law of war “can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed”) in the following manner: “Elsewhere in its opinion … the Court was at pains to point out that Milligan, a citizen twenty years resident in Indiana, who had never been a resident of any of the states in rebellion, was not an enemy belligerent either entitled to the status of a prisoner of war or subject to the penalties imposed upon unlawful belligerents. We construe the Court’s statement as to the inapplicability of the law of war to Milligan’s case as having particular reference to the facts before it. From them the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war … .” 317 U. S., at 45. In my view this seeks to revise Milligan rather than describe it. Milligan had involved (among other issues) two separate questions: (1) whether the military trial of Milligan was justified by the laws of war, and if not (2) whether the President’s suspension of the writ, pursuant to congressional authorization, prevented the issuance of habeas corpus. The Court’s categorical language about the law of war’s inapplicability to citizens where the courts are open (with no exception mentioned for citizens who were prisoners of war) was contained in its discussion of the first point. See 4 Wall., at 121. The factors pertaining to whether Milligan could reasonably be considered a belligerent and prisoner of war, while mentioned earlier in the opinion, see id ., at 118, were made relevant and brought to bear in the Court’s later discussion, see id ., at 131, of whether Milligan came within the statutory provision that effectively made an exception to Congress’s authorized suspension of the writ for (as the Court described it) “all parties, not prisoners of war, resident in their respective jurisdictions, … who were citizens of states in which the administration of the laws in the Federal tribunals was unimpaired,” id ., at 116. Milligan thus understood was in accord with the traditional law of habeas corpus I have described: Though treason often occurred in wartime, there was, absent provision for special treatment in a congressional suspension of the writ, no exception to the right to trial by jury for citizens who could be called “belligerents” or “prisoners of war.”[ Footnote 2 ] But even if Quirin gave a correct description of Milligan , or made an irrevocable revision of it, Quirin would still not justify denial of the writ here. In Quirin it was uncontested that the petitioners were members of enemy forces. They were “ admitted enemy invaders,” 317 U. S., at 47 (emphasis added), and it was “undisputed” that they had landed in the United States in service of German forces, id. , at 20. The specific holding of the Court was only that, “upon the conceded facts,” the petitioners were “plainly within [the] boundaries” of military jurisdiction, id. , at 46 (emphasis added).[ Footnote 3 ] But where those jurisdictional facts are not conceded—where the petitioner insists that he is not a belligerent— Quirin left the pre-existing law in place: Absent suspension of the writ, a citizen held where the courts are open is entitled either to criminal trial or to a judicial decree requiring his release.[ Footnote 4 ] V It follows from what I have said that Hamdi is entitled to a habeas decree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus. A suspension of the writ could, of course, lay down conditions for continued detention, similar to those that today’s opinion prescribes under the Due Process Clause. Cf. Act of Mar. 3, 1863, 12 Stat. 755. But there is a world of difference between the people’s representatives’ determining the need for that suspension (and prescribing the conditions for it), and this Court’s doing so. The plurality finds justification for Hamdi’s imprisonment in the Authorization for Use of Military Force, 115 Stat. 224, which provides: “That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” §2(a). This is not remotely a congressional suspension of the writ, and no one claims that it is. Contrary to the plurality’s view, I do not think this statute even authorizes detention of a citizen with the clarity necessary to satisfy the interpretive canon that statutes should be construed so as to avoid grave constitutional concerns, see Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568 , 575 (1988); with the clarity necessary to comport with cases such as Ex parte Endo, 323 U. S. 283 , 300 (1944), and Duncan v. Kahanamoku, 327 U. S. 304 , 314–316, 324 (1946); or with the clarity necessary to overcome the statutory prescription that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” 18 U. S. C. §4001(a).[ Footnote 5 ] But even if it did, I would not permit it to overcome Hamdi’s entitlement to habeas corpus relief. The Suspension Clause of the Constitution, which carefully circumscribes the conditions under which the writ can be withheld, would be a sham if it could be evaded by congressional prescription of requirements other than the common-law requirement of committal for criminal prosecution that render the writ, though available, unavailing. If the Suspension Clause does not guarantee the citizen that he will either be tried or released, unless the conditions for suspending the writ exist and the grave action of suspending the writ has been taken; if it merely guarantees the citizen that he will not be detained unless Congress by ordinary legislation says he can be detained; it guarantees him very little indeed. It should not be thought, however, that the plurality’s evisceration of the Suspension Clause augments, principally, the power of Congress. As usual, the major effect of its constitutional improvisation is to increase the power of the Court. Having found a congressional authorization for detention of citizens where none clearly exists; and having discarded the categorical procedural protection of the Suspension Clause; the plurality then proceeds, under the guise of the Due Process Clause, to prescribe what procedural protections it thinks appropriate. It “weigh[s] the private interest … against the Government’s asserted interest,” ante , at 22 (internal quotation marks omitted), and—just as though writing a new Constitution—comes up with an unheard-of system in which the citizen rather than the Government bears the burden of proof, testimony is by hearsay rather than live witnesses, and the presiding officer may well be a “neutral” military officer rather than judge and jury. See ante , at 26–27. It claims authority to engage in this sort of “judicious balancing” from Mathews v. Eldridge, 424 U. S. 319 (1976), a case involving … the withdrawal of disability benefits! Whatever the merits of this technique when newly recognized property rights are at issue (and even there they are questionable), it has no place where the Constitution and the common law already supply an answer. Having distorted the Suspension Clause, the plurality finishes up by transmogrifying the Great Writ—disposing of the present habeas petition by remanding for the District Court to “engag[e] in a factfinding process that is both prudent and incremental,” ante , at 32. “In the absence of [the Executive’s prior provision of procedures that satisfy due process], … a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved.” Ante , at 31–32. This judicial remediation of executive default is unheard of. The role of habeas corpus is to determine the legality of executive detention, not to supply the omitted process necessary to make it legal. See Preiser v. Rodriguez, 411 U. S. 475 , 484 (1973) (“[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and … the traditional function of the writ is to secure release from illegal custody”); 1 Blackstone 132–133. It is not the habeas court’s function to make illegal detention legal by supplying a process that the Government could have provided, but chose not to. If Hamdi is being imprisoned in violation of the Constitution (because without due process of law), then his habeas petition should be granted; the Executive may then hand him over to the criminal authorities, whose detention for the purpose of prosecution will be lawful, or else must release him. There is a certain harmony of approach in the plurality’s making up for Congress’s failure to invoke the Suspension Clause and its making up for the Executive’s failure to apply what it says are needed procedures—an approach that reflects what might be called a Mr. Fix-it Mentality. The plurality seems to view it as its mission to Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are concerned, of the other two branches’ actions and omissions. Has the Legislature failed to suspend the writ in the current dire emergency? Well, we will remedy that failure by prescribing the reasonable conditions that a suspension should have included. And has the Executive failed to live up to those reasonable conditions? Well, we will ourselves make that failure good, so that this dangerous fellow (if he is dangerous) need not be set free. The problem with this approach is not only that it steps out of the courts’ modest and limited role in a democratic society; but that by repeatedly doing what it thinks the political branches ought to do it encourages their lassitude and saps the vitality of government by the people. VI Several limitations give my views in this matter a relatively narrow compass. They apply only to citizens, accused of being enemy combatants, who are detained within the territorial jurisdiction of a federal court. This is not likely to be a numerous group; currently we know of only two, Hamdi and Jose Padilla. Where the citizen is captured outside and held outside the United States, the constitutional requirements may be different. Cf. Johnson v. Eisentrager, 339 U. S. 763 , 769–771 (1950); Reid v. Covert , 354 U. S. 1 , 74–75 (1957) (Harlan, J., concurring in result); Rasul v. Bush , ante , at 15–17 (Scalia, J., dissenting). Moreover, even within the United States, the accused citizen-enemy combatant may lawfully be detained once prosecution is in progress or in contemplation. See, e.g. , County of Riverside v. McLaughlin, 500 U. S. 44 (1991) (brief detention pending judicial determination after warrantless arrest); United States v. Salerno, 481 U. S. 739 (1987) (pretrial detention under the Bail Reform Act). The Government has been notably successful in securing conviction, and hence long-term custody or execution, of those who have waged war against the state. I frankly do not know whether these tools are sufficient to meet the Government’s security needs, including the need to obtain intelligence through interrogation. It is far beyond my competence, or the Court’s competence, to determine that. But it is not beyond Congress’s. If the situation demands it, the Executive can ask Congress to authorize suspension of the writ—which can be made subject to whatever conditions Congress deems appropriate, including even the procedural novelties invented by the plurality today. To be sure, suspension is limited by the Constitution to cases of rebellion or invasion. But whether the attacks of September 11, 2001, constitute an “invasion,” and whether those attacks still justify suspension several years later, are questions for Congress rather than this Court. See 3 Story §1336, at 208–209.[ Footnote 6 ] If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this Court. * * * The Founders well understood the difficult tradeoff between safety and freedom. “Safety from external danger,” Hamilton declared, “is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free.” The Federalist No. 8, p. 33. The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it. Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis—that, at the extremes of military exigency, inter arma silent leges . Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent. Footnote 1 As I shall discuss presently, see infra , at 17–19, the Court purported to limit this language in Ex parte Quirin, 317 U. S. 1 , 45 (1942). Whatever Quirin ’s effect on Milligan ’s precedential value, however, it cannot undermine its value as an indicator of original meaning. Cf. Reid v. Covert, 354 U. S. 1 , 30 (1957) (plurality opinion) ( Milligan remains “one of the great landmarks in this Court’s history”). Footnote 2 Without bothering to respond to this analysis, the plurality states that Milligan “turned in large part” upon the defendant’s lack of prisoner-of-war status, and that the Milligan Court explicitly and repeatedly said so. See ante , at 14. Neither is true. To the extent, however, that prisoner-of-war status was relevant in Milligan , it was only because prisoners of war received different statutory treatment under the conditional suspension then in effect. Footnote 3 The only two Court of Appeals cases from World War II cited by the Government in which citizens were detained without trial likewise involved petitioners who were conceded to have been members of enemy forces. See In re Territo , 156 F. 2d 142, 143–145 (CA9 1946); Colepaugh v. Looney , 235 F. 2d 429, 432 (CA10 1956). The plurality complains that Territo is the only case I have identified in which “a United States citizen [was] captured in a foreign combat zone,” ante , at 16. Indeed it is; such cases must surely be rare. But given the constitutional tradition I have described, the burden is not upon me to find cases in which the writ was granted to citizens in this country who had been captured on foreign battlefields; it is upon those who would carve out an exception for such citizens (as the plurality’s complaint suggests it would) to find a single case (other than one where enemy status was admitted) in which habeas was denied . Footnote 4 The plurality’s assertion that Quirin somehow “clarifies” Milligan , ante , at 15, is simply false. As I discuss supra , at 17–19, the Quirin Court propounded a mistaken understanding of Milligan; but nonetheless its holding was limited to “the case presented by the present record,” and to “ the conceded facts ,” and thus avoided conflict with the earlier case. See 317 U. S., at 45–46 (emphasis added). The plurality, ignoring this expressed limitation, thinks it “beside the point” whether belligerency is conceded or found “by some other process” (not necessarily a jury trial) “that verifies this fact with sufficient certainty.” Ante , at 16. But the whole point of the procedural guarantees in the Bill of Rights is to limit the methods by which the Government can determine facts that the citizen disputes and on which the citizen’s liberty depends. The plurality’s claim that Quirin ’s one-paragraph discussion of Milligan provides a “[c]lear . . . disavowal” of two false imprisonment cases from the War of 1812, ante , at 15, thus defies logic; unlike the plaintiffs in those cases, Haupt was concededly a member of an enemy force. The Government also cites Moyer v. Peabody, 212 U. S. 78 (1909), a suit for damages against the Governor of Colorado, for violation of due process in detaining the alleged ringleader of a rebellion quelled by the state militia after the Governor’s declaration of a state of insurrection and (he contended) suspension of the writ “as incident thereto.” Ex parte Moyer , 35 Colo. 154, 157, 91 P. 738, 740 (1905). But the holding of Moyer v. Peabody (even assuming it is transferable from state-militia detention after state suspension to federal standing-army detention without suspension) is simply that “[s]o long as such arrests [were] made in good faith and in the honest belief that they [were] needed in order to head the insurrection off,” 212 U. S., at 85, an action in damages could not lie. This “good-faith” analysis is a forebear of our modern doctrine of qualified immunity. Cf. Scheuer v. Rhodes, 416 U. S. 232 , 247–248 (1974) (understanding Moyer in this way). Moreover, the detention at issue in Moyer lasted about two and a half months, see 212 U. S., at 85, roughly the length of time permissible under the 1679 Habeas Corpus Act, see supra , at 4–5. In addition to Moyer v. Peabody , Justice Thomas relies upon Luther v. Borden, 7 How. 1 (1849), a case in which the state legislature had imposed martial law—a step even more drastic than suspension of the writ. See post , at 13–14 (dissenting opinion). But martial law has not been imposed here, and in any case is limited to “the theatre of active military operations, where war really prevails,” and where therefore the courts are closed. Ex parte Milligan , 4 Wall. 2, 127 (1866); see also id. , at 129–130 (distinguishing Luther ). Footnote 5 The plurality rejects any need for “specific language of detention” on the ground that detention of alleged combatants is a “fundamental incident of waging war.” Ante , at 12. Its authorities do not support that holding in the context of the present case. Some are irrelevant because they do not address the detention of American citizens . E.g. , Naqvi, Doubtful Prisoner-of-War Status, 84 Int’l Rev. Red Cross 571, 572 (2002). The plurality’s assertion that detentions of citizen and alien combatants are equally authorized has no basis in law or common sense. Citizens and noncitizens, even if equally dangerous, are not similarly situated. See, e.g., Milligan, supra; Johnson v. Eisentrager, 339 U. S. 763 (1950); Rev. Stat. 4067, 50 U. S. C. §21 (Alien Enemy Act). That captivity may be consistent with the principles of international law does not prove that it also complies with the restrictions that the Constitution places on the American Government’s treatment of its own citizens. Of the authorities cited by the plurality that do deal with detention of citizens, Quirin and Territo have already been discussed and rejected. See supra , at 19–20, and n. 3. The remaining authorities pertain to U. S. detention of citizens during the Civil War, and are irrelevant for two reasons: (1) the Lieber Code was issued following a congressional authorization of suspension of the writ, see Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 (1863), reprinted in 2 Lieber, Miscellaneous Writings, p. 246; Act of Mar. 3, 1863, 12 Stat. 755, §§1, 2; and (2) citizens of the Confederacy, while citizens of the United States, were also regarded as citizens of a hostile power. Footnote 6 Justice Thomas worries that the constitutional conditions for suspension of the writ will not exist “during many … emergencies during which … detention authority might be necessary,” post , at 16. It is difficult to imagine situations in which security is so seriously threatened as to justify indefinite imprisonment without trial, and yet the constitutional conditions of rebellion or invasion are not met. THOMAS, J., DISSENTING HAMDI V. RUMSFELD 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-6696 YASER ESAM HAMDI and ESAM FOUAD HAMDI, as next friend of YASER ESAM HAMDI, PETITION- ERS v. DONALD H. RUMSFELD, SECRETARY OF DEFENSE, et al. on writ of certiorari to the united states court of appeals for the fourth circuit [June 28, 2004]    Justice Thomas, dissenting.    The Executive Branch, acting pursuant to the powers vested in the President by the Constitution and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and should be detained. This detention falls squarely within the Federal Government’s war powers, and we lack the expertise and capacity to second-guess that decision. As such, petitioners’ habeas challenge should fail, and there is no reason to remand the case. The plurality reaches a contrary conclusion by failing adequately to consider basic principles of the constitutional structure as it relates to national security and foreign affairs and by using the balancing scheme of Mathews v. Eldridge, 424 U. S. 319 (1976). I do not think that the Federal Government’s war powers can be balanced away by this Court. Arguably, Congress could provide for additional procedural protections, but until it does, we have no right to insist upon them. But even if I were to agree with the general approach the plurality takes, I could not accept the particulars. The plurality utterly fails to account for the Government’s compelling interests and for our own institutional inability to weigh competing concerns correctly. I respectfully dissent. I    “It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.” Haig v. Agee, 453 U. S. 280 , 307 (1981) (quoting Aptheker v. Secretary of State, 378 U. S. 500 , 509 (1964)). The national security, after all, is the primary responsibility and purpose of the Federal Government. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 662 (1952) (Clark, J., concurring in judgment); The Federalist No. 23, pp. 146–147 (J. Cooke ed. 1961) (A. Hamilton) (“The principle purposes to be answered by Union are these—The common defence of the members—the preservation of the public peace as well against internal convulsions as external attacks”). But because the Founders understood that they could not foresee the myriad potential threats to national security that might later arise, they chose to create a Federal Government that necessarily possesses sufficient power to handle any threat to the security of the Nation. The power to protect the Nation “ought to exist without limitation … [b]ecause it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.” Id., at 147. See also The Federalist Nos. 34 and 41.    The Founders intended that the President have primary responsibility—along with the necessary power—to protect the national security and to conduct the Nation’s foreign relations. They did so principally because the structural advantages of a unitary Executive are essential in these domains. “Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks.” The Federalist No. 70, p. 471 (A. Hamilton). The principle “ingredien[t]” for “energy in the executive” is “unity.” Id., at 472. This is because “[d]ecision, activity, secrecy, and dispatch will generally characterise the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number.” Ibid. These structural advantages are most important in the national-security and foreign-affairs contexts. “Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.” The Federalist No. 74, p. 500 (A. Hamilton). Also for these reasons, John Marshall explained that “[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” 10 Annals of Cong. 613 (1800); see id., at 613–614. To this end, the Constitution vests in the President “[t]he executive Power,” Art. II, §1, provides that he “shall be Commander in Chief of the” armed forces, §2, and places in him the power to recognize foreign governments, §3.    This Court has long recognized these features and has accordingly held that the President has constitutional authority to protect the national security and that this authority carries with it broad discretion. “If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority… . Whether the President in fulfilling his duties, as Commander in-chief, in suppressing an insurrection, has met with such armed hostile resistance … is a question to be decided by him .” Prize Cases, 2 Black 635, 668, 670 (1863). The Court has acknowledged that the President has the authority to “employ [the Nation’s Armed Forces] in the manner he may deem most effectual to harass and conquer and subdue the enemy.” Fleming v. Page, 9 How. 603, 615 (1850). With respect to foreign affairs as well, the Court has recognized the President’s independent authority and need to be free from interference. See, e.g., United States v. Curtiss-Wright Export Corp., 299 U. S. 304 , 320 (1936) (explaining that the President “has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results”); Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103 , 111 (1948).    Congress, to be sure, has a substantial and essential role in both foreign affairs and national security. But it is crucial to recognize that judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive. I cannot improve on Justice Jackson’s words, speaking for the Court: “The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.” Ibid. Several points, made forcefully by Justice Jackson, are worth emphasizing. First, with respect to certain decisions relating to national security and foreign affairs, the courts simply lack the relevant information and expertise to second-guess determinations made by the President based on information properly withheld. Second, even if the courts could compel the Executive to produce the necessary information, such decisions are simply not amenable to judicial determination because “[t]hey are delicate, complex, and involve large elements of prophecy.” Ibid. Third, the Court in Chicago & Southern Air Lines and elsewhere has correctly recognized the primacy of the political branches in the foreign-affairs and national-security contexts.    For these institutional reasons and because “Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take or every possible situation in which he might act,” it should come as no surprise that “[s]uch failure of Congress … does not, ‘especially … in the areas of foreign policy and national security,’ imply ‘congressional disapproval’ of action taken by the Executive.” Dames & Moore v. Regan, 453 U. S. 654 , 678 (1981) (quoting Agee, 453 U. S., at 291). Rather, in these domains, the fact that Congress has provided the President with broad authorities does not imply—and the Judicial Branch should not infer—that Congress intended to deprive him of particular powers not specifically enumerated. See Dames & Moore , 453 U. S., at 678. As far as the courts are concerned, “the enactment of legislation closely related to the question of the President’s authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to ‘invite’ ‘measures on independent presidential responsibility.’ ” Ibid. (quoting Youngstown, 343 U. S., at 637 (Jackson, J., concurring)).    Finally, and again for the same reasons, where “the President acts pursuant to an express or implied authorization from Congress, he exercises not only his powers but also those delegated by Congress[, and i]n such a case the executive action ‘would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.’ ” Dames & Moore , supra , at 668 (quoting Youngstown , supra , at 637 (Jackson, J., concurring)). That is why the Court has explained, in a case analogous to this one, that “the detention[,] ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger[, is] not to be set aside by the courts without the clear conviction that [it is] in conflict with the Constitution or laws of Congress constitutionally enacted.” Ex parte Quirin, 317 U. S. 1 , 25 (1942). See also Ex parte Milligan, 4 Wall. 2, 133 (1866) (Chase, C. J., concurring in judgment) (stating that a sentence imposed by a military commission “must not be set aside except upon the clearest conviction that it cannot be reconciled with the Constitution and the constitutional legislation of Congress”). This deference extends to the President’s determination of all the factual predicates necessary to conclude that a given action is appropriate. See Quirin , supra , at 25 (“We are not here concerned with any question of the guilt or innocence of petitioners”). See also Hirabayashi v. United States, 320 U. S. 81 , 93 (1943); Prize Cases, 2 Black, at 670; Martin v. Mott, 12 Wheat. 19, 29–30 (1827).    To be sure, the Court has at times held, in specific circumstances, that the military acted beyond its warmaking authority. But these cases are distinguishable in important ways. In Ex parte Endo, 323 U. S. 283 (1944), the Court held unlawful the detention of an admittedly law-abiding and loyal American of Japanese ancestry. It did so because the Government’s asserted reason for the detention had nothing to do with the congressional and executive authorities upon which the Government relied. Those authorities permitted detention for the purpose of preventing espionage and sabotage and thus could not be pressed into service for detaining a loyal citizen. See id., at 301–302. Further, the Court “stress[ed] the silence … of the [relevant] Act and the Executive Orders .” Id. , at 301 (emphasis added); see also id., at 301–304. The Court sensibly held that the Government could not detain a loyal citizen pursuant to executive and congressional authorities that could not conceivably be implicated given the Government’s factual allegations. And in Youngstown , Justice Jackson emphasized that “Congress ha[d] not left seizure of private property an open field but ha[d] covered it by three statutory policies inconsistent with th[e] seizure.” 343 U. S., at 639 (concurring opinion). See also Milligan , supra, at 134 (Chase, C. J., concurring in judgment) (noting that the Government failed to comply with statute directly on point).    I acknowledge that the question whether Hamdi’s executive detention is lawful is a question properly resolved by the Judicial Branch, though the question comes to the Court with the strongest presumptions in favor of the Government. The plurality agrees that Hamdi’s detention is lawful if he is an enemy combatant. But the question whether Hamdi is actually an enemy combatant is “of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.” Chicago & Southern Air Lines , 333 U. S., at 111. That is, although it is appropriate for the Court to determine the judicial question whether the President has the asserted authority, see, e.g., Ex parte Endo , supra , we lack the information and expertise to question whether Hamdi is actually an enemy combatant, a question the resolution of which is committed to other branches.[ Footnote 1 ] In the words of then-Judge Scalia: “In Old Testament days, when judges ruled the people of Israel and led them into battle, a court professing the belief that it could order a halt to a military operation in foreign lands might not have been a startling phenomenon. But in modern times, and in a country where such governmental functions have been committed to elected delegates of the people, such an assertion of jurisdiction is extraordinary. The [C]ourt’s decision today reflects a willingness to extend judicial power into areas where we do not know, and have no way of finding out, what serious harm we may be doing.” Ramirez de Arellano v. Weinberger, 745 F. 2d 1500, 1550–1551 (CADC 1984) (en banc) (dissenting opinion) (footnote omitted). See also id., at 1551, n. 1 (noting that “[e]ven the ancient Israelites eventually realized the shortcomings of judicial commanders-in-chief”). The decision whether someone is an enemy combatant is, no doubt, “delicate, complex, and involv[es] large elements of prophecy,” Chicago & Southern Air Lines , supra , at 111, which, incidentally might in part explain why “the Government has never provided any court with the full criteria that it uses in classifying individuals as such,” ante , at 8. See also infra , at 18–20 (discussing other military decisions). II    “The war power of the national government is ‘the power to wage war successfully.’ ” Lichter v. United States, 334 U. S. 742 , 767, n. 9 (1948) (quoting Hughes, War Powers Under the Constitution, 42 A. B. A. Rep. 232, 238). It follows that this power “is not limited to victories in the field, but carries with it the inherent power to guard against the immediate renewal of the conflict,” In re Yamashita, 327 U. S. 1 , 12 (1946); see also Stewart v. Kahn, 11 Wall. 493, 507 (1871), and quite obviously includes the ability to detain those (even United States citizens) who fight against our troops or those of our allies, see, e.g., Quirin , 317 U. S., at 28–29, 30–31; id., at 37–39; Duncan v. Kahanamoku, 327 U. S. 304 , 313–314 (1946); W. Winthrop, Military Law and Precedents 788 (2d ed. 1920); W. Whiting, War Powers Under the Constitution of the United States 167 (43d ed. 1871); id., at 44–46 (noting that Civil War “rebels” may be treated as foreign belligerents); see also ante , at 10–12.    Although the President very well may have inherent authority to detain those arrayed against our troops, I agree with the plurality that we need not decide that question because Congress has authorized the President to do so. See ante , at 9. The Authorization for Use of Military Force (AUMF), 115 Stat. 224, authorizes the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” of September 11, 2001. Indeed, the Court has previously concluded that language materially identical to the AUMF authorizes the Executive to “make the ordinary use of the soldiers … ; that he may kill persons who resist and, of course, that he may use the milder measure of seizing [and detaining] the bodies of those whom he considers to stand in the way of restoring peace.” Moyer v. Peabody, 212 U. S. 78 , 84 (1909).    The plurality, however, qualifies its recognition of the President’s authority to detain enemy combatants in the war on terrorism in ways that are at odds with our precedent. Thus, the plurality relies primarily on Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3406, T. I. A. S. No. 3364, for the proposition that “[i]t is a clearly established principle of the law of war that detention may last no longer than active hostilities.” Ante , at 12–13. It then appears to limit the President’s authority to detain by requiring that the record establis[h] that United States troops are still involved in active combat in Afghanistan because, in that case, detention would be “part of the exercise of ‘necessary and appropriate force.’ ” Ante , at 14. But I do not believe that we may diminish the Federal Government’s war powers by reference to a treaty and certainly not to a treaty that does not apply. See n. 6, infra . Further, we are bound by the political branches’ determination that the United States is at war. See, e.g., Ludecke v. Watkins, 335 U. S. 160 , 167–170 (1948); Prize Cases, 2 Black, at 670; Mott , 12 Wheat., at 30. And, in any case, the power to detain does not end with the cessation of formal hostilities. See, e.g., Madsen v. Kinsella, 343 U. S. 341 , 360 (1952); Johnson v. Eisentrager, 339 U. S. 763 , 786 (1950); cf. Moyer , supra, at 85.    Accordingly, the President’s action here is “supported by the strongest of presumptions and the widest latitude of judicial interpretation.” Dames & Moore , 453 U. S., at 668 (internal quotation marks omitted).[ Footnote 2 ] The question becomes whether the Federal Government (rather than the President acting alone) has power to detain Hamdi as an enemy combatant. More precisely, we must determine whether the Government may detain Hamdi given the procedures that were used. III    I agree with the plurality that the Federal Government has power to detain those that the Executive Branch determines to be enemy combatants. See ante , at 10. But I do not think that the plurality has adequately explained the breadth of the President’s authority to detain enemy combatants, an authority that includes making virtually conclusive factual findings. In my view, the structural considerations discussed above, as recognized in our precedent, demonstrate that we lack the capacity and responsibility to second-guess this determination.    This makes complete sense once the process that is due Hamdi is made clear. As an initial matter, it is possible that the Due Process Clause requires only “that our Government must proceed according to the ‘law of the land’—that is, according to written constitutional and statutory provisions.” In re Winship, 397 U. S. 358 , 382 (1970) (Black, J., dissenting). I need not go this far today because the Court has already explained the nature of due process in this context.    In a case strikingly similar to this one, the Court addressed a Governor’s authority to detain for an extended period a person the executive believed to be responsible, in part, for a local insurrection. Justice Holmes wrote for a unanimous Court: “When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process. This was admitted with regard to killing men in the actual clash of arms, and we think it obvious, although it was disputed, that the same is true of temporary detention to prevent apprehended harm.” Moyer , 212 U. S., at 85 (citation omitted; emphasis added). The Court answered Moyer’s claim that he had been denied due process by emphasizing that “it is familiar that what is due process of law depends on circumstances. It varies with the subject-matter and the necessities of the situation. Thus summary proceedings suffice for taxes, and executive decisions for exclusion from the country… . Such arrests are not necessarily for punishment, but are by way of precaution to prevent the exercise of hostile power.” Id., at 84–85 (citations omitted). In this context, due process requires nothing more than a good-faith executive determination.[ Footnote 3 ] To be clear: The Court has held that an executive, acting pursuant to statutory and constitutional authority may, consistent with the Due Process Clause, unilaterally decide to detain an individual if the executive deems this necessary for the public safety even if he is mistaken . Moyer is not an exceptional case. In Luther v. Borden, 7 How. 1 (1849), the Court discussed the President’s constitutional and statutory authority, in response to a request from a state legislature or executive, “ ‘to call forth such number of the militia of any other State or States, as may be applied for, as he may judge sufficient to suppress [an] insurrection.’ ” Id ., at 43 (quoting Act of Feb. 28, 1795). The Court explained that courts could not review the President’s decision to recognize one of the competing legislatures or executives. See 7 How., at 43 . If a court could second-guess this determination, “it would become the duty of the court (provided it came to the conclusion that the President had decided incorrectly) to discharge those who were arrested or detained by the troops in the service of the United States.” Ibid. “If the judicial power extends so far,” the Court concluded, “the guarantee contained in the Constitution of the United States [referring to Art. IV, §4] is a guarantee of anarchy, and not of order.” Ibid. The Court clearly contemplated that the President had authority to detain as he deemed necessary, and such detentions evidently comported with the Due Process Clause as long as the President correctly decided to call forth the militia, a question the Court said it could not review.    The Court also addressed the natural concern that placing “this power in the President is dangerous to liberty, and may be abused.” Id., at 44. The Court noted that “[a]ll power may be abused if placed in unworthy hands,” and explained that “it would be difficult … to point out any other hands in which this power would be more safe, and at the same time equally effectual.” Ibid. Putting that aside, the Court emphasized that this power “is conferred upon him by the Constitution and laws of the United States, and must therefore be respected and enforced in its judicial tribunals.” Ibid. Finally, the Court explained that if the President abused this power “it would be in the power of Congress to apply the proper remedy. But the courts must administer the law as they find it.” Id., at 45.    Almost 140 years later, in United States v. Salerno, 481 U. S. 739 , 748 (1987), the Court explained that the Due Process Clause “lays down [no] categorical imperative.” The Court continued: “We have repeatedly held that the Government’s regulatory interest in community safety can, in appropriate circumstances, outweigh an individual’s liberty interest. For example, in times of war or insurrection, when society’s interest is at its peak, the Government may detain individuals whom the Government believes to be dangerous.” Ibid. The Court cited Ludecke v. Watkins, 335 U. S. 160 (1948), for this latter proposition even though Ludecke actually involved detention of enemy aliens. See also Selective Draft Law Cases, 245 U. S. 366 (1918); Jacobson v. Massachusetts, 197 U. S. 11 , 27–29 (1905) (upholding legislated mass vaccinations and approving of forced quarantines of Americans even if they show no signs of illness); cf. Kansas v. Hendricks, 521 U. S. 346 (1997); Juragua Iron Co. v. United States, 212 U. S. 297 (1909).    The Government’s asserted authority to detain an individual that the President has determined to be an enemy combatant, at least while hostilities continue, comports with the Due Process Clause. As these cases also show, the Executive’s decision that a detention is necessary to protect the public need not and should not be subjected to judicial second-guessing. Indeed, at least in the context of enemy-combatant determinations, this would defeat the unity, secrecy, and dispatch that the Founders believed to be so important to the warmaking function. See Part I, supra .    I therefore cannot agree with Justice Scalia’s conclusion that the Government must choose between using standard criminal processes and suspending the writ. See ante , at 26 (dissenting opinion). Justice Scalia relies heavily upon Ex parte Milligan, 4 Wall. 2 (1866), see ante, at 14–16, 17–20, and three cases decided by New York state courts in the wake of the War of 1812, see ante, at 13–14. I admit that Milligan supports his position. But because the Executive Branch there, unlike here, did not follow a specific statutory mechanism provided by Congress, the Court did not need to reach the broader question of Congress’ power, and its discussion on this point was arguably dicta, see 4 Wall., at 122, as four Justices believed, see id., at 132, 134–136 (Chase, C. J., joined by Wayne, Swayne, and Miller, JJ., concurring in judgment).    More importantly, the Court referred frequently and pervasively to the criminal nature of the proceedings instituted against Milligan. In fact, this feature serves to distinguish the state cases as well. See In re Stacy , 10 Johns. *328, *334 (N. Y. 1813) (“A military commander is here assuming criminal jurisdiction over a private citizen” (emphasis added)); Smith v. Shaw , 12 Johns. *257, *265 (N. Y. 1815) (Shaw “might be amenable to the civil authority for treason; but could not be punished , under martial law, as a spy” (emphasis added)); M’Connell v. Hampton , 12 Johns. *234 (N. Y. 1815) (same for treason).    Although I do acknowledge that the reasoning of these cases might apply beyond criminal punishment, the punishment-nonpunishment distinction harmonizes all of the precedent. And, subsequent cases have at least implicitly distinguished Milligan in just this way. See, e.g., Moyer , 212 U. S., at 84–85 (“Such arrests are not necessarily for punishment, but are by way of precaution”). Finally, Quirin overruled Milligan to the extent that those cases are inconsistent. See Quirin , 317 U. S., at 45 (limiting Milligan to its facts). Because the Government does not detain Hamdi in order to punish him, as the plurality acknowledges, see ante , at 10–11, Milligan and the New York cases do not control.    Justice Scalia also finds support in a letter Thomas Jefferson wrote to James Madison. See ante, at 12. I agree that this provides some evidence for his position. But I think this plainly insufficient to rebut the authorities upon which I have relied. In any event, I do not believe that Justice Scalia’s evidence leads to the necessary “clear conviction that [the detention is] in conflict with the Constitution or laws of Congress constitutionally enacted,” Quirin, supra, at 25, to justify nullifying the President’s wartime action.    Finally, Justice Scalia’s position raises an additional concern. Justice Scalia apparently does not disagree that the Federal Government has all power necessary to protect the Nation. If criminal processes do not suffice, however, Justice Scalia would require Congress to suspend the writ. See ante, at 26. But the fact that the writ may not be suspended “unless when in Cases of Rebellion or Invasion the public Safety may require it,” Art. I, §9, cl. 2, poses two related problems. First, this condition might not obtain here or during many other emergencies during which this detention authority might be necessary. Congress would then have to choose between acting unconstitutionally[ Footnote 4 ] and depriving the President of the tools he needs to protect the Nation. Second, I do not see how suspension would make constitutional otherwise unconstitutional detentions ordered by the President. It simply removes a remedy. Justice Scalia’s position might therefore require one or both of the political branches to act unconstitutionally in order to protect the Nation. But the power to protect the Nation must be the power to do so lawfully.    Accordingly, I conclude that the Government’s detention of Hamdi as an enemy combatant does not violate the Constitution. By detaining Hamdi, the President, in the prosecution of a war and authorized by Congress, has acted well within his authority. Hamdi thereby received all the process to which he was due under the circumstances. I therefore believe that this is no occasion to balance the competing interests, as the plurality unconvincingly attempts to do. IV    Although I do not agree with the plurality that the balancing approach of Mathews v. Eldridge, 424 U. S. 319 (1976), is the appropriate analytical tool with which to analyze this case,[ Footnote 5 ] I cannot help but explain that the plurality misapplies its chosen framework, one that if applied correctly would probably lead to the result I have reached. The plurality devotes two paragraphs to its discussion of the Government’s interest, though much of those two paragraphs explain why the Government’s concerns are misplaced. See ante , at 24–25. But: “It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.” Agee , 453 U. S., at 307 (quoting Aptheker, 378 U. S., at 509). In Moyer , the Court recognized the paramount importance of the Governor’s interest in the tranquility of a Colorado town. At issue here is the far more significant interest of the security of the Nation. The Government seeks to further that interest by detaining an enemy soldier not only to prevent him from rejoining the ongoing fight. Rather, as the Government explains, detention can serve to gather critical intelligence regarding the intentions and capabilities of our adversaries, a function that the Government avers has become all the more important in the war on terrorism. See Brief for Respondents 15; App. 347–351.    Additional process, the Government explains, will destroy the intelligence gathering function. Brief for Respondents 43–45. It also does seem quite likely that, under the process envisioned by the plurality, various military officials will have to take time to litigate this matter. And though the plurality does not say so, a meaningful ability to challenge the Government’s factual allegations will probably require the Government to divulge highly classified information to the purported enemy combatant, who might then upon release return to the fight armed with our most closely held secrets.    The plurality manages to avoid these problems by discounting or entirely ignoring them. After spending a few sentences putatively describing the Government’s interests, the plurality simply assures the Government that the alleged burdens “are properly taken into account in our due process analysis.” Ante , at 25. The plurality also announces that “the risk of erroneous deprivation of a detainee’s liberty interest is unacceptably high under the Government’s proposed rule.” Ante, at 26 (internal quotation marks omitted). But there is no particular reason to believe that the federal courts have the relevant information and expertise to make this judgment. And for the reasons discussed in Part I, supra, there is every reason to think that courts cannot and should not make these decisions.    The plurality next opines that “[w]e think it unlikely that this basic process will have the dire impact on the central functions of warmaking that the Government forecasts.” Ante, at 27. Apparently by limiting hearings “to the alleged combatant’s acts,” such hearings “meddl[e] little, if at all, in the strategy or conduct of war.” Ante, at 28. Of course, the meaning of the combatant’s acts may become clear only after quite invasive and extensive inquiry. And again, the federal courts are simply not situated to make these judgments.    Ultimately, the plurality’s dismissive treatment of the Government’s asserted interests arises from its apparent belief that enemy-combatant determinations are not part of “the actual prosecution of a war,” ibid. , or one of the “central functions of warmaking,” ante, at 27. This seems wrong: Taking and holding enemy combatants is a quintessential aspect of the prosecution of war. See, e.g., ante , at 10–11; Quirin , 317 U. S. , at 28. Moreover, this highlights serious difficulties in applying the plurality’s balancing approach here. First, in the war context, we know neither the strength of the Government’s interests nor the costs of imposing additional process.    Second, it is at least difficult to explain why the result should be different for other military operations that the plurality would ostensibly recognize as “central functions of warmaking.” As the plurality recounts: “Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. It is equally fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner.” Ante , at 26 (internal quotation marks omitted). See also ibid. (“notice” of the Government’s factual assertions and “a fair opportunity to rebut [those] assertions before a neutral decisionmaker” are essential elements of due process). Because a decision to bomb a particular target might extinguish life interests, the plurality’s analysis seems to require notice to potential targets. To take one more example, in November 2002, a Central Intelligence Agency (CIA) Predator drone fired a Hellfire missile at a vehicle in Yemen carrying an al Qaeda leader, a citizen of the United States, and four others. See Priest, CIA Killed U. S. Citizen In Yemen Missile Strike, Washington Post, Nov. 8, 2002, p. A1. It is not clear whether the CIA knew that an American was in the vehicle. But the plurality’s due process would seem to require notice and opportunity to respond here as well. Cf. Tennessee v. Garner, 471 U. S. 1 (1985). I offer these examples not because I think the plurality would demand additional process in these situations but because it clearly would not. The result here should be the same.    I realize that many military operations are, in some sense, necessary. But many, if not most, are merely expedient, and I see no principled distinction between the military operation the plurality condemns today (the holding of an enemy combatant based on the process given Hamdi) from a variety of other military operations. In truth, I doubt that there is any sensible, bright-line distinction. It could be argued that bombings and missile strikes are an inherent part of war, and as long as our forces do not violate the laws of war, it is of no constitutional moment that civilians might be killed. But this does not serve to distinguish this case because it is also consistent with the laws of war to detain enemy combatants exactly as the Government has detained Hamdi.[ Footnote 6 ] This, in fact, bolsters my argument in Part III to the extent that the laws of war show that the power to detain is part of a sovereign’s war powers.    Undeniably, Hamdi has been deprived of a serious interest, one actually protected by the Due Process Clause. Against this, however, is the Government’s overriding interest in protecting the Nation. If a deprivation of liberty can be justified by the need to protect a town, the protection of the Nation, a fortiori , justifies it.    I acknowledge that under the plurality’s approach, it might, at times, be appropriate to give detainees access to counsel and notice of the factual basis for the Government’s determination. See ante , at 25–27. But properly accounting for the Government’s interests also requires concluding that access to counsel and to the factual basis would not always be warranted. Though common sense suffices, the Government thoroughly explains that counsel would often destroy the intelligence gathering function. See Brief for Respondents 42–43. See also App. 347–351 (affidavit of Col. D. Woolfolk). Equally obvious is the Government’s interest in not fighting the war in its own courts, see, e.g., Johnson v. Eisentrager, 339 U. S., at 779, and protecting classified information, see, e.g., Department of Navy v. Egan, 484 U. S. 518 , 527 (1988) (President’s “authority to classify and control access to information bearing on national security and to determine” who gets access “flows primarily from [the Commander-in-Chief Clause] and exists quite apart from any explicit congressional grant”); Agee, 453 U. S., at 307 (upholding revocation of former CIA employee’s passport in large part by reference to the Government’s need “to protect the secrecy of [its] foreign intelligence operations”).[ Footnote 7 ] * * *    For these reasons, I would affirm the judgment of the Court of Appeals. Footnote 1 Although I have emphasized national-security concerns, the President’s foreign-affairs responsibilities are also squarely implicated by this case. The Government avers that Northern Alliance forces captured Hamdi, and the District Court demanded that the Government turn over information relating to statements made by members of the Northern Alliance. See 316 F. 3d 450, 462 (CA4 2003). Footnote 2 It could be argued that the habeas statutes are evidence of congressional intent that enemy combatants are entitled to challenge the factual basis for the Government’s determination. See, e.g., 28 U. S. C. §§2243, 2246. But factual development is needed only to the extent necessary to resolve the legal challenge to the detention. See, e.g., Walker v. Johnston, 312 U. S. 275 , 284 (1941). Footnote 3 Indeed, it is not even clear that the Court required good faith. See Moyer, 212 U. S., at 85 (“It is not alleged that [the Governor’s] judgment was not honest, if that be material, or that [Moyer] was detained after fears of the insurrection were at an end”). Footnote 4 I agree with Justice Scalia that this Court could not review Congress’ decision to suspend the writ. See ante, at 26. Footnote 5 Evidently, neither do the parties, who do not cite Mathews even once. Footnote 6 Hamdi’s detention comports with the laws of war, including the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3406, T. I. A. S. No. 3364. See Brief for Respondents 22–24. Footnote 7 These observations cast still more doubt on the appropriateness and usefulness of Mathews v. Eldridge, 424 U. S. 319 (1976), in this context. It is, for example, difficult to see how the plurality can insist that Hamdi unquestionably has the right to access to counsel in connection with the proceedings on remand, when new information could become available to the Government showing that such access would pose a grave risk to national security. In that event, would the Government need to hold a hearing before depriving Hamdi of his newly acquired right to counsel even if that hearing would itself pose a grave threat? OPINION OF SOUTER, J. HAMDI V. RUMSFELD 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-6696 YASER ESAM HAMDI and ESAM FOUAD HAMDI, as next friend of YASER ESAM HAMDI, PETITION- ERS v. DONALD H. RUMSFELD, SECRETARY OF DEFENSE, et al. on writ of certiorari to the united states court of appeals for the fourth circuit [June 28, 2004]    Justice Souter, with whom Justice Ginsburg joins, concurring in part, dissenting in part, and concurring in the judgment.    According to Yaser Hamdi’s petition for writ of habeas corpus, brought on his behalf by his father, the Government of the United States is detaining him, an American citizen on American soil, with the explanation that he was seized on the field of battle in Afghanistan, having been on the enemy side. It is undisputed that the Government has not charged him with espionage, treason, or any other crime under domestic law. It is likewise undisputed that for one year and nine months, on the basis of an Executive designation of Hamdi as an “enemy combatant,” the Government denied him the right to send or receive any communication beyond the prison where he was held and, in particular, denied him access to counsel to represent him.[ Footnote 1 ] The Government asserts a right to hold Hamdi under these conditions indefinitely, that is, until the Government determines that the United States is no longer threatened by the terrorism exemplified in the attacks of September 11, 2001.    In these proceedings on Hamdi’s petition, he seeks to challenge the facts claimed by the Government as the basis for holding him as an enemy combatant. And in this Court he presses the distinct argument that the Government’s claim, even if true, would not implicate any authority for holding him that would satisfy 18 U. S. C. §4001(a) (Non-Detention Act), which bars imprisonment or detention of a citizen “except pursuant to an Act of Congress.”    The Government responds that Hamdi’s incommunicado imprisonment as an enemy combatant seized on the field of battle falls within the President’s power as Commander in Chief under the laws and usages of war, and is in any event authorized by two statutes. Accordingly, the Government contends that Hamdi has no basis for any challenge by petition for habeas except to his own status as an enemy combatant; and even that challenge may go no further than to enquire whether “some evidence” supports Hamdi’s designation, see Brief for Respondents 34–36; if there is “some evidence,” Hamdi should remain locked up at the discretion of the Executive. At the argument of this case, in fact, the Government went further and suggested that as long as a prisoner could challenge his enemy combatant designation when responding to interrogation during incommunicado detention he was accorded sufficient process to support his designation as an enemy combatant. See Tr. of Oral Arg. 40; id ., at 42 (“[H]e has an opportunity to explain it in his own words” “[d]uring interrogation”). Since on either view judicial enquiry so limited would be virtually worthless as a way to contest detention, the Government’s concession of jurisdiction to hear Hamdi’s habeas claim is more theoretical than practical, leaving the assertion of Executive authority close to unconditional.    The plurality rejects any such limit on the exercise of habeas jurisdiction and so far I agree with its opinion. The plurality does, however, accept the Government’s position that if Hamdi’s designation as an enemy combatant is correct, his detention (at least as to some period) is authorized by an Act of Congress as required by §4001(a), that is, by the Authorization for Use of Military Force, 115 Stat. 224 (hereinafter Force Resolution). Ante , at 9–14. Here, I disagree and respectfully dissent. The Government has failed to demonstrate that the Force Resolution authorizes the detention complained of here even on the facts the Government claims. If the Government raises nothing further than the record now shows, the Non-Detention Act entitles Hamdi to be released. I    The Government’s first response to Hamdi’s claim that holding him violates §4001(a), prohibiting detention of citizens “except pursuant to an Act of Congress,” is that the statute does not even apply to military wartime detentions, being beyond the sphere of domestic criminal law. Next, the Government says that even if that statute does apply, two Acts of Congress provide the authority §4001(a) demands: a general authorization to the Department of Defense to pay for detaining “prisoners of war” and “similar” persons, 10 U. S. C. §956(5), and the Force Resolution, passed after the attacks of 2001. At the same time, the Government argues that in detaining Hamdi in the manner described, the President is in any event acting as Commander in Chief under Article II of the Constitution, which brings with it the right to invoke authority under the accepted customary rules for waging war. On the record in front of us, the Government has not made out a case on any theory. II    The threshold issue is how broadly or narrowly to read the Non-Detention Act, the tone of which is severe: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Should the severity of the Act be relieved when the Government’s stated factual justification for incommunicado detention is a war on terrorism, so that the Government may be said to act “pursuant” to congressional terms that fall short of explicit authority to imprison individuals? With one possible though important qualification, see infra , at 10–11, the answer has to be no. For a number of reasons, the prohibition within §4001(a) has to be read broadly to accord the statute a long reach and to impose a burden of justification on the Government.    First, the circumstances in which the Act was adopted point the way to this interpretation. The provision superseded a cold-war statute, the Emergency Detention Act of 1950 (formerly 50 U. S. C. §811 et seq. (1970 ed.)), which had authorized the Attorney General, in time of emergency, to detain anyone reasonably thought likely to engage in espionage or sabotage. That statute was repealed in 1971 out of fear that it could authorize a repetition of the World War II internment of citizens of Japanese ancestry; Congress meant to preclude another episode like the one described in Korematsu v. United States , 323 U. S. 214 (1944). See H. R. Rep. No. 92–116, pp. 2, 4–5 (1971). While Congress might simply have struck the 1950 statute, in considering the repealer the point was made that the existing statute provided some express procedural protection, without which the Executive would seem to be subject to no statutory limits protecting individual liberty. See id. , at 5 (mere repeal “might leave citizens subject to arbitrary executive action, with no clear demarcation of the limits of executive authority”); 117 Cong. Rec. 31544 (1971) (Emergency Detention Act “remains as the only existing barrier against the future exercise of executive power which resulted in” the Japanese internment); cf. id. , at 31548 (in the absence of further procedural provisions, even §4001(a) “will virtually leave us stripped naked against the great power … which the President has”). It was in these circumstances that a proposed limit on Executive action was expanded to the inclusive scope of §4001(a) as enacted.    The fact that Congress intended to guard against a repetition of the World War II internments when it repealed the 1950 statute and gave us §4001(a) provides a powerful reason to think that §4001(a) was meant to require clear congressional authorization before any citizen can be placed in a cell. It is not merely that the legislative history shows that §4001(a) was thought necessary in anticipation of times just like the present, in which the safety of the country is threatened. To appreciate what is most significant, one must only recall that the internments of the 1940’s were accomplished by Executive action. Although an Act of Congress ratified and confirmed an Executive order authorizing the military to exclude individuals from defined areas and to accommodate those it might remove, see Ex parte Endo , 323 U. S. 283 , 285–288 (1944), the statute said nothing whatever about the detention of those who might be removed, id. , at 300–301; internment camps were creatures of the Executive, and confinement in them rested on assertion of Executive authority, see id. , at 287–293. When, therefore, Congress repealed the 1950 Act and adopted §4001(a) for the purpose of avoiding another Korematsu , it intended to preclude reliance on vague congressional authority (for example, providing “accommodations” for those subject to removal) as authority for detention or imprisonment at the discretion of the Executive (maintaining detention camps of American citizens, for example). In requiring that any Executive detention be “pursuant to an Act of Congress,” then, Congress necessarily meant to require a congressional enactment that clearly authorized detention or imprisonment.    Second, when Congress passed §4001(a) it was acting in light of an interpretive regime that subjected enactments limiting liberty in wartime to the requirement of a clear statement and it presumably intended §4001(a) to be read accordingly. This need for clarity was unmistakably expressed in Ex parte Endo , supra , decided the same day as Korematsu . Endo began with a petition for habeas corpus by an interned citizen claiming to be loyal and law-abiding and thus “unlawfully detained.” 323 U. S., at 294. The petitioner was held entitled to habeas relief in an opinion that set out this principle for scrutinizing wartime statutes in derogation of customary liberty: “In interpreting a wartime measure we must assume that [its] purpose was to allow for the greatest possible accommodation between … liberties and the exigencies of war. We must assume, when asked to find implied powers in a grant of legislative or executive authority, that the law makers intended to place no greater restraint on the citizen than was clearly and unmistakably indicated by the language they used.” Id ., at 300. Congress’s understanding of the need for clear authority before citizens are kept detained is itself therefore clear, and §4001(a) must be read to have teeth in its demand for congressional authorization.    Finally, even if history had spared us the cautionary example of the internments in World War II, even if there had been no Korematsu , and Endo had set out no principle of statutory interpretation, there would be a compelling reason to read §4001(a) to demand manifest authority to detain before detention is authorized. The defining character of American constitutional government is its constant tension between security and liberty, serving both by partial helpings of each. In a government of separated powers, deciding finally on what is a reasonable degree of guaranteed liberty whether in peace or war (or some condition in between) is not well entrusted to the Executive Branch of Government, whose particular responsibility is to maintain security. For reasons of inescapable human nature, the branch of the Government asked to counter a serious threat is not the branch on which to rest the Nation’s entire reliance in striking the balance between the will to win and the cost in liberty on the way to victory; the responsibility for security will naturally amplify the claim that security legitimately raises. A reasonable balance is more likely to be reached on the judgment of a different branch, just as Madison said in remarking that “the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other—that the private interest of every individual may be a sentinel over the public rights.” The Federalist No. 51, p. 349 (J. Cooke ed. 1961). Hence the need for an assessment by Congress before citizens are subject to lockup, and likewise the need for a clearly expressed congressional resolution of the competing claims. III    Under this principle of reading §4001(a) robustly to require a clear statement of authorization to detain, none of the Government’s arguments suffices to justify Hamdi’s detention. A    First, there is the argument that §4001(a) does not even apply to wartime military detentions, a position resting on the placement of §4001(a) in Title 18 of the United States Code, the gathering of federal criminal law. The text of the statute does not, however, so limit its reach, and the legislative history of the provision shows its placement in Title 18 was not meant to render the statute more restricted than its terms. The draft of what is now §4001(a) as contained in the original bill prohibited only imprisonment unauthorized by Title 18. See H. R. Rep. No. 92– 116, at 4. In response to the Department of Justice’s objection that the original draft seemed to assume wrongly that all provisions for the detention of convicted persons would be contained in Title 18, the provision was amended by replacing a reference to that title with the reference to an “Act of Congress.” Id., at 3. The Committee on the Judiciary, discussing this change, stated that “[limiting] detention of citizens … to situations in which … an Act of Congres[s] exists” would “assure that no detention camps can be established without at least the acquiescence of the Congress.” Id. , at 5. See also supra , at 4–6. This understanding, that the amended bill would sweep beyond imprisonment for crime and apply to Executive detention in furtherance of wartime security, was emphasized in an extended debate. Representative Ichord, chairman of the House Internal Security Committee and an opponent of the bill, feared that the redrafted statute would “deprive the President of his emergency powers and his most effective means of coping with sabotage and espionage agents in war-related crises.” 117 Cong. Rec., at 31542. Representative Railsback, the bill’s sponsor, spoke of the bill in absolute terms: “[I]n order to prohibit arbitrary executive action, [the bill] assures that no detention of citizens can be undertaken by the Executive without the prior consent of Congress.” Id. , at 31551. This legislative history indicates that Congress was aware that §4001(a) would limit the Executive’s power to detain citizens in wartime to protect national security, and it is fair to say that the prohibition was thus intended to extend not only to the exercise of power to vindicate the interests underlying domestic criminal law, but to statutorily unauthorized detention by the Executive for reasons of security in wartime, just as Hamdi claims.[ Footnote 2 ] B    Next, there is the Government’s claim, accepted by the Court, that the terms of the Force Resolution are adequate to authorize detention of an enemy combatant under the circumstances described,[ Footnote 3 ] a claim the Government fails to support sufficiently to satisfy §4001(a) as read to require a clear statement of authority to detain. Since the Force Resolution was adopted one week after the attacks of September 11, 2001, it naturally speaks with some generality, but its focus is clear, and that is on the use of military power. It is fairly read to authorize the use of armies and weapons, whether against other armies or individual terrorists. But, like the statute discussed in Endo , it never so much as uses the word detention, and there is no reason to think Congress might have perceived any need to augment Executive power to deal with dangerous citizens within the United States, given the well-stocked statutory arsenal of defined criminal offenses covering the gamut of actions that a citizen sympathetic to terrorists might commit. See, e.g ., 18 U. S. C. §2339A (material support for various terrorist acts); §2339B (material support to a foreign terrorist organization); §2332a (use of a weapon of mass destruction, including conspiracy and attempt); §2332b(a)(1) (acts of terrorism “transcending national boundaries,” including threats, conspiracy, and attempt); 18 U. S. C. A. §2339C (Supp. 2004) (financing of certain terrorist acts); see also 18 U. S. C. §3142(e) (pretrial detention). See generally Brief for Janet Reno et al. as Amici Curiae in Rumsfeld v. Padilla , O. T. 2003, No. 03–1027, pp. 14–19, and n. 17 (listing the tools available to the Executive to fight terrorism even without the power the Government claims here); Brief for Louis Henkin et al. as Amici Curiae in Rumsfeld v. Padilla , O. T. 2003, No. 03–1027, p. 23, n. 27.[ Footnote 4 ] C    Even so, there is one argument for treating the Force Resolution as sufficiently clear to authorize detention of a citizen consistently with §4001(a). Assuming the argument to be sound, however, the Government is in no position to claim its advantage.    Because the Force Resolution authorizes the use of military force in acts of war by the United States, the argument goes, it is reasonably clear that the military and its Commander in Chief are authorized to deal with enemy belligerents according to the treaties and customs known collectively as the laws of war. Brief for Respondents 20– 22; see ante , at 9–14 (accepting this argument). Accordingly, the United States may detain captured enemies, and Ex parte Quirin, 317 U. S. 1 (1942), may perhaps be claimed for the proposition that the American citizenship of such a captive does not as such limit the Government’s power to deal with him under the usages of war. Id., at 31, 37–38. Thus, the Government here repeatedly argues that Hamdi’s detention amounts to nothing more than customary detention of a captive taken on the field of battle: if the usages of war are fairly authorized by the Force Resolution, Hamdi’s detention is authorized for purposes of §4001(a).    There is no need, however, to address the merits of such an argument in all possible circumstances. For now it is enough to recognize that the Government’s stated legal position in its campaign against the Taliban (among whom Hamdi was allegedly captured) is apparently at odds with its claim here to be acting in accordance with custo- mary law of war and hence to be within the terms of the Force Resolution in its detention of Hamdi. In a statement of its legal position cited in its brief, the Government says that “the Geneva Convention applies to the Taliban detainees.” Office of the White House Press Secretary, Fact Sheet, Status of Detainees at Guantanamo (Feb. 7, 2002), www.whitehouse.gov/news/releases/2002/ 02/20020207–13.html (as visited June 18, 2004, and available in Clerk of Court’s case file) (hereinafter White House Press Release) (cited in Brief for Respondents 24, n. 9). Hamdi presumably is such a detainee, since according to the Government’s own account, he was taken bearing arms on the Taliban side of a field of battle in Afghanistan. He would therefore seem to qualify for treatment as a prisoner of war under the Third Geneva Convention, to which the United States is a party. Article 4 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3320, T. I. A. S. No. 3364.    By holding him incommunicado, however, the Government obviously has not been treating him as a prisoner of war, and in fact the Government claims that no Taliban detainee is entitled to prisoner of war status. See Brief for Respondents 24; White House Press Release. This treatment appears to be a violation of the Geneva Convention provision that even in cases of doubt, captives are entitled to be treated as prisoners of war “until such time as their status has been determined by a competent tribunal.” Art. 5, 6 U. S. T., at 3324. The Government answers that the President’s determination that Taliban detainees do not qualify as prisoners of war is conclusive as to Hamdi’s status and removes any doubt that would trigger application of the Convention’s tribunal requirement. See Brief for Respondents 24. But reliance on this categorical pronouncement to settle doubt is apparently at odds with the military regulation, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Reg. 190–8, §§1–5, 1–6 (1997), adopted to implement the Geneva Convention, and setting out a detailed procedure for a military tribunal to determine an individual’s status. See, e.g. , id ., §1–6 (“A competent tribunal shall be composed of three commissioned officers”; a “written record shall be made of proceedings”; “[p]roceedings shall be open” with certain exceptions; “[p]ersons whose status is to be determined shall be advised of their rights at the beginning of their hearings,” “allowed to attend all open sessions,” “allowed to call witnesses if reasonably available, and to question those witnesses called by the Tribunal,” and to “have a right to testify”; and a tribunal shall determine status by a “[p]reponderance of evidence”). One of the types of doubt these tribunals are meant to settle is whether a given individual may be, as Hamdi says he is, an “[i]nnocent civilian who should be immediately returned to his home or released.” Id. , 1–6 e (10)( c ). The regulation, jointly promulgated by the Headquarters of the Departments of the Army, Navy, Air Force, and Marine Corps, provides that “[p]ersons who have been determined by a competent tribunal not to be entitled to prisoner of war status may not be executed, imprisoned, or otherwise penalized without further proceedings to determine what acts they have committed and what penalty should be imposed.” Id. , §1–6 g . The regulation also incorporates the Geneva Convention’s presumption that in cases of doubt, “persons shall enjoy the protection of the … Convention until such time as their status has been determined by a competent tribunal.” Id ., §1–6 a . Thus, there is reason to question whether the United States is acting in accordance with the laws of war it claims as authority. Whether, or to what degree, the Government is in fact violating the Geneva Convention and is thus acting outside the customary usages of war are not matters I can resolve at this point. What I can say, though, is that the Government has not made out its claim that in detaining Hamdi in the manner described, it is acting in accord with the laws of war authorized to be applied against citizens by the Force Resolution. I conclude accordingly that the Government has failed to support the position that the Force Resolution authorizes the described detention of Hamdi for purposes of §4001(a). It is worth adding a further reason for requiring the Government to bear the burden of clearly justifying its claim to be exercising recognized war powers before declaring §4001(a) satisfied. Thirty-eight days after adopting the Force Resolution, Congress passed the statute entitled Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT ACT), 115 Stat. 272; that Act authorized the detention of alien terrorists for no more than seven days in the absence of criminal charges or deportation proceedings, 8 U. S. C. §1226a(a)(5) (2000 ed., Supp. I). It is very difficult to believe that the same Congress that carefully circumscribed Executive power over alien terrorists on home soil would not have meant to require the Government to justify clearly its detention of an American citizen held on home soil incommunicado. D Since the Government has given no reason either to deflect the application of §4001(a) or to hold it to be satisfied, I need to go no further; the Government hints of a constitutional challenge to the statute, but it presents none here. I will, however, stray across the line between statutory and constitutional territory just far enough to note the weakness of the Government’s mixed claim of inherent, extrastatutory authority under a combination of Article II of the Constitution and the usages of war. It is in fact in this connection that the Government developed its argument that the exercise of war powers justifies the detention, and what I have just said about its inadequacy applies here as well. Beyond that, it is instructive to recall Justice Jackson’s observation that the President is not Commander in Chief of the country, only of the military. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 643–644 (1952) (concurring opinion); see also id ., at 637–638 (Presidential authority is “at its lowest ebb” where the President acts contrary to congressional will). There may be room for one qualification to Justice Jackson’s statement, however: in a moment of genuine emergency, when the Government must act with no time for deliberation, the Executive may be able to detain a citizen if there is reason to fear he is an imminent threat to the safety of the Nation and its people (though I doubt there is any want of statutory authority, see supra , at 9–10). This case, however, does not present that question, because an emergency power of necessity must at least be limited by the emergency; Hamdi has been locked up for over two years. Cf. Ex parte Milligan, 4 Wall. 2, 127 (1866) (martial law justified only by “actual and present” necessity as in a genuine invasion that closes civilian courts). Whether insisting on the careful scrutiny of emergency claims or on a vigorous reading of §4001(a), we are heirs to a tradition given voice 800 years ago by Magna Carta, which, on the barons’ insistence, confined executive power by “the law of the land.” IV Because I find Hamdi’s detention forbidden by §4001(a) and unauthorized by the Force Resolution, I would not reach any questions of what process he may be due in litigating disputed issues in a proceeding under the habeas statute or prior to the habeas enquiry itself. For me, it suffices that the Government has failed to justify holding him in the absence of a further Act of Congress, criminal charges, a showing that the detention conforms to the laws of war, or a demonstration that §4001(a) is unconstitutional. I would therefore vacate the judgment of the Court of Appeals and remand for proceedings consistent with this view. Since this disposition does not command a majority of the Court, however, the need to give practical effect to the conclusions of eight members of the Court rejecting the Government’s position calls for me to join with the plurality in ordering remand on terms closest to those I would impose. See Screws v. United States , 325 U. S. 91 , 134 (1945) (Rutledge, J., concurring in result). Although I think litigation of Hamdi’s status as an enemy combatant is unnecessary, the terms of the plurality’s remand will allow Hamdi to offer evidence that he is not an enemy combatant, and he should at the least have the benefit of that opportunity. It should go without saying that in joining with the plurality to produce a judgment, I do not adopt the plurality’s resolution of constitutional issues that I would not reach. It is not that I could disagree with the plurality’s determinations (given the plurality’s view of the Force Resolution) that someone in Hamdi’s position is entitled at a minimum to notice of the Government’s claimed factual basis for holding him, and to a fair chance to rebut it before a neutral decision maker, see ante , at 26; nor, of course, could I disagree with the plurality’s affirmation of Hamdi’s right to counsel, see ante , at 32–33. On the other hand, I do not mean to imply agreement that the Government could claim an evidentiary presumption casting the burden of rebuttal on Hamdi, see ante , at 27, or that an opportunity to litigate before a military tribunal might obviate or truncate enquiry by a court on habeas, see ante , at 31–32. Subject to these qualifications, I join with the plurality in a judgment of the Court vacating the Fourth Circuit’s judgment and remanding the case. Footnote 1 The Government has since February 2004 permitted Hamdi to consult with counsel as a matter of policy, but does not concede that it has an obligation to allow this. Brief for Respondents 9, 39–46. Footnote 2 Nor is it possible to distinguish between civilian and military authority to detain based on the congressional object of avoiding another Korematsu v. United States, 323 U. S. 214 (1944). See Brief for Respondents 21 (arguing that military detentions are exempt). Although a civilian agency authorized by Executive order ran the detention camps, the relocation and detention of American citizens was ordered by the military under authority of the President as Commander in Chief. See Ex parte Endo , 323 U. S. 283 , 285–288 (1944). The World War II internment was thus ordered under the same Presidential power invoked here and the intent to bar a repetition goes to the action taken and authority claimed here. Footnote 3 As noted, supra , at 3, the Government argues that a required Act of Congress is to be found in a statutory authorization to spend money appropriated for the care of prisoners of war and of other, similar prisoners, 10 U. S. C. §956(5). It is enough to say that this statute is an authorization to spend money if there are prisoners, not an authorization to imprison anyone to provide the occasion for spending money. Footnote 4 Even a brief examination of the reported cases in which the Government has chosen to proceed criminally against those who aided the Taliban shows the Government has found no shortage of offenses to allege. See United States v. Lindh , 212 F. Supp. 2d 541, 547 (ED Va. 2002); United States v. Khan , 309 F. Supp. 2d 789, 796 (ED Va. 2004).

In the case of Hamdi v. Rumsfeld in 2004, the Supreme Court considered the detention of a US citizen, Yaser Esam Hamdi, who was captured in Afghanistan and labeled an "enemy combatant" by the US government. The Court held that while Congress authorized combatant detention in specific circumstances, due process requires that Hamdi, as a citizen detained on US soil, be given a chance to challenge his classification before a neutral decision-maker. The Court vacated the Fourth Circuit's decision and remanded the case, ensuring Hamdi's right to counsel and a fair opportunity to rebut the government's claims.

Immigration & National Security

Boumediene v. Bush

https://supreme.justia.com/cases/federal/us/553/723/

OPINION OF THE COURT BOUMEDIENE V. BUSH 553 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NOS. 06-1195 AND 06-1196 LAKHDAR BOUMEDIENE, et al., PETITIONERS 06–1195 v. GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, et al. KHALED A. F. AL ODAH, next friend of FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al., PETITIONERS 06–1196 v. UNITED STATES et al. on writs of certiorari to the united states court of appeals for the district of columbia circuit [June 12, 2008] Justice Kennedy delivered the opinion of the Court.    Petitioners are aliens designated as enemy combatants and detained at the United States Naval Station at Guantanamo Bay, Cuba. There are others detained there, also aliens, who are not parties to this suit.    Petitioners present a question not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I, §9, cl. 2. We hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court. I    Under the Authorization for Use of Military Force (AUMF), §2(a), 115 Stat. 224, note following 50 U. S. C. §1541 (2000 ed., Supp. V), the President is authorized “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”    In Hamdi v. Rumsfeld , 542 U. S. 507 (2004), five Members of the Court recognized that detention of individuals who fought against the United States in Afghanistan “for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.” Id. , at 518 (plurality opinion of O’Connor, J.), id ., at 588–589 (Thomas, J., dissenting). After Hamdi , the Deputy Secretary of Defense established Combatant Status Review Tribunals (CSRTs) to determine whether individuals detained at Guantanamo were “enemy combatants,” as the Department defines that term. See App. to Pet. for Cert. in No. 06–1195, p. 81a. A later memorandum established procedures to implement the CSRTs. See App. to Pet. for Cert. in No. 06–1196, p. 147. The Government maintains these procedures were designed to comply with the due process requirements identified by the plurality in Hamdi . See Brief for Respondents 10.    Interpreting the AUMF, the Department of Defense ordered the detention of these petitioners, and they were transferred to Guantanamo. Some of these individuals were apprehended on the battlefield in Afghanistan, others in places as far away from there as Bosnia and Gambia. All are foreign nationals, but none is a citizen of a nation now at war with the United States. Each denies he is a member of the al Qaeda terrorist network that carried out the September 11 attacks or of the Taliban regime that provided sanctuary for al Qaeda. Each petitioner appeared before a separate CSRT; was determined to be an enemy combatant; and has sought a writ of habeas corpus in the United States District Court for the District of Columbia.    The first actions commenced in February 2002. The District Court ordered the cases dismissed for lack of jurisdiction because the naval station is outside the sovereign territory of the United States. See Rasul v. Bush , 215 F. Supp. 2d 55 (2002). The Court of Appeals for the District of Columbia Circuit affirmed. See Al Odah v. United States , 321 F. 3d 1134, 1145 (2003). We granted certiorari and reversed, holding that 28 U. S. C. §2241 extended statutory habeas corpus jurisdiction to Guantanamo. See Rasul v. Bush , 542 U. S. 466 , 473 (2004). The constitutional issue presented in the instant cases was not reached in Rasul . Id. , at 476.    After Rasul , petitioners’ cases were consolidated and entertained in two separate proceedings. In the first set of cases, Judge Richard J. Leon granted the Government’s motion to dismiss, holding that the detainees had no rights that could be vindicated in a habeas corpus action. In the second set of cases Judge Joyce Hens Green reached the opposite conclusion, holding the detainees had rights under the Due Process Clause of the Fifth Amendment. See Khalid v. Bush , 355 F. Supp. 2d 311, 314 (DC 2005); In re Guantanamo Detainee Cases , 355 F. Supp. 2d 443, 464 (DC 2005).    While appeals were pending from the District Court decisions, Congress passed the DTA. Subsection (e) of §1005 of the DTA amended 28 U. S. C. §2241 to provide that “no court, justice, or judge shall have jurisdiction to hear or consider … an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.” 119 Stat. 2742. Section 1005 further provides that the Court of Appeals for the District of Columbia Circuit shall have “exclusive” jurisdiction to review decisions of the CSRTs. Ibid. In Hamdan v. Rumsfeld , 548 U. S. 557 , 576–577 (2006), the Court held this provision did not apply to cases (like petitioners’) pending when the DTA was enacted. Congress responded by passing the MCA, 10 U. S. C. A. §948a et seq. (Supp. 2007), which again amended §2241. The text of the statutory amendment is discussed below. See Part II, infra . (Four Members of the Hamdan majority noted that “[n]othing prevent[ed] the President from returning to Congress to seek the authority he believes necessary.” 548 U. S., at 636 (Breyer, J., concurring). The authority to which the concurring opinion referred was the authority to “create military commissions of the kind at issue” in the case. Ibid . Nothing in that opinion can be construed as an invitation for Congress to suspend the writ.)    Petitioners’ cases were consolidated on appeal, and the parties filed supplemental briefs in light of our decision in Hamdan . The Court of Appeals’ ruling, 476 F. 3d 981 (CADC 2007), is the subject of our present review and today’s decision.    The Court of Appeals concluded that MCA §7 must be read to strip from it, and all federal courts, jurisdiction to consider petitioners’ habeas corpus applications, id ., at 987; that petitioners are not entitled to the privilege of the writ or the protections of the Suspension Clause, id. , at 990–991; and, as a result, that it was unnecessary to consider whether Congress provided an adequate and effective substitute for habeas corpus in the DTA.    We granted certiorari. 551 U. S. ___ (2007). II    As a threshold matter, we must decide whether MCA §7 denies the federal courts jurisdiction to hear habeas corpus actions pending at the time of its enactment. We hold the statute does deny that jurisdiction, so that, if the statute is valid, petitioners’ cases must be dismissed.    As amended by the terms of the MCA, 28 U. S. C. A. §2241(e) (Supp. 2007) now provides:    “(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.    “(2) Except as provided in [§§1005(e)(2) and (e)(3) of the DTA] no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”    Section 7(b) of the MCA provides the effective date for the amendment of §2241(e). It states: “The amendment made by [MCA §7(a)] shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.” 120 Stat. 2636.    There is little doubt that the effective date provision applies to habeas corpus actions. Those actions, by definition, are cases “which relate to … detention.” See Black’s Law Dictionary 728 (8th ed. 2004) (defining habeas corpus as “[a] writ employed to bring a person before a court, most frequently to ensure that the party’s imprisonment or detention is not illegal”). Petitioners argue, nevertheless, that MCA §7(b) is not a sufficiently clear statement of congressional intent to strip the federal courts of jurisdiction in pending cases. See Ex parte Yerger , 8 Wall. 85, 102–103 (1869). We disagree.    Their argument is as follows: Section 2241(e)(1) refers to “a writ of habeas corpus.” The next paragraph, §2241(e)(2), refers to “any other action … relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who … [has] been properly detained as an enemy combatant or is awaiting such determination.” There are two separate paragraphs, the argument continues, so there must be two distinct classes of cases. And the effective date subsection, MCA §7(b), it is said, refers only to the second class of cases, for it largely repeats the language of §2241(e)(2) by referring to “cases … which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States.”    Petitioners’ textual argument would have more force were it not for the phrase “other action” in §2241(e)(2). The phrase cannot be understood without referring back to the paragraph that precedes it, §2241(e)(1), which explicitly mentions the term “writ of habeas corpus.” The structure of the two paragraphs implies that habeas actions are a type of action “relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained … as an enemy combatant.” Pending habeas actions, then, are in the category of cases subject to the statute’s jurisdictional bar.    We acknowledge, moreover, the litigation history that prompted Congress to enact the MCA. In Hamdan the Court found it unnecessary to address the petitioner’s Suspension Clause arguments but noted the relevance of the clear statement rule in deciding whether Congress intended to reach pending habeas corpus cases. See 548 U. S., at 575 (Congress should “not be presumed to have effected such denial [of habeas relief] absent an unmistakably clear statement to the contrary”). This interpretive rule facilitates a dialogue between Congress and the Court. Cf. Hilton v. South Carolina Public Railways Comm’n , 502 U. S. 197 , 206 (1991); H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1209–1210 (W. Eskridge & P. Frickey eds. 1994). If the Court invokes a clear statement rule to advise that certain statutory interpretations are favored in order to avoid constitutional difficulties, Congress can make an informed legislative choice either to amend the statute or to retain its existing text. If Congress amends, its intent must be respected even if a difficult constitutional question is presented. The usual presumption is that Members of Congress, in accord with their oath of office, considered the constitutional issue and determined the amended statute to be a lawful one; and the Judiciary, in light of that determination, proceeds to its own independent judgment on the constitutional question when required to do so in a proper case.    If this ongoing dialogue between and among the branches of Government is to be respected, we cannot ignore that the MCA was a direct response to Hamdan ’s holding that the DTA’s jurisdiction-stripping provision had no application to pending cases. The Court of Appeals was correct to take note of the legislative history when construing the statute, see 476 F. 3d, at 986, n. 2 (citing relevant floor statements); and we agree with its conclusion that the MCA deprives the federal courts of jurisdiction to entertain the habeas corpus actions now before us. III    In deciding the constitutional questions now presented we must determine whether petitioners are barred from seeking the writ or invoking the protections of the Suspension Clause either because of their status, i.e. , petitioners’ designation by the Executive Branch as enemy combatants, or their physical location, i.e. , their presence at Guantanamo Bay. The Government contends that noncitizens designated as enemy combatants and detained in territory located outside our Nation’s borders have no constitutional rights and no privilege of habeas corpus. Petitioners contend they do have cognizable constitutional rights and that Congress, in seeking to eliminate recourse to habeas corpus as a means to assert those rights, acted in violation of the Suspension Clause.    We begin with a brief account of the history and origins of the writ. Our account proceeds from two propositions. First, protection for the privilege of habeas corpus was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights. In the system conceived by the Framers the writ had a centrality that must inform proper interpretation of the Suspension Clause. Second, to the extent there were settled precedents or legal commentaries in 1789 regarding the extraterritorial scope of the writ or its application to enemy aliens, those authorities can be instructive for the present cases. A    The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom. Experience taught, however, that the common-law writ all too often had been insufficient to guard against the abuse of monarchial power. That history counseled the necessity for specific language in the Constitution to secure the writ and ensure its place in our legal system.    Magna Carta decreed that no man would be imprisoned contrary to the law of the land. Art. 39, in Sources of Our Liberties 17 (R. Perry & J. Cooper eds. 1959) (“No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land”). Important as the principle was, the Barons at Runnymede prescribed no specific legal process to enforce it. Holdsworth tells us, however, that gradually the writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled. 9 W. Holdsworth, A History of English Law 112 (1926) (hereinafter Holdsworth).    The development was painstaking, even by the centuries-long measures of English constitutional history. The writ was known and used in some form at least as early as the reign of Edward I. Id. , at 108–125. Yet at the outset it was used to protect not the rights of citizens but those of the King and his courts. The early courts were considered agents of the Crown, designed to assist the King in the exercise of his power. See J. Baker, An Introduction to English Legal History 38–39 (4th ed. 2002). Thus the writ, while it would become part of the foundation of liberty for the King’s subjects, was in its earliest use a mechanism for securing compliance with the King’s laws. See Halliday & White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L. Rev. (forthcoming 2008) (hereinafter Halliday & White) (manuscript, at 11, online at http://papers.ssrn.com/sol3 /papers.cfm?abstract_id=1008252 (all Internet materials as visited June 9, 2008, and available in Clerk of Court’s case file) (noting that “conceptually the writ arose from a theory of power rather than a theory of liberty”)). Over time it became clear that by issuing the writ of habeas corpus common-law courts sought to enforce the King’s prerogative to inquire into the authority of a jailer to hold a prisoner. See M. Hale, Prerogatives of the King 229 (D. Yale ed. 1976); 2 J. Story, Commentaries on the Constitution of the United States §1341, p. 237 (3d ed. 1858) (noting that the writ ran “into all parts of the king’s dominions; for it is said, that the king is entitled, at all times, to have an account, why the liberty of any of his subjects is restrained”).    Even so, from an early date it was understood that the King, too, was subject to the law. As the writers said of Magna Carta, “it means this, that the king is and shall be below the law.” 1 F. Pollock & F. Maitland, History of English Law 173 (2d ed. 1909); see also 2 Bracton On the Laws and Customs of England 33 (S. Thorne transl. 1968) (“The king must not be under man but under God and under the law, because law makes the king”). And, by the 1600’s, the writ was deemed less an instrument of the King’s power and more a restraint upon it. See Collings, Habeas Corpus for Convicts—Constitutional Right or Legislative Grace, 40 Calif. L. Rev. 335, 336 (1952) (noting that by this point the writ was “the appropriate process for checking illegal imprisonment by public officials”).    Still, the writ proved to be an imperfect check. Even when the importance of the writ was well understood in England, habeas relief often was denied by the courts or suspended by Parliament. Denial or suspension occurred in times of political unrest, to the anguish of the imprisoned and the outrage of those in sympathy with them.    A notable example from this period was Darnel’s Case , 3 How. St. Tr. 1 (K. B. 1627). The events giving rise to the case began when, in a display of the Stuart penchant for authoritarian excess, Charles I demanded that Darnel and at least four others lend him money. Upon their refusal, they were imprisoned. The prisoners sought a writ of habeas corpus; and the King filed a return in the form of a warrant signed by the Attorney General. Ibid . The court held this was a sufficient answer and justified the subjects’ continued imprisonment. Id ., at 59.    There was an immediate outcry of protest. The House of Commons promptly passed the Petition of Right, 3 Car. 1, ch. 1 (1627), 5 Statutes of the Realm 23, 24 (reprint 1963), which condemned executive “imprison[ment] without any cause” shown, and declared that “no freeman in any such manner as is before mencioned [shall] be imprisoned or deteined.” Yet a full legislative response was long delayed. The King soon began to abuse his authority again, and Parliament was dissolved. See W. Hall & R. Albion, A History of England and the British Empire 328 (3d ed. 1953) (hereinafter Hall & Albion). When Parliament reconvened in 1640, it sought to secure access to the writ by statute. The Act of 1640, 16 Car. 1, ch. 10, 5 Statutes of the Realm, at 110, expressly authorized use of the writ to test the legality of commitment by command or warrant of the King or the Privy Council. Civil strife and the Interregnum soon followed, and not until 1679 did Parliament try once more to secure the writ, this time through the Habeas Corpus Act of 1679, 31 Car. 2, ch. 2, id., at 935. The Act, which later would be described by Blackstone as the “stable bulwark of our liberties,” 1 W. Blackstone, Commentaries *137 (hereinafter Blackstone), established procedures for issuing the writ; and it was the model upon which the habeas statutes of the 13 American Colonies were based, see Collings, supra , at 338–339.    This history was known to the Framers. It no doubt confirmed their view that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power. The Framers’ inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty. See Loving v. United States , 517 U. S. 748 , 756 (1996) (noting that “[e]ven before the birth of this country, separation of powers was known to be a defense against tyranny”); cf. Youngstown Sheet & Tube Co. v. Sawyer , 343 U. S. 579 , 635 (1952) (Jackson, J., concurring) (“[T]he Constitution diffuses power the better to secure liberty”); Clinton v. City of New York , 524 U. S. 417 , 450 (1998) (Kennedy, J., concurring) (“Liberty is always at stake when one or more of the branches seek to transgress the separation of powers”). Because the Constitution’s separation-of-powers structure, like the substantive guarantees of the Fifth and Fourteenth Amendments, see Yick Wo v. Hopkins , 118 U. S. 356 , 374 (1886), protects persons as well as citizens, foreign nationals who have the privilege of litigating in our courts can seek to enforce separation-of-powers principles, see, e.g. , INS v. Chadha , 462 U. S. 919 , 958–959 (1983).    That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken to specify the limited grounds for its suspension: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Art. I, §9, cl. 2; see Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425, 1509, n. 329 (1987) (“[T]he non-suspension clause is the original Constitution’s most explicit reference to remedies”). The word “privilege” was used, perhaps, to avoid mentioning some rights to the exclusion of others. (Indeed, the only mention of the term “right” in the Constitution, as ratified, is in its clause giving Congress the power to protect the rights of authors and inventors. See Art. I, §8, cl. 8.)    Surviving accounts of the ratification debates provide additional evidence that the Framers deemed the writ to be an essential mechanism in the separation-of-powers scheme. In a critical exchange with Patrick Henry at the Virginia ratifying convention Edmund Randolph referred to the Suspension Clause as an “exception” to the “power given to Congress to regulate courts.” See 3 Debates in the Several State Conventions on the Adoption of the Federal Constitution 460–464 (J. Elliot 2d ed. 1876) (hereinafter Elliot’s Debates). A resolution passed by the New York ratifying convention made clear its understanding that the Clause not only protects against arbitrary suspensions of the writ but also guarantees an affirmative right to judicial inquiry into the causes of detention. See Resolution of the New York Ratifying Convention (July 26, 1788), in 1 Elliot’s Debates 328 (noting the convention’s understanding “[t]hat every person restrained of his liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof if unlawful; and that such inquiry or removal ought not to be denied or delayed, except when, on account of public danger, the Congress shall suspend the privilege of the writ of habeas corpus ”). Alexander Hamilton likewise explained that by providing the detainee a judicial forum to challenge detention, the writ preserves limited government. As he explained in The Federalist No. 84: “[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone … are well worthy of recital: ‘To bereave a man of life … or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’ And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls ‘the bulwark of the British Constitution.’ ” C. Rossiter ed., p. 512 (1961) (quoting 1 Blackstone *136, 4 id., at *438).    Post-1789 habeas developments in England, though not bearing upon the Framers’ intent, do verify their foresight. Those later events would underscore the need for structural barriers against arbitrary suspensions of the writ. Just as the writ had been vulnerable to executive and parliamentary encroachment on both sides of the Atlantic before the American Revolution, despite the Habeas Corpus Act of 1679, the writ was suspended with frequency in England during times of political unrest after 1789. Parliament suspended the writ for much of the period from 1792 to 1801, resulting in rampant arbitrary imprisonment. See Hall & Albion 550. Even as late as World War I, at least one prominent English jurist complained that the Defence of the Realm Act, 1914, 4 & 5 Geo. 5, ch. 29(1)(a), effectively had suspended the privilege of habeas corpus for any person suspected of “communicating with the enemy.” See King v. Halliday, [1917] A. C. 260, 299 (Lord Shaw, dissenting); see generally A. Simpson, In the Highest Degree Odious: Detention Without Trial in Wartime Britain 6–7, 24–25 (1992).    In our own system the Suspension Clause is designed to protect against these cyclical abuses. The Clause protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the “delicate balance of governance” that is itself the surest safeguard of liberty. See Hamdi, 542 U. S., at 536 (plurality opinion). The Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account. See Preiser v. Rodriguez , 411 U. S. 475 , 484 (1973) (“[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody”); cf. In re Jackson , 15 Mich. 417, 439–440 (1867) (Cooley, J., concurring) (“The important fact to be observed in regard to the mode of procedure upon this [habeas] writ is, that it is directed to, and served upon, not the person confined, but his jailer”). The separation-of-powers doctrine, and the history that influenced its design, therefore must inform the reach and purpose of the Suspension Clause. B    The broad historical narrative of the writ and its function is central to our analysis, but we seek guidance as well from founding-era authorities addressing the specific question before us: whether foreign nationals, apprehended and detained in distant countries during a time of serious threats to our Nation’s security, may assert the privilege of the writ and seek its protection. The Court has been careful not to foreclose the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments that define the present scope of the writ. See INS v. St. Cyr , 533 U. S. 289 , 300–301 (2001). But the analysis may begin with precedents as of 1789, for the Court has said that “at the absolute minimum” the Clause protects the writ as it existed when the Constitution was drafted and ratified. Id ., at 301.    To support their arguments, the parties in these cases have examined historical sources to construct a view of the common-law writ as it existed in 1789—as have amici whose expertise in legal history the Court has relied upon in the past. See Brief for Legal Historians as Amici Curiae; see also St. Cyr , supra , at 302, n. 16. The Government argues the common-law writ ran only to those territories over which the Crown was sovereign. See Brief for Respondents 27. Petitioners argue that jurisdiction followed the King’s officers. See Brief for Petitioner Boumediene et al. 11. Diligent search by all parties reveals no certain conclusions. In none of the cases cited do we find that a common-law court would or would not have granted, or refused to hear for lack of jurisdiction, a petition for a writ of habeas corpus brought by a prisoner deemed an enemy combatant, under a standard like the one the Department of Defense has used in these cases, and when held in a territory, like Guantanamo, over which the Government has total military and civil control.    We know that at common law a petitioner’s status as an alien was not a categorical bar to habeas corpus relief. See, e.g. , Sommersett’s Case , 20 How. St. Tr. 1, 80–82 (1772) (ordering an African slave freed upon finding the custodian’s return insufficient); see generally Khera v. Secretary of State for the Home Dept. , [1984] A. C. 74, 111 (“Habeas corpus protection is often expressed as limited to ‘British subjects.’ Is it really limited to British nationals? Suffice it to say that the case law has given an emphatic ‘no’ to the question”). We know as well that common-law courts entertained habeas petitions brought by enemy aliens detained in England—“entertained” at least in the sense that the courts held hearings to determine the threshold question of entitlement to the writ. See Case of Three Spanish Sailors , 2 Black. W. 1324, 96 Eng. Rep. 775 (C. P. 1779); King v. Schiever , 2 Burr. 765, 97 Eng. Rep. 551 (K. B. 1759); Du Castro’s Case , Fort. 195, 92 Eng. Rep. 816 (K. B. 1697).    In Schiever and the Spanish Sailors ’ case, the courts denied relief to the petitioners. Whether the holdings in these cases were jurisdictional or based upon the courts’ ruling that the petitioners were detained lawfully as prisoners of war is unclear. See Spanish Sailors , supra , at 1324, 96 Eng. Rep., at 776; Schiever , supra , at 766, 97 Eng. Rep., at 552. In Du Castro ’s Case, the court granted relief, but that case is not analogous to petitioners’ because the prisoner there appears to have been detained in England. See Halliday & White 27, n. 72. To the extent these authorities suggest the common-law courts abstained altogether from matters involving prisoners of war, there was greater justification for doing so in the context of declared wars with other nation states. Judicial intervention might have complicated the military’s ability to negotiate exchange of prisoners with the enemy, a wartime practice well known to the Framers. See Resolution of Mar. 30, 1778, 10 Journals of the Continental Congress 1774–1789, p. 295 (W. Ford ed. 1908) (directing General Washington not to exchange prisoners with the British unless the enemy agreed to exempt citizens from capture).    We find the evidence as to the geographic scope of the writ at common law informative, but, again, not dispositive. Petitioners argue the site of their detention is analogous to two territories outside of England to which the writ did run: the so-called “exempt jurisdictions,” like the Channel Islands; and (in former times) India. There are critical differences between these places and Guantanamo, however.    As the Court noted in Rasul , 542 U. S., at 481–482, and nn. 11–12, common-law courts granted habeas corpus relief to prisoners detained in the exempt jurisdictions. But these areas, while not in theory part of the realm of England, were nonetheless under the Crown’s control. See 2 H. Hallam, Constitutional History of England: From the Accession of Henry VII to the Death of George II, pp. 232–233 (reprint 1989). And there is some indication that these jurisdictions were considered sovereign territory. King v. Cowle , 2 Burr. 834, 854, 855, 97 Eng. Rep. 587, 599 (K. B. 1759) (describing one of the exempt jurisdictions, Berwick-upon-Tweed, as under the “sovereign jurisdiction” and “subjection of the Crown of England”). Because the United States does not maintain formal sovereignty over Guantanamo Bay, see Part IV, infra , the naval station there and the exempt jurisdictions discussed in the English authorities are not similarly situated.    Petitioners and their amici further rely on cases in which British courts in India granted writs of habeas corpus to noncitizens detained in territory over which the Moghul Emperor retained formal sovereignty and control. See supra, at 12–13; Brief for Legal Historians as Amici Curiae 12–13. The analogy to the present cases breaks down, however, because of the geographic location of the courts in the Indian example. The Supreme Court of Judicature (the British Court) sat in Calcutta; but no federal court sits at Guantanamo. The Supreme Court of Judicature was, moreover, a special court set up by Parliament to monitor certain conduct during the British Raj. See Regulating Act of 1773, 13 Geo. 3, §§13–14. That it had the power to issue the writ in nonsovereign territory does not prove that common-law courts sitting in England had the same power. If petitioners were to have the better of the argument on this point, we would need some demonstration of a consistent practice of common-law courts sitting in England and entertaining petitions brought by alien prisoners detained abroad. We find little support for this conclusion. The Government argues, in turn, that Guantanamo is more closely analogous to Scotland and Hanover, territories that were not part of England but nonetheless controlled by the English monarch (in his separate capacities as King of Scotland and Elector of Hanover). See Cowle, 2 Burr., at 856, 97 Eng. Rep., at 600. Lord Mansfield can be cited for the proposition that, at the time of the founding, English courts lacked the “power” to issue the writ to Scotland and Hanover, territories Lord Mansfield referred to as “foreign.” Ibid . But what matters for our purposes is why common-law courts lacked this power. Given the English Crown’s delicate and complicated relationships with Scotland and Hanover in the 1700’s, we cannot disregard the possibility that the common-law courts’ refusal to issue the writ to these places was motivated not by formal legal constructs but by what we would think of as prudential concerns. This appears to have been the case with regard to other British territories where the writ did not run. See 2 R. Chambers, A Course of Lectures on English Law 1767–1773, p. 8 (T. Curley ed. 1986) (quoting the view of Lord Mansfield in Cowle that “[n]otwithstanding the power which the judges have, yet where they cannot judge of the cause, or give relief upon it, they would not think proper to interpose; and therefore in the case of imprisonments in Guernsey , Jersey , Minorca , or the plantations , the most usual way is to complain to the king in Council ” (internal quotation marks omitted)). And after the Act of Union in 1707, through which the kingdoms of England and Scotland were merged politically, Queen Anne and her successors, in their new capacity as sovereign of Great Britain, ruled the entire island as one kingdom. Accordingly, by the time Lord Mansfield penned his opinion in Cowle in 1759, Scotland was no longer a “foreign” country vis-À-vis England—at least not in the sense in which Cuba is a foreign country vis-À-vis the United States. Scotland remained “foreign” in Lord Mansfield’s day in at least one important respect, however. Even after the Act of Union, Scotland (like Hanover) continued to maintain its own laws and court system. See 1 Blackstone *98, *109. Under these circumstances prudential considerations would have weighed heavily when courts sitting in England received habeas petitions from Scotland or the Electorate. Common-law decisions withholding the writ from prisoners detained in these places easily could be explained as efforts to avoid either or both of two embarrassments: conflict with the judgments of another court of competent jurisdiction; or the practical inability, by reason of distance, of the English courts to enforce their judgments outside their territorial jurisdiction. Cf. Munaf v. Geren , ante , at 15 (opinion of the Court) (recognizing that “ ‘prudential concerns’ … such as comity and the orderly administration of criminal justice” affect the appropriate exercise of habeas jurisdiction). By the mid-19th century, British courts could issue the writ to Canada, notwithstanding the fact that Canadian courts also had the power to do so. See 9 Holdsworth 124 (citing Ex parte Anderson , 3 El. and El. 487 (1861)). This might be seen as evidence that the existence of a separate court system was no barrier to the running of the common-law writ. The Canada of the 1800’s, however, was in many respects more analogous to the exempt jurisdictions or to Ireland, where the writ ran, than to Scotland or Hanover in the 1700’s, where it did not. Unlike Scotland and Hanover, Canada followed English law. See B. Laskin, The British Tradition in Canadian Law 50–51 (1969). In the end a categorical or formal conception of sovereignty does not provide a comprehensive or altogether satisfactory explanation for the general understanding that prevailed when Lord Mansfield considered issuance of the writ outside England. In 1759 the writ did not run to Scotland but did run to Ireland, even though, at that point, Scotland and England had merged under the rule of a single sovereign, whereas the Crowns of Great Britain and Ireland remained separate (at least in theory). See Cowle , supra , at 856–857, 97 Eng. Rep., 600; 1 Blackstone *100–101. But there was at least one major difference between Scotland’s and Ireland’s relationship with England during this period that might explain why the writ ran to Ireland but not to Scotland. English law did not generally apply in Scotland (even after the Act of Union) but it did apply in Ireland. Blackstone put it as follows: “[A]s Scotland and England are now one and the same kingdom, and yet differ in their municipal laws; so England and Ireland are, on the other hand, distinct kingdoms, and yet in general agree in their laws.” Id., at *100. This distinction, and not formal notions of sovereignty, may well explain why the writ did not run to Scotland (and Hanover) but would run to Ireland. The prudential barriers that may have prevented the English courts from issuing the writ to Scotland and Hanover are not relevant here. We have no reason to believe an order from a federal court would be disobeyed at Guantanamo. No Cuban court has jurisdiction to hear these petitioners’ claims, and no law other than the laws of the United States applies at the naval station. The modern-day relations between the United States and Guantanamo thus differ in important respects from the 18th-century relations between England and the kingdoms of Scotland and Hanover. This is reason enough for us to discount the relevance of the Government’s analogy. Each side in the present matter argues that the very lack of a precedent on point supports its position. The Government points out there is no evidence that a court sitting in England granted habeas relief to an enemy alien detained abroad; petitioners respond there is no evidence that a court refused to do so for lack of jurisdiction. Both arguments are premised, however, upon the assumption that the historical record is complete and that the common law, if properly understood, yields a definite answer to the questions before us. There are reasons to doubt both assumptions. Recent scholarship points to the inherent shortcomings in the historical record. See Halliday & White 14–15 (noting that most reports of 18th-century habeas proceedings were not printed). And given the unique status of Guantanamo Bay and the particular dangers of terrorism in the modern age, the common-law courts simply may not have confronted cases with close parallels to this one. We decline, therefore, to infer too much, one way or the other, from the lack of historical evidence on point. Cf. Brown v. Board of Education , 347 U. S. 483 , 489 (1954) (noting evidence concerning the circumstances surrounding the adoption of the Fourteenth Amendment, discussed in the parties’ briefs and uncovered through the Court’s own investigation, “convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive”); Reid v. Covert , 354 U. S. 1 , 64 (1957) (Frankfurter, J., concurring in result) (arguing constitutional adjudication should not be based upon evidence that is “too episodic, too meager, to form a solid basis in history, preceding and contemporaneous with the framing of the Constitution”). IV Drawing from its position that at common law the writ ran only to territories over which the Crown was sovereign, the Government says the Suspension Clause affords petitioners no rights because the United States does not claim sovereignty over the place of detention. Guantanamo Bay is not formally part of the United States. See DTA §1005(g), 119 Stat. 2743. And under the terms of the lease between the United States and Cuba, Cuba retains “ultimate sovereignty” over the territory while the United States exercises “complete jurisdiction and control.” See Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U. S.-Cuba, Art. III, T. S. No. 418 (hereinafter 1903 Lease Agreement); Rasul , 542 U. S., at 471. Under the terms of the 1934 Treaty, however, Cuba effectively has no rights as a sovereign until the parties agree to modification of the 1903 Lease Agreement or the United States abandons the base. See Treaty Defining Relations with Cuba, May 29, 1934, U. S.-Cuba, Art. III, 48 Stat. 1683, T. S. No. 866. The United States contends, nevertheless, that Guantanamo is not within its sovereign control. This was the Government’s position well before the events of September 11, 2001. See, e.g. , Brief for Petitioners in Sale v. Haitian Centers Council, Inc. , O. T. 1992, No. 92–344, p. 31 (arguing that Guantanamo is territory “ outside the United States”). And in other contexts the Court has held that questions of sovereignty are for the political branches to decide. See Vermilya-Brown Co . v. Connell , 335 U. S. 377 , 380 (1948) (“[D]etermination of sovereignty over an area is for the legislative and executive departments”); see also Jones v. United States , 137 U. S. 202 (1890); Williams v. Suffolk Ins. Co. , 13 Pet. 415, 420 (1839). Even if this were a treaty interpretation case that did not involve a political question, the President’s construction of the lease agreement would be entitled to great respect. See Sumitomo Shoji America, Inc. v. Avagliano , 457 U. S. 176 , 184–185 (1982). We therefore do not question the Government’s position that Cuba, not the United States, maintains sovereignty, in the legal and technical sense of the term, over Guantanamo Bay. But this does not end the analysis. Our cases do not hold it is improper for us to inquire into the objective degree of control the Nation asserts over foreign territory. As commentators have noted, “ ‘[s]overeignty’ is a term used in many senses and is much abused. ” See 1 Restatement (Third) of Foreign Relations Law of the United States §206, Comment b, p. 94 (1986). When we have stated that sovereignty is a political question, we have referred not to sovereignty in the general, colloquial sense, meaning the exercise of dominion or power, see Webster’s New International Dictionary 2406 (2d ed. 1934) (“sovereignty,” definition 3), but sovereignty in the narrow, legal sense of the term, meaning a claim of right, see 1 Restatement (Third) of Foreign Relations, supra, §206, Comment b, at 94 (noting that sovereignty “implies a state’s lawful control over its territory generally to the exclusion of other states, authority to govern in that territory, and authority to apply law there”). Indeed, it is not altogether uncommon for a territory to be under the de jure sovereignty of one nation, while under the plenary control, or practical sovereignty, of another. This condition can occur when the territory is seized during war, as Guantanamo was during the Spanish-American War. See, e.g. , Fleming v. Page , 9 How. 603, 614 (1850) (noting that the port of Tampico, conquered by the United States during the war with Mexico, was “undoubtedly … subject to the sovereignty and dominion of the United States,” but that it “does not follow that it was a part of the United States, or that it ceased to be a foreign country”); King v. Earl of Crewe ex parte Sekgome , [1910] 2 K. B. 576, 603–604 (C. A.) (opinion of Williams, L. J.) (arguing that the Bechuanaland Protectorate in South Africa was “under His Majesty’s dominion in the sense of power and jurisdiction, but is not under his dominion in the sense of territorial dominion”). Accordingly, for purposes of our analysis, we accept the Government’s position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul , however, we take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory. See 542 U. S., at 480; id. , at 487 (Kennedy, J., concurring in judgment). Were we to hold that the present cases turn on the political question doctrine, we would be required first to accept the Government’s premise that de jure sovereignty is the touchstone of habeas corpus jurisdiction. This premise, however, is unfounded. For the reasons indicated above, the history of common-law habeas corpus provides scant support for this proposition; and, for the reasons indicated below, that position would be inconsistent with our precedents and contrary to fundamental separation-of-powers principles. A The Court has discussed the issue of the Constitution’s extraterritorial application on many occasions. These decisions undermine the Government’s argument that, at least as applied to noncitizens, the Constitution necessarily stops where de jure sovereignty ends. The Framers foresaw that the United States would expand and acquire new territories. See American Ins. Co. v. 356 Bales of Cotton , 1 Pet. 511, 542 (1828). Article IV, §3, cl. 1, grants Congress the power to admit new States. Clause 2 of the same section grants Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Save for a few notable (and notorious) exceptions, e.g. , Dred Scott v. Sandford , 19 How. 393 (1857), throughout most of our history there was little need to explore the outer boundaries of the Constitution’s geographic reach. When Congress exercised its power to create new territories, it guaranteed constitutional protections to the inhabitants by statute. See, e.g. , An Act: to establish a Territorial Government for Utah, 9 Stat. 458 (“[T]he Constitution and laws of the United States are hereby extended over and declared to be in force in said Territory of Utah”); Rev. Stat. §1891 (“The Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect within all the organized Territories, and in every Territory hereafter organized as elsewhere within the United States”); see generally Burnett, Untied States: American Expansion and Territorial Deannexation, 72 U. Chi. L. Rev. 797, 825–827 (2005). In particular, there was no need to test the limits of the Suspension Clause because, as early as 1789, Congress extended the writ to the Territories. See Act of Aug. 7, 1789, 1 Stat. 52 (reaffirming Art. II of Northwest Ordinance of 1787, which provided that “[t]he inhabitants of the said territory, shall always be entitled to the benefits of the writ of habeas corpus”). Fundamental questions regarding the Constitution’s geographic scope first arose at the dawn of the 20th century when the Nation acquired noncontiguous Territories: Puerto Rico, Guam, and the Philippines—ceded to the United States by Spain at the conclusion of the Spanish-American War—and Hawaii—annexed by the United States in 1898. At this point Congress chose to discontinue its previous practice of extending constitutional rights to the territories by statute. See, e.g. , An Act Temporarily to provide for the administration of the affairs of civil government in the Philippine Islands, and for other purposes, 32 Stat. 692 (noting that Rev. Stat. §1891 did not apply to the Philippines). In a series of opinions later known as the Insular Cases, the Court addressed whether the Constitution, by its own force, applies in any territory that is not a State. See De Lima v. Bidwell , 182 U. S. 1 (1901); Dooley v. United States , 182 U. S. 222 (1901); Armstrong v. United States , 182 U. S. 243 (1901); Downes v. Bidwell , 182 U. S. 244 (1901); Hawaii v. Mankichi , 190 U. S. 197 (1903); Dorr v. United States , 195 U. S. 138 (1904). The Court held that the Constitution has independent force in these territories, a force not contingent upon acts of legislative grace. Yet it took note of the difficulties inherent in that position. Prior to their cession to the United States, the former Spanish colonies operated under a civil-law system, without experience in the various aspects of the Anglo-American legal tradition, for instance the use of grand and petit juries. At least with regard to the Philippines, a complete transformation of the prevailing legal culture would have been not only disruptive but also unnecessary, as the United States intended to grant independence to that Territory. See An Act To declare the purpose of the people of the United States as to the future political status of the people of the Philippine Islands, and to provide a more autonomous government for those islands (Jones Act), 39 Stat. 545 (noting that “it was never the intention of the people of the United States in the incipiency of the War with Spain to make it a war of conquest or for territorial aggrandizement” and that “it is, as it has always been, the purpose of the people of the United States to withdraw their sovereignty over the Philippine Islands and to recognize their independence as soon as a stable government can be established therein”). The Court thus was reluctant to risk the uncertainty and instability that could result from a rule that displaced altogether the existing legal systems in these newly acquired Territories. See Downes , supra , at 282 (“It is obvious that in the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws and customs of the people, and from differences of soil, climate and production … ”). These considerations resulted in the doctrine of territorial incorporation, under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories. See Dorr , supra , at 143 (“Until Congress shall see fit to incorporate territory ceded by treaty into the United States, … the territory is to be governed under the power existing in Congress to make laws for such territories and subject to such constitutional restrictions upon the powers of that body as are applicable to the situation”); Downes , supra , at 293 (White, J., concurring) (“[T]he determination of what particular provision of the Constitution is applicable, generally speaking, in all cases, involves an inquiry into the situation of the territory and its relations to the United States”). As the Court later made clear, “the real issue in the Insular Cases was not whether the Constitution extended to the Philippines or Porto Rico when we went there, but which of its provisions were applicable by way of limitation upon the exercise of executive and legislative power in dealing with new conditions and requirements.” Balzac v. Porto Rico , 258 U. S. 298 , 312 (1922). It may well be that over time the ties between the United States and any of its unincorporated Territories strengthen in ways that are of constitutional significance. Cf. Torres v. Puerto Rico , 442 U. S. 465 , 475–476 (1979) (Brennan, J., concurring in judgment) (“Whatever the validity of the [Insular Cases] in the particular historical context in which they were decided, those cases are clearly not authority for questioning the application of the Fourth Amendment—or any other provision of the Bill of Rights—to the Commonwealth of Puerto Rico in the 1970’s”). But, as early as Balzac in 1922, the Court took for granted that even in unincorporated Territories the Government of the United States was bound to provide to noncitizen inhabitants “guaranties of certain fundamental personal rights declared in the Constitution.” 258 U. S., at 312; see also Late Corp. of Church of Jesus Christ of Latter-day Saints v. United States , 136 U. S. 1 , 44 (1890) (“Doubtless Congress, in legislating for the Territories would be subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments”). Yet noting the inherent practical difficulties of enforcing all constitutional provisions “always and everywhere,” Balzac, supra , at 312, the Court devised in the Insular Cases a doctrine that allowed it to use its power sparingly and where it would be most needed. This century-old doctrine informs our analysis in the present matter. Practical considerations likewise influenced the Court’s analysis a half-century later in Reid , 354 U. S. 1 . The petitioners there, spouses of American servicemen, lived on American military bases in England and Japan. They were charged with crimes committed in those countries and tried before military courts, consistent with executive agreements the United States had entered into with the British and Japanese governments. Id. , at 15–16, and nn. 29–30 (plurality opinion). Because the petitioners were not themselves military personnel, they argued they were entitled to trial by jury. Justice Black, writing for the plurality, contrasted the cases before him with the Insular Cases, which involved territories “with wholly dissimilar traditions and institutions” that Congress intended to govern only “temporarily.” Id., at 14. Justice Frankfurter argued that the “specific circumstances of each particular case” are relevant in determining the geographic scope of the Constitution. Id. , at 54 (opinion concurring in result). And Justice Harlan, who had joined an opinion reaching the opposite result in the case in the previous Term, Reid v. Covert , 351 U. S. 487 (1956), was most explicit in rejecting a “rigid and abstract rule” for determining where constitutional guarantees extend. Reid, 354 U. S., at 74 (opinion concurring in result). He read the Insular Cases to teach that whether a constitutional provision has extraterritorial effect depends upon the “particular circumstances, the practical necessities, and the possible alternatives which Congress had before it” and, in particular, whether judicial enforcement of the provision would be “impracticable and anomalous.” Id. , at 74–75; see also United States v. Verdugo-Urquidez , 494 U. S. 259 , 277–278 (1990) (Kennedy, J., concurring) (applying the “impracticable and anomalous” extraterritoriality test in the Fourth Amendment context). That the petitioners in Reid were American citizens was a key factor in the case and was central to the plurality’s conclusion that the Fifth and Sixth Amendments apply to American civilians tried outside the United States. But practical considerations, related not to the petitioners’ citizenship but to the place of their confinement and trial, were relevant to each Member of the Reid majority. And to Justices Harlan and Frankfurter (whose votes were necessary to the Court’s disposition) these considerations were the decisive factors in the case. Indeed the majority splintered on this very point. The key disagreement between the plurality and the concurring Justices in Reid was over the continued precedential value of the Court’s previous opinion in In re Ross , 140 U. S. 453 (1891), which the Reid Court understood as holding that under some circumstances Americans abroad have no right to indictment and trial by jury. The petitioner in Ross was a sailor serving on an American merchant vessel in Japanese waters who was tried before an American consular tribunal for the murder of a fellow crewman. 140 U. S., at 459, 479. The Ross Court held that the petitioner, who was a British subject, had no rights under the Fifth and Sixth Amendments. Id. , at 464. The petitioner’s citizenship played no role in the disposition of the case, however. The Court assumed (consistent with the maritime custom of the time) that Ross had all the rights of a similarly situated American citizen. Id. , at 479 (noting that Ross was “under the protection and subject to the laws of the United States equally with the seaman who was native born”). The Justices in Reid therefore properly understood Ross as standing for the proposition that, at least in some circumstances, the jury provisions of the Fifth and Sixth Amendments have no application to American citizens tried by American authorities abroad. See 354 U. S., at 11–12 (plurality opinion) (describing Ross as holding that “constitutional protections applied ‘only to citizens and others within the United States … and not to residents or temporary sojourners abroad’ ” (quoting Ross , supra , at 464)); 354 U. S., at 64 (Frankfurter, J., concurring in result) (noting that the consular tribunals upheld in Ross “w[ere] based on long-established custom and they were justified as the best possible means for securing justice for the few Americans present in [foreign] countries”); 354 U. S., at 75 (Harlan, J., concurring in result) (“what Ross and the Insular Cases hold is that the particular local setting, the practical necessities, and the possible alternatives are relevant to a question of judgment, namely, whether jury trial should be deemed a necessary condition of the exercise of Congress’ power to provide for the trial of Americans overseas”). The Reid plurality doubted that Ross was rightly decided, precisely because it believed the opinion was insufficiently protective of the rights of American citizens. See 354 U. S., at 10–12; see also id. , at 78 (Clark, J., dissenting) (noting that “four of my brothers would specifically overrule and two would impair the long-recognized vitality of an old and respected precedent in our law, the case of In re Ross , 140 U. S. 453 (1891)”). But Justices Harlan and Frankfurter, while willing to hold that the American citizen petitioners in the cases before them were entitled to the protections of Fifth and Sixth Amendments, were unwilling to overturn Ross . 354 U. S., at 64 (Frankfurter, J., concurring in result); id. , at 75 (Harlan, J., concurring in result). Instead, the two concurring Justices distinguished Ross from the cases before them, not on the basis of the citizenship of the petitioners, but on practical considerations that made jury trial a more feasible option for them than it was for the petitioner in Ross . If citizenship had been the only relevant factor in the case, it would have been necessary for the Court to overturn Ross , something Justices Harlan and Frankfurter were unwilling to do. See Verdugo-Urquidez , supra , at 277 (Kennedy, J., concurring) (noting that Ross had not been overruled). Practical considerations weighed heavily as well in Johnson v. Eisentrager , 339 U. S. 763 (1950), where the Court addressed whether habeas corpus jurisdiction extended to enemy aliens who had been convicted of violating the laws of war. The prisoners were detained at Landsberg Prison in Germany during the Allied Powers’ postwar occupation. The Court stressed the difficulties of ordering the Government to produce the prisoners in a habeas corpus proceeding. It “would require allocation of shipping space, guarding personnel, billeting and rations” and would damage the prestige of military commanders at a sensitive time. Id. , at 779. In considering these factors the Court sought to balance the constraints of military occupation with constitutional necessities. Id. , at 769–779; see Rasul , 542 U. S., at 475–476 (discussing the factors relevant to Eisentrager ’s constitutional holding); 542 U. S., at 486 (Kennedy, J., concurring in judgment) (same). True, the Court in Eisentrager denied access to the writ, and it noted the prisoners “at no relevant time were within any territory over which the United States is sovereign, and [that] the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.” 339 U. S., at 778. The Government seizes upon this language as proof positive that the Eisentrager Court adopted a formalistic, sovereignty-based test for determining the reach of the Suspension Clause. See Brief for Respondents 18–20. We reject this reading for three reasons. First, we do not accept the idea that the above-quoted passage from Eisentrager is the only authoritative language in the opinion and that all the rest is dicta. The Court’s further determinations, based on practical considerations, were integral to Part II of its opinion and came before the decision announced its holding. See 339 U. S., at 781. Second, because the United States lacked both de jure sovereignty and plenary control over Landsberg Prison, see infra , at 34–35, it is far from clear that the Eisentrager Court used the term sovereignty only in the narrow technical sense and not to connote the degree of control the military asserted over the facility. See supra , at 21. The Justices who decided Eisentrager would have understood sovereignty as a multifaceted concept. See Black’s Law Dictionary 1568 (4th ed. 1951) (defining “sovereignty” as “[t]he supreme, absolute, and uncontrollable power by which any independent state is governed”; “the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation”; and “[t]he power to do everything in a state without accountability”); Ballentine’s Law Dictionary with Pronunciations 1216 (2d ed. 1948) (defining “sovereignty” as “[t]hat public authority which commands in civil society, and orders and directs what each citizen is to perform to obtain the end of its institution”). In its principal brief in Eisentrager , the Government advocated a bright-line test for determining the scope of the writ, similar to the one it advocates in these cases. See Brief for Petitioners in Johnson v. Eisentrager, O. T. 1949, No. 306, pp. 74–75. Yet the Court mentioned the concept of territorial sovereignty only twice in its opinion. See Eisentrager , supra , at 778, 780. That the Court devoted a significant portion of Part II to a discussion of practical barriers to the running of the writ suggests that the Court was not concerned exclusively with the formal legal status of Landsberg Prison but also with the objective degree of control the United States asserted over it. Even if we assume the Eisentrager Court considered the United States’ lack of formal legal sovereignty over Landsberg Prison as the decisive factor in that case, its holding is not inconsistent with a functional approach to questions of extraterritoriality. The formal legal status of a given territory affects, at least to some extent, the political branches’ control over that territory. De jure sovereignty is a factor that bears upon which constitutional guarantees apply there. Third, if the Government’s reading of Eisentrager were correct, the opinion would have marked not only a change in, but a complete repudiation of, the Insular Cases’ (and later Reid ’s) functional approach to questions of extraterritoriality. We cannot accept the Government’s view. Nothing in Eisentrager says that de jure sovereignty is or has ever been the only relevant consideration in determining the geographic reach of the Constitution or of habeas corpus. Were that the case, there would be considerable tension between Eisentrager , on the one hand, and the Insular Cases and Reid , on the other. Our cases need not be read to conflict in this manner. A constricted reading of Eisentrager overlooks what we see as a common thread uniting the Insular Cases, Eisentrager , and Reid: the idea that questions of extraterritoriality turn on objective factors and practical concerns, not formalism. B The Government’s formal sovereignty-based test raises troubling separation-of-powers concerns as well. The political history of Guantanamo illustrates the deficiencies of this approach. The United States has maintained complete and uninterrupted control of the bay for over 100 years. At the close of the Spanish-American War, Spain ceded control over the entire island of Cuba to the United States and specifically “relinquishe[d] all claim[s] of sovereignty … and title.” See Treaty of Paris, Dec. 10, 1898, U. S.-Spain, Art. I, 30 Stat. 1755, T. S. No. 343. From the date the treaty with Spain was signed until the Cuban Republic was established on May 20, 1902, the United States governed the territory “in trust” for the benefit of the Cuban people. Neely v. Henkel , 180 U. S. 109 , 120 (1901); H. Thomas, Cuba or The Pursuit of Freedom 436, 460 (1998). And although it recognized, by entering into the 1903 Lease Agreement, that Cuba retained “ultimate sovereignty” over Guantanamo, the United States continued to maintain the same plenary control it had enjoyed since 1898. Yet the Government’s view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey , 114 U. S. 15 , 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison , 1 Cranch 137, 177 (1803). These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain. C As we recognized in Rasul , 542 U. S., at 476; id. , at 487 (Kennedy, J., concurring in judgment), the outlines of a framework for determining the reach of the Suspension Clause are suggested by the factors the Court relied upon in Eisentrager . In addition to the practical concerns discussed above, the Eisentrager Court found relevant that each petitioner: “(a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.” 339 U. S., at 777. Based on this language from Eisentrager , and the reasoning in our other extraterritoriality opinions, we conclude that at least three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. Applying this framework, we note at the onset that the status of these detainees is a matter of dispute. The petitioners, like those in Eisentrager , are not American citizens. But the petitioners in Eisentrager did not contest, it seems, the Court’s assertion that they were “enemy alien[s].” Ibid. In the instant cases, by contrast, the detainees deny they are enemy combatants. They have been afforded some process in CSRT proceedings to determine their status; but, unlike in Eisentrager, supra , at 766, there has been no trial by military commission for violations of the laws of war. The difference is not trivial. The records from the Eisentrager trials suggest that, well before the petitioners brought their case to this Court, there had been a rigorous adversarial process to test the legality of their detention. The Eisentrager petitioners were charged by a bill of particulars that made detailed factual allegations against them. See 14 United Nations War Crimes Commission, Law Reports of Trials of War Criminals 8–10 (1949) (reprint 1997). To rebut the accusations, they were entitled to representation by counsel, allowed to introduce evidence on their own behalf, and permitted to cross-examine the prosecution’s witnesses. See Memorandum by Command of Lt. Gen. Wedemeyer, Jan. 21, 1946 (establishing “Regulations Governing the Trial of War Criminals” in the China Theater), in Tr. of Record in Johnson v. Eisentrager, O. T. 1949, No. 306, pp. 34–40. In comparison the procedural protections afforded to the detainees in the CSRT hearings are far more limited, and, we conclude, fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review. Although the detainee is assigned a “Personal Representative” to assist him during CSRT proceedings, the Secretary of the Navy’s memorandum makes clear that person is not the detainee’s lawyer or even his “advocate.” See App. to Pet. for Cert. in No. 06–1196, at 155, 172. The Government’s evidence is accorded a presumption of validity. Id. , at 159. The detainee is allowed to present “reasonably available” evidence, id. , at 155, but his ability to rebut the Government’s evidence against him is limited by the circumstances of his confinement and his lack of counsel at this stage. And although the detainee can seek review of his status determination in the Court of Appeals, that review process cannot cure all defects in the earlier proceedings. See Part V, infra . As to the second factor relevant to this analysis, the detainees here are similarly situated to the Eisentrager petitioners in that the sites of their apprehension and detention are technically outside the sovereign territory of the United States. As noted earlier, this is a factor that weighs against finding they have rights under the Suspension Clause. But there are critical differences between Landsberg Prison, circa 1950, and the United States Naval Station at Guantanamo Bay in 2008. Unlike its present control over the naval station, the United States’ control over the prison in Germany was neither absolute nor indefinite. Like all parts of occupied Germany, the prison was under the jurisdiction of the combined Allied Forces. See Declaration Regarding the Defeat of Germany and the Assumption of Supreme Authority with Respect to Germany, June 5, 1945, U. S.-U. S. S. R.-U. K.-Fr., 60 Stat. 1649, T. I. A. S. No. 1520. The United States was therefore answerable to its Allies for all activities occurring there. Cf. Hirota v. MacArthur , 338 U. S. 197 , 198 (1948) (per curiam) (military tribunal set up by Gen. Douglas MacArthur, acting as “the agent of the Allied Powers,” was not a “tribunal of the United States”). The Allies had not planned a long-term occupation of Germany, nor did they intend to displace all German institutions even during the period of occupation. See Agreements Respecting Basic Principles for Merger of the Three Western German Zones of Occupation, and Other Matters, Apr. 8, 1949, U. S.-U. K.-Fr., Art. 1, 63 Stat. 2819, T. I. A. S. No. 2066 (establishing a governing framework “[d]uring the period in which it is necessary that the occupation continue” and expressing the desire “that the German people shall enjoy self-government to the maximum possible degree consistent with such occupation”). The Court’s holding in Eisentrager was thus consistent with the Insular Cases, where it had held there was no need to extend full constitutional protections to territories the United States did not intend to govern indefinitely. Guantanamo Bay, on the other hand, is no transient possession. In every practical sense Guantanamo is not abroad; it is within the constant jurisdiction of the United States. See Rasul , 542 U. S., at 480; id. , at 487 (Kennedy, J., concurring in judgment). As to the third factor, we recognize, as the Court did in Eisentrager , that there are costs to holding the Suspension Clause applicable in a case of military detention abroad. Habeas corpus proceedings may require expenditure of funds by the Government and may divert the attention of military personnel from other pressing tasks. While we are sensitive to these concerns, we do not find them dispositive. Compliance with any judicial process requires some incremental expenditure of resources. Yet civilian courts and the Armed Forces have functioned along side each other at various points in our history. See, e.g., Duncan v. Kahanamoku , 327 U. S. 304 (1946); Ex parte Milligan , 4 Wall. 2 (1866). The Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims. And in light of the plenary control the United States asserts over the base, none are apparent to us. The situation in Eisentrager was far different, given the historical context and nature of the military’s mission in post-War Germany. When hostilities in the European Theater came to an end, the United States became responsible for an occupation zone encompassing over 57,000 square miles with a population of 18 million. See Letter from President Truman to Secretary of State Byrnes, (Nov. 28, 1945), in 8 Documents on American Foreign Relations 257 (R. Dennett & R. Turner eds. 1948); Pollock, A Territorial Pattern for the Military Occupation of Germany, 38 Am. Pol. Sci. Rev. 970, 975 (1944). In addition to supervising massive reconstruction and aid efforts the American forces stationed in Germany faced potential security threats from a defeated enemy. In retrospect the post-War occupation may seem uneventful. But at the time Eisentrager was decided, the Court was right to be concerned about judicial interference with the military’s efforts to contain “enemy elements, guerilla fighters, and ‘were-wolves.’ ” 339 U. S., at 784. Similar threats are not apparent here; nor does the Government argue that they are. The United States Naval Station at Guantanamo Bay consists of 45 square miles of land and water. The base has been used, at various points, to house migrants and refugees temporarily. At present, however, other than the detainees themselves, the only long-term residents are American military personnel, their families, and a small number of workers. See History of Guantanamo Bay online at https://www.cnic. navy.mil/Guantanamo/AboutGTMO/gtmohistorygeneral/ gtmohistgeneral. The detainees have been deemed enemies of the United States. At present, dangerous as they may be if released, they are contained in a secure prison facility located on an isolated and heavily fortified military base. There is no indication, furthermore, that adjudicating a habeas corpus petition would cause friction with the host government. No Cuban court has jurisdiction over American military personnel at Guantanamo or the enemy combatants detained there. While obligated to abide by the terms of the lease, the United States is, for all practical purposes, answerable to no other sovereign for its acts on the base. Were that not the case, or if the detention facility were located in an active theater of war, arguments that issuing the writ would be “impracticable or anomalous” would have more weight. See Reid , 354 U. S., at 74 (Harlan, J., concurring in result). Under the facts presented here, however, there are few practical barriers to the running of the writ. To the extent barriers arise, habeas corpus procedures likely can be modified to address them. See Part VI–B, infra . It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding. We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. Cf. Hamdi, 542 U. S., at 564 (Scalia, J., dissenting) (“[I]ndefinite imprisonment on reasonable suspicion is not an available option of treatment for those accused of aiding the enemy, absent a suspension of the writ”). This Court may not impose a de facto suspension by abstaining from these controversies. See Hamdan , 548 U. S., at 585, n. 16 (“[A]bstention is not appropriate in cases … in which the legal challenge ‘turn[s] on the status of the persons as to whom the military asserted its power’ ” (quoting Schlesinger v. Councilman , 420 U. S. 738 , 759 (1975))). The MCA does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention. V In light of this holding the question becomes whether the statute stripping jurisdiction to issue the writ avoids the Suspension Clause mandate because Congress has provided adequate substitute procedures for habeas corpus. The Government submits there has been compliance with the Suspension Clause because the DTA review process in the Court of Appeals, see DTA §1005(e), provides an adequate substitute. Congress has granted that court jurisdiction to consider “(i) whether the status determination of the [CSRT] … was consistent with the standards and procedures specified by the Secretary of Defense … and (ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.” §1005(e)(2)(C), 119 Stat. 2742. The Court of Appeals, having decided that the writ does not run to the detainees in any event, found it unnecessary to consider whether an adequate substitute has been provided. In the ordinary course we would remand to the Court of Appeals to consider this question in the first instance. See Youakim v. Miller , 425 U. S. 231 , 234 (1976) (per curiam) . It is well settled, however, that the Court’s practice of declining to address issues left unresolved in earlier proceedings is not an inflexible rule. Ibid. Departure from the rule is appropriate in “exceptional” circumstances. See Cooper Industries, Inc. v. Aviall Services, Inc. , 543 U. S. 157 , 169 (2004); Duignan v. United States , 274 U. S. 195 , 200 (1927). The gravity of the separation-of-powers issues raised by these cases and the fact that these detainees have been denied meaningful access to a judicial forum for a period of years render these cases exceptional. The parties before us have addressed the adequacy issue. While we would have found it informative to consider the reasoning of the Court of Appeals on this point, we must weigh that against the harms petitioners may endure from additional delay. And, given there are few precedents addressing what features an adequate substitute for habeas corpus must contain, in all likelihood a remand simply would delay ultimate resolution of the issue by this Court. We do have the benefit of the Court of Appeals’ construction of key provisions of the DTA. When we granted certiorari in these cases, we noted “it would be of material assistance to consult any decision” in the parallel DTA review proceedings pending in the Court of Appeals, specifically any rulings in the matter of Bismullah v. Gates . 551 U. S. ___ (2007). Although the Court of Appeals has yet to complete a DTA review proceeding, the three-judge panel in Bismullah has issued an interim order giving guidance as to what evidence can be made part of the record on review and what access the detainees can have to counsel and to classified information. See 501 F. 3d 178 (CADC) (Bismullah I) , reh’g denied, 503 F. 3d 137 (CADC 2007) (Bismullah II) . In that matter the full court denied the Government’s motion for rehearing en banc, see Bismullah v. Gates , 514 F. 3d 1291 (CADC 2008) (Bismullah III) . The order denying rehearing was accompanied by five separate statements from members of the court, which offer differing views as to scope of the judicial review Congress intended these detainees to have. Ibid . Under the circumstances we believe the costs of further delay substantially outweigh any benefits of remanding to the Court of Appeals to consider the issue it did not address in these cases. A Our case law does not contain extensive discussion of standards defining suspension of the writ or of circumstances under which suspension has occurred. This simply confirms the care Congress has taken throughout our Nation’s history to preserve the writ and its function. Indeed, most of the major legislative enactments pertaining to habeas corpus have acted not to contract the writ’s protection but to expand it or to hasten resolution of prisoners’ claims. See, e.g. , Habeas Corpus Act of 1867, ch. 28, §1, 14 Stat. 385 (current version codified at 28 U. S. C. §2241 (2000 ed. and Supp. V) (extending the federal writ to state prisoners)); Cf. Harris v. Nelson , 394 U. S. 286 , 299–300 (1969) (interpreting the All Writs Act, 28 U. S. C. §1651, to allow discovery in habeas corpus proceedings); Peyton v. Rowe , 391 U. S. 54 , 64–65 (1968) (interpreting the then-existing version of §2241 to allow petitioner to proceed with his habeas corpus action, even though he had not yet begun to serve his sentence). There are exceptions, of course. Title I of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), §106, 110 Stat. 1220, contains certain gatekeeping provisions that restrict a prisoner’s ability to bring new and repetitive claims in “second or successive” habeas corpus actions. We upheld these provisions against a Suspension Clause challenge in Felker v. Turpin , 518 U. S. 651 , 662–664 (1996). The provisions at issue in Felker , however, did not constitute a substantial departure from common-law habeas procedures. The provisions, for the most part, codified the longstanding abuse-of-the-writ doctrine. Id. , at 664; see also McCleskey v. Zant , 499 U. S. 467 , 489 (1991). AEDPA applies, moreover, to federal, postconviction review after criminal proceedings in state court have taken place. As of this point, cases discussing the implementation of that statute give little helpful instruction (save perhaps by contrast) for the instant cases, where no trial has been held. The two leading cases addressing habeas substitutes, Swain v. Pressley , 430 U. S. 372 (1977), and United States v. Hayman , 342 U. S. 205 (1952), likewise provide little guidance here. The statutes at issue were attempts to streamline habeas corpus relief, not to cut it back. The statute discussed in Hayman was 28 U. S. C. §2255. It replaced traditional habeas corpus for federal prisoners (at least in the first instance) with a process that allowed the prisoner to file a motion with the sentencing court on the ground that his sentence was, inter alia , “ ‘imposed in violation of the Constitution or laws of the United States.’ ” 342 U. S., at 207, n. 1. The purpose and effect of the statute was not to restrict access to the writ but to make postconviction proceedings more efficient. It directed claims not to the court that had territorial jurisdiction over the place of the petitioner’s confinement but to the sentencing court, a court already familiar with the facts of the case. As the Hayman Court explained “Section 2255 … was passed at the instance of the Judicial Conference to meet practical difficulties that had arisen in administering the habeas corpus jurisdiction of the federal courts. Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners’ rights of collateral attack upon their convictions. On the contrary, the sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum.” Id. , at 219. See also Hill v. United States , 368 U. S. 424 , 427, 428, and n. 5 (1962) (noting that §2255 provides a remedy in the sentencing court that is “exactly commensurate” with the pre-existing federal habeas corpus remedy). The statute in Swain , D. C. Code Ann. §23–110(g) (1973), applied to prisoners in custody under sentence of the Superior Court of the District of Columbia. Before enactment of the District of Columbia Court Reform and Criminal Procedure Act of 1970 (D. C. Court Reform Act), 84 Stat. 473, those prisoners could file habeas petitions in the United States District Court for the District of Columbia. The Act, which was patterned on §2255, substituted a new collateral process in the Superior Court for the pre-existing habeas corpus procedure in the District Court. See Swain , 430 U. S., at 374–378. But, again, the purpose and effect of the statute was to expedite consideration of the prisoner’s claims, not to delay or frustrate it. See id ., at 375, n. 4 (noting that the purpose of the D. C. Court Reform Act was to “alleviate” administrative burdens on the District Court). That the statutes in Hayman and Swain were designed to strengthen, rather than dilute, the writ’s protections was evident, furthermore, from this significant fact: Neither statute eliminated traditional habeas corpus relief. In both cases the statute at issue had a saving clause, providing that a writ of habeas corpus would be available if the alternative process proved inadequate or ineffective. Swain , supra , at 381; Hayman , supra , at 223. The Court placed explicit reliance upon these provisions in upholding the statutes against constitutional challenges. See Swain , supra , at 381 (noting that the provision “avoid[ed] any serious question about the constitutionality of the statute”); Hayman , supra , at 223 (noting that, because habeas remained available as a last resort, it was unnecessary to “reach constitutional questions”). Unlike in Hayman and Swain , here we confront statutes, the DTA and the MCA, that were intended to circumscribe habeas review. Congress’ purpose is evident not only from the unequivocal nature of MCA §7’s jurisdiction-stripping language, 28 U. S. C. A. §2241(e)(1) (Supp. 2007) (“No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus . . .”), but also from a comparison of the DTA to the statutes at issue in Hayman and Swain. When interpreting a statute, we examine related provisions in other parts of the U. S. Code. See, e.g., West Virginia Univ. Hospitals, Inc. v. Casey , 499 U. S. 83 , 88–97 (1991); Babbitt v. Sweet Home Chapter, Communities for Great Ore. , 515 U. S. 687 , 717–718 (1995) (Scalia, J., dissenting); see generally W. Eskridge, P. Frickey, & E. Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 1039 (3d ed. 2001). When Congress has intended to replace traditional habeas corpus with habeas-like substitutes, as was the case in Hayman and Swain , it has granted to the courts broad remedial powers to secure the historic office of the writ. In the §2255 context, for example, Congress has granted to the reviewing court power to “determine the issues and make findings of fact and conclusions of law” with respect to whether “the judgment [of conviction] was rendered without jurisdiction, or … the sentence imposed was not authorized by law or otherwise open to collateral attack.” 28 U. S. C. A. §2255(b) (Supp. 2008). The D. C. Court Reform Act, the statute upheld in Swain , contained a similar provision. §23–110(g), 84 Stat. 609. In contrast the DTA’s jurisdictional grant is quite limited. The Court of Appeals has jurisdiction not to inquire into the legality of the detention generally but only to assess whether the CSRT complied with the “standards and procedures specified by the Secretary of Defense” and whether those standards and procedures are lawful. DTA §1005(e)(2)(C), 119 Stat. 2742. If Congress had envisioned DTA review as coextensive with traditional habeas corpus, it would not have drafted the statute in this manner. Instead, it would have used language similar to what it used in the statutes at issue in Hayman and Swain . Cf. Russello v. United States , 464 U. S. 16 , 23 (1983) (“ ‘[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion’ ” (quoting United States v. Wong Kim Bo , 472 F. 2d 720, 722 (CA5 1972))). Unlike in Hayman and Swain , moreover, there has been no effort to preserve habeas corpus review as an avenue of last resort. No saving clause exists in either the MCA or the DTA. And MCA §7 eliminates habeas review for these petitioners. The differences between the DTA and the habeas statute that would govern in MCA §7’s absence, 28 U. S. C. §2241 (2000 ed. and Supp. V), are likewise telling. In §2241 (2000 ed.) Congress confirmed the authority of “any justice” or “circuit judge” to issue the writ. Cf. Felker , 518 U. S., at 660–661 (interpreting Title I of AEDPA to not strip from this Court the power to entertain original habeas corpus petitions). That statute accommodates the necessity for factfinding that will arise in some cases by allowing the appellate judge or Justice to transfer the case to a district court of competent jurisdiction, whose institutional capacity for factfinding is superior to his or her own. See 28 U. S. C. §2241(b). By granting the Court of Appeals “exclusive” jurisdiction over petitioners’ cases, see DTA §1005(e)(2)(A), 119 Stat. 2742, Congress has foreclosed that option. This choice indicates Congress intended the Court of Appeals to have a more limited role in enemy combatant status determinations than a district court has in habeas corpus proceedings. The DTA should be interpreted to accord some latitude to the Court of Appeals to fashion procedures necessary to make its review function a meaningful one, but, if congressional intent is to be respected, the procedures adopted cannot be as extensive or as protective of the rights of the detainees as they would be in a §2241 proceeding. Otherwise there would have been no, or very little, purpose for enacting the DTA. To the extent any doubt remains about Congress’ intent, the legislative history confirms what the plain text strongly suggests: In passing the DTA Congress did not intend to create a process that differs from traditional habeas corpus process in name only. It intended to create a more limited procedure. See, e.g. , 151 Cong. Rec. S14263 (Dec. 21, 2005) (statement of Sen. Graham) (noting that the DTA “extinguish[es] these habeas and other actions in order to effect a transfer of jurisdiction over these cases to the DC Circuit Court” and agreeing that the bill “create[s] in their place a very limited judicial review of certain military administrative decisions”); id. , at S14268 (statement of Sen. Kyl) (“It is important to note that the limited judicial review authorized by paragraphs 2 and 3 of subsection (e) [of DTA §1005] are not habeas-corpus review. It is a limited judicial review of its own nature”). It is against this background that we must interpret the DTA and assess its adequacy as a substitute for habeas corpus. The present cases thus test the limits of the Suspension Clause in ways that Hayman and Swain did not. B We do not endeavor to offer a comprehensive summary of the requisites for an adequate substitute for habeas corpus. We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to “the erroneous application or interpretation” of relevant law. St. Cyr , 533 U. S., at 302. And the habeas court must have the power to order the conditional release of an individual unlawfully detained—though release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted. See Ex parte Bollman , 4 Cranch 75, 136 (1807) (where imprisonment is unlawful, the court “can only direct [the prisoner] to be discharged”); R. Hurd, Treatise on the Right of Personal Liberty, and On the Writ of Habeas Corpus and the Practice Connected with It: With a View of the Law of Extradition of Fugitives 222 (2d ed. 1876) (“It cannot be denied where ‘a probable ground is shown that the party is imprisoned without just cause, and therefore, hath a right to be delivered,’ for the writ then becomes a ‘writ of right, which may not be denied but ought to be granted to every man that is committed or detained in prison or otherwise restrained of his liberty’ ”). But see Chessman v. Teets , 354 U. S. 1 56, 165–166 (1957) (remanding in a habeas case for retrial within a “reasonable time”). These are the easily identified attributes of any constitutionally adequate habeas corpus proceeding. But, depending on the circumstances, more may be required. Indeed, common-law habeas corpus was, above all, an adaptable remedy. Its precise application and scope changed depending upon the circumstances. See 3 Blackstone *131 (describing habeas as “the great and efficacious writ, in all manner of illegal confinement”); see also Schlup v. Delo , 513 U. S. 298 , 319 (1995) (Habeas “is, at its core, an equitable remedy”); Jones v. Cunningham , 371 U. S. 236 , 243 (1963) (Habeas is not “a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose”). It appears the common-law habeas court’s role was most extensive in cases of pretrial and noncriminal detention, where there had been little or no previous judicial review of the cause for detention. Notably, the black-letter rule that prisoners could not controvert facts in the jailer’s return was not followed (or at least not with consistency) in such cases. Hurd, supra , at 271 (noting that the general rule was “subject to exceptions” including cases of bail and impressment); Oakes, Legal History in the High Court—Habeas Corpus, 64 Mich. L. Rev. 451, 457 (1966) (“[W]hen a prisoner applied for habeas corpus before indictment or trial, some courts examined the written depositions on which he had been arrested or committed, and others even heard oral testimony to determine whether the evidence was sufficient to justifying holding him for trial” (footnotes omitted)); Fallon & Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror, 120 Harv. L. Rev. 2029, 2102 (2007) (“[T]he early practice was not consistent: courts occasionally permitted factual inquiries when no other opportunity for judicial review existed”). There is evidence from 19th-century American sources indicating that, even in States that accorded strong res judicata effect to prior adjudications, habeas courts in this country routinely allowed prisoners to introduce exculpatory evidence that was either unknown or previously unavailable to the prisoner. See, e.g. , Ex parte Pattison , 56 Miss. 161, 164 (1878) (noting that “[w]hile the former adjudication must be considered as conclusive on the testimony then adduced” “newly developed exculpatory evidence … may authorize the admission to bail”); Ex parte Foster , 5 Tex. Ct. App. 625, 644 (1879) (construing the State’s habeas statute to allow for the introduction of new evidence “where important testimony has been obtained, which, though not newly discovered, or which, though known to [the petitioner], it was not in his power to produce at the former hearing; [and] where the evidence was newly discovered”); People v. Martin , 7 N. Y. Leg. Obs. 49, 56 (1848) (“If in custody on criminal process before indictment, the prisoner has an absolute right to demand that the original depositions be looked into to see whether any crime is in fact imputed to him, and the inquiry will by no means be confined to the return. Facts out of the return may be gone into to ascertain whether the committing magistrate may not have arrived at an illogical conclusion upon the evidence given before him …”); see generally W. Church, Treatise on the Writ of Habeas Corpus §182, p. 235 1886) (hereinafter Church) (noting that habeas courts would “hear evidence anew if justice require it”). Justice McLean, on Circuit in 1855, expressed his view that a habeas court should consider a prior judgment conclusive “where there was clearly jurisdiction and a full and fair hearing; but that it might not be so considered when any of these requisites were wanting.” Ex parte Robinson , 20 F. Cas. 969, 971, (No. 11,935) (CC Ohio 1855). To illustrate the circumstances in which the prior adjudication did not bind the habeas court, he gave the example of a case in which “[s]everal unimpeached witnesses” provided new evidence to exculpate the prisoner. Ibid . The idea that the necessary scope of habeas review in part depends upon the rigor of any earlier proceedings accords with our test for procedural adequacy in the due process context. See Mathews v. Eldridge , 424 U. S. 319 , 335 (1976) (noting that the Due Process Clause requires an assessment of, inter alia , “the risk of an erroneous deprivation of [a liberty interest;] and the probable value, if any, of additional or substitute procedural safeguards”). This principle has an established foundation in habeas corpus jurisprudence as well, as Chief Justice Marshall’s opinion in Ex parte Watkins , 3 Pet. 193 (1830), demonstrates. Like the petitioner in Swain , Watkins sought a writ of habeas corpus after being imprisoned pursuant to a judgment of a District of Columbia court. In holding that the judgment stood on “high ground,” 3 Pet., at 209, the Chief Justice emphasized the character of the court that rendered the original judgment, noting it was a “court of record, having general jurisdiction over criminal cases.” Id. , at 203. In contrast to “inferior” tribunals of limited jurisdiction, ibid. , courts of record had broad remedial powers, which gave the habeas court greater confidence in the judgment’s validity. See generally Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 982–983 (1998). Accordingly, where relief is sought from a sentence that resulted from the judgment of a court of record, as was the case in Watkins and indeed in most federal habeas cases, considerable deference is owed to the court that ordered confinement. See Brown v. Allen , 344 U. S. 443 , 506 (1953) (opinion of Frankfurter, J.) (noting that a federal habeas court should accept a state court’s factual findings unless “a vital flaw be found in the process of ascertaining such facts in the State court”). Likewise in those cases the prisoner should exhaust adequate alternative remedies before filing for the writ in federal court. See Ex parte Royall , 117 U. S. 241 , 251–252 (1886) (requiring exhaustion of state collateral processes). Both aspects of federal habeas corpus review are justified because it can be assumed that, in the usual course, a court of record provides defendants with a fair, adversary proceeding. In cases involving state convictions this framework also respects federalism; and in federal cases it has added justification because the prisoner already has had a chance to seek review of his conviction in a federal forum through a direct appeal. The present cases fall outside these categories, however; for here the detention is by executive order. Where a person is detained by executive order, rather than, say, after being tried and convicted in a court, the need for collateral review is most pressing. A criminal conviction in the usual course occurs after a judicial hearing before a tribunal disinterested in the outcome and committed to procedures designed to ensure its own independence. These dynamics are not inherent in executive detention orders or executive review procedures. In this context the need for habeas corpus is more urgent. The intended duration of the detention and the reasons for it bear upon the precise scope of the inquiry. Habeas corpus proceedings need not resemble a criminal trial, even when the detention is by executive order. But the writ must be effective. The habeas court must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive’s power to detain. To determine the necessary scope of habeas corpus review, therefore, we must assess the CSRT process, the mechanism through which petitioners’ designation as enemy combatants became final. Whether one characterizes the CSRT process as direct review of the Executive’s battlefield determination that the detainee is an enemy combatant—as the parties have and as we do—or as the first step in the collateral review of a battlefield determination makes no difference in a proper analysis of whether the procedures Congress put in place are an adequate substitute for habeas corpus. What matters is the sum total of procedural protections afforded to the detainee at all stages, direct and collateral. Petitioners identify what they see as myriad deficiencies in the CSRTs. The most relevant for our purposes are the constraints upon the detainee’s ability to rebut the factual basis for the Government’s assertion that he is an enemy combatant. As already noted, see Part IV–C, supra , at the CSRT stage the detainee has limited means to find or present evidence to challenge the Government’s case against him. He does not have the assistance of counsel and may not be aware of the most critical allegations that the Government relied upon to order his detention. See App. to Pet. for Cert. in No. 06–1196, at 156, ¶F(8) (noting that the detainee can access only the “unclassified portion of the Government Information”). The detainee can confront witnesses that testify during the CSRT proceedings. Id. , at 144, ¶ g (8). But given that there are in effect no limits on the admission of hearsay evidence—the only requirement is that the tribunal deem the evidence “relevant and helpful,” ibid., ¶ g (9)—the detainee’s opportunity to question witnesses is likely to be more theoretical than real. The Government defends the CSRT process, arguing that it was designed to conform to the procedures suggested by the plurality in Hamdi . See 542 U. S., at 538. Setting aside the fact that the relevant language in Hamdi did not garner a majority of the Court, it does not control the matter at hand. None of the parties in Hamdi argued there had been a suspension of the writ. Nor could they. The §2241 habeas corpus process remained in place, id. , at 525. Accordingly, the plurality concentrated on whether the Executive had the authority to detain and, if so, what rights the detainee had under the Due Process Clause. True, there are places in the Hamdi plurality opinion where it is difficult to tell where its extrapolation of §2241 ends and its analysis of the petitioner’s Due Process rights begins. But the Court had no occasion to define the necessary scope of habeas review, for Suspension Clause purposes, in the context of enemy combatant detentions. The closest the plurality came to doing so was in discussing whether, in light of separation-of-powers concerns, §2241 should be construed to forbid the District Court from inquiring beyond the affidavit Hamdi’s custodian provided in answer to the detainee’s habeas petition. The plurality answered this question with an emphatic “no.” Id ., at 527 (labeling this argument as “extreme”); id ., at 535–536. Even if we were to assume that the CSRTs satisfy due process standards, it would not end our inquiry. Habeas corpus is a collateral process that exists, in Justice Holmes’ words, to “cu[t] through all forms and g[o] to the very tissue of the structure. It comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved opens the inquiry whether they have been more than an empty shell.” Frank v. Mangum , 237 U. S. 309 , 346 (1915) (dissenting opinion). Even when the procedures authorizing detention are structurally sound, the Suspension Clause remains applicable and the writ relevant. See 2 Chambers, Course of Lectures on English Law 1767–1773, at 6 (“Liberty may be violated either by arbitrary imprisonment without law or the appearance of law, or by a lawful magistrate for an unlawful reason”). This is so, as Hayman and Swain make clear, even where the prisoner is detained after a criminal trial conducted in full accordance with the protections of the Bill of Rights. Were this not the case, there would have been no reason for the Court to inquire into the adequacy of substitute habeas procedures in Hayman and Swain . That the prisoners were detained pursuant to the most rigorous proceedings imaginable, a full criminal trial, would have been enough to render any habeas substitute acceptable per se . Although we make no judgment as to whether the CSRTs, as currently constituted, satisfy due process standards, we agree with petitioners that, even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal’s findings of fact. This is a risk inherent in any process that, in the words of the former Chief Judge of the Court of Appeals, is “closed and accusatorial.” See Bismullah III , 514 F. 3d, at 1296 (Ginsburg, C. J., concurring in denial of rehearing en banc). And given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore. For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government’s evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding. Federal habeas petitioners long have had the means to supplement the record on review, even in the postconviction habeas setting. See Townsend v. Sain , 372 U. S. 293 , 313 (1963), overruled in part by Keeney v. Tamayo-Reyes , 504 U. S. 1 , 5 (1992). Here that opportunity is constitutionally required. Consistent with the historic function and province of the writ, habeas corpus review may be more circumscribed if the underlying detention proceedings are more thorough than they were here. In two habeas cases involving enemy aliens tried for war crimes, In re Yamashita , 327 U. S. 1 (1946), and Ex parte Quirin , 317 U. S. 1 (1942), for example, this Court limited its review to determining whether the Executive had legal authority to try the petitioners by military commission. See Yamashita , supra , at 8 (“[O]n application for habeas corpus we are not concerned with the guilt or innocence of the petitioners. We consider here only the lawful power of the commission to try the petitioner for the offense charged”); Quirin , supra , at 25 (“We are not here concerned with any question of the guilt or innocence of petitioners”). Military courts are not courts of record. See Watkins , 3 Pet., at 209; Church 513. And the procedures used to try General Yamashita have been sharply criticized by Members of this Court. See Hamdan , 548 U. S., at 617; Yamashita , supra , at 41–81 (Rutledge, J., dissenting). We need not revisit these cases, however. For on their own terms, the proceedings in Yamashita and Quirin , like those in Eisentrager , had an adversarial structure that is lacking here. See Yamashita , supra , at 5 (noting that General Yamashita was represented by six military lawyers and that “[t]hroughout the proceedings … defense counsel … demonstrated their professional skill and resourcefulness and their proper zeal for the defense with which they were charged”); Quirin , supra , at 23–24; Exec. Order No. 9185, 7 Fed. Reg. 5103 (1942) (appointing counsel to represent the German saboteurs). The extent of the showing required of the Government in these cases is a matter to be determined. We need not explore it further at this stage. We do hold that when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release. C We now consider whether the DTA allows the Court of Appeals to conduct a proceeding meeting these standards. “[W]e are obligated to construe the statute to avoid [constitutional] problems” if it is “ ‘fairly possible’ ” to do so. St. Cyr , 533 U. S., at 299–300 (quoting Crowell v. Benson , 285 U. S. 22 , 62 (1932)). There are limits to this principle, however. The canon of constitutional avoidance does not supplant traditional modes of statutory interpretation. See Clark v. Martinez , 543 U. S. 371 , 385 (2005) (“The canon of constitutional avoidance comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction; and the canon functions as a means of choosing between them ”). We cannot ignore the text and purpose of a statute in order to save it. The DTA does not explicitly empower the Court of Appeals to order the applicant in a DTA review proceeding released should the court find that the standards and procedures used at his CSRT hearing were insufficient to justify detention. This is troubling. Yet, for present purposes, we can assume congressional silence permits a constitutionally required remedy. In that case it would be possible to hold that a remedy of release is impliedly provided for. The DTA might be read, furthermore, to allow the petitioners to assert most, if not all, of the legal claims they seek to advance, including their most basic claim: that the President has no authority under the AUMF to detain them indefinitely. (Whether the President has such authority turns on whether the AUMF authorizes—and the Constitution permits—the indefinite detention of “enemy combatants” as the Department of Defense defines that term. Thus a challenge to the President’s authority to detain is, in essence, a challenge to the Department’s definition of enemy combatant, a “standard” used by the CSRTs in petitioners’ cases.) At oral argument, the Solicitor General urged us to adopt both these constructions, if doing so would allow MCA §7 to remain intact. See Tr. of Oral Arg. 37, 53. The absence of a release remedy and specific language allowing AUMF challenges are not the only constitutional infirmities from which the statute potentially suffers, however. The more difficult question is whether the DTA permits the Court of Appeals to make requisite findings of fact. The DTA enables petitioners to request “review” of their CSRT determination in the Court of Appeals, DTA §1005(e)(2)(B)(i), 119 Stat. 2742; but the “Scope of Review” provision confines the Court of Appeals’ role to reviewing whether the CSRT followed the “standards and procedures” issued by the Department of Defense and assessing whether those “standards and procedures” are lawful. §1005(e)(C), ibid. Among these standards is “the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence … allowing a rebuttable presumption in favor of the Government’s evidence.” §1005(e)(C)(i), ibid. Assuming the DTA can be construed to allow the Court of Appeals to review or correct the CSRT’s factual determinations, as opposed to merely certifying that the tribunal applied the correct standard of proof, we see no way to construe the statute to allow what is also constitutionally required in this context: an opportunity for the detainee to present relevant exculpatory evidence that was not made part of the record in the earlier proceedings. On its face the statute allows the Court of Appeals to consider no evidence outside the CSRT record. In the parallel litigation, however, the Court of Appeals determined that the DTA allows it to order the production of all “ ‘reasonably available information in the possession of the U. S. Government bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant,’ ” regardless of whether this evidence was put before the CSRT. See Bismullah I , 501 F. 3d, at 180. The Government, see Pet. for Cert. pending in Gates v. Bismullah , No. 07–1054 (hereinafter Bismullah Pet.), with support from five members of the Court of Appeals, see Bismullah III , 514 F. 3d, at 1299 (Henderson, J., dissenting from denial of rehearing en banc); id. , at 1302 (opinion of Randolph, J.) (same); id. , at 1306 (opinion of Brown, J.) (same), disagrees with this interpretation. For present purposes, however, we can assume that the Court of Appeals was correct that the DTA allows introduction and consideration of relevant exculpatory evidence that was “reasonably available” to the Government at the time of the CSRT but not made part of the record. Even so, the DTA review proceeding falls short of being a constitutionally adequate substitute, for the detainee still would have no opportunity to present evidence discovered after the CSRT proceedings concluded. Under the DTA the Court of Appeals has the power to review CSRT determinations by assessing the legality of standards and procedures. This implies the power to inquire into what happened at the CSRT hearing and, perhaps, to remedy certain deficiencies in that proceeding. But should the Court of Appeals determine that the CSRT followed appropriate and lawful standards and procedures, it will have reached the limits of its jurisdiction. There is no language in the DTA that can be construed to allow the Court of Appeals to admit and consider newly discovered evidence that could not have been made part of the CSRT record because it was unavailable to either the Government or the detainee when the CSRT made its findings. This evidence, however, may be critical to the detainee’s argument that he is not an enemy combatant and there is no cause to detain him. This is not a remote hypothetical. One of the petitioners, Mohamed Nechla, requested at his CSRT hearing that the Government contact his employer. The petitioner claimed the employer would corroborate Nechla’s contention he had no affiliation with al Qaeda. Although the CSRT determined this testimony would be relevant, it also found the witness was not reasonably available to testify at the time of the hearing. Petitioner’s counsel, however, now represents the witness is available to be heard. See Brief for Boumediene Petitioners 5. If a detainee can present reasonably available evidence demonstrating there is no basis for his continued detention, he must have the opportunity to present this evidence to a habeas corpus court. Even under the Court of Appeals’ generous construction of the DTA, however, the evidence identified by Nechla would be inadmissible in a DTA review proceeding. The role of an Article III court in the exercise of its habeas corpus function cannot be circumscribed in this manner. By foreclosing consideration of evidence not presented or reasonably available to the detainee at the CSRT proceedings, the DTA disadvantages the detainee by limiting the scope of collateral review to a record that may not be accurate or complete. In other contexts, e.g. , in post-trial habeas cases where the prisoner already has had a full and fair opportunity to develop the factual predicate of his claims, similar limitations on the scope of habeas review may be appropriate. See Williams v. Taylor , 529 U. S. 420 , 436–437 (2000) (noting that §2254 “does not equate prisoners who exercise diligence in pursuing their claims with those who do not”). In this context, however, where the underlying detention proceedings lack the necessary adversarial character, the detainee cannot be held responsible for all deficiencies in the record. The Government does not make the alternative argument that the DTA allows for the introduction of previously unavailable exculpatory evidence on appeal. It does point out, however, that if a detainee obtains such evidence, he can request that the Deputy Secretary of Defense convene a new CSRT. See Supp. Brief for Respondents 4. Whatever the merits of this procedure, it is an insufficient replacement for the factual review these detainees are entitled to receive through habeas corpus. The Deputy Secretary’s determination whether to initiate new proceedings is wholly a discretionary one. See Dept. of Defense, Office for the Administrative Review of the Detention of Enemy Combatants, Instruction 5421.1, Procedure for Review of “New Evidence” Relating to Enemy Combatant (EC) Status ¶5(d) (May 7, 2007) (Instruction 5421.1) (“The decision to convene a CSRT to reconsider the basis of the detainee’s [enemy combatant] status in light of ‘new evidence’ is a matter vested in the unreviewable discretion of the [Deputy Secretary of Defense]”). And we see no way to construe the DTA to allow a detainee to challenge the Deputy Secretary’s decision not to open a new CSRT pursuant to Instruction 5421.1. Congress directed the Secretary of Defense to devise procedures for considering new evidence, see DTA §1005(a)(3), but the detainee has no mechanism for ensuring that those procedures are followed. DTA §1005(e)(2)(C), 119 Stat. 2742, makes clear that the Court of Appeals’ jurisdiction is “limited to consideration of … whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the standards and procedures specified by the Secretary of Defense … and … whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.” DTA §1005(e)(2)(A), ibid., further narrows the Court of Appeals’ jurisdiction to reviewing “any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.” The Deputy Secretary’s determination whether to convene a new CSRT is not a “status determination of the Combatant Status Review Tribunal,” much less a “final decision” of that body. We do not imply DTA review would be a constitutionally sufficient replacement for habeas corpus but for these limitations on the detainee’s ability to present exculpatory evidence. For even if it were possible, as a textual matter, to read into the statute each of the necessary procedures we have identified, we could not overlook the cumulative effect of our doing so. To hold that the detainees at Guantanamo may, under the DTA, challenge the President’s legal authority to detain them, contest the CSRT’s findings of fact, supplement the record on review with exculpatory evidence, and request an order of release would come close to reinstating the §2241 habeas corpus process Congress sought to deny them. The language of the statute, read in light of Congress’ reasons for enacting it, cannot bear this interpretation. Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas corpus. Although we do not hold that an adequate substitute must duplicate §2241 in all respects, it suffices that the Government has not established that the detainees’ access to the statutory review provisions at issue is an adequate substitute for the writ of habeas corpus. MCA §7 thus effects an unconstitutional suspension of the writ. In view of our holding we need not discuss the reach of the writ with respect to claims of unlawful conditions of treatment or confinement. VI A In light of our conclusion that there is no jurisdictional bar to the District Court’s entertaining petitioners’ claims the question remains whether there are prudential barriers to habeas corpus review under these circumstances. The Government argues petitioners must seek review of their CSRT determinations in the Court of Appeals before they can proceed with their habeas corpus actions in the District Court. As noted earlier, in other contexts and for prudential reasons this Court has required exhaustion of alternative remedies before a prisoner can seek federal habeas relief. Most of these cases were brought by prisoners in state custody, e.g. , Ex parte Royall , 117 U. S. 241 , and thus involved federalism concerns that are not relevant here. But we have extended this rule to require defendants in courts-martial to exhaust their military appeals before proceeding with a federal habeas corpus action. See Schlesinger , 420 U. S., at 758. The real risks, the real threats, of terrorist attacks are constant and not likely soon to abate. The ways to disrupt our life and laws are so many and unforeseen that the Court should not attempt even some general catalogue of crises that might occur. Certain principles are apparent, however. Practical considerations and exigent circumstances inform the definition and reach of the law’s writs, including habeas corpus. The cases and our tradition reflect this precept. In cases involving foreign citizens detained abroad by the Executive, it likely would be both an impractical and unprecedented extension of judicial power to assume that habeas corpus would be available at the moment the prisoner is taken into custody. If and when habeas corpus jurisdiction applies, as it does in these cases, then proper deference can be accorded to reasonable procedures for screening and initial detention under lawful and proper conditions of confinement and treatment for a reasonable period of time. Domestic exigencies, furthermore, might also impose such onerous burdens on the Government that here, too, the Judicial Branch would be required to devise sensible rules for staying habeas corpus proceedings until the Government can comply with its requirements in a responsible way. Cf. Ex parte Milligan , 4 Wall., at 127 (“If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then , on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course”). Here, as is true with detainees apprehended abroad, a relevant consideration in determining the courts’ role is whether there are suitable alternative processes in place to protect against the arbitrary exercise of governmental power. The cases before us, however, do not involve detainees who have been held for a short period of time while awaiting their CSRT determinations. Were that the case, or were it probable that the Court of Appeals could complete a prompt review of their applications, the case for requiring temporary abstention or exhaustion of alternative remedies would be much stronger. These qualifications no longer pertain here. In some of these cases six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. And there has been no showing that the Executive faces such onerous burdens that it cannot respond to habeas corpus actions. To require these detainees to complete DTA review before proceeding with their habeas corpus actions would be to require additional months, if not years, of delay. The first DTA review applications were filed over a year ago, but no decisions on the merits have been issued. While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing. Our decision today holds only that the petitioners before us are entitled to seek the writ; that the DTA review procedures are an inadequate substitute for habeas corpus; and that the petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas actions in the District Court. The only law we identify as unconstitutional is MCA §7, 28 U. S. C. A. §2241(e) (Supp. 2007). Accordingly, both the DTA and the CSRT process remain intact. Our holding with regard to exhaustion should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains that detainee’s habeas corpus petition. The CSRT process is the mechanism Congress and the President set up to deal with these issues. Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatant’s habeas corpus petition at least until after the Department, acting via the CSRT, has had a chance to review his status. B Although we hold that the DTA is not an adequate and effective substitute for habeas corpus, it does not follow that a habeas corpus court may disregard the dangers the detention in these cases was intended to prevent. Felker , Swain , and Hayman stand for the proposition that the Suspension Clause does not resist innovation in the field of habeas corpus. Certain accommodations can be made to reduce the burden habeas corpus proceedings will place on the military without impermissibly diluting the protections of the writ. In the DTA Congress sought to consolidate review of petitioners’ claims in the Court of Appeals. Channeling future cases to one district court would no doubt reduce administrative burdens on the Government. This is a legitimate objective that might be advanced even without an amendment to §2241. If, in a future case, a detainee files a habeas petition in another judicial district in which a proper respondent can be served, see Rumsfeld v. Padilla , 542 U. S. 426 , 435–436 (2004), the Government can move for change of venue to the court that will hear these petitioners’ cases, the United States District Court for the District of Columbia. See 28 U. S. C. §1404(a); Braden v. 30th Judicial Circuit Court of Ky. , 410 U. S. 484 , 499, n. 15 (1973). Another of Congress’ reasons for vesting exclusive jurisdiction in the Court of Appeals, perhaps, was to avoid the widespread dissemination of classified information. The Government has raised similar concerns here and elsewhere. See Brief for Respondents 55–56; Bismullah Pet. 30. We make no attempt to anticipate all of the evidentiary and access-to-counsel issues that will arise during the course of the detainees’ habeas corpus proceedings. We recognize, however, that the Government has a legitimate interest in protecting sources and methods of intelligence gathering; and we expect that the District Court will use its discretion to accommodate this interest to the greatest extent possible. Cf. United States v. Reynolds , 345 U. S. 1 , 10 (1953) (recognizing an evidentiary privilege in a civil damages case where “there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged”). These and the other remaining questions are within the expertise and competence of the District Court to address in the first instance. *  *  * In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches. See United States v. Curtiss-Wright Export Corp. , 299 U. S. 304 , 320 (1936). Unlike the President and some designated Members of Congress, neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people. The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security. Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation’s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives. Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek. Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism. Cf. Hamdan , 548 U. S., at 636 (Breyer, J., concurring) (“[J]udicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so”). It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined. We hold that petitioners may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law. The determination by the Court of Appeals that the Suspension Clause and its protections are inapplicable to petitioners was in error. The judgment of the Court of Appeals is reversed. The cases are remanded to the Court of Appeals with instructions that it remand the cases to the District Court for proceedings consistent with this opinion. It is so ordered. SOUTER, J., CONCURRING BOUMEDIENE V. BUSH 553 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NOS. 06-1195 AND 06-1196 LAKHDAR BOUMEDIENE, et al., PETITIONERS 06–1195 v. GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, et al. KHALED A. F. AL ODAH, next friend of FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al., PETITIONERS 06–1196 v. UNITED STATES et al. on writs of certiorari to the united states court of appeals for the district of columbia circuit [June 12, 2008] Justice Souter , with whom Justice Ginsburg and Justice Breyer join, concurring.    I join the Court’s opinion in its entirety and add this afterword only to emphasize two things one might overlook after reading the dissents.    Four years ago, this Court in Rasul v. Bush , 542 U. S. 466 (2004) held that statutory habeas jurisdiction extended to claims of foreign nationals imprisoned by the United States at Guantanamo Bay, “to determine the legality of the Executive’s potentially indefinite detention” of them, id., at 485. Subsequent legislation eliminated the statutory habeas jurisdiction over these claims, so that now there must be constitutionally based jurisdiction or none at all. Justice Scalia is thus correct that here, for the first time, this Court holds there is (he says “confers”) constitutional habeas jurisdiction over aliens imprisoned by the military outside an area of de jure national sovereignty, see post, at 1 (dissenting opinion). But no one who reads the Court’s opinion in Rasul could seriously doubt that the jurisdictional question must be answered the same way in purely constitutional cases, given the Court’s reliance on the historical background of habeas generally in answering the statutory question. See, e.g., 542 U. S., at 473, 481–483, and nn. 11–14. Indeed, the Court in Rasul directly answered the very historical question that Justice Scalia says is dispositive, see post, at 18; it wrote that “[a]pplication of the habeas statute to persons detained at [Guantanamo] is consistent with the historical reach of the writ of habeas corpus,” 542 U. S., at 481. Justice Scalia dismisses the statement as dictum, see post, at 21, but if dictum it was, it was dictum well considered, and it stated the view of five Members of this Court on the historical scope of the writ. Of course, it takes more than a quotation from Rasul, however much on point, to resolve the constitutional issue before us here, which the majority opinion has explored afresh in the detail it deserves. But whether one agrees or disagrees with today’s decision, it is no bolt out of the blue.    A second fact insufficiently appreciated by the dissents is the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years, ante, at 66 (opinion of the Court). Hence the hollow ring when the dissenters suggest that the Court is somehow precipitating the judiciary into reviewing claims that the military (subject to appeal to the Court of Appeals for the District of Columbia Circuit) could handle within some reasonable period of time. See, e.g., post, at 3 (opinion of Roberts, C. J.) (“[T]he Court should have declined to intervene until the D. C. Circuit had assessed the nature and validity of the congressionally mandated proceedings in a given detainee’s case”); post, at 6 (“[I]t is not necessary to consider the availability of the writ until the statutory remedies have been shown to be inadequate”); post, at 8 (“[The Court] rushes to decide the fundamental question of the reach of habeas corpus when the functioning of the DTA may make that decision entirely unnecessary”). These suggestions of judicial haste are all the more out of place given the Court’s realistic acknowledgment that in periods of exigency the tempo of any habeas review must reflect the immediate peril facing the country. See ante, at 64–65.    It is in fact the very lapse of four years from the time Rasul put everyone on notice that habeas process was available to Guantanamo prisoners, and the lapse of six years since some of these prisoners were captured and incarcerated, that stand at odds with the repeated suggestions of the dissenters that these cases should be seen as a judicial victory in a contest for power between the Court and the political branches. See post, at 2, 3, 28 (Roberts, C. J., dissenting); post, at 5, 6, 17, 18, 25 (Scalia, J., dissenting). The several answers to the charge of triumphalism might start with a basic fact of Anglo-American constitutional history: that the power, first of the Crown and now of the Executive Branch of the United States, is necessarily limited by habeas corpus jurisdiction to enquire into the legality of executive detention. And one could explain that in this Court’s exercise of responsibility to preserve habeas corpus something much more significant is involved than pulling and hauling between the judicial and political branches. Instead, though, it is enough to repeat that some of these petitioners have spent six years behind bars. After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation. See ante, at 69. ROBERTS, C. J., DISSENTING BOUMEDIENE V. BUSH 553 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NOS. 06-1195 AND 06-1196 LAKHDAR BOUMEDIENE, et al., PETITIONERS 06–1195 v. GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, et al. KHALED A. F. AL ODAH, next friend of FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al., PETITIONERS 06–1196 v. UNITED STATES et al. on writs of certiorari to the united states court of appeals for the district of columbia circuit [June 12, 2008] Chief Justice Roberts , with whom Justice Scalia, Justice Thomas, and Justice Alito join, dissenting.    Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.    The majority is adamant that the Guantanamo detainees are entitled to the protections of habeas corpus—its opinion begins by deciding that question. I regard the issue as a difficult one, primarily because of the unique and unusual jurisdictional status of Guantanamo Bay. I nonetheless agree with Justice Scalia’s analysis of our precedents and the pertinent history of the writ, and accordingly join his dissent. The important point for me, however, is that the Court should have resolved these cases on other grounds. Habeas is most fundamentally a procedural right, a mechanism for contesting the legality of executive detention. The critical threshold question in these cases, prior to any inquiry about the writ’s scope, is whether the system the political branches designed protects whatever rights the detainees may possess. If so, there is no need for any additional process, whether called “habeas” or something else.    Congress entrusted that threshold question in the first instance to the Court of Appeals for the District of Columbia Circuit, as the Constitution surely allows Congress to do. See Detainee Treatment Act of 2005 (DTA), §1005(e)(2)(A), 119 Stat. 2742. But before the D. C. Circuit has addressed the issue, the Court cashiers the statute, and without answering this critical threshold question itself. The Court does eventually get around to asking whether review under the DTA is, as the Court frames it, an “adequate substitute” for habeas, ante , at 42, but even then its opinion fails to determine what rights the detainees possess and whether the DTA system satisfies them. The majority instead compares the undefined DTA process to an equally undefined habeas right—one that is to be given shape only in the future by district courts on a case-by-case basis. This whole approach is misguided.    It is also fruitless. How the detainees’ claims will be decided now that the DTA is gone is anybody’s guess. But the habeas process the Court mandates will most likely end up looking a lot like the DTA system it replaces, as the district court judges shaping it will have to reconcile review of the prisoners’ detention with the undoubted need to protect the American people from the terrorist threat—precisely the challenge Congress undertook in drafting the DTA. All that today’s opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary.    I believe the system the political branches constructed adequately protects any constitutional rights aliens captured abroad and detained as enemy combatants may enjoy. I therefore would dismiss these cases on that ground. With all respect for the contrary views of the majority, I must dissent. I    The Court’s opinion makes plain that certiorari to review these cases should never have been granted. As two Members of today’s majority once recognized, “traditional rules governing our decision of constitutional questions and our practice of requiring the exhaustion of available remedies … make it appropriate to deny these petitions.” Boumediene v. Bush , 549 U. S. ___ (2007) (slip op., at 1) (citation omitted) (statement of Stevens and Kennedy, JJ., respecting denial of certiorari). Just so. Given the posture in which these cases came to us, the Court should have declined to intervene until the D. C. Circuit had assessed the nature and validity of the congressionally mandated proceedings in a given detainee’s case.    The political branches created a two-part, collateral review procedure for testing the legality of the prisoners’ detention: It begins with a hearing before a Combatant Status Review Tribunal (CSRT) followed by review in the D. C. Circuit. As part of that review, Congress authorized the D. C. Circuit to decide whether the CSRT proceedings are consistent with “the Constitution and laws of the United States.” DTA §1005(e)(2)(C), 119 Stat. 2742. No petitioner, however, has invoked the D. C. Circuit review the statute specifies. See 476 F. 3d 981, 994, and n. 16 (CADC 2007); Brief for Federal Respondents 41–43. As a consequence, that court has had no occasion to decide whether the CSRT hearings, followed by review in the Court of Appeals, vindicate whatever constitutional and statutory rights petitioners may possess. See 476 F. 3d, at 994, and n. 16.    Remarkably, this Court does not require petitioners to exhaust their remedies under the statute; it does not wait to see whether those remedies will prove sufficient to protect petitioners’ rights. Instead, it not only denies the D. C. Circuit the opportunity to assess the statute’s remedies, it refuses to do so itself: the majority expressly declines to decide whether the CSRT procedures, coupled with Article III review, satisfy due process. See ante , at 54.    It is grossly premature to pronounce on the detainees’ right to habeas without first assessing whether the remedies the DTA system provides vindicate whatever rights petitioners may claim. The plurality in Hamdi v. Rumsfeld , 542 U. S. 507 , 533 (2004), explained that the Constitution guaranteed an American citizen challenging his detention as an enemy combatant the right to “notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.” The plurality specifically stated that constitutionally adequate collateral process could be provided “by an appropriately authorized and properly constituted military tribunal,” given the “uncommon potential to burden the Executive at a time of ongoing military conflict.” Id ., at 533, 538. This point is directly pertinent here, for surely the Due Process Clause does not afford non -citizens in such circumstances greater protection than citizens are due.    If the CSRT procedures meet the minimal due process requirements outlined in Hamdi , and if an Article III court is available to ensure that these procedures are followed in future cases, see id., at 536; INS v. St. Cyr , 533 U. S. 289 , 304 (2001); Heikkila v. Barber , 345 U. S. 229 , 236 (1953), there is no need to reach the Suspension Clause question. Detainees will have received all the process the Constitution could possibly require, whether that process is called “habeas” or something else. The question of the writ’s reach need not be addressed.    This is why the Court should have required petitioners to exhaust their remedies under the statute. As we explained in Gusik v. Schilder , 340 U. S. 128 , 132 (1950), “If an available procedure has not been employed to rectify the alleged error” petitioners complain of, “any interference by [a] federal court may be wholly needless. The procedure established to police the errors of the tribunal whose judgment is challenged may be adequate for the occasion.” Because the majority refuses to assess whether the CSRTs comport with the Constitution, it ends up razing a system of collateral review that it admits may in fact satisfy the Due Process Clause and be “structurally sound.” Ante , at 56. But if the collateral review procedures Congress has provided—CSRT review coupled with Article III scrutiny—are sound, interference by a federal habeas court may be entirely unnecessary.    The only way to know is to require petitioners to use the alternative procedures Congress designed. Mandating that the petitioners exhaust their statutory remedies “is in no sense a suspension of the writ of habeas corpus. It is merely a deferment of resort to the writ until other corrective procedures are shown to be futile.” Gusik , supra , at 132. So too here, it is not necessary to consider the availability of the writ until the statutory remedies have been shown to be inadequate to protect the detainees’ rights. Cf. 28 U. S. C. §2254(b)(1)(A) (“An application for a writ of habeas corpus … shall not be granted unless it appears that … the applicant has exhausted the remedies available in the courts of the State”). Respect for the judgments of Congress—whose Members take the same oath we do to uphold the Constitution—requires no less.    In the absence of any assessment of the DTA’s remedies, the question whether detainees are entitled to habeas is an entirely speculative one. Our precedents have long counseled us to avoid deciding such hypothetical questions of constitutional law. See Spector Motor Service, Inc . v. McLaughlin , 323 U. S. 101 , 105 (1944) (“If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality … unless such [questions are] unavoidable”); see also Ashwander v. TVA , 297 U. S. 288 , 347 (1936) (Brandeis, J., concurring) (Constitutional questions should not be decided unless “ ‘absolutely necessary to a decision of the case’ ” (quoting Burton v. United States , 196 U. S. 283 , 295 (1905))). This is a “fundamental rule of judicial restraint.” Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C. , 467 U. S. 138 , 157 (1984).    The Court acknowledges that “the ordinary course” would be not to decide the constitutionality of the DTA at this stage, but abandons that “ordinary course” in light of the “gravity” of the constitutional issues presented and the prospect of additional delay. Ante , at 43. It is, however, precisely when the issues presented are grave that adherence to the ordinary course is most important. A principle applied only when unimportant is not much of a principle at all, and charges of judicial activism are most effectively rebutted when courts can fairly argue they are following normal practices.    The Court is also concerned that requiring petitioners to pursue “DTA review before proceeding with their habeas corpus actions” could involve additional delay. Ante , at 66. The nature of the habeas remedy the Court instructs lower courts to craft on remand, however, is far more unsettled than the process Congress provided in the DTA. See ante , at 69 (“[O]ur opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined”). There is no reason to suppose that review according to procedures the Federal Judiciary will design, case by case, will proceed any faster than the DTA process petitioners disdained.    On the contrary, the system the Court has launched (and directs lower courts to elaborate) promises to take longer. The Court assures us that before bringing their habeas petitions, detainees must usually complete the CSRT process. See ante , at 66. Then they may seek review in federal district court. Either success or failure there will surely result in an appeal to the D. C. Circuit—exactly where judicial review starts under Congress’s system. The effect of the Court’s decision is to add additional layers of quite possibly redundant review. And because nobody knows how these new layers of “habeas” review will operate, or what new procedures they will require, their contours will undoubtedly be subject to fresh bouts of litigation. If the majority were truly concerned about delay, it would have required petitioners to use the DTA process that has been available to them for 2 1 2 years, with its Article III review in the D. C. Circuit. That system might well have provided petitioners all the relief to which they are entitled long before the Court’s newly installed habeas review could hope to do so.[ Footnote 1 ] The Court’s refusal to require petitioners to exhaust the remedies provided by Congress violates the “traditional rules governing our decision of constitutional questions.” Boumediene , 549 U. S., at ___ (slip op., at 1) (statement of Stevens and Kennedy, JJ., respecting denial of certiorari). The Court’s disrespect for these rules makes its decision an awkward business. It rushes to decide the fundamental question of the reach of habeas corpus when the functioning of the DTA may make that decision entirely unnecessary, and it does so with scant idea of how DTA judicial review will actually operate. II The majority’s overreaching is particularly egregious given the weakness of its objections to the DTA. Simply put, the Court’s opinion fails on its own terms. The majority strikes down the statute because it is not an “adequate substitute” for habeas review, ante , at 42, but fails to show what rights the detainees have that cannot be vindicated by the DTA system. Because the central purpose of habeas corpus is to test the legality of executive detention, the writ requires most fundamentally an Article III court able to hear the prisoner’s claims and, when necessary, order release. See Brown v. Allen , 344 U. S. 443 , 533 (1953) (Jackson, J., concurring in result). Beyond that, the process a given prisoner is entitled to receive depends on the circumstances and the rights of the prisoner. See Mathews v. Eldridge , 424 U. S. 319 , 335 (1976). After much hemming and hawing, the majority appears to concede that the DTA provides an Article III court competent to order release. See ante , at 61. The only issue in dispute is the process the Guantanamo prisoners are entitled to use to test the legality of their detention. Hamdi concluded that American citizens detained as enemy combatants are entitled to only limited process, and that much of that process could be supplied by a military tribunal, with review to follow in an Article III court. That is precisely the system we have here. It is adequate to vindicate whatever due process rights petitioners may have. A The Court reaches the opposite conclusion partly because it misreads the statute. The majority appears not to understand how the review system it invalidates actually works—specifically, how CSRT review and review by the D. C. Circuit fit together. After briefly acknowledging in its recitation of the facts that the Government designed the CSRTs “to comply with the due process requirements identified by the plurality in Hamdi ,” ante , at 3, the Court proceeds to dismiss the tribunal proceedings as no more than a suspect method used by the Executive for determining the status of the detainees in the first instance, see ante , at 43. This leads the Court to treat the review the DTA provides in the D. C. Circuit as the only opportunity detainees have to challenge their status determination. See ante , at 49. The Court attempts to explain its glancing treatment of the CSRTs by arguing that “[w]hether one characterizes the CSRT process as direct review of the Executive’s battlefield determination . . . or as the first step in the collateral review of a battlefield determination makes no difference.” Ante , at 54. First of all, the majority is quite wrong to dismiss the Executive’s determination of detainee status as no more than a “battlefield” judgment, as if it were somehow provisional and made in great haste. In fact, detainees are designated “enemy combatants” only after “multiple levels of review by military officers and officials of the Department of Defense.” Memorandum of the Secretary of the Navy, Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at Guantanamo Bay Naval Base (July 29, 2004), App. J to Pet. for Cert. in No. 06–1196, p. 150 (hereinafter Implementation Memo). The majority is equally wrong to characterize the CSRTs as part of that initial determination process. They are instead a means for detainees to challenge the Government’s determination. The Executive designed the CSRTs to mirror Army Regulation 190–8, see Brief for Federal Respondents 48, the very procedural model the plurality in Hamdi said provided the type of process an enemy combatant could expect from a habeas court, see 542 U. S., at 538 (plurality opinion). The CSRTs operate much as habeas courts would if hearing the detainee’s collateral challenge for the first time: They gather evidence, call witnesses, take testimony, and render a decision on the legality of the Government’s detention. See Implementation Memo, App. J to Pet. for Cert. in No. 06–1196, at 153–162. If the CSRT finds a particular detainee has been improperly held, it can order release. See id ., at 164. The majority insists that even if “the CSRTs satisf[ied] due process standards,” full habeas review would still be necessary, because habeas is a collateral remedy available even to prisoners “detained pursuant to the most rigorous proceedings imaginable.” Ante , at 55, 56. This comment makes sense only if the CSRTs are incorrectly viewed as a method used by the Executive for determining the prisoners’ status, and not as themselves part of the collateral review to test the validity of that determination. See Gusik , 340 U. S., at 132. The majority can deprecate the importance of the CSRTs only by treating them as something they are not. The use of a military tribunal such as the CSRTs to review the aliens’ detention should be familiar to this Court in light of the Hamdi plurality, which said that the due process rights enjoyed by American citizens detained as enemy combatants could be vindicated “by an appropriately authorized and properly constituted military tribunal.” 542 U. S., at 538. The DTA represents Congress’ considered attempt to provide the accused alien combatants detained at Guantanamo a constitutionally adequate opportunity to contest their detentions before just such a tribunal. But Congress went further in the DTA. CSRT review is just the first tier of collateral review in the DTA system. The statute provides additional review in an Article III court. Given the rationale of today’s decision, it is well worth recalling exactly what the DTA provides in this respect. The statute directs the D. C. Circuit to consider whether a particular alien’s status determination “was consistent with the standards and procedures specified by the Secretary of Defense” and “whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.” DTA §1005(e)(2)(C), 119 Stat. 2742. That is, a court determines whether the CSRT procedures are constitutional, and a court determines whether those procedures were followed in a particular case. In short, the Hamdi plurality concluded that this type of review would be enough to satisfy due process, even for citizens. See 542 U. S., at 538. Congress followed the Court’s lead, only to find itself the victim of a constitutional bait and switch. Hamdi merits scant attention from the Court—a remarkable omission, as Hamdi bears directly on the issues before us. The majority attempts to dismiss Hamdi’ s relevance by arguing that because the availability of §2241 federal habeas was never in doubt in that case, “the Court had no occasion to define the necessary scope of habeas review . . . in the context of enemy combatant detentions.” Ante , at 55. Hardly. Hamdi was all about the scope of habeas review in the context of enemy combatant detentions. The petitioner, an American citizen held within the United States as an enemy combatant, invoked the writ to challenge his detention. 542 U. S., at 510–511. After “a careful examination both of the writ … and of the Due Process Clause,” this Court enunciated the “basic process” the Constitution entitled Hamdi to expect from a habeas court under §2241. Id ., at 525, 534. That process consisted of the right to “receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.” Id ., at 533. In light of the Government’s national security responsibilities, the plurality found the process could be “tailored to alleviate [the] uncommon potential to burden the Executive at a time of ongoing military conflict.” Ibid . For example, the Government could rely on hearsay and could claim a presumption in favor of its own evidence. See id. , at 533–534 . Hamdi further suggested that this “basic process” on collateral review could be provided by a military tribunal. It pointed to prisoner-of-war tribunals as a model that would satisfy the Constitution’s requirements. See id ., at 538. Only “[i]n the absence of such process” before a military tribunal, the Court held, would Article III courts need to conduct full-dress habeas proceedings to “ensure that the minimum requirements of due process are achieved.” Ibid . (emphasis added). And even then, the petitioner would be entitled to no more process than he would have received from a properly constituted military review panel, given his limited due process rights and the Government’s weighty interests. See id ., at 533–534, 538. Contrary to the majority, Hamdi is of pressing relevance because it establishes the procedures American citizens detained as enemy combatants can expect from a habeas court proceeding under §2241. The DTA system of military tribunal hearings followed by Article III review looks a lot like the procedure Hamdi blessed. If nothing else, it is plain from the design of the DTA that Congress, the President, and this Nation’s military leaders have made a good-faith effort to follow our precedent. The Court, however, will not take “yes” for an answer. The majority contends that “[i]f Congress had envisioned DTA review as coextensive with traditional habeas corpus,” it would have granted the D. C. Circuit far broader review authority. Ante , at 48. Maybe so, but that comment reveals the majority’s misunderstanding. “[T]raditional habeas corpus” takes no account of what Hamdi recognized as the “uncommon potential to burden the Executive at a time of ongoing military conflict.” 542 U. S., at 533. Besides, Congress and the Executive did not envision “DTA review”—by which I assume the Court means D. C. Circuit review, see ante , at 48—as the detainees’ only opportunity to challenge their detentions. Instead, the political branches crafted CSRT and D. C. Circuit review to operate together, with the goal of providing noncitizen detainees the level of collateral process Hamdi said would satisfy the due process rights of American citizens . See Brief for Federal Respondents 48–53. B Given the statutory scheme the political branches adopted, and given Hamdi , it simply will not do for the majority to dismiss the CSRT procedures as “far more limited” than those used in military trials, and therefore beneath the level of process “that would eliminate the need for habeas corpus review.” Ante , at 37. The question is not how much process the CSRTs provide in comparison to other modes of adjudication. The question is whether the CSRT procedures—coupled with the judicial review specified by the DTA—provide the “basic process” Hamdi said the Constitution affords American citizens detained as enemy combatants. See 542 U. S., at 534. By virtue of its refusal to allow the D. C. Circuit to assess petitioners’ statutory remedies, and by virtue of its own refusal to consider, at the outset, the fit between those remedies and due process, the majority now finds itself in the position of evaluating whether the DTA system is an adequate substitute for habeas review without knowing what rights either habeas or the DTA is supposed to protect. The majority attempts to elide this problem by holding that petitioners have a right to habeas corpus and then comparing the DTA against the “historic office” of the writ. Ante , at 47. But habeas is, as the majority acknowledges, a flexible remedy rather than a substantive right. Its “precise application … change[s] depending upon the circumstances.” Ante , at 50. The shape of habeas review ultimately depends on the nature of the rights a petitioner may assert. See, e.g., Reid v. Covert , 354 U. S. 1 , 75 (1957) (Harlan, J., concurring in result) (“[T]he question of which specific safeguards of the Constitution are appropriately to be applied in a particular context … can be reduced to the issue of what process is ‘due’ a defendant in the particular circumstances of a particular case”). The scope of federal habeas review is traditionally more limited in some contexts than in others, depending on the status of the detainee and the rights he may assert. See St. Cyr , 533 U. S., at 306 (“In [immigration cases], other than the question whether there was some evidence to support the [deportation] order, the courts generally did not review factual determinations made by the Executive” (footnote omitted)); Burns v. Wilson , 346 U. S. 137 , 139 (1953) (plurality opinion) (“[I]n military habeas corpus the inquiry, the scope of matters open for review, has always been more narrow than in civil cases”); In re Yamashita , 327 U. S. 1 , 8 (1946) (“The courts may inquire whether the detention complained of is within the authority of those detaining the petitioner. If the military tribunals have lawful authority to hear, decide and condemn, their action is not subject to judicial review”); Ex parte Quirin , 317 U. S. 1 , 25 (1942) (federal habeas review of military commission verdict limited to determining commission’s jurisdiction). Declaring that petitioners have a right to habeas in no way excuses the Court from explaining why the DTA does not protect whatever due process or statutory rights petitioners may have. Because if the DTA provides a means for vindicating petitioners’ rights, it is necessarily an adequate substitute for habeas corpus. See Swain v. Pressley , 430 U. S. 372 , 381 (1977); United States v. Hayman , 342 U. S. 205 , 223 (1952). For my part, I will assume that any due process rights petitioners may possess are no greater than those of American citizens detained as enemy combatants. It is worth noting again that the Hamdi controlling opinion said the Constitution guarantees citizen detainees only “basic” procedural rights, and that the process for securing those rights can “be tailored to alleviate [the] uncommon potential to burden the Executive at a time of ongoing military conflict.” 542 U. S., at 533. The majority, however, objects that “the procedural protections afforded to the detainees in the CSRT hearings are … limited.” Ante , at 37. But the evidentiary and other limitations the Court complains of reflect the nature of the issue in contest, namely, the status of aliens captured by our Armed Forces abroad and alleged to be enemy combatants. Contrary to the repeated suggestions of the majority, DTA review need not parallel the habeas privileges enjoyed by noncombatant American citizens, as set out in 28 U. S. C. §2241 (2000 ed. and Supp V). Cf. ante , at 46–47. It need only provide process adequate for noncitizens detained as alleged combatants. To what basic process are these detainees due as habeas petitioners? We have said that “at the absolute minimum,” the Suspension Clause protects the writ “ ‘as it existed in 1789.’ ” St. Cyr , supra , at 301 (quoting Felker v. Turpin , 518 U. S. 651 , 663–664 (1996)). The majority admits that a number of historical authorities suggest that at the time of the Constitution’s ratification, “common-law courts abstained altogether from matters involving prisoners of war.” Ante , at 17. If this is accurate, the process provided prisoners under the DTA is plainly more than sufficient—it allows alleged combatants to challenge both the factual and legal bases of their detentions. Assuming the constitutional baseline is more robust, the DTA still provides adequate process, and by the majority’s own standards. Today’s Court opines that the Suspension Clause guarantees prisoners such as the detainees “a meaningful opportunity to demonstrate that [they are] being held pursuant to the erroneous application or interpretation of relevant law.” Ante , at 50 (internal quotation marks omitted). Further, the Court holds that to be an adequate substitute, any tribunal reviewing the detainees’ cases “must have the power to order the conditional release of an individual unlawfully detained.” Ibid . The DTA system—CSRT review of the Executive’s determination followed by D. C. Circuit review for sufficiency of the evidence and the constitutionality of the CSRT process—meets these criteria. C At the CSRT stage, every petitioner has the right to present evidence that he has been wrongfully detained. This includes the right to call witnesses who are reasonably available, question witnesses called by the tribunal, introduce documentary evidence, and testify before the tribunal. See Implementation Memo, App. J to Pet. for Cert. in No. 06–1196, at 154–156, 158–159, 161. While the Court concedes detainees may confront all witnesses called before the tribunal, it suggests this right is “more theoretical than real” because “there are in effect no limits on the admission of hearsay evidence.” Ante , at 55. The Court further complains that petitioners lack “the assistance of counsel,” and—given the limits on their access to classified information—“may not be aware of the most critical allegations” against them. Ante , at 54. None of these complaints is persuasive. Detainees not only have the opportunity to confront any witness who appears before the tribunal, they may call witnesses of their own. The Implementation Memo requires only that detainees’ witnesses be “reasonably available,” App. J to Pet. for Cert. in No. 06–1196, at 155, a requirement drawn from Army Regulation 190–8, ch. 1, §1–6( e )(6), and entirely consistent with the Government’s interest in avoiding “a futile search for evidence” that might burden warmaking responsibilities, Hamdi , supra , at 532. The dangerous mission assigned to our forces abroad is to fight terrorists, not serve subpoenas. The Court is correct that some forms of hearsay evidence are admissible before the CSRT, but Hamdi expressly approved this use of hearsay by habeas courts. 542 U. S., at 533–534 (“Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government”). As to classified information, while detainees are not permitted access to it themselves, the Implementation Memo provides each detainee with a “Personal Representative” who may review classified documents at the CSRT stage and summarize them for the detainee. Implementation Memo, supra , at 152, 154–155, 156; Brief for Federal Respondents 54–55. The prisoner’s counsel enjoys the same privilege on appeal before the D. C. Circuit. That is more access to classified material for alleged alien enemy combatants than ever before provided. I am not aware of a single instance—and certainly the majority cites none—in which detainees such as petitioners have been provided access to classified material in any form. Indeed, prisoners of war who challenge their status determinations under the Geneva Convention are afforded no such access, see Army Regulation 190–8, ch. 1, §§1–6( e )(3) and (5), and the prisoner-of-war model is the one Hamdi cited as consistent with the demands of due process for citizens , see 542 U. S., at 538. What alternative does the Court propose? Allow free access to classified information and ignore the risk the prisoner may eventually convey what he learns to parties hostile to this country, with deadly consequences for those who helped apprehend the detainee? If the Court can design a better system for communicating to detainees the substance of any classified information relevant to their cases, without fatally compromising national security interests and sources, the majority should come forward with it. Instead, the majority fobs that vexing question off on district courts to answer down the road. Prisoners of war are not permitted access to classified information, and neither are they permitted access to counsel, another supposed failing of the CSRT process. And yet the Guantanamo detainees are hardly denied all legal assistance. They are provided a “Personal Representative” who, as previously noted, may access classified information, help the detainee arrange for witnesses, assist the detainee’s preparation of his case, and even aid the detainee in presenting his evidence to the tribunal. See Implementation Memo, supra , at 161. The provision for a personal representative on this order is one of several ways in which the CSRT procedures are more generous than those provided prisoners of war under Army Regulation 190–8. Keep in mind that all this is just at the CSRT stage. Detainees receive additional process before the D. C. Circuit, including full access to appellate counsel and the right to challenge the factual and legal bases of their detentions. DTA §1005(e)(2)(C) empowers the Court of Appeals to determine not only whether the CSRT observed the “procedures specified by the Secretary of Defense,” but also “whether the use of such standards and procedures … is consistent with the Constitution and laws of the United States.” 119 Stat. 2742. These provisions permit detainees to dispute the sufficiency of the evidence against them. They allow detainees to challenge a CSRT panel’s interpretation of any relevant law, and even the constitutionality of the CSRT proceedings themselves. This includes, as the Solicitor General acknowledges, the ability to dispute the Government’s right to detain alleged combatants in the first place, and to dispute the Government’s definition of “enemy combatant.” Brief for Federal Respondents 59. All this before an Article III court—plainly a neutral decisionmaker. All told, the DTA provides the prisoners held at Guantanamo Bay adequate opportunity to contest the bases of their detentions, which is all habeas corpus need allow. The DTA provides more opportunity and more process, in fact, than that afforded prisoners of war or any other alleged enemy combatants in history. D Despite these guarantees, the Court finds the DTA system an inadequate habeas substitute, for one central reason: Detainees are unable to introduce at the appeal stage exculpatory evidence discovered after the conclusion of their CSRT proceedings. See ante , at 58. The Court hints darkly that the DTA may suffer from other infirmities, see ante , at 63 (“We do not imply DTA review would be a constitutionally sufficient replacement for habeas corpus but for these limitations on the detainee’s ability to present exculpatory evidence”), but it does not bother to name them, making a response a bit difficult. As it stands, I can only assume the Court regards the supposed defect it did identify as the gravest of the lot. If this is the most the Court can muster, the ice beneath its feet is thin indeed. As noted, the CSRT procedures provide ample opportunity for detainees to introduce exculpatory evidence—whether documentary in nature or from live witnesses—before the military tribunals. See infra , at 21–23; Implementation Memo, App. J to Pet. for Cert. in No. 06–196, at 155–156. And if their ability to introduce such evidence is denied contrary to the Constitution or laws of the United States, the D. C. Circuit has the authority to say so on review. Nevertheless, the Court asks us to imagine an instance in which evidence is discovered after the CSRT panel renders its decision, but before the Court of Appeals reviews the detainee’s case. This scenario, which of course has not yet come to pass as no review in the D. C. Circuit has occurred, provides no basis for rejecting the DTA as a habeas substitute. While the majority is correct that the DTA does not contemplate the introduction of “newly discovered” evidence before the Court of Appeals, petitioners and the Solicitor General agree that the DTA does permit the D. C. Circuit to remand a detainee’s case for a new CSRT determination. Brief for Petitioner Boumediene et al. in No. 06–1195, at 30; Brief for Federal Respondents 60–61. In the event a detainee alleges that he has obtained new and persuasive exculpatory evidence that would have been considered by the tribunal below had it only been available, the D. C. Circuit could readily remand the case to the tribunal to allow that body to consider the evidence in the first instance. The Court of Appeals could later review any new or reinstated decision in light of the supplemented record. If that sort of procedure sounds familiar, it should. Federal appellate courts reviewing factual determinations follow just such a procedure in a variety of circumstances. See, e.g., United States v. White , 492 F. 3d 380, 413 (CA6 2007) (remanding new-evidence claim to the district court for a Brady evidentiary hearing); Avila v. Roe , 298 F. 3d 750, 754 (CA9 2002) (remanding habeas claim to the district court for evidentiary hearing to clarify factual record); United States v. Leone , 215 F. 3d 253, 256 (CA2 2000) (observing that when faced on direct appeal with an underdeveloped claim for ineffective assistance of counsel, the appellate court may remand to the district court for necessary factfinding). A remand is not the only relief available for detainees caught in the Court’s hypothetical conundrum. The DTA expressly directs the Secretary of Defense to “provide for periodic review of any new evidence that may become available relating to the enemy combatant status of a detainee.” DTA §1005(a)(3). Regulations issued by the Department of Defense provide that when a detainee puts forward new, material evidence “not previously presented to the detainee’s CSRT,” the Deputy Secretary of Defense “ ‘will direct that a CSRT convene to reconsider the basis of the detainee’s … status in light of the new information.’ ” Office for the Administrative Review of the Detention of Enemy Combatants, Instruction 5421.1, Procedure for Review of “New Evidence” Relating to Enemy Combatant (EC) Status ¶¶4(a)(1), 5(b) (May 7, 2007); Brief for Federal Respondents 56, n. 30. Pursuant to DTA §1005(e)(2)(A), the resulting CSRT determination is again reviewable in full by the D. C. Circuit.[ Footnote 2 ] In addition, DTA §1005(d)(1) further requires the Department of Defense to conduct a yearly review of the status of each prisoner. See 119 Stat. 2741. The Deputy Secretary of Defense has promulgated concomitant regulations establishing an Administrative Review Board to assess “annually the need to continue to detain each enemy combatant.” Deputy Secretary of Defense Order OSD 06942–04 (May 11, 2004), App. K to Pet. for Cert. in No. 06–1196, p. 189. In the words of the implementing order, the purpose of this annual review is to afford every detainee the opportunity “to explain why he is no longer a threat to the United States” and should be released. Ibid . The Board’s findings are forwarded to a presidentially appointed, Senate-confirmed civilian within the Department of Defense whom the Secretary of Defense has designated to administer the review process. This designated civilian official has the authority to order release upon the Board’s recommendation. Id ., at 201. The Court’s hand wringing over the DTA’s treatment of later-discovered exculpatory evidence is the most it has to show after a roving search for constitutionally problematic scenarios. But “[t]he delicate power of pronouncing an Act of Congress unconstitutional,” we have said, “is not to be exercised with reference to hypothetical cases thus imagined.” United States v. Raines , 362 U. S. 17 , 22 (1960). The Court today invents a sort of reverse facial challenge and applies it with gusto: If there is any scenario in which the statute might be constitutionally infirm, the law must be struck down. Cf. United States v. Salerno , 481 U. S. 739 , 745 (1987) (“A facial challenge … must establish that no set of circumstances exists under which the Act would be valid”); see also Washington v. Glucksberg , 521 U. S. 702 , 739–740, and n. 7 (1997) (Stevens, J., concurring in judgments) (facial challenge must fail where the statute has “ ‘plainly legitimate sweep’ ” (quoting Broadrick v. Oklahoma , 413 U. S. 601 , 615 (1973))). The Court’s new method of constitutional adjudication only underscores its failure to follow our usual procedures and require petitioners to demonstrate that they have been harmed by the statute they challenge. In the absence of such a concrete showing, the Court is unable to imagine a plausible hypothetical in which the DTA is unconstitutional. E The Court’s second criterion for an adequate substitute is the “power to order the conditional release of an individual unlawfully detained.” Ante , at 50. As the Court basically admits, the DTA can be read to permit the D. C. Circuit to order release in light of our traditional principles of construing statutes to avoid difficult constitutional issues, when reasonably possible. See ante , at 56–57. The Solicitor General concedes that remedial authority of some sort must be implied in the statute, given that the DTA—like the general habeas law itself, see 28 U. S. C. §2243—provides no express remedy of any kind. Brief for Federal Respondents 60–61. The parties agree that at the least, the DTA empowers the D. C. Circuit to remand a prisoner’s case to the CSRT with instructions to perform a new status assessment. Brief for Petitioner Boumediene et al. in No. 06–1195, at 30; Brief for Federal Respondents 60–61. To avoid constitutional infirmity, it is reasonable to imply more, see Ashwander , 297 U. S., at 348 (Brandeis, J., concurring) (“When the validity of an act of the Congress is drawn in question … it is a cardinal principle that this Court will … ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided” (internal quotation marks omitted)); see also St. Cyr , 533 U. S., at 299–300, especially in view of the Solicitor General’s concession at oral argument and in his Supplemental Brief that authority to release might be read in the statute, see Tr. of Oral Arg. 37; Supplemental Brief for Federal Respondents 9. The Court grudgingly suggests that “Congress’ silence on the question of remedies suggests acquiescence to any constitutionally required remedy.” Ante , at 58. But the argument in favor of statutorily authorized release is stronger than that. The DTA’s parallels to 28 U. S. C. §2243 on this score are noteworthy. By way of remedy, the general federal habeas statute provides only that the court, having heard and determined the facts, shall “dispose of the matter as law and justice require.” Ibid . We have long held, and no party here disputes, that this includes the power to order release. See Wilkinson v. Dotson , 544 U. S. 74 , 79 (2005) (“[T]he writ’s history makes clear that it traditionally has been accepted as the specific instrument to obtain release from [unlawful] confinement” (internal quotation marks omitted)). The DTA can be similarly read. Because Congress substituted DTA review for habeas corpus and because the “unique purpose” of the writ is “to release the applicant … from unlawful confinement,” Allen v. McCurry , 449 U. S. 90 , 98, n. 12 (1980), DTA §1005(e)(2) can and should be read to confer on the Court of Appeals the authority to order release in appropriate circumstances. Section 1005(e)(2)(D) plainly contemplates release, addressing the effect “release of [an] alien from the custody of the Department of Defense” will have on the jurisdiction of the court. 119 Stat. 2742–2743. This reading avoids serious constitutional difficulty and is consistent with the text of the statute. The D. C. Circuit can thus order release, the CSRTs can order release, and the head of the Administrative Review Boards can, at the recommendation of those panels, order release. These multiple release provisions within the DTA system more than satisfy the majority’s requirement that any tribunal substituting for a habeas court have the authority to release the prisoner. The basis for the Court’s contrary conclusion is summed up in the following sentence near the end of its opinion: “To hold that the detainees at Guantanamo may, under the DTA, challenge the President’s legal authority to detain them, contest the CSRT’s findings of fact, supplement the record on review with newly discovered or previously unavailable evidence, and request an order of release would come close to reinstating the §2241 habeas corpus process Congress sought to deny them.” Ante , at 63. In other words, any interpretation of the statute that would make it an adequate substitute for habeas must be rejected, because Congress could not possibly have intended to enact an adequate substitute for habeas. The Court could have saved itself a lot of trouble if it had simply announced this Catch-22 approach at the beginning rather than the end of its opinion. III For all its eloquence about the detainees’ right to the writ, the Court makes no effort to elaborate how exactly the remedy it prescribes will differ from the procedural protections detainees enjoy under the DTA. The Court objects to the detainees’ limited access to witnesses and classified material, but proposes no alternatives of its own. Indeed, it simply ignores the many difficult questions its holding presents. What, for example, will become of the CSRT process? The majority says federal courts should generally refrain from entertaining detainee challenges until after the petitioner’s CSRT proceeding has finished. See ante , at 66 (“[e]xcept in cases of undue delay”). But to what deference, if any, is that CSRT determination entitled? There are other problems. Take witness availability. What makes the majority think witnesses will become magically available when the review procedure is labeled “habeas”? Will the location of most of these witnesses change—will they suddenly become easily susceptible to service of process? Or will subpoenas issued by American habeas courts run to Basra? And if they did, how would they be enforced? Speaking of witnesses, will detainees be able to call active-duty military officers as witnesses? If not, why not? The majority has no answers for these difficulties. What it does say leaves open the distinct possibility that its “habeas” remedy will, when all is said and done, end up looking a great deal like the DTA review it rejects. See ante , at 66 (opinion of the court) (“We recognize, however, that the Government has a legitimate interest in protecting sources and methods of intelligence gathering, and we expect that the District Court will use its discretion to accommodate this interest to the greatest extent possible”). But “[t]he role of the judiciary is limited to determining whether the procedures meet the essential standard of fairness under the Due Process Clause and does not extend to imposing procedures that merely displace congressional choices of policy.” Landon v. Plasencia , 459 U. S. 21 , 34–35 (1982). The majority rests its decision on abstract and hypothetical concerns. Step back and consider what, in the real world, Congress and the Executive have actually granted aliens captured by our Armed Forces overseas and found to be enemy combatants: The right to hear the bases of the charges against them, including a summary of any classified evidence. The ability to challenge the bases of their detention before military tribunals modeled after Geneva Convention procedures. Some 38 detainees have been released as a result of this process. Brief for Federal Respondents 57, 60. The right, before the CSRT, to testify, introduce evidence, call witnesses, question those the Government calls, and secure release, if and when appropriate. The right to the aid of a personal representative in arranging and presenting their cases before a CSRT. Before the D. C. Circuit, the right to employ counsel, challenge the factual record, contest the lower tribunal’s legal determinations, ensure compliance with the Constitution and laws, and secure release, if any errors below establish their entitlement to such relief. In sum, the DTA satisfies the majority’s own criteria for assessing adequacy. This statutory scheme provides the combatants held at Guantanamo greater procedural protections than have ever been afforded alleged enemy detainees—whether citizens or aliens—in our national history. *  *  * So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine—through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests, see Hamdan v. Rumsfeld , 548 U. S. 557 , 636 (2006) (Breyer, J., concurring), has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges. I respectfully dissent. Footnote 1 In light of the foregoing, the concurrence is wrong to suggest that I “insufficiently appreciat[e]” the issue of delay in these cases. See ante , at 2 (opinion of Souter, J.). This Court issued its decisions in Rasul v. Bush , 542 U. S. 466 , and Hamdi v. Rumsfeld 542 U. S. 507 , in 2004. The concurrence makes it sound as if the political branches have done nothing in the interim. In fact, Congress responded 18 months later by enacting the DTA. Congress cannot be faulted for taking that time to consider how best to accommodate both the detainees’ interests and the need to keep the American people safe. Since the DTA became law, petitioners have steadfastly refused to avail themselves of the statute’s review mechanisms. It is unfair to complain that the DTA system involves too much delay when petitioners have consistently refused to use it, preferring to litigate instead. Today’s decision obligating district courts to craft new procedures to replace those in the DTA will only prolong the process—and delay relief. Footnote 2 The Court wonders what might happen if the detainee puts forward new material evidence but the Deputy Secretary refuses to convene a new CSRT. See ante , at 62–63. The answer is that the detainee can petition the D. C. Circuit for review. The DTA directs that the procedures for review of new evidence be included among “[t]he procedures submitted under paragraph (1)(A)” governing CSRT review of enemy combatant status §1405(a)(3), 119 Stat. 3476. It is undisputed that the D. C. Circuit has statutory authority to review and enforce these procedures. See DTA §1005(e)(2)(C)(i), id., at 2742. SCALIA, J., DISSENTING BOUMEDIENE V. BUSH 553 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NOS. 06-1195 AND 06-1196 LAKHDAR BOUMEDIENE, et al., PETITIONERS 06–1195 v. GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, et al. KHALED A. F. AL ODAH, next friend of FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al., PETITIONERS 06–1196 v. UNITED STATES et al. on writs of certiorari to the united states court of appeals for the district of columbia circuit [June 12, 2008] Justice Scalia , with whom The Chief Justice, Justice Thomas, and Justice Alito join, dissenting.    Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war. The Chief Justice’s dissent, which I join, shows that the procedures prescribed by Congress in the Detainee Treatment Act provide the essential protections that habeas corpus guarantees; there has thus been no suspension of the writ, and no basis exists for judicial intervention beyond what the Act allows. My problem with today’s opinion is more fundamental still: The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this military matter is entirely ultra vires. I shall devote most of what will be a lengthy opinion to the legal errors contained in the opinion of the Court. Contrary to my usual practice, however, I think it appropriate to begin with a description of the disastrous consequences of what the Court has done today. I America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen. See National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, pp. 60–61, 70, 190 (2004). On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D. C., and 40 in Pennsylvania. See id. , at 552, n. 9. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed.    The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today. The President relied on our settled precedent in Johnson v. Eisentrager , 339 U. S. 763 (1950), when he established the prison at Guantanamo Bay for enemy aliens. Citing that case, the President’s Office of Legal Counsel advised him “that the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at [Guantanamo Bay].” Memorandum from Patrick F. Philbin and John C. Yoo, Deputy Assistant Attorneys General, Office of Legal Counsel, to William J. Haynes II, General Counsel, Dept. of Defense (Dec. 28, 2001). Had the law been otherwise, the military surely would not have transported prisoners there, but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention. Those other facilities might well have been worse for the detainees themselves.    In the long term, then, the Court’s decision today accomplishes little, except perhaps to reduce the well-being of enemy combatants that the Court ostensibly seeks to protect. In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield. See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn) (hereinafter Minority Report). Some have been captured or killed. See ibid.; see also Mintz, Released Detainees Rejoining the Fight, Washington Post, Oct. 22, 2004, pp. A1, A12. But others have succeeded in carrying on their atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes. See Khan & Lancaster, Pakistanis Rescue Hostage; 2nd Dies, Washington Post, Oct. 15, 2004, p. A18. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Mintz, supra . Still another murdered an Afghan judge. See Minority Report 13. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq. See White, Ex-Guantanamo Detainee Joined Iraq Suicide Attack, Washington Post, May 8, 2008, p. A18.    These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection. Astoundingly, the Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified. As The Chief Justice’s dissent makes clear, we have no idea what those procedural and evidentiary rules are, but they will be determined by civil courts and (in the Court’s contemplation at least) will be more detainee-friendly than those now applied, since otherwise there would no reason to hold the congressionally prescribed procedures unconstitutional. If they impose a higher standard of proof (from foreign battlefields) than the current procedures require, the number of the enemy returned to combat will obviously increase.    But even when the military has evidence that it can bring forward, it is often foolhardy to release that evidence to the attorneys representing our enemies. And one escalation of procedures that the Court is clear about is affording the detainees increased access to witnesses (perhaps troops serving in Afghanistan?) and to classified information. See ante , at 54–55. During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the names of 200 unindicted co-conspirators to the “Blind Sheik’s” defense lawyers; that information was in the hands of Osama Bin Laden within two weeks. See Minority Report 14–15. In another case, trial testimony revealed to the enemy that the United States had been monitoring their cellular network, whereupon they promptly stopped using it, enabling more of them to evade capture and continue their atrocities. See id. , at 15.    And today it is not just the military that the Court elbows aside. A mere two Terms ago in Hamdan v. Rumsfeld , 548 U. S. 557 (2006), when the Court held (quite amazingly) that the Detainee Treatment Act of 2005 had not stripped habeas jurisdiction over Guantanamo petitioners’ claims, four Members of today’s five-Justice majority joined an opinion saying the following: “Nothing prevents the President from returning to Congress to seek the authority [for trial by military commission] he believes necessary.    “Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means.” Id., at 636 (Breyer, J., concurring).[ Footnote 1 ] Turns out they were just kidding. For in response, Congress, at the President’s request, quickly enacted the Military Commissions Act, emphatically reasserting that it did not want these prisoners filing habeas petitions. It is therefore clear that Congress and the Executive— both political branches—have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting. As the Solicitor General argued, “the Military Commissions Act and the Detainee Treatment Act … represent an effort by the political branches to strike an appropriate balance between the need to preserve liberty and the need to accommodate the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States.” Brief for Respondents 10–11 (internal quotation marks omitted).    But it does not matter. The Court today decrees that no good reason to accept the judgment of the other two branches is “apparent.” Ante , at 40. “The Government,” it declares, “presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims.” Id., at 39. What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails. II A    The Suspension Clause of the Constitution provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Art. I, §9, cl. 2. As a court of law operating under a written Constitution, our role is to determine whether there is a conflict between that Clause and the Military Commissions Act. A conflict arises only if the Suspension Clause preserves the privilege of the writ for aliens held by the United States military as enemy combatants at the base in Guantanamo Bay, located within the sovereign territory of Cuba.    We have frequently stated that we owe great deference to Congress’s view that a law it has passed is constitutional. See, e.g. , Department of Labor v. Triplett , 494 U. S. 715 , 721 (1990); United States v. National Dairy Products Corp. , 372 U. S. 29 , 32 (1963); see also American Communications Assn. v. Douds , 339 U. S. 382 , 435 (1950) (Jackson, J., concurring in part and dissenting in part). That is especially so in the area of foreign and military affairs; “perhaps in no other area has the Court accorded Congress greater deference.” Rostker v. Goldberg , 453 U. S. 57 , 64–65 (1981). Indeed, we accord great deference even when the President acts alone in this area. See Department of Navy v. Egan , 484 U. S. 518 , 529–530 (1988); Regan v. Wald , 468 U. S. 222 , 243 (1984).    In light of those principles of deference, the Court’s conclusion that “the common law [does not] yiel[d] a definite answer to the questions before us,” ante , at 22, leaves it no choice but to affirm the Court of Appeals. The writ as preserved in the Constitution could not possibly extend farther than the common law provided when that Clause was written. See Part III, infra. The Court admits that it cannot determine whether the writ historically extended to aliens held abroad, and it concedes (necessarily) that Guantanamo Bay lies outside the sovereign territory of the United States. See ante , at 22–23; Rasul v. Bush , 542 U. S. 466 , 500–501 (2004) (Scalia, J., dissenting). Together, these two concessions establish that it is (in the Court’s view) perfectly ambiguous whether the common-law writ would have provided a remedy for these petitioners. If that is so, the Court has no basis to strike down the Military Commissions Act, and must leave undisturbed the considered judgment of the coequal branches.[ Footnote 2 ]    How, then, does the Court weave a clear constitutional prohibition out of pure interpretive equipoise? The Court resorts to “fundamental separation-of-powers principles” to interpret the Suspension Clause. Ante , at 25. According to the Court, because “the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers,” the test of its extraterritorial reach “must not be subject to manipulation by those whose power it is designed to restrain.” Ante, at 36.    That approach distorts the nature of the separation of powers and its role in the constitutional structure. The “fundamental separation-of-powers principles” that the Constitution embodies are to be derived not from some judicially imagined matrix, but from the sum total of the individual separation-of-powers provisions that the Constitution sets forth. Only by considering them one-by-one does the full shape of the Constitution’s separation-of-powers principles emerge. It is nonsensical to interpret those provisions themselves in light of some general “separation-of-powers principles” dreamed up by the Court. Rather, they must be interpreted to mean what they were understood to mean when the people ratified them. And if the understood scope of the writ of habeas corpus was “designed to restrain” (as the Court says) the actions of the Executive, the understood limits upon that scope were (as the Court seems not to grasp) just as much “designed to restrain” the incursions of the Third Branch. “Manipulation” of the territorial reach of the writ by the Judiciary poses just as much a threat to the proper separation of powers as “manipulation” by the Executive. As I will show below, manipulation is what is afoot here. The understood limits upon the writ deny our jurisdiction over the habeas petitions brought by these enemy aliens, and entrust the President with the crucial wartime determinations about their status and continued confinement. B    The Court purports to derive from our precedents a “functional” test for the extraterritorial reach of the writ, ante , at 34, which shows that the Military Commissions Act unconstitutionally restricts the scope of habeas. That is remarkable because the most pertinent of those precedents, Johnson v. Eisentrager , 339 U. S. 763 , conclusively establishes the opposite. There we were confronted with the claims of 21 Germans held at Landsberg Prison, an American military facility located in the American Zone of occupation in postwar Germany. They had been captured in China, and an American military commission sitting there had convicted them of war crimes—collaborating with the Japanese after Germany’s surrender. Id. , at 765–766. Like the petitioners here, the Germans claimed that their detentions violated the Constitution and international law, and sought a writ of habeas corpus. Writing for the Court, Justice Jackson held that American courts lacked habeas jurisdiction:    “We are cited to [sic] no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.” Id. , at 768.    Justice Jackson then elaborated on the historical scope of the writ:    “The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society… .    “But, in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien’s presence within its territorial jurisdiction that gave the Judiciary power to act.” Id. , at 770–771.    Lest there be any doubt about the primacy of territorial sovereignty in determining the jurisdiction of a habeas court over an alien, Justice Jackson distinguished two cases in which aliens had been permitted to seek habeas relief, on the ground that the prisoners in those cases were in custody within the sovereign territory of the United States. Id ., at 779–780 (discussing Ex parte Quirin , 317 U. S. 1 (1942), and In re Yamashita , 327 U. S. 1 (1946)). “By reason of our sovereignty at that time over [the Philippines],” Jackson wrote, “Yamashita stood much as did Quirin before American courts.” 339 U. S., at 780. Eisentrager thus held— held beyond any doubt—that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign.[ Footnote 3 ]    The Court would have us believe that Eisentrager rested on “[p]ractical considerations,” such as the “difficulties of ordering the Government to produce the prisoners in a habeas corpus proceeding.” Ante , at 32. Formal sovereignty, says the Court, is merely one consideration “that bears upon which constitutional guarantees apply” in a given location. Ante , at 34. This is a sheer rewriting of the case. Eisentrager mentioned practical concerns, to be sure—but not for the purpose of determining under what circumstances American courts could issue writs of habeas corpus for aliens abroad. It cited them to support its holding that the Constitution does not empower courts to issue writs of habeas corpus to aliens abroad in any circumstances . As Justice Black accurately said in dissent, “the Court’s opinion inescapably denies courts power to afford the least bit of protection for any alien who is subject to our occupation government abroad, even if he is neither enemy nor belligerent and even after peace is officially declared.” 339 U. S., at 796.    The Court also tries to change Eisentrager into a “functional” test by quoting a paragraph that lists the characteristics of the German petitioners: “To support [the] assumption [of a constitutional right to habeas corpus] we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.” Id. , at 777 (quoted in part, ante , at 36). But that paragraph is introduced by a sentence stating that “[t]he foregoing demonstrates how much further we must go if we are to invest these enemy aliens, resident, captured and imprisoned abroad, with standing to demand access to our courts.” 339 U. S., at 777 (emphasis added). How much further than what ? Further than the rule set forth in the prior section of the opinion, which said that “in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien’s presence within its territorial jurisdiction that gave the Judiciary power to act.” Id. , at 771. In other words, the characteristics of the German prisoners were set forth, not in application of some “functional” test, but to show that the case before the Court represented an a fortiori application of the ordinary rule. That is reaffirmed by the sentences that immediately follow the listing of the Germans’ characteristics:    “We have pointed out that the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.” Id. , at 777–778. Eisentrager nowhere mentions a “functional” test, and the notion that it is based upon such a principle is patently false.[ Footnote 4 ]    The Court also reasons that Eisentrager must be read as a “functional” opinion because of our prior decisions in the Insular Cases. See ante , at 26–29. It cites our statement in Balzac v. Porto Rico , 258 U. S. 298 , 312 (1922), that “ ‘the real issue in the Insular Cases was not whether the Constitution extended to the Philippines or Porto Rico when we went there, but which of its provisions were applicable by way of limitation upon the exercise of executive and legislative power in dealing with new conditions and requirements.’ ” Ante , at 28. But the Court conveniently omits Balzac ’s predicate to that statement: “The Constitution of the United States is in force in Porto Rico as it is wherever and whenever the sovereign power of that government is exerted.” 258 U. S., at 312 (emphasis added). The Insular Cases all concerned territories acquired by Congress under its Article IV authority and indisputably part of the sovereign territory of the United States. See United States v. Verdugo-Urquidez , 494 U. S. 259 , 268 (1990); Reid v. Covert , 354 U. S. 1 , 13 (1957) (plurality opinion of Black, J.). None of the Insular Cases stands for the proposition that aliens located outside U. S. sovereign territory have constitutional rights, and Eisentrager held just the opposite with respect to habeas corpus. As I have said, Eisentrager distinguished Yamashita on the ground of “our sovereignty [over the Philippines],” 339 U. S., at 780.    The Court also relies on the “[p]ractical considerations” that influenced our decision in Reid v. Covert , supra . See ante , at 29–32. But all the Justices in the majority except Justice Frankfurter limited their analysis to the rights of citizens abroad. See Reid, supra , at 5–6 (plurality opinion of Black, J.); id. , at 74–75 (Harlan, J., concurring in result). (Frankfurter limited his analysis to the even narrower class of civilian dependents of American military personnel abroad, see id. , at 45 (opinion concurring in result).) In trying to wring some kind of support out of Reid for today’s novel holding, the Court resorts to a chain of logic that does not hold. The members of the Reid majority, the Court says, were divided over whether In re Ross , 140 U. S. 453 (1891), which had (according to the Court) held that under certain circumstances American citizens abroad do not have indictment and jury-trial rights, should be overruled. In the Court’s view, the Reid plurality would have overruled Ross , but Justices Frankfurter and Harlan preferred to distinguish it. The upshot: “If citizenship had been the only relevant factor in the case, it would have been necessary for the Court to overturn Ross , something Justices Harlan and Frankfurter were unwilling to do.” Ante , at 32. What, exactly, is this point supposed to prove? To say that “practical considerations” determine the precise content of the constitutional protections American citizens enjoy when they are abroad is quite different from saying that “practical considerations” determine whether aliens abroad enjoy any constitutional protections whatever, including habeas. In other words, merely because citizenship is not a sufficient factor to extend constitutional rights abroad does not mean that it is not a necessary one.    The Court tries to reconcile Eisentrager with its holding today by pointing out that in postwar Germany, the United States was “answerable to its Allies” and did not “pla[n] a long-term occupation.” Ante , at 38, 39. Those factors were not mentioned in Eisentrager . Worse still, it is impossible to see how they relate to the Court’s asserted purpose in creating this “functional” test—namely, to ensure a judicial inquiry into detention and prevent the political branches from acting with impunity. Can it possibly be that the Court trusts the political branches more when they are beholden to foreign powers than when they act alone?    After transforming the a fortiori elements discussed above into a “functional” test, the Court is still left with the difficulty that most of those elements exist here as well with regard to all the detainees. To make the application of the newly crafted “functional” test produce a different result in the present cases, the Court must rely upon factors (d) and (e): The Germans had been tried by a military commission for violations of the laws of war; the present petitioners, by contrast, have been tried by a Combatant Status Review Tribunal (CSRT) whose procedural protections, according to the Court’s ipse dixit , “fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review.” Ante , at 37. But no one looking for “functional” equivalents would put Eisentrager and the present cases in the same category, much less place the present cases in a preferred category. The difference between them cries out for lesser procedures in the present cases. The prisoners in Eisentrager were prosecuted for crimes after the cessation of hostilities; the prisoners here are enemy combatants detained during an ongoing conflict. See Hamdi v. Rumsfeld , 542 U. S. 507 , 538 (2004) (plurality opinion) (suggesting, as an adequate substitute for habeas corpus, the use of a tribunal akin to a CSRT to authorize the detention of American citizens as enemy combatants during the course of the present conflict).    The category of prisoner comparable to these detainees are not the Eisentrager criminal defendants, but the more than 400,000 prisoners of war detained in the United States alone during World War II. Not a single one was accorded the right to have his detention validated by a habeas corpus action in federal court—and that despite the fact that they were present on U. S. soil. See Bradley, The Military Commissions Act, Habeas Corpus, and the Geneva Conventions, 101 Am. J. Int’l L. 322, 338 (2007). The Court’s analysis produces a crazy result: Whereas those convicted and sentenced to death for war crimes are without judicial remedy, all enemy combatants detained during a war, at least insofar as they are confined in an area away from the battlefield over which the United States exercises “absolute and indefinite” control, may seek a writ of habeas corpus in federal court. And, as an even more bizarre implication from the Court’s reasoning, those prisoners whom the military plans to try by full-dress Commission at a future date may file habeas petitions and secure release before their trials take place.    There is simply no support for the Court’s assertion that constitutional rights extend to aliens held outside U. S. sovereign territory, see Verdugo-Urquidez , 494 U. S., at 271, and Eisentrager could not be clearer that the privilege of habeas corpus does not extend to aliens abroad. By blatantly distorting Eisentrager , the Court avoids the difficulty of explaining why it should be overruled. See Planned Parenthood of Southeastern Pa. v. Casey , 505 U. S. 833 , 854–855 (1992) (identifying stare decisis factors). The rule that aliens abroad are not constitutionally entitled to habeas corpus has not proved unworkable in practice; if anything, it is the Court’s “functional” test that does not (and never will) provide clear guidance for the future. Eisentrager forms a coherent whole with the accepted proposition that aliens abroad have no substantive rights under our Constitution. Since it was announced, no relevant factual premises have changed. It has engendered considerable reliance on the part of our military. And, as the Court acknowledges, text and history do not clearly compel a contrary ruling. It is a sad day for the rule of law when such an important constitutional precedent is discarded without an apologia , much less an apology. C    What drives today’s decision is neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy. The Court says that if the extraterritorial applicability of the Suspension Clause turned on formal notions of sovereignty, “it would be possible for the political branches to govern without legal constraint” in areas beyond the sovereign territory of the United States. Ante , at 35. That cannot be, the Court says, because it is the duty of this Court to say what the law is. Id ., at 35–36. It would be difficult to imagine a more question-begging analysis. “The very foundation of the power of the federal courts to declare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies properly before them .” United States v. Raines , 362 U. S. 17 , 20–21 (1960) (citing Marbury v. Madison , 1 Cranch 137 (1803); emphasis added). Our power “to say what the law is” is circumscribed by the limits of our statutorily and constitutionally conferred jurisdiction. See Lujan v. Defenders of Wildlife , 504 U. S. 555 , 573–578 (1992). And that is precisely the question in these cases: whether the Constitution confers habeas jurisdiction on federal courts to decide petitioners’ claims. It is both irrational and arrogant to say that the answer must be yes, because otherwise we would not be supreme.    But so long as there are some places to which habeas does not run—so long as the Court’s new “functional” test will not be satisfied in every case —then there will be circumstances in which “it would be possible for the political branches to govern without legal constraint.” Or, to put it more impartially, areas in which the legal determinations of the other branches will be (shudder!) supreme . In other words, judicial supremacy is not really assured by the constitutional rule that the Court creates. The gap between rationale and rule leads me to conclude that the Court’s ultimate, unexpressed goal is to preserve the power to review the confinement of enemy prisoners held by the Executive anywhere in the world. The “functional” test usefully evades the precedential landmine of Eisentrager but is so inherently subjective that it clears a wide path for the Court to traverse in the years to come. III    Putting aside the conclusive precedent of Eisentrager , it is clear that the original understanding of the Suspension Clause was that habeas corpus was not available to aliens abroad, as Judge Randolph’s thorough opinion for the court below detailed. See 476 F. 3d 981, 988–990 (CADC 2007).    The Suspension Clause reads: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U. S. Const., Art. I, §9, cl. 2. The proper course of constitutional interpretation is to give the text the meaning it was understood to have at the time of its adoption by the people. See, e.g. , Crawford v. Washington , 541 U. S. 36 , 54 (2004). That course is especially demanded when (as here) the Constitution limits the power of Congress to infringe upon a pre-existing common-law right. The nature of the writ of habeas corpus that cannot be suspended must be defined by the common-law writ that was available at the time of the founding. See McNally v. Hill , 293 U. S. 131 , 135–136 (1934); see also INS v. St. Cyr , 533 U. S. 289 , 342 (2001) (Scalia, J., dissenting); D’Oench, Duhme & Co. v. FDIC , 315 U. S. 447 , 471, n. 9 (1942) (Jackson, J., concurring).    It is entirely clear that, at English common law, the writ of habeas corpus did not extend beyond the sovereign territory of the Crown. To be sure, the writ had an “extraordinary territorial ambit,” because it was a so-called “prerogative writ,” which, unlike other writs, could extend beyond the realm of England to other places where the Crown was sovereign. R. Sharpe, The Law of Habeas Corpus 188 (2d ed. 1989) (hereinafter Sharpe); see also Note on the Power of the English Courts to Issue the Writ of Habeas to Places Within the Dominions of the Crown, But Out of England, and On the Position of Scotland in Relation to that Power, 8 Jurid. Rev. 157 (1896) (hereinafter Note on Habeas); King v. Cowle , 2 Burr. 834, 855–856, 97 Eng. Rep. 587, 599 (K. B. 1759).    But prerogative writs could not issue to foreign countries, even for British subjects; they were confined to the King’s dominions—those areas over which the Crown was sovereign. See Sharpe 188; 2 R. Chambers, A Course of Lectures on the English Law 1767–1773, pp. 7–8 (Curley ed. 1986); 3 W. Blackstone, Commentaries on the Laws of England 131 (1768) (hereinafter Blackstone). Thus, the writ has never extended to Scotland, which, although united to England when James I succeeded to the English throne in 1603, was considered a foreign dominion under a different Crown—that of the King of Scotland. Sharpe 191; Note on Habeas 158.[ Footnote 5 ] That is why Lord Mansfield wrote that “[t]o foreign dominions, which belong to a prince who succeeds to the throne of England, this Court has no power to send any writ of any kind. We cannot send a habeas corpus to Scotland . . . .” Cowle , supra , at 856, 97 Eng. Rep., at 599–600.    The common-law writ was codified by the Habeas Corpus Act of 1679, which “stood alongside Magna Charta and the English Bill of Rights of 1689 as a towering common law lighthouse of liberty—a beacon by which framing lawyers in America consciously steered their course.” Amar, Sixth Amendment First Principles, 84 Geo. L. J. 641, 663 (1996). The writ was established in the Colonies beginning in the 1690’s and at least one colony adopted the 1679 Act almost verbatim. See Dept. of Political Science, Okla. State Univ., Research Reports, No. 1, R. Walker, The American Reception of the Writ of Liberty 12–16 (1961). Section XI of the Act stated where the writ could run. It “may be directed and run into any county palatine, the cinque-ports, or other privileged places within the kingdom of England, dominion of Wales, or town of Berwick upon Tweed, and the islands of Jersey or Guernsey.” 31 Car. 2, ch. 2. The cinque-ports and county palatine were so-called “exempt jurisdictions”—franchises granted by the Crown in which local authorities would manage municipal affairs, including the court system, but over which the Crown maintained ultimate sovereignty. See 3 Blackstone 78–79. The other places listed—Wales, Berwick-upon-Tweed, Jersey, and Guernsey—were territories of the Crown even though not part England proper. See Cowle , supra , at 853–854, 97 Eng. Rep., at 598 (Wales and Berwick-upon-Tweed); 1 Blackstone 104 (Jersey and Guernsey); Sharpe 192 (same).    The Act did not extend the writ elsewhere, even though the existence of other places to which British prisoners could be sent was recognized by the Act. The possibility of evading judicial review through such spiriting-away was eliminated, not by expanding the writ abroad, but by forbidding (in Article XII of the Act) the shipment of prisoners to places where the writ did not run or where its execution would be difficult. See 31 Car. 2, ch. 2; see generally Nutting, The Most Wholesome Law—The Habeas Corpus Act of 1679, 65 Am. Hist. Rev. 527 (1960).    The Habeas Corpus Act, then, confirms the consensus view of scholars and jurists that the writ did not run outside the sovereign territory of the Crown. The Court says that the idea that “jurisdiction followed the King’s officers” is an equally credible view. Ante , at 16. It is not credible at all. The only support the Court cites for it is a page in Boumediene’s brief, which in turn cites this Court’s dicta in Rasul, 542 U. S., at 482, mischaracterizing Lord Mansfield’s statement that the writ ran to any place that was “under the subjection of the Crown,” Cowle , supra , at 856, 97 Eng. Rep., at 599. It is clear that Lord Mansfield was saying that the writ extended outside the realm of England proper, not outside the sovereign territory of the Crown.[ Footnote 6 ]    The Court dismisses the example of Scotland on the grounds that Scotland had its own judicial system and that the writ could not, as a practical matter, have been enforced there. Ante , at 20. Those explanations are totally unpersuasive. The existence of a separate court system was never a basis for denying the power of a court to issue the writ. See 9 W. Holdsworth, A History of English Law 124 (3d ed. 1944) (citing Ex parte Anderson , 3 El. and El. 487 (1861)). And as for logistical problems, the same difficulties were present for places like the Channel Islands, where the writ did run. The Court attempts to draw an analogy between the prudential limitations on issuing the writ to such remote areas within the sovereign territory of the Crown and the jurisdictional prohibition on issuing the writ to Scotland. See ante , at 19–20. But the very authority that the Court cites, Lord Mansfield, expressly distinguished between these two concepts, stating that English courts had the “power” to send the writ to places within the Crown’s sovereignty, the “only question” being the “propriety,” while they had “no power to send any writ of any kind” to Scotland and other “foreign dominions.” Cowle , supra , at 856, 97 Eng. Rep., at 599–600. The writ did not run to Scotland because, even after the Union, “Scotland remained a foreign dominion of the prince who succeeded to the English throne,” and “union did not extend the prerogative of the English crown to Scotland.” Sharpe 191; see also Sir Matthew Hale’s The Prerogatives of the King 19 (D. Yale ed. 1976).[ Footnote 7 ]     In sum, all available historical evidence points to the conclusion that the writ would not have been available at common law for aliens captured and held outside the sovereign territory of the Crown. Despite three opening briefs, three reply briefs, and support from a legion of amici, petitioners have failed to identify a single case in the history of Anglo-American law that supports their claim to jurisdiction. The Court finds it significant that there is no recorded case denying jurisdiction to such prisoners either. See ante , at 21–22. But a case standing for the remarkable proposition that the writ could issue to a foreign land would surely have been reported, whereas a case denying such a writ for lack of jurisdiction would likely not. At a minimum, the absence of a reported case either way leaves unrefuted the voluminous commentary stating that habeas was confined to the dominions of the Crown.    What history teaches is confirmed by the nature of the limitations that the Constitution places upon suspension of the common-law writ. It can be suspended only “in Cases of Rebellion or Invasion.” Art. I, §9, cl. 2. The latter case (invasion) is plainly limited to the territory of the United States; and while it is conceivable that a rebellion could be mounted by American citizens abroad, surely the overwhelming majority of its occurrences would be domestic. If the extraterritorial scope of habeas turned on flexible, “functional” considerations, as the Court holds, why would the Constitution limit its suspension almost entirely to instances of domestic crisis? Surely there is an even greater justification for suspension in foreign lands where the United States might hold prisoners of war during an ongoing conflict. And correspondingly, there is less threat to liberty when the Government suspends the writ’s (supposed) application in foreign lands, where even on the most extreme view prisoners are entitled to fewer constitutional rights. It makes no sense, therefore, for the Constitution generally to forbid suspension of the writ abroad if indeed the writ has application there.    It may be objected that the foregoing analysis proves too much, since this Court has already suggested that the writ of habeas corpus does run abroad for the benefit of United States citizens. “[T]he position that United States citizens throughout the world may be entitled to habeas corpus rights … is precisely the position that this Court adopted in Eisentrager , see 339 U. S., at 769–770, even while holding that aliens abroad did not have habeas corpus rights.” Rasul , 542 U. S. , at 501, 502 (Scalia, J., dissenting) (emphasis deleted). The reason for that divergence is not difficult to discern. The common-law writ, as received into the law of the new constitutional Republic, took on such changes as were demanded by a system in which rule is derived from the consent of the governed, and in which citizens (not “subjects”) are afforded defined protections against the Government. As Justice Story wrote for the Court, “The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation.” Van Ness v. Pacard ,  2 Pet. 137, 144 (1829). See also Hall, The Common Law: An Account of its Reception in the United States, 4 Vand. L. Rev. 791 (1951). It accords with that principle to say, as the plurality opinion said in Reid: “When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land.” 354 U. S., at 6; see also Verdugo-Urquidez ,  494 U. S., at 269–270. On that analysis, “[t]he distinction between citizens and aliens follows from the undoubted proposition that the Constitution does not create, nor do general principles of law create, any juridical relation between our country and some undefined, limitless class of noncitizens who are beyond our territory.” Id. , at 275 (Kennedy, J., concurring).    In sum, because I conclude that the text and history of the Suspension Clause provide no basis for our jurisdiction, I would affirm the Court of Appeals even if Eisentrager did not govern these cases. *  *  *    Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager . It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.    The Nation will live to regret what the Court has done today. I dissent. Footnote 1 Even today, the Court cannot resist striking a pose of faux deference to Congress and the President. Citing the above quoted passage, the Court says: “The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.” Ante , at 69. Indeed. What the Court apparently means is that the political branches can debate, after which the Third Branch will decide. Footnote 2 The opinion seeks to avoid this straightforward conclusion by saying that the Court has been “careful not to foreclose the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments that define the present scope of the writ.” Ante , at 15–16 (citing INS v. St. Cyr , 533 U. S. 289 300–301 (2001)). But not foreclosing the possibility that they have expanded is not the same as demonstrating (or at least holding without demonstration, which seems to suffice for today’s majority) that they have expanded. The Court must either hold that the Suspension Clause has “expanded” in its application to aliens abroad, or acknowledge that it has no basis to set aside the actions of Congress and the President. It does neither. Footnote 3 In its failed attempt to distinguish Eisentrager , the Court comes up with the notion that “ de jure sovereignty” is simply an additional factor that can be added to (presumably) “ de facto sovereignty” ( i.e., practical control) to determine the availability of habeas for aliens, but that it is not a necessary factor, whereas de facto sovereignty is. It is perhaps in this de facto sense, the Court speculates, that Eisentrager found “sovereignty” lacking. See ante , at 23–25. If that were so, one would have expected Eisentrager to explain in some detail why the United States did not have practical control over the American zone of occupation. It did not (and probably could not). Of course this novel de facto-de jure approach does not explain why the writ never issued to Scotland, which was assuredly within the de facto control of the English crown. See infra , at 22.    To support its holding that de facto sovereignty is relevant to the reach of habeas corpus, the Court cites our decision in Fleming v. Page , 9 How. 603 (1850), a case about the application of a customs statute to a foreign port occupied by U. S. forces. See ante , at 24. The case used the phrase “subject to the sovereignty and dominion of the United States” to refer to the United States’ practical control over a “foreign country.” 9 How., at 614. But Fleming went on to explain that because the port remained part of the “enemy’s country,” even though under U. S. military occupation, “its subjugation did not compel the United States, while they held it, to regard it as part of their dominions, nor to give to it any form of civil government, nor to extend to it our laws.” Id. , at 618. If Fleming is relevant to these cases at all, it undermines the Court’s holding. Footnote 4 Justice Souter’s concurrence relies on our decision four Terms ago in Rasul v. Bush , 542 U. S. 466 (2004), where the Court interpreted the habeas statute to extend to aliens held at Guantanamo Bay. He thinks that “no one who reads the Court’s opinion in Rasul could seriously doubt that the jurisdictional question must be answered the same way in purely constitutional cases.” Ante , at 1–2. But Rasul was devoted primarily to an explanation of why Eisentrager ’s statutory holding no longer controlled given our subsequent decision in Braden v. 30th Judicial Circuit Court of Ky. , 410 U. S. 484 (1973). See Rasul , supra , at 475–479. And the opinion of the Court today—which Justice Souter joins—expressly rejects the historical evidence cited in Rasul to support its conclusion about the reach of habeas corpus. Compare id. , at 481–482, with ante , at 18. Moreover, even if one were to accept as true what Justice Souter calls Rasul ’s “well-considered” dictum, that does not explain why Eisentrager ’s constitutional holding must be overruled or how it can be distinguished. (After all, Rasul distinguished Eisentrager ’s statutory holding on a ground inapplicable to its constitutional holding.) In other words, even if the Court were to conclude that Eisentrager ’s rule was incorrect as an original matter, the Court would have to explain the justification for departing from that precedent. It therefore cannot possibly be true that Rasul controls this case, as Justice Souter suggests. Footnote 5 My dissent in Rasul v. Bush, 542 U. S. 466 , 503 (2004), mistakenly included Scotland among the places to which the writ could run. Footnote 6 The dicta in Rasul also cited Ex parte Mwenya , [1960] 1 Q. B. 241, (C. A.), but as I explained in dissent, “[e]ach judge [in Mwenya ] made clear that the detainee’s status as a subject was material to the resolution of the case,” 542 U. S., at 504. Footnote 7 The Court also argues that the fact that the writ could run to Ireland, even though it was ruled under a “separate” crown, shows that formal sovereignty was not the touchstone of habeas jurisdiction. Ante , at 21. The passage from Blackstone that the Court cites, however, describes Ireland as “a dependent, subordinate kingdom” that was part of the “king’s dominions.” 1 Blackstone 98, 100 (internal quotation marks omitted). And Lord Mansfield’s opinion in Cowle plainly understood Ireland to be “a dominion of the Crown of England,” in contrast to the “foreign dominio[n]” of Scotland, and thought that distinction dispositive of the question of habeas jurisdiction. Cowle , supra , at 856, 97 Eng. Rep., at 599–600.

The Supreme Court ruled that aliens designated as enemy combatants and detained at Guantanamo Bay have the constitutional right to habeas corpus, and that the Detainee Treatment Act of 2005 does not provide an adequate substitute for this right. Therefore, the Military Commissions Act of 2006, which sought to strip habeas corpus rights from these detainees, was deemed an unconstitutional suspension of the writ. The Court did not address the legality of the detention itself, leaving that for the District Court to decide.

Immigration & National Security

Chamber of Commerce v. Whiting

https://supreme.justia.com/cases/federal/us/563/582/

OPINION OF THE COURT CHAMBER OF COMMERCE OF UNITED STATES OFAMERICA V. WHITING 563 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-115 CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, et al., PETITIONERS v. MICHAEL B. WHITING et al. on writ of certiorari to the united states court of appeals for the ninth circuit [May 26, 2011]    Chief Justice Roberts delivered the opinion of the Court, except as to Parts II–B and III–B.*    Federal immigration law expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ … unauthorized aliens.” 8 U. S. C. §1324a(h)(2). A recently enacted Arizona statute—the Legal Arizona Workers Act—provides that the licenses of state employers that knowingly or intentionally employ unauthorized aliens may be, and in certain circumstances must be, sus-pended or revoked. The law also requires that all Arizona employers use a federal electronic verification system to confirm that the workers they employ are legally authorized workers. The question presented is whether federal immigration law preempts those provisions of Arizona law. Because we conclude that the State’s licensing provisions fall squarely within the federal statute’s savings clause and that the Arizona regulation does not otherwise conflict with federal law, we hold that the Arizona law is not preempted. I A    In 1952, Congress enacted the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U. S. C. §1101 et seq . That statute established a “comprehensive federal statutory scheme for regulation of immigration and naturalization” and set “the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.” De Canas v. Bica , 424 U. S. 351 , 353, 359 (1976).    In the years following the enactment of the INA, several States took action to prohibit the employment of indi-viduals living within state borders who were not lawful residents of the United States. For example, in 1971 Cali-fornia passed a law providing that “[n]o employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” 1971 Cal. Stats. ch. 1442, §1(a). The California law imposed fines ranging from $200 to $500 for each violation of this prohibition. §1(b). At least 11 other States enacted provisions during that same time period proscribing the employment of unauthorized aliens.[ Footnote 1 ]    We first addressed the interaction of federal immigration law and state laws dealing with the employment of unauthorized aliens in De Canas , 424 U. S. 351 . In that case, we recognized that the “[p]ower to regulate immi-gration is unquestionably … a federal power.” Id., at 354. At the same time, however, we noted that the “States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State,” id., at 356, that “prohibit[ing] the knowing employment … of persons not entitled to lawful residence in the United States, let alone to work here, is certainly within the mainstream of [the State’s] police power,” ibid. , and that the Federal Government had “at best” expressed “a peripheral concern with [the] employment of illegal entrants” at that point in time, id., at 360. As a result, we declined to hold that a state law assessing civil fines for the employment of unauthorized aliens was preempted by federal immigration law.    Ten years after De Canas , Congress enacted the Immigration Reform and Control Act (IRCA), 100 Stat. 3359. IRCA makes it “unlawful for a person or other entity … to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” 8 U. S. C. §1324a(a)(1)(A). IRCA defines an “unauthorized alien” as an alien who is not “lawfully admitted for permanent residence” or not otherwise authorized by the Attorney General to be employed in the United States. §1324a(h)(3).    To facilitate compliance with this prohibition, IRCA requires that employers review documents establishing an employee’s eligibility for employment. §1324a(b). An employer can confirm an employee’s authorization to work by reviewing the employee’s United States passport, resident alien card, alien registration card, or other document approved by the Attorney General; or by reviewing a combination of other documents such as a driver’s license and social security card. §1324a(b)(1)(B)–(D). The employer must attest under penalty of perjury on Department of Homeland Security Form I–9 that he “has verified that the individual is not an unauthorized alien” by reviewing these documents. §1324a(b)(1)(A). The form I–9 itself “and any information contained in or appended to [it] … may not be used for purposes other than for enforcement of” IRCA and other specified provisions of federal law. §1324a(b)(5).    Employers that violate IRCA’s strictures may be subjected to both civil and criminal sanctions. Immigration and Customs Enforcement, an entity within the Department of Homeland Security, is authorized to bring charges against a noncompliant employer under §1324a(e). Depending on the circumstances of the violation, a civil fine ranging from $250 to $16,000 per unauthorized worker may be imposed. See §1324a(e)(4)(A); 73 Fed. Reg. 10136 (2008). Employers that engage in a pattern or practice of violating IRCA’s requirements can be criminally prosecuted, fined, and imprisoned for up to six months. §1324a(f)(1). The Act also imposes fines for engaging in “unfair immigration-related employment practice[s]” such as discriminating on the basis of citizenship or national origin. §1324b(a)(1); see §1324b(g)(2)(B). Good-faith com-pliance with IRCA’s I–9 document review requirements provides an employer with an affirmative defense if charged with a §1324a violation. §1324a(a)(3).    IRCA also restricts the ability of States to combat employment of unauthorized workers. The Act expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” §1324a(h)(2). Under that provision, state laws imposing civil fines for the employment of unauthorized workers like the one we upheld in De Canas are now expressly preempted.    In 1996, in an attempt to improve IRCA’s employment verification system, Congress created three experimental complements to the I–9 process as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 110 Stat. 3009–655, note following 8 U. S. C. §1324a. Arizona Contractors Assn., Inc. v. Candelaria , 534 F. Supp. 2d 1036, 1042 (Ariz. 2008); see 8 U. S. C. §1324a(d). Only one of those programs—E-Verify—remains in operation today. Originally known as the “Basic Pilot Program,” E-Verify “is an internet-based system that allows an employer to verify an employee’s work-authorization status.” Chicanos Por La Causa, Inc. v. Napolitano , 558 F. 3d 856, 862 (CA9 2009). An employer submits a request to the E-Verify system based on information that the employee provides similar to that used in the I–9 process. In response to that request, the employer receives either a confirmation or a tentative nonconfirmation of the employee’s authorization to work. An employee may challenge a nonconfirmation report. If the employee does not do so, or if his challenge is unsuccessful, his employment must be terminated or the Federal Government must be informed. See ibid. In the absence of a prior violation of certain federal laws, IIRIRA prohibits the Secretary of Homeland Security from “requir[ing] any person or … entity” outside the Federal Government “to participate in” the E-Verify program, §402(a), (e), 110 Stat. 3009–656 to 3009–658. To promote use of the program, however, the statute provides that any employer that utilizes E-Verify “and obtains confirmation of identity and employment eligibility in compliance with the terms and conditions of the program … has established a rebuttable presumption” that it has not violated IRCA’s unauthorized alien employment prohibition, §402(b)(1), id. , at 3009–656 to 3009–657. B    Acting against this statutory and historical background, several States have recently enacted laws attempting to impose sanctions for the employment of unauthorized aliens through, among other things, “licensing and similar laws,” 8 U. S. C. §1324a(h)(2).[ Footnote 2 ] Arizona is one of them. The Legal Arizona Workers Act of 2007 allows Arizona courts to suspend or revoke the licenses necessary to do business in the State if an employer knowingly or intentionally employs an unauthorized alien. Ariz. Rev. Stat. Ann. §§23–211, 212, 212.01 (West Supp. 2010) (citing 8 U. S. C. §1324a).    Under the Arizona law, if an individual files a complaint alleging that an employer has hired an unauthorized alien, the attorney general or the county attorney first verifies the employee’s work authorization with the Federal Government pursuant to 8 U. S. C. §1373(c). Ariz. Rev. Stat. Ann. §23–212(B). Section 1373(c) provides that the Federal Government “shall respond to an inquiry by a” State “seeking to verify or ascertain the citizenship or immigration status of any individual … by providing the requested verification or status information.” The Arizona law expressly prohibits state, county, or local officials from attempting “to independently make a final determination on whether an alien is authorized to work in the United States.” Ariz. Rev. Stat. Ann. §23–212(B) . If the §1373(c) inquiry reveals that a worker is an unauthorized alien, the attorney general or the county attorney must notify United States Immigration and Customs Enforcement offi-cials, notify local law enforcement, and bring an action against the employer. §23–212(C)(1)–(3), (D).    When a complaint is brought against an employer un-der Arizona law, “the court shall consider only the fed- eral government’s determination pursuant to” 8 U. S. C. §1373(c) in “determining whether an employee is an unauthorized alien.” §23–212(H). Good-faith compliance with the federal I–9 process provides employers prosecuted by the State with an affirmative defense. §23–212(J).    A first instance of “knowingly employ[ing] an unauthorized alien” requires that the court order the employer to terminate the employment of all unauthorized aliens and file quarterly reports on all new hires for a probationary period of three years. §23–212(A), (F)(1)(a)–(b). The court may also “order the appropriate agencies to suspend all licenses … that are held by the employer for [a period] not to exceed ten business days.” §23–212(F)(1)(d). A second knowing violation requires that the adjudicating court “permanently revoke all licenses that are held by the employer specific to the business location where the unauthorized alien performed work.” §23–212(F)(2).    For a first intentional violation, the court must order the employer to terminate the employment of all unauthorized aliens and file quarterly reports on all new hires for a probationary period of five years. §23–212.01(A), (F)(1)(a)–(b). The court must also suspend all the employer’s licenses for a minimum of 10 days. §23–212.01(F)(1)(c). A second intentional violation requires the permanent revocation of all business licenses. §23–212.01(F)(2).    With respect to both knowing and intentional violations, a violation qualifies as a “second violation” only if it oc-curs at the same business location as the first violation, during the time that the employer is already on probation for a violation at that location. §23–212(F)(3)(a)–(b); §23–212.01(F)(3)(a)–(b).    The Arizona law also requires that “every employer, after hiring an employee, shall verify the employment eligibility of the employee” by using E-Verify. §23–214(A).[ Footnote 3 ] “[P]roof of verifying the employment authorization of an employee through the e-verify program creates a rebuttable presumption that an employer did not knowingly employ an unauthorized alien.” §23–212(I). C    The Chamber of Commerce of the United States and various business and civil rights organizations (collec-tively Chamber of Commerce or Chamber) filed a pre-enforcement suit in federal court against those charged with administering the Arizona law: more than a dozen Arizona county attorneys, the Governor of Arizona, the Arizona attorney general, the Arizona registrar of contractors, and the director of the Arizona Department of Revenue (collectively Arizona).[ Footnote 4 ] The Chamber argued that the Arizona law’s provisions allowing the suspension and revocation of business licenses for employing unauthorized aliens were both expressly and impliedly preempted by federal immigration law, and that the mandatory use of E-Verify was impliedly preempted.    The District Court held that Arizona’s law was not pre-empted. 534 F. Supp. 2d 1036. It found that the plain language of IRCA’s preemption clause did not preempt the Arizona law because the state law does no more than impose licensing conditions on businesses operating within the State. Id., at 1045–1046. With respect to E-Verify, the court concluded that although Congress had made the program voluntary at the national level, it had expressed no intent to prevent States from mandating participation. Id., at 1055–1057. The Court of Appeals affirmed the District Court in all respects, holding that Arizona’s law was a “ ‘licensing and similar law[]’ ” falling within IRCA’s savings clause and that none of the state law’s challenged provisions was “expressly or impliedly preempted by federal policy.” 558 F. 3d, at 860, 861, 866.    We granted certiorari. 561 U. S. ___ (2010). II    The Chamber of Commerce argues that Arizona’s law is expressly preempted by IRCA’s text and impliedly pre-empted because it conflicts with federal law. We address each of the Chamber’s arguments in turn. A    When a federal law contains an express preemption clause, we “focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.” CSX Transp., Inc. v. Easterwood , 507 U. S. 658 , 664 (1993).    IRCA expressly preempts States from imposing “civil or criminal sanctions” on those who employ unauthorized aliens, “other than through licensing and similar laws.” 8 U. S. C. §1324a(h)(2). The Arizona law, on its face, purports to impose sanctions through licensing laws. The state law authorizes state courts to suspend or revoke an employer’s business licenses if that employer knowingly or intentionally employs an unauthorized alien. Ariz. Rev. Stat. Ann. §23–212(A) and (F); §23–212.01(A) and (F). The Arizona law defines “license” as “any agency permit, certificate, approval, registration, charter or similar form of authorization that is required by law and that is issued by any agency for the purposes of operating a business in” the State. §23–211(9)(a). That definition largely parrots the definition of “license” that Congress codified in the Administrative Procedure Act. See 5 U. S. C. §551(8) (“ ‘license’ includes the whole or a part of an agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission”).    Apart from that general definition, the Arizona law specifically includes within its definition of “license” docu-ments such as articles of incorporation, certificates of partnership, and grants of authority to foreign companies to transact business in the State. Ariz. Rev. Stat. Ann. §23–211(9). These examples have clear counterparts in the APA definition just quoted. See 5 U. S. C. §551(8) (defining “license” as including a “registration” or “charter”).    A license is “a right or permission granted in accordance with law … to engage in some business or occupation, to do some act, or to engage in some transaction which but for such license would be unlawful.” Webster’s Third New International Dictionary 1304 (2002). Articles of incorporation and certificates of partnership allow the formation of legal entities and permit them as such to engage in business and transactions “which but for such” authorization “would be unlawful.” Ibid. ; see Ariz. Rev. Stat. Ann. §§10–302, 302(11) (West 2004) (articles of incorporation allow a corporation “to carry out its business and affairs” and to “[c]onduct its business”); see also §10–202(A)(3) (West Supp. 2010). As for state-issued authorizations for foreign businesses to operate within a State, we have re-peatedly referred to those as “licenses.” See, e.g., Heli-copteros Nacionales de Colombia, S. A. v. Hall , 466 U. S. 408 , 417 (1984); G. D. Searle & Co. v. Cohn , 455 U. S. 404 , 413, n. 8 (1982); Rosenberg Bros. & Co. v. Curtis Brown Co. , 260 U. S. 516 , 518 (1923). Moreover, even if a law regulating articles of incorporation, partnership certificates, and the like is not itself a “licensing law,” it is at the very least “similar” to a licensing law, and therefore comfortably within the savings clause. 8 U. S. C. §1324a(h)(2).[ Footnote 5 ]    The Chamber and the United States as amicus argue that the Arizona law is not a “licensing” law because it operates only to suspend and revoke licenses rather than to grant them. Again, this construction of the term runs contrary to the definition that Congress itself has codified. See 5 U. S. C. §551(9) (“ ‘licensing’ includes agency process respecting the grant, renewal, denial, revocation , sus-pension , annulment , withdrawal , limitation, amendment, modification, or conditioning of a license” (emphasis added)). It is also contrary to common sense. There is no basis in law, fact, or logic for deeming a law that grants licenses a licensing law, but a law that suspends or revokes those very licenses something else altogether.    The Chamber also submits that the manner in which Congress amended a related statute when enacting IRCA supports a narrow interpretation of the savings clause. The Migrant and Seasonal Agricultural Worker Protection Act (AWPA), 29 U. S. C. §1801 et seq ., requires employers to secure a registration certificate from the Department of Labor before engaging in any “farm labor contracting activity.” §1811(a). Prior to IRCA, AWPA had contained its own prohibition on hiring unauthorized workers, with accompanying adjudication procedures. See §1813(a); §1816(a) (1982 ed.) (repealed by IRCA, 100 Stat. 3372); §1851(a)–(b) (1982 ed.) (amended by IRCA, 100 Stat. 3372). When Congress enacted IRCA, it repealed AWPA’s separate unauthorized worker prohibition and eliminated the associated adjudication process. Under the current state of the law, an AWPA certification may be denied based on a prior IRCA violation. §1813(a)(6) (2006 ed.). And once obtained, that certification can be revoked because of the employment of an unauthorized alien only following a finding of an IRCA violation. Ibid. The Chamber asserts that IRCA’s amendment of AWPA shows that Congress meant to allow state licensing sanctions only after a federal IRCA adjudication, just as adverse action under AWPA can now be taken only through IRCA’s procedures. But the text of IRCA’s savings clause says nothing about state licensing sanctions being contingent on prior federal adjudication, or indeed about state licensing processes at all. The simple fact that federal law creates procedures for federal investigations and adjudications culminating in federal civil or criminal sanctions does not indicate that Congress intended to prevent States from establishing their own procedures for imposing their own sanctions through licensing. Were AWPA not amended to conform with IRCA, two different federal agencies would be responsible for administering two different unauthorized alien employment laws. The conforming amendments eliminated that potential redundancy and centralized federal adjudicatory authority. That hardly supports a conclusion that any state licensing programs must also be contingent on the central federal system.    In much the same vein, the Chamber argues that Congress’s repeal of “AWPA’s separate prohibition concerning unauthorized workers belies any suggestion that IRCA meant to authorize each of the 50 States … to impose its own separate prohibition,” and that Congress instead wanted uniformity in immigration law enforcement. Brief for Petitioners 36. Justice Breyer also objects to the departure from “one centralized enforcement scheme” under federal law. Post , at 7 (dissenting opinion). But Congress expressly preserved the ability of the States to impose their own sanctions through licensing; that—like our federal system in general—necessarily entails the prospect of some departure from homogeneity. And as for “separate prohibition[s],” it is worth recalling that the Arizona licensing law is based exclusively on the federal prohibition—a court reviewing a complaint under the Arizona law may “consider only the federal government’s determination” with respect to “whether an employee is an unauthorized alien.” §23–212(H).    Even more boldly, the Chamber contends that IRCA’s savings clause was intended to allow States to impose licensing sanctions solely on AWPA-related farm contracting licensees. AWPA specifically recognized that federal regulation of farm contracting licensing was only “intended to supplement State law,” 29 U. S. C. §1871, and the Chamber argues that the purpose of IRCA’s savings clause was limited to preserving existing state farm contractor licensing programs. But here again no such limit is remotely discernible in the statutory text. Absent any textual basis, we are not inclined to limit so markedly the otherwise broad phrasing of the savings clause. See United States v. Shreveport Grain & Elevator Co. , 287 U. S. 77 , 83 (1932) (“extrinsic aids to construction” may be used “to solve, but not to create, an ambiguity” (emphasis and internal quotation marks omitted)).    The Chamber argues that its textual and structural arguments are bolstered by IRCA’s legislative history. We have already concluded that Arizona’s law falls within the plain text of IRCA’s savings clause. And, as we have said before, Congress’s “authoritative statement is the statutory text, not the legislative history.” Exxon Mobil Corp. v. Allapattah Services, Inc. , 545 U. S. 546 , 568 (2005); see also Hoffman Plastic Compounds, Inc. v. NLRB , 535 U. S. 137 , 149–150, n. 4 (2002). Whatever the usefulness of relying on legislative history materials in general, the arguments against doing so are particularly compelling here. Beyond verbatim recitation of the statutory text, all of the legislative history documents related to IRCA save one fail to discuss the savings clause at all. The Senate Judiciary Committee Report on the Senate version of the law does not comment on it. See S. Rep. No. 99–132 (1985). Only one of the four House Reports on the law touches on the licensing exception, see H. R. Rep. No. 99–682, pt. 1, p. 58 (1986), and we have previously dismissed that very report as “a rather slender reed” from “one House of a politically divided Congress.” Hoffman , supra, at 149–150, n. 4. And the Conference Committee Report does not discuss the scope of IRCA’s preemption provision in any way. See H. Conf. Rep. No. 99–1000 (1986).[ Footnote 6 ]    IRCA expressly preempts some state powers dealing with the employment of unauthorized aliens and it expressly preserves others. We hold that Arizona’s licensing law falls well within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted. B    As an alternative to its express preemption argument, the Chamber contends that Arizona’s law is impliedly preempted because it conflicts with federal law. At its broadest level, the Chamber’s argument is that Congress “intended the federal system to be exclusive,” and that any state system therefore necessarily conflicts with federal law. Brief for Petitioners 39. But Arizona’s procedures simply implement the sanctions that Congress expressly allowed Arizona to pursue through licensing laws. Given that Congress specifically preserved such authority for the States, it stands to reason that Congress did not intend to prevent the States from using appropriate tools to exercise that authority. And here Arizona went the extra mile in ensuring that its law closely tracks IRCA’s provisions in all material respects. The Arizona law begins by adopting the federal definition of who qualifies as an “unauthorized alien.” Compare 8 U. S. C. §1324a(h)(3) (an “unauthorized alien” is an alien not “lawfully admitted for permanent residence” or not otherwise authorized by federal law to be employed) with Ariz. Rev. Stat. Ann. §23–211(11) (adopting the federal definition of “unauthorized alien”); see De Canas , 424 U. S., at 363 (finding no preemption of state law that operates “only with respect to individuals whom the Federal Government has already declared cannot work in this country”).    Not only that, the Arizona law expressly provides that state investigators must verify the work authorization of an allegedly unauthorized alien with the Federal Government, and “shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States.” §23–212(B). What is more, a state court “shall consider only the federal government’s determination” when deciding “whether an employee is an unauthorized alien.” §23–212(H) (emphasis added). As a result, there can by definition be no conflict between state and federal law as to worker authorization, either at the investigatory or adjudicatory stage.[ Footnote 7 ]    The federal determination on which the State must rely is provided under 8 U. S. C. §1373(c). See supra , at 6–7. That provision requires the Federal Government to “verify or ascertain” an individual’s “citizenship or immigration status” in response to a state request. Justice Breyer is concerned that this information “says nothing about work authorization.” Post , at 9 (dissenting opinion). Justice Sotomayor shares that concern. Post , at 10 (dissenting opinion). But if a §1373(c) inquiry reveals that someone is a United States citizen, that certainly answers the question whether that individual is authorized to work. The same would be true if the response to a §1373(c) query disclosed that the individual was a lawful permanent resident alien or, on the other hand, had been ordered removed. In any event, if the information provided under §1373(c) does not confirm that an employee is an unauthorized alien, then the State cannot prove its case. See Brief for Respondents 50, n. 10 (“if the information from the federal authorities does not establish that a person is an unauthorized alien, it means that the county attorney cannot satisfy his burden of proof in an enforcement action”); Tr. of Oral Arg. 47.    From this basic starting point, the Arizona law continues to trace the federal law. Both the state and federal law prohibit “knowingly” employing an unauthorized alien. Compare 8 U. S. C. §1324a(a)(1)(A) with Ariz. Rev. Stat. Ann. §23–212(A).[ Footnote 8 ] But the state law does not stop there in guarding against any conflict with the federal law. The Arizona law provides that “ ‘[k]nowingly employ an unauthorized alien’ means the actions described in 8 United States Code §1324a,” and that the “term shall be interpreted consistently with 8 United States Code §1324a and any applicable federal rules and regulations.” §23–211(8).    The Arizona law provides employers with the same af-firmative defense for good-faith compliance with the I–9 process as does the federal law. Compare 8 U. S. C. §1324a(a)(3) (“A person or entity that establishes that it has complied in good faith with the [employment verification] requirements of [§1324a(b)] with respect to hiring … an alien … has established an affirmative defense that the person or entity has not violated” the law) with Ariz. Rev. Stat. Ann. §23–212(J) (“an employer that establishes that it has complied in good faith with the requirements of 8 United States Code section 1324a(b) establishes an affirmative defense that the employer did not knowingly employ an unauthorized alien”).[ Footnote 9 ] And both the federal and Arizona law accord employers a rebuttable presumption of compliance with the law when they use E-Verify to validate a finding of employment eligibility. Compare IIRIRA §402(b), 110 Stat. 3009–656 to 3009–657 with Ariz. Rev. Stat. Ann. §23–212(I). Apart from the mechanics of the Arizona law, the Chamber argues more generally that the law is preempted because it upsets the balance that Congress sought to strike when enacting IRCA. In the Chamber’s view, IRCA reflects Congress’s careful balancing of several policy considerations—deterring unauthorized alien employment, avoiding burdens on employers, protecting employee privacy, and guarding against employment discrimination. According to the Chamber, the harshness of Arizona’s law “ ‘exert[s] an extraneous pull on the scheme established by Congress’ ” that impermissibly upsets that balance. Brief for Petitioners 45 (quoting Buckman Co. v. Plaintiffs’ Legal Comm. , 531 U. S. 341 , 353 (2001)); see Brief for Petitioners 42–45; Reply Brief for Petitioners 20.       As an initial matter, the cases on which the Chamber relies in advancing this argument all involve uniquely federal areas of regulation. See American Ins. Assn. v. Garamendi , 539 U. S. 396 , 401, 405–406 (2003) (presidential conduct of foreign policy); Crosby v. National Foreign Trade Council , 530 U. S. 363 , 373–374 (2000) (foreign affairs power); Buckman Co. v. Plaintiffs’ Legal Comm. , 531 U. S. 341 , 352 (2001) (fraud on a federal agency); United States v. Locke , 529 U. S. 89 , 97, 99 (2000) (regulation of maritime vessels); Bonito Boats, Inc. v. Thunder Craft Boats, Inc. , 489 U. S. 141 , 143–144 (1989) (patent law). Regulating in-state businesses through licensing laws has never been considered such an area of dominant federal concern.    Furthermore, those cases all concern state actions that directly interfered with the operation of the federal program. In Buckman , for example, the Court determined that allowing a state tort action would cause applicants before a federal agency “to submit a deluge of information that the [agency] neither wants nor needs, resulting in additional burdens on the [agency’s] evaluation of an application,” and harmful delays in the agency process. 531 U. S., at 351. In Garamendi , a state law imposing sanctions on insurance companies directly “thwart[ed] the [Federal] Government’s policy of repose” for insurance companies that participated in an international program negotiated by the President. 539 U. S., at 425. Crosby involved a state law imposing sanctions on any entity do-ing business with Burma, a law that left the President with “less to offer and less economic and diplomatic leverage” in exercising his foreign affairs powers. 530 U. S., at 377. The state law in Bonito Boats extended patent-like protection “for subject matter for which patent protection has been denied or has expired,” “thus eroding the general rule of free competition upon which the attractiveness of the federal patent bargain depends.” 489 U. S., at 159, 161. And the portions of Locke on which the Chamber relies involved state efforts “to impose additional unique substantive regulation on the at-sea conduct of vessels”—“an area where the federal interest has been manifest since the beginning of our Republic.” 529 U. S., at 106, 99. There is no similar interference with the federal program in this case; that program operates unimpeded by the state law.    License suspension and revocation are significant sanctions. But they are typical attributes of a licensing regime. Numerous Arizona laws provide for the suspension or revocation of licenses for failing to comply with specified state laws. See, e.g., Ariz. Rev. Stat. Ann. §§5–108.05(D), 32–852.01(L), 32–1154(B), 32–1451(M), 41–2186 (West 2002). Federal law recognizes that the authority to license includes the authority to suspend, revoke, annul, or withdraw a license. See 5 U. S. C. §551(9). Indeed, AWPA itself—on which the Chamber so heavily relies—provides that AWPA “certificates of registration” can be suspended or revoked for employing an unauthorized alien. 29 U. S. C. §1813(a)(6). It makes little sense to preserve state authority to impose sanctions through licensing, but not allow States to revoke licenses when appropriate as one of those sanctions.    The Chamber and Justice Breyer assert that employers will err on the side of discrimination rather than risk the “ ‘business death penalty’ ” by “hiring unauthorized workers.” Post , at 6–7 (dissenting opinion); see Brief for Petitioners 3, 35. That is not the choice. License termination is not an available sanction simply for “hiring unauthorized workers.” Only far more egregious violations of the law trigger that consequence. The Arizona law covers only knowing or intentional violations. The law’s permanent licensing sanctions do not come into play until a second knowing or intentional violation at the same business location, and only if the second violation occurs while the employer is still on probation for the first. These limits ensure that licensing sanctions are imposed only when an employer’s conduct fully justifies them. An employer acting in good faith need have no fear of the sanctions.    As the Chamber points out, IRCA has its own anti-discrimination provisions, see 8 U. S. C. §1324b(a)(1), (g)(1)(B) (imposing sanctions for discrimination “against any individual … with respect to the hiring … or the discharging of the individual from employment”); Arizona law certainly does nothing to displace those. Other federal laws, and Arizona anti-discrimination laws, provide further protection against employment discrimination—and strong incentive for employers not to discriminate. See, e.g., 42 U. S. C. §2000e–2(a) (prohibiting discrimination based on “race, color, religion, sex, or national origin”); Ariz. Rev. Stat. Ann. §41–1463(B)(1) (West Supp. 2010) (prohibiting employment discrimination based on “race, color, religion, sex, age, or national origin”).    All that is required to avoid sanctions under the Legal Arizona Workers Act is to refrain from knowingly or intentionally violating the employment law. Employers enjoy safe harbors from liability when they use the I–9 system and E-Verify—as Arizona law requires them to do. The most rational path for employers is to obey the law—both the law barring the employment of unauthorized aliens and the law prohibiting discrimination—and there is no reason to suppose that Arizona employers will choose not to do so.    As with any piece of legislation, Congress did indeed seek to strike a balance among a variety of interests when it enacted IRCA. Part of that balance, however, involved allocating authority between the Federal Government and the States. The principle that Congress adopted in doing so was not that the Federal Government can impose large sanctions, and the States only small ones. IRCA instead preserved state authority over a particular category of sanctions—those imposed “through licensing and similar laws.”    Of course Arizona hopes that its law will result in more effective enforcement of the prohibition on employing unauthorized aliens. But in preserving to the States the authority to impose sanctions through licensing laws, Congress did not intend to preserve only those state laws that would have no effect. The balancing process that culminated in IRCA resulted in a ban on hiring unauthorized aliens, and the state law here simply seeks to enforce that ban.    Implied preemption analysis does not justify a “freewheeling judicial inquiry into whether a state statute is in tension with federal objectives”; such an endeavor “would undercut the principle that it is Congress rather than the courts that preempts state law.” Gade v. National Solid Wastes Management Assn. , 505 U. S. 88 , 111 (1992) (Kennedy, J., concurring in part and concurring in judgment); see Silkwood v. Kerr-McGee Corp. , 464 U. S. 238 , 256 (1984). Our precedents “establish that a high threshold must be met if a state law is to be pre-empted for conflicting with the purposes of a federal Act.” Gade , supra , at 110. That threshold is not met here. III    The Chamber also argues that Arizona’s requirement that employers use the federal E-Verify system to determine whether an employee is authorized to work is im-pliedly preempted. In the Chamber’s view, “Congress wanted to develop a reliable and non-burdensome system of work-authorization verification” that could serve as an alternative to the I–9 procedures, and the “mandatory use of E-Verify impedes that purpose.” 558 F. 3d, at 866. A    We begin again with the relevant text. The provision of IIRIRA setting up the program that includes E-Verify contains no language circumscribing state action. It does, however, constrain federal action: absent a prior violation of federal law, “the Secretary of Homeland Security may not require any person or other entity [outside of the Federal Government] to participate in a pilot program” such as E-Verify. IIRIRA §402(a), 110 Stat. 3009–656. That provision limits what the Secretary of Homeland Security may do—nothing more.    The Federal Government recently argued just that, and approvingly referenced Arizona’s E-Verify law when doing so. In 2008, an Executive Order mandated that executive agencies require federal contractors to use E-Verify as a condition of receiving a federal contract. See Exec. Order No. 13465, 73 Fed. Reg. 33286 (2008). When that Order and its implementing regulation were challenged, the Government pointed to Arizona’s E-Verify mandate as an example of a permissible use of that system: “[T]he State of Arizona has required all public and private employers in that State to use E-Verify … . This is permissible because the State of Arizona is not the Secretary of Homeland Security.” Defendants’ Reply Memorandum in Support of Their Motion for Summary Judgment in No. 8:08–cv–03444 (D Md.), p. 7 (emphasis added), appeal dism’d, No. 09–2006 (CA4, Dec. 14, 2009).    Arizona’s use of E-Verify does not conflict with the federal scheme. The Arizona law requires that “every employer, after hiring an employee, shall verify the employment eligibility of the employee” through E-Verify. Ariz. Rev. Stat. Ann. §23–214(A) (West Supp. 2010). That requirement is entirely consistent with the federal law. And the consequences of not using E-Verify under the Arizona law are the same as the consequences of not using the system under federal law. In both instances, the only result is that the employer forfeits the otherwise available rebuttable presumption that it complied with the law. Compare IIRIRA §402(b)(1) with Ariz. Rev. Stat. Ann. §23–212(I).[ Footnote 10 ] B    Congress’s objective in authorizing the development of E-Verify was to ensure reliability in employment author-ization verification, combat counterfeiting of identity documents, and protect employee privacy. 8 U. S. C. §1324a(d)(2). Arizona’s requirement that employers operating within its borders use E-Verify in no way obstructs achieving those aims.    In fact, the Federal Government has consistently expanded and encouraged the use of E-Verify. When E-Verify was created in 1996, it was meant to last just four years and it was made available in only six States. IIRIRA §401(b) and (c)(1), 110 Stat. 3009–655 to 3009–656. Congress since has acted to extend the E-Verify program’s existence on four separate occasions, the most recent of which ensures the program’s vitality through 2012.[ Footnote 11 ] And in 2003 Congress directed the Secretary of Homeland Security to make E-Verify available in all 50 States. 117 Stat. 1944; IIRIRA §401(c)(1), 110 Stat. 3009–656. The Department of Homeland Security has even used “billboard and radio advertisements … to encour- age greater participation” in the E-Verify program. 534 F. Supp. 2d, at 1056.    The Chamber contends that “if the 49 other States followed Arizona’s lead, the state-mandated drain on federal resources would overwhelm the federal system and render it completely ineffective, thereby defeating Congress’s primary objective in establishing E-Verify.” Brief for Petitioners 50–51. Whatever the legal significance of that argument, the United States does not agree with the factual premise. According to the Department of Homeland Security, “the E-Verify system can accommodate the increased use that the Arizona statute and existing similar laws would create.” Brief for United States as Amicus Curiae 34. And the United States notes that “[t]he government continues to encourage more employers to participate” in E-Verify. Id., at 31.    The Chamber has reservations about E-Verify’s reliability, see Brief for Petitioners 49, n. 27, but again the United States disagrees. The Federal Government reports that “E-Verify’s successful track record . . . is borne out by findings documenting the system’s accuracy and participants’ satisfaction.” Brief for United States as Amicus Curiae 31. Indeed, according to the Government, the program is “the best means available to determine the employment eligibility of new hires.” U. S. Dept. of Homeland Security, U. S. Citizenship and Immigration Services, E-Verify User Manual for Employers 4 (Sept. 2010).[ Footnote 12 ] *  *  *    IRCA expressly reserves to the States the authority to impose sanctions on employers hiring unauthorized workers, through licensing and similar laws. In exercising that authority, Arizona has taken the route least likely to cause tension with federal law. It uses the Federal Government’s own definition of “unauthorized alien,” it relies solely on the Federal Government’s own determination of who is an unauthorized alien, and it requires Arizona employers to use the Federal Government’s own system for checking employee status. If even this gives rise to impermissible conflicts with federal law, then there really is no way for the State to implement licensing sanctions, contrary to the express terms of the savings clause.    Because Arizona’s unauthorized alien employment law fits within the confines of IRCA’s savings clause and does not conflict with federal immigration law, the judgment of the United States Court of Appeals for the Ninth Circuit is affirmed. It is so ordered.    Justice Kagan took no part in the consideration or decision of this case. *Justice Thomas joins Parts I, II–A, and III–A of this opinion and concurs in the judgment. Footnote 1 See Conn. Gen. Stat. §31–51k (1973) (enacted 1972); Del. Code Ann., Tit. 19, §705 (Cum. Supp. 1978) (enacted 1976); Fla. Stat. §448.09 (1981) (enacted 1977); Kan. Stat. Ann. §21–4409 (1981) (enacted 1973); 1985 La. Acts p. 1894; 1977 Me. Acts p. 171; 1976 Mass. Acts p. 641; Mont. Code Ann. §41–121 (1977 Cum. Supp.); N. H. Rev. Stat. Ann. §275–A:4–a (1986 Cum. Supp.) (enacted 1976); 1977 Vt. Laws p. 320; 1977 Va. Acts ch. 438. Footnote 2 See, e.g., Colo. Rev. Stat. Ann. §8–17.5–102 (2008); Miss. Code Ann. §71–11–3(7)(e) (Supp. 2010); Mo. Rev. Stat. §§285–525, 285–535 (2009 Cum. Supp.); Pa. Stat. Ann., Tit. 73, §820.311 (Purdon Supp. 2010); S. C. Code Ann. §41–8–50(D)(2) (Supp. 2010); Tenn. Code Ann. §50–1–103(d) (2008); Va. Code Ann. §2.2–4311.1 (Lexis 2008); W. Va. Code Ann. §21–1B–7 (Lexis Supp. 2010). Footnote 3 Several States have passed statutes mandating the use of E-Verify. See, e.g., Miss. Code Ann. §71–11–3(3)(d), (4)(b)(i) (Supp. 2010); S. C. Code Ann. §41–8–20(B)–(C) (Supp. 2010); Utah Code Ann. §13–47–201(1) (Lexis Supp. 2010); Va. Code Ann. §40.1–11.2 (Lexis Supp. 2010). Footnote 4 No suits had been brought under the Arizona law when the complaint in this case was filed. As of the date that Arizona submitted its merits brief to this Court only three enforcement actions had been pursued against Arizona employers. See Arizona v. Waterworld Ltd. Partnership , No. CV2009–038848 (Maricopa Cty. Super. Ct., filed Dec. 21, 2009) (resolved by consent judgment); Arizona v. Danny’s Subway Inc ., No. CV2010–005886 (Maricopa Cty. Super. Ct., filed Mar. 9, 2010) (resolved by consent decree); Arizona v. Scottsdale Art Factory, LLC , No. CV2009–036359 (Maricopa Cty. Super. Ct., filed Nov. 18, 2009) (pending). Footnote 5 Justice Breyer recognizes that Arizona’s definition of the word “license” comports with dictionaries’ treatment of the term, but argues that “license” must be read in a more restricted way so as not to include things such as “marriage licenses” and “dog licens[es].” Post , at 2, 12 (dissenting opinion). Luckily, we need not address such fanciful hypotheticals; Arizona limits its definition of “license” to those state per-missions issued “for the purposes of operating a business” in the State. Ariz. Rev. Stat. Ann. §23–211(9)(a) (West Supp. 2010). Justice Breyer’s primary concern appears to be that state permissions such as articles of incorporation and partnership certificates are treated as “licensing and similar laws.” Because myriad other licenses are required to operate a business, that concern is largely academic. See §42–5005(A) (West 2006) (Corporations that receive “gross proceeds of sales or gross income upon which a privilege tax is imposed … shall make application to the department for a privilege license.” Such a corporation “shall not engage or continue in business until the [corporation] has obtained a privilege license.”). Suspending or revoking an employer’s articles of incorporation will often be entirely redundant. See §§42–5010, 5061–5076 (West 2006 and West Supp. 2010) (describing when transaction privilege tax licenses are required). Footnote 6 Justice Breyer poses several rhetorical questions challenging our reading of IRCA and then goes on to propose two seemingly alternative views of the phrase “licensing and similar laws”—that it was meant to refer to “employment-related licensing systems,” post , at 11 (dissenting opinion) (emphasis deleted), or, even more narrowly, to “the licensing of firms in the business of recruiting or referring workers for employment, such as … state agricultural labor contractor licensing schemes,” post , at 13. If we are asking questions, a more telling one may be why, if Congress had intended such limited exceptions to its prohibition on state sanctions, it did not simply say so, instead of excepting “licensing and similar laws” generally? Justice Sotomayor takes a different tack. Invoking arguments that resemble those found in our implied preemption cases, she concludes that the Arizona law “falls outside” the savings clause and is expressly preempted because it allows “state courts to determine whether a person has employed an unauthorized alien.” Post , at 2 (dissenting opinion). While Justice Breyer would add language to the statute narrowly limiting the phrase “licensing and similar laws” to specific types of licenses, Justice Sotomayor creates an entirely new statutory requirement: She would allow States to impose sanctions through “licensing and similar laws” only after a federal adjudication. Such a requirement is found nowhere in the text, and Justice Sotomayor does not even attempt to link it to a specific textual provision. It should not be surprising that the two dissents have sharply different views on how to read the statute. That is the sort of thing that can happen when statutory analysis is so untethered from the text. Footnote 7 After specifying that a state court may consider “only” the federal determination, the Arizona law goes on to provide that the federal determination is “a rebuttable presumption of the employee’s lawful status,” Ariz. Rev. Stat. Ann. §23–212(H) (West Supp. 2010). Arizona explains that this provision does not permit the State to establish unlawful status apart from the federal determination—the provision could hardly do that, given the foregoing. It instead operates to “ensur[e] that the employer has an opportunity to rebut the evidence presented to establish a worker’s unlawful status.” Brief for Respondents 49 (emphasis added). Only in that sense is the federal determination a “rebuttable presumption.” See Tr. of Oral Arg. 46–47. Giving an employer a chance to show that it did not break the state law certainly does not place the Arizona regime in conflict with federal law. Footnote 8 State law also prohibits “intentionally” employing an unauthorized alien, §23–212.01(A), a more severe violation of the law. The Chamber does not suggest that this prohibition is any more problematic than the prohibition on “knowingly” employing an unauthorized alien. Footnote 9 The Chamber contends that the Arizona law conflicts with federal law because IRCA prohibits the use of the I–9 form and “any information contained in or appended to [it]” from being “used for purposes other than for enforcement of” IRCA and other specified federal laws. 8 U. S. C. §1324a(b)(5). That argument mistakenly assumes that an employer would need to use the I–9 form or its supporting documents themselves to receive the benefit of the affirmative defense in Arizona court. In fact, “[a]n employer [could] establish good faith compliance with [the] I–9 process[] … through testimony of employees and descriptions of office policy.” Brief for Respondents 52; see Tr. of Oral Arg. 33. Footnote 10 Arizona has since amended its statute to include other consequences, such as the loss of state-allocated economic development incentives. See 2008 Ariz. Sess. Laws ch. 152. Because those provisions were not part of the statute when this suit was brought, they are not before us and we do not address their interaction with federal law. Footnote 11 See Basic Pilot Extension Act of 2001, §2, 115 Stat. 2407; Basic Pilot Program Extension and Expansion Act of 2003, §2, 117 Stat. 1944; Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, Div. A, §143, 122 Stat. 3580; Department of Homeland Security Appropriations Act of 2010, §547, 123 Stat. 2177. Footnote 12 Justice Breyer shares the Chamber’s concern about E-Verify’s accuracy. See post , at 8, 19. Statistics from Fiscal Year 2010, however, indicate that of the 15,640,167 E-Verify cases submitted, 98.3% were automatically confirmed as work authorized, 0.3% were confirmed as work authorized after contesting and resolving an initial nonconfir-mation—an avenue available to all workers—and 1.43% were not found work authorized. E-Verify Statistics and Reports, available at http://www.uscis.gov/portal/site/uscis/menuitem/statistics (as visited May 23, 2011, and available in the Clerk of Court’s case file). As Justice Breyer notes, the initial mismatches (the 0.3%) are frequently due to “ ‘incorrectly spelled [names] in government databases or on identification documents.’ ” Post , at 19. Such a hazard is of course not unique to E-Verify. Moreover, Justice Breyer’s statistical analysis underlying his conclusion that E-Verify queries, at least initially, wrongly “suggest[] that an individual [i]s not lawfully employable” “ 18% of the time ” needs to be understood for what it is. Post , at 8. If E-Verify initially indicated that two individuals were not found work authorized, and later revealed that one of those determinations was incorrect, Justice Breyer would be able to exclaim that the error rate was 50% . BREYER, J., DISSENTING CHAMBER OF COMMERCE OF UNITED STATES OFAMERICA V. WHITING 563 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-115 CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, et al., PETITIONERS v. MICHAEL B. WHITING et al. on writ of certiorari to the united states court of appeals for the ninth circuit [May 26, 2011]    Justice Breyer, with whom Justice Ginsburg joins, dissenting.    The federal Immigration Reform and Control Act of 1986 (Act or IRCA) pre-empts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit, or refer for a fee for employment, unauthorized aliens.” 8 U. S. C. §1324a(h)(2). The state law before us, the Legal Arizona Workers Act, imposes civil sanctions upon those who employ unauthorized aliens. See Ariz. Rev. Stat. Ann. §23–211 et seq. (West Supp. 2010). Thus the state law falls within the federal Act’s general pre-emption rule and is pre-empted—unless it also falls within that rule’s exception for “licensing and similar laws.” Unlike the Court, I do not believe the state law falls within this exception, and I consequently would hold it pre-empted.    Arizona calls its state statute a “licensing law,” and the statute uses the word “licensing.” But the statute strays beyond the bounds of the federal licensing exception, for it defines “license” to include articles of incorporation and partnership certificates, indeed virtually every state-law authorization for any firm, corporation, or partnership to do business in the State. §23–211(9)(a); cf. §23–211(9)(c) (excepting professional licenses, and water and environmental permits). Congress did not intend its “licensing” language to create so broad an exemption, for doing so would permit States to eviscerate the federal Act’s pre-emption provision, indeed to subvert the Act itself, by undermining Congress’ efforts (1) to protect lawful workers from national-origin-based discrimination and (2) to protect lawful employers against erroneous prosecution or punishment.    Dictionary definitions of the word “licensing” are, as the majority points out, broad enough to include virtually any permission that the State chooses to call a “license.” See ante , at 10 (relying on a dictionary and the federal Administrative Procedure Act). But neither dictionary definitions nor the use of the word “license” in an unrelated statute can demonstrate what scope Congress intended the word “licensing” to have as it used that word in this federal statute . Instead, statutory context must ultimately determine the word’s coverage . Context tells a driver that he cannot produce a partnership certificate when a policeman stops the car and asks for a license. Context tells all of us that “licensing” as used in the Act does not include marriage licenses or the licensing of domestic animals. And context, which includes statutory purposes, language, and history, tells us that the federal statute’s “licensing” language does not embrace Arizona’s overly broad definition of that term. That is to say, ordinary corporate charters, certificates of partnership, and the like do not fall within the scope of the word “licensing” as used in this federal exception. See Dolan v. Postal Service , 546 U. S. 481 , 486 (2006) (statutory interpretation requires courts to “rea[d] the whole statutory text, conside[r] the purpose and context of the statute, and consul[t] any precedents or authorities that inform the analysis”); United States v. Heirs of Boisdoré , 8 How. 113, 122 (1849) (similar). I    To understand how the majority’s interpretation of the word “licensing” subverts the Act, one must understand the basic purposes of the pre-emption provision and of the Act itself. Ordinarily, an express pre-emption provision in a federal statute indicates a particular congressional interest in preventing States from enacting laws that might interfere with Congress’ statutory objectives. See International Paper Co. v. Ouellette , 479 U. S. 481 , 494 (1987). The majority’s reading of the provision’s “licensing” exception, however, does the opposite. It facilitates the creation of “ ‘obstacle[s] to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Crosby v. National Foreign Trade Council , 530 U. S. 363 , 373 (2000) (quoting Hines v. Davidowitz , 312 U. S. 52 , 67 (1941)). A    Essentially, the federal Act requires employers to verify the work eligibility of their employees. And in doing so, the Act balances three competing goals. First, it seeks to discourage American employers from hiring aliens not authorized to work in the United States. H. R. Rep. No. 99–682, pt. 1, p. 56 (1986).    Second, Congress wished to avoid “placing an undue burden on employers,” id. , at 90, and the Act seeks to prevent the “harassment” of “innocent employers,” S. Rep. No. 99–132, p. 35 (1985).    Third, the Act seeks to prevent employers from disfavoring job applicants who appear foreign. Reiterating longstanding antidiscrimination concerns, the House Committee Report explained: “Numerous witnesses … have expressed their deep concern that the imposition of employer sanctions will cause extensive employment discrimination against Hispanic-Americans and other minority group members. These witnesses are genuinely concerned that employers, faced with the possibility of civil and criminal penalties, will be extremely reluctant to hire persons because of their linguistic or physical characteristics.” H. R. Rep. No. 99–682, at 68. See also 42 U. S. C. §2000e–2(a)(1) (making it an “unlawful employment practice” for an employer to discriminate against an individual “because of such individual’s race, color, religion, sex, or national origin”); U. S. Commission on Civil Rights, The Tarnished Golden Door: Civil Rights Issues in Immigration 74 (1980) (finding that “increased employment discrimination against United States citizens and legal residents who are racially and culturally iden-tifiable with major immigrant groups could be the un-intended result of an employer sanctions law”). The Committee concluded that “every effort must be taken to minimize the potentiality of discrimination.” H. R. Rep. No. 99–682, at 68. B    The Act reconciles these competing objectives in several ways:    First, the Act prohibits employers from hiring an alien knowing that the alien is unauthorized to work in the United States. 8 U. S. C. §1324a(a)(1)(A).    Second, the Act provides an easy-to-use mechanism that will allow employers to determine legality: the I–9 form. In completing an I–9 form, the employer certifies that he or she has examined one or two documents ( e.g., a passport, or a driver’s license along with a Social Security card) that tend to confirm the worker’s identity and employability. §1324a(b)(1). Completion of the form in good faith immunizes the employer from liability, even if the worker turns out to be unauthorized. §§1324a(a)(3), 1324a(b)(6).    A later amendment to the law also allows an employer to verify an employee’s work eligibility through an Internet-based federal system called E-Verify. If the em-ployer does so, he or she will receive the benefit of a rebuttable presumption of compliance. Illegal Immigration Re-form and Immigrant Responsibility Act of 1996 (IIRIRA), §402(b), 110 Stat. 3009–656 to 3009–657, note following 8 U. S. C. §1324a, p. 331 (Pilot Programs for Employment Eligibility Confirmation).    Third, the Act creates a central enforcement mechanism. The Act directs the Attorney General to establish a single set of procedures for receiving complaints, investigating those complaints that “have a substantial proba-bility of validity,” and prosecuting violations. 8 U. S. C. §1324a(e)(1). The relevant immigration officials and administrative law judges have the power to access necessary evidence and witnesses, §1324a(e)(2), and the employer has the right to seek discovery from the Federal Government, 28 CFR §68.18 (2010). The employer also has the right to administrative and judicial review of the administrative law judge’s decision. §§68.54, 68.56.    Fourth, the Act makes it “an unfair immigration-related employment practice … to discriminate against any individual” in respect to employment “because of such individual’s national origin.” 8 U. S. C. §1324b(a).    Fifth, the Act sets forth a carefully calibrated sanction system. The penalties for hiring unauthorized aliens are graduated to prevent the Act from unduly burdening employers who are not serious offenders. As adjusted for inflation, civil penalties for a first violation of the employment restrictions range from $375–$3,200 per worker, and rise to $3,200–$16,000 per worker for repeat offenders. §1324a(e)(4)(A); 73 Fed. Reg. 10133 (2008); see also §1324a(f) (imposing criminal fines of not more than $3,000 per worker and imprisonment for up to six months for “pattern or practice” violators of employment restrictions).    As importantly, the Act limits or removes any incentive to discriminate on the basis of national origin by setting antidiscrimination fines at equivalent levels: $375–$3,200 per worker for first-time offenders, and $3,200–$16,000 per worker for repeat offenders. §1324b(g)(2)(B)(iv); 73 Fed. Reg. 10134. The Act then ties its unlawful employment and antidiscrimination provisions together by providing that, should the antihiring provisions terminate, the antidiscrimination provisions will also terminate, §1324b(k), “the justification for them having been removed,” H. R. Conf. Rep. No. 99–1000, p. 87 (1986). C    Now, compare and contrast Arizona’s statute. As I have said, that statute applies to virtually all business-related licenses, other than professional licenses. Ariz. Rev. Stat. Ann. §23–211(9). Like the federal Act, the state law forbids the employment of unauthorized aliens. §§23–212(A), 23–212.01(A). It also provides employers with somewhat similar defenses. §§23–212(I)–(J), 23–212.01(I)–(J). But thereafter the state and federal laws part company.    First, the state statute seriously threatens the federal Act’s antidiscriminatory objectives by radically skewing the relevant penalties. For example, in the absence of the Arizona statute, an Arizona employer who intentionally hires an unauthorized alien for the second time would risk a maximum penalty of $6,500. 8 U. S. C. §1324a(e)(4) (A)(ii); 73 Fed. Reg. 10133. But the Arizona statute subjects that same employer (in respect to the same two incidents) to mandatory, permanent loss of the right to do business in Arizona–a penalty that Arizona’s Governor has called the “business death penalty.” Ariz. Rev. Stat. Ann. §23–212.01(F)(2); News Release, Governor Signs Employer Sanctions Bill (2007), App. 399. At the same time, the state law leaves the other side of the punishment balance—the antidiscrimination side—unchanged.    This is no idle concern. Despite the federal Act’s efforts to prevent discriminatory practices, there is evidence that four years after it had become law, discrimination was a serious problem. In 1990, the General Accounting Office identified “widespread discrimination … as a result of ” the Act. Report to the Congress, Immigration Reform: Employer Sanctions and the Question of Discrimination 3, 37, 80. Sixteen percent of employers in Los Angeles admitted that they applied the I–9 requirement “only to foreign-looking or foreign-sounding persons,” and 22 percent of Texas employers reported that they “began a practice to (1) hire only persons born in the United States or (2) not hire persons with temporary work eligibility documents” because of the Act. Id. , at 41–43. If even the federal Act (with its carefully balanced penalties) can result in some employers discriminating, how will employers behave when erring on the side of discrimination leads only to relatively small fines, while erring on the side of hiring unauthorized workers leads to the “business death penalty”?    Second, Arizona’s law subjects lawful employers to in-creased burdens and risks of erroneous prosecution. In addition to the Arizona law’s severely burdensome sanctions, the law’s procedures create enforcement risks not present in the federal system. The federal Act creates one centralized enforcement scheme, run by officials versed in immigration law and with access to the relevant federal documents. The upshot is an increased likelihood that federal officials (or the employer) will discover whether adverse information flows from an error-prone source and that they will proceed accordingly, thereby diminishing the likelihood that burdensome proceedings and liability reflect documentary mistakes.    Contrast the enforcement system that Arizona’s statute creates. Any citizen of the State can complain (anonymously or otherwise) to the state attorney general (or any county attorney), who then “ shall investigate,” Ariz. Rev. Stat. Ann. §23–212(B) (emphasis added), and, upon a determination that that the “complaint is not false and frivolous … shall notify the appropriate county attorney to bring an action,” §23–212(C)(3). This mandatory language, the lower standard (“not frivolous” instead of “substantial”), and the removal of immigration officials from the state screening process (substituting numerous, elected county attorneys) increase the likelihood that suspicious circumstances will lead to prosecutions and liability of employers—even where more careful investigation would have revealed that there was no violation.    Again, this matter is far from trivial. Studies of one important source of Government information—the E-Verify system—describe how the federal administrative process corrected that system’s tentative “unemployable” indications 18% of the time . This substantial error rate is not a function of a small sample size. See ante , at 26, n. 12. Rather, data from one fiscal year showed 46,921 workers initially rejected but later “confirmed as work authorized”—all while E-Verify was used by only a fraction of the Nation’s employers. U. S. Citizenship and Immigration Services, Statistics and Reports, http:// www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9a c89243c6a7543f6d1a / ?vgnextchannel =7c579589cdb76210V gnVCM100000b92ca60aRCRD (Feb. 4, 2011) (as visited May 18, 2011, and available in Clerk of Court’s case file). That is to say nearly one-in-five times that the E-Verify system suggested that an individual was not lawfully employable ( i.e. , returned a tentative nonconfirmation of work authorization), the system was wrong; and subsequent review in the federal administrative process determined as much. (And those wrongly identified were likely to be persons of foreign, rather than domestic, origin, by a ratio of approximately 20 to 1.) See Westat, Findings of the E-Verify Program Evaluation xxxi, 210, 246 (Dec. 2009) (assessing data from April to June 2008). E-Verify’s accuracy rate is even worse “in states that require the use of E-Verify for all or some of their employees.” Id. , at 122.    A related provision of the state law aggravates the risk of erroneous prosecutions. The state statute says that in “determining whether an employee is an unauthorized alien, the court shall consider only the federal government’s determination pursuant to 8 [U. S. C.] §1373(c).” Ariz. Rev. Stat. Ann. §23–212(H). But the federal provision to which the state law refers, 8 U. S. C. §1373(c), says only that the Federal Government, upon a State’s request, shall verify a person’s “citizenship or immigration status.” It says nothing about work authorization. See post , at 7–10 (Sotomayor, J., dissenting). It says nothing about the source of the Federal Government’s information. It imposes no duty upon the Federal Government or anyone else to investigate the validity of that information, which may falsely implicate an employer 18% of the time.    So what is the employer to do? What statute gives an employer whom the State proceeds against in state court the right to conduct discovery against the Federal Government? The Arizona statute, like the federal statute, says that the employer’s use of an I–9 form provides a defense. But there is a hitch. The federal Act says that neither the I–9 form, nor “any information contained in or appended to” the form, “may … be used for pur-poses other than for enforcement of this” federal Act. §1324a(b)(5). So how can the employer present a defense, say, that the Government’s information base is flawed? The majority takes the view that the forms are not necessary to receive the benefit of the affirmative defense. Ante , at 18, n. 9. But the I–9 form would surely be the employer’s most effective evidence. See also post , at 11 (Sotomayor, J., dissenting) (suggesting that the unavailability of I–9 forms to defend against state-court charges means that Congress “intended no such” proceedings).    Nor does the Arizona statute facilitate the presentation of a defense when it immediately follows (1) its statement that “the court shall consider only the federal government’s determination” when it considers “whether an employee is an unauthorized alien” with (2) its statement that “[t]he federal government’s determination creates a rebuttable presumption of the employee’s lawful status.” Ariz. Rev. Stat. Ann. §23–212(H) (emphasis added). The two statements sound as if they mean that a Federal Government determination that the worker is unlawful is conclusive against the employer, but its determination that the worker’s employment is lawful is subject to rebuttal by the State. Arizona tells us that the statute means the opposite. See ante , at 16, n. 7. But the legal briefs of Arizona’s attorney general do not bind the state courts. And until the matter is cleared up, employers, despite I–9 checks, despite efforts to use E-Verify, will hesitate to hire those they fear will turn out to lack the right to work in the United States.    And that is my basic point. Either directly or through the uncertainty that it creates, the Arizona statute will impose additional burdens upon lawful employers and consequently lead those employers to erect ever stronger safeguards against the hiring of unauthorized aliens—without counterbalancing protection against unlawful discrimination. And by defining “licensing” so broadly, by bringing nearly all businesses within its scope, Arizona’s statute creates these effects statewide.    Why would Congress, after deliberately limiting ordinary penalties to the range of a few thousand dollars per illegal worker, want to permit far more drastic state penalties that would directly and mandatorily destroy entire businesses? Why would Congress, after carefully balancing sanctions to avoid encouraging discrimination, want to allow States to destroy that balance? Why would Congress, after creating detailed procedural protections for employers, want to allow States to undermine them? Why would Congress want to write into an express pre-emption provision—a provision designed to prevent States from undercutting federal statutory objectives—an exception that could so easily destabilize its efforts? The answer to these questions is that Congress would not have wanted to do any of these things. And that fact indicates that the majority’s reading of the licensing exception—a reading that would allow what Congress sought to forbid—is wrong. II    The federal licensing exception cannot apply to a state statute that, like Arizona’s statute, seeks to bring virtually all articles of incorporation and partnership certificates within its scope. I would find the scope of the exception to federal pre-emption to be far more limited. Context, purpose, and history make clear that the “licensing and similar laws” at issue involve employment-related licensing systems.    The issuance of articles of incorporation and partnership certificates and the like have long had little or nothing to do with hiring or “employment.” Indeed, Arizona provides no evidence that any State, at the time the federal Act was enacted, had refused to grant or had revoked, say, partnership certificates, in light of the partners’ hiring practices of any kind, much less the hiring of unauthorized aliens. See Ariz. Rev. Stat. Ann. §29–308 (limited partnership formed upon the filing of a certificate of partnership providing names and addresses); §29–345 (providing for dissolution of a limited partnership “[o]n application by or for a partner or assignee … whenever it is not reasonably practicable to carry on the business in conformity with the partnership agreement”).    To read the exception as covering laws governing corporate charters and partnership certificates (which are not usually called “licensing” laws) is to permit States to turn virtually every permission-related state law into an employment-related “licensing” law. The State need only call the permission a “license” and revoke the license should its holder hire an unauthorized alien. If what was not previously an employment-related licensing law can become one simply by using it as a sanction for hiring unauthorized aliens or simply by state definition, indeed, if the State can call a corporate charter an employment-related licensing law, then why not an auto licensing law (amended to revoke the driver’s licenses of those who hire unauthorized aliens)? Why not a dog licensing law? Or why not “impute” a newly required license to conduct any business to every human being in the State, withdrawing that license should that individual hire an unauthorized alien? See S. C. Code Ann. §41–8–20 (Supp. 2010) (providing that “[a]ll private employers in South Carolina … shall be imputed a South Carolina employment license, which permits a private employer to employ a person in this State,” but conditioning the license on the company’s not hiring unauthorized aliens).    Such laws might prove more effective in stopping the hiring of unauthorized aliens. But they are unlikely to do so consistent with Congress’ other critically important goals, in particular, Congress’ efforts to protect from discrimination legal workers who look or sound foreign. That is why we should read the federal exemption’s “licensing” laws as limited to those that involve the kind of licensing that, in the absence of this general state statute, would nonetheless have some significant relation to employment or hiring practices. Otherwise we read the federal “licensing” exception as authorizing a State to undermine, if not to swallow up, the federal pre-emption rule. III    I would therefore read the words “licensing and similar laws” as covering state licensing systems applicable primarily to the licensing of firms in the business of recruiting or referring workers for employment, such as the state agricultural labor contractor licensing schemes in existence when the federal Act was created. This reading is consistent with the provision’s history and language, and it minimizes the risk of harm of the kind just described.    The Act’s history supports this interpretation. Ever since 1964, the Federal Government has administered statutes that create a federal licensing scheme for agricultural labor contractors, firms that specialize in recruiting agricultural workers and referring them to farmers for a fee. Farm Labor Contractor Registration Act of 1963 (FLCRA), 78 Stat. 920; Migrant and Seasonal Agricultural Worker Protection Act (AWPA), 96 Stat. 2583. The statutes require agricultural labor contractors to register with the federal Secretary of Labor, to obtain a registration certificate (in effect a license), and to require the contractor’s employees to carry that certificate with them when engaging in agricultural labor contracting activities. AWPA §101; FLCRA §4. The statutes list a host of forbidden activities, one of which (prior to 1986) was hiring unauthorized aliens. See AWPA §§103, 106; FLCRA §5(b). Prior to 1986, if the federal Labor Department believed a firm had violated these substantive provisions, it could institute administrative proceedings within the Labor Department. And if the Secretary found the labor contracting firm had violated the provisions, the Secretary could impose monetary penalties or withdraw the firm’s registration. AWPA §§103, 503; FLCRA §§5(b), 9.    Most important, and unlike the 1986 Act before us, the earlier agricultural labor contracting statutes did not pre-empt similar state laws . To the contrary, the earlier Acts were “intended to supplement State law” and did not “excuse any person from compliance with appropriate State law and regulation.” AWPA §521; see FLCRA §12. By 1986, nearly a dozen States had developed state licensing systems for agricultural labor contractors, i.e. , firms that recruited and referred farm (and sometimes forestry) workers for a fee; some of these laws provided that state licenses could be revoked if the contractors hired unauthorized aliens. See, e.g., Cal. Lab. Code §1690(f) (Deering Supp. 1991); 43 Pa. Cons. Stat. §§1301.503(4), 1301.505(3) (1965–1983 Supp. Pamphlet); Ore. Rev. Stat. §§658.405(1), 658.440(2)(d) (1987) (covering forestry workers).    In 1986, Congress (when enacting the Act now before us) focused directly upon the earlier federal agricultural labor contractor licensing system. And it changed that earlier system by including a series of conforming amendments in the Act. One amendment removes from the earlier statutes the specific prohibition against hiring unauthorized aliens. It thereby makes agricultural labor contractors subject to the Act’s similar general prohibition against such hiring. IRCA §101(b)(1)(C) (repealing AWPA §106). Another amendment takes from the Secretary of Labor most of the Secretary’s enforcement powers in respect to the hiring of unauthorized aliens. It thereby leaves agricultural labor contractors subject to the same single unified enforcement system that the immigration Act applies to all employers. See 29 U. S. C. §1853. A third amendment, however, leaves with the Secretary of Labor the power to withdraw the federal registration certificate from an agricultural labor contractor that hired unauthorized aliens. IRCA §101(b)(1)(B)(iii), 29 U. S. C. §1813(a)(6). Thus, the Act leaves this subset of employers ( i.e. , agricultural labor contractors but not other employers) subject to a federal licensing scheme.    So far, the conforming amendments make sense. But have they not omitted an important matter? Prior to 1986, States as well as the Federal Government could license agricultural labor contractors. Should the 1986 statute not say whether Congress intended that dual system to continue? The answer is that the 1986 Act does not omit this matter. It answers the coexistence question directly with the parenthetical phrase we are now considering, namely, the phrase, “other than through licensing and similar laws,” placed in the middle of the Act’s pre-emption provision. 8 U. S. C. §1324a(h)(2). That phrase refers to agricultural labor contractors, and it says that, in respect to those licensing schemes, dual state/federal licensing can continue.    As of 1986, there were strong reasons for permitting that dual system to continue in this specialized area . Dual enforcement had proved helpful in preventing particularly serious employment abuses. See, e.g. , 128 Cong. Rec. 24090 (1982) (reflecting concerns that agricultural workers were “housed in hovels; … subjected to physical abuse and kept in virtual slavery”). And because the contractors’ business consists of providing labor forces, their hiring of authorized workers is closely related to their general fitness to do business. See S. Rep. No. 202, 88th Cong., 1st Sess., 1 (1963) (explaining that farm labor contractor registration laws are needed to prevent “irresponsible crew leaders” from “exploit[ing] … farmers”); Martin, Good Intentions Gone Awry: IRCA and U. S. Agriculture, 534 Annals Am. Acad. Pol. & Soc. Sci. 44, 49 (1994) (describing how farmers who relied on contractors risked losing their labor forces to immigration raids). Dual enforcement would not create a federal/state penalty disparity, for federal systems as well as state systems provide for license revocation. Experience had shown that dual enforcement had not created any serious conflict or other difficulty. And in light of the specialized nature and comparatively small set of businesses subject to dual enforcement, to permit licensing of that set of businesses would not seriously undermine the objectives of the Act or its pre-emption provision.    Thus, it is not surprising that the legislative history of the 1986 Act’s pre-emption provision says that the licensing exception is about the licensing of agricultural labor contractors. The House Report on the Act, referring to the licensing exception, states that the Committee did “not intend to preempt licensing or ‘fitness to do business laws,’ such as state farm labor contractor laws or forestry laws, which specifically require such licensee or contractor to refrain from hiring, recruiting or referring undocumented aliens .” H. R. Rep. No. 99–682, at 58 (emphasis added).    The Act’s language, while not requiring this interpretation, is nonetheless consistent with limiting the scope of the phrase in this way. Context can limit the application of the term “licensing” to particular types of licensing. The Act’s subject matter itself limits the term to employment-related licensing. And the Act’s specific reference to those who “recruit or refer for a fee for employment, unauthorized aliens,” is consistent with employment-related li-censing that focuses primarily upon labor contracting businesses.    Thus, reading the phrase as limited in scope to laws licensing businesses that recruit or refer workers for employment is consistent with the statute’s language, with the relevant history, and with other statutory provisions in the Act. That reading prevents state law from undermining the Act and from turning the pre-emption clause on its head. That is why I consider it the better reading of the statute. IV    Another section of the Arizona statute requires “every employer, after hiring an employee,” to “verify the employment eligibility of the employee” through the Federal Government’s E-Verify program. Ariz. Rev. Stat. Ann. §23–214. This state provision makes participation in the federal E-Verify system mandatory for virtually all Arizona employers. The federal law governing the E-Verify program, however, creates a program that is voluntary. By making mandatory that which federal law seeks to make voluntary, the state provision stands as a significant “ ‘obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’ ” Crosby , 530 U. S., at 373 (quoting Hines , 312 U. S., at 67). And it is consequently pre-empted.    The federal statute itself makes clear that participation in the E-Verify program is voluntary. The statute’s relevant section bears the title “Voluntary Election to Participate in a Pilot Program.” IIRIRA §402, note following 8 U. S. C. §1324a, p. 331. A subsection bears the further title, “Voluntary Election.” §402(a). And within that subsection, the statute says that employers “ may elect to participate.” (Emphasis added.) The statute elsewhere requires the Secretary of Homeland Security to “widely publicize … the voluntary nature” of the program. §402(d)(2); see also §402(d)(3)(A) (requiring the designation of local officials to advertise the “voluntary nature” of the program). It adds that employers may “terminate” their “election” to participate by following certain procedures. §402(c)(3). And it tells the Secretary of Homeland Security (as an earlier version told the Attorney General) that she “may not require any person or other entity to participate.” §402(a); see also §402(e) (creating exceptions, none of which is applicable here, that require federal employers and certain others to participate in E-Verify or another pilot program).    Congress had strong reasons for insisting on the voluntary nature of the program. E-Verify was conceived as, and remains, a pilot program. Its database consists of tens of millions of Social Security and immigration records kept by the Federal Government. These records are prone to error. See, e.g., Office of the Inspector General, Social Security Administration, Congressional Response Report: Accuracy of the Social Security Administration’s Numident File 12 (2006) (hereinafter Social Security Report) (estimating that 3.3 million naturalized citizens are misclassified in a Social Security database used by E-Verify); GAO, Employment Verification: Federal Agencies Have Taken Steps to Improve E-Verify, but Significant Challenges Remain 16 (GAO–11–146, 2010) (hereinafter GAO Report) (noting that “erroneous [nonconfirmations] related to name inconsistencies … remain an issue” that “can create the appearance of discrimination because of their disparate impact on certain cultural groups”). And making the program mandatory would have been hugely expensive. See post , at 16 (Sotomayor, J., dissenting).    The E-Verify program is still a pilot program, as a matter of statute and practice. See IIRIRA §401; Letter from H. Couch to R. Stana (Dec. 8, 2010) (discussing aspects of E-Verify that have yet to be implemented). The effects of the program’s efforts to take account of, and correct for, potential errors remain uncertain. Congress could decide that, based on the results of the pilot, E-Verify should become a mandatory program. But it has not yet made that determination. And in making that decision, it will have to face a number of questions: Will workers receiving tentative negative verdicts understand the possibility of administrative challenge? Will they make the effort to invoke that process, say traveling from a farm to an urban Social Security office? Will employers prove willing to undergo the financial burden of supporting a worker who might lose the challenge? Will employers hesitate to train those workers during the time they bring their challenges? Will employers simply hesitate to hire workers who might receive an initial negative verdict—more likely those who look or sound foreign? Or will they find ways to dismiss those workers? These and other unanswered questions convinced Congress to make E-Verify a pilot program, to commission continuous study and evaluation, and to insist that participation be voluntary.    In co-opting a federal program and changing the key terms under which Congress created that program, Arizona’s mandatory state law simply ignores both the federal language and the reasoning it reflects, thereby posing an “ ‘obstacle to the accomplishment’ ” of the objectives Congress’ statute evinces. Crosby , supra , at 373 (quoting Hines , supra , at 67).    The majority reaches a contrary conclusion by pointing out (1) that Congress has renewed the E-Verify program several times, each time expanding its coverage, to the point where it now encompasses all 50 States; (2) that the E-Verify database has become more accurate; (3) that the Executive Branch has itself mandated participation for federal contractors; and (4) that the statute’s language tells the Secretary of Homeland Security, not the States, to maintain the program as voluntary.    The short, and, I believe, conclusive answers to these objections are: (1) Congress has kept the language of the statute—and the voluntary nature of the program—the same throughout its program renewals. See 115 Stat. 2407; 117 Stat. 1944; §547, 123 Stat. 2177. And it is up to Congress, not to Arizona or this Court, to decide when participation in the program should cease to be voluntary.    (2) The studies and reports have repeatedly found both (a) that the E-Verify program had achieved greater accuracy, but (b) that problems remain. See, e.g., Social Security Report 11 (estimating that Social Security records contain 4.8 million “discrepancies that could require the numberholder to visit [the Social Security Administration] … before employment eligibility would be confirmed”); GAO Report 19 (estimating that, if E-Verify were made mandatory nationwide, 164,000 newly hired workers each year would erroneously be adjudged ineligible to work because of name mismatches, as when the worker’s “first or last name is incorrectly spelled in government databases or on identification documents”). And it is up to Congress, not to Arizona or this Court, to determine when the federally designed and federally run E-Verify program is ready for expansion.    (3) Federal contractors are a special group of employers, subject to many special requirements, who enter voluntarily into a special relation with the Government. For the Federal Government to mandate that a special group participate in the E-Verify program tells us little or nothing about the effects of a State’s mandating that nearly every employer within the State participate—as Arizona has done. And insofar as we have not determined whether the Executive was authorized by Congress to mandate E-Verify for federal contractors, it says nothing about Congress’ intent.    (4) There is no reason to imply negatively from language telling the Secretary not to make the program mandatory, permission for the States to do so. There is no presumption that a State may modify the operation of a uniquely federal program like E-Verify. Cf. Buckman Co. v. Plaintiffs’ Legal Comm. , 531 U. S. 341 , 347–348 (2001); Boyle v. United Technologies Corp. , 487 U. S. 500 , 504–505 (1988); see also post , at 15–16 (Sotomayor, J., dissenting). The remaining federal statutory language makes clear the voluntary nature of the E-Verify program. Arizona’s plan would undermine that federal objective.    For these reasons I would hold that the federal Act, including its E-Verify provisions, pre-empts Arizona’s state law. With respect, I dissent from the majority’s contrary holdings. SOTOMAYOR, J., DISSENTING CHAMBER OF COMMERCE OF UNITED STATES OFAMERICA V. WHITING 563 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-115 CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, et al., PETITIONERS v. MICHAEL B. WHITING et al. on writ of certiorari to the united states court of appeals for the ninth circuit [May 26, 2011]    Justice Sotomayor, dissenting.    In enacting the Immigration Reform and Control Act of 1986 (IRCA), 100 Stat. 3359, Congress created a “comprehensive scheme prohibiting the employment of illegal aliens in the United States.” Hoffman Plastic Compounds, Inc. v. NLRB , 535 U. S. 137 , 147 (2002). The Court reads IRCA’s saving clause—which preserves from pre-emption state “licensing and similar laws,” 8 U. S. C. §1324a(h)(2)—to permit States to determine for themselves whether someone has employed an unauthorized alien so long as they do so in conjunction with licensing sanctions. This reading of the saving clause cannot be reconciled with the rest of IRCA’s comprehensive scheme. Having constructed a federal mechanism for determining whether someone has knowingly employed an unauthorized alien, and having withheld from the States the information necessary to make that determination, Congress could not plausibly have intended for the saving clause to operate in the way the majority reads it to do. When viewed in context, the saving clause can only be understood to preserve States’ authority to impose licensing sanctions after a final federal determination that a person has violated IRCA by knowingly employing an unauthorized alien. Because the Legal Arizona Workers Act instead creates a separate state mechanism for Arizona state courts to determine whether a person has employed an unauthorized alien, I would hold that it falls outside the saving clause and is pre-empted.    I would also hold that federal law pre-empts the provision of the Arizona Act making mandatory the use of E-Verify, the federal electronic verification system. By requiring Arizona employers to use E-Verify, Arizona has effectively made a decision for Congress regarding use of a federal resource, in contravention of the significant policy objectives motivating Congress’ decision to make participation in the E-Verify program voluntary. I A    I begin with the plain text of IRCA’s pre-emption clause. IRCA expressly pre-empts States from “imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.”[ Footnote 1 ] Ibid. The Arizona Act, all agree, imposes civil sanctions upon those who employ unauthorized aliens. The Act thus escapes express pre-emption only if it falls within IRCA’s parenthetical saving clause for “licensing and similar laws.” Ibid. The saving clause is hardly a paragon of textual clarity. IRCA does not define “licensing,” nor does it use the word “licensing” in any other provision. Laws that impose sanctions by means of licensing exist in many forms. Some permit authorities to take action with respect to licenses upon finding that a licensee has engaged in prohibited conduct. See, e.g. , Ariz. Rev. Stat. Ann. §4–210(A)(1) (West 2011) (liquor licenses may be suspended or revoked if the licensing authority determines after notice and a hearing that repeated acts of violence have occurred on the licensed premises). Others, more narrowly, permit authorities to take such action following a pre-existing determination by another authorized body that the licensee has violated another provision of law. See, e.g. , §4–202(D) (liquor licenses may not be renewed to persons who have been convicted of felonies within the past five years). That both types of laws might be defined in some contexts as licensing laws does not necessarily mean that Congress intended the saving clause to encompass both types. See Dolan v. Postal Service , 546 U. S. 481 , 486 (2006) (“A word in a statute may or may not extend to the outer limits of its definitional possibilities”); see also FCC v. AT&T Inc. , 562 U. S. ___, ___ (2011) (slip op., at 9) (“[C]onstruing statutory language is not merely an exercise in ascertaining the outer limits of [a word’s] definitional possibilities” (internal quotation marks omitted; second alteration in original)). In isolation, the text of IRCA’s saving clause provides no hint as to which type or types of licensing laws Congress had in mind. B    Because the plain text of the saving clause does not resolve the question, it is necessary to look to the text of IRCA as a whole to illuminate Congress’ intent. See Dolan , 546 U. S., at 486 (“Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute”); Ali v. Federal Bureau of Prisons , 552 U. S. 214 , 222 (2008) (construction of a statutory term “must, to the extent possible, ensure that the statutory scheme is coherent and consistent”); Davis v. Michigan Dept. of Treasury , 489 U. S. 803 , 809 (1989) (“[St]tatutory language cannot be construed in a vacuum. It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”).[ Footnote 2 ]    Before Congress enacted IRCA in 1986, a number of States had enacted legislation prohibiting employment of unauthorized aliens. See ante , at 2, and n. 1 (citing 12 such laws). California, for example, prohibited the knowing employment of an alien “who is not entitled to lawful residence in the United States” when “such employment would have an adverse effect on lawful resident workers,” and made violations punishable by fines of $200 to $500. 1971 Cal. Stats. ch. 1442, §1; see also De Canas v. Bica , 424 U. S. 351 , 352, n. 1 (1976). Kansas went even further, making it a misdemeanor, punishable by a term of confinement not to exceed one month, to employ a person within Kansas knowing “such person to be illegally within the territory of the United States.” Kan. Stat. Ann. §§21–4409, 21–4502 (1981).[ Footnote 3 ]    Congress enacted IRCA amidst this patchwork of state laws. IRCA “ ‘forcefully’ made combating the employment of illegal aliens central to ‘the policy of immigration law.’ ” Hoffman , 535 U. S., at 147 (quoting INS v. National Center for Immigrants’ Rights, Inc. , 502 U. S. 183 , 194, and n. 8 (1991); brackets omitted); see also H. R. Rep. No. 99–682, pt. 1, p. 46 (1986) (hereinafter H. R. Rep. No. 99–682) (“[L]egislation containing employer sanctions is the most humane, credible and effective way to respond to the large-scale influx of undocumented aliens”). As the majority explains, IRCA makes it “unlawful for a person or other entity to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” §1324a(a)(1)(A); ante , at 3. IRCA also requires employers to verify that they have reviewed documents establishing an employee’s eligibility for employment. See §1324a(b); ante , at 3–4. These two provisions are the foundation of IRCA’s “comprehensive scheme prohibiting the employment of illegal aliens in the United States.” Hoffman , 535 U. S., at 147.    Congress made explicit its intent that IRCA be enforced uniformly. IRCA declares that “[i]t is the sense of the Congress that … the immigration laws of the United States should be enforced vigorously and uniformly .” §115, 100 Stat. 3384 (emphasis added). Congress structured IRCA’s provisions in a number of ways to accomplish this goal of uniform enforcement.    First, and most obviously, Congress expressly displaced the myriad state laws that imposed civil and criminal sanctions on employers who hired unauthorized aliens. See §1324a(h)(2); see also H. R. Rep. No. 99–682, at 58 (“The penalties contained in this legislation are intended to specifically preempt any state or local laws providing civil fines and/or criminal sanctions on the hiring, recruitment or referral of undocumented aliens”). Congress could not have made its intent to pre-empt state and local laws imposing civil or criminal sanctions any more “ ‘clear [or] manifest.’ ” Medtronic, Inc. v. Lohr , 518 U. S. 470 , 485 (1996) (quoting Rice v. Santa Fe Elevator Corp. , 331 U. S. 218 , 230 (1947)).    Second, Congress centralized in the Federal Government enforcement of IRCA’s prohibition on the knowing employment of unauthorized aliens. IRCA instructs the Attorney General to designate a specialized federal agency unit whose “primary duty” will be to prosecute violations of IRCA. §1324a(e)(1)(D). IRCA also instructs the Attorney General to establish procedures for receiving complaints, investigating complaints having “a substantial probability of validity,” and investigating other violations. §1324a(e)(1); see also 8 CFR §274a.9 (2010). Upon concluding that a person has violated IRCA, the Attorney General must provide the person with notice and an opportunity for a hearing before a federal administrative law judge (ALJ). 8 U. S. C. §§1324a(e)(3)(A), (B). If the person does not request a hearing, the Attorney General may impose a final, nonappealable order requiring payment of sanctions. §1324a(e)(3)(B). If the person requests a hearing, the ALJ is required to hold a hearing and, upon finding that the person has violated IRCA, must order the payment of sanctions. §1324a(e)(3)(C). The ALJ’s order is the final agency order, unless the affected person requests and obtains further administrative appellate review. §1324a(e)(7); see also 28 CFR §68.54 (2010). IRCA grants immigration officers and ALJs “reasonable access to examine evidence of any person or entity being investigated” and provides them with extensive subpoena powers. §1324a(e)(2). And the immigration officers investigating suspected violations obviously have access to the relevant federal information concerning the work authorization status of the employee in question.[ Footnote 4 ]    Third, Congress provided persons “adversely affected” by an agency order with a right of review in the federal courts of appeals. §1324a(e)(8); see also §1324a(e)(9) (directing the Attorney General in cases of noncompliance to file suit in federal district court to enforce a final order imposing sanctions); §1324a(f) (authorizing the Attorney General to pursue injunctive relief and criminal sanctions in federal district court). In this way, Congress ensured that administrative orders finding violations of IRCA would be reviewed by federal judges with experience adjudicating immigration-related matters.    Fourth, Congress created a uniquely federal system by which employers must verify the work authorization status of new hires. Under this system, an employer must attest under penalty of perjury on a form designated by the Attorney General (the I–9 form) that it has examined enumerated identification documents to verify that a new hire is not an unauthorized alien. §1324a(b)(1)(A); see also 8 CFR §274a.2; ante , at 3–4. Good-faith compliance with this verification requirement entitles an employer to an affirmative defense if charged with violating IRCA. §1324a(a)(3); see also H. R. Rep. No. 99–682, at 57. Notably, however, IRCA prohibits use of the I–9 form for any purpose other than enforcement of IRCA and various provisions of federal criminal law. §1324a(b)(5); 8 CFR §274a.2(b)(4). Use of the I–9 form is thus limited to federal proceedings, as the majority acknowledges. See ante , at 18, n. 9.    Finally, Congress created no mechanism for States to access information regarding an alien’s work authorization status for purposes of enforcing state prohibitions on the employment of unauthorized aliens. The relevant sections of IRCA make no provision for the sharing of work authorization information between federal and state authorities even though access to that information would be critical to a State’s ability to determine whether an employer has employed an unauthorized alien. In stark contrast, a separate provision in the same title of IRCA creates a verification system by which States can ascertain the immigration status of aliens applying for benefits under programs such as Medicaid and the food stamp program. See IRCA §121(a)(1)(C), 42 U. S. C. §1320b–7(d)(3). The existence of a verification system in one provision of IRCA, coupled with its absence in the provision governing employment of unauthorized aliens, suggests strongly that Congress did not contemplate any role for the States in adjudicating questions regarding employment of unauthorized aliens. Cf. Bates v. United States , 522 U. S. 23 , 29–30 (1997) (“Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion” (internal quotation marks and brackets omitted)).    In an attempt to show that Congress intended for the Federal Government to share immigration-related in-formation with the States, Arizona points to a federal statute, 8 U. S. C. §1373(c), requiring the Government to respond to certain inquiries from state agencies. Section 1373(c), however, merely requires the Government to respond to inquiries from state agencies “seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency.” It does not require the provision of information regarding an alien’s work authorization status, which is not necessar- ily synonymous with immigration status. See 8 CFR §274a.12(c) (identifying categories of legal aliens “who must apply for employment authorization”).[ Footnote 5 ] Arizona has not identified any federal statute or regulation requiring the Federal Government to provide information regarding an alien’s work authorization status to a State.[ Footnote 6 ] More importantly, §1373(c) was enacted in 1996, see §642(c), 110 Stat. 3009–707, and thus says nothing about Congress’ intent when it enacted IRCA’s saving clause a decade earlier. See Jones v. United States , 526 U. S. 227 , 238 (1999).    Collectively, these provisions demonstrate Congress’ intent to build a centralized, exclusively federal scheme for determining whether a person has “employ[ed], or recruit[ed] or refer[red] for a fee for employment, unauthorized aliens.” 8 U. S. C. §1324a(h)(2). C    IRCA’s saving clause must be construed against this backdrop. Focusing primarily on the text of the saving clause, Arizona and the majority read the clause to permit States to determine themselves whether a person has employed an unauthorized alien, so long as they do so in connection with licensing sanctions. See ante , at 12–13. This interpretation overlooks the broader statutory context and renders the statutory scheme “[in]coherent and [in]consistent.” Ali , 552 U. S., at 222.    Under the majority’s reading of the saving clause, state prosecutors decide whether to commence licensing-related proceedings against a person suspected of employing an unauthorized alien. The majority’s holding also permits state courts and other tribunals to adjudicate the question whether an employer has employed an unauthorized alien. The Arizona Act illustrates the problems with reading the saving clause to permit such state action. The Act directs prosecutors to verify an employee’s work authorization with the Federal Government pursuant to §1373(c), e.g. , Ariz. Rev. Stat. Ann. §23–212(B) (West Supp. 2010), and the state court “shall consider only the federal government’s determination pursuant to [§]1373(c)” in “determining whether an employee is an unauthorized alien,” e.g. , §23–212(H).[ Footnote 7 ] Putting aside the question whether §1373(c) actually provides access to work authorization information, §1373(c) did not exist when IRCA was enacted in 1986. See supra , at 9. Arizona has not identified any avenue by which States could have accessed work authorization information in the first decade of IRCA’s existence. The absence of any such avenue at the time of IRCA’s enactment speaks volumes as to how Congress would have understood the saving clause to operate: If States had no access to information regarding the work authorization status of aliens, how could state courts have accurately adjudicated the question whether an employer had employed an unauthorized alien?    The Arizona Act’s reliance on §1373(c) highlights the anomalies inherent in state schemes that purport to adjudicate whether an employee is an authorized alien. Even when Arizona prosecutors obtain information regarding an alien’s immigration status pursuant to §1373(c), the prosecutors and state court will have to determine the significance of that information to an alien’s work authorization status, which will often require deciding techni- cal questions of immigration law. See, e.g. , 8 CFR §§274a.12(a)–(c) (dividing 62 different classes of aliens into those authorized for employment incident to immigration status, those authorized for employment with a specific employer incident to immigration status, and those who must apply for work authorization). And, as discussed above, that information may not shed light at all on an alien’s work authorization status, which is oftentimes distinct from immigration status. See supra , at 8, and n. 5. As a result, in many cases state decisions—made by prosecutors and courts with no or little experience in federal immigration law—will rest on less-than-complete or inaccurate information, “creat[ing] enforcement risks not present in the federal system.” Ante , at 7 (Breyer, J., dissenting). I can discern no reason why Congress would have intended for state courts inexperienced in immigration matters to adjudicate, in the context of licensing sanctions, the very same question that IRCA commits to federal officers, ALJs, and the courts of appeals.    Equally problematic is the fact that employers charged under a state enforcement scheme with hiring unauthorized aliens are foreclosed from using I–9 forms in their defense in the state proceedings. Like IRCA, the Arizona Act confers an affirmative defense on employers who comply in good faith with IRCA’s verification requirement. See Ariz. Rev. Stat. Ann. §§23–212(J), 23–212.01(J). As discussed above, however, IRCA prohibits an employer from using the I–9 form to establish that affirmative defense under Arizona law. See 8 U. S. C. §1324a(b)(5); 8 CFR §274a.2(b)(4). Not to worry, the majority says: The employer can establish the affirmative defense through office policies and testimony of employees. Ante , at 18, n. 9. But Congress made the I–9 verification system and accompanying good-faith defense central to IRCA. See, e.g. , H. R. Rep. No. 99–682, at 60 (“[A]n effective verification procedure, combined with an affirmative defense for those who in good faith follow the procedure, is essential”). Given the importance of this procedure, if Congress in fact intended for state courts to adjudicate whether a person had employed an unauthorized alien in connection with licensing sanctions, why would it have prohibited that person from using the I–9 form—“the employer’s most effective evidence,” ante , at 9 (Breyer, J., dissenting)—in the state-court proceeding? The question answers itself: Congress intended no such thing.    Furthermore, given Congress’ express goal of “unifor[m]” enforcement of “the immigration laws of the United States,” IRCA §115, 100 Stat. 3384, I cannot believe that Congress intended for the 50 States and countless localities to implement their own distinct enforcement and adjudication procedures for deciding whether employers have employed unauthorized aliens. Reading the sav-ing clause as the majority does subjects employers to a patchwork of enforcement schemes similar to the one that Congress sought to displace when it enacted IRCA. Having carefully constructed a uniform federal scheme for determining whether a person has employed an unauthorized alien, Congress could not plausibly have meant to create such a gaping hole in that scheme through the undefined, parenthetical phrase “licensing and similar laws.” See Whitman v. American Trucking Assns., Inc. , 531 U. S. 457 , 468 (2001) (“Congress … does not, one might say, hide elephants in mouseholes”).    In sum, the statutory scheme as a whole defeats Arizona’s and the majority’s reading of the saving clause. Congress would not sensibly have permitted States to determine for themselves whether a person has employed an unauthorized alien, while at the same time creating a specialized federal procedure for making such a determination, withholding from the States the information necessary to make such a determination, and precluding use of the I–9 forms in nonfederal proceedings. See United States v. Locke , 529 U. S. 89 , 106 (2000) (“We decline to give broad effect to saving clauses where doing so would upset the careful regulatory scheme established by federal law”).    To render IRCA’s saving clause consistent with the statutory scheme, I read the saving clause to permit States to impose licensing sanctions following a final federal determination that a person has violated §1324a(a)(1)(A) by knowingly hiring, recruiting, or referring for a fee an unauthorized alien.[ Footnote 8 ] This interpretation both is faithful to the saving clause’s text, see supra , at 2–3, and best reconciles the saving clause with IRCA’s “careful regulatory scheme,” Locke , 529 U. S., at 106. It also makes sense as a practical matter. In enacting IRCA’s pre-emption clause, Congress vested in the Federal Government the authority to impose civil and criminal sanctions on persons who employ unauthorized aliens. Licensing and other types of business-related permissions are typically a matter of state law, however. See, e.g. , Kamen v. Kemper Financial Services, Inc. , 500 U. S. 90 , 98 (1991) (noting that “[c]orporation law” is an area traditionally “governed by state-law standards”); Chicago Title & Trust Co. v. Forty-One Thirty-Six Wilcox Bldg. Corp. , 302 U. S. 120 , 127 (1937) (“How long and upon what terms a state-created corporation may continue to exist is a matter exclusively of state power”). As a result, if Congress wanted to “ensur[e] that a full range of sanctions [was] available to be used against businesses that employ unauthorized aliens,” Brief for Respondent 37, Congress had to authorize the States and localities to impose licensing sanctions following a federal adjudication of a violation of IRCA.    I do not mean to suggest that the mere existence of a comprehensive federal scheme necessarily reveals a congressional intent to oust state remedies. Cf. English v. General Elec. Co. , 496 U. S. 72 , 87 (1990) (“[T]he mere existence of a federal regulatory or enforcement scheme … does not by itself imply pre-emption of state remedies”); New York State Dept. of Social Servs. v. Dublino , 413 U. S. 405 , 415 (1973) (rejecting the argument that “pre-emption is to be inferred merely from the comprehensive character of the federal [program]”). Here, Congress has made clear its intent to oust state civil and criminal remedies; the sole question is the scope of the saving clause’s exception for “licensing and similar laws.” The comprehensive scheme established by Congress necessarily informs the scope of this clause. For all the reasons stated, the only interpretation of that clause that is consistent with the rest of the statute is that it preserves the States’ authority to impose licensing sanctions after a final federal determination that a person has violated IRCA’s prohibition on the knowing employment of unauthorized aliens.    Under my construction of the saving clause, the Arizona Act cannot escape pre-emption. The Act authorizes Arizona county attorneys to commence actions charging an employer with having employed an unauthorized alien. Ariz. Rev. Stat. Ann. §§23–212(D), 23–212.01(D). Arizona state courts must find that an employer has employed an unauthorized alien before imposing the sanctions enumerated in the Act. §§23–212(F), 23–212.01(F). Because the Act’s sanctions are not premised on a final federal determination that an employer has violated IRCA, I would hold that the Act does not fall within IRCA’s saving clause and is therefore pre-empted.[ Footnote 9 ] II    I agree with the conclusion reached by Justice Breyer in Part IV of his dissenting opinion that federal law impliedly pre-empts the provision in the Arizona Act requiring all Arizona employers to use the federal E-Verify program. See Ariz. Rev. Stat. Ann. §23–214. I also agree with much of his reasoning. I write separately to offer a few additional observations.    As we have recently recognized, that a state law makes mandatory something that federal law makes voluntary does not mean, in and of itself, that the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Crosby v. National Foreign Trade Council , 530 U. S. 363 , 373 (2000) (internal quotation marks omitted). See Williamson v. Mazda Motor of America, Inc. , 562 U. S. ___, ___ (2011) (slip op., at 1–2) (concluding that a federal regulation permitting manufacturers to choose between two seatbelt options did not pre-empt state tort liability based on a decision to install one of those options); see also id. , at ___ (slip op., at 2) (Sotomayor, J., concurring) (“[T]he mere fact that an agency regulation allows manufacturers a choice between options is insufficient to justify implied pre-emption”).    This case, however, is readily distinguishable from cases like Williamson , in which state law regulates relationships between private parties. Here, the Arizona Act directly regulates the relationship between the Federal Government and private parties by mandating use of a federally created and administered resource. This case thus implicates the “uniquely federal interes[t]” in managing use of a federal resource. Boyle v. United Technologies Corp. , 487 U. S. 500 , 504 (1988) (internal quotation marks omitted); see also Buckman Co. v. Plaintiffs’ Legal Comm. , 531 U. S. 341 , 347 (2001) (“[T]he relationship between a federal agency and the entity it regulates is inherently federal in character because the relationship originates from, is governed by, and terminates according to federal law”).    Significant policy objectives motivated Congress’ decision to make use of E-Verify voluntary. In addition to those discussed by Justice Breyer, see ante , at 17–19 (dissenting opinion), I note that Congress considered the cost of a mandatory program. In 2003, when Congress elected to expand E-Verify to all 50 States but declined to require its use, it cited a congressionally mandated report concluding that the annual cost of the pilot program was $6 million, the annual cost of a nationwide voluntary program would be $11 million, and the annual cost of a nationwide mandatory program would be $11.7 billion . H. R. Rep. No. 108–304, pt. 1, p. 6 (2003); see also Institute for Survey Research, Temple Univ., and Westat, INS Basic Pilot Evaluation: Summary Report 38 (2002) (concluding that the Social Security Administration (SSA) and the Immigration and Naturalization Service were not “capable of enrolling and administering a program for the hundreds of thousands of employers in any of the large mandatory programs explored here”). A more recent re-port prepared for the Department of Homeland Security similarly noted the costs associated with mandatory use of E-Verify. See Westat, Findings of the E-Verify® Program Evaluation 224 (2009) (observing that the SSA estimated that it would have to hire an additional 1,500 field staff to handle a mandatory national program); id. , at 251 (re-commending that any expansion of E-Verify take place gradually “to allow the Federal government adequate time to hire and train the new staff required to run such a program”). Permitting States to make use of E-Verify mandatory improperly puts States in the position of making decisions for the Federal Government that directly affect expenditure and depletion of federal resources.[ Footnote 10 ]    The majority highlights the Government’s statement in its amicus brief that “ ‘the E-Verify system can accommodate the increased use that the Arizona statute and existing similar laws would create.’ ” Ante , at 25 (quoting Brief for United States as Amicus Curiae 34). But “[t]he purpose of Congress is the ultimate touchstone in every pre-emption case.” Medtronic , 518 U. S., at 494 (internal quotation marks omitted). It matters not whether the Executive Branch believes that the Government is now capable of handling the burdens of a mandatory system.[ Footnote 11 ] Congressional intent controls, and Congress has repeatedly decided to keep the E-Verify program voluntary. Because state laws requiring use of E-Verify frustrate the significant policy objectives underlying this decision, thereby imposing explicitly unwanted burdens on the Federal Government, I would hold that federal law impliedly pre-empts the Arizona requirement. *  *  *    For these reasons, I cannot agree with either of the Court’s holdings in this case. I respectfully dissent. Footnote 1 IRCA defines the term “unauthorized alien” to mean, “with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.” 8 U. S. C. §1324a(h)(3). Footnote 2 As these cases demonstrate, a contextual analysis of a statutory provision is in no way “untethered” from the statute’s text. Ante , at 15, n. 6. To the contrary, the majority’s reading of the saving clause—with its singular focus on the undefined word “licensing” to the exclusion of all contextual considerations—is “untethered” from the statute as a whole. Footnote 3 None of the pre-IRCA state laws cited by the majority provided for licensing-related sanctions. The parties have not identified any pre-IRCA state laws related to licensing that purported to regulate the employment of unauthorized aliens other than those governing agricultural labor contractors. See ante , at 13–14 (Breyer, J., dissenting). Footnote 4 By regulation, the Attorney General has conferred on parties charged with violating IRCA the right to obtain discovery from the Federal Government in a hearing before an ALJ. See 28 CFR §68.18. Footnote 5 For example, spouses and minor children of persons working in the United States as exchange visitors must apply for employment authorization even though they have lawful immigration status as dependents of the exchange visitor. See 8 CFR §274a.12(c)(5). Footnote 6 In its capacity as an employer, a State may be able to access in-formation regarding the work authorization status of its employees through use of E-Verify. Footnote 7 However, the “federal government’s determination creates [only] a rebuttable presumption of the employee’s lawful status.” E.g. , §23–212(H). Footnote 8 This reading of the saving clause finds support in IRCA’s legislative history. The House Committee on the Judiciary reported that IRCA was “not intended to preempt or prevent lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions pro-visions in this legislation .” H. R. Rep. No. 99–682, at 58 (emphasis added). The Committee’s reference to “this legislation” is, of course, a reference to IRCA, and only federal officers, ALJs, and courts have authority under IRCA to find that a person has violated the statute’s sanctions provisions.    My reading is also consistent with, though not compelled by, the provisions in IRCA that amended the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), 96 Stat. 2583. As Justice Breyer discusses in detail, see ante , at 13–15 (dissenting opinion), AWPA requires entities to secure a certificate of registration from the Department of Labor before engaging in any “farm labor contracting activity.” AWPA §101, 96 Stat. 2587, 29 U. S. C. §1811(a). Before 1986, AWPA prohibited farm labor contractors from hiring unauthorized aliens, and it permitted the Department of Labor to institute administrative proceedings to enforce this prohibition. See §§103(a)(3), 103(b), 106(a), 96 Stat. 2588–2590. In IRCA, Congress repealed this pro-hibition, IRCA §101(b)(1)(C), but authorized the Secretary of Labor to withdraw a contractor’s federal registration certificate upon a finding of an IRCA violation, IRCA §101(b)(1)(B)(iii), 100 Stat. 3372, 29 U. S. C. §1813(a)(6). Thus, IRCA made AWPA’s licensing sanctions turn on a prior federal adjudication of a violation of IRCA. Footnote 9 Because I believe that the Arizona Act does not fall within IRCA’s saving clause for this reason, I have no reason to consider the sepa- rate question whether the Act’s definition of “license” sweeps too broadly. Compare ante , at 9–11, with ante , at 1–2, 11–12 (Breyer, J., dissenting). Footnote 10 In Williamson v. Mazda Motor of America, Inc. , 562 U. S. ___, ___ (2011) (slip op., at 10), we held that the Federal Government’s judgment regarding the cost effectiveness of seatbelt options did not reveal an intent “to forbid common-law tort suits in which a judge or jury might reach a different conclusion.” The obvious distinction between that case and this one is that Congress’ decision to keep use of E-Verify voluntary bears directly on the costs to the Federal Government itself. Footnote 11 Notably, the Government’s brief does not state that the E-Verify system could accommodate the increased use that would result if all 50 States enacted similar laws; it limits its statement to “the Arizona statute and existing similar laws.” Brief for United States as Amicus Curiae 34 (emphasis added).

The Supreme Court ruled that Arizona's Legal Arizona Workers Act, which allows for the suspension or revocation of state licenses for employers who knowingly hire unauthorized aliens, is not preempted by federal immigration law. The Court found that the state's licensing provisions fall within the savings clause of the federal statute and do not conflict with federal law.

Immigration & National Security

Vartelas v. Holder

https://supreme.justia.com/cases/federal/us/566/257/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 10–1211 _________________ PANAGIS VARTELAS, PETITIONER v. ERIC H. HOLDER, Jr., ATTORNEY GENERAL on writ of certiorari to the united states court of appeals for the second circuit [March 28, 2012] Justice Ginsburg delivered the opinion of the Court. Panagis Vartelas, a native of Greece, became a lawful permanent resident of the United States in 1989. He pleaded guilty to a felony (conspiring to make a counterfeit security) in 1994, and served a prison sentence of four months for that offense. Vartelas traveled to Greece in 2003 to visit his parents. On his return to the United States a week later, he was treated as an inadmissible alien and placed in removal proceedings. Under the law governing at the time of Vartelas’ plea, an alien in his situation could travel abroad for brief periods without jeopardizing his resident alien status. See 8 U. S. C. §1101(a)(13) (1988 ed.), as construed in Rosenberg v. Fleuti , 374 U.S. 449 (1963). In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 110Stat. 3009–546. That Act effectively precluded foreign travel by lawful permanent residents who had a conviction like Vartelas’. Under IIRIRA, such aliens, on return from a sojourn abroad, however brief, may be permanently removed from the United States. See 8 U. S. C. §1101(a)(13)(C)(v); §1182(a)(2). This case presents a question of retroactivity not addressed by Congress: As to a lawful permanent resident convicted of a crime before the effective date of IIRIRA, which regime governs, the one in force at the time of the conviction, or IIRIRA? If the former, Vartelas’ brief trip abroad would not disturb his lawful permanent resident status. If the latter, he may be denied reentry. We conclude that the relevant provision of IIRIRA, §1101(a)(13)(C)(v), attached a new disability (denial of reentry) in respect to past events (Vartelas’ pre-IIRIRA offense, plea, and conviction). Guided by the deeply rooted presumption against retroactive legislation, we hold that §1101(a)(13)(C)(v) does not apply to Vartelas’ conviction. The impact of Vartelas’ brief travel abroad on his per- manent resident status is therefore determined not by IIRIRA, but by the legal regime in force at the time of his conviction. I A Before IIRIRA’s passage, United States immigration law established “two types of proceedings in which aliens can be denied the hospitality of the United States: deportation hearings and exclusion hearings.” Landon v. Plasencia , 459 U.S. 21 , 25 (1982). Exclusion hearings were held for certain aliens seeking entry to the United States, and deportation hearings were held for certain aliens who had already entered this country. See ibid . Under this regime, “entry” into the United States was defined as “any coming of an alien into the United States, from a foreign port or place.” 8 U. S. C. §1101(a)(13) (1988 ed.). The statute, however, provided an exception for lawful permanent residents; aliens lawfully residing here were not regarded as making an “entry” if their “departure to a foreign port or place . . . was not intended or reasonably to be expected by [them] or [their] presence in a foreign port or place . . . was not voluntary.” Ibid. Interpreting this cryptic provision, we held in Fleuti , 374 U. S., at 461–462, that Congress did not intend to exclude aliens long resident in the United States upon their return from “innocent, casual, and brief excursion[s] . . . outside this country’s borders.” Instead, the Court determined, Congress meant to rank a once-permanent resident as a new entrant only when the foreign excursion “meaningfully interrupt[ed] . . . the alien’s [U. S.] residence.” Id., at 462. Absent such “disrupti[on]” of the alien’s residency, the alien would not be “subject . . . to the consequences of an ‘entry’ into the country on his return.” Ibid. [ 1 ] In IIRIRA, Congress abolished the distinction between exclusion and deportation procedures and created a uniform proceeding known as “removal.” See 8 U. S. C. §§1229, 1229a; Judulang v. Holder , 565 U. S. ___, ___ (2011) (slip op., at 1–2). Congress made “admission” the key word, and defined admission to mean “the lawful entry of the alien into the United States after inspec- tion and authorization by an immigration officer.” §1101(a)(13)(A). This alteration, the Board of Immigration Appeals (BIA) determined, superseded Fleuti . See In re Collado-Munoz , 21 I. & N. Dec. 1061, 1065–1066 (1998) (en banc).[ 2 ] Thus, lawful permanent residents returning post-IIRIRA, like Vartelas, may be required to “ ‘see[k] an admission’ into the United States, without regard to whether the alien’s departure from the United States might previously have been ranked as ‘brief, casual, and innocent’ under the Fleuti doctrine.” Id. , at 1066. An alien seeking “admission” to the United States is subject to various requirements, see, e.g. , §1181(a), and cannot gain entry if she is deemed “inadmissible” on any of the numerous grounds set out in the immigration stat- utes, see §1182. Under IIRIRA, lawful permanent residents are regarded as seeking admission into the United States if they fall into any of six enumerated categories. §1101(a)(13)(C). Relevant here, the fifth of these categories covers aliens who “ha[ve] committed an offense identified in section 1182(a)(2) of this title.” §1101(a)(13)(C)(v). Offenses in this category include “a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime.” §1182(a)(2)(A)(i). In sum, before IIRIRA, lawful permanent residents who had committed a crime of moral turpitude could, under the Fleuti doctrine, return from brief trips abroad with- out applying for admission to the United States. Under IIRIRA, such residents are subject to admission procedures, and, potentially, to removal from the United States on grounds of inadmissibility.[ 3 ] B Panagis Vartelas, born and raised in Greece, has resided in the United States for over 30 years. Originally admitted on a student visa issued in 1979, Vartelas became a lawful permanent resident in 1989. He currently lives in the New York area and works as a sales manager for a roofing company. In 1992, Vartelas opened an auto body shop in Queens, New York. One of his business partners used the shop’s photocopier to make counterfeit travelers’ checks. Vartelas helped his partner perforate the sheets into individual checks, but Vartelas did not sell the checks or receive any money from the venture. In 1994, he pleaded guilty to conspiracy to make or possess counterfeit securities, in violation of 18 U. S. C. §371. He was sentenced to four months’ incarceration, followed by two years’ supervised release. Vartelas regularly traveled to Greece to visit his aging parents in the years after his 1994 conviction; even after the passage of IIRIRA in 1996, his return to the United States from these visits remained uneventful. In January 2003, however, when Vartelas returned from a week-long trip to Greece, an immigration officer classified him as an alien seeking “admission.” The officer based this classi- fication on Vartelas’ 1994 conviction. See United States ex rel. Volpe v. Smith , 289 U.S. 422 , 423 (1933) (counterfeiting ranks as a crime of moral turpitude). At Vartelas’ removal proceedings, his initial attorney conceded removability, and requested discretionary relief from removal under the former §212(c) of the Immigration and Nationality Act (INA). See 8 U. S. C. §1182(c) (1994 ed.) (repealed 1996). This attorney twice failed to appear for hearings and once failed to submit a requested brief. Vartelas engaged a new attorney, who continued to concede removability and to request discretionary relief. The Immigration Judge denied the request for relief, and ordered Vartelas removed to Greece. The BIA affirmed the Immigration Judge’s decision. In July 2008, Vartelas filed with the BIA a timely motion to reopen the removal proceedings, alleging that his previous attorneys were ineffective for, among other lapses, conceding his removability. He sought to withdraw the concession of removability on the ground that IIRIRA’s new “admission” provision, codified at §1101(a)(13), did not reach back to deprive him of lawful resident status based on his pre-IIRIRA conviction. The BIA denied the motion, declaring that Vartelas had not been prejudiced by his lawyers’ performance, for no legal authority prevented the application of IIRIRA to Vartelas’ pre-IIRIRA conduct. The U. S. Court of Appeals for the Second Circuit affirmed the BIA’s decision, agreeing that Vartelas had failed to show he was prejudiced by his attorneys’ allegedly ineffective performance. Rejecting Vartelas’ argument that IIRIRA operated prospectively and therefore did not govern his case, the Second Circuit reasoned that he had not relied on the prior legal regime at the time he committed the disqualifying crime. See 620 F.3d 108, 118–120 (2010). In so ruling, the Second Circuit created a split with two other Circuits. The Fourth and Ninth Circuits have held that the new §1101(a)(13) may not be applied to lawful permanent residents who committed crimes listed in §1182 (among them, crimes of moral turpitude) prior to IIRIRA’s enactment. See Olatunji v. Ashcroft , 387 F.3d 383 (CA4 2004); Camins v. Gonzales , 500 F.3d 872 (CA9 2007). We granted certiorari, 564 U. S. ___ (2011), to resolve the conflict among the Circuits. II As earlier explained, see supra , at 2–4, pre-IIRIRA, a resident alien who once committed a crime of moral turpitude could travel abroad for short durations without jeopardizing his status as a lawful permanent resident. Under IIRIRA, on return from foreign travel, such an alien is treated as a new arrival to our shores, and may be removed from the United States. Vartelas does not question Congress’ authority to restrict reentry in this manner. Nor does he contend that Congress could not do so retroactively. Instead, he invokes the principle against retro- active legislation, under which courts read laws as prospective in application unless Congress has unambiguously instructed retroactivity. See Landgraf v. USI Film Products , 511 U.S. 244 , 263 (1994). The presumption against retroactive legislation, the Court recalled in Landgraf , “embodies a legal doctrine centuries older than our Republic.” Id ., at 265. Several provisions of the Constitution, the Court noted, embrace the doctrine, among them, the Ex Post Facto Clause, the Contract Clause, and the Fifth Amendment’s Due Process Clause. Id ., at 266. Numerous decisions of this Court repeat the classic formulation Justice Story penned for determining when retrospective application of a law would collide with the doctrine. It would do so, Story stated, when such application would “tak[e] away or impai[r] vested rights acquired under existing laws, or creat[e] a new obligation, impos[e] a new duty, or attac[h] a new disability, in respect to transactions or considerations already past.” Society for Propagation of Gospel v. Wheeler , 22 F. Cas. 756, 767 (No. 13,156) (CC NH 1814). See, e.g ., INS v. St. Cyr , 533 U.S. 289 , 321 (2001) (invoking Story’s formulation); Hughes Aircraft Co. v. United States ex rel. Schumer , 520 U.S. 939 , 947 (1997); Landgraf , 511 U. S., at 283.[ 4 ] Vartelas urges that applying IIRIRA to him, rather than the law that existed at the time of his conviction, would attach a “new disability,” effectively a ban on travel outside the United States, “in respect to [events] . . . already past,” i.e ., his offense, guilty plea, conviction, and punishment, all occurring prior to the passage of IIRIRA. In evaluating Vartelas’ argument, we note first a matter not disputed by the Government: Congress did not expressly prescribe the temporal reach of the IIRIRA provision in question, 8 U. S. C. §1101(a)(13). See Landgraf , 511 U. S., at 280 (Court asks first “whether Congress has expressly prescribed [new §1101(a)(13)’s] proper reach”); Brief for Respondent 11 (Court’s holding in INS v. St. Cyr , 533 U. S., at 317–320, “compels the conclusion that Congress has not ‘expressly prescribed the statute’s proper reach’ ” (quoting Landgraf , 511 U. S., at 280)).[ 5 ] Several other provisions of IIRIRA, in contrast to §1101(a)(13), expressly direct retroactive application, e.g ., 8 U. S. C. §1101(a)(43) (IIRIRA’s amendment of the “aggravated felony” definition applies expressly to “conviction[s] . . . entered before, on, or after” the statute’s enactment date (internal quotation marks omitted)). See St. Cyr , 533 U. S., at 319–320, and n. 43 (setting out further examples). Accordingly, we proceed to the dispositive question whether, as Vartelas maintains, application of IIRIRA’s travel restraint to him “would have retroactive effect” Congress did not authorize. See Landgraf , 511 U. S., at 280. Vartelas presents a firm case for application of the antiretroactivity principle. Neither his sentence, nor the immigration law in effect when he was convicted and sentenced, blocked him from occasional visits to his parents in Greece. Current §1101(a)(13)(C)(v), if applied to him, would thus attach “a new disability” to conduct over and done well before the provision’s enactment. Beyond genuine doubt, we note, the restraint §1101(a)(13)(C)(v) places on lawful permanent residents like Vartelas ranks as a “new disability.” Once able to journey abroad to fulfill religious obligations, attend funerals and weddings of family members, tend to vital financial interests, or respond to family emergencies, permanent residents situated as Vartelas is now face potential banishment. We have several times recognized the severity of that sanction. See, e.g., Padilla v. Kentucky , 559 U. S. ___, ___ (2010) (slip op., at 8–9, 16). It is no answer to say, as the Government suggests, that Vartelas could have avoided any adverse consequences if he simply stayed at home in the United States, his residence for 24 years prior to his 2003 visit to his parents in Greece. See Brief in Opposition 13 (Vartelas “could have avoided the application of the statute . . . [by] refrain[ing] from departing from the United States (or from returning to the United States).”); post , at 3. Loss of the ability to travel abroad is itself a harsh penalty,[ 6 ] made all the more devastating if it means enduring separation from close family members living abroad. See Brief for Asian American Justice Center et al. as Amici Curiae 16–23 (describing illustrative cases). We have rejected arguments for retroactivity in similar cases, and in cases in which the loss at stake was less momentous. In Chew Heong v. United States , 112 U.S. 536 (1884), a pathmarking decision, the Court confronted the “Chinese Restriction Act,” which barred Chinese laborers from reentering the United States without a certificate issued on their departure. The Court held the reentry bar inapplicable to aliens who had left the country prior to the Act’s passage and tried to return afterward without a certificate. The Act’s text, the Court observed, was not “so clear and positive as to leave no room to doubt [retroactive application] was the intention of the legislature.” Id ., at 559. In Landgraf , the question was whether an amendment to Title VII’s ban on employment discrimination authorizing compensatory and punitive damages applied to pre-enactment conduct. The Court held it did not. No doubt the complaint against the employer charged discrimination that violated the Act at the time it occurred. But compensatory and punitive damages were not then available remedies. The later provision for such damages, the Court determined, operated prospectively only, and did not apply to employers whose discriminatory conduct oc- curred prior to the amendment. See 511 U. S., at 280–286. And in Hughes Aircraft , the Court held that a provision removing an affirmative defense to qui tam suits did not apply to pre-enactment fraud. As in Landgraf , the provision attached “a new disability” to past wrongful conduct and therefore could not apply retrospectively unless Congress clearly manifested such an intention. Hughes Aircraft , 520 U. S., at 946–950. Most recently, in St. Cyr , the Court took up the case of an alien who had entered a plea to a deportable offense. At the time of the plea, the alien was eligible for discretionary relief from deportation. IIRIRA, enacted after entry of the plea, removed that eligibility. The Court held that the IIRIRA provision in point could not be applied to the alien, for it attached a “new disability” to the guilty plea and Congress had not instructed such a result. 533 U. S., at 321–323. III The Government, echoed in part by the dissent, argues that no retroactive effect is involved in this case, for the Legislature has not attached any disability to past conduct. Rather, it has made the relevant event the alien’s post-IIRIRA act of returning to the United States. See Brief for Respondent 19–20; post , at 3. We find this argument disingenuous. Vartelas’ return to the United States occasioned his treatment as a new entrant, but the reason for the “new disability” imposed on him was not his lawful foreign travel. It was, indeed, his conviction, pre-IIRIRA, of an offense qualifying as one of moral turpitude. That past misconduct, in other words, not present travel, is the wrongful activity Congress targeted in §1101(a)(13)(C)(v). The Government observes that lower courts have up- held Racketeer Influenced and Corrupt Organizations Act prosecutions that encompassed pre-enactment conduct. See Brief for Respondent 18 (citing United States v. Brown , 555 F.2d 407, 416–417 (CA5 1977), and United States v. Campanale , 518 F.2d 352, 364–365 (CA9 1975) (per curiam) ). But those prosecutions depended on criminal activity, i.e. , an act of racketeering occuring after the provision’s effective date. Section 1101(a)(13)(C)(v), in contrast, does not require any showing of criminal conduct postdating IIRIRA’s enactment. Fernandez-Vargas v. Gonzales , 548 U.S. 30 (2006), featured by the Government and the dissent, Brief for Respondent 17, 36–37; post , at 3, is similarly inapposite. That case involved 8 U. S. C. §1231(a)(5), an IIRIRA addition, which provides that an alien who reenters the United States after having been removed can be removed again under the same removal order. We held that the provision could be applied to an alien who reentered illegally before IIRIRA’s enactment. Explaining the Court’s decision, we said: “[T]he conduct of remaining in the country . . . is the predicate action; the statute applies to stop an indefinitely continuing violation . . . . It is therefore the alien’s choice to continue his illegal presence . . . after the effective date of the new la[w] that subjects him to the new . . . legal regime, not a past act that he is helpless to undo.” 548 U. S., at 44 (emphasis added). Vartelas, we have several times stressed, engaged in no criminal activity after IIRIRA’s passage. He simply took a brief trip to Greece, anticipating a return without incident as in past visits to his parents. No “indefinitely continuing” crime occurred; instead, Vartelas was apprehended because of a pre-IIRIRA crime he was “helpless to undo.” Ibid . The Government further refers to lower court decisions in cases involving 18 U. S. C. §922(g), which prohibits the possession of firearms by convicted felons. Brief for Respondent 18–19 (citing United States v. Pfeifer , 371 F.3d 430 , 436 (CA8 2004), and United States v. Hemmings , 258 F.3d 587 , 594 (CA7 2001)). “[L]ongstanding prohibitions on the possession of firearms by felons,” District of Columbia v. Heller , 554 U.S. 570 , 626 (2008), however, target a present danger, i.e ., the danger posed by felons who bear arms. See, e.g ., Pfeifer , 371 F. 3d, at 436 (hazardous conduct that statute targets “occurred after enactment of the statute”); Omnibus Crime Control and Safe Streets Act of 1968, §1201, 82Stat. 236 (noting hazards involved when felons possess firearms).[ 7 ] Nor do recidivism sentencing enhancements support the Government’s position. Enhanced punishment imposed for the later offense “ ‘is not to be viewed as . . . [an] additional penalty for the earlier crimes,’ but instead, as a ‘stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive one.’ ” Witte v. United States , 515 U.S. 389 , 400 (1995) (quoting Gryger v. Burke , 334 U.S. 728 , 732 (1948)). In Vartelas’ case, however, there is no “aggravated . . . repetitive” offense. There is, in contrast, no post-IIRIRA criminal offense at all. Vartelas’ travel abroad and return are “innocent” acts, see Fleuti , 374 U. S., at 462, burdened only because of his pre-IIRIRA offense. In sum, Vartelas’ brief trip abroad post-IIRIRA involved no criminal infraction. IIRIRA disabled him from leaving the United States and returning as a lawful permanent resident. That new disability rested not on any continuing criminal activity, but on a single crime committed years before IIRIRA’s enactment. The antiretroactivity principle instructs against application of the new proscription to render Vartelas a first-time arrival at the country’s gateway. IV The Second Circuit homed in on the words “committed an offense” in §1101(a)(13)(C)(v) in determining that the change IIRIRA wrought had no retroactive effect. 620 F. 3d, at 119–121. It matters not that Vartelas may have relied on the prospect of continuing visits to Greece in deciding to plead guilty, the court reasoned. “[I]t would border on the absurd,” the court observed, “to suggest that Vartelas committed his counterfeiting crime in reliance on the immigration laws.” Id ., at 120. This reasoning is doubly flawed. As the Government acknowledges, “th[is] Court has not required a party challenging the application of a statute to show [he relied on prior law] in structuring his conduct.” Brief for Respondent 25–26. In Landgraf , for example, the issue was the retroactivity of compensatory and punitive damages as remedies for employment discrimination. “[C]oncerns of . . . upsetting expectations are attenuated in the case of intentional employment discrimination,” the Court noted, for such discrimination “has been unlawful for more than a generation.” 511 U. S., at 282, n. 35. But “[e]ven when the conduct in question is morally reprehensible or illegal,” the Court added, “a degree of unfairness is inherent whenever the law imposes additional burdens based on conduct that occurred in the past.” Id. , at 283, n. 35. And in Hughes Aircraft , the Court found that Congress’ 1986 removal of a defense to a qui tam action did not apply to pre-1986 conduct in light of the presumption against retroactivity. 520 U. S., at 941–942.[ 8 ] As in Landgraf , the relevant conduct (submitting a false claim) had been unlawful for decades. See 520 U. S., at 947. The operative presumption, after all, is that Congress intends its laws to govern prospectively only. See supra , at 7. “It is a strange ‘presumption,’ ” the Third Circuit commented, “that arises only on . . . a showing [of] actual reliance.” Ponnapula v. Ashcroft , 373 F.3d 480 , 491 (2004). The essential inquiry, as stated in Landgraf , 511 U. S., at 269–270, is “whether the new provision attaches new legal consequences to events completed before its enactment.” That is just what occurred here. In any event, Vartelas likely relied on then-existing immigration law. While the presumption against retroactive application of statutes does not require a showing of detrimental reliance, see Olatunji , 387 F. 3d, at 389–395, reasonable reliance has been noted among the “familiar considerations” animating the presumption, see Landgraf , 511 U. S., at 270 (presumption reflects “familiar consid- erations of fair notice, reasonable reliance, and settled expectations”). Although not a necessary predicate for in- voking the antiretroactivity principle, the likelihood of reliance on prior law strengthens the case for reading a newly enacted law prospectively. See Olatunji , 387 F. 3d, at 393 (discussing St. Cyr ). St. Cyr is illustrative. That case involved a lawful permanent resident who pleaded guilty to a criminal charge that made him deportable. Under the immigration law in effect when he was convicted, he would have been eligible to apply for a waiver of deportation. But his removal proceeding was commenced after Congress, in IIRIRA, withdrew that dispensation. Disallowance of discretionary waivers, the Court recognized, “attache[d] a new disability, in respect to transactions or considerations already past.” 533 U. S., at 321 (internal quotation marks omitted). Aliens like St. Cyr, the Court observed, “almost certainly relied upon th[e] likelihood [of receiving discretionary relief] in deciding [to plead guilty, thereby] forgo[ing] their right to a trial.” Id ., at 325.[ 9 ] Hence, applying the IIRIRA withdrawal to St. Cyr would have an “obvious and severe retroactive effect.” Ibid . Because Congress made no such intention plain, ibid. , n. 55, we held that the prior law, permitting relief from deportation, governed St. Cyr’s case. As to retroactivity, one might think Vartelas’ case even easier than St. Cyr’s. St. Cyr could seek the Attorney General’s discretionary dispensation. Vartelas, under Fleuti , was free, without seeking an official’s permission, to make trips of short duration to see and assist his parents in Greece.[ 10 ] The Second Circuit thought otherwise, compounding its initial misperception (treating reliance as essential to application of the antiretroactivity principle). The deportation provision involved in St. Cyr , 8 U. S. C. §1229b(a)(3), referred to the alien’s “convict[ion]” of a crime, while the statutory words sub judice in Vartelas’ case were “committed an offense.” §1101(a)(13)(C)(v); see supra , at 12–13.[ 11 ] The practical difference, so far as retroactivity is concerned, escapes from our grasp. Ordinarily, to determine whether there is clear and convincing evidence that an alien has committed a qualifying crime, the immigration officer at the border would check the alien’s records for a conviction. He would not call into session a piepowder court[ 12 ] to entertain a plea or conduct a trial. Satisfied that Vartelas’ case is at least as clear as St. Cyr’s for declining to apply a new law retroactively, we hold that Fleuti continues to govern Vartelas’ short-term travel. *  *  * For the reasons stated, the judgment of the Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 The dissent appears driven, in no small measure, by its dim view of the Court’s opinion in Fleuti . See post , at 6 (“same instinct” operative in Fleuti and this case). 2 The BIA determined that the Fleuti doctrine no longer held sway because it was rooted in the “no longer existent definition of ‘entry’ in [the INA].” 21 I. & N. Dec., at 1065. The Board also noted that “Congress . . . amended the law to expressly preserve some, but not all, of the Fleuti doctrine” when it provided that a lawful permanent resident absent from the United States for less than 180 days would not be regarded as seeking an admission except in certain enumerated circumstances, among them, prior commission of a crime of moral turpitude. See ibid. (citing 8 U. S. C. §1101(a)(13)(C)(ii)). Vartelas does not challenge the ruling in Collado-Munoz . We therefore assume, but do not decide, that IIRIRA’s amendments to §1101(a)(13)(A) abrogated Fleuti . 3 Although IIRIRA created a uniform removal procedure for both excludable and deportable aliens, the list of criminal offenses that subject aliens to exclusion remains separate from the list of offenses that render an alien deportable. These lists are “sometimes overlapping and sometimes divergent.” Judulang v. Holder , 565 U. S. ___, ___ (2011) (slip op., at 2). Pertinent here, although a single crime involving moral turpitude may render an alien inadmissible, it would not render her deportable. See 8 U. S. C. §1182(a)(2) (listing excludable crimes); §1227(a)(2) (listing deportable crimes). 4 The dissent asserts that Justice Story’s opinion “bear[s] no relation to the presumption against retroactivity.” Post , at 6. That is a bold statement in view of this Court’s many references to Justice Story’s formulation in cases involving the presumption that statutes operate only prospectively in the absence of a clear congressional statement to the contrary. 5 In St. Cyr , 533 U. S., at 317–320, we rejected the Government’s contention that Congress directed retroactive application of IIRIRA in its entirety. 6 See Kent v. Dulles , 357 U.S. 116 , 126 (1958) (“Freedom of movement across frontiers . . . may be as close to the heart of the individual as the choice of what he eats, or wears, or reads.”); Aptheker v. Secretary of State , 378 U.S. 500 , 519–520 (1964) (Douglas, J., concurring) (right to travel, “at home and abroad, is important for . . . business[,] . . . cul-tural, political, and social activities—for all the commingling which gre-garious man enjoys”). 7 The dissent, see post , at 6, notes two statutes of the same genre: laws prohibiting persons convicted of a sex crime against a victim under 16 years of age from working in jobs involving frequent contact with minors, and laws prohibiting a person “who has been adjudicated as a mental defective or who has been committed to a mental insti-tution” from possessing guns, 18 U. S. C. §922(g)(4). The dissent is correct that these statutes do not operate retroactively. Rather, they address dangers that arise postenactment: sex offenders with a history of child molestation working in close proximity to children, and men-tally unstable persons purchasing guns. The act of flying to Greece, in contrast, does not render a lawful permanent resident like Vartelas hazardous. Nor is it plausible that Congress’ solution to the problem of dangerous lawful permanent residents would be to pass a law that would deter such persons from ever leaving the United States. As for student loans, it is unlikely that the provision noted by the dissent, 20 U. S. C. §1091(r), would raise retroactivity questions in the first place. The statute has a prospective thrust. It concerns “[s]uspension of eligibility” when a student receiving a college loan commits a drug crime. The suspension runs “from the date of th[e] conviction” for specified periods, e.g. , two years for a second offense of possession. Moreover, eligibility may be restored before the period of ineligibility ends if the student establishes, under prescribed criteria, his rehabilitation. 8 The deleted defense permitted qui tam defendants to escape liability if the information on which a private plaintiff (relator) relied was already in the Government’s possession. Detrimental reliance was hardly apparent, for the Government, both before and after the statu-tory change, could bring suit with that information, and “the monetary liability faced by [a False Claims Act] defendant is the same whether the action is brought by the Government or by a qui tam relator.” 520 U. S., at 948. 9 “There can be little doubt,” the Court noted in St. Cyr , “that, asa general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions.” 533 U. S., at 322. Indeed, “[p]reserving [their] right to remain in the United States may be more important to [them] than any potential jail sentence.” Ibid . (internal quotation marks omitted). See Padilla v. Kentucky , 559 U. S. ___, ___ (2010) (slip op., at 9–11) (holding that counsel has a duty under the Sixth Amendment to inform a noncitizen defendant that his plea would make him eligible for deportation). 10 Armed with knowledge that a guilty plea would preclude travel abroad, aliens like Vartelas might endeavor to negotiate a plea to a nonexcludable offense—in Vartelas’ case, e.g ., possession of counterfeit securities—or exercise a right to trial. 11 After the words “committed an offense,” §1101(a)(13)(C)(v)’s next words are “identified in section 1182(a)(2).” That section refers to “any alien convicted of , or who admits having committed,” inter alia , “a crime involving moral turpitude.” §1182(a)(2)(A)(i)(I) (emphasis added). The entire §1101(a)(13)(C)(v) phrase “committed an offense identified in section 1182(a)(2),” on straightforward reading, appears to advert to a lawful permanent resident who has been convicted of an offense under §1182(a)(2) (or admits to one). 12 Piepowder (“dusty feet”) courts were temporary mercantile courts held at trade fairs in Medieval Europe; local merchants and guild members would assemble to hear commercial disputes. These courts provided fast and informal resolution of trade conflicts, settling cases “while the merchants’ feet were still dusty.” Callahan, Medieval Church Norms and Fiduciary Duties in Partnership, 26 Cardozo L. Rev. 215, 235, and n. 99 (2004) (internal quotation marks omitted) (quoting H. Berman, Law and Revolution: The Formation of the Western Legal Tradition 347 (1983)). SUPREME COURT OF THE UNITED STATES _________________ No. 10–1211 _________________ PANAGIS VARTELAS, PETITIONER v. ERIC H. HOLDER, Jr., ATTORNEY GENERAL on writ of certiorari to the united states court of appeals for the second circuit [March 28, 2012] Justice Scalia, with whom Justice Thomas and Justice Alito join, dissenting. As part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress required that lawful permanent residents who have committed certain crimes seek formal “admission” when they return to the United States from abroad. 8 U. S. C. §1101(a)(13)(C)(v). This case presents a straightforward question of statutory interpretation: Does that statute apply to lawful permanent residents who, like Vartelas, committed one of the specified offenses before 1996, but traveled abroad after 1996? Under the proper approach to determining a statute’s temporal application, the answer is yes. I The text of §1101(a)(13)(C)(v) does not contain a clear statement answering the question presented here. So the Court is correct that this case is governed by our longstanding interpretive principle that, in the absence of a contrary indication, a statute will not be construed to have retroactive application. See, e.g., Landgraf v. USI Film Products , 511 U.S. 244 , 280 (1994). The operative provision of this text—the provision that specifies the act that it prohibits or prescribes—says that lawful permanent residents convicted of offenses similar to Vartelas’s must seek formal “admission” before they return to the United States from abroad. Since Vartelas returned to the United States after the statute’s effective date, the application of that text to his reentry does not give the statute a retroactive effect. In determining whether a statute applies retroactively, we should concern ourselves with the statute’s actual operation on regulated parties, not with retroactivity as an abstract concept or as a substitute for fairness concerns. It is impossible to decide whether a statute’s application is retrospective or prospective without first identifying a reference point—a moment in time to which the statute’s effective date is either subsequent or antecedent. (Otherwise, the obvious question—retroactive in reference to what?—remains unanswered.) In my view, the identity of that reference point turns on the activity a statute is intended to regulate. For any given regulated party, the reference point (or “retroactivity event”) is the moment at which the party does what the statute forbids or fails to do what it requires. See Martin v. Hadix , 527 U.S. 343 , 362–363 (1999) (Scalia, J., concurring in part and concurring in judgment); Landgraf , supra, at 291 (Scalia, J., concurring in judgments). With an identified reference point, the retroactivity analysis is simple. If a person has engaged in the primary regulated activity before the statute’s effective date, then the statute’s application would be retroactive. But if a person engages in the primary regulated activity after the statute’s effective date, then the statute’s application is prospective only. In the latter case, the interpretive presumption against retroactivity does not bar the statute’s application. Under that commonsense approach, this is a relatively easy case. Although the class of aliens affected by §1101(a)(13)(C)(v) is defined with respect to past crimes, the regulated activity is reentry into the United States. By its terms, the statute is all about controlling admission at the border. It specifies six criteria to identify lawful permanent residents who are subject to formal “admission” procedures, most of which relate to the circumstances of departure, the trip itself, or reentry. The titles of the statutory sections containing §1101(a)(13)(C)(v) confirm its focus on admission, rather than crime: The provision is located within Title III of IIRIRA (“Inspection, Apprehension, Detention, Adjudication, and Removal of Inadmissible and Deportable Aliens”), under Subtitle A (“Revision of Procedures for Removal of Aliens”), and §301 (“Treating Persons Present in the United States Without Authorization as Not Admitted”). 110Stat. 3009–575. And the specific subsection of IIRIRA at issue (§301(a), entitled “ ‘Admission’ Defined”) is an amendment to the definition of “entry” in the general “Definitions” section of the Immigration and Nationality Act (INA). See ante, at 2–3. The original provision told border officials how to regulate admission—not how to punish crime—and the amendment does as well. Section 1101(a)(13)(C)(v) thus has no retroactive effect on Vartelas because the reference point here—Vartelas’s readmission to the United States after a trip abroad—occurred years after the statute’s effective date. Although Vartelas cannot change the fact of his prior conviction, he could have avoided entirely the consequences of §1101(a)(13)(C)(v) by simply remaining in the United States or, having left, remaining in Greece. That §1101(a)(13)(C)(v) had no effect on Vartelas until he performed a post-enactment activity is a clear indication that the statute’s application is purely prospective. See Fernandez-Vargas v. Gonzales , 548 U.S. 30 , 45, n. 11, 46 (2006) (no retroactive effect where the statute in question did “not operate on a completed preenactment act” and instead turned on “a failure to take timely action that would have avoided application of the new law altogether”). II The Court avoids this conclusion by insisting that “[p]ast misconduct, . . . not present travel, is the wrongful activity Congress targeted” in §1101(a)(13)(C)(v). Ante, at 11. That assertion does not, however, have any basis in the statute’s text or structure, and the Court does not pretend otherwise. Instead, the Court simply asserts that Vartelas’s “lawful foreign travel” surely could not be the “reason for the ‘new disability’ imposed on him.” Ibid. (emphasis added). But the reason for a prohibition has nothing to do with whether the prohibition is being applied to a past rather than a future act. It may be relevant to other legal inquiries—for example, to whether a legislative act violates one of the Ex Post Facto Clauses in Article I, see, e.g., Smith v. Doe , 538 U.S. 84 , 92 (2003), or one of the Due Process Clauses in the Fifth and Fourteenth Amendments, see, e.g., Williamson v. Lee Optical of Okla., Inc. , 348 U.S. 483 , 487 (1955), or the Takings Clause in the Fifth Amendment, see, e.g., Kelo v. New London , 545 U.S. 469 , 477–483 (2005), or the Obligation of Contracts Clause in Article I, see, e.g., United States Trust Co. of N. Y. v. New Jersey , 431 U.S. 1 , 29 (1977). But it has no direct bearing upon whether the statute is retroactive.[ 1 ]* The Court’s failure to differentiate between the statutory-interpretation question (whether giving certain effect to a provision would make it retroactive and hence presumptively unintended) and the validity question (whether giving certain effect to a provision is unlawful) is on full display in its attempts to distinguish §1101(a)(13)(C)(v) from similar statutes. Take, for example, the Court’s discussion of the Racketeer Influenced and Corrupt Organizations Act (RICO). That Act, which targets “patterns of racketeering,” expressly defines those “patterns” to include some pre-enactment conduct. See 18 U. S. C. §1961(5). Courts interpreting RICO therefore need not consider the presumption against retroactivity; instead, the cases cited by the majority consider whether RICO violates the Ex Post Facto Clause. See United States v. Brown , 555 F.2d 407, 416–417 (CA5 1977); United States v. Campanale , 518 F.2d 352, 364–365 (CA9 1975) (per curiam) . The Government recognized this distinction and cited RICO to make a point about the Ex Post Facto Clause rather than the presumption against retroactivity, Brief for Respondent 17–18; the Court evidently does not. The Court’s confident assertion that Congress surely would not have meant this statute to apply to Vartelas, whose foreign travel and subsequent return to the United States were innocent events, ante, at 11, 14, simply begs the question presented in this case. Ignorance, of course, is no excuse (ignorantia legis neminem excusat); and his return was entirely lawful only if the statute before us did not render it unlawful. Since IIRIRA’s effective date in 1996, lawful permanent residents who have committed crimes of moral turpitude are forbidden to leave the United States and return without formally seeking “admission.” See §1101(a)(13)(C)(v). As a result, Vartelas’s numerous trips abroad and “uneventful” reentries into the United States after the passage of IIRIRA, see ante, at 5, were lawful only if §1101(a)(13)(C)(v) does not apply to him—which is, of course, precisely the matter in dispute here. The Court’s circular reasoning betrays its underlying concern: Because the Court believes that reentry after a brief trip abroad should be lawful, it will decline to apply a statute that clearly provides otherwise for certain criminal aliens. (The same instinct likely produced the Court’s questionable statutory interpretation in Rosenberg v. Fleuti , 374 U.S. 449 (1963).) The Court’s test for retroactivity—asking whether the statute creates a “new disability” in “respect to past events”—invites this focus on fairness. Understandably so, since it is derived from a Justice Story opinion interpreting a provision of the New Hampshire Constitution that forbade retroactive laws—a provision comparable to the Federal Constitution’s ex post facto prohibition and bearing no relation to the presumption against retroactivity. What is unfair or irrational (and hence should be forbidden) has nothing to do with whether applying a statute to a particular act is prospective (and thus presumptively intended) or retroactive (and thus presumptively unintended). On the latter question, the “new disability in respect to past events” test provides no meaningful guidance. I can imagine countless laws that, like §1101(a)(13) (C)(v), impose “new disabilities” related to “past events” and yet do not operate retroactively. For example, a statute making persons convicted of drug crimes ineligible for student loans. See, e.g., 20 U. S. C. §1091(r)(1). Or laws prohibiting those convicted of sex crimes from working in certain jobs that involve repeated contact with minors. See, e.g., Cal. Penal Code Ann. §290.95(c) (West Supp. 2012). Or laws prohibiting those previously committed for mental instability from purchasing guns. See, e.g., 18 U. S. C. §922(g)(4). The Court concedes that it would not consider the last two laws inapplicable to pre-enactment convictions or commitments. Ante, at 12, n. 7. The Court does not deny that these statutes impose a “new disability in respect to past events,” but it distinguishes them based on the reason for their enactment: These statutes “address dangers that arise postenactment.” Ante, at 13, n. 7. So much for the new-disability-in-respect-to-past-events test; it has now become a new-disability-not-designed-to-guard-against-future-danger test. But why is guarding against future danger the only reason Congress may wish to regulate future action in light of past events? It obviously is not. So the Court must invent yet another doctrine to address my first example, the law making persons convicted of drug crimes ineligible for student loans. According to the Court, that statute differs from §1101(a)(13)(C)(v) because it “has a prospective thrust.” Ante, at 13, n. 7. I cannot imagine what that means, other than that the statute regulates post-enactment con- duct. But, of course, so does §1101(a)(13)(C)(v). Rather than reconciling any of these distinctions with Justice Story’s formulation of retroactivity, the Court leaves to lower courts the unenviable task of identifying new-disabilities-not-designed-to-guard-against-future-danger-and-also-lacking-a-prospective-thrust. And anyway, is there any doubt that §1101(a)(13)(C)(v) is intended to guard against the “dangers that arise postenactment” from having aliens in our midst who have shown themselves to have proclivity for crime? Must that be rejected as its purpose simply because Congress has not sought to achieve it by all possible means—by ferreting out such dangerous aliens and going through the expensive and lengthy process of deporting them? At least some of the post-enactment danger can readily be eliminated by forcing lawful permanent residents who have committed certain crimes to undergo formal “admission” procedures at our borders. Indeed, by limiting criminal aliens’ opportunities to travel and then return to the United States, §1101(a)(13)(C)(v) may encourage self-deportation. But all this is irrelevant. The positing of legislative “purpose” is always a slippery enterprise compared to the simple determination of whether a statute regulates a future event—and it is that, rather than the Court’s pronouncement of some forward-looking reason , which governs whether a statute has retroactive effect. Finally, I cannot avoid observing that even if the Court’s concern about the fairness or rationality of applying §1101(a)(13)(C)(v) to Vartelas were relevant to the statutory interpretation question, that concern is greatly exaggerated. In disregard of a federal statute, convicted criminal Vartelas repeatedly traveled to and from Greece without ever seeking formal admission at this country’s borders. When he was finally unlucky enough to be apprehended, and sought discretionary relief from removal under former §212(c) of the INA, 8 U. S. C. §1182(c) (1994 ed.), the Immigration Judge denying his application found that Vartelas had made frequent trips to Greece and had remained there for long periods of time, that he was “a serious tax evader,” that he had offered testimony that was “close to incredible,” and that he had not shown hardship to himself or his estranged wife and children should he be removed. See 620 F.3d 108, 111 (CA2 2010); Brief for Respondent 5 (internal quotation marks omitted). In decrying the “harsh penalty” imposed by this statute on Vartelas, the Court ignores those inconvenient facts. Ante , at 9. But never mind. Under any sensible approach to the presumption against retroactivity, these factual subtleties should be irrelevant to the temporal application of §1101(a)(13)(C)(v). *  *  * This case raises a plain-vanilla question of statutory interpretation, not broader questions about frustrated expectations or fairness. Our approach to answering that question should be similarly straightforward: We should determine what relevant activity the statute regulates (here, reentry); absent a clear statement otherwise, only such relevant activity which occurs after the statute’s effective date should be covered (here, post-1996 reentries). If, as so construed, the statute is unfair or irrational enough to violate the Constitution, that is another matter entirely, and one not presented here. Our interpretive presumption against retroactivity, however, is just that—a tool to ascertain what the statute means, not a license to rewrite the statute in a way the Court considers more desirable. I respectfully dissent. Notes 1 * I say no direct bearing because if the prospective application of a statute would raise constitutional doubts because of its effect on pre-enactment conduct, that would be a reason to presume a legislative intent not to apply it unless the conduct in question is post-enactment—that is, to consider it retroactive when the conduct in question is pre-enactment. See Clark v. Martinez , 543 U.S. 371 , 380–381 (2005). That is not an issue here. If the statute had expressly made the new “admission” rule applicable to those aliens with prior convictions, its constitutionality would not be in doubt.

The Supreme Court ruled that a lawful permanent resident of the United States, who had a prior felony conviction, was not subject to a new law that denied re-entry to convicted felons. The ruling was based on the principle that a law should not be applied retroactively to events that occurred before the law was passed, unless Congress specifies otherwise.

Immigration & National Security

Hamdan v. Rumsfeld

https://supreme.justia.com/cases/federal/us/548/557/

OPINION OF THE COURT HAMDAN V. RUMSFELD 548 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-184 SALIM AHMED HAMDAN, PETITIONER v. DONALD H. RUMSFELD, SECRETARY OF DEFENSE, et al. on writ of certiorari to the united states court of appeals for the district of columbia circuit [June 29, 2006]    Justice Stevens announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I through IV, Parts VI through VI–D–iii, Part VI–D–v, and Part VII, and an opinion with respect to Parts V and VI–D–iv, in which Justice Souter, Justice Ginsburg, and Justice Breyer join.    Petitioner Salim Ahmed Hamdan, a Yemeni national, is in custody at an American prison in Guantanamo Bay, Cuba. In November 2001, during hostilities between the United States and the Taliban (which then governed Afghanistan), Hamdan was captured by militia forces and turned over to the U. S. military. In June 2002, he was transported to Guantanamo Bay. Over a year later, the President deemed him eligible for trial by military commission for then-unspecified crimes. After another year had passed, Hamdan was charged with one count of conspiracy “to commit … offenses triable by military commission.” App. to Pet. for Cert. 65a.    Hamdan filed petitions for writs of habeas corpus and mandamus to challenge the Executive Branch’s intended means of prosecuting this charge. He concedes that a court-martial constituted in accordance with the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §801 et seq. (2000 ed. and Supp. III), would have authority to try him. His objection is that the military commission the President has convened lacks such authority, for two principal reasons: First, neither congressional Act nor the common law of war supports trial by this commission for the crime of conspiracy—an offense that, Hamdan says, is not a violation of the law of war. Second, Hamdan contends, the procedures that the President has adopted to try him violate the most basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.    The District Court granted Hamdan’s request for a writ of habeas corpus. 344 F. Supp. 2d 152 (DC 2004). The Court of Appeals for the District of Columbia Circuit reversed. 415 F. 3d 33 (2005). Recognizing, as we did over a half-century ago, that trial by military commission is an extraordinary measure raising important questions about the balance of powers in our constitutional structure, Ex parte Quirin, 317 U. S. 1 , 19 (1942), we granted certiorari. 546 U. S. ___ (2005).    For the reasons that follow, we conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ and the Geneva Conventions. Four of us also conclude, see Part V, infra , that the offense with which Hamdan has been charged is not an “offens[e] that by … the law of war may be tried by military commissions.” 10 U. S. C. §821. I    On September 11, 2001, agents of the al Qaeda terrorist organization hijacked commercial airplanes and attacked the World Trade Center in New York City and the national headquarters of the Department of Defense in Arlington, Virginia. Americans will never forget the devastation wrought by these acts. Nearly 3,000 civilians were killed.    Congress responded by adopting a Joint Resolution authorizing the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks … in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Authorization for Use of Military Force (AUMF), 115 Stat. 224, note following 50 U. S. C. §1541 (2000 ed., Supp. III). Acting pursuant to the AUMF, and having determined that the Taliban regime had supported al Qaeda, the President ordered the Armed Forces of the United States to invade Afghanistan. In the ensuing hostilities, hundreds of individuals, Hamdan among them, were captured and eventually detained at Guantanamo Bay.    On November 13, 2001, while the United States was still engaged in active combat with the Taliban, the President issued a comprehensive military order intended to govern the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” 66 Fed. Reg. 57833 (hereinafter November 13 Order or Order). Those subject to the November 13 Order include any noncitizen for whom the President determines “there is reason to believe” that he or she (1) “is or was” a member of al Qaeda or (2) has engaged or participated in terrorist activities aimed at or harmful to the United States. Id. , at 57834. Any such individual “shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including imprisonment or death.” Ibid. The November 13 Order vested in the Secretary of Defense the power to appoint military commissions to try individuals subject to the Order, but that power has since been delegated to John D. Altenberg, Jr., a retired Army major general and longtime military lawyer who has been designated “Appointing Authority for Military Commissions.”    On July 3, 2003, the President announced his determination that Hamdan and five other detainees at Guantanamo Bay were subject to the November 13 Order and thus triable by military commission. In December 2003, military counsel was appointed to represent Hamdan. Two months later, counsel filed demands for charges and for a speedy trial pursuant to Article 10 of the UCMJ, 10 U. S. C. §810. On February 23, 2004, the legal adviser to the Appointing Authority denied the applications, ruling that Hamdan was not entitled to any of the protections of the UCMJ. Not until July 13, 2004, after Hamdan had commenced this action in the United States District Court for the Western District of Washington, did the Government finally charge him with the offense for which, a year earlier, he had been deemed eligible for trial by military commission.    The charging document, which is unsigned, contains 13 numbered paragraphs. The first two paragraphs recite the asserted bases for the military commission’s jurisdiction—namely, the November 13 Order and the President’s July 3, 2003, declaration that Hamdan is eligible for trial by military commission. The next nine paragraphs, collectively entitled “General Allegations,” describe al Qaeda’s activities from its inception in 1989 through 2001 and identify Osama bin Laden as the group’s leader. Hamdan is not mentioned in these paragraphs.    Only the final two paragraphs, entitled “Charge: Conspiracy,” contain allegations against Hamdan. Paragraph 12 charges that “from on or about February 1996 to on or about November 24, 2001,” Hamdan “willfully and knowingly joined an enterprise of persons who shared a common criminal purpose and conspired and agreed with [named members of al Qaeda] to commit the following offenses triable by military commission: attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; and terrorism.” App. to Pet. for Cert. 65a. There is no allegation that Hamdan had any command responsibilities, played a leadership role, or participated in the planning of any activity.    Paragraph 13 lists four “overt acts” that Hamdan is alleged to have committed sometime between 1996 and November 2001 in furtherance of the “enterprise and conspiracy”: (1) he acted as Osama bin Laden’s “bodyguard and personal driver,” “believ[ing]” all the while that bin Laden “and his associates were involved in” terrorist acts prior to and including the attacks of September 11, 2001; (2) he arranged for transportation of, and actually transported, weapons used by al Qaeda members and by bin Laden’s bodyguards (Hamdan among them); (3) he “drove or accompanied [O]sama bin Laden to various al Qaida-sponsored training camps, press conferences, or lectures,” at which bin Laden encouraged attacks against Americans; and (4) he received weapons training at al Qaeda-sponsored camps. Id. , at 65a–67a.    After this formal charge was filed, the United States District Court for the Western District of Washington transferred Hamdan’s habeas and mandamus petitions to the United States District Court for the District of Columbia. Meanwhile, a Combatant Status Review Tribunal (CSRT) convened pursuant to a military order issued on July 7, 2004, decided that Hamdan’s continued detention at Guantanamo Bay was warranted because he was an “enemy combatant.”[ Footnote 1 ] Separately, proceedings before the military commission commenced.    On November 8, 2004, however, the District Court granted Hamdan’s petition for habeas corpus and stayed the commission’s proceedings. It concluded that the President’s authority to establish military commissions extends only to “offenders or offenses triable by military [commission] under the law of war,” 344 F. Supp. 2d, at 158; that the law of war includes the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, T. I. A. S. No. 3364 (Third Geneva Convention); that Hamdan is entitled to the full protections of the Third Geneva Convention until adjudged, in compliance with that treaty, not to be a prisoner of war; and that, whether or not Hamdan is properly classified as a prisoner of war, the military commission convened to try him was established in violation of both the UCMJ and Common Article 3 of the Third Geneva Convention because it had the power to convict based on evidence the accused would never see or hear. 344 F. Supp. 2d, at 158–172.    The Court of Appeals for the District of Columbia Circuit reversed. Like the District Court, the Court of Appeals declined the Government’s invitation to abstain from considering Hamdan’s challenge. Cf. Schlesinger v. Councilman, 420 U. S. 738 (1975). On the merits, the panel rejected the District Court’s further conclusion that Hamdan was entitled to relief under the Third Geneva Convention. All three judges agreed that the Geneva Conventions were not “judicially enforceable,” 415 F. 3d, at 38, and two thought that the Conventions did not in any event apply to Hamdan, id. , at 40–42; but see id. , at 44 (Williams, J., concurring). In other portions of its opinion, the court concluded that our decision in Quirin foreclosed any separation-of-powers objection to the military commission’s jurisdiction, and held that Hamdan’s trial before the contemplated commission would violate neither the UCMJ nor U. S. Armed Forces regulations intended to implement the Geneva Conventions. 415 F. 3d, at 38, 42–43.    On November 7, 2005, we granted certiorari to decide whether the military commission convened to try Hamdan has authority to do so, and whether Hamdan may rely on the Geneva Conventions in these proceedings. II    On February 13, 2006, the Government filed a motion to dismiss the writ of certiorari. The ground cited for dismissal was the recently enacted Detainee Treatment Act of 2005 (DTA), Pub. L. 109–148, 119 Stat. 2739. We postponed our ruling on that motion pending argument on the merits, 546 U. S. ___ (2006), and now deny it.    The DTA, which was signed into law on December 30, 2005, addresses a broad swath of subjects related to detainees. It places restrictions on the treatment and interrogation of detainees in U. S. custody, and it furnishes procedural protections for U. S. personnel accused of engaging in improper interrogation. DTA §§1002–1004, 119 Stat. 2739–2740. It also sets forth certain “procedures for status review of detainees outside the United States.” §1005, id. , at 2740. Subsections (a) through (d) of §1005 direct the Secretary of Defense to report to Congress the procedures being used by CSRTs to determine the proper classification of detainees held in Guantanamo Bay, Iraq, and Afghanistan, and to adopt certain safeguards as part of those procedures.    Subsection (e) of §1005, which is entitled “Judicial Review of Detention of Enemy Combatants,” supplies the basis for the Government’s jurisdictional argument. The subsection contains three numbered paragraphs. The first paragraph amends the judicial code as follows:    “(1) In general.—Section 2241 of title 28, United States Code, is amended by adding at the end the following: .     .     .     .     .    “ ‘(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider—    “ ‘(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or    “ ‘(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who—    “ ‘(A) is currently in military custody; or    “ ‘(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.’ ” §1005(e), id. , at 2741–2742.    Paragraph (2) of subsection (e) vests in the Court of Appeals for the District of Columbia Circuit the “exclusive jurisdiction to determine the validity of any final decision of a [CSRT] that an alien is properly designated as an enemy combatant.” Paragraph (2) also delimits the scope of that review. See §§1005(e)(2)(C)(i)–(ii), id. , at 2742.    Paragraph (3) mirrors paragraph (2) in structure, but governs judicial review of final decisions of military commissions, not CSRTs. It vests in the Court of Appeals for the District of Columbia Circuit “exclusive jurisdiction to determine the validity of any final decision rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order).” §1005(e)(3)(A), id. , at 2743.[ Footnote 2 ] Review is as of right for any alien sentenced to death or a term of imprisonment of 10 years or more, but is at the Court of Appeals’ discretion in all other cases. The scope of review is limited to the following inquiries:    “(i) whether the final decision [of the military commission] was consistent with the standards and procedures specified in the military order referred to in subparagraph (A); and    “(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States.” §1005(e)(3)(D), ibid .    Finally, §1005 contains an “effective date” provision, which reads as follows:    “(1) In general.—This section shall take effect on the date of the enactment of this Act.    “(2) Review of Combatant Status Tribunal and Military Commission Decisions.—Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.” §1005(h), id. , at 2743–2744.[ Footnote 3 ] The Act is silent about whether paragraph (1) of subsection (e) “shall apply” to claims pending on the date of enactment.    The Government argues that §§1005(e)(1) and 1005(h) had the immediate effect, upon enactment, of repealing federal jurisdiction not just over detainee habeas actions yet to be filed but also over any such actions then pending in any federal court—including this Court. Accordingly, it argues, we lack jurisdiction to review the Court of Appeals’ decision below.    Hamdan objects to this theory on both constitutional and statutory grounds. Principal among his constitutional arguments is that the Government’s preferred reading raises grave questions about Congress’ authority to impinge upon this Court’s appellate jurisdiction, particularly in habeas cases. Support for this argument is drawn from Ex parte Yerger, 8 Wall. 85 (1869), in which, having explained that “the denial to this court of appellate jurisdiction” to consider an original writ of habeas corpus would “greatly weaken the efficacy of the writ,” id. , at 102–103, we held that Congress would not be presumed to have effected such denial absent an unmistakably clear statement to the contrary. See id. , at 104–105; see also Felker v. Turpin, 518 U. S. 651 (1996); Durousseau v. United States, 6 Cranch 307, 314 (1810) (opinion for the Court by Marshall, C. J.) (The “appellate powers of this court” are not created by statute but are “given by the constitution”); United States v. Klein, 13 Wall. 128 (1872). Cf. Ex parte McCardle, 7 Wall. 506, 514 (1869) (holding that Congress had validly foreclosed one avenue of appellate review where its repeal of habeas jurisdiction, reproduced in the margin,[ Footnote 4 ] could not have been “a plainer instance of positive exception”). Hamdan also suggests that, if the Government’s reading is correct, Congress has unconstitutionally suspended the writ of habeas corpus.    We find it unnecessary to reach either of these arguments. Ordinary principles of statutory construction suffice to rebut the Government’s theory—at least insofar as this case, which was pending at the time the DTA was enacted, is concerned.    The Government acknowledges that only paragraphs (2) and (3) of subsection (e) are expressly made applicable to pending cases, see §1005(h)(2), 119 Stat. 2743–2744, but argues that the omission of paragraph (1) from the scope of that express statement is of no moment. This is so, we are told, because Congress’ failure to expressly reserve federal courts’ jurisdiction over pending cases erects a presumption against jurisdiction, and that presumption is rebutted by neither the text nor the legislative history of the DTA.    The first part of this argument is not entirely without support in our precedents. We have in the past “applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed.” Landgraf v. USI Film Products, 511 U. S. 244 , 274 (1994) (citing Bruner v. United States, 343 U. S. 112 (1952); Hallowell v. Commons, 239 U. S. 506 (1916)); see Republic of Austria v. Altmann, 541 U. S. 677 , 693 (2004). But the “presumption” that these cases have applied is more accurately viewed as the nonapplication of another presumption—viz., the presumption against retroactivity—in certain limited circumstances.[ Footnote 5 ] If a statutory provision “would operate retroactively” as applied to cases pending at the time the provision was enacted, then “our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.” Landgraf , 511 U. S., at 280. We have explained, however, that, unlike other intervening changes in the law, a jurisdiction-conferring or jurisdiction&nbhyph;stripping statute usually “takes away no substantive right but simply changes the tribunal that is to hear the case.” Hallowell , 239 U. S., at 508. If that is truly all the statute does, no retroactivity problem arises because the change in the law does not “impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Landgraf , 511 U. S., at 280.[ Footnote 6 ] And if a new rule has no retroactive effect, the presumption against retroactivity will not prevent its application to a case that was already pending when the new rule was enacted.    That does not mean, however, that all jurisdiction-stripping provisions—or even all such provisions that truly lack retroactive effect—must apply to cases pending at the time of their enactment.[ Footnote 7 ] “[N]ormal rules of construction,” including a contextual reading of the statutory language, may dictate otherwise. Lindh v. Murphy, 521 U. S. 320 , 326 (1997).[ Footnote 8 ] A familiar principle of statutory construction, relevant both in Lindh and here, is that a negative inference may be drawn from the exclusion of language from one statutory provision that is included in other provisions of the same statute. See id. , at 330; see also, e.g. , Russello v. United States, 464 U. S. 16 , 23 (1983) (“ ‘[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion’ ”). The Court in Lindh relied on this reasoning to conclude that certain limitations on the availability of habeas relief imposed by AEDPA applied only to cases filed after that statute’s effective date. Congress’ failure to identify the temporal reach of those limitations, which governed noncapital cases, stood in contrast to its express command in the same legislation that new rules governing habeas petitions in capital cases “apply to cases pending on or after the date of enactment.” §107(c), 110 Stat. 1226; see Lindh , 521 U. S., at 329–330. That contrast, combined with the fact that the amendments at issue “affect[ed] substantive entitlement to relief,” id. , at 327, warranted drawing a negative inference.    A like inference follows a fortiori from Lindh in this case. “If … Congress was reasonably concerned to ensure that [§§1005(e)(2) and (3)] be applied to pending cases, it should have been just as concerned about [§1005(e)(1)], unless it had the different intent that the latter [section] not be applied to the general run of pending cases.” Id. , at 329. If anything, the evidence of deliberate omission is stronger here than it was in Lindh . In Lindh , the provisions to be contrasted had been drafted separately but were later “joined together and … considered simultaneously when the language raising the implication was inserted.” Id. , at 330. We observed that Congress’ tandem review and approval of the two sets of provisions strengthened the presumption that the relevant omission was deliberate. Id. , at 331; see also Field v. Mans, 516 U. S. 59 , 75 (1995) (“The more apparently deliberate the contrast, the stronger the inference, as applied, for example, to contrasting statutory sections originally enacted simultaneously in relevant respects”). Here, Congress not only considered the respective temporal reaches of paragraphs (1), (2), and (3) of subsection (e) together at every stage, but omitted paragraph (1) from its directive that paragraphs (2) and (3) apply to pending cases only after having rejected earlier proposed versions of the statute that would have included what is now paragraph (1) within the scope of that directive. Compare DTA §1005(h)(2), 119 Stat. 2743–2744, with 151 Cong. Rec. S12655 (Nov. 10, 2005) (S. Amdt. 2515); see id. , at S14257–S14258 (Dec. 21, 2005) (discussing similar language proposed in both the House and the Senate).[ Footnote 9 ] Congress’ rejection of the very language that would have achieved the result the Government urges here weighs heavily against the Government’s interpretation. See Doe v. Chao, 540 U. S. 614 , 621–623 (2004).[ Footnote 10 ]    The Government nonetheless offers two reasons why, in its view, no negative inference may be drawn in favor of jurisdiction. First, it asserts that Lindh is inapposite because “Section 1005(e)(1) and (h)(1) remove jurisdiction, while Section 1005(e)(2), (3) and (h)(2) create an exclusive review mechanism and define the nature of that review.” Reply Brief in Support of Respondents’ Motion to Dismiss 4. Because the provisions being contrasted “address wholly distinct subject matters,” Martin v. Hadix, 527 U. S. 343 , 356 (1999), the Government argues, Congress’ different treatment of them is of no significance.    This argument must fail because it rests on a false distinction between the “jurisdictional” nature of subsection (e)(1) and the “procedural” character of subsections (e)(2) and (e)(3). In truth, all three provisions govern jurisdiction over detainees’ claims; subsection (e)(1) addresses jurisdiction in habeas cases and other actions “relating to any aspect of the detention,” while subsections (e)(2) and (3) vest exclusive,[ Footnote 11 ] but limited, jurisdiction in the Court of Appeals for the District of Columbia Circuit to review “final decision[s]” of CSRTs and military commissions.    That subsection (e)(1) strips jurisdiction while subsections (e)(2) and (e)(3) restore it in limited form is hardly a distinction upon which a negative inference must founder. Justice Scalia, in arguing to the contrary, maintains that Congress had “ample reason” to provide explicitly for application of subsections (e)(2) and (e)(3) to pending cases because “jurisdiction-stripping” provisions like subsection (e)(1) have been treated differently under our retroactivity jurisprudence than “jurisdiction-conferring” ones like subsections (e)(2) and (e)(3). Post , at 8 (dissenting opinion); see also Reply Brief in Support of Respondents’ Motion to Dismiss 5–6. That theory is insupportable. Assuming arguendo that subsections (e)(2) and (e)(3) “confer new jurisdiction (in the D. C. Circuit) where there was none before,” post , at 8 (emphasis in original); but see Rasul v. Bush, 542 U. S. 466 (2004), and that our precedents can be read to “strongly indicat[e]” that jurisdiction-creating statutes raise special retroactivity concerns not also raised by jurisdiction-stripping statutes, post , at 8,[ Footnote 12 ] subsections (e)(2) and (e)(3) “confer” jurisdiction in a manner that cannot conceivably give rise to retroactivity questions under our precedents. The provisions impose no additional liability or obligation on any private party or even on the United States, unless one counts the burden of litigating an appeal—a burden not a single one of our cases suggests triggers retroactivity concerns.[ Footnote 13 ] Moreover, it strains credulity to suggest that the desire to reinforce the application of subsections (e)(2) and (e)(3) to pending cases drove Congress to exclude subsection (e)(1) from §1005(h)(2).    The Government’s second objection is that applying subsections (e)(2) and (e)(3) but not (e)(1) to pending cases “produces an absurd result” because it grants (albeit only temporarily) dual jurisdiction over detainees’ cases in circumstances where the statute plainly envisions that the District of Columbia Circuit will have “ exclusive ” and immediate jurisdiction over such cases. Reply Brief in Support of Respondents’ Motion to Dismiss 7. But the premise here is faulty; subsections (e)(2) and (e)(3) grant jurisdiction only over actions to “determine the validity of any final decision” of a CSRT or commission. Because Hamdan, at least, is not contesting any “final decision” of a CSRT or military commission, his action does not fall within the scope of subsection (e)(2) or (e)(3). There is, then, no absurdity.[ Footnote 14 ]    The Government’s more general suggestion that Congress can have had no good reason for preserving habeas jurisdiction over cases that had been brought by detainees prior to enactment of the DTA not only is belied by the legislative history, see n. 10, supra , but is otherwise without merit. There is nothing absurd about a scheme under which pending habeas actions—particularly those, like this one, that challenge the very legitimacy of the tribunals whose judgments Congress would like to have reviewed—are preserved, and more routine challenges to final decisions rendered by those tribunals are carefully channeled to a particular court and through a particular lens of review.    Finally, we cannot leave unaddressed Justice Scalia’s contentions that the “meaning of §1005(e)(1) is entirely clear,” post , at 6, and that “the plain import of a statute repealing jurisdiction is to eliminate the power to consider and render judgment—in an already pending case no less than in a case yet to be filed,” post , at 3 (emphasis in original). Only by treating the Bruner rule as an inflexible trump (a thing it has never been, see n. 7, supra ) and ignoring both the rest of §1005’s text and its drafting history can one conclude as much. Congress here expressly provided that subsections (e)(2) and (e)(3) applied to pending cases. It chose not to so provide—after having been presented with the option—for subsection (e)(1). The omission is an integral part of the statutory scheme that muddies whatever “plain meaning” may be discerned from blinkered study of subsection (e)(1) alone. The dissent’s speculation about what Congress might have intended by the omission not only is counterfactual, cf. n. 10, supra (recounting legislative history), but rests on both a misconstruction of the DTA and an erroneous view our precedents, see supra , at 17, and n. 12.    For these reasons, we deny the Government’s motion to dismiss.[ Footnote 15 ] III    Relying on our decision in Councilman, 420 U. S. 738 , the Government argues that, even if we have statutory jurisdiction, we should apply the “judge-made rule that civilian courts should await the final outcome of on-going military proceedings before entertaining an attack on those proceedings.” Brief for Respondents 12. Like the District Court and the Court of Appeals before us, we reject this argument.    In Councilman , an army officer on active duty was referred to a court-martial for trial on charges that he violated the UCMJ by selling, transferring, and possessing marijuana. 420 U. S., at 739–740. Objecting that the alleged offenses were not “ ‘service connected,’ ” id. , at 740, the officer filed suit in Federal District Court to enjoin the proceedings. He neither questioned the lawfulness of courts-martial or their procedures nor disputed that, as a serviceman, he was subject to court-martial jurisdiction. His sole argument was that the subject matter of his case did not fall within the scope of court-martial authority. See id. , at 741, 759. The District Court granted his request for injunctive relief, and the Court of Appeals affirmed.    We granted certiorari and reversed. Id. , at 761. We did not reach the merits of whether the marijuana charges were sufficiently “service connected” to place them within the subject-matter jurisdiction of a court-martial. Instead, we concluded that, as a matter of comity, federal courts should normally abstain from intervening in pending court-martial proceedings against members of the Armed Forces,[ Footnote 16 ] and further that there was nothing in the particular circumstances of the officer’s case to displace that general rule. See id. , at 740, 758. Councilman identifies two considerations of comity that together favor abstention pending completion of ongoing court-martial proceedings against service personnel. See New v. Cohen , 129 F. 3d 639, 643 (CADC 1997); see also 415 F. 3d, at 36–37 (discussing Councilman and New ). First, military discipline and, therefore, the efficient operation of the Armed Forces are best served if the military justice system acts without regular interference from civilian courts. See Councilman , 420 U. S., at 752. Second, federal courts should respect the balance that Congress struck between military preparedness and fairness to individual service members when it created “an integrated system of military courts and review procedures, a critical element of which is the Court of Military Appeals, consisting of civilian judges ‘completely removed from all military influence or persuasion … .’ ” Id. , at 758 (quoting H. R. Rep. No. 491, 81st Cong., 1st Sess., p. 7 (1949)). Just as abstention in the face of ongoing state criminal proceedings is justified by our expectation that state courts will enforce federal rights, so abstention in the face of ongoing court-martial proceedings is justified by our expectation that the military court system established by Congress—with its substantial procedural protections and provision for appellate review by independent civilian judges—“will vindicate servicemen’s constitutional rights,” 420 U. S., at 758. See id. , at 755–758.[ Footnote 17 ]    The same cannot be said here; indeed, neither of the comity considerations identified in Councilman weighs in favor of abstention in this case. First, Hamdan is not a member of our Nation’s Armed Forces, so concerns about military discipline do not apply. Second, the tribunal convened to try Hamdan is not part of the integrated system of military courts, complete with independent review panels, that Congress has established. Unlike the officer in Councilman , Hamdan has no right to appeal any conviction to the civilian judges of the Court of Military Appeals (now called the United States Court of Appeals for the Armed Forces, see Pub. L. 103–337, 108 Stat. 2831). Instead, under Dept. of Defense Military Commission Order No. 1 (Commission Order No. 1), which was issued by the President on March 21, 2002, and amended most recently on August 31, 2005, and which governs the procedures for Hamdan’s commission, any conviction would be reviewed by a panel consisting of three military officers designated by the Secretary of Defense. Commission Order No. 1 §6(H)(4). Commission Order No. 1 provides that appeal of a review panel’s decision may be had only to the Secretary of Defense himself, §6(H)(5), and then, finally, to the President, §6(H)(6).[ Footnote 18 ]    We have no doubt that the various individuals assigned review power under Commission Order No. 1 would strive to act impartially and ensure that Hamdan receive all protections to which he is entitled. Nonetheless, these review bodies clearly lack the structural insulation from military influence that characterizes the Court of Appeals for the Armed Forces, and thus bear insufficient conceptual similarity to state courts to warrant invocation of abstention principles.[ Footnote 19 ]    In sum, neither of the two comity considerations underlying our decision to abstain in Councilman applies to the circumstances of this case. Instead, this Court’s decision in Quirin is the most relevant precedent. In Quirin , seven German saboteurs were captured upon arrival by submarine in New York and Florida. 317 U. S., at 21. The President convened a military commission to try the saboteurs, who then filed habeas corpus petitions in the United States District Court for the District of Columbia challenging their trial by commission. We granted the saboteurs’ petition for certiorari to the Court of Appeals before judgment. See id. , at 19. Far from abstaining pending the conclusion of military proceedings, which were ongoing, we convened a special Term to hear the case and expedited our review. That course of action was warranted, we explained, “[i]n view of the public importance of the questions raised by [the cases] and of the duty which rests on the courts, in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty, and because in our opinion the public interest required that we consider and decide those questions without any avoidable delay.” Ibid .    As the Court of Appeals here recognized, Quirin “provides a compelling historical precedent for the power of civilian courts to entertain challenges that seek to interrupt the processes of military commissions.” 415 F. 3d, at 36.[ Footnote 20 ] The circumstances of this case, like those in Quirin , simply do not implicate the “obligations of comity” that, under appropriate circumstances, justify abstention. Quackenbush v. Allstate Ins. Co., 517 U. S. 706 , 733 (1996) (Kennedy, J., concurring).    Finally, the Government has identified no other “important countervailing interest” that would permit federal courts to depart from their general “duty to exercise the jurisdiction that is conferred upon them by Congress.” Id. , at 716 (majority opinion). To the contrary, Hamdan and the Government both have a compelling interest in knowing in advance whether Hamdan may be tried by a military commission that arguably is without any basis in law and operates free from many of the procedural rules prescribed by Congress for courts-martial—rules intended to safeguard the accused and ensure the reliability of any conviction. While we certainly do not foreclose the possibility that abstention may be appropriate in some cases seeking review of ongoing military commission proceedings (such as military commissions convened on the battlefield), the foregoing discussion makes clear that, under our precedent, abstention is not justified here. We therefore proceed to consider the merits of Hamdan’s challenge. IV    The military commission, a tribunal neither mentioned in the Constitution nor created by statute, was born of military necessity. See W. Winthrop, Military Law and Precedents 831 (rev. 2d ed. 1920) (hereinafter Winthrop). Though foreshadowed in some respects by earlier tribunals like the Board of General Officers that General Washington convened to try British Major John André for spying during the Revolutionary War, the commission “as such” was inaugurated in 1847. Id. , at 832; G. Davis, A Treatise on the Military Law of the United States 308 (2d ed. 1909) (hereinafter Davis). As commander of occupied Mexican territory, and having available to him no other tribunal, General Winfield Scott that year ordered the establishment of both “ ‘ military commissions ’ ” to try ordinary crimes committed in the occupied territory and a “ council of war ” to try offenses against the law of war. Winthrop 832 (emphases in original).    When the exigencies of war next gave rise to a need for use of military commissions, during the Civil War, the dual system favored by General Scott was not adopted. Instead, a single tribunal often took jurisdiction over ordinary crimes, war crimes, and breaches of military orders alike. As further discussed below, each aspect of that seemingly broad jurisdiction was in fact supported by a separate military exigency. Generally, though, the need for military commissions during this period—as during the Mexican War—was driven largely by the then very limited jurisdiction of courts-martial: “The occasion for the military commission arises principally from the fact that the jurisdiction of the court-martial proper, in our law, is restricted by statute almost exclusively to members of the military force and to certain specific offences defined in a written code.” Id. , at 831 (emphasis in original).    Exigency alone, of course, will not justify the establishment and use of penal tribunals not contemplated by Article I, §8 and Article III, §1 of the Constitution unless some other part of that document authorizes a response to the felt need. See Ex parte Milligan , 4 Wall. 2, 121 (1866) (“Certainly no part of the judicial power of the country was conferred on [military commissions]”); Ex parte Vallandigham, 1 Wall. 243, 251 (1864); see also Quirin , 317 U. S., at 25 (“Congress and the President, like the courts, possess no power not derived from the Constitution”). And that authority, if it exists, can derive only from the powers granted jointly to the President and Congress in time of war. See id. , at 26–29; In re Yamashita , 327 U. S. 1 , 11 (1946).    The Constitution makes the President the “Commander in Chief” of the Armed Forces, Art. II, §2, cl. 1, but vests in Congress the powers to “declare War … and make Rules concerning Captures on Land and Water,” Art. I, §8, cl. 11, to “raise and support Armies,” id. , cl. 12, to “define and punish … Offences against the Law of Nations,” id. , cl. 10, and “To make Rules for the Government and Regulation of the land and naval Forces,” id. , cl. 14. The interplay between these powers was described by Chief Justice Chase in the seminal case of Ex parte Milligan: “The power to make the necessary laws is in Congress; the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authorities essential to its due exercise. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President… . Congress cannot direct the conduct of campaigns, nor can the President, or any commander under him, without the sanction of Congress, institute tribunals for the trial and punishment of offences, either of soldiers or civilians, unless in cases of a controlling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature.” 4 Wall., at 139–140.[ Footnote 21 ] Whether Chief Justice Chase was correct in suggesting that the President may constitutionally convene military commissions “without the sanction of Congress” in cases of “controlling necessity” is a question this Court has not answered definitively, and need not answer today. For we held in Quirin that Congress had, through Article of War 15, sanctioned the use of military commissions in such circumstances. 317 U. S., at 28 (“By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases”). Article 21 of the UCMJ, the language of which is substantially identical to the old Article 15 and was preserved by Congress after World War II,[ Footnote 22 ] reads as follows: “Jurisdiction of courts-martial not exclusive. “The provisions of this code conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions, provost courts, or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be tried by such military commissions, provost courts, or other military tribunals.” 64 Stat. 115.    We have no occasion to revisit Quirin ’s controversial characterization of Article of War 15 as congressional authorization for military commissions. Cf. Brief for Legal Scholars and Historians as Amici Curiae 12–15. Contrary to the Government’s assertion, however, even Quirin did not view the authorization as a sweeping mandate for the President to “invoke military commissions when he deems them necessary.” Brief for Respondents 17. Rather, the Quirin Court recognized that Congress had simply preserved what power, under the Constitution and the common law of war, the President had had before 1916 to convene military commissions—with the express condition that the President and those under his command comply with the law of war. See 317 U. S., at 28–29.[ Footnote 23 ] That much is evidenced by the Court’s inquiry, following its conclusion that Congress had authorized military commissions, into whether the law of war had indeed been complied with in that case. See ibid. The Government would have us dispense with the inquiry that the Quirin Court undertook and find in either the AUMF or the DTA specific, overriding authorization for the very commission that has been convened to try Hamdan. Neither of these congressional Acts, however, expands the President’s authority to convene military commissions. First, while we assume that the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld , 542 U. S. 507 (2004) (plurality opinion), and that those powers include the authority to convene military commissions in appropriate circumstances, see id. , at 518; Quirin , 317 U. S., at 28–29; see also Yamashita , 327 U. S., at 11, there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the UCMJ. Cf. Yerger, 8 Wall., at 105 (“Repeals by implication are not favored”).[ Footnote 24 ]    Likewise, the DTA cannot be read to authorize this commission. Although the DTA, unlike either Article 21 or the AUMF, was enacted after the President had convened Hamdan’s commission, it contains no language authorizing that tribunal or any other at Guantanamo Bay. The DTA obviously “recognize[s]” the existence of the Guantanamo Bay commissions in the weakest sense, Brief for Respondents 15, because it references some of the military orders governing them and creates limited judicial review of their “final decision[s],” DTA §1005(e)(3), 119 Stat. 2743. But the statute also pointedly reserves judgment on whether “the Constitution and laws of the United States are applicable” in reviewing such decisions and whether, if they are, the “standards and procedures” used to try Hamdan and other detainees actually violate the “Constitution and laws.” Ibid. Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the “Constitution and laws,” including the law of war. Absent a more specific congressional authorization, the task of this Court is, as it was in Quirin , to decide whether Hamdan’s military commission is so justified. It is to that inquiry we now turn. V    The common law governing military commissions may be gleaned from past practice and what sparse legal precedent exists. Commissions historically have been used in three situations. See Bradley & Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2048, 2132–2133 (2005); Winthrop 831–846; Hearings on H. R. 2498 before the Subcommittee of the House Committee on Armed Services, 81st Cong., 1st Sess., 975 (1949). First, they have substituted for civilian courts at times and in places where martial law has been declared. Their use in these circumstances has raised constitutional questions, see Duncan v. Kahanamoku, 327 U. S. 304 (1946); Milligan , 4 Wall., at 121–122, but is well recognized.[ Footnote 25 ] See Winthrop 822, 836–839. Second, commissions have been established to try civilians “as part of a temporary military government over occupied enemy territory or territory regained from an enemy where civilian government cannot and does not function.” Duncan , 327 U. S., at 314; see Milligan , 4 Wall., at 141–142 (Chase, C. J., concurring in judgment) (distinguishing “martial law proper” from “military government” in occupied territory). Illustrative of this second kind of commission is the one that was established, with jurisdiction to apply the German Criminal Code, in occupied Germany following the end of World War II. See Madsen v. Kinsella, 343 U. S. 341 , 356 (1952).[ Footnote 26 ]    The third type of commission, convened as an “incident to the conduct of war” when there is a need “to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war,” Quirin , 317 U. S., at 28–29, has been described as “utterly different” from the other two. Bickers, Military Commissions are Constitutionally Sound: A Response to Professors Katyal and Tribe, 34 Tex. Tech. L. Rev. 899, 902 (2002–2003).[ Footnote 27 ] Not only is its jurisdiction limited to offenses cognizable during time of war, but its role is primarily a factfinding one—to determine, typically on the battlefield itself, whether the defendant has violated the law of war. The last time the U. S. Armed Forces used the law-of-war military commission was during World War II. In Quirin , this Court sanctioned President Roosevelt’s use of such a tribunal to try Nazi saboteurs captured on American soil during the War. 317 U. S. 1 . And in Yamashita , we held that a military commission had jurisdiction to try a Japanese commander for failing to prevent troops under his command from committing atrocities in the Philippines. 327 U. S. 1 . Quirin is the model the Government invokes most frequently to defend the commission convened to try Hamdan. That is both appropriate and unsurprising. Since Guantanamo Bay is neither enemy-occupied territory nor under martial law, the law-of-war commission is the only model available. At the same time, no more robust model of executive power exists; Quirin represents the high-water mark of military power to try enemy combatants for war crimes.    The classic treatise penned by Colonel William Winthrop, whom we have called “the ‘Blackstone of Military Law,’ ” Reid v. Covert, 354 U. S. 1 , 19, n. 38 (1957) (plurality opinion), describes at least four preconditions for exercise of jurisdiction by a tribunal of the type convened to try Hamdan. First, “[a] military commission, (except where otherwise authorized by statute), can legally assume jurisdiction only of offenses committed within the field of the command of the convening commander.” Winthrop 836. The “field of command” in these circumstances means the “theatre of war.” Ibid. Second, the offense charged “must have been committed within the period of the war.”[ Footnote 28 ] Id. , at 837. No jurisdiction exists to try offenses “committed either before or after the war.” Ibid. Third, a military commission not established pursuant to martial law or an occupation may try only “[i]ndividuals of the enemy’s army who have been guilty of illegitimate warfare or other offences in violation of the laws of war” and members of one’s own army “who, in time of war, become chargeable with crimes or offences not cognizable, or triable, by the criminal courts or under the Articles of war.” Id. , at 838. Finally, a law-of-war commission has jurisdiction to try only two kinds of offense: “Violations of the laws and usages of war cognizable by military tribunals only,” and “[b]reaches of military orders or regulations for which offenders are not legally triable by court-martial under the Articles of war.” Id. , at 839.[ Footnote 29 ]    All parties agree that Colonel Winthrop’s treatise accurately describes the common law governing military commissions, and that the jurisdictional limitations he identifies were incorporated in Article of War 15 and, later, Article 21 of the UCMJ. It also is undisputed that Hamdan’s commission lacks jurisdiction to try him unless the charge “properly set[s] forth, not only the details of the act charged, but the circumstances conferring jurisdiction .” Id. , at 842 (emphasis in original). The question is whether the preconditions designed to ensure that a military necessity exists to justify the use of this extraordinary tribunal have been satisfied here.    The charge against Hamdan, described in detail in Part I, supra , alleges a conspiracy extending over a number of years, from 1996 to November 2001.[ Footnote 30 ] All but two months of that more than 5-year-long period preceded the attacks of September 11, 2001, and the enactment of the AUMF—the Act of Congress on which the Government relies for exercise of its war powers and thus for its authority to convene military commissions.[ Footnote 31 ] Neither the purported agreement with Osama bin Laden and others to commit war crimes, nor a single overt act, is alleged to have occurred in a theater of war or on any specified date after September 11, 2001. None of the overt acts that Hamdan is alleged to have committed violates the law of war.    These facts alone cast doubt on the legality of the charge and, hence, the commission; as Winthrop makes plain, the offense alleged must have been committed both in a theater of war and during , not before, the relevant conflict. But the deficiencies in the time and place allegations also underscore—indeed are symptomatic of—the most serious defect of this charge: The offense it alleges is not triable by law-of-war military commission. See Yamashita , 327 U. S., at 13 (“Neither congressional action nor the military orders constituting the commission authorized it to place petitioner on trial unless the charge proffered against him is of a violation of the law of war”).[ Footnote 32 ]    There is no suggestion that Congress has, in exercise of its constitutional authority to “define and punish . . . Offences against the Law of Nations,” U. S. Const., Art. I, §8, cl. 10, positively identified “conspiracy” as a war crime.[ Footnote 33 ] As we explained in Quirin , that is not necessarily fatal to the Government’s claim of authority to try the alleged offense by military commission; Congress, through Article 21 of the UCMJ, has “incorporated by reference” the common law of war, which may render triable by military commission certain offenses not defined by statute. 317 U. S., at 30. When, however, neither the elements of the offense nor the range of permissible punishments is defined by statute or treaty, the precedent must be plain and unambiguous. To demand any less would be to risk concentrating in military hands a degree of adjudicative and punitive power in excess of that contemplated either by statute or by the Constitution. Cf. Loving v. United States, 517 U. S. 748 , 771 (1996) (acknowledging that Congress “may not delegate the power to make laws”); Reid, 354 U. S., at 23–24 (“The Founders envisioned the army as a necessary institution, but one dangerous to liberty if not confined within its essential bounds”); The Federalist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison) (“The accumulation of all powers legislative, executive and judiciary in the same hands … may justly be pronounced the very definition of tyranny”).[ Footnote 34 ]    This high standard was met in Quirin; the violation there alleged was, by “universal agreement and practice” both in this country and internationally, recognized as an offense against the law of war. 317 U. S., at 30; see id. , at 35–36 (“This precept of the law of war has been so recognized in practice both here and abroad, and has so generally been accepted as valid by authorities on international law that we think it must be regarded as a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War” (footnote omitted)). Although the picture arguably was less clear in Yamashita , compare 327 U. S., at 16 (stating that the provisions of the Fourth Hague Convention of 1907, 36 Stat. 2306, “plainly” required the defendant to control the troops under his command), with 327 U. S., at 35 (Murphy, J., dissenting), the disagreement between the majority and the dissenters in that case concerned whether the historic and textual evidence constituted clear precedent—not whether clear precedent was required to justify trial by law-of-war military commission.    At a minimum, the Government must make a substantial showing that the crime for which it seeks to try a defendant by military commission is acknowledged to be an offense against the law of war. That burden is far from satisfied here. The crime of “conspiracy” has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction,[ Footnote 35 ] and does not appear in either the Geneva Conventions or the Hague Conventions—the major treaties on the law of war.[ Footnote 36 ] Winthrop explains that under the common law governing military commissions, it is not enough to intend to violate the law of war and commit overt acts in furtherance of that intention unless the overt acts either are themselves offenses against the law of war or constitute steps sufficiently substantial to qualify as an attempt. See Winthrop 841 (“[T]he jurisdiction of the military commission should be restricted to cases of offence consisting in overt acts , i.e. , in unlawful commissions or actual attempts to commit, and not in intentions merely” (emphasis in original)).    The Government cites three sources that it says show otherwise. First, it points out that the Nazi saboteurs in Quirin were charged with conspiracy. See Brief for Respondents 27. Second, it observes that Winthrop at one point in his treatise identifies conspiracy as an offense “prosecuted by military commissions.” Ibid. (citing Winthrop 839, and n. 5). Finally, it notes that another military historian, Charles Roscoe Howland, lists conspiracy “ ‘to violate the laws of war by destroying life or property in aid of the enemy’ ” as an offense that was tried as a violation of the law of war during the Civil War. Brief for Respondents 27–28 (citing C. Howland, Digest of Opinions of the Judge Advocates General of the Army 1071 (1912) (hereinafter Howland)). On close analysis, however, these sources at best lend little support to the Government’s position and at worst undermine it. By any measure, they fail to satisfy the high standard of clarity required to justify the use of a military commission.    That the defendants in Quirin were charged with conspiracy is not persuasive, since the Court declined to address whether the offense actually qualified as a violation of the law of war—let alone one triable by military commission. The Quirin defendants were charged with the following offenses: “[I.] Violation of the law of war. “[II.] Violation of Article 81 of the Articles of War, defining the offense of relieving or attempting to relieve, or corresponding with or giving intelligence to, the enemy. “[III.] Violation of Article 82, defining the offense of spying. “[IV.] Conspiracy to commit the offenses alleged in charges [I, II, and III].” 317 U. S., at 23. The Government, defending its charge, argued that the conspiracy alleged “constitute[d] an additional violation of the law of war.” Id. , at 15. The saboteurs disagreed; they maintained that “[t]he charge of conspiracy can not stand if the other charges fall.” Id. , at 8. The Court, however, declined to resolve the dispute. It concluded, first, that the specification supporting Charge I adequately alleged a “violation of the law of war” that was not “merely colorable or without foundation.” Id. , at 36. The facts the Court deemed sufficient for this purpose were that the defendants, admitted enemy combatants, entered upon U. S. territory in time of war without uniform “for the purpose of destroying property used or useful in prosecuting the war.” That act was “a hostile and warlike” one. Id. , at 36, 37. The Court was careful in its decision to identify an overt, “complete” act. Responding to the argument that the saboteurs had “not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations” and therefore had not violated the law of war, the Court responded that they had actually “passed our military and naval lines and defenses or went behind those lines, in civilian dress and with hostile purpose.” Id. , at 38. “The offense was complete when with that purpose they entered—or, having so entered, they remained upon—our territory in time of war without uniform or other appropriate means of identification.” Ibid. Turning to the other charges alleged, the Court explained that “[s]ince the first specification of Charge I sets forth a violation of the law of war, we have no occasion to pass on the adequacy of the second specification of Charge I, or to construe the 81st and 82nd Articles of War for the purpose of ascertaining whether the specifications under Charges II and III allege violations of those Articles or whether if so construed they are constitutional.” Id. , at 46. No mention was made at all of Charge IV—the conspiracy charge.    If anything, Quirin supports Hamdan’s argument that conspiracy is not a violation of the law of war. Not only did the Court pointedly omit any discussion of the conspiracy charge, but its analysis of Charge I placed special emphasis on the completion of an offense; it took seriously the saboteurs’ argument that there can be no violation of a law of war—at least not one triable by military commission—without the actual commission of or attempt to commit a “hostile and warlike act.” Id. , at 37–38.    That limitation makes eminent sense when one considers the necessity from whence this kind of military commission grew: The need to dispense swift justice, often in the form of execution, to illegal belligerents captured on the battlefield. See S. Rep. No. 130, 64th Cong., 1st Sess., p. 40 (1916) (testimony of Brig. Gen. Enoch H. Crowder) (observing that Article of War 15 preserves the power of “the military commander in the field in time of war ” to use military commissions (emphasis added)). The same urgency would not have been felt vis-À-vis enemies who had done little more than agree to violate the laws of war. Cf. 31 Op. Atty. Gen. 356, 357, 361 (1918) (opining that a German spy could not be tried by military commission because, having been apprehended before entering “any camp, fortification or other military premises of the United States,” he had “committed [his offenses] outside of the field of military operations”). The Quirin Court acknowledged as much when it described the President’s authority to use law-of-war military commissions as the power to “seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war.” 317 U. S., at 28–29 (emphasis added).    Winthrop and Howland are only superficially more helpful to the Government. Howland, granted, lists “conspiracy by two or more to violate the laws of war by destroying life or property in aid of the enemy” as one of over 20 “offenses against the laws and usages of war” “passed upon and punished by military commissions.” Howland 1071. But while the records of cases that Howland cites following his list of offenses against the law of war support inclusion of the other offenses mentioned, they provide no support for the inclusion of conspiracy as a violation of the law of war. See ibid. (citing Record Books of the Judge Advocate General Office, R. 2, 144; R. 3, 401, 589, 649; R. 4, 320; R. 5, 36, 590; R. 6, 20; R. 7, 413; R. 8, 529; R. 9, 149, 202, 225, 481, 524, 535; R. 10, 567; R. 11, 473, 513; R. 13, 125, 675; R. 16, 446; R. 21, 101, 280). Winthrop, apparently recognizing as much, excludes conspiracy of any kind from his own list of offenses against the law of war. See Winthrop 839–840.    Winthrop does, unsurprisingly, include “criminal conspiracies” in his list of “[c]rimes and statutory offenses cognizable by State or U. S. courts” and triable by martial law or military government commission. See id. , at 839. And, in a footnote, he cites several Civil War examples of “conspiracies of this class, or of the first and second classes combined .” Id. , at 839, n. 5 (emphasis added). The Government relies on this footnote for its contention that conspiracy was triable both as an ordinary crime (a crime of the “first class”) and, independently, as a war crime (a crime of the “second class”). But the footnote will not support the weight the Government places on it.    As we have seen, the military commissions convened during the Civil War functioned at once as martial law or military government tribunals and as law-of-war commissions. See n. 27, supra . Accordingly, they regularly tried war crimes and ordinary crimes together. Indeed, as Howland observes, “[n]ot infrequently the crime, as charged and found, was a combination of the two species of offenses.” Howland 1071; see also Davis 310, n. 2; Winthrop 842. The example he gives is “ ‘murder in violation of the laws of war.’ ” Howland 1071–1072. Winthrop’s conspiracy “of the first and second classes combined” is, like Howland’s example, best understood as a species of compound offense of the type tried by the hybrid military commissions of the Civil War. It is not a stand-alone offense against the law of war. Winthrop confirms this understanding later in his discussion, when he emphasizes that “ overt acts ” constituting war crimes are the only proper subject at least of those military tribunals not convened to stand in for local courts. Winthrop 841, and nn. 22, 23 (emphasis in original) (citing W. Finlason, Martial Law 130 (1867)).    Justice Thomas cites as evidence that conspiracy is a recognized violation of the law of war the Civil War indictment against Henry Wirz, which charged the defendant with “ ‘[m]aliciously, willfully, and traitorously … combining, confederating, and conspiring [with others] to injure the health and destroy the lives of soldiers in the military service of the United States … to the end that the armies of the United States might be weakened and impaired, in violation of the laws and customs of war.’ ” Post , at 24–25 (dissenting opinion) (quoting H. R. Doc. No. 314, 55th Cong., 3d Sess., 785 (1865); emphasis deleted). As shown by the specification supporting that charge, however, Wirz was alleged to have personally committed a number of atrocities against his victims, including torture, injection of prisoners with poison, and use of “ferocious and bloodthirsty dogs” to “seize, tear, mangle, and maim the bodies and limbs” of prisoners, many of whom died as a result. Id. , at 789–790. Crucially, Judge Advocate General Holt determined that one of Wirz’s alleged co-conspirators, R. B. Winder, should not be tried by military commission because there was as yet insufficient evidence of his own personal involvement in the atrocities: “[I]n the case of R. B. Winder, while the evidence at the trial of Wirz was deemed by the court to implicate him in the conspiracy against the lives of all Federal prisoners in rebel hands, no such specific overt acts of violation of the laws of war are as yet fixed upon him as to make it expedient to prefer formal charges and bring him to trial.” Id. , at 783 (emphases added).[ Footnote 37 ]    Finally, international sources confirm that the crime charged here is not a recognized violation of the law of war.[ Footnote 38 ] As observed above, see supra , at 40, none of the major treaties governing the law of war identifies conspiracy as a violation thereof. And the only “conspiracy” crimes that have been recognized by international war crimes tribunals (whose jurisdiction often extends beyond war crimes proper to crimes against humanity and crimes against the peace) are conspiracy to commit genocide and common plan to wage aggressive war, which is a crime against the peace and requires for its commission actual participation in a “concrete plan to wage war.” 1 Trial of the Major War Criminals Before the International Military Tribunal: Nuremberg, 14 November 1945–1 October 1946, p. 225 (1947). The International Military Tribunal at Nuremberg, over the prosecution’s objections, pointedly refused to recognize as a violation of the law of war conspiracy to commit war crimes, see, e.g. , 22 id. , at 469,[ Footnote 39 ] and convicted only Hitler’s most senior associates of conspiracy to wage aggressive war, see S. Pomorski, Conspiracy and Criminal Organization, in the Nuremberg Trial and International Law 213, 233–235 (G. Ginsburgs & V. Kudriavtsev eds. 1990). As one prominent figure from the Nuremberg trials has explained, members of the Tribunal objected to recognition of conspiracy as a violation of the law of war on the ground that “[t]he Anglo-American concept of conspiracy was not part of European legal systems and arguably not an element of the internationally recognized laws of war.” T. Taylor, Anatomy of the Nuremberg Trials: A Personal Memoir 36 (1992); see also id. , at 550 (observing that Francis Biddle, who as Attorney General prosecuted the defendants in Quirin , thought the French judge had made a “ ‘persuasive argument that conspiracy in the truest sense is not known to international law’ ”).[ Footnote 40 ]    In sum, the sources that the Government and Justice Thomas rely upon to show that conspiracy to violate the law of war is itself a violation of the law of war in fact demonstrate quite the opposite. Far from making the requisite substantial showing, the Government has failed even to offer a “merely colorable” case for inclusion of conspiracy among those offenses cognizable by law-of-war military commission. Cf. Quirin , 317 U. S., at 36. Because the charge does not support the commission’s jurisdiction, the commission lacks authority to try Hamdan.    The charge’s shortcomings are not merely formal, but are indicative of a broader inability on the Executive’s part here to satisfy the most basic precondition—at least in the absence of specific congressional authorization—for establishment of military commissions: military necessity. Hamdan’s tribunal was appointed not by a military commander in the field of battle, but by a retired major general stationed away from any active hostilities. Cf. Rasul v. Bush, 542 U. S., at 487 (Kennedy, J., concurring in judgment) (observing that “Guantanamo Bay is … far removed from any hostilities”). Hamdan is charged not with an overt act for which he was caught redhanded in a theater of war and which military efficiency demands be tried expeditiously, but with an agreement the inception of which long predated the attacks of September 11, 2001 and the AUMF. That may well be a crime,[ Footnote 41 ] but it is not an offense that “by the law of war may be tried by military commissio[n].” 10 U. S. C. §821. None of the overt acts alleged to have been committed in furtherance of the agreement is itself a war crime, or even necessarily occurred during time of, or in a theater of, war. Any urgent need for imposition or execution of judgment is utterly belied by the record; Hamdan was arrested in November 2001 and he was not charged until mid-2004. These simply are not the circumstances in which, by any stretch of the historical evidence or this Court’s precedents, a military commission established by Executive Order under the authority of Article 21 of the UCMJ may lawfully try a person and subject him to punishment. VI    Whether or not the Government has charged Hamdan with an offense against the law of war cognizable by military commission, the commission lacks power to proceed. The UCMJ conditions the President’s use of military commissions on compliance not only with the American common law of war, but also with the rest of the UCMJ itself, insofar as applicable, and with the “rules and precepts of the law of nations,” Quirin , 317 U. S., at 28—including, inter alia , the four Geneva Conventions signed in 1949. See Yamashita , 327 U. S., at 20–21, 23–24. The procedures that the Government has decreed will govern Hamdan’s trial by commission violate these laws. A    The commission’s procedures are set forth in Commission Order No. 1, which was amended most recently on August 31, 2005—after Hamdan’s trial had already begun. Every commission established pursuant to Commission Order No. 1 must have a presiding officer and at least three other members, all of whom must be commissioned officers. §4(A)(1). The presiding officer’s job is to rule on questions of law and other evidentiary and interlocutory issues; the other members make findings and, if applicable, sentencing decisions. §4(A)(5). The accused is entitled to appointed military counsel and may hire civilian counsel at his own expense so long as such counsel is a U. S. citizen with security clearance “at the level SECRET or higher.” §§4(C)(2)–(3).    The accused also is entitled to a copy of the charge(s) against him, both in English and his own language (if different), to a presumption of innocence, and to certain other rights typically afforded criminal defendants in civilian courts and courts-martial. See §§5(A)–(P). These rights are subject, however, to one glaring condition: The accused and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during, any part of the proceeding that either the Appointing Authority or the presiding officer decides to “close.” Grounds for such closure “include the protection of information classified or classifiable … ; information protected by law or rule from unauthorized disclosure; the physical safety of participants in Commission proceedings, including prospective witnesses; intelligence and law enforcement sources, methods, or activities; and other national security interests.” §6(B)(3).[ Footnote 42 ] Appointed military defense counsel must be privy to these closed sessions, but may, at the presiding officer’s discretion, be forbidden to reveal to his or her client what took place therein. Ibid. Another striking feature of the rules governing Hamdan’s commission is that they permit the admission of any evidence that, in the opinion of the presiding officer, “would have probative value to a reasonable person.” §6(D)(1). Under this test, not only is testimonial hearsay and evidence obtained through coercion fully admissible, but neither live testimony nor witnesses’ written statements need be sworn. See §§6(D)(2)(b), (3). Moreover, the accused and his civilian counsel may be denied access to evidence in the form of “protected information” (which includes classified information as well as “information protected by law or rule from unauthorized disclosure” and “information concerning other national security interests,” §§6(B)(3), 6(D)(5)(a)(v)), so long as the presiding officer concludes that the evidence is “probative” under §6(D)(1) and that its admission without the accused’s knowledge would not “result in the denial of a full and fair trial.” §6(D)(5)(b).[ Footnote 43 ] Finally, a presiding officer’s determination that evidence “would not have probative value to a reasonable person” may be overridden by a majority of the other commission members. §6(D)(1).    Once all the evidence is in, the commission members (not including the presiding officer) must vote on the accused’s guilt. A two-thirds vote will suffice for both a verdict of guilty and for imposition of any sentence not including death (the imposition of which requires a unanimous vote). §6(F). Any appeal is taken to a three-member review panel composed of military officers and designated by the Secretary of Defense, only one member of which need have experience as a judge. §6(H)(4). The review panel is directed to “disregard any variance from procedures specified in this Order or elsewhere that would not materially have affected the outcome of the trial before the Commission.” Ibid. Once the panel makes its recommendation to the Secretary of Defense, the Secretary can either remand for further proceedings or forward the record to the President with his recommendation as to final disposition. §6(H)(5). The President then, unless he has delegated the task to the Secretary, makes the “final decision.” §6(H)(6). He may change the commission’s findings or sentence only in a manner favorable to the accused. Ibid. B Hamdan raises both general and particular objections to the procedures set forth in Commission Order No. 1. His general objection is that the procedures’ admitted deviation from those governing courts-martial itself renders the commission illegal. Chief among his particular objections are that he may, under the Commission Order, be convicted based on evidence he has not seen or heard, and that any evidence admitted against him need not comply with the admissibility or relevance rules typically applicable in criminal trials and court-martial proceedings. The Government objects to our consideration of any procedural challenge at this stage on the grounds that (1) the abstention doctrine espoused in Councilman , 420 U. S. 738 , precludes pre-enforcement review of procedural rules, (2) Hamdan will be able to raise any such challenge following a “final decision” under the DTA, and (3) “there is … no basis to presume, before the trial has even commenced, that the trial will not be conducted in good faith and according to law.” Brief for Respondents 45–46, nn. 20–21. The first of these contentions was disposed of in Part III, supra , and neither of the latter two is sound.    First, because Hamdan apparently is not subject to the death penalty (at least as matters now stand) and may receive a sentence shorter than 10 years’ imprisonment, he has no automatic right to review of the commission’s “final decision”[ Footnote 44 ] before a federal court under the DTA. See §1005(e)(3), 119 Stat. 2743. Second, contrary to the Government’s assertion, there is a “basis to presume” that the procedures employed during Hamdan’s trial will violate the law: The procedures are described with particularity in Commission Order No. 1, and implementation of some of them has already occurred. One of Hamdan’s complaints is that he will be, and indeed already has been , excluded from his own trial. See Reply Brief for Petitioner 12; App. to Pet. for Cert. 45a. Under these circumstances, review of the procedures in advance of a “final decision”—the timing of which is left entirely to the discretion of the President under the DTA—is appropriate. We turn, then, to consider the merits of Hamdan’s procedural challenge. C    In part because the difference between military commissions and courts-martial originally was a difference of jurisdiction alone, and in part to protect against abuse and ensure evenhandedness under the pressures of war, the procedures governing trials by military commission historically have been the same as those governing courts-martial. See, e.g. , 1 The War of the Rebellion 248 (2d series 1894) (General Order 1 issued during the Civil War required military commissions to “be constituted in a similar manner and their proceedings be conducted according to the same general rules as courts-martial in order to prevent abuses which might otherwise arise”). Accounts of commentators from Winthrop through General Crowder—who drafted Article of War 15 and whose views have been deemed “authoritative” by this Court, Madsen , 343 U. S., at 353—confirm as much.[ Footnote 45 ] As recently as the Korean and Vietnam wars, during which use of military commissions was contemplated but never made, the principle of procedural parity was espoused as a background assumption. See Paust, Antiterrorism Military Commissions: Courting Illegality, 23 Mich. J. Int’l L. 1, 3–5 (2001–2002).    There is a glaring historical exception to this general rule. The procedures and evidentiary rules used to try General Yamashita near the end of World War II deviated in significant respects from those then governing courts-martial. See 327 U. S. 1 . The force of that precedent, however, has been seriously undermined by post-World War II developments.    Yamashita, from late 1944 until September 1945, was Commanding General of the Fourteenth Army Group of the Imperial Japanese Army, which had exercised control over the Philippine Islands. On September 3, 1945, after American forces regained control of the Philippines, Yamashita surrendered. Three weeks later, he was charged with violations of the law of war. A few weeks after that, he was arraigned before a military commission convened in the Philippines. He pleaded not guilty, and his trial lasted for two months. On December 7, 1945, Yamashita was convicted and sentenced to hang. See id. , at 5; id. , at 31–34 (Murphy, J., dissenting). This Court upheld the denial of his petition for a writ of habeas corpus.    The procedures and rules of evidence employed during Yamashita’s trial departed so far from those used in courts-martial that they generated an unusually long and vociferous critique from two Members of this Court. See id. , at 41–81 (Rutledge, J., joined by Murphy, J., dissenting).[ Footnote 46 ] Among the dissenters’ primary concerns was that the commission had free rein to consider all evidence “which in the commission’s opinion ‘would be of assistance in proving or disproving the charge,’ without any of the usual modes of authentication.” Id. , at 49 (Rutledge, J.).    The majority, however, did not pass on the merits of Yamashita’s procedural challenges because it concluded that his status disentitled him to any protection under the Articles of War (specifically, those set forth in Article 38, which would become Article 36 of the UCMJ) or the Geneva Convention of 1929, 47 Stat. 2021 (1929 Geneva Convention). The Court explained that Yamashita was neither a “person made subject to the Articles of War by Article 2” thereof, 327 U. S., at 20, nor a protected prisoner of war being tried for crimes committed during his detention, id. , at 21.    At least partially in response to subsequent criticism of General Yamashita’s trial, the UCMJ’s codification of the Articles of War after World War II expanded the category of persons subject thereto to include defendants in Yamashita’s (and Hamdan’s) position,[ Footnote 47 ] and the Third Geneva Convention of 1949 extended prisoner-of-war protections to individuals tried for crimes committed before their capture. See 3 Int’l Comm. of Red Cross,[ Footnote 48 ] Commentary: Geneva Convention Relative to the Treatment of Prisoners of War 413 (1960) (hereinafter GCIII Commentary) (explaining that Article 85, which extends the Convention’s protections to “[p]risoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture,” was adopted in response to judicial interpretations of the 1929 Convention, including this Court’s decision in Yamashita ). The most notorious exception to the principle of uniformity, then, has been stripped of its precedential value.    The uniformity principle is not an inflexible one; it does not preclude all departures from the procedures dictated for use by courts-martial. But any departure must be tailored to the exigency that necessitates it. See Winthrop 835, n. 81. That understanding is reflected in Article 36 of the UCMJ, which provides:    “(a) The procedure, including modes of proof, in cases before courts-martial, courts of inquiry, military commissions, and other military tribunals may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.    “(b) All rules and regulations made under this article shall be uniform insofar as practicable and shall be reported to Congress.” 70A Stat. 50.    Article 36 places two restrictions on the President’s power to promulgate rules of procedure for courts-martial and military commissions alike. First, no procedural rule he adopts may be “contrary to or inconsistent with” the UCMJ—however practical it may seem. Second, the rules adopted must be “uniform insofar as practicable.” That is, the rules applied to military commissions must be the same as those applied to courts-martial unless such uniformity proves impracticable.    Hamdan argues that Commission Order No. 1 violates both of these restrictions; he maintains that the procedures described in the Commission Order are inconsistent with the UCMJ and that the Government has offered no explanation for their deviation from the procedures governing courts-martial, which are set forth in the Manual for Courts-Martial, United States (2005 ed.) (Manual for Courts-Martial). Among the inconsistencies Hamdan identifies is that between §6 of the Commission Order, which permits exclusion of the accused from proceedings and denial of his access to evidence in certain circumstances, and the UCMJ’s requirement that “[a]ll … proceedings” other than votes and deliberations by courts-martial “shall be made a part of the record and shall be in the presence of the accused.” 10 U. S. C. A. §839(c) (Supp. 2006). Hamdan also observes that the Commission Order dispenses with virtually all evidentiary rules applicable in courts-martial.    The Government has three responses. First, it argues, only 9 of the UCMJ’s 158 Articles—the ones that expressly mention “military commissions”[ Footnote 49 ]—actually apply to commissions, and Commission Order No. 1 sets forth no procedure that is “contrary to or inconsistent with” those 9 provisions. Second, the Government contends, military commissions would be of no use if the President were hamstrung by those provisions of the UCMJ that govern courts-martial. Finally, the President’s determination that “the danger to the safety of the United States and the nature of international terrorism” renders it impracticable “to apply in military commissions … the principles of law and rules of evidence generally recognized in the trial of criminal cases in the United States district courts,” November 13 Order §1(f), is, in the Government’s view, explanation enough for any deviation from court-martial procedures. See Brief for Respondents 43–47, and n. 22.    Hamdan has the better of this argument. Without reaching the question whether any provision of Commission Order No. 1 is strictly “contrary to or inconsistent with” other provisions of the UCMJ, we conclude that the “practicability” determination the President has made is insufficient to justify variances from the procedures governing courts-martial. Subsection (b) of Article 36 was added after World War II, and requires a different showing of impracticability from the one required by subsection (a). Subsection (a) requires that the rules the President promulgates for courts-martial, provost courts, and military commissions alike conform to those that govern procedures in Article III courts , “so far as he considers practicable.” 10 U. S. C. §836(a) (emphasis added). Subsection (b), by contrast, demands that the rules applied in courts-martial, provost courts, and military commissions—whether or not they conform with the Federal Rules of Evidence—be “uniform insofar as practicable .” §836(b) (emphasis added). Under the latter provision, then, the rules set forth in the Manual for Courts-Martial must apply to military commissions unless impracticable.[ Footnote 50 ]    The President here has determined, pursuant to subsection (a), that it is impracticable to apply the rules and principles of law that govern “the trial of criminal cases in the United States district courts,” §836(a), to Hamdan’s commission. We assume that complete deference is owed that determination. The President has not, however, made a similar official determination that it is impracticable to apply the rules for courts-martial.[ Footnote 51 ] And even if subsection (b)’s requirements may be satisfied without such an official determination, the requirements of that subsection are not satisfied here.    Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case. There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. Assuming arguendo that the reasons articulated in the President’s Article 36(a) determination ought to be considered in evaluating the impracticability of applying court-martial rules, the only reason offered in support of that determination is the danger posed by international terrorism.[ Footnote 52 ] Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan’s trial, any variance from the rules that govern courts-martial.    The absence of any showing of impracticability is particularly disturbing when considered in light of the clear and admitted failure to apply one of the most fundamental protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: the right to be present. See 10 U. S. C. A. §839(c) (Supp. 2006). Whether or not that departure technically is “contrary to or inconsistent with” the terms of the UCMJ, 10 U. S. C. §836(a), the jettisoning of so basic a right cannot lightly be excused as “practicable.”    Under the circumstances, then, the rules applicable in courts-martial must apply. Since it is undisputed that Commission Order No. 1 deviates in many significant respects from those rules, it necessarily violates Article 36(b).    The Government’s objection that requiring compliance with the court-martial rules imposes an undue burden both ignores the plain meaning of Article 36(b) and misunderstands the purpose and the history of military commissions. The military commission was not born of a desire to dispense a more summary form of justice than is afforded by courts-martial; it developed, rather, as a tribunal of necessity to be employed when courts-martial lacked jurisdiction over either the accused or the subject matter. See Winthrop 831. Exigency lent the commission its legitimacy, but did not further justify the wholesale jettisoning of procedural protections. That history explains why the military commission’s procedures typically have been the ones used by courts-martial. That the jurisdiction of the two tribunals today may sometimes overlap, see Madsen , 343 U. S., at 354, does not detract from the force of this history;[ Footnote 53 ] Article 21 did not transform the military commission from a tribunal of true exigency into a more convenient adjudicatory tool. Article 36, confirming as much, strikes a careful balance between uniform procedure and the need to accommodate exigencies that may sometimes arise in a theater of war. That Article not having been complied with here, the rules specified for Hamdan’s trial are illegal.[ Footnote 54 ] D    The procedures adopted to try Hamdan also violate the Geneva Conventions. The Court of Appeals dismissed Hamdan’s Geneva Convention challenge on three independent grounds: (1) the Geneva Conventions are not judicially enforceable; (2) Hamdan in any event is not entitled to their protections; and (3) even if he is entitled to their protections, Councilman abstention is appropriate. Judge Williams, concurring, rejected the second ground but agreed with the majority respecting the first and the last. As we explained in Part III, supra , the abstention rule applied in Councilman , 420 U. S. 738 , is not applicable here.[ Footnote 55 ] And for the reasons that follow, we hold that neither of the other grounds the Court of Appeals gave for its decision is persuasive. i    The Court of Appeals relied on Johnson v. Eisentrager, 339 U. S. 763 (1950), to hold that Hamdan could not invoke the Geneva Conventions to challenge the Government’s plan to prosecute him in accordance with Commission Order No. 1. Eisentrager involved a challenge by 21 German nationals to their 1945 convictions for war crimes by a military tribunal convened in Nanking, China, and to their subsequent imprisonment in occupied Germany. The petitioners argued, inter alia , that the 1929 Geneva Convention rendered illegal some of the procedures employed during their trials, which they said deviated impermissibly from the procedures used by courts-martial to try American soldiers. See id. , at 789. We rejected that claim on the merits because the petitioners (unlike Hamdan here) had failed to identify any prejudicial disparity “between the Commission that tried [them] and those that would try an offending soldier of the American forces of like rank,” and in any event could claim no protection, under the 1929 Convention, during trials for crimes that occurred before their confinement as prisoners of war. Id. , at 790.[ Footnote 56 ]    Buried in a footnote of the opinion, however, is this curious statement suggesting that the Court lacked power even to consider the merits of the Geneva Convention argument: “We are not holding that these prisoners have no right which the military authorities are bound to respect. The United States, by the Geneva Convention of July 27, 1929, 47 Stat. 2021, concluded with forty-six other countries, including the German Reich, an agreement upon the treatment to be accorded captives. These prisoners claim to be and are entitled to its protection. It is, however, the obvious scheme of the Agreement that responsibility for observance and enforcement of these rights is upon political and military authorities. Rights of alien enemies are vindicated under it only through protests and intervention of protecting powers as the rights of our citizens against foreign governments are vindicated only by Presidential intervention.” Id. , at 789, n. 14. The Court of Appeals, on the strength of this footnote, held that “the 1949 Geneva Convention does not confer upon Hamdan a right to enforce its provisions in court.” 415 F. 3d, at 40.    Whatever else might be said about the Eisentrager footnote, it does not control this case. We may assume that “the obvious scheme” of the 1949 Conventions is identical in all relevant respects to that of the 1929 Convention,[ Footnote 57 ] and even that that scheme would, absent some other provision of law, preclude Hamdan’s invocation of the Convention’s provisions as an independent source of law binding the Government’s actions and furnishing petitioner with any enforceable right.[ Footnote 58 ] For, regardless of the nature of the rights conferred on Hamdan, cf. United States v. Rauscher, 119 U. S. 407 (1886), they are, as the Government does not dispute, part of the law of war. See Hamdi, 542 U. S., at 520–521 (plurality opinion). And compliance with the law of war is the condition upon which the authority set forth in Article 21 is granted. ii    For the Court of Appeals, acknowledgment of that condition was no bar to Hamdan’s trial by commission. As an alternative to its holding that Hamdan could not invoke the Geneva Conventions at all, the Court of Appeals concluded that the Conventions did not in any event apply to the armed conflict during which Hamdan was captured. The court accepted the Executive’s assertions that Hamdan was captured in connection with the United States’ war with al Qaeda and that that war is distinct from the war with the Taliban in Afghanistan. It further reasoned that the war with al Qaeda evades the reach of the Geneva Conventions. See 415 F. 3d, at 41–42. We, like Judge Williams, disagree with the latter conclusion.    The conflict with al Qaeda is not, according to the Government, a conflict to which the full protections afforded detainees under the 1949 Geneva Conventions apply because Article 2 of those Conventions (which appears in all four Conventions) renders the full protections applicable only to “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” 6 U. S. T., at 3318.[ Footnote 59 ] Since Hamdan was captured and detained incident to the conflict with al Qaeda and not the conflict with the Taliban, and since al Qaeda, unlike Afghanistan, is not a “High Contracting Party”— i.e. , a signatory of the Conventions, the protections of those Conventions are not, it is argued, applicable to Hamdan.[ Footnote 60 ]    We need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories.[ Footnote 61 ] Article 3, often referred to as Common Article 3 because, like Article 2, it appears in all four Geneva Conventions, provides that in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party[ Footnote 62 ] to the conflict shall be bound to apply, as a minimum,” certain provisions protecting “[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by … detention.” Id. , at 3318. One such provision prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” Ibid .    The Court of Appeals thought, and the Government asserts, that Common Article 3 does not apply to Hamdan because the conflict with al Qaeda, being “ ‘international in scope,’ ” does not qualify as a “ ‘conflict not of an international character.’ ” 415 F. 3d, at 41. That reasoning is erroneous. The term “conflict not of an international character” is used here in contradistinction to a conflict between nations. So much is demonstrated by the “fundamental logic [of] the Convention’s provisions on its application.” Id. , at 44 (Williams, J., concurring). Common Article 2 provides that “the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” 6 U. S. T., at 3318 (Art. 2, ¶1). High Contracting Parties (signatories) also must abide by all terms of the Conventions vis-À-vis one another even if one party to the conflict is a nonsignatory “Power,” and must so abide vis-À-vis the nonsignatory if “the latter accepts and applies” those terms. Ibid. (Art. 2, ¶3). Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory “Power” who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict is distinguishable from the conflict described in Common Article 2 chiefly because it does not involve a clash between nations (whether signatories or not). In context, then, the phrase “not of an international character” bears its literal meaning. See, e.g. , J. Bentham, Introduction to the Principles of Morals and Legislation 6, 296 (J. Burns & H. Hart eds. 1970) (using the term “international law” as a “new though not inexpressive appellation” meaning “betwixt nation and nation”; defining “international” to include “mutual transactions between sovereigns as such”); Commentary on the Additional Protocols to the Geneva Conventions of 12 August 1949, p. 1351 (1987) (“[A] non-international armed conflict is distinct from an international armed conflict because of the legal status of the entities opposing each other”).    Although the official commentaries accompanying Common Article 3 indicate that an important purpose of the provision was to furnish minimal protection to rebels involved in one kind of “conflict not of an international character,” i.e. , a civil war, see GCIII Commentary 36–37, the commentaries also make clear “that the scope of the Article must be as wide as possible,” id. , at 36.[ Footnote 63 ] In fact, limiting language that would have rendered Common Article 3 applicable “especially [to] cases of civil war, colonial conflicts, or wars of religion,” was omitted from the final version of the Article, which coupled broader scope of application with a narrower range of rights than did earlier proposed iterations. See GCIII Commentary 42–43. iii    Common Article 3, then, is applicable here and, as indicated above, requires that Hamdan be tried by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” 6 U. S. T., at 3320 (Art. 3, ¶1(d)). While the term “regularly constituted court” is not specifically defined in either Common Article 3 or its accompanying commentary, other sources disclose its core meaning. The commentary accompanying a provision of the Fourth Geneva Convention, for example, defines “ ‘regularly constituted’ ” tribunals to include “ordinary military courts” and “definitely exclud[e] all special tribunals.” GCIV Commentary 340 (defining the term “properly constituted” in Article 66, which the commentary treats as identical to “regularly constituted”);[ Footnote 64 ] see also Yamashita , 327 U. S., at 44 (Rutledge, J., dissenting) (describing military commission as a court “specially constituted for a particular trial”). And one of the Red Cross’ own treatises defines “regularly constituted court” as used in Common Article 3 to mean “established and organized in accordance with the laws and procedures already in force in a country.” Int’l Comm. of Red Cross, 1 Customary International Humanitarian Law 355 (2005); see also GCIV Commentary 340 (observing that “ordinary military courts” will “be set up in accordance with the recognized principles governing the administration of justice”).    The Government offers only a cursory defense of Hamdan’s military commission in light of Common Article 3. See Brief for Respondents 49–50. As Justice Kennedy explains, that defense fails because “[t]he regular military courts in our system are the courts-martial established by congressional statutes.” Post , at 8 (opinion concurring in part). At a minimum, a military commission “can be ‘regularly constituted’ by the standards of our military justice system only if some practical need explains deviations from court-martial practice.” Post , at 10. As we have explained, see Part VI–C, supra , no such need has been demonstrated here.[ Footnote 65 ] iv    Inextricably intertwined with the question of regular constitution is the evaluation of the procedures governing the tribunal and whether they afford “all the judicial guarantees which are recognized as indispensable by civilized peoples.” 6 U. S. T., at 3320 (Art. 3, ¶1(d)). Like the phrase “regularly constituted court,” this phrase is not defined in the text of the Geneva Conventions. But it must be understood to incorporate at least the barest of those trial protections that have been recognized by customary international law. Many of these are described in Article 75 of Protocol I to the Geneva Conventions of 1949, adopted in 1977 (Protocol I). Although the United States declined to ratify Protocol I, its objections were not to Article 75 thereof. Indeed, it appears that the Government “regard[s] the provisions of Article 75 as an articulation of safeguards to which all persons in the hands of an enemy are entitled.” Taft, The Law of Armed Conflict After 9/11: Some Salient Features, 28 Yale J. Int’l L. 319, 322 (2003). Among the rights set forth in Article 75 is the “right to be tried in [one’s] presence.” Protocol I, Art. 75(4)(e).[ Footnote 66 ]    We agree with Justice Kennedy that the procedures adopted to try Hamdan deviate from those governing courts-martial in ways not justified by any “evident practical need,” post , at 11, and for that reason, at least, fail to afford the requisite guarantees. See post , at 8, 11–17. We add only that, as noted in Part VI–A, supra , various provisions of Commission Order No. 1 dispense with the principles, articulated in Article 75 and indisputably part of the customary international law, that an accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him. See §§6(B)(3), (D).[ Footnote 67 ] That the Government has a compelling interest in denying Hamdan access to certain sensitive information is not doubted. Cf. post , at 47–48 (Thomas, J., dissenting). But, at least absent express statutory provision to the contrary, information used to convict a person of a crime must be disclosed to him. v    Common Article 3 obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements. VII    We have assumed, as we must, that the allegations made in the Government’s charge against Hamdan are true. We have assumed, moreover, the truth of the message implicit in that charge—viz., that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm. But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.    The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings. It is so ordered.    The Chief Justice took no part in the consideration or decision of this case. Footnote 1 An “enemy combatant” is defined by the military order as “an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.” Memorandum from Deputy Secretary of Defense Paul Wolfowitz re: Order Establishing Combatant Status Review Tribunal § a (Jul. 7, 2004), available at http://www.defense link.mil/news/Jul2004/d20040707review.pdf (all Internet materials as visited June 26, 2006, and available in Clerk of Court’s case file). Footnote 2 The military order referenced in this section is discussed further in Parts III and VI, infra . Footnote 3 The penultimate subsections of §1005 emphasize that the provision does not “confer any constitutional right on an alien detained as an enemy combatant outside the United States” and that the “United States” does not, for purposes of §1005, include Guantanamo Bay. §§1005(f)–(g). Footnote 4 “ ‘ And be it further enacted , That so much of the act approved February 5, 1867, entitled “An act to amend an act to establish the judicial courts of the United States, approved September 24, 1789,” as authorized an appeal from the judgment of the Circuit Court to the Supreme Court of the United States, or the exercise of any such jurisdiction by said Supreme Court, on appeals which have been, or may hereafter be taken, be, and the same is hereby repealed.’ ” 7 Wall., at 508. Footnote 5 See Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939 , 951 (1997) (“The fact that courts often apply newly enacted jurisdiction-allocating statutes to pending cases merely evidences certain limited circumstances failing to meet the conditions for our generally applicable presumption against retroactivity …”). Footnote 6 Cf. Hughes Aircraft , 520 U. S., at 951 (“Statutes merely addressing which court shall have jurisdiction to entertain a particular cause of action can fairly be said merely to regulate the secondary conduct of litigation and not the underlying primary conduct of the parties” (emphasis in original)). Footnote 7 In his insistence to the contrary, Justice Scalia reads too much into Bruner v. United States , 343 U. S. 112 (1952), Hallowell v. Commons, 239 U. S. 506 (1916), and Insurance Co. v. Ritchie, 5 Wall. 541 (1867). See post , at 2–4 (dissenting opinion). None of those cases says that the absence of an express provision reserving jurisdiction over pending cases trumps or renders irrelevant any other indications of congressional intent. Indeed, Bruner itself relied on such other indications–including a negative inference drawn from the statutory text, cf. infra , at 13–to support its conclusion that jurisdiction was not available. The Court observed that (1) Congress had been put on notice by prior lower court cases addressing the Tucker Act that it ought to specifically reserve jurisdiction over pending cases, see 343 U. S., at 115, and (2) in contrast to the congressional silence concerning reservation of jurisdiction, reservation had been made of “ ‘any rights or liabilities’ existing at the effective date of the Act” repealed by another provision of the Act, ibid. , n. 7. Footnote 8 The question in Lindh was whether new limitations on the availability of habeas relief imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, applied to habeas actions pending on the date of AEDPA’s enactment. We held that they did not. At the outset, we rejected the State’s argument that, in the absence of a clear congressional statement to the contrary, a “procedural” rule must apply to pending cases. 521 U. S., at 326. Footnote 9 That paragraph (1), along with paragraphs (2) and (3), is to “take effect on the date of enactment,” DTA §1005(h)(1), 119 Stat. 2743, is not dispositive; “a ‘statement that a statute will become effective on a certain date does not even arguably suggest that it has any application to conduct that occurred at an earlier date.’ ” INS v. St. Cyr, 533 U. S. 289 , 317 (2001) (quoting Landgraf v. USI Film Products, 511 U. S. 244 , 257 (1994)). Certainly, the “effective date” provision cannot bear the weight Justice Scalia would place on it. See post , at 5, and n. 1. Congress deemed that provision insufficient, standing alone, to render subsections (e)(2) and (e)(3) applicable to pending cases; hence its adoption of subsection (h)(2). Justice Scalia seeks to avoid reducing subsection (h)(2) to a mere redundancy—a consequence he seems to acknowledge must otherwise follow from his interpretation—by speculating that Congress had special reasons, not also relevant to subsection (e)(1), to worry that subsections (e)(2) and (e)(3) would be ruled inapplicable to pending cases. As we explain infra , at 17, and n. 12, that attempt fails. Footnote 10 We note that statements made by Senators preceding passage of the Act lend further support to what the text of the DTA and its drafting history already make plain. Senator Levin, one of the sponsors of the final bill, objected to earlier versions of the Act’s “effective date” provision that would have made subsection (e)(1) applicable to pending cases. See, e.g. , 151 Cong. Rec. S12667 (Nov. 10, 2005) (amendment proposed by Sen. Graham that would have rendered what is now subsection (e)(1) applicable to “any application or other action that is pending on or after the date of the enactment of this Act”). Senator Levin urged adoption of an alternative amendment that “would apply only to new habeas cases filed after the date of enactment.” Id. , at S12802 (Nov. 15, 2005). That alternative amendment became the text of subsection (h)(2). (In light of the extensive discussion of the DTA’s effect on pending cases prior to passage of the Act, see, e.g. , id. , at S12664 (Nov. 10, 2005); id. , at S12755 (Nov. 14, 2005); id. , at S12799–S12802 (Nov. 15, 2005); id. , at S14245, S14252–S14253, S14257–S14258, S14274–S14275 (Dec. 21, 2005), it cannot be said that the changes to subsection (h)(2) were inconsequential. Cf. post , at 14 (Scalia, J., dissenting).)    While statements attributed to the final bill’s two other sponsors, Senators Graham and Kyl, arguably contradict Senator Levin’s contention that the final version of the Act preserved jurisdiction over pending habeas cases, see 151 Cong. Rec. S14263–S14264 (Dec. 21, 2005), those statements appear to have been inserted into the Congressional Record after the Senate debate. See Reply Brief for Petitioner 5, n. 6; see also 151 Cong. Rec. S14260 (statement of Sen. Kyl) (“I would like to say a few words about the now-completed National Defense Authorization Act for fiscal year 2006” (emphasis added)). All statements made during the debate itself support Senator Levin’s understanding that the final text of the DTA would not render subsection (e)(1) applicable to pending cases. See, e.g. , id ., at S14245, S14252–S14253, S14274–S14275 (Dec. 21, 2005). The statements that Justice Scalia cites as evidence to the contrary construe subsection (e)(3) to strip this Court of jurisdiction, see post , at 12, n. 4 (dissenting opinion) (quoting 151 Cong. Rec. S12796 (Nov. 15, 2005) (statement of Sen. Specter))—a construction that the Government has expressly disavowed in this litigation, see n. 11, infra . The inapposite November 14, 2005, statement of Senator Graham, which Justice Scalia cites as evidence of that Senator’s “assumption that pending cases are covered,” post , at 12, and n. 3 (citing 151 Cong. Rec. S12756 (Nov. 14, 2005)), follows directly after the uncontradicted statement of his co-sponsor, Senator Levin, assuring members of the Senate that “the amendment will not strip the courts of jurisdiction over [pending] cases.” Id. , at S12755. Footnote 11 The District of Columbia Circuit’s jurisdiction, while “exclusive” in one sense, would not bar this Court’s review on appeal from a decision under the DTA. See Reply Brief in Support of Respondents’ Motion to Dismiss 16–17, n. 12 (“While the DTA does not expressly call for Supreme Court review of the District of Columbia Circuit’s decisions, Section 1005(e)(2) and (3) … do not remove this Court’s jurisdiction over such decisions under 28 U. S. C. §1254(1)”). Footnote 12 This assertion is itself highly questionable. The cases that Justice Scalia cites to support his distinction are Republic of Austria v. Altmann, 541 U. S. 677 (2004), and Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939 (1997). See post , at 8. While the Court in both of those cases recognized that statutes “creating” jurisdiction may have retroactive effect if they affect “substantive” rights, see Altmann , 541 U. S., at 695, and n. 15; Hughes Aircraft , 520 U. S., at 951, we have applied the same analysis to statutes that have jurisdiction-stripping effect, see Lindh v. Murphy , 521 U. S. 320 , 327–328 (1997); id. , at 342–343 (Rehnquist, C. J., dissenting) (construing AEDPA’s amendments as “ousting jurisdiction”). Footnote 13 See Landgraf , 511 U. S., at 271, n. 25 (observing that “the great majority of our decisions relying upon the antiretroactivity presumption have involved intervening statutes burdening private parties,” though “we have applied the presumption in cases involving new monetary obligations that fell only on the government” (emphasis added)); see also Altmann, 541 U. S., at 728–729 (Kennedy, J., dissenting) (explaining that if retroactivity concerns do not arise when a new monetary obligation is imposed on the United States it is because “Congress, by virtue of authoring the legislation, is itself fully capable of protecting the Federal Government from having its rights degraded by retroactive laws”). Footnote 14 There may be habeas cases that were pending in the lower courts at the time the DTA was enacted that do qualify as challenges to “final decision[s]” within the meaning of subsection (e)(2) or (e)(3). We express no view about whether the DTA would require transfer of such an action to the District of Columbia Circuit. Footnote 15 Because we conclude that §1005(e)(1) does not strip federal courts’ jurisdiction over cases pending on the date of the DTA’s enactment, we do not decide whether, if it were otherwise, this Court would nonetheless retain jurisdiction to hear Hamdan’s appeal. Cf. supra , at 10. Nor do we decide the manner in which the canon of constitutional avoidance should affect subsequent interpretation of the DTA. See, e.g. , St. Cyr, 533 U. S., at 300 (a construction of a statute “that would entirely preclude review of a pure question of law by any court would give rise to substantial constitutional questions”). Footnote 16 Councilman distinguished service personnel from civilians, whose challenges to ongoing military proceedings are cognizable in federal court. See, e.g. , United States ex rel. Toth v. Quarles, 350 U. S. 11 (1955). As we explained in Councilman , abstention is not appropriate in cases in which individuals raise “ ‘substantial arguments denying the right of the military to try them at all,’ ” and in which the legal challenge “turn[s] on the status of the persons as to whom the military asserted its power.” 420 U. S., at 759 (quoting Noyd v. Bond, 395 U. S. 683 , 696, n. 8 (1969)). In other words, we do not apply Councilman abstention when there is a substantial question whether a military tribunal has personal jurisdiction over the defendant. Because we conclude that abstention is inappropriate for a more basic reason, we need not consider whether the jurisdictional exception recognized in Councilman applies here. Footnote 17 See also Noyd , 395 U. S., at 694–696 (noting that the Court of Military Appeals consisted of “disinterested civilian judges,” and concluding that there was no reason for the Court to address an Air Force Captain’s argument that he was entitled to remain free from confinement pending appeal of his conviction by court-martial “when the highest military court stands ready to consider petitioner’s arguments”). Cf. Parisi v. Davidson, 405 U. S. 34 , 41–43 (1972) (“Under accepted principles of comity, the court should stay its hand only if the relief the petitioner seeks … would also be available to him with reasonable promptness and certainty through the machinery of the military judicial system in its processing of the court-martial charge”). Footnote 18 If he chooses, the President may delegate this ultimate decisionmaking authority to the Secretary of Defense. See §6(H)(6). Footnote 19 Justice Scalia chides us for failing to include the District of Columbia Circuit’s review powers under the DTA in our description of the review mechanism erected by Commission Order No. 1. See post , at 22. Whether or not the limited review permitted under the DTA may be treated as akin to the plenary review exercised by the Court of Appeals for the Armed Forces, petitioner here is not afforded a right to such review. See infra , at 52; §1005(e)(3), 119 Stat. 2743. Footnote 20 Having correctly declined to abstain from addressing Hamdan’s challenge to the lawfulness of the military commission convened to try him, the Court of Appeals suggested that Councilman abstention nonetheless applied to bar its consideration of one of Hamdan’s arguments—namely, that his commission violated Article 3 of the Third Geneva Convention, 6 U. S. T. 3316, 3318. See Part VI, infra . Although the Court of Appeals rejected the Article 3 argument on the merits, it also stated that, because the challenge was not “jurisdictional,” it did not fall within the exception that Schlesinger v. Councilman , 420 U. S. 738 (1975), recognized for defendants who raise substantial arguments that a military tribunal lacks personal jurisdiction over them. See 415 F. 3d, at 42.    In reaching this conclusion, the Court of Appeals conflated two distinct inquiries: (1) whether Hamdan has raised a substantial argument that the military commission lacks authority to try him; and, more fundamentally, (2) whether the comity considerations underlying Councilman apply to trigger the abstention principle in the first place. As the Court of Appeals acknowledged at the beginning of its opinion, the first question warrants consideration only if the answer to the second is yes. See 415 F. 3d, at 36–37. Since, as the Court of Appeals properly concluded, the answer to the second question is in fact no, there is no need to consider any exception.    At any rate, it appears that the exception would apply here. As discussed in Part VI, infra , Hamdan raises a substantial argument that, because the military commission that has been convened to try him is not a “ ‘regularly constituted court’ ” under the Geneva Conventions, it is ultra vires and thus lacks jurisdiction over him. Brief for Petitioner 5. Footnote 21 See also Winthrop 831 (“[I]n general, it is those provisions of the Constitution which empower Congress to ‘declare war’ and ‘raise armies,’ and which, in authorizing the initiation of war , authorize the employment of all necessary and proper agencies for its due prosecution, from which this tribunal derives its original sanction” (emphasis in original)). Footnote 22 Article 15 was first adopted as part of the Articles of War in 1916. See Act of Aug. 29, 1916, ch. 418, §3, Art. 15, 39 Stat. 652. When the Articles of War were codified and re-enacted as the UCMJ in 1950, Congress determined to retain Article 15 because it had been “construed by the Supreme Court ( Ex Parte Quirin , 317 U. S. 1 (1942)).” S. Rep. No. 486, 81st Cong., 1st Sess., 13 (1949). Footnote 23 Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise. Footnote 24 On this point, it is noteworthy that the Court in Ex parte Quirin , 317 U. S. 1 (1942), looked beyond Congress’ declaration of war and accompanying authorization for use of force during World War II, and relied instead on Article of War 15 to find that Congress had authorized the use of military commissions in some circumstances. See id ., at 26–29. Justice Thomas’ assertion that we commit “error” in reading Article 21 of the UCMJ to place limitations upon the President’s use of military commissions, see post , at 5 (dissenting opinion), ignores the reasoning in Quirin . Footnote 25 The justification for, and limitations on, these commissions were summarized in Milligan: “If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then , on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.” 4 Wall., at 127 (emphases in original). Footnote 26 The limitations on these occupied territory or military government commissions are tailored to the tribunals’ purpose and the exigencies that necessitate their use. They may be employed “pending the establishment of civil government,” Madsen, 343 U. S., at 354–355, which may in some cases extend beyond the “cessation of hostilities,” id. , at 348. Footnote 27 So much may not be evident on cold review of the Civil War trials often cited as precedent for this kind of tribunal because the commissions established during that conflict operated as both martial law or military government tribunals and law-of-war commissions. Hence, “military commanders began the practice [during the Civil War] of using the same name, the same rules, and often the same tribunals” to try both ordinary crimes and war crimes. Bickers, 34 Tex. Tech. L. Rev., at 908. “For the first time, accused horse thieves and alleged saboteurs found themselves subject to trial by the same military commission.” Id. , at 909. The Civil War precedents must therefore be considered with caution; as we recognized in Quirin, 317 U. S., at 29, and as further discussed below, commissions convened during time of war but under neither martial law nor military government may try only offenses against the law of war. Footnote 28 If the commission is established pursuant to martial law or military government, its jurisdiction extends to offenses committed within “the exercise of military government or martial law.” Winthrop 837. Footnote 29 Winthrop adds as a fifth, albeit not-always-complied-with, criterion that “the trial must be had within the theatre of war . . . ; that, if held elsewhere, and where the civil courts are open and available, the proceedings and sentence will be coram non judice .” Id. , at 836. The Government does not assert that Guantanamo Bay is a theater of war, but instead suggests that neither Washington, D. C., in 1942 nor the Philippines in 1945 qualified as a “war zone” either. Brief for Respondents 27; cf. Quirin, 317 U. S. 1 ; In re Yamashita, 327 U. S. 1 (1946). Footnote 30 The elements of this conspiracy charge have been defined not by Congress but by the President. See Military Commission Instruction No. 2, 32 CFR §11.6 (2005). Footnote 31 Justice Thomas would treat Osama bin Laden’s 1996 declaration of jihad against Americans as the inception of the war. See post , at 7–10 (dissenting opinion). But even the Government does not go so far; although the United States had for some time prior to the attacks of September 11, 2001, been aggressively pursuing al Qaeda, neither in the charging document nor in submissions before this Court has the Government asserted that the President’s war powers were activated prior to September 11, 2001. Cf. Brief for Respondents 25 (describing the events of September 11, 2001, as “an act of war” that “triggered a right to deploy military forces abroad to defend the United States by combating al Qaeda”). Justice Thomas’ further argument that the AUMF is “backward looking” and therefore authorizes trial by military commission of crimes that occurred prior to the inception of war is insupportable. See post , at 8, n. 3. If nothing else, Article 21 of the UCMJ requires that the President comply with the law of war in his use of military commissions. As explained in the text, the law of war permits trial only of offenses “committed within the period of the war.” Winthrop 837; see also Quirin , 317 U. S., at 28–29 (observing that law-of-war military commissions may be used to try “those enemies who in their attempt to thwart or impede our military effort have violated the law of war” (emphasis added)). The sources that Justice Thomas relies on to suggest otherwise simply do not support his position. Colonel Green’s short exegesis on military commissions cites Howland for the proposition that “[o]ffenses committed before a formal declaration of war or before the declaration of martial law may be tried by military commission.” The Military Commission, 42 Am. J. Int’l L. 832, 848 (1948) (emphases added) (cited post , at 9–10). Assuming that to be true, nothing in our analysis turns on the admitted absence of either a formal declaration of war or a declaration of martial law. Our focus instead is on the September 11, 2001 attacks that the Government characterizes as the relevant “act[s] of war,” and on the measure that authorized the President’s deployment of military force—the AUMF. Because we do not question the Government’s position that the war commenced with the events of September 11, 2001, the Prize Cases, 2 Black 635 (1863) (cited post , at 2, 7, 8, and 10 (Thomas, J., dissenting)), are not germane to the analysis.    Finally, Justice Thomas’ assertion that Julius Otto Kuehn’s trial by military commission “for conspiring with Japanese officials to betray the United States fleet to the Imperial Japanese Government prior to its attack on Pearl Harbor” stands as authoritative precedent for Hamdan’s trial by commission, post , at 9, misses the mark in three critical respects. First, Kuehn was tried for the federal espionage crimes under what were then 50 U. S.C. §§31, 32, and 34, not with common-law violations of the law of war. See Hearings before the Joint Committee on the Investigation of the Pearl Harbor Attack, 79th Cong., 1st Sess., pt. 30, pp. 3067–3069 (1946). Second, he was tried by martial law commission (a kind of commission Justice Thomas acknowledges is not relevant to the analysis here, and whose jurisdiction extends to offenses committed within “the exercise of . . . martial law,” Winthrop 837, see supra , n. 28), not a commission established exclusively to try violations of the law of war. See ibid. Third, the martial law commissions established to try crimes in Hawaii were ultimately declared illegal by this Court. See Duncan v. Kahanamoku, 327 U. S. 304 , 324 (1946) (“The phrase ‘martial law’ as employed in [the Hawaiian Organic Act], while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the Islands against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by military tribunals”). Footnote 32 Justice Thomas adopts the remarkable view, not advocated by the Government, that the charging document in this case actually includes more than one charge: Conspiracy and several other ill-defined crimes, like “joining an organization” that has a criminal purpose, “ ‘[b]eing a guerilla,’ ” and aiding the enemy. See post , at 16–21, and n. 9. There are innumerable problems with this approach.    First, the crimes Justice Thomas identifies were not actually charged. It is one thing to observe that charges before a military commission “ ‘need not be stated with the precision of a common law indictment,’ ” post , at 15, n. 7 (citation omitted); it is quite another to say that a crime not charged may nonetheless be read into an indictment. Second, the Government plainly had available to it the tools and the time it needed to charge petitioner with the various crimes Justice Thomas refers to, if it believed they were supported by the allegations. As Justice Thomas himself observes, see post , at 21, the crime of aiding the enemy may, in circumstances where the accused owes allegiance to the party whose enemy he is alleged to have aided, be triable by military commission pursuant to Article 104 of the UCMJ, 10 U. S. C. §904. Indeed, the Government has charged detainees under this provision when it has seen fit to do so. See Brief for David Hicks as Amicus Curiae 7.    Third, the cases Justice Thomas relies on to show that Hamdan may be guilty of violations of the law of war not actually charged do not support his argument. Justice Thomas begins by blurring the distinction between those categories of “offender” who may be tried by military commission ( e.g. , jayhawkers and the like) with the “offenses” that may be so tried. Even when it comes to “ ‘being a guerilla,’ ” cf. post , at 18, n. 9 (citation omitted), a label alone does not render a person susceptible to execution or other criminal punishment; the charge of “ ‘being a guerilla’ ” invariably is accompanied by the allegation that the defendant “ ‘took up arms’ ” as such. This is because, as explained by Judge Advocate General Holt in a decision upholding the charge of “ ‘being a guerilla’ ” as one recognized by “the universal usage of the times,” the charge is simply shorthand (akin to “being a spy”) for “the perpetration of a succession of similar acts” of violence. Record Books of the Judge Advocate General Office, R. 3, 590. The sources cited by Justice Thomas confirm as much. See cases cited post , at 18, n. 9.    Likewise, the suggestion that the Nuremberg precedents support Hamdan’s conviction for the (uncharged) crime of joining a criminal organization must fail. Cf. post , at 19–21. The convictions of certain high-level Nazi officials for “membership in a criminal organization” were secured pursuant to specific provisions of the Charter of the International Military Tribunal that permitted indictment of individual organization members following convictions of the organizations themselves. See Arts. 9 and 10, in 1 Trial of the Major War Criminals Before the International Military Tribunal 12 (1947). The initial plan to use organizations’ convictions as predicates for mass individual trials ultimately was abandoned. See T. Taylor, Anatomy of the Nuremberg Trials: A Personal Memoir 584–585, 638 (1992). Footnote 33 Cf. 10 U. S. C. §904 (making triable by military commission the crime of aiding the enemy); §906 (same for spying); War Crimes Act of 1996, 18 U. S. C. §2441 (2000 ed. and Supp. III) (listing war crimes); Foreign Operations, Export Financing, and Related Appropriations Act, 1998, §583, 111 Stat. 2436 (same). Footnote 34 While the common law necessarily is “evolutionary in nature,” post , at 13 (Thomas, J., dissenting), even in jurisdictions where common law crimes are still part of the penal framework, an act does not become a crime without its foundations having been firmly established in precedent. See, e.g. , R. v. Rimmington , [2006] 2 All E. R. 257, 275–279 (House of Lords); id. , at 279 (while “some degree of vagueness is inevitable and development of the law is a recognised feature of common law courts, … the law-making function of the courts must remain within reasonable limits”); see also Rogers v. Tennessee, 532 U. S. 451 , 472–478 (2001) (Scalia, J., dissenting). The caution that must be exercised in the incremental development of common-law crimes by the judiciary is, for the reasons explained in the text, all the more critical when reviewing developments that stem from military action. Footnote 35 The 19th-century trial of the “Lincoln conspirators,” even if properly classified as a trial by law-of-war commission, cf. W. Rehnquist, All the Laws But One: Civil Liberties in Wartime 165–167 (1998) (analyzing the conspiracy charges in light of ordinary criminal law principles at the time), is at best an equivocal exception. Although the charge against the defendants in that case accused them of “combining, confederating, and conspiring together” to murder the President, they were also charged (as we read the indictment, cf. post , at 23, n. 14 (Thomas, J., dissenting)) with “maliciously, unlawfully, and traitorously murdering the said Abraham Lincoln.” H. R. Doc. No. 314, 55th Cong., 1st Sess., 696 (1899). Moreover, the Attorney General who wrote the opinion defending the trial by military commission treated the charge as if it alleged the substantive offense of assassination. See 11 Op. Atty. Gen. 297 (1865) (analyzing the propriety of trying by military commission “the offence of having assassinated the President”); see also Mudd v. Caldera , 134 F. Supp. 2d 138, 140 (DC 2001). Footnote 36 By contrast, the Geneva Conventions do extend liability for substantive war crimes to those who “orde[r]” their commission, see Third Geneva Convention, Art. 129, 6 U. S. T., at 3418, and this Court has read the Fourth Hague Convention of 1907 to impose “command responsibility” on military commanders for acts of their subordinates, see Yamshita , 327 U. S., at 15–16. Footnote 37 The other examples Justice Thomas offers are no more availing. The Civil War indictment against Robert Louden, cited post , at 25, alleged a conspiracy, but not one in violation of the law of war. See War Dept., General Court Martial Order No. 41, p. 20 (1864). A separate charge of “ ‘[t]ransgression of the laws and customs of war’ ” made no mention of conspiracy. Id. , at 17. The charge against Lenger Grenfel and others for conspiring to release rebel prisoners held in Chicago only supports the observation, made in the text, that the Civil War tribunals often charged hybrid crimes mixing elements of crimes ordinarily triable in civilian courts (like treason) and violations of the law of war. Judge Advocate General Holt, in recommending that Grenfel’s death sentence be upheld (it was in fact commuted by Presidential decree, see H. R. Doc. No. 314, at 725), explained that the accused “united himself with traitors and malefactors for the overthrow of our Republic in the interest of slavery.” Id. , at 689. Footnote 38 The Court in Quirin “assume[d] that there are acts regarded in other countries, or by some writers on international law, as offenses against the law of war which would not be triable by military tribunal here, either because they are not recognized by our courts as violations of the law of war or because they are of that class of offenses constitutionally triable only by a jury.” 317 U. S., at 29. We need not test the validity of that assumption here because the international sources only corroborate the domestic ones. Footnote 39 Accordingly, the Tribunal determined to “disregard the charges … that the defendants conspired to commit War Crimes and Crimes against Humanity.” 22 Trial of the Major War Criminals Before the International Military Tribunal 469 (1947); see also ibid . (“[T]he Charter does not define as a separate crime any conspiracy except the one to commit acts of aggressive war”). Footnote 40 See also 15 United Nations War Crimes Commissions, Law Reports of Trials of War Criminals 90–91 (1949) (observing that, although a few individuals were charged with conspiracy under European domestic criminal codes following World War II, “the United States Military Tribunals” established at that time did not “recognis[e] as a separate offence conspiracy to commit war crimes or crimes against humanity”). The International Criminal Tribunal for the former Yugoslavia (ICTY), drawing on the Nuremberg precedents, has adopted a “joint criminal enterprise” theory of liability, but that is a species of liability for the substantive offense (akin to aiding and abetting), not a crime on its own. See Prosecutor v. Tadiæ , Judgment, Case No. IT–94–1–A (ICTY App. Chamber, July 15, 1999); see also Prosecutor v. Milutinoviæ , Decision on Dragoljub Ojdaniæ’s Motion Challenging Jurisdiction—Joint Criminal Enterprise, Case No. IT–99–37–AR72, ¶26 (ICTY App. Chamber, May 21, 2003) (stating that “[c]riminal liability pursuant to a joint criminal enterprise is not a liability for … conspiring to commit crimes”). Footnote 41 Justice Thomas’ suggestion that our conclusion precludes the Government from bringing to justice those who conspire to commit acts of terrorism is therefore wide of the mark. See post , at 8, n. 3; 28–30. That conspiracy is not a violation of the law of war triable by military commission does not mean the Government may not, for example, prosecute by court-martial or in federal court those caught “plotting terrorist atrocities like the bombing of the Khobar Towers.” Post , at 29. Footnote 42 The accused also may be excluded from the proceedings if he “engages in disruptive conduct.” §5(K). Footnote 43 As the District Court observed, this section apparently permits reception of testimony from a confidential informant in circumstances where “Hamdan will not be permitted to hear the testimony, see the witness’s face, or learn his name. If the government has information developed by interrogation of witnesses in Afghanistan or elsewhere, it can offer such evidence in transcript form, or even as summaries of transcripts.” 344 F. Supp. 2d 152, 168 (DC 2004). Footnote 44 Any decision of the commission is not “final” until the President renders it so. See Commission Order No. 1 §6(H)(6). Footnote 45 See Winthrop 835, and n. 81 (“military commissions are constituted and composed, and their proceedings are conducted, similarly to general courts-martial”); id. , at 841–842; S. Rep. No. 130, 64th Cong., 1st Sess., 40 (1916) (testimony of Gen. Crowder) (“Both classes of courts have the same procedure”); see also, e.g. , H. Coppée, Field Manual of Courts-Martial, p. 104 (1863) (“[Military] commissions are appointed by the same authorities as those which may order courts-martial. They are constituted in a manner similar to such courts, and their proceedings are conducted in exactly the same way, as to form, examination of witnesses, etc.”). Footnote 46 The dissenters’ views are summarized in the following passage:    “It is outside our basic scheme to condemn men without giving reasonable opportunity for preparing defense; in capital or other serious crimes to convict on ‘official documents …; affidavits; … documents or translations thereof; diaries …, photographs, motion picture films, and … newspapers” or on hearsay, once, twice or thrice removed, more particularly when the documentary evidence or some of it is prepared ex parte by the prosecuting authority and includes not only opinion but conclusions of guilt. Nor in such cases do we deny the rights of confrontation of witnesses and cross-examination.” Yamashita, 327 U. S., at 44 (footnotes omitted). Footnote 47 Article 2 of the UCMJ now reads:    “(a) The following persons are subject to [the UCMJ]:    “(9) Prisoners of war in custody of the armed forces.    “(12) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons within an area leased by or otherwise reserved or acquired for the use of the United States which is under the control of the Secretary concerned and which is outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.” 10 U. S. C. §802(a).    Guantanamo Bay is such a leased area. See Rasul v. Bush, 542 U. S. 466 , 471 (2004). Footnote 48 The International Committee of the Red Cross is referred to by name in several provisions of the 1949 Geneva Conventions and is the body that drafted and published the official commentary to the Conventions. Though not binding law, the commentary is, as the parties recognize, relevant in interpreting the Conventions’ provisions. Footnote 49 Aside from Articles 21 and 36, discussed at length in the text, the other seven Articles that expressly reference military commissions are: (1) 28 (requiring appointment of reporters and interpreters); (2) 47 (making it a crime to refuse to appear or testify “before a court-martial, military commission, court of inquiry, or any other military court or board”); (3) 48 (allowing a “court-martial, provost court, or military commission” to punish a person for contempt); (4) 49(d) (permitting admission into evidence of a “duly authenticated deposition taken upon reasonable notice to the other parties” only if “admissible under the rules of evidence” and only if the witness is otherwise unavailable); (5) 50 (permitting admission into evidence of records of courts of inquiry “if otherwise admissible under the rules of evidence,” and if certain other requirements are met); (6) 104 (providing that a person accused of aiding the enemy may be sentenced to death or other punishment by military commission or court-martial); and (7) 106 (mandating the death penalty for spies convicted before military commission or court-martial). Footnote 50 Justice Thomas relies on the legislative history of the UCMJ to argue that Congress’ adoption of Article 36(b) in the wake of World War II was “motivated” solely by a desire for “uniformity across the separate branches of the armed services.” Post , at 35. But even if Congress was concerned with ensuring uniformity across service branches, that does not mean it did not also intend to codify the longstanding practice of procedural parity between courts-martial and other military tribunals. Indeed, the suggestion that Congress did not intend uniformity across tribunal types is belied by the textual proximity of subsection (a) (which requires that the rules governing criminal trials in federal district courts apply, absent the President’s determination of impracticability, to courts-martial, provost courts, and military commissions alike) and subsection (b) (which imposes the uniformity requirement). Footnote 51 We may assume that such a determination would be entitled to a measure of deference. For the reasons given by Justice Kennedy, see post , at 5 (opinion concurring in part), however, the level of deference accorded to a determination made under subsection (b) presum- ably would not be as high as that accorded to a determination under subsection (a). Footnote 52 Justice Thomas looks not to the President’s official Article 36(a) determination, but instead to press statements made by the Secretary of Defense and the Under Secretary of Defense for Policy. See post , at 36–38 (dissenting opinion). We have not heretofore, in evaluating the legality of Executive action, deferred to comments made by such officials to the media. Moreover, the only additional reason the comments provide—aside from the general danger posed by international terrorism—for departures from court-martial procedures is the need to protect classified information. As we explain in the text, and as Justice Kennedy elaborates in his separate opinion, the structural and procedural defects of Hamdan’s commission extend far beyond rules preventing access to classified information. Footnote 53 Justice Thomas relies extensively on Madsen for the proposition that the President has free rein to set the procedures that govern military commissions. See post , at 30, 31, 33, n. 16, 34, and 45. That reliance is misplaced. Not only did Madsen not involve a law-of-war military commission, but (1) the petitioner there did not challenge the procedures used to try her, (2) the UCMJ, with its new Article 36(b), did not become effective until May 31, 1951, after the petitioner’s trial, see 343 U. S., at 345, n. 6, and (3) the procedures used to try the petitioner actually afforded more protection than those used in courts-martial, see id. , at 358–360; see also id. , at 358 (“[T]he Military Government Courts for Germany . . . have had a less military character than that of courts-martial”). Footnote 54 Prior to the enactment of Article 36(b), it may well have been the case that a deviation from the rules governing courts-martial would not have rendered the military commission “ ‘ illegal .’ ” Post , at 30–31, n. 16 (Thomas, J., dissenting) (quoting Winthrop 841). Article 36(b), however, imposes a statutory command that must be heeded. Footnote 55 Justice Thomas makes the different argument that Hamdan’s Geneva Convention challenge is not yet “ripe” because he has yet to be sentenced. See post , at 43–45. This is really just a species of the abstention argument we have already rejected. See Part III, supra . The text of the Geneva Conventions does not direct an accused to wait until sentence is imposed to challenge the legality of the tribunal that is to try him. Footnote 56 As explained in Part VI–C, supra , that is no longer true under the 1949 Conventions. Footnote 57 But see, e.g. , 4 Int’l Comm. of Red Cross, Commentary: Geneva Convention Relative to the Protection of Civilian Persons in Time of War 21 (1958) (hereinafter GCIV Commentary) (the 1949 Geneva Conventions were written “first and foremost to protect individuals, and not to serve State interests”); GCIII Commentary 91 (“It was not … until the Conventions of 1949 … that the existence of ‘rights’ conferred in prisoners of war was affirmed”). Footnote 58 But see generally Brief for Louis Henkin et al. as Amici Curiae; 1 Int’l Comm. for the Red Cross, Commentary: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 84 (1952) (“It should be possible in States which are parties to the Convention … for the rules of the Convention to be evoked before an appropriate national court by the protected person who has suffered a violation”); GCII Commentary 92; GCIV Commentary 79. Footnote 59 For convenience’s sake, we use citations to the Third Geneva Convention only. Footnote 60 The President has stated that the conflict with the Taliban is a conflict to which the Geneva Conventions apply. See White House Memorandum, Humane Treatment of Taliban and al Qaeda Detainees 2 (Feb. 7, 2002), available at http://www.justicescholars.org/pegc/archive/ White_House/bush_memo_20020207_ed.pdf (hereinafter White House Memorandum). Footnote 61 Hamdan observes that Article 5 of the Third Geneva Convention requires that if there be “any doubt” whether he is entitled to prisoner-of-war protections, he must be afforded those protections until his status is determined by a “competent tribunal.” 6 U. S. T., at 3324. See also Headquarters Depts. of Army, Navy, Air Force, and Marine Corps, Army Regulation 190–8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees (1997), App. 116. Because we hold that Hamdan may not, in any event, be tried by the military commission the President has convened pursuant to the November 13 Order and Commission Order No. 1, the question whether his potential status as a prisoner of war independently renders illegal his trial by military commission may be reserved. Footnote 62 The term “Party” here has the broadest possible meaning; a Party need neither be a signatory of the Convention nor “even represent a legal entity capable of undertaking international obligations.” GCIII Commentary 37. Footnote 63 See also GCIII Commentary 35 (Common Article 3 “has the merit of being simple and clear… . Its observance does not depend upon preliminary discussions on the nature of the conflict”); GCIV Commentary 51 (“[N]obody in enemy hands can be outside the law”); U. S. Army Judge Advocate General’s Legal Center and School, Dept. of the Army, Law of War Handbook 144 (2004) (Common Article 3 “serves as a ‘minimum yardstick of protection in all conflicts, not just internal armed conflicts’ ” (quoting Nicaragua v. United States , 1986 I. C. J. 14, ¶218, 25 I. L. M. 1023)); Prosecutor v. Tadiæ , Case No. IT–94–1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶102 (ICTY App. Chamber, Oct. 2, 1995) (stating that “the character of the conflict is irrelevant” in deciding whether Common Article 3 applies). Footnote 64 The commentary’s assumption that the terms “properly constituted” and “regularly constituted” are interchangeable is beyond reproach; the French version of Article 66, which is equally authoritative, uses the term “régulièrement constitués” in place of “properly constituted.” Footnote 65 Further evidence of this tribunal’s irregular constitution is the fact that its rules and procedures are subject to change midtrial, at the whim of the Executive. See Commission Order No. 1, §11 (providing that the Secretary of Defense may change the governing rules “from time to time”). Footnote 66 Other international instruments to which the United States is a signatory include the same basic protections set forth in Article 75. See, e.g. , International Covenant on Civil and Political Rights, Art. 14, ¶3( d ), Mar. 23, 1976, 999 U. N. T. S. 171 (setting forth the right of an accused “[t]o be tried in his presence, and to defend himself in person or through legal assistance of his own choosing”). Following World War II, several defendants were tried and convicted by military commission for violations of the law of war in their failure to afford captives fair trials before imposition and execution of sentence. In two such trials, the prosecutors argued that the defendants’ failure to apprise accused individuals of all evidence against them constituted violations of the law of war. See 5 U. N. War Crimes Commission 30 (trial of Sergeant-Major Shigeru Ohashi), 75 (trial of General Tanaka Hisakasu). Footnote 67 The Government offers no defense of these procedures other than to observe that the defendant may not be barred from access to evidence if such action would deprive him of a “full and fair trial.” Commission Order No. 1, §6(D)(5)(b). But the Government suggests no circumstances in which it would be “fair” to convict the accused based on evidence he has not seen or heard. Cf. Crawford v. Washington, 541 U. S. 36 , 49 (2004) (“ ‘It is a rule of the common law, founded on natural justice, that no man shall be prejudiced by evidence which he had not the liberty to cross examine’ ” (quoting State v. Webb , 2 N. C. 103, 104 (Super. L. & Eq. 1794) (per curiam) ); Diaz v. United States, 223 U. S. 442 , 455 (1912) (describing the right to be present as “scarcely less important to the accused than the right of trial itself”); Lewis v. United States, 146 U. S. 370 , 372 (1892) (exclusion of defendant from part of proceedings is “contrary to the dictates of humanity” (internal quotation marks omitted)); Joint Anti&nbhyph;Fascist Refugee Comm. v. McGrath, 341 U. S. 123 , 170, n. 17, 171 (1951) (Frankfurter, J., concurring) (“[t]he plea that evidence of guilt must be secret is abhorrent to free men” (internal quotation marks omitted)). More fundamentally, the legality of a tribunal under Common Article 3 cannot be established by bare assurances that, whatever the character of the court or the procedures it follows, individual adjudicators will act fairly. KENNEDY, J., CONCURRING IN PART HAMDAN V. RUMSFELD 548 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-184 SALIM AHMED HAMDAN, PETITIONER v. DONALD H. RUMSFELD, SECRETARY OF DEFENSE, et al. on writ of certiorari to the united states court of appeals for the district of columbia circuit [June 29, 2006]    Justice Kennedy, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join as to Parts I and II, concurring in part.    Military Commission Order No. 1, which governs the military commission established to try petitioner Salim Hamdan for war crimes, exceeds limits that certain statutes, duly enacted by Congress, have placed on the President’s authority to convene military courts. This is not a case, then, where the Executive can assert some unilateral authority to fill a void left by congressional inaction. It is a case where Congress, in the proper exercise of its powers as an independent branch of government, and as part of a long tradition of legislative involvement in matters of military justice, has considered the subject of military tribunals and set limits on the President’s authority. Where a statute provides the conditions for the exercise of governmental power, its requirements are the result of a deliberative and reflective process engaging both of the political branches. Respect for laws derived from the customary operation of the Executive and Legislative Branches gives some assurance of stability in time of crisis. The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment.    These principles seem vindicated here, for a case that may be of extraordinary importance is resolved by ordinary rules. The rules of most relevance here are those pertaining to the authority of Congress and the interpretation of its enactments.    It seems appropriate to recite these rather fundamental points because the Court refers, as it should in its exposition of the case, to the requirement of the Geneva Conventions of 1949 that military tribunals be “regularly constituted” ante, at 69—a requirement that controls here, if for no other reason, because Congress requires that military commissions like the ones at issue conform to the “law of war,” 10 U. S. C. §821. Whatever the substance and content of the term “regularly constituted” as interpreted in this and any later cases, there seems little doubt that it relies upon the importance of standards deliberated upon and chosen in advance of crisis, under a system where the single power of the Executive is checked by other constitutional mechanisms. All of which returns us to the point of beginning—that domestic statutes control this case. If Congress, after due consideration, deems it appropriate to change the controlling statutes, in conformance with the Constitution and other laws, it has the power and prerogative to do so.    I join the Court’s opinion, save Parts V and VI–D–iv. To state my reasons for this reservation, and to show my agreement with the remainder of the Court’s analysis by identifying particular deficiencies in the military commissions at issue, this separate opinion seems appropriate. I    Trial by military commission raises separation-of-powers concerns of the highest order. Located within a single branch, these courts carry the risk that offenses will be defined, prosecuted, and adjudicated by executive officials without independent review. Cf. Loving v. United States, 517 U. S. 748 , 756–758, 760 (1996). Concentration of power puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution’s three-part system is designed to avoid. It is imperative, then, that when military tribunals are established, full and proper authority exists for the Presidential directive.    The proper framework for assessing whether Executive actions are authorized is the three-part scheme used by Justice Jackson in his opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Id. , at 635. “When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” Id. , at 637. And “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.” Ibid. In this case, as the Court observes, the President has acted in a field with a history of congressional participation and regulation. Ante , at 28–30, 55–57. In the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §801 et seq. , which Congress enacted, building on earlier statutes, in 1950, see Act of May 5, 1950, ch. 169, 64 Stat. 107, and later amended, see, e.g., Military Justice Act of 1968, 82 Stat. 1335, Congress has set forth governing principles for military courts. The UCMJ as a whole establishes an intricate system of military justice. It authorizes courts-martial in various forms, 10 U. S. C. §§816–820 (2000 ed. and Supp. III); it regulates the organization and procedure of those courts, e.g., §§822–835, 851–854; it defines offenses, §§877–934, and rights for the accused, e.g., §§827(b)–(c), 831, 844, 846, 855 (2000 ed.); and it provides mechanisms for appellate review, §§859–876b (2000 ed. and Supp. III). As explained below, the statute further recognizes that special military commissions may be convened to try war crimes. See infra , at 5–6; §821 (2000 ed.). While these laws provide authority for certain forms of military courts, they also impose limitations, at least two of which control this case. If the President has exceeded these limits, this becomes a case of conflict between Presidential and congressional action—a case within Justice Jackson’s third category, not the second or first.    One limit on the President’s authority is contained in §836 of the UCMJ. That section provides: “(a) Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter. “(b) All rules and regulations made under this article shall be uniform insofar as practicable.” 10 U. S. C. §836 (2000 ed.). In this provision the statute allows the President to implement and build on the UCMJ’s framework by adopting procedural regulations, subject to three requirements: (1) Procedures for military courts must conform to district-court rules insofar as the President “considers practicable”; (2) the procedures may not be contrary to or inconsistent with the provisions of the UCMJ; and (3) “insofar as practicable” all rules and regulations under §836 must be uniform, a requirement, as the Court points out, that indicates the rules must be the same for military commissions as for courts-martial unless such uniformity is impracticable, ante , at 57, 59, and n. 50.    As the Court further instructs, even assuming the first and second requirements of §836 are satisfied here—a matter of some dispute, see ante , at 57–59—the third requires us to compare the military-commission procedures with those for courts-martial and determine, to the extent there are deviations, whether greater uniformity would be practicable. Ante , at 59–62. Although we can assume the President’s practicability judgments are entitled to some deference, the Court observes that Congress’ choice of language in the uniformity provision of 10 U. S. C. §836(b) contrasts with the language of §836(a). This difference suggests, at the least, a lower degree of deference for §836(b) determinations. Ante , at 59–60. The rules for military courts may depart from federal-court rules whenever the President “considers” conformity impracticable, §836(a); but the statute requires procedural uniformity across different military courts “insofar as [uniformity is] practicable,” §836(b), not insofar as the President considers it to be so. The Court is right to conclude this is of relevance to our decision. Further, as the Court is also correct to conclude, ante , at 60, the term “practicable” cannot be construed to permit deviations based on mere convenience or expedience. “Practicable” means “feasible,” that is, “possible to practice or perform” or “capable of being put into practice, done, or accomplished.” Webster’s Third New International Dictionary 1780 (1961). Congress’ chosen language, then, is best understood to allow the selection of procedures based on logistical constraints, the accommodation of witnesses, the security of the proceedings, and the like. Insofar as the “[p]retrial, trial, and post-trial procedures” for the military commissions at issue deviate from court-martial practice, the deviations must be explained by some such practical need.    In addition to §836, a second UCMJ provision, 10 U. S. C. §821, requires us to compare the commissions at issue to courts-martial. This provision states: “The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.”    In §821 Congress has addressed the possibility that special military commissions—criminal courts other than courts-martial—may at times be convened. At the same time, however, the President’s authority to convene military commissions is limited: It extends only to “offenders or offenses” that “by statute or by the law of war may be tried by” such military commissions. Ibid.; see also ante , at 28–29. The Government does not claim to base the charges against Hamdan on a statute; instead it invokes the law of war. That law, as the Court explained in Ex parte Quirin, 317 U. S. 1 (1942), derives from “rules and precepts of the law of nations”; it is the body of international law governing armed conflict. Id. , at 28. If the military commission at issue is illegal under the law of war, then an offender cannot be tried “by the law of war” before that commission.    The Court is correct to concentrate on one provision of the law of war that is applicable to our Nation’s armed conflict with al Qaeda in Afghanistan and, as a result, to the use of a military commission to try Hamdan. Ante , at 65–70; see also 415 F. 3d 33, 44 (CADC 2005) (Williams, J., concurring). That provision is Common Article 3 of the four Geneva Conventions of 1949. It prohibits, as relevant here, “[t]he passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” See, e.g., Article 3 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3318, T. I. A. S. No. 3364. The provision is part of a treaty the United States has ratified and thus accepted as binding law. See id. , at 3316. By Act of Congress, moreover, violations of Common Article 3 are considered “war crimes,” punishable as federal offenses, when committed by or against United States nationals and military personnel. See 18 U. S. C. §2441. There should be no doubt, then, that Common Article 3 is part of the law of war as that term is used in §821.    The dissent by Justice Thomas argues that Common Article 3 nonetheless is irrelevant to this case because in Johnson v. Eisentrager, 339 U. S. 763 (1950), it was said to be the “obvious scheme” of the 1929 Geneva Convention that “[r]ights of alien enemies are vindicated under it only through protests and intervention of protecting powers,” i.e ., signatory states, id. , at 789, n. 14. As the Court explains, ante , at 63–65, this language from Eisentrager is not controlling here. Even assuming the Eisentrager analysis has some bearing upon the analysis of the broader 1949 Conventions and that, in consequence, rights are vindicated “under [those Conventions]” only through protests and intervention, 339 U. S., at 789, n. 14, Common Article 3 is nonetheless relevant to the question of authorization under §821. Common Article 3 is part of the law of war that Congress has directed the President to follow in establishing military commissions. Ante , at 66–67. Consistent with that view, the Eisentrager Court itself considered on the merits claims that “procedural irregularities” under the 1929 Convention “deprive[d] the Military Commission of jurisdiction.” 339 U. S., at 789, 790.    In another military commission case, In re Yamashita, 327 U. S. 1 (1946), the Court likewise considered on the merits—without any caveat about remedies under the Convention—a claim that an alleged violation of the 1929 Convention “establish[ed] want of authority in the commission to proceed with the trial.” Id., at 23, 24. That is the precise inquiry we are asked to perform here.    Assuming the President has authority to establish a special military commission to try Hamdan, the commission must satisfy Common Article 3’s requirement of a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples,” 6 U. S. T., at 3318. The terms of this general standard are yet to be elaborated and further defined, but Congress has required compliance with it by referring to the “law of war” in §821. The Court correctly concludes that the military commission here does not comply with this provision.    Common Article 3’s standard of a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples,” ibid. , supports, at the least, a uniformity principle similar to that codified in §836(b). The concept of a “regularly constituted court” providing “indispensable” judicial guarantees requires consideration of the system of justice under which the commission is established, though no doubt certain minimum standards are applicable. See ante , at 69–70; 1 Int’l Committee of the Red Cross, Customary International Humanitarian Law 355 (2005) (explaining that courts are “regularly constituted” under Common Article 3 if they are “established and organised in accordance with the laws and procedures already in force in a country”).    The regular military courts in our system are the courts-martial established by congressional statutes. Acts of Congress confer on those courts the jurisdiction to try “any person” subject to war crimes prosecution. 10 U. S. C. §818. As the Court explains, moreover, while special military commissions have been convened in previous armed conflicts—a practice recognized in §821—those military commissions generally have adopted the structure and procedure of courts-martial. See, e.g., 1 The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies 248 (2d series 1894) (Civil War general order requiring that military commissions “be constituted in a similar manner and their proceedings be conducted according to the same general rules as courts-martial in order to prevent abuses which might otherwise arise”); W. Winthrop, Military Law and Precedents 835, n. 81 (rev. 2d ed. 1920) (“[M]ilitary commissions are constituted and composed, and their proceedings are conducted, similarly to general courts-martial”); 1 United Nations War Crimes Commission, Law Reports of Trials of War Criminals 116–117 (1947) (reprint 1997) (hereinafter Law Reports) (discussing post-World War II regulations requiring that military commissions “hav[e] regard for” rules of procedure and evidence applicable in general courts-martial); see also ante , at 53–57; post , at 31, n. 15 (Thomas, J., dissenting). Today, moreover, §836(b)—which took effect after the military trials in the World War II cases invoked by the dissent, see Madsen v. Kinsella, 343 U. S. 341 , 344–345, and n. 6 (1952); Yamashita , supra, at 5; Quirin, 317 U. S., at 23—codifies this presumption of uniformity at least as to “[p]retrial, trial, and post-trial procedures.” Absent more concrete statutory guidance, this historical and statutory background—which suggests that some practical need must justify deviations from the court-martial model—informs the understanding of which military courts are “regularly constituted” under United States law.    In addition, whether or not the possibility, contemplated by the regulations here, of midtrial procedural changes could by itself render a military commission impermissibly irregular, ante , at 70, n. 65; see also Military Commission Order No. 1, §11 (Aug. 31, 2005), App. to Brief for Petitioner 46a–72a (hereinafter MCO), an acceptable degree of independence from the Executive is necessary to render a commission “regularly constituted” by the standards of our Nation’s system of justice. And any suggestion of Executive power to interfere with an ongoing judicial process raises concerns about the proceedings’ fairness. Again, however, courts-martial provide the relevant benchmark. Subject to constitutional limitations, see Ex parte Milligan, 4 Wall. 2 (1866), Congress has the power and responsibility to determine the necessity for military courts, and to provide the jurisdiction and procedures applicable to them. The guidance Congress has provided with respect to courts-martial indicates the level of independence and procedural rigor that Congress has deemed necessary, at least as a general matter, in the military context.    At a minimum a military commission like the one at issue—a commission specially convened by the President to try specific persons without express congressional authorization—can be “regularly constituted” by the standards of our military justice system only if some practical need explains deviations from court-martial practice. In this regard the standard of Common Article 3, applied here in conformity with §821, parallels the practicability standard of §836(b). Section 836, however, is limited by its terms to matters properly characterized as procedural—that is, “[p]retrial, trial, and post-trial procedures”—while Common Article 3 permits broader consideration of matters of structure, organization, and mechanisms to promote the tribunal’s insulation from command influence. Thus the combined effect of the two statutes discussed here—§§836 and 821—is that considerations of practicability must support departures from court-martial practice. Relevant concerns, as noted earlier, relate to logistical constraints, accommodation of witnesses, security of the proceedings, and the like, not mere expedience or convenience. This determination, of course, must be made with due regard for the constitutional principle that congressional statutes can be controlling, including the congressional direction that the law of war has a bearing on the determination.    These principles provide the framework for an analysis of the specific military commission at issue here. II    In assessing the validity of Hamdan’s military commission the precise circumstances of this case bear emphasis. The allegations against Hamdan are undoubtedly serious. Captured in Afghanistan during our Nation’s armed conflict with the Taliban and al Qaeda—a conflict that continues as we speak—Hamdan stands accused of overt acts in furtherance of a conspiracy to commit terrorism: delivering weapons and ammunition to al Qaeda, acquiring trucks for use by Osama bin Laden’s bodyguards, providing security services to bin Laden, and receiving weapons training at a terrorist camp. App. to Pet. for Cert. 65a–67a. Nevertheless, the circumstances of Hamdan’s trial present no exigency requiring special speed or precluding careful consideration of evidence. For roughly four years, Hamdan has been detained at a permanent United States military base in Guantanamo Bay, Cuba. And regardless of the outcome of the criminal proceedings at issue, the Government claims authority to continue to detain him based on his status as an enemy combatant.    Against this background, the Court is correct to conclude that the military commission the President has convened to try Hamdan is unauthorized. Ante , at 62, 69–70, 72. The following analysis, which expands on the Court’s discussion, explains my reasons for reaching this conclusion.    To begin with, the structure and composition of the military commission deviate from conventional court-martial standards. Although these deviations raise questions about the fairness of the trial, no evident practical need explains them.    Under the UCMJ, courts-martial are organized by a “convening authority”—either a commanding officer, the Secretary of Defense, the Secretary concerned, or the President. 10 U. S. C. §§822–824 (2000 ed. and Supp. III). The convening authority refers charges for trial, Manual for Courts-Martial, United States, Rule for Courts-Martial 401 (2005 ed.) (hereinafter R. C. M.), and selects the court-martial members who vote on the guilt or innocence of the accused and determine the sentence, 10 U. S. C. §§825(d)(2), 851–852 (2000 ed.); R. C. M. 503(a). Paralleling this structure, under Military Commission Order No. 1 an “ ‘Appointing Authority’ ”—either the Secretary of Defense or the Secretary’s “designee”—establishes commissions subject to the order, MCO No. 1, §2, approves and refers charges to be tried by those commissions, §4(B)(2)(a), and appoints commission members who vote on the conviction and sentence, §§4(A)(1–3). In addition the Appointing Authority determines the number of commission members (at least three), oversees the chief prosecutor, provides “investigative or other resources” to the defense insofar as he or she “deems necessary for a full and fair trial,” approves or rejects plea agreements, approves or disapproves communications with news media by prosecution or defense counsel (a function shared by the General Counsel of the Department of Defense), and issues supplementary commission regulations (subject to approval by the General Counsel of the Department of Defense, unless the Appointing Authority is the Secretary of Defense). See MCO No. 1, §§4(A)(2), 5(H), 6(A)(4), 7(A); Military Commission Instruction No. 3, §5(C) (July 15, 2005) (hereinafter MCI), available at www. defenselink.mil/news/Aug2005/d20050811MC13.pdf; MCI No. 4, §5(C) (Sept. 16, 2005), available at www. defenselink.mil/news/Oct2005/d20051003MCI4.pdf MCI No. 6, §3(B)(3) (April 15, 2004), available at www. defenselink.mil/news/Apr2004/d20040420ins6.pdf (all Internet materials as visited June 27, 2006, and available in Clerk of Court’s case file).    Against the background of these significant powers for the Appointing Authority, which in certain respects at least conform to ordinary court-martial standards, the regulations governing the commissions at issue make several noteworthy departures. At a general court-martial—the only type authorized to impose penalties of more than one year’s incarceration or to adjudicate offenses against the law of war, R. C. M. 201(f); 10 U. S. C. §§818–820 (2000 ed. and Supp. III)—the presiding officer who rules on legal issues must be a military judge. R. C. M. 501(a)(1), 801(a)(4)–(5); 10 U. S. C. §816(1) (2000 ed., Supp. III); see also R. C. M. 201(f)(2)(B)(ii) (likewise requiring a military judge for certain other courts-martial); 10 U. S. C. §819 (2000 ed. and Supp. III) (same). A military judge is an officer who is a member of a state or federal bar and has been specially certified for judicial duties by the Judge Advocate General for the officer’s Armed Service. R. C. M. 502(c); 10 U. S. C. §826(b). To protect their independence, military judges at general courts-martial are “assigned and directly responsible to the Judge Advocate General or the Judge Advocate General’s designee.” R. C. M. 502(c). They must be detailed to the court, in accordance with applicable regulations, “by a person assigned as a military judge and directly responsible to the Judge Advocate General or the Judge Advocate General’s designee.” R. C. M. 503(b); see also 10 U. S. C. §826(c); see generally Weiss v. United States, 510 U. S. 163 , 179–181 (1994) (discussing provisions that “insulat[e] military judges from the effects of command influence” and thus “preserve judicial impartiality”). Here, by contrast, the Appointing Authority selects the presiding officer, MCO No. 1, §§4(A)(1), (A)(4); and that officer need only be a judge advocate, that is, a military lawyer, §4(A)(4).    The Appointing Authority, moreover, exercises supervisory powers that continue during trial. Any interlocutory question “the disposition of which would effect a termination of proceedings with respect to a charge” is subject to decision not by the presiding officer, but by the Appointing Authority. §4(A)(5)(e) (stating that the presiding officer “shall certify” such questions to the Appointing Authority). Other interlocutory questions may be certified to the Appointing Authority as the presiding officer “deems appropriate.” Ibid. While in some circumstances the Government may appeal certain rulings at a court-martial—including “an order or ruling that terminates the proceedings with respect to a charge or specification,” R. C. M. 908(a); see also 10 U. S. C. §862(a)—the appeals go to a body called the Court of Criminal Appeals, not to the convening authority. R. C. M. 908; 10 U. S. C. §862(b); see also R. C. M. 1107 (requiring the convening authority to approve or disapprove the findings and sentence of a court-martial but providing for such action only after entry of sentence and restricting actions that increase penalties); 10 U. S. C. §860 (same); cf. §837(a) (barring command influence on court-martial actions). The Court of Criminal Appeals functions as the military’s intermediate appeals court; it is established by the Judge Advocate General for each Armed Service and composed of appellate military judges. R. C. M. 1203; 10 U. S. C. §866. This is another means in which, by structure and tradition, the court-martial process is insulated from those who have an interest in the outcome of the proceedings.    Finally, in addition to these powers with respect to the presiding officer, the Appointing Authority has greater flexibility in appointing commission members. While a general court-martial requires, absent a contrary election by the accused, at least five members, R. C. M. 501(a)(1); 10 U. S. C. §816(1) (2000 ed. and Supp. III), the Appointing Authority here is free, as noted earlier, to select as few as three. MCO No. 1, §4(A)(2). This difference may affect the deliberative process and the prosecution’s burden of persuasion.    As compared to the role of the convening authority in a court-martial, the greater powers of the Appointing Authority here—including even the resolution of dispositive issues in the middle of the trial—raise concerns that the commission’s decisionmaking may not be neutral. If the differences are supported by some practical need beyond the goal of constant and ongoing supervision, that need is neither apparent from the record nor established by the Government’s submissions.    It is no answer that, at the end of the day, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, affords military-commission defendants the opportunity for judicial review in federal court. As the Court is correct to observe, the scope of that review is limited, DTA §1005(e)(3)(D), id., at 2743; see also ante , at 8–9, and the review is not automatic if the defendant’s sentence is under 10 years, §1005(e)(3)(B), ibid . Also, provisions for review of legal issues after trial cannot correct for structural defects, such as the role of the Appointing Authority, that can cast doubt on the factfinding process and the presiding judge’s exercise of discretion during trial. Before military-commission defendants may obtain judicial review, furthermore, they must navigate a military review process that again raises fairness concerns. At the outset, the Appointing Authority (unless the Appointing Authority is the Secretary of Defense) performs an “administrative review” of undefined scope, ordering any “supplementary proceedings” deemed necessary. MCO No. 1 §6(H)(3). After that the case is referred to a three-member Review Panel composed of officers selected by the Secretary of Defense. §6(H)(4); MCI No. 9, §4(B) (Oct. 11, 2005), available at www.defenselink.mil/news/Oct2005/ d20051014MCI9.pdf. Though the Review Panel may return the case for further proceedings only if a majority “form[s] a definite and firm conviction that a material error of law occurred,” MCO No. 1, §6(H)(4); MCI No. 9, §4(C)(1)(a), only one member must have “experience as a judge,” MCO No. 1, §6(H)(4); nothing in the regulations requires that other panel members have legal training. By comparison to the review of court-martial judgments performed by such independent bodies as the Judge Advocate General, the Court of Criminal Appeals, and the Court of Appeals for the Armed Forces, 10 U. S. C. §§862, 864, 866, 867, 869, the review process here lacks structural protections designed to help ensure impartiality.    These structural differences between the military commissions and courts-martial—the concentration of functions, including legal decisionmaking, in a single executive official; the less rigorous standards for composition of the tribunal; and the creation of special review procedures in place of institutions created and regulated by Congress—remove safeguards that are important to the fairness of the proceedings and the independence of the court. Congress has prescribed these guarantees for courts-martial; and no evident practical need explains the departures here. For these reasons the commission cannot be considered regularly constituted under United States law and thus does not satisfy Congress’ requirement that military commissions conform to the law of war.    Apart from these structural issues, moreover, the basic procedures for the commissions deviate from procedures for courts-martial, in violation of §836(b). As the Court explains, ante , at 51, 61, the Military Commission Order abandons the detailed Military Rules of Evidence, which are modeled on the Federal Rules of Evidence in conformity with §836(a)’s requirement of presumptive compliance with district-court rules.    Instead, the order imposes just one evidentiary rule: “Evidence shall be admitted if … the evidence would have probative value to a reasonable person,” MCO No. 1, §6(D)(1). Although it is true some military commissions applied an amorphous evidence standard in the past, see, e.g., 1 Law Reports 117–118 (discussing World War II military commission orders); Exec. Order No. 9185, 7 Fed. Reg. 5103 (1942) (order convening military commission to try Nazi saboteurs), the evidentiary rules for those commissions were adopted before Congress enacted the uniformity requirement of 10 U. S. C. §836(b) as part of the UCMJ, see Act of May 5, 1950, ch. 169, 64 Stat. 107, 120, 149. And while some flexibility may be necessary to permit trial of battlefield captives like Hamdan, military statutes and rules already provide for introduction of deposition testimony for absent witnesses, 10 U. S. C. §849(d); R. C. M. 702, and use of classified information, Military Rule Evid. 505. Indeed, the deposition-testimony provision specifically mentions military commissions and thus is one of the provisions the Government concedes must be followed by the commission at issue. See ante , at 58. That provision authorizes admission of deposition testimony only if the witness is absent for specified reasons, §849(d)—a requirement that makes no sense if military commissions may consider all probative evidence. Whether or not this conflict renders the rules at issue “contrary to or inconsistent with” the UCMJ under §836(a), it creates a uniformity problem under §836(b).    The rule here could permit admission of multiple hearsay and other forms of evidence generally prohibited on grounds of unreliability. Indeed, the commission regulations specifically contemplate admission of unsworn written statements, MCO No. 1, §6(D)(3); and they make no provision for exclusion of coerced declarations save those “established to have been made as a result of torture,” MCI No. 10, §3(A) (Mar. 24, 2006), available at www. defenselink.mil/news/Mar2006/d20060327MCI10.pdf; cf. Military Rule Evid. 304(c)(3) (generally barring use of statements obtained “through the use of coercion, unlawful influence, or unlawful inducement”); 10 U. S. C. §831(d) (same). Besides, even if evidence is deemed nonprobative by the presiding officer at Hamdan’s trial, the military-commission members still may view it. In another departure from court-martial practice the military commission members may object to the presiding officer’s evidence rulings and determine themselves, by majority vote, whether to admit the evidence. MCO No. 1, §6(D)(1); cf. R. C. M. 801(a)(4), (e)(1) (providing that the military judge at a court-martial determines all questions of law).    As the Court explains, the Government has made no demonstration of practical need for these special rules and procedures, either in this particular case or as to the military commissions in general, ante , at 59–61; nor is any such need self-evident. For all the Government’s regulations and submissions reveal, it would be feasible for most, if not all, of the conventional military evidence rules and procedures to be followed.    In sum, as presently structured, Hamdan’s military commission exceeds the bounds Congress has placed on the President’s authority in §§836 and 821 of the UCMJ. Because Congress has prescribed these limits, Congress can change them, requiring a new analysis consistent with the Constitution and other governing laws. At this time, however, we must apply the standards Congress has provided. By those standards the military commission is deficient. III    In light of the conclusion that the military commission here is unauthorized under the UCMJ, I see no need to consider several further issues addressed in the plurality opinion by Justice Stevens and the dissent by Justice Thomas.    First, I would not decide whether Common Article 3’s standard—a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples,” 6 U. S. T., at 3320 (¶(1)(d))—necessarily requires that the accused have the right to be present at all stages of a criminal trial. As Justice Stevens explains, Military Commission Order No. 1 authorizes exclusion of the accused from the proceedings if the presiding officer determines that, among other things, protection of classified information so requires. See §§6(B)(3), (D)(5); ante , at 50. Justice Stevens observes that these regulations create the possibility of a conviction and sentence based on evidence Hamdan has not seen or heard—a possibility the plurality is correct to consider troubling. Ante , at 71–72, n. 67 (collecting cases); see also In re Oliver, 333 U. S. 257 , 277 (1948) (finding “no support for sustaining petitioner’s conviction of contempt of court upon testimony given in petitioner’s absence”).    As the dissent by Justice Thomas points out, however, the regulations bar the presiding officer from admitting secret evidence if doing so would deprive the accused of a “full and fair trial.” MCO No. 1, §6(D)(5)(b); see also post , at 47. This fairness determination, moreover, is unambiguously subject to judicial review under the DTA. See §1005(e)(3)(D)(i), 119 Stat. 2743 (allowing review of compliance with the “standards and procedures” in Military Commission Order No. 1). The evidentiary proceedings at Hamdan’s trial have yet to commence, and it remains to be seen whether he will suffer any prejudicial exclusion.    There should be reluctance, furthermore, to reach unnecessarily the question whether, as the plurality seems to conclude, ante , at 70, Article 75 of Protocol I to the Geneva Conventions is binding law notwithstanding the earlier decision by our Government not to accede to the Protocol. For all these reasons, and without detracting from the importance of the right of presence, I would rely on other deficiencies noted here and in the opinion by the Court—deficiencies that relate to the structure and procedure of the commission and that inevitably will affect the proceedings—as the basis for finding the military commissions lack authorization under 10 U. S. C. §836 and fail to be regularly constituted under Common Article 3 and §821.    I likewise see no need to address the validity of the conspiracy charge against Hamdan—an issue addressed at length in Part V of Justice Stevens’ opinion and in Part II–C of Justice Thomas’ dissent. See ante , at 36–49; post , at 12–28. In light of the conclusion that the military commissions at issue are unauthorized Congress may choose to provide further guidance in this area. Congress, not the Court, is the branch in the better position to undertake the “sensitive task of establishing a principle not inconsistent with the national interest or international justice.” Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398 , 428 (1964).    Finally, for the same reason, I express no view on the merits of other limitations on military commissions described as elements of the common law of war in Part V of Justice Stevens’ opinion. See ante , at 31–36, 48–49; post , at 6–12.    With these observations I join the Court’s opinion with the exception of Parts V and VI–D–iv. 548 U. S. ____ (2006) 548 U. S. ____ (2006) 548 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-184 SALIM AHMED HAMDAN, PETITIONER v. DONALD H. RUMSFELD, SECRETARY OF DEFENSE, et al. on writ of certiorari to the united states court of appeals for the district of columbia circuit [June 29, 2006]    Justice Breyer, with whom Justice Kennedy, Justice Souter, and Justice Ginsburg join, concurring.    The dissenters say that today’s decision would “sorely hamper the President’s ability to confront and defeat a new and deadly enemy.” Post , at 29 (opinion of Thomas, J.). They suggest that it undermines our Nation’s ability to “preven[t] future attacks” of the grievous sort that we have already suffered. Post , at 48. That claim leads me to state briefly what I believe the majority sets forth both explicitly and implicitly at greater length. The Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a “blank check.” Cf. Hamdi v. Rumsfeld, 542 U. S. 507 , 536 (2004) (plurality opinion). Indeed, Congress has denied the President the legisla- tive authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.    Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same. SCALIA, J., DISSENTING HAMDAN V. RUMSFELD 548 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-184 SALIM AHMED HAMDAN, PETITIONER v. DONALD H. RUMSFELD, SECRETARY OF DEFENSE, et al. on writ of certiorari to the united states court of appeals for the district of columbia circuit [June 29, 2006]    Justice Scalia, with whom Justice Thomas and Justice Alito join, dissenting.    On December 30, 2005, Congress enacted the Detainee Treatment Act (DTA). It unambiguously provides that, as of that date, “no court, justice, or judge” shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee. Notwithstanding this plain directive, the Court today concludes that, on what it calls the statute’s most natural reading, every “court, justice, or judge” before whom such a habeas application was pending on December 30 has jurisdiction to hear, consider, and render judgment on it. This conclusion is patently erroneous. And even if it were not, the jurisdiction supposedly retained should, in an exercise of sound equitable discretion, not be exercised. I A    The DTA provides: “[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.” §1005(e)(1), 119 Stat. 2742 (internal division omitted). This provision “t[ook] effect on the date of the enactment of this Act,” §1005(h)(1), id. , at 2743, which was December 30, 2005. As of that date, then, no court had jurisdiction to “hear or consider” the merits of petitioner’s habeas application. This repeal of jurisdiction is simply not ambiguous as between pending and future cases. It prohibits any exercise of jurisdiction, and it became effective as to all cases last December 30. It is also perfectly clear that the phrase “no court, justice , or judge” includes this Court and its Members, and that by exercising our appellate jurisdiction in this case we are “hear[ing] or consider[ing] … an application for a writ of habeas corpus.”    An ancient and unbroken line of authority attests that statutes ousting jurisdiction unambiguously apply to cases pending at their effective date. For example, in Bruner v. United States , 343 U. S. 112 (1952), we granted certiorari to consider whether the Tucker Act’s provision denying district court jurisdiction over suits by “officers” of the United States barred a suit by an employee of the United States. After we granted certiorari, Congress amended the Tucker Act by adding suits by “ ‘employees’ ” to the provision barring jurisdiction over suits by officers. Id. , at 114. This statute narrowing the jurisdiction of the district courts “became effective” while the case was pending before us, ibid. , and made no explicit reference to pending cases. Because the statute “did not reserve jurisdiction over pending cases,” id. , at 115, we held that it clearly ousted jurisdiction over them. Summarizing centuries of practice, we said: “This rule—that, when a law conferring jurisdiction is repealed without any reservation as to pending cases, all cases fall with the law—has been adhered to consistently by this Court.” Id. , at 116–117. See also Landgraf v. USI Film Products , 511 U. S. 244 , 274 (1994) (opinion for the Court by Stevens, J.) (“We have regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed”).    This venerable rule that statutes ousting jurisdiction terminate jurisdiction in pending cases is not, as today’s opinion for the Court would have it, a judge-made “presumption against jurisdiction,” ante , at 11, that we have invented to resolve an ambiguity in the statutes. It is simple recognition of the reality that the plain import of a statute repealing jurisdiction is to eliminate the power to consider and render judgment—in an already pending case no less than in a case yet to be filed. “Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle .” Ex parte McCardle , 7 Wall. 506, 514 (1869) (emphasis added).    To alter this plain meaning, our cases have required an explicit reservation of pending cases in the jurisdiction-repealing statute. For example, Bruner , as mentioned, looked to whether Congress made “any reservation as to pending cases.” 343 U. S., at 116–117; see also id. , at 115 (“Congress made no provision for cases pending at the effective date of the Act withdrawing jurisdiction and, for this reason, Courts of Appeals ordered pending cases terminated for want of jurisdiction”). Likewise, in Hallowell v. Commons , 239 U. S. 506 (1916), Justice Holmes relied on the fact that the jurisdiction-ousting provision “made no exception for pending litigation, but purported to be universal,” id. , at 508. And in Insurance Co. v. Ritchie , 5 Wall. 541 (1867), we again relied on the fact that the jurisdictional repeal was made “without any saving of such causes as that before us,” id. , at 544. As in Bruner , Hallowell , and Ritchie , the DTA’s directive that “no court, justice, or judge shall have jurisdiction,” §1005(e)(1), 119 Stat. 2742, is made “without any reservation as to pending cases” and “purport[s] to be universal.” What we stated in an earlier case remains true here: “[W]hen, if it had been the intention to confine the operation of [the jurisdictional repeal] … to cases not pending, it would have been so easy to have said so, we must presume that Congress meant the language employed should have its usual and ordinary signification, and that the old law should be unconditionally repealed.” Railroad Co. v. Grant , 98 U. S. 398 , 403 (1879).    The Court claims that I “rea[d] too much into” the Bruner line of cases, ante , at 12, n. 7, and that “the Bruner rule” has never been “an inflexible trump,” ante , at 19. But the Court sorely misdescribes Bruner —as if it were a kind of early-day Lindh v. Murphy , 521 U. S. 320 (1997), resolving statutory ambiguity by oblique negative inference. On the contrary, as described above, Bruner stated its holding as an unqualified “rule,” which “has been adhered to consistently by this Court.” 343 U. S., at 116–117. Though Bruner referred to an express savings clause elsewhere in the statute, id., at 115, n. 7, it disavowed any reliance on such oblique indicators to vary the plain meaning, quoting Ritchie at length: “ ‘It is quite possible that this effect of the [jurisdiction-stripping statute] was not contemplated by Congress… . [B]ut when terms are unambiguous we may not speculate on probabilities of intention.’ ” 343 U. S., at 116 (quoting 5 Wall., at 544–545).    The Court also attempts to evade the Bruner line of cases by asserting that “the ‘presumption’ [of application to pending cases] that these cases have applied is more accurately viewed as the nonapplication of another presumption—viz., the presumption against retroactivity—in certain limited circumstances.” Ante , at 11. I have already explained that what the Court calls a “presumption” is simply the acknowledgment of the unambiguous meaning of such provisions. But even taking it to be what the Court says, the effect upon the present case would be the same. Prospective applications of a statute are “effective” upon the statute’s effective date; that is what an effective-date provision like §1005(h)(1) means .[ Footnote 1 ] “ ‘[S]hall take effect upon enactment’ is presumed to mean ‘shall have prospective effect upon enactment,’ and that presumption is too strong to be overcome by any negative inference [drawn from other provisions of the statute].” Landgraf , 511 U. S., at 288 (Scalia, J., concurring in judgments). The Court’s “nonapplication of … the presumption against retroactivity” to §1005(e)(1) is thus just another way of stating that the statute takes immediate effect in pending cases.    Though the Court resists the Bruner rule, it cannot cite a single case in the history of Anglo-American law (before today) in which a jurisdiction-stripping provision was denied immediate effect in pending cases, absent an explicit statutory reservation. By contrast, the cases granting such immediate effect are legion, and they repeatedly rely on the plain language of the jurisdictional repeal as an “inflexible trump,” ante , at 19, by requiring an express reservation to save pending cases. See, e.g. , Bruner , supra , at 115; Kline v. Burke Constr. Co. , 260 U. S. 226 , 234 (1922); Hallowell , 239 U. S., at 508; Gwin v. United States , 184 U. S. 669 , 675 (1902); Gurnee v. Patrick County , 137 U. S. 141 , 144 (1890); Sherman v. Grinnell , 123 U. S. 679 , 680 (1887); Railroad Co. v. Grant , supra, at 403, Assessors v. Osbornes , 9 Wall. 567, 575 (1870); Ex parte McCardle , 7 Wall., at 514; Ritchie , supra , at 544; Norris v. Crocker , 13 How. 429, 440 (1852); Yeaton v. United States , 5 Cranch 281 (1809) (Marshall, C. J.), discussed in Gwin, supra, at 675; King v. Justices of the Peace of London , 3 Burr. 1456, 1457, 97 Eng. Rep. 924, 925 (K. B. 1764). Cf. National Exchange Bank of Baltimore v. Peters , 144 U. S. 570 , 572 (1892). B    Disregarding the plain meaning of §1005(e)(1) and the requirement of explicit exception set forth in the foregoing cases, the Court instead favors “a negative inference … from the exclusion of language from one statutory provision that is included in other provisions of the same statute,” ante , at 13. Specifically, it appeals to the fact that §1005(e)(2) and (e)(3) are explicitly made applicable to pending cases (by §1005(h)(2)). A negative inference of the sort the Court relies upon might clarify the meaning of an ambiguous provision, but since the meaning of §1005(e)(1) is entirely clear, the omitted language in that context would have been redundant.    Even if §1005(e)(1) were at all ambiguous in its application to pending cases, the “negative inference” from §1005(h)(2) touted by the Court would have no force. The numerous cases in the Bruner line would at least create a powerful default “presumption against jurisdiction,” ante , at 11. The negative inference urged by the Court would be a particularly awkward and indirect way of rebutting such a longstanding and consistent practice. This is especially true since the negative inference that might be drawn from §1005(h)(2)’s specification that certain provisions shall apply to pending cases is matched by a negative inference in the opposite direction that might be drawn from §1005(b)(2), which provides that certain provisions shall not apply to pending cases.    The Court’s reliance on our opinion in Lindh v. Murphy , 521 U. S. 320 (1997), is utterly misplaced. Lindh involved two provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA): a set of amendments to chapter 153 of the federal habeas statute that redefined the scope of collateral review by federal habeas courts; and a provision creating a new chapter 154 in the habeas statute specially to govern federal collateral review of state capital cases. See 521 U. S., at 326–327. The latter provision explicitly rendered the new chapter 154 applicable to cases pending at the time of AEDPA’s enactment; the former made no specific reference to pending cases. Id. , at 327. In Lindh , we drew a negative inference from chapter 154’s explicit reference to pending cases, to conclude that the chapter 153 amendments did not apply in pending cases. It was essential to our reasoning, however, that both provisions appeared to be identically difficult to classify under our retroactivity cases. First, we noted that, after Landgraf , there was reason for Congress to suppose that an explicit statement was required to render the amendments to chapter 154 applicable in pending cases, because the new chapter 154 “will have substantive as well as purely procedural effects.” 521 U. S., at 327. The next step—and the critical step—in our reasoning was that Congress had identical reason to suppose that an explicit statement would be required to apply the chapter 153 amendments to pending cases, but did not provide it. Id. , at 329. The negative inference of Lindh rested on the fact that “[n]othing … but a different intent explain[ed] the different treatment.” Ibid .    Here, by contrast, there is ample reason for the different treatment. The exclusive-review provisions of the DTA, unlike both §1005(e)(1) and the AEDPA amendments in Lindh , confer new jurisdiction (in the D. C. Circuit) where there was none before. For better or for worse, our recent cases have contrasted jurisdiction- creating provisions with jurisdiction- ousting provisions, retaining the venerable rule that the latter are not retroactive even when applied in pending cases, but strongly indicating that the former are typically retroactive. For example, we stated in Hughes Aircraft Co. v. United States ex rel. Schumer , 520 U. S. 939 , 951 (1997), that a statute “that creates jurisdiction where none previously existed” is “as much subject to our presumption against retroactivity as any other.” See also Republic of Austria v. Altmann , 541 U. S. 677 , 695 (2004) (opinion for the Court by Stevens, J.); id. , at 722 (Kennedy, J., dissenting). The Court gives our retroactivity jurisprudence a dazzling clarity in asserting that “subsections (e)(2) and (e)(3) ‘confer’ jurisdiction in a manner that cannot conceivably give rise to retroactivity questions under our precedents.”[ Footnote 2 ] Ante , at 17–18. This statement rises to the level of sarcasm when one considers its author’s description of the governing test of our retroactivity jurisprudence: “The conclusion that a particular rule operates ‘retroactively’ comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event. Any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity. However, retroactivity is a matter on which judges tend to have ‘sound … instinct[s],’ … and familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.” Landgraf , 511 U. S., at 270 (opinion for the Court by Stevens, J.). The only “familiar consideration,” “reasonable reliance,” and “settled expectation” I am aware of pertaining to the present case is the rule of Bruner —applicable to §1005(e)(1), but not to §1005(e)(2) and (3)—which the Court stubbornly disregards. It is utterly beyond question that §1005(e)(2)’s and (3)’s application to pending cases (without explicit specification) was not as clear as §1005(e)(1)’s. That is alone enough to explain the difference in treatment.    Another obvious reason for the specification was to stave off any Suspension Clause problems raised by the immediately effective ouster of jurisdiction brought about by subsection (e)(1). That is to say, specification of the immediate effectiveness of subsections (e)(2) and (e)(3) (which, unlike subsection (e)(1), would not fall within the Bruner rule and would not automatically be deemed applicable in pending cases) could reasonably have been thought essential to be sure of replacing the habeas jurisdiction that subsection (e)(1) eliminated in pending cases with an adequate substitute. See infra , at 16–18.    These considerations by no means prove that an explicit statement would be required to render subsections (e)(2) and (e)(3) applicable in pending cases. But they surely gave Congress ample reason to doubt that their application in pending cases would unfold as naturally as the Court glibly assumes. In any event, even if it were true that subsections (e)(2) and (e)(3) “ ‘confer’ jurisdiction in a manner that cannot conceivably give rise to retroactivity questions,” ante , at 17–18, this would merely establish that subsection (h)(2)’s reference to pending cases was wholly superfluous when applied to subsections (e)(2) and (e)(3), just as it would have been for subsection (e)(1). Lindh ’s negative inference makes sense only when Congress would have perceived “the wisdom of being explicit” with respect to the immediate application of both of two statutory provisions, 521 U. S., at 328, but chose to be explicit only for one of them—not when it would have perceived no need to be explicit for both, but enacted a redundancy only for one.    In short, it is simply untrue that Congress “ ‘should have been just as concerned about’ ” specifying the application of §1005(e)(1) to pending cases, ante , at 14 (quoting Lindh , 521 U. S., at 329). In fact, the negative-inference approach of Lindh is particularly inappropriate in this case, because the negative inference from §1005(h)(2) would tend to defeat the purpose of the very provisions that are explicitly rendered applicable in pending cases, §1005(e)(2) and (3). Those provisions purport to vest “exclusive” jurisdiction in the D. C. Circuit to consider the claims raised by petitioners here. See infra , at 16–18. By drawing a negative inference À la Lindh , the Court supplants this exclusive-review mechanism with a dual-review mechanism for petitioners who were expeditious enough to file applications challenging the CSRTs or military commissions before December 30, 2005. Whatever the force of Lindh ’s negative inference in other cases, it surely should not apply here to defeat the purpose of the very provision from which the negative inference is drawn. C    Worst of all is the Court’s reliance on the legislative history of the DTA to buttress its implausible reading of §1005(e)(1). We have repeatedly held that such reliance is impermissible where, as here, the statutory language is unambiguous. But the Court nevertheless relies both on floor statements from the Senate and (quite heavily) on the drafting history of the DTA. To begin with floor statements: The Court urges that some “statements made by Senators preceding passage of the Act lend further support to” the Court’s interpretation, citing excerpts from the floor debate that support its view, ante , 15–16, n. 10. The Court immediately goes on to discount numerous floor statements by the DTA’s sponsors that flatly contradict its view, because “those statements appear to have been inserted into the Congressional Record after the Senate debate.” Ibid. Of course this observation, even if true, makes no difference unless one indulges the fantasy that Senate floor speeches are attended (like the Philippics of Demosthenes) by throngs of eager listeners, instead of being delivered (like Demosthenes’ practice sessions on the beach) alone into a vast emptiness. Whether the floor statements are spoken where no Senator hears, or written where no Senator reads, they represent at most the views of a single Senator. In any event, the Court greatly exaggerates the one-sidedness of the portions of the floor debate that clearly occurred before the DTA’s enactment. Some of the statements of Senator Graham, a sponsor of the bill, only make sense on the assumption that pending cases are covered.[ Footnote 3 ] And at least one opponent of the DTA unmistakably expressed his understanding that it would terminate our jurisdiction in this very case.[ Footnote 4 ] (Of course in its discussion of legislative history the Court wholly ignores the President’s signing statement, which explicitly set forth his understanding that the DTA ousted jurisdiction over pending cases.[ Footnote 5 ])    But selectivity is not the greatest vice in the Court’s use of floor statements to resolve today’s case. These statements were made when Members of Congress were fully aware that our continuing jurisdiction over this very case was at issue. The question was divisive, and floor statements made on both sides were undoubtedly opportunistic and crafted solely for use in the briefs in this very litigation. See, e.g. , 151 Cong. Rec. S14257–S14258 (Dec. 21, 2005) (statement of Sen. Levin) (arguing against a reading that would “stri[p] the Federal courts of jurisdiction to consider pending cases, including the Hamdan case now pending in the Supreme Court ,” and urging that Lindh requires the same negative inference that the Court indulges today (emphasis added)). The Court’s reliance on such statements cannot avoid the appearance of similar opportunism. In a virtually identical context, the author of today’s opinion has written for the Court that “[t]he legislative history discloses some frankly partisan statements about the meaning of the final effective date language, but those statements cannot plausibly be read as reflecting any general agreement.” Landgraf , 511 U. S., at 262 (opinion for the Court by Stevens, J.). Likewise, the handful of floor statements that the Court treats as authoritative do not “reflec[t] any general agreement.” They reflect the now-common tactic—which the Court once again rewards—of pursuing through floor-speech ipse dixit what could not be achieved through the constitutionally prescribed method of putting language into a bill that a majority of both Houses vote for and the President signs.    With regard to the floor statements, at least the Court shows some semblance of seemly shame, tucking away its reference to them in a half-hearted footnote. Not so for its reliance on the DTA’s drafting history, which is displayed prominently, see ante , at 14–15. I have explained elsewhere that such drafting history is no more legitimate or reliable an indicator of the objective meaning of a statute than any other form of legislative history. This case presents a textbook example of its unreliability. The Court, ante , at 14, trumpets the fact that a bill considered in the Senate included redundant language, not included in the DTA as passed, reconfirming that the abolition of habeas jurisdiction “shall apply to any application or other action that is pending on or after the date of the enactment of this Act.” 151 Cong. Rec. S12655 (Nov. 10, 2005). But this earlier version of the bill also differed from the DTA in other material respects. Most notably, it provided for postdecision review by the D. C. Circuit only of the decisions of CSRTs , not military commissions, ibid.; and it limited that review to whether “the status determination … was consistent with the procedures and standards specified by the Secretary of Defense,” ibid., not whether “the use of such standards and procedures … is consistent with the Constitution and laws of the United States,” DTA §1005(e)(2)(C)(ii), 119 Stat. 2742. To say that what moved Senators to reject this earlier bill was the “action that is pending” provision surpasses the intuitive powers of even this Court’s greatest Justices.[ Footnote 6 ] And to think that the House and the President also had this rejection firmly in mind is absurd. As always—but especially in the context of strident, partisan legislative conflict of the sort that characterized enactment of this legislation—the language of the statute that was actually passed by both Houses of Congress and signed by the President is our only authoritative and only reliable guidepost. D    A final but powerful indication of the fact that the Court has made a mess of this statute is the nature of the consequences that ensue. Though this case concerns a habeas application challenging a trial by military commission, DTA §1005(e)(1) strips the courts of jurisdiction to hear or consider any “application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.” The vast majority of pending petitions, no doubt, do not relate to military commissions at all, but to more commonly challenged aspects of “detention” such as the terms and conditions of confinement. See Rasul v. Bush , 542 U. S. 466 , 498 (2004) (Scalia, J., dissenting). The Solicitor General represents that “[h]abeas petitions have been filed on behalf of a purported 600 [Guantanamo Bay] detainees,” including one that “seek[s] relief on behalf of every Guantanamo detainee who has not already filed an action,” Respondents’ Motion to Dismiss for Lack of Jurisdiction 20, n. 10 (hereinafter Motion to Dismiss). The Court’s interpretation transforms a provision abolishing jurisdiction over all Guantanamo-related habeas petitions into a provision that retains jurisdiction over cases sufficiently numerous to keep the courts busy for years to come. II    Because I would hold that §1005(e)(1) unambiguously terminates the jurisdiction of all courts to “hear or consider” pending habeas applications, I must confront petitioner’s arguments that the provision, so interpreted, violates the Suspension Clause. This claim is easily dispatched. We stated in Johnson v. Eisentrager , 339 U. S. 763 , 768 (1950): “We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.” Notwithstanding the ill-considered dicta in the Court’s opinion in Rasul , 542 U. S., at 480–481, it is clear that Guantanamo Bay, Cuba, is outside the sovereign “territorial jurisdiction” of the United States. See id. , at 500–505 (Scalia, J., dissenting). Petitioner, an enemy alien detained abroad, has no rights under the Suspension Clause.    But even if petitioner were fully protected by the Clause, the DTA would create no suspension problem. This Court has repeatedly acknowledged that “the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person’s detention does not constitute a suspension of the writ of habeas corpus.” Swain v. Pressley , 430 U. S. 372 , 381 (1977); see also INS v. St. Cyr , 533 U. S. 289 , 314, n. 38 (2006) (“Congress could, without raising any constitutional questions, provide an adequate substitute through the courts of appeals”).    Petitioner has made no showing that the postdecision exclusive review by the D. C. Circuit provided in §1005(e)(3) is inadequate to test the legality of his trial by military commission. His principal argument is that the exclusive-review provisions are inadequate because they foreclose review of the claims he raises here. Though petitioner’s brief does not parse the statutory language, his argument evidently rests on an erroneously narrow reading of DTA §1005(e)(3)(D)(ii), 119 Stat. 2743. That provision grants the D. C. Circuit authority to review, “to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States.” In the quoted text, the phrase “such standards and procedures” refers to “the standards and procedures specified in the military order referred to in subparagraph (A),” namely “Military Commission Order No. 1, dated August 31, 2005 (or any successor military order).” DTA §1005(e)(3)(D)(i), (e)(3)(A), ibid . This Military Commission Order (Order No. 1) is the Department of Defense’s fundamental implementing order for the President’s order authorizing trials by military commission. Order No. 1 establishes commissions, §2; delineates their jurisdiction, §3; provides for their officers, §4(A); provides for their prosecution and defense counsel, §4(B), (C); lays out all their procedures, both pretrial and trial, §5(A)–(P), §6(A)–(G); and provides for posttrial military review through the Secretary of Defense and the President, §6(H). In short, the “standards and procedures specified in” Order No. 1 include every aspect of the military commissions, including the fact of their existence and every respect in which they differ from courts-martial. Petitioner’s claims that the President lacks legal authority to try him before a military commission constitute claims that “the use of such standards and procedures,” as specified in Order No. 1, is “[in]consistent with the Constitution and laws of the United States,” DTA §1005(e)(3)(D)(ii), 119 Stat. 2743. The D. C. Circuit thus retains jurisdiction to consider these claims on postdecision review, and the Government does not dispute that the DTA leaves unaffected our certiorari jurisdiction under 28 U. S. C. §1254(1) to review the D. C. Circuit’s decisions. Motion to Dismiss 16, n. 8. Thus, the DTA merely defers our jurisdiction to consider petitioner’s claims; it does not eliminate that jurisdiction. It constitutes neither an “inadequate” nor an “ineffective” substitute for petitioner’s pending habeas application.[ Footnote 7 ]    Though it does not squarely address the issue, the Court hints ominously that “the Government’s preferred reading” would “rais[e] grave questions about Congress’ authority to impinge upon this Court’s appellate jurisdiction, particularly in habeas cases.” Ante , at 10–11 (citing Ex parte Yerger , 8 Wall. 85 (1869); Felker v. Turpin , 518 U. S. 651 (1996); Durousseau v. United States , 6 Cranch 307 (1810); United States v. Klein , 13 Wall. 128 (1872); and Ex parte McCardle , 7 Wall. 506). It is not clear how there could be any such lurking questions, in light of the aptly named “ Exceptions Clause” of Article III, §2, which, in making our appellate jurisdiction subject to “such Exceptions, and under such Regulations as the Congress shall make,” explicitly permits exactly what Congress has done here. But any doubt our prior cases might have created on this score is surely chimerical in this case. As just noted, the exclusive-review provisions provide a substitute for habeas review adequate to satisfy the Suspension Clause, which forbids the suspension of the writ of habeas corpus. A fortiori they provide a substitute adequate to satisfy any implied substantive limitations, whether real or imaginary, upon the Exceptions Clause, which authorizes such exceptions as §1005(e)(1). III    Even if Congress had not clearly and constitutionally eliminated jurisdiction over this case, neither this Court nor the lower courts ought to exercise it. Traditionally, equitable principles govern both the exercise of habeas jurisdiction and the granting of the injunctive relief sought by petitioner. See Schlesinger v. Councilman , 420 U. S. 738 , 754 (1975); Weinberger v. Romero-Barcelo , 456 U. S. 305 , 311 (1982). In light of Congress’s provision of an alternate avenue for petitioner’s claims in §1005(e)(3), those equitable principles counsel that we abstain from exercising jurisdiction in this case.    In requesting abstention, the Government relies principally on Councilman , in which we abstained from considering a serviceman’s claim that his charge for marijuana possession was not sufficiently “service-connected” to trigger the subject-matter jurisdiction of the military courts-martial. See 420 U. S., at 740, 758. Admittedly, Councilman does not squarely control petitioner’s case, but it provides the closest analogue in our jurisprudence. As the Court describes, ante , at 21, Councilman “identifie[d] two considerations of comity that together favor[ed] abstention pending completion of ongoing court-martial proceedings against service personnel.” But the Court errs in finding these considerations inapplicable to this case. Both of them, and a third consideration not emphasized in Councilman , all cut in favor of abstention here.    First, the Court observes that Councilman rested in part on the fact that “military discipline and, therefore, the efficient operation of the Armed Forces are best served if the military justice system acts without regular interference from civilian courts,” and concludes that “Hamdan is not a member of our Nation’s Armed Forces, so concerns about military discipline do not apply.” Ante , at 22. This is true enough. But for some reason, the Court fails to make any inquiry into whether military commission trials might involve other “military necessities” or “unique military exigencies,” 420 U. S., at 757, comparable in gravity to those at stake in Councilman . To put this in context: The charge against the respondent in Councilman was the off-base possession and sale of marijuana while he was stationed in Fort Sill, Oklahoma, see id., at 739–740. The charge against the petitioner here is joining and actively abetting the murderous conspiracy that slaughtered thousands of innocent American civilians without warning on September 11, 2001. While Councilman held that the prosecution of the former charge involved “military necessities” counseling against our interference, the Court does not even ponder the same question for the latter charge.    The reason for the Court’s “blinkered study” of this question, ante , at 19, is not hard to fathom. The principal opinion on the merits makes clear that it does not believe that the trials by military commission involve any “military necessity” at all: “The charge’s shortcomings … are indicative of a broader inability on the Executive’s part here to satisfy the most basic precondition … for establishment of military commissions: military necessity.” Ante , at 48. This is quite at odds with the views on this subject expressed by our political branches. Because of “military necessity,” a joint session of Congress authorized the President to “use all necessary and appropriate force,” including military commissions, “against those nations, organizations, or persons [such as petitioner] he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” Authorization for Use of Military Force, §2(a), 115 Stat. 224, note following 50 U. S. C. §1541 (2000 ed., Supp. III). In keeping with this authority, the President has determined that “[t]o protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order … to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals.” Military Order of Nov. 13, 2001, 3 CFR §918(e) (2002). It is not clear where the Court derives the authority—or the audacity—to contradict this determination. If “military necessities” relating to “duty” and “discipline” required abstention in Councilman , supra , at 757, military necessities relating to the disabling, deterrence, and punishment of the mass-murdering terrorists of September 11 require abstention all the more here.    The Court further seeks to distinguish Councilman on the ground that “the tribunal convened to try Hamdan is not part of the integrated system of military courts, complete with independent review panels, that Congress has established.” Ante , at 22. To be sure, Councilman emphasized that “Congress created an integrated system of military courts and review procedures, a critical element of which is the Court of Military Appeals consisting of civilian judges completely removed from all military influence or persuasion, who would gain over time thorough familiarity with military problems.” 420 U. S., at 758 (internal quotation marks and footnote omitted). The Court contrasts this “integrated system” insulated from military influence with the review scheme established by Order No. 1, which “provides that appeal of a review panel’s decision may be had only to the Secretary of Defense himself, §6(H)(5), and then, finally, to the President, §6(H)(6).” Ante , at 23.    Even if we were to accept the Court’s extraordinary assumption that the President “lack[s] the structural insulation from military influence that characterizes the Court of Appeals for the Armed Forces,” ante , at 23,[ Footnote 8 ] the Court’s description of the review scheme here is anachronistic. As of December 30, 2005, the “fina[l]” review of decisions by military commissions is now conducted by the D. C. Circuit pursuant to §1005(e)(3) of the DTA, and by this Court under 28 U. S. C. §1254(1). This provision for review by Article III courts creates, if anything, a review scheme more insulated from Executive control than that in Councilman .[ Footnote 9 ] At the time we decided Councilman , Congress had not “conferred on any Art[icle] III court jurisdiction directly to review court-martial determinations.” 420 U. S., at 746. The final arbiter of direct appeals was the Court of Military Appeals (now the Court of Appeals for the Armed Forces), an Article I court whose members possessed neither life tenure, nor salary protection, nor the constitutional protection from removal provided to federal judges in Article III, §1. See 10 U. S. C. §867(a)(2) (1970 ed.).    Moreover, a third consideration counsels strongly in favor of abstention in this case. Councilman reasoned that the “considerations of comity, the necessity of respect for coordinate judicial systems” that motivated our decision in Younger v. Harris , 401 U. S. 37 (1971), were inapplicable to courts-martial, because “the particular demands of federalism are not implicated.” 420 U. S., at 756, 757. Though military commissions likewise do not implicate “the particular demands of federalism,” considerations of interbranch comity at the federal level weigh heavily against our exercise of equity jurisdiction in this case. Here, apparently for the first time in history, see Motion to Dismiss 6, a District Court enjoined ongoing military commission proceedings, which had been deemed “necessary” by the President “[t]o protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks.” Military Order of Nov. 13, 3 CFR §918(e). Such an order brings the Judicial Branch into direct conflict with the Executive in an area where the Executive’s competence is maximal and ours is virtually nonexistent. We should exercise our equitable discretion to avoid such conflict. Instead, the Court rushes headlong to meet it. Elsewhere, we have deferred exercising habeas jurisdiction until state courts have “the first opportunity to review” a petitioner’s claim, merely to “reduc[e] friction between the state and federal court systems.” O’Sullivan v. Boerckel , 526 U. S. 838 , 844, 845 (1999). The “friction” created today between this Court and the Executive Branch is many times more serious.    In the face of such concerns, the Court relies heavily on Ex parte Quirin, 317 U. S. 1 (1942): “Far from abstaining pending the conclusion of military proceedings, which were ongoing, [in Quirin ] we convened a special Term to hear the case and expedited our review.” Ante , at 24. It is likely that the Government in Quirin , unlike here, preferred a hasty resolution of the case in this Court, so that it could swiftly execute the sentences imposed, see Hamdi v. Rumsfeld , 542 U. S. 507 , 569 (2004) (Scalia, J., dissenting). But the Court’s reliance on Quirin suffers from a more fundamental defect: Once again, it ignores the DTA, which creates an avenue for the consideration of petitioner’s claims that did not exist at the time of Quirin . Collateral application for habeas review was the only vehicle available. And there was no compelling reason to postpone consideration of the Quirin application until the termination of military proceedings, because the only cognizable claims presented were general challenges to the authority of the commissions that would not be affected by the specific proceedings. See supra , at 8–9, n. 2. In the DTA, by contrast, Congress has expanded the scope of Article III review and has channeled it exclusively through a single, postverdict appeal to Article III courts. Because Congress has created a novel unitary scheme of Article III review of military commissions that was absent in 1942, Quirin is no longer governing precedent.    I would abstain from exercising our equity jurisdiction, as the Government requests. *  *  *       For the foregoing reasons, I dissent. Footnote 1 The Court apparently believes that the effective-date provision means nothing at all. “That paragraph (1), along with paragraphs (2) and (3), is to ‘take effect on the date of enactment,’ DTA §1005(h)(1), 119 Stat. 2743, is not dispositive,” says the Court, ante , at 14, n. 9. The Court’s authority for this conclusion is its quote from INS v. St. Cyr , 533 U. S. 289 , 317 (2001), to the effect that “a statement that a statute will become effective on a certain date does not even arguably suggest that it has any application to conduct that occurred at an earlier date .” Ante , at 14, n. 9 (emphasis added, internal quotation marks omitted). But this quote merely restates the obvious: An effective-date provision does not render a statute applicable to “conduct that occurred at an earlier date,” but of course it renders the statute applicable to conduct that occurs on the effective date and all future dates— such as the Court’s exercise of jurisdiction here. The Court seems to suggest that, because the effective-date provision does not authorize retroactive application, it also fails to authorize prospective application (and is thus useless verbiage). This cannot be true. Footnote 2 A comparison with Lindh v. Murphy, 521 U. S. 320 (1997), shows this not to be true. Subsections (e)(2) and (e)(3) of §1005 resemble the provisions of AEDPA at issue in Lindh (whose retroactivity as applied to pending cases the Lindh majority did not rule upon, see 521 U. S., at 326), in that they “g[o] beyond ‘mere’ procedure,” id. , at 327. They impose novel and unprecedented disabilities on the Executive Branch in its conduct of military affairs. Subsection (e)(2) imposes judicial review on the Combatant Status Review Tribunals (CSRTs), whose implementing order did not subject them to review by Article III courts. See Memorandum from Deputy Secretary of Defense Paul Wolfowitz re: Order Establishing Com- batant Status Review Tribunals, at 3 § h (July 7, 2004), avail- able at http://www.defenselink.mil/news/Jul2004/d20040707review.pdf (all Internet materials as visited June 27, 2006, and available in Clerk of Court’s case file). Subsection (e)(3) authorizes the D. C. Circuit to review “the validity of any final decision rendered pursuant to Military Commission Order No. 1,” §1005(e)(3)(A), 119 Stat. 2743. Historically, federal courts have never reviewed the validity of the final decision of any military commission; their jurisdiction has been restricted to considering the commission’s “lawful authority to hear, decide and condemn,” In re Yamashita , 327 U. S. 1 , 8 (1946) (emphasis added). See also Johnson v. Eisentrager , 339 U. S. 763 , 786–787 (1950). Thus, contrary to the Court’s suggestion, ante , at 17, subsections (e)(2) and (e)(3) confer new jurisdiction: They impose judicial oversight on a traditionally unreviewable exercise of military authority by the Commander in Chief. They arguably “spea[k] not just to the power of a particular court but to . . . substantive rights . . . as well,” Hughes Aircraft Co. v. United States ex rel. Shumer, 520 U. S. 939 , 951 (1997)—namely, the unreviewable powers of the President. Our recent cases had reiterated that the Executive is protected by the presumption against retroactivity in such comparatively trivial contexts as suits for tax refunds and increased pay, see Landgraf v. USI Film Products, 511 U. S. 244 , 271, n. 25 (1994). Footnote 3 “Because I have described how outrageous these claims are—about the exercise regime, the reading materials—most Americans would be highly offended to know that terrorists are suing us in our own courts about what they read.” 151 Cong. Rec. S12756 (Nov. 14, 2005). “Instead of having unlimited habeas corpus opportunities under the Constitution, we give every enemy combatant, all 500, a chance to go to Federal court, the Circuit Court of Appeals for the District of Columbia… . It will be a one-time deal.” Id., at S12754. “This Levin-Graham-Kyl amendment allows every detainee under our control to have their day in court. They are allowed to appeal their convictions.” Id., at S12801 (Nov. 15, 2005); see also id., at S12799 (rejecting the notion that “an enemy combatant terrorist al-Qaida member should be able to have access to our Federal courts under habeas like an American citizen”). Footnote 4 “An earlier part of the amendment provides that no court, justice, or judge shall have jurisdiction to consider the application for writ of habeas corpus… . Under the language of exclusive jurisdiction in the DC Circuit, the U. S. Supreme Court would not have jurisdiction to hear the Hamdan case … .” Id., at S12796 (statement of Sen. Specter). Footnote 5 “[T]he executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005.” President’s Statement on Signing of H. R. 2863, the “Department of Defense, Emergency Supple- mental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006” (Dec. 30, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/print/20051230 8.html. Footnote 6 The Court asserts that “it cannot be said that the changes to subsection (h)(2) were inconsequential,” ante , at 15, n. 10, but the Court’s sole evidence is the self-serving floor statements that it selectively cites. Footnote 7 Petitioner also urges that he could be subject to indefinite delay if military officials and the President are deliberately dilatory in reviewing the decision of his commission. In reviewing the constitutionality of legislation, we generally presume that the Executive will implement its provisions in good faith. And it is unclear in any event that delay would inflict any injury on petitioner, who (after an adverse determination by his CSRT, see 344 F. Supp. 2d 152, 161 (DC 2004)) is already subject to indefinite detention under our decision in Hamdi v. Rumsfeld , 542 U. S. 507 (2004). Moreover, the mere possibility of delay does not render an alternative remedy “inadequate [o]r ineffective to test the legality” of a military commission trial. Swain v. Pressley , 430 U. S. 372 , 381 (1977). In an analogous context, we discounted the notion that postponement of relief until postconviction review inflicted any cognizable injury on a serviceman charged before a military court-martial. Schlesinger v. Councilman , 420 U. S. 738 , 754–755 (1975); see also Younger v. Harris , 401 U. S. 37 , 46 (1971). Footnote 8 The very purpose of Article II’s creation of a civilian Commander in Chief in the President of the United States was to generate “structural insulation from military influence.” See The Federalist No. 28 (A. Hamilton); id. , No. 69 (same). We do not live under a military junta. It is a disservice to both those in the Armed Forces and the President to suggest that the President is subject to the undue control of the military. Footnote 9 In rejecting our analysis, the Court observes that appeals to the D. C. Circuit under subsection (e)(3) are discretionary, rather than as of right, when the military commission imposes a sentence less than 10 years’ imprisonment, see ante , at 23, n. 19, 52–53; §1005(e)(3)(B), 119 Stat. 2743. The relevance of this observation to the abstention question is unfathomable. The fact that Article III review is discretionary does not mean that it lacks “structural insulation from military influence,” ante , at 23, and its discretionary nature presents no obstacle to the courts’ future review these cases.    The Court might more cogently have relied on the discretionary nature of review to argue that the statute provides an inadequate substitute for habeas review under the Suspension Clause. See supra , at 16–18. But this argument would have no force, even if all appeals to the D. C. Circuit were discretionary. The exercise of habeas jurisdiction has traditionally been entirely a matter of the court’s equitable discretion, see Withrow v. Williams , 507 U. S. 680 , 715–718 (1993) (Scalia, J., concurring in part and dissenting in part), so the fact that habeas jurisdiction is replaced by discretionary appellate review does not render the substitution “inadequate.” Swain , 430 U. S., at 381. ALITO, J., DISSENTING HAMDAN V. RUMSFELD 548 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-184 SALIM AHMED HAMDAN, PETITIONER v. DONALD H. RUMSFELD, SECRETARY OF DEFENSE, et al. on writ of certiorari to the united states court of appeals for the district of columbia circuit [June 29, 2006]    Justice Alito, with whom Justices Scalia and Thomas join in Parts I–III, dissenting.    For the reasons set out in Justice Scalia’s dissent, which I join, I would hold that we lack jurisdiction. On the merits, I join Justice Thomas’ dissent with the exception of Parts I, II–C–1, and III–B–2, which concern matters that I find unnecessary to reach. I add the following comments to provide a further explanation of my reasons for disagreeing with the holding of the Court. I    The holding of the Court, as I understand it, rests on the following reasoning. A military commission is lawful only if it is authorized by 10 U. S. C. §821; this provision permits the use of a commission to try “offenders or offenses” that “by statute or by the law of war may be tried by” such a commission; because no statute provides that an offender such as petitioner or an offense such as the one with which he is charged may be tried by a military commission, he may be tried by military commission only if the trial is authorized by “the law of war”; the Geneva Conventions are part of the law of war; and Common Article 3 of the Conventions prohibits petitioner’s trial because the commission before which he would be tried is not “a regularly constituted court,” Third Geneva Convention, Art. 3, ¶1 (d), Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3320, T. I. A. S. No. 3364. I disagree with this holding because petitioner’s commission is “a regularly constituted court.”    Common Article 3 provides as follows: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:    “(1) … [T]he following acts are and shall remain prohibited … :    “(d) [T]he passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” Id., at 3318–3320 (emphasis added).    Common Article 3 thus imposes three requirements. Sentences may be imposed only by (1) a “court” (2) that is “regularly constituted” and (3) that affords “all the judicial guarantees which are recognized as indispensable by civilized peoples.” Id . , at 3320.    I see no need here to comment extensively on the meaning of the first and third requirements. The first requirement is largely self-explanatory, and, with respect to the third, I note only that on its face it imposes a uniform international standard that does not vary from signatory to signatory.    The second element (“regularly constituted”) is the one on which the Court relies, and I interpret this element to require that the court be appointed or established in accordance with the appointing country’s domestic law. I agree with the Court, see ante , at 69, n. 64, that, as used in Common Article 3, the term “regularly” is synonymous with “properly.” The term “constitute” means “appoint,” “set up,” or “establish,” Webster’s Third New International Dictionary 486 (1961), and therefore “regularly constituted” means properly appointed, set up, or established. Our cases repeatedly use the phrases “regularly constituted” and “properly constituted” in this sense. See, e.g., Hamdi v. Rumsfeld, 542 U. S. 507 , 538 (2004) (plurality opinion of O’Connor, J.); Nguyen v. United States, 539 U. S. 69 , 83 (2003); Ryder v. United States, 515 U. S. 177 , 187 (1995); Williams v. Bruffy, 96 U. S. 176 , 185 (1878).    In order to determine whether a court has been properly appointed, set up, or established, it is necessary to refer to a body of law that governs such matters. I interpret Common Article 3 as looking to the domestic law of the appointing country because I am not aware of any international law standard regarding the way in which such a court must be appointed, set up, or established, and because different countries with different government structures handle this matter differently. Accordingly, “a regularly constituted court” is a court that has been appointed, set up, or established in accordance with the domestic law of the appointing country. II    In contrast to this interpretation, the opinions supporting the judgment today hold that the military commission before which petitioner would be tried is not “a regularly constituted court” (a) because “no evident practical need explains” why its “structure and composition … deviate from conventional court-martial standards,” ante , at 11 (Kennedy, J., concurring in part); see also ante , at 69–70 (Opinion of the Court); and (b) because, contrary to 10 U. S. C. §836(b), the procedures specified for use in the proceeding before the military commission impermissibly differ from those provided under the Uniform Code of Military Justice (UCMJ) for use by courts-martial, ante , at 52–62 (Opinion of the Court); ante , at 16–18 (Kennedy, J., concurring in part). I do not believe that either of these grounds is sound. A    I see no basis for the Court’s holding that a military commission cannot be regarded as “a regularly constituted court” unless it is similar in structure and composition to a regular military court or unless there is an “evident practical need” for the divergence. There is no reason why a court that differs in structure or composition from an ordinary military court must be viewed as having been improperly constituted. Tribunals that vary significantly in structure, composition, and procedures may all be “regularly” or “properly” constituted. Consider, for example, a municipal court, a state trial court of general jurisdiction, an Article I federal trial court, a federal district court, and an international court, such as the International Criminal Tribunal for the Former Yugoslavia. Although these courts are “differently constituted” and differ substantially in many other respects, they are all “regularly constituted.”    If Common Article 3 had been meant to require trial before a country’s military courts or courts that are similar in structure and composition, the drafters almost certainly would have used language that expresses that thought more directly. Other provisions of the Convention Relative to the Treatment of Prisoners of War refer expressly to the ordinary military courts and expressly prescribe the “uniformity principle” that Justice Kennedy sees in Common Article 3, see ante , at 8–9. Article 84 provides that “[a] prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.” 6 U. S. T., at 3382. Article 87 states that “[p]risoners of war may not be sentenced by the military authorities and courts of the Detaining Power to any penalties except those provided for in respect of members of the armed forces of the said Power who have committed the same acts.” Id ., at 3384. Similarly, Article 66 of the Geneva Convention Relative to the Treatment of Civilian Persons in Time of War—a provision to which the Court looks for guidance in interpreting Common Article 3, see ante at 69—expressly provides that civilians charged with committing crimes in occupied territory may be handed over by the occupying power “to its properly constituted, non-political military courts, on condition that the said courts sit in the occupied country.” 6 U. S. T. 3516, 3558–3560, T. I. A. S. No. 3365. If Common Article 3 had been meant to incorporate a “uniformity principle,” it presumably would have used language like that employed in the provisions noted above. For these reasons, I cannot agree with the Court’s conclusion that the military commission at issue here is not a “regularly constituted court” because its structure and composition differ from those of a court-martial.    Contrary to the suggestion of the Court, see ante , at 69, the commentary on Article 66 of Fourth Geneva Convention does not undermine this conclusion. As noted, Article 66 permits an occupying power to try civilians in its “properly constituted, non-political military courts,” 6 U. S. T., at 3558. The commentary on this provision states: “The courts are to be ‘regularly constituted’. This wording definitely excludes all special tribunals. It is the ordinary military courts of the Occupying Power which will be competent.” 4 Int’l Comm. of Red Cross, Commentary: Geneva Convention Relative to the Protection of Civilian Persons in Time of War 340 (1958) (hereinafter GCIV Commentary).    The Court states that this commentary “defines ‘ “regularly constituted” ’ tribunals to include ‘ordinary military courts’ and ‘definitely exclud[e] all special tribunals.’ ” Ante , at 69 (alteration in original). This much is clear from the commentary itself. Yet the mere statement that a military court is a regularly constituted tribunal is of no help in addressing petitioner’s claim that his commission is not such a tribunal. As for the commentary’s mention of “special tribunals,” it is doubtful whether we should take this gloss on Article 66—which forbids an occupying power from trying civilians in courts set up specially for that purpose—to tell us much about the very different context addressed by Common Article 3.    But even if Common Article 3 recognizes this prohibition on “special tribunals,” that prohibition does not cover petitioner’s tribunal. If “special” means anything in contradistinction to “regular,” it would be in the sense of “special” as “relating to a single thing,” and “regular” as “uniform in course, practice, or occurrence.” Webster’s Third New International Dictionary 2186, 1913. Insofar as respondents propose to conduct the tribunals according to the procedures of Military Commission Order No. 1 and orders promulgated thereunder—and nobody has suggested respondents intend otherwise—then it seems that petitioner’s tribunal, like the hundreds of others respondents propose to conduct, is very much regular and not at all special. B    I also disagree with the Court’s conclusion that petitioner’s military commission is “illegal,” ante , at 62, because its procedures allegedly do not comply with 10 U. S. C. §836. Even if §836(b), unlike Common Article 3, does impose at least a limited uniformity requirement amongst the tribunals contemplated by the UCMJ, but see ante , at 35 (Thomas, J., dissenting), and even if it is assumed for the sake of argument that some of the procedures specified in Military Commission Order No. 1 impermissibly deviate from court-martial procedures, it does not follow that the military commissions created by that order are not “regularly constituted” or that trying petitioner before such a commission would be inconsistent with the law of war. If Congress enacted a statute requiring the federal district courts to follow a procedure that is unconstitutional, the statute would be invalid, but the district courts would not. Likewise, if some of the procedures that may be used in military commission proceedings are improper, the appropriate remedy is to proscribe the use of those particular procedures, not to outlaw the commissions. I see no justification for striking down the entire commission structure simply because it is possible that petitioner’s trial might involve the use of some procedure that is improper. III    Returning to the three elements of Common Article 3—(1) a court, (2) that is appointed, set up, and established in compliance with domestic law, and (3) that respects universally recognized fundamental rights—I conclude that all of these elements are satisfied in this case. A    First, the commissions qualify as courts.    Second, the commissions were appointed, set up, and established pursuant to an order of the President, just like the commission in Ex parte Quirin, 317 U. S. 1 (1942), and the Court acknowledges that Quirin recognized that the statutory predecessor of 10 U. S. C. §821 “preserved” the President’s power “to convene military commissions,” ante , at 29. Although Justice Kennedy concludes that “an acceptable degree of independence from the Executive is necessary to render a commission ‘regularly constituted’ by the standards of our Nation’s system of justice,” ante at 9–10, he offers no support for this proposition (which in any event seems to be more about fairness or integrity than regularity). The commission in Quirin was certainly no more independent from the Executive than the commissions at issue here, and 10 U. S. C. §§821 and 836 do not speak to this issue.[ Footnote 1 ]    Finally, the commission procedures, taken as a whole, and including the availability of review by a United States Court of Appeals and by this Court , do not provide a basis for deeming the commissions to be illegitimate. The Court questions the following two procedural rules: the rule allowing the Secretary of Defense to change the governing rules “ ‘from time to time’ ” (which does not rule out mid-trial changes), see ante , at 70, n. 65 (Opinion of the Court); ante , at 9–10 (Kennedy, J., concurring in part), and the rule that permits the admission of any evidence that would have “ ‘probative value to a reasonable person’ ” (which departs from our legal system’s usual rules of evidence), see ante , at 51, 60 (Opinion of the Court); ante , at 16–18 (Kennedy, J., concurring in part).[ Footnote 2 ] Neither of these two rules undermines the legitimacy of the commissions.    Surely the entire commission structure cannot be stricken merely because it is possible that the governing rules might be changed during the course of one or more proceedings. If a change is made and applied during the course of an ongoing proceeding and if the accused is found guilty, the validity of that procedure can be considered in the review proceeding for that case. After all, not every midtrial change will be prejudicial. A midtrial change might amend the governing rules in a way that is inconsequential or actually favorable to the accused.    As for the standard for the admission of evidence at commission proceedings, the Court does not suggest that this rule violates the international standard incorporated into Common Article 3 (“the judicial guarantees which are recognized as indispensable by civilized peoples,” 6 U. S. T., at 3320). Rules of evidence differ from country to country, and much of the world does not follow aspects of our evidence rules, such as the general prohibition against the admission of hearsay. See, e.g., Blumenthal, Shedding Some Light on Calls for Hearsay Reform: Civil Law Hearsay Rules in Historical and Modern Perspective, 13 Pace Int’l L. Rev. 93, 96–101 (2001). If a particular accused claims to have been unfairly prejudiced by the admission of particular evidence, that claim can be reviewed in the review proceeding for that case. It makes no sense to strike down the entire commission structure based on speculation that some evidence might be improperly admitted in some future case.    In sum, I believe that Common Article 3 is satisfied here because the military commissions (1) qualify as courts, (2) that were appointed and established in accordance with domestic law, and (3) any procedural improprieties that might occur in particular cases can be reviewed in those cases. B    The commentary on Common Article 3 supports this interpretation. The commentary on Common Article 3, ¶1(d), in its entirety states: “[A]lthough [sentences and executions without a proper trial] were common practice until quite recently, they are nevertheless shocking to the civilized mind… . Sentences and executions without previous trial are too open to error. ‘Summary justice’ may be effective on account of the fear it arouses … , but it adds too many further innocent victims to all the other innocent victims of the conflict. All civilized nations surround the administration of justice with safeguards aimed at eliminating the possibility of judicial errors. The Convention has rightly proclaimed that it is essential to do this even in time of war. We must be very clear about one point: it is only ‘summary’ justice which it is intended to prohibit. No sort of immunity is given to anyone under this provision. There is nothing in it to prevent a person presumed to be guilty from being arrested and so placed in a position where he can do no further harm; and it leaves intact the right of the State to prosecute, sentence and punish according to the law.” GCIV Commentary 39 (emphasis added).    It seems clear that the commissions at issue here meet this standard. Whatever else may be said about the system that was created by Military Commission Order No. 1 and augmented by the Detainee Treatment Act, §1005(e)(1), 119 Stat. 2742, this system—which features formal trial procedures, multiple levels of administrative review, and the opportunity for review by a United States Court of Appeals and by this Court—does not dispense “summary justice.” *  *  *    For these reasons, I respectfully dissent. Footnote 1 Section 821 looks to the “law of war,” not separation of powers issues. And §836, as Justice Kennedy notes, concerns procedures, not structure, see ante , at 10. Footnote 2 The plurality, but not Justice Kennedy, suggests that the commission rules are improper insofar as they allow a defendant to be denied access to evidence under some circumstances. See, ante , at 70–72. But here too, if this procedure is used in a particular case and the accused is convicted, the validity of this procedure can be challenged in the review proceeding in that case. In that context, both the asserted need for the procedure and its impact on the accused can be analyzed in concrete terms. THOMAS, J., DISSENTING HAMDAN V. RUMSFELD 548 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-184 SALIM AHMED HAMDAN, PETITIONER v. DONALD H. RUMSFELD, SECRETARY OF DEFENSE, et al. on writ of certiorari to the united states court of appeals for the district of columbia circuit [June 29, 2006]    Justice Thomas, with whom Justice Scalia joins, and with whom Justice Alito joins in all but Parts I, II–C–1, and III–B–2, dissenting.    For the reasons set forth in Justice Scalia’s dissent, it is clear that this Court lacks jurisdiction to entertain petitioner’s claims, see ante , at 1–11. The Court having concluded otherwise, it is appropriate to respond to the Court’s resolution of the merits of petitioner’s claims because its opinion openly flouts our well-established duty to respect the Executive’s judgment in matters of military operations and foreign affairs. The Court’s evident belief that it is qualified to pass on the “[m]ilitary necessity,” ante , at 48, of the Commander in Chief’s decision to employ a particular form of force against our enemies is so antithetical to our constitutional structure that it simply cannot go unanswered. I respectfully dissent. I    Our review of petitioner’s claims arises in the context of the President’s wartime exercise of his commander-in-chief authority in conjunction with the complete support of Congress. Accordingly, it is important to take measure of the respective roles the Constitution assigns to the three branches of our Government in the conduct of war.    As I explained in Hamdi v. Rumsfeld, 542 U. S. 507 (2004), the structural advantages attendant to the Executive Branch—namely, the decisiveness, “ ‘activity, secrecy, and dispatch’ ” that flow from the Executive’s “ ‘unity,’ ” id. , at 581 (dissenting opinion) (quoting The Federalist No. 70, p. 472 (J. Cooke ed. 1961) (A. Hamilton))—led the Founders to conclude that the “President ha[s] primary responsibility—along with the necessary power—to protect the national security and to conduct the Nation’s foreign relations.” 542 U. S., at 580. Consistent with this conclusion, the Constitution vests in the President “[t]he executive Power,” Art. II, §1, provides that he “shall be Commander in Chief” of the Armed Forces, §2, and places in him the power to recognize foreign governments, §3. This Court has observed that these provisions confer upon the President broad constitutional authority to protect the Nation’s security in the manner he deems fit. See, e.g. , Prize Cases, 2 Black 635, 668 (1863) (“If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force … without waiting for any special legislative authority”); Fleming v. Page, 9 How. 603, 615 (1850) (acknowledging that the President has the authority to “employ [the Nation’s Armed Forces] in the manner he may deem most effectual to harass and conquer and subdue the enemy”).    Congress, to be sure, has a substantial and essential role in both foreign affairs and national security. But “Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take or every possible situation in which he might act,” and “[s]uch failure of Congress … does not, ‘especially … in the areas of foreign policy and national security,’ imply ‘congressional disapproval’ of action taken by the Executive.” Dames & Moore v. Regan, 453 U. S. 654 , 678 (1981) (quoting Haig v. Agee, 453 U. S. 280 , 291 (1981)). Rather, in these domains, the fact that Congress has provided the President with broad authorities does not imply—and the Judicial Branch should not infer—that Congress intended to deprive him of particular powers not specifically enumerated. See Dames & Moore , 453 U. S., at 678 (“[T]he enactment of legislation closely related to the question of the President’s authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to invite measures on independent presidential responsibility” (internal quotation marks omitted)).    When “the President acts pursuant to an express or implied authorization from Congress,” his actions are “ ‘supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion … rest[s] heavily upon any who might attack it.’ ” Id. , at 668 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 637 (1952) (Jackson, J., concurring)). Accordingly, in the very context that we address today, this Court has concluded that “the detention and trial of petitioners—ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger—are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted.” Ex parte Quirin, 317 U. S. 1 , 25 (1942).    Under this framework, the President’s decision to try Hamdan before a military commission for his involvement with al Qaeda is entitled to a heavy measure of deference. In the present conflict, Congress has authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 … in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Authorization for Use of Military Force (AUMF) 115 Stat. 224, note following 50 U. S. C. §1541 (2000 ed., Supp. III) (emphasis added). As a plurality of the Court observed in Hamdi , the “capture, detention, and trial of unlawful combatants, by ‘universal agreement and practice,’ are ‘important incident[s] of war,’ ” Hamdi , 542 U. S., at 518 (quoting Quirin, supra , at 28, 30; emphasis added), and are therefore “an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.” Hamdi, 542 U. S., at 518; id ., at 587 (Thomas, J., dissenting). Hamdi ’s observation that military commissions are included within the AUMF’s authorization is supported by this Court’s previous recognition that “[a]n important incident to the conduct of war is the adoption of measures by the military commander, not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who, in their attempt to thwart or impede our military effort, have violated the law of war.” In re Yamashita, 327 U. S. 1 , 11 (1946); see also Quirin , supra , at 28–29; Madsen v. Kinsella, 343 U. S. 341 , 354, n. 20 (1952) (“ ‘[T]he military commission … is an institution of the greatest importance in the period of war and should be preserved’ ” (quoting S. Rep. No. 229, 63d Cong., 2d Sess., 53 (1914) (testimony of Gen. Crowder))).    Although the Court concedes the legitimacy of the President’s use of military commissions in certain circumstances, ante, at 28, it suggests that the AUMF has no bearing on the scope of the President’s power to utilize military commissions in the present conflict, ante, at 29–30. Instead, the Court determines the scope of this power based exclusively on Article 21 of the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §821, the successor to Article 15 of the Articles of War, which Quirin held “authorized trial of offenses against the law of war before [military] commissions.” 317 U. S., at 29. As I shall discuss below, Article 21 alone supports the use of commissions here. Nothing in the language of Article 21, however, suggests that it outlines the entire reach of congressional authorization of military commissions in all conflicts—quite the contrary, the language of Article 21 presupposes the existence of military commissions under an independent basis of authorization.[ Footnote 1 ] Indeed, consistent with Hamdi ’s conclusion that the AUMF itself authorizes the trial of unlawful combatants, the original sanction for military commissions historically derived from congressional authorization of “the initiation of war” with its attendant authorization of “the employment of all necessary and proper agencies for its due prosecution.” W. Winthrop, Military Law and Precedents 831 (2d ed. 1920) (hereinafter Winthrop). Accordingly, congressional authorization for military commissions pertaining to the instant conflict derives not only from Article 21 of the UCMJ, but also from the more recent, and broader, authorization contained in the AUMF.[ Footnote 2 ]    I note the Court’s error respecting the AUMF not because it is necessary to my resolution of this case—Hamdan’s military commission can plainly be sustained solely under Article 21—but to emphasize the complete congressional sanction of the President’s exercise of his commander-in-chief authority to conduct the present war. In such circumstances, as previously noted, our duty to defer to the Executive’s military and foreign policy judgment is at its zenith; it does not countenance the kind of second-guessing the Court repeatedly engages in today. Military and foreign policy judgments “ ‘are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.’ ” Hamdi , supra , at 582–583 (Thomas, J., dissenting) (quoting Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103 , 111 (1948)). It is within this framework that the lawfulness of Hamdan’s commission should be examined. II    The plurality accurately describes some aspects of the history of military commissions and the prerequisites for their use. Thus, I do not dispute that military commissions have historically been “used in three [different] situations,” ante , at 31–32, and that the only situation relevant to the instant case is the use of military commissions “ ‘to seize and subject to disciplinary measures those enemies who … have violated the law of war,’ ” ante , at 32 (quoting Quirin, supra , at 28–29). Similarly, I agree with the plurality that Winthrop’s treatise sets forth the four relevant considerations for determining the scope of a military commission’s jurisdiction, considerations relating to the (1) time and (2) place of the offense, (3) the status of the offender, and (4) the nature of the offense charged. Winthrop 836–840. The Executive has easily satisfied these considerations here. The plurality’s contrary conclusion rests upon an incomplete accounting and an unfaithful application of those considerations. A    The first two considerations are that a law-of-war military commission may only assume jurisdiction of “offences committed within the field of the command of the convening commander,” and that such offenses “must have been committed within the period of the war.” See id. , at 836, 837; ante , at 33. Here, as evidenced by Hamdan’s charging document, the Executive has determined that the theater of the present conflict includes “Afghanistan, Pakistan and other countries” where al Qaeda has established training camps, App. to Pet. for Cert. 64a, and that the duration of that conflict dates back (at least) to Usama bin Laden’s August 1996 “ Declaration of Jihad Against the Americans ,” ibid . Under the Executive’s description of the conflict, then, every aspect of the charge, which alleges overt acts in “Afghanistan, Pakistan, Yemen and other countries” taking place from 1996 to 2001, satisfies the temporal and geographic prerequisites for the exercise of law-of-war military commission jurisdiction. Id ., at 65a–67a. And these judgments pertaining to the scope of the theater and duration of the present conflict are committed solely to the President in the exercise of his commander-in-chief authority. See Prize Cases, 2 Black, at 670 (concluding that the President’s commander-in-chief judgment about the nature of a particular conflict was “a question to be decided by him , and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted”).    Nevertheless, the plurality concludes that the legality of the charge against Hamdan is doubtful because “Hamdan is charged not with an overt act for which he was caught redhanded in a theater of war … but with an agreement the inception of which long predated … the [relevant armed conflict].” Ante , at 48 (emphasis in original). The plurality’s willingness to second-guess the Executive’s judgments in this context, based upon little more than its unsupported assertions, constitutes an unprecedented departure from the traditionally limited role of the courts with respect to war and an unwarranted intrusion on executive authority. And even if such second-guessing were appropriate, the plurality’s attempt to do so is unpersuasive.    As an initial matter, the plurality relies upon the date of the AUMF’s enactment to determine the beginning point for the “period of the war,” Winthrop 836, thereby suggesting that petitioner’s commission does not have jurisdiction to try him for offenses committed prior to the AUMF’s enactment. Ante , at 34–36, 48. But this suggestion betrays the plurality’s unfamiliarity with the realities of warfare and its willful blindness to our precedents. The starting point of the present conflict (or indeed any conflict) is not determined by congressional enactment, but rather by the initiation of hostilities. See Prize Cases, supra, at 668 (recognizing that war may be initiated by “invasion of a foreign nation,” and that such initiation, and the President’s response, usually precedes congressional action). Thus, Congress’ enactment of the AUMF did not mark the beginning of this Nation’s conflict with al Qaeda, but instead authorized the President to use force in the midst of an ongoing conflict. Moreover, while the President’s “war powers” may not have been activated until the AUMF was passed, ante , 35, n. 31, the date of such activation has never been used to determine the scope of a military commission’s jurisdiction.[ Footnote 3 ] Instead, the traditional rule is that “[o]ffenses committed before a formal declaration of war or before the declaration of martial law may be tried by military commission.” Green, The Military Commission, 42 Am. J. Int’l L. 832, 848 (1948) (hereinafter Green); see also C. Howland, Digest of Opinions of the Judge-Advocates General of the Army 1067 (1912) (hereinafter Howland) (“A military commission … exercising … jurisdiction … under the laws of war … may take cognizance of offenses committed, during the war, before the initiation of the military government or martial law” (emphasis in original));[ Footnote 4 ] cf. Yamashita , 327 U. S., at 13 (“The extent to which the power to prosecute violations of the law of war shall be exercised before peace is declared rests, not with the courts, but with the political branch of the Government”). Consistent with this principle, on facts virtually identical to those here, a military commission tried Julius Otto Kuehn for conspiring with Japanese officials to betray the United States Fleet to the Imperial Japanese Government prior to its attack on Pearl Harbor. Green 848.[ Footnote 5 ]    Moreover, the President’s determination that the present conflict dates at least to 1996 is supported by overwhelming evidence. According to the State Department, al Qaeda declared war on the United States as early as August 1996. See Dept. of State Fact Sheet: Usama bin Ladin (Aug. 21, 1998); Dept. of State Fact Sheet: The Charges against International Terrorist Usama Bin Laden (Dec. 20, 2000); cf. Prize Cases , 2 Black, at 668 (recognizing that a state of war exists even if “the declaration of it be unilateral ” (emphasis in original)). In February 1998, al Qaeda leadership issued another statement ordering the indiscriminate—and, even under the laws of war as applied to legitimate nation-states, plainly illegal—killing of American civilians and military personnel alike. See Jihad Against Jews and Crusaders: World Islamic Front Statement 2 (Feb. 23, 1998), in Y. Alexander & M. Swetnam, Usama bin Laden’s al-Qaida: Profile of a Terrorist Network, App. 1B (2001) (“The ruling to kill the Americans and their allies—civilians and military—is an individual duty for every Muslim who can do it in any country in which it is possible to do it”). This was not mere rhetoric; even before September 11, 2001, al Qaeda was involved in the bombing of the World Trade Center in New York City in 1993, the bombing of the Khobar Towers in Saudi Arabia in 1996, the bombing of the U. S. Embassies in Kenya and Tanzania in 1998, and the attack on the U. S. S. Cole in Yemen in 2000. See id. , at 1. In response to these incidents, the United States “attack[ed] facilities belonging to Usama bin Ladin’s network” as early as 1998. Dept. of State Fact Sheet: Usama bin Ladin (Aug. 21, 1998). Based on the foregoing, the President’s judgment—that the present conflict substantially predates the AUMF, extending at least as far back as al Qaeda’s 1996 declaration of war on our Nation, and that the theater of war extends at least as far as the localities of al Qaeda’s principal bases of operations—is beyond judicial reproach. And the plurality’s unsupportable contrary determination merely confirms that “ ‘the Judiciary has neither aptitude, facilities nor responsibility’ ” for making military or foreign affairs judgments. Hamdi , 542 U. S., at 585 (Thomas, J., dissenting) (quoting Chicago & Southern Air Lines , 333 U. S., at 111). B    The third consideration identified by Winthrop’s treatise for the exercise of military commission jurisdiction pertains to the persons triable before such a commission, see ante , at 33; Winthrop 838. Law-of-war military commissions have jurisdiction over “ ‘individuals of the enemy’s army who have been guilty of illegitimate warfare or other offences in violation of the laws of war,’ ” ante , at 33-34 (quoting Winthrop 838). They also have jurisdiction over “[i]rregular armed bodies or persons not forming part of the organized forces of a belligerent” “who would not be likely to respect the laws of war.” Id. , at 783, 784. Indeed, according to Winthrop, such persons are not “within the protection of the laws of war” and were “liable to be shot, imprisoned, or banished, either summarily where their guilt was clear or upon trial and conviction by military commission.” Id ., at 784. This consideration is easily satisfied here, as Hamdan is an unlawful combatant charged with joining and conspiring with a terrorist network dedicated to flouting the laws of war. 344 F. Supp. 2d 152, 161 (DC 2004); App. to Pet. for Cert. 63a–67a. C    The fourth consideration relevant to the jurisdiction of law-of-war military commissions relates to the nature of the offense charged. As relevant here, such commissions have jurisdiction to try “ ‘[v]iolations of the laws and usages of war cognizable by military tribunals only,’ ” ante , at 34 (quoting Winthrop 839). In contrast to the preceding considerations, this Court’s precedents establish that judicial review of “whether any of the acts charged is an offense against the law of war cognizable before a military tribunal” is appropriate. Quirin , 317 U. S., at 29. However, “charges of violations of the law of war triable before a military tribunal need not be stated with the precision of a common law indictment.” Yamashita , 327 U. S., at 17. And whether an offense is a violation of the law of war cognizable before a military commission must be determined pursuant to “the system of common law applied by military tribunals.” Q uirin , supra , at 30; Yamashita , supra , at 8.    The common law of war as it pertains to offenses triable by military commission is derived from the “experience of our wars” and our wartime tribunals, Winthrop 839, and “the laws and usages of war as understood and practiced by the civilized nations of the world,” 11 Op. Atty. Gen. 297, 310 (1865). Moreover, the common law of war is marked by two important features. First, as with the common law generally, it is flexible and evolutionary in nature, building upon the experience of the past and taking account of the exigencies of the present. Thus, “[t]he law of war, like every other code of laws, declares what shall not be done, and does not say what may be done. The legitimate use of the great power of war, or rather the prohibitions upon the use of that power, increase or diminish as the necessity of the case demands.” Id ., at 300. Accordingly, this Court has recognized that the “jurisdiction” of “our common-law war courts” has not been “prescribed by statute,” but rather “has been adapted in each instance to the need that called it forth.” Madsen , 343 U. S., at 346–348. Second, the common law of war affords a measure of respect for the judgment of military commanders. Thus, “[t]he commander of an army in time of war has the same power to organize military tribunals and execute their judgments that he has to set his squadrons in the field and fight battles. His authority in each case is from the law and usage of war.” 11 Op. Atty. Gen., at 305. In recognition of these principles, Congress has generally “ ‘left it to the President, and the military commanders representing him, to employ the commission, as occasion may require , for the investigation and punishment of violations of the law of war.’ ” Madsen, supra , at 347, n. 9 (quoting Winthrop 831; emphasis added).    In one key respect, the plurality departs from the proper framework for evaluating the adequacy of the charge against Hamdan under the laws of war. The plurality holds that where, as here, “neither the elements of the offense nor the range of permissible punishments is defined by statute or treaty, the precedent [establishing whether an offense is triable by military commission] must be plain and unambiguous.” Ante , at 38. This is a pure contrivance, and a bad one at that. It is contrary to the presumption we acknowledged in Quirin , namely, that the actions of military commissions are “not to be set aside by the courts without the clear conviction that they are” unlawful, 317 U. S., at 25 (emphasis added). It is also contrary to Yamashita , which recognized the legitimacy of that military commission notwithstanding a substantial disagreement pertaining to whether Yamashita had been charged with a violation of the law of war. Compare 327 U. S., at 17 (noting that the allegations were “adequat[e]” and “need not be stated with … precision”), with id ., at 35 (Murphy, J., dissenting) (arguing that the charge was inadequate). Nor does it find support from the separation of powers authority cited by the plurality. Indeed, Madison’s praise of the separation of powers in The Federalist No. 47, quoted ante , at 38-39, if it has any relevance at all, merely highlights the illegitimacy of today’s judicial intrusion onto core executive prerogatives in the waging of war, where executive competence is at its zenith and judicial competence at its nadir.    The plurality’s newly minted clear-statement rule is also fundamentally inconsistent with the nature of the common law which, by definition, evolves and develops over time and does not, in all cases, “say what may be done.” 11 Op. Atty. Gen., at 300. Similarly, it is inconsistent with the nature of warfare, which also evolves and changes over time, and for which a flexible, evolutionary common-law system is uniquely appropriate.[ Footnote 6 ] Though the charge against Hamdan easily satisfies even the plurality’s manufactured rule, see supra , at 16–28, the plurality’s inflexible approach has dangerous implications for the Executive’s ability to discharge his duties as Commander in Chief in future cases. We should undertake to determine whether an unlawful combatant has been charged with an offense against the law of war with an understanding that the common law of war is flexible, responsive to the exigencies of the present conflict, and deferential to the judgment of military commanders. 1    Under either the correct, flexible approach to evaluating the adequacy of Hamdan’s charge, or under the plurality’s new, clear-statement approach, Hamdan has been charged with conduct constituting two distinct violations of the law of war cognizable before a military commission: membership in a war-criminal enterprise and conspiracy to commit war crimes. The charging section of the indictment alleges both that Hamdan “willfully and knowingly joined an enterprise of persons who shared a common criminal purpose,” App. to Pet. for Cert. 65a, and that he “conspired and agreed with [al Qaeda] to commit … offenses triable by military commission,” ibid .[ Footnote 7 ]    The common law of war establishes that Hamdan’s willful and knowing membership in al Qaeda is a war crime chargeable before a military commission. Hamdan, a confirmed enemy combatant and member or affiliate of al Qaeda, has been charged with willfully and knowingly joining a group (al Qaeda) whose purpose is “to support violent attacks against property and nationals (both military and civilian) of the United States.” Id., at 64a; 344 F. Supp. 2d, at 161. Moreover, the allegations specify that Hamdan joined and maintained his relationship with al Qaeda even though he “believed that Usama bin Laden and his associates were involved in the attacks on the U. S. Embassies in Kenya and Tazania in August 1998, the attack on the USS COLE in October 2000, and the attacks on the United States on September 11, 2001.” App. to Pet. for Cert. 65a. These allegations, against a confirmed unlawful combatant, are alone sufficient to sustain the jurisdiction of Hamdan’s military commission.    For well over a century it has been established that “to unite with banditti, jayhawkers, guerillas, or any other unauthorized marauders is a high offence against the laws of war; the offence is complete when the band is organized or joined . The atrocities committed by such a band do not constitute the offence, but make the reasons, and sufficient reasons they are, why such banditti are denounced by the laws of war .” 11 Op. Atty. Gen., at 312 (emphasis added).[ Footnote 8 ] In other words, unlawful combatants, such as Hamdan, violate the law of war merely by joining an organization, such as al Qaeda, whose principal purpose is the “killing [and] disabling … of peaceable citizens or soldiers.” Winthrop 784; see also 11 Op. Atty. Gen., at 314 (“A bushwhacker, a jayhawker, a bandit, a war rebel, an assassin, being public enemies, may be tried, condemned, and executed as offenders against the laws of war”). This conclusion is unsurprising, as it is a “cardinal principle of the law of war … that the civilian population must enjoy complete immunity.” 4 International Committee of Red Cross, Commentary: Geneva Convention Relative to the Protection of Civilian Persons in Time of War 3 (J. Pictet ed. 1958). “Numerous instances of trials, for ‘Violation of the laws of war,’ of offenders of this description, are published in the General Orders of the years 1862 to 1866.” Winthrop 784, and n. 57.[ Footnote 9 ] Accordingly, on this basis alone, “the allegations of [Hamdan’s] charge, tested by any reasonable standard, adequately allege a violation of the law of war.” Yamashita , 327 U. S., at 17.    The conclusion that membership in an organization whose purpose is to violate the laws of war is an offense triable by military commission is confirmed by the experience of the military tribunals convened by the United States at Nuremberg. Pursuant to Article 10 of the Charter of the International Military Tribunal (IMT), the United States convened military tribunals “to bring individuals to trial for membership” in “a group or organization … declared criminal by the [IMT].” 1 Trials of War Criminals Before the Nuernberg Military Tribunals, p. XII (hereinafter Trials). The IMT designated various components of four Nazi groups—the Leadership Corps, Gestapo, SD, and SS—as criminal organizations. 22 IMT, Trial of the Major War Criminals 505, 511, 517 (1948); see also T. Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir 584–585 (1992). “[A] member of [such] an organization [could] be … convicted of the crime of membership and be punished for that crime by death.” 22 IMT, at 499. Under this authority, the United States Military Tribunal at Nuremberg convicted numerous individuals for the act of knowing and voluntary membership in these organizations. For example, in Military Tribunal Case No. 1, United States v. Brandt, Karl Brandt, Karl Gebhardt, Rudolf Brandt, Joachim Mrugowsky, Wolfram Sievers, Viktor Brack, and Waldemar Hoven, were convicted and sentenced to death for the crime of, inter alia , membership in an organization declared criminal by the IMT; Karl Genzken and Fritz Fischer were sentenced to life imprisonment for the same; and Helmut Poppendick was convicted of no other offense than membership in a criminal organization and sentenced to a 10-year term of imprisonment. 2 Trials 180–300. This Court denied habeas relief, 333 U. S. 836 (1948), and the executions were carried out at Landsberg prison on June 2, 1948. 2 Trials 330.    Moreover, the Government has alleged that Hamdan was not only a member of al Qaeda while it was carrying out terrorist attacks on civilian targets in the United States and abroad, but also that Hamdan aided and assisted al Qaeda’s top leadership by supplying weapons, transportation, and other services. App. to Pet. for Cert. 65a–67a. These allegations further confirm that Hamdan is triable before a law-of-war military commission for his involvement with al Qaeda. See H. R. Doc. No. 65, 55th Cong., 3d Sess., 234 (1894) (“[T]here are numerous rebels … that … furnish the enemy with arms, provisions, clothing, horses and means of transportation; [such] insurgents are banding together in several of the interior counties for the purpose of assisting the enemy to rob, to maruad and to lay waste to the country. All such persons are by the laws of war in every civilized country liable to capital punishment ” (emphasis added)); Winthrop 840 (including in the list of offenses triable by law-of-war military commissions “dealing with … enemies, or furnishing them with money, arms, provisions, medicines, &c”).[ Footnote 10 ] Undoubtedly, the conclusion that such conduct violates the law of war led to the enactment of Article 104 of the UCMJ, which provides that “[a]ny person who … aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things … shall suffer death or such other punishment as a court-martial or military commission may direct.” 10 U. S. C. §904. 2    Separate and apart from the offense of joining a contingent of “uncivilized combatants who [are] not … likely to respect the laws of war,” Winthrop 784, Hamdan has been charged with “conspir[ing] and agree[ing] with … the al Qaida organization … to commit … offenses triable by military commission,” App. to Pet. for Cert. 65a. Those offenses include “attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; and terrorism.” Ibid . This, too, alleges a violation of the law of war triable by military commission.    “[T]he experience of our wars,” Winthrop 839, is rife with evidence that establishes beyond any doubt that conspiracy to violate the laws of war is itself an offense cognizable before a law-of-war military commission. World War II provides the most recent examples of the use of American military commissions to try offenses pertaining to violations of the laws of war. In that conflict, the orders establishing the jurisdiction of military commissions in various theaters of operation provided that conspiracy to violate the laws of war was a cognizable offense. See Letter, General Headquarters, United States Army Forces, Pacific (Sept. 24, 1945), Record in Yamashita v. Styer , O. T. 1945, No. 672, pp. 14, 16 (Exh. F) (Order respecting the “Regulations Governing the Trial of War Criminals” provided that “participation in a common plan or conspiracy to accomplish” various offenses against the law of war was cognizable before military commissions); 1 United Nations War Crimes Commission, Law Reports of Trials of War Criminals 114–115 (1997) (hereinafter U. N. Commission) (recounting that the orders establishing World War II military commissions in the Pacific and China included “participation in a common plan or conspiracy” pertaining to certain violations of the laws of war as an offense triable by military commission). Indeed, those orders authorized trial by military commission of participation in a conspiracy to commit “murder … or other inhumane acts … against any civilian population,” id ., at 114, which is precisely the offense Hamdan has been charged with here. And conspiracy to violate the laws of war was charged in the highest profile case tried before a World War II military commission, see Quirin , 317 U. S., at 23, and on numerous other occasions. See, e.g. , Colepaugh v. Looney , 235 F. 2d 429, 431 (CA10 1956); Green 848 (describing the conspiracy trial of Julius Otto Kuehn).    To support its contrary conclusion, ante , at 35–36, the plurality attempts to evade the import of Quirin (and the other World War II authorities) by resting upon this Court’s failure to address the sufficiency of the conspiracy charge in the Quirin case, ante , at 41–43. But the common law of war cannot be ascertained from this Court’s failure to pass upon an issue, or indeed to even mention the issue in its opinion;[ Footnote 11 ] rather, it is ascertained by the practice and usage of war. Winthrop 839; supra , at 11–12.    The Civil War experience provides further support for the President’s conclusion that conspiracy to violate the laws of war is an offense cognizable before law-of-war military commissions. Indeed, in the highest profile case to be tried before a military commission relating to that war, namely, the trial of the men involved in the assassination of President Lincoln, the charge provided that those men had “combin[ed], confederat[ed], and conspir[ed] … to kill and murder” President Lincoln. G. C. M. O. No. 356 (1865), reprinted in H. R. Doc. No. 314, 55th Cong., 3d Sess., 696 (1899) (hereinafter G. C. M. O. No. 356).[ Footnote 12 ]    In addition to the foregoing high-profile example, Winthrop’s treatise enumerates numerous Civil War military commission trials for conspiracy to violate the law of war. Winthrop 839, n. 5. The plurality attempts to explain these examples away by suggesting that the conspiracies listed by Winthrop are best understood as “a species of compound offense,” namely, violations both of the law of war and ordinary criminal laws, rather than “stand-alone offense[s] against the law of war.” Ante , at 44–45 (citing, as an example, murder in violation of the laws of war). But the fact that, for example, conspiracy to commit murder can at the same time violate ordinary criminal laws and the law of war, so that it is “a combination of the two species of offenses,” Howland 1071, does not establish that a military commission would not have jurisdiction to try that crime solely on the basis that it was a violation of the law of war. Rather, if anything, and consistent with the principle that the common law of war is flexible and affords some level of deference to the judgments of military commanders, it establishes that military commissions would have the discretion to try the offense as (1) one against the law of war, or (2) one against the ordinary criminal laws, or (3) both.    In any event, the plurality’s effort to avoid the import of Winthrop’s footnote through the smokescreen of its “compound offense” theory, ante , at 44–45, cannot be reconciled with the particular charges that sustained military commission jurisdiction in the cases that Winthrop cites. For example, in the military commission trial of Henry Wirtz, Charge I provided that he had been “[m]aliciously, willfully, and traitorously . . . combining, confederating, and conspiring , together [with various other named and unnamed co-conspirators], to injure the health and destroy the lives of soldiers in the military service of the United States, then held and being prisoners of war within the lines of the so-called Confederate States, and in the military prisons thereof, to the end that the armies of the United States might be weakened and impaired, in violation of the laws and customs of war .” G. C. M. O. No. 607 (1865), reprinted in H. R. Doc. No. 314, at 785 (emphasis added). Likewise, in the military commission trial of Lenger Grenfel, Charge I accused Grenfel of “ [c]onspiring, in violation of the laws of war , to release rebel prisoners of war confined by authority of the United States at Camp Douglas, near Chicago, Ill.” G. C. M. O. No. 452 (1865), reprinted in H. R. Doc. No. 314, at 724 (emphasis added)[ Footnote 13 ]; see also G. C. M. O. No. 41, at 20 (1864) (indictment in the military commission trial of Robert Louden charged “[c]onspiring with the rebel enemies of the United States to embarrass and impede the military authorities in the suppression of the existing rebellion, by the burning and destruction of steamboats and means of transportation on the Mississippi river”). These examples provide incontrovertible support for the President’s conclusion that the common law of war permits military commission trials for conspiracy to violate the law of war. And they specifically contradict the plurality’s conclusion to the contrary, thereby easily satisfying its requirement that the Government “make a substantial showing that the crime for which it seeks to try a defendant by military commission is acknowledged to be an offense against the law of war.” Ante , at 39-40.[ Footnote 14 ]    The plurality further contends, in reliance upon Winthrop, that conspiracy is not an offense cognizable before a law-of-war military commission because “it is not enough to intend to violate the law of war and commit overt acts in furtherance of that intention unless the overt acts either are themselves offenses against the law of war or constitute steps sufficiently substantial to qualify as an attempt .” Ibid . But Winthrop does not support the plurality’s conclusion. The passage in Winthrop cited by the plurality states only that “the jurisdiction of the military commission should be restricted to cases of offence consisting in overt acts , i.e. in unlawful commissions or actual attempts to commit, and not in intentions merely.” Winthrop 841 (emphasis in original). This passage would be helpful to the plurality if its subject were “conspiracy,” rather than the “jurisdiction of the military commission.” Winthrop is not speaking here of the requirements for a conspiracy charge, but of the requirements for all charges. Intentions do not suffice. An unlawful act—such as committing the crime of conspiracy—is necessary. Winthrop says nothing to exclude either conspiracy or membership in a criminal enterprise, both of which go beyond “intentions merely” and “consis[t] of overt acts, i.e. … unlawful commissions or actual attempts to commit,” and both of which are expressly recognized by Winthrop as crimes against the law of war triable by military commissions. Id. , at 784; id. , at 839, and n. 5, 840. Indeed, the commission of an “overt ac[t]” is the traditional requirement for the completion of the crime of conspiracy, and the charge against Hamdan alleges numerous such overt acts. App. to Pet. for Cert. 65a. The plurality’s approach, unsupported by Winthrop, requires that any overt act to further a conspiracy must itself be a completed war crime distinct from conspiracy —which merely begs the question the plurality sets out to answer, namely, whether conspiracy itself may constitute a violation of the law of war. And, even the plurality’s unsupported standard is satisfied here. Hamdan has been charged with the overt acts of providing protection, transportation, weapons, and other services to the enemy, id. , at 65a–67a, acts which in and of themselves are violations of the laws of war. See supra , at 20–21; Winthrop 839–840. 3    Ultimately, the plurality’s determination that Hamdan has not been charged with an offense triable before a military commission rests not upon any historical example or authority, but upon the plurality’s raw judgment of the “inability on the Executive’s part here to satisfy the most basic precondition … for establishment of military commissions: military necessity.” Ante , at 48. This judgment starkly confirms that the plurality has appointed itself the ultimate arbiter of what is quintessentially a policy and military judgment, namely, the appropriate military measures to take against those who “aided the terrorist attacks that occurred on September 11, 2001.” AUMF §2(a), 115 Stat. 224. The plurality’s suggestion that Hamdan’s commission is illegitimate because it is not dispensing swift justice on the battlefield is unsupportable. Ante , at 43. Even a cursory review of the authorities confirms that law-of-war military commissions have wide-ranging jurisdiction to try offenses against the law of war in exigent and nonexigent circumstances alike. See, e.g., Winthrop 839–840; see also Yamashita , 327 U. S., at 5 (military commission trial after the cessation of hostilities in the Philippines); Quirin , 317 U. S. 1 (military commission trial in Washington, D. C.). Traditionally, retributive justice for heinous war crimes is as much a “military necessity” as the “demands” of “military efficiency” touted by the plurality, and swift military retribution is precisely what Congress authorized the President to impose on the September 11 attackers in the AUMF.    Today a plurality of this Court would hold that conspiracy to massacre innocent civilians does not violate the laws of war. This determination is unsustainable. The judgment of the political branches that Hamdan, and others like him, must be held accountable before military commissions for their involvement with and membership in an unlawful organization dedicated to inflicting massive civilian casualties is supported by virtually every relevant authority, including all of the authorities invoked by the plurality today. It is also supported by the nature of the present conflict. We are not engaged in a traditional battle with a nation-state, but with a worldwide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of September 11, 2001, and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of beheadings of civilian workers, and has tortured and dismembered captured American soldiers. But according to the plurality, when our Armed Forces capture those who are plotting terrorist atrocities like the bombing of the Khobar Towers, the bombing of the U. S. S. Cole, and the attacks of September 11—even if their plots are advanced to the very brink of fulfillment—our military cannot charge those criminals with any offense against the laws of war. Instead, our troops must catch the terrorists “redhanded,” ante , at 48, in the midst of the attack itself , in order to bring them to justice. Not only is this conclusion fundamentally inconsistent with the cardinal principal of the law of war, namely protecting non-combatants, but it would sorely hamper the President’s ability to confront and defeat a new and deadly enemy.    After seeing the plurality overturn longstanding precedents in order to seize jurisdiction over this case, ante , at 2–4 (Scalia, J., dissenting), and after seeing them disregard the clear prudential counsel that they abstain in these circumstances from using equitable powers, ante, at 19–24, it is no surprise to see them go on to overrule one after another of the President’s judgments pertaining to the conduct of an ongoing war. Those Justices who today disregard the commander-in-chief’s wartime decisions, only 10 days ago deferred to the judgment of the Corps of Engineers with regard to a matter much more within the competence of lawyers, upholding that agency’s wildly implausible conclusion that a storm drain is a tributary of the waters of the United States. See Rapanos v. United States , 547 U. S. ___(2006). It goes without saying that there is much more at stake here than storm drains. The plurality’s willingness to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous. III    The Court holds that even if “the Government has charged Hamdan with an offense against the law of war cognizable by military commission, the commission lacks power to proceed” because of its failure to comply with the terms of the UCMJ and the four Geneva Conventions signed in 1949. Ante , at 49. This position is untenable. A    As with the jurisdiction of military commissions, the procedure of such commissions “has [not] been prescribed by statute,” but “has been adapted in each instance to the need that called it forth.” Madsen , 343 U. S., at 347–348. Indeed, this Court has concluded that “[i]n the absence of attempts by Congress to limit the President’s power, it appears that, as Commander in Chief of the Army and Navy of the United States, he may, in time of war, establish and prescribe the jurisdiction and procedure of military commissions.” Id. , at 348. This conclusion is consistent with this Court’s understanding that military commissions are “our common-law war courts.” Id ., at 346–347.[ Footnote 15 ] As such, “[s]hould the conduct of those who compose martial-law tribunals become [a] matter of judicial determination subsequently before the civil courts, those courts will give great weight to the opinions of the officers as to what the customs of war in any case justify and render necessary.” Birkhimer 534.    The Court nevertheless concludes that at least one provision of the UCMJ amounts to an attempt by Congress to limit the President’s power. This conclusion is not only contrary to the text and structure of the UCMJ, but it is also inconsistent with precedent of this Court. Consistent with Madsen ’s conclusion pertaining to the common-law nature of military commissions and the President’s discretion to prescribe their procedures, Article 36 of the UCMJ authorizes the President to establish procedures for military commissions “which shall, so far as he considers practicable , apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.” 10 U. S. C. §836(a) (emphasis added). Far from constraining the President’s authority, Article 36 recognizes the President’s prerogative to depart from the procedures applicable in criminal cases whenever he alone does not deem such procedures “practicable.” While the procedural regulations promulgated by the Executive must not be “contrary to” the UCMJ, only a few provisions of the UCMJ mention “military commissions,” see ante , at 58, n. 49, and there is no suggestion that the procedures to be employed by Hamdan’s commission implicate any of those provisions.    Notwithstanding the foregoing, the Court concludes that Article 36(b) of the UCMJ, 10 U. S. C. §836(b), which provides that “ ‘[a]ll rules and regulations made under this article shall be uniform insofar as practicable,’ ” ante, at 57, requires the President to employ the same rules and procedures in military commissions as are employed by courts-martial “insofar as practicable.” Ante , at 59. The Court further concludes that Hamdan’s commission is unlawful because the President has not explained why it is not practicable to apply the same rules and procedures to Hamdan’s commission as would be applied in a trial by court martial. Ante , at 60.    This interpretation of §836(b) is unconvincing. As an initial matter, the Court fails to account for our cases interpreting the predecessor to Article 21 of the UCMJ—Article 15 of the Articles of War—which provides crucial context that bears directly on the proper interpretation of Article 36(b). Article 15 of the Articles of War provided that: “The provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions, provost courts, or other military tribunals of concurrent jurisdiction in respect of offenders or offences that by statute or by the law of war may be triable by such military commissions, provost courts, or other military tribunals.” In Yamashita , this Court concluded that Article 15 of the Articles of War preserved the President’s unfettered authority to prescribe military commission procedure. The Court explained, “[b]y thus recognizing military commissions in order to preserve their traditional jurisdiction over enemy combatants unimpaired by the Articles, Congress gave sanction … to any use of the military commission contemplated by the common law of war.” 327 U. S., at 20 (emphasis added)[ Footnote 16 ]; see also Quirin , 317 U. S., at 28; Madsen , 343 U. S., at 355. In reaching this conclusion, this Court treated as authoritative the congressional testimony of Judge Advocate General Crowder, who testified that Article 15 of the Articles of War was enacted to preserve the military commission as “ ‘our common-law war court.’ ” Yamashita, supra , at 19, n. 7. And this Court recognized that Article 15’s preservation of military commissions as common-law war courts preserved the President’s commander-in-chief authority to both “establish” military commissions and to “prescribe [their] procedure[s].” Madsen , 343 U. S., at 348; id ., at 348–349 (explaining that Congress had “refrain[ed] from legislating” in the area of military commission procedures, in “contras[t] with its traditional readiness to … prescrib[e], with particularity, the jurisdiction and procedure of United States courts-martial”); cf. Green 834 (“The military commission exercising jurisdiction under common law authority is usually appointed by a superior military commander and is limited in its procedure only by the will of that commander. Like any other common law court, in the absence of directive of superior authority to the contrary, the military commission is free to formulate its own rules of procedure”).    Given these precedents, the Court’s conclusion that Article 36(b) requires the President to apply the same rules and procedures to military commissions as are applicable to courts-martial is unsustainable. When Congress codified Article 15 of the Articles of War in Article 21 of the UCMJ it was “presumed to be aware of … and to adopt” this Court’s interpretation of that provision as preserving the common-law status of military commissions, inclusive of the President’s unfettered authority to prescribe their procedures. Lorillard v. Pons, 434 U. S. 575 , 580 (1978). The Court’s conclusion that Article 36(b) repudiates this settled meaning of Article 21 is not based upon a specific textual reference to military commissions, but rather on a one-sentence subsection providing that “[a]ll rules and regulations made under this article shall be uniform insofar as practicable.” 10 U. S. C. §836(b). This is little more than an impermissible repeal by implication. See Branch v. Smith, 538 U. S. 254 , 273 (2003). (“We have repeatedly stated … that absent a clearly expressed congressional intention, repeals by implication are not favored” (citation and internal quotation marks omitted)). Moreover, the Court’s conclusion is flatly contrary to its duty not to set aside Hamdan’s commission “without the clear conviction that [it is] in conflict with the … laws of Congress constitutionally enacted.” Quirin, supra , at 25 (emphasis added).    Nothing in the text of Article 36(b) supports the Court’s sweeping conclusion that it represents an unprecedented congressional effort to change the nature of military commissions from common-law war courts to tribunals that must presumptively function like courts-martial. And such an interpretation would be strange indeed. The vision of uniformity that motivated the adoption of the UCMJ, embodied specifically in Article 36(b), is nothing more than uniformity across the separate branches of the armed services. See ch. 169, 64 Stat. 107 (preamble to the UCMJ explaining that the UCMJ is an act “[t]o unify, consolidate, revise, and codify the Articles of War, the Articles for the Government of the Navy, and the disciplinary laws of the Coast Guard”). There is no indication that the UCMJ was intended to require uniformity in procedure between courts-martial and military commissions, tribunals that the UCMJ itself recognizes are different. To the contrary, the UCMJ expressly recognizes that different tribunals will be constituted in different manners and employ different procedures. See 10 U. S. C. §866 (providing for three different types of courts-martial— general, special, and summary—constituted in different manners and employing different procedures). Thus, Article 36(b) is best understood as establishing that, so far as practicable, the rules and regulations governing tribunals convened by the Navy must be uniform with the rules and regulations governing tribunals convened by the Army. But, consistent with this Court’s prior interpretations of Article 21 and over a century of historical practice, it cannot be understood to require the President to conform the procedures employed by military commissions to those employed by courts-martial.[ Footnote 17 ]    Even if Article 36(b) could be construed to require procedural uniformity among the various tribunals contemplated by the UCMJ, Hamdan would not be entitled to relief. Under the Court’s reading, the President is entitled to prescribe different rules for military commissions than for courts-martial when he determines that it is not “practicable” to prescribe uniform rules. The Court does not resolve the level of deference such determinations would be owed, however, because, in its view, “[t]he President has not . . . [determined] that it is impracticable to apply the rules for courts-martial.” Ante , at 60. This is simply not the case. On the same day that the President issued Military Commission Order No. 1, the Secretary of Defense explained that “the president decided to establish military commissions because he wanted the option of a process that is different from those processes which we already have, namely the federal court system . . . and the military court system,” Dept. of Defense News Briefing on Military Commissions (Mar. 21, 2002) (remarks of Donald Rumsfeld), available at http://www.dod.gov/transcrips/ 2002/t03212002_t0321sd.html (as visited June 26, 2006, and available in Clerk of Court’s case file) (hereinafter News Briefing), and that “[t]he commissions are intended to be different . . . because the [P]resident recognized that there had to be differences to deal with the unusual situation we face and that a different approach was needed.” Ibid . The President reached this conclusion because “we’re in the middle of a war, and . . . had to design a procedure that would allow us to pursue justice for these individuals while at the same time prosecuting the war most effectively. And that means setting rules that would allow us to preserve our intelligence secrets, develop more information about terrorist activities that might be planned for the future so that we can take action to prevent terrorist attacks against the United States. . . . [T]here was a constant balancing of the requirements of our war policy and the importance of providing justice for individuals . . . and each deviation from the standard kinds of rules that we have in our criminal courts was motivated by the desire to strike the balance between individual justice and the broader war policy.” Ibid . (remarks of Douglas J. Feith, Under Secretary of Defense for Policy (emphasis added)). The Court provides no explanation why the President’s determination that employing court-martial procedures in the military commissions established pursuant to Military Commission Order No. 1 would hamper our war effort is in any way inadequate to satisfy its newly minted “practicability” requirement. On the contrary, this determination is precisely the kind for which the “Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.’ ” Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103 , 111 (1948). And, in the context of the present conflict, it is exactly the kind of determination Congress countenanced when it authorized the President to use all necessary and appropriate force against our enemies. Accordingly, the President’s determination is sufficient to satisfy any practicability requirement imposed by Article 36(b).    The plurality further contends that Hamdan’s commission is unlawful because it fails to provide him the right to be present at his trial, as recognized in 10 U. S. C. A. §839(c) (Supp. 2006). Ante , at 61. But §839(c) applies to courts-martial, not military commissions. It provides:    “When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and, in cases in which a military judge has been detailed to the court, the military judge.” In context, “all other proceedings” plainly refers exclusively to “other proceedings” pertaining to a court-martial.[ Footnote 18 ] This is confirmed by the provision’s subsequent reference to “members of the court ” and to “cases in which a military judge has been detailed to the court .” It is also confirmed by the other provisions of §839, which refer only to courts-martial. See §§839(a)(1)–(4) (“[A]ny time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge may … call the court into session without the presence of the members for the purpose of,” hearing motions, issuing rulings, holding arraignments, receiving pleas, and performing various procedural functions). See also §839(b) (“Proceedings under subsection (a) shall be conducted in the presence of the accused”). Section 839(c) simply does not address the procedural requirements of military commissions. B    The Court contends that Hamdan’s military commission is also unlawful because it violates Common Article 3 of the Geneva Conventions, see ante , at 65–72. Furthermore, Hamdan contends that his commission is unlawful because it violates various provisions of the Third Geneva Convention. These contentions are untenable. 1    As an initial matter, and as the Court of Appeals concluded, both of Hamdan’s Geneva Convention claims are foreclosed by Johnson v. Eisentrager, 339 U. S. 763 (1950). In that case the respondents claimed, inter alia , that their military commission lacked jurisdiction because it failed to provide them with certain procedural safeguards that they argued were required under the Geneva Conventions. Id ., at 789–790. While this Court rejected the underlying merits of the respondents’ Geneva Convention claims, id ., at 790, it also held, in the alternative, that the respondents could “not assert … that anything in the Geneva Convention makes them immune from prosecution or punishment for war crimes,” id ., at 789. The Court explained:    “We are not holding that these prisoners have no right which the military authorities are bound to respect. The United States, by the Geneva Convention of July 27, 1929, 47 Stat. 2021, concluded with forty-six other countries, including the German Reich, an agreement upon the treatment to be accorded captives. These prisoners claim to be and are entitled to its protection. It is, however, the obvious scheme of the Agreement that responsibility for observance and enforcement of these rights is upon political and military authorities. Rights of alien enemies are vindicated under it only through protests and intervention of protecting powers as the rights of our citizens against foreign governments are vindicated only by Presidential intervention.” Id. , at 789, n. 14. This alternative holding is no less binding than if it were the exclusive basis for the Court’s decision. See Massachusetts v. United States, 333 U. S. 611 , 623 (1948). While the Court attempts to cast Eisentrager ’s unqualified, alternative holding as footnote dictum, ante , at 63–64, it does not dispute the correctness of its conclusion, namely, that the provisions of the 1929 Geneva Convention were not judicially enforceable because that Convention contemplated that diplomatic measures by political and military authorities were the exclusive mechanisms for such enforcement. Nor does the Court suggest that the 1949 Geneva Conventions departed from this framework. See ante , at 64 (“We may assume that ‘the obvious scheme’ of the 1949 Conventions is identical in all relevant respects to that of the 1929 Convention”).    Instead, the Court concludes that petitioner may seek judicial enforcement of the provisions of the Geneva Conventions because “they are … part of the law of war. And compliance with the law of war is the condition upon which the authority set forth in Article 21 is granted.” Ante , at 65 (citation omitted). But Article 21 authorizes the use of military commissions; it does not purport to render judicially enforceable aspects of the law of war that are not so enforceable of their own accord. See Quirin , 317 U. S., at 28 (by enacting Article 21, “Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war”). The Court cannot escape Eisentrager ’s holding merely by observing that Article 21 mentions the law of war; indeed, though Eisentrager did not specifically consider the Court’s novel interpretation of Article 21, Eisentrager involved a challenge to the legality of a World War II military commission, which, like all such commissions, found its authorization in Article 15 of the Articles of War, the predecessor to Article 21 of the UCMJ. Thus, the Court’s interpretation of Article 21 is foreclosed by Eisentrager .    In any event, the Court’s argument is too clever by half. The judicial nonenforceability of the Geneva Conventions derives from the fact that those Conventions have exclusive enforcement mechanisms, see Eisentrager , supra , at 789, n. 14, and this, too, is part of the law of war. The Court’s position thus rests on the assumption that Article 21’s reference to the “laws of war” selectively incorporates only those aspects of the Geneva Conventions that the Court finds convenient, namely, the substantive requirements of Common Article 3, and not those aspects of the Conventions that the Court, for whatever reason, disfavors, namely the Conventions’ exclusive diplomatic enforcement scheme. The Court provides no account of why the partial incorporation of the Geneva Conventions should extend only so far—and no further—because none is available beyond its evident preference to adjudicate those matters that the law of war, through the Geneva Conventions, consigns exclusively to the political branches.    Even if the Court were correct that Article 21 of the UCMJ renders judicially enforceable aspects of the law of war that are not so enforceable by their own terms, Article 21 simply cannot be interpreted to render judicially enforceable the particular provision of the law of war at issue here, namely Common Article 3 of the Geneva Conventions. As relevant, Article 21 provides that “[t]he provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions … of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions.” 10 U. S. C. §821 (emphasis added). Thus, to the extent Article 21 can be interpreted as authorizing judicial enforcement of aspects of the law of war that are not otherwise judicially enforceable, that authorization only extends to provisions of the law of war that relate to whether a particular “offender” or a particular “offense” is triable by military commission. Common Article 3 of the Geneva Conventions, the sole provision of the Geneva Conventions relevant to the Court’s holding, relates to neither. Rather, it relates exclusively to the particulars of the tribunal itself, namely, whether it is “regularly constituted” and whether it “afford[s] all the judicial guarantees which are recognized as indispensable by civilized peoples.” Third Geneva Convention, Art. 3, ¶1 (d), Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3320, T. I. A. S No. 3364. 2    In addition to being foreclosed by Eisentrager , Hamdan’s claim under Common Article 3 of the Geneva Conventions is meritless. Common Article 3 applies to “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.” 6 U. S. T., at 3318. “Pursuant to [his] authority as Commander in Chief and Chief Executive of the United States,” the President has “accept[ed] the legal conclusion of the Department of Justice … that common Article 3 of Geneva does not apply to … al Qaeda … detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to ‘armed conflict not of an international character.’ ” App. 35. Under this Court’s precedents, “the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight.” Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176 , 184–185 (1982); United States v. Stuart, 489 U. S. 353 , 369 (1989). Our duty to defer to the President’s understanding of the provision at issue here is only heightened by the fact that he is acting pursuant to his constitutional authority as Commander in Chief and by the fact that the subject matter of Common Article 3 calls for a judgment about the nature and character of an armed conflict. See generally United States v. Curtiss-Wright Export Corp., 299 U. S. 304 , 320 (1936).    The President’s interpretation of Common Article 3 is reasonable and should be sustained. The conflict with al Qaeda is international in character in the sense that it is occurring in various nations around the globe. Thus, it is also “occurring in the territory of” more than “one of the High Contracting Parties.” The Court does not dispute the President’s judgments respecting the nature of our conflict with al Qaeda, nor does it suggest that the President’s interpretation of Common Article 3 is implausible or foreclosed by the text of the treaty. Indeed, the Court concedes that Common Article 3 is principally concerned with “furnish[ing] minimal protection to rebels involved in … a civil war,” ante , at 68, precisely the type of conflict the President’s interpretation envisions to be subject to Common Article 3. Instead, the Court, without acknowledging its duty to defer to the President, adopts its own, admittedly plausible, reading of Common Article 3. But where, as here, an ambiguous treaty provision (“not of an international character”) is susceptible of two plausible, and reasonable, interpretations, our precedents require us to defer to the Executive’s interpretation. 3    But even if Common Article 3 were judicially enforceable and applicable to the present conflict, petitioner would not be entitled to relief. As an initial matter, any claim petitioner has under Common Article 3 is not ripe. The only relevant “acts” that “are and shall remain prohibited” under Common Article 3 are “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” Art. 3, ¶1 (d) , 6 U. S. T., at 1318, 1320 (emphases added). As its terms make clear, Common Article 3 is only violated, as relevant here, by the act of “passing of sentenc[e],” and thus Hamdan will only have a claim if his military commission convicts him and imposes a sentence. Accordingly, as Hamdan’s claim is “contingent [upon] future events that may not occur as anticipated, or indeed may not occur at all,” it is not ripe for adjudication. Texas v. United States, 523 U. S. 296 , 300 (1998) (internal quotation marks omitted).[ Footnote 19 ] Indeed, even if we assume he will be convicted and sentenced, whether his trial will be conducted in a manner so as to deprive him of “the judicial guarantees which are recognized as indispensable by civilized peoples” is entirely speculative. And premature adjudication of Hamdan’s claim is especially inappropriate here because “reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Raines v. Byrd, 521 U. S. 811 , 819–820 (1997).    In any event, Hamdan’s military commission complies with the requirements of Common Article 3. It is plainly “regularly constituted” because such commissions have been employed throughout our history to try unlawful combatants for crimes against the law of war. This Court has recounted that history as follows: “ ‘By a practice dating from 1847 and renewed and firmly established during the Civil War, military commissions have become adopted as authorized tribunals in this country in time of war… . Their competency has been recognized not only in acts of Congress, but in executive proclamations, in rulings of the courts, and in the opinions of the Attorneys General.’ ” Madsen , 343 U. S., at 346, n. 8. Hamdan’s commission has been constituted in accordance with these historical precedents. As I have previously explained, the procedures to be employed by that commission, and the Executive’s authority to alter those procedures, are consistent with the practice of previous American military commissions. See supra , at 30–34 , and n. 15. The Court concludes Hamdan’s commission fails to satisfy the requirements of Common Article 3 not because it differs from the practice of previous military commissions but because it “deviate[s] from [the procedures] governing courts-martial.” Ante , at 71. But there is neither a statutory nor historical requirement that military commissions conform to the structure and practice of courts-martial. A military commission is a different tribunal, serving a different function, and thus operates pursuant to different procedures. The 150-year pedigree of the military commission is itself sufficient to establish that such tribunals are “regularly constituted court[s].” Art. 3, ¶1 (d), 6 U. S. T., at 3320. Similarly, the procedures to be employed by Hamdan’s commission afford “all the judicial guarantees which are recognized as indispensable by civilized peoples.” Neither the Court nor petitioner disputes the Government’s description of those procedures. “Petitioner is entitled to appointed military legal counsel, 32 C.F.R. 9.4(c)(2), and may retain a civilian attorney (which he has done), 32 C.F.R. 9.4(c)(2)(iii)(B). Petitioner is entitled to the presumption of innocence, 32 C.F.R. 9.5(b), proof beyond a reasonable doubt, 32 C.F.R. 9.5(c), and the right to remain silent, 32 C.F.R. 9.5(f). He may confront witnesses against him, 32 C.F.R. 9.5(i), and may subpoena his own witnesses, if reasonably available, 32 C.F.R. 9.5(h). Petitioner may personally be present at every stage of the trial unless he engages in disruptive conduct or the prosecution introduces classified or otherwise protected information for which no adequate substitute is available and whose admission will not deprive him of a full and fair trial, 32 C.F.R. 9.5(k); Military Commission Order No. 1 (Dep’t of Defense Aug. 31, 2005) §6(B)(3) and (D)(5)(b). If petitioner is found guilty, the judgment will be reviewed by a review panel, the Secretary of Defense, and the President, if he does not designate the Secretary as the final decisionmaker. 32 C.F.R. 9.6(h). The final judgment is subject to review in the Court of Appeals for the District of Columbia Circuit and ultimately in this Court. See DTA §1005(e)(3), 119 Stat. 2743; 28 U. S. C. 1254(1).” Brief for Respondents 4. Notwithstanding these provisions, which in my judgment easily satisfy the nebulous standards of Common Article 3,[ Footnote 20 ] the plurality concludes that Hamdan’s commission is unlawful because of the possibility that Hamdan will be barred from proceedings and denied access to evidence that may be used to convict him. Ante , at 70–72. But, under the commissions’ rules, the Government may not impose such bar or denial on Hamdan if it would render his trial unfair, a question that is clearly within the scope of the appellate review contemplated by regulation and statute. Moreover, while the Executive is surely not required to offer a particularized defense of these procedures prior to their application, the procedures themselves make clear that Hamdan would only be excluded (other than for disruption) if it were necessary to protect classified (or classifiable) intelligence, Dept. of Defense, Military Commission Order No. 1, §6(B)(3) (Aug. 31, 2005), including the sources and methods for gathering such intelligence. The Government has explained that “we want to make sure that these proceedings, which are going on in the middle of the war, do not interfere with our war effort and … because of the way we would be able to handle interrogations and intelligence information, may actually assist us in promoting our war aims.” News Briefing (remarks of Douglas J. Feith, Under Secretary of Defense for Policy). And this Court has concluded, in the very context of a threat to reveal our Nation’s intelligence gathering sources and methods, that “[i]t is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation,” Haig , 453 U. S., at 307 (quoting Aptheker v. Secretary of State, 378 U. S. 500 , 509 (1964)), and that “[m]easures to protect the secrecy of our Government’s foreign intelligence operations plainly serve these interests,” Haig , supra , at 307. See also Snepp v. United States, 444 U. S. 507 , 509, n. 3 (1980) (per curiam) (“The Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service”); Curtiss-Wright, 299 U. S., at 320. This interest is surely compelling here. According to the Government, “[b]ecause al Qaeda operates as a clandestine force relying on sleeper agents to mount surprise attacks, one of the most critical fronts in the current war involves gathering intelligence about future terrorist attacks and how the terrorist network operates—identifying where its operatives are, how it plans attacks, who directs operations, and how they communicate.” Brief for United States in No. 03–4792, United States v. Moussaoui (CA4), p. 9. We should not rule out the possibility that this compelling interest can be protected, while at the same time affording Hamdan (and others like him) a fair trial. In these circumstances, “civilized peoples” would take into account the context of military commission trials against unlawful combatants in the war on terrorism, including the need to keep certain information secret in the interest of preventing future attacks on our Nation and its foreign installations so long as it did not deprive the accused of a fair trial. Accordingly, the President’s understanding of the requirements of Common Article 3 is entitled to “great weight.” See supra , at 43. 4 In addition to Common Article 3, which applies to conflicts “not of an international character,” Hamdan also claims that he is entitled to the protections of the Third Geneva Convention, which applies to conflicts between two or more High Contracting Parties. There is no merit to Hamdan’s claim. Article 2 of the Convention provides that “the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” 6 U. S. T., at 1318. “Pursuant to [his] authority as Commander in Chief and Chief Executive of the United States,” the President has determined that the Convention is inapplicable here, explaining that “none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world, because, among other reasons, al Qaeda is not a High Contracting Party.” App. 35. The President’s findings about the nature of the present conflict with respect to members of al Qaeda operating in Afghanistan represents a core exercise of his commander-in-chief authority that this Court is bound to respect. See Prize Cases, 2 Black, at 670. *  *  * For these reasons, I would affirm the judgment of the Court of Appeals. Footnote 1 As previously noted, Article 15 of the Articles of War was the predecessor of Article 21 of the UCMJ. Article 21 provides as follows: “The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.” 10 U. S. C. §821. Footnote 2 Although the President very well may have inherent authority to try unlawful combatants for violations of the law of war before military commissions, we need not decide that question because Congress has authorized the President to do so. Cf. Hamdi v. Rumsfeld , 542 U. S. 507 , 587 (2004) (Thomas, J., dissenting) (same conclusion respecting detention of unlawful combatants). Footnote 3 Even if the formal declaration of war were generally the determinative act in ascertaining the temporal reach of the jurisdiction of a military commission, the AUMF itself is inconsistent with the plurality’s suggestion that such a rule is appropriate in this case. See ante , at 34–36, 48. The text of the AUMF is backward looking, authorizing the use of “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” Thus, the President’s decision to try Hamdan by military commission—a use of force authorized by the AUMF—for Hamdan’s involvement with al Qaeda prior to September 11, 2001, fits comfortably within the framework of the AUMF. In fact, bringing the September 11 conspirators to justice is the primary point of the AUMF. By contrast, on the plurality’s logic, the AUMF would not grant the President the authority to try Usama bin Laden himself for his involvement in the events of September 11, 2001. Footnote 4 The plurality suggests these authorities are inapplicable because nothing in its “analysis turns on the admitted absence of either a formal declaration of war or a declaration of martial law. Our focus instead is on the … AUMF.” Ante, at 35, n. 31. The difference identified by the plurality is purely semantic. Both Green and Howland confirm that the date of the enactment that establishes a legal basis for forming military commissions—whether it be a declaration of war, a declaration of martial law, or an authorization to use military force—does not limit the jurisdiction of military commissions to offenses committed after that date. Footnote 5 The plurality attempts to evade the import of this historical example by observing that Kuehn was tried before a martial law commission for a violation of federal espionage statutes. Ibid. As an initial matter, the fact that Kuehn was tried before a martial law commission for an offense committed prior to the establishment of martial law provides strong support for the President’s contention that he may try Hamdan for offenses committed prior to the enactment of the AUMF. Here the AUMF serves the same function as the declaration of martial law in Hawaii in 1941, establishing legal authority for the constitution of military commissions. Moreover, Kuehn was not tried and punished “by statute, but by the laws and usages of war.” United States v. Bernard Julius Otto Kuehn , Board of Review 5 (Office of the Military Governor, Hawaii 1942). Indeed, in upholding the imposition of the death penalty, a sentence “not authorized by the Espionage statutes,” ibid ., Kuehn’s Board of Review explained that “[t]he fact that persons may be tried and punished … by a military commission for committing acts defined as offenses by … federal statutes does not mean that such persons are being tried for violations of such … statutes; they are, instead, being tried for acts made offenses only by orders of the … commanding general.” Id ., at 6. Lastly, the import of this example is not undermined by Duncan v. Kahanamoku, 327 U. S. 304 (1946). The question before the Court in that case involved only whether “loyal civilians in loyal territory should have their daily conduct governed by military orders,” id ., at 319; it did “not involve the well-established power of the military to exercise jurisdiction over . . . enemy belligerents,” id ., at 313. Footnote 6 Indeed, respecting the present conflict, the President has found that “the war against terrorism ushers in a new paradigm, one in which groups with broad, international reach commit horrific acts against innocent civilians, sometimes with the direct support of states. Our Nation recognizes that this new paradigm—ushered in not by us, but by terrorists—requires new thinking in the law of war.” App. 34–35. Under the Court’s approach, the President’s ability to address this “new paradigm” of inflicting death and mayhem would be completely frozen by rules developed in the context of conventional warfare. Footnote 7 It is true that both of these separate offenses are charged under a single heading entitled “CHARGE: CONSPIRACY,” App. to Pet. for Cert. 65a. But that does not mean that they must be treated as a single crime, when the law of war treats them as separate crimes. As we acknowledged in In re Yamashita , 327 U. S. 1 (1946), “charges of violations of the law of war triable before a military tribunal need not be stated with the precision of a common law indictment.” Id. , at 17; cf. W. Birkhimer, Military Government and Martial Law 536 (3d ed. 1914) (hereinafter Birkhimer) (“[I]t would be extremely absurd to expect the same precision in a charge brought before a court-martial as is required to support a conviction before a justice of the peace” (internal quotation marks omitted)). Nevertheless, the plurality contends that Hamdan was “not actually charged,” ante , at 37, n. 32 (emphasis deleted), with being a member in a war criminal organization. But that position is demonstrably wrong. Hamdan’s charging document expressly charges that he “willfully and knowingly joined an enterprise of persons who shared a common criminal purpose.” App. to Pet. for Cert. 65a. Moreover, the plurality’s contention that we may only look to the label affixed to the charge to determine if the charging document alleges an offense triable by military commission is flatly inconsistent with its treatment of the Civil War cases—where it accepts as valid charges that did not appear in the heading or title of the charging document, or even the listed charge itself, but only in the supporting specification. See, e.g., ante , at 45–46 (discussing the military commission trial of Wirz). For example, in the Wirz case, Wirz was charged with conspiring to violate the laws of war, and that charge was supported with allegations that he personally committed a number of atrocities. The plurality concludes that military commission jurisdiction was appropriate in that case not based upon the charge of conspiracy, but rather based upon the allegations of various atrocities in the specification which were not separately charged. Ante, at 45. Just as these atrocities, not separately charged, were independent violations of the law of war supporting Wirz’s trial by military commission, so too here Hamdan’s membership in al Qaeda and his provision of various forms of assistance to al Qaeda’s top leadership are independent violations of the law of war supporting his trial by military commission. Footnote 8 These observations respecting the law of war were made by the Attorney General in defense of the military commission trial of the Lincoln conspirators’. As the foregoing quoted portion of that opinion makes clear, the Attorney General did not, as the Court maintains, “trea[t] the charge as if it alleged the substantive offense of assassination.” Ante , at 40, n. 35. Rather, he explained that the conspirators “high offence against the laws of war” was “complete” when their band was “organized or joined,” and did not depend upon “atrocities committed by such a band.” 11 Op. Atty. Gen. 297, 312 (1865). Moreover, the Attorney General’s conclusions specifically refute the plurality’s unsupported suggestion that I have blurred the line between “those categories of ‘offender’ who may be tried by military commission … with the ‘offenses’ that may be so tried.” Ante , at 37, n. 32. Footnote 9 The General Orders establishing the jurisdiction for military commissions during the Civil War provided that such offenses were violations of the laws of war cognizable before military commissions. See H. R. Doc. No. 65, 55th Cong., 3d Sess., 164 (1894) (“[P]ersons charged with the violation of the laws of war as spies, bridge-burners, marauders, &c., will  … be held for trial under such charges”); id ., at 234 (“[T]here are numerous rebels … that … furnish the enemy with arms, provisions, clothing, horses and means of transportation; [such] insurgents are banding together in several of the interior counties for the purpose of assisting the enemy to rob, to maraud and to lay waste to the country. All such persons are by the laws of war in every civilized country liable to capital punishment ” (emphasis added)). Numerous trials were held under this authority. See, e.g. , U. S. War Dept., General Court-Martial Order No. 51, p. 1 (1866) (hereinafter G. C. M. O.). (indictment in the military commission trial of James Harvey Wells charged “[b]eing a guerrilla” and specified that he “willfully … [took] up arms as a guerrilla marauder, and did join, belong to, act and co-operate with guerrillas”); G. C. M. O. No. 108, Head-Quarters Dept. of Kentucky, p. 1 (1865) (indictment in the military commission trial of Henry C. Magruder charged “[b]eing a guerrilla” and specified that he “unlawfully, and of his own wrong, [took] up arms as a guerrilla marauder, and did join, belong to, act, and co-operate with a band of guerrillas”); G. C. M. O. No. 41, p. 1 (1864) (indictment in the military commission trial of John West Wilson charged that Wilson “did take up arms as an insurgent and guerrilla against the laws and authorities of the United States, and did join and co-operate with an armed band of insurgents and guerrillas who were engaged in plundering the property of peaceable citizens … in violation of the laws and customs of war”); G. C. M. O. No. 153, p. 1 (1864) (indictment in the military commission trial of Simeon B. Kight charged that defendant was “a guerrilla, and has been engaged in an unwarrantable and barbarous system of warfare against citizens and soldiers of the United States”); G. C. M. O. No. 93, pp. 3–4 (1864) (indictment in the military commission trial of Francis H. Norvel charged “[b]eing a guerrilla” and specified that he “unlawfully and by his own wrong, [took] up arms as an outlaw, guerrilla, and bushwhacker, against the lawfully constituted authorities of the United States government”); id. , at 9 (indictment in the military commission trial of James A. Powell charged “[t]ransgression of the laws and customs of war” and specified that he “[took] up arms in insurrection as a military insurgent, and did join himself to and, in arms, consort with … a rebel enemy of the United States, and the leader of a band of insurgents and armed rebels”); id. , at 10–11 (indictment in the military commission trial of Joseph Overstreet charged “[b]eing a guerrilla” and specified that he “did join, belong to, consort and co-operate with a band of guerrillas, insurgents, outlaws, and public robbers”). Footnote 10 Even if the plurality were correct that a membership offense must be accompanied by allegations that the “defendant ‘took up arms,’ ” ante , at 37, n. 32, that requirement has easily been satisfied here. Not only has Hamdan been charged with providing assistance to top al Qaeda leadership (itself an offense triable by military commission), he has also been charged with receiving weapons training at an al Qaeda camp. App. to Pet. for Cert. 66a–67a. Footnote 11 The plurality recounts the respective claims of the parties in Quirin pertaining to this issue and cites the United States Reports. Ante , at 41-42. But the claims of the parties are not included in the opinion of the Court, but rather in the sections of the Reports entitled “Argument for Petitioners,” and “Argument for Respondent.” See 317 U. S., at 6–17. Footnote 12 The plurality concludes that military commission jurisdiction was appropriate in the case of the Lincoln conspirators because they were charged with “ ‘maliciously, unlawfully, and traitorously murdering the said Abraham Lincoln,’ ” ante , at 40, n. 35. But the sole charge filed in that case alleged conspiracy, and the allegations pertaining to “maliciously, unlawfully, and traitorously murdering the said Abraham Lincoln” were not charged or labeled as separate offenses, but rather as overt acts “in pursuance of and in prosecuting said malicious, unlawful, and traitorous conspiracy . ” G. C. M. O. No. 356, at ___ (emphasis added). While the plurality contends the murder of President Lincoln was charged as a distinct separate offense, the foregoing quoted language of the charging document unequivocally establishes otherwise. Moreover, though I agree that the allegations pertaining to these overt acts provided an independent basis for the military commission’s jurisdiction in that case, that merely confirms the propriety of examining all the acts alleged—whether or not they are labeled as separate offenses—to determine if a defendant has been charged with a violation of the law of war. As I have already explained, Hamdan has been charged with violating the law of war not only by participating in a conspiracy to violate the law of war, but also by joining a war criminal enterprise and by supplying provisions and assistance to that enterprise’s top leadership. Footnote 13 The plurality’s attempt to undermine the significance of these cases is unpersuasive. The plurality suggests the Wirz case is not relevant because the specification supporting his conspiracy charge alleged that he “ personally committed a number of atrocities.” Ante , at 45. But this does not establish that conspiracy to violate the laws of war, the very crime with which Wirz was charged, is not itself a violation of the law of war. Rather, at best, it establishes that in addition to conspiracy Wirz violated the laws of war by committing various atrocities, just as Hamdan violated the laws of war not only by conspiring to do so, but also by joining al Qaeda and providing provisions and services to its top leadership. Moreover, the fact that Wirz was charged with overt acts that are more severe than the overt acts with which Hamdan has been charged does not establish that conspiracy is not an offense cognizable before military commission; rather it merely establishes that Wirz’s offenses may have been comparably worse than Hamdan’s offenses. The plurality’s claim that the charge against Lenger Grenfel supports its compound offense theory is similarly unsupportable. The plurality does not, and cannot, dispute that Grenfel was charged with conspiring to violate the laws of war by releasing rebel prisoners—a charge that bears no relation to a crime “ordinarily triable in civilian courts.” Ante , at 46, n. 37. Tellingly, the plurality does not reference or discuss this charge, but instead refers to the conclusion of Judge Advocate Holt that Grenfel also “ ‘united himself with traitors and malefactors for the overthrow of our Republic in the interest of slavery.’ ” Ibid. (quoting H. R. Doc. No. 314, at 689). But Judge Advocate Holt’s observation provides no support for the plurality’s conclusion, as it does not discuss the charges that sustained military commission jurisdiction, much less suggest that such charges were not violations of the law of war. Footnote 14 The plurality contends that international practice—including the practice of the IMT at Nuremberg—supports its conclusion that conspiracy is not an offense triable by military commission because “ ‘[t]he Anglo-American concept of conspiracy was not part of European legal systems and arguably not an element of the internationally recognized laws of war.’ ” Ante , at 47 (quoting T. Taylor, Anatomy of the Nuremberg Trials: A Personal Memoir 36 (1992)). But while the IMT did not criminalize all conspiracies to violate the law of war, it did criminalize “participation in a common plan or conspiracy” to wage aggressive war. See 1 Trials, pp. XI–XII. Moreover, the World War II military tribunals of several European nations recognized conspiracy to violate the laws of war as an offense triable before military commissions. See 15 U. N. Commission 90–91 (noting that the French Military Tribunal at Marseilles found Henri Georges Stadelhofer “guilty of the crime of association de malfaiteurs ,” namely of “having formed with various members of the German Gestapo an association with the aim of preparing or committing crimes against persons or property, without justification under the laws and usages of war”); 11 id., at 98 (noting that the Netherlands’ military tribunals were authorized to try conspiracy to violate the laws of war). Thus, the European legal systems’ approach to domestic conspiracy law has not prevented European nations from recognizing conspiracy offenses as violations of the law of war. This is unsurprising, as the law of war is derived not from domestic law but from the wartime practices of civilized nations, including the United States, which has consistently recognized that conspiracy to violate the laws of war is an offense triable by military commission. Footnote 15 Though it does not constitute a basis for any holding of the Court, the Court maintains that, as a “general rule,” “the procedures governing trials by military commission historically have been the same as those governing courts-martial.” Ante , at 54, 53. While it is undoubtedly true that military commissions have invariably employed most of the procedures employed by courts-martial, that is not a requirement. See Winthrop 841 (“[M]ilitary commissions … are commonly conducted according to the rules and forms governing courts-martial. These war-courts are indeed more summary in their action than are the courts held under the Articles of war, and … their proceedings … will not be rendered illegal by the omission of details required upon trials by courts-martial” (emphasis in original; footnotes omitted)); 1 U. N. Commission 116–117 (“The [World War II] Mediterranean Regulations (No. 8) provide that Military Commissions shall conduct their proceedings as may be deemed necessary for full and fair trial, having regard for, but not being bound by , the rules of procedure prescribed for General Courts Martial” (emphasis added)); id ., at 117 (“In the [World War II] European directive it is stated … that Military Commissions shall have power to make, as occasion requires, such rules for the conduct of their proceedings consistent with the powers of such Commissions, and with the rules of procedure … as are deemed necessary for a full and fair trial of the accused, having regard for, without being bound by, the rules of procedure and evidence prescribed for General Courts Martial”). Moreover, such a requirement would conflict with the settled understanding of the flexible and responsive nature of military commissions and the President’s wartime authority to employ such tribunals as he sees fit. See Birkhimer 537–538 (“[M]ilitary commissions may so vary their procedure as to adapt it to any situation, and may extend their powers to any necessary degree… . The military commander decides upon the character of the military tribunal which is suited to the occasion … and his decision is final”). Footnote 16 The Court suggests that Congress’ amendment to Article 2 of the UCMJ, providing that the UCMJ applies to “persons within an area leased by or otherwise reserved or acquired for the use of the United States,” 10 U. S. C. §802(a)(12), deprives Yamashita ’s conclusion respecting the President’s authority to promulgate military commission procedures of its “precedential value.” Ante , at 56. But this merely begs the question of the scope and content of the remaining provisions of the UCMJ. Nothing in the additions to Article 2, or any other provision of the UCMJ, suggests that Congress has disturbed this Court’s unequivocal interpretation of Article 21 as preserving the common-law status of military commissions and the corresponding authority of the President to set their procedures pursuant to his commander-in-chief powers. See Quirin , 317 U. S., at 28; Yamashita , 327 U. S., at 20; Madsen v. Kinsella , 343 U. S. 341 , 355 (1952). Footnote 17 It bears noting that while the Court does not hesitate to cite legislative history that supports its view of certain statutory provisions, see ante , at 14–15, and n. 10, it makes no citation of the legislative history pertaining to Article 36(b), which contradicts its interpretation of that provision. Indeed, if it were authoritative, the only legislative history relating to Article 36(b) would confirm the obvious—Article 36(b)’s uniformity requirement pertains to uniformity between the three branches of the Armed Forces, and no more. When that subsection was introduced as an amendment to Article 36, its author explained that it would leave the three branches “enough leeway to provide a different provision where it is absolutely necessary” because “there are some differences in the services.” Hearings on H. R. 2498 before the Subcommittee No. 1 of the House Committee on Armed Services, 81st Cong., 1st Sess., 1015 (1949). A further statement explained that “there might be some slight differences that would pertain as to the Navy in contrast to the Army, but at least [Article 36(b)] is an expression of the congressional intent that we want it to be as uniform as possible.” Ibid . Footnote 18 In addition to being foreclosed by the text of the provision, the Court’s suggestion that 10 U. S. C. A. §839(c) (Supp. 2006) applies to military commissions is untenable because it would require, in military commission proceedings, that the accused be present when the members of the commission voted on his guilt or innocence. Footnote 19 The Court does not dispute the conclusion that Common Article 3 cannot be violated unless and until Hamdan is convicted and sentenced. Instead, it contends that “the Geneva Conventions d[o] not direct an accused to wait until sentence is imposed to challenge the legality of the tribunal that is to try him.” Ante , at 62, n. 55. But the Geneva Contentions do not direct defendants to enforce their rights through litigation, but through the Conventions’ exclusive diplomatic enforcement provisions. Moreover, neither the Court’s observation respecting the Geneva Conventions nor its reference to the equitable doctrine of abstention bears on the constitutional prohibition on adjudicating unripe claims. Footnote 20 Notably, a prosecutor before the Quirin military commission has described these procedures as “a substantial improvement over those in effect during World War II,” further observing that “[t]hey go a long way toward assuring that the trials will be full and fair.” National Institute of Military Justice, Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism, p. x (2002) (hereinafter Procedures for Trials) (foreword by Lloyd N. Cutler).

The Supreme Court ruled that the military commission trying Salim Ahmed Hamdan, a Yemeni national held at Guantanamo Bay, lacked the authority to proceed due to violations of the UCMJ and Geneva Conventions. The Court also concluded that conspiracy, the crime Hamdan was charged with, is not a violation of the law of war.

Immigration & National Security

Arizona v. U.S.

https://supreme.justia.com/cases/federal/us/567/387/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 11–182 _________________ ARIZONA, et al., PETITIONERS v. UNITED STATES on writ of certiorari to the united states court of appeals for the ninth circuit [June 25, 2012] Justice Kennedy delivered the opinion of the Court. To address pressing issues related to the large number of aliens within its borders who do not have a lawful right to be in this country, the State of Arizona in 2010 enacted a statute called the Support Our Law Enforcement and Safe Neighborhoods Act. The law is often referred to as S. B. 1070, the version introduced in the state senate. See also H. 2162 (2010) (amending S. 1070). Its stated purpose is to “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” Note following Ariz. Rev. Stat. Ann. §11–1051 (West 2012). The law’s provisions establish an official state policy of “attrition through enforcement.” Ibid. The question before the Court is whether federal law preempts and renders invalid four separate provisions of the state law. I The United States filed this suit against Arizona, seeking to enjoin S. B. 1070 as preempted. Four provisions of the law are at issue here. Two create new state offenses. Section 3 makes failure to comply with federal alien-registration requirements a state misdemeanor. Ariz. Rev. Stat. Ann. §13–1509 (West Supp. 2011). Section 5, in relevant part, makes it a misdemeanor for an unauthorized alien to seek or engage in work in the State; this provision is referred to as §5(C). See §13–2928(C). Two other provisions give specific arrest authority and inves- tigative duties with respect to certain aliens to state and local law enforcement officers. Section 6 authorizes officers to arrest without a warrant a person “the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States.” §13–3883(A)(5). Section 2(B) provides that officers who conduct a stop, detention, or arrest must in some circumstances make efforts to verify the person’s immi- gration status with the Federal Government. See §11–1051(B) (West 2012). The United States District Court for the District of Arizona issued a preliminary injunction preventing the four provisions at issue from taking effect. 703 F. Supp. 2d 980, 1008 (2010). The Court of Appeals for the Ninth Circuit affirmed. 641 F.3d 339, 366 (2011). It agreed that the United States had established a likelihood of success on its preemption claims. The Court of Appeals was unanimous in its conclusion that §§3 and 5(C) were likely preempted. Judge Bea dissented from the decision to uphold the preliminary injunction against §§2(B) and 6. This Court granted certiorari to resolve important questions concerning the interaction of state and federal power with respect to the law of immigration and alien status. 565 U. S. ___ (2011). II A The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. See Toll v. Moreno , 458 U.S. 1 , 10 (1982); see generally S. Legomsky & C. Rodríguez, Immigration and Refugee Law and Policy 115–132 (5th ed. 2009). This authority rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Nat- uralization,” U. S. Const., Art. I, §8, cl. 4, and its inher- ent power as sovereign to control and conduct relations with foreign nations, see Toll , supra, at 10 (citing United States v. Curtiss-Wright Export Corp. , 299 U.S. 304 , 318 (1936)). The federal power to determine immigration policy is well settled. Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. See, e.g., Brief for Argentina et al. as Amici Curiae; see also Harisiades v. Shaughnessy , 342 U.S. 580 , 588–589 (1952). Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad. See Brief for Madeleine K. Albright et al. as Amici Curiae 24–30. It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States. See Chy Lung v. Freeman , 92 U.S. 275 , 279–280 (1876); see also The Federalist No. 3, p. 39 (C. Rossiter ed. 2003) (J. Jay) (observing that federal power would be necessary in part because “bordering States . . . under the impulse of sudden irritation, and a quick sense of apparent interest or injury” might take action that would undermine foreign relations). This Court has reaffirmed that “[o]ne of the most important and delicate of all international relationships . . . has to do with the protection of the just rights of a country’s own nationals when those nationals are in another country.” Hines v. Davidowitz , 312 U.S. 52 , 64 (1941). Federal governance of immigration and alien status is extensive and complex. Congress has specified catego- ries of aliens who may not be admitted to the United States. See 8 U. S. C. §1182. Unlawful entry and unlawful reentry into the country are federal offenses. §§1325, 1326. Once here, aliens are required to register with the Federal Government and to carry proof of status on their person. See §§1301–1306. Failure to do so is a federal misdemeanor. §§1304(e), 1306(a). Federal law also authorizes States to deny noncitizens a range of public benefits, §1622; and it imposes sanctions on employers who hire unauthorized workers, §1324a. Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. See §1227. Re- moval is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. See Brief for Former Commissioners of the United States Immigration and Naturalization Service as Amici Curiae 8–13 (hereinafter Brief for Former INS Commissioners). Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal. See §1229a(c)(4); see also, e.g., §§1158 (asylum), 1229b (cancellation of removal), 1229c (voluntary departure). Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are con- sistent with this Nation’s foreign policy with respect to these and other realities. Agencies in the Department of Homeland Security play a major role in enforcing the country’s immigration laws. United States Customs and Border Protection (CBP) is re- sponsible for determining the admissibility of aliens and securing the country’s borders. See Dept. of Homeland Security, Office of Immigration Statistics, Immigration Enforcement Actions: 2010, p. 1 (2011). In 2010, CBP’s Border Patrol apprehended almost half a million people. Id. , at 3. Immigration and Customs Enforcement (ICE), a second agency, “conducts criminal investigations involving the enforcement of immigration-related statutes.” Id. , at 2. ICE also operates the Law Enforcement Support Center. LESC, as the Center is known, provides immigra- tion status information to federal, state, and local officials around the clock. See App. 91. ICE officers are respon- sible “for the identification, apprehension, and removal of illegal aliens from the United States.” Immigration Enforcement Actions, supra, at 2. Hundreds of thousands of aliens are removed by the Federal Government every year. See id., at 4 (reporting there were 387,242 removals, and 476,405 returns without a removal order, in 2010). B The pervasiveness of federal regulation does not di- minish the importance of immigration policy to the States. Arizona bears many of the consequences of unlawful immigration. Hundreds of thousands of deportable aliens are apprehended in Arizona each year. Dept. of Homeland Security, Office of Immigration Statistics, 2010 Yearbook of Immigration Statistics 93 (2011) (Table 35). Unauthorized aliens who remain in the State comprise, by one es- timate, almost six percent of the population. See Passel & Cohn, Pew Hispanic Center, U. S. Unauthorized Im- migration Flows Are Down Sharply Since Mid-Decade 3 (2010). And in the State’s most populous county, these aliens are reported to be responsible for a disproportionate share of serious crime. See, e.g., Camarota & Vaughan, Center for Immigration Studies, Immigration and Crime: Assessing a Conflicted Situation 16 (2009) (Table 3) (estimating that unauthorized aliens comprise 8.9% of the population and are responsible for 21.8% of the felonies in Maricopa County, which includes Phoenix). Statistics alone do not capture the full extent of Arizona’s concerns. Accounts in the record suggest there is an “epidemic of crime, safety risks, serious property damage, and environmental problems” associated with the influx of illegal migration across private land near the Mexican border. Brief for Petitioners 6. Phoenix is a major city of the United States, yet signs along an interstate highway 30 miles to the south warn the public to stay away. One reads, “DANGER—PUBLIC WARNING—TRAVEL NOT RECOMMENDED / Active Drug and Human Smuggling Area / Visitors May Encounter Armed Criminals and Smuggling Vehicles Traveling at High Rates of Speed.” App. 170; see also Brief for Petitioners 5–6. The problems posed to the State by illegal immigration must not be underestimated. These concerns are the background for the formal legal analysis that follows. The issue is whether, under pre- emption principles, federal law permits Arizona to implement the state-law provisions in dispute. III Federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect. See Gregory v. Ashcroft , 501 U.S. 452 , 457 (1991); U. S. Term Limits, Inc. v. Thornton , 514 U.S. 779 , 838 (1995) (Kennedy, J., concurring). From the existence of two sovereigns follows the possibility that laws can be in conflict or at cross-purposes. The Supremacy Clause provides a clear rule that federal law “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2. Under this principle, Congress has the power to preempt state law. See Crosby v. National Foreign Trade Council , 530 U.S. 363 , 372 (2000); Gibbons v. Ogden , 9 Wheat. 1, 210–211 (1824). There is no doubt that Congress may withdraw specified powers from the States by enacting a statute containing an express preemption provision. See, e.g., Chamber of Commerce of United States of America v. Whiting , 563 U. S. ___, ___ (2011) (slip op., at 4). State law must also give way to federal law in at least two other circumstances. First, the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance. See Gade v. National Solid Wastes Management Assn., 505 U.S. 88 , 115 (1992). The intent to displace state law altogether can be inferred from a framework of regulation “so pervasive . . . that Congress left no room for the States to supplement it” or where there is a “federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Rice v. Santa Fe Elevator Corp. , 331 U.S. 218 , 230 (1947); see English v. General Elec. Co. , 496 U.S. 72 , 79 (1990). Second, state laws are preempted when they conflict with federal law. Crosby, supra, at 372. This includes cases where “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul , 373 U.S. 132 , 142–143 (1963), and those instances where the challenged state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines , 312 U. S., at 67; see also Crosby , supra , at 373 (“What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects”). In preemption analysis, courts should assume that “the historic police powers of the States” are not superseded “unless that was the clear and manifest purpose of Congress.” Rice , supra, at 230; see Wyeth v. Levine , 555 U.S. 555 , 565 (2009). The four challenged provisions of the state law each must be examined under these preemption principles. IV A Section 3 Section 3 of S. B. 1070 creates a new state misde- meanor. It forbids the “willful failure to complete or carry an alien registration document . . . in violation of 8 United States Code section 1304(e) or 1306(a).” Ariz. Rev. Stat. Ann. §11–1509(A) (West Supp. 2011). In effect, §3 adds a state-law penalty for conduct proscribed by federal law. The United States contends that this state enforcement mechanism intrudes on the field of alien registration, a field in which Congress has left no room for States to regulate. See Brief for United States 27, 31. The Court discussed federal alien-registration requirements in Hines v. Davidowitz , 312 U.S. 52 . In 1940, as international conflict spread, Congress added to federal immigration law a “complete system for alien registration.” Id. , at 70. The new federal law struck a careful balance. It punished an alien’s willful failure to register but did not require aliens to carry identification cards. There were also limits on the sharing of registration records and fingerprints. The Court found that Congress intended the federal plan for registration to be a “single integrated and all-embracing system.” Id. , at 74. Because this “complete scheme . . . for the registration of aliens” touched on foreign relations, it did not allow the States to “curtail or complement” federal law or to “enforce additional or auxiliary regulations.” Id. , at 66–67. As a con- sequence, the Court ruled that Pennsylvania could not enforce its own alien-registration program. See id. , at 59, 74. The present regime of federal regulation is not identi- cal to the statutory framework considered in Hines , but it remains comprehensive. Federal law now includes a requirement that aliens carry proof of registration. 8 U. S. C. §1304(e). Other aspects, however, have stayed the same. Aliens who remain in the country for more than 30 days must apply for registration and be fingerprinted. Compare §1302(a) with id. , §452(a) (1940 ed.). Detailed information is required, and any change of address has to be reported to the Federal Government. Compare §§1304(a), 1305(a) (2006 ed.), with id. , §§455(a), 456 (1940 ed.). The statute continues to provide penalties for the willful failure to register. Compare §1306(a) (2006 ed.), with id. , §457 (1940 ed.). The framework enacted by Congress leads to the conclusion here, as it did in Hines , that the Federal Government has occupied the field of alien registration. See American Ins. Assn. v. Garamendi , 539 U.S. 396 , 419, n. 11 (2003) (characterizing Hines as a field preemption case); Pennsylvania v. Nelson , 350 U.S. 497 , 504 (1956) (same); see also Dinh, Reassessing the Law of Preemption, 88 Geo. L. J. 2085, 2098–2099, 2107 (2000) (same). The federal statu- tory directives provide a full set of standards governing alien registration, including the punishment for noncompliance. It was designed as a “ ‘harmonious whole.’ ” Hines , supra, at 72. Where Congress occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible. Field pre- emption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to fed- eral standards. See Silkwood v. Kerr-McGee Corp. , 464 U.S. 238 , 249 (1984). Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation’s borders. If §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, “diminish[ing] the [Federal Government]’s control over enforcement” and “detract[ing] from the ‘integrated scheme of regulation’ created by Congress.” Wisconsin Dept. of Industry v. Gould Inc. , 475 U.S. 282 , 288–289 (1986). Even if a State may make violation of federal law a crime in some instances, it cannot do so in a field (like the field of alien registration) that has been occupied by federal law. See California v. Zook , 336 U.S. 725 , 730–731, 733 (1949); see also In re Loney , 134 U.S. 372 , 375–376 (1890) (States may not impose their own punishment for perjury in federal courts). Arizona contends that §3 can survive preemption because the provision has the same aim as federal law and adopts its substantive standards. This argument not only ignores the basic premise of field preemption—that States may not enter, in any respect, an area the Federal Government has reserved for itself—but also is unpersuasive on its own terms. Permitting the State to impose its own penalties for the federal offenses here would conflict with the careful framework Congress adopted. Cf. Buckman Co. v. Plaintiffs’ Legal Comm. , 531 U.S. 341 , 347–348 (2001) (States may not impose their own punishment for fraud on the Food and Drug Administration); Wisconsin Dept., supra, at 288 (States may not impose their own punishment for repeat violations of the National Labor Relations Act). Were §3 to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies. There is a further intrusion upon the federal scheme. Even where federal authorities believe prosecution is ap- propriate, there is an inconsistency between §3 and fed- eral law with respect to penalties. Under federal law, the failure to carry registration papers is a misdemeanor that may be punished by a fine, imprisonment, or a term of probation. See 8 U. S. C. §1304(e) (2006 ed.); 18 U. S. C. §3561. State law, by contrast, rules out probation as a possible sentence (and also eliminates the possibility of a pardon). See Ariz. Rev. Stat. Ann. §13–1509(D) (West Supp. 2011). This state framework of sanctions creates a conflict with the plan Congress put in place. See Wisconsin Dept. , supra, at 286 (“[C]onflict is imminent whenever two separate remedies are brought to bear on the same activity” (internal quotation marks omitted)). These specific conflicts between state and federal law simply underscore the reason for field preemption. As it did in Hines , the Court now concludes that, with respect to the subject of alien registration, Congress intended to preclude States from “complement[ing] the federal law, or enforc[ing] additional or auxiliary regulations.” 312 U. S., at 66–67. Section 3 is preempted by federal law. B Section 5(C) Unlike §3, which replicates federal statutory requirements, §5(C) enacts a state criminal prohibition where no federal counterpart exists. The provision makes it a state misdemeanor for “an unauthorized alien to knowingly ap- ply for work, solicit work in a public place or perform work as an employee or independent contractor” in Ari- zona. Ariz. Rev. Stat. Ann. §13–2928(C) (West Supp. 2011). Violations can be punished by a $2,500 fine and incarceration for up to six months. See §13–2928(F); see also §§13–707(A)(1) (West 2010); 13–802(A); 13–902(A)(5). The United States contends that the provision upsets the bal- ance struck by the Immigration Reform and Control Act of 1986 (IRCA) and must be preempted as an obstacle to the federal plan of regulation and control. When there was no comprehensive federal program regulating the employment of unauthorized aliens, this Court found that a State had authority to pass its own laws on the subject. In 1971, for example, California passed a law imposing civil penalties on the employment of aliens who were “not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” 1971 Cal. Stats. ch. 1442, §1(a). The law was upheld against a preemption challenge in De Canas v. Bica , 424 U.S. 351 (1976). De Canas recognized that “States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” Id., at 356. At that point, however, the Federal Government had expressed no more than “a peripheral concern with [the] employment of illegal entrants.” Id. , at 360; see Whiting , 563 U. S., at ___ (slip op., at 3). Current federal law is substantially different from the regime that prevailed when De Canas was decided. Congress enacted IRCA as a comprehensive framework for “combating the employment of illegal aliens.” Hoffman Plastic Compounds, Inc. v. NLRB , 535 U.S. 137 , 147 (2002). The law makes it illegal for employers to know- ingly hire, recruit, refer, or continue to employ unauthorized workers. See 8 U. S. C. §§1324a(a)(1)(A), (a)(2). It also requires every employer to verify the employment authorization status of prospective employees. See §§1324a(a) (1)(B), (b); 8 CFR §274a.2(b) (2012). These requirements are enforced through criminal penalties and an escalat- ing series of civil penalties tied to the number of times an employer has violated the provisions. See 8 U. S. C. §§1324a(e)(4), (f); 8 CFR §274 A. 10. This comprehensive framework does not impose federal criminal sanctions on the employee side ( i.e., penalties on aliens who seek or engage in unauthorized work). Under federal law some civil penalties are imposed instead. With certain exceptions, aliens who accept unlawful employment are not eligible to have their status adjusted to that of a lawful permanent resident. See 8 U. S. C. §§1255(c)(2), (c)(8). Aliens also may be removed from the country for having engaged in unauthorized work. See §1227(a)(1)(C)(i); 8 CFR §214.1(e). In addition to specifying these civil consequences, federal law makes it a crime for unauthorized workers to obtain employment through fraudulent means. See 18 U. S. C. §1546(b). Congress has made clear, however, that any information employees submit to indicate their work status “may not be used” for purposes other than prosecution under specified federal criminal statutes for fraud, perjury, and related conduct. See 8 U. S. C. §§1324a(b)(5), (d)(2)(F)–(G). The legislative background of IRCA underscores the fact that Congress made a deliberate choice not to impose crim- inal penalties on aliens who seek, or engage in, unauthorized employment. A commission established by Congress to study immigration policy and to make recommen- dations concluded these penalties would be “unnecessary and unworkable.” U. S. Immigration Policy and the National Interest: The Final Report and Recommendations of the Select Commission on Immigration and Refugee Policy with Supplemental Views by Commissioners 65–66 (1981); see Pub. L. 95–412, §4, 92Stat. 907. Proposals to make unauthorized work a criminal offense were debated and discussed during the long process of drafting IRCA. See Brief for Service Employees International Union et al. as Amici Curiae 9–12. But Congress rejected them. See, e.g., 119 Cong. Rec. 14184 (1973) (statement of Rep. Dennis). In the end, IRCA’s framework reflects a considered judgment that making criminals out of aliens engaged in unauthorized work—aliens who already face the possibility of employer exploitation because of their removable status—would be inconsistent with federal policy and ob- jectives. See, e.g., Hearings before the Subcommittee No. 1 of the House Committee on the Judiciary, 92d Cong., 1st Sess., pt. 3, pp. 919–920 (1971) (statement of Rep. Rodino, the eventual sponsor of IRCA in the House of Representatives). IRCA’s express preemption provision, which in most instances bars States from imposing penalties on employers of unauthorized aliens, is silent about whether additional penalties may be imposed against the employees themselves. See 8 U. S. C. §1324a(h)(2); Whiting, supra, at ___–___ (slip op., at 1–2). But the existence of an “express pre-emption provisio[n] does not bar the ordinary working of conflict pre-emption principles” or impose a “special burden” that would make it more difficult to establish the preemption of laws falling outside the clause. Geier v. American Honda Motor Co. , 529 U.S. 861 , 869–872 (2000); see Sprietsma v. Mercury Marine , 537 U.S. 51 , 65 (2002). The ordinary principles of preemption include the well-settled proposition that a state law is preempted where it “stands as an obstacle to the accomplishment and exe- cution of the full purposes and objectives of Congress.” Hines , 312 U. S., at 67. Under §5(C) of S. B. 1070, Arizona law would interfere with the careful balance struck by Congress with respect to unauthorized employment of aliens. Although §5(C) attempts to achieve one of the same goals as federal law—the deterrence of unlawful employment—it involves a conflict in the method of enforcement. The Court has recognized that a “[c]onflict in technique can be fully as disruptive to the system Congress enacted as conflict in overt policy.” Motor Coach Employees v. Lockridge , 403 U.S. 274 , 287 (1971). The correct instruction to draw from the text, structure, and history of IRCA is that Congress decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment. It follows that a state law to the contrary is an obstacle to the regulatory system Congress chose. See Puerto Rico Dept. of Con- sumer Affairs v. ISLA Petroleum Corp. , 485 U.S. 495 , 503 (1988) (“Where a comprehensive federal scheme intentionally leaves a portion of the regulated field without controls, then the pre-emptive inference can be drawn—not from federal inaction alone, but from inaction joined with action”). Section 5(C) is preempted by federal law. C Section 6 Section 6 of S. B. 1070 provides that a state officer, “without a warrant, may arrest a person if the officer has probable cause to believe . . . [the person] has committed any public offense that makes [him] removable from the United States.” Ariz. Rev. Stat. Ann. §13–3883(A)(5) (West Supp. 2011). The United States argues that arrests authorized by this statute would be an obstacle to the removal system Congress created. As a general rule, it is not a crime for a removable alien to remain present in the United States. See INS v. Lopez-Mendoza , 468 U.S. 1032 , 1038 (1984). If the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent. When an alien is suspected of being removable, a federal official issues an administrative document called a Notice to Ap- pear. See 8 U. S. C. §1229(a); 8 CFR §239.1(a) (2012). The form does not authorize an arrest. Instead, it gives the alien information about the proceedings, including the time and date of the removal hearing. See 8 U. S. C. §1229(a)(1). If an alien fails to appear, an in absentia order may direct removal. §1229a(5)(A). The federal statutory structure instructs when it is ap- propriate to arrest an alien during the removal process. For example, the Attorney General can exercise discretion to issue a warrant for an alien’s arrest and detention “pending a decision on whether the alien is to be removed from the United States.” 8 U. S. C. §1226(a); see Memorandum from John Morton, Director, ICE, to All Field Office Directors et al., Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011) (hereinafter 2011 ICE Memorandum) (describing factors informing this and re- lated decisions). And if an alien is ordered removed after a hearing, the Attorney General will issue a warrant. See 8 CFR §241.2(a)(1). In both instances, the warrants are executed by federal officers who have received training in the enforcement of immigration law. See §§241.2(b), 287.5(e)(3). If no federal warrant has been issued, those officers have more limited authority. See 8 U. S. C. §1357(a). They may arrest an alien for being “in the United States in violation of any [immigration] law or regula- tion,” for example, but only where the alien “is likely to escape before a warrant can be obtained.” §1357(a)(2). Section 6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immi- gration officers. Under state law, officers who believe an alien is removable by reason of some “public offense” would have the power to conduct an arrest on that basis regardless of whether a federal warrant has issued or the alien is likely to escape. This state authority could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case. This would allow the State to achieve its own immigra- tion policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed. This is not the system Congress created. Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer. A principal example is when the Attorney General has granted that authority to specific officers in a formal agreement with a state or local government. See §1357(g)(1); see also §1103(a)(10) (authority may be extended in the event of an “imminent mass influx of aliens off the coast of the United States”); §1252c (authority to arrest in specific circumstance after consultation with the Federal Government); §1324(c) (authority to arrest for bringing in and harboring certain aliens). Officers covered by these agreements are subject to the Attorney General’s direction and super- vision. §1357(g)(3). There are significant complexities involved in enforcing federal immigration law, including the determination whether a person is removable. See Padilla v. Kentucky , 559 U. S. ___, ___–___ (2010) (Alito, J., concurring in judgment) (slip op., at 4–7). As a result, the agreements reached with the Attorney General must contain written certification that officers have received adequate training to carry out the duties of an immigration officer. See §1357(g)(2); cf. 8 CFR §§287.5(c) (ar- rest power contingent on training), 287.1(g) (defining the training). By authorizing state officers to decide whether an alien should be detained for being removable, §6 violates the principle that the removal process is entrusted to the discretion of the Federal Government. See, e.g., Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 , 483–484 (1999); see also Brief for Former INS Commissioners 8–13. A decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made with one voice. See Jama v. Immigration and Customs Enforcement , 543 U.S. 335 , 348 (2005) (“Removal decisions, including the selection of a removed alien’s destination, may implicate [the Nation’s] relations with foreign powers and require consideration of changing political and economic circumstances” (internal quotation marks omitted)); see also Galvan v. Press , 347 U.S. 522 , 531 (1954) (“Policies pertaining to the entry of aliens and their right to remain here are . . . entrusted exclusively to Congress . . .”); Truax v. Raich , 239 U.S. 33 , 42 (1915) (“The authority to control immigration—to admit or exclude aliens—is vested solely in the Federal Government”). In defense of §6, Arizona notes a federal statute permitting state officers to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” 8 U. S. C. §1357(g)(10)(B). There may be some ambiguity as to what constitutes cooperation under the federal law; but no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government. The Department of Homeland Security gives examples of what would constitute cooperation under federal law. These include situations where States participate in a joint task force with federal officers, provide operational support in executing a warrant, or allow federal immigration officials to gain access to detainees held in state facilities. See Dept. of Homeland Security, Guidance on State and Local Governments’ Assistance in Immigration Enforcement and Related Matters 13–14 (2011), online at http:// www.dhs.gov/files/resources/immigration.shtm (all Internet materials as visited June 21, 2012, and available in Clerk of Court’s case file). State officials can also assist the Federal Government by responding to requests for information about when an alien will be released from their custody. See §1357(d). But the unilateral state action to detain authorized by §6 goes far beyond these measures, defeating any need for real cooperation. Congress has put in place a system in which state officers may not make warrantless arrests of aliens based on possible removability except in specific, limited circumstances. By nonetheless authorizing state and local offi- cers to engage in these enforcement activities as a general matter, §6 creates an obstacle to the full purposes and objectives of Congress. See Hines , 312 U. S., at 67. Section 6 is preempted by federal law. D Section 2(B) Section 2(B) of S. B. 1070 requires state officers to make a “reasonable attempt . . . to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012). The law also provides that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.” Ibid. The accepted way to perform these status checks is to contact ICE, which maintains a database of immigration records. Three limits are built into the state provision. First, a detainee is presumed not to be an alien unlawfully present in the United States if he or she provides a valid Arizona driver’s license or similar identification. Second, officers “may not consider race, color or national origin . . . except to the extent permitted by the United States [and] Ari- zona Constitution[s].” Ibid. Third, the provisions must be “implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.” §11–1051(L) (West 2012). The United States and its amici contend that, even with these limits, the State’s verification requirements pose an obstacle to the framework Congress put in place. The first concern is the mandatory nature of the status checks. The second is the possibility of prolonged detention while the checks are being performed. 1 Consultation between federal and state officials is an important feature of the immigration system. Congress has made clear that no formal agreement or special training needs to be in place for state officers to “communicate with the [Federal Government] regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States.” 8 U. S. C. §1357(g)(10)(A). And Congress has obligated ICE to respond to any request made by state officials for verification of a person’s citizenship or im- migration status. See §1373(c); see also §1226(d)(1)(A) (requiring a system for determining whether individuals arrested for aggravated felonies are aliens). ICE’s Law Enforcement Support Center operates “24 hours a day, seven days a week, 365 days a year” and provides, among other things, “immigration status, identity information and real-time assistance to local, state and federal law enforcement agencies.” ICE, Fact Sheet: Law Enforcement Support Center (May 29, 2012), online at http:// www.ice.gov/news/library/factsheets/lesc.htm. LESC responded to more than one million requests for information in 2009 alone. App. 93. The United States argues that making status verification mandatory interferes with the federal immigration scheme. It is true that §2(B) does not allow state officers to consider federal enforcement priorities in deciding whether to contact ICE about someone they have detained. See Brief for United States 47–50. In other words, the officers must make an inquiry even in cases where it seems unlikely that the Attorney General would have the alien removed. This might be the case, for example, when an alien is an elderly veteran with significant and longstanding ties to the community. See 2011 ICE Memorandum 4–5 (mentioning these factors as relevant). Congress has done nothing to suggest it is inappropriate to communicate with ICE in these situations, however. Indeed, it has encouraged the sharing of information about possible immigration violations. See 8 U. S. C. §1357(g) (10)(A). A federal statute regulating the public benefits provided to qualified aliens in fact instructs that “no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from [ICE] information regarding the immigration status, lawful or unlawful, of an alien in the United States.” §1644. The federal scheme thus leaves room for a policy requiring state officials to contact ICE as a routine matter. Cf. Whiting , 563 U. S., at ___–___ (slip op., at 23–24) (rejecting argument that federal law preempted Arizona’s requirement that employers determine whether employees were eligible to work through the federal E-Verify system where the Federal Government had encouraged its use). 2 Some who support the challenge to §2(B) argue that, in practice, state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status. See, e.g., Brief for Former Arizona Attorney General Terry Goddard et al. as Amici Curiae 37, n. 49. Detaining individuals solely to verify their immigration status would raise constitutional concerns. See, e.g. , Arizona v. Johnson , 555 U.S. 323 , 333 (2009); Illinois v. Caballes , 543 U.S. 405 , 407 (2005) (“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission”). And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. Cf. Part IV–C, supra (concluding that Ari- zona may not authorize warrantless arrests on the basis of removability). The program put in place by Congress does not allow state or local officers to adopt this enforcement mechanism. But §2(B) could be read to avoid these concerns. To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if there is reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry. See Reply Brief for Petitioners 12, n. 4 (“[Section 2(B)] does not require the verification be completed during the stop or detention if that is not reasonable or practicable”); cf. Muehler v. Mena , 544 U.S. 93 , 101 (2005) (finding no Fourth Amendment violation where questioning about immigration status did not prolong a stop). To take another example, a person might be held pending release on a charge of driving under the influence of alcohol. As this goes beyond a mere stop, the arrestee (unlike the jaywalker) would appear to be subject to the categorical requirement in the second sentence of §2(B) that “[a]ny person who is arrested shall have the person’s immigration status determined before [he] is released.” State courts may read this as an instruction to initiate a status check every time someone is arrested, or in some subset of those cases, rather than as a command to hold the person until the check is complete no matter the circumstances. Even if the law is read as an instruction to complete a check while the person is in custody, moreover, it is not clear at this stage and on this record that the verification process would result in prolonged detention. However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive pre- emption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives. There is no need in this case to address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law. See, e.g., United States v. Di Re , 332 U.S. 581 , 589 (1948) (authority of state officers to make arrests for federal crimes is, absent federal statutory instruction, a matter of state law); Gonzales v. Peoria , 722 F.2d 468, 475–476 (CA9 1983) (concluding that Arizona officers have authority to enforce the criminal provisions of federal immigration law), overruled on other grounds in Hodgers-Durgin v. de la Vina , 199 F.3d 1037 (CA9 1999). The nature and timing of this case counsel caution in evaluating the validity of §2(B). The Federal Government has brought suit against a sovereign State to challenge the provision even before the law has gone into effect. There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law. Cf. Fox v. Washington , 236 U.S. 273 , 277 (1915) (“So far as statutes fairly may be construed in such a way as to avoid doubtful constitutional questions they should be so construed; and it is to be presumed that state laws will be construed in that way by the state courts” (citation omitted)). As a result, the United States cannot prevail in its current challenge. See Huron Portland Cement Co. v. Detroit , 362 U.S. 440 , 446 (1960) (“To hold otherwise would be to ignore the teaching of this Court’s decisions which enjoin seeking out conflicts between state and federal regulation where none clearly exists”). This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect. V Immigration policy shapes the destiny of the Nation. On May 24, 2012, at one of this Nation’s most distinguished museums of history, a dozen immigrants stood before the tattered flag that inspired Francis Scott Key to write the National Anthem. There they took the oath to become American citizens. The Smithsonian, News Release, Smithsonian Citizenship Ceremony Welcomes a Dozen New Americans (May 24, 2012), online at http://newsdesk.si.edu/releases. These naturalization cere- monies bring together men and women of different ori- gins who now share a common destiny. They swear a common oath to renounce fidelity to foreign princes, to defend the Constitution, and to bear arms on behalf of the country when required by law. 8 CFR §337.1(a) (2012). The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here. The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law. *  *  * The United States has established that §§3, 5(C), and 6 of S. B. 1070 are preempted. It was improper, however, to enjoin §2(B) before the state courts had an opportunity to construe it and without some showing that enforcement of the provision in fact conflicts with federal immigration law and its objectives. The judgment of the Court of Appeals for the Ninth Circuit is affirmed in part and reversed in part. The case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Kagan took no part in the consideration or decision of this case. SUPREME COURT OF THE UNITED STATES _________________ No. 11–182 _________________ ARIZONA, et al., PETITIONERS v. UNITED STATES on writ of certiorari to the united states court of appeals for the ninth circuit [June 25, 2012] Justice Scalia, concurring in part and dissenting in part. The United States is an indivisible “Union of sovereign States.” Hinderlider v. La Plata River & Cherry Creek Ditch Co. , 304 U.S. 92 , 104 (1938). Today’s opinion, approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would con- sider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent. I As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitution- ally imposed by Congress. That power to exclude has long been recognized as inherent in sovereignty. Emer de Vattel’s seminal 1758 treatise on the Law of Nations stated: “The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases, or to certain persons, or for certain particular pur- poses, according as he may think it advantageous to the state. There is nothing in all this, that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares violate it, incurs the penalty decreed to render it effectual.” The Law of Nations, bk. II, ch. VII, §94, p. 309 (B. Kapossy & R. Whatmore eds. 2008). See also I R. Phillimore, Commentaries upon International Law, pt. III, ch. X, p. 233 (1854) (“It is a received maxim of International Law that, the Government of a State may prohibit the entrance of strangers into the country”).[ 1 ] There is no doubt that “before the adoption of the constitution of the United States” each State had the author- ity to “prevent [itself] from being burdened by an influx of persons.” Mayor of New York v. Miln , 11 Pet. 102, 132–133 (1837). And the Constitution did not strip the States of that authority. To the contrary, two of the Constitution’s provisions were designed to enable the States to prevent “the intrusion of obnoxious aliens through other States.” Letter from James Madison to Edmund Randolph (Aug. 27, 1782), in 1 The Writings of James Madison 226 (1900); accord, The Federalist No. 42, pp. 269–271 (C. Rossiter ed. 1961) (J. Madison). The Articles of Confederation had provided that “the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States.” Articles of Confederation, Art. IV. This meant that an unwelcome alien could obtain all the rights of a citizen of one State simply by first becoming an inhabitant of another. To remedy this, the Constitution’s Privileges and Immunities Clause provided that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Art. IV, §2, cl. 1 (emphasis added). But if one State had particularly lax citizenship standards, it might still serve as a gateway for the entry of “obnoxious aliens” into other States. This problem was solved “by authorizing the general government to establish a uniform rule of naturalization throughout the United States.” The Federalist No. 42, supra, at 271; see Art. I, §8, cl. 4. In other words, the naturalization power was given to Congress not to abrogate States’ power to exclude those they did not want, but to vindicate it. Two other provisions of the Constitution are an acknowledgment of the States’ sovereign interest in protecting their borders. Article I provides that “[n]o State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws .” Art. I, §10, cl. 2 (emphasis added). This assumed what everyone assumed: that the States could exclude from their territory dangerous or unwholesome goods. A later portion of the same section provides that “[n]o State shall, without the Consent of Congress, . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay .” Art. I, §10, cl. 3 (emphasis added). This limits the States’ sovereignty (in a way not relevant here) but leaves intact their inherent power to protect their territory. Notwithstanding “[t]he myth of an era of unrestricted immigration” in the first 100 years of the Republic, the States enacted numerous laws restricting the immigra- tion of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. Neuman, The Lost Century of American Immigration (1776–1875), 93 Colum. L. Rev. 1833, 1835, 1841–1880 (1993). State laws not only pro- vided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration.[ 2 ] Id., at 1883. In fact, the controversy surrounding the Alien and Sedition Acts involved a debate over whether, under the Constitution, the States had exclusive authority to enact such immigration laws. Criticism of the Sedition Act has become a prominent feature of our First Amendment jurisprudence, see, e.g., New York Times Co. v. Sullivan , 376 U.S. 254 , 273–276 (1964), but one of the Alien Acts[ 3 ] also aroused controversy at the time: “ Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled , That it shall be lawful for the President of the United States at any time during the continuance of this act, to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof, to depart out of the territory of the United States . . . .” An Act concerning Aliens, 1Stat. 570, 570–571. The Kentucky and Virginia Resolutions, written in denunciation of these Acts, insisted that the power to exclude unwanted aliens rested solely in the States. Jefferson’s Kentucky Resolutions insisted “that alien friends are under the jurisdiction and protection of the laws of the state wherein they are [and] that no power over them has been delegated to the United States, nor prohibited to the individual states, distinct from their power over citizens.” Kentucky Resolutions of 1798, reprinted in J. Powell, Languages of Power: A Sourcebook of Early American Constitutional History 131 (1991). Madison’s Virginia Resolutions likewise contended that the Alien Act purported to give the President “a power nowhere delegated to the federal government.” Virginia Resolutions of 1798, reprinted in Powell, supra, at 134 (emphasis omitted). Notably, moreover, the Federalist proponents of the Act defended it primarily on the ground that “[t]he removal of aliens is the usual preliminary of hostility” and could therefore be justified in exercise of the Federal Government’s war powers. Massachussets Resolutions in Reply to Virginia, reprinted in Powell, supra, at 136. In Mayor of New York v. Miln , this Court considered a New York statute that required the commander of any ship arriving in New York from abroad to disclose “the name, place of birth, and last legal settlement, age and occupation . . . of all passengers . . . with the intention of proceeding to the said city.” 11 Pet., at 130–131. After discussing the sovereign authority to regulate the entrance of foreigners described by De Vattel, the Court said: “The power . . . of New York to pass this law having undeniably existed at the formation of the constitution, the simply inquiry is, whether by that instrument it was taken from the states, and granted to congress; for if it were not, it yet remains with them.” Id., at 132. And the Court held that it remains. Id., at 139. II One would conclude from the foregoing that after the adoption of the Constitution there was some doubt about the power of the Federal Government to control immigration, but no doubt about the power of the States to do so. Since the founding era (though not immediately), doubt about the Federal Government’s power has disappeared. Indeed, primary responsibility for immigration policy has shifted from the States to the Federal Government. Congress exercised its power “[t]o establish an uniform Rule of Naturalization,” Art. I, §8, cl. 4, very early on, see An Act to establish an uniform Rule of Naturalization, 1Stat. 103. But with the fleeting exception of the Alien Act, Congress did not enact any legislation regulating immigration for the better part of a century. In 1862, Congress passed “An Act to prohibit the ‘Coolie Trade’ by American Citizens in American Vessels,” which prohibited “procuring [Chinese nationals] . . . to be disposed of, or sold, or transferred, for any term of years or for any time what- ever, as servants or apprentices, or to be held to service or labor.” 12Stat. 340. Then, in 1875, Congress amended that act to bar admission to Chinese, Japanese, and other Asian immigrants who had “entered into a contract or agreement for a term of service within the United States, for lewd and immoral purposes.” An act supplementary to the acts in relation to immigration, ch. 141, 18Stat. 477. And in 1882, Congress enacted the first general immi- gration statute. See An act to regulate Immigration, 22Stat. 214. Of course, it hardly bears mention that Federal immigration law is now extensive. I accept that as a valid exercise of federal power—not because of the Naturalization Clause (it has no necessary connection to citizenship) but because it is an inherent attribute of sovereignty no less for the United States than for the States. As this Court has said, it is an “ ‘accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions.’ ” Fong Yue Ting v. United States , 149 U.S. 698 , 705 (1893) (quoting Ekiu v. United States , 142 U.S. 651 , 659 (1892)). That is why there was no need to set forth control of immigration as one of the enumer- ated powers of Congress, although an acknowledgment of that power (as well as of the States’ similar power, subject to federal abridgment) was contained in Art. I, §9, which provided that “[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight . . . .” In light of the predominance of federal immigration restrictions in modern times, it is easy to lose sight of the States’ traditional role in regulating immigration—and to overlook their sovereign prerogative to do so. I accept as a given that State regulation is excluded by the Constitution when (1) it has been prohibited by a valid federal law, or (2) it conflicts with federal regulation—when, for example, it admits those whom federal regulation would exclude, or excludes those whom federal regulation would admit. Possibility (1) need not be considered here: there is no federal law prohibiting the States’ sovereign power to ex- clude (assuming federal authority to enact such a law). The mere existence of federal action in the immigration area—and the so-called field preemption arising from that action, upon which the Court’s opinion so heavily relies, ante, at 9–11—cannot be regarded as such a prohibition. We are not talking here about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants. We are talking about a federal law going to the core of state sovereignty: the power to exclude. Like elimination of the States’ other inherent sovereign power, immunity from suit, elimina- tion of the States’ sovereign power to exclude requires that “Congress . . . unequivocally expres[s] its intent to abrogate,” Seminole Tribe of Fla. v. Florida , 517 U.S. 44 , 55 (1996) (internal quotation marks and citation omitted). Implicit “field preemption” will not do. Nor can federal power over illegal immigration be deemed exclusive because of what the Court’s opinion solicitously calls “foreign countries[ ’] concern[s] about the status, safety, and security of their nationals in the United States,” ante , at 3. The Constitution gives all those on our shores the protections of the Bill of Rights—but just as those rights are not expanded for foreign nationals because of their countries’ views (some countries, for example, have recently discovered the death penalty to be barbaric), neither are the fundamental sovereign powers of the States abridged to accommodate foreign countries’ views. Even in its international relations, the Federal Government must live with the inconvenient fact that it is a Union of independent States, who have their own sovereign powers. This is not the first time it has found that a nuisance and a bother in the conduct of foreign policy. Four years ago, for example, the Government importuned us to interfere with thoroughly constitutional state judicial procedures in the criminal trial of foreign nationals because the international community, and even an opinion of the International Court of Justice, disapproved them. See Medellín v. Texas , 552 U.S. 491 (2008). We rejected that request, as we should reject the Executive’s invocation of foreign-affairs considerations here. Though it may upset foreign powers—and even when the Federal Government desperately wants to avoid upsetting foreign powers—the States have the right to protect their borders against foreign nationals, just as they have the right to execute foreign nationals for murder. What this case comes down to, then, is whether the Arizona law conflicts with federal immigration law—whether it excludes those whom federal law would admit, or admits those whom federal law would exclude. It does not purport to do so. It applies only to aliens who neither possess a privilege to be present under federal law nor have been removed pursuant to the Federal Government’s inherent authority. I proceed to consider the challenged provisions in detail. §2(B) “For any lawful stop, detention or arrest made by a law enforcement official . . . in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person’s immigration status determined before the person is released. . . .” S. B. 1070, §2(B), as amended , Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012). The Government has conceded that “even before Section 2 was enacted, state and local officers had state-law authority to inquire of DHS [the Department of Homeland Security] about a suspect’s unlawful status and other- wise cooperate with federal immigration officers.” Brief for United States 47 (citing App. 62, 82); see also Brief for United States 48–49. That concession, in my view, ob- viates the need for further inquiry. The Government’s conflict-pre-emption claim calls on us “to determine whether, under the circumstances of this particular case , [the State’s] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz , 312 U.S. 52 , 67 (1941) (emphasis added). It is impossible to make such a finding without a factual record concerning the manner in which Arizona is implementing these provisions—something the Government’s pre-enforcement challenge has pretermitted. “The fact that [a law] might operate unconstitutionally under some conceivable set of circumstances is insuf- ficient to render it wholly invalid, since we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.” United States v. Sal- erno , 481 U.S. 739 , 745 (1987). And on its face, §2(B) merely tells state officials that they are authorized to do something that they were, by the Government’s con- cession, already authorized to do. The Court therefore properly rejects the Government’s challenge, recognizing that, “[a]t this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2B will be construed in a way that creates a conflict with federal law.” Ante, at 23. Before reaching that conclusion, however, the Court goes to great length to assuage fears that “state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status.” Ante, at 22. Of course, any investigatory detention, including one under §2(B), may become an “unreasonable . . . seizur[e],” U. S. Const., Amdt. IV, if it lasts too long. See Illinois v. Caballes , 543 U.S. 405 , 407 (2005). But that has nothing to do with this case, in which the Government claims that §2(B) is pre-empted by federal immigration law, not that anyone’s Fourth Amendment rights have been violated. And I know of no reason why a protracted detention that does not violate the Fourth Amendment would contradict or conflict with any federal immigration law. §6 “A peace officer, without a warrant, may arrest a person if the officer has probable cause to believe . . . [t]he person to be arrested has committed any public offense that makes the person removable from the United States.” S. B. 1070, §6(A)(5), Ariz. Rev. Stat. Ann. §13–3883(A)(5) (West Supp. 2011). This provision of S. B. 1070 expands the statutory list of offenses for which an Arizona police officer may make an arrest without a warrant. See §13–3883. If an officer has probable cause to believe that an individual is “removable” by reason of a public offense, then a warrant is not required to make an arrest. The Government’s primary contention is that §6 is pre-empted by federal immigration law because it allows state officials to make arrests “without regard to federal priorities.” Brief for United States 53. The Court’s opinion focuses on limits that Congress has placed on federal officials’ authority to arrest remov- able aliens and the possibility that state officials will make arrests “to achieve [Arizona’s] own immigration policy” and “without any input from the Federal Government.” Ante, at 17. Of course on this pre-enforcement record there is no reason to assume that Arizona officials will ignore federal immigration policy (unless it be the questionable policy of not wanting to identify illegal aliens who have committed offenses that make them removable). As Arizona points out, federal law expressly provides that state officers may “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States,” 8 U. S. C. §1357(g)(10)(B); and “cooperation” requires neither identical efforts nor prior federal approval. It is consistent with the Arizona statute, and with the “cooperat[ive]” system that Congress has created, for state officials to arrest a removable alien, contact federal immigration authorities, and follow their lead on what to do next. And it is an assault on logic to say that identifying a removable alien and holding him for federal determination of whether he should be removed “violates the principle that the removal process is entrusted to the discretion of the Federal Government,” ante, at 18. The State’s detention does not represent commencement of the removal process unless the Federal Government makes it so. But that is not the most important point. The most important point is that, as we have discussed, Arizona is entitled to have “its own immigration policy”—including a more rigorous enforcement policy—so long as that does not conflict with federal law. The Court says, as though the point is utterly dispositive, that “it is not a crime for a removable alien to remain present in the United States,” ante, at 15. It is not a federal crime, to be sure. But there is no reason Arizona cannot make it a state crime for a removable alien (or any illegal alien, for that matter) to remain present in Arizona. The Court quotes 8 U. S. C. §1226(a), which provides that, “[o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” Section 1357(a)(2) also provides that a federal immigration official “shall have power without warrant . . . to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any [federal immigration] law or regulation and is likely to escape before a warrant can be obtained for his arrest.” But statutory limitations upon the actions of federal officers in enforcing the United States’ power to protect its borders do not on their face apply to the actions of state officers in enforcing the State’s power to protect its borders. There is no more reason to read these provisions as implying that state officials are subject to similar limitations than there is to read them as implying that only federal officials may arrest removable aliens. And in any event neither implication would constitute the sort of clear elimination of the States’ sovereign power that our cases demand. The Court raises concerns about “unnecessary harassment of some aliens . . . whom federal officials determine should not be removed.” Ante, at 17. But we have no license to assume, without any support in the record, that Arizona officials would use their arrest authority under §6 to harass anyone. And it makes no difference that federal officials might “determine [that some unlawfully present aliens] should not be removed,” ibid. They may well determine not to remove from the United States aliens who have no right to be here; but unless and until these aliens have been given the right to remain, Arizona is entitled to arrest them and at least bring them to federal officials’ attention, which is all that §6 necessarily entails. (In my view, the State can go further than this, and punish them for their unlawful entry and presence in Arizona.) The Government complains that state officials might not heed “federal priorities.” Indeed they might not, particularly if those priorities include willful blindness or delib- erate inattention to the presence of removable aliens in Arizona. The State’s whole complaint—the reason this law was passed and this case has arisen—is that the citizens of Arizona believe federal priorities are too lax. The State has the sovereign power to protect its borders more rigorously if it wishes, absent any valid federal prohibition. The Executive’s policy choice of lax federal enforcement does not constitute such a prohibition. §3 “In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 [U. S. C.] §1304(e) or §1306(a).” S. B. 1070, §3(A), as amended, Ariz. Rev. Stat. Ann. §13–1509(A). It is beyond question that a State may make violation of federal law a violation of state law as well. We have held that to be so even when the interest protected is a distinctively federal interest, such as protection of the dignity of the national flag, see Halter v. Nebraska , 205 U.S. 34 (1907), or protection of the Federal Government’s ability to recruit soldiers, Gilbert v. Minnesota , 254 U.S. 325 (1920). “[T]he State is not inhibited from making the national purposes its own purposes to the extent of exerting its police power to prevent its own citizens from obstructing the accomplishment of such purposes.” Id., at 331 (internal quotation marks omitted). Much more is that so when, as here, the State is protecting its own interest, the integrity of its borders. And we have said that explicitly with regard to illegal immigration: “Despite the exclusive federal control of this Nation’s borders, we cannot conclude that the States are without any power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.” Plyler v. Doe , 457 U.S. 202 , 228, n. 23 (1982). The Court’s opinion relies upon Hines v. Davidowitz , supra. Ante , at 9–10. But that case did not, as the Court believes, establish a “field preemption” that implicitly eliminates the States’ sovereign power to exclude those whom federal law excludes. It held that the States are not permitted to establish “additional or auxiliary” registration requirements for aliens. 312 U. S., at 66–67. But §3 does not establish additional or auxiliary registration requirements. It merely makes a violation of state law the very same failure to register and failure to carry evidence of registration that are violations of federal law. Hines does not prevent the State from relying on the federal registration system as “an available aid in the enforcement of a number of statutes of the state applicable to aliens whose constitutional validity has not been questioned.” Id., at 75–76 (Stone, J., dissenting). One such statute is Arizona’s law forbidding illegal aliens to collect unemployment benefits, Ariz. Rev. Stat. Ann. §23–781(B) (West 2012). To enforce that and other laws that validly turn on alien status, Arizona has, in Justice Stone’s words, an interest in knowing “the number and whereabouts of aliens within the state” and in having “a means of their identification,” 312 U. S., at 75. And it can punish the aliens’ failure to comply with the provisions of federal law that make that knowledge and identification possible. In some areas of uniquely federal concern— e.g., fraud in a federal administrative process ( Buckman Co. v. Plaintiffs’ Legal Comm. , 531 U.S. 341 (2001)) or perjury in violation of a federally required oath ( In re Loney , 134 U.S. 372 (1890))—this Court has held that a State has no legitimate interest in enforcing a federal scheme. But the federal alien registration system is certainly not of uniquely federal interest. States, private entities, and individuals rely on the federal registration system (including the E-Verify program) on a regular basis. Arizona’s legitimate in- terest in protecting (among other things) its unemployment-benefits system is an entirely adequate basis for making the violation of federal registration and carry requirements a violation of state law as well. The Court points out, however, ante, at 11, that in some respects the state law exceeds the punishments prescribed by federal law: It rules out probation and pardon, which are available under federal law. The answer is that it makes no difference. Illegal immigrants who violate §3 violate Arizona law. It is one thing to say that the Supremacy Clause prevents Arizona law from excluding those whom federal law admits. It is quite something else to say that a violation of Arizona law cannot be punished more severely than a violation of federal law. Especially where (as here) the State is defending its own sovereign interests, there is no precedent for such a limitation. The sale of illegal drugs, for example, ordinarily violates state law as well as federal law, and no one thinks that the state penalties cannot exceed the federal. As I have discussed, moreover, “field preemption” cannot establish a prohibition of additional state penalties in the area of immigration. Finally, the Government also suggests that §3 poses an obstacle to the administration of federal immigration law, see Brief for United States 31–33, but “there is no conflict in terms, and no possibility of such conflict, [if] the state statute makes federal law its own,” California v. Zook , 336 U.S. 725 , 735 (1949). It holds no fear for me, as it does for the Court, that “[w]ere §3 to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where fed- eral officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies.” Ante, at 11. That seems to me entirely appropriate when the State uses the federal law (as it must) as the criterion for the exercise of its own power , and the implementation of its own policies of excluding those who do not belong there. What I do fear—and what Arizona and the States that support it fear—is that “federal policies” of nonenforcement will leave the States helpless before those evil effects of illegal immigration that the Court’s opinion dutifully recites in its prologue ( ante, at 6) but leaves unremedied in its disposition. §5(C) “It is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state.” S. B. 1070, §5(C), as amended, Ariz. Rev. Stat. Ann. §13–2928(C). Here, the Court rightly starts with De Canas v. Bica , 424 U.S. 351 (1976), which involved a California law providing that “ ‘[n]o employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.’ ” Id. , at 352 (quoting California Labor Code Ann. §2805(a)). This Court concluded that the California law was not pre-empted, as Congress had neither occupied the field of “regulation of employment of illegal aliens” nor expressed “the clear and manifest purpose” of displacing such state regulation. Id., at 356–357 (internal quotation marks omitted). Thus, at the time De Canas was decided, §5(C) would have been indubitably lawful. The only relevant change is that Congress has since enacted its own restrictions on employers who hire illegal aliens, 8 U. S. C. §1324a, in legislation that also includes some civil (but no criminal) penalties on illegal aliens who accept unlawful employment. The Court concludes from this (reasonably enough) “that Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment,” ante , at 13. But that is not the same as a deliberate choice to prohibit the States from imposing criminal penalties. Congress’s intent with regard to exclusion of state law need not be guessed at, but is found in the law’s express pre-emption provision, which excludes “any State or local law impos- ing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ , or recruit or refer for a fee for employment, unauthorized aliens,” §1324a(h)(2) (emphasis added). Common sense, reflected in the canon expressio unius est exclusio alterius , suggests that the specification of pre-emption for laws punishing “those who employ” implies the lack of pre-emption for other laws, including laws punishing “those who seek or accept employment.” The Court has no credible response to this. It quotes our jurisprudence to the effect that an “express pre-emption provisio[n] does not bar the ordinary working of conflict pre-emption principles.” Ante, at 14 (quoting Geier v. American Honda Motor Co. , 529 U.S. 861 , 869 (2000) (internal quotation marks omitted)). True enough— conflict preemption principles. It then goes on say that since “Congress decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment,” “[i]t follows that a state law to the contrary is an obstacle to the regulatory system Congress chose.” Ante, at 15. For “ ‘[w]here a comprehensive federal scheme intentionally leaves a portion of the regulated field without controls, then the pre-emptive inference can be drawn.’ ” Ibid. (quoting Puerto Rico Dept. of Consumer Affairs v. ISLA Petroleum Corp. , 485 U.S. 495 , 503 (1988)). All that is a classic description not of conflict pre-emption but of field pre-emption, which (concededly) does not occur beyond the terms of an express pre-emption provision. The Court concludes that §5(C) “would interfere with the careful balance struck by Congress,” ante, at 15, (another field pre-emption notion, by the way) but that is easy to say and impossible to demonstrate. The Court relies primarily on the fact that “[p]roposals to make unauthorized work a criminal offense were debated and discussed during the long process of drafting [the Immigration Reform and Control Act of 1986 (IRCA)],” “[b]ut Congress rejected them.” Ante, at 14. There is no more reason to believe that this rejection was expressive of a desire that there be no sanctions on employees, than expressive of a desire that such sanctions be left to the States. To tell the truth, it was most likely expressive of what inaction ordinarily expresses: nothing at all. It is a “naïve assumption that the failure of a bill to make it out of committee, or to be adopted when reported to the floor, is the same as a congressional rejection of what the bill contained.” Crosby v. National Foreign Trade Council , 530 U.S. 363 , 389 (2000) (Scalia, J., concurring in judgment) (internal quotation marks and alterations omitted). *  *  * The brief for the Government in this case asserted that “the Executive Branch’s ability to exercise discretion and set priorities is particularly important because of the need to allocate scarce enforcement resources wisely.” Brief for United States 21. Of course there is no reason why the Federal Executive’s need to allocate its scarce enforcement resources should disable Arizona from devoting its resources to illegal immigration in Arizona that in its view the Federal Executive has given short shrift. Despite Congress’s prescription that “the immigration laws of the United States should be enforced vigorously and uniformly,” IRCA §115, 100Stat. 3384, Arizona asserts without contradiction and with supporting citations: “[I]n the last decade federal enforcement efforts have focused primarily on areas in California and Texas, leaving Arizona’s border to suffer from comparative neglect. The result has been the funneling of an increasing tide of illegal border crossings into Arizona. Indeed, over the past decade, over a third of the Nation’s illegal border crossings occurred in Arizona.” Brief for Petitioners 2–3 (footnote omitted). Must Arizona’s ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement—or, even worse, to the Executive’s unwise targeting of that funding? But leave that aside. It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immi- gration enforcement some 1.4 million illegal immigrants under the age of 30.[ 4 ] If an individual unlawfully present in the United States “•came to the United States under the age of sixteen; “•has continuously resided in the United States for at least five years . . . , “•is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran . . . , “•has not been convicted of a [serious crime]; and “•is not above the age of thirty,”[ 5 ] then U. S. immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.”[ 6 ] The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act.[ 7 ] Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind. The Court opinion’s looming specter of inutterable horror—“[i]f §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute fed- eral registration violations,” ante, at 10—seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws? A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Today’s judgment surely fails that test. At the Constitutional Convention of 1787, the delegates contended with “the jealousy of the states with regard to their sovereignty.” 1 Records of the Federal Convention 19 (M. Farrand ed. 1911) (statement of Edmund Randolph). Through ratification of the fundamental charter that the Convention produced, the States ceded much of their sovereignty to the Federal Government. But much of it remained jealously guarded—as reflected in the innumerable proposals that never left Independence Hall. Now, imagine a provision—perhaps inserted right after Art. I, §8, cl. 4, the Naturalization Clause—which included among the enumerated powers of Congress “To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” The delegates to the Grand Convention would have rushed to the exits. As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from enforcement, and will be able to compete openly with Ari- zona citizens for employment. Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent. Notes 1 Many of the 17th-, 18th-, and 19th-century commentators maintained that states should exclude foreigners only for good reason. Pufendorf, for example, maintained that states are generally expected to grant “permanent settlement to strangers who have been driven from their former home,” though acknowledging that, when faced with the prospect of mass immigration, “every state may decide after its own custom what privilege should be granted in such a situation.” 2 Of the Law of Nature and Nations, bk. III, ch. III, §10, p. 366 (C. Oldfather & W. Oldfather eds. 1934). See generally Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1, 83–87 (2002). But the authority to exclude was universally accepted as inherent in sovereignty, whatever prudential limitations there might be on its exercise. 2 E.g., Va. Code Tit. 54, ch. 198, §39 (1849) (“If a master of a vessel or other person, knowingly, import or bring into this state, from any place out of the United States , any person convicted of crime . . . he shall be confined in jail for three months, and be fined one hundred dollars”). 3 There were two Alien Acts, one of which dealt only with enemyaliens. An Act respecting Alien Enemies, 1Stat. 577. 4 Preston & Cushman, Obama to Permit Young Migrants to Remain in U. S., N. Y. Times, June 16, 2012, p. A1. 5 Memorandum from Janet Napolitano, Secretary of Homeland Security, to David V. Aguilar, Acting Commissioner, U. S. Customs and Border Protection; Alejandro Mayorkas, Director, U. S. Citizenshipand Immigration Services; and John Morton, Director, U. S. Immigra-tion and Customs Enforcement, p. 1 (June 15, 2012), online at http://www.dhs.gov (all Internet materials as visited June 22, 2012, and available in Clerk of Court’s case file). 6 Id., at 2. 7 Remarks by the President on Immigration (June 15, 2012), online at http://www.whitehouse.gov. SUPREME COURT OF THE UNITED STATES _________________ No. 11–182 _________________ ARIZONA, et al., PETITIONERS v. UNITED STATES on writ of certiorari to the united states court of appeals for the ninth circuit [June 25, 2012] Justice Thomas, concurring in part and dissenting in part. I agree with Justice Scalia that federal immigration law does not pre-empt any of the challenged provisions of S. B. 1070. I reach that conclusion, however, for the simple reason that there is no conflict between the “ordinary meanin[g]” of the relevant federal laws and that of the four provisions of Arizona law at issue here. Wyeth v. Levine , 555 U.S. 555 , 588 (2009) (Thomas, J., concurring in judgment) (“Pre-emption analysis should not be a freewheeling judicial inquiry into whether a state statute is in tension with federal objectives, but an inquiry into whether the ordinary meanings of state and federal law conflict” (brackets; internal quotation marks omitted)). Section 2(B) of S. B. 1070 provides that, when Arizona law enforcement officers reasonably suspect that a person they have lawfully stopped, detained, or arrested is unlawfully present, “a reasonable attempt shall be made, when practicable, to determine the immigration status of the person” pursuant to the verification procedure established by Congress in 8 U. S. C. §1373(c). Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012). Nothing in the text of that or any other federal statute prohibits Arizona from directing its officers to make immigration-related inquiries in these situations. To the contrary, federal law expressly states that “no State or local government entity may be prohib- ited, or in any way restricted, from sending to or receiving from” federal officials “information regarding the immigration status” of an alien. 8 U. S. C. §1644. And, federal law imposes an affirmative obligation on federal officials to respond to a State’s immigration-related inquiries. §1373(c). Section 6 of S. B. 1070 authorizes Arizona law enforcement officers to make warrantless arrests when there is probable cause to believe that an arrestee has committed a public offense that renders him removable under federal immigration law. States, as sovereigns, have inherent authority to conduct arrests for violations of federal law, unless and until Congress removes that authority. See United States v. Di Re , 332 U.S. 581 , 589 (1948) (holding that state law determines the validity of a warrantless arrest for a violation of federal law “in the absence of an applicable federal statute”). Here, no federal statute purports to withdraw that authority. As Justice Scalia notes, ante, at 12 (opinion concurring in part and dissenting in part), federal law does limit the authority of federal officials to arrest removable aliens, but those statutes do not apply to state officers. And, federal law expressly recognizes that state officers may “cooperate with the Attorney General” in the “apprehension” and “detention” of “aliens not lawfully present in the United States.” §1357(g)(10)(B). Nothing in that statute indicates that such cooperation requires a prior “request, approval, or other instruction from the Federal Government.” Ante, at 18 (majority opinion). Section 3 of S. B. 1070 makes it a crime under Arizona law for an unlawfully present alien to willfully fail to complete or carry an alien registration document in violation of 8 U. S. C. §1304(e) and §1306(a). Section 3 simply incorporates federal registration standards. Unlike the Court, I would not hold that Congress pre-empted the field of enforcing those standards. “[O]ur recent cases have frequently rejected field pre-emption in the absence of statutory language expressly requiring it.” Camps Newfound/Owatonna, Inc. v. Town of Harrison , 520 U.S. 564 , 617 (1997) (Thomas, J., dissenting); see, e.g., New York State Dept. of Social Servs. v. Dublino , 413 U.S. 405 , 415 (1973). Here, nothing in the text of the relevant federal statutes indicates that Congress intended enforcement of its registration requirements to be exclusively the province of the Federal Government. That Congress created a “full set of standards governing alien registration,” ante, at 10 (majority opinion), merely indicates that it intended the scheme to be capable of working on its own, not that it wanted to preclude the States from enforcing the federal standards. Hines v. Davidowitz , 312 U.S. 52 (1941), is not to the contrary. As Justice Scalia explains, ante, at 14, Hines at most holds that federal law pre-empts the States from creating additional registration requirements. But here, Arizona is merely seeking to enforce the very registration requirements that Congress created. Section 5(C) of S. B. 1070 prohibits unlawfully present aliens from knowingly applying for, soliciting, or performing work in Arizona. Section 5(C) operates only on individuals whom Congress has already declared ineligible to work in the United States. Nothing in the text of the federal immigration laws prohibits States from imposing their own criminal penalties on such individuals. Fed- eral law expressly pre-empts States from “imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ , or recruit or refer for a fee for employment, unauthorized aliens.” 8 U. S. C. §1324a(h)(2) (emphasis added). But it leaves States free to impose criminal sanctions on the employees themselves. Despite the lack of any conflict between the ordinary meaning of the Arizona law and that of the federal laws at issue here, the Court holds that various provisions of the Arizona law are pre-empted because they “stan[d] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines , supra , at 67. I have explained that the “purposes and objectives” theory of implied pre-emption is inconsistent with the Constitution because it invites courts to engage in freewheeling speculation about congressional purpose that roams well beyond statutory text. See Wyeth , 555 U. S., at 604 (opinion concurring in judgment); see also Williamson v. Mazda Motor of America, Inc. , 562 U. S. ___, ___–___ (2011) (opinion concurring in judgment) (slip op., at 2–3); Haywood v. Drown , 556 U.S. 729 , 767 (2009) (dissenting opinion). Under the Supremacy Clause, pre-emptive effect is to be given to congressionally enacted laws, not to judicially divined legislative purposes. See Wyeth , supra , at 604 (Thomas, J., concurring in judgment). Thus, even assuming the existence of some tension between Arizona’s law and the supposed “purposes and objectives” of Congress, I would not hold that any of the provisions of the Arizona law at issue here are pre-empted on that basis. SUPREME COURT OF THE UNITED STATES _________________ No. 11–182 _________________ ARIZONA, et al., PETITIONERS v. UNITED STATES on writ of certiorari to the united states court of appeals for the ninth circuit [June 25, 2012] Justice Alito, concurring in part and dissenting in part. This case concerns four provisions of Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act, S. B. 1070. Section 2(B) requires Arizona law enforcement officers to make a “reasonable attempt,” “when practicable,” to ascertain the immigration status of any person whom an officer lawfully stops, detains, or arrests “where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012). Section 3 provides that an alien who willfully fails “to complete or carry an alien registration document” in violation of 8 U. S. C. §1304(e) or §1306(a) is guilty of a misdemeanor. Ariz. Rev. Stat. Ann. §13–1509(A) (West Supp. 2011). Section 5(C) makes it a misdemeanor for an unauthorized alien who is unlawfully present in the United States “to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor.” Ariz. Rev. Stat. Ann. §13–2928(C). And §6 authorizes Arizona law enforcement officers to arrest without a warrant any person whom the officer has probable cause to believe “has committed any public offense that makes the person removable from the United States.” Ariz. Rev. Stat. Ann. §13–3883(A)(5). I agree with the Court that §2(B) is not pre-empted. That provision does not authorize or require Arizona law enforcement officers to do anything they are not already allowed to do under existing federal law. The United States’ argument that §2(B) is pre-empted, not by any federal statute or regulation, but simply by the Executive’s current enforcement policy is an astounding assertion of federal executive power that the Court rightly rejects. I also agree with the Court that §3 is pre-empted by virtue of our decision in Hines v. Davidowitz , 312 U.S. 52 (1941). Our conclusion in that case that Congress had enacted an “all-embracing system” of alien registration and that States cannot “enforce additional or auxiliary regulations,” id., at 66–67, 74, forecloses Arizona’s attempt here to impose additional, state-law penalties for violations of the federal registration scheme. While I agree with the Court on §2(B) and §3, I part ways on §5(C) and §6. The Court’s holding on §5(C) is inconsistent with De Canas v. Bica , 424 U.S. 351 (1976), which held that employment regulation, even of aliens unlawfully present in the country, is an area of traditional state concern. Because state police powers are implicated here, our precedents require us to presume that federal law does not displace state law unless Congress’ intent to do so is clear and manifest. I do not believe Congress has spoken with the requisite clarity to justify invalidation of §5(C). Nor do I believe that §6 is invalid. Like §2(B), §6 adds virtually nothing to the authority that Arizona law enforcement officers already exercise. And whatever little authority they have gained is consistent with federal law. Section 2(B) A Although §2(B) of the Arizona law has occasioned much controversy, it adds nothing to the authority that Arizona law enforcement officers, like officers in all other States, already possess under federal law. For that reason, I agree with the Court that §2(B) is not pre-empted. Section 2(B) quite clearly does not expand the authority of Arizona officers to make stops or arrests. It is triggered only when a “lawful stop, detention or arrest [is] made . . . in the enforcement of any other [state or local] law or ordinance .” Ariz. Rev. Stat. Ann. §11–1051(B) (emphasis added). Section 2(B) thus comes into play only when an officer has reasonable suspicion or probable cause to believe that a person has committed a nonimmigration offense. Arizona officers plainly possessed this authority before §2(B) took effect. Section 2(B) also does not expand the authority of Arizona officers to inquire about the immigration status of persons who are lawfully detained. When a person is stopped or arrested and “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States,” §2(B) instructs Arizona officers to make a “reasonable attempt,” “when practicable,” to ascertain that person’s immigration status. Ariz. Rev. Stat. Ann. §11–1051(B). Even before the Arizona Legislature enacted §2(B), federal law permitted state and local officers to make such inquiries. In 8 U. S. C. §1357(g)(10)(A), Congress has made clear that state and local governments need not enter into formal agreements with the Federal Government in order “to communicate with the [Federal Government] regarding the immigration status of any individual.” In addition, Congress has mandated that neither the Federal Government nor any state or local government may “prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [the Federal Government] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” §1373(a); see also §1644 (providing that “no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from [the Federal Government] information regarding the immigration status, lawful or unlawful, of an alien in the United States”). And while these provisions preserve the authority of state and local officers to seek immigration-status information from the Federal Government, another federal statute, §1373(c), requires that the Federal Government respond to any such inquiries “by providing the requested verification or status information.” It comes as no surprise, therefore, that many States and localities permit their law enforcement officers to make the kinds of inquiries that §2(B) prescribes. See App. 294–298 (reporting that officers in 59 surveyed state and local jurisdictions “generally” ask arrestees about their immigration status while 34 do not and that officers in 78 jurisdictions “generally” inform Immigration and Customs Enforcement (ICE) when they believe an arrestee to be an undocumented alien while only 17 do not). Congress has invited state and local governments to make immigration-related inquiries and has even obligated the Federal Government to respond. Through §2(B), Arizona has taken Congress up on that invitation. The United States does not deny that officers may, at their own discretion , inquire about the immigration status of persons whom they lawfully detain. Instead, the United States argues that §2(B) is pre-empted because it impedes federal-state cooperation by mandating that officers verify the immigration status of every detained person if there is reason to believe that the person is unlawfully present in the country. The United States claims that §2(B)’s mandate runs contrary to federal law in that it “precludes officers from taking [the Federal Government’s] priorities and discretion into account.” Brief for United States 50. “[B]y interposing a mandatory state law between state and local officers and their federal counterparts,” writes the United States, §2(B) “stands as an obstacle to the ac- complishment of the federal requirement of cooperation and the full effectuation of the enforcement judgment and discretion Congress has vested in the Executive Branch.” Ibid. (internal quotation marks and citation omitted). The underlying premise of the United States’ argument seems to be that state and local officers, when left to their own devices, generally take federal enforcement priorities into account. But there is no reason to think that this premise is true. And even if it were, it would not follow that §2(B)’s blanket mandate is at odds with federal law. Nothing in the relevant federal statutes requires state and local officers to consider the Federal Government’s priorities before requesting verification of a person’s immigration status. Neither 8 U. S. C. §1357(g)(10) nor §1373(a) conditions the right of state and local officers to communicate with the Federal Government on their first taking account of its priorities. Nor does §1373(c) condition the Federal Government’s obligation to answer requests for in- formation on the sensitivity of state and local officers to its enforcement discretion. In fact, §1373(c) dictates that the Federal Government “shall respond” to any inquiry seeking verification of immigration status, and that command applies whether or not the requesting officer has bothered to consider federal priorities. Because no federal statute requires such consideration, §2(B) does not conflict with federal law. In any event, it is hard to see how state and local offi- cers could proceed in conformity with the Federal Government’s enforcement priorities without making an inquiry into a suspected alien’s immigration status. For example, one of the Federal Government’s highest priorities is the apprehension and removal of aliens who have failed to comply with a final order of removal. See App. 108. How can an officer identify those persons without first in- quiring about their status? At bottom, the discretion that ultimately matters is not whether to verify a person’s immigration status but whether to act once the person’s status is known. For that reason, §2(B)’s verification requirement is not contrary to federal law because the Federal Government retains the discretion that matters most––that is, the discretion to enforce the law in par- ticular cases. If an Arizona officer contacts the Federal Government to verify a person’s immigration status and federal records reveal that the person is in the coun- try unlawfully, the Federal Government decides, presumably based on its enforcement priorities, whether to have the person released or transferred to federal custody. Enforcement discretion thus lies with the Federal Government, not with Arizona. Nothing in §2(B) suggests otherwise. The United States’ attack on §2(B) is quite remarkable. The United States suggests that a state law may be pre-empted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency’s current enforcement priorities. Those priorities, however, are not law. They are nothing more than agency policy. I am aware of no decision of this Court recognizing that mere policy can have pre-emptive force. Cf. Barclays Bank PLC v. Franchise Tax Bd. of Cal. , 512 U.S. 298 , 330 (1994) (holding that “Executive Branch communications that express federal policy but lack the force of law cannot render unconstitutional” an “otherwise valid, congressionally condoned” state law). If §2(B) were pre-empted at the present time because it is out of sync with the Federal Government’s current priorities, would it be unpre-empted at some time in the future if the agency’s priorities changed? Like most law enforcement agencies, ICE does not set out inflexible rules for its officers to follow. To the con- trary, it provides a list of factors to guide its officers’ enforcement discretion on a case-by-case basis. See Memorandum from John Morton, Director, ICE, to All Field Office Directors et al., p. 4 (June 17, 2011) (“This list is not exhaustive and no one factor is determinative. ICE offi- cers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities”). Among those factors is “the agency’s civil immigration enforcement priorities,” ibid. , which change from administration to administration. If accepted, the United States’ pre-emption argument would give the Executive unprecedented power to invalidate state laws that do not meet with its approval, even if the state laws are otherwise consistent with federal statutes and duly promulgated regulations. This argument, to say the least, is fundamentally at odds with our federal system. B It has been suggested that §2(B) will cause some persons who are lawfully stopped to be detained in violation of their constitutional rights while a prolonged investigation of their immigration status is undertaken. But nothing on the face of the law suggests that it will be enforced in a way that violates the Fourth Amendment or any other provision of the Constitution. The law instructs officers to make a “reasonable attempt” to investigate immigration status, and this language is best understood as incorporating the Fourth Amendment’s standard of reasonableness. Indeed, the Arizona Legislature has directed that §2(B) “shall be implemented in a manner consistent with federal laws . . . protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.” Ariz. Rev. Stat. Ann. §11–1051(L). In the situations that seem most likely to occur, enforcement of §2(B) will present familiar Fourth Amendment questions. To take a common situation, suppose that a car is stopped for speeding, a nonimmigration offense. (Recall that §2(B) comes into play only where a stop or arrest is made for a nonimmigration offense.) Suppose also that the officer who makes the stop subsequently acquires reasonable suspicion to believe that the driver entered the country illegally, which is a federal crime. See 8 U. S. C. §1325(a). It is well established that state and local officers generally have authority to make stops and arrests for violations of federal criminal laws. See, e.g., Miller v. United States , 357 U.S. 301 , 305 (1958); United States v. Di Re , 332 U.S. 581 , 589 (1948). I see no reason why this principle should not apply to immigration crimes as well. Lower courts have so held. See, e.g., Estrada v. Rhode Island , 594 F.3d 56, 65 (CA1 2010) (upholding the lawfulness of a detention because the officer had an objectively reason- able belief that the arrestees “had committed immigra- tion violations”); United States v. Vasquez-Alvarez , 176 F.3d 1294 , 1296 (CA10 1999) (noting that “state law-enforcement officers have the general authority to investigate and make arrests for violations of federal immigration laws”); Gonzales v. Peoria , 722 F.2d 468, 475 (CA9 1983), overruled on other grounds, Hodgers-Durgin v. de la Vina , 199 F.3d 1037 (1999) (en banc) (holding that “federal law does not preclude local enforcement of the criminal provisions” of federal immigration law). And the United States, consistent with the position long taken by the Office of Legal Counsel (OLC) in the Department of Justice, does not contend otherwise. See Brief for United States 55, n. 33; see also Memorandum from OLC to the Attorney General (Apr. 3, 2002), App. 268–273; Assistance by State and Local Police in Apprehending Illegal Aliens, 20 Op. Off. Legal Counsel 26 (1996). More importantly, no federal statute casts doubt on this authority. To be sure, there are a handful of statutes that purport to authorize state and local officers to make immigration-related arrests in certain situations. See, e.g., 8 U. S. C. §1103(a)(10) (providing for the extension of “any” immigration enforcement authority to state and local officers in the event of an “actual or imminent mass in- flux of aliens arriving off the coast”); §1252c(a) (provid- ing authority to arrest criminal aliens who had illegally reentered the country but only after consultation with the Federal Government); §1324(c) (providing authority to make arrests for transporting and harboring certain aliens). But a grant of federal arrest authority in some cases does not manifest a clear congressional intent to displace the States’ police powers in all other cases. Without more, such an inference is too weak to overcome our presumption against pre-emption where traditional state police powers are at stake. Accordingly, in our hypothetical case, the Arizona officer may arrest the driver for violating §1325(a) if the officer has probable cause. And if the officer has reasonable suspicion, the officer may detain the driver, to the extent permitted by the Fourth Amendment, while the question of illegal entry is investigated. We have held that a detention based on reasonable suspicion that the detainee committed a particular crime “can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Illinois v. Caballes , 543 U.S. 405 , 407 (2005). But if during the course of a stop an officer acquires suspicion that a de- tainee committed a different crime, the detention may be extended for a reasonable time to verify or dispel that suspicion. Cf. Muehler v. Mena , 544 U.S. 93 , 101 (2005) (holding that “no additional Fourth Amendment justification” was required because any questioning concerning immigration status did not prolong the detention). In our hypothetical case, therefore, if the officer, after initially stopping the car for speeding, has a reasonable suspicion that the driver entered the country illegally, the officer may investigate for evidence of illegal entry. But the length and nature of this investigation must remain within the limits set out in our Fourth Amendment cases. An investigative stop, if prolonged, can become an arrest and thus require probable cause. See Caballes , supra , at 407. Similarly, if a person is moved from the site of the stop, probable cause will likely be required. See Hayes v. Florida , 470 U.S. 811 , 816 (1985) (holding that the line be- tween detention and arrest is crossed “when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes”). If properly implemented, §2(B) should not lead to fed- eral constitutional violations, but there is no denying that enforcement of §2(B) will multiply the occasions on which sensitive Fourth Amendment issues will crop up. These civil-liberty concerns, I take it, are at the heart of most objections to §2(B). Close and difficult questions will in- evitably arise as to whether an officer had reasonable suspicion to believe that a person who is stopped for some other reason entered the country illegally, and there is a risk that citizens, lawful permanent residents, and others who are lawfully present in the country will be detained. To mitigate this risk, Arizona could issue guidance to officers detailing the circumstances that typically give rise to reasonable suspicion of unlawful presence. And in the spirit of the federal-state cooperation that the United States champions, the Federal Government could share its own guidelines. Arizona could also provide officers with a nonexclusive list containing forms of identification sufficient under §2(B) to dispel any suspicion of unlawful presence. If Arizona accepts licenses from most States as proof of legal status, the problem of roadside detentions will be greatly mitigated.[ 1 ] Section 3 I agree that §3 is pre-empted because, like the Court, I read the opinion in Hines to require that result. Although there is some ambiguity in Hines , the Court largely spoke in the language of field pre-emption. The Court explained that where Congress “has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.” 312 U. S., at 66–67. In finding the Pennsylvania alien-registration law pre-empted, the Court observed that Congress had “provided a standard for alien registration in a single integrated and all-embracing system” and that its intent was “to protect the personal liberties of law-abiding aliens through one uniform national registration system.” Id., at 74. If we credit our holding in Hines that Congress has enacted “a single in- tegrated and all-embracing system” of alien registration and that States cannot “complement” that system or “enforce additional or auxiliary regulations,” id., at 66–67, 74, then Arizona’s attempt to impose additional, state-law penalties for violations of federal registration requirements must be invalidated. Section 5(C) While I agree that §3 is pre-empted, I disagree with the Court’s decision to strike down §5(C). I do so in large measure because the Court fails to give the same solicitude to our decision in De Canas , 424 U.S. 351 , as it is willing to give our decision in Hines . In De Canas , the Court upheld against a pre-emption challenge a state law imposing fines on employers that hired aliens who were unlawfully present in the United States. The Court explained that the mere fact that “aliens are the subject of a state statute does not render it a regulation of immigration.” 424 U. S., at 355. The Court emphasized instead that “States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” Id., at 356. In light of that broad authority, the Court declared that “[o]nly a demonstration that complete ouster of state power . . . was ‘the clear and manifest purpose of Congress’ would justify” the conclusion that “state regulation designed to protect vital state interests must give way to paramount federal legislation.” Id., at 357 (some internal quotation marks omitted); see also Bates v. Dow Agrosciences LLC , 544 U.S. 431 , 449 (2005) (“In areas of traditional state regulation, [the Court] assume[s] that a federal statute has not supplanted state law unless Congress has made such an intention ‘clear and manifest’ ” (some internal quotation marks omitted)). The Court now tells us that times have changed. Since De Canas , Congress has enacted “a comprehensive framework for combating the employment of illegal aliens,” and even though aliens who seek or obtain unauthorized work are not subject to criminal sanctions, they can suffer civil penalties. Ante, at 12–13 (internal quotation marks omitted). Undoubtedly, federal regulation in this area is more pervasive today. But our task remains unchanged: to determine whether the federal scheme discloses a clear and manifest congressional intent to displace state law. The Court gives short shrift to our presumption against pre-emption. Having no express statement of congressional intent to support its analysis, the Court infers from stale legislative history and from the comprehensiveness of the federal scheme that “Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment.” Ante, at 13. Because §5(C) imposes such penalties, the Court concludes that it stands as an obstacle to the method of enforcement chosen by Congress. Ante, at 15. The one thing that is clear from the federal scheme is that Congress chose not to impose federal criminal penalties on aliens who seek or obtain unauthorized work. But that does not mean that Congress also chose to pre-empt state criminal penalties. The inference is plausible, but far from necessary. As we have said before, the “decision not to adopt a regulation” is not “the functional equivalent of a regulation prohibiting all States and their political subdivisions from adopting such a regulation.” Sprietsma v. Mercury Marine , 537 U.S. 51 , 65 (2002). With any statutory scheme, Congress chooses to do some things and not others. If that alone were enough to demonstrate pre-emptive intent, there would be little left over for the States to regulate, especially now that federal authority reaches so far and wide. States would occupy tiny islands in a sea of federal power. This explains why state laws implicating traditional state powers are not pre-empted unless there is a “clear and manifest” congressional intention to do so. Not only is there little evidence that Congress intended to pre-empt state laws like §5(C), there is some evidence that Congress intended the opposite result. In making it unlawful for employers to hire unauthorized aliens, see 8 U. S. C. §1324a(a), Congress made it clear that “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws)” upon employers was pre-empted, §1324a(h)(2). Noticeably absent is any similar directive pre-empting state or local laws targeting aliens who seek or obtain unauthorized employment. Given that Congress expressly pre-empted certain state and local laws pertaining to employers but remained silent about laws pertaining to employees, one could infer that Congress intended to preserve state and local authority to regulate the employee side of the equation. At the very least, it raises serious doubts about whether Congress intended to pre-empt such authority. The Court dismisses any inferences that might be drawn from the express pre-emption provision. See ante, at 14. But even though the existence of that provision “does not bar the ordinary working of conflict pre-emption principles” or impose a “ ‘special burden’ ” against pre-emption, Geier v. American Honda Motor Co. , 529 U.S. 861 , 869–870 (2000), it is still probative of congressional intent. And it is the intent of Congress that is the “ultimate touchstone.” Retail Clerks v. Schermerhorn , 375 U.S. 96 , 103 (1963). The Court infers from Congress’ decision not to impose federal criminal penalties that Congress intended to pre-empt state criminal penalties. But given that the express pre-emption provision covers only state and local laws regulating employers , one could just as well infer that Congress did not intend to pre-empt state or local laws aimed at alien employees who unlawfully seek or obtain work. Surely Congress’ decision not to extend its express pre-emption provision to state or local laws like §5(C) is more probative of its intent on the subject of pre-emption than its decision not to impose federal criminal penalties for unauthorized work. In any event, the point I wish to emphasize is that inferences can be drawn either way. There are no necessary inferences that point decisively for or against pre-emption. Therefore, if we take seriously that state employment regulation is a traditional state concern and can be pre-empted only on a showing of “clear and manifest” congressional intent as required by De Canas , then §5(C) must survive. “Our precedents establish that a high threshold must be met if a state law is to be pre-empted for conflicting with the purposes of a fed- eral Act.” Chamber of Commerce of United States of America v. Whiting , 563 U. S. ___, ___ (2011) (plurality opinion) (slip op., at 22) (internal quotation marks omitted). I do not believe the United States has surmounted that barrier here. Section 6 I also disagree with the Court’s decision that §6 is pre-empted. This provision adds little to the authority that Arizona officers already possess, and whatever additional authority it confers is consistent with federal law. Section 6 amended an Arizona statute that authorizes warrantless arrests. See Ariz. Rev. Stat. §13–3883 (West 2010). Before §6 was added, that statute already permitted arrests without a warrant for felonies, misdemeanors committed in the arresting officer’s presence, petty offenses, and certain traffic-related criminal violations. See §§13–3883(A)(1)–(4). Largely duplicating the authority already conferred by these prior subsections, §6 added a new subsection, §13–3883(A)(5) (West Supp. 2011), that authorizes officers to make warrantless arrests on probable cause that the arrestee has committed a “public offense” for which the arrestee is removable from the United States. A “public offense” is defined as conduct that is punishable by imprisonment or a fine according to the law of the State where the conduct occurred and that would be punishable under Arizona law had the conduct occurred in Arizona. See §13–105(27). In what way, if any, does §6 enlarge the arrest authority of Arizona officers? It has been suggested that §6 confers new authority in the following three circumstances: (1) where the arrestee committed but has not been charged with committing an offense in another State; (2) where the officer has probable cause to believe the arrestee committed an offense for which he was previously arrested but not prosecuted; and (3) where the arrestee committed but has already served the sentence for a removable offense. 641 F.3d 359, 361 (CA9 2011). These are exceedingly narrow categories, involving circumstances that will rarely arise. But such cases are possible, and therefore we must decide whether there are circumstances under which fed- eral law precludes a state officer from making an arrest based on probable cause that the arrestee committed a removable offense. A The idea that state and local officers may carry out arrests in the service of federal law is not unprecedented. As previously noted, our cases establish that state and local officers may make warrantless arrests for violations of federal law and that “in the absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity.” Di Re , 332 U. S., at 589; see also Miller, 357 U. S., at 305 (stating that, where a state officer makes an arrest based on fed- eral law, “the lawfulness of the arrest without warrant is to be determined by reference to state law”). Therefore, given the premise, which I understand both the United States and the Court to accept, that state and local officers do have inherent authority to make arrests in aid of fed- eral law, we must ask whether Congress has done anything to curtail or pre-empt that authority in this particular case. Neither the United States nor the Court goes so far as to say that state and local officers have no power to arrest criminal aliens based on their removability. To do so would fly in the face of 8 U. S. C. §1357(g)(10). Under §§1357(g)(1)–(9), the Federal Government may enter into formal agreements with States and municipalities under which their officers may perform certain duties of a fed- eral immigration officer. But §1357(g)(10)(B) makes clear that States and municipalities need not enter into those agreements “otherwise to cooperate . . . in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” It goes without saying that state and local officers could not provide meaningful cooperation in the apprehension, detention, and ultimate removal of criminal aliens without some power to make arrests. Although §1357(g)(10) contemplates state and local authority to apprehend criminal aliens for the purpose of removal, the Court rejects out of hand any possibility that officers could exercise that authority without federal direction. Despite acknowledging that there is “ambiguity as to what constitutes cooperation,” the Court says that “no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government.” Ante, at 18. The Court adopts an unnecessarily stunted view of cooperation. No one would say that a state or local officer has failed to cooperate by making an on-the-spot arrest to enforce federal law. Unsolicited aid is not necessarily uncooperative. To be sure, were an officer to persist in making an arrest that the officer knows is unwanted, such conduct would not count as cooperation. But nothing in the relevant federal statutes suggests that Congress does not want aliens who have committed removable offenses to be arrested.[ 2 ] To the contrary, §1226(c)(1) commands that the Executive “shall take into custody any alien” who is deportable for having committed a specified offense. And §1226(c)(2) substantially limits the circumstances under which the Executive has discretion to release aliens held in custody under paragraph (1). So if an officer arrests an alien who is removable for having committed one of the crimes listed in §1226(c)(1), the Federal Government is obligated to take the alien into custody. That Congress generally requires the Executive to take custody of criminal aliens casts considerable doubt on the Court’s concern that §6 is an obstacle to the Federal Government’s exercise of discretion. The Court claims that the authority conferred by §6 “could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case” and that this “would allow the State to achieve its own immigration policy,” resulting in the “unnecessary harassment of some aliens . . . whom federal officials determine should not be removed.” Ante, at 17. But §1226(c)(1) belies the Court’s fear. In many, if not most, cases involving aliens who are removable for having committed criminal offenses, Congress has left the Executive no discretion but to take the alien into custody. State and local officers do not frus- trate the removal process by arresting criminal aliens. The Executive retains complete discretion over whether those aliens are ultimately removed. And once the Fed- eral Government makes a determination that a particular criminal alien will not be removed, then Arizona officers are presumably no longer authorized under §6 to arrest the alien. To be sure, not all offenses for which officers have authority to arrest under §6 are covered by §1226(c)(1). As for aliens who have committed those offenses, Congress has given the Executive discretion under §1226(a) over whether to arrest and detain them pending a decision on removal. But the mere fact that the Executive has enforcement discretion cannot mean that the exercise of state police powers in support of federal law is automatically pre-empted. If that were true, then state and local officers could never make arrests to enforce any federal statute because the Executive always has at least some general discretion over the enforcement of federal law as a practical matter. But even assuming that the express statutory grant of discretion in §1226(a) somehow indicates a congressional desire to pre-empt unilateral state and local authority to arrest criminal aliens covered by that provision, §6 is not pre-empted on its face given its substantial overlap with §1226(c)(1). It bears emphasizing that §6 does not mandate the warrantless apprehension of all aliens who have committed crimes for which they are removable. Instead, it only grants state and local officers permission to make such arrests. The trouble with this premature, facial challenge is that it affords Arizona no opportunity to implement its law in a way that would avoid any potential conflicts with federal law. For example, Arizona could promulgate guidelines or regulations limiting the arrest authority conferred by §6 to the crimes specified in §1226(c)(1). And to the extent §1226(c)(1) is unclear about which exact crimes are covered,[ 3 ] Arizona could go even further and identify specific crimes for which there is no doubt an alien would be removable. The point is that there are plenty of permissible applications of §6, and the Court should not invalidate the statute at this point without at least some indication that Arizona has implemented it in a manner at odds with Congress’ clear and manifest intent. We have said that a facial challenge to a statute is “the most difficult challenge to mount successfully” because “the challenger must establish that no set of circumstances exists under which the [statute] would be valid.” United States v. Salerno , 481 U.S. 739 , 745 (1987); see also Anderson v. Edwards , 514 U.S. 143 , 155, n. 6 (1995) (applying the Salerno standard in a pre-emption case). As to §6, I do not believe the United States has carried that heavy burden. B Finally, the Court tells us that §6 conflicts with federal law because it provides state and local officers with “even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers.” Ante, at 16–17. The Court points to 8 U. S. C. §1357(a)(2), which empowers “authorized” offi- cers and employees of ICE to make arrests without a fed- eral warrant if “the alien so arrested is in the United States in violation of any [immigration] law or regulation and is likely to escape before a warrant can be obtained for his arrest.” Because §6 would allow Arizona officers to make arrests “regardless of whether a federal warrant has issued or the alien is likely to escape,” ante, at 17, the Court concludes that §6 is an obstacle to the accomplishment of Congress’ objectives. But §6 is an obstacle only to the extent it conflicts with Congress’ clear and manifest intent to preclude state and local officers from making arrests except where a federal warrant has issued or the arrestee is likely to escape. By granting warrantless arrest authority to federal officers , Congress has not manifested an unmistakable intent to strip state and local officers of their warrantless arrest authority under state law. Likewise, limitations on federal arrest authority do not mean that the arrest authority of state and local officers must be similarly limited. Our opinion in Miller, 357 U.S. 301 , is instructive. In that case, a District of Columbia officer, accompanied by a federal officer, made an arrest based on a suspected federal narcotics offense. Id., at 303–304. The federal officer did not have statutory authorization to arrest without a warrant, but the local officer did. Id., at 305. We held that District of Columbia law dictated the lawfulness of the arrest. Id., at 305–306. Where a state or local officer makes a warrantless arrest to enforce federal law, we said that “the lawfulness of the arrest without warrant is to be determined by reference to state law.” Id., at 305. Under §6, an Arizona officer may be authorized to make an arrest that a federal officer may not be authorized to make under §1357(a)(2). As Miller makes clear, that fact alone does not render arrests by state or local officers pursuant to §6 unlawful. Nor does it manifest a clear congressional intent to displace the exercise of state police powers that are brought to bear in aid of federal law. Notes 1 When the Real ID Act takes effect, the Federal Government will no longer accept state forms of identification that fail to meet certain federal requirements. §202(a)(1), 119Stat. 312. One requirement is that any identification be issued only on proof that the applicantis lawfully present in the United States. §202(c)(2)(B), id., at 313. I anticipate that most, if not all, States will eventually issue forms of identification that suffice to establish lawful presence under §2(B). 2 That goes for the Executive Branch as well, which has made the apprehension and removal of criminal aliens a priority. See App. 108. 3 I readily admit that it can be difficult to determine whether aparticular conviction will necessarily make an alien removable. See Padilla v. Kentucky , 559 U. S. ___, ___ (2010) (Alito, J., concurring in judgment) (slip op., at 4).

The Supreme Court of the United States reviewed Arizona's Support Our Law Enforcement and Safe Neighborhoods Act, also known as S.B. 1070, which aimed to address the state's large number of illegal aliens. The Court examined four provisions of the law, including the creation of new state offenses for failing to comply with federal alien-registration requirements and for unauthorized aliens seeking work. The Court also looked at provisions granting state and local law enforcement officers authority to arrest individuals suspected of being removable from the country and requiring officers to verify immigration status during stops, detentions, or arrests. The Court's opinion, delivered by Justice Kennedy, concluded that federal law preempts and renders invalid certain provisions of Arizona's law. Specifically, the Court found that Section 3, which made failure to comply with federal alien-registration requirements a state misdemeanor, and Section 5(C), which made it a misdemeanor for unauthorized aliens to seek or engage in work, were preempted by federal law. On the other hand, the Court upheld Section 6, authorizing officers to arrest without a warrant individuals suspected of being removable, and Section 2(B), requiring officers to verify immigration status, as not posing an obstacle to federal law. The Court's decision considered the balance between federal and state powers in immigration enforcement, with Justice Kennedy emphasizing that state laws could aid in the enforcement of federal immigration standards. However, the Court struck down provisions that conflicted with or posed an obstacle to Congress's objectives in enacting federal immigration laws.

Immigration & National Security

Clapper v. Amnesty Int'l USA

https://supreme.justia.com/cases/federal/us/568/398/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 11–1025 _________________ JAMES R. CLAPPER, Jr., DIRECTOR OF NATIONAL INTELLIGENCE, et al., PETITIONERS v. AMNESTY INTERNATIONAL USA et al. on writ of certiorari to the united states court of appeals for the second circuit [February 26, 2013] Justice Alito delivered the opinion of the Court. Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U. S. C. §1881a (2006 ed., Supp. V), allows the Attorney General and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not “United States persons”[ 1 ] and are reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveillance Court’s approval. Respondents are United States persons whose work, they allege, requires them to engage in sensitive international communications with individ- uals who they believe are likely targets of surveillance under §1881a. Respondents seek a declaration that §1881a is unconstitutional, as well as an injunction against §1881a-authorized surveillance. The question before us is whether respondents have Article III standing to seek this prospective relief. Respondents assert that they can establish injury in fact because there is an objectively reasonable likelihood that their communications will be acquired under §1881a at some point in the future. But respondents’ theory of future injury is too speculative to satisfy the wellestablished requirement that threatened injury must be “certainly impending.” E.g. , Whitmore v. Arkansas , 495 U.S. 149 , 158 (1990). And even if respondents could demonstrate that the threatened injury is certainly impending, they still would not be able to establish that this injury is fairly traceable to §1881a. As an alternative argument, respondents contend that they are suffering present injury because the risk of §1881a-authorized surveillance al- ready has forced them to take costly and burdensome meas- ures to protect the confidentiality of their international communications. But respondents cannot manufacture stand- ing by choosing to make expenditures based on hypothetical future harm that is not certainly impending. We therefore hold that respondents lack Article III standing. I A In 1978, after years of debate, Congress enacted the Foreign Intelligence Surveillance Act (FISA) to authorize and regulate certain governmental electronic surveillance of communications for foreign intelligence purposes. See 92Stat. 1783, 50 U. S. C. §1801 et seq. ; 1 D. Kris & J. Wilson, National Security Investigations & Prosecutions §§3.1, 3.7 (2d ed. 2012) (hereinafter Kris & Wilson). In enacting FISA, Congress legislated against the backdrop of our decision in United States v. United States Dist. Court for Eastern Dist. of Mich. , 407 U.S. 297 (1972) ( Keith ), in which we explained that the standards and procedures that law enforcement officials must follow when conducting “surveillance of ‘ordinary crime’ ” might not be required in the context of surveillance conducted for domestic national-security purposes. Id. , at 322–323. Although the Keith opinion expressly disclaimed any ruling “on the scope of the President’s surveillance power with respect to the activities of foreign powers,” id. , at 308, it implicitly suggested that a special framework for foreign intelligence surveillance might be constitutionally permissible, see id. , at 322–323. In constructing such a framework for foreign intel- ligence surveillance, Congress created two specialized courts. In FISA, Congress authorized judges of the Foreign Intelligence Surveillance Court (FISC) to approve electronic surveillance for foreign intelligence purposes if there is probable cause to believe that “the target of the electronic surveillance is a foreign power or an agent of a foreign power,” and that each of the specific “facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.” §105(a)(3), 92Stat. 1790; see §§105(b)(1)(A), (b)(1)(B), ibid. ; 1 Kris & Wilson §7:2, at 194–195; id., §16:2, at 528–529. Additionally, Congress vested the Foreign Intelligence Surveillance Court of Review with jurisdiction to review any denials by the FISC of applications for electronic surveillance. §103(b), 92Stat. 1788; 1 Kris & Wilson §5:7, at 151–153. In the wake of the September 11th attacks, President George W. Bush authorized the National Security Agency (NSA) to conduct warrantless wiretapping of telephone and e-mail communications where one party to the communication was located outside the United States and a participant in “the call was reasonably believed to be a member or agent of al Qaeda or an affiliated terrorist organization,” App. to Pet. for Cert. 403a. See id. , at 263a–265a, 268a, 273a–279a, 292a–293a; American Civil Liberties Union v. NSA , 493 F.3d 644, 648 (CA6 2007) ( ACLU ) (opinion of Batchelder, J.). In January 2007, the FISC issued orders authorizing the Government to target international communications into or out of the United States where there was probable cause to believe that one participant to the communication was a member or agent of al Qaeda or an associated terrorist organization. App. to Pet. for Cert. 312a, 398a, 405a. These FISC orders sub- jected any electronic surveillance that was then occur- ring under the NSA’s program to the approval of the FISC. Id. , at 405a; see id. , at 312a, 404a. After a FISC Judge subsequently narrowed the FISC’s authorization of such surveillance, however, the Executive asked Congress to amend FISA so that it would provide the intelligence community with additional authority to meet the challenges of modern technology and international terrorism. Id. , at 315a–318a, 331a–333a, 398a; see id. , at 262a, 277a–279a, 287a. When Congress enacted the FISA Amendments Act of 2008 (FISA Amendments Act), 122Stat. 2436, it left much of FISA intact, but it “established a new and independent source of intelligence collection authority, beyond that granted in traditional FISA.” 1 Kris & Wilson §9:11, at 349–350. As relevant here, §702 of FISA, 50 U. S. C. §1881a (2006 ed., Supp. V), which was enacted as part of the FISA Amendments Act, supplements pre-existing FISA authority by creating a new framework under which the Government may seek the FISC’s authorization of certain foreign intelligence surveillance targeting the communications of non-U. S. persons located abroad. Unlike traditional FISA surveillance, §1881a does not require the Government to demonstrate probable cause that the target of the electronic surveillance is a for- eign power or agent of a foreign power. Compare §§1805(a)(2)(A), (a)(2)(B), with §§1881a(d)(1), (i)(3)(A); 638 F.3d 118, 126 (CA2 2011); 1 Kris & Wilson §16:16, at 584. And, unlike traditional FISA, §1881a does not require the Government to specify the nature and location of each of the particular facilities or places at which the electronic surveillance will occur. Compare §§1805(a)(2)(B), (c)(1) (2006 ed. and Supp. V), with §§1881a(d)(1), (g)(4), (i)(3)(A); 638 F. 3d, at 125–126; 1 Kris & Wilson §16:16, at 585.[ 2 ] The present case involves a constitutional challenge to §1881a. Surveillance under §1881a is subject to statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment. Section 1881a provides that, upon the issuance of an order from the Foreign Intelligence Surveillance Court, “the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year . . . , the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” §1881a(a). Surveillance under §1881a may not be intentionally targeted at any person known to be in the United States or any U. S. person reasonably believed to be located abroad. §§1881a(b)(1)–(3); see also §1801(i). Additionally, acquisitions under §1881a must comport with the Fourth Amendment. §1881a(b)(5). Moreover, surveillance under §1881a is subject to congressional oversight and several types of Executive Branch review. See §§1881a(f)(2), ( l ); Amnesty Int’l USA v. McConnell , 646 F. Supp. 2d 633, 640–641 (SDNY 2009). Section 1881a mandates that the Government obtain the Foreign Intelligence Surveillance Court’s approval of “targeting” procedures, “minimization” procedures, and a governmental certification regarding proposed surveillance. §§1881a(a), (c)(1), (i)(2), (i)(3). Among other things, the Government’s certification must attest that (1) pro- cedures are in place “that have been approved, have been submitted for approval, or will be submitted with the certification for approval by the [FISC] that are reason- ably designed” to ensure that an acquisition is “limited to targeting persons reasonably believed to be located outside” the United States; (2) minimization procedures adequately restrict the acquisition, retention, and dissemination of nonpublic information about unconsenting U. S. persons, as appropriate; (3) guidelines have been adopted to ensure compliance with targeting limits and the Fourth Amendment; and (4) the procedures and guidelines referred to above comport with the Fourth Amendment. §1881a(g)(2); see §1801(h). The Foreign Intelligence Surveillance Court’s role includes determining whether the Government’s certifi- cation contains the required elements. Additionally, the Court assesses whether the targeting procedures are “reasonably designed” (1) to “ensure that an acquisition . . . is limited to targeting persons reasonably believed to be located outside the United States” and (2) to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known . . . to be located in the United States.” §1881a(i)(2)(B). The Court analyzes whether the minimization procedures “meet the definition of minimization procedures under section 1801(h) . . . , as appropriate.” §1881a(i)(2)(C). The Court also assesses whether the targeting and minimization procedures are consistent with the statute and the Fourth Amendment. See §1881a(i)(3)(A).[ 3 ] B Respondents are attorneys and human rights, labor, legal, and media organizations whose work allegedly requires them to engage in sensitive and sometimes privileged telephone and e-mail communications with colleagues, clients, sources, and other individuals located abroad. Respondents believe that some of the people with whom they exchange foreign intelligence information are likely targets of surveillance under §1881a. Specifically, respondents claim that they communicate by telephone and e-mail with people the Government “believes or believed to be associated with terrorist organizations,” “people located in geographic areas that are a special focus” of the Government’s counterterrorism or diplomatic efforts, and activists who oppose governments that are supported by the United States Government. App. to Pet. for Cert. 399a. Respondents claim that §1881a compromises their ability to locate witnesses, cultivate sources, obtain information, and communicate confidential information to their clients. Respondents also assert that they “have ceased engaging” in certain telephone and e-mail conversations. Id., at 400a. According to respondents, the threat of surveillance will compel them to travel abroad in order to have in-person conversations. In addition, respondents declare that they have undertaken “costly and burdensome measures” to protect the confidentiality of sensitive communications. Ibid. C On the day when the FISA Amendments Act was en- acted, respondents filed this action seeking (1) a declaration that §1881a, on its face, violates the Fourth Amendment, the First Amendment, Article III, and separation-of-powers principles and (2) a permanent injunction against the use of §1881a. Respondents assert what they characterize as two separate theories of Article III standing. First, they claim that there is an objectively reasonable likelihood that their communications will be acquired under §1881a at some point in the future, thus causing them injury. Second, respondents maintain that the risk of surveillance under §1881a is so substantial that they have been forced to take costly and burdensome measures to protect the confidentiality of their international communications; in their view, the costs they have incurred constitute present injury that is fairly traceable to §1881a. After both parties moved for summary judgment, the District Court held that respondents do not have standing. McConnell , 646 F. Supp. 2d, at 635. On appeal, however, a panel of the Second Circuit reversed. The panel agreed with respondents’ argument that they have standing due to the objectively reasonable likelihood that their communications will be intercepted at some time in the future. 638 F. 3d, at 133, 134, 139. In addition, the panel held that respondents have established that they are suffering “ present injuries in fact—economic and professional harms—stemming from a reasonable fear of future harmful government conduct.” Id. , at 138. The Second Circuit denied rehearing en banc by an equally divided vote. 667 F.3d 163 (2011). Because of the importance of the issue and the novel view of standing adopted by the Court of Appeals, we granted certiorari, 566 U. S. ___ (2012), and we now reverse. II Article III of the Constitution limits federal courts’ jurisdiction to certain “Cases” and “Controversies.” As we have explained, “[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” DaimlerChrysler Corp. v. Cuno , 547 U.S. 332 , 341 (2006) (internal quotation marks omitted); Raines v. Byrd , 521 U.S. 811 , 818 (1997) (internal quotation marks omitted); see, e.g. , Summers v. Earth Island Institute , 555 U.S. 488 , 492–493 (2009). “One element of the case-or-controversy requirement” is that plaintiffs “must establish that they have standing to sue.” Raines , supra, at 818; see also Summers , supra , at 492–493; DaimlerChrysler Corp. , supra , at 342; Lujan v. Defenders of Wildlife , 504 U.S. 555 , 560 (1992). The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches. Summers , supra , at 492–493; Daimler - Chrysler Corp. , supra , at 341–342, 353; Raines , supra , at 818–820; Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. , 454 U.S. 464 , 471–474 (1982); Schlesinger v. Reservists Comm. to Stop the War , 418 U.S. 208 , 221–222 (1974). In keeping with the purpose of this doctrine, “[o]ur standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Raines , supra , at 819–820; see Valley Forge Christian College , supra , at 473–474; Schlesinger , supra , at 221–222. “Relaxation of standing requirements is directly related to the expansion of judicial power,” United States v. Richardson , 418 U.S. 166 , 188 (1974) (Powell, J., concurring); see also Summers , supra , at 492–493; Schlesinger , supra , at 222, and we have often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs, see, e.g. , Richardson , supra , at 167–170 (plaintiff lacked standing to challenge the constitutionality of a statute permitting the Central Intelligence Agency to account for its expenditures solely on the certificate of the CIA Director); Schlesinger , supra , at 209–211 (plaintiffs lacked standing to challenge the Armed Forces Reserve membership of Members of Congress); Laird v. Tatum , 408 U.S. 1 , 11–16 (1972) (plaintiffs lacked standing to challenge an Army intelligence-gathering program). To establish Article III standing, an injury must be “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed Farms , 561 U. S. ___, ___ (2010) (slip op., at 7); see also Summers , supra , at 493; Defenders of Wildlife , 504 U. S., at 560–561. “Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is certainly impending.” Id. , at 565, n. 2 (internal quotation marks omitted). Thus, we have repeatedly reiterated that “threatened injury must be certainly impending to constitute injury in fact,” and that “[a]llegations of possible future injury” are not sufficient. Whitmore , 495 U. S., at 158 (emphasis added; internal quotation marks omitted); see also Defenders of Wildlife , supra , at 565, n. 2, 567, n. 3; see DaimlerChrysler Corp. , supra , at 345; Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. , 528 U.S. 167 , 190 (2000); Babbitt v. Farm Workers , 442 U.S. 289 , 298 (1979). III A Respondents assert that they can establish injury in fact that is fairly traceable to §1881a because there is an objectively reasonable likelihood that their communications with their foreign contacts will be intercepted under §1881a at some point in the future. This argument fails. As an initial matter, the Second Circuit’s “objectively reasonable likelihood” standard is inconsistent with our requirement that “threatened injury must be certainly impending to constitute injury in fact.” Whitmore , supra , at 158 (internal quotation marks omitted); see also DaimlerChrysler Corp. , supra , at 345; Laidlaw , supra , at 190; Defenders of Wildlife , supra , at 565, n. 2; Babbitt , supra , at 298. Furthermore, respondents’ argument rests on their highly speculative fear that: (1) the Government will decide to target the communications of non-U. S. persons with whom they communicate; (2) in doing so, the Government will choose to invoke its authority under §1881a rather than utilizing another method of surveillance; (3) the Article III judges who serve on the Foreign Intelligence Surveillance Court will conclude that the Government’s proposed surveillance procedures satisfy §1881a’s many safeguards and are consistent with the Fourth Amendment; (4) the Government will succeed in inter- cepting the communications of respondents’ contacts; and (5) respondents will be parties to the particular communications that the Government intercepts. As discussed below, respondents’ theory of standing, which relies on a highly attenuated chain of possibilities, does not satisfy the requirement that threatened injury must be certainly impending. See Summers , supra , at 496 (rejecting a standing theory premised on a speculative chain of possibilities); Whitmore , supra , at 157–160 (same). Moreover, even if respondents could demonstrate injury in fact, the second link in the above-described chain of contingencies—which amounts to mere speculation about whether surveillance would be under §1881a or some other authority—shows that respondents cannot satisfy the requirement that any injury in fact must be fairly traceable to §1881a. First, it is speculative whether the Government will imminently target communications to which respondents are parties. Section 1881a expressly provides that respondents, who are U. S. persons, cannot be targeted for surveillance under §1881a. See §§1881a(b)(1)–(3); 667 F. 3d, at 173 (Raggi, J., dissenting from denial of rehearing en banc). Accordingly, it is no surprise that respondents fail to offer any evidence that their communications have been monitored under §1881a, a failure that substantially undermines their standing theory. See ACLU , 493 F. 3d, at 655–656, 673–674 (opinion of Batchelder, J.) (concluding that plaintiffs who lacked evidence that their communications had been intercepted did not have standing to challenge alleged NSA surveillance). Indeed, respondents do not even allege that the Government has sought the FISC’s approval for surveillance of their communications. Accordingly, respondents’ theory necessarily rests on their assertion that the Government will target other individuals —namely, their foreign contacts. Yet respondents have no actual knowledge of the Government’s §1881a targeting practices. Instead, respondents merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired under §1881a. See 667 F. 3d, at 185–187 (opinion of Raggi, J.). For example, journalist Christopher Hedges states: “I have no choice but to assume that any of my international communications may be subject to government surveillance, and I have to make decisions . . . in light of that assumption .” App. to Pet. for Cert. 366a (emphasis added and deleted). Similarly, attorney Scott McKay asserts that, “[b]ecause of the [FISA Amendments Act], we now have to assume that every one of our international communications may be monitored by the government.” Id. , at 375a (emphasis added); see also id. , at 337a, 343a–344a, 350a, 356a. “The party invoking federal jurisdiction bears the burden of establishing” standing—and, at the summary judgment stage, such a party “can no longer rest on . . . ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts.’ ” Defenders of Wildlife , 504 U. S., at 561. Respondents, however, have set forth no specific facts demonstrating that the communications of their foreign contacts will be targeted. More- over, because §1881a at most authorizes —but does not mandate or direct —the surveillance that respondents fear, respondents’ allegations are necessarily conjectural. See United Presbyterian Church in U. S. A. v. Reagan , 738 F.2d 1375, 1380 (CADC 1984) (Scalia, J.); 667 F. 3d, at 187 (opinion of Raggi, J.). Simply put, respondents can only speculate as to how the Attorney General and the Director of National Intelligence will exercise their discretion in determining which communications to target.[ 4 ] Second, even if respondents could demonstrate that the targeting of their foreign contacts is imminent, respondents can only speculate as to whether the Government will seek to use §1881aauthorized surveillance (rather than other methods) to do so. The Government has numerous other methods of conducting surveillance, none of which is challenged here. Even after the enactment of the FISA Amendments Act, for example, the Government may still conduct electronic surveillance of persons abroad under the older provisions of FISA so long as it satisfies the applicable requirements, including a demonstration of probable cause to believe that the person is a foreign power or agent of a foreign power. See §1805. The Government may also obtain information from the intelligence services of foreign nations. Brief for Petitioners 33. And, although we do not reach the question, the Government contends that it can conduct FISA-exempt human and technical surveillance programs that are governed by Executive Order 12333. See Exec. Order No. 12333, §§1.4, 2.1–2.5, 3 CFR 202, 210–212 (1981), reprinted as amended, note following 50 U. S. C. §401, pp. 543, 547–548. Even if respondents could demonstrate that their foreign contacts will imminently be targeted—indeed, even if they could show that interception of their own communications will imminently occur—they would still need to show that their injury is fairly traceable to §1881a. But, because respondents can only speculate as to whether any (asserted) interception would be under §1881a or some other authority, they cannot satisfy the “fairly traceable” requirement. Third, even if respondents could show that the Government will seek the Foreign Intelligence Surveillance Court’s authorization to acquire the communications of respondents’ foreign contacts under §1881a, respondents can only speculate as to whether that court will authorize such surveillance. In the past, we have been reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment. In Whitmore , for example, the plaintiff’s theory of standing hinged largely on the probability that he would obtain federal habeas relief and be convicted upon retrial. In holding that the plaintiff lacked standing, we explained that “[i]t is just not possible for a litigant to prove in advance that the judicial system will lead to any particular result in his case.” 495 U. S., at 159–160; see Defenders of Wildlife , 504 U. S., at 562. We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors. Section 1881a mandates that the Government must obtain the Foreign Intelligence Surveillance Court’s approval of targeting procedures, minimization procedures, and a governmental certification regarding proposed surveillance. §§1881a(a), (c)(1), (i)(2), (i)(3). The Court must, for example, determine whether the Government’s procedures are “reasonably designed . . . to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons.” §1801(h); see §§1881a(i)(2), (i)(3)(A). And, critically, the Court must also assess whether the Government’s targeting and minimization procedures comport with the Fourth Amend- ment. §1881a(i)(3)(A). Fourth, even if the Government were to obtain the Foreign Intelligence Surveillance Court’s approval to tar- get respondents’ foreign contacts under §1881a, it is unclear whether the Government would succeed in acquiring the communications of respondents’ foreign contacts. And fifth, even if the Government were to conduct surveillance of respondents’ foreign contacts, respondents can only speculate as to whether their own communications with their foreign contacts would be incidentally acquired. In sum, respondents’ speculative chain of possibilities does not establish that injury based on potential future surveillance is certainly impending or is fairly traceable to §1881a.[ 5 ] B Respondents’ alternative argument—namely, that they can establish standing based on the measures that they have undertaken to avoid §1881a-authorized surveillance—fares no better. Respondents assert that they are suffering ongoing injuries that are fairly traceable to §1881a because the risk of surveillance under §1881a requires them to take costly and burdensome measures to protect the confidentiality of their communications. Respondents claim, for instance, that the threat of surveillance sometimes compels them to avoid certain e-mail and phone conversations, to “tal[k] in generalities rather than specifics,” or to travel so that they can have in-person conversations. Tr. of Oral Arg. 38; App. to Pet. for Cert. 338a, 345a, 367a, 400a.[ 6 ] The Second Circuit panel concluded that, because respondents are already suffering such ongoing injuries, the likelihood of interception under §1881a is relevant only to the question whether respondents’ ongoing injuries are “fairly traceable” to §1881a. See 638 F. 3d, at 133–134; 667 F. 3d, at 180 (opinion of Raggi, J.). Analyzing the “fairly traceable” element of standing under a relaxed reasonableness standard, see 638 F. 3d, at 133–134, the Second Circuit then held that “plaintiffs have established that they suffered present injuries in fact—economic and professional harms—stemming from a reasonable fear of future harmful government conduct,” id. , at 138. The Second Circuit’s analysis improperly allowed respondents to establish standing by asserting that they suffer present costs and burdens that are based on a fear of surveillance, so long as that fear is not “fanciful, paranoid, or otherwise unreasonable.” See id. , at 134. This improperly waters down the fundamental requirements of Article III. Respondents’ contention that they have standing because they incurred certain costs as a reasonable reaction to a risk of harm is unavailing—because the harm respondents seek to avoid is not certainly impending. In other words, respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending. See Pennsylvania v. New Jersey , 426 U.S. 660 , 664 (1976) ( per curiam ); National Family Planning & Reproductive Health Assn. , Inc ., 468 F.3d 826 , 831 (CADC 2006). Any ongoing injuries that respondents are suffering are not fairly traceable to §1881a. If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear. As Judge Raggi accurately noted, under the Second Circuit panel’s reasoning, respondents could, “for the price of a plane ticket, . . . transform their standing burden from one requiring a showing of actual or imminent . . . interception to one requiring a showing that their subjective fear of such interception is not fanciful, irrational, or clearly unreasonable.” 667 F. 3d, at 180 (internal quotation marks omitted). Thus, allowing respondents to bring this action based on costs they incurred in response to a speculative threat would be tantamount to accepting a repackaged version of respondents’ first failed theory of standing. See ACLU , 493 F. 3d, at 656–657 (opinion of Batchelder, J.). Another reason that respondents’ present injuries are not fairly traceable to §1881a is that even before §1881a was enacted, they had a similar incentive to engage in many of the countermeasures that they are now taking. See id., at 668–670. For instance, respondent Scott McKay’s declaration describes—and the dissent heavily relies on—Mr. McKay’s “knowledge” that thousands of communications involving one of his clients were monitored in the past. App. to Pet. for Cert. 370a; post, at 4, 7–8. But this surveillance was conducted pursuant to FISA authority that predated §1881a. See Brief for Petitioners 32, n. 11; Al-Kidd v. Gonzales , No. 05–cv–93, 2008 WL 5123009 (D Idaho, Dec. 4, 2008). Thus, because the Government was allegedly conducting surveillance of Mr. McKay’s client before Congress enacted §1881a, it is difficult to see how the safeguards that Mr. McKay now claims to have implemented can be traced to §1881a. Because respondents do not face a threat of certainly impending interception under §1881a, the costs that they have incurred to avoid surveillance are simply the product of their fear of surveillance,[ 7 ] and our decision in Laird makes it clear that such a fear is insufficient to create standing. See 408 U. S., at 10–15. The plaintiffs in Laird argued that their exercise of First Amendment rights was being “chilled by the mere existence, without more, of [the Army’s] investigative and data-gathering activity.” Id. , at 10. While acknowledging that prior cases had held that constitutional violations may arise from the chilling effect of “regulations that fall short of a direct prohibi- tion against the exercise of First Amendment rights,” the Court declared that none of those cases involved a “chilling effect aris[ing] merely from the individual’s knowledge that a governmental agency was engaged in certain activities or from the individual’s concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual.” Id. , at 11. Because “[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm,” id. , at 13–14, the plaintiffs in Laird —and respondents here—lack standing. See ibid. ; ACLU , supra , at 661–662 (opinion of Batchelder, J.) (holding that plaintiffs lacked standing because they “allege[d] only a subjective apprehension” of alleged NSA surveillance and “a personal (self-imposed) unwillingness to communicate”); United Presbyterian Church , 738 F. 2d, at 1378 (holding that plaintiffs lacked standing to challenge the legality of an Executive Order relating to surveillance because “the ‘chilling effect’ which is produced by their fear of being subjected to illegal surveillance and which deters them from conducting constitutionally protected activities, is foreclosed as a basis for standing” by Laird ). For the reasons discussed above, respondents’ self-inflicted injuries are not fairly traceable to the Government’s purported activities under §1881a, and their subjective fear of surveillance does not give rise to standing. IV A Respondents incorrectly maintain that “[t]he kinds of injuries incurred here—injuries incurred because of [respondents’] reasonable efforts to avoid greater injuries that are otherwise likely to flow from the conduct they challenge—are the same kinds of injuries that this Court held to support standing in cases such as” Laidlaw, Meese v. Keene , 481 U.S. 465 (1987), and Monsanto. Brief for Respondents 24. As an initial matter, none of these cases holds or even suggests that plaintiffs can establish standing simply by claiming that they experienced a “chilling effect” that resulted from a governmental policy that does not regulate, constrain, or compel any action on their part. Moreover, each of these cases was very different from the present case. In Laidlaw , plaintiffs’ standing was based on “the proposition that a company’s continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other economic and aesthetic harms.” 528 U. S., at 184. Because the unlawful discharges of pollutants were “concededly ongoing,” the only issue was whether “nearby residents”—who were members of the organizational plaintiffs—acted reasonably in refraining from using the polluted area. Id. , at 183–184. Laidlaw is therefore quite unlike the present case, in which it is not “concede[d]” that respondents would be subject to unlawful surveillance but for their decision to take preventive measures. See ACLU , 493 F. 3d, at 686 (opinion of Batchelder, J.) (distinguishing Laidlaw on this ground); id. , at 689–690 (Gibbons, J., concurring) (same); 667 F. 3d, at 182–183 (opinion of Raggi, J.) (same). Laidlaw would resemble this case only if (1) it were undisputed that the Government was using §1881a-authorized surveillance to acquire respondents’ communications and (2) the sole dispute concerned the reasonableness of respondents’ preventive measures. In Keene , the plaintiff challenged the constitutionality of the Government’s decision to label three films as “political propaganda.” 481 U. S., at 467. The Court held that the plaintiff, who was an attorney and a state legislator, had standing because he demonstrated, through “detailed affidavits,” that he “could not exhibit the films without incurring a risk of injury to his reputation and of an impairment of his political career.” Id., at 467, 473–475. Unlike the present case, Keene involved “more than a ‘subjective chill’ ” based on speculation about potential governmental action; the plaintiff in that case was unquestionably regulated by the relevant statute, and the films that he wished to exhibit had already been labeled as “political propaganda.” See ibid. ; ACLU , 493 F. 3d, at 663–664 (opinion of Batchelder, J.); id. , at 691 (Gibbons, J., concurring). Monsanto , on which respondents also rely, is likewise inapposite. In Monsanto , conventional alfalfa farmers had standing to seek injunctive relief because the agency’s decision to deregulate a variety of genetically engineered alfalfa gave rise to a “significant risk of gene flow to non-genetically-engineered varieties of alfalfa.” 561 U. S., at ___ (slip op., at 13). The standing analysis in that case hinged on evidence that genetically engineered alfalfa “ ‘seed fields [we]re currently being planted in all the major alfalfa seed production areas’ ”; the bees that pollinate alfalfa “ ‘have a range of at least two to ten miles’ ”; and the alfalfa seed farms were concentrated in an area well within the bees’ pollination range. Id. , at ___–___, and n. 3 (slip op., at 11–12, and n. 3). Unlike the conventional alfalfa farmers in Monsanto , however, respondents in the present case present no concrete evidence to substantiate their fears, but instead rest on mere conjecture about possible governmental actions. B Respondents also suggest that they should be held to have standing because otherwise the constitutionality of §1881a could not be challenged. It would be wrong, they maintain, to “insulate the government’s surveillance activities from meaningful judicial review.” Brief for Respondents 60. Respondents’ suggestion is both legally and factually incorrect. First, “ ‘[t]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.’ ” Valley Forge Christian College , 454 U. S., at 489; Schlesinger , 418 U. S., at 227; see also Richardson , 418 U. S., at 179; Raines , 521 U. S., at 835 (Souter, J., joined by Ginsburg, J., concurring in judgment). Second, our holding today by no means insulates §1881a from judicial review. As described above, Congress created a comprehensive scheme in which the Foreign Intelligence Surveillance Court evaluates the Government’s certifications, targeting procedures, and minimization procedures—including assessing whether the targeting and minimization procedures comport with the Fourth Amendment. §§1881a(a), (c)(1), (i)(2), (i)(3). Any dissatisfaction that respondents may have about the Foreign Intelligence Surveillance Court’s rulings—or the congressional delineation of that court’s role—is irrelevant to our standing analysis. Additionally, if the Government intends to use or disclose information obtained or derived from a §1881a acquisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition. §§1806(c), 1806(e), 1881e(a) (2006 ed. and Supp. V).[ 8 ] Thus, if the Government were to prosecute one of respondent-attorney’s foreign clients using §1881a-authorized surveillance, the Government would be required to make a disclosure. Although the foreign client might not have a viable Fourth Amendment claim, see, e.g. , United States v. Verdugo-Urquidez , 494 U.S. 259 , 261 (1990), it is possible that the monitoring of the target’s conversations with his or her attorney would provide grounds for a claim of standing on the part of the attorney. Such an attorney would certainly have a stronger evidentiary basis for establishing standing than do respondents in the present case. In such a situation, unlike in the present case, it would at least be clear that the Government had acquired the foreign client’s communications using §1881a-authorized surveillance. Finally, any electronic communications service provider that the Government directs to assist in §1881a surveillance may challenge the lawfulness of that directive before the FISC. §§1881a(h)(4), (6). Indeed, at the behest of a service provider, the Foreign Intelligence Surveillance Court of Review previously analyzed the constitutionality of electronic surveillance directives issued pursuant to a now-expired set of FISA amendments. See In re Directives Pursuant to Section 105B of Foreign Intelligence Surveillance Act , 551 F.3d 1004, 1006–1016 (2008) (holding that the provider had standing and that the directives were constitutional). *  *  * We hold that respondents lack Article III standing because they cannot demonstrate that the future injury they purportedly fear is certainly impending and because they cannot manufacture standing by incurring costs in anticipation of non-imminent harm. We therefore reverse the judgment of the Second Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 The term “United States person” includes citizens of the United States, aliens admitted for permanent residence, and certain associations and corporations. 50 U. S. C. §1801(i); see §1881(a). 2 Congress recently reauthorized the FISA Amendments Act for another five years. See 126Stat. 1631. 3 The dissent attempts to downplay the safeguards established by §1881a. See post, at 4 (opinion of Breyer, J.). Notably, the dissent does not directly acknowledge that §1881a surveillance must comport with the Fourth Amendment, see §1881a(b)(5), and that the Foreign Intelligence Surveillance Court must assess whether targeting and minimization procedures are consistent with the Fourth Amendment, see §1881a(i)(3)(A). 4 It was suggested at oral argument that the Government could help resolve the standing inquiry by disclosing to a court, perhaps through an in camera proceeding, (1) whether it is intercepting respondents’ communications and (2) what targeting or minimization procedures it is using. See Tr. of Oral Arg. 13–14, 44, 56. This suggestion is puzzling. As an initial matter, it is respondents’ burden to prove their standing by pointing to specific facts, Lujan v. Defenders of Wildlife , 504 U.S. 555 , 561 (1992), not the Government’s burden to disprove standing by revealing details of its surveillance priorities. Moreover, this type of hypothetical disclosure proceeding would allow a terrorist (or his attorney) to determine whether he is currently under U. S. surveillance simply by filing a lawsuit challenging the Government’s surveillance program. Even if the terrorist’s attorney were to comply with a protective order prohibiting him from sharing the Government’s disclosures with his client, the court’s postdisclosure decision about whether to dismiss the suit for lack of standing would surely signal to the terrorist whether his name was on the list of surveillance targets. 5 Our cases do not uniformly require plaintiffs to demonstrate that it is literally certain that the harms they identify will come about. In some instances, we have found standing based on a “substantial risk” that the harm will occur, which may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm. Monsanto Co. v. Geertson Seed Farms , 561 U. S. ___, ___ (2010) (slip op., at 11–12). See also Pennell v. City of San Jose , 485 U.S. 1 , 8 (1988); Blum v. Yaretsky , 457 U.S. 991 , 1000–1001 (1982); Babbitt v. Farm Workers , 442 U.S. 289 , 298 (1979). But to the extent that the “substantial risk” standard is relevant and is distinct from the “clearly impending” requirement, respondents fall short of even that standard, in light of the attenuated chain of inferences necessary to find harm here. See supra, at 11–15. In addition, plaintiffs bear the burden of pleading and proving concrete facts showing that the defendant’s actual action has caused the substantial risk of harm. Plaintiffs cannot rely on speculation about “ ‘the unfettered choices made by independent actors not before the court.’ ” Defenders of Wildlife , 504 U. S., at 562. 6 For all the focus on respondents’ supposed need to travel abroad in light of potential §1881a surveillance, respondents cite only one specific instance of travel: an attorney’s trip to New York City to meet with other lawyers. See App. to Pet. for Cert. 352a. This domestic travel had but a tenuous connection to §1881a, because §1881aauthorized acquisitions “may not intentionally target any person known at the time of acquisition to be located in the United States.” §1881a(b)(1); see also 667 F.3d 163, 202 (CA2 2011) (Jacobs, C. J., dissenting from denial of rehearing en banc); id. , at 185 (opinion of Raggi, J. (same)). 7 Although respondents’ alternative theory of standing rests primarily on choices that they have made based on their subjective fear of surveillance, respondents also assert that third parties might be disinclined to speak with them due to a fear of surveillance. See App. to Pet. for Cert. 372a–373a, 352a–353a. To the extent that such assertions are based on anything other than conjecture, see Defenders of Wildlife , 504 U. S., at 560, they do not establish injury that is fairly traceable to §1881a, because they are based on third parties’ subjective fear of surveillance, see Laird , 408 U. S., at 10–14. 8 The possibility of judicial review in this context is not farfetched. In United States v. Damrah , 412 F.3d 618 (CA6 2005), for example, the Government made a pretrial disclosure that it intended to use FISA evidence in a prosecution; the defendant (unsuccessfully) moved to suppress the FISA evidence, even though he had not been the target of the surveillance; and the Sixth Circuit ultimately held that FISA’s procedures are consistent with the Fourth Amendment. See id. , at 622, 623, 625. SUPREME COURT OF THE UNITED STATES _________________ No. 11–1025 _________________ JAMES R. CLAPPER, Jr., DIRECTOR OF NATIONAL INTELLIGENCE, et al., PETITIONERS v. AMNESTY INTERNATIONAL USA et al. on writ of certiorari to the united states court of appeals for the second circuit [February 26, 2013] Justice Breyer, with whom Justice Ginsburg, Justice Sotomayor, and Justice Kagan join, dissenting. The plaintiffs’ standing depends upon the likelihood that the Government, acting under the authority of 50 U. S. C. §1881a (2006 ed., Supp. V), will harm them by intercepting at least some of their private, foreign, telephone, or e-mail conversations. In my view, this harm is not “speculative.” Indeed it is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen. This Court has often found the occurrence of similar future events sufficiently certain to support standing. I dissent from the Court’s contrary conclusion. I Article III specifies that the “judicial Power” of the United States extends only to actual “Cases” and “Controversies.” §2. It thereby helps to ensure that the legal questions presented to the federal courts will not take the form of abstract intellectual problems resolved in the “rarified atmosphere of a debating society” but instead those questions will be presented “in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. , 454 U.S. 464 , 472 (1982) (purpose of Article III); Lujan v. Defenders of Wildlife , 504 U.S. 555 , 560 (1992) (similar); Babbitt v. Farm Workers , 442 U.S. 289 , 297 (1979) (similar). The Court has recognized that the precise boundaries of the “case or controversy” requirement are matters of “degree . . . not discernible by any precise test.” Ibid. At the same time, the Court has developed a subsidiary set of legal rules that help to determine when the Constitution’s requirement is met. See Lujan , 504 U. S., at 560–561; id., at 583 (Stevens, J., concurring in judgment). Thus, a plaintiff must have “standing” to bring a legal claim. And a plaintiff has that standing, the Court has said, only if the action or omission that the plaintiff challenges has caused, or will cause, the plaintiff to suffer an injury that is “concrete and particularized,” “actual or imminent,” and “redress[able] by a favorable decision.” Id. , at 560–561 (internal quotation marks omitted). No one here denies that the Government’s interception of a private telephone or e-mail conversation amounts to an injury that is “concrete and particularized.” Moreover, the plaintiffs, respondents here, seek as relief a judgment declaring unconstitutional (and enjoining enforcement of) a statutory provision authorizing those interceptions; and, such a judgment would redress the injury by preventing it. Thus, the basic question is whether the injury, i.e., the interception, is “actual or imminent.” II A Since the plaintiffs fear interceptions of a kind authorized by §1881a, it is important to understand just what kind of surveillance that section authorizes. Congress enacted §1881a in 2008, as an amendment to the pre-existing Foreign Intelligence Surveillance Act of 1978, 50 U. S. C. §1801 et seq . Before the amendment, the Act authorized the Government (acting within the United States) to monitor private electronic communications between the United States and a foreign country if (1) the Government’s purpose was, in significant part, to obtain foreign intelligence information (which includes information concerning a “foreign power” or “territory” related to our “national defense” or “security” or the “conduct of . . . foreign affairs”), (2) the Government’s surveillance target was “a foreign power or an agent of a foreign power,” and (3) the Government used surveillance procedures designed to “minimize the acquisition and retention, and prohibit the dissemination, of” any private information acquired about Americans. §§1801(e), (h), 1804(a). In addition the Government had to obtain the approval of the Foreign Intelligence Surveillance Court. To do so, it had to submit an application describing (1) each “specific target,” (2) the “nature of the information sought,” and (3) the “type of communications or activities to be subjected to the surveillance.” §1804(a). It had to certify that, in significant part, it sought to obtain foreign intelligence information. Ibid. It had to demonstrate probable cause to believe that each specific target was “a foreign power or an agent of a foreign power.” §§1804(a), 1805(a). It also had to describe instance-specific procedures to be used to minimize intrusions upon Americans’ privacy (compliance with which the court subsequently could assess). §§1804(a), 1805(d)(3). The addition of §1881a in 2008 changed this prior law in three important ways. First, it eliminated the requirement that the Government describe to the court each specific target and identify each facility at which its surveillance would be directed, thus permitting surveillance on a programmatic, not necessarily individualized, basis. §1881a(g). Second, it eliminated the requirement that a target be a “foreign power or an agent of a foreign power.” Ibid . Third, it diminished the court’s authority to insist upon, and eliminated its authority to supervise, instance-specific privacy-intrusion minimization procedures (though the Government still must use court-approved general minimization procedures). §1881a(e). Thus, using the authority of §1881a, the Government can obtain court approval for its surveillance of electronic communications between places within the United States and targets in foreign territories by showing the court (1) that “a sig-nificant purpose of the acquisition is to obtain foreign intelligence information,” and (2) that it will use general targeting and privacy-intrusion minimization procedures of a kind that the court had previously approved. §1881a(g). B It is similarly important to understand the kinds of communications in which the plaintiffs say they engage and which they believe the Government will intercept. Plaintiff Scott McKay, for example, says in an affidavit (1) that he is a lawyer; (2) that he represented “Mr. Sami Omar Al-Hussayen, who was acquitted in June 2004 on terrorism charges”; (3) that he continues to represent “Mr. Al-Hussayen, who, in addition to facing criminal charges after September 11, was named as a defendant in several civil cases”; (4) that he represents Khalid Sheik Mohammed, a detainee, “before the Military Commissions at Guantánamo Bay, Cuba”; (5) that in representing these clients he “communicate[s] by telephone and email with people outside the United States, including Mr. Al-Hussayen himself,” “experts, investigators, attorneys, family members . . . and others who are located abroad”; and (6) that prior to 2008 “the U. S. government had intercepted some 10,000 telephone calls and 20,000 email communications involving [his client] Al-Hussayen.” App. to Pet. for Cert. 369a–371a. Another plaintiff, Sylvia Royce, says in her affidavit (1) that she is an attorney; (2) that she “represent[s] Mohammedou Ould Salahi, a prisoner who has been held at Guantánamo Bay as an enemy combatant”; (3) that, “[i]n connection with [her] representation of Mr. Salahi, [she] receive[s] calls from time to time from Mr. Salahi’s brother, . . . a university student in Germany”; and (4) that she has been told that the Government has threatened Salahi “that his family members would be arrested and mis-treated if he did not cooperate.” Id ., at 349a–351a. The plaintiffs have noted that McKay no longer represents Mohammed and Royce no longer represents Ould Salahi. Brief for Respondents 15, n. 11. But these changes are irrelevant, for we assess standing as of the time a suit is filed, see Davis v. Federal Election Comm’n , 554 U.S. 724 , 734 (2008), and in any event McKay himself continues to represent Al Hussayen, his partner now represents Mohammed, and Royce continues to represent individuals held in the custody of the U. S. military overseas. A third plaintiff, Joanne Mariner, says in her affidavit (1) that she is a human rights researcher, (2) that “some of the work [she] do[es] involves trying to track down people who were rendered by the CIA to countries in which they were tortured”; (3) that many of those people “the CIA has said are (or were) associated with terrorist organizations”; and (4) that, to do this research, she “communicate[s] by telephone and e-mail with . . . former detainees, lawyers for detainees, relatives of detainees, political activists, journalists, and fixers” “all over the world, including in Jordan, Egypt, Pakistan, Afghanistan, [and] the Gaza Strip.” App. to Pet. for Cert. 343a–344a. Other plaintiffs, including lawyers, journalists, and human rights researchers, say in affidavits (1) that they have jobs that require them to gather information from foreigners located abroad; (2) that they regularly communicate electronically ( e.g. , by telephone or e-mail) with foreigners located abroad; and (3) that in these communications they exchange “foreign intelligence information” as the Act defines it. Id ., at 334a–375a. III Several considerations, based upon the record along with commonsense inferences, convince me that there is a very high likelihood that Government, acting under the authority of §1881a , will intercept at least some of the communications just described. First, the plaintiffs have engaged, and continue to engage, in electronic communications of a kind that the 2008 amendment, but not the prior Act, authorizes the Government to intercept. These communications include discussions with family members of those detained at Guantanamo, friends and acquaintances of those persons, and investigators, experts and others with knowledge of circumstances related to terrorist activities. These persons are foreigners located outside the United States. They are not “foreign power[s]” or “agent[s] of . . . foreign power[s].” And the plaintiffs state that they exchange with these persons “foreign intelligence information,” defined to include information that “relates to” “international terrorism” and “the national defense or the security of the United States.” See 50 U. S. C. §1801 (2006 ed. and Supp. V); see, e.g., App. to Pet. for Cert. 342a, 366a, 373a–374a. Second, the plaintiffs have a strong motive to engage in, and the Government has a strong motive to listen to, conversations of the kind described. A lawyer representing a client normally seeks to learn the circumstances surrounding the crime (or the civil wrong) of which the client is accused. A fair reading of the affidavit of Scott McKay, for example, taken together with elementary considerations of a lawyer’s obligation to his client, indicates that McKay will engage in conversations that concern what suspected foreign terrorists, such as his client, have done; in conversations that concern his clients’ families, colleagues, and contacts; in conversations that concern what those persons (or those connected to them) have said and done, at least in relation to terrorist activities; in conversations that concern the political, social, and commercial environments in which the suspected terrorists have lived and worked; and so forth. See, e.g., id ., at 373a–374a. Journalists and human rights workers have strong similar motives to conduct conversations of this kind. See, e.g. , id ., at 342a (Declaration of Joanne Mariner, stating that “some of the information [she] exchange[s] by telephone and e-mail relates to terrorism and counterterrorism, and much of the information relates to the foreign affairs of the United States”). At the same time, the Government has a strong motive to conduct surveillance of conversations that contain material of this kind. The Government, after all, seeks to learn as much as it can reasonably learn about suspected terrorists (such as those detained at Guantanamo), as well as about their contacts and activities, along with those of friends and family members. See Executive Office of the President, Office of Management and Budget, Statement of Administration Policy on S. 2248, p. 4 (Dec. 17, 2007) (“Part of the value of the [new authority] is to enable the Intelligence Community to collect expeditiously the communications of terrorists in foreign countries who may contact an associate in the United States”). And the Government is motivated to do so, not simply by the desire to help convict those whom the Government believes guilty, but also by the critical, overriding need to protect America from terrorism. See id., at 1 (“Protection of the American people and American interests at home and abroad requires access to timely, accurate, and insightful intelligence on the capabilities, intentions, and activities of . . . terrorists”). Third, the Government’s past behavior shows that it has sought, and hence will in all likelihood continue to seek, information about alleged terrorists and detainees through means that include surveillance of electronic communications. As just pointed out, plaintiff Scott McKay states that the Government (under the authority of the pre-2008 law) “intercepted some 10,000 telephone calls and 20,000 email communications involving [his client] Mr. Al-Hussayen.” App. to Pet. for Cert. 370a. Fourth, the Government has the capacity to conduct electronic surveillance of the kind at issue. To some degree this capacity rests upon technology available to the Government. See 1 D. Kris & J. Wilson, National Security Investigations & Prosecutions §16:6, p. 562 (2d ed. 2012) (“NSA’s technological abilities are legendary”); id., §16:12, at 572–577 (describing the National Security Agency’s capacity to monitor “ very broad facilities” such as international switches). See, e.g. , Lichtblau & Risen, Spy Agency Mined Vast Data Trove, Officials Report, N. Y. Times, Dec. 24, 2005, p. A1 (describing capacity to trace and to analyze large volumes of communications into and out of the United States); Lichtblau & Shane, Bush is Pressed Over New Report on Surveillance, N. Y. Times, May 12, 2006, p. A1 (reporting capacity to obtain access to records of many, if not most, telephone calls made in the United States); Priest & Arkin, A Hidden World, Growing Beyond Control, Washington Post, July 19, 2010, p. A1 (reporting that every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, telephone calls and other types of communications). Cf. Statement of Administration Policy on S. 2248, supra , at 3 (rejecting a provision of the Senate bill that would require intelligence analysts to count “the number of persons located in the United States whose communications were reviewed” as “impossible to implement” (internal quotation marks omitted)). This capacity also includes the Government’s authority to obtain the kind of information here at issue from private carriers such as AT&T and Verizon. See 50 U. S. C. §1881a(h). We are further told by amici that the Government is expanding that capacity. See Brief for Electronic Privacy Information Center et al. as 22–23 (National Security Agency will be able to conduct surveillance of most electronic communications between domestic and foreign points). Of course, to exercise this capacity the Government must have intelligence court authorization. But the Government rarely files requests that fail to meet the statu-tory criteria. See Letter from Ronald Weich, Assistant Attorney General, to Joseph R. Biden, Jr., 1 (Apr. 30, 2012) (In 2011, of the 1,676 applications to the intelligence court, two were withdrawn by the Government, and the remaining 1,674 were approved, 30 with some mod-ification), online at http://www.justice.gov/nsd/foia/ foia_library/2011fisa-ltr.pdf. (as visited Feb. 22, 2013, and available in Clerk of Court’s case file). As the intelligence court itself has stated, its review under §1881a is “nar-rowly circumscribed.” In re Proceedings Required by §702(i) of the FISA Amendments Act of 2008, No. Misc. 08–01 (Aug. 17, 2008), p. 3. There is no reason to believe that the communications described would all fail to meet the conditions necessary for approval. Moreover, compared with prior law, §1881a simplifies and thus expedites the approval process, making it more likely that the Government will use §1881a to obtain the necessary approval. The upshot is that (1) similarity of content, (2) strong motives, (3) prior behavior, and (4) capacity all point to a very strong likelihood that the Government will intercept at least some of the plaintiffs’ communications, including some that the 2008 amendment, §1881a, but not the pre-2008 Act, authorizes the Government to intercept. At the same time, nothing suggests the presence of some special factor here that might support a contrary conclusion. The Government does not deny that it has both the motive and the capacity to listen to communications of the kind described by plaintiffs. Nor does it describe any system for avoiding the interception of an electronic communication that happens to include a party who is an American lawyer, journalist, or human rights worker. One can, of course, always imagine some special circumstance that negates a virtual likelihood, no matter how strong. But the same is true about most, if not all, ordinary inferences about future events. Perhaps, despite pouring rain, the streets will remain dry (due to the presence of a special chemical). But ordinarily a party that seeks to defeat a strong natural inference must bear the burden of showing that some such special circumstance exists. And no one has suggested any such special circumstance here. Consequently, we need only assume that the Government is doing its job (to find out about, and combat, terrorism) in order to conclude that there is a high probability that the Government will intercept at least some elec-tronic communication to which at least some of the plaintiffs are parties. The majority is wrong when it describes the harm threatened plaintiffs as “speculative.” IV A The majority more plausibly says that the plaintiffs have failed to show that the threatened harm is “ certainly impending .” Ante , at 10 (internal quotation marks omitted). But, as the majority appears to concede, see ante, at 15–16, and n. 5, certainty is not, and never has been, the touchstone of standing. The future is inherently uncertain. Yet federal courts frequently entertain actions for injunctions and for declaratory relief aimed at preventing future activities that are reasonably likely or highly likely, but not absolutely certain, to take place. And that degree of certainty is all that is needed to support standing here. The Court’s use of the term “certainly impending” is not to the contrary. Sometimes the Court has used the phrase “certainly impending” as if the phrase described a sufficient, rather than a necessary, condition for jurisdiction. See Pennsylvania v. West Virginia , 262 U.S. 553 , 593 (1923) (“If the injury is certainly impending that is enough”). See also Babbitt , 442 U. S., at 298 (same). On other occasions, it has used the phrase as if it concerned when , not whether , an alleged injury would occur. Thus, in Lujan , 504 U. S., at 564, n. 2, the Court considered a threatened future injury that consisted of harm that plaintiffs would suffer when they “soon” visited a gov-ernment project area that (they claimed) would suffer environmental damage. The Court wrote that a “mere pro-fession of an intent, some day, to return” to the project area did not show the harm was “ imminent ,” for “soon” might mean nothing more than “in this lifetime.” Id., at 564–565, n. 2 (internal quotation marks omitted). Similarly, in McConnell v. Federal Election Comm’n , 540 U.S. 93 (2003), the Court denied standing because the Senator’s future injury (stemming from a campaign finance law) would not affect him until his reelection. That fact, the Court said, made the injury “too remote temporally to satisfy Article III standing.” Id., at 225–226. On still other occasions, recognizing that “ ‘ imminence’ is concededly a somewhat elastic concept,” Lujan , supra , at 565, n. 2, the Court has referred to, or used (sometimes along with “certainly impending”) other phrases such as “reasonable probability” that suggest less than absolute, or literal certainty. See Babbitt , supra , at 298 (plaintiff “must demonstrate a realistic danger of sustaining a direct injury” (emphasis added)); Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. , 528 U.S. 167 , 190 (2000) (“[I]t is the plaintiff’s burden to establish standing by demonstrating that . . . the defendant’s allegedly wrongful behavior will likely occur or continue”). See also Monsanto Co. v. Geertson Seed Farms , 561 U. S. ___, ___ (2010) (slip op., at 11) (“ ‘ “reasonable probability” ’ ” and “substantial risk”); Davis , 554 U. S., at 734 (“realistic and impending threat of direct injury”); MedImmune, Inc. v. Genentech, Inc. , 549 U.S. 118 , 129 (2007) (“genuine threat of enforcement”); Department of Commerce v. United States House of Representatives , 525 U.S. 316 , 333 (1999) (“substantially likely” (internal quotation marks omitted)); Clinton v. City of New York , 524 U.S. 417 , 432 (1998) (“sufficient likelihood of economic injury”); Pennell v. San Jose , 485 U.S. 1 , 8 (1988) (“realistic danger” (internal quotation marks omitted)); Blum v. Yaretsky , 457 U.S. 991 , 1001 (1982) (“quite realistic” threat); Bryant v. Yellen , 447 U.S. 352 , 367–368 (1980) (“likely”); Buckley v. Valeo , 424 U.S. 1 , 74 (1976) ( per curiam ) (“reasonable probability”). Taken together the case law uses the word “certainly” as if it emphasizes, rather than literally defines, the immediately following term “impending.” B 1 More important, the Court’s holdings in standing cases show that standing exists here. The Court has often found standing where the occurrence of the relevant injury was far less certain than here. Consider a few, fairly typical, cases. Consider Pennell , supra . A city ordinance forbade landlords to raise the rent charged to a tenant by more than 8 percent where doing so would work an unreasonably severe hardship on that tenant. Id ., at 4–5. A group of landlords sought a judgment declaring the ordinance unconstitutional. The Court held that, to have standing, the landlords had to demonstrate a “ ‘ realistic danger of sustaining a direct injury as a result of the statute’s operation.’ ” Id ., at 8 (emphasis added). It found that the landlords had done so by showing a likelihood of enforcement and a “probability,” ibid. , that the ordinance would make the landlords charge lower rents—even though the landlords had not shown (1) that they intended to raise the relevant rents to the point of causing unreasonably severe hardship; (2) that the tenants would challenge those increases; or (3) that the city’s hearing examiners and arbitrators would find against the landlords. Here, even more so than in Pennell , there is a “ realistic danger ” that the relevant harm will occur. Or, consider Blum, supra. A group of nursing home residents receiving Medicaid benefits challenged the constitutionality (on procedural grounds) of a regulation that permitted their nursing home to transfer them to a less desirable home. Id ., at 999–1000. Although a Medicaid committee had recommended transfers, Medicaid-initiated transfer had been enjoined and the nursing home itself had not threatened to transfer the plaintiffs. But the Court found “standing” because “the threat of transfers” was “not ‘imaginary or speculative’ ” but “quite realistic,” hence “sufficiently substantial.” Id ., at 1000–1001 (quoting Younger v. Harris , 401 U.S. 37 , 42 (1971)). The plaintiffs’ injury here is not imaginary or speculative, but “quite realistic.” Or, consider Davis , supra . The plaintiff, a candidate for the United States House of Representatives, self-financed his campaigns. He challenged the constitutionality of an election law that relaxed the limits on an opponent’s contributions when a self-financed candidate’s spending itself exceeded certain other limits. His opponent, in fact, had decided not to take advantage of the increased contribution limits that the statute would have allowed. Id ., at 734. But the Court nonetheless found standing because there was a “realistic and impending threat,” not a certainty, that the candidate’s opponent would do so at the time the plaintiff filed the complaint. Id ., at 734–735. The threat facing the plaintiffs here is as “realistic and impending.” Or, consider MedImmune , supra . The plaintiff, a patent licensee, sought a declaratory judgment that the patent was invalid. But, the plaintiff did not face an imminent threat of suit because it continued making royalty payments to the patent holder. In explaining why the plaintiff had standing, we (1) assumed that if the plaintiff stopped making royalty payments it would have standing (despite the fact that the patent holder might not bring suit), (2) rejected the Federal Circuit’s “reasonable ap-prehension of imminent suit” requirement, and (3) in-stead suggested that a “genuine threat of enforcement” was likely sufficient. Id ., at 128, 129, 132, n. 11 (internal quotation marks omitted). A “genuine threat” is present here. Moreover, courts have often found probabilistic injuries sufficient to support standing. In Duke Power Co. v. Carolina Environmental Study Group, Inc. , 438 U.S. 59 (1978) , for example, the plaintiffs, a group of individuals living near a proposed nuclear powerplant, challenged the constitutionality of the Price-Anderson Act, a statute that limited the plant’s liability in the case of a nuclear accident. The plaintiffs said that, without the Act, the defendants would not build a nuclear plant. And the building of the plant would harm them, in part, by emitting “non-natural radiation into [their] environment.” Id ., at 74. The Court found standing in part due to “our generalized concern about exposure to radiation and the apprehension flowing from the uncertainty about the health and genetic consequences of even small emissions.” Ibid . (emphasis added). See also Monsanto Co. , supra , at ___ (slip op., at 11–12) (“A substantial risk of gene flow injures respondents in several ways” (emphasis added)). See also lower court cases, such as Mountain States Legal Foundation v. Glickman , 92 F.3d 1228 , 1234–1235 (CADC 1996) (plaintiffs attack Government decision to limit timber harvesting; standing based upon increased risk of wildfires); Natural Resources Defense Council v. EPA, 464 F.3d 1 , 7 (CADC 2006) (plaintiffs attack Government decision deregulating methyl bromide; standing based upon increased lifetime risk of developing skin cancer); Constellation Energy Commodities Group, Inc. v. FERC , 457 F.3d 14, 20 (CADC 2006) (standing based on increased risk of nonrecovery inherent in the reduction of collateral securing a debt of uncertain amount); Sutton v . St. Jude Medical S. C., Inc. , 419 F.3d 568 , 570–575 (CA6 2005) (standing based on increased risk of harm caused by implantation of defective medical device); Johnson v. Allsteel, Inc. , 259 F.3d 885 , 888–891 (CA7 2001) (stand-ing based on increased risk that Employee Retirement Income Security Act beneficiary will not be covered due to increased amount of discretion given to ERISA administrator). How could the law be otherwise? Suppose that a federal court faced a claim by homeowners that (allegedly) unlawful dam-building practices created a high risk that their homes would be flooded. Would the court deny them standing on the ground that the risk of flood was only 60, rather than 90, percent? Would federal courts deny standing to a plaintiff in a diversity action who claims an anticipatory breach of contract where the future breach depends on probabilities? The defendant, say, has threatened to load wheat onto a ship bound for India despite a promise to send the wheat to the United States. No one can know for certain that this will happen. Perhaps the defendant will change his mind; perhaps the ship will turn and head for the United States. Yet, despite the uncertainty, the Constitution does not prohibit a federal court from hearing such a claim. See 23 R. Lord, Williston on Contracts §63:35 (4th ed. 2002) (plaintiff may bring an anticipatory breach suit even though the defendant’s promise is one to perform in the future, it has not yet been broken, and defendant may still retract the repudiation). E.g., Wisconsin Power & Light Co. v. Century Indemnity Co. , 130 F.3d 787 , 792–793 (CA7 1997) (plaintiff could sue insurer that disclaimed liability for all costs that would be incurred in the future if environmental agencies required cleanup); Combs v. International Ins. Co. , 354 F.3d 568 , 598–601 (CA6 2004) (similar). Would federal courts deny standing to a plaintiff who seeks to enjoin as a nuisance the building of a nearby pond which, the plaintiff believes, will very likely, but not inevitably, overflow his land? See 42 Am. Jur. 2d Injunctions §§2, 5 (2010) (noting that an injunction is ordinarily preventive in character and restrains actions that have not yet been taken, but threaten injury). E.g. , Central Delta Water Agency v . United States , 306 F.3d 938 , 947–950 (CA9 2002) (standing to seek injunction where method of operating dam was highly likely to severely hamper plaintiffs’ ability to grow crops); Consolidated Companies, Inc. v. Union Pacific R. Co. , 499 F.3d 382, 386 (CA5 2007) (standing to seek injunction requiring cleanup of land adjacent to plaintiff’s tract because of threat that contaminants might migrate to plaintiff’s tract). Neither do ordinary declaratory judgment actions always involve the degree of certainty upon which the Court insists here. See, e.g. , Maryland Casualty Co. v. Pacific Coal & Oil Co. , 312 U.S. 270 , 273 (1941) (insurance company could seek declaration that it need not pay claim against insured automobile driver who was in an accident even though the driver had not yet been found liable for the accident); Aetna Life Ins. Co. v. Haworth , 300 U.S. 227 , 239–244 (1937) (insurance company could seek declaration that it need not pay plaintiff for disability although plaintiff had not yet sought disability payments). See also, e.g. , Associated Indemnity Corp. v . Fairchild Industries, Inc., 961 F.2d 32, 35–36 (CA2 1992) (insured could seek declaration that insurance company must pay liability even before insured found liable). 2 In some standing cases, the Court has found that a reasonable probability of future injury comes accompanied with present injury that takes the form of reasonable efforts to mitigate the threatened effects of the future injury or to prevent it from occurring. Thus, in Monsanto Co. , 561 U. S., at ___ (slip op., at 11–14) plaintiffs, a group of conventional alfalfa growers, challenged an agency decision to deregulate genetically engineered alfalfa. They claimed that deregulation would harm them because their neighbors would plant the genetically engineered seed, bees would obtain pollen from the neighbors’ plants, and the bees would then (harmfully) contaminate their own conventional alfalfa with the genetically modified gene. The lower courts had found a “reasonable probability” that this injury would occur. Ibid. (internal quotation marks omitted). Without expressing views about that probability, we found standing because the plaintiffs would suffer present harm by trying to combat the threat. Ibid . The plaintiffs, for example, “would have to conduct testing to find out whether and to what extent their crops have been contaminated.” Id ., at ___ (slip op., at 12). And they would have to take “measures to minimize the likelihood of potential contamination and to ensure an adequate supply of non-genetically-engineered alfalfa.” Ibid . We held that these “harms, which [the plaintiffs] will suffer even if their crops are not actually infected with” the genetically modified gene, “are sufficiently concrete to satisfy the injury-in-fact prong of the constitutional standing analysis.” Id ., at ___ (slip op., at 13). Virtually identical circumstances are present here. Plaintiff McKay, for example, points out that, when he communicates abroad about, or in the interests of, a client ( e.g. , a client accused of terrorism), he must “make an assessment” whether his “client’s interests would be compromised” should the Government “acquire the communications.” App. to Pet. for Cert. 375a. If so, he must either forgo the communication or travel abroad. Id ., at 371a–372a (“I have had to take measures to protect the confidentiality of information that I believe is particularly sensitive,” including “travel that is both time-consuming and expensive”). Since travel is expensive, since forgoing communication can compromise the client’s interests, since McKay’s assessment itself takes time and effort, this case does not differ significantly from Monsanto. And that is so whether we consider the plaintiffs’ present necessary expenditure of time and effort as a separate concrete, particularized, imminent harm, or consider it as additional evidence that the future harm (an interception) is likely to occur. See also Friends of the Earth, Inc. , 528 U. S., at 183–184 (holding that plaintiffs who curtailed their recreational activities on a river due to reasonable concerns about the effect of pollutant discharges into that river had standing); Meese v. Keene , 481 U.S. 465 , 475 (1987) (stating that “the need to take . . . affirmative steps to avoid the risk of harm . . . constitutes a cognizable injury”). 3 The majority cannot find support in cases that use the words “certainly impending” to deny standing. While I do not claim to have read every standing case, I have examined quite a few, and not yet found any such case. The majority refers to Whitmore v. Arkansas , 495 U.S. 149 (1990). But in that case the Court denied standing to a prisoner who challenged the validity of a death sentence given to a different prisoner who refused to challenge his own sentence. The plaintiff feared that in the absence of an appeal, his fellow prisoner’s death sentence would be missing from the State’s death penalty database and thereby skew the database against him, making it less likely his challenges to his own death penalty would succeed. The Court found no standing. Id., at 161. But the fellow prisoner’s lack of appeal would have harmed the plaintiff only if (1) the plaintiff separately obtained federal habeas relief and was then reconvicted and resentenced to death, (2) he sought review of his new sentence, and (3) during that review, his death sentence was affirmed only because it was compared to an artificially skewed database. Id., at 156–157. These events seemed not very likely to occur. In DaimlerChrysler Corp. v. Cuno , 547 U.S. 332 (2006), taxpayers challenged the constitutionality of a tax break offered by state and local governments to a car manufacturer. We found no standing. But the plaintiffs would have suffered resulting injury only if that the tax break had depleted state and local treasuries and the legislature had responded by raising their taxes. Id ., at 344. In Lujan, the case that may come closest to supporting the majority, the Court also found no standing. But, as I pointed out, supra , at 11, Lujan is a case where the Court considered when, not whether, the threatened harm would occur. 504 U. S., at 564, n. 2. The relevant injury there consisted of a visit by environmental group’s members to a project site where they would find (unlawful) environmental depredation. Id ., at 564. The Court pointed out that members had alleged that they would visit the project sites “soon.” But it wrote that “soon” might refer to almost any time in the future. Ibid ., n. 2. By way of contrast, the ongoing threat of terrorism means that here the relevant interceptions will likely take place imminently, if not now. The Court has, of course, denied standing in other cases. But they involve injuries less likely, not more likely, to occur than here. In a recent case, Summers v. Earth Island Institute , 555 U.S. 488 (2009), for example, the plaintiffs challenged a regulation exempting certain timber sales from public comment and administrative appeal. The plaintiffs claimed that the regulations injured them by interfering with their esthetic enjoyment and recreational use of the forests. The Court found this harm too unlikely to occur to support standing. Id., at 496. The Court noted that one plaintiff had not pointed to a specific affected forest that he would visit. The Court concluded that “[t]here may be a chance, but . . . hardly a likelihood , ” that the plaintiff’s “wanderings will bring him to a parcel about to be affected by a project unlawfully subject to the regulations.” Id ., at 495 (emphasis added). 4 In sum, as the Court concedes, see ante, at 15–16, and n. 5, the word “certainly” in the phrase “certainly impending” does not refer to absolute certainty. As our case law demonstrates, what the Constitution requires is something more akin to “reasonable probability” or “high probability.” The use of some such standard is all that is necessary here to ensure the actual concrete injury that the Constitution demands. The considerations set forth in Parts II and III, supra , make clear that the standard is readily met in this case. *  *  * While I express no view on the merits of the plaintiffs’ constitutional claims, I do believe that at least some of the plaintiffs have standing to make those claims. I dissent, with respect, from the majority’s contrary conclusion.

The Supreme Court ruled that respondents lacked standing to challenge the constitutionality of Section 702 of the Foreign Intelligence Surveillance Act, which allows surveillance of non-US persons located outside the US, as they could not demonstrate a "certainly impending" injury.

Immigration & National Security

Luna Torres v. Lynch

https://supreme.justia.com/cases/federal/us/578/14-1096/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 14–1096 _________________ JORGE LUNA TORRES, PETITIONER v. LORETTA E. LYNCH, ATTORNEY GENERAL on writ of certiorari to the united states court of appeals for the second circuit [May 19, 2016] Justice Kagan delivered the opinion of the Court. The Immigration and Nationality Act (INA or Act) imposes certain adverse immigration consequences on an alien convicted of an “aggravated felony.” The INA defines that term by listing various crimes, most of which are identified as offenses “described in” specified provisions of the federal criminal code. Immediately following that list, the Act provides that the referenced offenses are aggravated felonies irrespective of whether they are “in violation of Federal[,] State[,]” or foreign law. 108 Stat. 4322, 8 U. S. C. §1101(a)(43). In this case, we must decide if a state crime counts as an aggravated felony when it corresponds to a specified federal offense in all ways but one—namely, the state crime lacks the interstate commerce element used in the federal statute to establish legislative jurisdiction ( i.e., Congress’s power to enact the law). We hold that the absence of such a jurisdictional element is immaterial: A state crime of that kind is an aggravated felony. I The INA makes any alien convicted of an “aggravated felony” after entering the United States deportable. See §1227(a)(2)(A)(iii). Such an alien is also ineligible for several forms of discretionary relief, including cancellation of removal—an order allowing a deportable alien to remain in the country. See §1229b(a)(3). And because of his felony, the alien faces expedited removal proceedings. See §1228(a)(3)(A). The Act defines the term “aggravated felony” by way of a long list of offenses, now codified at §1101(a)(43). In all, that provision’s 21 subparagraphs enumerate some 80 different crimes. In more than half of those subparagraphs, Congress specified the crimes by citing particular federal statutes. According to that common formulation, an offense is an aggravated felony if it is “described in,” say, 18 U. S. C. §2251 (relating to child pornography), §922(g) (relating to unlawful gun possession), or, of particular relevance here, §844(i) (relating to arson and explosives). 8 U. S. C. §§1101(a)(43)(E), (I). Most of the remaining subparagraphs refer to crimes by their generic labels, stating that an offense is an aggravated felony if, for example, it is “murder, rape, or sexual abuse of a minor.” §1101(a)(43)(A). Following the entire list of crimes, §1101(a)(43)’s penultimate sentence reads: “The term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years.” So, putting aside the 15-year curlicue, the penultimate sentence provides that an offense listed in §1101(a)(43) is an aggravated felony whether in violation of federal, state, or foreign law. Petitioner Jorge Luna Torres, who goes by the name George Luna, immigrated to the United States as a child and has lived here ever since as a lawful permanent resident. In 1999, he pleaded guilty to attempted arson in the third degree, in violation of New York law; he was sentenced to one day in prison and five years of probation. Seven years later, immigration officials discovered his conviction and initiated proceedings to remove him from the country. During those proceedings, Luna applied for cancellation of removal. But the Immigration Judge found him ineligible for that discretionary relief because his arson conviction qualified as an aggravated felony. See App. to Pet. for Cert. 21a–22a. The Board of Immigration Appeals (Board) affirmed, based on a comparison of the federal and New York arson statutes. See id., at 15a–17a. The INA, as just noted, provides that “an offense described in” 18 U. S. C. §844(i), the federal arson and explosives statute, is an aggravated felony. Section 844(i), in turn, makes it a crime to “maliciously damage[ ] or destroy[ ], or attempt[ ] to damage or destroy, by means of fire or an explosive, any building [or] vehicle . . . used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.” For its part, the New York law that Luna was convicted under prohibits “intentionally damag[ing],” or attempting to damage, “a building or motor vehicle by starting a fire or causing an explosion.” N. Y. Penal Law Ann. §§110, 150.10 (West 2010). The state law, the Board explained, thus matches the federal statute element-for-element with one exception: The New York law does not require a connection to interstate commerce. According to the Board, that single difference did not matter because the federal statute’s commerce element is “jurisdictional”—that is, its function is to establish Congress’s power to legislate. See App. to Pet for Cert. 16a–17a. Given that the two laws’ substantive ( i.e., non-jurisdictional) elements map onto each other, the Board held, the New York arson offense is “described in” 18 U. S. C. §844(i). The Court of Appeals for the Second Circuit denied Luna’s petition for review of the Board’s ruling. See 764 F. 3d 152 (2014). The court’s decision added to a Circuit split over whether a state offense is an aggravated felony when it has all the elements of a listed federal crime except one requiring a connection to interstate commerce.[ 1 ] We granted certiorari. 576 U. S. ___ (2015). II The issue in this case arises because of the distinctive role interstate commerce elements play in federal criminal law. In our federal system, “Congress cannot punish felonies generally,” Cohens v. Virginia , 6 Wheat. 264, 428 (1821); it may enact only those criminal laws that are connected to one of its constitutionally enumerated powers, such as the authority to regulate interstate commerce. As a result, most federal offenses include, in addition to substantive elements, a jurisdictional one, like the interstate commerce requirement of §844(i). The substantive elements “primarily define[ ] the behavior that the statute calls a ‘violation’ of federal law,” Scheidler v. National Organization for Women, Inc. , 547 U. S. 9, 18 (2006) —or, as the Model Penal Code puts the point, they relate to “the harm or evil” the law seeks to prevent, §1.13(10). The jurisdictional element, by contrast, ties the substantive offense (here, arson) to one of Congress’s constitutional powers (here, its authority over interstate commerce), thus spelling out the warrant for Congress to legislate. See id., at 17–18 (explaining that Congress intends “such statu-tory terms as ‘affect commerce’ or ‘in commerce’ . . . as terms of art connecting the congressional exercise of legislative authority with the constitutional provision (here, the Commerce Clause) that grants Congress that authority”). For obvious reasons, state criminal laws do not include the jurisdictional elements common in federal statutes.[ 2 ] State legislatures, exercising their plenary police powers, are not limited to Congress’s enumerated powers; and so States have no reason to tie their substantive offenses to those grants of authority. See, e.g., United States v. Lopez , 514 U. S. 549, 567 (1995) . In particular, state crimes do not contain interstate commerce elements because a State does not need such a jurisdictional hook. Accordingly, even state offenses whose substantive elements match up exactly with a federal law’s will part ways with respect to interstate commerce. That slight discrepancy creates the issue here: If a state offense lacks an interstate commerce element but otherwise mirrors one of the federal statutes listed in §1101(a)(43), does the state crime count as an aggravated felony? Or, alternatively, does the jurisdictional difference reflected in the state and federal laws preclude that result, no matter the laws’ substantive correspondence? Both parties begin with the statutory text most directly at issue, disputing when a state offense (here, arson) is “described in” an enumerated federal statute (here, 18 U. S. C. §844(i)). Luna, armed principally with Black’s Law Dictionary, argues that “described in” means “expressed” or “set forth” in—which, he says, requires the state offense to include each one of the federal law’s elements. Brief for Petitioner 15–16.[ 3 ] The Government, brandishing dictionaries of its own, contends that the statutory phrase has a looser meaning—that “describing entails . . . not precise replication,” but “convey[ance of ] an idea or impression” or of a thing’s “central features.” Brief for Respondent 17.[ 4 ] On that view, “described in,” as opposed to the more precise “defined in” sometimes found in statutes, denotes that the state offense need only incorporate the federal law’s core, substantive elements. But neither of those claims about the bare term “described in” can resolve this case. Like many words, “describe” takes on different meanings in different contexts. Consider two ways in which this Court has used the word. In one case, “describe” conveyed exactness: A contractual provision, we wrote, “describes the subject [matter] with great particularity[,] . . . giv[ing] the precise number of pounds [of tobacco], the tax for which each pound was liable, and the aggregate of the tax.” Ryan v. United States , 19 Wall. 514, 517 (1874). In another case, not: “The disclosure provision is meant,” we stated, “to describe the law to consumers in a manner that is concise and comprehensible to the layman—which necessarily means that it will be imprecise.” CompuCredit Corp. v. Greenwood , 565 U. S. 95, 102 (2012) . So staring at, or even looking up, the words “described in” cannot answer whether a state offense must replicate every last element of a listed federal statute, including its jurisdictional one, to qualify as an aggravated felony. In considering that issue, we must, as usual, “interpret the relevant words not in a vacuum, but with reference to the statutory context.” Abramski v. United States , 573 U. S. ___, ___ (2014) (slip op., at 9).[ 5 ] Here, two contextual considerations decide the matter. The first is §1101(a)(43)’s penultimate sentence, which shows that Congress meant the term “aggravated felony” to capture serious crimes regardless of whether they are prohibited by federal, state, or foreign law. The second is a well-established background principle distinguishing between substantive and jurisdictional elements in federal criminal statutes. We address each factor in turn. A Section 1101(a)(43)’s penultimate sentence, as noted above, provides: “The term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years.” See supra, at 2. That sentence (except for the time limit on foreign convictions) declares the source of criminal law irrelevant: The listed offenses count as aggravated felonies regardless of whether they are made illegal by the Federal Government, a State, or a foreign country. That is true of the crimes identified by reference to federal statutes (as here, an offense described in 18 U. S. C. §844(i)), as well as those employing generic labels (for example, murder). As even Luna recognizes, state and foreign analogues of the enumerated federal crimes qual-ify as aggravated felonies. See Brief for Petitioner 21 (contesting only what properly counts as such an analogue). The whole point of §1101(a)(43)’s penultimate sentence is to make clear that a listed offense should lead to swift removal, no matter whether it violates federal, state, or foreign law. Luna’s jot-for-jot view of “described in” would substantially undercut that function by excluding from the Act’s coverage all state and foreign versions of any enumerated federal offense that (like §844(i)) contains an interstate commerce element. Such an element appears in about half of §1101(a)(43)’s listed statutes—defining, altogether, 27 serious crimes.[ 6 ] Yet under Luna’s reading, only those federal crimes, and not their state and foreign counterparts, would provide a basis for an alien’s removal—because, as explained earlier, only Congress must ever show a link to interstate commerce. See supra, at 4–5. No state or foreign legislature needs to incorporate a commerce element to establish its jurisdiction, and so none ever does. Accordingly, state and foreign crimes will never precisely replicate a federal statute containing a commerce element. And that means, contrary to §1101(a)(43)’s penultimate sentence, that the term “aggravated felony” would not apply to many of the Act’s listed offenses irrespective of whether they are “in violation of Federal[,] State[, or foreign] law”; instead, that term would apply exclusively to the federal variants.[ 7 ] Indeed, Luna’s view would limit the penultimate sentence’s effect in a peculiarly perverse fashion—excluding state and foreign convictions for many of the gravest crimes listed in §1101(a)(43), while reaching those convictions for less harmful offenses. Consider some of the state and foreign crimes that would not count as aggravated felonies on Luna’s reading because the corresponding federal law has a commerce element: most child pornography offenses, including selling a child for the purpose of manufacturing such material, see §1101(a)(43)(I); demanding or receiving a ransom for kidnapping, see §1101(a)(43)(H); and possessing a firearm after a felony conviction, see §1101(a)(43)(E)(ii). Conversely, the term “aggravated felony” in Luna’s world would include state and foreign convictions for such comparatively minor offenses as operating an unlawful gambling business, see §1101(a)(43)(J), and possessing a firearm not identified by a serial number, see §1101(a)(43)(E)(iii), because Congress chose, for whatever reason, not to use a commerce element when barring that conduct. And similarly, the term would cover any state or foreign conviction for such nonviolent activity as receiving stolen property, see §1101(a)(43)(G), or forging documents, see §1101(a)(43)(R), because the INA happens to use generic labels to describe those crimes. This Court has previously refused to construe §1101(a)(43) so as to produce such “haphazard”—indeed, upside-down—coverage. Nijhawan v. Holder , 557 U. S. 29, 40 (2009) . We see no reason to follow a different path here: Congress would not have placed an alien convicted by a State of running an illegal casino at greater risk of removal than one found guilty under the same State’s law of selling a child.[ 8 ] In an attempt to make some sense of his reading, Luna posits that Congress might have believed that crimes having an interstate connection are generally more serious than those lacking one—for example, that interstate child pornography is “worse” than the intrastate variety. Brief for Petitioner 35. But to begin with, that theory cannot explain the set of crazy-quilt results just described: Not even Luna maintains that Congress thought local acts of selling a child, receiving explosives, or demanding a ransom are categorically less serious than, say, operating an unlawful casino or receiving stolen property (whether or not in interstate commerce). And it is scarcely more plausible to view an interstate commerce element in any given offense as separating serious from non-serious conduct: Why, for example, would Congress see an alien who carried out a kidnapping for ransom wholly within a State as materially less dangerous than one who crossed state lines in committing that crime? The essential harm of the crime is the same irrespective of state borders. Luna’s argument thus misconceives the function of interstate commerce elements: Rather than distinguishing greater from lesser evils, they serve (as earlier explained) to connect a given substantive offense to one of Congress’s enumerated powers. See supra, at 4–5. And still more fundamentally, Luna’s account runs counter to the penultimate sentence’s central message: that the national, local, or foreign character of a crime has no bearing on whether it is grave enough to warrant an alien’s automatic removal.[ 9 ] Luna (and the dissent, see post, at 6) must therefore fall back on a different defense: that his approach would exclude from the universe of aggravated felonies fewer serious state and foreign offenses than one might think. To make that argument, Luna relies primarily on a part of the Act specifying that the term “aggravated felony” shall include “a crime of violence (as defined in [ 18 U. S. C. §16]) for which the term of imprisonment [is] at least one year.” §1101(a)(43)(F); see 18 U. S. C. §16 (defining “crime of violence” as involving the use of “physical force” against the person or property of another). According to Luna, many state and foreign offenses failing to match the Act’s listed federal statutes (for want of an interstate commerce element) would count as crimes of violence and, by that alternative route, trigger automatic removal. A different statutory phrase, or so Luna says, would thus plug the holes opened by his construction of the “described in” provisions. Luna’s argument does not reassure us. We agree that state counterparts of some enumerated federal offenses would qualify as aggravated felonies through the “crime of violence” provision. But not nearly all such offenses, and not even the worst ones. Consider again some of the listed offenses described earlier. See supra, at 10. The “crime of violence” provision would not pick up demanding a ransom for kidnapping. See 18 U. S. C. §875(a) (defining the crime without any reference to physical force). It would not cover most of the listed child pornography offenses, involving the distribution, receipt, and possession of such materials. It would not reach felon-in-possession laws and other firearms offenses. And indeed, it would not reach arson in the many States defining that crime to include the destruction of one’s own property. See Jordison v. Gonzales , 501 F. 3d 1134, 1135 (CA9 2007) (holding that a violation of California’s arson statute does not count as a crime of violence for that reason); Tr. of Oral Arg. 28–29 (Solicitor General agreeing with that interpretation).[ 10 ] So under Luna’s reading, state and foreign counterparts to a broad swath of listed statutes would remain outside §1101(a)(43)’s coverage merely because they lack an explicit interstate commerce connection. And for all the reasons discussed above, that result would significantly restrict the penultimate sentence’s force and effect, and in an utterly random manner.[ 11 ] B Just as important, a settled practice of distinguishing between substantive and jurisdictional elements of federal criminal laws supports reading §1101(a)(43) to include state analogues lacking an interstate commerce requirement. As already explained, the substantive elements of a federal statute describe the evil Congress seeks to prevent; the jurisdictional element connects the law to one of Congress’s enumerated powers, thus establishing legislative authority. See supra, at 4–5; ALI, Model Penal Code §1.13(10) (1962). Both kinds of elements must be proved to a jury beyond a reasonable doubt; and because that is so, both may play a real role in a criminal case. But still, they are not created equal for every purpose. To the contrary, courts have often recognized—including when comparing federal and state offenses—that Congress uses substantive and jurisdictional elements for different reasons and does not expect them to receive identical treatment. Consider the law respecting mens rea . In general, courts interpret criminal statutes to require that a defendant possess a mens rea , or guilty mind, as to every element of an offense. See Elonis v. United States , 575 U. S. ___, ___ (2015) (slip op., at 10). That is so even when the “statute by its terms does not contain” any demand of that kind. United States v. X-Citement Video, Inc. , 513 U. S. 64, 70 (1994) . In such cases, courts read the statute against a “background rule” that the defendant must know each fact making his conduct illegal. Staples v. United States , 511 U. S. 600, 619 (1994) . Or otherwise said, they infer, absent an express indication to the contrary, that Congress intended such a mental-state requirement. Except when it comes to jurisdictional elements. There, this Court has stated, “the existence of the fact that confers federal jurisdiction need not be one in the mind of the actor at the time he perpetrates the act made criminal by the federal statute.” United States v. Feola , 420 U. S. 671, 677, n. 9 (1975) ; see United States v. Yermian , 468 U. S. 63, 68 (1984) (“Jurisdictional language need not contain the same culpability requirement as other elements of the offense”); Model Penal Code §2.02. So when Congress has said nothing about the mental state pertaining to a jurisdictional element, the default rule flips: Courts assume that Congress wanted such an element to stand outside the otherwise applicable mens rea requirement. In line with that practice, courts have routinely held that a criminal defendant need not know of a federal crime’s interstate commerce connection to be found guilty. See, e.g. , United States v. Jinian , 725 F. 3d 954, 964–966 (CA9 2013); United States v. Lindemann , 85 F. 3d 1232, 1241 (CA7 1996); United States v. Blackmon , 839 F. 2d 900, 907 (CA2 1988). Those courts have recognized, as we do here, that Congress viewed the commerce element as distinct from, and subject to a different rule than, the elements describing the substantive offense. Still more strikingly, courts have distinguished between the two kinds of elements in contexts, similar to this one, in which the judicial task is to compare federal and state offenses. The Assimilative Crimes Act (ACA), 18 U. S. C. §13(a), subjects federal enclaves, like military bases, to state criminal laws except when they punish the same conduct as a federal statute. The ACA thus requires courts to decide when a federal and a state law are sufficiently alike that only the federal one will apply. And we have held that, in making that assessment, courts should ignore jurisdictional elements: When the “differences among elements” of the state and federal crimes “reflect jurisdictional, or other technical, considerations” alone, then the state law will have no effect in the area. Lewis v. United States , 523 U. S. 155, 165 (1998) ; see also id. , at 182 (Kennedy, J., dissenting) (agreeing that courts should “look beyond . . . jurisdictional elements,” and focus only on substantive ones, in determining whether “the elements of the two crimes are the same”). In such a case, we reasoned—just as we do now—that Congress meant for the federal jurisdictional element to be set aside. And lower courts have uniformly adopted the same approach when comparing federal and state crimes in order to apply the federal three-strikes statute. That law imposes mandatory life imprisonment on a person convicted on three separate occasions of a “serious violent felony.” 18 U. S. C. §3559(c)(1). Sounding very much like the INA, the three-strikes statute defines such a felony to include “a Federal or State offense, by whatever designation and wherever committed, consisting of” specified crimes ( e.g., murder, manslaughter, robbery) “as described in” listed federal criminal statutes. §3559(c)(2)(F). In deciding whether a state crime of conviction thus corresponds to an enumerated federal statute, every court to have faced the issue has ignored the statute’s jurisdictional element. See, e.g., United States v. Rosario-Delgado , 198 F. 3d 1354, 1357 (CA11 1999) ( per curiam ); United States v. Wicks , 132 F. 3d 383, 386–387 (CA7 1997). Judge Wood, writing for the Seventh Circuit, highlighted the phrase “a Federal or State offense, by whatever designation and wherever committed”—the three-strikes law’s version of §1101(a)(43)’s penultimate sentence. “It is hard to see why Congress would have used this language,” she reasoned, “if it had meant that every detail of the federal offense, including its jurisdictional element[ ], had to be replicated in the state offense.” Id., at 386–387. Just so, too, in the INA—whose “aggravated felony” provisions operate against, and rely on, an established legal backdrop distinguishing between jurisdictional and substantive elements.[ 12 ] Luna objects to drawing that line on the ground that it is too hard to tell the difference between the two. See Brief for Petitioner 26–28 (discussing, in particular, statutes criminalizing the destruction of federal property and sending threats via the Postal Service). But that contention collides with the judicial experience just described. Courts regularly separate substantive from jurisdictional elements in applying federal criminal statutes’ mens rea requirements; so too in implementing other laws that require a comparison of federal and state offenses. And from all we can see, courts perform that task with no real trouble: Luna has not pointed to any divisions between or within Circuits arising from the practice. We do not deny that some tough questions may lurk on the margins—where an element that makes evident Congress’s regulatory power also might play a role in defining the behavior Congress thought harmful. But a standard interstate commerce element, of the kind appearing in a great many federal laws, is almost always a simple jurisdictional hook—and courts may as easily acknowledge that fact in enforcing the INA as they have done in other contexts. C Luna makes a final argument opposing our reading of §1101(a)(43): If Congress had meant for “ordinary state-law” crimes like arson to count as aggravated felonies, it would have drafted the provision to make that self-evident. Brief for Petitioner 20. Congress, Luna submits, would have used the generic term for those crimes— e.g. , “arson”—rather than demanding that the state law of conviction correspond to a listed federal statute. See id., at 20–23. Or else, Luna (and the dissent) suggests, see id., at 24; post, at 13, Congress would have expressly distinguished between substantive and jurisdictional elements, as it did in an unrelated law mandating the pretrial detention of any person convicted of a federal offense “described in [a certain federal statute], or of a State or local offense that would have been an offense described in [that statute] if a circumstance giving rise to Federal jurisdiction had existed,” 18 U. S. C. §3142(e)(2)(A). But as an initial matter, Congress may have had good reason to think that a statutory reference would capture more accurately than a generic label the range of state convictions warranting automatic deportation. The clause of §1101(a)(43) applying to Luna’s case well illustrates the point. By referring to 18 U. S. C. §844(i), that provision incorporates not only the garden-variety arson offenses that a generic “arson” label would cover, but various explosives offenses too. See Brief for Petitioner 23, n. 7 (conceding that had Congress used the term “arson,” it would have had to separately identify the explosives crimes encompassed in §844(i)). And the elements of generic arson are themselves so uncertain as to pose problems for a court having to decide whether they are present in a given state law. See Poulos, The Metamorphosis of the Law of Arson, 51 Mo. L. Rev. 295, 364, 387–435 (1986) (describing multiple conflicts over what conduct the term “arson” includes). Nor is the clause at issue here unusual in those respects: Section 1101(a)(43) includes many other statutory references that do not convert easily to generic labels. See, e.g., §1101(a)(43)(E)(ii) (listing federal statutes defining various firearms offenses). To be sure, Congress used such labels to describe some crimes qualifying as aggravated felonies—for example, “murder, rape, or sexual abuse of a minor.” §1101(a)(43)(A). But what is good for some crimes is not for others. The use of a federal statutory reference shows only that Congress thought it the best way to identify certain substantive crimes—not that Congress wanted (in conflict with the penultimate sentence) to exclude state and foreign versions of those offenses for lack of a jurisdictional element. Still more, Congress’s omission of statutory language specifically directing courts to ignore those elements cannot tip the scales in Luna’s favor. We have little doubt that “Congress could have drafted [§1101(a)(43)] with more precision than it did.” Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson , 545 U. S. 409, 422 (2005) . But the same could be said of many (even most) statutes; as to that feature, §1101(a)(43) can join a well-populated club. And we have long been mindful of that fact when interpreting laws. Rather than expecting (let alone demanding) perfection in drafting, we have routinely construed statutes to have a particular meaning even as we acknowledged that Congress could have expressed itself more clearly. See, e.g., ibid. ; Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc. , 554 U. S. 33, 41 (2008) ; Scarborough v. United States , 431 U. S. 563 –571, 575 (1977). The question, then, is not: Could Congress have indicated (or even did Congress elsewhere indicate) in more crystalline fashion that comparisons of federal and state offenses should disregard elements that merely establish legislative jurisdiction? The question is instead, and more simply: Is that the right and fair reading of the statute before us? And the answer to that question, given the import of §1101(a)(43)’s penultimate sentence and the well-settled background rule distinguishing between jurisdictional and substantive elements, is yes. III That reading of §1101(a)(43) resolves this case. Luna has acknowledged that the New York arson law differs from the listed federal statute, 18 U. S. C. §844(i), in only one respect: It lacks an interstate commerce element. See Pet. for Cert. 3. And Luna nowhere contests that §844(i)’s commerce element—featuring the terms “in interstate or foreign commerce” and “affecting interstate or foreign commerce”—is of the standard, jurisdictional kind. See Tr. of Oral Arg. 12, 19; Scheidler , 547 U. S., at 17–18 (referring to the phrases “affect commerce” and “in commerce” as conventional “jurisdictional language”). For all the reasons we have given, such an element is properly ignored when determining if a state offense counts as an aggravated felony under §1101(a)(43). We accordingly affirm the judgment of the Second Circuit. It is so ordered. Notes 1 Compare Espinal-Andrades v. Holder , 777 F. 3d 163 (CA4 2015) (finding an aggravated felony in that circumstance); Spacek v. Holder , 688 F. 3d 536 (CA8 2012) (same); Nieto Hernandez v. Holder , 592 F. 3d 681 (CA5 2009) (same); Negrete-Rodriguez v. Mukasey , 518 F. 3d 497 (CA7 2008) (same); United States v. Castillo-Rivera , 244 F. 3d 1020 (CA9 2001) (same), with Bautista v. Attorney General , 744 F. 3d 54 (CA3 2014) (declining to find an aggravated felony). 2 That flat statement is infinitesimally shy of being wholly true. We have found a handful of state criminal laws with an interstate commerce element, out of the tens (or perhaps hundreds) of thousands of state crimes on the books. Mississippi, for example, lifted essentially verbatim the text of the federal money laundering statute when drafting its own, and thus wound up with such an element. See Miss. Code Ann. §97–23–101 (rev. 2014). But because the incidence of such laws is so vanishingly small, and the few that exist play no role in Luna’s arguments, we proceed without qualifying each statement of the kind above. 3 Black’s Law Dictionary 401 (5th ed. 1979) (defining “describe” as to “express, explain, set forth, relate, recount, narrate, depict, delineate, portray”). Luna also cites Webster’s New Collegiate Dictionary 307 (1976), which defines “describe” to mean “to represent or give an account of in words.” 4 See American Heritage Dictionary of the English Language 490 (5th ed. 2011) (defining “describe” as “[t]o convey an idea or impression of ”); Webster’s Third New International Dictionary 610 (1986) (defining “describe” as “to convey an image or notion of” or “trace or traverse the outline of ”). 5 The dissent disagrees, contending that the word “describe” decides this case in Luna’s favor because a “description cannot refer to features that the thing being described does not have.” Post, at 5 (opinion of Sotomayor, J.). Says the dissent: If a Craigslist ad “describes” an apartment as having an “in-unit laundry, a dishwasher, rooftop access, central A/C, and a walk-in closet,” it does not describe an apartment lacking rooftop access. Ibid. That is true enough, but irrelevant. The dissent is right that when someone describes an object by a list of specific characteristics, he means that the item has each of those attributes. But things are different when someone uses a more general descriptor—even when that descriptor (as here, a federal statute) itself has a determinate set of elements. It would be natural, for example, to say (in the exact syntax of §1101(a)(43)) that a person followed the itinerary for a journey through Brazil that is “described in” a Lonely Planet guide if he traveled every leg of the tour other than a brief “detour north to Petrópolis.” The Lonely Planet, On the Road: Destination Brazil, http://media.lonelyplanet.com/shop/pdfs/brazil-8-getting-started.pdf (all Internet materials as last visited May 16, 2016). And similarly, a person would say that she had followed the instructions for setting up an iPhone that are “described in” the user’s manual even if she in fact ignored the one (specifically highlighted there) telling her to begin by “read[ing] important safety information” to “avoid injury.” Apple, Set Up iPhone, http://help.apple.com/iphone/9/#iph3bf43d79. 6 See 8 U. S. C. §1101(a)(43)(D) (“an offense described in” 18 U. S. C. §1956, which criminalizes laundering of monetary instruments); ibid. (“an offense described in” 18 U. S. C. §1957, which criminalizes engaging in monetary transactions involving property derived from specified unlawful activities); §1101(a)(43)(E)(i) (three “offense[s] described in” 18 U. S. C. §§842(h)–(i), 844(d), which criminalize activities involving explosives); ibid. (“an offense described in” 18 U. S. C. §844(e), which criminalizes threatening to cause death, injury, or property damage using explosives); ibid. (“an offense described in” 18 U. S. C. §844(i), which criminalizes using fire or explosives to cause property damage); §1101(a)(43)(E)(ii) (six “offense[s] described in” 18 U. S. C. §§922(g)(1)–(5), ( j), which criminalize possessing a firearm in various circumstances); ibid. (two “offense[s] described in” 18 U. S. C. §§922(n), 924(b),which criminalize transporting or receiving a firearm under certain circumstances); §1101(a)(43)(E)(iii) (“an offense described in” 26 U. S. C. §5861( j), which criminalizes transporting an unregistered firearm); §1101(a)(43)(H) (“an offense described in” 18 U. S. C. §875, which criminalizes making a threat to kidnap or a ransom demand); ibid. (“an offense described in” 18 U. S. C. §1202(b), which criminalizes possessing, receiving, or transmitting proceeds of a kidnapping); §1101(a)(43)(I) (“an offense described in” 18 U. S. C. §2251, which criminalizes sexually exploiting a child); ibid. (“an offense described in” 18 U. S. C. §2251A, which criminalizes selling a child for purposes of child pornography); ibid. (“an offense described in 18 U. S. C. §2252, which criminalizes various activities relating to child pornography); §1101(a)(43)(J) (“an offense described in” 18 U. S. C. §1962, which criminalizes activities relating to racketeering); ibid. (“an offense described in” 18 U. S. C. §1084, which criminalizes transmitting information to facilitate gambling); §1101(a)(43)(K)(ii) (“an offense described in” 18 U. S. C. §2421, which criminalizes transporting a person for purposes of prostitution); ibid. (“an offense described in” 18 U. S. C. §2422, which criminalizes coercing or enticing a person to travel for purposes of prostitution); ibid. (“an offense described in” 18 U. S. C. §2423, which criminalizes transporting a child for purposes of prostitution); §1101(a)(43)(K)(iii) (“an offense described in” 18 U. S. C. §1591(a)(1), which criminalizes sex trafficking of children, or of adults by force, fraud, or coercion). 7 The dissent replies: What’s the big deal? See post, at 10. After all, it reasons, some listed federal statutes—specifically, those prohibiting treason, levying war against the United States, and disclosing national defense information—will lack state or foreign analogues even under our construction. See ibid. But Congress’s inclusion of a few federal offenses that, by their nature, have no state or foreign analogues hardly excuses expelling from the Act’s coverage the countless state and foreign versions of 27 other serious crimes. 8 Luna’s position, in addition to producing this bizarre patchwork of coverage, conflicts with our ordinary assumption that Congress, when drafting a statute, gives each provision independent meaning. See United States v. Butler , 297 U. S. 1, 65 (1936) (“These words cannot be meaningless, else they would not have been used”). Until its most recent amendment, §1101(a)(43)(J ) provided that the term “aggravated felony” included any “offense described in [ 18 U. S. C. §1962] (relating to racketeer influenced corrupt organizations) for which a sentence of 5 years’ imprisonment or more may be imposed.” 8 U. S. C. §1101(a)(43)(J ) (1994 ed., Supp. I). (That provision now incorporates two more federal crimes, and uses one year of prison as the threshold.) The federal racketeering statute cited has an interstate commerce element; analogous state and foreign laws (per usual) do not, and therefore would fall outside §1101(a)(43)(J ) on Luna’s reading. But if Congress had meant to so exclude those state and foreign counterparts, then §1101(a)(43)(J )’s final clause—“for which a sentence of 5 years’ imprisonment may be imposed”—would have been superfluous, because federal racketeering is always punishable by more than five years’ imprisonment, see 18 U. S. C. §1963(a). That language’s presence shows that Congress thought §1101(a)(43)(J ) would sweep in some state and foreign laws: The final clause served to filter out such statutes when—but only when—they applied to less serious conduct than the federal racketeering offense. 9 The dissent attempts a variant of Luna’s “not so serious” argument, but to no better effect. Claims the dissent: Even if Congress could not have viewed “interstate crimes [as] worse than wholly intrastate crimes,” it might have thought that, say, “arsons prosecuted as federal crimes are more uniformly serious than arsons prosecuted as state crimes.” Post , at 14 (emphasis added). But we see no call to suppose that Congress regarded state prosecutions as Grapefruit League versions of the Big Show. Cf. Mistretta v. United States , 488 U. S. 361, 427 (1989) (Scalia, J., dissenting). In our federal system, “States possess primary authority for defining and enforcing” criminal laws, including those prohibiting the gravest crimes. Brecht v. Abrahamson , 507 U. S. 619, 635 (1993) . For that reason, even when U. S. Attorneys have jurisdiction, they are generally to defer to, rather than supplant, state prosecutions of serious offenses. See U. S. Attorneys’ Manual: Principles of Federal Prosecution §9–27.240 (1997). And still more obviously, the dissent’s theory fails with respect to foreign convictions. That a foreign sovereign prosecutes a given crime reflects nothing about its gravity, but only about its location. 10 In all those States, arsons of every description (whether of one’s own or another’s property) would fall outside the “crime of violence” provision. See Tr. of Oral Arg. 29, 46 (Solicitor General noting that the categorical approach to comparing federal and state crimes produces that effect). And contrary to the dissent’s suggestion, post, at 6, n. 2, that would be true of the most dangerous arsons, as well as of less serious ones. The dissent similarly fails to take into account the categorical approach’s rigorous requirements when discussing a couple of the non-arson offenses discussed above. (Still others, the dissent wholly ignores.) It speculates that if the exact right state charge is filed, some of that conduct “may” qualify, through the crime-of-violence provision or some other route, as an aggravated felony. Ibid. “May” is very much the operative word there, because—depending on the elements of the state offense chosen—that conduct also “may not.” And the dissent never explains why Congress would have left the deportation of dangerous felons to such prosecutorial happenstance. 11 The dissent well-nigh embraces those consequences, arguing that a narrow reading of “aggravated felony” would make more convicted criminals removable under other statutory provisions, all of which allow for relief at the Attorney General’s discretion. See post, at 8, 15 (lamenting that aliens convicted of aggravated felonies may not “even appeal[ ] to the mercy of the Attorney General”). But Congress made a judgment that aliens convicted of certain serious offenses (irrespective of whether those convictions were based on federal, state, or foreign law) should be not only removable but also ineligible for discretionary relief. It is not our place to second-guess that decision. 12 The dissent declares our discussion of the three-strikes law, the Assimilative Crime Act (ACA), and mens rea “unhelpful” on the ground that all three contexts are somehow “differ[ent].” Post, at 10–13. But what makes them relevantly so the dissent fails to explain. First, the dissent errs in suggesting that the uniform judicial interpretation of the three-strikes law ignores only “place-based jurisdiction elements” (because, so says the dissent, of the phrase “wherever committed”). Post, at 13. As Judge Wood’s analysis indicates, that is a theory of the dissent’s own creation; the actual appellate decisions apply to all jurisdictional elements, not just territorial ones. Next, the dissent goes wrong in claiming that the ACA is not pertinent because this Court adopted a different method for matching substantive elements under that law than under the INA. See post, at 12. For even as the Court made that choice, it unanimously agreed that, however substantive elements should be compared, jurisdictional elements should be disregarded. See Lewis v. United States , 523 U. S. 155, 165 (1998) ; id. , at 182 (Kennedy, J., dissenting). And finally, the dissent does nothing to undermine our point on mens rea by noting that Congress very occasionally dispenses with that requirement for substantive elements. See post, at 11. As just shown, the default rule respecting mental states flips as between jurisdictional and substantive elements, see supra , at 15–16—reflecting the view (also at play in the three-strikes and ACA contexts) that Congress generally means to treat the two differently. That leaves the dissent with nothing except its observation that when applying the beyond-a-reasonable-doubt and jury-trial requirements, the Court does not distinguish between jurisdictional and substantive elements. See post, at 10. But the dissent forgets that those commands are constitutional in nature; a principle of statutory interpretation distinguishing between the two kinds of elements, as best reflecting Congress’s intent, could not bear on those mandates. SUPREME COURT OF THE UNITED STATES _________________ No. 14–1096 _________________ JORGE LUNA TORRES, PETITIONER v. LORETTA E. LYNCH, ATTORNEY GENERAL on writ of certiorari to the united states court of appeals for the second circuit [May 19, 2016] Justice Sotomayor, with whom Justice Thomas and Justice Breyer join, dissenting. The Immigration and Nationality Act (INA) metes out severe immigration consequences to a noncitizen convicted of any of a number of “aggravated felon[ies].” 8 U. S. C. §1101(a)(43). An offense “described in” 18 U. S. C. §844(i)—a federal arson statute—qualifies as such a crime. In this case, petitioner, who goes by George Luna, was convicted of third-degree arson under N. Y. Penal Law Ann. §150.10 (West 2010), which punishes anyone who (1) “intentionally” (2) “damages,” by (3) “starting a fire or causing an explosion,” (4) “a building or motor vehicle.” By contrast, the federal arson statute, 18 U. S. C. §844(i), applies when someone (1) “maliciously” (2) “damages or destroys,” (3) “by means of fire or an explosive,” (4) “any building, vehicle, or other real or personal property” (5) “used in interstate or foreign commerce.” There is one more element in the federal offense than in the state offense—(5), the interstate or foreign commerce element. Luna thus was not convicted of an offense “described in” the federal statute. Case closed. Not for the majority. It dubs the fifth element “jurisdictional,” then relies on contextual clues to read it out of the statute altogether. As a result of the majority’s sleuthing, Luna—a long-time legal permanent resident—is foreclosed from even appealing to the sound discretion of the Attorney General to obtain relief from removal. Because precedent and the text and structure of the INA require the opposite result, I respectfully dissent. I A Noncitizens convicted of crimes face various consequences under the INA. Among the harshest of those consequences fall on noncitizens convicted of 1 of the approximately 80 “aggravated felonies.” A crime that falls into one of the listed provisions can be an aggravated felony “whether in violation of Federal or State law” or “in violation of the law of a foreign country.” See 8 U. S. C. §1101(a)(43). An aggravated felony conviction has two primary repercussions for noncitizens: It renders them deportable, §1227(a)(2)(A)(iii), and it makes them categorically ineligible for several forms of immigration relief ordinarily left to the discretion of the Attorney General. See, e.g., §§1229b(a)–(b) (cancellation of removal). The dozens of aggravated felonies in the INA are specified in two main ways. First, some are specified by reference to a generic crime. It is an aggravated felony, for instance, to commit “murder, rape, or sexual abuse of a minor.” §1101(a)(43)(A). Some of those crimes use a federal definition as one of the elements. For example: “Illicit trafficking in a controlled substance ( as defined in [ 21 U. S. C. §802]).” 8 U. S. C. §1101(a)(43)(B) (emphasis added). (“Illicit trafficking” is a generic crime; the element of “controlled substance” takes the meaning in 21 U. S. C. §802, the “Definitions” provision of the Controlled Substances Act.) Second, it lists crimes that are wholly “described in” the federal criminal code. See , e.g., §1101(a)(43)(H) (“an offense described in section 875, 876, 877, or 1202 of title 18 (relating to the demand for or receipt of ransom)”); §1101(a)(43)(I) (“an offense described in section 2251, 2251A, or 2252 of title 18 (relating to child pornography)”). The Government contends that Luna committed a crime in this second category: an “offense described in” 18 U. S. C. §844 (i), which criminalizes arson. 8 U. S. C. §1101 (a) (43) (E) (i). B In 2006, Luna was found removable from the United States. He attempted to apply for cancellation of removal, a form of relief available to long-time legal permanent residents at the discretion of the Attorney General. §1229b(a). Nothing in Luna’s history would otherwise preclude cancellation. He was the sole source of financial support for his U. S. citizen fiancée, enrolled in college and studying engineering, a homeowner, and a law-abiding legal permanent resident since he was brought to the United States as a child over 30 years ago, aside from the one third-degree arson conviction at issue in this case, for which he served a day in jail. But the Immigration Judge found—and the Board of Immigration Appeals and the Second Circuit confirmed—that Luna was ineligible for cancellation of removal. Luna’s New York State arson conviction, the judge held, qualified as an aggravated felony under the provision for “an offense described in” §844(i), a federal arson statute. See §1101(a)(43)(E)(i). Aggravated felons are ineligible for can-cellation of removal. See §1229b(a)(3). Luna’s cancellation-of-removal application was thus summarily denied. II But the offense of which Luna was convicted is not “ described in” §844(i). This Court’s ordinary method of interpreting the aggravated felony statute, the plain text of that provision, and the structure of the INA all confirm as much. A This is not the first time the Court has been tasked with determining whether a state offense constitutes an “aggravated felony” under the INA. Until today, the Court has always required the state offense to match every element of the listed “aggravated felony.” Kawashima v. Holder , 565 U. S. ___, ___ (2012) (slip op., at 4); see also Moncrieffe v. Holder , 569 U. S. ___, ___ (2013) (slip op., at 4–5); Carachuri-Rosendo v. Holder , 560 U. S. 563, 580 (2010) ; Nijhawan v. Holder , 557 U. S. 29, 33 (2009) ; Gonzales v. Duenas-Alvarez , 549 U. S. 183, 185 (2007) ; Lopez v. Gonzales , 549 U. S. 47 –53 (2006); Leocal v. Ashcroft , 543 U. S. 1, 8 (2004) . Our ordinary methodology thus confirms that the federal arson statute does not describe the New York arson statute under which Luna was convicted. As I have outlined above, see supra , at 1, the federal statute is more limited: It applies only to fires that involve “interstate or foreign commerce.” The state statute contains no such limitation. Thus, under the approach we have used in every case to date, the omission of the interstate commerce element means that Luna’s state arson conviction was not an aggravated felony under the INA. B The plain language of the statute supports this straightforward approach. The word “describe” means to “express,” “portray,” or “represent.” See Black’s Law Dictionary 445 (6th ed. 1990); Webster’s Third New International Dictionary 610 (1986). A description may be “detailed” or it may be general, setting forth only the “recognizable features, or characteristic marks,” of the thing described while leaving the rest to the imagination. 4 Oxford English Dictionary 512 (2d ed. 1989). For example, a Craigslist ad describing an apartment with “in-unit laundry, a dishwasher, rooftop access, central A/C, and a walk-in closet” may leave much to the imagination. After all, the description does not mention the apartment’s square footage, windows, or floor number. But though the ad omits features, we would still call it a “description” because it accurately conveys the “recognizable features” of the apartment. However, even the most general description cannot refer to features that the thing being described does not have. The ad is only an accurate description if the apartment “described in” it has at least the five features listed. If the apartment only has four of the five listed features—there is no rooftop access, say, or the walk-in closet is not so much walk-in as shimmy-in—then the Craigslist ad no longer “describes” the apartment. Rather, it mis describes it. So, too, with the statutes in this case. The federal description can be general as long as it is still accurate—that is, as long as the state law has at least all of the elements in the federal law. But there is no meaning of “describe” that allows the Court to say §844(i) “describes” the New York offense when the New York offense only has four of the five elements listed in §844(i). Section 844(i) misdescribes the New York offense just as surely as the too-good-to-be-true Craigslist ad misdescribes the real-life apartment. C The structure of the INA confirms that conclusion and makes clear that we need not contort the ordinary, accepted meaning of the phrase “described in.” The INA has many overlapping provisions that assign carefully calibrated consequences to various types of criminal convictions. The Court thus need not interpret any provision—and certainly none of the aggravated felony provisions, among the harshest in the INA—as broadly as possible because the INA as a whole ensures that serious criminal conduct is adequately captured. That overlapping structure is apparent throughout the INA. First, the aggravated felony list itself has multiple fail-safe provisions. Most serious offenses, for instance, will qualify as “crime[s] of violence . . . for which the term of imprisonment [is] at least one year,” 8 U. S. C. §1101(a)(43)(F), even if they are not covered by a more specific provision in the aggravated felony list. Had his crime been charged as a more serious arson and had he been punished by one year of imprisonment instead of one day, Luna might have qualified as an aggravated felon under that provision. See Santana v. Holder , 714 F. 3d 140, 145 (CA2 2013) (second-degree arson in New York is a “crime of violence”).[ 1 ] Second, other sections of the INA provide intertwining coverage for serious crimes. Some examples of provisions that encompass many offenses include those for the commission of a “crime involving moral turpitude,” a firearms offense, or a controlled substance offense, all of which will render a noncitizen removable, even if he or she has not committed an aggravated felony. See §§1227(a)(2)(A)(i), (B)(i), (C); §§1182(a)(2)(A)(i)–(ii). Cf. Judulang v. Holder , 565 U. S. 42, 48 (2011) (commenting on the breadth of the “crime involving moral turpitude” provision).[ 2 ] And finally, in Luna’s case or anyone else’s, the Attorney General can exercise her discretion to deny relief to a serious criminal whether or not that criminal has been convicted of an aggravated felony. See Carachuri-Rosendo, 560 U. S., at 581 (doubting that a narrow reading of §1101(a)(43) will have “any practical effect on policing our Nation’s borders”). To be sure, on Luna’s reading, some serious conduct may not be captured by the INA. But not nearly so much as the majority suggests. By contrast, once the aggra-vated felony statute applies to a noncitizen, no provision in the INA—and virtually no act by the Attorney General—can prevent him or her from being removed. Looking for consistency in the aggravated felony provisions of the INA is often a fool’s errand. See Kawashima , 565 U. S., at ___, n. 2 (slip op., at 9, n. 2) (Ginsburg, J., dissenting) (noting the absurdity of making a tax misdemeanor, but not driving while drunk and causing serious bodily injury, an aggravated felony). But the structure of the INA gives the Court no reason to read the aggravated felony provisions as broadly as possible.[ 3 ] That is why this Court has repeatedly cautioned against interpreting the aggravated felony section to sweep in offenses that—like many state arson convictions—may be neither aggravated nor felonies. See Carachuri-Rosendo , 560 U. S., at 574; Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 28–29 (collecting state misdemeanor arson statutes). III The majority denies Luna the opportunity to present his case to the Attorney General based on two “contextual considerations,” ante, at 7, and an intuition about how the statute ought to work. None are sufficiently persuasive to overcome the most natural reading of the aggravated felony statute. A The majority first perceives a conflict between Luna’s reading of the INA and what it calls the “penultimate sentence” of the aggravated felony statute. The “penultimate sentence” provides that an offense can be an aggravated felony “whether in violation of Federal or State law” or “in violation of the law of a foreign country.” 8 U. S. C. §1101(a)(43). The majority claims that Luna’s reading of the INA would vitiate the quoted proviso. Ante, at 8–10. It is true that, on Luna’s reading, some of the aggra-vated felonies listed in the INA (including “an offense de-scribed in” §844(i)) will have no state or foreign analog. But the proviso still applies to generic offenses, which constitute nearly half of the entries in the aggravated felony list. See, e.g., §§1101(a)(43)(A), (G), (M)(i). And that already-large portion jumps to close to three-quarters of the offenses after counting those many listed federal statutes with no jurisdictional element. See, e.g., §§1101(a)(43)(C), (E)(ii), (J). In fact, it applies to the vast majority of offenses adjudicated under the INA given that most serious crimes are also “crimes of violence.” See §1101(a)(43)(F).[ 4 ] And the majority must admit that its interpretation will also leave entries in the aggravated-felony section with no state or foreign analogs. For instance, it seems unlikely that the proviso contemplates state analogs for the aggravated felony provisions regarding treason, levying war against the United States, or disclosing national defense information. See §§1101(a)(43)(L)(i), (P). In other words, under Luna’s reading, the “penultimate sentence” applies to most, but not all, of the entries of the aggravated felony statute; under the majority’s reading, the “penultimate sentence” also applies to most, but not all, of the entries of the aggravated felony statute. The majority’s first “contextual consideration” thus supplies no reason to prefer one reading over the other. B Just as important, the majority suggests, is a “settled practice of distinguishing between substantive . . . elements”—those that define “the evil Congress seeks to prevent”—and “jurisdictional element[s],” which merely “establis[h] legislative authority.” Ante, at 15. The majority admits that the Court does not distinguish between substantive and jurisdictional elements for many purposes, such as proof beyond a reasonable doubt and the rightto a jury trial. Ibid .; see Ring v. Arizona , 536 U. S. 584, 606 (2002) . But it nonetheless insists on a standard distinction so entrenched that Congress must have intended it to apply even absent any particular indication in the INA. None of the three examples that the majority proffers is evidence of such a strong norm. First, the majority invokes our rules for interpreting criminal statutes. Ante, at 15–16. Whereas our general assumption is that a de-fendant must know each fact making his conduct illegal, courts generally hold that a criminal defendant need not know the facts that satisfy the jurisdictional element of a statute. But jurisdictional elements are not the only elements a defendant need not know. Under the “default rule,” ante, at 18, n. 12, for interpreting so-called “public welfare” offenses, courts have held that a defendant need not know that the substance he possesses is a narcotic, that the device he possesses is unregistered, or that he reentered the United States after previously being deported. See Staples v. United States , 511 U. S. 600 –609, 611 (1994) (citing United States v. Balint , 258 U. S. 250 (1922) , and United States v. Freed , 401 U. S. 601 (1971) ); United States v. Burwell , 690 F. 3d 500, 508–509 (CADC 2012); United States v. Giambro , 544 F. 3d 26, 29 (CA1 2008); United States v. Martinez-Morel , 118 F. 3d 710, 715–717 (CA10 1997). But surely the majority would not suggest that if we agree with those holdings regarding mens rea , we must then ignore the “controlled substance” element of the drug trafficking aggravated felony, the “unregistered” element of the unregistered firearms aggravated felony, or the “following deportation” element of the illegal reentry aggravated felony. See 8 U. S. C. §§1101(a)(43)(B), (E)(iii), (M)(i), (O). So there is likewise no reason to believe that the “default rule” for assigning mens rea to jurisdictional elements is embedded in the INA. The majority next points to two of the many statutes that, like the INA, require comparing the elements of federal and state offenses. But in each case, it is the statute’s language and context, not some “settled practice,” ante, at 15, that command the omission of the jurisdic-tional element. The majority’s first example, ante, at 16–17, is the Assimilative Crimes Act, 18 U. S. C. §13(a), a gap-filling statute that incorporates state criminal law into federal enclaves if the “act or omission” is not “made punishable by any enactment of Congress” but “would be punishable if committed or omitted within the jurisdiction of the State.” The Court held that, in identifying such a gap, courts should ignore “jurisdictional, or other technical,” differences between a state and federal statute. Lewis v. United States , 523 U. S. 155, 165 (1998) . But the way courts match the elements of a state law to a federal analog under the Assimilative Crimes Act differs fundamentally from our INA inquiry. The basic question under the Assimilative Crimes Act is whether “federal statutes reveal an intent to occupy so much of the field as would exclude the use of the particular state statute at issue.” Id., at 164. Under the Assimilative Crimes Act, the state statute is not compared to a single federal statute, but rather to a complex of federal statutes that roughly cover the same general conduct and “policies.” Ibid. That statute thus has little to teach us about 8 U. S. C. §1101(a)(43): In interpreting the Assimilative Crimes Act, every Member of the Court rejected the simple elements-matching approach that the Court generally employs to construe the aggravated felony provisions of the INA. See 523 U. S., at 182 (Kennedy, J., dissenting) (allowing “slight differences” in definition between federal and state statute and using “same-elements inquiry” only as a “starting point”). The majority’s analogy to the federal three strikes statute, 18 U. S. C. §3559(c)(2)(F), ante, at 17–18, is similarly unhelpful. That provision counts as a predicate “ ‘serious violent felony’ ” any “ ‘Federal or State offense . . . wherever committed , consisting of’ ” various crimes, including several “ ‘as described in’ ” federal statutes. Ante, at 17. (emphasis added). Though this Court has not construed the statute, the majority notes that courts of appeals disregard the jurisdictional element of federal statutes in assessing whether a state conviction is for a “serious violent felony.” Ante , at 15–16. But nearly all of the statutes listed in §3559(c)(2)(F) contain place-based jurisdiction elements—the crime must take place “within the special maritime and territorial jurisdiction of the United States,” e.g., §1111(b), or within “the special aircraft jurisdiction of the United States,” 49 U. S. C. §46502, and so on. In the two cases cited by the majority, for instance, ante, at 17, Courts of Appeals concluded that a state robbery offense qualified as an offense “described in” the federal bank robbery statute even though the robbery did not take place in a bank. See United States v. Wicks , 132 F. 3d 383, 387 (CA7 1997); United States v. Rosario-Delgado , 198 F. 3d 1354, 1357 (CA11 1999). In that statute, it is the “wherever committed,” not some loose construction of “described in,” that specifically instructs the courts that the location where a crime occurs does not matter. Moreover, in other statutes where Congress wants to exclude jurisdictional elements when comparing state and federal offenses, it ordinarily just says so. See, e.g., 18 U. S. C. §3142(e)(2)(A) (requiring detention of defendant pending trial if “the person has been convicted . . . of a State or local offense that would have been an offense described in subsection (f )(1) of this section if a circumstance giving rise to Federal jurisdiction had existed”); §2265A(b)(1)(B); §2426(b)(1)(B); §3142(f)(1)(D); §5032; 42 U. S. C. §§671(a)(15)(D)(ii)(I)–(II); §§5106a(b)(2)(B)(xvi)(I)–(II). Absent comparably clear language, the Court should not presume that the INA intended deportability to depend on a not-so-“settled practice,” ante , at 15, of occasionally distinguishing between substantive and jurisdictional elements. C Finally, the majority suggests that it would be “peculiarly perverse,” ante, at 10, to adopt Luna’s plain-text readingof the statute because it would draw a distinction among crimes based on a jurisdictional element that the majority assumes is wholly divorced from “the evil Congress seeks to prevent,” ante, at 15. The jurisdictional element of a federal statute, the majority asserts, is as trivial as the perfunctory warning on a new electronic device: “[A] person would say that she had followed the instructions for setting up an iPhone that are ‘described in’ the user’s manual, even if she in fact ignored the one” instructing that she “begin by ‘read[ing] important safety information.’ ” Ante, at 7, n. 5; see also ibid. (comparing jurisdictional element to a “detour” in a 3-week itinerary). For instance, the majority assumes that it would not be “plausible,” ante, at 12, for Congress to have thought that interstate crimes are worse than wholly intrastate crimes. Perhaps. But when faced with an offense that, like arson, admits of a range of conduct, from the minor to the serious, Congress could plausibly have concluded that arsons prosecuted as federal crimes are more uniformly serious than arsons prosecuted as state crimes and counted only the former as aggravated felonies. See, e.g., Klein et al., Why Federal Prosecutors Charge: A Comparison of Fed-eral and New York State Arson and Robbery Filings, 2006–2010, 51 Houston L. Rev. 1381, 1406, 1416–1419 (2014) (finding that arsons prosecuted federally involve more property damage and more injury than arsons prosecuted under state law). That is because, far from being token, “conventional jurisdictional elements” serve to narrow the kinds of crimes that can be prosecuted, not just to specify the sovereign that can do the prosecuting. Take the federal statute at issue in this case. Section 844(i) requires that the property destroyed be “used in interstate . . . commerce.” The Court has held that “standard, jurisdictional” element, ante, at 21, demands the property’s “active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce.” Jones v. United States , 529 U. S. 848, 855 (2000) . As a result, the Court held that a defendant who threw a Molotov cocktail through the window of an owner-occupied residential house could not be guilty under §844(i) because the house was not “active[ly] used” in interstate commerce. Id ., at 851. Surely, however, a New York prosecutor could have secured a conviction under N. Y. Penal Law Ann. §150.10 had the same crime been prosecuted in state, rather than federal, court. The difference between an offense under N. Y. Penal Law Ann. §150.10 and an offense under 18 U. S. C. §844(i) is thus more than a technical consideration about which authority chooses to prosecute. It is a difference that goes to the magnitude and nature of the “evil,” ante, at 15 , itself. *  *  * On the majority’s reading, long-time legal permanent residents with convictions for minor state offenses are foreclosed from even appealing to the mercy of the Attorney General. Against our standard method for comparing statutes and the text and structure of the INA, the majority stacks a supposed superfluity, a not-so-well-settled practice, and its conviction that jurisdictional elements are mere technicalities. But an element is an element, andI would not so lightly strip a federal statute of one. I respectfully dissent. Notes 1 Many of the majority’s own examples of “the gravest” state offenses supposedly excluded from the aggravated felony list by Luna’s reading actually fall within these fail-safe provisions. Ante, at 10. Many state arsons will qualify as “crime[s] of violence” under 8 U. S. C. §1101(a)(43)(F), see, e.g., Mbea v. Gonzales , 482 F. 3d 276, 279 (CA4 2007); an even greater fraction of the most serious arsons will fall under that heading because States like New York have enacted gra-dated statutes under which more severe degrees of arson are crimes of violence, see Santana , 714 F. 3d, at 145. To take another of the majority’s examples, while a state conviction for demanding a ransom in a kidnaping is not “an offense described in [ 18 U. S. C. §875]” under §1101(a)(43)(H), a state conviction for kidnaping or conspiring to kidnap may qualify as a crime of violence under §1101(a)(43)(F). See United States v. Kaplansky , 42 F. 3d 320 (CA6 1994). 2 Other crimes in the majority’s list of serious offenses, ante, at 10–14, will be covered by these separate INA provisions. For example, the Board of Immigration Appeals has held that any child pornography offense is a “crime involving moral turpitude,” rendering a noncitizen removable in many cases. See §§1227(a)(2)(A)(i), 1182(a)(2)(A)(i); In re Olquin-Rufino , 23 I. & N. Dec. 896 (BIA 2006). Any offense involving a gun would make a noncitizen deportable under one of the catchall provisions for buying, selling, or possessing a firearm in violation of “any law.” See §1227(a)(2)(C). 3 If the aggravated felony provisions were the primary mechanism for removing serious noncitizen criminals, we would expect any noncitizen convicted of an aggravated felony to face immigration consequences. In fact, the aggravated felony provisions only apply to noncitizens who are lawfully admitted or later paroled. Matter of Alyazji , 25 I. & N. Dec. 397, 399 (BIA 2011). Other noncitizens—such as undocumented immigrants, noncitizens applying for a visa, or some legal permanent residents returning after an extended stay abroad—cannot be removed based on the conviction of an aggravated felony; the Government must rely on the other provisions of the INA, including the statute’s other criminal provisions, to remove such noncitizens. See §§1101(a)(13)(A), 1182, 1227(a)(2)(A)(iii). 4 When the proviso was added to the INA in 1990, it would have applied to an even greater fraction of the aggravated felonies: At that time, the aggravated felony statute listed only five offenses, four of which would have had state analogs even on Luna’s reading. See 104Stat. 5048 (1990).

The Supreme Court ruled that a state crime that corresponds to a specified federal offense, except for lacking an interstate commerce element, still counts as an "aggravated felony" under the Immigration and Nationality Act (INA). This decision has significant implications for deportable aliens, making them ineligible for discretionary relief and subjecting them to expedited removal proceedings.

Immigration & National Security

Jennings v. Rodriguez

https://supreme.justia.com/cases/federal/us/583/15-1204/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 15–1204 _________________ DAVID JENNINGS, et al., PETITIONERS v. ALEJANDRO RODRIGUEZ, et al., individ- ually and on behalf of all others similarly situated on writ of certiorari to the united states court of appeals for the ninth circuit [February 27, 2018] Justice Alito delivered the opinion of the Court, except as to Part II.[ 1 ]* Every day, immigration officials must determine whether to admit or remove the many aliens who have arrived at an official “port of entry” ( e.g., an international airport or border crossing) or who have been apprehended trying to enter the country at an unauthorized location. Immigration officials must also determine on a daily basis whether there are grounds for removing any of the aliens who are already present inside the country. The vast majority of these determinations are quickly made, but in some cases deciding whether an alien should be admitted or removed is not as easy. As a result, Congress has authorized immigration officials to detain some classes of aliens during the course of certain immigration proceedings. Detention during those proceedings gives immigration officials time to determine an alien’s status without running the risk of the alien’s either absconding or engaging in criminal activity before a final decision can be made. In this case we are asked to interpret three provisions of U. S. immigration law that authorize the Government to detain aliens in the course of immigration proceedings. All parties appear to agree that the text of these provisions, when read most naturally, does not give detained aliens the right to periodic bond hearings during the course of their detention. But by relying on the constitutional-avoidance canon of statutory interpretation, the Court of Appeals for the Ninth Circuit held that detained aliens have a statutory right to periodic bond hearings under the provisions at issue. Under the constitutional-avoidance canon, when statutory language is susceptible of multiple interpretations, a court may shun an interpretation that raises serious constitutional doubts and instead may adopt an alternative that avoids those problems. But a court relying on that canon still must interpret the statute, not rewrite it. Because the Court of Appeals in this case adopted implausible constructions of the three immigration provisions at issue, we reverse its judgment and remand for further proceedings. I A To implement its immigration policy, the Government must be able to decide (1) who may enter the country and (2) who may stay here after entering. 1 That process of decision generally begins at the Nation’s borders and ports of entry, where the Government must determine whether an alien seeking to enter the country is admissible. Under122Stat.867,8 U. S. C. §1225, an alien who “arrives in the United States,” or “is present” in this country but “has not been admitted,” is treated as “an applicant for admission.” §1225(a)(1). Applicants for admission must “be inspected by immigration officers” to ensure that they may be admitted into the country consistent with U. S. immigration law. §1225(a)(3). As relevant here, applicants for admission fall into one of two categories, those covered by §1225(b)(1) and those covered by §1225(b)(2). Section 1225(b)(1) applies to aliens initially determined to be inadmissible due to fraud, misrepresentation, or lack of valid documentation. See §1225(b)(1)(A)(i) (citing §§1182(a)(6)(C), (a)(7)). Section 1225(b)(1) also applies to certain other aliens designated by the Attorney General in his discretion. See §1225(b)(1)(A)(iii). Section 1225(b)(2) is broader. It serves as a catchall provision that applies to all applicants for admission not covered by §1225(b)(1) (with specific exceptions not relevant here). See §§1225(b)(2)(A), (B). Both §1225(b)(1) and §1225(b)(2) authorize the detention of certain aliens. Aliens covered by §1225(b)(1) are normally ordered removed “without further hearing or review” pursuant to an expedited removal process. §1225(b)(1)(A)(i). But if a §1225(b)(1) alien “indicates either an intention to apply for asylum . . . or a fear of persecution,” then that alien is referred for an asylum interview. §1225(b)(1)(A)(ii). If an immigration officer determines after that interview that the alien has a credible fear of persecution, “the alien shall be detained for further consideration of the application for asylum.” §1225(b)(1)(B)(ii). Aliens who are instead covered by §1225(b)(2) are detained pursuant to a different process. Those aliens “shall be detained for a [removal] proceeding” if an immigration officer “determines that [they are] not clearly and beyond a doubt entitled to be admitted” into the country. §1225(b)(2)(A). Regardless of which of those two sections authorizes their detention, applicants for admission may be temporarily released on parole “for urgent humanitarian reasons or significant public benefit.” §1182(d)(5)(A); see also 8 CFR §§212.5(b), 235.3 (2017). Such parole, however, “shall not be regarded as an admission of the alien.”8 U. S. C. §1182(d)(5)(A). Instead, when the purpose of the parole has been served, “the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.” Ibid. 2 Even once inside the United States, aliens do not have an absolute right to remain here. For example, an alien present in the country may still be removed if he or she falls “within one or more . . . classes of deportable aliens.” §1227(a). That includes aliens who were inadmissible at the time of entry or who have been convicted of certain criminal offenses since admission. See §§1227(a)(1), (2). Section 1226 generally governs the process of arresting and detaining that group of aliens pending their removal. As relevant here, §1226 distinguishes between two different categories of aliens. Section 1226(a) sets out the default rule: The Attorney General may issue a warrant for the arrest and detention of an alien “pending a decision on whether the alien is to be removed from the United States.” §1226(a). “Except as provided in subsection (c) of this section,” the Attorney General “may release” an alien detained under §1226(a) “on bond . . . or conditional parole.” Ibid. Section 1226(c), however, carves out a statutory category of aliens who may not be released under §1226(a). Under §1226(c), the “Attorney General shall take into custody any alien” who falls into one of several enumerated categories involving criminal offenses and terrorist activities. §1226(c)(1). The Attorney General may release aliens in those categories “only if the Attorney General decides . . . that release of the alien from custody is necessary” for witness-protection purposes and “the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.” §1226(c)(2). Any release under those narrow conditions “shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.” Ibid. [ 2 ] In sum, U. S. immigration law authorizes the Government to detain certain aliens seeking admission into the country under §§1225(b)(1) and (b)(2). It also authorizes the Government to detain certain aliens already in the country pending the outcome of removal proceedings under §§1226(a) and (c). The primary issue is the proper interpretation of §§1225(b), 1226(a), and 1226(c). B Respondent Alejandro Rodriguez is a Mexican citizen. Since 1987, he has also been a lawful permanent resident of the United States. In April 2004, after Rodriguez was convicted of a drug offense and theft of a vehicle, the Government detained him under §1226 and sought to remove him from the country. At his removal hearing, Rodriguez argued both that he was not removable and, in the alternative, that he was eligible for relief from removal. In July 2004, an Immigration Judge ordered Rodriguez deported to Mexico. Rodriguez chose to appeal that decision to the Board of Immigration Appeals, but five months later the Board agreed that Rodriguez was subject to mandatory removal. Once again, Rodriguez chose to seek further review, this time petitioning the Court of Appeals for the Ninth Circuit for review of the Board’s decision. In May 2007, while Rodriguez was still litigating his removal in the Court of Appeals, he filed a habeas petition in the District Court for the Central District of California, alleging that he was entitled to a bond hearing to determine whether his continued detention was justified. Rodriguez’s case was consolidated with another, similar case brought by Alejandro Garcia, and together they moved for class certification. The District Court denied their motion, but the Court of Appeals for the Ninth Circuit reversed. See Rodriguez v. Hayes , 591 F. 3d 1105, 1111 (2010). It concluded that the proposed class met the certification requirements of Rule 23 of the Federal Rules of Civil Procedure, and it remanded the case to the District Court. Id., at 1111, 1126. On remand, the District Court certified the following class: “[A]ll non-citizens within the Central District of California who: (1) are or were detained for longer than six months pursuant to one of the general immigration detention statutes pending completion of removal proceedings, including judicial review, (2) are not and have not been detained pursuant to a national security detention statute, and (3) have not been afforded a hearing to determine whether their detention is justified.” Class Certification Order in Rodriguez v. Hayes , CV 07–03239 (CD Cal., Apr. 5, 2010). The District Court named Rodriguez as class representative of the newly certified class, ibid. , and then organized the class into four subclasses based on the four “general immigration detention statutes” under which it understood the class members to be detained: Sections 1225(b), 1226(a), 1226(c), and 1231(a). See Order Granting Plaintiff’s Motion for Class Certification in Rodriguez v. Holder , CV 07–03239 (CD Cal., Mar. 8, 2011) (2011 Order); Rodriguez v. Robbins , 715 F. 3d 1127, 1130–1131 (CA9 2013). Each of the four subclasses was certified to pursue declaratory and injunctive relief. 2011 Order. On appeal, the Court of Appeals held that the §1231(a) subclass had been improperly certified, but it affirmed the certification of the other three subclasses. See Rodriguez v. Robbins , 804 F. 3d 1060, 1074, 1085–1086 (CA9 2015). In their complaint, Rodriguez and the other respondents argued that the relevant statutory provisions—§§1225(b), 1226(a), and 1226(c)—do not authorize “prolonged” detention in the absence of an individualized bond hearing at which the Government proves by clear and convincing evidence that the class member’s detention remains justified. Absent such a bond-hearing requirement, respondents continued, those three provisions would violate the Due Process Clause of the Fifth Amendment. In their prayer for relief, respondents thus asked the District Court to require the Government “to provide, after giving notice, individual hearings before an immigration judge for . . . each member of the class, at which [the Government] will bear the burden to prove by clear and convincing evidence that no reasonable conditions will ensure the detainee’s presence in the event of removal and protect the community from serious danger, despite the prolonged length of detention at issue.” Third Amended Complaint in Rodriguez v. Holder , CV 07–03239, p. 31 (CD Cal., Oct. 20, 2010). Respondents also sought declaratory relief. Ibid. As relevant here, the District Court entered a permanent injunction in line with the relief sought by respondents, and the Court of Appeals affirmed. See 804 F. 3d , at 1065. Relying heavily on the canon of constitutional avoidance, the Court of Appeals construed §§1225(b) and 1226(c) as imposing an implicit 6-month time limit on an alien’s detention under these sections. Id., at 1079, 1082. After that point, the Court of Appeals held, the Government may continue to detain the alien only under the authority of §1226(a). Ibid. The Court of Appeals then construed §1226(a) to mean that an alien must be given a bond hearing every six months and that detention beyond the initial 6-month period is permitted only if the Government proves by clear and convincing evidence that further detention is justified. Id., at 1085, 1087. The Government petitioned this Court for review of that decision, and we granted certiorari. 579 U. S. ___ (2016). II Before reaching the merits of the lower court’s interpretation, we briefly address whether we have jurisdiction to entertain respondents’ claims. We discuss two potential obstacles, 8 U. S. C. §§1252(b)(9) and 1226(e). A Under §1252(b)(9): “Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter [including §§1225 and 1226] shall be available only in judicial review of a final order under this section.” This provision does not deprive us of jurisdiction. We are required in this case to decide “questions of law,” specifically, whether, contrary to the decision of the Court of Appeals, certain statutory provisions require detention without a bond hearing. We assume for the sake of argument that the actions taken with respect to all the aliens in the certified class constitute “action[s] taken . . . to remove [them] from the United States.”[ 3 ] On that assumption, the applicability of §1252(b)(9) turns on whether the legal questions that we must decide “aris[e] from” the actions taken to remove these aliens. It may be argued that this is so in the sense that if those actions had never been taken, the aliens would not be in custody at all. But this expansive interpretation of §1252(b)(9) would lead to staggering results. Suppose, for example, that a detained alien wishes to assert a claim under Bivens v. Six Unknown Fed. Narcotics Agents ,403 U. S. 388 (1971), based on allegedly inhumane conditions of confinement. See, e.g., Ziglar v. Abbasi , 582 U. S. ___, ___–___ (2017) (slip op., at 23–29). Or suppose that a detained alien brings a state-law claim for assault against a guard or fellow detainee. Or suppose that an alien is injured when a truck hits the bus transporting aliens to a detention facility, and the alien sues the driver or owner of the truck. The “questions of law and fact” in all those cases could be said to “aris[e] from” actions taken to remove the aliens in the sense that the aliens’ injuries would never have occurred if they had not been placed in detention. But cramming judicial review of those questions into the review of final removal orders would be absurd. Interpreting “arising from” in this extreme way would also make claims of prolonged detention effectively unreviewable. By the time a final order of removal was eventually entered, the allegedly excessive detention would have already taken place. And of course, it is possible that no such order would ever be entered in a particular case, depriving that detainee of any meaningful chance for judicial review. In past cases, when confronted with capacious phrases like “ ‘arising from,’ ” we have eschewed “ ‘uncritical literalism’ ” leading to results that “ ‘no sensible person could have intended.’ ” Gobeille v. Liberty Mut. Ins. Co. , 577 U. S. ___, ___ (2016) (slip op., at 6) (interpreting phrase “relate to” in the Employee Retirement Income Security Act of 1974’s pre-emption provision). See also, e.g., FERC v. Electric Power Supply Assn. , 577 U. S. ___, ___–___ (2016) (slip op., at 15–16) (interpreting term “affecting” in Federal Power Act); Maracich v. Spears ,570 U. S. 48–61 (2013) (interpreting phrase “in connection with” in Driver’s Privacy Protection Act); Dan’s City Used Cars, Inc. v. Pelkey ,569 U. S. 251–261 (2013) (interpreting phrase “related to” in Federal Aviation Administration Authorization Act); Celotex Corp. v. Edwards ,514 U. S. 300,308 (1995) (interpreting phrase “related to” in Bankruptcy Act). In Reno v. American-Arab Anti-Discrimination Comm. ,525 U. S. 471,482 (1999), we took this approach in construing the very phrase that appears in §1252(b)(9). A neighboring provision of the Immigration and Nationality Act refers to “any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.”8 U. S. C. §1252(g) (emphasis added). We did not interpret this language to sweep in any claim that can technically be said to “arise from” the three listed actions of the Attorney General. Instead, we read the language to refer to just those three specific actions themselves. American-Arab Anti-Discrimination Comm. , supra , at 482–483. The parties in this case have not addressed the scope of §1252(b)(9), and it is not necessary for us to attempt to provide a comprehensive interpretation. For present purposes, it is enough to note that respondents are not asking for review of an order of removal; they are not challenging the decision to detain them in the first place or to seek removal; and they are not even challenging any part of the process by which their removability will be determined. Under these circumstances, §1252(b)(9) does not present a jurisdictional bar.[ 4 ] B We likewise hold that §1226(e) does not bar us from considering respondents’ claims. That provision states: “The Attorney General’s discretionary judgment regarding the application of [§1226] shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.” §1226(e). As we have previously explained, §1226(e) precludes an alien from “challeng[ing] a ‘discretionary judgment’ by the Attorney General or a ‘decision’ that the Attorney General has made regarding his detention or release.” Demore v. Kim ,538 U. S. 510,516 (2003). But §1226(e) does not preclude “challenges [to] the statutory framework that permits [the alien’s] detention without bail.” Id., at 517. Respondents mount that second type of challenge here. First and foremost, they are challenging the extent of the Government’s detention authority under the “statutory framework” as a whole. If that challenge fails, they are then contesting the constitutionality of the entire statutory scheme under the Fifth Amendment. Because the extent of the Government’s detention authority is not a matter of “discretionary judgment,” “action,” or “decision,” respondents’ challenge to “the statutory framework that permits [their] detention without bail,” ibid. , falls outside of the scope of §1226(e). We may therefore consider the merits of their claims. III When “a serious doubt” is raised about the constitutionality of an act of Congress, “it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson ,285 U. S. 22,62 (1932). Relying on this canon of constitutional avoidance, the Court of Appeals construed §§1225(b), 1226(a), and 1226(c) to limit the permissible length of an alien’s detention without a bond hearing. Without such a construction, the Court of Appeals believed, the “ ‘prolonged detention without adequate procedural protections’ ” authorized by the provisions “ ‘would raise serious constitutional concerns.’ ” 804 F. 3d, at 1077 (quoting Casas-Castrillon v. DHS , 535 F. 3d 942, 950 (CA9 2008)). The canon of constitutional avoidance “comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.” Clark v. Martinez ,543 U. S. 371,385 (2005). In the absence of more than one plausible construction, the canon simply “ ‘has no application.’ ” Warger v. Shauers , 574 U. S. ___, ___ (2014) (slip op., at 10) (quoting United States v. Oakland Cannabis Buyers’ Cooperative ,532 U. S. 483,494 (2001)). The Court of Appeals misapplied the canon in this case because its interpretations of the three provisions at issue here are implausible. In Parts III–A and III–B, we hold that, subject only to express exceptions, §§1225(b) and 1226(c) authorize detention until the end of applicable proceedings. And in Part III–C, we hold that there is no justification for any of the procedural requirements that the Court of Appeals layered onto §1226(a) without any arguable statutory foundation. A As noted, §1225(b) applies primarily to aliens seeking entry into the United States (“applicants for admission” in the language of the statute). Section 1225(b) divides these applicants into two categories. First, certain aliens claiming a credible fear of persecution under §1225(b)(1) “shall be detained for further consideration of the application for asylum.” §1225(b)(1)(B)(ii). Second, aliens falling within the scope of §1225(b)(2) “shall be detained for a [removal] proceeding.” §1225(b)(2)(A). Read most naturally, §§1225(b)(1) and (b)(2) thus mandate detention of applicants for admission until certain proceedings have concluded. Section 1225(b)(1) aliens are detained for “further consideration of the application for asylum,” and §1225(b)(2) aliens are in turn detained for “[removal] proceeding[s].” Once those proceedings end, detention under §1225(b) must end as well. Until that point, however, nothing in the statutory text imposes any limit on the length of detention. And neither §1225(b)(1) nor §1225(b)(2) says anything whatsoever about bond hearings. Despite the clear language of §§1225(b)(1) and (b)(2), respondents argue—and the Court of Appeals held—that those provisions nevertheless can be construed to contain implicit limitations on the length of detention. But neither of the two limiting interpretations offered by respondents is plausible. 1 First, respondents argue that §§1225(b)(1) and (b)(2) contain an implicit 6-month limit on the length of detention. Once that 6-month period elapses, respondents contend, aliens previously detained under those provisions must instead be detained under the authority of §1226(a), which allows for bond hearings in certain circumstances. There are many problems with this interpretation. Nothing in the text of §1225(b)(1) or §1225(b)(2) even hints that those provisions restrict detention after six months, but respondents do not engage in any analysis of the text. Instead, they simply cite the canon of constitutional avoidance and urge this Court to use that canon to read a “six-month reasonableness limitation” into §1225(b). Brief for Respondents 48. That is not how the canon of constitutional avoidance works. Spotting a constitutional issue does not give a court the authority to rewrite a statute as it pleases. Instead, the canon permits a court to “choos[e] between competing plausible interpretations of a statutory text.” Clark , supra , at 381 (emphasis added). To prevail, respondents must thus show that §1225(b)’s detention provisions may plausibly be read to contain an implicit 6-month limit. And they do not even attempt to defend that reading of the text. In much the same manner, the Court of Appeals all but ignored the statutory text. Instead, it read Zadvydas v. Davis ,533 U. S. 678 (2001), as essentially granting a license to graft a time limit onto the text of §1225(b). Zadvydas, however, provides no such authority. Zadvydas concerned §1231(a)(6), which authorizes the detention of aliens who have already been ordered removed from the country. Under this section, when an alien is ordered removed, the Attorney General is directed to complete removal within a period of 90 days,8 U. S. C. §1231(a)(1)(A), and the alien must be detained during that period, §1231(a)(2). After that time elapses, however, §1231(a)(6) provides only that certain aliens “ may be detained” while efforts to complete removal continue. (Emphasis added.) In Zadvydas , the Court construed §1231(a)(6) to mean that an alien who has been ordered removed may not be detained beyond “a period reasonably necessary to secure removal,” 533 U. S., at 699, and it further held that six months is a presumptively reasonable period, id., at 701. After that, the Court concluded, if the alien “provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future,” the Government must either rebut that showing or release the alien. Ibid. The Zadvydas Court justified this interpretation by invoking the constitutional-avoidance canon, and the Court defended its resort to that canon on the ground that §1231(a)(6) is ambiguous. Specifically, the Court detected ambiguity in the statutory phrase “ may be detained.” “ ‘[M]ay,’ ” the Court said, “suggests discretion” but not necessarily “unlimited discretion. In that respect the word ‘may’ is ambiguous.” Id., at 697. The Court also pointed to the absence of any explicit statutory limit on the length of permissible detention following the entry of an order of removal. Ibid. Zadvydas represents a notably generous application of the constitutional-avoidance canon, but the Court of Appeals in this case went much further. It failed to address whether Zadvydas ’s reasoning may fairly be applied in this case despite the many ways in which the provision in question in Zadvydas , §1231(a)(6), differs materially from those at issue here, §§1225(b)(1) and (b)(2). Those dif- ferences preclude the reading adopted by the Court of Appeals. To start, §§1225(b)(1) and (b)(2), unlike §1231(a)(6), provide for detention for a specified period of time. Section 1225(b)(1) mandates detention “for further consideration of the application for asylum,” §1225(b)(1)(B)(ii), and §1225(b)(2) requires detention “for a [removal] proceeding,” §1225(b)(2)(A). The plain meaning of those phrases is that detention must continue until immigration officers have finished “consider[ing]” the application for asylum, §1225(b)(1)(B)(ii), or until removal proceedings have concluded, §1225(b)(2)(A). By contrast, Congress left the permissible length of detention under §1231(a)(6) unclear. Moreover, in Zadvydas, the Court saw ambiguity in §1231(a)(6)’s use of the word “may.” Here, by contrast, §§1225(b)(1) and (b)(2) do not use the word “may.” Instead, they unequivocally mandate that aliens falling within their scope “shall” be detained. “Unlike the word ‘may,’ which implies discretion, the word ‘shall’ usually connotes a requirement.” Kingdomware Technologies, Inc. v. United States , 579 U. S. ___, ___ (2016) (slip op., at 9). That requirement of detention precludes a court from finding ambiguity here in the way that Zadvydas found ambiguity in §1231(a)(6). Zadvydas ’s reasoning is particularly inapt here because there is a specific provision authorizing release from §1225(b) detention whereas no similar release provision applies to §1231(a)(6). With a few exceptions not relevant here, the Attorney General may “for urgent humanitarian reasons or significant public benefit” temporarily parole aliens detained under §§1225(b)(1) and (b)(2).8 U. S. C. §1182(d)(5)(A). That express exception to detention implies that there are no other circumstances under which aliens detained under §1225(b) may be released. See A. Scalia & B. Garner, Reading Law 107 (2012) (“Negative-Implication Canon[:] The expression of one thing implies the exclusion of others ( expressio unius est exclusio al- terius )”). That negative implication precludes the sort of implicit time limit on detention that we found in Zadvydas .[ 5 ] In short, a series of textual signals distinguishes the provisions at issue in this case from Zadvydas ’s interpretation of §1231(a)(6). While Zadvydas found §1231(a)(6) to be ambiguous, the same cannot be said of §§1225(b)(1) and (b)(2): Both provisions mandate detention until a certain point and authorize release prior to that point only under limited circumstances. As a result, neither provision can reasonably be read to limit detention to six months. 2 In this Court, respondents advance an interpretation of the language of §§1225(b)(1) and (b)(2) that was never made below, namely, that the term “for,” which appears in both provisions, mandates detention only until the start of applicable proceedings rather than all the way through to their conclusion. Respondents contrast the language of §§1225(b)(1) and (b)(2) authorizing detention “for” further proceedings with another provision’s authorization of detention “pending” further proceedings. See8 U. S. C. §1225(b)(1)(B)(iii)(IV) (“Any alien . . . shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed”). According to respondents, that distinction between “for” and “pending” makes an enormous difference. As they see things, the word “pending” authorizes detention throughout subsequent proceedings, but the term “for” means that detention authority ends once subsequent proceedings begin. As a result, respondents argue, once the applicable proceedings commence, §§1225(b)(1) and (b)(2) no longer authorize detention, and the Government must instead look to §1226(a) for continued detention authority. That interpretation is inconsistent with ordinary English usage and is incompatible with the rest of the statute. To be sure, “for” can sometimes mean “in preparation for or anticipation of.” 6 Oxford English Dictionary 24 (2d ed. 1989). But “for” can also mean “[d]uring [or] throughout,” id., at 26, as well as “with the object or purpose of,” id., at 23; see also American Heritage Dictionary 709 (3d ed. 1992) (“Used to indicate the object, aim, or purpose of an action or activity”; “Used to indicate amount, extent, or duration”); Random House Dictionary of the English Language 747 (2d ed. 1987) (“with the object or purpose of”; “during the continuance of”); Webster’s Third New International Dictionary 886 (1993) (“with the purpose or object of”; “to the . . . duration of”). And here, only that second set of definitions makes sense in the context of the statutory scheme as a whole. For example, respondents argue that, once detention authority ends under §§1225(b)(1) and (b)(2), aliens can be detained only under §1226(a). But that section authorizes detention only “[o]n a warrant issued” by the Attorney General leading to the alien’s arrest. §1226(a). If respondents’ interpretation of §1225(b) were correct, then the Government could detain an alien without a warrant at the border, but once removal proceedings began, the Attorney General would have to issue an arrest warrant in order to continue detaining the alien. To put it lightly, that makes little sense. Nor does respondents’ interpretation of the word “for” align with the way Congress has historically used that word in §1225. Consider that section’s text prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,110Stat.3009–546. Under the older version of §1225(b), “[e]very alien” within its scope “who may not appear . . . to be clearly and beyond a doubt entitled to [entry] shall be detained for further inquiry to be conducted by a special inquiry officer.”8 U. S. C. §1225(b) (1994 ed.). It would make no sense to read “for further inquiry” as authorizing detention of the alien only until the start of the inquiry; Congress obviously did not mean to allow aliens to feel free to leave once immigration officers asked their first question. In sum, §§1225(b)(1) and (b)(2) mandate detention of aliens throughout the completion of applicable proceedings and not just until the moment those proceedings begin. Of course, other provisions of the immigration statutes do authorize detention “pending” other proceedings or “until” a certain point. See post, at 22–23 (Breyer, J., dissenting) (quoting §1225(b)(1)(B)(iii)(IV)). But there is no “canon of interpretation that forbids interpreting different words used in different parts of the same statute to mean roughly the same thing.” Kirtsaeng v. John Wiley & Sons, Inc. ,568 U. S. 519,540 (2013). We decline to invent and apply such a canon here. B While the language of §§1225(b)(1) and (b)(2) is quite clear, §1226(c) is even clearer. As noted, §1226 applies to aliens already present in the United States. Section 1226(a) creates a default rule for those aliens by permitting—but not requiring—the Attorney General to issue warrants for their arrest and detention pending removal proceedings. Section 1226(a) also permits the Attorney General to release those aliens on bond, “[e]xcept as provided in subsection (c) of this section.” Section 1226(c) in turn states that the Attorney General “shall take into custody any alien” who falls into one of the enumerated categories involving criminal offenses and terrorist activities.8 U. S. C. §1226(c)(1). Section 1226(c) then goes on to specify that the Attorney General “may release” one of those aliens “ only if the Attorney General decides” both that doing so is necessary for witness-protection purposes and that the alien will not pose a danger or flight risk. §1226(c)(2) (emphasis added). Like §1225(b), §1226(c) does not on its face limit the length of the detention it authorizes. In fact, by allowing aliens to be released “only if” the Attorney General decides that certain conditions are met, §1226(c) reinforces the conclusion that aliens detained under its authority are not entitled to be released under any circumstances other than those expressly recognized by the statute. And together with §1226(a), §1226(c) makes clear that detention of aliens within its scope must continue “pending a decision on whether the alien is to be removed from the United States.” §1226(a). In a reprise of their interpretation of §1225(b), respondents argue, and the Court of Appeals held, that §1226(c) should be interpreted to include an implicit 6-month time limit on the length of mandatory detention. Once again, that interpretation falls far short of a “plausible statutory construction.” In defense of their statutory reading, respondents first argue that §1226(c)’s “silence” as to the length of detention “cannot be construed to authorize prolonged mandatory detention, because Congress must use ‘clearer terms’ to authorize ‘long-term detention.’ ” Brief for Respondents 34 (quoting Zadvydas , 533 U. S., at 697). But §1226(c) is not “silent” as to the length of detention. It mandates detention “pending a decision on whether the alien is to be removed from the United States,” §1226(a), and it expressly prohibits release from that detention except for narrow, witness-protection purposes. Even if courts were permitted to fashion 6-month time limits out of statutory silence, they certainly may not transmute existing statutory language into its polar opposite. The constitutional-avoidance canon does not countenance such textual alchemy. Indeed, we have held as much in connection with §1226(c) itself. In Demore v. Kim , 538 U. S., at 529, we distinguished §1226(c) from the statutory provision in Zadvydas by pointing out that detention under §1226(c) has “a definite termination point”: the conclusion of removal proceedings. As we made clear there, that “definite termination point”—and not some arbitrary time limit devised by courts—marks the end of the Government’s detention authority under §1226(c). Respondents next contend that §1226(c)’s limited authorization for release for witness-protection purposes does not imply that other forms of release are forbidden, but this argument defies the statutory text. By expressly stating that the covered aliens may be released “only if” certain conditions are met,8 U. S. C. §1226(c)(2), the statute expressly and unequivocally imposes an affirmative prohibition on releasing detained aliens under any other conditions. Finally, respondents point to a provision enacted as part of the PATRIOT Act[ 6 ] and contend that their reading of §1226(c) is needed to prevent that provision from being superfluous. That argument, however, misreads both statutory provisions. Although the two provisions overlap in part, they are by no means congruent. Two differences stand out. First, §1226(c) and the PATRIOT Act cover different categories of aliens. Both apply to certain terrorist suspects, but only §1226(c) reaches aliens convicted of other more common criminal offenses. See §§1226(c)(1)(A)–(C) (aliens inadmissible or deportable under §1182(a)(2); §§1227(a)(2)(A)(ii), (A)(iii), (B), (C), and (D); and §1227(a)(2)(A)(i) under certain conditions). For its part, the PATRIOT Act casts a wider net than §1226(c) insofar as it encompasses certain threats to national security not covered by §1226(c). See §1226a(a)(3) (aliens described in §§1182(a)(3)(A)(i), (iii), and 1227(a)(4)(A)(i), (iii), as well as aliens “engaged in any other activity that endangers the national security of the United States”). In addition, the Government’s detention authority under §1226(c) and the PATRIOT Act is not the same. Under §1226(c), the Government must detain an alien until “a decision on whether the alien is to be removed” is made. §1226(a) (emphasis added). But, subject to exceptions not relevant here, the PATRIOT Act authorizes the Government to detain an alien “until the alien is removed .” §1226a(a)(2) (emphasis added). Far from being redundant, then, §1226(c) and the PATRIOT Act apply to different categories of aliens in different ways. There is thus no reason to depart from the plain meaning of §1226(c) in order to avoid making the provision superfluous. We hold that §1226(c) mandates detention of any alien falling within its scope and that detention may end prior to the conclusion of removal proceedings “only if” the alien is released for witness-protection purposes. C Finally, as noted, §1226(a) authorizes the Attorney General to arrest and detain an alien “pending a decision on whether the alien is to be removed from the United States.” §1226(a). As long as the detained alien is not covered by §1226(c), the Attorney General “may release” the alien on “bond . . . or conditional parole.” §1226(a). Federal regulations provide that aliens detained under §1226(a) receive bond hearings at the outset of detention. See 8 CFR §§236.1(d)(1), 1236.1(d)(1). The Court of Appeals ordered the Government to provide procedural protections that go well beyond the initial bond hearing established by existing regulations—namely, periodic bond hearings every six months in which the Attorney General must prove by clear and convincing evidence that the alien’s continued detention is necessary. Nothing in §1226(a)’s text—which says only that the Attorney General “may release” the alien “on . . . bond”—even remotely supports the imposition of either of those requirements. Nor does §1226(a)’s text even hint that the length of detention prior to a bond hearing must specifically be considered in determining whether the alien should be released. IV For these reasons, the meaning of the relevant statutory provisions is clear—and clearly contrary to the decision of the Court of Appeals. But the dissent is undeterred. It begins by ignoring the statutory language for as long as possible, devoting the first two-thirds of its opinion to a disquisition on the Constitution. Only after a 19-page prologue does the dissent acknowledge the relevant statutory provisions. The dissent frames the question of interpretation as follows: Can §§1225(b), 1226(c), and 1226(a) be read to require bond hearings every six months “without doing violence to the statutory language,” post, at 20 (opinion of Breyer, J.)? According to the dissent, the answer is “yes,” but the dissent evidently has a strong stomach when it comes to inflicting linguistic trauma. Thus, when Congress mandated that an “alien shall be detained,” §1225(b)(1)(B)(ii), what Congress really meant, the dissent insists, is that the alien may be released from custody provided only that his freedom of movement is restricted in some way, such as by “the imposition of a curfew,” post, at 21. And when Congress stressed that “[t]he Attorney General may release an alien . . . only if . . . release . . . from custody is necessary” to protect the safety of a witness, §1226(c)(2) (emphasis added), what Congress meant, the dissent tells us, is that the Attorney General must release an alien even when no witness is in need of protection—so long as the alien is neither a flight risk nor a danger to the community, see post, at 25–27. The contortions needed to reach these remarkable conclusions are a sight to behold. Let us start with the simple term “detain.” According to the dissent, “detain” means the absence of “unrestrained freedom.” Post, at 21. An alien who is subject to any one of “numerous restraints”—including “a requirement to obtain medical treatment,” “to report at regular intervals,” or even simply to comply with “a curfew”—is “detained” in the dissent’s eyes, even if that alien is otherwise free to roam the streets. Ibid. This interpretation defies ordinary English usage. The dictionary cited by the dissent, the Oxford English Dictionary (OED), defines “detain” as follows: “[t]o keep in confinement or under restraint; to keep prisoner .” 4 OED 543 (2d ed. 1989) (emphasis added); see also OED (3d ed. 2012), http://www.oed.com/view/Entry/51176 (same). Other general-purpose dictionaries provide similar definitions. See, e.g., Webster’s Third New International Dictionary 616 (1961) (“to hold or keep in or as if in custody ”); Webster’s New International Dictionary 710 (2d ed. 1934) (“[t]o hold or keep as in custody”); American Heritage Dictionary 508 (def. 2) (3d ed. 1992) (“To keep in custody or temporary confinement”); Webster’s New World College Dictionary 375 (3d ed. 1997) (“to keep in custody; confine”). And legal dictionaries define “detain” the same way. See, e.g., Ballentine’s Law Dictionary 343 (3d ed. 1969) (“To hold; to keep in custody; to keep”); Black’s Law Dictionary 459 (7th ed. 1999) (“The act or fact of holding a person in custody; confinement or compulsory delay”). How does the dissent attempt to evade the clear meaning of “detain”? It resorts to the legal equivalent of a sleight-of-hand trick. First, the dissent cites a passage in Blackstone stating that arrestees could always seek release on bail. Post, at 8–9. Then, having established the obvious point that a person who is initially detained may later be released from detention, the dissent reasons that this means that a person may still be regarded as detained even after he is released from custody. Post, at 21. That, of course, is a nonsequitur. Just because a person who is initially detained may later be released, it does not follow that the person is still “detained” after his period of detention comes to an end. If there were any doubt about the meaning of the term “detain” in the relevant statutory provisions, the context in which they appear would put that doubt to rest. Title 8 of the United States Code, the title dealing with immigration, is replete with references that distinguish between “detained” aliens and aliens who are free to walk the streets in the way the dissent imagines. Section 1226(a), for instance, distinguishes between the power to “continue to detain the arrested alien” and the power to “release the alien on . . . bond.” But if the dissent were right, that distinction would make no sense: An “alien released on bond” would also be a “detained alien.” Here is another example: In §1226(b), Congress gave the Attorney General the power to “revoke” at any time “a bond or parole authorized under subsection (a) of this section, rearrest the alien under the original warrant, and detain the alien.” It beggars belief that Congress would have given the Attorney General the power to detain a class of aliens who, under the dissent’s reading, are already “detained” because they are free on bond. But that is what the dissent would have us believe. Consider, finally, the example of §1226(c). As noted, that provision obligates the Attorney General to “take into custody” certain aliens whenever they are “released, without regard to whether the alien is released on parole, supervised release, or probation.” On the dissent’s view, however, even aliens “released on parole, supervised release, or probation” are “in custody”—and so there would be no need for the Attorney General to take them into custody again.[ 7 ] Struggling to prop up its implausible interpretation, the dissent looks to our prior decisions for aid, but that too fails. The best case it can find is Tod v. Waldman ,266 U. S. 547 (1925), a grant of a petition for rehearing in which the Court clarified that “[n]othing in [its original] order . . . shall prejudice an application for release on bail of the respondents pending compliance with the mandate of this Court.” Id., at 548. According to the dissent, that two-page decision from almost a century ago supports its reading because the underlying immigration statute in that case—like some of the provisions at issue here—mandated that the relevant class of aliens “ ‘shall be detained’ ” pending the outcome of an inspection process. See post, at 21–22 (quoting Act of Feb. 5, 1917, §16,39Stat.886). That reads far too much into Waldman . To start, the Court did not state that the aliens at issue were entitled to bail or even that bail was available to them. Instead, the Court merely noted that its decision should not “prejudice” any application the aliens might choose to file. That is notable, for in their petition for rehearing the aliens had asked the Court to affirmatively “ authorize [them] to give bail.” Petition for Rehearing in Tod v. Waldman , O. T. 1924, No. 95, p. 17 (emphasis added). By refusing to do so, the Court may have been signaling its skepticism about their request. But it is impossible to tell. That is precisely why we, unlike the dissent, choose not to go beyond what the sentence actually says. And Waldman says nothing about how the word “detain” should be read in the context of §§1225(b), 1226(c), and 1226(a).[ 8 ] Neither does Zadvydas . It is true, as the dissent points out, that Zadvydas found “that the words ‘ “may be detained” ’ [are] consistent with requiring release from long-term detention,” post, at 23 (quoting 533 U. S., at 682), but that is not because there is any ambiguity in the term “detain.” As we have explained, the key statutory provision in Zadvydas said that the aliens in question “may,” not “shall,” be detained, and that provision also failed to specify how long detention was to last. Here, the statutory provisions at issue state either that the covered aliens “shall” be detained until specified events take place, see8 U. S. C. §1225(b)(1)(B)(ii) (“further consideration of the application for asylum”); §1225(b)(2)(A) (“a [removal] proceeding”), or provide that the covered aliens may be released “only if” specified conditions are met, §1226(c)(2). The term that the Zadvydas Court found to be ambiguous was “may,” not “detain.” See 533 U. S., at 697. And the opinion in that case consistently used the words “detain” and “custody” to refer exclusively to physical confinement and restraint. See id., at 690 (referring to “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint ” (emphasis added)); id., at 683 (contrasting aliens “released on bond” with those “held in custody”).[ 9 ] The dissent offers no plausible interpretation of §§1225(b), 1226(c), and 1226(a). But even if we were to accept the dissent’s interpretation and hold that “detained” aliens in the “custody” of the Government include aliens released on bond, that would still not justify the dissent’s proposed resolution of this case. The Court of Appeals held that aliens detained under the provisions at issue must be given periodic bond hearings, and the dissent agrees. See post, at 2 (“I would interpret the statute as requiring bail hearings, presumptively after six months of confinement”). But the dissent draws that 6-month limitation out of thin air. However broad its interpretation of the words “detain” and “custody,” nothing in any of the relevant provisions imposes a 6-month time limit on detention without the possibility of bail. So if the dissent’s interpretation is right, then aliens detained under §§1225(b), 1226(c), and 1226(a) are entitled to bail hearings as soon as their detention begins rather than six months later. “Detained” does not mean “released on bond,” and it certainly does not mean “released on bond but only after six months of mandatory physical confinement.” The dissent’s utterly implausible interpretation of the statutory language cannot support the decision of the court below. V Because the Court of Appeals erroneously concluded that periodic bond hearings are required under the immigration provisions at issue here, it had no occasion to consider respondents’ constitutional arguments on their merits. Consistent with our role as “a court of review, not of first view,” Cutter v. Wilkinson ,544 U. S. 709, n. 7 (2005), we do not reach those arguments. Instead, we remand the case to the Court of Appeals to consider them in the first instance. Before the Court of Appeals addresses those claims, however, it should reexamine whether respondents can continue litigating their claims as a class. When the District Court certified the class under Rule 23(b)(2) of the Federal Rules of Civil Procedure, it had their statutory challenge primarily in mind. Now that we have resolved that challenge, however, new questions emerge. Specifically, the Court of Appeals should first decide whether it continues to have jurisdiction despite8 U. S. C. §1252(f )(1). Under that provision, “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [§§1221–1232] other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” Section 1252(f )(1) thus “prohibits federal courts from granting classwide injunctive relief against the operation of §§1221–123[2].” American-Arab Anti-Discrimination Comm. , 525 U. S., at 481. The Court of Appeals held that this provision did not affect its jurisdiction over respondents’ statutory claims because those claims did not “seek to enjoin the operation of the immigration detention statutes, but to enjoin conduct . . . not authorized by the statutes.” 591 F. 3d, at 1120. This reasoning does not seem to apply to an order granting relief on constitutional grounds, and therefore the Court of Appeals should consider on remand whether it may issue classwide injunctive relief based on respondents’ constitutional claims. If not, and if the Court of Appeals concludes that it may issue only declaratory relief, then the Court of Appeals should decide whether that remedy can sustain the class on its own. See, e. g., Rule 23(b)(2) (requiring “that final injunctive relief or corresponding declaratory relief [be] appropriate respecting the class as a whole” (emphasis added)). The Court of Appeals should also consider whether a Rule 23(b)(2) class action continues to be the appropriate vehicle for respondents’ claims in light of Wal-Mart Stores, Inc. v. Dukes ,564 U. S. 338 (2011). We held in Dukes that “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” Id., at 360. That holding may be relevant on remand because the Court of Appeals has already acknowledged that some members of the certified class may not be entitled to bond hearings as a constitutional matter. See, e. g., 804 F. 3d, at 1082; 715 F. 3d, at 1139–1141 (citing, e. g., Shaughnessy v. United States ex rel. Mezei ,345 U. S. 206 (1953)). Assuming that is correct, then it may no longer be true that the complained-of “ ‘conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’ ” Dukes , supra , at 360 (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 132 (2009)). Similarly, the Court of Appeals should also consider on remand whether a Rule 23(b)(2) class action litigated on common facts is an appropriate way to resolve respondents’ Due Process Clause claims. “[D]ue process is flexible,” we have stressed repeatedly, and it “calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer ,408 U. S. 471,481 (1972); see also Landon v. Plasencia ,459 U. S. 21,34 (1982). VI We reverse the judgment of the United States Court of Appeals for the Ninth Circuit and remand the case for further proceedings. It is so ordered. Justice Kagan took no part in the decision of this case. Notes 1 * Justice Sotomayor joins only Part III–C of this opinion. 2 Anyone who believes that he is not covered by §1226(c) may also ask for what is known as a “ Joseph hearing.” See Matter of Joseph , 22 I. & N. Dec. 799 (BIA 1999). At a Joseph hearing, that person “may avoid mandatory detention by demonstrating that he is not an alien, was not convicted of the predicate crime, or that the [Government] is otherwise substantially unlikely to establish that he is in fact subject to mandatory detention.” Demore v. Kim ,538 U. S. 510, n. 3 (2003). Whether respondents are entitled to Joseph hearings is not before this Court. 3 It is questionable whether this is true for aliens who are detained under8 U. S. C. §1225(b)(1)(B)(ii) for consideration of their asylum applications. 4 The concurrence contends that “detention is an ‘action taken . . . to remove’ an alien” and that therefore “even the narrowest reading of ‘arising from’ must cover” the claims raised by respondents. Post, at 6. We do not follow this logic. We will assume for the sake of argument that detention is an action taken “to remove an alien,” i.e. , for the purpose of removing an alien, rather than simply an action aimed at ensuring that the alien does not flee or commit a crime while his proceedings are pending. But even if we proceed on the basis of that assumption, we do not see what it proves. The question is not whether detention is an action taken to remove an alien but whether the legal questions in this case arise from such an action. And for the reasons explained above, those legal questions are too remote from the actions taken to fall within the scope of §1252(b)(9). 5 According to the dissent, we could have applied the expressio unius canon in Zadvydas as well because there was also an “alternative avenue for relief, namely, bail,” available for aliens detained under §1231(a)(6). Post, at 25 (opinion of Breyer, J.). But the dissent overlooks the fact that the provision granting bail was precisely the same provision that the Court purported to be interpreting, so the canon was not applicable. See 533 U. S., at 683. 6 See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (PATRIOT Act),115Stat.272. 7 As the dissent notes, §1158(d)(2) regulates employment authorization for certain “applicant[s] for asylum.” Were all asylum applicants detained, the dissent says, that provision would make no sense, because detained aliens do not need work authorizations. Post, at 23–24. But §1158(d)(2) applies not only to aliens seeking asylum status “in accordance with . . . section 1225(b)” (and thus aliens who are detained), but also to all aliens already “physically present in the United States.” §1158(a)(1). Many of those aliens will be in the country lawfully, and thus they will not be detained and will be able to work pending the outcome of their asylum application. For example, an alien may apply for asylum after being admitted into the country on a short-term visa. While the application is pending, §1158 may offer a way for that alien to find employment. In response, the dissent accuses us of “apply[ing] this provision to some asylum applicants but not the ones before us.” Post, at 23–24. That is not remotely what we are doing. We do not doubt that §1158(d)(2) “applies” to all “applicant[s] for asylum” as it says, even if some of those applicants are not as likely to receive an employment authorization (for instance, because they are detained) as others. 8 It should not be surprising by this point that even the aliens in Waldman understood “detention” in contradistinction to “bail.” See Petition for Rehearing in Tod v. Waldman , O. T. 1924, No. 95, pp. 17–18 (“[T]he Court’s mandate should authorize relators to give bail, instead of having [them] go to Ellis Island and remain there in custody pending an appeal . . . which may involve very long detention pending hearing of the appeal . . .” (capitalization omitted and emphasis added)). 9 The dissent argues that because “the question at issue [in Zadvydas ] was release from detention,” “the key word was consequently ‘may.’ ” Post, at 23. We agree but fail to see the point. If, as the dissent admits, Zadvydas was about “release from detention” and not about what qualifies as “detention,” then it is unclear why the dissent thinks that decision supports its unorthodox interpretation of the word “detention.” SUPREME COURT OF THE UNITED STATES _________________ No. 15–1204 _________________ DAVID JENNINGS, et al., PETITIONERS v. ALEJANDRO RODRIGUEZ, et al., individ- ually and on behalf of all others similarly situated on writ of certiorari to the united states court of appeals for the ninth circuit [February 27, 2018] Justice Thomas, with whom Justice Gorsuch joins except for footnote 6, concurring in Part I and Parts III–VI and concurring in the judgment. In my view, no court has jurisdiction over this case. Congress has prohibited courts from reviewing aliens’ claims related to their removal, except in a petition for review from a final removal order or in other circumstances not present here. See 8 U. S. C. §1252(b)(9). Respond- ents have not brought their claims in that posture, so §1252(b)(9) removes jurisdiction over their challenge to their detention. I would therefore vacate the judgment below with instructions to dismiss for lack of jurisdiction. But because a majority of the Court believes we have jurisdiction, and I agree with the Court’s resolution of the merits, I join Part I and Parts III–VI of the Court’s opinion. I Respondents are a class of aliens whose removal proceedings are ongoing. Respondents allege that the statutes that authorize their detention during removal proceedings do not authorize “prolonged” detention unless they are given an individualized bond hearing at which the Government “prove[s] by clear and convincing evidence” that their detention remains justified. Third Amended Complaint in Rodriguez v. Holder , No. CV 07–03239 (CD Cal., Oct. 22, 2010), pp. 30–31 (Third Amended Complaint). If the statutes do authorize “prolonged” detention, respondents claim that the statutes violate the Due Process Clause of the Fifth Amendment. Ibid. In their complaint, respondents sought declaratory and injunctive relief from detention during their removal proceedings. Id., at 31–32. The District Court certified a class of aliens under Federal Rule of Civil Procedure 23(b)(2) who, among other things, “are or were detained for longer than six months pursuant to one of the general immigration detention statutes.” Class Certification Order in Rodriguez v. Holder , No. CV 07–03239 (CD Cal., Apr. 5, 2010), p. 2; Rodriguez v. Hayes , 591 F. 3d 1105, 1122–1126 (CA9 2010). After the parties moved for summary judgment, the District Court entered a permanent injunction in favor of the class, which requires the named Government officials[ 1 ] to take steps to “timely identify all current and future class members,” to update class member lists with the District Court every 90 days, and to provide class members with bond hearings that comply with particular substantive and procedural requirements. Order, Judgment, and Permanent Injunction in Rodriguez v. Holder , No. CV 07–03239 (CD Cal., Aug. 6, 2013), pp. 5–6 (Order, Judgment, and Permanent Injunction). II A Although neither party raises §1252(b)(9), this Court has an “independent obligation” to assess whether it deprives us and the lower courts of jurisdiction. Arbaugh v. Y & H Corp. , 546 U. S. 500, 514 (2006) . This Court has described §1252(b)(9) as a “ ‘zipper’ clause.” See Reno v. American-Arab Anti-Discrimination Comm. , 525 U. S. 471, 483 (1999) ( AADC ); INS v. St. Cyr , 533 U. S. 289, 313 (2001) . That description is apt because, when an alien raises a claim related to his removal, §1252(b)(9) closes all but two avenues for judicial review: “ Consolidation of questions for judicial review “Judicial review of all questions of law and fact, including interpretation and application of constitu- tional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under [8 U. S. C. §§1151–1382] shall be available only in judicial review of a final order under this section . Except as otherwise provided in this section , no court shall have jurisdiction, by habeas corpus under section 2241 of title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.” (Emphasis added.) The text of this provision is clear. Courts generally lack jurisdiction over “all questions of law and fact,” both “constitutional” and “statutory,” that “aris[e] from” an “action taken or proceeding brought to remove an alien.” If an alien raises a claim arising from such an action or proceeding, courts cannot review it unless they are reviewing “a final order” under §1252(a)(1) or exercising jurisdiction “otherwise provided” in §1252.[ 2 ] Neither “habeas corpus” nor “any other provision of law” can be used to avoid §1252(b)(9)’s jurisdictional bar. In short, if a claim arises from an action taken to remove an alien, §1252(b)(9) permits judicial review in only two circumstances: in connection with review of a final removal order and via a specific grant of jurisdiction in §1252. Respondents do not argue that any specific grant of jurisdiction applies here, and they do not seek review of a final removal order under §1252(a)(1). Thus, a court may review respondents’ claims only if they can show that §1252(b)(9)’s jurisdictional bar does not apply in the first place because their claims do not “aris[e] from any action taken or proceeding brought to remove an alien.” Respondents cannot make that showing. Section 1252(b)(9) is a “general jurisdictional limitation” that applies to “all claims arising from deportation proceedings” and the “many . . . decisions or actions that may be part of the deportation process.” AADC, supra , at 482–483. Detaining an alien falls within this definition—indeed, this Court has described detention during removal proceedings as an “aspect of the deportation process.” Demore v. Kim , 538 U. S. 510, 523 (2003) ; see also Carlson v. Landon , 342 U. S. 524, 538 (1952) (“Detention is necessarily a part of [the] deportation procedure”). As the Court explains today, Congress either mandates or permits the detention of aliens for the entire duration of their removal proceedings. See ante , at 12–23. This detention, the Court further explains, is meant to ensure that the Government can ultimately remove them. See ante , at 1; accord, Demore , supra , at 528 (explaining that detention during removal proceedings “necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed”). The phrase “any action taken . . . to remove an alien from the United States” must at least cover congressionally authorized portions of the deportation process that necessarily serve the purpose of ensuring an alien’s removal. Claims challenging detention during removal proceedings thus fall within the heartland of §1252(b)(9). B The plurality, the dissent, and respondents each offer reasons why §1252(b)(9) does not apply to this case. The plurality reasons that applying §1252(b)(9) to detention claims requires an overly expansive reading of “arising from.” See ante , at 9–10. The dissent contends that §1252(b)(9) applies only to challenges to the removal order itself. Post , at 31. And respondents argue that, if §1252(b)(9) applies to their claims, they will have no meaningful way to challenge their detention during their removal proceedings.[ 3 ] Tr. of Oral Arg. 36. None of these arguments persuades me. 1 The plurality asserts that §1252(b)(9) covers respond- ents’ claims only if the words “arising from” are given an “expansive interpretation.” Ante, at 9. I am of a different view. Even if “arising from” is read narrowly, §1252(b)(9) still covers the claims at issue in this case. That is because detention is an “action taken . . . to remove” an alien. And even the narrowest reading of “arising from” must cover claims that directly challenge such actions. See AADC , 525 U. S., at 482–483. The main precedent that the plurality cites to support its narrow reading of “arising from” demonstrates that §1252(b)(9) applies here. See ante , at 10 (citing AADC , 525 U. S., at 482–483). In AADC , the Court explained that §1252(b)(9) covers “all claims arising from deportation proceedings” and the “many . . . decisions or actions that may be part of the deportation process.” Ibid. The Court even listed examples of the type of claims that would be covered, including challenges to the decision “to open an investigation” and the decision “to surveil the suspected [immigration-law] violator.” Id., at 482. If surveilling a suspected violator falls under the statute, then the detention of a known violator certainly does as well. The plurality dismisses my “expansive interpretation” because it would lead to “staggering results,” supposedly barring claims that are far afield from removal. See ante, at 9 (describing lawsuits challenging inhumane conditions of confinement, assaults, and negligent driving). But that is not the case. Unlike detention during removal proceedings, those actions are neither congressionally authorized nor meant to ensure that an alien can be removed. Thus, my conclusion that §1252(b)(9) covers an alien’s challenge to the fact of his detention (an action taken in pursuit of the lawful objective of removal) says nothing about whether it also covers claims about inhumane treatment, as- saults, or negligently inflicted injuries suffered during detention (actions that go beyond the Government’s lawful pursuit of its removal objective). Cf. Bell v. Wolfish , 441 U. S. 520 –539 (1979) (drawing a similar distinction). 2 The dissent takes a different approach. Relying on the prefatory clause to §1252(b), it asserts that §1252(b)(9) “by its terms applies only ‘[w]ith respect to review of an order of removal under [§1252(a)(1)].’ ” Post , at 31 (quoting 8 U. S. C. §1252(b)). The dissent reads the prefatory clause to mean that §1252(b)(9) applies only to a “challenge [to] an order of removal.” Post , at 31. That reading is incorrect. Section 1252(b)(9) is not restricted to challenges to removal orders. The text refers to review of “ all questions of law and fact” arising from removal, not just removal orders. (Emphasis added.) And it specifies that §1252(a)(1) provides the only means for reviewing “such an order or such questions of law or fact.” Ibid. (emphasis added). The term “or” is “ ‘almost always disjunctive, that is, the words it connects are to be given separate meanings.’ ” Loughrin v. United States , 573 U. S. ___, ___ (2014) (slip op., at 6) (quoting United States v. Woods , 571 U. S. 31 –46 (2013)). By interpreting §1252(b)(9) as governing only removal orders, the dissent reads “or such questions of law or fact” out of the statute. It also renders superfluous §1252(a)(5), which already specifies that the review made available under §1252(a)(1) “shall be the sole and exclusive means for judicial review of an order of removal .” This Court typically disfavors such interpretations. See AADC , supra , at 483. The prefatory clause of §1252(b) does not change the meaning of §1252(b)(9). The prefatory clause states that the subparagraphs of §1252(b), including §1252(b)(9), impose requirements “[w]ith respect to review of an order of removal under subsection (a)(1).” The phrase “with respect to” means “referring to,” “concerning,” or “relating to.” Oxford American Dictionary and Language Guide 853 (1999 ed.); accord, Webster’s New Universal Unabridged Dictionary 1640 (2003 ed.); American Heritage Dictionary 1485 (4th ed. 2000). Read together, the prefatory clause and §1252(b)(9) mean that review of all questions arising from removal must occur in connection with review of a final removal order under §1252(a)(1), which makes sense given that §1252(b)(9) is meant to “[c]onsolidat[e] . . . questions for judicial review.” Tellingly, on the two previous occasions when this Court interpreted §1252(b)(9), it did not understand §1252(b)(9) as limited to challenges to removal orders. See AADC , supra, at 482–483 (stating that §1252(b)(9) is a “general jurisdictional limitation” that applies to “all claims arising from deportation proceedings” and “the many . . . decisions or actions that may be part of the deportation process”); St. Cyr , 533 U. S., at 313, n. 37 (clarifying that §1252(b)(9) requires “claims that were viewed as being outside of a ‘final order’ ” to be “consolidated in a petition for review and considered by the courts of appeals” in their review of the final removal order under §1252(a)(1)). Thus, despite the dissent’s assertion to the contrary, the prefatory clause plainly does not change the scope of §1252(b)(9), which covers “all questions of law or fact” arising from the removal process. 3 At oral argument, respondents asserted that, if §1252(b)(9) bars their lawsuit, then the only review available would be “a petition for review of [a] final removal order” under §1252(a)(1), which takes place “after all the detention has already happened.”[ 4 ] Tr. of Oral Arg. 36. I interpret respondents’ argument as a claim that §1252(b)(9) would be unconstitutional if it precluded meaningful review of their detention. This argument is unpersuasive and foreclosed by precedent. The Constitution does not guarantee litigants the most effective means of judicial review for every type of claim they want to raise. See AADC , 525 U. S., at 487–492 (rejecting a similar argument); Heikkila v. Barber , 345 U. S. 229, 237 (1953) (explaining that limitations on judicial review of deportation must be followed “despite [their] apparent inconvenience to the alien”). This is especially true in the context of deportation, where limits on the courts’ jurisdiction have existed for almost as long as federal immigration laws, and where this Court has repeatedly affirmed the constitutionality of those limits.[ 5 ] Indeed, this Court has already rejected essentially the same argument that respondents raise here. In AADC , the Court held that §1252(g), a provision similar to §1252(b)(9), barred the aliens’ claim that the Government was violating the First Amendment by selectively enforc- ing the immigration laws against them. 525 U. S., at 487–492. The aliens argued that constitutional avoidance required the Court to interpret §1252(g) as not applying to their claims because the only remaining avenue for review—a petition for review of a final removal order under §1252(a)(1)—would be “unavailing” and would “come too late to prevent the ‘chilling effect’ upon their First Amendment rights.” Id. , at 487–488. The Court rejected this argument because “an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.” Id. , at 488. The Court further explained that it had a duty to enforce Congress’ limitations on judicial review, except perhaps in “a rare case in which the alleged basis of discrimination is so outrageous that the foregoing considerations [ justifying limited review could] be overcome.” Id. , at 491. Like in AADC , respondents’ lack-of-meaningful-review argument does not allow us to ignore the jurisdictional limitations that Congress has imposed. This Court has never held that detention during removal proceedings is unconstitutional. To the contrary, this Court has repeatedly recognized the constitutionality of that practice. See Demore , 538 U. S., at 523 (explaining that detention is “a constitutionally valid aspect of the deportation process”); accord, Reno v. Flores , 507 U. S. 292 –306 (1993); Shaughnessy v. United States ex rel. Mezei , 345 U. S. 206, 215 (1953) ; Carlson , 342 U. S., at 538, 542. Nor does this lawsuit qualify as the “rare case in which the alleged [executive action] is so outrageous” that it could thwart the jurisdictional limitations in §1252(b)(9). AADC , supra , at 491. The Government’s detention of respondents is entirely routine and indistinguishable from the detention that we have repeatedly upheld in the past. Thus, regardless of the inconvenience that §1252(b)(9) might pose for respondents, this Court must enforce it as written. Respondents must raise their claims in petitions for review of their final removal orders.[ 6 ] III Because I conclude that §1252(b)(9) bars jurisdiction to hear respondents’ claims, I will also address whether its application to this case violates the Suspension Clause, see Art. I, §9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”). It does not. Even assuming the Suspension Clause bars Congress from stripping habeas jurisdiction over respondents’ claims, but see St. Cyr , 533 U. S., at 337–346 (Sca- lia, J., dissenting), this case does not involve a habeas petition. Respondents do not seek habeas relief, as understood by our precedents. Although their complaint references the general habeas statute, see Third Amended Complaint, at 1, it is not a habeas petition. The complaint does not request that the District Court issue any writ. See id. , at 31–32. Rather, it seeks a declaration and an injunction that would provide relief for both present and future class members, including future class members not yet detained. Ibid. Indeed, respondents obtained class certification under Federal Rule of Civil Procedure 23(b)(2), which applies only when the class seeks “final injunctive relief or corresponding declaratory relief.”[ 7 ] Nor did respondents obtain habeas relief. When their case concluded, respondents obtained a classwide permanent injunction. See Order, Judgment, and Permanent Injunction, at 5–6. That classwide injunction looks nothing like a typical writ. It is not styled in the form of a conditional or unconditional release order. Cf. United States v. Jung Ah Lung , 124 U. S. 621, 622 (1888) (describing habeas relief as “order[ing] the discharge from custody of the person in whose behalf the writ was sued out”); Chin Yow v. United States , 208 U. S. 8, 13 (1908) (awarding habeas relief by ordering the release of the alien if certain conditions were not satisfied). It applies to future class members, including individuals who were not in custody when the injunction was issued. Cf. 28 U. S. C. §2241(c) (generally precluding issuance of the writ unless the petitioner is “in custody”). And it is directed to at least one individual, the Director for the Executive Office for Immigration Review, who is not a custodian. Cf. Rumsfeld v. Padilla , 542 U. S. 426, 434 (2004) (explaining that “the proper respondent to a habeas petition is ‘the person who has custody over [the petitioner]’ ” (quoting 28 U. S. C. §2242)). Immigration law has long drawn a distinction between the declaratory and injunctive relief that respondents sought here and habeas relief. In Heikkila , for instance, this Court distinguished habeas relief from “injunctions, declaratory judgments and other types of relief” that “courts ha[d] consistently rejected” in immigration cases. 345 U. S., at 230. The Court rejected the alien’s request for “injunctive and declaratory relief” because Congress had authorized courts to grant relief only in habeas proceedings. Id., at 230, 237. We reaffirmed this distinction in St. Cyr , where we noted that the 1961 Immigration and Nationality Act, 75Stat. 650, withdrew the district courts’ “authority to grant declaratory and injunctive relief,” but not habeas relief. 533 U. S., at 309–310; see also Shaughnessy v. Pedreiro , 349 U. S. 48 –53 (1955) (holding that the Administrative Procedure Act, which authorizes courts to grant declaratory and injunctive relief, authorized “judicial review of deportation orders other than by habeas corpus ” (emphasis added)). And Congress has confirmed this distinction in its immigration statutes by allowing one form of relief, but not the other, in particular circumstances. Compare, e.g., §1252(e)(1) (prohibiting courts from granting “declaratory, injunctive, or other equitable relief in any action pertaining to an order to exclude an alien in accordance with section 1225(b)(1)”) with §1252(e)(2) (allowing “judicial review . . . in habeas corpus proceedings” of particular “determination[s] made under section 1225(b)(1)”). Respondents’ suit for declaratory and injunctive relief, in sum, is not a habeas petition. The Suspension Clause protects “[t]he Privilege of the Writ of Habeas Corpus,” not requests for injunctive relief. Because respondents have not sought a writ of habeas corpus, applying §1252(b)(9) to bar their suit does not implicate the Suspension Clause. *  *  * Because §1252(b)(9) deprives courts of jurisdiction over respondents’ claims, we should have vacated the judgment below and remanded with instructions to dismiss this case for lack of jurisdiction. But a majority of the Court has decided to exercise jurisdiction. Because I agree with the Court’s disposition of the merits, I concur in Part I and Parts III–VI of its opinion. Notes 1 The named Government officials are the Attorney General of the United States, the Secretary of the Department of Homeland Security, the Director of the Executive Office for Immigration Review, the Director and Assistant Director of the Los Angeles District of Immigration and Customs Enforcement, and several directors of jails and detention facilities. 2 Section 1252 provides a few specific grants of jurisdiction beyond §1252(a)(1)'s general grant of jurisdiction over final removal orders and all other related questions of law and fact. Section 1252(b)(7), for example, allows an alien to challenge the validity of his removal order during criminal proceedings if he is charged with willfully failing to depart the United States. And §1252(e)(2) allows an alien who is denied admission to the United States and ordered removed to raise certain claims in habeas corpus proceedings. 3 Respondents also asserted at oral argument that the Government “has said repeatedly” that §1252(b)(9) does not apply to detention claims. Tr. of Oral Arg. 36. But our “independent obligation” to evaluate jurisdiction, Arbaugh v. Y & H Corp. , 546 U. S. 500, 514 (2006) , means that we cannot accept the Government’s concessions on this point. See King Bridge Co. v. Otoe County , 120 U. S. 225, 226 (1887) . 4 Contrary to respondents’ argument, some of the respondents will get review before “all the detention has already happened.” Respondents who successfully petition for review to the Court of Appeals from a final removal order and obtain a remand to the immigration court, like class representative Alejandro Rodriguez did here, will have an opportunity to obtain review of their detention before it is complete. See Third Amended Complaint, at 9–12. 5 See, e.g., Act of Aug. 18, 1884, 28Stat. 390 (“In every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereinafter made, the decision of the appropriate immigration or customs officers, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the Secretary of Treasury”), upheld in Lem Moon Sing v. United States , 158 U. S. 538 –550 (1895); Immigration Act of 1891, §8, 26Stat. 1085 (“All decisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the superintendent of immigration, whose action shall be subject to review by the Secretary of Treasury”), upheld in Ekiu v. United States , 142 U. S. 651, 660 (1892) ; 1917 Immigration Act, §19, 39Stat. 890 (“In every case where any person is ordered deported from the United States under the provisions of this Act, or of any law or treaty, the decision of the Secretary of Labor shall be final”), upheld in Heikkila , 345 U. S., at 233–235, 237. 6 I take no position on whether some of the respondents will face other jurisdictional hurdles, even on review of their final removal orders. See, e.g., §§1252(a)(2)(A), (B). I also continue to agree with Justice O’Connor’s concurring opinion in Demore v. Kim , 538 U. S. 510 (2003) , which explained that §1226(e) “unequivocally deprives federal courts of jurisdiction to set aside ‘any action or decision’ by the Attorney General” regarding detention. Id. , at 533 (opinion concurring in part and concurring in judgment). 7 This Court has never addressed whether habeas relief can be pursued in a class action. See Schall v. Martin , 467 U. S. 253 , n. 10 (1984) (reserving this question). I take no position on that issue here, since I conclude that respondents are not seeking habeas relief in the first place. SUPREME COURT OF THE UNITED STATES _________________ No. 15–1204 _________________ DAVID JENNINGS, et al., PETITIONERS v. ALEJANDRO RODRIGUEZ, et al., individ- ually and on behalf of all others similarly situated on writ of certiorari to the united states court of appeals for the ninth circuit [February 27, 2018] Justice Breyer, with whom Justice Ginsburg and Justice Sotomayor join, dissenting. This case focuses upon three groups of noncitizens held in confinement. Each of these individuals believes he or she has the right to enter or to remain within the United States. The question is whether several statutory provisions of the Immigration and Nationality Act, 8 U. S. C. §1101 et seq., forbid granting them bail. The noncitizens at issue are asylum seekers, persons who have finished serving a sentence of confinement (for a crime), or individuals who, while lacking a clear entitlement to enter the United States, claim to meet the criteria for admission, see infra , at 20, 25–26, 29–30. The Government has held all the members of the groups before us in confinement for many months, sometimes for years, while it looks into or contests their claims. But ultimately many members of these groups win their claims and the Government allows them to enter or to remain in the United States. Does the statute require members of these groups to receive a bail hearing, after, say, six months of confinement, with the possibility of release on bail into the community provided that they do not pose a risk of flight or a threat to the community’s safety? The Court reads the statute as forbidding bail, hence forbidding a bail hearing, for these individuals. In my view, the majority’s interpretation of the statute would likely render the statute unconstitutional. Thus, I would follow this Court’s longstanding practice of construing a statute “so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.” United States v. Jin Fuey Moy , 241 U. S. 394, 401 (1916) . And I would interpret the statute as requiring bail hearings, presumptively after six months of confinement. Cf. Zadvydas v. Davis , 533 U. S. 678, 701 (2001) . I The Respondents Because of their importance to my conclusion, I shall repeat, with references to record support, the key characteristics of the groups of noncitizens who appear before us. First , as I have said, the respondents in this case are members of three special classes of noncitizens, the most important of whom (1) arrive at our borders seeking asylum or (2) have committed crimes but have finished serving their sentences of imprisonment. We also consider those who (3) arrive at our borders believing they are entitled to enter the United States for reasons other than asylum seeking, but lack a clear entitlement to enter. Second , all members of the first group, the asylum seekers, have been found (by an immigration official) to have a “credible fear of persecution” in their home coun-try should the United States deny them admittance. 8 U. S. C. §1225(b)(1)(B)(ii). All members of the second group have, as I have said, finished serving their criminal sentences of confinement. §1226(c)(1). All members of the third group may have (or may simply believe they have) a strong claim for admittance, but they are neither “clearly and beyond a doubt entitled to be admitted” nor conclusively determined to be inadmissible by an immigration officer on grounds of fraud or lack of required documentation. §1225(b)(2)(A); see §§1225(b)(1)(A)(i), 1182(a)(6)(C), (a)(7). Third , members of the first two classes number in the thousands. See Brief for 46 Social Science Researchers and Professors as Amici Curiae 6, 8 (identifying, in 2015, 7,500 asylum seekers and 12,220 noncitizens who have finished serving sentences of criminal confinement, a portion of whom are class members detained for more than six months). Fourth , detention is often lengthy. The classes before us consist of people who were detained for at least six months and on average one year. App. 92, 97. The record shows that the Government detained some asylum seekers for 831 days (nearly 2½ years), 512 days, 456 days, 421 days, 354 days, 319 days, 318 days, and 274 days—before they won their cases and received asylum. Id. , at 97, 228–236. It also shows that the Government detained one noncitizen for nearly four years after he had finished serving a criminal sentence, and the Government detained other members of this class for 608 days, 561 days, 446 days, 438 days, 387 days, and 305 days—all before they won their cases and received relief from removal. Id. , at 92, 213–220. Fifth , many of those whom the Government detains eventually obtain the relief they seek. Two-thirds of the asylum seekers eventually receive asylum. Id. , at 98 (Table 28); id. , at 135 (Table 38); App. to Pet. for Cert. 40a. Nearly 40% of those who have served criminal sentences receive relief from removal, because, for example, their earlier conviction involved only a short sentence. See App. 95 (Table 23); id. , at 135 (Table 38). See also App. to Pet. for Cert. 34a; App. 210, 216–217, 312–313 (between one-half and two-thirds of the class served sentences less than six months, e.g., a 2-month sentence for being under the influence of a controlled substance, or an 8-day jail term for a minor firearms offense). Sixth , these very asylum seekers would have received bail hearings had they first been taken into custody within the United States rather than at the border. See In re X-K- , 23 I. & N. Dec. 731, 734–735 (BIA 2005); 8 U. S. C. §1226(a). Seventh , as for those who have finished serving their sentences (for crimes), some of those who are less dangerous would (on the majority’s view) be held without bail the longest, because their claims will take longer to adjudicate. Moreover, those noncitizens would have no opportunity to obtain bail while they pursue their claims , but if they lose their claims, the Government must release them, typically within six months, if the Government can find no other country willing to take them. See Zadvydas , supra, at 701. Eighth, all the respondents are held in detention within the geographical boundaries of the United States, either in facilities controlled by United States Immigration and Customs Enforcement (ICE) or in state or local jails that hold them on ICE’s behalf. App. 302–304; see ICE, Detention Facility Locator, online at http://www.ice.gov/ detention-facilities (all Internet materials as last visited Feb. 21, 2018). Ninth , the circumstances of their detention are similar, so far as we can tell, to those in many prisons and jails. And in some cases the conditions of their confinement are inappropriately poor. See Dept. of Homeland Security (DHS), Office of Inspector General (OIG), DHS OIG Inspection Cites Concerns With Detainee Treatment and Care at ICE Detention Facilities (2017) (reporting instances of invasive procedures, substandard care, and mistreatment, e.g. , indiscriminate strip searches, long waits for medical care and hygiene products, and, in the case of one detainee, a multiday lock down for sharing a cup of coffee with another detainee). These record-based facts make evident what I said at the outset: The case concerns persons whom immigration authorities believe are not citizens and may not have a right to enter into, or remain within, the United States. Nonetheless they likely have a reasonable claim that they do have such a right. The Government detains them, often for many months while it determines the merits of, or contests, their claims. To repeat the question before us: Does the statute entitle an individual member of one of these classes to obtain, say, after six months of detention, a bail hearing to decide whether he or she poses a risk of flight or danger to the community and, if not, to receive bail? II The Constitutional Question The majority reads the relevant statute as prohibiting bail and hence prohibiting a bail hearing. In my view, the relevant constitutional language, purposes, history, tradition, and case law all make clear that the majority’s interpretation at the very least would raise “grave doubts” about the statute’s constitutionality. See Jin Fuey Moy , 241 U. S., at 401. A Consider the relevant constitutional language and the values that language protects. The Fifth Amendment says that “[n]o person shall be . . . deprived of life, liberty, or property without due process of law.” An alien is a “person.” See Wong Wing v. United States , 163 U. S. 228 –238 (1896). To hold him without bail is to deprive him of bodily “liberty.” See United States v. Salerno , 481 U. S. 739 –751 (1987). And, where there is no bail proceeding, there has been no bail-related “process” at all. The Due Process Clause—itself reflecting the language of the Magna Carta—prevents arbitrary detention. Indeed, “[f]reedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Foucha v. Louisiana , 504 U. S. 71, 80 (1992) ; see also Demore v. Kim , 538 U. S. 510, 532 (2003) (Kennedy, J., concurring); Zadvydas , 533 U. S., at 718 (Kennedy, J., dissenting). The Due Process Clause foresees eligibility for bail as part of “due process.” See Salerno , supra, at 748–751; Schilb v. Kuebel , 404 U. S. 357, 365 (1971) ; Stack v. Boyle , 342 U. S. 1, 4 (1951) . Bail is “basic to our system of law.” Schilb , supra, at 365. It not only “permits the unhampered preparation of a defense,” but also “prevent[s] the infliction of punishment prior to conviction.” Stack , supra , at 4. It consequently limits the Government’s ability to deprive a person of his physical liberty where doing so is not needed to protect the public, see Salerno , supra, at 750–751, or to assure his appearance at, say, a trial or the equivalent, see Stack , supra, at 4–5. Why would this constitutional language and its bail-related purposes not apply to members of the classes of detained persons at issue here? The Eighth Amendment reinforces the view that the Fifth Amendment’s Due Process Clause does apply. The Eighth Amendment forbids “[e]xcessive bail.” It does so in order to prevent bail being set so high that the level itself (rather than the reasons that might properly forbid release on bail) prevents provisional release. See Carlson v. Landon , 342 U. S. 524, 545 (1952) (explaining that the English clause from which the Eighth Amendment was copied was understood “to provide that bail shall not be excessive in those cases where it is proper to grant bail”). That rationale applies a fortiori to a refusal to hold any bail hearing at all. Thus, it is not surprising that this Court has held that both the Fifth Amendment’s Due Process Clause and the Eighth Amendment’s Excessive Bail Clause apply in cases challenging bail procedures. See, e.g., Salerno , supra, at 746–755; Carlson , supra, at 537–546. It is clear that the Fifth Amendment’s protections extend to “all persons within the territory of the United States.” Wong Wing , supra , at 238. But the Government suggests that those protections do not apply to asylum seekers or other arriving aliens because the law treats arriving aliens as if they had never entered the United States; hence they are not held within its territory. This last-mentioned statement is, of course, false. All of these noncitizens are held within the territory of the United States at an immigration detention facility. Those who enter at JFK airport are held in immigration detention facilities in, e.g., New York; those who arrive in El Paso are held in, e.g., Texas. At most one might say that they are “constructively” held outside the United States: the word “constructive” signaling that we indulge in a “legal fiction,” shutting our eyes to the truth. But once we admit to uttering a legal fiction, we highlight, we do not answer, the relevant question: Why should we engage in this legal fiction here? The legal answer to this question is clear. We cannot here engage in this legal fiction. No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection. Whatever the fiction, would the Constitution leave the Government free to starve, beat, or lash those held within our boundaries? If not, then, whatever the fiction, how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States? The answer is that the Constitution does not authorize arbitrary detention. And the reason that is so is simple: Freedom from arbitrary detention is as ancient and important a right as any found within the Constitution’s boundaries. See Zadvydas , supra, at 720–721 (Kennedy, J., dissenting) (“inadmissible aliens” who are “stopped at the border” are “entitled to be free from detention that is arbitrary or capricious”). B The Due Process Clause, among other things, protects “those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors,” and which were brought by them to this country. Murray’s Lessee v. Hoboken Land & Improvement Co. , 18 How. 272, 277 (1856). A brief look at Blackstone makes clear that at the time of the American Revolution the right to bail was “settled”—in both civil and criminal cases. Blackstone tells us that every prisoner (except for a convict serving his sentence) was entitled to seek release on bail. 4 Commentaries on the Laws of England 296–297 (1769). This right applied in every criminal case. Ibid. A noncapital defendant could seek bail from a local magistrate; a capital defendant could seek bail at a hearing before the Court of King’s Bench. See ibid. Although a capital defendant had no right to obtain bail, he could always seek it, because “the court of king’s bench . . . may bail for any crime whatsoever, be it treason, murder, or any other offense, according to the circumstances of the case.” Id., at 296. And although King Charles I initially claimed the right to hold a prisoner without bail on secret national security grounds, see Darnel’s Case , 3 How. St. Tr. 1 (K. B. 1627), Parliament responded by extracting from the King (via the 1628 Petition of Right) a promise to cease such detention. See 2 W. Hawkins, A Treatise of the Pleas of the Crown 107–110 (4th ed. 1771). From then on, bail was available even when a prisoner was held on the personal command of the King. Ibid. That is why Blackstone says that the King’s Bench or its judges “may bail in any Case whatsoever,” 4 Analysis of the Laws of England 148 (6th ed. 1771), indeed, in civil cases too, for in Blackstone’s time some private civil cases might have begun with an arrest. See 3 Blackstone, Commentaries 290 (1768). And bail was likewise an alternative to detention where a judgment debtor was unable to pay a civil judgment in the era of debtor’s prison. See, e.g., Beers v. Haughton , 9 Pet. 329, 356 (1835) (explaining that under Ohio law, “if a defendant, upon a [writ of] capias, does not give sufficient appearance bail, he shall be committed to prison”); Hamilton v. Dunklee , 1 N. H. 172 (1818). American history makes clear that the settlers brought this practice with them to America. The Judiciary Act of 1789 conferred rights to bail proceedings in all federal criminal cases. §33, 1Stat. 91. It said that for a noncapital defendant “bail shall be admitted” and for a capital defendant bail may be admitted in the discretion of a district judge, a circuit judge, or a Justice of the Supreme Court, taking account of “the offence, and of the evidence, and the usages of law.” Ibid. Congress enacted this law during its debate over the Bill of Rights, which it subsequently sent to the States for ratification. See 1 Annals of Cong. 90 (1789); see also Martin v. Hunter’s Lessee , 1 Wheat. 304, 351 (1816) (Members of the First Congress were “men of great learning and ability, . . . who had acted a principal part in framing, supporting, or opposing” the Constitution itself). Colonial law had been similarly, or in some instances even more, protective. See Foote, The Coming Constitutional Crisis in Bail: I, 113 U. Pa. L. Rev. 959, 974–977 (1965). Similar laws have consistently remained part of our legal tradition. In all federal criminal cases federal Acts have provided for bail proceedings. Bail Reform Act of 1984, 18 U. S. C. §3141 et seq. ; Bail Reform Act of 1966, 18 U. S. C. §3146 et seq. (1964 ed., Supp. II). Every State has similar or more generous laws. See Appendix B, infra . Standards for granting bail have changed somewhat over time. Initially the sole factor determining the outcome of a bail proceeding was risk of flight. See Stack , 342 U. S., at 4–5 (interpreting the 1789 bail law, applied to a noncapital defendant and in light of the Eighth Amendment, to require bail no higher than required to provide “adequate assurance” that the defendant “will stand trial and submit to sentence if found guilty,” “based upon standards relevant to the purpose of assuring the presence of that defendant”). Congress gradually added community safety as a bail factor. In 1966, Congress provided that for capital defendants and convicted defendants pursuing appeals, bail would be granted unless the appeal was frivolous or a court had “reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community.” Bail Reform Act of 1966 §3148. In 1984, Congress modified the bail standard for noncapital defendants by adding concern for community safety. §3142(e)(1). This Court, applying the Due Process Clause and the Excessive Bail Clause to these changes, found that the 1984 Act passed constitutional muster. See Salerno , 481 U. S., at 746–755. Again, the States typically apply roughly similar or more generous standards. See Appendix B, infra . The cases before us, however, are not criminal cases. Does that fact make a difference? The problem is that there are not many instances of civil confinement (aside from immigration detention, which I address below). Mental illness does sometimes provide an example. Individuals dangerous to themselves or to others may be confined involuntarily to a mental hospital. See, e.g. , United States v. Comstock , 560 U. S. 126 (2010) ; Kansas v. Hendricks , 521 U. S. 346 (1997) . Those persons normally do not have what we would call “a right to a bail hearing.” But they do possess equivalent rights: They have the right to a hearing prior to confinement and the right to review of the circumstances at least annually. See Comstock , supra, at 130–131 (initial hearing followed by review every six months); Hendricks , supra , at 353 (initial hearing followed by yearly review). And the mentally ill persons detained under these schemes are being detained because they are dangerous. That being so, there would be no point in providing a bail hearing as well. See Salerno , supra , at 748–749 (analogizing denial of bail to dangerous individuals to the civil commitment of the mentally ill). But there is every reason for providing a bail proceeding to the noncitizens at issue here, because they have received no individualized determination that they pose a risk of flight or present a danger to others, nor is there any evidence that most or all of them do. This Court has also protected the right to a bail hearing during extradition proceedings. Wright v. Henkel , 190 U. S. 40 (1903) , concerned the arrest and confinement of Whitaker Wright, an American citizen, pending extradition for a crime that Wright was accused of having committed in Great Britain. Wright sought bail. Id. , at 43. Since the federal bail laws applied only to those charged with committing crimes against the United States, they did not cover Wright’s confinement. Id., at 61–62. The relevant extradition statute said nothing about bail. Id., at 62. Its language (stronger than the language at issue here) said that the individual was “to remain” in “the proper jail” until the “surrender shall be made” to the nation seeking extradition; and it added that he was “to remain” in custody “until delivered up”—though after two months he could seek release. Rev. Stat. §§5270, 5273. In an opinion by Chief Justice Fuller, this Court unanimously wrote that, despite the lack of express statutory authorization and the risk of “embarrassment” to the United States if Wright fled, Wright could seek release on bail prior to the expiration of the 2-month period. Wright , 190 U. S., at 62–63. Given the universal entitlement to bail under English law, the Court was “unwilling to hold that . . . courts may not in any case, and whatever the special circumstances, extend that relief” to prisoners awaiting extradition. Id., at 63. It consequently read a silent statute as authorizing bail proceedings (though the Court went on to hold that, under applicable standards, Wright’s request for bail should be denied). Ibid. The strongest basis for reading the Constitution’s bail requirements as extending to these civil, as well as criminal, cases, however, lies in the simple fact that the law treats like cases alike. And reason tells us that the civil confinement at issue here and the pretrial criminal confinement that calls for bail are in every relevant sense identical. There is no difference in respect to the fact of confinement itself. And I can find no relevant difference in respect to bail-related purposes. Which class of persons—criminal defendants or asylum seekers—seems more likely to have acted in a manner that typically warrants confinement? A person charged with a crime cannot be confined at all without a finding of probable cause that he or she committed the crime. And the majority of criminal defendants lose their cases. See Dept. of Justice, Bureau of Justice Statistics, B. Reaves, Felony Defendants in Large Urban Counties, 2009–Statistical Tables, p. 24 (Dec. 2013) (reporting that 66% of felony defendants were convicted). A high percentage of the noncitizens before us, however, ultimately win the right they seek, the right to be in the United States. Nor am I aware of any evidence indicating that the noncitizens seeking to enter, or to remain within, the United States are more likely than criminal defendants to threaten the safety of the community if released. In any event, this is a matter to be determined, case by case, at bail hearings. Which group is more likely to present a risk of flight? Again, I can find no evidence suggesting that asylum seekers or other noncitizens generally present a greater risk of flight than persons imprisoned for trial where there is probable cause to believe that the confined person has committed a crime. In any event, this matter too is to be determined, case by case, at bail hearings. If there is no reasonable basis for treating these confined noncitizens worse than ordinary defendants charged with crimes, 18 U. S. C. §3142; worse than convicted criminals appealing their convictions, §3143(b); worse than civilly committed citizens, supra, at 10–11; worse than identical noncitizens found elsewhere within the United States, supra , at 4; and worse than noncitizens who have committed crimes, served their sentences, and been definitively ordered removed (but lack a country willing to take them), supra, at 4, their detention without bail is arbitrary. Thus, the constitutional language, purposes, and tradition that require bail in instances of criminal confinement also very likely require bail in these instances of civil confinement. That perhaps is why Blackstone wrote that the law provides for the possibility of “bail in any case whatsoever.” 4 Analysis of the Laws of England, at 148. C My examination of the cases from this Court that considered detention of noncitizens and bail suggests that this Court, while sometimes denying bail to individuals, generally has not held that bail proceedings are unnecessary. Indeed, it almost always has suggested the contrary. 1. In 1882 Congress enacted two laws that restricted immigration: The first prohibited the entry of “Chinese laborers.” The Chinese Exclusion Act, ch. 126, 22Stat. 58. The second prohibited the entry of “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.” Act of Aug. 3, 1882, 22Stat. 214. Neither said a word about bail. But in one instance, an excluded Chinese woman was detained in jail in San Francisco pending her return to China. She sought bail. In re Ah Moy , 21 F. 808 (CC Cal. 1884). Justice Field, sitting as a Circuit Judge, wrote that the court lacked the authority to order bail because doing so would allow her to enter the United States—just what the statute forbade. Id., at 809. The other sitting Circuit Judge (Judge Sawyer) disagreed. Id., at 810 (dissenting opinion). He pointed out that the alien would remain “in the custody and control of the law while lawfully on bail.” Ibid. He added that it “would be a great hardship, not to say a gross violation of her personal rights,” to refuse bail for 15 days before her ship arrived as long as she could provide “security satisfactory to the court” that she would indeed depart when it did. Id., at 809–810. Two other Circuit Judges noted their agreement with Judge Sawyer. Id., at 809, n. 1. But they did not participate in the case, ibid. , the two participating judges split 1 to 1, and so the views of presiding Justice Field prevailed. The alien appealed to this Court, Cheong Ah Moy v. United States , 113 U. S. 216 (1885) , but before this Court could decide, the ship departed with Cheong Ah Moy aboard. 2. In Wong Wing v. United States , 163 U. S. 228 (1896) , the Court struck down as unconstitutional a statute that said alien Chinese laborers should be “imprisoned at hard labor” for up to a year before being deported. Id., at 235. In doing so, the Court wrote that although a sentence to hard labor was unlawful, “detention, or temporary confinement,” was constitutional, because “[d]etention is a usual feature of every case of arrest on a criminal charge, even when an innocent person is wrongfully accused.” Ibid. But an analogy to criminal detention is an analogy to instances in which bail hearings are required. 3. In Tod v. Waldman , 266 U. S. 113 (1924) , the Waldman family, like many of the respondents here, challenged their exclusion. They had arrived at Ellis Island fleeing religious persecution in Ukraine. They were detained because the immigration inspector believed the mother illiterate, one of the daughters disabled, and the whole family likely to become public charges. They appealed to the Labor Department, which ordered Mrs. Waldman retested for literacy, requiring her to read both Yiddish and Hebrew. She could not. She then petitioned for a writ of habeas corpus on the grounds that (1) as a religious refugee she was exempt from the literacy requirement; (2) in any event, she need read only one language, not two; (3) her daughter was not disabled; and (4) the Department of Labor should have allowed her to appeal administratively. Id., at 114–115. The relevant statutory provisions, just like the present statute, see infra , at 20, 29, said that an arriving person, unless “clearly and beyond a doubt entitled” to land, “ shall be detained for examination . . . by a board of special inquiry.” Act of Feb. 5, 1917, §16, 39Stat. 886 (emphasis added). By the time the case reached this Court, however, the family had been allowed bail. See Waldman, 266 U. S., at 117. This Court ordered the Department of Labor to provide the family with an administrative appeal. Then, after initially “remand[ing] the petitioners to the custody of immigration authorities” pending the outcome of the appeal, id., at 120, the Court clarified in a rehearing order that “[n]othing in the order of this Court shall prejudice an application for release on bail of the respondents pending compliance with the mandate of this Court.” Tod v. Waldman , 266 U. S. 547 (1925). This statement is inconsistent with the earlier opinion of Justice Field, sitting as a Circuit Judge, because it shows that even an alien challenging her exclusion could be released on bail. Supra, at 14. 4. In Carlson v. Landon , 342 U. S. 524 (1952) , this Court upheld the denial of bail to noncitizen Communists being held pending deportation, despite a statute that permitted bail proceedings. Id., at 541–546. It did so because it considered the individuals to be a risk to security. It said nothing to suggest that bail proceedings were unnecessary. 5. In Shaughnessy v. United States ex rel. Mezei , 345 U. S. 206 (1953) , the Attorney General had ordered a noncitizen permanently excluded from the United States on the ground that his “entry would be prejudicial to the public interest for security reasons.” Id. , at 208; see Subversive Activities Control Act of 1950, §§22–23, 64Stat. 1006–1012. He “sat on Ellis Island because this country shut him out and others were unwilling to take him in.” 345 U. S., at 209. After 21 months in confinement he filed a petition for a writ of habeas corpus seeking judicial review of the exclusion decision or release on bail until he could be removed to another country. Id., at 207, 209. This Court refused to review the exclusion decision on the ground that the security matter fell totally within the President’s authority, pursuant to an express congressional delegation of power. Id., at 210. The Court also denied Mezei a bail proceeding because in an “exclusion proceeding grounded on danger to the national security . . . neither the rationale nor the statutory authority for” release on bail exists. Id., at 216. It denied bail, however, after the Attorney General had already found, on an individualized basis, not only that Mezei was a security risk and consequently not entitled to either admission or bail, but also that he could be denied a hearing on the matter because the basis for that decision could not be disclosed without harm to national security. Id., at 208–209. The respondents in this case have been the subject of no such individualized findings. And unlike Mezei, who was requesting bail after his exclusion proceedings had ended (while the Attorney General searched for a country that would take him—a matter that we again confronted in Zadvydas ), the respondents here continue to litigate the lawfulness of their exclusion itself. Thus, Mezei, but not the respondents here, was in a sense in the position of a convicted criminal who had lost his appeal, not a criminal awaiting trial (or the results of an appeal). 6. Zadvydas v. Davis , 533 U. S. 678 (2001) , concerned a noncitizen who had lawfully resided in this country, committed a serious crime, completed his prison sentence, and was then ordered deported. Id., at 684. Zadvydas sought release on bail during the time the Government searched for a country that would take him. Id. , at 684–685. The governing statute said an alien such as Zadvydas “may be detained” pending his removal to another country. 8 U. S. C. §1231(a)(6). We interpreted those words as requiring release from detention once it became clear that there was “no significant likelihood of removal in the reasonably foreseeable future”—presumptively after a period of confinement of six months. 533 U. S., at 701. We read the statute as requiring this release because a “statute permitting indefinite detention of an alien would raise a serious constitutional problem.” Id., at 690. From a constitutional perspective, this case follows a fortiori from Zadvydas . Here only a bail hearing is at issue, not release on bail, much less permanent release. And here there has been no final determination that any of the respondents lacks a legal right to stay in the United States—the bail hearing at issue concerns conditional release pending that final determination. It is immaterial that detention here is not literally indefinite, because while the respondents’ removal proceedings must end eventually, they last an indeterminate period of at least six months and a year on average, thereby implicating the same constitutional right against prolonged arbitrary detention that we recognized in Zadvydas . 7. In Demore v. Kim , 538 U. S. 510 (2003) , we held that the Government could constitutionally hold without bail noncitizens who had committed certain crimes, had completed their sentences, and were in removal proceedings. See §1226(c). But we based our holding on the short-term nature of the confinement necessary to complete proceedings. See id. , at 529–530. The Court wrote that the “detention at stake . . . lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal.” Id., at 530. We added: “[I]n 85% of the cases in which aliens are detained [ pursuant to the relevant statute], removal proceedings are completed in an average time of 47 days and a median of 30 days. In the remaining 15% of cases, in which the alien appeals the decision of the immigration judge to the Board of Immigration Appeals, appeal takes an average of four months, with a median time that is slightly shorter.” Id., at 529 (citation omitted). Demore himself, an outlier, was detained for six months. Id., at 530–531. The Court then found detention constitutional “during the limited period” necessary to arrange for removal, and we contrasted that period of detention with the detention at issue in Zadvydas , referring to the detention in Demore as being “of a much shorter duration.” 538 U. S., at 526, 528. Justice Kennedy stated in a concurrence that the Due Process Clause might require bail hearings “if the continued detention became unreasonable or unjustified.” Id., at 532. Dissenting, I wrote that, had I believed that Demore “had conceded that he [was] deportable,” then, despite Zadvydas , “I would conclude that the Government could detain him without bail for the few weeks ordinarily necessary for formal entry of a removal order.” 538 U. S., at 576 (opinion concurring in part and dissenting in part). The Government now tells us that the statistics it gave to the Court in Demore were wrong. Detention normally lasts twice as long as the Government then said it did. And, as I have pointed out, thousands of people here are held for considerably longer than six months without an opportunity to seek bail. See supra, at 3. We deal here with prolonged detention, not the short-term detention at issue in Demore . Hence Demore , itself a deviation from the history and tradition of bail and alien detention, cannot help the Government. The upshot is the following: The Constitution’s language, its basic purposes, the relevant history, our tradition, and many of the relevant cases point in the same interpretive direction. They tell us that an interpretation of the statute before us that would deny bail proceedings where detention is prolonged would likely mean that the statute violates the Constitution. The interpretive principle that flows from this conclusion is clear and longstanding: “ ‘[A]s between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.’ ” Rust v. Sullivan , 500 U. S. 173, 190 (1991) (quoting Blodgett v. Holden , 275 U. S. 142, 148 (1927) (opinion of Holmes, J.)). Moreover, a “statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.” Jin Fuey Moy , 241 U. S., at 401. These legal principles reflect a realistic assumption, namely, that Congress—particularly a Congress that did not consider a constitutional matter—would normally have preferred a constitutional interpretation to an interpretation that may render a statute an unconstitutional nullity. And that is so even where the constitutional interpretation departs from the most natural reading of the statute’s language. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council , 485 U. S. 568, 575 (1988) ; see also National Federation of Independent Business v. Sebelius , 567 U. S. 519 –576 (2012) (majority opinion and opinion of Roberts, C. J.). III The Statutory Provisions The question remains whether it is possible to read the statute as authorizing bail. As desirable as a constitutional interpretation of a statute may be, we cannot read it to say the opposite of what its language states. The word “animal” does not include minerals, no matter how strongly one might wish that it did. Indeed, where “ ‘Congress has made its intent in the statute clear, we must give effect to that intent,’ ” even if doing so requires us to consider the constitutional question, and even if doing so means that we hold the statute unconstitutional. Zadvydas , 533 U. S., at 696 (quoting Miller v. French , 530 U. S. 327, 336 (2000) ). In my view, however, we can, and should, read the relevant statutory provisions to require bail proceedings in instances of prolonged detention without doing violence to the statutory language or to the provisions’ basic purposes. A Asylum Seekers The relevant provision governing the first class of noncitizens, the asylum seekers, is §1225(b)(1)(B)(ii). It says that, if an immigration “officer determines at the time” of an initial interview with an alien seeking to enter the United States “that [the] alien has a credible fear of persecution . . . , the alien shall be detained for further consideration of the application for asylum.” See Appendix A–1, infra . I have emphasized the three key words, namely, “shall be detained.” Do those words mean that the asylum seeker must be detained without bail ? They do not. First , in ordinary English and in light of the history of bail, the word “detain” is ambiguous in respect to the relevant point. The Oxford English Dictionary (OED), surveying the history of the word, notes that Edward Hall, a famous 16th-century legal scholar and author of Hall’s Chronicle, wrote: “A traytor . . . is apprehended and deteigned in prisone for his offence,” a use of the word, as we know from Blackstone, that is consistent with bail. See supra, at 8–9; OED (3d ed., Dec. 2012), http://www.oed.com/view/Entry/51176 (annot. to def. 1). David Hume, the famous 18th-century historian and philosopher, writes of being “detained in strict confinement,” thereby implying the existence of detention without strict confinement. Ibid. A 19th-century novelist writes, “ ‘Beg your pardon, sir,’ said the constable, . . . ‘I shall be obliged to detain you till this business is settled’ ”—again a use of “detain” that we know (from Blackstone) is consistent with bail. Ibid. And the OED concludes that the primary meaning of “detain” is “[t]o keep in confinement or under restraint ; to keep prisoner.” Ibid. (emphasis added). To grant bail, we know, is not to grant unrestrained freedom. Rather, where the Act elsewhere expressly permits bail, it requires “bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General.” 8 U. S. C. §1226(a)(2)(A). Similarly in the criminal context, bail imposes numerous restraints, ranging from the provision of a bond, to restrictions on residences and travel, to the imposition of a curfew, to a requirement to obtain medical treatment, to report at regular intervals, or even to return to custody at specified hours. See 18 U. S. C. §3142(c)(1)(B) (listing possible conditions for the pretrial release of federal criminal defendants). At the very least, because the word “detain” in this context refers to a comparatively long period of time, it can readily coexist with a word such as “bail” that refers to a shorter period of conditional release. For instance, there is nothing inconsistent in saying: During his exile, he was permitted to pay short visits to his home country; during the period of active hostilities, the soldiers would lay down their arms and fraternize on Christmas Day; during his overseas detention, he was allowed home to see his sick mother; or during his detention pending proceedings, he was permitted bail. Second , our precedent treats the statutory word “detain” as consistent with bail. In Waldman , 266 U. S. 547 , we considered an immigration statute that stated (in respect to arriving aliens) that “[e]very alien who may not appear to the examining inspector at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for examination in relation thereto by a board of special inquiry.” Act of Feb. 5, 1917, §16, 39Stat. 886 (emphasis added). The Court indicated that bail was available, stating that “[n]othing in the order of this court shall prejudice an application for release on bail.” 266 U. S., at 548. In so stating, the Court was simply following precedent, such as Wright v. Henkel , where the Court wrote that bail is available even where not “specifically vested by statute.” 190 U. S., at 63; see supra, at 11–12. When Congress passed the relevant provisions of the Act in 1996, it legislated against this historical backdrop, at a time when the precise language that it adopted had been interpreted by this Court to permit bail. See Monessen Southwestern R. Co. v. Morgan , 486 U. S. 330, 338 (1988) (“Congress’ failure to disturb a consistent judicial interpretation of a statute may provide some indication that ‘Congress at least acquiesces in, and apparently affirms, that [interpretation]’ ” (quoting Cannon v. University of Chicago , 441 U. S. 677, 703 (1979) )). Third , the Board of Immigration Appeals reads the word “detain” as consistent with bail, for it has held that its regulations, implementing the same statutory provision as is before us, allow bail for asylum seekers who are apprehended inside the United States within 100 miles of the border, rather than at a border crossing. See In re X-K- , 23 I. & N. Dec., at 732, 734–735 (discussing 8 CFR §1003.19(h)(2)(i) (2004)). The same statute, same language applies to the detention of those asylum seekers and the ones before us, so the statute must be consistent with bail in the Board of Immigration Appeals’ view. Fourth , in Zadvydas we found (to avoid similar constitutional questions) that the words “ ‘may be detained’ ” were consistent with requiring release from long-term detention. 533 U. S. , at 682 (quoting 8 U. S. C. §1231(a)(6)). The majority correctly notes that here the language substitutes the word “shall” for the word “may.” Ante, at 14–16. But the majority is wrong to distinguish Zadvydas on this basis. There the Court did not emphasize the word “detain,” for the question at issue was release from detention. And the key word was consequently “may,” suggesting discretion. Here the question concerns the right to a bail hearing during detention. And the key linguistic ambiguity concerns the word “detention.” Is that word consistent with bail proceedings? The answer, for the reasons I have stated, is “yes.” Fifth , the statute does not even mention long-term detention without bail. Whether the statute speaks in terms of discretion (“may,” as in Zadvydas ) or mandatory action (“shall,” as in this case), the Government’s argument is wrong for the same reason: Congress does not unambiguously authorize long-term detention without bail by failing to say when detention must end. As we recognized in Zadvydas , Congress anticipated long-term detention elsewhere in the Act, providing for review every six months of terrorist aliens detained under 8 U. S. C. §1537(b)(2)(C), but it did not do so here. See 533 U. S., at 697. Sixth , the Act provides that an asylum applicant whose proceedings last longer than six months may be given work authorization. §1158(d)(2). The majority would apply this provision to some asylum applicants but not the ones before us. Ante, at 26, n. 6. Of course, the statute does not contain that limitation. Read most naturally, the provision offers some indication that Congress, in the same statute, did not require asylum seekers to remain confined without bail at the 6-month mark. Seventh , there is a separate statutory provision that purports to do precisely what the majority says this one does, providing that certain aliens “shall be detained . . . until removed .” §1225(b)(1)(B)(iii)(IV) (emphasis added); ante , at 16 (detention must continue until proceedings “have finished”). The problem for the majority is that this other provision applies only to those who, unlike the respondents, have no credible fear of persecution. The provision that applies here lacks similar language. Linguistic ambiguity, while necessary, is not sufficient. I would also ask whether the statute’s purposes suggest a congressional refusal to permit bail where confinement is prolonged. The answer is “no.” There is nothing in the statute or in the legislative history that reveals any such congressional intent. The most likely reason for its absence is that Congress, like the Government when it appeared before us in Demore , believed there were no such instances, or at least that there were very few. Indeed, the Act suggests that asylum proceedings ordinarily finish quickly. See §1158(d)(5)(A) (providing that absent “exceptional circumstances,” final administrative adjudication (not including appeal) must be completed “within 180 days,” and any appeal must be filed “within 30 days” of the decision). And for those proceedings that last longer than six months, we know that two-thirds of asylum seekers win their cases. Thus, legislative silence suggests not disapproval of bail, but a lack of consideration of the matter. For present purposes that is sufficient. It means that Congress did not intend to forbid bail. An interpretation that permits bail—based upon history, tradition, statutory context, and precedent—is consistent, not inconsistent, with what Congress intended the statutory provision to do. The majority apparently finds a contrary purpose in the fact that other provisions of the statute permit the Attorney General to release an alien on parole “ ‘for urgent humanitarian reasons or significant public benefit’ ” and impose bail-like conditions. Ante, at 16–17 (discussing 8 U. S. C. §1182(d)(5)(A)). Yet under the majority’s interpretation of “detain,” the same argument could have been made in Zadvydas . We held that noncitizens presumptively are entitled to release after six months of detention, notwithstanding an available alternative avenue for relief, namely, bail. 533 U. S., at 683. There is no reason to reach a different result here. While the Government historically used this provision to take account of traditional bail factors (flight risk, safety risk), the President since issued an Executive Order directing parole to be granted “in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit.” Exec. Order. No. 13767, 82 Fed. Reg. 8793 (2017). And besides, Congress’ provision of parole to permit, for example, release for the purpose of medical care or to testify in a court proceeding—which adds to the circumstances under which a noncitizen can be released from confinement—says nothing about whether Congress intended to cut back on those circumstances in respect to the meaning of “detain” and the historical understanding that detention permits bail. B Criminals Who Have Served Their Sentences The relevant statutory provision, §1226(c), says in paragraph (1) that the “Attorney General shall take into cus- tody any alien who . . . is deportable [or inadmissible] by reason of having committed [certain crimes] when the alien is released,” presumably (or ordinarily) after having served his sentence. It then goes on to say, in paragraph (2), that the “Attorney General may release [that] alien . . . only if the Attorney General decides pursuant to section 3521 of title 18 that release of the alien from custody is necessary to provide protection to a witness [or to certain related others].” See Appendix A–2, infra . I have emphasized the relevant phrases: “take into custody” in the first paragraph, and “may release [that] alien . . . only if” in the second paragraph. We have long interpreted “in custody” as “not requir[ing] that a prisoner be physically confined.” Maleng v. Cook , 490 U. S. 488, 491 (1989) ( per curiam ). In the habeas context, we have held that “a person released on bail or on his own recognizance” is “ ‘in custody’ within the meaning of the statute.” Hensley v. Municipal Court, San Jose-Milpitas Judicial Dist. , Santa Clara Cty ., 411 U. S. 345, 349 (1973) ; Justices of Boston Municipal Court v. Lydon , 466 U. S. 294 –301 (1984) (same). The reason is simple, as I already have explained, supra, at 21: A person who is released on bail “is subject to restraints ‘not shared by the public gener- ally.’ ” Hensley , supra , at 351 (quoting Jones v. Cunningham , 371 U. S. 236, 240 (1963) ); see also Maleng , supra, at 491 (“[A] prisoner who had been placed on parole was still ‘in custody’ ” because his “release from physical confinement . . . was not unconditional; instead, it was explicitly conditioned on his reporting regularly to his parole officer, remaining in a particular community, residence, and job, and refraining from certain activities” (citing Jones , supra , at 242)). Moreover, there is no reason to interpret “custody” differently than “detain.” The OED defines “custody” as “[t]he state of being detained,” http://www.oed.com/view/ Entry/46305 (def. 5). “Detained,” as I have previously pointed out, can be read consistently with bail. See supra, at 20–23. The OED also defines the statutory phrase, “take (a person) into custody,” as “to arrest and imprison (a person),” http://www.oed.com/view/Entry/46305 (def. 5). And we know from the history, tradition, case law, and other sources earlier discussed, including Blackstone, that arresting and imprisoning a person is consistent with a bail hearing and a subsequent grant of bail, even where a statute contains words such as “commitment” or “detain.” See supra, at 5–19 (citing, e.g., Wright, 190 U. S., at 62 (reading as consistent with a bail proceeding the statutory language “ ‘shall issue [a] warrant for the commitment . . . to the proper jail, there to remain’ ” until “ ‘surrender’ ” for extradition)). But what about the second phrase, stating that the Attorney General “may release [that] alien . . . only if the Attorney General decides pursuant to section 3521 of title 18 that release of the alien from custody is necessary to provide protection to a witness”? Does the presence of the words “only if” show that the statute automatically denies bail for any other reason? It does not. That is because the phrase has nothing to do with bail. It has to do with a special program, the Witness Protection Program, set forth in 18 U. S. C. §3521. That program allows the Attorney General to relocate the witness, to give him an entirely new identity, to help his family similarly, and to pay him a stipend, among other things. §§3521(a)(1), (b)(1). The Attorney General may “take such action as [he] determines to be necessary to protect the person,” presumably even free the witness from whatever obligations might require him to report to an immigration or judicial authority. §3521(b)(1). Accordingly, when the Attorney General “release[s]” an alien under 8 U. S. C. §1226(c)(2), he does not grant bail; he may well do far more, freeing the witness from a host of obligations and restraints, including those many obligations and restraints that accompany bail. See supra, at 21. This understanding of “release” in §1226(c) is consistent with the OED’s definition of “release” as “to free from restraint” or even “to liberate from . . . an obligation” (not simply “to free from . . . captivity”), http://www.oed.com/ view/Entry/161859 (def. 6(a)). And it is consistent with our earlier reading of the word “detain.” Supra, at 20–24. Following the OED’s definition of “detain” as “ under restraint ,” we have understood the word “detention” to include the state of being “under” those “restraints” that typically accompany bail. Supra, at 20–24. That is to say, both the individual on bail and the individual not on bail are “detained”; and the Attorney General, through his Witness Protection Program powers can free the individual from both. To repeat: The provision at issue means that the Attorney General “may release” the detained person from the restraints that accompany detainment—whether that individual has been detained with, or without, bail. So understood the phrase has nothing to do with the issue before us: whether a confined individual is, or is not, entitled to bail or a bail hearing. It simply means that the Attorney General cannot free that person from all, or most, restraining conditions (including those that accompany bail) unless the alien is placed in the Witness Protection Program. So read, the words “only if” neither favor nor disfavor a reading of the statute consistent with the right to a bail proceeding. The purpose-related reasons that argue for a bail-favorable reading are also applicable here. Congress did not consider the problem of long-term detention. It wrote the statute with brief detention in mind. See H. R. Rep. No. 104–469, pt. 1, p. 123, and n. 25 (1996) (stating that the “average stay [was] 28 days”). Congress did not know (for apparently the Government did not know in Demore ) that the average length of detention for this class would turn out to be about a year. Nor did Congress necessarily know that about 40% of class members eventually obtain the right to remain in the United States. I should add that reading the statute as denying bail to those whose detention is prolonged is anomalous. Those whose removal is legally or factually questionable could be imprisoned indefinitely while the matter is being decided. Those whose removal is not questionable (for they are under a final removal order) could be further imprisoned for no more than six months. See supra , at 4, 17. In fact, even before our decision in Zadvydas , the Government gave bail hearings to noncitizens under a final order of removal after six months of detention. See 533 U. S., at 683. C Other Applicants for Admission The statutory provision that governs the third category of noncitizens seeking admission at the border is §1225(b)(2)(A). It says that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.” See Appendix A–3, infra . The Government tells us that this miscellaneous cate- gory consists of persons who are neither (1) clearly eligible for admission, nor (2) clearly ineligible. Pet. for Cert. 3–4. A clearly eligible person is, of course, immediately admitted. A clearly ineligible person—someone who lacks the required documents, or provides fraudulent ones—is “removed . . . without further hearing or review.” §1225(b)(1)(A)(i); see §§1182(a)(6)(C), (a)(7). But where the matter is not clear, i.e. , where the immigration officer determines that an alien “is not clearly and beyond a doubt entitled to be admitted,” he is detained for a re- moval proceeding. §1225(b)(2)(A). Like all respondents, this class has been detained for at least six months. It may include persons returning to the United States who have work permits or other documents seemingly entitling them to entry, but whom an immigration officer suspects are inadmissible for some other reason, such as because they may have incomplete vaccinations or have committed student visa abuse or a crime of “moral turpitude.” See §1182(a) (delineating classes of aliens ineligible for admission). For instance, the Federal Register is replete with examples of offenses that immigration authorities have thought are crimes of moral turpitude but that the courts of appeals later determine are not. See, e.g., Goldeshtein v. INS , 8 F. 3d 645, 648 (CA9 1993) (structuring financial transactions to avoid currency reports); Nunez v. Holder , 594 F. 3d 1124, 1138 (CA9 2010) (indecent exposure). It also may include individuals who claim citizenship by virtue of birth or parentage but who lack documents clearly proving their claim. The critical statutory words are the same as those I have just discussed in the context of the asylum seekers—“shall be detained.” There is no more plausible reason here than there was there to believe those words foreclose bail. See supra , at 20–24. The constitutional considerations, the statutory language, and the purposes underlying the statute are virtually the same. Thus, the result should be the same: Given the constitutional considerations, we should interpret the statute as permitting bail. IV The majority concludes in Part V, ante, at 29–31, by saying that, before considering bail-related constitutional arguments, the lower courts “should reexamine whether respondents can continue litigating their claims as a class.” Ante, at 29. Relying on dicta in Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471 (1999) ( AADC ), it then suggests that the respondents may not be able to continue litigating because the Act says that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation [of the statutory provisions here at issue] other than with respect to the application of such provi- sions to an individual alien against whom proceedings under such part have been initiated.” 8 U. S. C. §1252(f )(1). Were the majority’s suggestion correct as to this jurisdictional question, it would have shown, at most, that we should decide the constitutional question here and now. We have already asked for and received briefs on that question. But I do not believe the majority is correct. Every member of the classes before us falls within the provision’s exception. Every one of them is an “individual alien against whom proceedings under such part have been initiated.” Ibid. The Court in AADC did not con- sider, and had no reason to consider, the application of §1252(f)(1) to such a class. Regardless, a court could order declaratory relief. Federal Rule of Civil Procedure 23(b)(2) permits a class action where “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” (Emphasis added.) And the Advisory Committee says that declaratory relief can fall within the Rule’s term “corresponding” if it “serves as a basis for later injunctive relief.” Notes on Rule 23(b)(2)–1966 Amendment, 28 U. S. C. App., p. 812. Jurisdiction also is unaffected by 8 U. S. C. §1252(b)(9), which by its terms applies only “[w]ith respect to review of an order of removal under [§1252(a)(1)].” §1252(b). Respondents challenge their detention without bail, not an order of removal. Neither does Wal-Mart Stores, Inc. v. Dukes , 564 U. S. 338 (2011) , bar these class actions. Every member of each class seeks the same relief (a bail hearing), every member has been denied that relief, and the differences in situation among members of the class are not relevant to their entitlement to a bail hearing. At a minimum I can find nothing in the statute or in the cases to which the majority refers that would prevent the respondents from pursuing their action, obtaining a declaratory judgment, and then using that judgment to obtain relief, namely, a bail hearing, in an individual case. Thus, I believe the lower courts are free to consider the constitutionality of the relevant statutory provisions as the majority now interprets them. V Conclusion The relevant constitutional language, purposes, history, traditions, context, and case law, taken together, make it likely that, where confinement of the noncitizens before us is prolonged (presumptively longer than six months), bail proceedings are constitutionally required. Given this serious constitutional problem, I would interpret the statutory provisions before us as authorizing bail. Their language permits that reading, it furthers their basic purposes, and it is consistent with the history, tradition, and constitutional values associated with bail proceedings. I believe that those bail proceedings should take place in accordance with customary rules of procedure and burdens of proof rather than the special rules that the Ninth Circuit imposed. The bail questions before us are technical but at heart they are simple. We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have “certain unalienable Rights,” and that among them is the right to “Liberty.” We need merely remember that the Constitution’s Due Process Clause protects each person’s liberty from arbitrary deprivation. And we need just keep in mind the fact that, since Blackstone’s time and long before, liberty has included the right of a confined person to seek release on bail. It is neither technical nor unusually difficult to read the words of these statutes as consistent with this basic right. I would find it far more difficult, indeed, I would find it alarming, to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail. I would read the statutory words as consistent with, indeed as requiring protection of, the basic right to seek bail. Because the majority does not do so, with respect, I dissent. APPENDIXES A 1 Statute Applicable to Asylum Seekers 8 U. S. C. §1225. “Inspection by immigration officers; expedited removal of inadmissible arriving aliens; referral for hearing .      .      .      .      . “(b) Inspection of applicants for admission “(1) Inspection of aliens arriving in the United States and certain other aliens who have not been admitted or paroled “(A) Screening “(i) In general “If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title, the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution. “(ii) Claims for asylum “If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title and the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer under subparagraph (B). .      .      .      .      . “(B) Asylum interviews “(i) Conduct by asylum officers “An asylum officer shall conduct interviews of aliens referred under subparagraph (A)(ii), either at a port of entry or at such other place designated by the Attorney General. “(ii) Referral of certain aliens “If the officer determines at the time of the interview that an alien has a credible fear of persecution (within the meaning of clause (v)), the alien shall be detained for further consideration of the application for asylum. ” (Emphasis added.) 2 Statute Applicable to Criminal Aliens 8 U. S. C. §1226. “Apprehension and detention of aliens “(a) Arrest, detention, and release “On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this section and pending such decision, the Attorney General— “(1) may continue to detain the arrested alien; and “(2) may release the alien on— “(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or “(B) conditional parole; .      .      .      .      . “(c) Detention of criminal aliens “(1) Custody “The Attorney General shall take into custody any alien who— “(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title, “(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title, “(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence[d] to a term of imprisonment of at least 1 year, or “(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, “when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense. “(2) Release “The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of title 18 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.” (Emphasis added.) 3 Statute Applicable to Miscellaneous Applicants for Admission 8 U. S. C. §1225. “Inspection by immigration officers; expedited removal of inadmissible arriving aliens; referral for hearing .      .      .      .      . “(b) Inspection of applicants for admission .      .      .      .      . “(2) Inspection of other aliens “(A) In general “Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title. “(B) Exception “Subparagraph (A) shall not apply to an alien— “(i) who is a crewman, “(ii) to whom paragraph (1) applies, or “(iii) who is a stowaway. “(C) Treatment of aliens arriving from contiguous territory “In the case of an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 1229a of this title.” (Emphasis added.) B State Bail Law

The Supreme Court case, Jennings v. Rodriguez, deals with the detention of aliens during immigration proceedings and their right to periodic bond hearings. The Court interpreted three provisions of U.S. immigration law that authorize the government to detain aliens. While all parties agreed that the text of these provisions does not grant detained aliens the right to periodic bond hearings, the Ninth Circuit Court of Appeals relied on the constitutional-avoidance canon to hold that they have this right. The Supreme Court disagreed with the Ninth Circuit's interpretation, stating that a court must interpret, not rewrite, the statute. The Court reversed the Ninth Circuit's judgment and remanded the case for further proceedings.

Immigration & National Security

Pereida v. Wilkinson

https://supreme.justia.com/cases/federal/us/592/19-438/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 19–438 _________________ CLEMENTE AVELINO PEREIDA, PETITIONER v. ROBERT M. WILKINSON, ACTING ATTORNEY GENERAL on writ of certiorari to the united states court of appeals for the eighth circuit [March 4, 2021] Justice Gorsuch delivered the opinion of the Court. Everyone agrees that Clemente Avelino Pereida entered this country unlawfully, and that the government has secured a lawful order directing his removal. The only remaining question is whether Mr. Pereida can prove his eligibility for discretionary relief. Under the Immigration and Nationality Act (INA), individuals seeking relief from a lawful removal order shoulder a heavy burden. Among other things, those in Mr. Pereida’s shoes must prove that they have not been convicted of a “crime involving moral turpitude.” Here, Mr. Pereida admits he has a recent conviction, but declines to identify the crime. As a result, Mr. Pereida contends, no one can be sure whether his crime involved “moral turpitude” and, thanks to this ambiguity, he remains eligible for relief. Like the Eighth Circuit, we must reject Mr. Pereida’s argument. The INA expressly requires individuals seeking relief from lawful removal orders to prove all aspects of their eligibility. That includes proving they do not stand convicted of a disqualifying criminal offense. I The INA governs how persons are admitted to, and removed from, the United States. Removal proceedings begin when the government files a charge against an individual, and they occur before a hearing officer at the Department of Justice, someone the agency refers to as an immigration judge. If the proof warrants it, an immigration judge may order an individual removed for, say, entering the country unlawfully or committing a serious crime while here. See 8 U. S. C. §§1229a, 1182(a), 1227(a). Even then, however, an avenue for relief remains. A person faced with a lawful removal order may still ask the Attorney General to “cancel” that order. §§1229a(c)(4), 1229b(b)(1). To be eligible for this form of relief, a nonpermanent resident alien like Mr. Pereida must prove four things: (1) he has been present in the United States for at least 10 years; (2) he has been a person of good moral character; (3) he has not been convicted of certain criminal offenses; and (4) his removal would impose an “exceptional and extremely unusual” hardship on a close relative who is either a citizen or permanent resident of this country. §§1229b(b)(1), 1229a(c)(4). Establishing all this still yields no guarantees; it only renders an alien eligible to have his removal order cancelled. The Attorney General may choose to grant or withhold that relief in his discretion, limited by Congress’s command that no more than 4,000 removal orders may be cancelled each year. §1229b(e). This narrow pathway to relief proved especially challenging here. The government brought removal proceedings against Mr. Pereida, alleging that he had entered the country unlawfully and had never become a lawful resident. In reply, Mr. Pereida chose not to dispute that he was subject to removal. Instead, he sought to establish only his eligibility for discretionary relief. At the same time, Mr. Pereida’s lawyer explained to the immigration judge that Nebraska authorities were in the middle of prosecuting his client for a crime. Because the outcome of that case had the potential to affect Mr. Pereida’s eligibility for cancellation of removal, counsel asked the immigration judge to postpone any further proceedings on Mr. Pereida’s application for relief until the criminal case concluded. The immigration judge agreed. In the criminal case, state authorities charged Mr. Pereida with attempted criminal impersonation. Under Nebraska law, a person commits criminal impersonation if he: “(a) Assumes a false identity and does an act in his or her assumed character with intent to gain a pecuniary benefit . . . or to deceive or harm another; “(b) Pretends to be a representative of some person or organization and does an act in his or her pretended capacity with the intent to gain a pecuniary benefit . . . and to deceive or harm another; “(c) Carries on any profession, business, or any other occupation without a license, certificate, or other authorization required by law; or “(d) Without the authorization . . . of another and with the intent to deceive or harm another: (i) Obtains or records . . . personal identifying information; and (ii) Accesses or attempts to access the financial resources of another through the use of . . . personal identifying information for the purpose of obtaining credit, money . . . or any other thing of value.” Neb. Rev. Stat. §28–608 (2008) (since amended and moved to Neb. Rev. Stat. §28–638). Ultimately, Mr. Pereida was found guilty, and this conviction loomed large when his immigration proceedings resumed. Before the immigration judge, everyone accepted that Mr. Pereida’s eligibility for discretionary relief depended on whether he could show he had not been convicted of certain crimes, including ones “involving moral turpitude.” 8 U. S. C. §§1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i), 1229b(b)(1)(C). And whatever else one might say about that phrase, the parties took it as given that a crime involving “fraud [as] an ingredient” qualifies as a crime involving “moral turpitude.” Jordan v. De George , 341 U.S. 223 , 227 (1951). The parties’ common ground left Mr. Pereida with an uphill climb. As the immigration judge read the Nebraska statute, subsections (a), (b), and (d) each stated a crime involving fraud, and thus each constituted a disqualifying offense of moral turpitude. That left only subsection (c)’s prohibition against carrying on a business without a required license. The immigration judge thought this crime likely did not require fraudulent conduct, but he also saw little reason to think it was the offense Mr. Pereida had committed. The government presented a copy of the criminal complaint against Mr. Pereida showing that Nebraska had charged him with using a fraudulent social security card to obtain employment. Meanwhile, Mr. Pereida declined to offer any competing evidence of his own. In light of this state of proof, the immigration judge found that Mr. Pereida’s conviction had nothing to do with carrying on an unlicensed business in violation of subsection (c) and everything to do with the fraudulent (and thus disqualifying) conduct made criminal by subsections (a), (b), or (d). Mr. Pereida’s efforts to undo this ruling proved unsuccessful. Both the Board of Immigration Appeals (BIA) and the Eighth Circuit agreed with the immigration judge that Nebraska’s statute contains different subsections describing different crimes. Pereida v. Barr , 916 F.3d 1128, 1131, 1133 (2019). They agreed, too, that subsections (a), (b), and (d) set forth crimes involving moral turpitude, while subsection (c) does not. At the same time, both found the case a little more complicated than the immigration judge thought. While the government’s evidence revealed that Nebraska had charged Mr. Pereida with using a fraudulent social security card to obtain employment, and while that evidence would “seem to support a finding that the crime underlying [Mr. Pereida’s] attempt offense involved fraud or deceit,” the BIA and Court of Appeals observed that nothing in the record definitively indicated which statutory subsection Mr. Pereida stood convicted of violating. App. to Pet. for Cert. 17a. Still, neither the agency nor the Eighth Circuit could see how the absence of conclusive proof on this score might make a difference. Mr. Pereida bore the burden of proving his eligibility for relief, so it was up to him to show that his crime of conviction did not involve moral turpitude. Because Mr. Pereida had not carried that burden, he was ineligible for discretionary relief all the same. It is this judgment Mr. Pereida asks us to reverse. In his view, Congress meant for any ambiguity about an alien’s prior convictions to work against the government, not the alien. The circuits have disagreed on this question, so we granted certiorari to resolve the conflict. 589 U. S. ___ (2019). II A Like any other, Mr. Pereida’s claims about Congress’s meaning or purpose must be measured against the language it adopted. And there, a shortcoming quickly emerges. The INA states that “[a]n alien applying for relief or protection from removal has the burden of proof to establish” that he “satisfies the applicable eligibility requirements” and that he “merits a favorable exercise of discretion.” 8 U. S. C. §1229a(c)(4)(A). To carry that burden, a nonpermanent resident alien like Mr. Pereida must prove four things, including that he “has not been convicted” of certain disqualifying offenses, like crimes involving moral turpitude. §1229b(b)(1)(C). Thus any lingering uncertainty about whether Mr. Pereida stands convicted of a crime of moral turpitude would appear enough to defeat his application for relief, exactly as the BIA and Eighth Circuit held. It turns out that Mr. Pereida actually agrees with much of this. He accepts that he must prove three of the four statutory eligibility requirements (his longstanding presence in the country, his good moral character, and extreme hardship on a relative). He does not dispute that ambiguity on these points can defeat his application for relief. It is only when it comes to the final remaining eligibility requirement at issue here—whether he was convicted of a disqualifying offense—that Mr. Pereida insists a different rule should apply. Yet, he identifies nothing in the statutory text singling out this lone requirement for special treatment. His concession that an alien must show his good moral character undercuts his argument too. Ambiguity about a conviction for a crime involving moral turpitude would seem to defeat an assertion of “good moral character.” Cf. 8 U. S. C. §1101(f )(3). And if that’s true, it’s hard to see how the same ambiguity could help an alien when it comes to the closely related eligibility requirement at issue before us. What the statute’s text indicates, its context confirms. Consider three nearby provisions. First, the INA specifies particular forms of evidence that “shall constitute proof of a criminal conviction,” including certain official records of conviction, docket entries, and attestations. §1229a(c)(3)(B). These rules apply to “any proceeding under this chapter” regardless whether the proceedings happen to involve efforts by the government to remove an alien or efforts by an alien to obtain relief. Ibid. In this way, the INA anticipates both the need for proof about prior convictions and the fact an alien sometimes bears the burden of supplying it. Next, when it comes to “removal proceedings,” the INA assigns the government the “burden” of showing that the alien has committed a crime of moral turpitude in certain circumstances. See §§1229a(c)(3), 1227(a)(2)(A)(i). But the burden flips for “[a]pplications for relief from removal,” like the one at issue in this case. §1229a(c)(4). These statutory features show that Congress knows how to assign the government the burden of proving a disqualifying conviction. And Congress’s decision to do so in some proceedings, but not in proceedings on an alien’s application for relief, reflects its choice that these different processes warrant different treatment. Finally, the INA often requires an alien applying for admission to show “clearly and beyond doubt” that he is “entitled to be admitted and is not inadmissible.” §1229a(c)(2)(A). As part of this showing, an alien must demonstrate that he has not committed a crime involving moral turpitude. §1182(a)(2)(A)(i)(I). In this context, it is undisputed that an alien has the burden of proving that he has not committed a crime of moral turpitude. And Mr. Pereida has offered no account why a rational Congress might wish to place this burden on an alien seeking admission to this country, yet lift it from an alien who has entered the country illegally and is petitioning for relief from a lawful removal order.[ 1 ] B Confronted now with a growing list of unhelpful textual clues, Mr. Pereida seeks to shift ground. Even if he must shoulder the burden of proving that he was not convicted of a crime involving moral turpitude, Mr. Pereida replies, he can carry that burden thanks to the so-called “categorical approach.” The Court first discussed the categorical approach in the criminal context, but it has since migrated into our INA cases. Following its strictures, a court does not consider the facts of an individual’s crime as he actually committed it. Instead, a court asks only whether an individual’s crime of conviction necessarily—or categorically—triggers a particular consequence under federal law. The categorical approach is required, we have said, because the language found in statutes like the INA provision before us don’t task courts with examining whether an individual’s actions meet a federal standard like “moral turpitude,” but only whether the individual “has. . . been convicted of an offense ” that does so. §§1229b(b)(1)(C) (emphasis added), 1227(a)(2)(A)(i); Taylor v . United States , 495 U.S. 575 , 600 (1990); Leocal v. Ashcroft , 543 U.S. 1 , 7 (2004); United States v. Davis , 588 U. S. ___, ___–___ (2019) (slip op., at 9–11).[ 2 ] In Mr. Pereida’s view, the categorical approach makes all the difference. It does so because Nebraska’s statute criminalizes at least some conduct—like carrying on a business without a license—that doesn’t necessarily involve fraud. So what if Mr. Pereida actually committed fraud? Under the categorical approach, that is beside the point. Because a person, hypothetically, could violate the Nebraska statute without committing fraud, the statute does not qualify as a crime involving moral turpitude. In this way, Mr. Pereida submits, he can carry any burden of proof the INA assigns him. This argument, however, overstates the categorical approach’s preference for hypothetical facts over real ones. In order to tackle the hypothetical question whether one might complete Mr. Pereida’s offense of conviction without doing something fraudulent, a court must have some idea what his actual offense of conviction was in the first place. And to answer that question, courts must examine historical facts. No amount of staring at a State’s criminal code will answer whether a particular person was convicted of any particular offense at any particular time. Applying the categorical approach thus implicates two inquiries—one factual (what was Mr. Pereida’s crime of conviction?), the other hypothetical (could someone commit that crime of conviction without fraud?).[ 3 ] The factual inquiry can take on special prominence when it comes to “divisible” statutes. Some statutes state only a single crime, often making it a simple thing for a judge to conclude from a defendant’s criminal records that he was convicted of violating statute x and thus necessarily convicted of crime x. Not infrequently, however, a single criminal statute will list multiple, stand-alone offenses, some of which trigger consequences under federal law, and others of which do not. To determine exactly which offense in a divisible statute an individual committed, this Court has told judges to employ a “modified” categorical approach, “review[ing] the record materials to discover which of the enumerated alternatives played a part in the defendant’s prior conviction.” Mathis v . United States , 579 U. S. ___, ___, ___ (2016) (slip op., at 12, 16) . In aid of the inquiry, we have said, judges may consult “a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Id ., at ___ (slip op., at 4). These nuances expose the difficulty with Mr. Pereida’s argument. Both he and the government accept that Nebraska’s attempted criminal impersonation statute is divisible because it states no fewer than four separate offenses in subsections (a) through (d). The immigration judge, BIA, and Eighth Circuit concluded that three of these subsections—(a), (b), and (d)—constitute crimes of moral turpitude. So that left Mr. Pereida with the burden of proving as a factual matter that his conviction was for misusing a business license under subsection (c). To be sure, in this Court Mr. Pereida now seeks to suggest that it is also possible for a hypothetical defendant to violate subsection (a) without engaging in conduct that involves moral turpitude under federal law. But even assuming he is right about this, it still left him obliged to show in the proceedings below that he was convicted under subsection (a) or (c) rather than under (b) or (d). Mr. Pereida failed to carry that burden. Before the immigration judge, he refused to produce any evidence about his crime of conviction even after the government introduced evidence suggesting that he was convicted under a statute setting forth some crimes involving fraud. Nor has Mr. Pereida sought a remand for another chance to resolve the ambiguity by introducing evidence about his crime of conviction; at oral argument, he even disclaimed interest in the possibility. See Tr. of Oral Arg. 23–25. These choices may be the product of sound strategy, especially if further evidence would serve only to show that Mr. Pereida’s crime of conviction did involve fraud. But whatever degree of ambiguity remains about the nature of Mr. Pereida’s conviction, and whatever the reason for it, one thing remains stubbornly evident: He has not carried his burden of showing that he was not convicted of a crime involving moral turpitude. Look at the problem this way. Mr. Pereida is right that, when asking whether a state conviction triggers a federal consequence, courts applying the categorical approach often presume that a conviction rests on nothing more than the minimum conduct required to secure a conviction. But Mr. Pereida neglects to acknowledge that this presumption cannot answer the question which crime the defendant was convicted of committing. To answer that question, parties and judges must consult evidence. And where, as here, the alien bears the burden of proof and was convicted under a divisible statute containing some crimes that qualify as crimes of moral turpitude, the alien must prove that his actual, historical offense of conviction isn’t among them.[ 4 ] The INA’s plain terms confirm the point. Recall that the INA places the “burden of proof ” on an alien like Mr. Pereida to show four things; that one of these is the absence of a disqualifying conviction; and that the law specifies certain forms of evidence “shall” constitute “proof ” of a criminal conviction. See Part II–A, supra . In each of these ways, the statutory scheme anticipates the need for evidentiary proof about the alien’s crime of conviction and imposes on the alien the duty to present it.[ 5 ] The INA adopts this approach for understandable reasons too. Not only is it impossible to discern an individual’s offense of conviction without consulting at least some documentary or testimonial evidence. It’s easy to imagine significant factual disputes that make these statutory instructions about the presentation of evidence and the burden of proof critically important. Suppose, for example, that the parties in this case disputed whether the criminal complaint the government introduced involved a different Clemente Avelino Pereida. Alternatively, what if Nebraska’s complaint charged Mr. Pereida with a violation of subsection (c) but the plea colloquy mentioned only subsection (d)? Or what if the relevant records were illegible or contained a material typo? Courts can resolve disputes like these only by reference to evidence, which means a statutory allocation of the burden of proof will sometimes matter a great deal. To reach a different conclusion would require us to cast a blind eye over a good many precedents. When applying the categorical approach, this Court has long acknowledged that to ask what crime the defendant was convicted of committing is to ask a question of fact. See, e.g. , Taylor , 495 U. S., at 600 (courts look “to the fact that the defendant had been convicted of crimes falling within certain categories”). We have described the modified categorical approach as requiring courts to “review . . . record materials” to determine which of the offenses in a divisible statute the defendant was convicted of committing. Mathis , 579 U. S., at ___ (slip op., at 16). We have acknowledged that this process calls on courts to consider “extra-statutory materials” to “discover” the defendant’s crime of conviction. Descamps v. United States , 570 U.S. 254 , 263 (2013). We have observed that these “materials will not in every case speak plainly,” and that any lingering ambiguity about them can mean the government will fail to carry its burden of proof in a criminal case. Mathis , 579 U. S., at ___ (slip op., at 18) (citing Shepard v. United States , 544 U.S. 13 , 21 (2005)). And we have remarked that “the fact of a prior conviction” supplies an unusual and “arguable” exception to the Sixth Amendment rule in criminal cases that “any fact that increases the penalty for a crime” must be proved to a jury rather than a judge. Apprendi v. New Jersey , 530 U.S. 466 , 489, 490 (2000). Really, this Court has never doubted that the who, what, when, and where of a conviction—and the very existence of a conviction in the first place—pose questions of fact. Nor have we questioned that, like any other fact, the party who bears the burden of proving these facts bears the risks associated with failing to do so.[ 6 ] The authorities Mr. Pereida invokes do not teach differently. He directs our attention especially to Moncrieffe v. Holder , 569 U.S. 184 (2013), Carachuri-Rosendo v. Holder , 560 U.S. 563 (2010), and Johnson v. United States , 559 U.S. 133 (2010). But the first two cases addressed only the question whether the minimum conduct needed to commit an alien’s known offense of conviction categorically triggered adverse federal consequences. Neither addressed the threshold factual question at issue here— which crime formed the basis of the alien’s prior conviction. The final case is no more helpful to Mr. Pereida. Johnson involved a criminal prosecution under the Armed Career Criminal Act (ACCA) in which the government bore the burden of proof. There, “nothing in the record” indicated which of several crimes in a divisible statute the defendant had been convicted of committing. Id., at 137. Accordingly, if it wished to win certain sentencing enhancements, the government had to show that all of the statute’s offenses met the federal definition of a “ ‘violent felony.’ ” Ibid. Here, by contrast, Mr. Pereida bears the burden of proof and the same logic applies to him. We do not doubt that, when the record is silent on which of several crimes in a divisible statute an alien committed, he might succeed by showing that none of the statute’s offenses qualifies as a crime of moral turpitude. It’s simply that this avenue wasn’t open to Mr. Pereida. No one before us questions that Nebraska’s statute contains some crimes of moral turpitude under federal law. Given this, it necessarily fell to Mr. Pereida to show that his actual offense was not among these disqualifying offenses. And just as evidentiary gaps work against the government in criminal cases, they work against the alien seeking relief from a lawful removal order. When it comes to civil immigration proceedings, Congress can, and has, allocated the burden differently.[ 7 ] C This leaves Mr. Pereida to his final redoubt. Maybe the INA works as we have described. But, Mr. Pereida worries, acknowledging as much would invite “grave practical difficulties.” Brief for Petitioner 43. What if the alien’s record of conviction is unavailable or incomplete through no fault of his own? To deny aliens relief only because of poor state court record-keeping practices would, he submits, make for inefficient and unfair public policy. The dissent expands on these same policy arguments at length. See post, at 14–16. Notably, though, neither Mr. Pereida nor the dissent suggests that record-keeping problems attend this case. Mr. Pereida’s immigration proceedings progressed in tandem with his criminal case, so it is hard to imagine how he could have been on better notice about the need to obtain and preserve relevant state court records about his crime. Represented by counsel in both proceedings, he had professional help with these tasks too. We know that relevant records were created, as well, because the government submitted documents outlining the charges brought against him. Despite all this, Mr. Pereida simply declined to insist on clarity in his state court records or supply further evidence. Still, even accepting that graver record-keeping problems will arise in other cases, it is not clear what that might tell us. Record-keeping problems promise to occur from time to time regardless who bears the burden of proof. And, as in most cases that come our way, both sides can offer strong policy arguments to support their positions. Mr. Pereida and the dissent say fairness and efficiency would be better served if the government bore the risk of loss associated with record-keeping difficulties. Meanwhile, the government contends that it is important for the burden of proof to rest with the alien so those seeking discretionary relief cannot gain a tactical advantage by withholding or concealing evidence they possess about their own convictions. It is hardly this Court’s place to pick and choose among competing policy arguments like these along the way to selecting whatever outcome seems to us most congenial, efficient, or fair. Our license to interpret statutes does not include the power to engage in such freewheeling judicial policymaking. Congress was entitled to conclude that uncertainty about an alien’s prior conviction should not redound to his benefit. Only that policy choice, embodied in the terms of the law Congress adopted, commands this Court’s respect. It seems, too, that Mr. Pereida may have overlooked some of the tools Congress afforded aliens faced with record-keeping challenges. In the criminal context, this Court has said that judges seeking to ascertain the defendant’s crime of conviction should refer only to a “limited” set of judicial records. Shepard , 544 U. S., at 20–23. In part, the Court has circumscribed the proof a judge may consult out of concern for the defendant’s Sixth Amendment right to a trial by jury. If a judge, rather than a jury, may take evidence and make findings of fact, the thinking goes, the proceeding should be as confined as possible. Id., at 25–26; see also Apprendi , 530 U. S., at 487–490 (citing Almendarez-Torres v. United States , 523 U.S. 224 (1998)). But Sixth Amendment concerns are not present in the immigration context. And in the INA, Congress has expressly authorized parties to introduce a much broader array of proof when it comes to prior convictions—indicating, for example, that a variety of records and attestations “shall” be taken as proof of a prior conviction. 8 U. S. C. §1229a(c)(3)(B). Nor is it even clear whether these many listed forms of proof are meant to be the only permissible ways of proving a conviction, or whether they are simply assured of special treatment when produced. Cf. n. 5, supra . Mr. Pereida acknowledges none of this, again perhaps understandably if further evidence could not have helped his cause. Still, it is notable that Congress took significant steps in the INA to ameliorate some of the record-keeping problems Mr. Pereida discusses by allowing aliens considerably more latitude in carrying their burden of proof than he seems to suppose. * Under the INA, certain nonpermanent aliens seeking to cancel a lawful removal order must prove that they have not been convicted of a disqualifying crime. The Eighth Circuit correctly held that Mr. Pereida failed to carry this burden. Its judgment is Affirmed. Justice Barrett took no part in the consideration or decision of this case. Notes 1 The dissent does not seriously dispute any of this, but brushes it aside as having “little or n[o]” importance only because of the “categorical approach” discussed in the next section. Post, at 1 (opinion of Breyer, J.). 2 Nothing requires Congress to employ the categorical approach. Instead of focusing our attention on the question whether an offense of conviction meets certain criteria, Congress could have (and sometimes has) used statutory language requiring courts to ask whether the defendant’s actual conduct meets certain specified criteria. See, e.g. , Nijhawan v. Holder , 557 U.S. 29 , 41 (2009). 3 It is unclear where the dissent stands on this point. In places, the dissent seems to suggest that no “threshold” factual question exists here. Post, at 10. Elsewhere, the dissent appears to admit that establishing the “basic fact” of an individual’s crime of conviction is a necessary prerequisite to application of the categorical approach. Post , at 11. The second view comes closer to the mark. 4 The dissent makes the same mistake. At first, it acknowledges that courts must look to factual evidence to determine which of several offenses in a divisible statute the defendant committed, and even admits we do not know which of the offenses listed in the Nebraska statute Mr. Pereida committed. Post, at 5, 9. But the dissent then does an about-face—treating Nebraska’s (divisible) statute as if it states a single offense. Post , at 10. The dissent had it right the first time. Both sides agree that Nebraska’s statute is divisible and states (at least) four independent crimes. We do not know which of those crimes formed the basis of Mr. Pereida’s conviction because the record is ambiguous, and Mr. Pereida has not supplied anything to clarify it. Mr. Pereida now attempts to benefit from that uncertainty. But that proposition is foreclosed by the INA’s burden of proof. 5 There are other statutory signals that point to the same conclusion. The INA authorizes an immigration judge to make “credibility determination[s]” based on an alien’s proof, §1229a(c)(4)(C); it says the immigration judge must determine whether “testimony is credible, is persuasive, and refers to specific facts sufficient to [discharge] the applicant’s burden of proof,” §1229a(c)(4)(B); and the law requires the alien to comply with regulations requiring him to “submit information or documentation” supporting his application for relief, ibid . Current regulations indicate that an alien should describe on his application form any prior convictions he may have, Dept. of Justice, Executive Office for Immigration Review, Form EOIR–42B, Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents 5 (Rev. July 2016), https://www.justice.gov/sites/default/files/pages/attachments/2016/10/ 20/eoir42b.pdf. In all of these additional ways, the INA again anticipates the need for proof and the possibility of its challenge in an application for relief—and nowhere does the statute suggest some special carveout exists when it comes to evidence concerning prior convictions. 6 Practice in the criminal and INA contexts comports with practice in other fields too. Often in civil litigation, a party must prove the fact of a prior judgment on a particular claim or the fact of a ruling on a particular issue. And there, as here, the question can turn on the persuasiveness of the proof presented and on whom the burden of proof rests. So, for example, the Restatement (Second) of Judgments, contemplates that parties seeking to assert issue preclusion “ha[ve] the burden of proving” that an “an issue of fact or law” has been “actually litigated and determined by a valid and final judgment.” §27, and Comment f (1982). And “[i]f it cannot be determined from the pleadings and other materials of record in the prior action what issues, if any, were litigated and determined by the verdict and judgment, extrinsic evidence is admissible to aid in such determination. Extrinsic evidence may also be admitted to show that the record in the prior action does not accurately indicate what issues, if any, were litigated and determined.” Id., Comment f. The dissent suggests its own analogy to contract law. See post, at 10–11. But it never explains why we should look there before the statutory text or the law’s customary treatment of judgments. Nor does the analogy succeed even on its own terms. It is “generally a question of fact for the jury whether or not a contract . . . actually exists.” 11 R. Lord, Williston on Contracts §30:3, pp. 37–39 (4th ed. 2012). So too, “[w]hen a written contract is ambiguous, its meaning is a question of fact,” which may require looking to “relevant extrinsic evidence.” Id. , §30:7, at 116, 124. Similarly here, disputes about the existence of Mr. Pereida’s conviction and its ambiguous meaning involve at least some questions of fact requiring resort to proof. 7 The dissent asserts that the ACCA and INA have a “shared text and purpose.” Post, at 14. In fact, however, the ACCA and INA provision at issue here bear different instructions. Both may call for the application of the categorical approach. But while the ACCA’s categorical approach demands certainty from the government, the INA’s demands it from the alien. See post , at 6. SUPREME COURT OF THE UNITED STATES _________________ No. 19–438 _________________ CLEMENTE AVELINO PEREIDA, PETITIONER v. ROBERT M. WILKINSON, ACTING ATTORNEY GENERAL on writ of certiorari to the united states court of appeals for the eighth circuit [March 4, 2021] Justice Breyer, with whom Justice Sotomayor and Justice Kagan join, dissenting. This case, in my view, has little or nothing to do with burdens of proof. It concerns the application of what we have called the “categorical approach” to determine the nature of a crime that a noncitizen (or defendant) was previously convicted of committing. That approach sometimes allows a judge to look at, and to look only at, certain specified documents. Unless those documents show that the crime of conviction necessarily falls within a certain category (here a “crime involving moral turpitude”), the judge must find that the conviction was not for such a crime. The relevant documents in this case do not show that the previous conviction at issue necessarily was for a crime involving moral turpitude. Hence, applying the categorical approach, it was not. That should be the end of the case. I Mr. Pereida is a citizen of Mexico, not the United States. He has lived in the United States for roughly 25 years. In that time, he and his wife have raised three children. He helped support them by working in construction and cleaning. One child is a U. S. citizen. In 2009 the Department of Homeland Security issued a notice to appear that charged Mr. Pereida with removability because he was never lawfully admitted to the United States. Mr. Pereida conceded that he is removable. But he asked the Attorney General to cancel his removal. The Attorney General has discretion to cancel an order of removal if removal would result in extreme hardship to the noncitizen’s U. S. citizen (or lawful-permanent-resident) spouse, parent, or child. 8 U. S. C. §1229b(b)(1)(D). A noncitizen is ineligible for this discretionary relief, however, if, among other things, he has “been convicted of ” a “crime involving moral turpitude.” §§1229b(b)(1)(C), 1182(a)(2)(A)(i)(I). Mr. Pereida, in 2010, pleaded nolo contendere to, and was found guilty of, having committed a Nebraska state crime, namely, attempt to commit criminal impersonation in violation of Neb. Rev. Stat. §28–608. See §28–608 (2008) (since amended and moved to §28–638 (2020)); §28–201(1)(b). The question here is whether this conviction was for a “crime involving moral turpitude.” II A I believe we must answer this question by applying what we have called the “categorical approach.” The Immigration and Nationality Act (INA) makes a noncitizen ineligible for cancellation of removal if that noncitizen has been “convicted” of certain “offense[s],” 8 U. S. C. §1229b(b) (1)(C), including “crime[s] involving moral turpitude,” §1182(a)(2)(A)(i)(I). Similarly, the Armed Career Criminal Act (ACCA) increases the sentence of a defendant convicted of possessing a firearm as a felon if that defendant has three or more previous “convictions” for a “violent felony” or “serious drug offense.” 18 U. S. C. §924(e)(1). In ordinary speech, “crime,” “offense,” and “felony” are ambiguous: They might refer to actions that a defendant took on a particular occasion, or they might refer to the general conduct that a criminal statute forbids. So the question arises, shall a judge look to how the noncitizen or defendant behaved on a particular occasion (for example, to see whether he behaved violently)? Or shall a judge look to the statute that the defendant was convicted of violating (to see whether the behavior that it forbids is categorically violent)? We have answered this question clearly and repeatedly in both the INA and ACCA contexts. We have held that both statutes mandate a categorical approach by asking what offense a person was “ convicted ” of, not what acts he “ committed .” Moncrieffe v. Holder , 569 U.S. 184 , 191 (2013) (emphasis added) (discussing the INA); see also Taylor v. United States , 495 U.S. 575 , 600 (1990) (discussing ACCA). The categorical approach requires courts to “loo[k ] only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” Id. , at 600; see also Esquivel-Quintana v. Sessions , 581 U. S. ___, ___–___ (2017) (slip op., at 2–3) (applying the categorical approach under the INA); Mellouli v. Lynch , 575 U.S. 798, 804–806 (2015) (same); Moncrieffe , 569 U. S., at 190 (same); Carachuri-Rosendo v. Holder , 560 U.S. 563 , 576 (2010) (same); Gonzales v. Duenas-Alvarez , 549 U.S. 183 , 185–186 (2007) (same); Mathis v. United States , 579 U. S. ___, ___ (2016) (slip op., at 3) (applying the categorical approach under ACCA); Johnson v. United States , 559 U.S. 133 , 144 (2010) (same); Descamps v. United States , 570 U.S. 254 , 257 (2013) (same); Shepard v. United States , 544 U.S. 13 , 19–20 (2005) (same); Taylor , 495 U. S., at 600 (same). A judge, looking at a prior conviction, will read the statutory definition of the offense of conviction and decide whether anyone convicted under that offense is necessarily guilty of the type of crime that triggers federal penalties, e.g., an enhanced sentence or ineligibility for cancellation of removal. See Mellouli , 575 U. S., at 805; Taylor , 495 U. S., at 600. Consider a hypothetical example of this approach. Suppose a noncitizen’s previous conviction was for violating State Statute §123. Suppose further that the Government argues the noncitizen is ineligible for cancellation of removal because he was “convicted of an offense under” §1227(a)(2), namely, an “aggravated felony.” 8 U. S. C. §§1229b(b)(1)(C), 1227(a)(2)(A)(iii). An immigration judge, looking at the conviction, will simply read §123 and decide whether anyone convicted under §123 is necessarily guilty of an aggravated felony, as that term is defined in the INA. See §1101(a)(43). That is, the judge will decide whether the conduct that §123 prohibits is in general an aggravated felony. The judge will not look to see whether the defendant’s actual conduct on the relevant occasion was or was not an aggravated felony. Difficult questions can arise when judges apply the categorical approach. State statutes criminalize many kinds of behavior, often differing in detail one from another. Take burglary, for example, which is an “aggravated felony” under the INA. §1101(a)(43)(G). We can assume that the term “burglary” here, as in ACCA, refers to a specific crime, i.e. , generic burglary. See Taylor , 495 U. S., at 599; cf. Duenas-Alvarez , 549 U. S., at 189 (accepting that the INA’s reference to “theft” in §1101(a)(43)(G) is to generic theft). Generic burglary is “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor , 495 U. S., at 599. Now suppose that §123 defines “burglary” in a different way (say, by including lawful entry with intent to steal). The sentencing judge then must compare the elements of the state statute and the elements of generic burglary. If the minimum conduct criminalized by the state statute is encompassed by generic burglary, then the conviction is for generic burglary; if not, then the conviction is not for that aggravated felony. See Moncrieffe , 569 U. S., at 190–191. In our §123 example, the judge would therefore conclude that the conviction is not for an aggravated felony. And what is a judge to do if a state statute is “divisible” into several different offenses, some of which are aggravated felonies and some of which are not? Suppose, for example, that §123 has three subsections referring to (a) burglary of a dwelling, (b) burglary of a boat, and (c) burglary of a railroad car. Since generic burglary is of a dwelling or structure, only subsection (a) qualifies as an aggravated felony. How is the judge to know which subsection the defendant was convicted of violating? Simple, we have replied. Under the “modified categorical approach,” the judge can look to a limited set of court records to see if they say which subsection the defendant was convicted of violating. The judge can look at the charging papers and the jury instructions (if there was a jury), see Taylor , 495 U. S., at 602, and the plea agreement, plea colloquy, or “some comparable judicial record” of the plea (if there was a plea), Shepard , 544 U. S., at 26; see also Nijhawan v. Holder , 557 U.S. 29 , 35 (2009) (quoting Shepard , 544 U. S., at 26). If these documents reveal that the previous conviction was for §123(a) (dwelling), then, and only then, can the judge conclude that the conviction is for an aggravated felony. As we explained in Taylor , the modified categorical approach “allow[s]” “the Government . . . to use [a] conviction” under an overbroad statute to trigger federal penalties (there, ACCA’s sentencing enhancement) if the statute contains multiple offenses and the permissible documents show that “the jury necessarily had to find” (or the defendant necessarily admitted to) a violent felony. 495 U. S., at 602. What if, after looking at all the sources we have listed, the judge still does not know which of the three different kinds of burglary was the basis for the conviction? Suppose all the relevant documents that exist speak only of a violation of §123. Period. What then? As discussed infra , at 9, that is the question we face here, and our cases provide the answer. The judge cannot look at evidence beyond the specified court records. See, e.g. , Mathis , 579 U. S., at ___ (slip op., at 18). Instead, in such a case, the judge is to determine what the defendant necessarily admitted (or what a jury necessarily found) in order for a court to have entered a conviction under §123, since that is the conviction reflected in the permissible documents. The purpose of the modified categorical approach, like the categorical approach it helps implement, is to compare what “was necessarily found or admitted” to the elements of the generic federal offense. Id. , at ___ (slip op., at 4). If the record materials do not specify that the defendant was convicted of §123(a) (dwelling) rather than §123(b) (boat) or §123(c) (railroad car), or if the record materials do not exist at all, then the sentencing judge cannot say that generic burglary was necessarily found or admitted. The Court has said as much before. In Shepard , the Court acknowledged that both the “vagaries of abbreviated plea records” and the destruction of “stenographic notes” of a jury charge would preclude the application of ACCA. 544 U. S., at 22. In Mathis , the Court explained that if the “record materials” do not “speak plainly,” then “a sentencing judge will not be able to satisfy ‘ Taylor ’s demand for certainty’ when determining whether a defendant was convicted of a generic offense.” 579 U. S., at ___ (slip op., at 18). And we applied this principle in Johnson , holding that a prior conviction did not count as a “violent felony” under ACCA because the statute of conviction swept more broadly than a “violent felony” and “nothing in the record of [the] conviction permitted the District Court to conclude that it rested upon anything more than the least of th[e] acts” prohibited by the state statute. See 559 U. S., at 137; see also id., at 145 (“[I]n many cases state and local records from” state convictions “will be incomplete” and “frustrate application of the modified categorical approach”). That is to say, if (as far as the available, listed documents reveal) the judge could have entered the conviction without the noncitizen admitting to burglarizing a dwelling, then the immigration judge cannot hold that the conviction is necessarily for an aggravated felony. Applying the categorical approach, the judge must find the conviction is not for an aggravated felony at all. B Why would Congress have chosen such a seemingly complicated method? The method would appear sometimes to lead to counterintuitive results. After all, if the prior crime is for burglary and the offense occurred in a small town near the Mojave Desert, it seems unlikely that the conviction was based on burglary of a boat. Yet, in the absence of an indication from the permissible documents that the conviction necessarily was for burglary of a dwelling, the judge cannot classify the crime of conviction as an “aggravated felony.” The primary reason for choosing this system lies in practicality. Immigration judges and sentencing judges have limited time and limited access to information about prior convictions. See Mellouli , 575 U. S., at 806; Moncrieffe , 569 U. S., at 200–201; Shepard , 544 U. S., at 23, n. 4. The vast majority of prior convictions reflect simple guilty pleas to the crime charged, and, where the record papers are silent, efforts to uncover which of several crimes was “really” at issue can force litigation that the guilty plea avoided. Suppose that the defendant in the Mojave Desert pleaded guilty to a violation of §123 and there is no indication in the relevant record documents which subsection was the basis for the conviction. To find out which of the several provisions was the basis for the conviction, it might be necessary to call as witnesses the defendant, the prosecutor, or even the judge, and question them about a criminal proceeding that perhaps took place long ago. To make his case, the defendant might now deny that the provision involving a dwelling was at issue, and he might seek the opportunity to prove that. As a result, the immigration judge or sentencing judge now might have to conduct the very fact-based proceeding that the earlier guilty plea was designed to avoid. See id. , at 21–23. I do not know how often this kind of counterintuitive example will arise. But I do know that, in such a case, there is a safeguard against the harms that the “prior conviction” provisions are designed to stop. In the INA context, if a noncitizen is eligible for cancellation of removal, the Attorney General has discretionary power to cancel the removal order. Where he believes the noncitizen in fact previously burgled a dwelling (or worse), he can simply deny relief. And in the ACCA context, a sentencing judge, even where ACCA is inapplicable, has some discretion in determining the length of a sentence. If he finds that the present defendant in fact burgled, say, a dwelling and not a boat, he can take that into account even if the sentencing enhancement does not apply. And most importantly, whatever the costs and benefits of the categorical approach, it is what Congress has long chosen with respect to both statutes. The categorical approach has a particularly “long pedigree in our Nation’s immigration law,” tracing back to 1913. Moncrieffe , 569 U. S., at 191. As the majority acknowledges, “Congress could have (and sometimes has) used statutory language requiring courts to ask whether the defendant’s actual conduct meets certain specified criteria.” Ante , at 8, n. 2. But it has not done so in the INA provision here. See ante , at 8. Thus, here, as in the case of ACCA, a judge must ask whether “a conviction of the state offense ‘ “necessarily” involved . . . facts equating to’ ” the kind of behavior that the relevant federal statute forbids. Moncrieffe , 569 U. S., at 190 (emphasis added). Only if it did does that conviction trigger federal penalties. III Now, let us apply the categorical approach to the conviction here at issue. The criminal complaint says that Mr. Pereida “intentionally engage[d] in conduct which . . . constituted a substantial step in a course of conduct intended to culminate in his commission of the crime of CRIMINAL IMPERSONATION R.S. 28–608, Penalty: Class IV Felony.” App. to Brief for Petitioner 7a. It then quotes the entire criminal-impersonation statute, including all of its parts. See id., at 7a–8a. The complaint does not say which part of the statutory provision the State accuses Mr. Pereida of violating. And the majority, like the Government, concedes that some of the provisions set forth crimes that are not crimes involving moral turpitude. See ante , at 10; Brief for Respondent 15. The journal entry and order related to the charge do not help. They say only that Mr. Pereida pleaded “no contest” to the crime charged, identifying the relevant statute as Neb. Rev. Stat. §28–201 (the attempt provision) and describing the charge as “[a]ttempt of a class 3A or class 4 felo[ny].” App. to Brief for Petitioner 3a. They do not narrow down the possible offenses because all the criminal- impersonation offenses can be a Class III or Class IV felony. See Neb. Rev. Stat. §§28–608(2)(a), (b). We cannot look to jury instructions because there was no jury. Nor is there any plea agreement, plea colloquy, or “comparable judicial record” of the plea that might help determine what Mr. Pereida admitted. As far as we know, all appropriate documents that exist were before the Immigration Judge. None shows that Mr. Pereida’s conviction necessarily involved facts equating to a crime involving moral turpitude. He may have pleaded guilty to a crime involving moral turpitude or he may not have. We do not know. The Immigration Judge thus cannot characterize the conviction as a conviction for a crime involving moral turpitude. That resolves this case. IV How does the majority argue to the contrary? The majority says that this case is different because which crime was the basis of a prior conviction is a factual question that the categorical approach cannot answer and a noncitizen seeking cancellation of removal, unlike a criminal defendant, bears the burden of proof on that factual question. First, the majority says that what the defendant’s “ actual offense of conviction was,” is a “threshold factual” question that a court must resolve before tackling the categorical approach’s “ hypothetical question” (could someone complete the offense of conviction without committing a crime involving moral turpitude). Ante , at 8–9, 14. In my view, there is no unresolved “threshold factual” question in this case since there is no dispute that Mr. Pereida has a prior conviction. We have made clear that unless the offense of conviction, as determined from the statute and the specified documents, is necessarily a crime involving moral turpitude, the judge must rule that the conviction was not for a crime involving moral turpitude. The method for determining the offense of conviction (the modified categorical approach) “acts not as an exception, but instead as a tool,” retaining “the categorical approach’s central feature.” Descamps , 570 U. S., at 263. Here, looking at the pertinent documents, we can conclude only that Mr. Pereida pleaded guilty to the minimum conduct necessary to complete an offense under Neb. Rev. Stat. §28–608. Thus, the issue is whether someone could complete that offense without committing a crime involving moral turpitude. This question is the central question the categorical approach resolves, not a threshold question. And it is a legal question, not a factual one. To answer it, the judge is to examine the state statute and limited portions of the record that our cases specify and determine from those documents whether the crime of conviction was a crime involving moral turpitude. There is nothing at all unusual about referring to a question that a judge must answer based on specified legal documents before him as a “question of law.” To the contrary, construction of written instruments such as deeds, contracts, tariffs, or patent claims “often presents a ‘question solely of law.’ ” Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. , 574 U.S. 318 , 326 (2015). And legal questions are not affected by a burden of proof. See, e.g., Microsoft Corp. v. i4i L. P. , 564 U.S. 91 , 100, n. 4 (2011). The majority points out that we have occasionally referred to the “ ‘fact of a prior conviction.’ ” Ante , at 13. The majority reads too much into that reference. All that we have seriously referred to as a fact is the “ mere fact of conviction.” Taylor , 495 U. S., at 602 (emphasis added). Establishing that basic fact is, of course, a prerequisite to application of the categorical approach at all. It goes to “the validity of a prior judgment of conviction.” Apprendi v. New Jersey , 530 U.S. 466 , 496 (2000). But the mere fact of conviction is not at issue here. Instead, the question here (and the question the categorical approach asks) is “what [that] conviction necessarily established.” Mellouli , 575 U. S., at 806. We have referred to that question as a “legal question.” Ibid. And rightly so. Thus, if the majority applies the categorical approach, it should agree that there is no factual dispute in this case for any burden of proof to resolve. If the majority does not apply the categorical approach, it does not explain that or why. Second, the majority points to statutory language stating that an applicant for relief from removal “has the burden of proof to establish” that he “satisfies the applicable eligibility requirements,” §1229a(c)(4)(A), which includes the requirement that he not have been convicted of a crime involving moral turpitude. See ante , at 5. But burdens of proof have nothing to do with this case. As just discussed, because the categorical approach conclusively resolves the ambiguity as to which offense was the basis for the conviction, there is no role for the burden of proof to play. Indeed, the Government agreed at argument that the burden of proof would not apply “if this were just a categorical approach case.” Tr. of Oral Arg. 53. That this case implicates the modified categorical approach rather than the categorical approach does not make a difference. The modified categorical approach, like the categorical approach, provides a conclusive answer without any resort to burdens of proof. It does so not by “treating [a] (divisible) statute as if it states a single offense,” ante , at 11, n. 4, but by permitting courts to look at only certain conclusive records of a conviction to determine what that conviction necessarily involved. This conclusion is consistent with the text. The statutory text itself “singl[es] out this lone requirement for special treatment,” ante , at 6, by using a term (“conviction”) that requires application of a categorical rather than factual analysis. The burden-of-proof provision does not require departing from our settled understanding of the meaning of that term. That the categorical approach applies does not mean that the burden of proof is entirely irrelevant to the requirement that a noncitizen not have a disqualifying prior conviction. The burden of proof may be relevant when “the existence of [a] conviction” is in doubt. See §§1229a(c)(3)(B)(iii), (iv), (vi). Such doubt may have arisen, for example, if Mr. Pereida had contested that a complaint submitted by the Government actually resulted in a conviction or contended that the conviction is against a different Clemente Avelino Pereida. See ante , at 12. There is no such doubt in this case. No one disputes that Mr. Pereida has a prior conviction. The parties apparently presented the judge with all the existing relevant documentary material of that conviction. This case concerns a different question: Given the fact of Mr. Pereida’s conviction, was it necessarily for a crime involving moral turpitude? The law instructs the judge how to determine, looking at only a limited set of material, whether the crime of conviction is or is not a crime involving moral turpitude. Because of the categorical approach, there is nothing left for a party to prove. In my view, the “textual clues” and “statutory signals” relied on by the majority further demonstrate that burdens of proof are not relevant to the question at hand. See ante , at 7, 11, n. 5. As the majority points out, the INA sets forth a list of particular materials that, the INA says, “shall constitute proof of a criminal conviction.” §1229a(c)(3)(B). They include an “official record of judgment and conviction,” an “official record of plea, verdict, and sentence,” a “docket entry from court records that indicates the existence of the conviction,” court minutes of a “transcript . . . in which the court takes notice of the existence of the conviction,” an official “abstract of a record of conviction” that indicates “the charge or section of law violated” (among certain other things), and any other “document or record attesting to the conviction” prepared or kept by the court or by a “penal institution.” Ibid. The majority also notes that the INA authorizes an immigration judge to make “credibility determination[s]” about a noncitizen’s written and oral proof and determine whether “testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant has satisfied the applicant’s burden of proof.” §§1229a(c)(4)(B), (C). As the majority concedes, this evidence is broader than what we have permitted in our modified categorical approach cases. See ante , at 16–17. I agree with the majority that bearing the burden of proof goes hand in hand with being able to introduce this evidence. But in my view, Mr. Pereida cannot introduce this evidence because it goes beyond the limited record our precedents allow. Hence, he must not bear the burden of proof. The majority’s response is that there is no limitation on the documents an immigration judge can look at when applying the categorical approach. That is because, the majority says, the limitation was adopted in the criminal context out of a concern for Sixth Amendment rights that is not present in the immigration context. Ibid. That was not, however, our only, or even primary, reason for adopting the limitation. Rather, we limited the documents that a judge can review in order “to implement the object of the statute and avoid evidentiary disputes.” Shepard , 544 U. S., at 23, n. 4. To be sure, we were there referencing ACCA, not the INA. But the statutes share the relevant object (tying federal penalties to certain convictions, not certain conduct) signaled by the same statutory text (“conviction”). See Taylor , 495 U. S., at 600; Mellouli , 575 U. S., at 806. The “central feature” of this statutory object is “a focus on the elements, rather than the facts, of a crime.” Descamps , 570 U. S., at 263. Allowing review of a broad array of evidence is incompatible with this statutory object, even if the judge looks at the evidence only to determine the nature of the offense of which a noncitizen was convicted. See Shepard , 544 U. S., at 21–23. I see no reason for the categorical approach to apply differently under the INA than under ACCA given their shared text and purpose. The “ ‘long pedigree’ ” of the categorical approach in our immigration law further counsels against departing from how we have long understood that approach to work. Mellouli , 575 U. S., at 805–806. Al- though this Court first applied the categorical approach in the criminal context, see ante , at 7, courts examining the federal immigration statutes concluded that Congress intended a categorical approach decades before Congress even enacted ACCA. See Mellouli , 575 U. S., at 805–806. At a minimum, I would not hold, in this case, that the categorical approach’s limitation on the documents a judge can consult is inapplicable in immigration proceedings. That argument was neither raised nor briefed by the parties. The Government confirmed several times at oral argument that it had not argued that a judge should be allowed to look at a broader array of evidentiary materials because, in its view, that issue was not implicated since no other documents exist. See Tr. of Oral Arg. 34, 46, 56. Without the benefit of briefing and argument, we cannot fully anticipate the consequences of today’s decision. V The majority does not apply the categorical approach as our cases have explained it and used it. So what happens now? I fear today’s decision will result in precisely the practical difficulties and potential unfairness that Congress intended to avoid by adopting a categorical approach. First , allowing parties to introduce a wide range of documentary evidence and testimony to establish the crime of conviction may undermine the “judicial and administrative efficiency” that the categorical approach is intended to promote. Moncrieffe , 569 U. S., at 200. As we have recognized before, “[a]sking immigration judges in each case to determine the circumstances underlying a state conviction would burden a system in which ‘large numbers of cases [are resolved by] immigration judges and front-line immigration officers, often years after the convictions.’ ” Mellouli , 575 U. S., at 806 (alterations in original). The same is true here. In cases where noncitizens are able to introduce evidence of their crime of conviction, immigration judges now may have to hear and weigh testimony from, for example, the prosecutor who charged the noncitizen or the court reporter who transcribed the now-lost plea colloquy. Given the vast number of different state misdemeanors, plea agreements made long ago, cursory state records, and state prosecutors or other officials who have imperfect memories or who have long since departed for other places or taken up new occupations, there is a real risk of adding time and complexity to immigration proceedings. Such hearings may add strain to “our Nation’s overburdened immigration courts.” Moncrieffe , 569 U. S., at 201. Second , today’s decision may make the administration of immigration law less fair and less predictable. One virtue of the categorical approach is that it “enables aliens ‘to anticipate the immigration consequences of guilty pleas in criminal court,’ and to enter ‘ “safe harbor guilty” pleas [that] do not expose the [alien defendant] to the risk of immigration sanctions.’ ” Mellouli , 575 U. S., at 806 (alterations in original). The majority’s approach, on the other hand, may “deprive some defendants of the benefits of their negotiated plea deals.” Descamps , 570 U. S., at 271. A noncitizen may agree to plead guilty to a specific offense in a divisible statute because that offense does not carry adverse immigration consequences. But in many lower criminal courts, misdemeanor convictions are not on the record. See Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 7–9 (NACDL Brief ); Brief for United States in Johnson v. United States , O. T. 2008, No. 08–6925, p. 43 (“[P]lea colloquies . . . are not always transcribed or otherwise available”). In jurisdictions where misdemeanor convictions are on the record, such records frequently omit key information about the plea and may be destroyed after only a few years. See NACDL Brief 10–16; see also Brief for United States in Voisine v. United States , O. T. 2014, No. 14–10154, p. 45 (“[R]ecords from closed misdemeanor cases are often unavailable or incomplete”). And even where complete records do exist, noncitizens, who often are unrepresented, detained, or not fluent English speakers, may not have the resources to offer more than their own testimony. See Brief for Immigrant Defense Project et al. as Amici Curiae 11–19. Thus, under the majority’s approach, noncitizens may lose the benefit of their plea agreements unless their testimony persuades the immigration judge that they pleaded guilty to the lesser offense. Third , today’s decision risks hinging noncitizens’ eligibility for relief from removal on the varied charging practices of state prosecutors. In some cases (perhaps even this one), state prosecutors and state courts may treat statutes that list multiple offenses as if they list only one, whether inadvertently or as a matter of practice. See NACDL Brief 13 (explaining that “[a]cross many states and localities, the records of misdemeanor pleas often do not include the statutory subsection or factual basis underlying the conviction”). It sometimes can be challenging to determine whether a fact is an element or a means (and so whether a statute is divisible or not). If a prosecutor mistakes a divisible statute for an indivisible one, she may well not identify which particular offense was the basis for the charge. Some States, including Nebraska, do not require a pleading to identify the alternative means of committing a crime—as opposed to the alternative crimes—on which a conviction is based. See 5 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §19.3(a), p. 263 (3d ed. 2007); State v. Brouilette , 265 Neb. 214, 221, 655 N.W.2d 876 , 884 (2003) (“[T]his court has made clear that certain crimes are single crimes that can be proved under different theories, and that because each alternative theory is not a separate crime, the alternative theories do not require that the crime be charged as separate alternative counts”). When a divisible statute is wrongly treated as indivisible, for whatever reason, records will be “inconclusive” because the defendant was not, as a matter of fact, convicted of any particular alternative crime. It would be unfair for mandatory deportation to result from inconclusive records in these cases. The Court dismisses these “policy” concerns on the ground that Congress has chosen “to conclude that uncertainty about an alien’s prior conviction should not redound to his benefit.” Ante , at 16. But Congress made precisely the opposite choice by tying ineligibility for relief to a noncitizen’s “conviction.” That text mandates a categorical approach in which uncertainty about a conviction redounds to a noncitizen or defendant’s benefit. The approach is underinclusive by design, and the majority’s “objection to th[e categorical approach’s] underinclusive result is little more than an attack on the categorical approach itself.” Moncrieffe , 569 U. S., at 205. Finally, it makes particularly little sense to disregard this core feature of the categorical approach here. See id. , at 203–204. As already noted, cancellation of removal is discretionary. Thus, when a conviction is not disqualifying under the categorical approach, the Government may still deny the noncitizen relief. If it turns out that an individual with a record like the one here in fact violated the statute in a reprehensible manner, that can be accounted for during the discretionary phase of the proceedings, when the categorical approach does not apply. *  *  * In my view, the Court should follow Congress’ statute. Congress has long provided that immigration courts applying the INA provision here, like sentencing courts applying ACCA, must follow the categorical approach. See Mellouli , 575 U. S., at 805–806. Our cases make clear how that approach applies in a case like this one. We should follow our earlier decisions, particularly Taylor , Shepard , and Johnson . And, were we to do so, ineluctably they would lead us to determine that the statutory offense of which Mr. Pereida was “convicted” is not “necessarily” a “crime involving moral turpitude.” Because the Court comes to a different conclusion, with respect, I dissent.

The Supreme Court ruled that an individual facing a lawful removal order must prove their eligibility for relief, including demonstrating they have not been convicted of a "crime involving moral turpitude." In this case, Clemente Avelino Pereida, an undocumented immigrant, could not prove his eligibility for relief as he failed to identify his prior conviction, leaving uncertainty about whether it involved moral turpitude. The Court's decision upholds the strict requirements for individuals seeking relief from removal orders under the Immigration and Nationality Act (INA).

Immigration & National Security

Johnson v. Arteaga-Martinez

https://supreme.justia.com/cases/federal/us/596/19-896/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 19–896 _________________ TAE D. JOHNSON, ACTING DIRECTOR OF U. S. IMMIGRATION AND CUSTOMS ENFORCE- MENT, et al., PETITIONERS v. ANTONIO ARTEAGA-MARTINEZ on writ of certiorari to the united states court of appeals for the third circuit [June 13, 2022] Justice Sotomayor delivered the opinion of the Court. Section 241(a) of the Immigration and Nationality Act (INA), codified at 8 U. S. C. §1231(a), authorizes the detention of noncitizens who have been ordered removed from the United States. See 110Stat. 3009–598. In particular, §1231(a)(6) provides that after a 90-day “removal period,” a noncitizen “may be detained” or may be released under terms of supervision. This Court recently held that §1231(a) applies to individuals who are removed and who then reenter without authorization and apply for withholding of removal based on a fear that they will be persecuted or tortured if returned to their countries of origin. See Johnson v. Guzman Chavez , 594 U. S. ___, ___ (2021) (slip op., at 1). The issue in this case is whether the text of §1231(a)(6) requires the Government to offer detained noncitizens bond hearings after six months of detention in which the Government bears the burden of proving by clear and convincing evidence that a noncitizen poses a flight risk or a danger to the community. It does not. I Respondent Antonio Arteaga-Martinez is a citizen of Mexico. He admits that he has entered the United States without inspection four times. He first entered in March 2001 and was detained at the border and removed; he reentered in April of that year. Ten years later, in 2011, he left the country to care for his sick mother, reentering in July of the following year. The Government again detained him at the border, determined he was inadmissible, and removed him. Arteaga-Martinez represents that, after returning to Mexico, he was beaten violently by members of a criminal street gang. Fearing that he would be persecuted or tortured again with the acquiescence of government officials, he reentered the United States in September 2012. In May 2018, U. S. Immigration and Customs Enforcement (ICE) issued a warrant for Arteaga-Martinez’s arrest. By then, he had been living and working in the United States for nearly six years and was expecting the birth of his first child. He had no criminal record aside from minor traffic violations. ICE detained Arteaga-Martinez without any opportunity for bond and reinstated his earlier removal order. Arteaga-Martinez applied for withholding of removal under §1231(b)(3), as well as relief under regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100–20, 1465 U. N. T. S. 113. The Department of Homeland Security (DHS) referred Arteaga-Martinez to an asylum officer, who found that Arteaga-Martinez’s testimony was credible and that he had established a reasonable fear of persecution or torture. As a result, DHS referred Arteaga-Martinez’s claims for adjudication by an immigration judge in what we have called “withholding-only proceedings.” Guzman Chavez , 594 U. S., at ___ (slip op., at 6). Pending these proceedings, however, the Government continued to detain Arteaga-Martinez pursuant to §1231(a)(6).[ 1 ] In September 2018, after he had been detained for four months without a hearing, Arteaga-Martinez filed a petition for a writ of habeas corpus in the U. S. District Court for the Middle District of Pennsylvania. His petition challenged his continued detention without a bond hearing on both statutory and constitutional grounds. Shortly thereafter, in a separate case, the Third Circuit held that a noncitizen facing prolonged detention under §1231(a)(6) is entitled by statute to a bond hearing before an immigration judge and must be released from detention unless the Government establishes, by clear and convincing evidence, that the noncitizen poses a risk of flight or a danger to the community. See Guerrero-Sanchez v. Warden York County Prison , 905 F.3d 208, 224, and n. 12 (2018). The Government conceded that under Guerrero-Sanchez , Arteaga-Martinez would be entitled to a bond hearing pursuant to §1231(a)(6) as of November 4, 2018, six months after the start of his detention. See App. to Pet. for Cert. 4a. Once Arteaga-Martinez’s time in detention had reached nearly six months, a Magistrate Judge recommended that the District Court grant a writ of habeas corpus on Arteaga-Martinez’s statutory claim and order the Government to provide him an individualized bond hearing before an immigration judge. Id. , at 4a–5a. The District Court adopted the report and recommendation and ordered a bond hearing. Id. , at 3a. The Government appealed. The Court of Appeals summarily affirmed, citing its earlier decision in Guerrero-Sanchez . See App. to Pet. for Cert. 1a–2a. Arteaga-Martinez received a bond hearing at which an Immigration Judge, considering Arteaga-Martinez’s flight risk and dangerousness, authorized his release on bond. Arteaga-Martinez posted bond and was released pending a final determination on his application for withholding of removal, which, as of today, the Immigration Judge has yet to make. Pet. for Cert. 6; Brief for Respondent 10–11. This Court granted certiorari. 594 U. S. ___ (2021).[ 2 ] II A The INA establishes procedures for the Government to use when removing certain noncitizens from the United States and, in some cases, detaining them. The section at issue here, 8 U. S. C. §1231(a), governs the detention, release, and removal of individuals “ordered removed.” This Court has held that §1231(a) applies to individuals with pending withholding-only proceedings. See Guzman Chavez , 594 U. S., at ___–___ (slip op., at 7–8). After the entry of a final order of removal against a noncitizen, the Government generally must secure the noncitizen’s removal during a 90-day “ ‘removal period.’ ” §1231(a)(1)(A). The statute provides that the Government “shall” detain noncitizens during the statutory removal period. §1231(a)(2). After the removal period expires, the Government “may” detain only four categories of people: (1) those who are “inadmissible” on certain specified grounds; (2) those who are “removable” on certain specified grounds; (3) those it determines “to be a risk to the community”; and (4) those it determines to be “unlikely to comply with the order of removal.” §1231(a)(6). Individuals released after the removal period remain subject to terms of supervision. Ibid. Section 1231(a)(6) does not expressly specify how long detention past the 90-day removal period may continue for those who fall within the four designated statutory categories. In Zadvydas v. Davis , 533 U.S. 678 (2001), the Court observed that the statute’s use of the term “may” introduces some ambiguity and “does not necessarily suggest unlimited discretion.” Id. , at 697. The Court explained that “[a] statute permitting indefinite detention of an alien would raise a serious constitutional problem,” noting that it had upheld noncriminal detention as consistent with the Due Process Clause of the Fifth Amendment only under certain narrow circumstances. Id. , at 690. Accordingly, the Court applied the canon of constitutional avoidance and determined that “read in light of the Constitution’s demands,” §1231(a)(6) “does not permit indefinite detention” but instead “limits an alien’s post-removal-period detention to a period reasonably necessary to bring about that alien’s removal from the United States.” Id. , at 689. Subsequently, in Jennings v. Rodriguez , 583 U. S. ___ (2018), this Court considered the text of other provisions of the INA that authorize detention. One such provision was §1226(a), which governs the detention of certain noncitizens present in the country who were inadmissible at the time of entry or who have been convicted of certain criminal offenses since they were admitted. Id. , at ___ (slip op., at 4). Section 1226(a) provides that the attorney general “may” detain these noncitizens pending their removal proceedings and “may release” such individuals on “bond . . . or conditional parole.” 8 U. S. C. §§1226(a)(1), (2). Noncitizens detained under §1226(a) receive bond hearings after the Government initially detains them. See 8 CFR §§236.1(d)(1), 1236.1(d)(1) (2021). Relying on Zadvydas , the Ninth Circuit had interpreted §1226(a) to require additional, periodic bond hearings every six months, with the burden on the Government to prove by clear and convincing evidence that further detention was justified. Jennings , 583 U. S., at ___–___ (slip op., at 22–23). The Court in Jennings disagreed. It held that “the meaning of the relevant statutory provisio[n] is clear” and that it did not support a periodic bond hearing requirement. Id. , at ___ (slip op., at 23). The Jennings Court also rejected the lower court’s application of the canon of constitutional avoidance. Earlier in its opinion, the Court explained that “[t]he canon of constitutional avoidance ‘comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.’ ” Id. , at ___ (slip op., at 12) (quoting Clark v. Martinez , 543 U.S. 371 , 385 (2005)). “In the absence of more than one plausible construction, the canon simply has no application. ” Jennings , 583 U. S., at ___ (slip op., at 12) (internal quotation marks omitted). Applying this reasoning to §1226(a), the Court concluded that the canon was inapposite because “[n]othing in §1226(a)’s text . . . even remotely supports the imposition of either of th[e] requirements” the Ninth Circuit had imposed. Id. , at ___ (slip op., at 23). B The question presented is whether §1231(a)(6) requires bond hearings before immigration judges after six months of detention in which the Government bears the burden of proving by clear and convincing evidence that a noncitizen poses a flight risk or a danger to the community. Section 1231(a)(6) provides that certain noncitizens who have been ordered removed “may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision.” This text, which does not address or “even hin[t]” at the requirements imposed below, directs that we answer this question in the negative. Id. , at ___ (slip op., at 14). The Jennings Court emphasized that the canon of constitutional avoidance is only applicable where a statute has “more than one plausible construction.” Id. , at ___ (slip op., at 12). Here, there is no plausible construction of the text of §1231(a)(6) that requires the Government to provide bond hearings before immigration judges after six months of detention, with the Government bearing the burden of proving by clear and convincing evidence that a detained noncitizen poses a flight risk or a danger to the community. Section 1231(a)(6) provides only that a noncitizen ordered removed “may be detained beyond the removal period” and if released, “shall be subject to [certain] terms of supervision.” On its face, the statute says nothing about bond hearings before immigration judges or burdens of proof, nor does it provide any other indication that such procedures are required. Faithfully applying our precedent, the Court can no more discern such requirements from the text of §1231(a)(6) than a periodic bond hearing requirement from the text of §1226(a). See id. , at ___ (slip op., at 23). Section 1231(a)(6) therefore cannot be read to incorporate the procedures imposed by the courts below as a matter of textual command. Arteaga-Martinez responds that §1231(a)(6)’s references to flight risk, dangerousness, and “ ‘terms of supervision’ ” support the relief ordered below. Brief for Respondent 29–30. Similarly, respondents in the companion case analogize the text of §1231(a)(6) to that of §1226(a), and they note that noncitizens detained under §1226(a) have long received bond hearings at the outset of detention. Brief for Respondents in Garland v. Gonzalez , O. T. 2021, No. 20–322, pp. 22–24. However, assuming without deciding that an express statutory reference to “bond” (as in §1226(a)) might be read to require an initial bond hearing, §1231(a)(6) contains no such reference. A more oblique reference to terms of supervision does not suffice. Respondents in the companion case also emphasize that regulations offer custody hearings before immigration judges for noncitizens the Government detains under §1231(a)(6) because it deems them “specially dangerous.” See 8 CFR §241.14; Brief for Respondents in No. 20–322, at 16, 25–26. They argue that if the statute can allow custody hearings for these individuals, it requires such hearings for those in Arteaga-Martinez’s situation as well. Federal agencies, however, “are free to grant additional procedural rights in the exercise of their discretion.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council , Inc. , 435 U.S. 519 , 524 (1978). “[R]eviewing courts,” on the other hand, “are generally not free to impose them if the agencies have not chosen to grant them.” Ibid. The parties do not dispute that the Government possesses discretion to provide bond hearings under §1231(a)(6), see Brief for Petitioners 15, but this Court cannot say, consistent with Jennings , that the statutory text requires them. Finally, Arteaga-Martinez argues that Zadvydas , which identified ambiguity in §1231(a)(6)’s permissive language, supports a view that §1231(a)(6) implicitly incorporates the specific bond hearing requirements and procedures enumerated by the Court of Appeals. In Jennings , however, this Court faulted the Ninth Circuit for going significantly further than Zadvydas . 583 U. S., at ___ (slip op., at 15). Jennings did not overrule or abrogate Zadvydas . But the detailed procedural requirements imposed by the Court of Appeals below reach substantially beyond the limitation on detention authority recognized in Zadvydas . Zadvydas does not require, and Jennings does not permit, the Third Circuit’s application of the canon of constitutional avoidance.[ 3 ] C Separately from his statutory claims, Arteaga-Martinez contends that reading §1231(a)(6) not to require bond hearings when detention becomes prolonged “raises serious due process concerns.” Brief for Respondent 24. He points out that outside of the national-security context, this Court has never “authorized prolonged detention without an individualized hearing, before a neutral adjudicator, at which the detainee has a meaningful opportunity to participate.” Ibid. (collecting cases). He asserts that the Government’s interest in denying bond hearings is minimal because such hearings do not require release. Id. , at 26 (citing Zadvydas , 533 U. S., at 696). And he argues that his status as an individual with a reinstated removal order “ ‘bears no relation to [his] dangerousness,’ ” as evidenced by the fact that an Immigration Judge authorized his release on bond. Brief for Respondent 26–27 (quoting Zadvydas , 533 U. S., at 692). The Government responds that regulations directing ICE officials to conduct administrative custody reviews for individuals in ICE detention provide adequate process, “at least as a general matter.” Brief for Petitioners 18–19. The Government contends that these regulations—which generally require a custody review at the end of the 90-day removal period, a second review by a panel at ICE headquarters after six months of detention, and subsequent annual reviews—provide constitutionally sufficient substantive and procedural protections for noncitizens whose detention is prolonged. Id., at 18. The Government also notes that as-applied constitutional challenges remain available to address “exceptional” cases. Id., at 21. “[W]e are a court of review, not of first view.” Cutter v. Wilkinson , 544 U.S. 709 , 718, n. 7 (2005). The courts below did not reach Arteaga-Martinez’s constitutional claims because they agreed with him that the statute required a bond hearing. We leave them for the lower courts to consider in the first instance. See Jennings , 583 U. S., at ___ (slip op., at 29). Arteaga-Martinez also advances an alternative theory that he is presumptively entitled to release under Zadvydas because, in view of the length of time that withholding-only proceedings tend to take, his removal is not reasonably foreseeable. See Brief for Respondent 19–22. The Government disagrees on the merits and adds that the issue is not properly before this Court because it would alter the scope of the judgment below, which granted Arteaga-Martinez a bond hearing, not release. See Reply Brief 11–12 (citing Trans World Airlines , Inc. v. Thurston , 469 U.S. 111 , 119, n. 14 (1985)). Again, we decline to reach this claim in the first instance. See Cutter , 544 U. S., at 718, n. 7. *  *  * The judgment of the Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 Arteaga-Martinez represents, and the Government does not dispute, that the Government conducted an administrative review of his dangerousness and flight risk in August 2018 and denied him release without interviewing him or providing a hearing. See 8 CFR §241.4(h)(1) (2021). 2 The Court also granted certiorari in a companion case presenting the same question. See Garland v. Gonzalez , 594 U. S. ___ (2021). 3 Because the text of 8 U. S. C. §1231(a)(6) does not require the relief ordered below, the Court does not address the parties’ disagreements over whether that relief contravened §1231(h) or impermissibly reallocated executive authority. SUPREME COURT OF THE UNITED STATES _________________ No. 19–896 _________________ TAE D. JOHNSON, ACTING DIRECTOR OF U. S. IMMIGRATION AND CUSTOMS ENFORCE- MENT, et al., PETITIONERS v. ANTONIO ARTEAGA-MARTINEZ on writ of certiorari to the united states court of appeals for the third circuit [June 13, 2022] Justice Thomas, with whom Justice Gorsuch joins as to Part I, concurring. I join the Court’s opinion because it correctly decides that 8 U. S. C. §1231(a)(6) does not require periodic, 6-month bond hearings. I write separately to make three points. I First, we lack jurisdiction to hear this case. Under 8 U. S. C. §1252(b)(9), a federal court has jurisdiction to review “questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien . . . only” in two circumstances: (1) when the court reviews a “final order” of removal, or (2) when §1252 otherwise grants jurisdiction. See, e.g., Johnson v. Guzman Chavez , 594 U. S. ___, ___ (2021) (Thomas, J., concurring in part and concurring in judgment) (slip op., at 1); Jennings v. Rodriguez , 583 U. S. ___, ___–___ (2018) (same) (slip op., at 3–4). This jurisdictional zipper clause “cover[s] all claims related to removal proceedings,” including detention-related “withholding-of-removal claims.” Guzman Chavez, 594 U. S., at ___ (slip op., at 2) (internal quotation marks omitted); see also Jennings , 583 U. S., at ___–___ (slip op., at 4–7). Because Arteaga-Martinez does not seek review of a final removal order or otherwise invoke §1252, and because his claim “aris[es] from” his removal proceedings, I would vacate and remand with instructions to dismiss for lack of jurisdiction. Nonetheless, “because the Court has held that we have jurisdiction in cases like these, and the Court’s opinion is otherwise correct,” I join it in full. Guzman Chavez , 594 U. S., at ___ (slip op., at 2) (internal quotation marks omitted). II Second, as I have explained elsewhere, there is considerable historical evidence that the Due Process Clause does not “apply to laws governing the removal of aliens.” Sessions v. Dimaya , 584 U. S. ___, ___ (2018) (dissenting opinion) (slip op., at 6). But even assuming the Due Process Clause extends to some aliens contesting their removability, it does not protect from detention an alien who, like Arteaga-Martinez, does not challenge his final removal order. Illegal aliens deemed removable have no “right of release into this country.” Zadvydas v. Davis , 533 U.S. 678 , 703 (2001) (Scalia, J., dissenting). Although the Court properly declines to decide Arteaga-Martinez’s due process claim, see ante, at 9, we should revisit whether the Due Process Clause applies at all in this context. III Third, this case illustrates why we should overrule Zadvydas at the earliest opportunity. There, the Court held that §1231(a)(6) “would raise a serious constitutional problem” under the Fifth Amendment if it permitted “indefinite detention of an alien.” Id. , at 690. To avoid that supposed “problem,” the Court deemed “ambiguous” the statutory authorization that a removable alien “may be detained beyond the removal period,” and then, clothed in constitutional garb, invoked that manufactured ambiguity to graft a made-up rule onto §1231(a)(6). Id., at 697. Namely, the Court decided that immigration authorities can detain an alien only long enough to accomplish the “basic purpose [of] effectuating an alien’s removal” and must release him “once removal is no longer reasonably foreseeable.” Id., at 697, 699. The “presumptively reasonable” detention period, the Court declared, was six months. Id., at 701. The Court offered no textual support for that (or any) length of time. See ibid. As we later implied in Jennings , the constitutional-avoidance canon cannot justify adoption of such an implausible construction of §1231(a)(6). See 583 U. S., at ___ (slip op., at 12). And, until we overrule Zadvydas , it will continue to invite nothing but mischief. An ill-defined, quasi- constitutional command of “reasonableness” inevitably encourages courts to fashion procedural rules with no basis in statutory text. We confronted that mischief in Jennings , see 583 U. S., at ___ (slip op., at 14) (reversing the Ninth Circuit for “all but ignor[ing] the statutory text” and instead “reading Zadvydas . . . as essentially granting a license to graft a time limit onto the text of §1225(b)”), and we do so again today, compare ante, at 8, with Guerrero-Sanchez v. Warden York County Prison , 905 F.3d 208, 223 (CA3 2018). We will be forced to engage in this jurisprudential whack-a-mole until we recognize that Zadvydas was wrong the day it was decided and thus does not warrant “ stare decisis effect.” Clark v. Martinez , 543 U.S. 371 , 401 (2005) (Thomas, J., dissenting); see also Gamble v. United States , 587 U. S. ___, ___ (2019) (Thomas, J., concurring) (slip op., at 17) (“[W]e should not invoke stare decisis to uphold precedents that are demonstrably erroneous”). *  *  * These three points notwithstanding, the Court’s opinion correctly interprets §1231(a)(6). Accordingly, I concur. SUPREME COURT OF THE UNITED STATES _________________ No. 19–896 _________________ TAE D. JOHNSON, ACTING DIRECTOR OF U. S. IMMIGRATION AND CUSTOMS ENFORCE- MENT, et al., PETITIONERS v. ANTONIO ARTEAGA-MARTINEZ on writ of certiorari to the united states court of appeals for the third circuit [June 13, 2022] Justice Breyer, concurring in part and dissenting in part. The Government can normally detain persons unlawfully present in, and ordered removed from, the United States for a 90-day statutory “removal period.” 8 U. S. C. §1231(a). However, §1231(a)(6) provides that the Attorney General may sometimes hold such a person in custody for a longer period. It says: “An alien ordered removed [1] who is inadmissible [2] [or] removable [as a result of violations of status requirements or entry conditions, certain violations of criminal law, or reasons of security or foreign policy] or [3] who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period . . . .” In Zadvydas v. Davis , 533 U.S. 678 , 689 (2001), “we read an implicit limitation into” this provision. Because a “statute permitting indefinite detention of an alien would raise a serious constitutional problem,” we held that the “statute, read in light of the Constitution’s demands, limits an alien’s post-removal-period detention to a period reasonably necessary to bring about that alien’s removal from the United States. It does not permit indefinite detention.” Id., at 689–690; see also id., at 690–696 (explaining potential constitutional concerns presented by indefinite detention under §1231(a)(6)). We also held that the period reasonably necessary to effect removal was presumptively six months. Id., at 701. “[W]e recognize[d] that period” “for the sake of uniform administration in the federal courts.” Ibid. But “[a]fter this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior postremoval confinement grows, what counts as the ‘reasonably foreseeable future’ conversely would have to shrink.” Ibid. In my view, Zadvydas controls the outcome here. The statutory language is identical, which is not surprising, for this case concerns the same statutory provision. There are two conceivable differences between this case and Zadvydas , but both argue in favor of applying Zadvydas ’ holding here. First, the respondent here, Antonio Arteaga-Martinez, has been ordered removed, and is therefore subject to §1231(a), for a different reason than the persons whose cases we considered in Zadvydas . Kestutis Zadvydas and Kim Ho Ma were ordered removed because they had been convicted of serious crimes. Id., at 684–685. Zadvydas had committed drug crimes, attempted robbery, attempted burglary, and theft; Ma was involved in a gang-related shooting and convicted of manslaughter. Ibid. Arteaga-Martinez’s only crime (besides minor traffic violations) is entering the United States without inspection. Ante, at 2. The Government seeks to detain him while an immigration judge considers his claim that he will be persecuted or tortured if he is returned to Mexico. Ante, at 2–3. There is less reason, not more, to detain Arteaga-Martinez without bail. Second, Zadvydas provided for outright release, 533 U. S., at 699–700; this case involves a bail hearing. Again, the Government has less reason to detain a person when the alternative is a bail hearing (where the Government has an opportunity to show that that person might pose a danger to the community or a flight risk) than when the alternative is simply release. The Government argues that a later case, Jennings v. Rodriguez , 583 U. S. ___ (2018), dictates the result here, rather than Zadvydas . Not at all. That later case involved detention under statutes other than the one at issue here and in Zadvydas . Jennings , 583 U. S., at ___ (slip op., at 5) (“The primary issue is the proper interpretation of §§1225(b), 1226(a), and 1226(c)”). The Court in Jennings did not modify or overrule Zadvydas , but rather explicitly distinguished that case. Jennings , 583 U. S., at ___ (slip op., at 17). It did so on multiple grounds, including the fact that almost all of the statutes at issue in Jennings used words that mandated detention, such as “shall,” rather than words of discretion, such as “may.” Id., at ___, ___ (slip op., at 16, 19). In Zadvydas , the word “may” created ambiguity that permitted the Court to interpret §1231(a)(6) (the statute before us) in a manner that avoided the constitutional problem that indefinite detention could have created. 533 U. S., at 697. The majority in Jennings held that the statutory provisions at issue there were not similarly ambiguous, and therefore did not permit the Court to reach a similar interpretation. 583 U. S., at ___, ___–___ (slip op., at 17, 22–23). It is true that one of the statutes interpreted in Jennings , §1226(a), said that the Attorney General “may . . . arres[t] and detai[n an alien] pending a decision on whether the alien is to be removed,” or “may release the alien on . . . bond . . . or . . . conditional parole.” Why did this statute not give the Court the textual leeway needed to permit a bail hearing (given the constitutional problem posed by potentially indefinite detention)? Here is the Court’s answer to that question in its entirety: “The Court of Appeals ordered the Government to provide procedural protections that go well beyond the initial bond hearing established by existing regulations—namely, periodic bond hearings every six months in which the Attorney General must prove by clear and convincing evidence that the alien’s continued detention is necessary. Nothing in §1226(a)’s text—which says only that the Attorney General ‘may release’ the alien ‘on . . . bond’—even remotely supports the imposition of either of those requirements. Nor does §1226(a)’s text even hint that the length of detention prior to a bond hearing must specifically be considered in determining whether the alien should be released.” Jennings , 583 U. S., at ___–___ (slip op., at 22–23) (emphasis added). The court below did not order periodic bond hearings, but it did require the Government to satisfy a “clear and convincing evidence” standard. Ante, at 3. I agree that Jennings forecloses this latter requirement. Otherwise, I would find the lower courts’ bail hearing requirements reasonable implementations of the Zadvydas standard, which is applicable here. Since the Court remands this case for further proceedings, I would add that, in my view, Zadvydas applies (the Court does not hold to the contrary), and the parties are free to argue about the proper way to implement Zadvydas ’ standard in this context, and, if necessary, to consider the underlying constitutional question, a matter that this Court has not decided.

The case, Johnson v. Arteaga-Martinez, concerns the detention of non-citizens who have been ordered to be removed from the United States under the Immigration and Nationality Act (INA). The specific issue is whether the government must provide bond hearings for detained non-citizens after six months, during which the government must prove that they pose a flight risk or danger. The Court's opinion, delivered by Justice Sotomayor, states that the text of the INA does not require the government to offer these bond hearings. The Court's interpretation focuses on the discretionary language of the statute, which states that a non-citizen "may be detained" or released under supervision after the removal period. This discretion is granted to the government without any mention of mandatory bond hearings. Justice Breyer's concurrence emphasizes the distinction between this case and Jennings v. Rodriguez, where the Court interpreted a different provision of the INA and found that the statute did not permit the same interpretation as in Zadvydas v. Davis, a case concerning indefinite detention. He agrees that Jennings forecloses the lower court's requirement for clear and convincing evidence but suggests that Zadvydas remains applicable, allowing for reasonable bail hearing requirements. In summary, the Court's decision in Johnson v. Arteaga-Martinez holds that the INA does not require the government to provide bond hearings for detained non-citizens after six months, and Justice Breyer's concurrence highlights the potential for further arguments regarding the implementation of Zadvydas' standard and the underlying constitutional question.

Immigration & National Security

Holder v. Humanitarian Law Project

https://supreme.justia.com/cases/federal/us/561/1/

561 U. S. ____ (2010) 561 U. S. ____ (2010) 561 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NOS. 08-1498 AND 09-89 ERIC H. HOLDER, Jr., ATTORNEY GENERAL, et al., PETITIONERS 08–1498 v. HUMANITARIAN LAW PROJECT et al. HUMANITARIAN LAW PROJECT, et al., PETITIONERS 09–89 v. ERIC H. HOLDER, Jr ., ATTORNEY GENERAL, et al. on writs of certiorari to the united states court of appeals for the ninth circuit [June 21, 2010]    Chief Justice Roberts delivered the opinion of the Court.    Congress has prohibited the provision of “material support or resources” to certain foreign organizations that engage in terrorist activity. 18 U. S. C. §2339B(a)(1). That prohibition is based on a finding that the specified organizations “are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.” Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), §301(a)(7), 110 Stat. 1247, note following 18 U. S. C. §2339B (Findings and Purpose). The plaintiffs in this litigation seek to provide support to two such organizations. Plaintiffs claim that they seek to facilitate only the lawful, nonviolent purposes of those groups, and that applying the material-support law to prevent them from doing so violates the Constitution. In particular, they claim that the statute is too vague, in violation of the Fifth Amendment, and that it infringes their rights to freedom of speech and association, in violation of the First Amendment. We conclude that the material-support statute is constitutional as applied to the particular activities plaintiffs have told us they wish to pursue. We do not, however, address the resolution of more difficult cases that may arise under the statute in the future. I    This litigation concerns 18 U. S. C. §2339B, which makes it a federal crime to “knowingly provid[e] material support or resources to a foreign terrorist organization.”[ Footnote 1 ] Congress has amended the definition of “material support or resources” periodically, but at present it is defined as follows: “[T]he term ‘material support or resources’ means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.” §2339A(b)(1); see also §2339B(g)(4).    The authority to designate an entity a “foreign terrorist organization” rests with the Secretary of State. 8 U. S. C. §§1189(a)(1), (d)(4). She may, in consultation with the Secretary of the Treasury and the Attorney General, so designate an organization upon finding that it is foreign, engages in “terrorist activity” or “terrorism,” and thereby “threatens the security of United States nationals or the national security of the United States.” §§1189(a)(1), (d)(4). “ ‘[N]ational security’ means the national defense, foreign relations, or economic interests of the United States.” §1189(d)(2). An entity designated a foreign terrorist organization may seek review of that designation before the D. C. Circuit within 30 days of that designation. §1189(c)(1).    In 1997, the Secretary of State designated 30 groups as foreign terrorist organizations. See 62 Fed. Reg. 52650. Two of those groups are the Kurdistan Workers’ Party (also known as the Partiya Karkeran Kurdistan, or PKK) and the Liberation Tigers of Tamil Eelam (LTTE). The PKK is an organization founded in 1974 with the aim of establishing an independent Kurdish state in southeastern Turkey. Humanitarian Law Project v. Reno , 9 F. Supp. 2d 1176, 1180–1181 (CD Cal. 1998); Brief for Petitioners in No. 08–1498, p. 6 (hereinafter Brief for Government). The LTTE is an organization founded in 1976 for the purpose of creating an independent Tamil state in Sri Lanka. 9 F. Supp. 2d, at 1182; Brief for Government 6. The District Court in this action found that the PKK and the LTTE engage in political and humanitarian activities. See 9 F. Supp. 2d, at 1180–1182. The Government has presented evidence that both groups have also committed numerous terrorist attacks, some of which have harmed American citizens. See App. 128–133. The LTTE sought judicial review of its designation as a foreign terrorist organization; the D. C. Circuit upheld that designation. See People’s Mojahedin Organization of Iran v. Dept. of State , 182 F. 3d 17, 18–19, 25 (1999). The PKK did not challenge its designation. 9 F. Supp. 2d, at 1180.    Plaintiffs in this litigation are two U. S. citizens and six domestic organizations: the Humanitarian Law Project (HLP) (a human rights organization with consultative status to the United Nations); Ralph Fertig (the HLP’s president, and a retired administrative law judge); Nagalingam Jeyalingam (a Tamil physician, born in Sri Lanka and a naturalized U. S. citizen); and five nonprofit groups dedicated to the interests of persons of Tamil descent. Brief for Petitioners in No. 09–89, pp. ii, 10 (hereinafter Brief for Plaintiffs); App. 48. In 1998, plaintiffs filed suit in federal court challenging the constitutionality of the material-support statute, §2339B. Plaintiffs claimed that they wished to provide support for the humanitarian and political activities of the PKK and the LTTE in the form of monetary contributions, other tangible aid, legal training, and political advocacy, but that they could not do so for fear of prosecution under §2339B. 9 F. Supp. 2d, at 1180–1184.[ Footnote 2 ]    As relevant here, plaintiffs claimed that the material-support statute was unconstitutional on two grounds: First, it violated their freedom of speech and freedom of association under the First Amendment, because it criminalized their provision of material support to the PKK and the LTTE, without requiring the Government to prove that plaintiffs had a specific intent to further the unlawful ends of those organizations. Id. , at 1184. Second, plaintiffs argued that the statute was unconstitutionally vague. Id. , at 1184–1185.    Plaintiffs moved for a preliminary injunction, which the District Court granted in part. The District Court held that plaintiffs had not established a probability of success on their First Amendment speech and association claims. See id. , at 1196–1197. But the court held that plaintiffs had established a probability of success on their claim that, as applied to them, the statutory terms “personnel” and “training” in the definition of “material support” were impermissibly vague. See id. , at 1204.    The Court of Appeals affirmed. 205 F. 3d 1130, 1138 (CA9 2000). The court rejected plaintiffs’ speech and association claims, including their claim that §2339B violated the First Amendment in barring them from contributing money to the PKK and the LTTE. See id. , at 1133–1136. But the Court of Appeals agreed with the District Court that the terms “personnel” and “training” were vague because it was “easy to imagine protected expression that falls within the bounds” of those terms. Id. , at 1138; see id. , at 1137.    With the preliminary injunction issue decided, the action returned to the District Court, and the parties moved for summary judgment on the merits. The District Court entered a permanent injunction against applying to plaintiffs the bans on “personnel” and “training” support. See No. CV–98–1971 ABC (BQRx), 2001 WL 36105333 (CD Cal., Oct. 2, 2001). The Court of Appeals affirmed. 352 F. 3d 382 (CA9 2003).    Meanwhile, in 2001, Congress amended the definition of “material support or resources” to add the term “expert advice or assistance.” Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Patriot Act), §805(a)(2)(B), 115 Stat. 377. In 2003, plaintiffs filed a second action challenging the constitutionality of that term as applied to them. 309 F. Supp. 2d 1185, 1192 (CD Cal. 2004).    In that action, the Government argued that plaintiffs lacked standing and that their preenforcement claims were not ripe. Id. , at 1194. The District Court held that plaintiffs’ claims were justiciable because plaintiffs had sufficiently demonstrated a “genuine threat of imminent prosecution,” id. , at 1195 (internal quotation marks omitted), and because §2339B had the potential to chill plaintiffs’ protected expression, see id. , at 1197–1198. On the merits, the District Court held that the term “expert advice or assistance” was impermissibly vague. Id. , at 1201. The District Court rejected, however, plaintiffs’ First Amendment claims that the new term was substantially overbroad and criminalized associational speech. See id. , at 1202, 1203.    The parties cross-appealed. While the cross-appeals were pending, the Ninth Circuit granted en banc rehearing of the panel’s 2003 decision in plaintiffs’ first action (involving the terms “personnel” and “training”). See 382 F. 3d 1154, 1155 (2004). The en banc court heard reargument on December 14, 2004. See 380 F. Supp. 2d 1134, 1138 (CD Cal. 2005). Three days later, Congress again amended §2339B and the definition of “material support or resources.” Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), §6603, 118 Stat. 3762–3764.    In IRTPA, Congress clarified the mental state necessary to violate §2339B, requiring knowledge of the foreign group’s designation as a terrorist organization or the group’s commission of terrorist acts. §2339B(a)(1). Congress also added the term “service” to the definition of “material support or resources,” §2339A(b)(1), and defined “training” to mean “instruction or teaching designed to impart a specific skill, as opposed to general knowledge,” §2339A(b)(2). It also defined “expert advice or assistance” to mean “advice or assistance derived from scientific, technical or other specialized knowledge.” §2339A(b)(3). Finally, IRTPA clarified the scope of the term “personnel” by providing: “No person may be prosecuted under [§2339B] in connection with the term ‘personnel’ unless that person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may be or include himself) to work under that terrorist organization’s direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization. Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization’s direction and control.” §2339B(h).    Shortly after Congress enacted IRTPA, the en banc Court of Appeals issued an order in plaintiffs’ first action. 393 F. 3d 902, 903 (CA9 2004). The en banc court affirmed the rejection of plaintiffs’ First Amendment claims for the reasons set out in the Ninth Circuit’s panel decision in 2000. See ibid. In light of IRTPA, however, the en banc court vacated the panel’s 2003 judgment with respect to vagueness, and remanded to the District Court for further proceedings. Ibid. The Ninth Circuit panel assigned to the cross-appeals in plaintiffs’ second action (relating to “expert advice or assistance”) also remanded in light of IRTPA. See 380 F. Supp. 2d, at 1139.    The District Court consolidated the two actions on remand. See ibid. The court also allowed plaintiffs to challenge the new term “service.” See id. , at 1151, n. 24. The parties moved for summary judgment, and the District Court granted partial relief to plaintiffs on vagueness grounds. See id. , at 1156.    The Court of Appeals affirmed once more. 552 F. 3d 916, 933 (CA9 2009). The court first rejected plaintiffs’ claim that the material-support statute would violate due process unless it were read to require a specific intent to further the illegal ends of a foreign terrorist organization. See id. , at 926–927. The Ninth Circuit also held that the statute was not overbroad in violation of the First Amendment. See id. , at 931–932. As for vagueness, the Court of Appeals noted that plaintiffs had not raised a “facial vagueness challenge.” Id. , at 929, n. 6. The court held that, as applied to plaintiffs, the terms “training,” “expert advice or assistance” (when derived from “other specialized knowledge”), and “service” were vague because they “continue[d] to cover constitutionally protected advocacy,” but the term “personnel” was not vague because it “no longer criminalize[d] pure speech protected by the First Amendment.” Id. , at 929–931.    The Government petitioned for certiorari, and plaintiffs filed a conditional cross-petition. We granted both petitions. 557 U. S. ___ (2009). II    Given the complicated 12-year history of this litigation, we pause to clarify the questions before us. Plaintiffs challenge §2339B’s prohibition on four types of material support—“training,” “expert advice or assistance,” “service,” and “personnel.” They raise three constitutional claims. First, plaintiffs claim that §2339B violates the Due Process Clause of the Fifth Amendment because these four statutory terms are impermissibly vague. Second, plaintiffs claim that §2339B violates their freedom of speech under the First Amendment. Third, plaintiffs claim that §2339B violates their First Amendment freedom of association.    Plaintiffs do not challenge the above statutory terms in all their applications. Rather, plaintiffs claim that §2339B is invalid to the extent it prohibits them from engaging in certain specified activities. See Brief for Plaintiffs 16–17, n. 10. With respect to the HLP and Judge Fertig, those activities are: (1) “train[ing] members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes”; (2) “engag[ing] in political advocacy on behalf of Kurds who live in Turkey”; and (3) “teach[ing] PKK members how to petition various representative bodies such as the United Nations for relief.” 552 F. 3d, at 921, n. 1; see 380 F. Supp. 2d, at 1136. With respect to the other plaintiffs, those activities are: (1) “train[ing] members of [the] LTTE to present claims for tsunami-related aid to mediators and international bodies”; (2) “offer[ing] their legal expertise in negotiating peace agreements between the LTTE and the Sri Lankan government”; and (3) “engag[ing] in political advocacy on behalf of Tamils who live in Sri Lanka.” 552 F. 3d, at 921, n. 1; see 380 F. Supp. 2d, at 1137.    Plaintiffs also state that “the LTTE was recently defeated militarily in Sri Lanka,” so “[m]uch of the support the Tamil organizations and Dr. Jeyalingam sought to provide is now moot.” Brief for Plaintiffs 11, n. 5. Plaintiffs thus seek only to support the LTTE “as a political organization outside Sri Lanka advocating for the rights of Tamils.” Ibid. Counsel for plaintiffs specifically stated at oral argument that plaintiffs no longer seek to teach the LTTE how to present claims for tsunami-related aid, because the LTTE now “has no role in Sri Lanka.” Tr. of Oral Arg. 63. For that reason, helping the LTTE negotiate a peace agreement with Sri Lanka appears to be moot as well. Thus, we do not consider the application of §2339B to those activities here.    One last point. Plaintiffs seek preenforcement review of a criminal statute. Before addressing the merits, we must be sure that this is a justiciable case or controversy under Article III. We conclude that it is: Plaintiffs face “a credible threat of prosecution” and “should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.” Babbitt v. Farm Workers , 442 U. S. 289 , 298 (1979) (internal quotation marks omitted). See also MedImmune, Inc. v. Genentech, Inc. , 549 U. S. 118 , 128–129 (2007).    Plaintiffs claim that they provided support to the PKK and the LTTE before the enactment of §2339B and that they would provide similar support again if the statute’s allegedly unconstitutional bar were lifted. See 309 F. Supp. 2d, at 1197. The Government tells us that it has charged about 150 persons with violating §2339B, and that several of those prosecutions involved the enforcement of the statutory terms at issue here. See Brief for Government 5. The Government has not argued to this Court that plaintiffs will not be prosecuted if they do what they say they wish to do. Cf. Tr. of Oral Arg. 57–58. See Babbitt , supra , at 302. See also Milavetz, Gallop & Milavetz, P. A. v. United States , 559 U. S. ___, ___, ___ (2010) (slip op., at 4, 19) (considering an as-applied preenforcement challenge brought under the First Amendment). Based on these considerations, we conclude that plaintiffs’ claims are suitable for judicial review (as one might hope after 12 years of litigation). III    Plaintiffs claim, as a threshold matter, that we should affirm the Court of Appeals without reaching any issues of constitutional law. They contend that we should interpret the material-support statute, when applied to speech, to require proof that a defendant intended to further a foreign terrorist organization’s illegal activities. That interpretation, they say, would end the litigation because plaintiffs’ proposed activities consist of speech, but plaintiffs do not intend to further unlawful conduct by the PKK or the LTTE.    We reject plaintiffs’ interpretation of §2339B because it is inconsistent with the text of the statute. Section 2339B(a)(1) prohibits “knowingly” providing material support. It then specifically describes the type of knowledge that is required: “To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization . . ., that the organization has engaged or engages in terrorist activity …, or that the organization has engaged or engages in terrorism… .” Ibid. Congress plainly spoke to the necessary mental state for a violation of §2339B, and it chose knowledge about the organization’s connection to terrorism, not specific intent to further the organization’s terrorist activities.    Plaintiffs’ interpretation is also untenable in light of the sections immediately surrounding §2339B, both of which do refer to intent to further terrorist activity. See §2339A(a) (establishing criminal penalties for one who “provides material support or resources . . . knowing or intending that they are to be used in preparation for, or in carrying out, a violation of” statutes prohibiting violent terrorist acts); §2339C(a)(1) (setting criminal penalties for one who “unlawfully and willfully provides or collects funds with the intention that such funds be used, or with the knowledge that such funds are to be used, in full or in part, in order to carry out” other unlawful acts). Congress enacted §2339A in 1994 and §2339C in 2002. See §120005(a), 108 Stat. 2022 (§2339A); §202(a), 116 Stat. 724 (§2339C). Yet Congress did not import the intent language of those provisions into §2339B, either when it enacted §2339B in 1996, or when it clarified §2339B’s knowledge requirement in 2004.    Finally, plaintiffs give the game away when they argue that a specific intent requirement should apply only when the material-support statute applies to speech. There is no basis whatever in the text of §2339B to read the same provisions in that statute as requiring intent in some circumstances but not others. It is therefore clear that plaintiffs are asking us not to interpret §2339B, but to revise it. “Although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute.” Scales v. United States , 367 U. S. 203 , 211 (1961). Scales is the case on which plaintiffs most heavily rely, but it is readily distinguishable. That case involved the Smith Act, which prohibited membership in a group advocating the violent overthrow of the government. The Court held that a person could not be convicted under the statute unless he had knowledge of the group’s illegal advocacy and a specific intent to bring about violent overthrow. Id. , at 220–222, 229. This action is different: Section 2339B does not criminalize mere membership in a designated foreign terrorist organization. It instead prohibits providing “material support” to such a group. See infra , at 20–21, 35. Nothing about Scales suggests the need for a specific intent requirement in such a case. The Court in Scales , moreover, relied on both statutory text and precedent that had interpreted closely related provisions of the Smith Act to require specific intent. 367 U. S., at 209, 221–222. Plaintiffs point to nothing similar here.    We cannot avoid the constitutional issues in this litigation through plaintiffs’ proposed interpretation of §2339B.[ Footnote 3 ] IV    We turn to the question whether the material-support statute, as applied to plaintiffs, is impermissibly vague under the Due Process Clause of the Fifth Amendment. “A conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” United States v. Williams , 553 U. S. 285 , 304 (2008). We consider whether a statute is vague as applied to the particular facts at issue, for “[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U. S. 489 , 495 (1982). We have said that when a statute “interferes with the right of free speech or of association, a more stringent vagueness test should apply.” Id. , at 499. “But ‘perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.’ ” Williams , supra , at 304 (quoting Ward v. Rock Against Racism , 491 U. S. 781 , 794 (1989)).    The Court of Appeals did not adhere to these principles. Instead, the lower court merged plaintiffs’ vagueness challenge with their First Amendment claims, holding that portions of the material-support statute were unconstitutionally vague because they applied to protected speech—regardless of whether those applications were clear. The court stated that, even if persons of ordinary intelligence understood the scope of the term “training,” that term would “remai[n] impermissibly vague” because it could “be read to encompass speech and advocacy protected by the First Amendment.” 552 F. 3d, at 929. It also found “service” and a portion of “expert advice or assistance” to be vague because those terms covered protected speech. Id. , at 929–930.    Further, in spite of its own statement that it was not addressing a “facial vagueness challenge,” id. , at 929, n. 6, the Court of Appeals considered the statute’s application to facts not before it. Specifically, the Ninth Circuit relied on the Government’s statement that §2339B would bar filing an amicus brief in support of a foreign terrorist organization—which plaintiffs have not told us they wish to do, and which the Ninth Circuit did not say plaintiffs wished to do—to conclude that the statute barred protected advocacy and was therefore vague. See id. , at 930. By deciding how the statute applied in hypothetical circumstances, the Court of Appeals’ discussion of vagueness seemed to incorporate elements of First Amendment overbreadth doctrine. See id. , at 929–930 (finding it “easy to imagine” protected expression that would be barred by §2339B (internal quotation marks omitted)); id. , at 930 (referring to both vagueness and overbreadth).    In both of these respects, the Court of Appeals contravened the rule that “[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” Hoffman Estates , supra , at 495. That rule makes no exception for conduct in the form of speech. See Parker v. Levy , 417 U. S. 733 , 755–757 (1974). Thus, even to the extent a heightened vagueness standard applies, a plaintiff whose speech is clearly proscribed cannot raise a successful vagueness claim under the Due Process Clause of the Fifth Amendment for lack of notice. And he certainly cannot do so based on the speech of others. Such a plaintiff may have a valid overbreadth claim under the First Amendment, but our precedents make clear that a Fifth Amendment vagueness challenge does not turn on whether a law applies to a substantial amount of protected expression. See Williams , supra , at 304; Hoffman Estates , supra , at 494–495, 497. Otherwise the doctrines would be substantially redundant.    Under a proper analysis, plaintiffs’ claims of vagueness lack merit. Plaintiffs do not argue that the material-support statute grants too much enforcement discretion to the Government. We therefore address only whether the statute “provide[s] a person of ordinary intelligence fair notice of what is prohibited.” Williams , 553 U. S., at 304.    As a general matter, the statutory terms at issue here are quite different from the sorts of terms that we have previously declared to be vague. We have in the past “struck down statutes that tied criminal culpability to whether the defendant’s conduct was ‘annoying’ or ‘indecent’—wholly subjective judgments without statutory definitions, narrowing context, or settled legal meanings.” Id., at 306; see also Papachristou v. Jacksonville , 405 U. S. 156 , n. 1 (1972) (holding vague an ordinance that punished “vagrants,” defined to include “rogues and vagabonds,” “persons who use juggling,” and “common night walkers” (internal quotation marks omitted)). Applying the statutory terms in this action—“training,” “expert advice or assistance,” “service,” and “personnel”—does not require similarly untethered, subjective judgments.    Congress also took care to add narrowing definitions to the material-support statute over time. These definitions increased the clarity of the statute’s terms. See §2339A(b)(2) (“ ‘training’ means instruction or teaching designed to impart a specific skill, as opposed to general knowledge”); §2339A(b)(3) (“ ‘expert advice or assistance’ means advice or assistance derived from scientific, technical or other specialized knowledge”); §2339B(h) (clarifying the scope of “personnel”). And the knowledge requirement of the statute further reduces any potential for vagueness, as we have held with respect to other statutes containing a similar requirement. See Hill v. Colorado , 530 U. S. 703 , 732 (2000); Posters ‘N’ Things, Ltd. v. United States , 511 U. S. 513 , 523, 526 (1994); see also Hoffman Estates , 455 U. S., at 499.    Of course, the scope of the material-support statute may not be clear in every application. But the dispositive point here is that the statutory terms are clear in their application to plaintiffs’ proposed conduct, which means that plaintiffs’ vagueness challenge must fail. Even assuming that a heightened standard applies because the material-support statute potentially implicates speech, the statutory terms are not vague as applied to plaintiffs. See Grayned v. City of Rockford , 408 U. S. 104 , 114–115 (1972) (rejecting a vagueness challenge to a criminal law that implicated First Amendment activities); Scales , 367 U. S., at 223 (same).    Most of the activities in which plaintiffs seek to engage readily fall within the scope of the terms “training” and “expert advice or assistance.” Plaintiffs want to “train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes,” and “teach PKK members how to petition various representative bodies such as the United Nations for relief.” 552 F. 3d, at 921, n. 1. A person of ordinary intelligence would understand that instruction on resolving disputes through international law falls within the statute’s definition of “training” because it imparts a “specific skill,” not “general knowledge.” §2339A(b)(2). Plaintiffs’ activities also fall comfortably within the scope of “expert advice or assistance”: A reasonable person would recognize that teaching the PKK how to petition for humanitarian relief before the United Nations involves advice derived from, as the statute puts it, “specialized knowledge.” §2339A(b)(3). In fact, plaintiffs themselves have repeatedly used the terms “training” and “expert advice” throughout this litigation to describe their own proposed activities, demonstrating that these common terms readily and naturally cover plaintiffs’ conduct. See, e.g., Brief for Plaintiffs 10, 11; App. 56, 58, 59, 61, 62, 63, 80, 81, 98, 99, 106, 107, 117.    Plaintiffs respond by pointing to hypothetical situations designed to test the limits of “training” and “expert advice or assistance.” They argue that the statutory definitions of these terms use words of degree—like “specific,” “general,” and “specialized”—and that it is difficult to apply those definitions in particular cases. See Brief for Plaintiffs 27 (debating whether teaching a course on geography would constitute training); id. , at 29. And they cite Gentile v. State Bar of Nev. , 501 U. S. 1030 (1991), in which we found vague a state bar rule providing that a lawyer in a criminal case, when speaking to the press, “may state without elaboration . . . the general nature of the . . . defense.” Id. , at 1048 (internal quotation marks omitted).    Whatever force these arguments might have in the abstract, they are beside the point here. Plaintiffs do not propose to teach a course on geography, and cannot seek refuge in imaginary cases that straddle the boundary between “specific skills” and “general knowledge.” See Parker v. Levy , 417 U. S., at 756. We emphasized this point in Scales , holding that even if there might be theoretical doubts regarding the distinction between “active” and “nominal” membership in an organization—also terms of degree—the defendant’s vagueness challenge failed because his “case present[ed] no such problem.” 367 U. S., at 223. Gentile was different. There the asserted vagueness in a state bar rule was directly implicated by the facts before the Court: Counsel had reason to suppose that his particular statements to the press would not violate the rule, yet he was disciplined nonetheless. See 501 U. S., at 1049–1051. We did not suggest that counsel could escape discipline on vagueness grounds if his own speech were plainly prohibited.    Plaintiffs also contend that they want to engage in “political advocacy” on behalf of Kurds living in Turkey and Tamils living in Sri Lanka. 552 F. 3d, at 921, n. 1. They are concerned that such advocacy might be regarded as “material support” in the form of providing “personnel” or “service[s],” and assert that the statute is unconstitutionally vague because they cannot tell.    As for “personnel,” Congress enacted a limiting definition in IRTPA that answers plaintiffs’ vagueness concerns. Providing material support that constitutes “personnel” is defined as knowingly providing a person “to work under that terrorist organization’s direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization.” §2339B(h). The statute makes clear that “personnel” does not cover independent advocacy: “Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization’s direction and control.” Ibid. “[S]ervice” similarly refers to concerted activity, not independent advocacy. See Webster’s Third New International Dictionary 2075 (1993) (defining “service” to mean “the performance of work commanded or paid for by another: a servant’s duty: attendance on a superior”; or “an act done for the benefit or at the command of another”). Context confirms that ordinary meaning here. The statute prohibits providing a service “ to a foreign terrorist organization.” §2339B(a)(1) (emphasis added). The use of the word “to” indicates a connection between the service and the foreign group. We think a person of ordinary intelligence would understand that independently advocating for a cause is different from providing a service to a group that is advocating for that cause.    Moreover, if independent activity in support of a terrorist group could be characterized as a “service,” the statute’s specific exclusion of independent activity in the definition of “personnel” would not make sense. Congress would not have prohibited under “service” what it specifically exempted from prohibition under “personnel.” The other types of material support listed in the statute, including “lodging,” “weapons,” “explosives,” and “transportation,” §2339A(b)(1), are not forms of support that could be provided independently of a foreign terrorist organization. We interpret “service” along the same lines. Thus, any independent advocacy in which plaintiffs wish to engage is not prohibited by §2339B. On the other hand, a person of ordinary intelligence would understand the term “service” to cover advocacy performed in coordination with, or at the direction of, a foreign terrorist organization.    Plaintiffs argue that this construction of the statute poses difficult questions of exactly how much direction or coordination is necessary for an activity to constitute a “service.” See Reply Brief for Petitioners in No. 09–89, p. 14 (hereinafter Reply Brief for Plaintiffs) (“Would any communication with any member be sufficient? With a leader? Must the ‘relationship’ have any formal elements, such as an employment or contractual relationship? What about a relationship through an intermediary?”). The problem with these questions is that they are entirely hypothetical. Plaintiffs have not provided any specific articulation of the degree to which they seek to coordinate their advocacy with the PKK and the LTTE. They have instead described the form of their intended advocacy only in the most general terms. See, e.g., Brief for Plaintiffs 10–11 (plaintiffs “would like, among other things, to offer their services to advocate on behalf of the rights of the Kurdish people and the PKK before the United Nations and the United States Congress” (internal quotation marks and alteration omitted)); App. 59 (plaintiffs would like to “write and distribute publications supportive of the PKK and the cause of Kurdish liberation” and “advocate for the freedom of political prisoners in Turkey”).    Deciding whether activities described at such a level of generality would constitute prohibited “service[s]” under the statute would require “sheer speculation”—which means that plaintiffs cannot prevail in their preenforcement challenge. See Washington State Grange v. Washington State Republican Party , 552 U. S. 442 , 454 (2008). It is apparent with respect to these claims that “gradations of fact or charge would make a difference as to criminal liability,” and so “adjudication of the reach and constitutionality of [the statute] must await a concrete fact situation.” Zemel v. Rusk , 381 U. S. 1 , 20 (1965). V A    We next consider whether the material-support statute, as applied to plaintiffs, violates the freedom of speech guaranteed by the First Amendment. Both plaintiffs and the Government take extreme positions on this question. Plaintiffs claim that Congress has banned their “pure political speech.” E.g., Brief for Plaintiffs 2, 25, 43. It has not. Under the material-support statute, plaintiffs may say anything they wish on any topic. They may speak and write freely about the PKK and LTTE, the governments of Turkey and Sri Lanka, human rights, and international law. They may advocate before the United Nations. As the Government states: “The statute does not prohibit independent advocacy or expression of any kind.” Brief for Government 13. Section 2339B also “does not prevent [plaintiffs] from becoming members of the PKK and LTTE or impose any sanction on them for doing so.” Id. , at 60. Congress has not, therefore, sought to suppress ideas or opinions in the form of “pure political speech.” Rather, Congress has prohibited “material support,” which most often does not take the form of speech at all. And when it does, the statute is carefully drawn to cover only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.[ Footnote 4 ]    For its part, the Government takes the foregoing too far, claiming that the only thing truly at issue in this litigation is conduct, not speech. Section 2339B is directed at the fact of plaintiffs’ interaction with the PKK and LTTE, the Government contends, and only incidentally burdens their expression. The Government argues that the proper standard of review is therefore the one set out in United States v. O’Brien , 391 U. S. 367 (1968). In that case, the Court rejected a First Amendment challenge to a conviction under a generally applicable prohibition on destroying draft cards, even though O’Brien had burned his card in protest against the draft. See id. , at 370, 376, 382. In so doing, we applied what we have since called “intermediate scrutiny,” under which a “content-neutral regulation will be sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.” Turner Broadcasting System, Inc. v. FCC , 520 U. S. 180 , 189 (1997) (citing O’Brien , supra , at 377).    The Government is wrong that the only thing actually at issue in this litigation is conduct, and therefore wrong to argue that O’Brien provides the correct standard of review.[ Footnote 5 ] O’Brien does not provide the applicable standard for reviewing a content-based regulation of speech, see R. A. V. v. St. Paul , 505 U. S. 377 , 385–386 (1992); Texas v. Johnson , 491 U. S. 397 , 403, 406–407 (1989), and §2339B regulates speech on the basis of its content. Plaintiffs want to speak to the PKK and the LTTE, and whether they may do so under §2339B depends on what they say. If plaintiffs’ speech to those groups imparts a “specific skill” or communicates advice derived from “specialized knowledge”—for example, training on the use of international law or advice on petitioning the United Nations—then it is barred. See Brief for Government 33–34. On the other hand, plaintiffs’ speech is not barred if it imparts only general or unspecialized knowledge. See id. , at 32.    The Government argues that §2339B should nonetheless receive intermediate scrutiny because it generally functions as a regulation of conduct. That argument runs headlong into a number of our precedents, most prominently Cohen v. California , 403 U. S. 15 (1971). Cohen also involved a generally applicable regulation of conduct, barring breaches of the peace. See id. , at 16. But when Cohen was convicted for wearing a jacket bearing an epithet, we did not apply O’Brien . See 403 U. S., at 16, 18. Instead, we recognized that the generally applicable law was directed at Cohen because of what his speech communicated—he violated the breach of the peace statute because of the offensive content of his particular message. We accordingly applied more rigorous scrutiny and reversed his conviction. See id. , at 18–19, 26.    This suit falls into the same category. The law here may be described as directed at conduct, as the law in Cohen was directed at breaches of the peace, but as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message. As we explained in Texas v. Johnson : “If the [Government’s] regulation is not related to expression, then the less stringent standard we announced in United States v. O’Brien for regulations of noncommunicative conduct controls. If it is, then we are outside of O’Brien ’s test, and we must [apply] a more demanding standard.” 491 U. S., at 403 (citation omitted). B    The First Amendment issue before us is more refined than either plaintiffs or the Government would have it. It is not whether the Government may prohibit pure political speech, or may prohibit material support in the form of conduct. It is instead whether the Government may prohibit what plaintiffs want to do—provide material support to the PKK and LTTE in the form of speech.    Everyone agrees that the Government’s interest in combating terrorism is an urgent objective of the highest order. See Brief for Plaintiffs 51. Plaintiffs’ complaint is that the ban on material support, applied to what they wish to do, is not “necessary to further that interest.” Ibid. The objective of combating terrorism does not justify prohibiting their speech, plaintiffs argue, because their support will advance only the legitimate activities of the designated terrorist organizations, not their terrorism. Id. , at 51–52.    Whether foreign terrorist organizations meaningfully segregate support of their legitimate activities from support of terrorism is an empirical question. When it enacted §2339B in 1996, Congress made specific findings regarding the serious threat posed by international terrorism. See AEDPA §§301(a)(1)–(7), 110 Stat. 1247, note following 18 U. S. C. §2339B (Findings and Purpose). One of those findings explicitly rejects plaintiffs’ contention that their support would not further the terrorist activities of the PKK and LTTE: “[F]oreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.” §301(a)(7) (emphasis added).    Plaintiffs argue that the reference to “any contribution” in this finding meant only monetary support. There is no reason to read the finding to be so limited, particularly because Congress expressly prohibited so much more than monetary support in §2339B. Congress’s use of the term “contribution” is best read to reflect a determination that any form of material support furnished “to” a foreign terrorist organization should be barred, which is precisely what the material-support statute does. Indeed, when Congress enacted §2339B, Congress simultaneously removed an exception that had existed in §2339A(a) (1994 ed.) for the provision of material support in the form of “humanitarian assistance to persons not directly involved in” terrorist activity. AEDPA §323, 110 Stat. 1255; 205 F. 3d, at 1136. That repeal demonstrates that Congress considered and rejected the view that ostensibly peaceful aid would have no harmful effects.    We are convinced that Congress was justified in rejecting that view. The PKK and the LTTE are deadly groups. “The PKK’s insurgency has claimed more than 22,000 lives.” Declaration of Kenneth R. McKune, App. 128, ¶5. The LTTE has engaged in extensive suicide bombings and political assassinations, including killings of the Sri Lankan President, Security Minister, and Deputy Defense Minister. Id. , at 130–132; Brief for Government 6–7. “On January 31, 1996, the LTTE exploded a truck bomb filled with an estimated 1,000 pounds of explosives at the Central Bank in Colombo, killing 100 people and injuring more than 1,400. This bombing was the most deadly terrorist incident in the world in 1996.” McKune Affidavit, App. 131, ¶6.h. It is not difficult to conclude as Congress did that the “tain[t]” of such violent activities is so great that working in coordination with or at the command of the PKK and LTTE serves to legitimize and further their terrorist means. AEDPA §301(a)(7), 110 Stat. 1247.    Material support meant to “promot[e] peaceable, lawful conduct,” Brief for Plaintiffs 51, can further terrorism by foreign groups in multiple ways. “Material support” is a valuable resource by definition. Such support frees up other resources within the organization that may be put to violent ends. It also importantly helps lend legitimacy to foreign terrorist groups—legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds—all of which facilitate more terrorist attacks. “Terrorist organizations do not maintain organizational ‘firewalls’ that would prevent or deter . . . sharing and commingling of support and benefits.” McKune Affidavit, App. 135, ¶11. “[I]nvestigators have revealed how terrorist groups systematically conceal their activities behind charitable, social, and political fronts.” M. Levitt, Hamas: Politics, Charity, and Terrorism in the Service of Jihad 2–3 (2006). “Indeed, some designated foreign terrorist organizations use social and political components to recruit personnel to carry out terrorist operations, and to provide support to criminal terrorists and their families in aid of such operations.” McKune Affidavit, App. 135, ¶11; Levitt, supra , at 2 (“Muddying the waters between its political activism, good works, and terrorist attacks, Hamas is able to use its overt political and charitable organizations as a financial and logistical support network for its terrorist operations”).    Money is fungible, and “[w]hen foreign terrorist organizations that have a dual structure raise funds, they highlight the civilian and humanitarian ends to which such moneys could be put.” McKune Affidavit, App. 134, ¶9. But “there is reason to believe that foreign terrorist organizations do not maintain legitimate financial firewalls between those funds raised for civil, nonviolent activities, and those ultimately used to support violent, terrorist operations.” Id. , at 135, ¶12. Thus, “[f]unds raised ostensibly for charitable purposes have in the past been redirected by some terrorist groups to fund the purchase of arms and explosives.” Id. , at 134, ¶10. See also Brief for Anti-Defamation League as Amicus Curiae 19–29 (describing fundraising activities by the PKK, LTTE, and Hamas); Regan v. Wald , 468 U. S. 222 , 243 (1984) (upholding President’s decision to impose travel ban to Cuba “to curtail the flow of hard currency to Cuba—currency that could then be used in support of Cuban adventurism”). There is evidence that the PKK and the LTTE, in particular, have not “respected the line between humanitarian and violent activities.” McKune Affidavit, App. 135, ¶13 (discussing PKK); see id. , at 134 (LTTE).    The dissent argues that there is “no natural stopping place” for the proposition that aiding a foreign terrorist organization’s lawful activity promotes the terrorist organization as a whole. Post , at 10. But Congress has settled on just such a natural stopping place: The statute reaches only material support coordinated with or under the direction of a designated foreign terrorist organization. Independent advocacy that might be viewed as promoting the group’s legitimacy is not covered. See supra , at 18–21.[ Footnote 6 ]    Providing foreign terrorist groups with material support in any form also furthers terrorism by straining the United States’ relationships with its allies and undermining cooperative efforts between nations to prevent terrorist attacks. We see no reason to question Congress’s finding that “international cooperation is required for an effective response to terrorism, as demonstrated by the numerous multilateral conventions in force providing universal prosecutive jurisdiction over persons involved in a variety of terrorist acts, including hostage taking, murder of an internationally protected person, and aircraft piracy and sabotage.” AEDPA §301(a)(5), 110 Stat. 1247, note following 18 U. S. C. §2339B (Findings and Purpose). The material-support statute furthers this international effort by prohibiting aid for foreign terrorist groups that harm the United States’ partners abroad: “A number of designated foreign terrorist organizations have attacked moderate governments with which the United States has vigorously endeavored to maintain close and friendly relations,” and those attacks “threaten [the] social, economic and political stability” of such governments. McKune Affidavit, App. 137, ¶16. “[O]ther foreign terrorist organizations attack our NATO allies, thereby implicating important and sensitive multilateral security arrangements.” Ibid. For example, the Republic of Turkey—a fellow member of NATO—is defending itself against a violent insurgency waged by the PKK. Brief for Government 6; App. 128. That nation and our other allies would react sharply to Americans furnishing material support to foreign groups like the PKK, and would hardly be mollified by the explanation that the support was meant only to further those groups’ “legitimate” activities. From Turkey’s perspective, there likely are no such activities. See 352 F. 3d, at 389 (observing that Turkey prohibits membership in the PKK and prosecutes those who provide support to that group, regardless of whether the support is directed to lawful activities). C    In analyzing whether it is possible in practice to distinguish material support for a foreign terrorist group’s violent activities and its nonviolent activities, we do not rely exclusively on our own inferences drawn from the record evidence. We have before us an affidavit stating the Executive Branch’s conclusion on that question. The State Department informs us that “[t]he experience and analysis of the U. S. government agencies charged with combating terrorism strongly suppor[t]” Congress’s finding that all contributions to foreign terrorist organizations further their terrorism. McKune Affidavit, App. 133, ¶8. See Winter v. Natural Resources Defense Council, Inc. , 555 U. S. ___, ___ (2008) (slip op., at 14–15) (looking to similar affidavits to support according weight to national security claims). In the Executive’s view: “Given the purposes, organizational structure, and clandestine nature of foreign terrorist organizations, it is highly likely that any material support to these organizations will ultimately inure to the benefit of their criminal, terrorist functions—regardless of whether such support was ostensibly intended to support non-violent, non-terrorist activities.” McKune Affidavit, App. 133, ¶8.    That evaluation of the facts by the Executive, like Congress’s assessment, is entitled to deference. This litigation implicates sensitive and weighty interests of national security and foreign affairs. The PKK and the LTTE have committed terrorist acts against American citizens abroad, and the material-support statute addresses acute foreign policy concerns involving relationships with our Nation’s allies. See id. , at 128–133, 137. We have noted that “neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people.” Boumediene v. Bush , 553 U. S. 723 , 797 (2008). It is vital in this context “not to substitute . . . our own evaluation of evidence for a reasonable evaluation by the Legislative Branch.” Rostker v. Goldberg , 453 U. S. 57 , 68 (1981). See Wald , 468 U. S., at 242; Haig v. Agee , 453 U. S. 280 , 292 (1981).    Our precedents, old and new, make clear that concerns of national security and foreign relations do not warrant abdication of the judicial role. We do not defer to the Government’s reading of the First Amendment, even when such interests are at stake. We are one with the dissent that the Government’s “authority and expertise in these matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals.” Post , at 23. But when it comes to collecting evidence and drawing factual inferences in this area, “the lack of competence on the part of the courts is marked,” Rostker , supra , at 65, and respect for the Government’s conclusions is appropriate.    One reason for that respect is that national security and foreign policy concerns arise in connection with efforts to confront evolving threats in an area where information can be difficult to obtain and the impact of certain conduct difficult to assess. The dissent slights these real constraints in demanding hard proof—with “detail,” “specific facts,” and “specific evidence”—that plaintiffs’ proposed activities will support terrorist attacks. See post , at 9, 16, 23. That would be a dangerous requirement. In this context, conclusions must often be based on informed judgment rather than concrete evidence, and that reality affects what we may reasonably insist on from the Government. The material-support statute is, on its face, a preventive measure—it criminalizes not terrorist attacks themselves, but aid that makes the attacks more likely to occur. The Government, when seeking to prevent imminent harms in the context of international affairs and national security, is not required to conclusively link all the pieces in the puzzle before we grant weight to its empirical conclusions. See Zemel v. Rusk , 381 U. S., at 17 (“[B]ecause of the changeable and explosive nature of contemporary international relations, . . . Congress . . . must of necessity paint with a brush broader than that it customarily wields in domestic areas”).    This context is different from that in decisions like Cohen . In that case, the application of the statute turned on the offensiveness of the speech at issue. Observing that “one man’s vulgarity is another’s lyric,” we invalidated Cohen’s conviction in part because we concluded that “governmental officials cannot make principled distinctions in this area.” 403 U. S., at 25. In this litigation, by contrast, Congress and the Executive are uniquely positioned to make principled distinctions between activities that will further terrorist conduct and undermine United States foreign policy, and those that will not.    We also find it significant that Congress has been conscious of its own responsibility to consider how its actions may implicate constitutional concerns. First, §2339B only applies to designated foreign terrorist organizations. There is, and always has been, a limited number of those organizations designated by the Executive Branch, see, e.g., 74 Fed. Reg. 29742 (2009); 62 Fed. Reg. 52650 (1997), and any groups so designated may seek judicial review of the designation. Second, in response to the lower courts’ holdings in this litigation, Congress added clarity to the statute by providing narrowing definitions of the terms “training,” “personnel,” and “expert advice or assistance,” as well as an explanation of the knowledge required to violate §2339B. Third, in effectuating its stated intent not to abridge First Amendment rights, see §2339B(i), Congress has also displayed a careful balancing of interests in creating limited exceptions to the ban on material support. The definition of material support, for example, excludes medicine and religious materials. See §2339A(b)(1). In this area perhaps more than any other, the Legislature’s superior capacity for weighing competing interests means that “we must be particularly careful not to substitute our judgment of what is desirable for that of Congress.” Rostker , supra , at 68. Finally, and most importantly, Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups.    At bottom, plaintiffs simply disagree with the considered judgment of Congress and the Executive that providing material support to a designated foreign terrorist organization—even seemingly benign support—bolsters the terrorist activities of that organization. That judgment, however, is entitled to significant weight, and we have persuasive evidence before us to sustain it. Given the sensitive interests in national security and foreign affairs at stake, the political branches have adequately substantiated their determination that, to serve the Government’s interest in preventing terrorism, it was necessary to prohibit providing material support in the form of training, expert advice, personnel, and services to foreign terrorist groups, even if the supporters meant to promote only the groups’ nonviolent ends.    We turn to the particular speech plaintiffs propose to undertake. First, plaintiffs propose to “train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes.” 552 F. 3d, at 921, n. 1. Congress can, consistent with the First Amendment, prohibit this direct training. It is wholly foreseeable that the PKK could use the “specific skill[s]” that plaintiffs propose to impart, §2339A(b)(2), as part of a broader strategy to promote terrorism. The PKK could, for example, pursue peaceful negotiation as a means of buying time to recover from short-term setbacks, lulling opponents into complacency, and ultimately preparing for renewed attacks. See generally A. Marcus, Blood and Belief: The PKK and the Kurdish Fight for Independence 286–295 (2007) (describing the PKK’s suspension of armed struggle and subsequent return to violence). A foreign terrorist organization introduced to the structures of the international legal system might use the information to threaten, manipulate, and disrupt. This possibility is real, not remote.    Second, plaintiffs propose to “teach PKK members how to petition various representative bodies such as the United Nations for relief.” 552 F. 3d, at 921, n. 1. The Government acts within First Amendment strictures in banning this proposed speech because it teaches the organization how to acquire “relief,” which plaintiffs never define with any specificity, and which could readily include monetary aid. See Brief for Plaintiffs 10–11, 16–17, n. 10; App. 58–59, 80–81. Indeed, earlier in this litigation, plaintiffs sought to teach the LTTE “to present claims for tsunami-related aid to mediators and international bodies,” 552 F. 3d, at 921, n. 1, which naturally included monetary relief. Money is fungible, supra , at 26, and Congress logically concluded that money a terrorist group such as the PKK obtains using the techniques plaintiffs propose to teach could be redirected to funding the group’s violent activities.    Finally, plaintiffs propose to “engage in political advocacy on behalf of Kurds who live in Turkey,” and “engage in political advocacy on behalf of Tamils who live in Sri Lanka.” 552 F. 3d, at 921, n. 1. As explained above, supra , at 19–20, plaintiffs do not specify their expected level of coordination with the PKK or LTTE or suggest what exactly their “advocacy” would consist of. Plaintiffs’ proposals are phrased at such a high level of generality that they cannot prevail in this preenforcement challenge. See supra , at 20; Grange , 552 U. S., at 454; Zemel , 381 U. S., at 20.    In responding to the foregoing, the dissent fails to address the real dangers at stake. It instead considers only the possible benefits of plaintiffs’ proposed activities in the abstract. See post , at 13–15. The dissent seems unwilling to entertain the prospect that training and advising a designated foreign terrorist organization on how to take advantage of international entities might benefit that organization in a way that facilitates its terrorist activities. In the dissent’s world, such training is all to the good. Congress and the Executive, however, have concluded that we live in a different world: one in which the designated foreign terrorist organizations “are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.” AEDPA §301(a)(7). One in which, for example, “the United Nations High Commissioner for Refugees was forced to close a Kurdish refugee camp in northern Iraq because the camp had come under the control of the PKK, and the PKK had failed to respect its ‘neutral and humanitarian nature.’ ” McKune Affidavit, App. 135–136, ¶13. Training and advice on how to work with the United Nations could readily have helped the PKK in its efforts to use the United Nations camp as a base for terrorist activities.    If only good can come from training our adversaries in international dispute resolution, presumably it would have been unconstitutional to prevent American citizens from training the Japanese Government on using international organizations and mechanisms to resolve disputes during World War II. It would, under the dissent’s reasoning, have been contrary to our commitment to resolving disputes through “ ‘deliberative forces,’ ” post , at 13 (quoting Whitney v. California , 274 U. S. 357 , 375 (1927) (Brandeis, J., concurring)), for Congress to conclude that assisting Japan on that front might facilitate its war effort more generally. That view is not one the First Amendment requires us to embrace.    All this is not to say that any future applications of the material-support statute to speech or advocacy will survive First Amendment scrutiny. It is also not to say that any other statute relating to speech and terrorism would satisfy the First Amendment. In particular, we in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations. We also do not suggest that Congress could extend the same prohibition on material support at issue here to domestic organizations. We simply hold that, in prohibiting the particular forms of support that plaintiffs seek to provide to foreign terrorist groups, §2339B does not violate the freedom of speech. VI    Plaintiffs’ final claim is that the material-support statute violates their freedom of association under the First Amendment. Plaintiffs argue that the statute criminalizes the mere fact of their associating with the PKK and the LTTE, thereby running afoul of decisions like De Jonge v. Oregon , 299 U. S. 353 (1937), and cases in which we have overturned sanctions for joining the Communist Party, see, e.g., Keyishian v. Board of Regents of Univ. of State of N. Y. , 385 U. S. 589 (1967); United States v. Robel , 389 U. S. 258 (1967).    The Court of Appeals correctly rejected this claim because the statute does not penalize mere association with a foreign terrorist organization. As the Ninth Circuit put it: “The statute does not prohibit being a member of one of the designated groups or vigorously promoting and supporting the political goals of the group. . . . What [§2339B] prohibits is the act of giving material support . . . .” 205 F. 3d, at 1133. Plaintiffs want to do the latter. Our decisions scrutinizing penalties on simple association or assembly are therefore inapposite. See, e.g., Robel , supra , at 262 (“It is precisely because th[e] statute sweeps indiscriminately across all types of association with Communist-action groups, without regard to the quality and degree of membership, that it runs afoul of the First Amendment”); De Jonge , supra , at 362.    Plaintiffs also argue that the material-support statute burdens their freedom of association because it prevents them from providing support to designated foreign terrorist organizations, but not to other groups. See Brief for Plaintiffs 56; Reply Brief for Plaintiffs 37–38. Any burden on plaintiffs’ freedom of association in this regard is justified for the same reasons that we have denied plaintiffs’ free speech challenge. It would be strange if the Constitution permitted Congress to prohibit certain forms of speech that constitute material support, but did not permit Congress to prohibit that support only to particularly dangerous and lawless foreign organizations. Congress is not required to ban material support to every group or none at all. *  *  *    The Preamble to the Constitution proclaims that the people of the United States ordained and established that charter of government in part to “provide for the common defence.” As Madison explained, “[s]ecurity against foreign danger is . . . an avowed and essential object of the American Union.” The Federalist No. 41, p. 269 (J. Cooke ed. 1961). We hold that, in regulating the particular forms of support that plaintiffs seek to provide to foreign terrorist organizations, Congress has pursued that objective consistent with the limitations of the First and Fifth Amendments.    The judgment of the United States Court of Appeals for the Ninth Circuit is affirmed in part and reversed in part, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 In full, 18 U. S. C. §2339B(a)(1) provides: “Unlawful conduct.—Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization . . ., that the organization has engaged or engages in terrorist activity . . ., or that the organization has engaged or engages in terrorism . . . .” The terms “terrorist activity” and “terrorism” are defined in 8 U. S. C. §1182(a)(3)(B)(iii), and 22 U. S. C. §2656f(d)(2), respectively. Footnote 2 At the time plaintiffs first filed suit, 18 U. S. C. §2339B(a) (2000 ed.) provided: “Whoever, within the United States or subject to the jurisdiction of the United States, knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 10 years, or both.” See Humanitarian Law Project v. Reno , 9 F. Supp. 2d 1205, 1207 (CD Cal. 1998). And 18 U. S. C. §2339A(b) (2000 ed.) defined “material support or resources” to mean “currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials.” Footnote 3 The dissent would interpret the statute along the same lines as the plaintiffs, to prohibit speech and association “only when the defendant knows or intends that those activities will assist the organization’s unlawful terrorist actions.” Post , at 17 (opinion of Breyer, J.). According to the dissent, this interpretation is “fairly possible” and adopting it would avoid constitutional concerns. Ibid. (internal quotation marks omitted). The dissent’s interpretation of §2339B fails for essentially the same reasons as plaintiffs’. Congress explained what “knowingly” means in §2339B, and it did not choose the dissent’s interpretation of that term. In fact, the dissent proposes a mental-state requirement indistinguishable from the one Congress adopted in §§2339A and 2339C, even though Congress used markedly different language in §2339B. Footnote 4 The dissent also analyzes the statute as if it prohibited “[p]eaceful political advocacy” or “pure speech and association,” without more. Post , at 9, 17. Section 2339B does not do that, and we do not address the constitutionality of any such prohibitions. The dissent’s claim that our decision is inconsistent with this Court’s cases analyzing those sorts of restrictions, post , at 11–12, is accordingly unfounded. Footnote 5 The Government suggests in passing that, to the extent plaintiffs’ activities constitute speech, that speech is wholly unprotected by the First Amendment. The Government briefly analogizes speech coordinated with foreign terrorist organizations to speech effecting a crime, like the words that constitute a conspiracy. Brief for Government 46; Reply Brief for Government 31–32, and n. 8. See, e.g., Giboney v. Empire Storage & Ice Co. , 336 U. S. 490 , 498, 502 (1949). We do not consider any such argument because the Government does not develop it: The Government’s submission is that applying §2339B to plaintiffs triggers intermediate First Amendment scrutiny—not that it triggers no First Amendment scrutiny at all. Footnote 6 The dissent also contends that the particular sort of material support plaintiffs seek to provide cannot be diverted to terrorist activities, in the same direct way as funds or goods. Post , at 8–9. This contention misses the point. Both common sense and the evidence submitted by the Government make clear that material support of a terrorist group’s lawful activities facilitates the group’s ability to attract “funds,” “financing,” and “goods” that will further its terrorist acts. See McKune Affidavit, App. 134–136. 561 U. S. ____ (2010) 561 U. S. ____ (2010) 561 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NOS. 08-1498 AND 09-89 ERIC H. HOLDER, Jr., ATTORNEY GENERAL, et al., PETITIONERS 08–1498 v. HUMANITARIAN LAW PROJECT et al. HUMANITARIAN LAW PROJECT, et al., PETITIONERS 09–89 v. ERIC H. HOLDER, Jr ., ATTORNEY GENERAL, et al. on writs of certiorari to the united states court of appeals for the ninth circuit [June 21, 2010]    Justice Breyer, with whom Justices Ginsburg and Sotomayor join, dissenting.    Like the Court, and substantially for the reasons it gives, I do not think this statute is unconstitutionally vague. But I cannot agree with the Court’s conclusion that the Constitution permits the Government to prosecute the plaintiffs criminally for engaging in coordinated teaching and advocacy furthering the designated organizations’ lawful political objectives. In my view, the Government has not met its burden of showing that an interpretation of the statute that would prohibit this speech- and association-related activity serves the Government’s compelling interest in combating terrorism. And I would interpret the statute as normally placing activity of this kind outside its scope. See Crowell v. Benson , 285 U. S. 22 , 62 (1932); Ashwander v. TVA , 297 U. S. 288 , 346–347 (1936) (Brandeis, J., concurring). I    The statute before us forbids “knowingly provid[ing]” “a foreign terrorist organization” with “material support or resources,” defined to include, among other things, “training,” “expert advice or assistance,” “personnel,” and “service.” 18 U. S. C. §§2339B(a)(1), (g)(4); §2339A(b)(1). The Secretary of State has designated the Kurdistan Workers’ Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE) as “foreign terrorist organizations”—a designation authorized where the organization is “foreign,” threatens the security of the United States or its nationals, and engages in “terrorist activity,” defined to include “any” of such activities as “highjacking” and “assassination,” or the “use of … any … weapon or dangerous device … with intent to endanger, directly or indirectly, the safety of one or more individuals.” 62 Fed. Reg. 52650 (1997); 8 U. S. C. §1182(a)(3)(B)(iii); 18 U. S. C. §2339B(a)(1).    The plaintiffs, all United States citizens or associations, now seek an injunction and declaration providing that, without violating the statute, they can (1) “train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes”; (2) “engage in political advocacy on behalf of Kurds who live in Turkey”; (3) “teach PKK members how to petition various representative bodies such as the United Nations for relief”; and (4) “engage in political advocacy on behalf of Tamils who live in Sri Lanka.” Humanitarian Law Project v. Mukasey , 552 F. 3d 916, 921, n. 1 (CA9 2009); ante , at 9. All these activities are of a kind that the First Amendment ordinarily protects.    In my view, the Government has not made the strong showing necessary to justify under the First Amendment the criminal prosecution of those who engage in these activities. All the activities involve the communication and advocacy of political ideas and lawful means of achieving political ends. Even the subjects the plaintiffs wish to teach—using international law to resolve disputes peacefully or petitioning the United Nations, for instance—concern political speech. We cannot avoid the constitutional significance of these facts on the basis that some of this speech takes place outside the United States and is directed at foreign governments, for the activities also involve advocacy in this country directed to our government and its policies. The plaintiffs, for example, wish to write and distribute publications and to speak before the United States Congress. App. 58–59.    That this speech and association for political purposes is the kind of activity to which the First Amendment ordinarily offers its strongest protection is elementary. See New York Times Co. v. Sullivan , 376 U. S. 254 , 269 (1964) (The First Amendment “ ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people’ ” (quoting Roth v. United States , 354 U. S. 476 , 484 (1957)); Lovell v. City of Griffin , 303 U. S. 444 , 452 (1938) (rejecting licensing scheme for distribution of “pamphlets and leaflets,” “historic weapons in the defense of liberty”); R. A. V. v. St. Paul , 505 U. S. 377 , 422 (1992) (Stevens, J., concurring in judgment) (“Our First Amendment decisions have created a rough hierarchy in the constitutional protection of speech” in which “[c]ore political speech occupies the highest, most protected position”); Hill v. Colorado , 530 U. S. 703 , 787 (2000) (Kennedy, J., dissenting) (“Laws punishing speech which protests the lawfulness or morality of the government’s own policy are the essence of the tyrannical power the First Amendment guards against”); Citizens United v. Federal Election Comm’n , 558 U. S. ___, ___ (2010) (slip op., at 33) (“If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech”).    Although in the Court’s view the statute applies only where the PKK helps to coordinate a defendant’s activities, ante , at 21, the simple fact of “coordination” alone cannot readily remove protection that the First Amendment would otherwise grant. That amendment, after all, also protects the freedom of association. See NAACP v. Claiborne Hardware Co. , 458 U. S. 886 , 911 (1982) (The First Amendment’s protections “of speech, assembly, association, and petition, ‘though not identical, are inseparable’ ” (quoting Thomas v. Collins , 323 U. S. 516 , 530 (1945))); De Jonge v. Oregon , 299 U. S. 353 , 364 (1937) (describing the “right of peaceable assembly” as “a right cognate to those of free speech and free presses and … equally fundamental”); see also Roberts v. United States Jaycees , 468 U. S. 609 , 622 (1984). “Coordination” with a political group, like membership, involves association.    “Coordination” with a group that engages in unlawful activity also does not deprive the plaintiffs of the First Amendment’s protection under any traditional “categorical” exception to its protection. The plaintiffs do not propose to solicit a crime. They will not engage in fraud or defamation or circulate obscenity. Cf. United States v. Stevens , 559 U. S. ___ , ___ (2010) (slip op., at 5–6) (describing “categories” of unprotected speech). And the First Amendment protects advocacy even of unlawful action so long as that advocacy is not “directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action.” Brandenburg v. Ohio , 395 U. S. 444 , 447 (1969) (per curiam) (emphasis added). Here the plaintiffs seek to advocate peaceful, lawful action to secure political ends; and they seek to teach others how to do the same. No one contends that the plaintiffs’ speech to these organizations can be prohibited as incitement under Brandenburg .    Moreover, the Court has previously held that a person who associates with a group that uses unlawful means to achieve its ends does not thereby necessarily forfeit the First Amendment’s protection for freedom of association. See Scales v. United States , 367 U. S. 203 , 229 (1961) (“[Q]uasi-political parties or other groups that may embrace both legal and illegal aims differ from a technical conspiracy, which is defined by its criminal purpose”); see also NAACP , supra , at 908 (“The right to associate does not lose all constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected”). Rather, the Court has pointed out in respect to associating with a group advocating overthrow of the Government through force and violence: “If the persons assembling have committed crimes elsewhere … , they may be prosecuted for their … violation of valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge.” De Jonge , supra , at 365 (striking down conviction for attending and assisting at Communist Party meeting because “[n]otwithstanding [the party’s] objectives, the defendant still enjoyed his personal right of free speech and to take part in peaceable assembly having a lawful purpose”).    Not even the “serious and deadly problem” of international terrorism can require automatic forfeiture of First Amendment rights. §301(a)(1), 110 Stat. 1247, note following 18 U. S. C. §2339B. Cf. §2339B(i) (instructing courts not to “constru[e] or appl[y the statute] so as to abridge the exercise of right guaranteed under the First Amendment”). After all, this Court has recognized that not “ ‘[e]ven the war power … remove[s] constitutional limitations safeguarding essential liberties.’ ” United States v. Robel , 389 U. S. 258 , 264 (1967) (quoting Home Building & Loan Assn. v. Blaisdell , 290 U. S. 398 , 426 (1934)). See also Abrams v. United States , 250 U. S. 616 , 628 (1919) (Holmes, J., dissenting) (“[A]s against dangers peculiar to war, as against others, the principle of the right to free speech is always the same”). Thus, there is no general First Amendment exception that applies here. If the statute is constitutional in this context, it would have to come with a strong justification attached.    It is not surprising that the majority, in determining the constitutionality of criminally prohibiting the plaintiffs’ proposed activities, would apply, not the kind of intermediate First Amendment standard that applies to conduct, but “ ‘a more demanding standard.’ ” Ante, at 23 (quoting Texas v. Johnson , 491 U. S. 397 , 403 (1989)). Indeed, where, as here, a statute applies criminal penalties and at least arguably does so on the basis of content-based distinctions, I should think we would scrutinize the statute and justifications “strictly”—to determine whether the prohibition is justified by a “compelling” need that cannot be “less restrictively” accommodated. See Houston v. Hill , 482 U. S. 451 , 459 (1987) (criminal penalties); Ashcroft v. American Civil Liberties Union , 535 U. S. 564 , 573 (2002) (content-based); Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd. , 502 U. S. 105 , 118 (1991) (same); Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y. , 447 U. S. 530 , 540 (1980) (strict scrutiny); First Nat. Bank of Boston v. Bellotti , 435 U. S. 765 , 786 (1978) (same).    But, even if we assume for argument’s sake that “strict scrutiny” does not apply, no one can deny that we must at the very least “measure the validity of the means adopted by Congress against both the goal it has sought to achieve and the specific prohibitions of the First Amendment.” Robel , supra, 268, n. 20 (describing constitutional task where the Court is faced “with a clear conflict between a federal statute enacted in the interests of national security and an individual’s exercise of his First Amendment rights”). And here I need go no further, for I doubt that the statute, as the Government would interpret it, can survive any reasonably applicable First Amendment standard. See, e.g., Turner Broadcasting System, Inc. v. FCC , 520 U. S. 180 , 189 (1997) (describing intermediate scrutiny). Cf. Nixon v. Shrink Missouri Government PAC , 528 U. S. 377 , 402 (2000) (Breyer, J., concurring) (examining whether a statute worked speech-related harm “out of proportion to the statute’s salutary effects upon” other interests).    The Government does identify a compelling countervailing interest, namely, the interest in protecting the security of the United States and its nationals from the threats that foreign terrorist organizations pose by denying those organizations financial and other fungible resources. I do not dispute the importance of this interest. But I do dispute whether the interest can justify the statute’s criminal prohibition. To put the matter more specifically, precisely how does application of the statute to the protected activities before us help achieve that important security-related end? See Simon & Schuster, 502 U. S., at 118 (requiring that “narrowly drawn” means further a “compelling state interest” by the least restrictive means (internal quotation marks omitted)); Turner , supra , at 189 (requiring “advance[ment of] important governmental interests unrelated to the suppression of free speech” without “burden[ing] substantially more speech than necessary to further those interests”); Robel , supra, at 268, n. 20 (requiring measurement of the “means adopted by Congress against … the [security] goal it has sought to achieve”). See also Nixon , 528 U. S., at 402 (Breyer, J., concurring); Federal Election Comm’n v. Wisconsin Right to Life, Inc. , 551 U. S. 449 , 478 (2007) (opinion of Roberts, C. J.) (“A court … must ensure that [the interest justifying a stat- utory restriction] supports each application of [the] statute”).    The Government makes two efforts to answer this question. First , the Government says that the plaintiffs’ support for these organizations is “fungible” in the same sense as other forms of banned support. Being fungible, the plaintiffs’ support could, for example, free up other resources, which the organization might put to terrorist ends. Brief for Respondents in No. 09–89, pp. 54–56 (hereinafter Government Brief).    The proposition that the two very different kinds of “support” are “fungible,” however, is not obviously true. There is no obvious way in which undertaking advocacy for political change through peaceful means or teaching the PKK and LTTE, say, how to petition the United Nations for political change is fungible with other resources that might be put to more sinister ends in the way that donations of money, food, or computer training are fungible. It is far from obvious that these advocacy activities can themselves be redirected, or will free other resources that can be directed, towards terrorist ends. Thus, we must determine whether the Government has come forward with evidence to support its claim.    The Government has provided us with no empirical information that might convincingly support this claim. Instead, the Government cites only to evidence that Congress was concerned about the “fungible” nature in general of resources, predominately money and material goods. It points to a congressional finding that “foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.” §301(a)(7), 110 Stat. 1247, note following 18 U. S. C. §2339B (emphasis added). It also points to a House Report’s statement that “supply[ing] funds , goods , or services ” would “hel[p] defray the cost to the terrorist organization of running the ostensibly legitimate activities,” and “in turn fre[e] an equal sum that can then be spent on terrorist activities.” H. R. Rep. No. 104–383, p. 81 (1995) (emphasis added). Finally, the Government refers to a State Department official’s affidavit describing how ostensibly charitable contributions have either been “redirected” to terrorist ends or, even if spent charitably, have “unencumber[ed] funds raised from other sources for use in facilitating violent, terrorist activities and gaining political support for these activities.” Declaration of Kenneth R. McKune, App. 134, 136 (emphasis added).    The most one can say in the Government’s favor about these statements is that they might be read as offering highly general support for its argument. The statements do not, however, explain in any detail how the plaintiffs’ political-advocacy-related activities might actually be “fungible” and therefore capable of being diverted to terrorist use. Nor do they indicate that Congress itself was concerned with “support” of this kind. The affidavit refers to “funds,” “financing,” and “goods”—none of which encompasses the plaintiffs’ activities. Ibid. The statutory statement and the House Report use broad terms like “contributions” and “services” that might be construed as encompassing the plaintiffs’ activities. But in context, those terms are more naturally understood as referring to contributions of goods, money, or training and other services (say, computer programming) that could be diverted to, or free funding for, terrorist ends. See infra , at 15–16. Peaceful political advocacy does not obviously fall into these categories. And the statute itself suggests that Congress did not intend to curtail freedom of speech or association. See §2339B(i) (“Nothing in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment”); see also infra , at 18–19. Second , the Government says that the plaintiffs’ proposed activities will “bolste[r] a terrorist organization’s efficacy and strength in a community” and “undermin[e] this nation’s efforts to delegitimize and weaken those groups.” Government Brief 56 (emphasis added). In the Court’s view, too, the Constitution permits application of the statute to activities of the kind at issue in part because those activities could provide a group that engages in terrorism with “legitimacy.” Ante , at 25. The Court suggests that, armed with this greater “legitimacy,” these organizations will more readily be able to obtain material support of the kinds Congress plainly intended to ban—money, arms, lodging, and the like. See ibid. Yet the Government does not claim that the statute forbids any speech “legitimating” a terrorist group. Rather, it reads the statute as permitting (1) membership in terrorist organizations, (2) “peaceably assembling with members of the PKK and LTTE for lawful discussion,” or (3) “independent advocacy” on behalf of these organizations. Government Brief 66, 61, 13. The Court, too, emphasizes that activities not “ coordinated with ” the terrorist groups are not banned. See ante , at 21, 26, 31 (emphasis added). And it argues that speaking, writing, and teaching aimed at furthering a terrorist organization’s peaceful political ends could “mak[e] it easier for those groups to persist, to recruit members, and to raise funds.” Ante, at 25.    But this “legitimacy” justification cannot by itself warrant suppression of political speech, advocacy, and association. Speech, association, and related activities on behalf of a group will often, perhaps always, help to legitimate that group. Thus, were the law to accept a “legitimating” effect, in and of itself and without qualification, as providing sufficient grounds for imposing such a ban, the First Amendment battle would be lost in untold instances where it should be won. Once one accepts this argument, there is no natural stopping place. The argument applies as strongly to “independent” as to “coordinated” advocacy. But see ante, at 26–27. That fact is reflected in part in the Government’s claim that the ban here, so supported, prohibits a lawyer hired by a designated group from filing on behalf of that group an amicus brief before the United Nations or even before this Court. See Tr. of Oral Arg. 47–49, 53.    That fact is also reflected in the difficulty of drawing a line designed to accept the legitimacy argument in some instances but not in others. It is inordinately difficult to distinguish when speech activity will and when it will not initiate the chain of causation the Court suggests—a chain that leads from peaceful advocacy to “legitimacy” to increased support for the group to an increased supply of material goods that support its terrorist activities. Even were we to find some such line of distinction, its application would seem so inherently uncertain that it would often, perhaps always, “chill” protected speech beyond its boundary. In short, the justification, put forward simply in abstract terms and without limitation, must always , or it will never , be sufficient. Given the nature of the plaintiffs’ activities, “always” cannot possibly be the First Amendment’s answer.    Regardless, the “legitimacy” justification itself is inconsistent with critically important First Amendment case law. Consider the cases involving the protection the First Amendment offered those who joined the Communist Party intending only to further its peaceful activities. In those cases, this Court took account of congressional findings that the Communist Party not only advocated theoretically but also sought to put into practice the overthrow of our Government through force and violence. The Court had previously accepted Congress’ determinations that the American Communist Party was a “Communist action organization” which (1) acted under the “control, direction, and discipline” of the world Communist movement, a movement that sought to employ “espionage, sabotage, terrorism, and any other means deemed necessary, to establish a Communist totalitarian dictatorship,” and (2) “endeavor[ed]” to bring about “the overthrow of existing governments by . . . force if necessary.” Communist Party of United States v. Subversive Activities Control Bd. , 367 U. S. 1 , 5–6 (1961) (internal quotation marks omitted).    Nonetheless, the Court held that the First Amendment protected an American’s right to belong to that party—despite whatever “legitimating” effect membership might have had—as long as the person did not share the party’s unlawful purposes. See, e.g., De Jonge , 299 U. S. 353 ; Scales , 367 U. S., at 228–230; Elfbrandt v. Russell , 384 U. S. 11 , 17 (1966); Keyishian v. Board of Regents of Univ. of State of N. Y. , 385 U. S. 589 , 605–610 (1967); Robel , 389 U. S. 258 (holding that national security interests did not justify overbroad criminal prohibition on members of Communist-affiliated organizations working in any defense-related facility). As I have pointed out, those cases draw further support from other cases permitting pure advocacy of even the most unlawful activity—as long as that advocacy is not “directed to inciting or producing imminent lawless action and … likely to incite or produce such action.” Brandenburg , 395 U. S., at 447. The Government’s “legitimating” theory would seem to apply to these cases with equal justifying force; and, if recognized, it would have led this Court to conclusions other than those it reached.    Nor can the Government overcome these considerations simply by narrowing the covered activities to those that involve coordinated , rather than independent, advocacy. Conversations, discussions, or logistical arrangements might well prove necessary to carry out the speech-related activities here at issue (just as conversations and discussions are a necessary part of membership in any organization). The Government does not distinguish this kind of “coordination” from any other. I am not aware of any form of words that might be used to describe “coordination” that would not, at a minimum, seriously chill not only the kind of activities the plaintiffs raise before us, but also the “independent advocacy” the Government purports to permit. And, as for the Government’s willingness to distinguish independent advocacy from coordinated advocacy, the former is more likely, not less likely, to confer legitimacy than the latter. Thus, other things being equal, the distinction “coordination” makes is arbitrary in respect to furthering the statute’s purposes. And a rule of law that finds the “legitimacy” argument adequate in respect to the latter would have a hard time distinguishing a statute that sought to attack the former.    Consider the majority’s development of the Government’s themes. First, the majority discusses the plaintiffs’ proposal to “ ‘train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes.’ ” Ante , at 31–32 (quoting 552 F. 3d, at 921, n. 1). The majority justifies the criminalization of this activity in significant part on the ground that “peaceful negotiation[s]” might just “bu[y] time … , lulling opponents into complacency.” Ante, at 32. And the PKK might use its new information about “the structures of the international legal system … to threaten, manipulate, and disrupt.” Ibid. What is one to say about these arguments—arguments that would deny First Amendment protection to the peaceful teaching of international human rights law on the ground that a little knowledge about “the international legal system” is too dangerous a thing; that an opponent’s subsequent willingness to negotiate might be faked, so let’s not teach him how to try? What might be said of these claims by those who live, as we do, in a Nation committed to the resolution of disputes through “deliberative forces”? Whitney v. California , 274 U. S. 357 , 375 (1927) (Brandeis, J., concurring).    In my own view, the majority’s arguments stretch the concept of “fungibility” beyond constitutional limits. Neither Congress nor the Government advanced these particular hypothetical claims. I am not aware of any case in this Court—not Gitlow v. New York , 268 U. S. 652 (1925), not Schenck v. United States , 249 U. S. 47 (1919), not Abrams , 250 U. S. 616 , not the later Communist Party cases decided during the heat of the Cold War—in which the Court accepted anything like a claim that speech or teaching might be criminalized lest it, e.g. , buy negotiating time for an opponent who would put that time to bad use.    Moreover, the risk that those who are taught will put otherwise innocent speech or knowledge to bad use is omnipresent, at least where that risk rests on little more than (even informed) speculation. Hence to accept this kind of argument without more and to apply it to the teaching of a subject such as international human rights law is to adopt a rule of law that, contrary to the Constitution’s text and First Amendment precedent, would automatically forbid the teaching of any subject in a case where national security interests conflict with the First Amendment. The Constitution does not allow all such conflicts to be decided in the Government’s favor.    The majority, as I have said, cannot limit the scope of its arguments through its claim that the plaintiffs remain free to engage in the protected activity as long as it is not “coordinated.” That is because there is no practical way to organize classes for a group (say, wishing to learn about human rights law) without “ coordination .” Nor can the majority limit the scope of its argument by pointing to some special limiting circumstance present here. That is because the only evidence the majority offers to support its general claim consists of a single reference to a book about terrorism, which the Government did not mention, and which apparently says no more than that at one time the PKK suspended its armed struggle and then returned to it.    Second, the majority discusses the plaintiffs’ proposal to “ ‘teach PKK members how to petition various representative bodies such as the United Nations for relief .’ ” Ante , at 32 (quoting 552 F. 3d, at 921, n. 1; emphasis added). The majority’s only argument with respect to this proposal is that the relief obtained “could readily include monetary aid,” which the PKK might use to buy guns. Ante , at 32. The majority misunderstands the word “relief.” In this context, as the record makes clear, the word “relief” does not refer to “money.” It refers to recognition under the Geneva Conventions. See App. 57–58 (2003 Complaint); id., at 79–80 (1998 Complaint); id., at 113 (Fertig Declaration); see also Tr. of Oral Arg. 63 (plaintiffs’ counsel denying that plaintiffs seek to teach about obtaining relief in the form of money).    Throughout, the majority emphasizes that it would defer strongly to Congress’ “informed judgment.” See, e.g., ante , at 30. But here, there is no evidence that Congress has made such a judgment regarding the specific activities at issue in these cases. See infra , at 20–21. In any event, “whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open [for judicial determination] whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent; and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature.” Whitney , supra , at 378–379 (Brandeis, J., concurring). In such circumstances, the “judicial function commands analysis of whether the specific conduct charged falls within the reach of the statute and if so whether the legislation is consonant with the Constitution.” Landmark Communications, Inc. v. Virginia , 435 U. S. 829 , 844 (1978). Hence, a legislative declaration “does not preclude enquiry into the question whether, at the time and under the circumstances, the conditions existed which are essential to validity under the Federal Constitution .” Whitney , supra , at 378; see also Landmark, supra , at 843 (“Deference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake”).    I concede that the Government’s expertise in foreign affairs may warrant deference in respect to many matters, e.g. , our relations with Turkey. Cf. ante , at 27–28. But it remains for this Court to decide whether the Government has shown that such an interest justifies criminalizing speech activity otherwise protected by the First Amendment. And the fact that other nations may like us less for granting that protection cannot in and of itself carry the day.    Finally, I would reemphasize that neither the Government nor the majority points to any specific facts that show that the speech-related activities before us are fungible in some special way or confer some special legitimacy upon the PKK. Rather, their arguments in this respect are general and speculative. Those arguments would apply to virtually all speech-related support for a dual-purpose group’s peaceful activities (irrespective of whether the speech-related activity is coordinated). Both First Amendment logic and First Amendment case law prevent us from “sacrific[ing] First Amendment protections for so speculative a gain.” Columbia Broadcasting System, Inc. v. Democratic National Committee , 412 U. S. 94 , 127 (1973); see also Consolidated Edison Co. , 447 U. S., at 543 (rejecting proffered state interest not supported in record because “[m]ere speculation of harm does not constitute a compelling state interest”). II    For the reasons I have set forth, I believe application of the statute as the Government interprets it would gravely and without adequate justification injure interests of the kind the First Amendment protects. Thus, there is “a serious doubt” as to the statute’s constitutionality. Crowell , 285 U. S., at 62. And where that is so, we must “ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Ibid.; see also Ashwander , 297 U. S., at 346–348 (Brandeis, J., concurring); Zadvydas v. Davis , 533 U. S. 678 , 689 (2001); United States v. X-Citement Video, Inc. , 513 U. S. 64 , 78 (1994); United States v. Jin Fuey Moy , 241 U. S. 394 , 401 (1916).    I believe that a construction that would avoid the constitutional problem is “fairly possible.” In particular, I would read the statute as criminalizing First-Amendment-protected pure speech and association only when the defendant knows or intends that those activities will assist the organization’s unlawful terrorist actions. Under this reading, the Government would have to show, at a minimum, that such defendants provided support that they knew was significantly likely to help the organization pursue its unlawful terrorist aims.    A person acts with the requisite knowledge if he is aware of (or willfully blinds himself to) a significant likelihood that his or her conduct will materially support the organization’s terrorist ends. See Allen v. United States , 164 U. S. 492 , 496 (1896); cf. ALI, Model Penal Code §2.02(2)(b)(ii) (1962). See also United States v. Santos , 553 U. S. 507 , 521 (2008) (plurality opinion); cf. Model Penal Code §2.02(7) (willful blindness); S. Rep. No. 95–605, pt. 1, pp. 59–60 (1977). A person also acts with the requisite intent if it is his “conscious objective” (or purpose) to further those same terrorist ends. See United States v. Bailey , 444 U. S. 394 , 408 (1980); Model Penal Code §§2.02(2)(a) and 2.02(5) (“When acting knowingly suffices to establish an element, such element also is established if a person acts purposely”). On the other hand, for the reasons I have set out, see supra, at 9–12, knowledge or intent that this assistance (aimed at lawful activities) could or would help further terrorism simply by helping to legitimate the organization is not sufficient.    This reading of the statute protects those who engage in pure speech and association ordinarily protected by the First Amendment. But it does not protect that activity where a defendant purposefully intends it to help terrorism or where a defendant knows (or willfully blinds himself to the fact) that the activity is significantly likely to assist terrorism. Where the activity fits into these categories of purposefully or knowingly supporting terrorist ends, the act of providing material support to a known terrorist organization bears a close enough relation to terrorist acts that, in my view, it likely can be prohibited notwithstanding any First Amendment interest. Cf. Brandenburg, 395 U. S. 444 . At the same time, this reading does not require the Government to undertake the difficult task of proving which, as between peaceful and nonpeaceful purposes, a defendant specifically preferred; knowledge is enough. See Bailey , supra, at 405 (defining specific intent).    This reading is consistent with the statute’s text. The statute prohibits “ knowingly provid[ing] material support or resources to a foreign terrorist organization.” §2339B(a)(1) (emphasis added). Normally we read a criminal statute as applying a mens rea requirement to all of the subsequently listed elements of the crime. See Flores - Figueroa v. United States , 556 U. S. ___, ___ (2009) (slip op., at 6–7). So read, the defendant would have to know or intend (1) that he is providing support or resources, (2) that he is providing that support to a foreign terrorist organization , and (3) that he is providing support that is material, meaning (4) that his support bears a significant likelihood of furthering the organization’s terrorist ends.    This fourth requirement flows directly from the statute’s use of the word “material.” That word can mean being of a physical or worldly nature, but it also can mean “being of real importance or great consequence.” Webster’s Third New International Dictionary 1392 (1961). Here, it must mean the latter, for otherwise the statute, applying only to physical aid, would not apply to speech at all. See also §2339A(b)(1) (defining “ ‘material support or resources’ ” as “any property, tangible or intangible ” (emphasis added)). And if the statute applies only to support that would likely be of real importance or great consequence, it must have importance or consequence in respect to the organization’s terrorist activities. That is because support that is not significantly likely to help terrorist activities, for purposes of this statute, neither has “importance” nor is of “great consequence.”    The statutory definition of “material support” poses no problem. The statute defines “material support” through reference to a list of terms, including those at issue here—“training,” “expert advice or assistance,” “personnel,” and “service.” §2339B(g)(4); §2339A(b)(1). Since these latter terms all fall under the definition of the term “ material support,” these activities fall within the statute’s scope only when they too are “material.” Cf. Stevens , 559 U. S., at ___ (slip op., at 12) (citing Leocal v. Ashcroft , 543 U. S. 1 , 11 (2004) (definitional phrase may take meaning from the term to be defined)).    Thus, textually speaking, a statutory requirement that the defendant knew the support was material can be read to require the Government to show that the defendant knew that the consequences of his acts had a significant likelihood of furthering the organization’s terrorist, not just its lawful, aims.    I need not decide whether this is the only possible reading of the statute in cases where “material support” takes the form of “currency,” “property,” “monetary instruments,” “financial securities,” “financial services,” “lodging,” “safehouses,” “false documentation or identification,” “weapons,” “lethal substances,” or “explosives,” and the like. §2339A(b)(1). Those kinds of aid are inherently more likely to help an organization’s terrorist activities, either directly or because they are fungible in nature. Thus, to show that an individual has provided support of those kinds will normally prove sufficient for conviction (assuming the statute’s other requirements are met). But where support consists of pure speech or association, I would indulge in no such presumption. Rather, the Government would have to prove that the defendant knew he was providing support significantly likely to help the organization pursue its unlawful terrorist aims (or, alternatively, that the defendant intended the support to be so used).    The statute’s history strongly supports this reading. That history makes clear that Congress primarily sought to end assistance that takes the form of fungible donations of money or goods. See, e.g., H. R. Rep. No. 104–383, at 38, 43–45, 81; supra , at 8–9. It shows that Congress, when referring to “expert services and assistance” for example, had in mind training that was sufficiently fungible to further terrorism directly, such as an aviation expert’s giving “advice” that “facilitat[es] an aircraft hijacking” or an accountant’s giving “advice” that will “facilitate the concealment of funds used to support terrorist activities.” Hearing on Administration’s Draft Anti-Terrorism Act of 2001 before the House Committee on the Judiciary, 107th Cong., 1st Sess., 61 (2001).    And the Chairman of the Senate Committee on the Judiciary, when reporting the relevant bill from Committee, told the Senate: “This bill also includes provisions making it a crime to knowingly provide material support to the terrorist functions of foreign groups designated by a Presidential finding to be engaged in terrorist activities.” 142 Cong. Rec. S3354 (1996) (statement of Sen. Hatch) (emphasis added). He then added: “I am convinced we have crafted a narrow but effective designation provision which meets these obligations while safeguarding the freedom to associate, which none of us would willingly give up.” Id. , at S3360. Consistent with this view, the statute itself says: “Nothing in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment to the Constitution of the United States.” §2339B(i).    In any event, the principle of constitutional avoidance demands this interpretation. As Part II makes clear, there is a “serious” doubt—indeed, a “grave” doubt—about the constitutionality of the statute insofar as it is read to criminalize the activities before us. Crowell , 285 U. S., at 62; see also Ashwander , 297 U. S., at 346–348 (Brandeis, J., concurring); Jin Fuey Moy , 241 U. S., at 401. We therefore must “read the statute to eliminate” that constitutional “doub[t] so long as such a reading is not plainly contrary to the intent of Congress.” X-Citement Video, Inc. , 513 U. S., at 78.    For this reason, the majority’s statutory claim that Congress did not use the word “knowingly” as I would use it, ante , at 12–13, and n. 3, is beside the point. Our consequent reading is consistent with the statute’s text; it is consistent with Congress’ basic intent; it interprets but does not significantly add to what the statute otherwise contains. Cf. e.g., United States v. Thirty-seven Photographs , 402 U. S. 363 , 373–374 (1971) (constitutionally compelled to add requirement that “forfeiture proceedings be commenced within 14 days and completed within 60 days” despite absence of any statutory time limits); NLRB v. Catholic Bishop of Chicago , 440 U. S. 490 , 507 (1979) (constitutionally compelled to interpret “employer” as implicitly excluding “church-operated schools” despite silence and eight other different but explicit exceptions). We should adopt it. III    Having interpreted the statute to impose the mens rea requirement just described, I would remand the cases so that the lower courts could consider more specifically the precise activities in which the plaintiffs still wish to engage and determine whether and to what extent a grant of declaratory and injunctive relief were warranted. I do not see why the majority does not also remand the cases for consideration of the plaintiffs’ activities relating to “advocating” for the organizations’ peaceful causes. See ante , at 19–20, 32–33.    The majority does not remand, apparently because it believes the plaintiffs lose automatically in that these “advocacy” claims are too general. It adds that the plaintiffs did not “suggest what exactly their ‘advocacy’ would consist of.” Ante, at 33. But the majority is wrong about the lack of specificity. The record contains complaints and affidavits, which describe in detail the forms of advocacy these groups have previously engaged in and in which they would like to continue to engage. See App. 56–63, 78–87, 95–99, 110–123.    Moreover, the majority properly rejects the Government’s argument that the plaintiffs’ speech-related activities amount to “conduct” and should be reviewed as such. Government Brief 44–57. Hence, I should think the majority would wish the lower courts to reconsider this aspect of the cases, applying a proper standard of review. See, e.g., Philip Morris USA v. Williams, 549 U. S. 346 , 357–358 (2007); Johnson v. California 543 U. S. 499 , 515 (2005); cf. Ricci v. DeStefano , 557 U. S. ___, ___ (2009) (slip op., at 25) (Ginsburg, J., dissenting) (“When this Court formulates a new legal rule, the ordinary course is to remand and allow the lower courts to apply the rule in the first instance”). IV    In sum, these cases require us to consider how to apply the First Amendment where national security interests are at stake. When deciding such cases, courts are aware and must respect the fact that the Constitution entrusts to the Executive and Legislative Branches the power to provide for the national defense, and that it grants particular authority to the President in matters of foreign affairs. Nonetheless, this Court has also made clear that authority and expertise in these matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals. Cf. Hamdi v. Rumsfeld , 542 U. S. 507 , 536 (2004) (“We have long since made clear that a state of war is not a blank check … when it comes to the rights of th[is] Nation’s citizens”). In these cases, for the reasons I have stated, I believe the Court has failed to examine the Government’s justifications with sufficient care. It has failed to insist upon specific evidence, rather than general assertion. It has failed to require tailoring of means to fit compelling ends. And ultimately it deprives the individuals before us of the protection that the First Amendment demands.    That is why, with respect, I dissent.

In *Holder v. Humanitarian Law Project*, the Supreme Court upheld a federal law prohibiting the provision of "material support or resources" to foreign terrorist organizations, even if the support is intended to promote lawful, non-violent purposes. The Court found that the law did not violate the First Amendment right to freedom of speech and association, as it was focused on the conduct of providing support rather than the content of any speech. The Court also concluded that the law was not too vague and provided sufficient notice of the prohibited conduct. However, the Court left open the possibility of addressing more complex cases that may arise under the statute in the future.

Immigration & National Security

Ziglar v. Abbasi

https://supreme.justia.com/cases/federal/us/582/15-1358/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ Nos. 15–1358, 15–1359 and 15–1363 _________________ JAMES W. ZIGLAR, PETITIONER 15–1358 v. AHMER IQBAL ABBASI, et al. JOHN D. ASHCROFT, FORMER ATTORNEYGENERAL, et al., PETITIONERS 15–1359 v. AHMER IQBAL ABBASI, et al. DENNIS HASTY, et al., PETITIONERS 15–1363 v. AHMER IQBAL ABBASI, et al. on writs of certiorari to the united states court of appeals for the second circuit [June 19, 2017] Justice Kennedy delivered the opinion of the Court, except as to Part IV–B. After the September 11 terrorist attacks in this country, and in response to the deaths, destruction, and dangers they caused, the United States Government ordered hundreds of illegal aliens to be taken into custody and held. Pending a determination whether a particular detainee had connections to terrorism, the custody, under harsh conditions to be described, continued. In many instances custody lasted for days and weeks, then stretching into months. Later, some of the aliens who had been detained filed suit, leading to the cases now before the Court. The complaint named as defendants three high executive officers in the Department of Justice and two of the wardens at the facility where the detainees had been held. Most of the claims, alleging various constitutional violations, sought damages under the implied cause of action theory adopted by this Court in Bivens v. Six Unknown Fed. Narcotics Agents , 403 U. S. 388 (1971) . Another claim in the complaint was based upon the statutory cause of action authorized and created by Congress under Rev. Stat. §1980, 42 U. S. C. §1985(3). This statutory cause of action allows damages to persons injured by conspiracies to deprive them of the equal protection of the laws. The suit was commenced in the United States District Court for the Eastern District of New York. After this Court’s decision in Ashcroft v. Iqbal , 556 U. S. 662 (2009) , a fourth amended complaint was filed; and that is the complaint to be considered here. Motions to dismiss the fourth amended complaint were denied as to some defendants and granted as to others. These rulings were the subject of interlocutory appeals to the United States Court of Appeals for the Second Circuit. Over a dissenting opinion by Judge Raggi with respect to the decision of the three-judge panel—and a second unsigned dissent from the court’s declining to rehear the suit en banc, joined by Judge Raggi and five other judges—the Court of Appeals ruled that the complaint was sufficient for the action to proceed against the named officials who are now before us. See Turkmen v. Hasty , 789 F. 3d 218 (2015) (panel decision); Turkmen v. Hasty , 808 F. 3d 197 (2015) (en banc decision). The Court granted certiorari to consider these rulings. 580 U. S. ___ (2016). The officials who must defend the suit on the merits, under the ruling of the Court of Appeals, are the petitioners here. The former detainees who seek relief under the fourth amended complaint are the respondents. The various claims and theories advanced for recovery, and the grounds asserted for their dismissal as insufficient as a matter of law, will be addressed in turn. I Given the present procedural posture of the suit, the Court accepts as true the facts alleged in the complaint. See Iqbal , 556 U. S., at 678. A In the weeks following the September 11, 2001, terrorist attacks—the worst in American history—the Federal Bureau of Investigation (FBI) received more than 96,000 tips from members of the public. See id., at 667. Some tips were based on well-grounded suspicion of terrorist activity, but many others may have been based on fear of Arabs and Muslims. FBI agents “questioned more than 1,000 people with suspected links to the [September 11] attacks in particular or to terrorism in general.” Ibid . While investigating the tips—including the less substantiated ones—the FBI encountered many aliens who were present in this country without legal authorization. As a result, more than 700 individuals were arrested and detained on immigration charges. Ibid. If the FBI designated an alien as not being “of interest” to the investigation, then he or she was processed according to normal procedures. In other words the alien was treated just as if, for example, he or she had been arrested at the border after an illegal entry. If, however, the FBI designated an alien as “of interest” to the investigation, or if it had doubts about the proper designation in a particular case, the alien was detained subject to a “hold-until-cleared policy.” The aliens were held without bail. Respondents were among some 84 aliens who were subject to the hold-until-cleared policy and detained at the Metropolitan Detention Center (MDC) in Brooklyn, New York. They were held in the Administrative Maximum Special Housing Unit (or Unit) of the MDC. The complaint includes these allegations: Conditions in the Unit were harsh. Pursuant to official Bureau of Prisons policy, detainees were held in “ ‘tiny cells for over 23 hours a day.’ ” 789 F. 3d, at 228. Lights in the cells were left on 24 hours. Detainees had little opportunity for exercise or recreation. They were forbidden to keep anything in their cells, even basic hygiene products such as soap or a toothbrush. When removed from the cells for any reason, they were shackled and escorted by four guards. They were denied access to most forms of communication with the outside world. And they were strip searched often—any time they were moved, as well as at random in their cells. Some of the harsh conditions in the Unit were not imposed pursuant to official policy. According to the complaint, prison guards engaged in a pattern of “physical and verbal abuse.” Ibid. Guards allegedly slammed detainees into walls; twisted their arms, wrists, and fingers; broke their bones; referred to them as terrorists; threatened them with violence; subjected them to humiliating sexual comments; and insulted their religion. B Respondents are six men of Arab or South Asian descent. Five are Muslims. Each was illegally in this country, arrested during the course of the September 11 investigation, and detained in the Administrative Maximum Special Housing Unit for periods ranging from three to eight months. After being released respondents were removed from the United States. Respondents then sued on their own behalf, and on behalf of a putative class, seeking compensatory and punitive damages, attorney’s fees, and costs. Respondents, it seems fair to conclude from the arguments presented, acknowledge that in the ordinary course aliens who are present in the United States without legal authorization can be detained for some period of time. But here the challenge is to the conditions of their confinement and the reasons or motives for imposing those conditions. The gravamen of their claims was that the Government had no reason to suspect them of any connection to terrorism, and thus had no legitimate reason to hold them for so long in these harsh conditions. As relevant here, respondents sued two groups of federal officials in their official capacities. The first group consisted of former Attorney General John Ashcroft, former FBI Director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar. This opinion refers to these three petitioners as the “Executive Officials.” The other petitioners named in the complaint were the MDC’s warden, Dennis Hasty, and associate warden, James Sherman. This opinion refers to these two petitioners as the “Wardens.” Seeking to invoke the Court’s decision in Bivens , respondents brought four claims under the Constitution itself. First, respondents alleged that petitioners detained them in harsh pretrial conditions for a punitive purpose, in violation of the substantive due process component of the Fifth Amendment. Second, respondents alleged that petitioners detained them in harsh conditions because of their actual or apparent race, religion, or national origin, in violation of the equal protection component of the Fifth Amendment. Third, respondents alleged that the Wardens subjected them to punitive strip searches unrelated to any legitimate penological interest, in violation of the Fourth Amendment and the substantive due process component of the Fifth Amendment. Fourth, respondents alleged that the Wardens knowingly allowed the guards to abuse respondents, in violation of the substantive due process component of the Fifth Amendment. Respondents also brought a claim under 42 U. S. C. §1985(3), which forbids certain conspiracies to violate equal protection rights. Respondents alleged that petitioners conspired with one another to hold respondents in harsh conditions because of their actual or apparent race, religion, or national origin. C The District Court dismissed the claims against the Executive Officials but allowed the claims against the Wardens to go forward. The Court of Appeals affirmed in most respects as to the Wardens, though it held that the prisoner abuse claim against Sherman (the associate warden) should have been dismissed. 789 F. 3d, at 264–265. As to the Executive Officials, however, the Court of Appeals reversed, reinstating respondents’ claims. Ibid. As noted above, Judge Raggi dissented. She would have held that only the prisoner abuse claim against Hasty should go forward. Id., at 295, n. 41, 302 (opinion concurring in part in judgment and dissenting in part). The Court of Appeals declined to rehear the suit en banc, 808 F. 3d, at 197; and, again as noted above, Judge Raggi joined a second dissent along with five other judges, id. , at 198. This Court granted certiorari. 580 U. S. ___ (2016). II The first question to be discussed is whether petitioners can be sued for damages under Bivens and the ensuing cases in this Court defining the reach and the limits of that precedent. A In 1871, Congress passed a statute that was later codified at Rev. Stat. §1979, 42 U. S. C. §1983. It entitles an injured person to money damages if a state official violates his or her constitutional rights. Congress did not create an analogous statute for federal officials. Indeed, in the 100 years leading up to Bivens , Congress did not pro-vide a specific damages remedy for plaintiffs whose con-stitutional rights were violated by agents of the Federal Government. In 1971, and against this background, this Court decided Bivens . The Court held that, even absent statutoryauthorization, it would enforce a damages remedy to compensate persons injured by federal officers who vio-lated the prohibition against unreasonable search and sei-zures. See 403 U. S., at 397. The Court acknowledged that the Fourth Amendment does not provide for money damages “in so many words.” Id., at 396. The Court noted, however, that Congress had not foreclosed a damages remedy in “explicit” terms and that no “special factors” suggested that the Judiciary should “hesitat[e]” in the face of congressional silence. Id., at 396–397. The Court, accordingly, held that it could authorize a remedy under general principles of federal jurisdiction. See id. , at 392 (citing Bell v. Hood , 327 U. S. 678, 684 (1946) ). In the decade that followed, the Court recognized what has come to be called an implied cause of action in two cases involving other constitutional violations. In Davis v. Passman , 442 U. S. 228 (1979) , an administrative assistant sued a Congressman for firing her because she was a woman. The Court held that the Fifth Amendment Due Process Clause gave her a damages remedy for gender discrimination. Id., at 248–249. And in Carlson v. Green , 446 U. S. 14 (1980) , a prisoner’s estate sued federal jailers for failing to treat the prisoner’s asthma. The Court held that the Eighth Amendment Cruel and Unusual Punishments Clause gave him a damages remedy for failure to provide adequate medical treatment. See id. , at 19. These three cases— Bivens , Davis , and Carlson —represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself. B To understand Bivens and the two other cases implying a damages remedy under the Constitution, it is necessary to understand the prevailing law when they were decided. In the mid-20th century, the Court followed a different approach to recognizing implied causes of action than it follows now. During this “ ancien regime ,” Alexander v. Sandoval , 532 U. S. 275, 287 (2001) , the Court assumed it to be a proper judicial function to “provide such remedies as are necessary to make effective” a statute’s purpose, J. I. Case Co. v. Borak , 377 U. S. 426, 433 (1964) . Thus, as a routine matter with respect to statutes, the Court would imply causes of action not explicit in the statutory text itself. See, e.g. , id., at 430–432; Allen v. State Bd. of Elections , 393 U. S. 544, 557 (1969) ; Sullivan v. Little Hunting Park, Inc. , 396 U. S. 229, 239 (1969) (“The existence of a statutory right implies the existence of all necessary and appropriate remedies”). These statutory decisions were in place when Bivens recognized an implied cause of action to remedy a constitutional violation. Against that background, the Bivens decision held that courts must “adjust their remedies so as to grant the necessary relief” when “federally protected rights have been invaded.” 403 U. S., at 392 (quoting Bell , supra , at 678); see also 403 U. S. , at 402 (Harlan, J., concurring) (discussing cases recognizing implied causes of action under federal statutes). In light of this interpretive framework, there was a possibility that “ the Court would keep expanding Bivens until it became the substantial equivalent of 42 U. S. C. §1983.” Kent, Are Damages Different?: Bivens and National Security, 87 S. Cal. L. Rev. 1123, 1139–1140 (2014). C Later, the arguments for recognizing implied causes of action for damages began to lose their force. In cases decided after Bivens , and after the statutory implied cause-of-action cases that Bivens itself relied upon, the Court adopted a far more cautious course before finding implied causes of action. In two principal cases under other statutes, it declined to find an implied cause of action. See Piper v. Chris-Craft Industries, Inc. , 430 U. S. 1 –46 (1977); Cort v. Ash , 422 U. S. 66 –69 (1975). Later, in Cannon v. University of Chicago , 441 U. S. 677 (1979) , the Court did allow an implied cause of action; but it cautioned that, where Congress “intends private litigants to have a cause of action,” the “far better course” is for Congress to confer that remedy in explicit terms. Id. , at 717. Following this expressed caution, the Court clarified in a series of cases that, when deciding whether to recognize an implied cause of action, the “determinative” question is one of statutory intent. Sandoval , 532 U. S., at 286. If the statute itself does not “displa[y] an intent” to create “a private remedy,” then “a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.” Id ., at 286–287; see also Transamerica Mortgage Advisors, Inc. v. Lewis , 444 U. S. 11 –16, 23–24 (1979); Karahalios v. Federal Employees , 489 U. S. 527 –537 (1989). The Court held that the judicial task was instead “limited solely to determining whether Congress intended to create the private right of action asserted.” Touche Ross & Co. v. Redington , 442 U. S. 560, 568 (1979) . If the statute does not itself so provide, a private cause of action will not be created through judicial mandate. See Transamerica , supra , at 24. The decision to recognize an implied cause of action under a statute involves somewhat different considerations than when the question is whether to recognize an implied cause of action to enforce a provision of the Constitution itself. When Congress enacts a statute, there are specific procedures and times for considering its terms and the proper means for its enforcement. It is logical, then, to assume that Congress will be explicit if it intends to create a private cause of action. With respect to the Constitution, however, there is no single, specific congressional action to consider and interpret. Even so, it is a significant step under separation-of-powers principles for a court to determine that it has the authority, under the judicial power, to create and enforce a cause of action for damages against federal officials in order to remedy a constitutional violation. When determining whether traditional equitable powers suffice to give necessary constitutional protection—or whether, in addition, a damages remedy is necessary—there are a number of economic and governmental concerns to con-sider. Claims against federal officials often create sub-stantial costs, in the form of defense and indemnification. Congress, then, has a substantial responsibility to determine whether, and the extent to which, monetary and other liabilities should be imposed upon individual officers and employees of the Federal Government. In addition, the time and administrative costs attendant upon intrusions resulting from the discovery and trial process are significant factors to be considered. In an analogous context, Congress, it is fair to assume, weighed those concerns in deciding not to substitute the Government as defendant in suits seeking damages for constitutional violations. See 28 U. S. C. §2679(b)(2)(A) (providing that certain provisions of the Federal Tort Claims Act do not apply to any claim against a federal employee “which is brought for a violation of the Constitution”). For these and other reasons, the Court’s expressed caution as to implied causes of actions under congressional statutes led to similar caution with respect to actions in the Bivens context, where the action is implied to enforce the Constitution itself. Indeed, in light of the changes to the Court’s general approach to recognizing implied damages remedies, it is possible that the analysis in the Court’s three Bivens cases might have been different if they were decided today. To be sure, no congressional enactment has disapproved of these decisions. And it must be understood that this opinion is not intended to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose. Bivens does vindicate the Constitution by allowing some redress for injuries, and it provides instruction and guidance to federal law enforcement officers going forward. The settled law of Bivens in this common and recurrent sphere of law enforcement, and the undoubted reliance upon it as a fixed principle in the law, are powerful reasons to retain it in that sphere. Given the notable change in the Court’s approach to recognizing implied causes of action, however, the Court has made clear that expanding the Bivens remedy is now a “disfavored” judicial activity. Iqbal , 556 U. S., at 675. This is in accord with the Court’s observation that it has “consistently refused to extend Bivens to any new context or new category of defendants.” Correctional Services Corp. v. Malesko , 534 U. S. 61, 68 (2001) . Indeed, the Court has refused to do so for the past 30 years. For example, the Court declined to create an implied damages remedy in the following cases: a First Amendment suit against a federal employer, Bush v. Lucas , 462 U. S. 367, 390 (1983) ; a race-discrimination suit against military officers, Chappell v. Wallace , 462 U. S. 296 –305 (1983); a substantive due process suit against military officers, United States v. Stanley , 483 U. S. 669 –672, 683–684 (1987); a procedural due process suit against Social Security officials, Schweiker v. Chilicky , 487 U. S. 412, 414 (1988) ; a procedural due process suit against a federal agency for wrongful termination, FDIC v. Meyer , 510 U. S. 471 –474 (1994); an Eighth Amendment suit against a private prison operator, Malesko , supra , at 63; a due process suit against officials from the Bureau of Land Management, Wilkie v. Robbins , 551 U. S. 537 –548, 562 (2007); and an Eighth Amendment suit against prison guards at a private prison, Minneci v. Pollard , 565 U. S. 118, 120 (2012) . When a party seeks to assert an implied cause of action under the Constitution itself, just as when a party seeks to assert an implied cause of action under a federal statute, separation-of-powers principles are or should be central to the analysis. The question is “who should decide” whether to provide for a damages remedy, Congress or the courts? Bush, 462 U. S., at 380. The answer most often will be Congress. When an issue “ ‘involves a host of considerations that must be weighed and appraised,’ ” it should be committed to “ ‘those who write the laws’ ” rather than “ ‘those who interpret them.’ ” Ibid. (quoting United States v. Gilman , 347 U. S. 507 –513 (1954)). In most instances, the Court’s precedents now instruct, the Legislature is in the better position to consider if “ ‘the public interest would be served’ ” by imposing a “ ‘new substantive legal liability.’ ” Schweiker , supra , at 426–427 (quoting Bush , supra , at 390). As a result, the Court has urged “caution” before “extending Bivens remedies into any new context.” Malesko , supra , at 74. The Court’s precedents now make clear that a Bivens remedy will not be available if there are “ ‘special factors counselling hesitation in the absence of affirmative action by Congress.’ ” Carlson , 446 U. S., at 18 (quoting Bivens , 403 U. S., at 396). This Court has not defined the phrase “special factors counselling hesitation.” The necessary inference, though, is that the inquiry must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed. Thus, to be a “special factor counselling hesitation,” a factor must cause acourt to hesitate before answering that question in the affirmative. It is not necessarily a judicial function to establish whole categories of cases in which federal officers must defend against personal liability claims in the complex sphere of litigation, with all of its burdens on some and benefits to others. It is true that, if equitable remedies prove insufficient, a damages remedy might be necessary to redress past harm and deter future violations. Yet the decision to recognize a damages remedy requires an assessment of its impact on governmental operations systemwide. Those matters include the burdens on Government employees who are sued personally, as well as the projected costs and consequences to the Government itself when the tort and monetary liability mechanisms of the legal system are used to bring about the proper formulation and implementation of public policies. These and other considerations may make it less probable that Congress would want the Judiciary to entertain a damages suit in a given case. Sometimes there will be doubt because the case arises in a context in which Congress has designed its regulatory authority in a guarded way, making it less likely that Congress would want the Judiciary to interfere. See Chappell , supra , at 302 (military); Stanley , supra , at 679 (same); Meyer , supra , at 486 (public purse); Wilkie , supra , at 561–562 (federal land). And sometimes there will be doubt because some other feature of a case—difficult to predict in advance—causes a court to pause before acting without express congressional authorization. In sum, if there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, the courts must refrain from creating the remedy in order to respect the role of Congress in determining the nature and extent of federal-court jurisdiction under Article III. In a related way, if there is an alternative remedial structure present in a certain case, that alone may limit the power of the Judiciary to infer a new Bivens cause of action. For if Congress has created “any alternative, existing process for protecting the [injured party’s] interest” that itself may “amoun[t] to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Wilkie , supra, at 550; see also Bush , supra , at 385–388 (recognizing that civil-service regulations provided alternative means for relief); Malesko , 534 U. S., at 73–74 (recognizing that state tort law provided alternative means for relief); Minneci , supra, at 127–130 (same). III It is appropriate now to turn first to the Bivens claims challenging the conditions of confinement imposed on respondents pursuant to the formal policy adopted by the Executive Officials in the wake of the September 11 attacks. The Court will refer to these claims as the “detention policy claims.” The detention policy claims allege that petitioners violated respondents’ due process and equal protection rights by holding them in restrictive conditions of confinement; the claims further allege that the Wardens violated the Fourth and Fifth Amendments by subjecting respondents to frequent strip searches. The term “detention policy claims” does not include respondents’ claim alleging that Warden Hasty allowed guards to abuse the detainees. That claim will be considered separately, and further, below. At this point, the question is whether, having considered the relevant special factors in the whole context of the detention policy claims, the Court should extend a Bivens -type remedy to those claims. A Before allowing respondents’ detention policy claims to proceed under Bivens , the Court of Appeals did not perform any special factors analysis at all. 789 F. 3d, at 237. The reason, it said, was that the special factors analysis is necessary only if a plaintiff asks for a Bivens remedy in a new context. 789 F. 3d, at 234. And in the Court of Appeals’ view, the context here was not new. Id., at 235. To determine whether the Bivens context was novel, the Court of Appeals employed a two-part test. First, it asked whether the asserted constitutional right was at issue in a previous Bivens case. 789 F. 3d, at 234. Second, it asked whether the mechanism of injury was the same mechanism of injury in a previous Bivens case. 789 F. 3d, at 234. Under the Court of Appeals’ approach, if the answer to both questions is “yes,” then the context is not new and no special factors analysis is required. Ibid. That approach is inconsistent with the analysis in Malesko . Before the Court decided that case, it had approved a Bivens action under the Eighth Amendment against federal prison officials for failure to provide medical treatment. See Carlson , 446 U. S., at 16, n. 1, 18–19. In Malesko , the plaintiff sought relief against a private prison operator in almost parallel circumstances. 534 U. S., at 64. In both cases, the right at issue was the same: the Eighth Amendment right to be free from cruel and unusual punishment. And in both cases, the mechanism of injury was the same: failure to provide adequate medical treatment. Thus, if the approach followed by the Court of Appeals is the correct one, this Court should have held that the cases arose in the same context, obviating any need for a special factors inquiry. That, however, was not the controlling analytic framework in Malesko . Even though the right and the mechanism of injury were the same as they were in Carlson , the Court held that the contexts were different. 534 U. S., at 70, and n. 4. The Court explained that special factors counseled hesitation and that the Bivens remedy was therefore unavailable. 534 U. S., at 74. For similar reasons, the holding of the Court of Appeals in the instant suit is inconsistent with this Court’s ana-lytic framework in Chappell . In Davis , decided before the Court’s cautionary instructions with respect to Bivens suits, see supra, at 11–12, the Court had held that an employment-discrimination claim against a Congressman could proceed as a Bivens- type action. Davis , 442 U. S., at 230–231. In Chappell , however, the cautionary rules were applicable; and, as a result, a similar discrimination suit against military officers was not allowed to proceed. It is the Chappell framework that now controls; and, under it, the Court of Appeals erred by holding that this suit did not present a new Bivens context. The proper test for determining whether a case presents a new Bivens context is as follows. If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new. Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider. In the present suit, respondents’ detention policy claims challenge the confinement conditions imposed on illegal aliens pursuant to a high-level executive policy created in the wake of a major terrorist attack on American soil. Those claims bear little resemblance to the three Bivens claims the Court has approved in the past: a claim against FBI agents for handcuffing a man in his own home without a warrant; a claim against a Congressman for firing his female secretary; and a claim against prison officials for failure to treat an inmate’s asthma. See Bivens , 403 U. S. 388 ; Davis , 442 U. S. 228 ; Chappell , 462 U. S. 296 . The Court of Appeals therefore should have held that this was a new Bivens context. Had it done so, it would have recognized that a special factors analysis was required before allowing this damages suit to proceed. B After considering the special factors necessarily implicated by the detention policy claims, the Court now holds that those factors show that whether a damages action should be allowed is a decision for the Congress to make, not the courts. With respect to the claims against the Executive Officials, it must be noted that a Bivens action is not “a proper vehicle for altering an entity’s policy.” Malesko , supra , at 74. Furthermore, a Bivens claim is brought against the individual official for his or her own acts, not the acts of others. “The purpose of Bivens is to deter the officer .” Meyer , 510 U. S., at 485. Bivens is not designed to hold officers responsible for acts of their subordinates. See Iqbal , 556 U. S., at 676 (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior ”). Even if the action is confined to the conduct of a particular Executive Officer in a discrete instance, these claims would call into question the formulation and implementation of a general policy. This, in turn, would necessarily require inquiry and discovery into the whole course of the discussions and deliberations that led to the policies and governmental acts being challenged. These consequences counsel against allowing a Bivens action against the Executive Officials, for the burden and demand of litigation might well prevent them—or, to be more precise, future officials like them—from devoting the time and effort required for the proper discharge of their duties. See Cheney v. United States Dist. Court for D. C. , 542 U. S. 367, 382 (2004) (noting “the paramount necessity of protecting the Executive Branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties”). A closely related problem, as just noted, is that the discovery and litigation process would either border upon or directly implicate the discussion and deliberations that led to the formation of the policy in question. See Federal Open Market Comm. v. Merrill , 443 U. S. 340, 360 (1979) (noting that disclosure of Executive Branch documents “could inhibit the free flow of advice, including analysis, reports, and expression of opinion within an agency”). Allowing a damages suit in this context, or in a like context in other circumstances, would require courts to interfere in an intrusive way with sensitive functions of the Executive Branch. See Clinton v. Jones , 520 U. S. 681, 701 (1997) (recognizing that “ ‘[e]ven when a branch does not arrogate power to itself . . . the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties’ ” (quoting Loving v. United States , 517 U. S. 748, 757 (1996) )). These considerations also counsel against allowing a damages claim to proceed against the Executive Officials. See Cheney , supra , at 385 (noting that “special considerations control” when a case implicates “the Executive Branch’s interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications”). In addition to this special factor, which applies to the claims against the Executive Officials, there are three other special factors that apply as well to the detention policy claims against all of the petitioners. First, respondents’ detention policy claims challenge more than standard “law enforcement operations.” United States v. Verdugo-Urquidez , 494 U. S. 259, 273 (1990) . They challenge as well major elements of the Government’s whole response to the September 11 attacks, thus of necessity requiring an inquiry into sensitive issues of national security. Were this inquiry to be allowed in a private suit for damages, the Bivens action would assume dimensions far greater than those present in Bivens itself, or in either of its two follow-on cases, or indeed in any putative Bivens case yet to come before the Court. National-security policy is the prerogative of the Congress and President. See U. S. Const., Art. I, §8; Art. II, §1, §2. Judicial inquiry into the national-security realm raises “concerns for the separation of powers in trenching on matters committed to the other branches.” Christopher v. Harbury , 536 U. S. 403, 417 (2002) . These concerns are even more pronounced when the judicial inquiry comes in the context of a claim seeking money damages rather than a claim seeking injunctive or other equitable relief. The risk of personal damages liability is more likely to cause an official to second-guess difficult but necessary decisions concerning national-security policy. For these and other reasons, courts have shown deference to what the Executive Branch “has determined . . . is ‘essential to national security.’ ” Winter v. Natural Resources Defense Council, Inc. , 555 U. S. 7, 24, 26 (2008) . Indeed, “courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs” unless “Congress specifically has provided otherwise.” Department of Navy v. Egan , 484 U. S. 518, 530 (1988) . Congress has not provided otherwise here. There are limitations, of course, on the power of the Executive under Article II of the Constitution and in the powers authorized by congressional enactments, even with respect to matters of national security. See, e.g., Hamdi v. Rumsfeld , 542 U. S. 507 –537 (2004) (plurality opinion) (“Whatever power the United States Constitution envisions for the Executive . . . in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake”); Boumediene v. Bush , 553 U. S. 723, 798 (2008) (“Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law”). And national-security concerns must not become a talisman used to ward off inconvenient claims—a “label” used to “cover a multitude of sins.” Mitchell v. Forsyth , 472 U. S. 511, 523 (1985) . This “ ‘danger of abuse’ ” is even more heightened given “ ‘the difficulty of defining’ ” the “ ‘security interest’ ” in domestic cases. Ibid. (quoting United States v. United States Dist. Court for Eastern Dist. of Mich. , 407 U. S. 297 –314 (1972)). Even so, the question is only whether “congressionally uninvited intrusion” is “inappropriate” action for the Judiciary to take. Stanley , 483 U. S., at 683. The factors discussed above all suggest that Congress’ failure to provide a damages remedy might be more than mere oversight, and that congressional silence might be more than “inadvertent.” Schweiker , 487 U. S., at 423. This possibility counsels hesitation “in the absence of affirmative action by Congress.” Bivens , 403 U. S., at 396. Furthermore, in any inquiry respecting the likely or probable intent of Congress, the silence of Congress is relevant; and here that silence is telling. In the almost 16 years since September 11, the Federal Government’s responses to that terrorist attack have been well documented. Congressional interest has been “frequent and intense,” Schweiker , supra , at 425, and some of that interest has been directed to the conditions of confinement at issue here. Indeed, at Congress’ behest, the Department of Justice’s Office of the Inspector General compiled a 300-page report documenting the conditions in the MDC in great detail. See 789 F. 3d, at 279 (opinion of Raggi, J.) (noting that the USA PATRIOT Act required “the Department’s Inspector General to review and report semi-annually to Congress on any identified abuses of civil rights and civil liberties in fighting terrorism”). Nevertheless, “[a]t no point did Congress choose to extend to any person the kind of remedies that respondents seek in this lawsuit.” Schweiker , 487 U. S., at 426. This silence is notable because it is likely that high-level policies will attract the attention of Congress. Thus, when Congress fails to provide a damages remedy in circumstances like these, it is much more difficult to believe that “congressional inaction” was “inadvertent.” Id. , at 423. It is of central importance, too, that this is not a case like Bivens or Davis in which “it is damages or nothing.” Bivens , supra , at 410 (Harlan, J., concurring in judgment); Davis , 442 U. S., at 245. Unlike the plaintiffs in those cases, respondents do not challenge individual instances of discrimination or law enforcement overreach, which due to their very nature are difficult to address except by way of damages actions after the fact. Respondents instead challenge large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners. To address those kinds of decisions, detainees may seek injunctive relief. And in addition to that, we have left open the question whether they might be able to challenge their confinement conditions via a petition for a writ of habeas corpus. See Bell v. Wolfish , 441 U. S. 520, 526, n. 6 (1979) (“[W]e leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement”); Preiser v. Rodriguez , 411 U. S. 475, 499 (1973) (“When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making custody illegal”). Indeed, the habeas remedy, if necessity required its use, would have provided a faster and more direct route to relief than a suit for money damages. A successful habeas petition would have required officials to place respondents in less-restrictive conditions immediately; yet this dam-ages suit remains unresolved some 15 years later. (As in Bell and Preiser , the Court need not determine the scope or availability of the habeas corpus remedy, a question that is not before the Court and has not been briefed or argued.) In sum, respondents had available to them “ ‘other alternative forms of judicial relief.’ ” Minneci , 565 U. S.,at 124. And when alternative methods of relief are available, a Bivens remedy usually is not. See Bush , 462 U. S., at 386–388; Schweiker , supra , at 425–426; Malesko , 534 U. S., at 73–74; Minneci , supra , at 125–126. There is a persisting concern, of course, that absent a Bivens remedy there will be insufficient deterrence to prevent officers from violating the Constitution. In circumstances like those presented here, however, the stakes on both sides of the argument are far higher than in past cases the Court has considered. If Bivens liability were to be imposed, high officers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis. And, as already noted, the costs and difficulties of later litigation might intrude upon and interfere with the proper exercise of their office. On the other side of the balance, the very fact that some executive actions have the sweeping potential to affect the liberty of so many is a reason to consider proper means to impose restraint and to provide some redress from injury. There is therefore a balance to be struck, in situations like this one, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril. Cf. Stanley , supra , at 681 (noting that the special-factors analysis in that case turned on “how much occasional, unintended impairment of military discipline one is willing to tolerate”). The proper balance is one for the Congress, not the Judiciary, to undertake. For all of these reasons, the Court of Appeals erred by allowing respondents’ detention policy claims to proceed under Bivens . IV A One of respondents’ claims under Bivens requires a different analysis: the prisoner abuse claim against the MDC’s warden, Dennis Hasty. The allegation is that Warden Hasty violated the Fifth Amendment by allowing prison guards to abuse respondents. The warden argues, as an initial matter, that the complaint does not “ ‘state a claim to relief that is plausible on its face.’ ” Iqbal , 556 U. S., at 678 (quoting Bell Atlantic Corp. v. Twombly , 550 U. S. 544, 570 (2007) ). Applying its precedents, the Court of Appeals held that the substantive standard for the sufficiency of the claim is whether the warden showed “deliberate indifference” to prisoner abuse. 789 F. 3d, at 249–250. The parties appear to agree on this standard, and, for purposes of this case, the Court assumes it to be correct. The complaint alleges that guards routinely abused respondents; that the warden encouraged the abuse by referring to respondents as “terrorists”; that he prevented respondents from using normal grievance procedures; that he stayed away from the Unit to avoid seeing the abuse; that he was made aware of the abuse via “inmate complaints, staff complaints, hunger strikes, and suicide attempts”; that he ignored other “direct evidence of [the] abuse, including logs and other official [records]”; that he took no action “to rectify or address the situation”; and that the abuse resulted in the injuries described above, see supra, at 4. These allegations—assumed here to be true, subject to proof at a later stage—plausibly show the warden’s deliberate indifference to the abuse. Consistent with the opinion of every judge in this case to have considered the question, including the dissenters in the Court of Appeals, the Court concludes that the prisoner abuse allegations against Warden Hasty state a plausible ground to find a constitutional violation if a Bivens remedy is to be implied. Warden Hasty argues, however, that Bivens ought not to be extended to this instance of alleged prisoner abuse. As noted above, the first question a court must ask in a case like this one is whether the claim arises in a new Bivens context, i.e. , whether “the case is different in a meaningful way from previous Bivens cases decided by this Court.” Supra, at 16. It is true that this case has significant parallels to one of the Court’s previous Bivens cases, Carlson v. Green, 446 U. S. 14 . There, the Court did allow a Bivens claim for prisoner mistreatment—specifically, for failure to provide medical care. And the allegations of injury here are just as compelling as those at issue in Carlson . This is especially true given that the complaint alleges serious violations of Bureau of Prisons policy. See 28 CFR §552.20 (2016) (providing that prison staff may use force “only as a last alternative after all other reasonable efforts to resolve a situation have failed” and that staff may “use only that amount of force necessary to [ensure prison safety and security]”); §552.22(j) (“All incidents involving the use of force . . . must be carefully documented”); §542.11 (requiring the warden to investigate certain complaints of inmate abuse). Yet even a modest extension is still an extension. And this case does seek to extend Carlson to a new context. As noted above, a case can present a new context for Bivens purposes if it implicates a different constitutional right; if judicial precedents provide a less meaningful guide for official conduct; or if there are potential special factors that were not considered in previous Bivens cases. See supra, at 13. The constitutional right is different here, since Carlson was predicated on the Eighth Amendment and this claim is predicated on the Fifth. See 446 U. S., at 16. And the judicial guidance available to this warden, with respect to his supervisory duties, was less developed. The Court has long made clear the standard for claims alleging failure to provide medical treatment to a prisoner—“deliberate indifference to serious medical needs.” Estelle v. Gamble , 429 U. S. 97, 104 (1976) . The standard for a claim alleging that a warden allowed guards to abuse pre-trial detainees is less clear under the Court’s precedents. This case also has certain features that were not considered in the Court’s previous Bivens cases and that might discourage a court from authorizing a Bivens remedy. As noted above, the existence of alternative remedies usually precludes a court from authorizing a Bivens action. Supra, at 14. And there might have been alternative remedies available here, for example, a writ of habeas corpus, Wolfish , 441 U. S., at 526, n. 6; an injunction requiring the warden to bring his prison into compliance with the regulations discussed above; or some other form of equitable relief. Furthermore, legislative action suggesting that Congress does not want a damages remedy is itself a factor counseling hesitation. See supra, at 14. Some 15 years after Carlson was decided, Congress passed the Prison Litigation Reform Act of 1995, which made comprehensive changes to the way prisoner abuse claims must be brought in federal court. See 42 U. S. C. §1997e. So it seems clear that Congress had specific occasion to consider the matter of prisoner abuse and to consider the proper way to rem-edy those wrongs. This Court has said in dicta that the Act’s exhaustion provisions would apply to Bivens suits. See Porter v. Nussle , 534 U. S. 516, 524 (2002) . But the Act itself does not provide for a standalone damages remedy against federal jailers. It could be argued that this suggests Congress chose not to extend the Carlson dam-ages remedy to cases involving other types of prisoner mistreatment. The differences between this claim and the one in Carlson are perhaps small, at least in practical terms. Given this Court’s expressed caution about extending the Bivens remedy, however, the new-context inquiry is easily satisfied. Some differences, of course, will be so trivial that they will not suffice to create a new Bivens context. But here the differences identified above are at the very least meaningful ones. Thus, before allowing this claim to proceed under Bivens , the Court of Appeals should have performed a special factors analysis. It should have analyzed whether there were alternative remedies available or other “sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy” in a suit like this one. Supra, at 15. B Although the Court could perform that analysis in the first instance, the briefs have concentrated almost all of their efforts elsewhere. Given the absence of a comprehensive presentation by the parties, and the fact that the Court of Appeals did not conduct the analysis, the Court declines to perform the special factors analysis itself. The better course is to vacate the judgment below, allowing the Court of Appeals or the District Court to do so on remand. V One issue remains to be addressed: the claim that petitioners are subject to liability for civil conspiracy under 42 U. S. C. §1985(3). Unlike the prisoner abuse claim just discussed, this claim implicates the activities of all the petitioners—the Executive Officials as well as the Wardens—in creating the conditions of confinement at issue here. The civil-conspiracy prohibition contained in §1985(3) was enacted as a significant part of the civil rights legislation passed in the aftermath of the Civil War. See Carpenters v. Scott , 463 U. S. 825 –837 (1983) (detailing the legislative history of §1985(3)); Griffin v. Breckenridge , 403 U. S. 88 –101 (1971) (same); Great American Fed. Sav. & Loan Assn. v. Novotny , 442 U. S. 366, 379 (1979) (Powell, J., concurring) (describing §1985(3) as a “Civil War Era remedial statute”). The statute imposes liability on two or more persons who “conspire . . . for the purpose of depriving . . . any person or class of persons of the equal protection of the laws.” §1985(3). In the instant suit, respondents allege that petitioners violated the statute by “agreeing to implement a policy” under which respondents would be detained in harsh conditions “because of their race, religion, ethnicity, and national origin.” Assuming these allegations to be true and well pleaded, the question is whether petitioners are entitled to qualified immunity. A The qualified immunity rule seeks a proper balance between two competing interests. On one hand, damages suits “may offer the only realistic avenue for vindication of constitutional guarantees.” Harlow v. Fitzgerald , 457 U. S. 800, 814 (1982) . “On the other hand, permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.” Anderson v. Creighton , 483 U. S. 635, 638 (1987) . As one means to accommodate these two objectives, the Court has held that Government officials are entitled to qualified immunity with respect to “discretionary functions” performed in their official capacities. Ibid. The doctrine of qualified immunity gives officials “breathing room to make reasonable but mistaken judgments about open legal questions.” Ashcroft v. al-Kidd , 563 U. S. 731, 743 (2011) . The Court’s cases provide additional instruction to define and implement that immunity. Whether qualified immunity can be invoked turns on the “objective legal reasonableness” of the official’s acts. Harlow , supra , at 819. And reasonableness of official action, in turn, must be “assessed in light of the legal rules that were clearly established at the time [the action] was taken.” Anderson , supra , at 639 (internal quotation marks omitted); see also Mitchell , 472 U. S., at 528. This requirement—that an official loses qualified immunity only for violating clearly established law—protects officials accused of violating “extremely abstract rights.” Anderson , supra , at 639. The Fourth Amendment provides an example of how qualified immunity functions with respect to abstract rights. By its plain terms, the Amendment forbids unreasonable searches and seizures, yet it may be difficult for an officer to know whether a search or seizure will be deemed reasonable given the precise situation encountered. See Saucier v. Katz , 533 U. S. 194, 205 (2001) (“It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts”). For this reason, “[t]he dispositive question is ‘whether the violative nature of particular conduct is clearly established.’ ” Mullenix v. Luna , 577 U. S. ___, ___ (2015) ( per curiam ) (slip op., at 5) (quoting Ashcroft , supra , at 742). It is not necessary, of course, that “the very action in question has previously been held unlawful.” Anderson , supra , at 640. That is, an officer might lose qualified immunity even if there is no reported case “directly on point.” Ashcroft , supra , at 741. But “in the light of pre-existing law,” the unlawfulness of the officer’s conduct “must be apparent.” Anderson , supra , at 640. To subject officers to any broader liability would be to “disrupt the balance that our cases strike between the interests in vindication of citizens’ constitutional rights and in public officials’ effective performance of their duties.” Davis v. Scherer , 468 U. S. 183, 195 (1984) . For then, both as a practical and legal matter, it would be difficult for officials “reasonably [to] anticipate when their conduct may give rise to liability for damages.” Ibid. In light of these concerns, the Court has held that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs , 475 U. S. 335, 341 (1986) . To determine whether a given officer falls into either of those two categories, a court must ask whether it would have been clear to a reasonable officer that the alleged conduct “was unlawful in the situation he confronted.” Saucier , supra , at 202. If so, then the defendant officer must have been either incompetent or else a knowing violator of the law, and thus not entitled to qualified immunity. If not, however— i.e., if a reasonable officer might not have known for certain that the conduct was unlawful—then the officer is immune from liability. B Under these principles, it must be concluded that reasonable officials in petitioners’ positions would not have known, and could not have predicted, that §1985(3) prohibited their joint consultations and the resulting policies that caused the injuries alleged. At least two aspects of the complaint indicate that petitioners’ potential liability for this statutory offense would not have been known or anticipated by reasonable officials in their position. First, the conspiracy recited in the complaint is alleged to have been between or among officers in the same branch of the Government (the Executive Branch) and in the same Department (the Department of Justice). Second, the discussions were the preface to, and the outline of, a general and far-reaching policy. As to the fact that these officers were in the same Department, an analogous principle discussed in the context of antitrust law is instructive. The Court’s precedent indicates that there is no unlawful conspiracy when officers within a single corporate entity consult among themselves and then adopt a policy for the entity. See Copperweld Corp v . Independence Tube Corp. , 467 U. S. 752 ,769–771 (1984). Under this principle—sometimes called the intracorporate-conspiracy doctrine—an agreement between or among agents of the same legal entity, when the agents act in their official capacities, is not an unlawful conspiracy. Ibid. The rule is derived from the nature of the conspiracy prohibition. Conspiracy requires an agreement—and in particular an agreement to do an unlawful act—between or among two or more separate persons. When two agents of the same legal entity make an agreement in the course of their official duties, how-ever, as a practical and legal matter their acts are attributed to their principal. And it then follows that there has not been an agreement between two or more separate people. See id. , at 771 (analogizing to “a multiple team of horses drawing a vehicle under the control of a single driver”). To be sure, this Court has not given its approval to this doctrine in the specific context of §1985(3). See Great American, 442 U. S., at 372, n. 11. There is a division in the courts of appeals, moreover, respecting the validity or correctness of the intracorporate-conspiracy doctrine with reference to §1985 conspiracies. See Hull v. Shuck , 501 U. S. 1261 –1262 (1991) (White, J., dissenting from denial of certiorari) (discussing the Circuit split); Bowie v. Maddox , 642 F. 3d 1122, 1130–1131 (CADC 2011) (detailing a longstanding split about whether the intracorporate-conspiracy doctrine applies to civil rights conspiracies). Nothing in this opinion should be interpreted as either approving or disapproving the intracorporate-conspiracy doctrine’s application in the context of an alleged §1985(3) violation. The Court might determine, in some later case, that different considerations apply to a conspiracy respecting equal protection guarantees, as distinct from a conspiracy in the antitrust context. Yet the fact that the courts are divided as to whether or not a §1985(3) conspiracy can arise from official discussions between or among agents of the same entity demonstrates that the law on the point is not well established. When the courts are divided on an issue so central to the cause of action alleged, a reasonable official lacks the notice required before imposing liability. See Wilson v. Layne , 526 U. S. 603, 618 (1999) (noting that it would be “unfair” to subject officers to damages liability when even “judges . . . disagree”); Reichle v. Howards , 566 U. S. 658 –670 (2012) (same). In addition to the concern that agents of the same legal entity are not distinct enough to conspire with one another, there are other sound reasons to conclude that conver-sations and agreements between and among federal officials in the same Department should not be the subject of a private cause of action for damages under §1985(3). To state a claim under §1985(3), a plaintiff must first show that the defendants conspired—that is, reached an agreement—with one another. See Carpenters , 463 U. S., at 828 (stating that the elements of a §1985(3) claim include “a conspiracy”). Thus, a §1985(3) claim against federal officials by necessity implicates the substance of their official discussions. As indicated above with respect to other claims in this suit, open discussion among federal officers is to be encouraged, so that they can reach consensus on the policies a department of the Federal Government should pursue. See supra, at 17–18. Close and frequent consultations to facilitate the adoption and implementation of policies are essential to the orderly conduct of governmental affairs. Were those discussions, and the resulting policies, to be the basis for private suits seeking damages against the officials as individuals, the result would be to chill the interchange and discourse that is necessary for the adoption and implementation of governmental policies. See Cheney , 542 U. S., at 383 (discussing the need for confidential communications among Executive Branch officials); Merrill , 443 U. S., at 360 (same). These considerations suggest that officials employed by the same governmental department do not conspire when they speak to one another and work together in their official capacities. Whether that contention should prevail need not be decided here. It suffices to say that the question is sufficiently open so that the officials in this suit could not be certain that §1985(3) was applicable to their discussions and actions. Thus, the law respondents seek to invoke cannot be clearly established. It follows that reasonable officers in petitioners’ positions would not have known with any certainty that the alleged agreements were forbidden by law. See Saucier , 533 U. S., at 202. Petitioners are entitled to qualified immunity with respect to the claims under 42 U. S. C. §1985(3). *  *  * If the facts alleged in the complaint are true, then what happened to respondents in the days following September 11 was tragic. Nothing in this opinion should be read to condone the treatment to which they contend they were subjected. The question before the Court, however, is not whether petitioners’ alleged conduct was proper, nor whether it gave decent respect to respondents’ dignity and well-being, nor whether it was in keeping with the idea of the rule of law that must inspire us even in times of crisis. Instead, the question with respect to the Bivens claims is whether to allow an action for money damages in the absence of congressional authorization. For the reasons given above, the Court answers that question in the negative as to the detention policy claims. As to the prisoner abuse claim, because the briefs have not concentrated on that issue, the Court remands to allow the Court of Appeals to consider the claim in light of the Bivens analysis set forth above. The question with respect to the §1985(3) claim is whether a reasonable officer in petitioners’ position would have known the alleged conduct was an unlawful conspiracy. For the reasons given above, the Court answers that question, too, in the negative. The judgment of the Court of Appeals is reversed as to all of the claims except the prisoner abuse claim against Warden Hasty. The judgment of the Court of Appeals with respect to that claim is vacated, and that case is remanded for further proceedings. It is so ordered. Justice Sotomayor, Justice Kagan, and Justice Gorsuch took no part in the consideration or decision of these cases. SUPREME COURT OF THE UNITED STATES _________________ Nos. 15–1358, 15–1359 and 15–1363 _________________ JAMES W. ZIGLAR, PETITIONER 15–1358 v. AHMER IQBAL ABBASI, et al. JOHN D. ASHCROFT, FORMER ATTORNEYGENERAL, et al., PETITIONERS 15–1359 v. AHMER IQBAL ABBASI, et al. DENNIS HASTY, et al., PETITIONERS 15–1363 v. AHMER IQBAL ABBASI, et al. on writs of certiorari to the united states court of appeals for the second circuit [June 19, 2017] Justice Thomas, concurring in part and concurring in the judgment. I join the Court’s opinion except for Part IV–B. I write separately to express my view on the Court’s decision to remand some of respondents’ claims under Bivens v. Six Unknown Fed. Narcotics Agents , 403 U. S. 388 (1971) , and my concerns about our qualified immunity precedents. I With respect to respondents’ Bivens claims, I join the opinion of the Court to the extent it reverses the Second Circuit’s ruling. The Court correctly applies our precedents to hold that Bivens does not supply a cause of action against petitioners for most of the alleged Fourth and Fifth Amendment violations. It also correctly recognizes that respondents’ claims against petitioner Dennis Hasty seek to extend Bivens to a new context. See ante, at 24. I concur in the judgment of the Court vacating the Court of Appeals’ judgment with regard to claims against Hasty. Ante, at 29. I have previously noted that “ ‘ Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action.’ ” Wilkie v. Robbins , 551 U. S. 537, 568 (2007) (concurring opinion) (quoting Correctional Services Corp. v. Malesko , 534 U. S. 61, 75 (2001) (Scalia, J., concurring)). I have thus declined to “extend Bivens even [where] its reasoning logically applied,” thereby limiting “Bivens and its progeny . . . to the precise circumstances that they involved.” Ibid. (internal quotation marks omitted). This would, in most cases, mean a reversal of the judgment of the Court of Appeals is in order. However, in order for there to be a controlling judgment in this suit, I concur in the judgment vacating and remanding the claims against petitioner Hasty as that disposition is closest to my preferred approach. II As for respondents’ claims under 42 U. S. C. §1985(3),I join Part V of the Court’s opinion, which holds thatrespondents are entitled to qualified immunity. TheCourt correctly applies our precedents, which no party has asked us to reconsider. I write separately, however, to note my growing concern with our qualified immunity jurisprudence. The Civil Rights Act of 1871, of which §1985(3) and the more frequently litigated §1983 were originally a part, established causes of action for plaintiffs to seek money damages from Government officers who violated federal law. See §§1, 2, 17Stat. 13. Although the Act made no mention of defenses or immunities, “we have read it in harmony with general principles of tort immunities and defenses rather than in derogation of them.” Malley v. Briggs , 475 U. S. 335, 339 (1986) (internal quotation marks omitted). We have done so because “[c]ertain immunities were so well established in 1871 . . . that ‘we presume that Congress would have specifically so provided had it wished to abolish’ them.” Buckley v. Fitzsimmons , 509 U. S. 259, 268 (1993) ; accord, Briscoe v. LaHue , 460 U. S. 325, 330 (1983) . Immunity is thus available under the statute if it was “historically accorded the relevant official” in an analogous situation “at common law,” Imbler v. Pachtman , 424 U. S. 409, 421 (1976) , unless the statute provides some reason to think that Congress did not preserve the defense, see Tower v. Glover , 467 U. S. 914, 920 (1984) . In some contexts, we have conducted the common-law inquiry that the statute requires. See Wyatt v. Cole , 504 U. S. 158, 170 (1992) (Kennedy, J., concurring). For example, we have concluded that legislators and judges are absolutely immune from liability under §1983 for their official acts because that immunity was well established at common law in 1871. See Tenney v. Brandhove , 341 U. S. 367 –376 (1951) (legislators); Pierson v. Ray , 386 U. S. 547 –555 (1967) (judges). We have similarly looked to the common law in holding that a prosecutor is immune from suits relating to the “judicial phase of the criminal process,” Imbler , supra , at 430; Burns v. Reed , 500 U. S. 478 –492 (1991); but see Kalina v. Fletcher , 522 U. S. 118 –134 (1997) (Scalia, J., joined by Thomas, J., concurring) (arguing that the Court in Imbler misunderstood 1871 common-law rules), although not from suits relating to the prosecutor’s advice to police officers, Burns , supra , at 493. In developing immunity doctrine for other executive officers, we also started off by applying common-law rules. In Pierson , we held that police officers are not absolutely immune from a §1983 claim arising from an arrest made pursuant to an unconstitutional statute because the common law never granted arresting officers that sort of immunity. 386 U. S., at 555. Rather, we concluded that police officers could assert “the defense of good faith and probable cause” against the claim for an unconstitutional arrest because that defense was available against the analogous torts of “false arrest and imprisonment” at common law. Id. , at 557. In further elaborating the doctrine of qualified immun-ity for executive officials, however, we have diverged from the historical inquiry mandated by the statute. See Wyatt , supra , at 170 (Kennedy, J., concurring); accord, Crawford-El v. Britton , 523 U. S. 574, 611 (1998) (Scalia, J.,joined by Thomas, J., dissenting). In the decisions following Pierson , we have “completely reformulated qualified immunity along principles not at all embodied in the common law.” Anderson v. Creighton , 483 U. S. 635, 645 (1987) (discussing Harlow v. Fitzgerald , 457 U. S. 800 (1982) ). Instead of asking whether the common law in 1871 would have accorded immunity to an officer for a tort analogous to the plaintiff’s claim under §1983, we instead grant immunity to any officer whose conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Mullenix v. Luna , 577 U. S. ___, ___–___ (2015) ( per cu-riam ) (slip op., at 4–5) (internal quotation marks omitted); Taylor v. Barkes , 575 U. S. ___, ___ (2015) (slip op., at 4) (a Government official is liable under the 1871 Act only if “ ‘existing precedent . . . placed the statutory or constitutional question beyond debate’ ” (quoting Ashcroft v. al-Kidd , 563 U. S. 731, 741 (2011) )). We apply this “clearly established” standard “across the board” and without regard to “the precise nature of the various officials’ duties or the precise character of the particular rights alleged to have been violated.” Anderson , supra , at 641–643 (internal quotation marks omitted).[ 1 ] We have not attempted to locate that standard in the common law as it existed in 1871, however, and some evidence supports the conclusion that common-law immunity as it existed in 1871 looked quite different from our current doctrine. See generally Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. (forthcoming 2018) (manuscript, at 7–17), online at https://papers.ssrn.com/abstract=2896508 (as last visited June 15, 2017). Because our analysis is no longer grounded in thecommon-law backdrop against which Congress enacted the1871 Act, we are no longer engaged in “interpret[ing] the intent of Congress in enacting” the Act. Malley , supra , at 342; see Burns , supra , at 493. Our qualified immunity precedents instead represent precisely the sort of “freewheeling policy choice[s]” that we have previously disclaimed the power to make. Rehberg v. Paulk , 566 U. S. 356, 363 (2012) (internal quotation marks omitted); see also Tower , supra, at 922–923 (“We do not have a license to establish immunities from” suits brought under the Act “in the interests of what we judge to be sound public pol-icy”). We have acknowledged, in fact, that the “clearly established” standard is designed to “protec[t] the balance between vindication of constitutional rights and government officials’ effective performance of their duties.” Reichle v. Howards , 566 U. S. 658, 664 (2012) (internal quotation marks omitted); Harlow , supra , at 807 (explaining that “the recognition of a qualified immunity defense . . . reflected an attempt to balance competing values”). The Constitution assigns this kind of balancing to Congress, not the Courts. In today’s decision, we continue down the path our precedents have marked. We ask “whether it would have been clear to a reasonable officer that the alleged conduct was unlawful in the situation he confronted,” ante, at 29 (internal quotation marks omitted), rather than whether officers in petitioners’ positions would have been accorded immunity at common law in 1871 from claims analogous to respondents’. Even if we ultimately reach a conclusion consistent with the common-law rules prevailing in 1871, it is mere fortuity. Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress. In an appropriate case, we should reconsider our qualified immunity jurisprudence. Notes 1 Although we first formulated the “clearly established” standard in Bivens cases like Harlow and Anderson , we have imported that standard directly into our 1871 Act cases. See, e.g., Pearson v. Callahan , 555 U. S. 223 –244 (2009) (applying the clearly established standard to a §1983 claim). SUPREME COURT OF THE UNITED STATES _________________ Nos. 15–1358, 15–1359 and 15–1363 _________________ JAMES W. ZIGLAR, PETITIONER 15–1358 v. AHMER IQBAL ABBASI, et al. JOHN D. ASHCROFT, FORMER ATTORNEYGENERAL, et al., PETITIONERS 15–1359 v. AHMER IQBAL ABBASI, et al. DENNIS HASTY, et al., PETITIONERS 15–1363 v. AHMER IQBAL ABBASI, et al. on writs of certiorari to the united states court of appeals for the second circuit [June 19, 2017] Justice Breyer, with whom Justice Ginsburg joins, dissenting. In Bivens v. Six Unknown Fed. Narcotics Agents , 403 U. S. 388 (1971 ) , this Court held that the Fourth Amendment provides a damages remedy for those whom federal officials have injured as a result of an unconstitutional search or seizure. In Davis v. Passman , 442 U. S. 228 (1979) , the Court held that the Fifth Amendment provides a damages remedy to an individual dismissed by her employer (a Member of Congress) on the basis of her sex in violation of the equal protection component of that Amendment’s Due Process Clause. And in Carlson v. Green , 446 U. S. 14 (1980) , the Court held that the Eighth Amendment provides a damages remedy to a prisoner who died as a result of prison official’s deliberate indifference to his medical needs, in violation of the Amendment’s prohibition against cruel and unusual punishment. It is by now well established that federal law provides damages actions at least in similar contexts, where claims of constitutional violation arise. Congress has ratified Bivens actions, plaintiffs frequently bring them, courts accept them, and scholars defend their importance. See J. Pfander, Constitutional Torts and the War on Terror (2017) (canvassing the history of Bivens and cataloguing cases). Moreover, the courts, in order to avoid deterring federal officials from properly performing their work, have developed safeguards for defendants, including the requirement that plaintiffs plead “plausible” claims, Ashcroft v. Iqbal , 556 U. S. 662, 679 (2009) , as well as the defense of “qualified immunity,” which frees federal officials from both threat of liability and involvement in the lawsuit, unless the plaintiffs establish that officials have violated “ ‘clearly established . . . constitutional rights,’ ” id., at 672 (quoting Harlow v. Fitzgerald , 457 U. S. 800, 818 (1982) ). “[This] Court has been reluctant to extend Bivens liability ‘to any new context or new category of defendants.’ ” Iqbal , supra , at 675 (quoting Correctional Services Corp. v. Malesko , 534 U. S. 61, 68 (2001) ). But the Court has made clear that it would not narrow Bivens’ existing scope. See FDIC v. Meyer , 510 U. S. 471, 485 (1994) (guarding against “the evisceration of the Bivens remedy” so that its “deterrent effects . . . would [not] be lost”). The plaintiffs before us today seek damages for unconstitutional conditions of confinement. They alleged that federal officials slammed them against walls, shackled them, exposed them to nonstop lighting, lack of hygiene, and the like, all based upon invidious discrimination and without penological justification. See ante , at 4–5. In my view, these claims are well-pleaded, state violations of clearly established law, and fall within the scope of longstanding Bivens law. For those reasons, I would affirm the judgment of the Court of Appeals. I shall discuss at some length what I believe is the most important point of disagreement. The Court, in my view, is wrong to hold that permitting a constitutional tort action here would “extend” Bivens , applying it in a new context. To the contrary, I fear that the Court’s holding would significantly shrink the existing Bivens contexts, diminishing the compensatory remedy constitutional tort law now offers to harmed individuals. I shall explain why I believe this suit falls well within the scope of traditional constitutional tort law and why I cannot agree with the Court’s arguments to the contrary. I recognize, and write separately about, the strongest of the Court’s arguments, namely, the fact that plaintiffs’ claims concern detention that took place soon after a serious attack on the United States and some of them concern actions of high-level Government officials. While these facts may affect the substantive constitutional questions ( e.g. , were any of the conditions “legitimate”?) or the scope of the qualified-immunity defense, they do not extinguish the Bivens action itself. If I may paraphrase Justice Harlan, concurring in Bivens : In wartime as well as in peacetime, “it is important, in a civilized society, that the judicial branch of the Nation’s government stand ready to afford a remedy” “for the most flagrant and pat-ently unjustified,” unconstitutional “abuses of official power.” 403 U. S., at 410–411 (opinion concurring in judgment); cf. Boumediene v. Bush , 553 U. S. 723, 798 (2008) . I The majority opinion well summarizes the particular claims that the plaintiffs make in this suit. All concern the conditions of their confinement, which began soon after the September 11, 2001, attacks and “lasted for days and weeks, then stretching into months.” Ante, at 1. At some point, the plaintiffs allege, all the defendants knew that they had nothing to do with the September 11 attacks but continued to detain them anyway in harsh conditions. Official Government policy, both before and after the defendants became aware of the plaintiffs’ innocence, led to the plaintiffs being held in “tiny cells for over 23 hours a day” with lights continuously left on, “shackled” when moved, often “strip searched,” and “denied access to most forms of communication with the outside world.” Ante, at 4 (internal quotation marks omitted). The defendants detained the plaintiffs in these conditions on the basis of their race or religion and without justification. Moreover, the prison wardens were aware of, but deliberately indifferent to, certain unofficial activities of prison guards involving a pattern of “physical and verbal abuse,” such as “slam[ming] detainees into walls; twist[ing] their arms, wrists, and fingers; [breaking] their bones;” and subjecting them to verbal taunts. Ibid. (internal quotation marks omitted). The plaintiffs’ complaint alleges that all the defendants—high-level Department of Justice officials and prison wardens alike—were directly responsible for the official confinement policy, which, in some or all of the aspects mentioned, violated the due process and equal protection components of the Fifth Amendment. The complaint adds that, insofar as the prison wardens were deliberately indifferent to the unofficial conduct of the guards, they violated the Fourth and the Fifth Amendments. I would hold that the complaint properly alleges constitutional torts, i.e., Bivens actions for damages. A The Court’s holdings in Bivens , Carlson , and Davis rest upon four basic legal considerations. First, the Bivens Court referred to longstanding Supreme Court precedent stating or suggesting that the Constitution provides fed-eral courts with considerable legal authority to use traditional remedies to right constitutional wrongs. That precedent begins with Marbury v. Madison , 1 Cranch 137 (1803) , which effectively placed upon those who would deny the existence of an effective legal remedy the burden of showing why their case was special. Chief Justice John Marshall wrote for the Court that “[t]he very essence of civil liberty [lies] in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Id. , at 163. The Chief Justice referred to Blackstone’s Commentaries stating that there “ ‘is a general and indisputable rule, that where there is a legal right, there is also a legal remedy . . . [and that] it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.’ ” 1 Cranch, at 163. The Chief Justice then wrote: “The government of the United States has been emphatically termed a government of laws, and not of men. It will [not] deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Ibid. He concluded for the Court that there must be something “peculiar” ( i.e., special) about a case that warrants “exclu[ding] the injured party from legal redress . . . [and placing it within] that class of cases which come under the description of damnum absque injuria— a loss without an injury.” Id., at 163–164; but cf. id., at 164 (placing “political” questions in the latter, special category). Much later, in Bell v. Hood , 327 U. S. 678, 684 (1946) , the Court wrote that, “where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.” See also Bivens , 403 U. S., at 392 (citing opinions of Justices Cardozo and Holmes to similar effect). The Bivens Court reiterated these principles and confirmed that the appropriate remedial “adjust[ment]” in the case before it was an award of money damages, the “remedial mechanism normally available in the federal courts.” Id., at 392, 397. Justice Harlan agreed, adding that, since Congress’ “general” statutory “grant of jurisdiction” authorized courts to grant equitable relief in cases arising under federal jurisdiction, courts likewise had the author-ity to award damages—the “traditional remedy at law”—in order to “vindicate the interests of the individual” protected by the Bill of Rights. Id., at 405–407 (opinion concur-ring in judgment). Second, our cases have recognized that Congress’ silence on the subject indicates a willingness to leave this matter to the courts. In Bivens , the Court noted, as an argument favoring its conclusion, the absence of an “explicit congressional declaration that persons injured by a federal officer’s violation of the Fourth Amendment may not recover money damages from the agents.” Id., at 397. Similarly, in Davis v. Passman, the Court stressed that there was “no evidence . . . that Congress meant . . . to foreclose” a damages remedy. 442 U. S., at 247. In Carlson , the Court went further, observing that not only was there no sign “that Congress meant to pre-empt a Bivens remedy,” but there was also “clear” evidence that Congress intended to preserve it. 446 U. S., at 19–20. Third, our Bivens cases acknowledge that a constitutional tort may not lie when “special factors counse[l] hesitation” and when Congress has provided an adequate alternative remedy. 446 U. S., at 18–19. The relevant special factors in those cases included whether the court was faced “with a question of ‘federal fiscal policy,’ ” Bivens , supra, at 396, or a risk of “deluging federal courts with claims,” Davis , supra , at 248 (internal quotation marks omitted). Carlson acknowledged an additional factor—that damages suits “might inhibit [federal officials’] efforts to perform their official duties”—but concluded that “the qualified immunity accorded [federal officials] under [existing law] provides adequate protection.” 446 U. S., at 19. Fourth, as the Court recognized later in Carlson , a Bivens remedy was needed to cure what would, without it, amount to a constitutional anomaly. Long before this Court incorporated many of the Bill of Rights’ guarantees against the States, see Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L. J. 1193 (1992), federal civil rights statutes afforded a damages remedy to any person whom a state official deprived of a federal constitutional right, see 42 U. S. C. §1983; Monroe v. Pape , 365 U. S. 167 –187 (1961) (describing this history). But federal statutory law did not provide a damages remedy to a person whom a federal official had deprived of that same right, even though the Bill of Rights was at the time of the founding primarily aimed at constraining the Federal Government. Thus, a person harmed by an unconstitutional search or seizure might sue a city mayor, a state legislator, or even a Governor. But that person could not sue a federal agent, a national legislator, or a Justice Department official for an identical offense. “[Our] ‘constitutional design,’ ” the Court wrote, “would be stood on its head if federal officials did not face at least the same liability as state officials guilty of the same constitutional transgression.” Carlson , supra, at 22 (quoting Butz v. Economou , 438 U. S. 478, 504 (1978) ). The Bivens Court also recognized that the Court had previously inferred damages remedies caused by violations of certain federal statutes that themselves did not explic-itly authorize damages remedies. 403 U. S., at 395–396. At the same time, Bivens, Davis, and Carlson treat the courts’ power to derive a damages remedy from a constitutional provision not as included within a power to find a statute-based damages remedy but as flowing from those statutory cases a fortiori. As the majority opinion points out, this Court in more recent years has indicated that “ expanding the Bivens remedy is now a ‘ disfavored’ judicial activity.” Ante, at 11 (quoting Iqbal , 556 U. S., at 675; emphasis added). Thus, it has held that the remedy is not available in the context of suits against military officers, see Chappell v. Wallace , 462 U. S. 296 –300 (1983); United States v. Stanley , 483 U. S. 669 –684 (1987); in the context of suits against privately operated prisons and their employees, see Minneci v. Pollard , 565 U. S. 118, 120 (2012) ; Malesko , 534 U. S., at 70–73; in the context of suits seeking to vindicate procedural, rather than substantive, constitutional protections, see Schweiker v. Chilicky , 487 U. S. 412, 423 (1988) ; and in the context of suits seeking to vindicate two quite different forms of important substantive protection, one involving free speech, see Bush v. Lucas , 462 U. S. 367, 368 (1983) , and the other involving protection of land rights, see Wilkie v. Robbins , 551 U. S. 537, 551 (2007) . Each of these cases involved a context that differed from that of Bivens, Davis , and Carlson with respect to the kind of defendant, the basic nature of the right, or the kind of harm suffered. That is to say, as we have explicitly stated, these cases were “ fundamentally different from anything recognized in Bivens or subsequent cases.” Malesko , supra , at 70 (emphasis added). In each of them, the plaintiffs were asking the Court to “ ‘authoriz[e] a new kind of federal litigation.’ ” Wilkie , supra , at 550 (emphasis added). Thus the Court, as the majority opinion says, repeatedly wrote that it was not “expanding” the scope of the Bivens remedy. Ante, at 11. But the Court nowhere suggested that it would narrow Bivens ’ existing scope. In fact, to diminish any ambiguity about its holdings, the Court set out a framework for determining whether a claim of constitutional violation calls for a Bivens remedy. See Wilkie , supra , at 549–550. At Step One, the court must determine whether the case before it arises in a “new context,” that is, whether it involves a “new category of defendants,” Malesko , supra , at 68, or (presumably) a significantly different kind of constitutional harm, such as a purely procedural harm, a harm to speech, or a harm caused to physical property. If the context is new , then the court proceeds to Step Two and asks “whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Wilkie, 551 U. S., at 550. If there is none, then the court proceeds to Step Three and asks whether there are “ ‘any special factors counselling hesitation before authorizing a new kind of federal litigation.’ ” Ibid . Precedent makes this framework applicable here. I would apply it. And, doing so, I cannot get past Step One. This suit, it seems to me, arises in a context similar to those in which this Court has previously permitted Bivens actions. B 1 The context here is not “new,” Wilkie , supra , at 550, or “fundamentally different” than our previous Bivens cases, Malesko , supra , at 70. First, the plaintiffs are civilians, not members of the military. They are not citizens, but the Constitution protects noncitizens against serious mistreatment, as it protects citizens. See United States v. Verdugo-Urquidez , 494 U. S. 259, 271 (1990) (“[A]liens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country”). Some or all of the plaintiffs here may have been illegally present in the United States. But that fact cannot justify physical mistreatment. Nor does anyone claim that that fact deprives them of a Bivens right available to other persons, citizens and noncitizens alike. Second, the defendants are Government officials. They are not members of the military or private persons. Two are prison wardens. Three others are high-ranking Department of Justice officials. Prison wardens have been defendants in Bivens actions, as have other high-level Government officials. One of the defendants in Carlson was the Director of the Bureau of Prisons; the defendant in Davis was a Member of Congress. We have also held that the Attorney General of the United States is not entitled to absolute immunity in a damages suit arising out of his actions related to national security. See Mitchell v. Forsyth , 472 U. S. 511, 520 (1985) . Third, from a Bivens perspective, the injuries that the plaintiffs claim they suffered are familiar ones. They focus upon the conditions of confinement. The plaintiffs say that they were unnecessarily shackled, confined in small unhygienic cells, subjected to continuous lighting (presumably preventing sleep), unnecessarily and frequently strip searched, slammed against walls, injured physically, and subject to verbal abuse. They allege that they suffered these harms because of their race or religion, the defendants having either turned a blind eye to what was happening or themselves introduced policies that they knew would lead to these harms even though the defendants knew the plaintiffs had no connections to terrorism. These claimed harms are similar to, or even worse than, the harms the plaintiffs suffered in Bivens (unreasonable search and seizure in violation of the Fourth Amendment), Davis (unlawful discrimination in violation of the Fifth Amendment), and Carlson (deliberate indifference to medical need in violation of the Eighth Amendment).  Indeed, we have said that, “[i]f a federal prisoner in a [Bureau of Prisons] facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity.” Malesko , 534 U. S., at 72; see also Farmer v. Brennan , 511 U. S. 825, 832 (1994) ( Bivens case about prisoner abuse). The claims in this suit would seem to fill the Bivens’ bill. See Sell v. United States , 539 U. S. 166, 193 (2003) (Scalia, J., dissenting) (“[A] [ Bivens ] action . . . is available to federal pretrial detainees challenging the conditions of their confinement”). It is true that the plaintiffs bring their “deliberate indifference” claim against Warden Hasty under the Fifth Amendment’s Due Process Clause, not the Eighth Amendment’s Cruel and Unusual Punishment Clause, as in Carlson . But that is because the latter applies to convicted criminals while the former applies to pretrial and immigration detainees. Where the harm is the same, where this Court has held that both the Fifth and Eighth Amendments give rise to Bivens’ remedies, and where the only difference in constitutional scope consists of a circumstance (the absence of a conviction) that makes the violation here worse, it cannot be maintained that the difference between the use of the two Amendments is “fundamental.” See City of Revere v. Massachusetts Gen. Hospital , 463 U. S. 239, 244 (1983) (“due process rights” of an unconvicted person “are at least as great as the Eighth Amendment protections available to a convicted pris-oner”); Kingsley v. Hendrickson , 576 U. S. ___, ___–___ (2015) (slip op., at 10–11) (“pretrial detainees (unlike convicted prisoners) cannot be punished at all”); Zadvydas v. Davis , 533 U. S. 678, 721 (2001) (Kennedy, J., dissenting) (detention “incident to removal . . . cannot be justified as punishment nor can the confinement or its conditions be designed in order to punish”). See also Bistrian v. Levi , 696 F. 3d 352, 372 (CA3 2012) (permitting Bivens action brought by detainee in administrative segregation); Thomas v. Ashcroft , 470 F. 3d 491, 493, 496–497 (CA2 2006) (detainee alleging failure to provide adequate medical care); Magluta v. Samples , 375 F. 3d 1269, 1271, 1275–1276 (CA11 2004) (detainee in solitary confinement); Papa v. United States , 281 F. 3d 1004, 1010–1011 (CA9 2002) (due process claims arising from death of immigration detainee); Loe v. Armistead , 582 F. 2d 1291, 1293–1296 (CA4 1978) (detainee’s claim of deliberate indifference to medical need). If an arrestee can bring a claim of excessive force ( Bivens itself), and a convicted prisoner can bring a claim for denying medical care ( Carlson ), someone who has neither been charged nor convicted with a crime should also be able to challenge abuse that causes him to need medical care. Nor has Congress suggested that it wants to withdraw a damages remedy in circumstances like these. By its express terms, the Prison Litigation Reform Act of 1995 (PLRA) does not apply to immigration detainees. See 42 U. S. C. §1997e(h) (“[T]he term ‘prisoner’ means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law . . . ”); see also Agyeman v. INS , 296 F. 3d 871, 886 (CA9 2002) (“[W]e hold that an alien detained by the INS pending deportation is not a ‘prisoner’ within the meaning of the PLRA”); LaFontant v. INS , 135 F. 3d 158, 165 (CADC 1998) (same); Ojo v. INS , 106 F. 3d 680, 683 (CA5 1997) (same). And, in fact, there is strong evidence that Congress assumed that Bivens remedies would be available to prisoners when it enacted the PLRA— e.g. , Congress continued to permit prisoners to recover for physical injuries, the typical kinds of Bivens injuries. See 28 U. S. C. §1346(b)(2); Pfander, Constitutional Torts, at 105–106. If there were any lingering doubt that the claim against Warden Hasty arises in a familiar Bivens context, the Court has made clear that conditions-of-confinement claims and medical-care claims are subject to the same substantive standard. See Hudson v. McMillian , 503 U. S. 1, 8 (1992) (“[ Wilson v. Seiter , 501 U. S. 294, 303 (1991) ] extended the deliberate indifference standard applied to Eighth Amendment claims involving medical care to claims about conditions of confinement”). Indeed, the Court made this very point in a Bivens case alleging that prison wardens were deliberately indifferent to an inmate’s safety. See Farmer, supra , at 830, 834. I recognize that the Court finds a significant difference in the fact that the confinement here arose soon after a national-security emergency, namely, the September 11 attacks. The short answer to this argument, in respect to at least some of the claimed harms, is that some plaintiffs continued to suffer those harms up to eight months after the September 11 attacks took place and after the defendants knew the plaintiffs had no connection to terrorism. See App. to Pet. for Cert. in No. 15–1359, p. 280a. But because I believe the Court’s argument here is its strongest, I will consider it at greater length below. See Part III–C, infra. Because the context here is not new, I would allow the plaintiffs’ constitutional claims to proceed. The plaintiffs have adequately alleged that the defendants were personally involved in imposing the conditions of confinement and did so with knowledge that the plaintiffs bore no ties to terrorism, thus satisfying Iqbal ’s pleading standard. See 556 U. S., at 679 (claims must be “plausible”); see also id., at 699–700 (Breyer, J., dissenting). And because it is clearly established that it is unconstitutional to subject detainees to punitive conditions of confinement and to target them based solely on their race, religion, or national origin, the defendants are not entitled to qualified immunity on the constitutional claims. See Bell v. Wolfish , 441 U. S. 520 –539, and n. 20 (1979); Davis , 442 U. S., at 236 (“It is equally clear . . . that the Fifth Amendment confers on petitioner a constitutional right to be free from illegal discrimination”). (Similarly, I would affirm the judgment of the Court of Appeals with respect to the plaintiffs’ statutory claim, namely, that the defendants conspired to deprive the plaintiffs of equal protection of the laws in violation of 42 U. S. C. §1985(3). See Turkmen v. Hasty , 789 F. 3d 218, 262–264 (CA2 2015). I agree with the Court of Appeals that the defendants are not entitled to qualified immunity on this claim. See ibid. ) 2 Even were I wrong and were the context here “fundamentally different,” Malesko , 534 U. S., at 70, the plaintiffs’ claims would nonetheless survive Step Two and Step Three of the Court’s framework for determining whether Bivens applies, see supra , at 9. Step Two consists of asking whether “any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Wilkie, 551 U. S., at 550. I can find no such “alternative, existing process” here. The Court does not claim that the PLRA provides plaintiffs with a remedy. Ante, at 25–26. Rather, it says that the plaintiffs may have “had available to them” relief in the form of a prospective injunction or an application for a writ of habeas corpus. Ante, at 22. Neither a prospective injunction nor a writ of habeas corpus, however, will normally provide plaintiffs with redress for harms they have already suffered. And here plaintiffs make a strong claim that neither was available to them—at least not for a considerable time. Some of the plaintiffs allege that for two or three months they were subject to a “communications blackout”; that the prison “staff did not permit them visitors, legal or social telephone calls, or mail”; that their families and attorneys did not know where they were being held; that they could not receive visits from their attorneys; that subsequently their lawyers could call them only once a week; and that some or all of the defendants “interfered with the detainees’ effective access to legal counsel.” Office of Inspector General (OIG) Report, App. 223, 293, 251, 391; see App. to Pet. for Cert. in No. 15–1359, at 253a (incorporating the OIG report into the complaint). These claims make it virtually impossible to say that here there is an “elaborate, comprehensive” alternative remedial scheme similar to schemes that, in the past, we have found block the application of Bivens to new contexts. Bush , 462 U. S., at 385. If these allegations are proved, then in this suit, it is “damages or noth-ing.” Bivens , 403 U. S., at 410 (Harlan, J., concurring in judgment). There being no “alternative, existing process” that provides a “convincing reason” for not applying Bivens, we must proceed to Step Three. Wilkie , supra , at 550 . Doing so, I can find no “special factors [that] counse[l] hesitation before authorizing” this Bivens action. 551 U. S., at 550. I turn to this matter next. II A The Court describes two general considerations that it believes argue against an “extension” of Bivens. First, the majority opinion points out that the Court is now far less likely than at the time it decided Bivens to imply a cause of action for damages from a statute that does not explicitly provide for a damages claim. See ante, at 8–9. Second, it finds the “silence” of Congress “notable” in that Congress, though likely aware of the “high-level policies” involved in this suit, did not “choose to extend to any person the kind of remedies” that the plaintiffs here “seek.” Ante, at 20–21 (internal quotation marks omitted). I doubt the strength of these two general considerations. The first consideration, in my view, is not relevant. I concede that the majority and concurring opinions in Bivens looked in part for support to the fact that the Court had implied damages remedies from statutes silent on the subject. See 403 U. S., at 397; id., at 402–403 (Harlan, J., concurring in judgment). But that was not the main argument favoring the Court’s conclusion. Rather, the Court drew far stronger support from the need for such a remedy when measured against a common-law and constitutional history of allowing traditional legal remedies where necessary. Id., at 392, 396–397. The Court believed such a remedy was necessary to make effective the Constitution’s protection of certain basic individual rights. See id., at 392; id., at 407 (opinion of Harlan, J.). Simi-larly, as the Court later explained, a damages remedy against federal officials prevented the serious legal anomaly I previously mentioned. Its existence made basic constitutional protections of the individual against Federal Government abuse (the Bill of Rights’ pre-Civil War objective) as effective as protections against abuse by state officials (the post-Civil War, post selective-incorporation objective). See supra, at 7 . Nor is the second circumstance—congressional silence—relevant in the manner that the majority opinion describes. The Court initially saw that silence as indicating an absence of congressional hostility to the Court’s exercise of its traditional remedy-inferring powers. See Bivens , supra, at 397; Davis, 442 U. S., at 246–247. Congress’ subsequent silence contains strong signs that it accepted Bivens actions as part of the law. After all, Congress rejected a proposal that would have eliminated Bivens by substituting the U. S. Government as a defendant in suits against federal officers that raised constitutional claims. See Pfander, Constitutional Torts, at 102. Later, Congress expressly immunized federal employees acting in the course of their official duties from tort claims except those premised on violations of the Constitution. See Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act, 28 U. S. C. §2679(b)(2)(A). We stated that it is consequently “crystal clear that Congress views [the Federal Tort Claims Act] and Bivens as [providing] parallel, complementary causes of action.” Carlson , 446 U. S., at 20; see Malesko , 534 U. S., at 68 (similar). Congress has even assumed the existence of a Bivens remedy in suits brought by noncitizen detainees suspected of terrorism. See 42 U. S. C. §2000dd–1 (granting qualified immunity—but not absolute immunity—to military and civilian federal officials who are sued by alien detainees suspected of terrorism). B The majority opinion also sets forth a more specific list of factors that it says bear on “whether a case presents a new Bivens context.” Ante, at 16. In the Court’s view, a “case might differ” from Bivens “in a meaningful way because of [1] the rank of the officers involved; [2] the constitutional right at issue; [3] the generality or specifi-city of the individual action; [4] the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; [5] the statutory or other legal mandate under which the officer was operating; [6] the risk of disruptive intrusion by the Judiciary into the functioning of other branches; [7] or the presence of potential special factors that previous Bivens cases did not con-sider.” Ante, at 16. In my view, these factors do not make a “meaningful difference” at Step One of the Bivens framework. Some of them are better cast as “special factors” relevant to Step Three. But, as I see it, none should normally foreclose a Bivens action and none is determinative here. Consider them one by one: (1) The rank of the officers. I can understand why an officer’s rank might bear on whether he violated the Constitution, because, for example, a plaintiff might need to show the officer was willfully blind to a harm caused by lower ranking officers or that the officer had actual knowledge of the misconduct. And I can understand that rank might relate to the existence of a legal defense, such as qualified, or even absolute, immunity. But if —and I recognize that this is often a very big if—a plaintiff proves a clear constitutional violation, say, of the Fourth Amendment, and he shows that the defendant does not possess any form of immunity or other defense, then why should he not have a damages remedy for harm suffered? What does rank have to do with that question , namely, the Bivens question? Why should the law treat differently a high-level official and the local constable where each has similarly violated the Constitution and where neither can successfully assert immunity or any other defense? (2) The constitutional right at issue. I agree that this factor can make a difference, but only when the substance of the right is distinct. See, e.g., Wilkie , 551 U. S. 537 (land rights). But, for reasons I have already pointed out, there is no relevant difference between the rights at issue here and the rights at issue in our previous Bivens cases, namely, the rights to be free of unreasonable searches, invidious discrimination, and physical abuse in federal custody. See supra, at 10–11. (3) The generality or specificity of the individual action. I should think that it is not the “generality or specificity” of an official action but rather the nature of the official action that matters. Bivens should apply to some generally applicable actions, such as actions taken deliberately to jail a large group of known-innocent people. And it should not apply to some highly specific actions, depending upon the nature of those actions. (4) The extent of judicial guidance. This factor may be relevant to the existence of a constitutional violation or a qualified-immunity defense. Where judicial guidance is lacking, it is more likely that a constitutional violation is not clearly established. See Anderson v. Creighton , 483 U. S. 635, 640 (1987) (Officials are protected by qualified immunity unless “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right”). But I do not see how, assuming the violation is clear, the presence or absence of “judicial guidance” is relevant to the existence of a damages remedy. (5) The statutory (or other) legal mandate under which the officer was operating. This factor too may prove relevant to the question whether a constitutional violation exists or is clearly established. But, again, assuming that it is, I do not understand why this factor is relevant to the existence of a damages remedy. See Stanley , 483 U. S., at 684 (the question of immunity is “analytically distinct” from the question whether a Bivens action should lie). (6) Risk of disruptive judicial intrusion. All damages actions risk disrupting to some degree future decisionmaking by members of the Executive or Legislative Branches. Where this Court has authorized Bivens actions, it has found that disruption tolerable, and it has explained why disruption is, from a constitutional perspective, desirable. See Davis , 442 U. S., at 242 (Unless constitutional rights “are to become merely precatory, . . . litigants who allege that their own constitutional rights have been violated, and who at the same time have no effective means other than the judiciary to enforce these rights, must be able to invoke the existing jurisdiction of the courts for . . . protection”); Malesko , supra , at 70 (“The purpose of Bivens is to deter individual federal officers from committing constitutional violations”). Insofar as the Court means this consideration to provide a reason why there should be no Bivens action where a Government employee acts in time of security need, I shall discuss the matter next, in Part C . (7) Other potential special factors. Since I am not certain what these other “potential factors” are and, since the Court does not specify their nature, I would not, and the Court cannot, consider them in differentiating this suit from our previous Bivens cases or as militating against recognizing a Bivens action here. C In my view, the Court’s strongest argument is that Bivens should not apply to policy-related actions taken in times of national-security need, for example, during war or national-security emergency. As the Court correctly points out, the Constitution grants primary power to protect the Nation’s security to the Executive and Legislative Branches, not to the Judiciary. But the Constitution also delegates to the Judiciary the duty to protect an individual’s fundamental constitutional rights. Hence when protection of those rights and a determination of security needs conflict, the Court has a role to play. The Court most recently made this clear in cases arising out of the detention of enemy combatants at Guantanamo Bay. Justice O’Connor wrote that “a state of war is not a blank check.” Hamdi v. Rumsfeld , 542 U. S. 507, 536 (2004) (plurality opinion). In Boumediene , 553 U. S., at 732–733, the Court reinforced that point, holding that noncitizens detained as enemy combatants were entitled to challenge their detention through a writ of habeas corpus, notwithstanding the national-security concerns at stake. We have not, however, answered the specific question the Court places at issue here: Should Bivens actions continue to exist in respect to policy-related actions taken in time of war or national emergency? In my view, they should. For one thing, a Bivens action comes accompanied by many legal safeguards designed to prevent the courts from interfering with Executive and Legislative Branch activity reasonably believed to be necessary to protect national security. In Justice Jackson’s well-known words, the Constitution is not “a suicide pact.” Terminiello v. Chicago , 337 U. S. 1, 37 (1949) (dissenting opinion). The Consti-tution itself takes account of public necessity. Thus, for example, the Fourth Amendment does not forbid all Government searches and seizures; it forbids only those that are “unreasonable.” Ordinarily, it requires that a police officer obtain a search warrant before entering an apartment, but should the officer observe a woman being dragged against her will into that apartment, he should, and will, act at once. The Fourth Amendment makes allowances for such “exigent circumstances.” Brigham City v. Stuart , 547 U. S. 398, 401 (2006) (warrantless entry justified to forestall imminent injury). Similarly, the Fifth Amendment bars only conditions of confinement that are not “reasonably related to a legitimate governmental objective.” Bell v. Wolfish , 441 U. S., at 539. What is unreasonable and illegitimate in time of peace may be reasonable and legitimate in time of war. Moreover, Bivens comes accompanied with a qualified-immunity defense. Federal officials will face suit only if they have violated a constitutional right that was “clearly established” at the time they acted. Harlow , 457 U. S., at 818. Further, in order to prevent the very presence of a Bivens lawsuit from interfering with the work of a Government official, this Court has held that a com-plaint must state a claim for relief that is “plausible.” Iqbal , 556 U. S., at 679. “[C]onclusory” statements and “[t]hreadbare” allegations will not suffice. Id., at 678. And the Court has protected high-level officials in particular by requiring that plaintiffs plead that an official was personally involved in the unconstitutional conduct; an official cannot be vicariously liable for another’s misdeeds. Id., at 676. Finally, where such a claim is filed, courts can, and should, tailor discovery orders so that they do not unnecessarily or improperly interfere with the official’s work. The Second Circuit has emphasized the “need to vindicate the purpose of the qualified immunity defense by dismissing non-meritorious claims against public officials at an early stage of litigation.” Iqbal v. Hasty , 490 F. 3d 143, 158 (2007). Where some of the defendants are “current or former senior officials of the Government, against whom broad-ranging allegations of knowledge and personal involvement are easily made, a district court” not only “may, but ‘ must exercise its discretion in a way that protects the substance of the qualified immunity defense . . . so that’ ” those officials “ ‘are not subjected to unnecessary and burdensome discovery or trial proceedings.’ ” Id., at 158–159. The court can make “all such discovery subject to prior court approval.” Id., at 158. It can “structure . . . limited discovery by examining written responses to interrogatories and requests to admit before authorizing depositions, and by deferring discovery directed to high-level officials until discovery of front-line officials has been completed and has demonstrated the need for discovery higher up the ranks.” Ibid. In a word, a trial court can and should so structure the proceedings with full recognition that qualified immunity amounts to immunity from suit as well as immunity from liability. Given these safeguards against undue interference by the Judiciary in times of war or national-security emergency, the Court’s abolition, or limitation of, Bivens actions goes too far. If you are cold, put on a sweater, perhaps an overcoat, perhaps also turn up the heat, but do not set fire to the house. At the same time, there may well be a particular need for Bivens remedies when security-related Government actions are at issue. History tells us of far too many instances where the Executive or Legislative Branch took actions during time of war that, on later examination, turned out unnecessarily and unreasonably to have deprived American citizens of basic constitutional rights. We have read about the Alien and Sedition Acts, the thousands of civilians imprisoned during the Civil War, and the suppression of civil liberties during World War I. See W. Rehnquist, All the Laws but One: Civil Liberties in Wartime 209–210, 49–50, 173–180, 183 (1998); see also Ex parte Milligan , 4 Wall. 2 (1866) (decided after the Civil War was over). The pages of the U. S. Reports themselves recite this Court’s refusal to set aside the Government’s World War II action removing more than 70,000 American citizens of Japanese origin from their west coast homes and interning them in camps, see Korematsu v. United States , 323 U. S. 214 (1944) —an action that at least some officials knew at the time was unnecessary, see id., at 233–242 (Murphy, J., dissenting); P. Irons, Justice at War 202–204, 288 (1983). President Franklin Roosevelt’s Attorney General, perhaps exaggerating, once said that “[t]he Constitution has not greatly bothered any wartime President.” Rehnquist, supra , at 191. Can we, in respect to actions taken during those periods, rely exclusively, as the Court seems to suggest, upon injunctive remedies or writs of habeas corpus, their retail equivalent? Complaints seeking that kind of relief typi-cally come during the emergency itself, when emotions are strong, when courts may have too little or inaccurate information, and when courts may well prove particularly reluctant to interfere with even the least well-founded Executive Branch activity. That reluctance may itself set an unfortunate precedent, which, as Justice Jackson pointed out, can “li[e] about like a loaded weapon” awaiting discharge in another case. Korematsu , supra, at 246 (dissenting opinion). A damages action, however, is typically brought after the emergency is over, after emotions have cooled, and at a time when more factual information is available. In such circumstances, courts have more time to exercise such judicial virtues as calm reflection and dispassionate ap-plication of the law to the facts. We have applied the Constitution to actions taken during periods of war and national-security emergency. See Boumediene , 553 U. S. , at 732–733; Hamdi v. Rumsfeld , 542 U. S. 507 ; cf. Youngstown Sheet & Tube Co. v. Sawyer , 343 U. S. 579 (1952) . I should think that the wisdom of permitting courts to consider Bivens actions, later granting monetary compensation to those wronged at the time, would follow a fortiori . As is well known, Lord Atkins, a British judge, wrote in the midst of World War II that “amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.” Liversidge v. Anderson , [1942] A. C. 206 (H. L. 1941) 244. The Court, in my view, should say the same of this Bivens action. With respect, I dissent.

The Supreme Court ruled on a case regarding the detention of hundreds of illegal aliens in harsh conditions following the September 11 terrorist attacks, with some detainees filing suit against the Department of Justice and wardens of the facility. The Court's opinion, delivered by Justice Kennedy, addressed the claims of constitutional violations and sought damages under Bivens v. Six Unknown Fed. Narcotics Agents. The Court's decision considered the context of national security emergencies and the potential for executive branch overreach, acknowledging the importance of judicial intervention to protect constitutional rights. However, the Court's ruling was not unanimous, with one justice dissenting and expressing concern about the potential for executive branch overreach and the need for judicial intervention to protect citizens' liberties.

Immigration & National Security

DHS v. Regents of the University of California

https://supreme.justia.com/cases/federal/us/591/18-587/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ Nos. 18–587, 18–588, and 18–589 _________________ DEPARTMENT OF HOMELAND SECURITY, et al., PETITIONERS 18–587 v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al. on writ of certiorari to the united states court of appeals for the ninth circuit DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al., PETITIONERS 18–588 v. NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al.; AND on writ of certiorari before judgment to the united states court of appeals for the district of columbia circuit CHAD WOLF, ACTING SECRETARY OF HOMELAND SECURITY, et al., PETITIONERS 18–589 v. MARTIN JONATHAN BATALLA VIDAL, et al. on writ of certiorari before judgment to the united states court of appeals for the second circuit [June 18, 2020] Chief Justice Roberts delivered the opinion of the Court, except as to Part IV. In the summer of 2012, the Department of Homeland Security (DHS) announced an immigration program known as Deferred Action for Childhood Arrivals, or DACA. That program allows certain unauthorized aliens who entered the United States as children to apply for a two-year forbearance of removal. Those granted such relief are also eligible for work authorization and various federal benefits. Some 700,000 aliens have availed themselves of this opportunity. Five years later, the Attorney General advised DHS to rescind DACA, based on his conclusion that it was unlawful. The Department’s Acting Secretary issued a memorandum terminating the program on that basis. The termination was challenged by affected individuals and third parties who alleged, among other things, that the Acting Secretary had violated the Administrative Procedure Act (APA) by failing to adequately address important factors bearing on her decision. For the reasons that follow, we conclude that the Acting Secretary did violate the APA, and that the rescission must be vacated. I A In June 2012, the Secretary of Homeland Security issued a memorandum announcing an immigration relief program for “certain young people who were brought to this country as children.” App. to Pet. for Cert. in No. 18–587, p. 97a (App. to Pet. for Cert.). Known as DACA, the program applies to childhood arrivals who were under age 31 in 2012; have continuously resided here since 2007; are current students, have completed high school, or are honorably discharged veterans; have not been convicted of any serious crimes; and do not threaten national security or public safety. Id. , at 98a. DHS concluded that individuals who meet these criteria warrant favorable treatment under the immigration laws because they “lacked the intent to violate the law,” are “productive” contributors to our society, and “know only this country as home.” Id. , at 98a–99a. “[T]o prevent [these] low priority individuals from being removed from the United States,” the DACA Memorandum instructs Immigration and Customs Enforcement to “exercise prosecutorial discretion[ ] on an individual basis . . . by deferring action for a period of two years, subject to renewal.” Id. , at 100a. In addition, it directs U. S. Citizenship and Immigration Services (USCIS) to “accept applications to determine whether these individuals qualify for work authorization during this period of deferred action,” id. , at 101a, as permitted under regulations long predating DACA’s creation, see 8 CFR §274a.12(c)(14) (2012) (permitting work authorization for deferred action recipients who establish “economic necessity”); 46 Fed. Reg. 25080–25081 (1981) (similar). Pursuant to other regulations, deferred action recipients are considered “lawfully present” for purposes of, and therefore eligible to receive, Social Security and Medicare benefits. See 8 CFR §1.3(a)(4)(vi); 42 CFR §417.422(h) (2012). In November 2014, two years after DACA was promulgated, DHS issued a memorandum announcing that it would expand DACA eligibility by removing the age cap, shifting the date-of-entry requirement from 2007 to 2010, and extending the deferred action and work authorization period to three years. App. to Pet. for Cert. 106a–107a. In the same memorandum, DHS created a new, related program known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. That program would have authorized deferred action for up to 4.3 million parents whose children were U. S. citizens or lawful permanent residents. These parents were to enjoy the same forbearance, work eligibility, and other benefits as DACA recipients. Before the DAPA Memorandum was implemented, 26 States, led by Texas, filed suit in the Southern District of Texas. The States contended that DAPA and the DACA expansion violated the APA’s notice and comment requirement, the Immigration and Nationality Act (INA), and the Executive’s duty under the Take Care Clause of the Constitution. The District Court found that the States were likely to succeed on the merits of at least one of their claims and entered a nationwide preliminary injunction barring implementation of both DAPA and the DACA expansion. See Texas v. United States , 86 F. Supp. 3d 591, 677–678 (2015). A divided panel of the Court of Appeals for the Fifth Circuit affirmed the preliminary injunction. Texas v. United States , 809 F.3d 134, 188 (2015). In opposing the injunction, the Government argued that the DAPA Memorandum reflected an unreviewable exercise of the Government’s enforcement discretion. The Fifth Circuit majority disagreed. It reasoned that the deferred action described in the DAPA Memorandum was “much more than nonenforcement: It would affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens.” Id. , at 166. From this, the majority concluded that the creation of the DAPA program was not an unreviewable action “committed to agency discretion by law.” Id. , at 169 (quoting 5 U. S. C. §701(a)(2)). The majority then upheld the injunction on two grounds. It first concluded the States were likely to succeed on their procedural claim that the DAPA Memorandum was a substantive rule that was required to undergo notice and comment. It then held that the APA required DAPA to be set aside because the program was “manifestly contrary” to the INA, which “expressly and carefully provides legal designations allowing defined classes” to “receive the benefits” associated with “lawful presence” and to qualify for work authorization, 809 F. 3d, at 179–181, 186 (internal quotation marks omitted). Judge King dissented. This Court affirmed the Fifth Circuit’s judgment by an equally divided vote, which meant that no opinion was issued. United States v. Texas , 579 U. S. ___ (2016) ( per curiam ). For the next year, litigation over DAPA and the DACA expansion continued in the Southern District of Texas, while implementation of those policies remained enjoined. Then, in June 2017, following a change in Presidential administrations, DHS rescinded the DAPA Memorandum. In explaining that decision, DHS cited the preliminary injunction and ongoing litigation in Texas, the fact that DAPA had never taken effect, and the new administration’s immigration enforcement priorities. Three months later, in September 2017, Attorney General Jefferson B. Sessions III sent a letter to Acting Secretary of Homeland Security Elaine C. Duke, “advis[ing]” that DHS “should rescind” DACA as well. App. 877. Citing the Fifth Circuit’s opinion and this Court’s equally divided affirmance, the Attorney General concluded that DACA shared the “same legal . . . defects that the courts recognized as to DAPA” and was “likely” to meet a similar fate. Id. , at 878. “In light of the costs and burdens” that a rescission would “impose[ ] on DHS,” the Attorney General urged DHS to “consider an orderly and efficient wind-down process.” Ibid. The next day, Duke acted on the Attorney General’s advice. In her decision memorandum, Duke summarized the history of the DACA and DAPA programs, the Fifth Circuit opinion and ensuing affirmance, and the contents of the Attorney General’s letter. App. to Pet. for Cert. 111a–117a. “Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings” and the “letter from the Attorney General,” she concluded that the “DACA program should be terminated.” Id. , at 117a. Duke then detailed how the program would be wound down: No new applications would be accepted, but DHS would entertain applications for two-year renewals from DACA recipients whose benefits were set to expire within six months. For all other DACA recipients, previously issued grants of deferred action and work authorization would not be revoked but would expire on their own terms, with no prospect for renewal. Id. , at 117a–118a. B Within days of Acting Secretary Duke’s rescission announcement, multiple groups of plaintiffs ranging from individual DACA recipients and States to the Regents of the University of California and the National Association for the Advancement of Colored People challenged her decision in the U. S. District Courts for the Northern District of California ( Regents , No. 18–587), the Eastern District of New York ( Batalla Vidal , No. 18–589), and the District of Columbia ( NAACP , No. 18–588). The relevant claims are that the rescission was arbitrary and capricious in violation of the APA and that it infringed the equal protection guarantee of the Fifth Amendment’s Due Process Clause.[ 1 ] All three District Courts ruled for the plaintiffs, albeit at different stages of the proceedings.[ 2 ] In doing so, each court rejected the Government’s threshold arguments that the claims were unreviewable under the APA and that the INA deprived the court of jurisdiction. 298 F. Supp. 3d 209, 223–224, 234–235 (DC 2018); 279 F. Supp. 3d 1011, 1029–1033 (ND Cal. 2018); 295 F. Supp. 3d 127, 150, 153–154 (EDNY 2017). In Regents and Batalla Vidal , the District Courts held that the equal protection claims were adequately alleged. 298 F. Supp. 3d 1304, 1315 (ND Cal. 2018); 291 F. Supp. 3d 260, 279 (EDNY 2018). Those courts also entered coextensive nationwide preliminary injunctions, based on the conclusion that the plaintiffs were likely to succeed on the merits of their claims that the rescission was arbitrary and capricious. These injunctions did not require DHS to accept new applications, but did order the agency to allow DACA recipients to “renew their enrollments.” 279 F. Supp. 3d, at 1048; see 279 F. Supp. 3d 401, 437 (EDNY 2018). In NAACP , the D. C. District Court took a different course. In April 2018, it deferred ruling on the equal protection challenge but granted partial summary judgment to the plaintiffs on their APA claim, holding that Acting Secretary Duke’s “conclusory statements were insufficient to explain the change in [the agency’s] view of DACA’s lawfulness.” 298 F. Supp. 3d, at 243. The District Court stayed its order for 90 days to permit DHS to “reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority.” Id. , at 245. Two months later, Duke’s successor, Secretary Kirstjen M. Nielsen, responded via memorandum. App. to Pet. for Cert. 120a–126a. She explained that, “[h]aving considered the Duke memorandum,” she “decline[d] to disturb” the rescission. Id. , at 121a. Secretary Nielsen went on to articulate her “understanding” of Duke’s memorandum, identifying three reasons why, in Nielsen’s estimation, “the decision to rescind the DACA policy was, and remains, sound.” Ibid. First, she reiterated that, “as the Attorney General concluded, the DACA policy was contrary to law.” Id. , at 122a. Second, she added that, regardless, the agency had “serious doubts about [DACA’s] legality” and, for law enforcement reasons, wanted to avoid “legally questionable” policies. Id. , at 123a. Third, she identified multiple policy reasons for rescinding DACA, including (1) the belief that any class-based immigration relief should come from Congress, not through executive non-enforcement; (2) DHS’s preference for exercising prosecutorial discretion on “a truly individualized, case-by-case basis”; and (3) the importance of “project[ing] a message” that immigration laws would be enforced against all classes and categories of aliens. Id. , at 123a–124a. In her final paragraph, Secretary Nielsen acknowledged the “asserted reliance interests” in DACA’s continuation but concluded that they did not “outweigh the questionable legality of the DACA policy and the other reasons” for the rescission discussed in her memorandum. Id. , at 125a. The Government asked the D. C. District Court to revise its prior order in light of the reasons provided by Secretary Nielsen, but the court declined. In the court’s view, the new memorandum, which “fail[ed] to elaborate meaningfully” on the agency’s illegality rationale, still did not provide an adequate explanation for the September 2017 rescission. 315 F. Supp. 3d 457, 460, 473–474 (2018). The Government appealed the various District Court decisions to the Second, Ninth, and D. C. Circuits, respectively. In November 2018, while those appeals were pending, the Government simultaneously filed three petitions for certiorari before judgment. After the Ninth Circuit affirmed the nationwide injunction in Regents , see 908 F.3d 476 (2018), but before rulings from the other two Circuits, we granted the petitions and consolidated the cases for argument. 588 U. S. ___ (2019). The issues raised here are (1) whether the APA claims are reviewable, (2) if so, whether the rescission was arbitrary and capricious in violation of the APA, and (3) whether the plaintiffs have stated an equal protection claim. II The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so. The APA “sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts.” Franklin v. Massachusetts , 505 U.S. 788 , 796 (1992). It requires agencies to engage in “reasoned decisionmaking,” Michigan v. EPA , 576 U.S. 743, 750 (2015) (internal quotation marks omitted), and directs that agency actions be “set aside” if they are “arbitrary” or “capricious,” 5 U. S. C. §706(2)(A). Under this “narrow standard of review, . . . a court is not to substitute its judgment for that of the agency,” FCC v. Fox Television Stations, Inc. , 556 U.S. 502 , 513 (2009) (internal quotation marks omitted), but instead to assess only whether the decision was “based on a consideration of the relevant factors and whether there has been a clear error of judgment,” Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402 , 416 (1971). But before determining whether the rescission was arbitrary and capricious, we must first address the Government’s contentions that DHS’s decision is unreviewable under the APA and outside this Court’s jurisdiction. A The APA establishes a “basic presumption of judicial review [for] one ‘suffering legal wrong because of agency action.’ ” Abbott Laboratories v. Gardner , 387 U.S. 136 , 140 (1967) (quoting §702). That presumption can be rebutted by a showing that the relevant statute “preclude[s]” review, §701(a)(1), or that the “agency action is committed to agency discretion by law,” §701(a)(2). The latter exception is at issue here. To “honor the presumption of review, we have read the exception in §701(a)(2) quite narrowly,” Weyerhaeuser Co. v. United States Fish and Wildlife Serv. , 586 U. S. ___, ___ (2018) (slip op., at 12), confining it to those rare “administrative decision[s] traditionally left to agency discretion,” Lincoln v. Vigil , 508 U.S. 182 , 191 (1993). This limited category of unreviewable actions includes an agency’s decision not to institute enforcement proceedings, Heckler v. Chaney , 470 U.S. 821 , 831–832 (1985), and it is on that exception that the Government primarily relies. In Chaney , several death-row inmates petitioned the Food and Drug Administration (FDA) to take enforcement action against two States to prevent their use of certain drugs for lethal injection. The Court held that the FDA’s denial of that petition was presumptively unreviewable in light of the well-established “tradition” that “an agency’s decision not to prosecute or enforce” is “generally committed to an agency’s absolute discretion.” Id. , at 831. We identified a constellation of reasons that underpin this tradition. To start, a non-enforcement decision “often involves a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise,” such as “whether the particular enforcement action requested best fits the agency’s overall policies.” Ibid. The decision also mirrors, “to some extent,” a prosecutor’s decision not to indict, which has “long been regarded as the special province of the Executive Branch.” Id. , at 832. And, as a practical matter, “when an agency refuses to act” there is no action to “provide[ ] a focus for judicial review.” Ibid . The Government contends that a general non-enforcement policy is equivalent to the individual non-enforcement decision at issue in Chaney . In each case, the Government argues, the agency must balance factors peculiarly within its expertise, and does so in a manner akin to a criminal prosecutor. Building on that premise, the Government argues that the rescission of a non-enforcement policy is no different—for purposes of reviewability—from the adoption of that policy. While the rescission may lead to increased enforcement, it does not, by itself, constitute a particular enforcement action. Applying this logic to the facts here, the Government submits that DACA is a non-enforcement policy and that its rescission is therefore unreviewable. But we need not test this chain of reasoning because DACA is not simply a non-enforcement policy. For starters, the DACA Memorandum did not merely “refus[e] to institute proceedings” against a particular entity or even a particular class. Ibid . Instead, it directed USCIS to “establish a clear and efficient process” for identifying individuals who met the enumerated criteria. App. to Pet. for Cert. 100a. Based on this directive, USCIS solicited applications from eligible aliens, instituted a standardized review process, and sent formal notices indicating whether the alien would receive the two-year forbearance. These proceedings are effectively “adjudicat[ions].” Id ., at 117a. And the result of these adjudications—DHS’s decision to “grant deferred action,” Brief for Petitioners 45—is an “affirmative act of approval,” the very opposite of a “refus[al] to act,” Chaney , 470 U. S., at 831–832. In short, the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief. The creation of that program—and its rescission—is an “action [that] provides a focus for judicial review.” Id. , at 832. The benefits attendant to deferred action provide further confirmation that DACA is more than simply a non-enforcement policy. As described above, by virtue of receiving deferred action, the 700,000 DACA recipients may request work authorization and are eligible for Social Security and Medicare. See supra , at 3. Unlike an agency’s refusal to take requested enforcement action, access to these types of benefits is an interest “courts often are called upon to protect.” Chaney , 470 U. S., at 832. See also Barnhart v. Thomas , 540 U.S. 20 (2003) (reviewing eligibility determination for Social Security benefits). Because the DACA program is more than a non-enforcement policy, its rescission is subject to review under the APA. B The Government also invokes two jurisdictional provisions of the INA as independent bars to review. Neither applies. Section 1252(b)(9) bars review of claims arising from “action[s]” or “proceeding[s] brought to remove an alien.” 66Stat. 209, as amended, 8 U. S. C. §1252(b)(9). That targeted language is not aimed at this sort of case. As we have said before, §1252(b)(9) “does not present a jurisdictional bar” where those bringing suit “are not asking for review of an order of removal,” “the decision . . . to seek removal,” or “the process by which . . . removability will be determined.” Jennings v. Rodriguez , 583 U. S. ___, ___–___ (2018) (plurality opinion) (slip op., at 10–11); id. , at ___ (Breyer, J., dissenting) (slip op., at 31). And it is certainly not a bar where, as here, the parties are not challenging any removal proceedings. Section 1252(g) is similarly narrow. That provision limits review of cases “arising from” decisions “to commence proceedings, adjudicate cases, or execute removal orders.” §1252(g). We have previously rejected as “implausible” the Government’s suggestion that §1252(g) covers “all claims arising from deportation proceedings” or imposes “a general jurisdictional limitation.” Reno v. American-Arab Anti- Discrimination Comm. , 525 U.S. 471 , 482 (1999). The rescission, which revokes a deferred action program with associated benefits, is not a decision to “commence proceedings,” much less to “adjudicate” a case or “execute” a removal order. With these preliminary arguments out of the way, we proceed to the merits. III A Deciding whether agency action was adequately explained requires, first, knowing where to look for the agency’s explanation. The natural starting point here is the explanation provided by Acting Secretary Duke when she announced the rescission in September 2017. But the Government urges us to go on and consider the June 2018 memorandum submitted by Secretary Nielsen as well. That memo was prepared after the D. C. District Court vacated the Duke rescission and gave DHS an opportunity to “reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority.” 298 F. Supp. 3d, at 245. According to the Government, the Nielsen Memorandum is properly before us because it was invited by the District Court and reflects the views of the Secretary of Homeland Security—the official responsible for immigration policy. Respondents disagree, arguing that the Nielsen Memorandum, issued nine months after the rescission, impermissibly asserts prudential and policy reasons not relied upon by Duke. It is a “foundational principle of administrative law” that judicial review of agency action is limited to “the grounds that the agency invoked when it took the action.” Michigan , 576 U. S., at 758. If those grounds are inadequate, a court may remand for the agency to do one of two things: First, the agency can offer “a fuller explanation of the agency’s reasoning at the time of the agency action .” Pension Benefit Guaranty Corporation v. LTV Corp. , 496 U.S. 633 , 654 (1990) (emphasis added). See also Alpharma, Inc. v. Leavitt , 460 F.3d 1 , 5–6 (CADC 2006) (Garland, J.) (permitting an agency to provide an “amplified articulation” of a prior “conclusory” observation (internal quotation marks omitted)). This route has important limitations. When an agency’s initial explanation “indicate[s] the determinative reason for the final action taken,” the agency may elaborate later on that reason (or reasons) but may not provide new ones. Camp v. Pitts , 411 U.S. 138 , 143 (1973) ( per curiam ). Alternatively, the agency can “deal with the problem afresh” by taking new agency action. SEC v. Chenery Corp. , 332 U.S. 194 , 201 (1947) ( Chenery II ). An agency taking this route is not limited to its prior reasons but must comply with the procedural requirements for new agency action. The District Court’s remand thus presented DHS with a choice: rest on the Duke Memorandum while elaborating on its prior reasoning, or issue a new rescission bolstered by new reasons absent from the Duke Memorandum. Secretary Nielsen took the first path. Rather than making a new decision, she “decline[d] to disturb the Duke memorandum’s rescission” and instead “provide[d] further explanation” for that action. App. to Pet. for Cert. 121a. Indeed, the Government’s subsequent request for reconsideration described the Nielsen Memorandum as “additional explanation for [Duke’s] decision” and asked the District Court to “leave in place [Duke’s] September 5, 2017 decision to rescind the DACA policy.” Motion to Revise Order in No. 17–cv–1907 etc. (D DC), pp. 2, 19. Contrary to the position of the Government before this Court, and of Justice Kavanaugh in dissent, post , at 4 (opinion concurring in judgment in part and dissenting in part), the Nielsen Memorandum was by its own terms not a new rule implementing a new policy. Because Secretary Nielsen chose to elaborate on the reasons for the initial rescission rather than take new administrative action, she was limited to the agency’s original reasons, and her explanation “must be viewed critically” to ensure that the rescission is not upheld on the basis of impermissible “ post hoc rationalization.” Overton Park , 401 U. S., at 420. But despite purporting to explain the Duke Memorandum, Secretary Nielsen’s reasoning bears little relationship to that of her predecessor. Acting Secretary Duke rested the rescission on the conclusion that DACA is unlawful. Period. See App. to Pet. for Cert. 117a. By contrast, Secretary Nielsen’s new memorandum offered three “separate and independently sufficient reasons” for the rescission, id. , at 122a, only the first of which is the conclusion that DACA is illegal. Her second reason is that DACA is, at minimum, legally questionable and should be terminated to maintain public confidence in the rule of law and avoid burdensome litigation. No such justification can be found in the Duke Memorandum. Legal uncertainty is, of course, related to illegality. But the two justifications are meaningfully distinct, especially in this context. While an agency might, for one reason or another, choose to do nothing in the face of uncertainty, illegality presumably requires remedial action of some sort. The policy reasons that Secretary Nielsen cites as a third basis for the rescission are also nowhere to be found in the Duke Memorandum. That document makes no mention of a preference for legislative fixes, the superiority of case-by-case decisionmaking, the importance of sending a message of robust enforcement, or any other policy consideration. Nor are these points included in the legal analysis from the Fifth Circuit and the Attorney General. They can be viewed only as impermissible post hoc rationalizations and thus are not properly before us. The Government, echoed by Justice Kavanaugh, protests that requiring a new decision before considering Nielsen’s new justifications would be “an idle and useless formality.” NLRB v. Wyman-Gordon Co. , 394 U.S. 759 , 766, n. 6 (1969) (plurality opinion). See also post , at 5. Procedural requirements can often seem such. But here the rule serves important values of administrative law. Requiring a new decision before considering new reasons promotes “agency accountability,” Bowen v. American Hospital Assn. , 476 U.S. 610 , 643 (1986), by ensuring that parties and the public can respond fully and in a timely manner to an agency’s exercise of authority. Considering only contemporaneous explanations for agency action also instills confidence that the reasons given are not simply “convenient litigating position[s].” Christopher v. SmithKline Beecham Corp. , 567 U.S. 142 , 155 (2012) (internal quotation marks omitted). Permitting agencies to invoke belated justifications, on the other hand, can upset “the orderly functioning of the process of review,” SEC v. Chenery Corp., 318 U.S. 80 , 94 (1943), forcing both litigants and courts to chase a moving target. Each of these values would be markedly undermined were we to allow DHS to rely on reasons offered nine months after Duke announced the rescission and after three different courts had identified flaws in the original explanation. Justice Kavanaugh asserts that this “foundational principle of administrative law,” Michigan , 576 U. S., at 758, actually limits only what lawyers may argue, not what agencies may do. Post , at 5. While it is true that the Court has often rejected justifications belatedly advanced by advocates, we refer to this as a prohibition on post hoc rationalizations, not advocate rationalizations, because the problem is the timing, not the speaker. The functional reasons for requiring contemporaneous explanations apply with equal force regardless whether post hoc justifications are raised in court by those appearing on behalf of the agency or by agency officials themselves. See American Textile Mfrs. Institute, Inc. v. Donovan , 452 U.S. 490 , 539 (1981) (“[T]he post hoc rationalizations of the agency . . . cannot serve as a sufficient predicate for agency action.”); Overton Park , 401 U. S., at 419 (rejecting “litigation affidavits” from agency officials as “merely ‘ post hoc ’ rationalizations”).[ 3 ] Justice Holmes famously wrote that “[m]en must turn square corners when they deal with the Government.” Rock Island, A. & L. R. Co. v. United States , 254 U.S. 141 , 143 (1920). But it is also true, particularly when so much is at stake, that “the Government should turn square corners in dealing with the people.” St. Regis Paper Co. v. United States , 368 U.S. 208 , 229 (1961) (Black, J., dissenting). The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted. This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision. B We turn, finally, to whether DHS’s decision to rescind DACA was arbitrary and capricious. As noted earlier, Acting Secretary Duke’s justification for the rescission was succinct: “Taking into consideration” the Fifth Circuit’s conclusion that DAPA was unlawful because it conferred benefits in violation of the INA, and the Attorney General’s conclusion that DACA was unlawful for the same reason, she concluded—without elaboration—that the “DACA program should be terminated.” App. to Pet. for Cert. 117a.[ 4 ] Respondents maintain that this explanation is deficient for three reasons. Their first and second arguments work in tandem, claiming that the Duke Memorandum does not adequately explain the conclusion that DACA is unlawful, and that this conclusion is, in any event, wrong. While those arguments carried the day in the lower courts, in our view they overlook an important constraint on Acting Secretary Duke’s decisionmaking authority—she was bound by the Attorney General’s legal determination. The same statutory provision that establishes the Secretary of Homeland Security’s authority to administer and enforce immigration laws limits that authority, specifying that, with respect to “all questions of law,” the determinations of the Attorney General “shall be controlling.” 8 U. S. C. §1103(a)(1). Respondents are aware of this constraint. Indeed they emphasized the point in the reviewability sections of their briefs. But in their merits arguments, respondents never addressed whether or how this unique statutory provision might affect our review. They did not discuss whether Duke was required to explain a legal conclusion that was not hers to make. Nor did they discuss whether the current suits challenging Duke’s rescission decision, which everyone agrees was within her legal authority under the INA, are proper vehicles for attacking the Attorney General’s legal conclusion. Because of these gaps in respondents’ briefing, we do not evaluate the claims challenging the explanation and correctness of the illegality conclusion. Instead we focus our attention on respondents’ third argument—that Acting Secretary Duke “failed to consider . . . important aspect[s] of the problem” before her. Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S. 29 , 43 (1983). Whether DACA is illegal is, of course, a legal determination, and therefore a question for the Attorney General. But deciding how best to address a finding of illegality moving forward can involve important policy choices, especially when the finding concerns a program with the breadth of DACA. Those policy choices are for DHS. Acting Secretary Duke plainly exercised such discretionary authority in winding down the program. See App. to Pet. for Cert. 117a–118a (listing the Acting Secretary’s decisions on eight transition issues). Among other things, she specified that those DACA recipients whose benefits were set to expire within six months were eligible for two-year renewals. Ibid . But Duke did not appear to appreciate the full scope of her discretion, which picked up where the Attorney General’s legal reasoning left off. The Attorney General concluded that “the DACA policy has the same legal . . . defects that the courts recognized as to DAPA.” App. 878. So, to understand those defects, we look to the Fifth Circuit, the highest court to offer a reasoned opinion on the legality of DAPA. That court described the “core” issue before it as the “Secretary’s decision” to grant “eligibility for benefits”—including work authorization, Social Security, and Medicare—to unauthorized aliens on “a class-wide basis.” Texas , 809 F. 3d, at 170; see id., at 148, 184. The Fifth Circuit’s focus on these benefits was central to every stage of its analysis. See id., at 155 (standing); id. , at 163 (zone of interest); id. , at 164 (applicability of §1252(g)); id. , at 166 (reviewability); id. , at 176–177 (notice and comment); id. , at 184 (substantive APA). And the Court ultimately held that DAPA was “manifestly contrary to the INA” precisely because it “would make 4.3 million otherwise removable aliens” eligible for work authorization and public benefits. Id. , at 181–182 (internal quotation marks omitted).[ 5 ] But there is more to DAPA (and DACA) than such benefits. The defining feature of deferred action is the decision to defer removal (and to notify the affected alien of that decision). See App. to Pet. for Cert. 99a. And the Fifth Circuit was careful to distinguish that forbearance component from eligibility for benefits. As it explained, the “challenged portion of DAPA’s deferred-action program” was the decision to make DAPA recipients eligible for benefits. See Texas , 809 F. 3d, at 168, and n. 108. The other “[p]art of DAPA,” the court noted, “involve[d] the Secretary’s decision—at least temporarily—not to enforce the immigration laws as to a class of what he deem[ed] to be low-priority illegal aliens.” Id. , at 166. Borrowing from this Court’s prior description of deferred action, the Fifth Circuit observed that “the states do not challenge the Secretary’s decision to ‘decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation.’ ” Id. , at 168 (quoting Reno , 525 U. S., at 484). And the Fifth Circuit underscored that nothing in its decision or the preliminary injunction “requires the Secretary to remove any alien or to alter” the Secretary’s class-based “enforcement priorities.” Texas , 809 F. 3d, at 166, 169. In other words, the Secretary’s forbearance authority was unimpaired. Acting Secretary Duke recognized that the Fifth Circuit’s holding addressed the benefits associated with DAPA. In her memorandum she explained that the Fifth Circuit concluded that DAPA “conflicted with the discretion authorized by Congress” because the INA “ ‘flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.’ ” App. to Pet. for Cert. 114a (quoting Texas , 809 F. 3d, at 184). Duke did not characterize the opinion as one about forbearance. In short, the Attorney General neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy. Thus, removing benefits eligibility while continuing forbearance remained squarely within the discretion of Acting Secretary Duke, who was responsible for “[e]stablishing national immigration enforcement policies and priorities.” 116Stat. 2178, 6 U. S. C. §202(5). But Duke’s memo offers no reason for terminating forbearance. She instead treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation. That reasoning repeated the error we identified in one of our leading modern administrative law cases, Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co. There, the National Highway Traffic Safety Administration (NHTSA) promulgated a requirement that motor vehicles produced after 1982 be equipped with one of two passive restraints: airbags or automatic seatbelts. 463 U. S., at 37–38, 46. Four years later, before the requirement went into effect, NHTSA concluded that automatic seatbelts, the restraint of choice for most manufacturers, would not provide effective protection. Based on that premise, NHTSA rescinded the passive restraint requirement in full. Id. , at 38. We concluded that the total rescission was arbitrary and capricious. As we explained, NHTSA’s justification supported only “disallow[ing] compliance by means of ” automatic seatbelts. Id. , at 47. It did “not cast doubt” on the “efficacy of airbag technology” or upon “the need for a passive restraint standard.” Ibid. Given NHTSA’s prior judgment that “airbags are an effective and cost-beneficial lifesaving technology,” we held that “the mandatory passive restraint rule [could] not be abandoned without any consideration whatsoever of an airbags-only requirement.” Id. , at 51. While the factual setting is different here, the error is the same. Even if it is illegal for DHS to extend work authorization and other benefits to DACA recipients, that conclusion supported only “disallow[ing]” benefits. Id. , at 47. It did “not cast doubt” on the legality of forbearance or upon DHS’s original reasons for extending forbearance to childhood arrivals. Ibid. Thus, given DHS’s earlier judgment that forbearance is “especially justified” for “productive young people” who were brought here as children and “know only this country as home,” App. to Pet. for Cert. 98a–99a, the DACA Memorandum could not be rescinded in full “without any consideration whatsoever” of a forbearance-only policy, State Farm , 463 U. S., at 51.[ 6 ] The Government acknowledges that “[d]eferred action coupled with the associated benefits are the two legs upon which the DACA policy stands.” Reply Brief 21. It insists, however, that “DHS was not required to consider whether DACA’s illegality could be addressed by separating” the two. Ibid. According to the Government, “It was not arbitrary and capricious for DHS to view deferred action and its collateral benefits as importantly linked.” Ibid. Perhaps. But that response misses the point. The fact that there may be a valid reason not to separate deferred action from benefits does not establish that DHS considered that option or that such consideration was unnecessary. The lead dissent acknowledges that forbearance and benefits are legally distinct and can be decoupled. Post , at 21–22, n. 14 (opinion of Thomas, J). It contends, however, that we should not “dissect” agency action “piece by piece.” Post, at 21. The dissent instead rests on the Attorney General’s legal determination—which considered only benefits—“to supply the ‘reasoned analysis’ ” to support rescission of both benefits and forbearance. Post, at 22 (quoting State Farm , 463 U. S., at 42). But State Farm teaches that when an agency rescinds a prior policy its reasoned analysis must consider the “alternative[s]” that are “within the ambit of the existing [policy].” Id. , at 51. Here forbearance was not simply “within the ambit of the existing [policy],” it was the centerpiece of the policy: DACA, after all, stands for “ Deferred Action for Childhood Arrivals.” App. to Pet. for Cert. 111a (emphasis added). But the rescission memorandum contains no discussion of forbearance or the option of retaining forbearance without benefits. Duke “entirely failed to consider [that] important aspect of the problem.” State Farm , 463 U. S., at 43. That omission alone renders Acting Secretary Duke’s decision arbitrary and capricious. But it is not the only defect. Duke also failed to address whether there was “legitimate reliance” on the DACA Memorandum. Smiley v. Citibank (South Dakota), N. A. , 517 U.S. 735 , 742 (1996). When an agency changes course, as DHS did here, it must “be cognizant that longstanding policies may have ‘engendered serious reliance interests that must be taken into account.’ ” Encino Motorcars, LLC v. Navarro , 579 U. S. ___, ___ (2016) (slip op., at 9) (quoting Fox Television , 556 U. S., at 515). “It would be arbitrary and capricious to ignore such matters.” Id ., at 515. Yet that is what the Duke Memorandum did. For its part, the Government does not contend that Duke considered potential reliance interests; it counters that she did not need to. In the Government’s view, shared by the lead dissent, DACA recipients have no “legally cognizable reliance interests” because the DACA Memorandum stated that the program “conferred no substantive rights” and provided benefits only in two-year increments. Reply Brief 16–17; App. to Pet. for Cert. 125a. See also post , at 23–24 (opinion of Thomas, J). But neither the Government nor the lead dissent cites any legal authority establishing that such features automatically preclude reliance interests, and we are not aware of any. These disclaimers are surely pertinent in considering the strength of any reliance interests, but that consideration must be undertaken by the agency in the first instance, subject to normal APA review. There was no such consideration in the Duke Memorandum. Respondents and their amici assert that there was much for DHS to consider. They stress that, since 2012, DACA recipients have “enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance” on the DACA program. Brief for Respondent Regents of Univ. of California et al. in No. 18–587, p. 41 (Brief for Regents). The consequences of the rescission, respondents emphasize, would “radiate outward” to DACA recipients’ families, including their 200,000 U. S.-citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them. See id. , at 41–42; Brief for Respondent State of New York et al. in No. 18–589, p. 42 (Brief for New York). See also Brief for 143 Businesses as Amici Curiae 17 (estimating that hiring and training replacements would cost employers $6.3 billion). In addition, excluding DACA recipients from the lawful labor force may, they tell us, result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years. Brief for Regents 6. Meanwhile, States and local governments could lose $1.25 billion in tax revenue each year. Ibid. These are certainly noteworthy concerns, but they are not necessarily dispositive. To the Government and lead dissent’s point, DHS could respond that reliance on forbearance and benefits was unjustified in light of the express limitations in the DACA Memorandum. Or it might conclude that reliance interests in benefits that it views as unlawful are entitled to no or diminished weight. And, even if DHS ultimately concludes that the reliance interests rank as serious, they are but one factor to consider. DHS may determine, in the particular context before it, that other interests and policy concerns outweigh any reliance interests. Making that difficult decision was the agency’s job, but the agency failed to do it. DHS has considerable flexibility in carrying out its responsibility. The wind-down here is a good example of the kind of options available. Acting Secretary Duke authorized DHS to process two-year renewals for those DACA recipients whose benefits were set to expire within six months. But Duke’s consideration was solely for the purpose of assisting the agency in dealing with “administrative complexities.” App. to Pet. for Cert. 116a–118a. She should have considered whether she had similar flexibility in addressing any reliance interests of DACA recipients. The lead dissent contends that accommodating such interests would be “another exercise of unlawful power,” post , at 23 (opinion of Thomas, J.), but the Government does not make that argument and DHS has already extended benefits for purposes other than reliance, following consultation with the Office of the Attorney General. App. to Pet. for Cert. 116a. Had Duke considered reliance interests, she might, for example, have considered a broader renewal period based on the need for DACA recipients to reorder their affairs. Alternatively, Duke might have considered more accommodating termination dates for recipients caught in the middle of a time-bounded commitment, to allow them to, say, graduate from their course of study, complete their military service, or finish a medical treatment regimen. Or she might have instructed immigration officials to give salient weight to any reliance interests engendered by DACA when exercising individualized enforcement discretion. To be clear, DHS was not required to do any of this or to “consider all policy alternatives in reaching [its] decision.” State Farm , 463 U. S., at 51. Agencies are not compelled to explore “every alternative device and thought conceivable by the mind of man.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. , 435 U.S. 519 , 551 (1978). But, because DHS was “not writing on a blank slate,” post, at 22, n. 14 (opinion of Thomas, J.), it was required to assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns. The lead dissent sees all the foregoing differently. In its view, DACA is illegal, so any actions under DACA are themselves illegal. Such actions, it argues, must cease immediately and the APA should not be construed to impede that result. See post , at 19–23 (opinion of Thomas, J.). The dissent is correct that DACA was rescinded because of the Attorney General’s illegality determination. See ante , at 20. But nothing about that determination foreclosed or even addressed the options of retaining forbearance or accommodating particular reliance interests. Acting Secretary Duke should have considered those matters but did not. That failure was arbitrary and capricious in violation of the APA. IV Lastly, we turn to respondents’ claim that the rescis- sion violates the equal protection guarantee of the Fifth Amendment. The parties dispute the proper framing of this claim. The Government contends that the allegation that the Executive, motivated by animus, ended a program that disproportionately benefits certain ethnic groups is a selective enforcement claim. Such a claim, the Government asserts, is barred by our decision in Reno v. American-Arab Anti-Discrimination Committee . See 525 U. S., at 488 (holding that “an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation”). Respondents counter that their claim falls outside the scope of that precedent because they are not challenging individual enforcement proceedings. We need not resolve this debate because, even if the claim is cognizable, the allegations here are insufficient. To plead animus, a plaintiff must raise a plausible inference that an “invidious discriminatory purpose was a motivating factor” in the relevant decision. Arlington Heights v. Metropolitan Housing Development Corp. , 429 U.S. 252 , 266 (1977). Possible evidence includes disparate impact on a particular group, “[d]epartures from the normal procedural sequence,” and “contemporary statements by members of the decisionmaking body.” Id. , at 266–268. Tracking these factors, respondents allege that animus is evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and (3) pre- and post-election statements by President Trump. Brief for New York 54–55. None of these points, either singly or in concert, establishes a plausible equal protection claim. First, because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program. See B. Baker, DHS, Office of Immigration Statistics, Population Estimates, Illegal Alien Population Residing in the United States: January 2015, Table 2 (Dec. 2018), https://www.dhs.gov/sites/default/files/publications/ 18_1214_PLCY_pops-est-report.pdf. Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds. Second, there is nothing irregular about the history leading up to the September 2017 rescission. The lower courts concluded that “DACA received reaffirmation by [DHS] as recently as three months before the rescission,” 908 F. 3d, at 519 (quoting 298 F. Supp. 3d, at 1315), referring to the June 2017 DAPA rescission memo, which stated that DACA would “remain in effect,” App. 870. But this reasoning confuses abstention with reaffirmation. The DAPA memo did not address the merits of the DACA policy or its legality. Thus, when the Attorney General later determined that DACA shared DAPA’s legal defects, DHS’s decision to reevaluate DACA was not a “strange about-face.” 908 F. 3d, at 519. It was a natural response to a newly identified problem. Finally, the cited statements are unilluminating. The relevant actors were most directly Acting Secretary Duke and the Attorney General. As the Batalla Vidal court acknowledged, respondents did not “identif[y] statements by [either] that would give rise to an inference of discriminatory motive.” 291 F. Supp. 3d, at 278. Instead, respondents contend that President Trump made critical statements about Latinos that evince discriminatory intent. But, even as interpreted by respondents, these statements—remote in time and made in unrelated contexts—do not qualify as “contemporary statements” probative of the decision at issue. Arlington Heights , 429 U. S., at 268. Thus, like respondents’ other points, the statements fail to raise a plausible inference that the rescission was motivated by animus. *  *  * We do not decide whether DACA or its rescission are sound policies. “The wisdom” of those decisions “is none of our concern.” Chenery II , 332 U. S., at 207. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew. The judgment in NAACP , No. 18–588, is affirmed.[ 7 ] The judgment in Regents , No. 18–587, is vacated in part and reversed in part. And in Batalla Vidal , No. 18–589, the February 13, 2018 order granting respondents’ motion for a preliminary injunction is vacated, the November 9, 2017 order partially denying the Government’s motion to dismiss is affirmed in part, and the March 29, 2018 order partially denying the balance of the Government’s motion to dismiss is reversed in part. All three cases are remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 Plaintiffs also raised notice and comment claims, which uniformly failed below, and assorted due process challenges, some of which survived motions to dismiss. Those claims are not before us. 2 In a related challenge not at issue here, the District Court for the District of Maryland granted partial summary judgment in favor of the Government. Casa de Maryland v. United States Dept. of Homeland Security , 284 F. Supp. 3d 758 (2018). After the Government filed petitions for certiorari in the instant cases, the Fourth Circuit reversed that decision and vacated Acting Secretary Duke’s rescission as arbitrary and capricious. Casa de Maryland v. United States Dept. of Homeland Security , 924 F.3d 684 (2019), cert. pending, No. 18–1469. The Fourth Circuit has since stayed its mandate. 3 Justice Kavanaugh further argues that the contemporaneous explanation requirement applies only to agency adjudications, not rulemakings. Post , at 5–6 (opinion concurring in judgment in part and dissenting in part). But he cites no authority limiting this basic principle—which the Court regularly articulates in the context of rulemakings—to adjudications. The Government does not even raise this unheralded argument. 4 The Government contends that Acting Secretary Duke also focused on litigation risk. Although the background section of her memo references a letter from the Texas Attorney General threatening to challenge DACA, the memo never asserts that the rescission was intended to avert litigation. And, given the Attorney General’s conclusion that the policy was unlawful—and thus presumably could not be maintained or defended in its current form—it is difficult to see how the risk of litigation carried any independent weight. 5 As the Fifth Circuit noted, DAPA recipients were eligible for Social Security and Medicare benefits because they had been designated “lawfully present.” Texas , 809 F. 3d, at 168. Lawful presence is a statutory prerequisite for receipt of certain benefits. See id., at 148 (citing 8 U. S. C. §1611). It is not the same as forbearance nor does it flow inexorably from forbearance. Thus, while deferred action recipients have been designated lawfully present for purposes of Social Security and Medicare eligibility, see 8 CFR §1.3; 42 CFR §417.422(h), agencies can also exclude them from this designation, see 45 CFR §152.2(8) (2019) (specifying that DACA recipients are not considered lawfully present for purposes of coverage under the Affordable Care Act). 6 The three-page memorandum that established DACA is devoted entirely to forbearance, save for one sentence directing USCIS to “determine whether [DACA recipients] qualify for work authorization.” App. to Pet. for Cert. 101a. The benefits associated with DACA flow from a separate regulation. See 8 CFR §1.3(a)(4)(vi); see also 42 CFR §417.422(h) (cross-referencing 8 CFR §1.3). Thus, DHS could have addressed the Attorney General’s determination that such benefits were impermissible under the INA by amending 8 CFR §1.3 to exclude DACA recipients from those benefits without rescinding the DACA Memorandum and the forbearance policy it established. But Duke’s rescission memo shows no cognizance of this possibility. 7 Our affirmance of the NAACP order vacating the rescission makes it unnecessary to examine the propriety of the nationwide scope of the injunctions issued by the District Courts in Regents and Batalla Vidal . SUPREME COURT OF THE UNITED STATES _________________ Nos. 18–587, 18–588, and 18–589 _________________ DEPARTMENT OF HOMELAND SECURITY, et al., PETITIONERS 18–587 v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al. on writ of certiorari to the united states court of appeals for the ninth circuit DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al., PETITIONERS 18–588 v. NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al.; AND on writ of certiorari before judgment to the united states court of appeals for the district of columbia circuit CHAD WOLF, ACTING SECRETARY OF HOMELAND SECURITY, et al., PETITIONERS 18–589 v. MARTIN JONATHAN BATALLA VIDAL, et al. on writ of certiorari before judgment to the united states court of appeals for the second circuit [June 18, 2020] Justice Sotomayor, concurring in part, concurring in the judgment in part, and dissenting in part. The majority rightly holds that the Department of Homeland Security (DHS) violated the Administrative Procedure Act in rescinding the Deferred Action for Childhood Arrivals (DACA) program. But the Court forecloses any challenge to the rescission under the Equal Protection Clause. I believe that determination is unwarranted on the existing record and premature at this stage of the litigation. I would instead permit respondents to develop their equal protection claims on remand. Respondents’ equal protection challenges come to us in a preliminary posture. All that respondents needed to do at this stage of the litigation was state sufficient facts that would “allo[w a] court to draw the reasonable inference that [a] defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S. 662 , 678 (2009). The three courts to evaluate respondents’ pleadings below held that they cleared this modest threshold. 908 F.3d 476, 518–520 (CA9 2018) (affirming the District Court’s denial of the Government’s motion to dismiss); see also Batalla Vidal v. Nielsen , 291 F. Supp. 3d 260, 274 (EDNY 2018). I too would permit respondents’ claims to proceed on remand. The complaints each set forth particularized facts that plausibly allege discriminatory animus. The plurality disagrees, reasoning that “[n]one of these points, either singly or in concert, establishes a plausible equal protection claim.” Ante , at 27. But it reaches that conclusion by discounting some allegations altogether and by narrowly viewing the rest. First, the plurality dismisses the statements that President Trump made both before and after he assumed office. The Batalla Vidal complaints catalog then-candidate Trump’s declarations that Mexican immigrants are “people that have lots of problems,” “the bad ones,” and “criminals, drug dealers, [and] rapists.” 291 F. Supp. 3d, at 276 (internal quotation marks omitted). The Regents complaints additionally quote President Trump’s 2017 statement comparing undocumented immigrants to “animals” responsible for “the drugs, the gangs, the cartels, the crisis of smuggling and trafficking, [and] MS13.” 298 F. Supp. 3d 1304, 1314 (ND Cal. 2018) (internal quotation marks omitted). The plurality brushes these aside as “unilluminating,” “remote in time,” and having been “made in unrelated contexts.” Ante , at 28. But “nothing in our precedent supports [the] blinkered approach” of disregarding any of the campaign statements as remote in time from later-enacted policies. Trump v. Hawaii , 585 U. S. ___, ___, n. 3 (2018) (Sotomayor, J., dissenting) (slip op., at 11, n. 3). Nor did any of the statements arise in unrelated contexts. They bear on unlawful migration from Mexico—a keystone of President Trump’s campaign and a policy priority of his administration—and, according to respondents, were an animating force behind the rescission of DACA. Cf. ibid. (noting that Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (2017), which barred entry of individuals from several Muslim-majority countries, was an outgrowth of the President’s campaign statements about Muslims) . Taken together, “the words of the President” help to “create the strong perception” that the rescission decision was “contaminated by impermissible discriminatory animus.” 585 U. S. , at ___ (opinion of Sotomayor, J.) (slip op., at 13). This perception provides respondents with grounds to litigate their equal protection claims further. Next, the plurality minimizes the disproportionate impact of the rescission decision on Latinos after considering this point in isolation. Ante , at 28 (“Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds”). But the impact of the policy decision must be viewed in the context of the President’s public statements on and off the campaign trail. At the motion-to-dismiss stage, I would not so readily dismiss the allegation that an executive decision disproportionately harms the same racial group that the President branded as less desirable mere months earlier. Finally, the plurality finds nothing untoward in the “specific sequence of events leading up to the challenged decision.” Arlington Heights v. Metropolitan Housing Development Corp. , 429 U.S. 252 , 267 (1977). I disagree. As late as June 2017, DHS insisted it remained committed to DACA, even while rescinding a related program, the Deferred Action for Parents of Americans and Lawful Permanent Residents. App. 718–720. But a mere three months later, DHS terminated DACA without, as the plurality acknowledges, considering important aspects of the termination. The abrupt change in position plausibly suggests that something other than questions about the legality of DACA motivated the rescission decision. Accordingly, it raises the possibility of a “significant mismatch between the decision . . . made and the rationale . . . provided.” Department of Commerce v. New York , 588 U. S. ___, ___ (2019) (slip op., at 26). Only by bypassing context does the plurality conclude otherwise. *  *  * The facts in respondents’ complaints create more than a “sheer possibility that a defendant has acted unlawfully.” Iqbal , 556 U. S., at 678. Whether they ultimately amount to actionable discrimination should be determined only after factual development on remand. Because the Court prematurely disposes of respondents’ equal protection claims by overlooking the strength of their complaints, I join all but Part IV of the opinion and do not concur in the corresponding part of the judgment. SUPREME COURT OF THE UNITED STATES _________________ Nos. 18–587, 18–588, and 18–589 _________________ DEPARTMENT OF HOMELAND SECURITY, et al., PETITIONERS 18–587 v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al. on writ of certiorari to the united states court of appeals for the ninth circuit DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al., PETITIONERS 18–588 v. NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al.; AND on writ of certiorari before judgment to the united states court of appeals for the district of columbia circuit CHAD WOLF, ACTING SECRETARY OF HOMELAND SECURITY, et al., PETITIONERS 18–589 v. MARTIN JONATHAN BATALLA VIDAL, et al. on writ of certiorari before judgment to the united states court of appeals for the second circuit [June 18, 2020] Justice Thomas, with whom Justice Alito and Justice Gorsuch join, concurring in the judgment in part and dissenting in part. Between 2001 and 2011, Congress considered over two dozen bills that would have granted lawful status to millions of aliens who were illegally brought to this country as children. Each of those legislative efforts failed. In the wake of this impasse, the Department of Homeland Security (DHS) under President Barack Obama took matters into its own hands. Without any purported delegation of authority from Congress and without undertaking a rulemaking, DHS unilaterally created a program known as Deferred Action for Childhood Arrivals (DACA). The three-page DACA memorandum made it possible for approximately 1.7 million illegal aliens to qualify for temporary lawful presence and certain federal and state benefits. When President Donald Trump took office in 2017, his Acting Secretary of Homeland Security, acting through yet another memorandum, rescinded the DACA memorandum. To state it plainly, the Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum. Today the majority makes the mystifying determination that this rescission of DACA was unlawful. In reaching that conclusion, the majority acts as though it is engaging in the routine application of standard principles of administrative law. On the contrary, this is anything but a standard administrative law case. DHS created DACA during the Obama administration without any statutory authorization and without going through the requisite rulemaking process. As a result, the program was unlawful from its inception. The majority does not even attempt to explain why a court has the authority to scrutinize an agency’s policy reasons for rescinding an unlawful program under the arbitrary and capricious microscope. The decision to countermand an unlawful agency action is clearly reasonable. So long as the agency’s determination of illegality is sound, our review should be at an end. Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong DHS’ initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches. Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government. Perhaps even more unfortunately, the majority’s holding creates perverse incentives, particularly for outgoing administrations. Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda. Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration. I respectfully dissent in part.[ 1 ] I A In 2012, after more than two dozen attempts by Congress to grant lawful status to aliens who were brought to this country as children,[ 2 ] the then-Secretary of Homeland Security Janet Napolitano announced, by memorandum, a new “prosecutorial discretion” policy known as DACA. App. to Pet. for Cert. in No. 18–587, p. 97a. The memorandum directed immigration enforcement officers not to remove “certain young people who were brought to this country as children” that met delineated criteria. Id. , at 97a–98a. In the Secretary’s view, the program was consistent with “the framework of the existing law.” Id. , at 101a. DACA granted a renewable 2-year period of “deferred action” that made approximately 1.7 million otherwise removable aliens eligible to remain in this country temporarily.[ 3 ] By granting deferred action, the memorandum also made recipients eligible for certain state and federal benefits, including Medicare and Social Security. See 8 U. S. C. §§1611(b)(2)–(4); 8 CFR §1.3(a)(4)(vi) (2020); 45 CFR §152.2(4)(vi) (2019). In addition, deferred action enabled the recipients to seek work authorization. 8 U. S. C. §1324a(h)(3)(B); 8 CFR §274a.12(c)(14). Despite these changes, the memorandum contradictorily claimed that it “confer[red] no substantive right [or] immigration status,” because “[o]nly the Congress, acting through its legislative authority, can confer these rights.” App. to Pet. for Cert. in No. 18–587, at 101a. In 2014, then-Secretary of Homeland Security Jeh Johnson broadened the deferred-action program in yet another brief memorandum. This 2014 memorandum expanded DACA eligibility by extending the deferred-action period to three years and by relaxing other criteria. It also implemented a related program, known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). DAPA allowed unlawfully present parents to obtain deferred action derivatively through their children who were either citizens or lawful permanent residents. Approximately 4.3 million aliens qualified for DAPA and, as with DACA, these individuals would have become eligible for certain federal and state benefits upon the approval of their DAPA applications. See Texas v. United States , 809 F.3d 134, 181 (CA5 2015). Nevertheless, the 2014 memorandum repeated the incongruous assertion that these programs “d[id] not confer any form of legal status in this country” and added that deferred action “may be terminated at any time at the agency’s discretion.” App. to Pet. for Cert. in No. 18–587, at 104a. B Twenty-six States filed suit to enjoin the implementation of these new programs, DAPA and “expanded DACA,” maintaining that they violated the Constitution, the Administrative Procedure Act (APA), and the Immigration and Naturalization Act (INA). The States contended that, because the 2014 memorandum allowed aliens to receive deferred action and other benefits, it amounted to a legislative rule that had to comply with the APA’s notice and comment procedures. The States also argued that DHS’ decision to recategorize an entire class of aliens from “unlawfully present” to “lawfully present” exceeded its statutory authority under the federal immigration laws. According to the States, these defects rendered the 2014 memorandum arbitrary, capricious, or otherwise not in accordance with law. The District Court preliminarily enjoined DAPA and expanded DACA. The Fifth Circuit affirmed, rejecting DHS’ claim that the programs were an exercise of prosecutorial discretion. Texas , 809 F. 3d, at 167, 188. The court concluded that the States were likely to succeed on their claim that the 2014 memorandum was a legislative rule that had to be adopted through notice and comment rulemaking. Id. , at 171–178. The court further concluded that the 2014 memorandum was “substantively contrary to law” because the INA did not grant DHS the statutory authority to implement either program. Id. , at 170, 178–186. This Court affirmed the Fifth Circuit’s judgment by an equally divided vote. United States v. Texas , 579 U. S. ___ (2016) ( per curiam ). C The 2014 memorandum was rescinded on June 15, 2017, before taking effect. Shortly after that rescission, several of the plaintiff States sent a letter to then-Attorney General Jefferson Sessions III. They contended that the 2012 DACA memorandum was also legally defective because, “just like DAPA, DACA unilaterally confers eligibility for . . . lawful presence without any statutory authorization from Congress.” App. 873. The States wrote that they would amend their complaint to challenge DACA if the administration did not rescind the 2012 memorandum creating DACA by September 5, 2017. On September 4, then-Attorney General Sessions wrote to then-Acting Secretary of Homeland Security Elaine Duke, advising her to rescind DACA. Sessions stated that, in his legal opinion, DACA took effect “through executive action, without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” Id. , at 877. The letter also stated that DACA was infected with the “same legal . . . defects that the courts recognized as to DAPA,” id. , at 878, and thus DACA would likely be enjoined as well. Then-Acting Secretary Duke rescinded DACA the next day, also through a memorandum. Her memorandum began by noting that DACA “purported to use deferred action . . . to confer certain benefits to illegal aliens that Congress had not otherwise acted to provide by law.” App. to Pet. for Cert. in No. 18–587, at 112a. It described the history of the Fifth Circuit litigation, noting that the court had concluded that DAPA “conflicted with the discretion authorized by Congress” because “the [INA] flatly does not permit the reclassification of millions of illegal aliens as lawfully present.” Id ., at 114a (internal quotation marks omitted). Finally, the memorandum accepted then-Attorney General Sessions’ legal determination that DACA was unlawful for the same reasons as DAPA. See §1103(a)(1). In light of the legal conclusions reached by the Fifth Circuit and the Attorney General, then-Acting Secretary Duke set forth the procedures for winding down DACA. These three cases soon followed. In each, respondents claimed, among other things, that DACA’s rescission was arbitrary and capricious under the APA. Two District Courts granted a preliminary nationwide injunction, while the third vacated the rescission. II “ ‘[A]n agency literally has no power to act . . . unless and until Congress confers power upon it.’ ” Arlington v. FCC , 569 U.S. 290 , 317 (2013) (Roberts, C. J., dissenting) (quoting Louisiana Pub. Serv. Comm’n v. FCC , 476 U.S. 355 , 374 (1986)). When an agency exercises power beyond the bounds of its authority, it acts unlawfully. See, e.g. , SAS Institute Inc. v. Iancu , 584 U. S. ___, ___, n. (2018) (slip op., at 11, n.). The 2012 memorandum creating DACA provides a poignant illustration of ultra vires agency action. DACA alters how the immigration laws apply to a certain class of aliens. “DACA [recipients] primarily entered the country either by overstaying a visa or by entering without inspection, and the INA instructs that aliens in both classes are removable.” Texas v. United States , 328 F. Supp. 3d 662, 713 (SD Tex. 2018) (footnote omitted). But DACA granted its recipients deferred action, i.e. , a decision to “decline to institute [removal] proceedings, terminate [removal] proceedings, or decline to institute a final order of [removal].” Reno v. American-Arab Anti-Discrimination Comm. , 525 U.S. 471 , 484 (1999) (internal quotation marks omitted). Under other regulations, recipients of deferred action are deemed lawfully present for purposes of certain federal benefits. See supra , at 4. Thus, DACA in effect created a new exception to the statutory provisions governing removability and, in the process, conferred lawful presence on an entire class of aliens. To lawfully implement such changes, DHS needed a grant of authority from Congress to either reclassify removable DACA recipients as lawfully present, or to exempt the entire class of aliens covered by DACA from statutory removal procedures. No party disputes that the immigration statutes lack an express delegation to accomplish either result. And, an examination of the highly reticulated immigration regime makes clear that DHS has no implicit discretion to create new classes of lawful presence or to grant relief from removal out of whole cloth. Accordingly, DACA is substantively unlawful. This conclusion should begin and end our review. The decision to rescind an unlawful agency action is per se lawful. No additional policy justifications or considerations are necessary. And, the majority’s contrary holding—that an agency is not only permitted, but required, to continue an ultra vires action—has no basis in law. A Congress has not authorized DHS to reclassify an entire class of removable aliens as lawfully present or to categorically exempt aliens from statutory removal provisions. 1 I begin with lawful presence. As just stated, nothing in the federal immigration laws expressly delegates to DHS the unfettered discretion to create new categories of lawfully present aliens. And, there is no basis for concluding that Congress implicitly delegated to DHS the power to reclassify categories of aliens as lawfully present. The immigration statutes provide numerous ways to obtain lawful presence, both temporary and permanent. The highly detailed nature of these provisions indicates that Congress has exhaustively provided for all of the ways that it thought lawful presence should be obtainable, leaving no discretion to DHS to add new pathways. For example, federal immigration laws provide over 60 temporary nonimmigrant visa options, including visas for ambassadors, full-time students and their spouses and children, those engaged to marry a United States citizen within 90 days of arrival, athletes and performers, and aliens with specialized knowledge related to their employers. See §§1101(a)(15)(A)–(V), 1184; 8 CFR §214.1; see also Congressional Research Service, J. Wilson, Nonimmigrant and Immigrant Visa Categories: Data Brief 1–6 (2019) (Table 1). In addition, the statutes permit the Attorney General to grant temporary “parole” into the United States “for urgent humanitarian reasons or [a] significant public benefit,” 8 U. S. C. §1182(d)(5)(A); provide for temporary protected status when the Attorney General finds that removal to a country with an ongoing armed conflict “would pose a serious threat to [an alien’s] personal safety,” §1254a(b)(1)(A); and allow the Secretary of Homeland Security (in consultation with the Secretary of State) to waive visa requirements for certain aliens for up to 90 days, §§1187(a)–(d). The immigration laws are equally complex and detailed when it comes to obtaining lawful permanent residence. Congress has expressly specified numerous avenues for obtaining an immigrant visa, which aliens may then use to become lawful permanent residents. §§1201, 1255(a). Among other categories, immigrant visas are available to specified family-sponsored aliens, aliens with advanced degrees or exceptional abilities, certain types of skilled and unskilled workers, “special immigrants,” and those entering the country to “engag[e] in a new commercial enterprise.” §§1153(a)–(b), 1154; see also Congressional Research Service, Nonimmigrant and Immigrant Visa Categories, at 6–7 (Table 2). Refugees and asylees also may receive lawful permanent residence under certain conditions, §1159; 8 CFR §§209.1, 209.2.[ 4 ] As with temporary lawful presence, each avenue to lawful permanent residence status has its own set of rules and exceptions.[ 5 ] As the Fifth Circuit held in the DAPA litigation, a conclusion with which then-Attorney General Sessions agreed, “specific and detailed provisions[ of] the INA expressly and carefully provid[e] legal designations allowing defined classes of aliens to be lawfully present.” Texas , 809 F. 3d, at 179. In light of this elaborate statutory scheme, the lack of any similar provision for DACA recipients convincingly establishes that Congress left DHS with no discretion to create an additional class of aliens eligible for lawful presence. Congress knows well how to provide broad discretion, and it has provided open-ended delegations of authority in statutes too numerous to name. But when it comes to lawful presence, Congress did something strikingly different. Instead of enacting a statute with “broad general directives” and leaving it to the agency to fill in the lion’s share of the details, Mistretta v. United States , 488 U.S. 361 , 372 (1989), Congress put in place intricate specifications governing eligibility for lawful presence. This comprehensive scheme indicates that DHS has no discretion to supplement or amend the statutory provisions in any manner, least of all by memorandum. See FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120 , 125 (2000) (An agency “may not exercise its authority in a manner that is inconsistent with the administrative structure that Congress enacted” (internal quotation marks omitted)); see also ETSI Pipeline Project v. Missouri , 484 U.S. 495 , 509–510 (1988). 2 The relief that Congress has extended to removable aliens likewise confirms that DACA exceeds DHS’ delegated authority. Through deferred action, DACA grants temporary relief to removable aliens on a programmatic scale. See Texas , 328 F. Supp. 3d, at 714. But as with lawful presence, Congress did not expressly grant DHS the authority to create categorical exceptions to the statute’s removal requirements. And again, as with lawful presence, the intricate level of detail in the federal immigration laws regarding relief from removal indicates that DHS has no discretionary authority to supplement that relief with an entirely new programmatic exemption. At the outset, Congress clearly knows how to provide for classwide deferred action when it wishes to do so. On multiple occasions, Congress has used express language to make certain classes of individuals eligible for deferred action. See 8 U. S. C. §§1154(a)(1)(D)(i)(II), (IV) (certain individuals covered under the Violence Against Women Act are “eligible for deferred action”); Victims of Trafficking and Violence Protection Act of 2000, 114Stat. 1522 (“ ‘Any individual described in subclause (I) is eligible for deferred action’ ”); Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, §423(b), 115Stat. 361 (“Such spouse, child, son, or daughter may be eligible for deferred action”); National Defense Authorization Act for Fiscal Year 2004, §§1703(c)(1)(A), (2), 117Stat. 1694–1695 (“Such spouse or child shall be eligible for deferred action”).[ 6 ] Congress has failed to provide similar explicit provisions for DACA recipients, and the immigration laws contain no indication that DHS can, at will, create its own categorical policies for deferred action. Other provisions pertaining to relief from removal further demonstrate that DHS lacked the delegated authority to create DACA. As with lawful presence, Congress has provided a plethora of methods by which aliens may seek relief from removal. For instance, both permanent and temporary residents can seek cancellation of removal if they meet certain residency requirements and have not committed certain crimes. §§1229b(a)–(b). And certain nonpermanent residents may have their status adjusted to permanent residence during these proceedings. §1229b(b)(2). Aliens can apply for asylum or withholding of removal during removal proceedings unless they have committed certain crimes. §§1158, 1231(b)(3). Applicants for certain nonimmigrant visas may be granted a stay of removal until the visa application is adjudicated. §1227(d). And, aliens may voluntarily depart rather than be subject to an order of removal. §1229c. In sum, like lawful presence, Congress has provided for relief from removal in specific and complex ways. This nuanced detail indicates that Congress has provided the full panoply of methods it thinks should be available for an alien to seek relief from removal, leaving no discretion to DHS to provide additional programmatic forms of relief.[ 7 ] 3 Finally, DHS could not appeal to general grants of authority, such as the Secretary’s ability to “perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter,” §1103(a)(3), or to “[e]stablis[h] national immigration enforcement policies and priorities,” 6 U. S. C. §202(5). See also 8 U. S. C. §1103(g)(2). Because we must interpret the statutes “as a symmetrical and coherent regulatory scheme,” Gustafson v. Alloyd Co. , 513 U.S. 561 , 569 (1995), these grants of authority must be read alongside the express limits contained within the statute. Basing the Secretary’s ability to completely overhaul immigration law on these general grants of authority would eviscerate that deliberate statutory scheme by “allow[ing the Secretary of DHS] to grant lawful presence . . . to any illegal alien in the United States.” Texas , 809 F. 3d, at 184. Not only is this “an untenable position in light of the INA’s intricate system,” ibid. , but it would also render many of those provisions wholly superfluous due to DHS’ authority to disregard them at will, Duncan v. Walker , 533 U.S. 167 , 174 (2001). And in addition to these fatal problems, adopting a broad interpretation of these general grants of authority would run afoul of the presumption that “Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” Whitman v. American Trucking Assns. , Inc. , 531 U.S. 457 , 468 (2001). And it would also conflict with the major questions doctrine, which is based on the expectation that Congress speaks clearly when it delegates the power to make “decisions of vast economic and political significance.” Utility Air Regulatory Group v. EPA , 573 U.S. 302 , 324 (2014) ( UARG ) (internal quotation marks omitted); see also Texas , 787 F. 3d, at 760–761. Read together, the detailed statutory provisions governing temporary and lawful permanent resident status, relief from removal, and classwide deferred-action programs lead ineluctably to the conclusion that DACA is “inconsisten[t] with the design and structure of the statute as a whole.” University of Tex. Southwestern Medical Center v. Nassar , 570 U.S. 338 , 353 (2013). As the District Court stated in the DAPA litigation and as then-Attorney General Sessions agreed, “[i]nstead of merely refusing to enforce the INA’s removal laws against an individual, the DHS has enacted a wide-reaching program that awards legal presence . . . to individuals Congress has deemed deportable or removable.” Texas v. United States , 86 F. Supp. 3d 591, 654 (SD Tex. 2015). The immigration statutes contain a level of granular specificity that is exceedingly rare in the modern administrative state. It defies all logic and common sense to conclude that a statutory scheme detailed enough to provide conditional lawful presence to groups as narrowly defined as “alien entrepreneurs,” §1186b, is simultaneously capacious enough for DHS to grant lawful presence to almost two million illegal aliens with the stroke of a Cabinet secretary’s pen. B Then-Attorney General Sessions concluded that the initial DACA program suffered from the “same legal . . . defects” as DAPA and expanded DACA, finding that, like those programs, DACA was implemented without statutory authority. App. 877–878. Not only was this determination correct, but it is also dispositive for purposes of our review. “It is axiomatic that an administrative agency’s power . . . is limited to the authority granted by Congress.” Bowen v. Georgetown Univ. Hospital , 488 U.S. 204 , 208 (1988). DHS had no authority here to create DACA, and the unlawfulness of that program is a sufficient justification for its rescission. The majority opts for a different path, all but ignoring DACA’s substantive legal defect. See ante , at 18–19. On the majority’s understanding of APA review, DHS was required to provide additional policy justifications in order to rescind an action that it had no authority to take. This rule “has no basis in our jurisprudence, and support for [it] is conspicuously absent from the Court’s opinion.” Massachusetts v. EPA , 549 U.S. 497 , 536 (2007) (Roberts, C. J., dissenting). The lack of support for the majority’s position is hardly surprising in light of our Constitution’s separation of powers. No court can compel Executive Branch officials to exceed their congressionally delegated powers by continuing a program that was void ab initio . Cf. Clinton v. City of New York , 524 U.S. 417 (1998); INS v. Chadha , 462 U.S. 919 (1983); see also EPA v. EME Homer City Generation , L. P. , 572 U.S. 489 , 542, n. 5 (2014) (Scalia, J., dissenting); Public Citizen v. Department of Justice , 491 U.S. 440 , 487 (1989) (Kennedy, J., concurring in judgment). In reviewing agency action, our role is to ensure that Executive Branch officials do not transgress the proper bounds of their authority, Arlington , 569 U. S., at 327 (Roberts, C. J., dissenting), not to perpetuate a decision to unlawfully wield power in direct contravention of the enabling statute’s clear limits, see UARG , 573 U. S., at 327–328; Barnhart v. Sigmon Coal Co. , 534 U.S. 438 , 462 (2002). Under our precedents, DHS can only exercise the authority that Congress has chosen to delegate to it. See UARG , 573 U. S., at 327. In implementing DACA, DHS under the Obama administration arrogated to itself power it was not given by Congress. Thus, every action taken by DHS under DACA is the unlawful exercise of power. Now, under the Trump administration, DHS has provided the most compelling reason to rescind DACA: The program was unlawful and would force DHS to continue acting unlawfully if it carried the program forward. III The majority’s demanding review of DHS’ decisionmaking process is especially perverse given that the 2012 memorandum flouted the APA’s procedural requirements—the very requirements designed to prevent arbitrary decisionmaking. Even if DHS were authorized to create DACA, it could not do so without undertaking an administrative rulemaking. The fact that DHS did not engage in this process likely provides an independent basis for rescinding DACA. But at the very least, this procedural defect compounds the absurdity of the majority’s position in these cases. As described above, DACA fundamentally altered the immigration laws. It created a new category of aliens who, as a class, became exempt from statutory removal procedures, and it gave those aliens temporary lawful presence. Both changes contravened statutory limits. DACA is thus what is commonly called a substantive or legislative rule.[ 8 ] As the name implies, our precedents state that legislative rules are those that “have the force and effect of law.” Chrysler Corp. v. Brown , 441 U.S. 281 , 295 (1979) (internal quotation marks omitted). Our precedents allow the vast majority of legislative rules to proceed through so-called “informal” notice and comment rulemaking. See United States v. Florida East Coast R. Co. , 410 U.S. 224 , 237–238 (1973).[ 9 ] But under our precedents, an agency must engage in certain procedures mandated by the APA before its rule carries legal force. Kisor v. Wilkie , 588 U. S. ___, ___ (2019) (plurality opinion) (slip op., at 23) (“[A] legislative rule, . . . to be valid[,] must go through notice and comment”); id. , at ___ (Gorsuch, J., concurring in judgment) (slip op., at 17) (same); Perez v. Mortgage Bankers Assn. , 575 U.S. 92, 96 (2015); cf. Azar v. Allina Health Services , 587 U. S. ___, ___ (2019) (slip op., at 1) (same with respect to materially identical procedures under the Medicare Act). These procedures specify that the agency “shall” publish a notice of proposed rulemaking in the Federal Register, justify the rule by reference to legal authority, describe “the subjects and issues involved” in the rule, and allow interested parties to submit comments. 5 U. S. C. §§553(b)–(c); see also Kisor , 588 U. S., at ___ (opinion of Gorsuch, J.) (slip op., at 17). As we have recognized recently, use of the word “shall” indicates that these procedures impose mandatory obligations on the agency before it can adopt a valid binding regulation. See Maine Community Health Options v. United States , 590 U. S. ___, ___ (2020) (slip op., at 12). After undergoing notice and comment, the agency then publishes the final rule, which must “articulate a satisfactory explanation for [the] action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Assn. of United States , Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S. 29 , 43 (1983) (internal quotation marks omitted). Only after completing this process is the legislative rule a valid law. See Kisor , 588 U. S., at ___ (opinion of Gorsuch, J.) (slip op., at 17).[ 10 ] Because DACA has the force and effect of law, DHS was required to observe the procedures set out in the APA if it wanted to promulgate a legislative rule. It is undisputed, however, that DHS did not do so. It provided no opportunity for interested parties to submit comments regarding the effect that the program’s dramatic and very significant change in immigration law would have on various aspects of society. It provided no discussion of economic considerations or national security interests. Nor did it provide any substantial policy justifications for treating young people brought to this country differently from other classes of aliens who have lived in the country without incident for many years. And, it did not invoke any law authorizing DHS to create such a program beyond its inexplicable assertion that DACA was consistent with existing law. Because DHS failed to engage in the statutorily mandated process, DACA never gained status as a legally binding regulation that could impose duties or obligations on third parties. See id. , at ___ (plurality opinion) (slip op., at 23); id. , at ___ (opinion of Gorsuch, J.) (slip op., at 17). Given this state of affairs, it is unclear to me why DHS needed to provide any explanation whatsoever when it decided to rescind DACA. Nothing in the APA suggests that DHS was required to spill any ink justifying the rescission of an invalid legislative rule, let alone that it was required to provide policy justifications beyond acknowledging that the program was simply unlawful from the beginning. And, it is well established that we do not remand for an agency to correct its reasoning when it was required by law to take or abstain from an action. See Morgan Stanley Capital Group Inc. v. Public Util. Dist. No. 1 of Snohomish Cty. , 554 U.S. 527 , 544–545 (2008). Here, remand would be futile, because no amount of policy explanation could cure the fact that DHS lacked statutory authority to enact DACA in the first place. Instead of recognizing this, the majority now requires the rescinding Department to treat the invalid rule as though it were legitimate. As just explained, such a requirement is not supported by the APA.[ 11 ] It is also absurd, as evidenced by its application to DACA in these cases. The majority insists that DHS was obligated to discuss its choices regarding benefits and forbearance in great detail, even though no such detailed discussion accompanied DACA’s issuance. And, the majority also requires DHS to discuss reliance interests at length, even though deferred action traditionally does not take reliance interests into account and DHS was not forced to explain its treatment of reliance interests in the first instance by going through notice and comment. See infra , at 23–24. The majority’s demand for such an explanation here simply makes little sense. At bottom, of course, none of this matters, because DHS did provide a sufficient explanation for its action. DHS’ statement that DACA was ultra vires was more than sufficient to justify its rescission.[ 12 ] By requiring more, the majority has distorted the APA review process beyond recognition, further burdening all future attempts to rescind unlawful programs. Plaintiffs frequently bring successful challenges to agency actions by arguing that the agency has impermissibly dressed up a legislative rule as a policy statement and must comply with the relevant procedures before functionally binding regulated parties. See, e.g. , Mendoza v. Perez , 754 F.3d 1002 (CADC 2014); Natural Resources Defense Council v. EPA , 643 F.3d 311 (CADC 2011); National Family Planning & Reproductive Health Assn. , Inc. v. Sullivan , 979 F.2d 227 (CADC 1992). But going forward, when a rescinding agency inherits an invalid legislative rule that ignored virtually every rulemaking requirement of the APA, it will be obliged to overlook that reality. Instead of simply terminating the program because it did not go through the requisite process, the agency will be compelled to treat an invalid legislative rule as though it were legitimate.[ 13 ] IV Even if I were to accept the majority’s premise that DACA’s rescission required additional policy justifications, the majority’s reasons for setting aside the agency’s decision still fail. A First, the majority claims that the Fifth Circuit discussed only the legality of the 2014 memorandum’s conferral of benefits, not its “forbearance component”— i.e. , the decision not to place DACA recipients into removal proceedings. Ante , at 20. The majority, therefore, claims that, notwithstanding the then-Attorney General’s legal conclusion, then-Acting Secretary Duke was required to consider revoking DACA recipients’ lawful presence and other attendant benefits while continuing to defer their removal. Ante , at 22–23. Even assuming the majority correctly characterizes the Fifth Circuit’s opinion, it cites no authority for the proposition that arbitrary and capricious review requires an agency to dissect an unlawful program piece by piece, scrutinizing each separate element to determine whether it would independently violate the law, rather than just to rescind the entire program.[ 14 ] The then-Attorney General reviewed the thorough decisions of the District Court and the Fifth Circuit. Those courts exhaustively examined the INA’s text and structure, the relevant provisions of other federal immigration statutes, the historical practice of deferred action, and the general grants of statutory authority to set immigration policy. Both decisions concluded that DAPA and expanded DACA violated the carefully crafted federal immigration scheme, that such violations could not be justified through reference to past exercises of deferred action, and that the general grants of statutory authority did not give DHS the power to enact such a sweeping nonenforcement program. Based on the reasoning of those decisions, then-Attorney General Sessions concluded that DACA was likewise implemented without statutory authority. He directed DHS to restore the rule of law. DHS followed the then-Attorney General’s legal analysis and rescinded the program. This legal conclusion more than suffices to supply the “reasoned analysis” necessary to rescind an unlawful program. State Farm , 463 U. S., at 42. The majority has no answer except to suggest that this approach is inconsistent with State Farm . See ante , at 21–22. But in doing so, the majority ignores the fact that, unlike the typical “prior policy” contemplated by the Court in State Farm , DACA is unlawful. Neither State Farm nor any other decision cited by the majority addresses what an agency must do when it has inherited an unlawful program. It is perhaps for this reason that, rather than responding with authority of its own, the majority simply opts to excise the “unlawful policy” aspect from its discussion. B Second, the majority claims that DHS erred by failing to take into account the reliance interests of DACA recipients. Ante , at 23–26. But reliance interests are irrelevant when assessing whether to rescind an action that the agency lacked statutory authority to take. No amount of reliance could ever justify continuing a program that allows DHS to wield power that neither Congress nor the Constitution gave it. Any such decision would be “not in accordance with law” or “in excess of statutory . . . authority.” 5 U. S. C. §§706(2)(A), (C). Accordingly, DHS would simply be engaging in yet another exercise of unlawful power if it used reliance interests to justify continuing the initially unlawful program, and a court would be obligated to set aside that action.[ 15 ] Even if reliance interests were sometimes relevant when rescinding an ultra vires action, the rescission still would not be arbitrary and capricious here. Rather, as the majority does not dispute, the rescission is consistent with how deferred action has always worked. As a general matter, deferred action creates no rights—it exists at the Government’s discretion and can be revoked at any time. See App. to Pet. for Cert. in No. 18–587, at 104a (DACA and expanded DACA); 8 CFR §214.11(j)(3) (T visas); §214.14(d)(2) (U visas); 62 Fed. Reg. 63249, 63253 (1997) (discussing Exec. Order No. 12711 for certain citizens of the People’s Republic of China). The Government has made clear time and again that, because “deferred action is not an immigration status, no alien has the right to deferred action. It is used solely in the discretion of the [Government] and confers no protection or benefit upon an alien.” DHS Immigration and Customs Enforcement Office of Detention and Removal, Detention and Deportation Officers’ Field Manual §20.8 (Mar. 27, 2006); see also Memorandum from D. Meissner, Comm’r, INS, to Regional Directors et al., pp. 11–12 (Nov. 17, 2000); Memorandum from W. Yates, Assoc. Director of Operations, DHS, Citizenship and Immigration Servs., to Director, Vt. Serv. Center, p. 5 (2003). Thus, contrary to the majority’s unsupported assertion, ante , at 23, this longstanding administrative treatment of deferred action provides strong evidence and authority for the proposition that an agency need not consider reliance interests in this context.[ 16 ] Finally, it is inconceivable to require DHS to study reliance interests before rescinding DACA considering how the program was previously defended. DHS has made clear since DACA’s inception that it would not consider such reliance interests. Contemporaneous with the DACA memo, DHS stated that “DHS can terminate or renew deferred action at any time at the agency’s discretion.” Consideration of Deferred Action for Childhood Arrivals Process, 89 Interpreter Releases 1557, App. 4, p. 2 (Aug. 20, 2012). In fact, DHS repeatedly argued in court that the 2014 memorandum was a valid exercise of prosecutorial discretion in part because deferred action created no rights on which recipients could rely. Before the Fifth Circuit, DHS stated that “DHS may revoke or terminate deferred action and begin removal proceedings at any time at its discretion.” Brief for Appellants in Texas v. United States , No. 15–40238, p. 7; see also id. , at 45–46. And before this Court, in that same litigation, DHS reiterated that “DHS has absolute discretion to revoke deferred action unilaterally, without notice or process.” Brief for United States in United States v. Texas , O. T. 2015, No. 15–674, p. 5; see also id. , at 37. If that treatment of reliance interests was incorrect, it provides yet one more example of a deficiency in DACA’s issuance, not its rescission. *  *  * President Trump’s Acting Secretary of Homeland Security inherited a program created by President Obama’s Secretary that was implemented without statutory authority and without following the APA’s required procedures. Then-Attorney General Sessions correctly concluded that this ultra vires program should be rescinded. These cases could—and should—have ended with a determination that his legal conclusion was correct. Instead, the majority today concludes that DHS was required to do far more. Without grounding its position in either the APA or precedent, the majority declares that DHS was required to overlook DACA’s obvious legal deficiencies and provide additional policy reasons and justifications before restoring the rule of law. This holding is incorrect, and it will hamstring all future agency attempts to undo actions that exceed statutory authority. I would therefore reverse the judgments below and remand with instructions to dissolve the nationwide injunctions. Notes 1 I concur in the judgment insofar as the majority rejects respondents’ equal protection claim. 2 See Immigrant Children’s Educational Advancement and Dropout Prevention Act of 2001, H. R. 1582, 107th Cong., 1st Sess.; Student Adjustment Act of 2001, H. R. 1918, 107th Cong., 1st Sess.; DREAM Act, S. 1291, 107th Cong., 1st Sess. (2001); DREAM Act, S. 1545, 108th Cong., 1st Sess. (2003); Student Adjustment Act of 2003, H. R. 1684, 108th Cong., 1st Sess.; DREAM Act, S. 2863, 108th Cong., 2d Sess., Tit. XVIII (2003); DREAM Act of 2005, S. 2075, 109th Cong., 1st Sess.; Comprehensive Immigration Reform Act of 2006, S. 2611, 109th Cong., 2d Sess., Tit. VI, Subtitle C; American Dream Act, H. R. 5131, 109th Cong., 2d Sess. (2006); DREAM Act of 2007, S. 774, 110th Cong., 1st Sess.; DREAM Act of 2007, S. 2205, 110th Cong., 1st Sess.; STRIVE Act of 2007, H. R. 1645, 110th Cong., 1st Sess., Tit. VI, Subtitle B; Comprehensive Immigration Reform Act of 2007, S. 1348, 110th Cong., 1st Sess., Tit. VI, Subtitle C; DREAM Act of 2009, S. 729, 111th Cong., 1st Sess.; American Dream Act, H. R. 1751, 111th Cong., 1st Sess.; Comprehensive Immigration Reform Act of 2010, S. 3932, 111th Cong., 2d Sess., Tit. V, Subtitle D; DREAM Act of 2010, S. 3827, 111th Cong., 2d Sess.; DREAM Act of 2010, S. 3962, 111th Cong., 2d Sess.; DREAM Act of 2010, S. 3963, 111th Cong., 2d Sess.; DREAM Act of 2010, S. 3992, 111th Cong., 2d Sess.; DREAM Act of 2010, H. R. 6497, 111th Cong., 2d Sess.; DREAM Act of 2011, S. 952, 112th Cong., 1st Sess. 3 See J. Passel & M. Lopez, Pew Research Center, Up to 1.7 Million Unauthorized Immigrant Youth May Benefit From New Deportation Rules (Aug. 14, 2012). 4 The immigration statutes also provide for conditional lawful permanent residence status. See §1186a(b)(1)(A)(i) (two years for spouses to demonstrate that the marriage “was [not] entered into for the purpose of procuring an alien’s admission as an immigrant”); §1186b (qualifying business entrepreneurs). 5 For instance, Congress has carved out rules for aliens who served in the Armed Forces, §§1438–1440, and alien spouses who have been subject to domestic abuse, §§1186a(c)(4)(C)–(D). 6 In the DAPA litigation, DHS noted that some deferred-action programs have been implemented by the Executive Branch without explicit legislation. But “ ‘past practice does not, by itself, create [executive] power.’ ” Medellín v. Texas , 552 U.S. 491 , 532 (2008) (quoting Dames & Moore v. Regan , 453 U.S. 654 , 686 (1981)). If any of these programs had been challenged, it would seem that they would be legally infirm for the same reasons as DACA. Moreover, if DHS had the authority to create new categories of aliens eligible for deferred action, then all of Congress’ deferred-action legislation was but a superfluous exercise. Duncan v. Walker , 533 U.S. 167 , 174 (2001). Finally, whereas some deferred-action programs were followed by legislation, DACA has existed for eight years, and Congress is no closer to a legislative solution than it was in 2012. See, e.g. , American Dream and Promise Act of 2019, H. R. 6, 116th Cong., 1st Sess. 7 It is uncontested that deferred action frequently occurs on a case-by-case basis, often justified on the grounds that the agency lacks resources to remove all removable aliens. Even assuming that these ad hoc exercises of discretion are permissible, however, we have stated that “[a]n agency confronting resource constraints may change its own conduct, but it cannot change the law.” Utility Air Regulatory Group v. EPA , 573 U.S. 302 , 327 (2014). 8 The majority tacitly acknowledges as much, as it must. See ante , at 11–12. Otherwise, the majority would have to accept that DACA was nothing more than a policy of prosecutorial discretion, which would make its rescission unreviewable. See Heckler v. Chaney , 470 U.S. 821 , 831 (1985). 9 As I have previously pointed out, “the APA actually contemplated a much more formal process for most rulemaking.” Perez v. Mortgage Bankers Assn. , 575 U.S. 92, 128, n. 5 (2015) (opinion concurring in judgment). 10 The APA also provides certain exceptions from notice and comment rulemaking. For example, an agency may promulgate a legally binding rule without notice and comment if good cause exists to do so. 5 U. S. C. §553(b)(B). This text would become a nullity if the agency could achieve the same effect by simply dispensing with notice and comment procedures altogether. 11 Thus, it is not that the APA “ should not” be construed to support the majority’s result, ante , at 26 (emphasis added), it is that the APA does not and cannot support that result. 12 I express no view on what other reasons would justify an agency’s decision to rescind a procedurally unlawful action. I merely point out that correctly concluding that the program was illegal is sufficient. 13 In my view, even if DACA were permitted under the federal immigration laws and had complied with the APA, it would still violate the Constitution as an impermissible delegation of legislative power. See Department of Transportation v. Association of American Railroads , 575 U.S. 43, 77 (2015) (Thomas, J., concurring in judgment). Putting aside this constitutional concern, however, the notice and comment process at least attempts to provide a “surrogate political process” that takes some of the sting out of the inherently undemocratic and unaccountable rulemaking process. Asimow, Interim-Final Rules: Making Haste Slowly, 51 Admin. L. Rev. 703, 708 (1999). 14 The majority’s interpretation of the Fifth Circuit’s opinion is highly questionable. Because a grant of deferred action renders DACA recipients eligible for certain benefits and work authorization, it is far from clear that the Department could separate DACA’s “forbearance component” from the major benefits it conferred without running into yet another APA problem. The majority points to the fact that, under the Patient Protection and Affordable Care Act of 2010, relevant regulations exclude those receiving deferred action through DACA from coverage. Ante , at 19, n. 5. But that misses the point. Those regulations were promulgated before “anyone with deferred action under the DACA process applie[d]” for those benefits. See 77 Fed. Reg. 52616 (2012). By contrast, DACA recipients have been eligible for and have received Medicare, Social Security, and work authorization for years. DHS therefore is not writing on a blank slate. Under the majority’s rule, DHS would need to amend all relevant regulations and explain why all recipients of deferred action who have previously received such benefits may no longer receive them. Alternatively and perhaps more problematically, it would need to provide a reason why other recipients of deferred action should continue to qualify, while DACA recipients should not. It thus seems highly likely that the majority’s proposed course of action would be subject to serious arbitrary and capricious challenges. 15 The majority contends that this argument does not carry force because the rescission implemented a winddown period during which recipients would continue to receive benefits. But whether DHS’ decision to wind down DACA was lawful is a separate question from whether DHS was required to consider reliance interests before discontinuing an unlawful program. 16 The majority’s approach will make it far more difficult to change deferred-action programs going forward, which is hardly in keeping with this Court’s own understanding that deferred action is an “exercise in administrative discretion” used for administrative “convenience.” Reno v. American-Arab Anti-Discrimination Comm. , 525 U.S. 471 , 484 (1999). Agencies will likely be less willing to grant deferred action knowing that any attempts to undo it will require years of litigation and time-consuming rulemakings. SUPREME COURT OF THE UNITED STATES _________________ Nos. 18–587, 18–588, and 18–589 _________________ DEPARTMENT OF HOMELAND SECURITY, et al., PETITIONERS 18–587 v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al. on writ of certiorari to the united states court of appeals for the ninth circuit DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al., PETITIONERS 18–588 v. NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al.; AND on writ of certiorari before judgment to the united states court of appeals for the district of columbia circuit CHAD WOLF, ACTING SECRETARY OF HOMELAND SECURITY, et al., PETITIONERS 18–589 v. MARTIN JONATHAN BATALLA VIDAL, et al. on writ of certiorari before judgment to the united states court of appeals for the second circuit [June 18, 2020] Justice Alito, concurring in the judgment in part and dissenting in part. Anyone interested in the role that the Federal Judiciary now plays in our constitutional system should consider what has happened in these cases. Early in the term of the current President, his administration took the controversial step of attempting to rescind the Deferred Action for Childhood Arrivals (DACA) program. Shortly thereafter, one of the nearly 700 federal district court judges blocked this rescission, and since then, this issue has been mired in litigation. In November 2018, the Solicitor General filed petitions for certiorari, and today, the Court still does not resolve the question of DACA’s rescission. Instead, it tells the Department of Homeland Security to go back and try again. What this means is that the Federal Judiciary, without holding that DACA cannot be rescinded, has prevented that from occurring during an entire Presidential term. Our constitutional system is not supposed to work that way. I join Justice Thomas’s opinion. DACA presents a delicate political issue, but that is not our business. As Justice Thomas explains, DACA was unlawful from the start, and that alone is sufficient to justify its termination. But even if DACA were lawful, we would still have no basis for overturning its rescission. First, to the extent DACA represented a lawful exercise of prosecutorial discretion, its rescission represented an exercise of that same discretion, and it would therefore be unreviewable under the Administrative Procedure Act. 5 U. S. C. §701(a)(2); see Heckler v. Chaney , 470 U.S. 821 , 831–832 (1985). Second, to the extent we could review the rescission, it was not arbitrary and capricious for essentially the reasons explained by Justice Kavanaugh. See post , at 4–6 (opinion concurring in the judgment in part and dissenting in part). SUPREME COURT OF THE UNITED STATES _________________ Nos. 18–587, 18–588, and 18–589 _________________ DEPARTMENT OF HOMELAND SECURITY, et al., PETITIONERS 18–587 v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al. on writ of certiorari to the united states court of appeals for the ninth circuit DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al., PETITIONERS 18–588 v. NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al.; AND on writ of certiorari before judgment to the united states court of appeals for the district of columbia circuit CHAD WOLF, ACTING SECRETARY OF HOMELAND SECURITY, et al., PETITIONERS 18–589 v. MARTIN JONATHAN BATALLA VIDAL, et al. on writ of certiorari before judgment to the united states court of appeals for the second circuit [June 18, 2020] Justice Kavanaugh, concurring in the judgment in part and dissenting in part. For the last 20 years, the country has engaged in consequential policy, religious, and moral debates about the legal status of millions of young immigrants who, as children, were brought to the United States and have lived here ever since. Those young immigrants do not have legal status in the United States under current statutory law. They live, go to school, and work here with uncertainty about their futures. Despite many attempts over the last two decades, Congress has not yet enacted legislation to afford legal status to those immigrants. In 2012, exercising its view of the Executive’s prosecutorial discretion under Article II and the immigration laws, President Obama’s administration unilaterally instituted a program known as Deferred Action for Childhood Arrivals, or DACA. Under DACA, eligible young immigrants may apply for and receive deferred action. They must renew their DACA status every two years. Under the program, the Executive Branch broadly forbears from enforcing certain immigration removal laws against DACA recipients. And by virtue of the forbearance, DACA recipients also become eligible for work authorization and other benefits. Since 2017, President Trump’s administration has sought to rescind DACA based on its different and narrower understanding of the Executive’s prosecutorial discretion under Article II and the immigration laws. In its view, the Executive Branch legally may not, and as a policy matter should not, unilaterally forbear from enforcing the immigration laws against such a large class of individuals. The current administration has stated that it instead wants to work with Congress to enact comprehensive legislation that would address the legal status of those immigrants together with other significant immigration issues. The question before the Court is whether the Executive Branch acted lawfully in ordering rescission of the ongoing DACA program. To begin with, all nine Members of the Court accept, as do the DACA plaintiffs themselves, that the Executive Branch possesses the legal authority to rescind DACA and to resume pre-DACA enforcement of the immigration laws enacted by Congress. Having previously adopted a policy of prosecutorial discretion and nonenforcement with respect to a particular class of offenses or individuals, the Executive Branch has the legal authority to rescind such a policy and resume enforcing the law enacted by Congress. The Executive Branch’s exercise of that rescission authority is subject to constitutional constraints and may also be subject to statutory constraints. The narrow legal dispute here concerns a statutory constraint—namely, whether the Executive Branch’s action to rescind DACA satisfied the general arbitrary-and-capricious standard of the Administrative Procedure Act, or APA. The APA’s arbitrary-and-capricious standard requires that agency action be reasonable and reasonably explained. As the Court has long stated, judicial review under that standard is deferential to the agency. The Court may not substitute its policy judgment for that of the agency. The Court simply ensures that the agency has acted within a broad zone of reasonableness and, in particular, has reasonably considered the relevant issues and reasonably explained the decision. See FCC v. Fox Television Stations, Inc. , 556 U.S. 502 (2009); Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S. 29 (1983). The Executive Branch explained its decision to rescind DACA in two sequential memorandums by successive Secretaries of Homeland Security: the 2017 Duke Memorandum and the 2018 Nielsen Memorandum. The Duke Memorandum focused on DACA’s perceived legal flaws. The Court today finds the Duke Memorandum insufficient under the APA’s arbitrary-and-capricious standard. But regardless of whether the Court is correct about the Duke Memorandum, the Nielsen Memorandum more fully explained the Department’s legal reasons for rescinding DACA, and clarified that even if DACA were lawful, the Department would still rescind DACA for a variety of policy reasons. The Nielsen Memorandum also expressly addressed the reliance interests of DACA recipients. The question under the APA’s deferential arbitrary-and-capricious standard is not whether we agree with the Department’s decision to rescind DACA. The question is whether the Nielsen Memorandum reasonably explained the decision to rescind DACA. Under ordinary application of the arbitrary-and-capricious standard, the Nielsen Memorandum—with its alternative and independent rationales and its discussion of reliance—would pass muster as an explanation for the Executive Branch’s action. The Nielsen Memorandum was issued nine months after the Duke Memorandum. Under the Administrative Procedure Act, the Nielsen Memorandum is itself a “rule” setting forth “an agency statement of general . . . applicability and future effect designed to implement . . . policy.” 5 U. S. C. §551(4). Because it is a rule, the Nielsen Memorandum constitutes “agency action.” §551(13). As the Secretary of Homeland Security, Secretary Nielsen had the authority to decide whether to stick with Secretary Duke’s decision to rescind DACA, or to make a different decision. Like Secretary Duke, Secretary Nielsen chose to rescind DACA, and she provided additional explanation. Her memorandum was akin to common forms of agency action that follow earlier agency action on the same subject—for example, a supplemental or new agency statement of policy, or an agency order with respect to a motion for rehearing or reconsideration. Courts often consider an agency’s additional explanations of policy or additional explanations made, for example, on agency rehearing or reconsideration, or on remand from a court, even if the agency’s bottom-line decision itself does not change. Yet the Court today jettisons the Nielsen Memorandum by classifying it as a post hoc justification for rescinding DACA. Ante , at 14–16. Under our precedents, however, the post hoc justification doctrine merely requires that courts assess agency action based on the official explanations of the agency decisionmakers, and not based on after-the-fact explanations advanced by agency lawyers during litigation (or by judges). See, e.g., State Farm , 463 U. S., at 50 (“courts may not accept appellate counsel’s post hoc rationalizations for agency action”); FPC v. Texaco Inc. , 417 U.S. 380 , 397 (1974) (same); NLRB v. Metropolitan Life Ins. Co. , 380 U.S. 438 , 443–444 (1965) (same); Burlington Truck Lines, Inc. v. United States , 371 U.S. 156 , 168–169 (1962) (same). As the D. C. Circuit has explained, the post hoc justification doctrine “is not a time barrier which freezes an agency’s exercise of its judgment after an initial decision has been made and bars it from further articulation of its reasoning. It is a rule directed at reviewing courts which forbids judges to uphold agency action on the basis of rationales offered by anyone other than the proper decisionmakers.” Alpharma, Inc. v. Leavitt , 460 F.3d 1 , 6 (2006) (Garland, J.) (internal quotation marks omitted). Indeed, the ordinary judicial remedy for an agency’s insufficient explanation is to remand for further explanation by the relevant agency personnel. It would make little sense for a court to exclude official explanations by agency personnel such as a Cabinet Secretary simply because the explanations are purportedly post hoc , and then to turn around and remand for further explanation by those same agency personnel. Yet that is the upshot of the Court’s application of the post hoc justification doctrine today. The Court’s refusal to look at the Nielsen Memorandum seems particularly mistaken, moreover, because the Nielsen Memorandum shows that the Department, back in 2018, considered the policy issues that the Court today says the Department did not consider. Ante, at 20–26. To be sure, cases such as Overton Park and Camp v. Pitts suggest that courts reviewing certain agency adjudications may in some circumstances decline to examine an after-the-fact agency explanation. See Camp v. Pitts , 411 U.S. 138 , 142–143 (1973) ( per curiam ); Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402 , 419–421 (1971). But agency adjudications are “concerned with the determination of past and present rights and liabilities,” Attorney General’s Manual on the Administrative Procedure Act 14 (1947), and implicate the due process interests of the individual parties to the adjudication. Judicial review of an adjudication therefore ordinarily focuses on what happened during the agency’s adjudication process of deciding that individual case. Even if certain agency adjudications have a slightly more stringent restriction on post hoc explanations, the APA is “based upon a dichotomy between rule making and adjudication,” ibid ., and this case involves an ongoing agency rule that has future effect—the rescission of DACA. The Nielsen Memorandum implements and explains the rescission of DACA. I am aware of no case from this Court, and the Court today cites none, that has employed the post hoc justification doctrine to exclude an agency’s official explanation of an agency rule. For purposes of arbitrary-and-capricious review, it does not matter whether the latest official explanation was two years ago or three years ago. What matters is whether the explanation was reasonable and followed the requisite procedures. In my view, the Court should consider the Nielsen Memorandum in deciding whether the Department’s rescission of DACA satisfies the APA’s arbitrary-and-capricious standard. Because the Court excludes the Nielsen Memorandum, the Court sends the case back to the Department of Homeland Security for further explanation. Although I disagree with the Court’s decision to remand, the only practical consequence of the Court’s decision to remand appears to be some delay. The Court’s decision seems to allow the Department on remand to relabel and reiterate the substance of the Nielsen Memorandum, perhaps with some elaboration as suggested in the Court’s opinion. Ante, at 23–26.[ 1 ] *  *  * The Court’s resolution of this narrow APA issue of course cannot eliminate the broader uncertainty over the status of the DACA recipients. That uncertainty is a result of Congress’s inability thus far to agree on legislation, which in turn has forced successive administrations to improvise, thereby triggering many rounds of relentless litigation with the prospect of more litigation to come. In contrast to those necessarily short-lived and stopgap administrative measures, the Article I legislative process could produce a sturdy and enduring solution to this issue, one way or the other, and thereby remove the uncertainty that has persisted for years for these young immigrants and the Nation’s immigration system. In the meantime, as to the narrow APA question presented here, I appreciate the Court’s careful analysis, but I ultimately disagree with its treatment of the Nielsen Memorandum. I therefore respectfully dissent from the Court’s judgment on plaintiffs’ APA claim, and I concur in the judgment insofar as the Court rejects plaintiffs’ equal protection claim. Notes 1 Because I conclude that the Executive Branch satisfied the APA’s arbitrary-and-capricious standard, I need not consider whether its prosecutorial enforcement policy was “committed to agency discretion by law” and therefore not subject to APA arbitrary-and-capricious review in the first place. 5 U. S. C. §701(a)(2). Several judges have advanced arguments suggesting that DACA—at least to the extent it was simply an exercise of forbearance authority—and the repeal of DACA are decisions about whether and to what extent to exercise prosecutorial discretion against a class of offenses or individuals, and are therefore unreviewable under the APA as “committed to agency discretion by law.” Ibid. ; see Casa De Maryland v. United States Dept. of Homeland Security , 924 F.3d 684, 709–715 (CA4 2019) (Richardson, J., concurring in part and dissenting in part); Regents of Univ. Cal. v. United States Dept. of Homeland Security , 908 F.3d 476, 521–523 (CA9 2018) (Owens, J., concurring in judgment); see also Texas v. United States , 809 F.3d 134, 196–202 (CA5 2015) (King, J., dissenting); Texas v. United States , 787 F.3d 733, 770–776 (CA5 2015) (Higginson, J., dissenting); cf. Heckler v. Chaney , 470 U.S. 821 , 831–835 (1985); ICC v. Locomotive Engineers , 482 U.S. 270 , 277–284 (1987); United States v. Nixon , 418 U.S. 683 , 693 (1974) (“the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case”); In re Aiken County , 725 F.3d 255, 262–264 (CADC 2013).

The Supreme Court ruled that the Department of Homeland Security's decision to rescind the Deferred Action for Childhood Arrivals (DACA) program was arbitrary and capricious, and therefore unlawful under the Administrative Procedure Act (APA). The Court found that the Acting Secretary of Homeland Security failed to adequately address important factors in her decision to terminate the program, which has provided relief from removal and work authorization to approximately 700,000 unauthorized aliens who entered the United States as children. The Court vacated the rescission and remanded the case, allowing DACA to remain in place. The Court did not rule on the equal protection claim brought by the plaintiffs.

Lawsuits & Legal Procedures

Mullane v. Central Hanover Bank & Trust Co.

https://supreme.justia.com/cases/federal/us/339/306/

U.S. Supreme Court Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) Mullane v. Central Hanover Bank & Trust Co. No. 378 Argued February &, 1950 Decided April 24, 1950 339 U.S. 306 APPEAL FROM THE COURT OF APPEALS OF NEW YORK Syllabus A trust company in New York which had exclusive management and control of a common trust fund established by it under §100-c of the New York Banking Law petitioned under that section for a judicial settlement of accounts which would be binding and conclusive as to any matter set forth therein upon everyone having any interest in the common fund or in any participating trust. In this common fund, the trust company had invested assets of numerous small trusts of which it was trustee and of which some of the beneficiaries were residents, and some nonresidents, of the State. The only notice of this petition given beneficiaries was by publication in a local newspaper pursuant to §100-c(12). Held: 1. Whether such a proceeding for settlement of accounts be technically in personam, in rem, or quasi in rem, the interest of each state in providing means to close trusts that exist by the grace of its laws and are administered under the supervision of its courts is such as to establish beyond doubt the right of its courts to determine the interests of all claimants, resident or nonresident, provided its procedure accords full opportunity to appear and be heard. Pp. 339 U. S. 311 -313. 2. The statutory notice by publication is sufficient as to any beneficiaries whose interests or addresses are unknown to the trustee, since there are no other means of giving them notice which are both practicable and more effective. Pp. 339 U. S. 313 -318. 3. Such notice by publication is not sufficient under the Fourteenth Amendment as a basis for adjudication depriving of substantial property rights known persons whose whereabouts are also known, since it is not impracticable to make serious efforts to notify them at least by ordinary mail to their addresses on record with the trust company. Pp. 339 U. S. 318 -320. 299 N.Y. 697, 87 N.E.2d 73, reversed. Overruling objections to the statutory notice to beneficiaries by publication authorized by §100-c of the New York Banking Law, a New York Surrogate's Court entered a final decree accepting an accounting of the trustee of Page 339 U. S. 307 a common trust fund established pursuant to that section. 75 N.Y.S.2d 397. This decree was affirmed by the Appellate Division of the Supreme Court of New York ( see 274 App.Div. 772, 80 N.Y.S.2d 127), and the Court of Appeals of New York (229 N.Y. 697, 87 N.E.2d 73). On appeal to this Court, reversed, p. 339 U. S. 320 . Mr. Justice JACKSON delivered the opinion of the Court. This controversy questions the constitutional sufficiency of notice to beneficiaries on judicial settlement of accounts by the trustee of a common trust fund established under the New York Banking Law, Consol.Laws, c. 2. The New York Court of Appeals considered and overruled objections that the statutory notice contravenes requirements of the Fourteenth Amendment, and that, by allowance of the account, beneficiaries were deprived of property without due process of law. 299 N.Y. 697, 87 N.E.2d 73. The case is here on appeal under 28 U.S.C. § 1257. Common trust fund legislation is addressed to a problem appropriate for state action. Mounting overheads have made administration of small trusts undesirable to corporate trustees. In order that donors and testators of moderately sized trusts may not be denied the service of corporate fiduciaries, the District of Columbia and some Page 339 U. S. 308 thirty states other than New York have permitted pooling small trust estates into one fund for investment administration. * The income, capital gains, losses and expenses of the collective trust are shared by the constituent trusts in proportion to their contribution. By this plan, diversification of risk and economy of management can be extended to those whose capital standing alone would not obtain such advantage. Statutory authorization for the establishment of such common trust funds is provided in the New York Banking Law, § 100-c, c. 687, L.1937, as amended by c. 602, L.1943 and c. 158, L.1944. Under this Act, a trust company may, with approval of the State Banking Board, establish a common fund and, within prescribed limits, Page 339 U. S. 309 invest therein the assets of an unlimited number of estates, trusts or other funds of which it is trustee. Each participating trust shares ratably in the common fund, but exclusive management and control is in the trust company as trustee, and neither a fiduciary nor any beneficiary of a participating trust is deemed to have ownership in any particular asset or investment of this common fund. The trust company must keep fund assets separate from its own, and, in its fiduciary capacity, may not deal with itself or any affiliate. Provisions are made for accountings twelve to fifteen months after the establishment of a fund, and triennially thereafter. The decree, in each such judicial settlement of accounts, is made binding and conclusive as to any matter set forth in the account upon everyone having any interest in the common fund or in any participating estate, trust or fund. In January, 1946, Central Hanover Bank and Trust Company established a common trust fund in accordance with these provisions, and, in March, 1947, it petitioned the Surrogate's Court for settlement of its first account as common trustee. During the accounting period, a total of 113 trusts, approximately half inter vivos and half testamentary, participated in the common trust fund, the gross capital of which was nearly three million dollars. The record does not show the number or residence of the beneficiaries, but they were many, and it is clear that some of them were not residents of the State of New York. The only notice given beneficiaries of this specific application was by publication in a local newspaper in strict compliance with the minimum requirements of N.Y.Banking Law § 100-c(12): "After filing such petition [for judicial settlement of its account], the petitioner shall cause to be issued by the court in which the petition is filed and shall publish not less than once in each week Page 339 U. S. 310 for four successive weeks in a newspaper to be designated by the court, a notice or citation addressed generally, without naming them, to all parties interested in such common trust fund and in such estates, trusts or funds mentioned in the petition, all of which may be described in the notice or citation only in the manner set forth in said petition and without setting forth the residence of any such decedent or donor of any such estate, trust or fund." Thus, the only notice required, and the only one given, was by newspaper publication setting forth merely the name and address of the trust company, the name and the date of establishment of the common trust fund, and a list of all participating estates, trusts or funds. At the time the first investment in the common fund was made on behalf of each participating estate; however, the trust company, pursuant to the requirements of § 100-c(9), had notified by mail each person of full age and sound mind whose name and address was then known to it and who was "entitled to share in the income therefrom . . . (or) . . . who would be entitled to share in the principal if the event upon which such estate, trust or fund will become distributable should have occurred at the time of sending such notice." Included in the notice was a copy of those provisions of the Act relating to the sending of the notice itself and to the judicial settlement of common trust fund accounts. Upon the filing of the petition for the settlement of accounts, appellant was, by order of the court pursuant to § 100-c(12), appointed special guardian and attorney for all persons known or unknown not otherwise appearing who had or might thereafter have any interest in the income of the common trust fund, and appellee Vaughan was appointed to represent those similarly interested in the principal. There were no other appearances on behalf of anyone interested in either interest or principal. Page 339 U. S. 311 Appellant appeared specially, objecting that notice and the statutory provisions for notice to beneficiaries were inadequate to afford due process under the Fourteenth Amendment, and therefore that the court was without jurisdiction to render a final and binding decree. Appellant's objections were entertained and overruled, the Surrogate holding that the notice required and given was sufficient. 75 N.Y.S.2d 397. A final decree accepting the accounts has been entered, affirmed by the Appellate Division of the Supreme Court, In re Central Hanover Bank & Trust Co., 275 App.Div. 769, 88 N.Y.S.2d 907, and by the Court of Appeals of the State of New York, 299 N.Y. 697, 87 N.E.2d 73. The effect of this decree, as held below, is to settle "all questions respecting the management of the common fund." We understand that every right which beneficiaries would otherwise have against the trust company, either as trustee of the common fund or as trustee of any individual trust, for improper management of the common trust fund during the period covered by the accounting is sealed and wholly terminated by the decree. See Matter of Hoaglund's Estate, 194 Misc. 803, 811-812, 74 N.Y.S.2d 156, 164, affirmed, 272 App.Div. 1040, 74 N.Y.S.2d 911, affirmed, 297 N.Y. 920, 79 N.E.2d 746; Matter of Bank of New York, 189 Misc. 459, 470, 67 N.Y.S.2d 444, 453; Matter of Security Trust Co. of Rochester, 189 Misc. 748, 760, 70 N.Y.S.2d 260, 271; Matter of Continental Bank & Trust Co., 189 Misc. 795, 797, 67 N.Y.S.2d 806, 807-808. We are met at the outset with a challenge to the power of the State -- the right of its courts to adjudicate at all as against those beneficiaries who reside without the State of New York. It is contended that the proceeding is one in personam, in that the decree affects neither title to nor possession of any res, but adjudges only personal rights of the beneficiaries to surcharge their trustee for negligence or breach of trust. Accordingly, it is said, under the strict doctrine of Pennoyer v. Neff, 95 U. S. 714 , the Surrogate Page 339 U. S. 312 is without jurisdiction as to nonresidents upon whom personal service of process was not made. Distinctions between actions in rem and those in personam are ancient, and originally expressed in procedural terms what seems really to have been a distinction in the substantive law of property under a system quite unlike our own. Buckland and McNair, Roman Law and Common Law, 66; Burdick, Principles of Roman Law and Their Relation to Modern Law, 298. The legal recognition and rise in economic importance of incorporeal or intangible forms of property have upset the ancient simplicity of property law and the clarity of its distinctions, while new forms of proceedings have confused the old procedural classification. American courts have sometimes classed certain actions as in rem because personal service of process was not required, and, at other times, have held personal service of process not required because the action was in rem. See cases collected in Freeman on Judgments, §§ 1517 et seq. (5th ed.). Judicial proceedings to settle fiduciary accounts have been sometimes termed in rem, or, more indefinitely, quasi in rem, or more vaguely still, "in the nature of a proceeding in rem. " It is not readily apparent how the courts of New York did or would classify the present proceeding, which has some characteristics, and is wanting in some features of, proceedings both in rem and in personam. But, in any event, we think that the requirements of the Fourteenth Amendment to the Federal Constitution do not depend upon a classification for which the standards are so elusive and confused generally, and which, being primarily for state courts to define, may and do vary from state to state. Without disparaging the usefulness of distinctions between actions in rem and those in personam in many branches of law, or on other issues, or the reasoning which underlies them, we do not rest the power of the State to resort to constructive service in this proceeding Page 339 U. S. 313 upon how its courts or this Court may regard this historic antithesis. It is sufficient to observe that, whatever the technical definition of its chosen procedure, the interest of each state in providing means to close trusts that exist by the grace of its laws and are administered under the supervision of its courts is so insistent and rooted in custom as to establish beyond doubt the right of its courts to determine the interests of all claimants, resident or nonresident, provided its procedure accords full opportunity to appear and be heard. Quite different from the question of a state's power to discharge trustees is that of the opportunity it must give beneficiaries to contest. Many controversies have raged about the cryptic and abstract words of the Due Process Clause, but there can be no doubt that, at a minimum, they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case. In two ways, this proceeding does or may deprive beneficiaries of property. It may cut off their rights to have the trustee answer for negligent or illegal impairments of their interests. Also, their interests are presumably subject to diminution in the proceeding by allowance of fees and expenses to one who, in their names but without their knowledge, may conduct a fruitless or uncompensatory contest. Certainly the proceeding is one in which they may be deprived of property rights and hence notice and hearing must measure up to the standards of due process. Personal service of written notice within the jurisdiction is the classic form of notice always adequate in any type of proceeding. But the vital interest of the State in bringing any issues as to its fiduciaries to a final settlement can be served only if interests or claims of individuals who are outside of the State can somehow be determined. A construction of the Due Process Clause which Page 339 U. S. 314 would place impossible or impractical obstacles in the way could not be justified. Against this interest of the State, we must balance the individual interest sought to be protected by the Fourteenth Amendment. This is defined by our holding that "[t]he fundamental requisite of due process of law is the opportunity to be heard." Grannis v. Ordean, 234 U. S. 385 , 234 U. S. 394 . This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest. The Court has not committed itself to any formula achieving a balance between these interests in a particular proceeding or determining when constructive notice may be utilized, or what test it must meet. Personal service has not, in all circumstances, been regarded as indispensable to the process due to residents, and it has more often been held unnecessary as to nonresidents. We disturb none of the established rules on these subjects. No decision constitutes a controlling, or even a very illuminating, precedent for the case before us. But a few general principles stand out in the books. An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Milliken v. Meyer, 311 U. S. 457 ; Grannis v. Ordean, 234 U. S. 385 ; Priest v. Las Vegas, 232 U. S. 604 ; Roller v. Holly, 176 U. S. 398 . The notice must be of such nature as reasonably to convey the required information, Grannis v. Ordean, supra, and it must afford a reasonable time for those interested to make their appearance, Roller v. Holly, supra, and cf. Goodrich v. Ferris, 214 U. S. 71 . But if, with due regard for the practicalities and peculiarities of the case, these conditions Page 339 U. S. 315 are reasonably met, the constitutional requirements are satisfied. "The criterion is not the possibility of conceivable injury, but the just and reasonable character of the requirements, having reference to the subject with which the statute deals." American Land Co. v. Zeiss, 219 U. S. 47 , 219 U. S. 67 , and see Blinn v. Nelson, 222 U. S. 1 , 222 U. S. 7 . But when notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness, and hence the constitutional validity of, any chosen method may be defended on the ground that it is, in itself, reasonably certain to inform those affected, compare Hess v. Pawloski, 274 U. S. 352 , with Wuchter v. Pizzutti, 276 U. S. 13 , or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes. It would be idle to pretend that publication alone, as prescribed here, is a reliable means of acquainting interested parties of the fact that their rights are before the courts. It is not an accident that the greater number of cases reaching this Court on the question of adequacy of notice have been concerned with actions founded on process constructively served through local newspapers. Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and, if he makes his home outside the area of the newspaper's normal circulation, the odds that the information will never reach him are large indeed. The chance of actual notice is further reduced when, as here, the notice required does not even name those whose attention it is supposed to attract, and does not inform acquaintances who might call it to attention. In weighing its sufficiency on the basis of equivalence with actual notice, we are unable to regard this as more than a feint. Page 339 U. S. 316 Nor is publication here reinforced by steps likely to attract the parties' attention to the proceeding. It is true that publication traditionally has been acceptable as notification supplemental to other action which, in itself, may reasonably be expected to convey a warning. The ways of an owner with tangible property are such that he usually arranges means to learn of any direct attack upon his possessory or proprietary rights. Hence, libel of a ship, attachment of a chattel or entry upon real estate in the name of law may reasonably be expected to come promptly to the owner's attention. When the state within which the owner has located such property seizes it for some reason, publication or posting affords an additional measure of notification. A state may indulge the assumption that one who has left tangible property in the state either has abandoned it, in which case proceedings against it deprive him of nothing, cf. Anderson National Bank v. Luckett, 321 U. S. 233 ; Security Savings Bank v. California, 263 U. S. 282 , or that he has left some caretaker under a duty to let him know that it is being jeopardized. Ballard v. Hunter, 204 U. S. 241 ; Huling v. Kaw Valley R. Co., 130 U. S. 559 ,. As phrased long ago by Chief Justice Marshall in The Mary , 9 Cranch 126, 13 U. S. 144 , "It is the part of common prudence for all those who have any interest in [a thing] to guard that interest by persons who are in a situation to protect it." In the case before us, there is, of course, no abandonment. On the other hand, these beneficiaries do have a resident fiduciary as caretaker of their interest in this property. But it is their caretaker who, in the accounting, becomes their adversary. Their trustee is released from giving notice of jeopardy, and no one else is expected to do so. Not even the special guardian is required or apparently expected to communicate with his ward and client, and, of course, if such a duty were merely transferred Page 339 U. S. 317 from the trustee to the guardian, economy would not be served and more likely the cost would be increased. This Court has not hesitated to approve of resort to publication as a customary substitute in another class of cases where it is not reasonably possible or practicable to give more adequate warning. Thus, it has been recognized that, in the case of persons missing or unknown, employment of an indirect, and even a probably futile, means of notification is all that the situation permits, and creates no constitutional bar to a final decree foreclosing their rights. Cunnius v. Reading School District, 198 U. S. 458 ; Blinn v. Nelson, 222 U. S. 1 ; and see Jacob v. Roberts, 223 U. S. 261 . Those beneficiaries represented by appellant whose interests or whereabouts could not, with due diligence, be ascertained come clearly within this category. As to them, the statutory notice is sufficient. However great the odds that publication will never reach the eyes of such unknown parties, it is not in the typical case, much more likely to fail than any of the choices open to legislators endeavoring to prescribe the best notice practicable. Nor do we consider it unreasonable for the State to dispense with more certain notice to those beneficiaries whose interests are either conjectural or future or, although they could be discovered upon investigation, do not, in due course of business, come to knowledge of the common trustee. Whatever searches might be required in another situation under ordinary standards of diligence, in view of the character of the proceedings and the nature of the interests here involved, we think them unnecessary. We recognize the practical difficulties and costs that would be attendant on frequent investigations into the status of great numbers of beneficiaries, many of whose interests in the common fund are so remote as to be ephemeral, and we have no doubt that such impracticable and extended searches are not required in the Page 339 U. S. 318 name of due process. The expense of keeping informed from day to day of substitutions among even current income beneficiaries and presumptive remaindermen, to say nothing of the far greater number of contingent beneficiaries, would impose a severe burden on the plan, and would likely dissipate its advantages. These are practical matters in which we should be reluctant to disturb the judgment of the state authorities. Accordingly we overrule appellant's constitutional objections to published notice insofar as they are urged on behalf of any beneficiaries whose interests or addresses are unknown to the trustee. As to known present beneficiaries of known place of residence, however, notice by publication stands on a different footing. Exceptions in the name of necessity do not sweep away the rule that, within the limits of practicability, notice must be such as is reasonably calculated to reach interested parties. Where the names and post office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency. The trustee has on its books the names and addresses of the income beneficiaries represented by appellant, and we find no tenable ground for dispensing with a serious effort to inform them personally of the accounting, at least by ordinary mail to the record addresses. Cf. Wuchter v. Pizzutti, supra. Certainly sending them a copy of the statute months, and perhaps years, in advance does not answer this purpose. The trustee periodically remits their income to them, and we think that they might reasonably expect that, with or apart from their remittances, word might come to them personally that steps were being taken affecting their interests. We need not weigh contentions that a requirement of personal service of citation on even the large number of known resident or nonresident beneficiaries would, by Page 339 U. S. 319 reasons of delay, if not of expense, seriously interfere with the proper administration of the fund. Of course, personal service, even without the jurisdiction of the issuing authority, serves the end of actual and personal notice, whatever power of compulsion it might lack. However, no such service is required under the circumstances. This type of trust presupposes a large number of small interests. The individual interest does not stand alone, but is identical with that of a class. The rights of each in the integrity of the fund, and the fidelity of the trustee, are shared by many other beneficiaries. Therefore, notice reasonably certain to reach most of those interested in objecting is likely to safeguard the interests of all, since any objections sustained would inure to the benefit of all. We think that, under such circumstances, reasonable risks that notice might not actually reach every beneficiary are justifiable. "Now and then, an extraordinary case may turn up, but constitutional law, like other mortal contrivances, has to take some chances, and, in the great majority of instances, no doubt, justice will be done." Blinn v. Nelson, at 222 U. S. 7 . The statutory notice to known beneficiaries is inadequate not because, in fact, it fails to reach everyone, but because, under the circumstances, it is not reasonably calculated to reach those who could easily be informed by other means at hand. However it may have been in former times, the mails today are recognized as an efficient and inexpensive means of communication. Moreover, the fact that the trust company has been able to give mailed notice to known beneficiaries at the time the common trust fund was established is persuasive that postal notification at the time of accounting would not seriously burden the plan. In some situations, the law requires greater precautions in its proceedings than the business world accepts for its own purposes. In few, if any, will it be satisfied with Page 339 U. S. 320 less. Certainly it is instructive, in determining the reasonableness of the impersonal broadcast notification here used, to ask whether it would satisfy a prudent man of business, counting his pennies but finding it in his interest to convey information to many persons whose names and addresses are in his files. We are not satisfied that it would. Publication may theoretically be available for all the world to see, but it is too much, in our day, to suppose that each or any individual beneficiary does or could examine all that is published to see if something may be tucked away in it that affects his property interests. We have before indicated, in reference to notice by publication, that "Great caution should be used not to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact." McDonald v. Mabee, 243 U. S. 90 , 243 U. S. 91 . We hold the notice of judicial settlement of accounts required by the New York Banking Law § 100-c(12) is incompatible with the requirements of the Fourteenth Amendment as a basis for adjudication depriving known persons whose whereabouts are also known of substantial property rights. Accordingly, the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Reversed. MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case. * Ala.Code Ann., 1940, Cum.Supp.1947, tit. 58, §§ 88 to 103, as amended, Laws 1949, Act 262; Ariz.Code Ann., 1939, Cum.Supp.1949, §§ 51-1101 to 51-1104; Ark.Stat.Ann.1947, §§ 58-110 to 58-112; Cal.Bank.Code Ann., Deering 1949, § 1564; Colo.Stat.Ann., 1935, Cum.Supp.1947, c. 18, §§ 173 to 178; Conn.Gen.Stat.1949 Rev., § 5805; Del.Rev.Code, 1935, § 4401, as amended, Laws 1943, c. 171, Laws 1947, c. 268; (D.C.) Pub.Law No. 416, 81st Cong., 1st Sess., c. 767, Oct. 27, 1949, 63 Stat. 938; Fla.Stat., 1941, §§ 655.29 to 655.34, F.S.A.; Ga.Code Ann., 1937, Cum.Supp.1947, §§ 109-601 to 109-622; Idaho Code Ann., 1949, Cum.Supp.1949, §§ 68-701 to 68-703; Ill.Rev.Stat., 1949, c. 16 1/2, §§ 57 to 63; Ind.Stat.Ann., Burns 1950, §§ 18-2009 to 18-2014; Ky.Rev.Stat., 1948, § 287.230; La.Gen.Stat.Ann., 1939, § 9850.64, Act No. 81 of 1938, § 64; Md.Ann.Code Gen.Laws, 1939, Cum.Supp.1947, art. 11, § 62A; Mass.Ann.Laws, 1933, Cum.Supp.1949, c. 203A; Mich.Stat.Ann., 1943, Cum.Supp.1949, §§ 23.1141 to 23.1153, Comp.Laws 1948, §§ 555.101-555.113; Minn.Stat., 1945, § 48.84, as amended, Laws 1947, c. 234, M.S.A.; N.J.S.A., 1939, Cum.Supp.1949, §§ 17:9A-36 to 17:9A-46; N.C.Gen.Stat., 1943, §§ 36-47 to 36-52; Ohio Gen.Code Ann. (Page's 1946), Cum.Supp.1949, §§ 715 to 720, 722; Okla.Stat.1941, Cum.Supp.1949, tit. 60, § 162; Pa.Stat.Ann., 1939, Cum.Supp.1949, tit. 7, §§ 819-1109 to 819-1109d; So.Dak.Laws 1941, c. 20; Vernon's Tex.Rev.Civ.Stat.Ann., 1939, Cum.Supp.1949, art. 7425b-48; Vt. Stat., 1947 Rev., § 8873; Va.Code Ann., 1950, §§ 6-569 to 6-576; Wash.Rev.Stat.Ann., Supp.1943, §§ 3388 to 3388-6; W.Va.Code Ann., 1949, § 4219 (1) et seq.; Wisc.Stat., 1947, § 223.055. MR. JUSTICE BURTON, dissenting. These common trusts are available only when the instruments creating the participating trusts permit participation in the common fund. Whether or not further notice to beneficiaries should supplement the notice and representation here provided is properly within the discretion of the State. The Federal Constitution does not require it here.

Here is a summary of the case verdict: The Supreme Court ruled that while a state court has the right to determine the interests of all claimants in a trust, regardless of their residency, adequate notice must be provided to known beneficiaries whose whereabouts are also known. The Court held that notice by publication was insufficient and impractical for those with known addresses, as more effective means of notification, such as ordinary mail, were available. The case was remanded for further proceedings.

Immigration & National Security

Trump v. Hawaii

https://supreme.justia.com/cases/federal/us/585/17-965/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 17–965 _________________ DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al., PETITIONERS v. HAWAII, et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 26, 2018] Chief Justice Roberts delivered the opinion of the Court. Under the Immigration and Nationality Act, foreign nationals seeking entry into the United States undergo a vetting process to ensure that they satisfy the numerous requirements for admission. The Act also vests the President with authority to restrict the entry of aliens when- ever he finds that their entry “would be detrimental to the interests of the United States.” 8 U. S. C. §1182(f). Relying on that delegation, the President concluded that it was necessary to impose entry restrictions on nationals of countries that do not share adequate information for an informed entry determination, or that otherwise present national security risks. Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (2017) (Proclamation). The plaintiffs in this litigation, respondents here, challenged the application of those entry restrictions to certain aliens abroad. We now decide whether the President had authority under the Act to issue the Proclamation, and whether the entry policy violates the Establishment Clause of the First Amendment. I A Shortly after taking office, President Trump signed Executive Order No. 13769, Protecting the Nation From Foreign Terrorist Entry Into the United States. 82 Fed. Reg. 8977 (2017) (EO–1). EO–1 directed the Secretary of Homeland Security to conduct a review to examine the adequacy of information provided by foreign governments about their nationals seeking to enter the United States. §3(a). Pending that review, the order suspended for 90 days the entry of foreign nationals from seven countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—that had been previously identified by Congress or prior administrations as posing heightened terrorism risks. §3(c). The District Court for the Western District of Washington entered a temporary restraining order blocking the entry restrictions, and the Court of Appeals for the Ninth Circuit denied the Government’s request to stay that order. Washington v. Trump , 847 F. 3d 1151 (2017) ( per curiam ). In response, the President revoked EO–1, replacing it with Executive Order No. 13780, which again directed a worldwide review. 82 Fed. Reg. 13209 (2017) (EO–2). Citing investigative burdens on agencies and the need to diminish the risk that dangerous individuals would enter without adequate vetting, EO–2 also temporarily restricted the entry (with case-by-case waivers) of foreign nationals from six of the countries covered by EO–1: Iran, Libya, Somalia, Sudan, Syria, and Yemen. §§2(c), 3(a). The order explained that those countries had been selected because each “is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.” §1(d). The entry restriction was to stay in effect for 90 days, pending completion of the worldwide review. These interim measures were immediately challenged in court. The District Courts for the Districts of Maryland and Hawaii entered nationwide preliminary injunctions barring enforcement of the entry suspension, and the respective Courts of Appeals upheld those injunctions, albeit on different grounds. International Refugee Assistance Project ( IRAP ) v. Trump , 857 F. 3d 554 (CA4 2017); Hawaii v. Trump , 859 F. 3d 741 (CA9 2017) ( per curiam ). This Court granted certiorari and stayed the injunctions—allowing the entry suspension to go into effect—with respect to foreign nationals who lacked a “credible claim of a bona fide relationship” with a person or entity in the United States. Trump v. IRAP , 582 U. S. ___, ___ (2017) ( per curiam ) (slip op., at 12). The temporary restrictions in EO–2 expired before this Court took any action, and we vacated the lower court decisions as moot. Trump v. IRAP , 583 U. S. ___ (2017); Trump v. Hawaii , 583 U. S. ___ (2017). On September 24, 2017, after completion of the worldwide review, the President issued the Proclamation before us—Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats. 82 Fed. Reg. 45161. The Proclamation (as its title indicates) sought to improve vetting procedures by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present “public safety threats.” §1(a). To further that purpose, the Proclamation placed entry restrictions on the nationals of eight foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate. The Proclamation described how foreign states were selected for inclusion based on the review undertaken pursuant to EO–2. As part of that review, the Department of Homeland Security (DHS), in consultation with the State Department and several intelligence agencies, developed a “baseline” for the information required from foreign governments to confirm the identity of individuals seeking entry into the United States, and to determine whether those individuals pose a security threat. §1(c). The baseline included three components. The first, “identity-management information,” focused on whether a foreign government ensures the integrity of travel documents by issuing electronic passports, reporting lost or stolen passports, and making available additional identity-related information. Second, the agencies considered the extent to which the country discloses information on criminal history and suspected terrorist links, provides travel document exemplars, and facilitates the U. S. Government’s receipt of information about airline passengers and crews traveling to the United States. Finally, the agencies weighed various indicators of national security risk, including whether the foreign state is a known or potential terrorist safe haven and whether it regularly declines to receive returning nationals following final orders of removal from the United States. Ibid. DHS collected and evaluated data regarding all foreign governments. §1(d). It identified 16 countries as having deficient information-sharing practices and presenting national security concerns, and another 31 countries as “at risk” of similarly failing to meet the baseline. §1(e). The State Department then undertook diplomatic efforts over a 50-day period to encourage all foreign governments to improve their practices. §1(f ). As a result of that effort, numerous countries provided DHS with travel document exemplars and agreed to share information on known or suspected terrorists. Ibid. Following the 50-day period, the Acting Secretary of Homeland Security concluded that eight countries—Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen—remained deficient in terms of their risk profile and willingness to provide requested information. The Acting Secretary recommended that the President impose entry restrictions on certain nationals from all of those countries except Iraq. §§1(g), (h). She also concluded that although Somalia generally satisfied the information-sharing component of the baseline standards, its “identity-management deficiencies” and “significant terrorist presence” presented special circumstances justifying additional limitations. She therefore recommended entry limitations for certain nationals of that country. §1(i). As for Iraq, the Acting Secretary found that entry limitations on its nationals were not warranted given the close cooperative relationship between the U. S. and Iraqi Governments and Iraq’s commitment to combating ISIS. §1(g). After consulting with multiple Cabinet members and other officials, the President adopted the Acting Secretary’s recommendations and issued the Proclamation. Invoking his authority under 8 U. S. C. §§1182(f ) and 1185(a), the President determined that certain entry restrictions were necessary to “prevent the entry of those foreign nationals about whom the United States Government lacks sufficient information”; “elicit improved identity- management and information-sharing protocols and practices from foreign governments”; and otherwise “advance [the] foreign policy, national security, and counterterrorism objectives” of the United States. Proclamation §1(h). The President explained that these restrictions would be the “most likely to encourage cooperation” while “protect[ing] the United States until such time as improvements occur.” Ibid. The Proclamation imposed a range of restrictions that vary based on the “distinct circumstances” in each of the eight countries. Ibid. For countries that do not cooperate with the United States in identifying security risks (Iran, North Korea, and Syria), the Proclamation suspends entry of all nationals, except for Iranians seeking nonimmigrant student and exchange-visitor visas. §§2(b)(ii), (d)(ii), (e)(ii). For countries that have information-sharing deficiencies but are nonetheless “valuable counterterrorism partner[s]” (Chad, Libya, and Yemen), it restricts entry of nationals seeking immigrant visas and nonimmigrant business or tourist visas. §§2(a)(i), (c)(i), (g)(i). Because Somalia generally satisfies the baseline standards but was found to present special risk factors, the Proclamation suspends entry of nationals seeking immigrant visas and requires additional scrutiny of nationals seeking nonimmigrant visas. §2(h)(ii). And for Venezuela, which refuses to cooperate in information sharing but for which alternative means are available to identify its nationals, the Proclamation limits entry only of certain government officials and their family members on nonimmigrant business or tourist visas. §2(f )(ii). The Proclamation exempts lawful permanent residents and foreign nationals who have been granted asylum. §3(b). It also provides for case-by-case waivers when a foreign national demonstrates undue hardship, and that his entry is in the national interest and would not pose a threat to public safety. §3(c)(i); see also §3(c)(iv) (listing examples of when a waiver might be appropriate, such as if the foreign national seeks to reside with a close family member, obtain urgent medical care, or pursue significant business obligations). The Proclamation further directs DHS to assess on a continuing basis whether entry restrictions should be modified or continued, and to report to the President every 180 days. §4. Upon completion of the first such review period, the President, on the recommendation of the Secretary of Homeland Security, determined that Chad had sufficiently improved its practices, and he accordingly lifted restrictions on its nationals. Presidential Proclamation No. 9723, 83 Fed. Reg. 15937 (2018). B Plaintiffs in this case are the State of Hawaii, three individuals (Dr. Ismail Elshikh, John Doe #1, and John Doe #2), and the Muslim Association of Hawaii. The State operates the University of Hawaii system, which recruits students and faculty from the designated countries. The three individual plaintiffs are U. S. citizens or lawful permanent residents who have relatives from Iran, Syria, and Yemen applying for immigrant or nonimmigrant visas. The Association is a nonprofit organization that operates a mosque in Hawaii. Plaintiffs challenged the Proclamation—except as applied to North Korea and Venezuela—on several grounds. As relevant here, they argued that the Proclamation contravenes provisions in the Immigration and Nationality Act (INA), 66Stat. 187, as amended. Plaintiffs further claimed that the Proclamation violates the Establishment Clause of the First Amendment, because it was motivated not by concerns pertaining to national security but by animus toward Islam. The District Court granted a nationwide preliminary injunction barring enforcement of the entry restrictions. The court concluded that the Proclamation violated two provisions of the INA: §1182(f ), because the President did not make sufficient findings that the entry of the covered foreign nationals would be detrimental to the national interest, and §1152(a)(1)(A), because the policy discriminates against immigrant visa applicants on the basis of nationality. 265 F. Supp. 3d 1140, 1155–1159 (Haw. 2017). The Government requested expedited briefing and sought a stay pending appeal. The Court of Appeals for the Ninth Circuit granted a partial stay, permitting enforcement of the Proclamation with respect to foreign nationals who lack a bona fide relationship with the United States. This Court then stayed the injunction in full pending disposition of the Government’s appeal. 583 U. S. ___ (2017). The Court of Appeals affirmed. The court first held that the Proclamation exceeds the President’s authority under §1182(f ). In its view, that provision authorizes only a “temporary” suspension of entry in response to “exigencies” that “Congress would be ill-equipped to address.” 878 F. 3d 662, 684, 688 (2017). The court further reasoned that the Proclamation “conflicts with the INA’s finely reticulated regulatory scheme” by addressing “matters of immigration already passed upon by Congress.” Id. , at 685, 690. The Ninth Circuit then turned to §1152(a)(1)(A) and determined that the entry restrictions also contravene the prohibition on nationality-based discrimination in the issuance of immigrant visas. The court did not reach plaintiffs’ Establishment Clause claim. We granted certiorari. 583 U. S. ___ (2018). II Before addressing the merits of plaintiffs’ statutory claims, we consider whether we have authority to do so. The Government argues that plaintiffs’ challenge to the Proclamation under the INA is not justiciable. Relying on the doctrine of consular nonreviewability, the Government contends that because aliens have no “claim of right” to enter the United States, and because exclusion of aliens is “a fundamental act of sovereignty” by the political branches, review of an exclusion decision “is not within the province of any court, unless expressly authorized by law.” United States ex rel. Knauff v. Shaughnessy , 338 U. S. 537, 542–543 (1950). According to the Government, that principle barring review is reflected in the INA, which sets forth a comprehensive framework for review of orders of removal, but authorizes judicial review only for aliens physically present in the United States. See Brief for Petitioners 19–20 (citing 8 U. S. C. §1252). The justiciability of plaintiffs’ challenge under the INA presents a difficult question. The Government made similar arguments that no judicial review was available in Sale v. Haitian Centers Council, Inc. , 509 U. S. 155 (1993). The Court in that case, however, went on to consider on the merits a statutory claim like the one before us without addressing the issue of reviewability. The Government does not argue that the doctrine of consular nonreview- ability goes to the Court’s jurisdiction, see Tr. of Oral Arg. 13, nor does it point to any provision of the INA that expressly strips the Court of jurisdiction over plaintiffs’ claims, see Sebelius v. Auburn Regional Medical Center , 568 U. S. 145, 153 (2013) (requiring Congress to “clearly state[ ]” that a statutory provision is jurisdictional). As a result, we may assume without deciding that plaintiffs’ statutory claims are reviewable, notwithstanding consular nonreviewability or any other statutory nonreviewability issue, and we proceed on that basis. III The INA establishes numerous grounds on which an alien abroad may be inadmissible to the United States and ineligible for a visa. See, e.g., 8 U. S. C. §§1182(a)(1) (health-related grounds), (a)(2) (criminal history), (a)(3)(B) (terrorist activities), (a)(3)(C) (foreign policy grounds). Congress has also delegated to the President authority to suspend or restrict the entry of aliens in certain circumstances. The principal source of that authority, §1182(f ), enables the President to “suspend the entry of all aliens or any class of aliens” whenever he “finds” that their entry “would be detrimental to the interests of the United States.”[ 1 ] Plaintiffs argue that the Proclamation is not a valid exercise of the President’s authority under the INA. In their view, §1182(f ) confers only a residual power to temporarily halt the entry of a discrete group of aliens engaged in harmful conduct. They also assert that the Proclamation violates another provision of the INA— 8 U. S. C. §1152(a)(1)(A)—because it discriminates on the basis of nationality in the issuance of immigrant visas. By its plain language, §1182(f ) grants the President broad discretion to suspend the entry of aliens into the United States. The President lawfully exercised that discretion based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest. And plaintiffs’ attempts to identify a conflict with other provisions in the INA, and their appeal to the statute’s purposes and legislative history, fail to overcome the clear statutory language. A The text of §1182(f ) states: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” By its terms, §1182(f ) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry (“[w]henever [he] finds that the entry” of aliens “would be detrimental” to the national interest); whose entry to suspend (“all aliens or any class of aliens”); for how long (“for such period as he shall deem necessary”); and on what conditions (“any restrictions he may deem to be appropriate”). It is therefore unsurprising that we have previously observed that §1182(f ) vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA. Sale , 509 U. S., at 187 (finding it “perfectly clear” that the President could “establish a naval blockade” to prevent illegal migrants from entering the United States); see also Abourezk v. Reagan , 785 F. 2d 1043, 1049, n. 2 (CADC 1986) (describing the “sweeping proclamation power” in §1182(f ) as enabling the President to supplement the other grounds of inadmissibility in the INA). The Proclamation falls well within this comprehensive delegation. The sole prerequisite set forth in §1182(f ) is that the President “find[ ]” that the entry of the covered aliens “would be detrimental to the interests of the United States.” The President has undoubtedly fulfilled that requirement here. He first ordered DHS and other agencies to conduct a comprehensive evaluation of every single country’s compliance with the information and risk assessment baseline. The President then issued a Proclamation setting forth extensive findings describing how deficiencies in the practices of select foreign governments—several of which are state sponsors of terrorism—deprive the Government of “sufficient information to assess the risks [those countries’ nationals] pose to the United States.” Proclamation §1(h)(i). Based on that review, the President found that it was in the national interest to restrict entry of aliens who could not be vetted with adequate information—both to protect national security and public safety, and to induce improvement by their home countries. The Proclamation therefore “craft[ed] . . . country-specific restrictions that would be most likely to encourage cooperation given each country’s distinct circumstances,” while securing the Nation “until such time as improvements occur.” Ibid. [ 2 ] Plaintiffs believe that these findings are insufficient. They argue, as an initial matter, that the Proclamation fails to provide a persuasive rationale for why nationality alone renders the covered foreign nationals a security risk. And they further discount the President’s stated concern about deficient vetting because the Proclamation allows many aliens from the designated countries to enter on nonimmigrant visas. Such arguments are grounded on the premise that §1182(f ) not only requires the President to make a finding that entry “would be detrimental to the interests of the United States,” but also to explain that finding with sufficient detail to enable judicial review. That premise is questionable. See Webster v. Doe , 486 U. S. 592, 600 (1988) (concluding that a statute authorizing the CIA Director to terminate an employee when the Director “shall deem such termination necessary or advisable in the interests of the United States” forecloses “any meaningful judicial standard of review”). But even assuming that some form of review is appropriate, plaintiffs’ attacks on the sufficiency of the President’s findings cannot be sustained. The 12-page Proclamation—which thoroughly describes the process, agency evaluations, and recommendations underlying the President’s chosen restrictions—is more detailed than any prior order a President has issued under §1182(f ). Contrast Presidential Proclamation No. 6958, 3 CFR 133 (1996) (President Clinton) (explaining in one sentence why suspending entry of members of the Sudanese government and armed forces “is in the foreign policy interests of the United States”); Presidential Proclamation No. 4865, 3 CFR 50–51 (1981) (President Reagan) (explaining in five sentences why measures to curtail “the continuing illegal migration by sea of large numbers of undocumented aliens into the southeastern United States” are “necessary”). Moreover, plaintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere. “Whether the President’s chosen method” of addressing perceived risks is justified from a policy perspective is “irrelevant to the scope of his [§1182(f )] authority.” Sale , 509 U. S., at 187–188. And when the President adopts “a preventive measure . . . in the context of international affairs and national security,” he is “not required to conclusively link all of the pieces in the puzzle before [courts] grant weight to [his] empirical conclusions.” Holder v. Humanitarian Law Project , 561 U. S. 1, 35 (2010). The Proclamation also comports with the remaining textual limits in §1182(f ). We agree with plaintiffs that the word “suspend” often connotes a “defer[ral] till later,” Webster’s Third New International Dictionary 2303 (1966). But that does not mean that the President is required to prescribe in advance a fixed end date for the entry restrictions. Section 1182(f ) authorizes the President to suspend entry “for such period as he shall deem necessary.” It follows that when a President suspends entry in response to a diplomatic dispute or policy concern, he may link the duration of those restrictions, implicitly or explicitly, to the resolution of the triggering condition. See, e.g., Presidential Proclamation No. 5829, 3 CFR 88 (1988) (President Reagan) (suspending the entry of certain Panamanian nationals “until such time as . . . democracy has been restored in Panama”); Presidential Proclamation No. 8693, 3 CFR 86–87 (2011) (President Obama) (suspending the entry of individuals subject to a travel restriction under United Nations Security Council resolutions “until such time as the Secretary of State determines that [the suspension] is no longer necessary”). In fact, not one of the 43 suspension orders issued prior to this litigation has specified a precise end date. Like its predecessors, the Proclamation makes clear that its “conditional restrictions” will remain in force only so long as necessary to “address” the identified “inadequacies and risks” within the covered nations. Proclamation Preamble, and §1(h); see ibid. (explaining that the aim is to “relax[ ] or remove[ ]” the entry restrictions “as soon as possible”). To that end, the Proclamation establishes an ongoing process to engage covered nations and assess every 180 days whether the entry restrictions should be modified or terminated. §§4(a), (b). Indeed, after the initial review period, the President determined that Chad had made sufficient improvements to its identity-management protocols, and he accordingly lifted the entry suspension on its nationals. See Proclamation No. 9723, 83 Fed. Reg. 15937. Finally, the Proclamation properly identifies a “class of aliens”—nationals of select countries—whose entry is suspended. Plaintiffs argue that “class” must refer to a well-defined group of individuals who share a common “characteristic” apart from nationality. Brief for Respondents 42. But the text of §1182(f ), of course, does not say that, and the word “class” comfortably encompasses a group of people linked by nationality. Plaintiffs also contend that the class cannot be “overbroad.” Brief for Respondents 42. But that simply amounts to an unspoken tailoring requirement found nowhere in Congress’s grant of authority to suspend entry of not only “any class of aliens” but “all aliens.” In short, the language of §1182(f ) is clear, and the Proclamation does not exceed any textual limit on the President’s authority. B Confronted with this “facially broad grant of power,” 878 F. 3d, at 688, plaintiffs focus their attention on statutory structure and legislative purpose. They seek support in, first, the immigration scheme reflected in the INA as a whole, and, second, the legislative history of §1182(f ) and historical practice. Neither argument justifies departing from the clear text of the statute. 1 Plaintiffs’ structural argument starts with the premise that §1182(f ) does not give the President authority to countermand Congress’s considered policy judgments. The President, they say, may supplement the INA, but he cannot supplant it. And in their view, the Proclamation falls in the latter category because Congress has already specified a two-part solution to the problem of aliens seeking entry from countries that do not share sufficient information with the United States. First, Congress designed an individualized vetting system that places the burden on the alien to prove his admissibility. See §1361. Second, instead of banning the entry of nationals from particular countries, Congress sought to encourage information sharing through a Visa Waiver Program offering fast-track admission for countries that cooperate with the United States. See §1187. We may assume that §1182(f ) does not allow the President to expressly override particular provisions of the INA. But plaintiffs have not identified any conflict between the statute and the Proclamation that would implicitly bar the President from addressing deficiencies in the Nation’s vetting system. To the contrary, the Proclamation supports Congress’s individualized approach for determining admissibility. The INA sets forth various inadmissibility grounds based on connections to terrorism and criminal history, but those provisions can only work when the consular officer has sufficient (and sufficiently reliable) information to make that determination. The Proclamation promotes the effectiveness of the vetting process by helping to ensure the availability of such information. Plaintiffs suggest that the entry restrictions are unnecessary because consular officers can simply deny visas in individual cases when an alien fails to carry his burden of proving admissibility—for example, by failing to produce certified records regarding his criminal history. Brief for Respondents 48. But that misses the point: A critical finding of the Proclamation is that the failure of certain countries to provide reliable information prevents the Government from accurately determining whether an alien is inadmissible or poses a threat. Proclamation §1(h). Unless consular officers are expected to apply categorical rules and deny entry from those countries across the board, fraudulent or unreliable documentation may thwart their review in individual cases. And at any rate, the INA certainly does not require that systemic problems such as the lack of reliable information be addressed only in a progression of case-by-case admissibility determinations. One of the key objectives of the Proclamation is to encourage foreign governments to improve their practices, thus facilitating the Government’s vetting process overall. Ibid. Nor is there a conflict between the Proclamation and the Visa Waiver Program. The Program allows travel without a visa for short-term visitors from 38 countries that have entered into a “rigorous security partnership” with the United States. DHS, U. S. Visa Waiver Program (Apr. 6, 2016), http://www.dhs.gov/visa-waiver-program (as last visited June 25, 2018). Eligibility for that partnership involves “broad and consequential assessments of [the country’s] foreign security standards and operations.” Ibid. A foreign government must (among other things) undergo a comprehensive evaluation of its “counterterrorism, law enforcement, immigration enforcement, passport security, and border management capabilities,” often including “operational site inspections of airports, seaports, land borders, and passport production and issuance facilities.” Ibid. Congress’s decision to authorize a benefit for “many of America’s closest allies,” ibid. , did not implicitly foreclose the Executive from imposing tighter restrictions on nationals of certain high-risk countries. The Visa Waiver Program creates a special exemption for citizens of countries that maintain exemplary security standards and offer “reciprocal [travel] privileges” to United States citizens. 8 U. S. C. §1187(a)(2)(A). But in establishing a select partnership covering less than 20% of the countries in the world, Congress did not address what requirements should govern the entry of nationals from the vast majority of countries that fall short of that gold standard—particularly those nations presenting heightened terrorism concerns. Nor did Congress attempt to determine—as the multi-agency review process did—whether those high-risk countries provide a minimum baseline of information to adequately vet their nationals. Once again, this is not a situation where “Congress has stepped into the space and solved the exact problem.” Tr. of Oral Arg. 53. Although plaintiffs claim that their reading preserves for the President a flexible power to “supplement” the INA, their understanding of the President’s authority is remarkably cramped: He may suspend entry by classes of aliens “similar in nature” to the existing categories of inadmissibility—but not too similar—or only in response to “some exigent circumstance” that Congress did not already touch on in the INA. Brief for Respondents 31, 36, 50; see also Tr. of Oral Arg. 57 (“Presidents have wide berth in this area . . . if there’s any sort of emergency.”). In any event, no Congress that wanted to confer on the President only a residual authority to address emergency situations would ever use language of the sort in §1182(f ). Fairly read, the provision vests authority in the President to impose additional limitations on entry beyond the grounds for exclusion set forth in the INA—including in response to circumstances that might affect the vetting system or other “interests of the United States.” Because plaintiffs do not point to any contradiction with another provision of the INA, the President has not exceeded his authority under §1182(f ). 2 Plaintiffs seek to locate additional limitations on the scope of §1182(f ) in the statutory background and legislative history. Given the clarity of the text, we need not consider such extra-textual evidence. See State Farm Fire & Casualty Co. v. United States ex rel. Rigsby , 580 U. S. ___, ___ (2016) (slip op., at 9). At any rate, plaintiffs’ evidence supports the plain meaning of the provision. Drawing on legislative debates over §1182(f ), plaintiffs suggest that the President’s suspension power should be limited to exigencies where it would be difficult for Congress to react promptly. Precursor provisions enacted during the First and Second World Wars confined the President’s exclusion authority to times of “war” and “national emergency.” See Act of May 22, 1918, §1(a), 40Stat. 559; Act of June 21, 1941, ch. 210, §1, 55Stat. 252. When Congress enacted §1182(f ) in 1952, plaintiffs note, it borrowed “nearly verbatim” from those predecessor statutes, and one of the bill’s sponsors affirmed that the provision would apply only during a time of crisis. According to plaintiffs, it therefore follows that Congress sought to delegate only a similarly tailored suspension power in §1182(f ). Brief for Respondents 39–40. If anything, the drafting history suggests the opposite. In borrowing “nearly verbatim” from the pre-existing statute, Congress made one critical alteration—it removed the national emergency standard that plaintiffs now seek to reintroduce in another form. Weighing Congress’s conscious departure from its wartime statutes against an isolated floor statement, the departure is far more probative. See NLRB v. SW General, Inc. , 580 U. S. ___, ___ (2017) (slip op., at 16) (“[F]loor statements by individual legislators rank among the least illuminating forms of legislative history.”). When Congress wishes to condition an exercise of executive authority on the President’s finding of an exigency or crisis, it knows how to say just that. See, e.g., 16 U. S. C. §824 o –1(b); 42 U. S. C. §5192; 50 U. S. C. §§1701, 1702. Here, Congress instead chose to condition the President’s exercise of the suspension authority on a different finding: that the entry of an alien or class of aliens would be “detrimental to the interests of the United States.” Plaintiffs also strive to infer limitations from executive practice. By their count, every previous suspension order under §1182(f ) can be slotted into one of two categories. The vast majority targeted discrete groups of foreign nationals engaging in conduct “deemed harmful by the immigration laws.” And the remaining entry restrictions that focused on entire nationalities—namely, President Carter’s response to the Iran hostage crisis and President Reagan’s suspension of immigration from Cuba—were, in their view, designed as a response to diplomatic emergencies “that the immigration laws do not address.” Brief for Respondents 40–41. Even if we were willing to confine expansive language in light of its past applications, the historical evidence is more equivocal than plaintiffs acknowledge. Presidents have repeatedly suspended entry not because the covered nationals themselves engaged in harmful acts but instead to retaliate for conduct by their governments that conflicted with U. S. foreign policy interests. See, e.g., Exec. Order No. 13662, 3 CFR 233 (2014) (President Obama) (suspending entry of Russian nationals working in the financial services, energy, mining, engineering, or defense sectors, in light of the Russian Federation’s “annexation of Crimea and its use of force in Ukraine”); Presidential Proclamation No. 6958, 3 CFR 133 (1997) (President Clinton) (suspending entry of Sudanese governmental and military personnel, citing “foreign policy interests of the United States” based on Sudan’s refusal to comply with United Nations resolution). And while some of these reprisals were directed at subsets of aliens from the countries at issue, others broadly suspended entry on the basis of nationality due to ongoing diplomatic disputes. For example, President Reagan invoked §1182(f ) to suspend entry “as immigrants” by almost all Cuban nationals, to apply pressure on the Cuban Government. Presidential Proclamation No. 5517, 3 CFR 102 (1986). Plaintiffs try to fit this latter order within their carve-out for emergency action, but the proclamation was based in part on Cuba’s decision to breach an immigration agreement some 15 months earlier. More significantly, plaintiffs’ argument about historical practice is a double-edged sword. The more ad hoc their account of executive action—to fit the history into their theory—the harder it becomes to see such a refined delegation in a statute that grants the President sweeping authority to decide whether to suspend entry, whose entry to suspend, and for how long. C Plaintiffs’ final statutory argument is that the President’s entry suspension violates §1152(a)(1)(A), which provides that “no person shall . . . be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” They contend that we should interpret the provision as prohibiting nationality-based discrimination throughout the entire immigration process, despite the reference in §1152(a)(1)(A) to the act of visa issuance alone. Specifically, plaintiffs argue that §1152(a)(1)(A) applies to the predicate question of a visa applicant’s eligibility for admission and the subsequent question whether the holder of a visa may in fact enter the country. Any other conclusion, they say, would allow the President to circumvent the protections against discrimination enshrined in §1152(a)(1)(A). As an initial matter, this argument challenges only the validity of the entry restrictions on immigrant travel. Section 1152(a)(1)(A) is expressly limited to the issuance of “immigrant visa[s]” while §1182(f ) allows the Presi- dent to suspend entry of “immigrants or nonimmigrants.” At a minimum, then, plaintiffs’ reading would not affect any of the limitations on nonimmigrant travel in the Proclamation. In any event, we reject plaintiffs’ interpretation because it ignores the basic distinction between admissibility determinations and visa issuance that runs throughout the INA.[ 3 ] Section 1182 defines the pool of individuals who are admissible to the United States. Its restrictions come into play at two points in the process of gaining entry (or admission)[ 4 ] into the United States. First, any alien who is inadmissible under §1182 (based on, for example, health risks, criminal history, or foreign policy consequences) is screened out as “ineligible to receive a visa.” 8 U. S. C. §1201(g). Second, even if a consular officer issues a visa, entry into the United States is not guaranteed. As every visa application explains, a visa does not entitle an alien to enter the United States “if, upon arrival,” an immigration officer determines that the applicant is “inadmissible under this chapter, or any other provision of law”—including §1182(f ). §1201(h). Sections 1182(f ) and 1152(a)(1)(A) thus operate in different spheres: Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once §1182 sets the boundaries of admissibility into the United States, §1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality and other traits. The distinction between admissibility—to which §1152(a)(1)(A) does not apply—and visa issuance—to which it does—is apparent from the text of the provision, which specifies only that its protections apply to the “issuance” of “immigrant visa[s],” without mentioning admissibility or entry. Had Congress instead intended in §1152(a)(1)(A) to constrain the President’s power to determine who may enter the country, it could easily have chosen language directed to that end. See, e.g., §§1182(a)(3)(C)(ii), (iii) (providing that certain aliens “ shall not be excludable or subject to restrictions or conditions on entry . . . because of the alien’s past, current, or expected beliefs, statements, or associations” (emphasis added)). “The fact that [Congress] did not adopt [a] readily available and apparent alternative strongly supports” the conclusion that §1152(a)(1)(A) does not limit the President’s delegated authority under §1182(f ). Knight v. Commissioner , 552 U. S. 181, 188 (2008). Common sense and historical practice confirm as much. Section 1152(a)(1)(A) has never been treated as a constraint on the criteria for admissibility in §1182. Presidents have repeatedly exercised their authority to suspend entry on the basis of nationality. As noted, President Reagan relied on §1182(f ) to suspend entry “as immigrants by all Cuban nationals,” subject to exceptions. Proclamation No. 5517, 51 Fed. Reg. 30470 (1986). Likewise, President Carter invoked §1185(a)(1) to deny and revoke visas to all Iranian nationals. See Exec. Order No. 12172, 3 CFR 461 (1979), as amended by Exec. Order No. 12206, 3 CFR 249 (1980); Public Papers of the Presidents, Jimmy Carter, Sanctions Against Iran, Vol. 1, Apr. 7, 1980, pp. 611–612 (1980); see also n. 1, supra . On plaintiffs’ reading, those orders were beyond the President’s authority. The entry restrictions in the Proclamation on North Korea (which plaintiffs do not challenge in this litigation) would also be unlawful. Nor would the President be permitted to suspend entry from particular foreign states in response to an epidemic confined to a single region, or a verified terrorist threat involving nationals of a specific foreign nation, or even if the United States were on the brink of war. In a reprise of their §1182(f ) argument, plaintiffs attempt to soften their position by falling back on an implicit exception for Presidential actions that are “closely drawn” to address “specific fast-breaking exigencies.” Brief for Respondents 60–61. Yet the absence of any textual basis for such an exception more likely indicates that Congress did not intend for §1152(a)(1)(A) to limit the President’s flexible authority to suspend entry based on foreign policy interests. In addition, plaintiffs’ proposed exigency test would require courts, rather than the President, to determine whether a foreign government’s conduct rises to the level that would trigger a supposed implicit exception to a federal statute. See Reno v. American-Arab Anti-Discrimination Comm. , 525 U. S. 471, 491 (1999) (explaining that even if the Executive “disclose[d] its . . . reasons for deeming nationals of a particular country a special threat,” courts would be “unable to assess their adequacy”). The text of §1152(a)(1)(A) offers no standards that would enable courts to assess, for example, whether the situation in North Korea justifies entry restrictions while the terrorist threat in Yemen does not. *  *  * The Proclamation is squarely within the scope of Presidential authority under the INA. Indeed, neither dissent even attempts any serious argument to the contrary, despite the fact that plaintiffs’ primary contention below and in their briefing before this Court was that the Proclamation violated the statute. IV A We now turn to plaintiffs’ claim that the Proclamation was issued for the unconstitutional purpose of excluding Muslims. Because we have an obligation to assure ourselves of jurisdiction under Article III, we begin by addressing the question whether plaintiffs have standing to bring their constitutional challenge. Federal courts have authority under the Constitution to decide legal questions only in the course of resolving “Cases” or “Controversies.” Art. III, §2. One of the essential elements of a legal case or controversy is that the plaintiff have standing to sue. Standing requires more than just a “keen interest in the issue.” Hollingsworth v. Perry , 570 U. S. 693, 700 (2013). It requires allegations—and, eventually, proof—that the plaintiff “personal[ly]” suffered a concrete and particularized injury in connection with the conduct about which he complains. Spokeo, Inc. v. Robins , 578 U. S. ___, ___ (2016) (slip op., at 7). In a case arising from an alleged violation of the Establishment Clause, a plaintiff must show, as in other cases, that he is “directly affected by the laws and practices against which [his] complaints are directed.” School Dist. of Abington Township v. Schempp , 374 U. S. 203, 224, n. 9 (1963). That is an issue here because the entry restrictions apply not to plaintiffs themselves but to others seeking to enter the United States. Plaintiffs first argue that they have standing on the ground that the Proclamation “establishes a disfavored faith” and violates “their own right to be free from federal [religious] establishments.” Brief for Respondents 27–28 (emphasis deleted). They describe such injury as “spirit- ual and dignitary.” Id. , at 29. We need not decide whether the claimed dignitary interest establishes an adequate ground for standing. The three individual plaintiffs assert another, more concrete injury: the alleged real-world effect that the Proclamation has had in keeping them separated from certain relatives who seek to enter the country. See ibid. ; Town of Chester v. Laroe Estates, Inc. , 581 U. S. ___, ___–___ (2017) (slip op., at 5–6) (“At least one plaintiff must have standing to seek each form of relief requested in the complaint.”). We agree that a person’s interest in being united with his relatives is sufficiently concrete and particularized to form the basis of an Article III injury in fact. This Court has previously considered the merits of claims asserted by United States citizens regarding violations of their personal rights allegedly caused by the Government’s exclusion of particular foreign nationals. See Kerry v. Din , 576 U. S. ___, ___ (2015) (plurality opinion) (slip op., at 15); id. , at ___ (Kennedy, J., concurring in judgment) (slip op., at 1); Kleindienst v. Mandel , 408 U. S. 753, 762 (1972). Likewise, one of our prior stay orders in this litigation recognized that an American individual who has “a bona fide relationship with a particular person seeking to enter the country . . . can legitimately claim concrete hardship if that person is excluded.” Trump v. IRAP , 582 U. S., at ___ (slip op., at 13). The Government responds that plaintiffs’ Establishment Clause claims are not justiciable because the Clause does not give them a legally protected interest in the admission of particular foreign nationals. But that argument—which depends upon the scope of plaintiffs’ Establishment Clause rights—concerns the merits rather than the justiciability of plaintiffs’ claims. We therefore conclude that the individual plaintiffs have Article III standing to challenge the exclusion of their relatives under the Establishment Clause. B The First Amendment provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Our cases recognize that “[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente , 456 U. S. 228, 244 (1982). Plaintiffs believe that the Proclamation violates this prohibition by singling out Muslims for disfavored treatment. The entry suspension, they contend, operates as a “religious gerrymander,” in part because most of the countries covered by the Proclamation have Muslim-majority populations. And in their view, deviations from the information-sharing baseline criteria suggest that the results of the multi-agency review were “foreordained.” Relying on Establishment Clause precedents concerning laws and policies applied domestically, plaintiffs allege that the primary purpose of the Proclamation was religious animus and that the President’s stated concerns about vetting protocols and national security were but pretexts for discriminating against Muslims. Brief for Respondents 69–73. At the heart of plaintiffs’ case is a series of statements by the President and his advisers casting doubt on the official objective of the Proclamation. For example, while a candidate on the campaign trail, the President published a “Statement on Preventing Muslim Immigration” that called for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” App. 158. That statement remained on his campaign website until May 2017. Id., at 130–131. Then-candidate Trump also stated that “Islam hates us” and asserted that the United States was “having problems with Muslims coming into the country.” Id., at 120–121, 159. Shortly after being elected, when asked whether violence in Europe had affected his plans to “ban Muslim immigration,” the President replied, “You know my plans. All along, I’ve been proven to be right.” Id., at 123. One week after his inauguration, the President issued EO–1. In a television interview, one of the President’s campaign advisers explained that when the President “first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’ ” Id., at 125. The adviser said he assembled a group of Members of Congress and lawyers that “focused on, instead of religion, danger. . . . [The order] is based on places where there [is] substantial evidence that people are sending terrorists into our country.” Id., at 229. Plaintiffs also note that after issuing EO–2 to replace EO–1, the President expressed regret that his prior order had been “watered down” and called for a “much tougher version” of his “Travel Ban.” Shortly before the release of the Proclamation, he stated that the “travel ban . . . should be far larger, tougher, and more specific,” but “stupidly that would not be politically correct.” Id., at 132–133. More recently, on November 29, 2017, the President retweeted links to three anti-Muslim propaganda videos. In response to questions about those videos, the President’s deputy press secretary denied that the President thinks Muslims are a threat to the United States, explaining that “the President has been talking about these security issues for years now, from the campaign trail to the White House” and “has addressed these issues with the travel order that he issued earlier this year and the companion proclamation.” IRAP v. Trump , 883 F.3d 233, 267 (CA4 2018). The President of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf. Our Presidents have frequently used that power to espouse the principles of religious freedom and tolerance on which this Nation was founded. In 1790 George Washington reassured the Hebrew Congregation of Newport, Rhode Island that “happily the Government of the United States . . . gives to bigotry no sanction, to persecution no assistance [and] requires only that they who live under its protection should demean themselves as good citizens.” 6 Papers of George Washington 285 (D. Twohig ed. 1996). President Eisenhower, at the opening of the Islamic Center of Washington, similarly pledged to a Muslim audience that “America would fight with her whole strength for your right to have here your own church,” declaring that “[t]his concept is indeed a part of America.” Public Papers of the Presidents, Dwight D. Eisenhower, June 28, 1957, p. 509 (1957). And just days after the attacks of September 11, 2001, President George W. Bush returned to the same Islamic Center to implore his fellow Americans—Muslims and non-Muslims alike—to remember during their time of grief that “[t]he face of terror is not the true faith of Islam,” and that America is “a great country because we share the same values of respect and dignity and human worth.” Public Papers of the Presidents, George W. Bush, Vol. 2, Sept. 17, 2001, p. 1121 (2001). Yet it cannot be denied that the Federal Government and the Presidents who have carried its laws into effect have—from the Nation’s earliest days—performed unevenly in living up to those inspiring words. Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself. The case before us differs in numerous respects from the conventional Establishment Clause claim. Unlike the typical suit involving religious displays or school prayer, plaintiffs seek to invalidate a national security directive regulating the entry of aliens abroad. Their claim accordingly raises a number of delicate issues regarding the scope of the constitutional right and the manner of proof. The Proclamation, moreover, is facially neutral toward religion. Plaintiffs therefore ask the Court to probe the sincerity of the stated justifications for the policy by reference to extrinsic statements—many of which were made before the President took the oath of office. These various aspects of plaintiffs’ challenge inform our standard of review. C For more than a century, this Court has recognized that the admission and exclusion of foreign nationals is a “fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Fiallo v. Bell , 430 U. S. 787, 792 (1977); see Harisiades v. Shaughnessy , 342 U. S. 580, 588–589 (1952) (“[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations [and] the war power.”). Because decisions in these matters may implicate “relations with foreign powers,” or involve “classifications defined in the light of changing political and economic circumstances,” such judgments “are frequently of a character more appropriate to either the Legislature or the Executive.” Mathews v. Diaz , 426 U. S. 67, 81 (1976). Nonetheless, although foreign nationals seeking admission have no constitutional right to entry, this Court has engaged in a circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen. In Kleindienst v. Mandel , the Attorney General denied admission to a Belgian journalist and self-described “revolutionary Marxist,” Ernest Mandel, who had been invited to speak at a conference at Stanford University. 408 U. S., at 756–757. The professors who wished to hear Mandel speak challenged that decision under the First Amendment, and we acknowledged that their constitutional “right to receive information” was implicated. Id. , at 764–765. But we limited our review to whether the Executive gave a “facially legitimate and bona fide” reason for its action. Id. , at 769. Given the authority of the political branches over admission, we held that “when the Executive exercises this [delegated] power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification” against the asserted constitutional interests of U. S. citizens. Id. , at 770. The principal dissent suggests that Mandel has no bearing on this case, post, at 14, and n. 5 (opinion of Sotomayor, J.) (hereinafter the dissent), but our opinions have reaffirmed and applied its deferential standard of review across different contexts and constitutional claims. In Din , Justice Kennedy reiterated that “respect for the political branches’ broad power over the creation and administration of the immigration system” meant that the Government need provide only a statutory citation to explain a visa denial. 576 U. S., at ___ (opinion concurring in judgment) (slip op., at 6). Likewise in Fiallo , we applied Mandel to a “broad congressional policy” giving immigration preferences to mothers of illegitimate children. 430 U. S., at 795. Even though the statute created a “categorical” entry classification that discriminated on the basis of sex and legitimacy, post, at 14, n. 5, the Court concluded that “it is not the judicial role in cases of this sort to probe and test the justifications” of immigration policies. 430 U. S., at 799 (citing Mandel , 408 U. S., at 770). Lower courts have similarly applied Mandel to broad executive action. See Rajah v. Mukasey , 544 F.3d 427, 433, 438–439 (CA2 2008) (upholding National Security Entry-Exit Registration System instituted after September 11, 2001). Mandel ’s narrow standard of review “has particular force” in admission and immigration cases that overlap with “the area of national security.” Din , 576 U. S., at ___ (Kennedy, J., concurring in judgment) (slip op., at 3). For one, “[j]udicial inquiry into the national-security realm raises concerns for the separation of powers” by intruding on the President’s constitutional responsibilities in the area of foreign affairs. Ziglar v. Abbasi , 582 U. S. ___, ___ (2017) (slip op., at 19) (internal quotation marks omitted). For another, “when it comes to collecting evidence and drawing inferences” on questions of national security, “the lack of competence on the part of the courts is marked.” Humanitarian Law Project , 561 U. S., at 34. The upshot of our cases in this context is clear: “Any rule of constitutional law that would inhibit the flexibility” of the President “to respond to changing world conditions should be adopted only with the greatest caution,” and our inquiry into matters of entry and national security is highly constrained. Mathews , 426 U. S., at 81–82. We need not define the precise contours of that inquiry in this case. A conventional application of Mandel , asking only whether the policy is facially legitimate and bona fide, would put an end to our review. But the Government has suggested that it may be appropriate here for the inquiry to extend beyond the facial neutrality of the order. See Tr. of Oral Arg. 16–17, 25–27 (describing Mandel as “the starting point” of the analysis). For our purposes today, we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review. That standard of review considers whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes. See Railroad Retirement Bd. v. Fritz , 449 U. S. 166, 179 (1980). As a result, we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.[ 5 ] D Given the standard of review, it should come as no surprise that the Court hardly ever strikes down a policy as illegitimate under rational basis scrutiny. On the few occasions where we have done so, a common thread has been that the laws at issue lack any purpose other than a “bare . . . desire to harm a politically unpopular group.” Department of Agriculture v. Moreno , 413 U. S. 528, 534 (1973). In one case, we invalidated a local zoning ordinance that required a special permit for group homes for the intellectually disabled, but not for other facilities such as fraternity houses or hospitals. We did so on the ground that the city’s stated concerns about (among other things) “legal responsibility” and “crowded conditions” rested on “an irrational prejudice” against the intellectually dis- abled. Cleburne v. Cleburne Living Center, Inc. , 473 U. S. 432, 448–450 (1985) (internal quotation marks omitted). And in another case, this Court overturned a state constitutional amendment that denied gays and lesbians access to the protection of antidiscrimination laws. The amendment, we held, was “divorced from any factual context from which we could discern a relationship to legitimate state interests,” and “its sheer breadth [was] so discontinuous with the reasons offered for it” that the initiative seemed “inexplicable by anything but animus.” Romer v. Evans , 517 U. S. 620, 632, 635 (1996). The Proclamation does not fit this pattern. It cannot be said that it is impossible to “discern a relationship to legitimate state interests” or that the policy is “inexplicable by anything but animus.” Indeed, the dissent can only attempt to argue otherwise by refusing to apply anything resembling rational basis review. But because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification. The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices. The text says nothing about religion. Plaintiffs and the dissent nonetheless emphasize that five of the seven nations currently included in the Proclamation have Muslim-majority populations. Yet that fact alone does not support an inference of religious hostility, given that the policy covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks. See 8 U. S. C. §1187(a)(12)(A) (identifying Syria and state sponsors of terrorism such as Iran as “countr[ies] or area[s] of concern” for purposes of administering the Visa Waiver Program); Dept. of Homeland Security, DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016) (designating Libya, Somalia, and Yemen as additional countries of concern); see also Rajah , 544 F. 3d, at 433, n. 3 (describing how nonimmigrant aliens from Iran, Libya, Somalia, Syria, and Yemen were covered by the National Security Entry-Exit Registration System). The Proclamation, moreover, reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies. Plaintiffs seek to discredit the findings of the review, pointing to deviations from the review’s baseline criteria resulting in the inclusion of Somalia and omission of Iraq. But as the Proclamation explains, in each case the determinations were justified by the distinct conditions in each country. Although Somalia generally satisfies the information-sharing component of the baseline criteria, it “stands apart . . . in the degree to which [it] lacks command and control of its territory.” Proclamation §2(h)(i). As for Iraq, the Secretary of Homeland Security determined that entry restrictions were not warranted in light of the close cooperative relationship between the U. S. and Iraqi Governments and the country’s key role in combating terrorism in the region. §1(g). It is, in any event, difficult to see how exempting one of the largest predominantly Muslim countries in the region from coverage under the Proclamation can be cited as evidence of animus toward Muslims. The dissent likewise doubts the thoroughness of the multi-agency review because a recent Freedom of Information Act request shows that the final DHS report “was a mere 17 pages.” Post, at 19. Yet a simple page count offers little insight into the actual substance of the final report, much less predecisional materials underlying it. See 5 U. S. C. §552(b)(5) (exempting deliberative materials from FOIA disclosure). More fundamentally, plaintiffs and the dissent challenge the entry suspension based on their perception of its effectiveness and wisdom. They suggest that the policy is overbroad and does little to serve national security interests. But we cannot substitute our own assessment for the Executive’s predictive judgments on such matters, all of which “are delicate, complex, and involve large elements of prophecy.” Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp. , 333 U. S. 103, 111 (1948); see also Regan v. Wald , 468 U. S. 222, 242–243 (1984) (declining invitation to conduct an “independent foreign policy analysis”). While we of course “do not defer to the Government’s reading of the First Amendment,” the Executive’s evaluation of the underlying facts is entitled to appropriate weight, particularly in the context of litigation involving “sensitive and weighty interests of national security and foreign affairs.” Humanitarian Law Project , 561 U. S., at 33–34.[ 6 ] Three additional features of the entry policy support the Government’s claim of a legitimate national security interest. First, since the President introduced entry restrictions in January 2017, three Muslim-majority countries—Iraq, Sudan, and Chad—have been removed from the list of covered countries. The Proclamation emphasizes that its “conditional restrictions” will remain in force only so long as necessary to “address” the identified “inadequacies and risks,” Proclamation Preamble, and §1(h), and establishes an ongoing process to engage covered nations and assess every 180 days whether the entry restrictions should be terminated, §§4(a), (b). In fact, in announcing the termination of restrictions on nationals of Chad, the President also described Libya’s ongoing engagement with the State Department and the steps Libya is taking “to improve its practices.” Proclamation No. 9723, 83 Fed. Reg. 15939. Second, for those countries that remain subject to entry restrictions, the Proclamation includes significant exceptions for various categories of foreign nationals. The policy permits nationals from nearly every covered country to travel to the United States on a variety of nonimmigrant visas. See, e.g., §§2(b)–(c), (g), (h) (permitting student and exchange visitors from Iran, while restricting only business and tourist nonimmigrant entry for nationals of Libya and Yemen, and imposing no restrictions on nonimmigrant entry for Somali nationals). These carveouts for nonimmigrant visas are substantial: Over the last three fiscal years—before the Proclamation was in effect—the majority of visas issued to nationals from the covered countries were nonimmigrant visas. Brief for Petitioners 57. The Proclamation also exempts permanent resi- dents and individuals who have been granted asylum. §§3(b)(i), (vi). Third, the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants. According to the Proclamation, consular officers are to consider in each admissibility determination whether the alien demonstrates that (1) denying entry would cause undue hardship; (2) entry would not pose a threat to public safety; and (3) entry would be in the interest of the United States. §3(c)(i); see also §3(c)(iv) (listing examples of when a waiver might be appropriate, such as if the foreign national seeks to reside with a close family member, obtain urgent medical care, or pursue significant business obligations). On its face, this program is similar to the humanitarian exceptions set forth in President Carter’s order during the Iran hostage crisis. See Exec. Order No. 12206, 3 CFR 249; Public Papers of the Presidents, Jimmy Carter, Sanctions Against Iran, at 611–612 (1980) (outlining exceptions). The Proclamation also directs DHS and the State Department to issue guidance elaborating upon the circumstances that would justify a waiver.[ 7 ] Finally, the dissent invokes Korematsu v. United States , 323 U. S. 214 (1944). Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. See post, at 26–28. The entry suspension is an act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation. The dissent’s reference to Korematsu , however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” 323 U. S., at 248 (Jackson, J., dissenting). *  *  * Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy. We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim. V Because plaintiffs have not shown that they are likely to succeed on the merits of their claims, we reverse the grant of the preliminary injunction as an abuse of discretion. Winter v. Natural Resources Defense Council, Inc. , 555 U. S. 7, 32 (2008). The case now returns to the lower courts for such further proceedings as may be appropriate. Our disposition of the case makes it unnecessary to consider the propriety of the nationwide scope of the injunction issued by the District Court. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 The President also invoked his power under 8 U. S. C. §1185(a)(1), which grants the President authority to adopt “reasonable rules, regulations, and orders” governing entry or removal of aliens, “subject to such limitations and exceptions as [he] may prescribe.” Because this provision “substantially overlap[s]” with §1182(f ), we agree with the Government that we “need not resolve . . . the precise relationship between the two statutes” in evaluating the validity of the Proclamation. Brief for Petitioners 32–33. 2 The Proclamation states that it does not disclose every ground for the country-specific restrictions because “[d]escribing all of those reasons publicly . . . would cause serious damage to the national security of the United States, and many such descriptions are classified.” §1(j). 3 The Act is rife with examples distinguishing between the two concepts. See, e.g., 8 U. S. C. §1101(a)(4) (“The term ‘application for admission’ has reference to the application for admission into the United States and not to the application for the issuance of an immigrant or nonimmigrant visa.”); §1182(a) (“ineligible to receive visas and ineligible to be admitted”); §1182(a)(3)(D)(iii) (“establishes to the satisfaction of the consular officer when applying for a visa . . . or to the satisfaction of the Attorney General when applying for admission”); §1182(h)(1)(A)(i) (“alien’s application for a visa, admission, or adjustment of status”); §1187 (permitting entry without a visa); §1361 (establishing burden of proof for when a person “makes application for a visa . . . , or makes application for admission, or otherwise attempts to enter the United States”). 4 The concepts of entry and admission—but not issuance of a visa—are used interchangeably in the INA. See §1101(a)(13)(A) (defining “admission” as the “lawful entry of the alien into the United States”). 5 The dissent finds “perplexing” the application of rational basis review in this context. Post, at 15. But what is far more problematic is the dissent’s assumption that courts should review immigration policies, diplomatic sanctions, and military actions under the de novo “reasonable observer” inquiry applicable to cases involving holiday displays and graduation ceremonies. The dissent criticizes application of a more constrained standard of review as “throw[ing] the Establishment Clause out the window.” Post, at 16, n. 6. But as the numerous precedents cited in this section make clear, such a circumscribed inquiry applies to any constitutional claim concerning the entry of foreign nationals. See Part IV–C, supra . The dissent can cite no authority for its proposition that the more free-ranging inquiry it proposes is appropriate in the national security and foreign affairs context. 6 The dissent recycles much of plaintiffs’ §1182(f ) argument to assert that “Congress has already erected a statutory scheme that fulfills” the President’s stated concern about deficient vetting. Post, at 19–21. But for the reasons set forth earlier, Congress has not in any sense “stepped into the space and solved the exact problem.” Tr. of Oral Arg. 53. Neither the existing inadmissibility grounds nor the narrow Visa Waiver Program address the failure of certain high-risk countries to provide a minimum baseline of reliable information. See Part III–B–1, supra . 7 Justice Breyer focuses on only one aspect of our consideration—the waiver program and other exemptions in the Proclamation. Citing selective statistics, anecdotal evidence, and a declaration from unre-lated litigation, Justice Breyer suggests that not enough individuals are receiving waivers or exemptions. Post, at 4–8 (dissenting opinion). Yet even if such an inquiry were appropriate under rational basis review, the evidence he cites provides “but a piece of the picture,” post, at 6, and does not affect our analysis. SUPREME COURT OF THE UNITED STATES _________________ No. 17–965 _________________ DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al., PETITIONERS v. HAWAII, et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 26, 2018] Justice Kennedy, concurring. I join the Court’s opinion in full. There may be some common ground between the opinions in this case, in that the Court does acknowledge that in some instances, governmental action may be subject to judicial review to determine whether or not it is “inexplicable by anything but animus,” Romer v. Evans , 517 U. S. 620, 632 (1996), which in this case would be animosity to a religion. Whether judicial proceedings may properly continue in this case, in light of the substantial deference that is and must be accorded to the Executive in the conduct of foreign affairs, and in light of today’s decision, is a matter to be addressed in the first instance on remand. And even if further proceedings are permitted, it would be necessary to determine that any discovery and other preliminary matters would not themselves intrude on the foreign affairs power of the Executive. In all events, it is appropriate to make this further observation. There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects. The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct or even comment upon what those officials say or do. Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise. The First Amendment prohibits the establishment of religion and promises the free exercise of religion. From these safeguards, and from the guarantee of freedom of speech, it follows there is freedom of belief and expression. It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs. An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts. SUPREME COURT OF THE UNITED STATES _________________ No. 17–965 _________________ DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al., PETITIONERS v. HAWAII, et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 26, 2018] Thomas, J., concurring. I join the Court’s opinion, which highlights just a few of the many problems with the plaintiffs’ claims. There are several more. Section 1182(f) does not set forth any judicially enforceable limits that constrain the President. See Webster v. Doe , 486 U. S. 592, 600 (1988). Nor could it, since the President has inherent authority to exclude aliens from the country. See United States ex rel. Knauff v. Shaughnessy , 338 U. S. 537, 542–543 (1950); accord, Sessions v. Dimaya , 584 U. S. ___, ___–___ (2018) (Thomas, J., dissenting) (slip op., at 13–14). Further, the Establishment Clause does not create an individual right to be free from all laws that a “reasonable observer” views as religious or antireligious. See Town of Greece v. Galloway , 572 U. S. ___, ___ (2014) (Thomas, J., concurring in part and concurring in judgment) (slip op., at 6); Elk Grove Unified School Dist. v. Newdow , 542 U. S. 1, 52–53 (2004) (Thomas, J., concurring in judgment). The plaintiffs cannot raise any other First Amendment claim, since the alleged religious discrimination in this case was directed at aliens abroad. See United States v. Verdugo-Urquidez , 494 U. S. 259, 265 (1990). And, even on its own terms, the plaintiffs’ proffered evidence of anti-Muslim discrimination is unpersuasive. Merits aside, I write separately to address the remedy that the plaintiffs sought and obtained in this case. The District Court imposed an injunction that barred the Government from enforcing the President’s Proclamation against anyone, not just the plaintiffs. Injunctions that prohibit the Executive Branch from applying a law or policy against anyone—often called “universal” or “nationwide” injunctions—have become increasingly common.[ 1 ] District courts, including the one here, have begun imposing universal injunctions without considering their authority to grant such sweeping relief. These injunctions are beginning to take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch. I am skeptical that district courts have the authority to enter universal injunctions. These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality. I If district courts have any authority to issue universal injunctions, that authority must come from a statute or the Constitution. See Missouri v. Jenkins , 515 U. S. 70 124 (1995) (Thomas, J., concurring). No statute expressly grants district courts the power to issue universal injunctions.[ 2 ] So the only possible bases for these injunctions are a generic statute that authorizes equitable relief or the courts’ inherent constitutional authority. Neither of those sources would permit a form of injunctive relief that is “[in]consistent with our history and traditions.” Ibid . A This Court has never treated general statutory grants of equitable authority as giving federal courts a freewheeling power to fashion new forms of equitable remedies. Rather, it has read such statutes as constrained by “the body of law which had been transplanted to this country from the English Court of Chancery” in 1789. Guaranty Trust Co. v. York , 326 U. S. 99, 105 (1945). As Justice Story explained, this Court’s “settled doctrine” under such statutes is that “the remedies in equity are to be administered . . . according to the practice of courts of equity in [England].” Boyle v. Zacharie & Turner , 6 Pet. 648, 658 (1832). More recently, this Court reiterated that broad statutory grants of equitable authority give federal courts “ ‘an authority to administer in equity suits the principles of the system of judicial remedies which had been devised and was being administered by the English Court of Chancery at the time of the separation of the two countries.’ ” Grupo Mexicano de Desarrollo S. A. v. Alliance Bond Fund, Inc. , 527 U. S. 308, 318 (1999) (Scalia, J.) (quoting Atlas Life Ins. Co. v. W. I. Southern, Inc. , 306 U. S. 563, 568 (1939)). B The same is true of the courts’ inherent constitutional authority to grant equitable relief, assuming any such authority exists. See Jenkins , 515 U. S., at 124 (Thomas, J., concurring). This authority is also limited by the traditional rules of equity that existed at the founding. The scope of the federal courts’ equitable authority under the Constitution was a point of contention at the founding, and the “more limited construction” of that power prevailed. Id., at 126. The founding generation viewed equity “with suspicion.” Id. , at 128. Several anti-Federalists criticized the Constitution’s extension of the federal judicial power to “Case[s] in . . . Equity,” Art. III, §2, as “giv[ing] the judge a discretionary power.” Letters from The Federal Farmer No. XV (Jan. 18, 1788), in 2 The Complete Anti-Federalist 315, 322 (H. Storing ed. 1981). That discretionary power, the anti-Federalists alleged, would allow courts to “explain the constitution according to the reasoning spirit of it, without being confined to the words or letter.” Essays of Brutus No. XI (Jan. 31, 1788), in id., at 417, 419–420. The Federalists responded to this concern by emphasizing the limited nature of equity. Hamilton explained that the judiciary would be “bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.” The Federalist No. 78, p. 471 (C. Rossiter ed. 1961) (Federalist). Although the purpose of a court of equity was “to give relief in extraordinary cases, which are exceptions to general rules,” “the principles by which that relief is governed are now reduced to a regular system.” Id. No. 83 at 505 (emphasis deleted). The Federalists’ explanation was consistent with how equity worked in 18th-century England. English courts of equity applied established rules not only when they decided the merits, but also when they fashioned remedies. Like other aspects of equity, “the system of relief administered by a court of equity” had been reduced “into a regular science.” 3 W. Blackstone, Commentaries on the Laws of England 440–441 (1768) (Blackstone). As early as 1768, Blackstone could state that the “remedy a suitor is entitled to expect” could be determined “as readily and with as much precision, in a court of equity as in a court of law.” Id., at 441. Although courts of equity exercised remedial “discretion,” that discretion allowed them to deny or tailor a remedy despite a demonstrated violation of a right, not to expand a remedy beyond its traditional scope. See G. Keeton, An Introduction to Equity 117–118 (1938). In short, whether the authority comes from a statute or the Constitution, district courts’ authority to provide equitable relief is meaningfully constrained. This author- ity must comply with longstanding principles of equity that predate this country’s founding. II Universal injunctions do not seem to comply with those principles. These injunctions are a recent development, emerging for the first time in the 1960s and dramatically increasing in popularity only very recently. And they appear to conflict with several traditional rules of equity, as well as the original understanding of the judicial role. Equity originated in England as a means for the Crown to dispense justice by exercising its sovereign authority. See Adams, The Origins of English Equity, 16 Colum. L. Rev. 87, 91 (1916). Petitions for equitable relief were referred to the Chancellor, who oversaw cases in equity. See 1 S. Symon’s, Pomeroy’s, Equity Jurisprudence §33 (5th ed. 1941) (Pomeroy); G. McDowell, Equity and the Constitution 24 (1982). The Chancellor’s equitable jurisdiction was based on the “reserve of justice in the king.” F. Maitland, Equity 3 (2d ed. 1936); see also 1 Pomeroy §33, at 38 (describing the Chancellor’s equitable authority as an “extraordinary jurisdiction—that of Grace —by delegation” from the King). Equity allowed the sovereign to afford discretionary relief to parties where relief would not have been available under the “rigors of the common law.” Jenkins , supra , at 127 (opinion of Thomas, J.). The English system of equity did not contemplate universal injunctions. As an agent of the King, the Chancellor had no authority to enjoin him. See Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 425 (2017) (Bray). The Chancellor could not give “any relief against the king, or direct any act to be done by him, or make any decree disposing of or affecting his property; not even in cases where he is a royal trustee.” 3 Blackstone 428. The Attorney General could be sued in Chancery, but not in cases that “ ‘immediately concerned’ ” the interests of the Crown. Bray 425 (citing 1 E. Daniell, The Practice of the High Court of Chancery 138 (2d ed. 1845)). American courts inherited this tradition. See J. Story, Commentaries on Equity Pleadings §69 (1838) (Story). Moreover, as a general rule, American courts of equity did not provide relief beyond the parties to the case. If their injunctions advantaged nonparties, that benefit was merely incidental. Injunctions barring public nuisances were an example. While these injunctions benefited third parties, that benefit was merely a consequence of providing relief to the plaintiff. Woolhandler & Nelson, Does History Defeat Standing Doctrine? 102 Mich. L. Rev. 689, 702 (2004) (Woolhandler & Nelson); see Pennsylvania v. Wheeling & Belmont Bridge Co. , 13 How. 518, 564 (1852) (explaining that a private “injury makes [a public nuisance] a private nuisance to the injured party”). True, one of the recognized bases for an exercise of equitable power was the avoidance of “multiplicity of suits.” Bray 426; accord, 1 Pomeroy §243. Courts would employ “bills of peace” to consider and resolve a number of suits in a single proceeding. Id ., §246. And some authorities stated that these suits could be filed by one plaintiff on behalf of a number of others. Id ., §251. But the “general rule” was that “all persons materially interested . . . in the subject-matter of a suit, are to be made parties to it . . . , however numerous they may be, so that there may be a complete decree, which shall bind them all.” Story §72, at 61 (emphasis added). And, in all events, these “proto-class action[s]” were limited to a small group of similarly situated plaintiffs having some right in common. Bray 426–427; see also Story §120, at 100 (explaining that such suits were “always” based on “a common interest or a common right”). American courts’ tradition of providing equitable relief only to parties was consistent with their view of the nature of judicial power. For most of our history, courts understood judicial power as “fundamentall[y] the power to render judgments in individual cases.” Murphy v. National Collegiate Athletic Assn. , 584 U. S. ___, ___–___ (2018) (Thomas, J., concurring) (slip op., at 2–3). They did not believe that courts could make federal policy, and they did not view judicial review in terms of “striking down” laws or regulations. See id., at ___–___ (slip op., at 3–4). Misuses of judicial power, Hamilton reassured the people of New York, could not threaten “the general liberty of the people” because courts, at most, adjudicate the rights of “individual[s].” Federalist No. 78, at 466. The judiciary’s limited role was also reflected in this Court’s decisions about who could sue to vindicate certain rights. See Spokeo, Inc. v. Robins , 578 U. S. ___, ___–___ (2016) (Thomas, J., concurring) (slip op., at 2–4). A plaintiff could not bring a suit vindicating public rights— i.e., rights held by the community at large—without a showing of some specific injury to himself. Id., at ___–___ (slip op., at 3–4). And a plaintiff could not sue to vindicate the private rights of someone else. See Woolhandler & Nelson 715–716. Such claims were considered to be beyond the authority of courts. Id., at 711–717. This Court has long respected these traditional limits on equity and judicial power. See, e.g., Scott v. Donald , 165 U. S. 107, 115 (1897) (rejecting an injunction based on the theory that the plaintiff “so represents [a] class” whose rights were infringed by a statute as “too conjectural to furnish a safe basis upon which a court of equity ought to grant an injunction”). Take, for example, this Court’s decision in Massachusetts v. Mellon , 262 U. S. 447 (1923). There, a taxpayer sought to enjoin the enforcement of an appropriation statute. The Court noted that this kind of dispute “is essentially a matter of public and not of individual concern.” Id., at 487. A general interest in enjoining implementation of an illegal law, this Court explained, provides “no basis . . . for an appeal to the preventive powers of a court of equity.” Ibid. Courts can review the constitutionality of an act only when “a justiciable issue” requires it to decide whether to “disregard an unconstitutional enactment.” Id., at 488. If the statute is unconstitutional, then courts enjoin “not the execution of the statute, but the acts of the official.” Ibid. Courts cannot issue an injunction based on a mere allegation “that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional.” Ibid. “To do so would be not to decide a judicial controversy.” Id., at 488–489. By the latter half of the 20th century, however, some jurists began to conceive of the judicial role in terms of resolving general questions of legality, instead of addressing those questions only insofar as they are necessary to resolve individual cases and controversies. See Bray 451. That is when what appears to be “the first [universal] injunction in the United States” emerged. Bray 438. In Wirtz v. Baldor Elec . Co ., 337 F. 2d 518 (CADC 1963), the Court of Appeals for the District of Columbia Circuit addressed a lawsuit challenging the Secretary of Labor’s determination of the prevailing minimum wage for a particular industry. Id. , at 520. The D. C. Circuit concluded that the Secretary’s determination was unsupported, but remanded for the District Court to assess whether any of the plaintiffs had standing to challenge it. Id., at 521–535. The D. C. Circuit also addressed the question of remedy, explaining that if a plaintiff had standing to sue then “the District Court should enjoin . . . the Secretary’s determination with respect to the entire industry .” Id., at 535 (emphasis added). To justify this broad relief, the D. C. Circuit explained that executive officers should honor judicial decisions “in all cases of essentially the same character.” Id., at 534. And it noted that, once a court has decided an issue, it “would ordinarily give the same relief to any individual who comes to it with an essentially similar cause of action.” Ibid. The D. C. Circuit added that the case was “clearly a proceeding in which those who have standing are here to vindicate the public interest in having congressional enactments prop- erly interpreted and applied.” Id., at 534–535. Universal injunctions remained rare in the decades following Wirtz . See Bray 440–445. But recently, they have exploded in popularity. See id., at 457–459. Some scholars have criticized the trend. See generally id., at 457–465; Morley, Nationwide Injunctions, Rule 23(b)(2), and the Remedial Powers of the Lower Courts, 97 B. U. L. Rev. 615, 633–653 (2017); Morley, De Facto Class Actions? Plaintiff- and Defendant-Oriented Injunctions in Voting Rights, Election Law, and Other Constitutional Cases, 39 Harv. J. L. & Pub. Pol’y 487, 521–538 (2016). No persuasive defense has yet been offered for the practice. Defenders of these injunctions contend that they ensure that individuals who did not challenge a law are treated the same as plaintiffs who did, and that universal injunctions give the judiciary a powerful tool to check the Executive Branch. See Amdur & Hausman, Nationwide Injunctions and Nationwide Harm, 131 Harv. L. Rev. Forum 49, 51, 54 (2017); Malveaux, Class Actions, Civil Rights, and the National Injunction, 131 Harv. L. Rev. Forum 56, 57, 60–62 (2017). But these arguments do not explain how these injunctions are consistent with the historical limits on equity and judicial power. They at best “boi[l] down to a policy judgment” about how powers ought to be allocated among our three branches of government. Perez v. Mortgage Bankers Assn. , 575 U. S. ___, ___ (2015) (Thomas, J., concurring in judgment) (slip op., at 23). But the people already made that choice when they ratified the Constitution. *  *  * In sum, universal injunctions are legally and historically dubious. If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so. Notes 1 “Nationwide injunctions” is perhaps the more common term. But I use the term “universal injunctions” in this opinion because it is more precise. These injunctions are distinctive because they prohibit the Government from enforcing a policy with respect to anyone, including nonparties—not because they have wide geographic breadth. An injunction that was properly limited to the plaintiffs in the case would not be invalid simply because it governed the defendant’s conduct nationwide. 2 Even if Congress someday enacted a statute that clearly and expressly authorized universal injunctions, courts would need to consider whether that statute complies with the limits that Article III places on the authority of federal courts. See infra , at 7–8. SUPREME COURT OF THE UNITED STATES _________________ No. 17–965 _________________ DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al., PETITIONERS v. HAWAII, et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 26, 2018] Justice Breyer, with whom Justice Kagan joins, dissenting. The question before us is whether Proclamation No. 9645 is lawful. If its promulgation or content was significantly affected by religious animus against Muslims, it would violate the relevant statute or the First Amendment itself. See 8 U. S. C. §1182(f) (requiring “find[ings]” that persons denied entry “would be detrimental to the interests of the United States”); Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U. S. 520 (1993) ( First Amendment); Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n , 584 U. S. ___ (2018) (same); post, at 2–4 (Sotomayor, J., dissenting). If, however, its sole ratio decidendi was one of national security, then it would be unlikely to violate either the statute or the Constitution. Which is it? Members of the Court principally disagree about the answer to this question, i.e., about whether or the extent to which religious animus played a significant role in the Proclamation’s promulgation or content. In my view, the Proclamation’s elaborate system of exemptions and waivers can and should help us answer this question. That system provides for case-by-case consideration of persons who may qualify for visas despite the Proclamation’s general ban. Those persons include lawful permanent residents, asylum seekers, refugees, students, children, and numerous others. There are likely many such persons, perhaps in the thousands. And I believe it appropriate to take account of their Proclamation-granted status when considering the Proclamation’s lawfulness. The Solicitor General asked us to consider the Proclamation “as” it is “written” and “as” it is “applied,” waivers and exemptions included. Tr. of Oral Arg. 38. He warned us against considering the Proclamation’s lawfulness “on the hypothetical situation that [the Proclamation] is what it isn’t,” ibid., while telling us that its waiver and exemption provisions mean what they say: The Proclamation does not exclude individuals from the United States “if they meet the criteria” for a waiver or exemption. Id., at 33. On the one hand, if the Government is applying the exemption and waiver provisions as written, then its argument for the Proclamation’s lawfulness is strengthened. For one thing, the Proclamation then resembles more closely the two important Presidential precedents on point, President Carter’s Iran order and President Reagan’s Cuba proclamation, both of which contained similar categories of persons authorized to obtain case-by-case exemptions. Ante, at 36–37; Exec. Order No. 12172, 44 Fed. Reg. 67947 (1979), as amended by Exec. Order No. 12206, 45 Fed. Reg. 24101 (1980); Presidential Proclamation No. 5517, 51 Fed. Reg. 30470 (1986). For another thing, the Proclamation then follows more closely the basic statutory scheme, which provides for strict case-by-case scrutiny of applications. It would deviate from that system, not across the board, but where circumstances may require that deviation. Further, since the case-by-case exemptions and waivers apply without regard to the individual’s religion, application of that system would help make clear that the Proclamation does not deny visas to numerous Muslim individuals (from those countries) who do not pose a security threat. And that fact would help to rebut the First Amendment claim that the Proclamation rests upon anti-Muslim bias rather than security need. Finally, of course, the very fact that Muslims from those countries would enter the United States (under Proclamation-provided exemptions and waivers) would help to show the same thing. On the other hand, if the Government is not applying the system of exemptions and waivers that the Proclamation contains, then its argument for the Proclamation’s lawfulness becomes significantly weaker. For one thing, the relevant precedents—those of Presidents Carter and Reagan—would bear far less resemblance to the present Proclamation. Indeed, one might ask, if those two Presidents thought a case-by-case exemption system appropriate, what is different about present circumstances that would justify that system’s absence? For another thing, the relevant statute requires that there be “find[ings]” that the grant of visas to excluded persons would be “detrimental to the interests of the United States.” §1182(f ). Yet there would be no such findings in respect to those for whom the Proclamation itself provides case-by-case examination (followed by the grant of a visa in appropriate cases). And, perhaps most importantly, if the Government is not applying the Proclamation’s exemption and waiver system, the claim that the Proclamation is a “Muslim ban,” rather than a “security-based” ban, becomes much stronger. How could the Government successfully claim that the Proclamation rests on security needs if it is excluding Muslims who satisfy the Proclamation’s own terms? At the same time, denying visas to Muslims who meet the Proclamation’s own security terms would support the view that the Government excludes them for reasons based upon their religion. Unfortunately there is evidence that supports the second possibility, i.e., that the Government is not applying the Proclamation as written. The Proclamation provides that the Secretary of State and the Secretary of Homeland Security “shall coordinate to adopt guidance” for consular officers to follow when deciding whether to grant a waiver. §3(c)(ii). Yet, to my knowledge, no guidance has issued. The only potentially relevant document I have found consists of a set of State Department answers to certain Frequently Asked Questions, but this document simply restates the Proclamation in plain language for visa applicants. It does not provide guidance for consular officers as to how they are to exercise their discretion. See Dept. of State, FAQs on the Presidential Proclamation, https:// travel.state.gov/content/travel/en/us-visas/visa-information- resources/presidential-proclamation-archive/2017-12-04-Presidential-Proclamation.html (all Internet materials as last visited June 25, 2018). An examination of publicly available statistics also provides cause for concern. The State Department reported that during the Proclamation’s first month, two waivers were approved out of 6,555 eligible applicants. Letter from M. Waters, Assistant Secretary Legislative Affairs, to Sen. Van Hollen (Feb. 22, 2018). In its reply brief, the Government claims that number increased from 2 to 430 during the first four months of implementation. Reply Brief 17. That number, 430, however, when compared with the number of pre-Proclamation visitors, accounts for a miniscule percentage of those likely eligible for visas, in such categories as persons requiring medical treatment, academic visitors, students, family members, and others belonging to groups that, when considered as a group (rather than case by case), would not seem to pose security threats. Amici have suggested that there are numerous applicants who could meet the waiver criteria. For instance, the Proclamation anticipates waivers for those with “significant business or professional obligations” in the United States, §3(c)(iv)(C), and amici identify many scholars who would seem to qualify. Brief for Colleges and Universities as Amici Curiae 25–27; Brief for American Council on Education et al. as Amici Curiae 20 (identifying more than 2,100 scholars from covered countries); see also Brief for Massachusetts Technology Leadership Council, Inc., as Amicus Curiae 14–15 (identifying technology and business leaders from covered countries). The Proclamation also anticipates waivers for those with a “close family member ( e.g., a spouse, child, or parent)” in the United States, §3(c)(iv)(D), and amici identify many such individuals affected by the Proclamation. Brief for Labor Organizations as Amici Curiae 15–18 (identifying children and other relatives of U. S. citizens). The Pars Equality Center identified 1,000 individuals—including parents and children of U. S. citizens—who sought and were denied entry under the Proclamation, hundreds of whom seem to meet the waiver criteria. See Brief for Pars Equality Center et al. as Amici Curiae 12–28. Other data suggest the same. The Proclamation does not apply to asylum seekers or refugees. §§3(b)(vi), 6(e). Yet few refugees have been admitted since the Proclamation took effect. While more than 15,000 Syrian refugees arrived in the United States in 2016, only 13 have arrived since January 2018. Dept. of State, Bureau of Population, Refugees, and Migration, Interactive Reporting, Refugee Processing Center, http://ireports.wrapsnet.org. Similarly few refugees have been admitted since January from Iran (3), Libya (1), Yemen (0), and Somalia (122). Ibid. The Proclamation also exempts individuals applying for several types of nonimmigrant visas: lawful permanent residents, parolees, those with certain travel documents, dual nationals of noncovered countries, and representatives of governments or international organizations. §§3(b)(i)–(v). It places no restrictions on the vast majority of student and exchange visitors, covering only those from Syria, which provided 8 percent of student and exchange visitors from the five countries in 2016. §§2(b)–(h); see Dept. of State, Report of the Visa Office 2016, Table XVII Nonimmigrant Visas Issued Fiscal Year 2016 (Visa Report 2016 Table XVII). Visitors from Somalia are eligible for any type of nonimmigrant visa, subject to “additional scrutiny.” §2(h)(ii). If nonimmigrant visa applications under the Proclamation resemble those in 2016, 16 percent of visa applicants would be eligible for exemptions. See Visa Report 2016 Table XVII. In practice, however, only 258 student visas were issued to applicants from Iran (189), Libya (29), Yemen (40), and Somalia (0) in the first three months of 2018. See Dept. of State, Nonimmigrant Visa Issuances by Nationality, Jan., Feb., and Mar. 2018. This is less than a quarter of the volume needed to be on track for 2016 student visa levels. And only 40 nonimmigrant visas have been issued to Somali nationals, a decrease of 65 percent from 2016. Ibid. ; see Visa Report 2016 Table XVII. While this is but a piece of the picture, it does not provide grounds for confidence. Anecdotal evidence further heightens these concerns. For example, one amicus identified a child with cerebral palsy in Yemen. The war had prevented her from receiving her medication, she could no longer move or speak, and her doctors said she would not survive in Yemen. Her visa application was denied. Her family received a form with a check mark in the box unambiguously confirming that “ ‘a waiver will not be granted in your case.’ ” Letter from L. Blatt to S. Harris, Clerk of Court (May 1, 2018). But after the child’s case was highlighted in an amicus brief before this Court, the family received an update from the consular officer who had initially denied the waiver. It turns out, according to the officer, that she had all along determined that the waiver criteria were met. But, the officer explained, she could not relay that information at the time because the waiver required review from a supervisor, who had since approved it. The officer said that the family’s case was now in administrative processing and that she was attaching a “ ‘revised refusal letter indicating the approval of the waiver.’ ” Ibid. The new form did not actually approve the waiver (in fact, the form contains no box saying “granted”). But a different box was now checked, reading: “ ‘The consular officer is reviewing your eligibility for a waiver under the Proclamation. . . . This can be a lengthy process, and until the consular officer can make an individualized determination of [the relevant] factors, your visa application will remain refused under Section 212(f) [of the Proclamation].’ ” Ibid. One is left to wonder why this second box, indicating continuing review, had not been checked at the outset if in fact the child’s case had remained under consideration all along. Though this is but one incident and the child was admitted after considerable international attention in this case, it provides yet more reason to believe that waivers are not being processed in an ordinary way. Finally, in a pending case in the Eastern District of New York, a consular official has filed a sworn affidavit asserting that he and other officials do not, in fact, have discretion to grant waivers. According to the affidavit, consular officers “were not allowed to exercise that discretion” and “the waiver [process] is merely ‘window dressing.’ ” See Decl. of Christopher Richardson, Alharbi v. Miller , No. 1:18-cv-2435 (June 1, 2018), pp. 3–4. Another report similarly indicates that the U. S. Embassy in Djibouti, which processes visa applications for citizens of Yemen, received instructions to grant waivers “only in rare cases of imminent danger,” with one consular officer reportedly telling an applicant that “ ‘[e]ven for infants, we would need to see some evidence of a congenital heart defect or another medical issue of that degree of difficulty that . . . would likely lead to the child’s developmental harm or death.’ ” Center for Constitutional Rights and the Rule of Law Clinic, Yale Law School, Window Dressing the Muslim Ban: Reports of Waivers and Mass Denials from Yemeni-American Families Stuck in Limbo 18 (2018). Declarations, anecdotal evidence, facts, and numbers taken from amicus briefs are not judicial factfindings. The Government has not had an opportunity to respond, and a court has not had an opportunity to decide. But, given the importance of the decision in this case, the need for assurance that the Proclamation does not rest upon a “Muslim ban,” and the assistance in deciding the issue that answers to the “exemption and waiver” questions may provide, I would send this case back to the District Court for further proceedings. And, I would leave the injunction in effect while the matter is litigated. Regardless, the Court’s decision today leaves the District Court free to explore these issues on remand. If this Court must decide the question without this further litigation, I would, on balance, find the evidence of antireligious bias, including statements on a website taken down only after the President issued the two executive orders preceding the Proclamation, along with the other statements also set forth in Justice Sotomayor’s opinion, a sufficient basis to set the Proclamation aside. And for these reasons, I respectfully dissent. SUPREME COURT OF THE UNITED STATES _________________ No. 17–965 _________________ DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al., PETITIONERS v. HAWAII, et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 26, 2018] Justice Sotomayor, with whom Justice Ginsburg joins, dissenting. The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Muslims entering the United States” because the policy now masquerades behind a façade of national-security concerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent. I Plaintiffs challenge the Proclamation on various grounds, both statutory and constitutional. Ordinarily, when a case can be decided on purely statutory grounds, we strive to follow a “prudential rule of avoiding constitutional questions.” Zobrest v. Catalina Foothills School Dist. , 509 U. S. 1, 8 (1993). But that rule of thumb is far from categorical, and it has limited application where, as here, the constitutional question proves far simpler than the statutory one. Whatever the merits of plaintiffs’ complex statutory claims, the Proclamation must be enjoined for a more fundamental reason: It runs afoul of the Establishment Clause’s guarantee of religious neutrality. A The Establishment Clause forbids government policies “respecting an establishment of religion.” U. S. Const., Amdt. 1. The “clearest command” of the Establishment Clause is that the Government cannot favor or disfavor one religion over another. Larson v. Valente , 456 U. S. 228, 244 (1982); Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U. S. 520, 532 (1993) (“[T]he First Amendment forbids an official purpose to disapprove of a particular religion”); Edwards v. Aguillard , 482 U. S. 578, 593 (1987) (“The Establishment Clause . . . forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma” (internal quotation marks omitted)); Lynch v. Donnelly , 465 U. S. 668, 673 (1984) (noting that the Establishment Clause “forbids hostility toward any [religion],” because “such hostility would bring us into ‘war with our national tradition as embodied in the First Amendmen[t]’ ”); Epperson v. Arkansas , 393 U. S. 97, 106 (1968) (“[T]he State may not adopt programs or practices . . . which aid or oppose any religion. This prohibition is absolute” (citation and internal quotation marks omitted)). Consistent with that clear command, this Court has long acknowledged that governmental actions that favor one religion “inevitabl[y]” foster “the hatred, disrespect and even contempt of those who [hold] contrary beliefs.” Engel v. Vitale , 370 U. S. 421, 431 (1962). That is so, this Court has held, because such acts send messages to members of minority faiths “ ‘that they are outsiders, not full members of the political community.’ ” Santa Fe Independent School Dist. v. Doe , 530 U. S. 290, 309 (2000). To guard against this serious harm, the Framers mandated a strict “principle of denominational neutrality.” Larson , 456 U. S., at 246; Board of Ed. of Kiryas Joel Village School Dist. v. Grumet , 512 U. S. 687, 703 (1994) (recognizing the role of courts in “safeguarding a principle at the heart of the Establishment Clause, that government should not prefer one religion to another, or religion to irreligion”). “When the government acts with the ostensible and predominant purpose” of disfavoring a particular religion, “it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides.” McCreary County v. American Civil Liberties Union of Ky. , 545 U. S. 844, 860 (2005). To determine whether plaintiffs have proved an Establishment Clause violation, the Court asks whether a reasonable observer would view the government action as enacted for the purpose of disfavoring a religion. See id. , at 862, 866; accord, Town of Greece v. Galloway , 572 U. S. ___, ___ (2014) (plurality opinion) (slip op., at 19). In answering that question, this Court has generally considered the text of the government policy, its operation, and any available evidence regarding “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by” the decisionmaker. Lukumi , 508 U. S., at 540 (opinion of Kennedy, J.); McCreary , 545 U. S., at 862 (courts must evaluate “text, legislative history, and implementation . . . , or comparable official act” (internal quotation marks omitted)). At the same time, however, courts must take care not to engage in “any judicial psychoanalysis of a drafter’s heart of hearts.” Id. , at 862. B 1 Although the majority briefly recounts a few of the statements and background events that form the basis of plaintiffs’ constitutional challenge, ante, at 27–28, that highly abridged account does not tell even half of the story. See Brief for The Roderick & Solange MacArthur Justice Center as Amicus Curiae 5–31 (outlining President Trump’s public statements expressing animus toward Islam). The full record paints a far more harrowing picture, from which a reasonable observer would readily conclude that the Proclamation was motivated by hostility and animus toward the Muslim faith. During his Presidential campaign, then-candidate Donald Trump pledged that, if elected, he would ban Muslims from entering the United States. Specifically, on December 7, 2015, he issued a formal statement “calling for a total and complete shutdown of Muslims entering the United States.” App. 119. That statement, which remained on his campaign website until May 2017 (several months into his Presidency), read in full: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on. According to Pew Research, among others, there is great hatred towards Americans by large segments of the Muslim population. Most recently, a poll from the Center for Security Policy released data showing ‘25% of those polled agreed that violence against Americans here in the United States is justified as a part of the global jihad’ and 51% of those polled ‘agreed that Muslims in America should have the choice of being governed according to Shariah.’ Shariah authorizes such atrocities as murder against nonbelievers who won’t convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women. “Mr. Trum[p] stated, ‘Without looking at the various polling data, it is obvious to anybody the hatred is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of the horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect of human life. If I win the election for President, we are going to Make America Great Again.’—Donald J. Trump.” Id. , at 158; see also id. , at 130–131. On December 8, 2015, Trump justified his proposal during a television interview by noting that President Franklin D. Roosevelt “did the same thing” with respect to the internment of Japanese Americans during World War II. Id. , at 120. In January 2016, during a Republican primary debate, Trump was asked whether he wanted to “rethink [ his] position” on “banning Muslims from entering the country.” Ibid. He answered, “No.” Ibid. A month later, at a rally in South Carolina, Trump told an apocryphal story about United States General John J. Pershing killing a large group of Muslim insurgents in the Philippines with bullets dipped in pigs’ blood in the early 1900’s. Id. , at 163–164. In March 2016, he expressed his belief that “Islam hates us. . . . [W]e can’t allow people coming into this country who have this hatred of the United States . . . [a]nd of people that are not Muslim.” Id., at 120–121. That same month, Trump asserted that “[w]e’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.” Id. , at 121. He therefore called for surveillance of mosques in the United States, blaming terrorist attacks on Muslims’ lack of “assimilation” and their commitment to “sharia law.” Ibid. ; id. , at 164. A day later, he opined that Muslims “do not respect us at all” and “don’t respect a lot of the things that are happening throughout not only our country, but they don’t respect other things.” Ibid. As Trump’s presidential campaign progressed, he began to describe his policy proposal in slightly different terms. In June 2016, for instance, he characterized the policy proposal as a suspension of immigration from countries “where there’s a proven history of terrorism.” Id. , at 121. He also described the proposal as rooted in the need to stop “importing radical Islamic terrorism to the West through a failed immigration system.” Id. , at 121–122. Asked in July 2016 whether he was “pull[ing] back from” his pledged Muslim ban, Trump responded, “I actually don’t think it’s a rollback. In fact, you could say it’s an expansion.” Id., at 122–123. He then explained that he used different terminology because “[p]eople were so upset when [he] used the word Muslim.” Id., at 123. A month before the 2016 election, Trump reiterated that his proposed “Muslim ban” had “morphed into a[n] extreme vetting from certain areas of the world.” Ibid. Then, on December 21, 2016, President-elect Trump was asked whether he would “rethink” his previous “plans to create a Muslim registry or ban Muslim immigration.” Ibid. He replied: “You know my plans. All along, I’ve proven to be right.” Ibid. On January 27, 2017, one week after taking office, President Trump signed Executive Order No. 13769, 82 Fed. Reg. 8977 (2017) (EO–1), entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States.” As he signed it, President Trump read the title, looked up, and said “We all know what that means.” App. 124. That same day, President Trump explained to the media that, under EO–1, Christians would be given prior- ity for entry as refugees into the United States. In particu- lar, he bemoaned the fact that in the past, “[i]f you were a Muslim [refugee from Syria] you could come in, but if you were a Christian, it was almost impossible.” Id., at 125. Considering that past policy “very unfair,” President Trump explained that EO–1 was designed “to help” the Christians in Syria. Ibid. The following day, one of President Trump’s key advisers candidly drew the connection between EO–1 and the “Muslim ban” that the President had pledged to implement if elected. Ibid. According to that adviser, “[W]hen [Donald Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’ ” Ibid. On February 3, 2017, the United States District Court for the Western District of Washington enjoined the enforcement of EO–1. See Washington v. Trump, 2017 WL 462040, *3. The Ninth Circuit denied the Government’s request to stay that injunction. Washington v. Trump , 847 F. 3d 1151, 1169 (2017) ( per curiam ). Rather than appeal the Ninth Circuit’s decision, the Government declined to continue defending EO–1 in court and instead announced that the President intended to issue a new executive order to replace EO–1. On March 6, 2017, President Trump issued that new executive order, which, like its predecessor, imposed temporary entry and refugee bans. See Exec. Order No. 13,780, 82 Fed. Reg. 13209 (EO–2). One of the President’s senior advisers publicly explained that EO–2 would “have the same basic policy outcome” as EO–1, and that any changes would address “very technical issues that were brought up by the court.” App. 127. After EO–2 was issued, the White House Press Secretary told reporters that, by issuing EO–2, President Trump “continue[d] to deliver on . . . his most significant campaign promises.” Id. , at 130. That statement was consistent with President Trump’s own declaration that “I keep my campaign promises, and our citizens will be very happy when they see the result.” Id. , at 127–128. Before EO–2 took effect, federal District Courts in Hawaii and Maryland enjoined the order’s travel and refugee bans. See Hawaii v. Trump , 245 F. Supp. 3d 1227, 1239 (Haw. 2017); International Refugee Assistance Project ( IRAP ) v. Trump , 241 F. Supp. 3d 539, 566 (Md. 2017). The Fourth and Ninth Circuits upheld those injunctions in substantial part. IRAP v. Trump , 857 F. 3d 554, 606 (CA4 2017) (en banc); Hawaii v. Trump , 859 F. 3d 741, 789 (CA9 2017) ( per curiam ). In June 2017, this Court granted the Government’s petition for certiorari and issued a per curiam opinion partially staying the District Courts’ injunctions pending further review. In particular, the Court allowed EO–2’s travel ban to take effect except as to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” Trump v. IRAP , 582 U. S. ___, ___ (2017) (slip op., at 12). While litigation over EO–2 was ongoing, President Trump repeatedly made statements alluding to a desire to keep Muslims out of the country. For instance, he said at a rally of his supporters that EO–2 was just a “watered down version of the first one” and had been “tailor[ed]” at the behest of “the lawyers.” App. 131. He further added that he would prefer “to go back to the first [executive order] and go all the way” and reiterated his belief that it was “very hard” for Muslims to assimilate into Western culture. Id. , at 131–132. During a rally in April 2017, President Trump recited the lyrics to a song called “The Snake,” a song about a woman who nurses a sick snake back to health but then is attacked by the snake, as a warning about Syrian refugees entering the country. Id. , at 132, 163. And in June 2017, the President stated on Twitter that the Justice Department had submitted a “watered down, politically correct version” of the “original Travel Ban” “to S[upreme] C[ourt].”[ 1 ] Id. , at 132. The President went on to tweet: “People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” Id. , at 132–133. He added: “That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!” Id. , at 133. Then, on August 17, 2017, President Trump issued yet another tweet about Islam, once more referencing the story about General Pershing’s massacre of Muslims in the Philippines: “Study what General Pershing . . . did to terrorists when caught. There was no more Radical Islamic Terror for 35 years!” IRAP v. Trump , 883 F. 3d 233, 267 (CA4 2018) ( IRAP II ) (en banc) (alterations in original). In September 2017, President Trump tweeted that “[t]he travel ban into the United States should be far larger, tougher and more specific—but stupidly, that would not be politically correct!” App. 133. Later that month, on September 24, 2017, President Trump issued Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (2017) (Proclamation), which restricts entry of certain nationals from six Muslim-majority countries. On November 29, 2017, President Trump “retweeted” three anti-Muslim videos, entitled “Muslim Destroys a Statue of Virgin Mary!”, “Islamist mob pushes teenage boy off roof and beats him to death!”, and “Muslim migrant beats up Dutch boy on crutches!”[ 2 ] IRAP II , 883 F. 3d, at 267. Those videos were initially tweeted by a British political party whose mission is to oppose “all alien and destructive politic[al] or religious doctrines, including . . . Islam.” Ibid. When asked about these videos, the White House Deputy Press Secretary connected them to the Proclamation, responding that the “President has been talking about these security issues for years now, from the campaign trail to the White House” and “has addressed these issues with the travel order that he issued earlier this year and the companion proclamation.” Ibid. 2 As the majority correctly notes, “the issue before us is not whether to denounce” these offensive statements. Ante, at 29. Rather, the dispositive and narrow question here is whether a reasonable observer, presented with all “openly available data,” the text and “historical context” of the Proclamation, and the “specific sequence of events” leading to it, would conclude that the primary purpose of the Proclamation is to disfavor Islam and its adherents by excluding them from the country. See McCreary , 545 U. S., at 862–863. The answer is unquestionably yes. Taking all the relevant evidence together, a reasonable observer would conclude that the Proclamation was driven primarily by anti-Muslim animus, rather than by the Government’s asserted national-security justifications. Even before being sworn into office, then-candidate Trump stated that “Islam hates us,” App. 399, warned that “[w]e’re having problems with the Muslims, and we’re having problems with Muslims coming into the country,” id. , at 121, promised to enact a “total and complete shutdown of Muslims entering the United States,” id., at 119, and instructed one of his advisers to find a “lega[l ]” way to enact a Muslim ban, id. , at 125.[ 3 ] The President continued to make similar statements well after his inauguration, as detailed above, see supra , at 6–10. Moreover, despite several opportunities to do so, President Trump has never disavowed any of his prior statements about Islam.[ 4 ] Instead, he has continued to make remarks that a reasonable observer would view as an unrelenting attack on the Muslim religion and its followers. Given President Trump’s failure to correct the reasonable perception of his apparent hostility toward the Islamic faith, it is unsurprising that the President’s lawyers have, at every step in the lower courts, failed in their attempts to launder the Proclamation of its discriminatory taint. See United States v. Fordice , 505 U. S. 717, 746–747 (1992) (“[G]iven an initially tainted policy, it is eminently reasonable to make the [Government] bear the risk of nonpersuasion with respect to intent at some future time, both because the [Government] has created the dispute through its own prior unlawful conduct, and because discriminatory intent does tend to persist through time” (citation omitted)). Notably, the Court recently found less pervasive official expressions of hostility and the failure to disavow them to be constitutionally significant. Cf. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n , 584 U. S. ___, ___ (2018) (slip op., at 18) (“The official expressions of hostility to religion in some of the commissioners’ comments—comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to the affirmance of the order—were inconsistent with what the Free Exercise Clause requires”). It should find the same here. Ultimately, what began as a policy explicitly “calling for a total and complete shutdown of Muslims entering the United States” has since morphed into a “Proclamation” putatively based on national-security concerns. But this new window dressing cannot conceal an unassailable fact: the words of the President and his advisers create the strong perception that the Proclamation is contaminated by impermissible discriminatory animus against Islam and its followers. II Rather than defend the President’s problematic statements, the Government urges this Court to set them aside and defer to the President on issues related to immigration and national security. The majority accepts that invitation and incorrectly applies a watered-down legal standard in an effort to short circuit plaintiffs’ Establishment Clause claim. The majority begins its constitutional analysis by noting that this Court, at times, “has engaged in a circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen.” Ante, at 30 (citing Kleindienst v. Mandel , 408 U. S. 753 (1972)). As the majority notes, Mandel held that when the Executive Branch provides “a facially legitimate and bona fide reason” for denying a visa, “courts will neither look behind the exercise of that discretion, nor test it by balancing its justification.” Id. , at 770. In his controlling concurrence in Kerry v. Din , 576 U. S. ___ (2015), Justice Kennedy applied Mandel ’s holding and elaborated that courts can “ ‘look behind’ the Government’s exclusion of” a foreign national if there is “an affirmative showing of bad faith on the part of the consular officer who denied [the] visa.” Din , 576 U. S., at ___ (opinion concurring in judgment) (slip op., at 5). The extent to which Mandel and Din apply at all to this case is unsettled, and there is good reason to think they do not.[ 5 ] Indeed, even the Government agreed at oral argument that where the Court confronts a situation involving “all kinds of denigrating comments about” a particular religion and a subsequent policy that is designed with the purpose of disfavoring that religion but that “dot[s] all the i’s and . . . cross[es] all the t’s,” Mandel would not “pu[t] an end to judicial review of that set of facts.” Tr. of Oral Arg. 16. In light of the Government’s suggestion “that it may be appropriate here for the inquiry to extend beyond the facial neutrality of the order,” the majority rightly declines to apply Mandel ’s “narrow standard of review” and “assume[s] that we may look behind the face of the Proclamation.” Ante, at 31–32 . In doing so, however, the Court, without explanation or precedential support, limits its review of the Proclamation to rational-basis scrutiny. Ibid. That approach is perplexing, given that in other Establishment Clause cases, including those involving claims of religious animus or discrimination, this Court has applied a more stringent standard of review. See, e.g., McCreary , 545 U. S., at 860–863; Larson , 456 U. S., at 246; Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church , 393 U. S. 440, 449–452 (1969); see also Colorado Christian Univ. v. Weaver , 534 F. 3d 1245, 1266 (CA10 2008) (McConnell, J.) (noting that, under Supreme Court precedent, laws “involving discrimination on the basis of religion, including interdenominational discrimination, are subject to heightened scrutiny whether they arise under the Free Exercise Clause, the Establishment Clause, or the Equal Protection Clause” (citations omitted)).[ 6 ] As explained above, the Proclamation is plainly unconstitutional under that heightened standard. See supra, at 10–13. But even under rational-basis review, the Proclamation must fall. That is so because the Proclamation is “ ‘divorced from any factual context from which we could discern a relationship to legitimate state interests,’ and ‘its sheer breadth [is] so discontinuous with the reasons offered for it’ ” that the policy is “ ‘inexplicable by anything but animus.’ ” Ante, at 33 (quoting Romer v. Evans , 517 U. S. 620, 632, 635 (1996)); see also Cleburne v. Cleburne Living Center, Inc. , 473 U. S. 432, 448 (1985) (recognizing that classifications predicated on discriminatory animus can never be legitimate because the Government has no legitimate interest in exploiting “mere negative attitudes, or fear” toward a disfavored group). The President’s statements, which the majority utterly fails to address in its legal analysis, strongly support the conclusion that the Proclamation was issued to express hostility toward Muslims and exclude them from the country. Given the overwhelming record evidence of anti-Muslim animus, it sim- ply cannot be said that the Proclamation has a legitimate basis. IRAP II , 883 F. 3d, at 352 (Harris, J., concurring) (explaining that the Proclamation contravenes the bedrock principle “that the government may not act on the basis of animus toward a disfavored religious minority” (emphasis in original)). The majority insists that the Proclamation furthers two interrelated national-security interests: “preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.” Ante, at 34. But the Court offers insufficient support for its view “that the entry suspension has a legitimate grounding in [those] national security concerns, quite apart from any religious hostility.” Ibid. ; see also ante , at 33–38, and n. 7. In- deed, even a cursory review of the Government’s asserted national-security rationale reveals that the Proclamation is nothing more than a “ ‘religious gerrymander.’ ” Lukumi , 508 U. S., at 535. The majority first emphasizes that the Proclamation “says nothing about religion.” Ante, at 34. Even so, the Proclamation, just like its predecessors, overwhelmingly targets Muslim-majority nations. Given the record here, including all the President’s statements linking the Proclamation to his apparent hostility toward Muslims, it is of no moment that the Proclamation also includes minor restrictions on two non-Muslim majority countries, North Korea and Venezuela, or that the Government has removed a few Muslim-majority countries from the list of covered countries since EO–1 was issued. Consideration of the entire record supports the conclusion that the inclusion of North Korea and Venezuela, and the removal of other countries, simply reflect subtle efforts to start “talking territory instead of Muslim,” App. 123, precisely so the Executive Branch could evade criticism or legal consequences for the Proclamation’s otherwise clear targeting of Muslims. The Proclamation’s effect on North Korea and Venezuela, for example, is insubstantial, if not entirely symbolic. A prior sanctions order already restricts entry of North Korean nationals, see Exec. Order No. 13810, 82 Fed. Reg. 44705 (2017), and the Proclamation targets only a handful of Venezuelan government officials and their immediate family members, 82 Fed. Reg. 45166. As such, the President’s inclusion of North Korea and Venezuela does little to mitigate the anti-Muslim animus that permeates the Proclamation. The majority next contends that the Proclamation “reflects the results of a worldwide review process under- taken by multiple Cabinet officials.” Ante, at 34. At the out- set, there is some evidence that at least one of the individuals involved in that process may have exhibited bias against Muslims. As noted by one group of amici , the Trump administration appointed Frank Wuco to help enforce the President’s travel bans and lead the multi- agency review process. See Brief for Plaintiffs in International Refugee Assistance Project v. Trump as Amici Cu- riae 13–14, and n. 10. According to amici , Wuco has purportedly made several suspect public statements about Islam: He has “publicly declared that it was a ‘great idea’ to ‘stop the visa application process into this country from Muslim nations in a blanket type of policy,’ ” “that Muslim populations ‘living under other-than-Muslim rule’ will ‘necessarily’ turn to violence, that Islam prescribes ‘violence and warfare against unbelievers,’ and that Muslims ‘by-and-large . . . resist assimilation.’ ” Id., at 14. But, even setting aside those comments, the worldwide review does little to break the clear connection between the Proclamation and the President’s anti-Muslim statements. For “[n]o matter how many officials affix their names to it, the Proclamation rests on a rotten foundation.” Brief for Constitutional Law Scholars as Amici Curiae 7 (filed Apr. 2, 2018); see supra , at 4–10. The President campaigned on a promise to implement a “total and complete shutdown of Muslims” entering the country, translated that campaign promise into a concrete policy, and made several statements linking that policy (in its various forms) to anti-Muslim animus. Ignoring all this, the majority empowers the President to hide behind an administrative review process that the Government refuses to disclose to the public. See IRAP II , 883 F. 3d, at 268 (“[T]he Government chose not to make the review publicly available” even in redacted form); IRAP v. Trump , No. 17–2231 (CA4), Doc. 126 (Letter from S. Swingle, Counsel for Defendants-Appellants, to P. Connor, Clerk of the United States Court of Appeals for the Fourth Circuit (Nov. 24, 2017)) (resisting Fourth Circuit’s request that the Government supplement the record with the reports referenced in the Proclamation). Furthermore, evidence of which we can take judicial notice indicates that the multiagency review process could not have been very thorough. Ongoing litigation under the Freedom of Information Act shows that the September 2017 report the Government produced after its review process was a mere 17 pages. See Brennan Center for Justice v. United States Dept. of State , No. 17–cv–7520 (SDNY), Doc. No. 31–1, pp. 2–3. That the Government’s analysis of the vetting practices of hundreds of countries boiled down to such a short document raises serious questions about the legitimacy of the President’s proclaimed national-security rationale. Beyond that, Congress has already addressed the national-security concerns supposedly undergirding the Proclamation through an “extensive and complex” framework governing “immigration and alien status.” Arizona v. United States , 567 U. S. 387, 395 (2012).[ 7 ] The Immigration and Nationality Act sets forth, in painstaking detail, a reticulated scheme regulating the admission of individuals to the United States. Generally, admission to the United States requires a valid visa or other travel document. 8 U. S. C. §§1181, 1182(a)(7)(A)(i)(I), 1182(a)(7)(B)(i)(II). To obtain a visa, an applicant must produce “certified cop[ies]” of documents proving her identity, background, and criminal history. §§1202(b), 1202(d). An applicant also must undergo an in-person interview with a State Department consular officer. §§1201(a)(1), 1202(h)(1), 22 CFR §§42.62(a)–(b) (2017); see also 8 U. S. C. §§1202(h)(2)(D), 1202(h)(2)(F) (requiring in-person interview if the individual “is a national of a country officially designated by the Secretary of State as a state sponsor of terrorism” or is “a member of a group or section that . . . poses a security threat to the United States”). “Any alien who . . . has engaged in a terrorist activity,” “incited terrorist activity,” or been a representative, member, or endorser of a terrorist organization, or who “is likely to engage after entry in any terrorist activity,” §1182(a)(3)(B), or who has committed one or more of the many crimes enumerated in the statute is inadmissible and therefore ineligible to receive a visa. See §1182(a)(2)(A) (crime of moral turpitude or drug offense); §1182(a)(2)(C) (drug trafficking or benefiting from a relative who recently trafficked drugs); §1182(a)(2)(D) (prostitution or “unlawful commercialized vice”); §1182(a)(2)(H) (human trafficking); §1182(a)(3) (“Security and related grounds”). In addition to vetting rigorously any individuals seeking admission to the United States, the Government also rigorously vets the information-sharing and identity-management systems of other countries, as evidenced by the Visa Waiver Program, which permits certain nationals from a select group of countries to skip the ordinary visa-application process. See §1187. To determine which countries are eligible for the Visa Waiver Program, the Government considers whether they can satisfy numerous criteria— e.g., using electronic, fraud-resistant passports, §1187(a)(3)(B), 24-hour reporting of lost or stolen passports, §1187(c)(2)(D), and not providing a safe haven for terrorists, §1187(a)(12)(D)(iii). The Secretary of Homeland Security, in consultation with the Secretary of State, also must determine that a country’s inclusion in the program will not compromise “the law enforcement and security interests of the United States.” §1187(c)(2)(C). Eligibility for the program is reassessed on an annual basis. See §1187(a)(12)(D)(iii), 1187(c)(12)(A). As a result of a recent review, for example, the Executive decided in 2016 to remove from the program dual nationals of Iraq, Syria, Iran, and Sudan. See Brief for Former National Security Officials as Amici Curiae 27. Put simply, Congress has already erected a statutory scheme that fulfills the putative national-security interests the Government now puts forth to justify the Proclamation. Tellingly, the Government remains wholly unable to articulate any credible national-security interest that would go unaddressed by the current statutory scheme absent the Proclamation. The Government also offers no evidence that this current vetting scheme, which involves a highly searching consideration of individuals required to obtain visas for entry into the United States and a highly searching consideration of which countries are eligible for inclusion in the Visa Waiver Program, is inadequate to achieve the Proclamation’s proclaimed objectives of “preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their [vetting and information-sharing] practices.” Ante, at 34. For many of these reasons, several former national-security officials from both political parties—including former Secretary of State Madeleine Albright, former State Department Legal Adviser John Bellinger III, former Central Intelligence Agency Director John Brennan, and former Director of National Intelligence James Clapper—have advised that the Proclamation and its predecessor orders “do not advance the national-security or foreign policy interests of the United States, and in fact do serious harm to those interests.” Brief for Former National Security Officials as Amici Curiae 15 (boldface deleted). Moreover, the Proclamation purports to mitigate national-security risks by excluding nationals of countries that provide insufficient information to vet their nationals. 82 Fed. Reg. 45164. Yet, as plaintiffs explain, the Proclamation broadly denies immigrant visas to all nationals of those countries, including those whose admission would likely not implicate these information deficiencies ( e.g., infants, or nationals of countries included in the Proclamation who are long-term residents of and traveling from a country not covered by the Proclamation). See Brief for Respondents 72. In addition, the Proclamation permits certain nationals from the countries named in the Proclamation to obtain nonimmigrant visas, which undermines the Government’s assertion that it does not already have the capacity and sufficient information to vet these individuals adequately. See 82 Fed. Reg. 45165–45169. Equally unavailing is the majority’s reliance on the Proclamation’s waiver program. Ante, at 37, and n. 7. As several amici thoroughly explain, there is reason to suspect that the Proclamation’s waiver program is nothing more than a sham. See Brief for Pars Equality Center et al. as Amici Curiae 11, 13–28 (explaining that “waivers under the Proclamation are vanishingly rare” and reporting numerous stories of deserving applicants denied waivers). The remote possibility of obtaining a waiver pursuant to an ad hoc, discretionary, and seemingly arbitrary process scarcely demonstrates that the Proclamation is rooted in a genuine concern for national security. See ante, at 3–8 (Breyer, J., dissenting) (outlining evidence suggesting “that the Government is not applying the Proclamation as written,” that “waivers are not being processed in an ordinary way,” and that consular and other officials “do not, in fact, have discretion to grant waivers”). In sum, none of the features of the Proclamation highlighted by the majority supports the Government’s claim that the Proclamation is genuinely and primarily rooted in a legitimate national-security interest. What the unrebutted evidence actually shows is that a reasonable observer would conclude, quite easily, that the primary purpose and function of the Proclamation is to disfavor Islam by banning Muslims from entering our country. III As the foregoing analysis makes clear, plaintiffs are likely to succeed on the merits of their Establishment Clause claim. To obtain a preliminary injunction, how- ever, plaintiffs must also show that they are “likely to suffer irreparable harm in the absence of preliminary relief,” that “the balance of equities tips in [their] favor,” and that “an injunction is in the public interest.” Winter v. Natural Resources Defense Council, Inc. , 555 U. S. 7, 20 (2008). Plaintiffs readily clear those remaining hurdles. First, plaintiffs have shown a likelihood of irreparable harm in the absence of an injunction. As the District Court found, plaintiffs have adduced substantial evidence showing that the Proclamation will result in “a multitude of harms that are not compensable with monetary dam- ages and that are irreparable—among them, prolonged separation from family members, constraints to recruiting and retaining students and faculty members to foster diversity and quality within the University community, and the diminished membership of the [Muslim] Association.” 265 F. Supp. 3d 1140, 1159 (Haw. 2017). Second, plaintiffs have demonstrated that the balance of the equities tips in their favor. Against plaintiffs’ concrete allegations of serious harm, the Government advances only nebulous national-security concerns. Although national security is unquestionably an issue of paramount public importance, it is not “a talisman” that the Government can use “to ward off inconvenient claims—a ‘label’ used to ‘cover a multitude of sins.’ ” Ziglar v. Abbasi , 582 U. S. ___, ___ (2017) (slip op., at 20). That is especially true here, because, as noted, the Government’s other statutory tools, including the existing rigorous individualized vetting process, already address the Proclamation’s purported national-security concerns. See supra, at 19–22. Finally, plaintiffs and their amici have convincingly established that “an injunction is in the public interest.” Winter , 555 U. S., at 20. As explained by the scores of amici who have filed briefs in support of plaintiffs, the Proclamation has deleterious effects on our higher education system;[ 8 ] national security;[ 9 ] healthcare;[ 10 ] artistic culture;[ 11 ] and the Nation’s technology industry and overall economy.[ 12 ] Accordingly, the Court of Appeals correctly affirmed, in part, the District Court’s preliminary injunction.[ 13 ] IV The First Amendment stands as a bulwark against official religious prejudice and embodies our Nation’s deep commitment to religious plurality and tolerance. That constitutional promise is why, “[f ]or centuries now, people have come to this country from every corner of the world to share in the blessing of religious freedom.” Town of Greece v. Galloway , 572 U. S., at ___ (Kagan, J., dissenting) (slip op., at 1). Instead of vindicating those principles, today’s decision tosses them aside. In holding that the First Amendment gives way to an executive policy that a reasonable observer would view as motivated by animus against Muslims, the majority opinion upends this Court’s precedent, repeats tragic mistakes of the past, and denies countless individuals the fundamental right of religious liberty. Just weeks ago, the Court rendered its decision in Masterpiece Cakeshop , 584 U. S. ___, which applied the bedrock principles of religious neutrality and tolerance in considering a First Amendment challenge to government action. See id., at ___ (slip op., at 17) (“The Constitution ‘commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures’ ” (quoting Lukumi , 508 U. S., at 547)); Masterpiece , 584 U. S., at ___ (Kagan, J., concurring) (slip op., at 1) (“[S]tate actors cannot show hostility to religious views; rather, they must give those views ‘neutral and respectful consideration’ ”). Those principles should apply equally here. In both instances, the question is whether a government actor exhibited tolerance and neutrality in reaching a decision that affects individuals’ fundamental religious freedom. But unlike in Masterpiece , where a state civil rights commission was found to have acted without “the neutrality that the Free Exercise Clause requires,” id., at ___ (slip op., at 17), the government actors in this case will not be held accountable for breaching the First Amendment’s guarantee of religious neutrality and tolerance. Unlike in Masterpiece , where the majority considered the state commissioners’ statements about religion to be persuasive evidence of unconstitutional government action, id., at ___–___ (slip op., at 12–14), the majority here completely sets aside the President’s charged statements about Muslims as irrelevant. That holding erodes the foundational principles of religious tolerance that the Court elsewhere has so emphatically protected, and it tells members of minority religions in our country “ ‘that they are outsiders, not full members of the political commu- nity.’ ” Santa Fe , 530 U. S., at 309. Today’s holding is all the more troubling given the stark parallels between the reasoning of this case and that of Korematsu v. United States , 323 U. S. 214 (1944) . See Brief for Japanese American Citizens League as Amicus Curiae . In Korematsu , the Court gave “a pass [to] an odious, gravely injurious racial classification” authorized by an executive order. Adarand Constructors, Inc. v. Peña , 515 U. S. 200, 275 (1995) (Ginsburg, J., dissenting). As here, the Government invoked an ill-defined national-security threat to justify an exclusionary policy of sweeping proportion. See Brief for Japanese American Citizens League as Amicus Curiae 12–14. As here, the exclusion order was rooted in dangerous stereotypes about, inter alia , a particular group’s supposed inability to assimilate and desire to harm the United States. See Korematsu , 323 U. S., at 236–240 (Murphy, J., dissenting). As here, the Government was unwilling to reveal its own intelligence agencies’ views of the alleged security concerns to the very citizens it purported to protect. Compare Korematsu v. United States , 584 F. Supp. 1406, 1418–1419 (ND Cal. 1984) (discussing information the Government knowingly omitted from report presented to the courts justifying the executive order); Brief for Japanese American Citizens League as Amicus Curiae 17–19, with IRAP II , 883 F. 3d, at 268; Brief for Karen Korematsu et al. as Amici Curiae 35–36, and n. 5 (noting that the Government “has gone to great lengths to shield [the Secretary of Homeland Security’s] report from view”). And as here, there was strong evidence that impermissible hostility and animus moti- vated the Government’s policy. Although a majority of the Court in Korematsu was willing to uphold the Government’s actions based on a barren invocation of national security, dissenting Justices warned of that decision’s harm to our constitutional fabric. Justice Murphy recognized that there is a need for great deference to the Executive Branch in the context of national security, but cautioned that “it is essential that there be definite limits to [the government’s] discretion,” as “[i]ndividuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support.” 323 U. S., at 234 (Murphy, J., dissenting). Justice Jackson lamented that the Court’s decision upholding the Government’s policy would prove to be “a far more subtle blow to liberty than the promulgation of the order itself,” for although the executive order was not likely to be long lasting, the Court’s willingness to tolerate it would endure. Id., at 245–246. In the intervening years since Korematsu , our Nation has done much to leave its sordid legacy behind. See, e.g., Civil Liberties Act of 1988, 50 U. S. C. App. §4211 et seq. (setting forth remedies to individuals affected by the executive order at issue in Korematsu ); Non-Detention Act of 1971, 18 U. S. C. §4001(a) (forbidding the imprisonment or detention by the United States of any citizen absent an Act of Congress). Today, the Court takes the important step of finally overruling Korematsu , denouncing it as “gravely wrong the day it was decided.” Ante, at 38 (citing Korematsu , 323 U. S., at 248 (Jackson, J., dissenting)). This formal repudiation of a shameful precedent is laud- able and long overdue. But it does not make the majority’s decision here acceptable or right. By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one “gravely wrong” decision with another. Ante, at 38. Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments. Because the Court’s decision today has failed in that respect, with profound regret, I dissent. Notes 1 According to the White House, President Trump’s statements on Twitter are “official statements.” App. 133. 2 The content of these videos is highly inflammatory, and their titles are arguably misleading. For instance, the person depicted in the video entitled “Muslim migrant beats up Dutch boy on crutches!” was reportedly not a “migrant,” and his religion is not publicly known. See Brief for Plaintiffs in International Refugee Assistance Project v. Trump as Amici Curiae 12, n. 4; P. Baker & E. Sullivan, Trump Shares Inflammatory Anti-Muslim Videos, and Britain’s Leader Condemns Them, N. Y. Times, Nov. 29, 2017 (“[A]ccording to local officials, both boys are Dutch”), https: // www.nytimes.com / 2017 / 11 / 29 / us / politics / trump-anti-muslim-videos-jayda-fransen.html (all Internet materials as last visited June 25, 2018). 3 The Government urges us to disregard the President’s campaign statements. Brief for Petitioners 66–67. But nothing in our precedent supports that blinkered approach. To the contrary, courts must con-sider “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history.” Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U. S. 520, 540 (1993) (opinion of Kennedy, J.). Moreover, President Trump and his advisers have repeatedly acknowledged that the Proclamation and its predecessors are an outgrowth of the President’s campaign statements. For example, just last November, the Deputy White House Press Secretary reminded the media that the Proclamation addresses “issues” the President has been talking about “for years,” including on “the campaign trail.” IRAP II , 883 F. 3d 233, 267 (CA4 2018). In any case, as the Fourth Circuit correctly recognized, even without relying on any of the President’s campaign statements, a reasonable observer would conclude that the Proclamation was enacted for the impermissible purpose of disfavoring Muslims. Id. , at 266, 268. 4 At oral argument, the Solicitor General asserted that President Trump “made crystal-clear on September 25 that he had no intention of imposing the Muslim ban” and “has praised Islam as one of the great countries [ sic ] of the world.” Tr. of Oral Arg. 81. Because the record contained no evidence of any such statement made on September 25th, however, the Solicitor General clarified after oral argument that he actually intended to refer to President Trump’s statement during a television interview on January 25, 2017. Letter from N. Francisco, Solicitor General, to S. Harris, Clerk of Court (May 1, 2018); Reply Brief 28, n. 8. During that interview, the President was asked whether EO–1 was “the Muslim ban,” and answered, “no it’s not the Muslim ban.” See Transcript: ABC News anchor David Muir interviews President Trump, ABC News, Jan. 25, 2017, http://abcnews.go.com/Politics/transcript-abc-news-anchor-david-muir-interviews-president / story ? id =45047602. But that lone assertion hardly qualifies as a disavowal of the President’s comments about Islam—some of which were spoken after January 25, 2017. Moreover, it strains credulity to say that President Trump’s January 25th statement makes “crystal-clear” that he never intended to impose a Muslim ban given that, until May 2017, the President’s website displayed the statement regarding his campaign promise to ban Muslims from entering the country. 5 Mandel and Din are readily distinguishable from this case for a number of reasons. First, Mandel and Din each involved a constitutional challenge to an Executive Branch decision to exclude a single foreign national under a specific statutory ground of inadmissibility. Mandel , 408 U. S., at 767; Din , 576 U. S., at ___ (slip op., at 1). Here, by contrast, President Trump is not exercising his discretionary authority to determine the admission or exclusion of a particular foreign national. He promulgated an executive order affecting millions of individuals on a categorical basis. Second, Mandel and Din did not purport to establish the framework for adjudicating cases (like this one) involving claims that the Executive Branch violated the Establishment Clause by acting pursuant to an unconstitutional purpose. Applying Mandel ’s narrow standard of review to such a claim would run contrary to this Court’s repeated admonition that “[f ]acial neutrality is not determinative” in the Establishment Clause context. Lukumi , 508 U. S., at 534. Likewise, the majority’s passing invocation of Fiallo v. Bell , 430 U. S. 787 (1977), is misplaced. Fiallo , unlike this case, addressed a constitutional challenge to a statute enacted by Congress, not an order of the President. Id., at 791. Fiallo ’s application of Mandel says little about whether Mandel ’s narrow standard of review applies to the unilateral executive proclamation promulgated under the circumstances of this case. Finally, even assuming that Mandel and Din apply here, they would not preclude us from looking behind the face of the Proclamation because plaintiffs have made “an affirmative showing of bad faith,” Din , 576 U. S., at ___ (slip op., at 5), by the President who, among other things, instructed his subordinates to find a “lega[l]” way to enact a Muslim ban, App. 125; see supra, at 4–10. 6 The majority chides as “problematic” the importation of Establishment Clause jurisprudence “in the national security and foreign affairs context.” Ante , at 32–33, n. 5. As the majority sees it, this Court’s Establishment Clause precedents do not apply to cases involving “immigration policies, diplomatic sanctions, and military actions.” Ante, at 32, n. 5. But just because the Court has not confronted the precise situation at hand does not render these cases (or the principles they announced) inapplicable. Moreover, the majority’s complaint regarding the lack of direct authority is a puzzling charge, given that the majority itself fails to cite any “authority for its proposition” that a more probing review is inappropriate in a case like this one, where United States citizens allege that the Executive has violated the Establishment Clause by issuing a sweeping executive order motivated by animus. Ante , at 33 n. 5; see supra, at 14, and n. 5. In any event, even if there is no prior case directly on point, it is clear from our precedent that “[w]hatever power the United States Constitution envisions for the Executive” in the context of national security and foreign affairs, “it most assuredly envisions a role for all three branches when individual liberties are at stake.” Hamdi v. Rumsfeld , 542 U. S. 507, 536 (2004) (plurality opinion). This Court’s Establishment Clause precedents require that, if a reasonable observer would understand an executive action to be driven by discriminatory animus, the action be invalidated. See McCreary , 545 U. S., at 860. That reasonable-observer inquiry includes consideration of the Government’s asserted justifications for its actions. The Government’s invocation of a national-security justification, however, does not mean that the Court should close its eyes to other relevant information. Deference is different from unquestioning acceptance. Thus, what is “far more problematic” in this case is the majority’s apparent willingness to throw the Establishment Clause out the window and forgo any meaningful constitutional review at the mere mention of a national-security concern. Ante, at 32, n. 5. 7 It is important to note, particularly given the nature of this case, that many consider “using the term ‘alien’ to refer to other human beings” to be “offensive and demeaning.” Flores v. United States Citizenship & Immigration Servs. , 718 F.3d 548, 551–552, n. 1 (CA6 2013). I use the term here only where necessary “to be consistent with the statutory language” that Congress has chosen and “to avoid any confusion in replacing a legal term of art with a more appropriate term.” Ibid. 8 See Brief for American Council on Education et al. as Amici Curiae ; Brief for Colleges and Universities as Amici Curiae ; Brief for New York University as Amicus Curiae . 9 See Brief for Retired Generals and Admirals of the U. S. Armed Forces as Amici Curiae ; Brief for Former National Security Officials as Amici Curiae . 10 See Brief for Association of American Medical Colleges as Amicus Curiae . 11 See Brief for Association of Art Museum Directors et al. as Amici Curiae . 12 See Brief for U. S. Companies as Amici Curiae ; Brief for Massachusetts Technology Leadership Council, Inc., as Amicus Curiae . 13 Because the majority concludes that plaintiffs have failed to show a likelihood of success on the merits, it takes no position on “the propriety of the nationwide scope of the injunction issued by the District Court.” Ante, at 39. The District Court did not abuse its discretion by granting nationwide relief. Given the nature of the Establishment Clause violation and the unique circumstances of this case, the imposition of a nationwide injunction was “ ‘necessary to provide complete relief to the plaintiffs.’ ” Madsen v. Women’s Health Center, Inc. , 512 U. S. 753, 765 (1994); see Califano v. Yamasaki , 442 U. S. 682, 702 (1979) (“[T]he scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class”).

The Supreme Court upheld President Trump's travel ban, which restricted entry for nationals from seven countries with predominantly Muslim populations. The Court ruled that the President had the authority to impose such restrictions under the Immigration and Nationality Act, and that the policy did not violate the Establishment Clause of the First Amendment, despite claims of discriminatory animus. The Court considered national security justifications and context, including previous administrations' actions, in its decision. The Court also addressed the use of the term "alien" and the scope of nationwide injunctions in such cases.

Immigration & National Security

Wilkinson v. Garland

https://supreme.justia.com/cases/federal/us/601/22-666/

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. SUPREME COURT OF THE UNITED STATES _________________ No. 22–666 _________________ Situ Kamu Wilkinson, PETITIONER v. Merrick B. Garland, Attorney General on writ of certiorari to the united states court of appeals for the third circuit [March 19, 2024] Justice Sotomayor delivered the opinion of the Court. To be eligible for cancellation of removal and adjustment to lawful permanent resident status, a noncitizen must meet four statutory criteria. The last requires a showing that the noncitizen’s removal would result in “exceptional and extremely unusual hardship” to a U. S.-citizen or permanent-resident family member. 8 U. S. C. §1229b(b)(1)(D). Petitioner Situ Kamu Wilkinson argues that his removal would cause exceptional and extremely unusual hardship to his U. S.-citizen son, who suffers from a serious medical condition and relies on Wilkinson for emotional and financial support. An Immigration Judge (IJ) held that this hardship did not rise to the level required by statute and the Board of Immigration Appeals (BIA) affirmed. The Third Circuit dismissed Wilkinson’s petition for review, holding that it lacked jurisdiction to review the IJ’s hardship determination. The question in this case is whether the IJ’s hardship determination is reviewable under §1252(a)(2)(D), which gives Courts of Appeals jurisdiction to review “questions of law.” This Court holds that it is. The application of a statutory legal standard (like the exceptional and extremely unusual hardship standard) to an established set of facts is a quintessential mixed question of law and fact. Guerrero-Lasprilla v. Barr held that such questions are reviewable under §1252(a)(2)(D). 589 U.S. 221, 225 (2020). Accordingly, this Court reverses. I A When an IJ finds a noncitizen removable for violating the immigration laws, Congress provides several avenues for discretionary relief. Relevant here, an IJ may “cancel removal” of a noncitizen who meets certain statutory criteria. Immigration and Nationality Act, 66Stat. 163, as added and amended, 8 U. S. C. §§1229b(a)–(b). Cancellation of removal permits a noncitizen to remain in the country lawfully. An IJ deciding a noncitizen’s request for cancellation of removal proceeds in two steps. First, the IJ must decide whether the noncitizen is eligible for cancellation under the relevant statutory criteria. Second, an IJ decides whether to exercise his discretion favorably and grant the noncitizen relief in the particular case.[ 1 ] A noncitizen bears the burden of proving that he both “satisfies the applicable eligibility requirements” and “merits a favorable exercise of discretion.” §1229a(c)(4)(A). Congress enumerated certain statutory criteria to govern the first step of an IJ’s cancellation-of-removal determination. For a noncitizen who never received lawful permanent residence ( i . e ., a green card), those criteria are stringent. He is eligible for cancellation of removal only if he meets four requirements: (1) he “has been physically present in the United States for a continuous period of not less than 10 years” before he applies; (2) he “has been a person of good moral character during such period”; (3) he has not been convicted of certain criminal offenses; and (4) he “establishes that removal would result in exceptional and extremely unusual hardship to [his] spouse, parent, or child,” who is a U. S. citizen or lawful permanent resident. §§1229b(b)(1)(A)–(D). After determining whether a noncitizen meets these criteria, an IJ proceeds to step two and decides whether to exercise discretion to cancel the order of removal in a particular case. B Wilkinson was born in Trinidad and Tobago. After police officers beat, robbed, and threatened to kill him in 2003, Wilkinson fled to the United States on a tourist visa. He has remained in this country ever since, beyond the expiration of his visa. In 2013, Wilkinson had a son, M., with his girlfriend Kenyatta Watson. Both M. and Watson are U. S. citizens. Wilkinson lived in Pennsylvania and worked to support M. and Watson. M. lived with Wilkinson and Watson for the first two years of his life. Then, because Wilkinson could not take care of his son and work at the same time, he and Watson decided M. would have a better quality of life in New Jersey with his mother and her mother. Wilkinson took the train to visit his son every weekend and provided almost half his monthly wages ($1,200 per month) in informal child support. M. suffers from severe asthma, which requires hospital treatment multiple times a year. Wilkinson helped M. with his inhaler and medications and knew his regimen well. Watson suffers from depression and does not work, so she also relies on Wilkinson’s financial and childcare support. Wilkinson worked as a handyman and a laborer in construction. In 2019, police found drugs in a house where he had been hired to work on repairs. Despite Wilkinson’s protests that neither the house nor the drugs were his, the police arrested him. When Wilkinson appeared in a Pennsylvania courthouse to contest the charges, he was arrested and detained by federal immigration officers. The criminal charges were ultimately withdrawn. M. was seven years old when Immigration and Customs Enforcement detained his father. Afterwards, M. began to exhibit behavioral issues. M. became sad, acted out, and broke things. M.’s teacher texted Watson every day saying that M. was no longer focused and needed to talk to a counselor. Wilkinson called his son every other day from immigration detention. When M. hung up the phone, he cried and said he wanted his father to come home. C Wilkinson conceded before the IJ that he was removable under §1227(a)(1)(B) for overstaying his tourist visa. He asked for relief from that removal, claiming eligibility for asylum, withholding of removal, and protection under the Convention Against Torture. Relevant here, he also applied for cancellation of removal based on hardship to his U. S.-citizen son, M. The U. S. Department of Homeland Security (DHS) stipulated that Wilkinson met the first three statutory criteria for eligibility (namely, continuous physical presence, good moral character, and lack of specific criminal bars) but contested the last: exceptional and extremely unusual hardship to M. Wilkinson, Watson, and M.’s grandmother all testified in support of Wilkinson’s applications for relief. In evaluating Wilkinson’s applications, the IJ found Wilkinson credible (despite DHS’s attempts to impeach him), and credited the testimonies of each witness in full. The IJ then turned to cancellation of removal and recited the standard for exceptional and extremely unusual hardship adopted by the BIA. To meet this standard, a noncitizen “must demonstrate that a qualifying relative would suffer hardship that is substantially different from or beyond that which would ordinarily be expected to result from their removal, but need not show that such hardship would be ‘unconscionable.’ ” App. to Pet. for Cert. 26a (quoting In re Monreal-Aguinaga , 23 I. & N. Dec. 56, 62 (BIA 2021)). In evaluating whether a noncitizen meets this standard, IJs must consider a range of factors, including the age and health of the qualifying family member. App. to Pet. for Cert. 26a–27a (citing In re Andaloza-Rivas , 23 I. & N. Dec. 319, 323–324 (BIA 2002); Monreal-Aguinaga , 23 I. & N. Dec., at 63). “[A]ll hardship factors should be considered in the aggregate to determine whether the qualifying relative will suffer hardship that rises to the level of ‘exceptional and extremely unusual.’ ” App. to Pet. for Cert. 27a (quoting Monreal-Aguinaga , 23 I. & N. Dec., at 64). The IJ then applied this standard to the established facts. He found that M.’s asthma was a serious medical condition and that Wilkinson provided emotional and financial care to his son. He found that M. had been struggling since Wilkinson’s detention. Nevertheless, the IJ held that M. did not meet the statutory standard for exceptional and extremely unusual hardship. The IJ reasoned that M. received medical insurance from the government and that he and his family might qualify for other public assistance if necessary. Although Wilkinson provided emotional support, the IJ noted that M. had lived without Wilkinson’s “daily presence” for most of M.’s life. App. to Pet. for Cert. 28a. The IJ recognized that M. and his mother would suffer some financial hardship from Wilkinson’s removal. Yet the IJ reasoned that Wilkinson had not provided evidence that he would be unable to work and support his family from Trinidad and Tobago. The IJ also noted that M.’s mother was able to work even though she had primarily been caring for M. He reasoned that M.’s grandmother, who had helped care for M. before, could continue to do so. Based on “the aggregate of the factors” that he “weighed,” the IJ found that any financial or emotional hardship was not “beyond that which would normally be expected from the removal of a parent and provider.” Id., at 29a (citing Monreal-Aguinaga , 23 I. & N. Dec., at 65). Ultimately, the IJ held that “the evidence of hardship” in the case did not rise to the level of “exceptional and extremely unusual hardship.” App. to Pet. for Cert. 29a. Because he held that Wilkinson was statutorily ineligible for cancellation of removal, the IJ did “not reach determining whether or not to exercise [his] discretion to grant the application for cancellation of removal.” Ibid . The IJ denied Wilkinson’s application. Wilkinson appealed the IJ’s decision to the BIA. The BIA affirmed without issuing an opinion. Wilkinson petitioned the Third Circuit for review, arguing that the court had jurisdiction to review the BIA’s hardship determination as a mixed question of law and fact. The Third Circuit held that because the hardship determination was “discretionary,” it lacked jurisdiction to review it. Id ., at 3a (citing §1252(a)(2)(B)(i); Patel v. Garland , 596 U.S. 328 (2022)). It therefore dismissed that part of Wilkinson’s petition. Wilkinson asked this Court to grant certiorari to resolve whether the IJ’s “determination that a given set of established facts does not rise to the statutory standard of ‘exceptional and extremely unusual hardship’ is a mixed question of law and fact reviewable under §1252(a)(2)(D) . . . or whether this determination is a discretionary judgment call unreviewable under §1252(a)(2)(B)(i).” Pet. for Cert. i. This Court granted certiorari. 600 U. S. ___ (2023). The Courts of Appeals are split on this question.[ 2 ] This Court now holds that the application of the exceptional and extremely unusual hardship standard to a given set of facts is reviewable as a question of law under §1252(a)(2)(D). II Section 1252(a)(2)(D) provides that a court of appeals may consider final orders of removal via petitions raising “constitutional claims or questions of law.” In Guerrero-Lasprilla , this Court held that “the statutory phrase ‘questions of law’ includes the application of a legal standard to undisputed or established facts,” also referred to as mixed questions of law and fact. 589 U. S., at 227. The statutory criterion of “exceptional and extremely unusual hardship” is a legal standard that an IJ must, at the first step, apply to a set of established facts. This Court therefore holds that it is a “questio[n] of law” over which §1252(a)(2)(D) provides judicial review. The hardship determination in this case was not discretionary. Because the IJ held that M.’s hardship did not satisfy the statutory eligibility criteria, he never reached the second step and exercised his unreviewable discretion to cancel or decline to cancel Wilkinson’s removal. The Third Circuit therefore erred in holding that it lacked jurisdiction to review the IJ’s determination in this case. A Section 1252 generally grants federal courts the power to review final orders of removal. §1252(a)(1). It then strips courts of jurisdiction for certain categories of removal order. §1252(a)(2). Finally, it restores jurisdiction to review “constitutional claims or questions of law.” §1252(a)(2)(D).[ 3 ] Relevant here, §1252(a)(2)(B)(i) strips courts of jurisdiction over “judgment[s] regarding the granting of [discretionary] relief under section . . . 1229b.” Section 1229b governs cancellation of removal. Section 1252(a)(2)(B)(i) therefore strips courts of jurisdiction over a “judgment” on cancellation of removal. The Third Circuit held that it had no jurisdiction over the part of Wilkinson’s petition related to the hardship determination on this basis. That holding ignores §1252(a)(2)(D), which restores jurisdiction to review “questions of law.” Two clear rules govern the interaction between §1252(a)(2)(B)(i) (which strips jurisdiction over judgments regarding discretionary relief ) and §1252(a)(2)(D) (which restores it for legal questions), laid out in two of this Court’s previous cases: Guerrero-Lasprilla and Patel . Guerrero-Lasprilla held that petitions raising mixed questions of law and fact are always reviewable as questions of law under §1252(a)(2)(D). 589 U. S., at 225. Patel held that questions of fact underlying denials of discretionary relief are unreviewable under both §1252(a)(2)(B)(i) and §1252(a)(2)(D). 596 U. S., at 343, 347. Those two rules resolve this case. In Guerrero-Lasprilla , §1252(a)(2)(C) stripped courts of jurisdiction over two noncitizens’ orders of removal via a different provision targeting certain criminal convictions. Those noncitizens had sought to reopen their immigration cases after being removed because a change in the law regarding their criminal convictions rendered them newly eligible for discretionary relief. Although the 90-day time limit to reopen their cases had expired, they argued that the limit should be “equitably tolled.” 589 U. S., at 225–226. The BIA denied their request, concluding that each had failed to demonstrate the requisite due diligence. When the noncitizens petitioned the Fifth Circuit for review of that decision, the court held that it lacked jurisdiction to decide the question. The Fifth Circuit reasoned that whether a noncitizen acted diligently in attempting to reopen removal proceedings for purposes of equitable tolling was a question of fact, not a “questio[n] of law” that would restore jurisdiction under §1252(a)(2)(D). This Court reversed. The Court held that “questions of law” in §1252(a)(2)(D) included mixed questions of law and fact. Guerrero-Lasprilla , 589 U. S., at 225. The “application of a legal standard to undisputed or established facts” is a mixed question. Ibid . Whether the BIA had correctly applied the equitable tolling due diligence standard to the facts was therefore a question of law reviewable by a court of appeals. In so doing, this Court rejected the Government’s primary argument that “questions of law” referred only to mixed questions that are primarily legal rather than primarily factual. Such an interpretation, the Court reasoned, would “forbid review of any [BIA] decision applying a properly stated legal standard, irrespective of how mistaken that application might be.” Id ., at 236. This Court also rejected the Government’s alternative argument that “questions of law” should be limited to “ ‘pure’ ” questions of law based on the statutory context, history, and relevant precedent. Id ., at 230–234. Finally, the Court rejected the Government’s argument that interpreting “questions of law” to cover all mixed questions would “undercut Congress’ efforts to severely limit and streamline judicial review.” Id ., at 235. Section 1252(a)(2)(D) had no effect on the unreviewability of factual determinations which, as the Court noted, are “an important category in the removal context.” Ibid. The issue of questions of fact came before this Court in Patel . There, the noncitizen checked a box in his application for a state driver’s license indicating that he was a U. S. citizen when he was not. 596 U. S., at 333. Because of that misrepresentation, he became statutorily inadmissible to adjust his status to permanent resident. Later, in removal proceedings, the noncitizen conceded he was removable but argued that he mistakenly checked the box and lacked the statutory mens rea . The IJ found him not credible, based partly on the fact that he had a strong incentive to deceive state officials about his citizenship status to obtain a state driver’s license. The noncitizen appealed, arguing that the basis for the credibility determination was clearly wrong: Under state law, he was entitled to a driver’s license without being a citizen. The BIA determined that the IJ’s factual findings were not clearly erroneous and dismissed the appeal. The Eleventh Circuit dismissed the petition for review, holding that it lacked jurisdiction under §1252(a)(2)(B)(i), which strips courts of jurisdiction to review “ ‘any judgment regarding the granting of relief ’ ” under the adjustment-of-status provision. Id ., at 335. The court concluded that both whether petitioner had testified credibly and whether he had subjectively intended to misrepresent himself as a citizen were factual determinations that fell within §1252(a)(2)(B)(i)’s jurisdictional bar. This Court affirmed. The Court held that these factual findings, which formed the basis for the denial of relief, fell within §1252(a)(2)(B)(i)’s jurisdiction-stripping provision. Further, §1252(a)(2)(D) did not restore jurisdiction, because “questions of fact” are indisputably not “questions of law.” Ibid. Relying on Guerrero-Lasprilla , the Court noted that questions of fact were the “major remaining category” for which Congress could still strip courts of jurisdiction. 596 U. S., at 339–340. B Wilkinson does not dispute that §1252(a)(2)(B)(i) generally strips courts of jurisdiction to review cancellation-of-removal decisions. He argues, instead, that §1252(a)(2)(D) restores jurisdiction in this case because the threshold question whether a noncitizen is statutorily eligible for cancellation of removal requires a court to assess whether an IJ correctly applied the statutory standard to a given set of facts. This Court agrees that the application of the statutory “exceptional and extremely unusual hardship” standard to a given set of facts presents a mixed question of law and fact. Guerrero-Lasprilla compels this conclusion. Guerrero-Lasprilla held that “the statutory term ‘questions of law’ ” in §1252(a)(2)(D) “includes the application of a legal standard to established facts.” 589 U. S., at 234. That term included the application of the due diligence standard for equitable tolling to a given set of facts. Similarly, the “exceptional and extremely unusual hardship” standard in §1229b(b)(1)(D) is a legal standard that an IJ applies to facts. The standard may require an IJ to closely examine and weigh a set of established facts, but it is not a factual inquiry. It is, inescapably, a mixed question of law and fact. Mixed questions “are not all alike.” U. S. Bank N. A. v. Village at Lakeridge, LLC , 583 U.S. 387, 395–396 (2018). A mixed question may require “primarily legal or factual work.” Id ., at 396. It may “require courts to expound on the law . . . by amplifying or elaborating on a broad legal standard.” Ibid. Or it may “immerse courts in case-specific factual issues—compelling them to marshal and weigh evidence.” Ibid. That a mixed question requires a court to immerse itself in facts does not transform the question into one of fact. It simply suggests a more deferential standard of review. As interpreted by the BIA, the application of the “exceptional and extremely unusual hardship” standard requires an IJ to evaluate a number of factors in determining whether any hardship to a U. S.-citizen or permanent-resident family member is “substantially different from, or beyond, that which would normally be expected from the deportation” of a “close family membe[r ].” Monreal-Aguinaga , 23 I. & N. Dec., at 65. That application concededly requires a close examination of the facts. Yet that was also true of the due diligence standard in Guerrero-Lasprilla , which required a court to evaluate whether a noncitizen was adequately conscientious in his pursuit of a filing deadline. A mixed question that requires close engagement with the facts is still a mixed question, and it is therefore a “questio[n] of law” that is reviewable under §1252(a)(2)(D). Under Patel , of course, a court is still without jurisdiction to review a factual question raised in an application for discretionary relief. As in Patel , that would include the IJ’s underlying factual determination that Wilkinson was credible, or the finding that M. had a serious medical condition. When an IJ weighs those found facts and applies the “exceptional and extremely unusual hardship” standard, however, the result is a mixed question of law and fact that is reviewable under §1252(a)(2)(D). C The Government’s counterarguments largely seek to re-litigate Guerrero-Lasprilla . This Court is unpersuaded. First, the Government argues that the statutory standard is not a legal standard at all. It asks this Court to limit Guerrero-Lasprilla solely to judicially created standards like the “due diligence” standard for equitable tolling. Nothing in Guerrero-Lasprilla or this Court’s other precedents supports such a distinction. This Court has frequently observed that the application of a “statutory standard” presents a mixed question of law and fact. See, e . g ., Pullman-Standard v. Swint , 456 U.S. 273 , 289, n. 19 (1982) (defining a mixed question as asking whether “the historical facts . . . satisfy the statutory standard”); Ornelas v. United States , 517 U.S. 690 , 696–697 (1996) (same); U. S. Bank , 583 U. S., at 394 (same). Guerrero-Lasprilla itself reflected this understanding. See 589 U. S., at 232 (reasoning that §1252(a)(2)(D) was intended to preserve the kind of review traditionally available in a habeas proceeding, including review of the “erroneous application or interpretation of statutes” (emphasis deleted; internal quotation marks omitted)). This Court sees no reason to treat the statutory hardship standard here any differently from a judicially created “due diligence” standard. Second, the Government argues that a 1928 case, Williamsport Wire Rope Co. v. United States , 277 U.S. 551 , and the statutory history of the hardship requirement preclude review. In Williamsport , the Court evaluated a wartime tax-relief provision that was in effect from 1919 to 1921. That provision allowed the Internal Revenue Service Commissioner to use a “ ‘special method’ ” for determining a company’s tax burden if computation under the regular scheme would work “ ‘an exceptional hardship.’ ” Id ., at 558. The statute granted the Commissioner power to act, for the most part, without any justification. The Commissioner did not have to make findings of fact, and had to create a “meagre record” only if he ordered a special assessment. Id ., at 559. This Court therefore concluded that the IRS’s “exceptional hardship” determination was a question of administrative discretion not subject to judicial review. Ibid. Williamsport has no relevance to the question presented here. The Government provides no basis for why this Court should port the interpretation of “exceptional hardship” from a 1919 tax-relief provision to a 1996 immigration-relief provision. An IJ applying the “exceptional and extremely unusual hardship” standard must create an extensive record of his decisionmaking, including detailed fact-finding and the application of BIA precedent. Additionally, Williamsport did not evaluate the term “exceptional hardship” against the background of a jurisdiction-restoring provision like §1252(a)(2)(D), enacted in 2005. The Government’s argument from the statutory history of the “hardship requirement” is no more persuasive. Brief for Respondent 26. The precursor to cancellation of removal was suspension of deportation. That relief was available only to a “person whose deportation would, in the opinion of the Attorney General , result in exceptional and extremely unusual hardship” to the noncitizen himself or a qualifying relative. §§244(a)(1)–(5), 66Stat. 214–216 (emphasis added). The Government argues that this Court should read that discretion back into the current version of the statute. The Government’s request to reinstate statutory language removed by Congress is particularly unavailing because Congress chose to retain similar language in provisions governing other forms of discretionary relief subject to §1252(a)(2)(B)’s bar on judicial review. See, e . g ., §1182(h)(1)(B) (allowing relief “if it is established to the satisfaction of the Attorney General that the [noncitizen’s] denial of admission would result in extreme hardship to the United States citizen”); §1182(i)(1) (allowing relief “if it is established to the satisfaction of the Attorney General that the refusal of admission . . . of such [noncitizen] would result in extreme hardship to the citizen . . . spouse or parent”); §1255( l )(1) (allowing relief if “in the opinion of the Secretary of [DHS], in consultation with the Attorney General, as appropriate . . . the [noncitizen] would suffer extreme hardship involving unusual and severe harm upon removal”). Congress could have, but did not, do the same with the hardship requirement in §1229b(b)(1). The Government’s final argument is one this Court already rejected in Guerrero-Lasprilla : that a primarily factual mixed question is a question of fact. Such a rule would require a court of appeals evaluating its jurisdiction to determine in every instance whether a particular legal standard presented a primarily factual or primarily legal inquiry. Nothing in §1252(a)(2)(D) or its statutory context suggests that “questions of law” is so limited. See 589 U. S., at 227–228. This Court declined to require the courts of appeals to engage in that complex line-drawing exercise in Guerrero-Lasprilla , and it declines to do so here. *  *  * Today’s decision announces nothing more remarkable than the fact that this Court meant what it said in Guerrero-Lasprilla : Mixed questions of law and fact, even when they are primarily factual, fall within the statutory definition of “questions of law” in §1252(a)(2)(D) and are therefore reviewable. That holding does not render §1252(a)(2)’s jurisdiction-stripping provisions meaningless. As this Court said in Guerrero-Lasprilla and reiterated in Patel , those provisions still operate to exclude “agency fact-finding from review.” Guerrero-Lasprilla , 589 U. S., at 234–235; Patel , 596 U. S., at 339 (“[J]udicial review of factfinding is unavailable”). The facts underlying any determination on cancellation of removal therefore remain unreviewable. For instance, an IJ’s factfinding on credibility, the seriousness of a family member’s medical condition, or the level of financial support a noncitizen currently provides remain unreviewable. Only the question whether those established facts satisfy the statutory eligibility standard is subject to judicial review.[ 4 ] Because this mixed question is primarily factual, that review is deferential. For these reasons, the Court reverses the Third Circuit’s “jurisdictional” decision, vacates its judgment, and remands the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 This second step is not perfunctory. Congress has imposed a statutory cap of 4,000 noncitizens each fiscal year who can have discretion exercised in their favor. 8 U. S. C. §1229b(e). 2 Three Circuits have held that courts of appeals have jurisdiction over hardship determinations because they are mixed questions of law and fact. See Arreola-Ochoa v. Garland , 34 F. 4th 603, 610 (CA7 2022); Singh v. Rosen , 984 F.3d 1142, 1150 (CA6 2021); Gonzalez Galvan v. Garland , 6 F. 4th 552, 555 (CA4 2021). Six Circuits have indicated that courts of appeals have no jurisdiction over the BIA’s hardship determinations. See Gonzalez-Rivas v. Garland , 53 F. 4th 1129, 1132 (CA8 2022); Flores-Alonso v. United States Atty. Gen. , 36 F. 4th 1095, 1100 (CA11 2022) ( per curiam ); Castillo-Gutierrez v. Garland , 43 F. 4th 477, 481 (CA5 2022) ( per curiam ); Aguilar-Osorio v. Garland , 991 F.3d 997, 999 (CA9 2021) ( per curiam ); Hernandez-Morales v. Attorney Gen. U. S. , 977 F.3d 247, 249 (CA3 2020); Galeano-Romero v. Barr , 968 F.3d 1176, 1183–1184 (CA10 2020). 3 This scheme is the result of this Court’s decision in INS v. St. Cyr , 533 U.S. 289 (2001), which construed earlier versions of the jurisdiction-stripping provisions as permitting review in habeas corpus proceedings “to avoid the serious constitutional questions that would be raised by a contrary interpretation.” Guerrero-Lasprilla v. Barr , 589 U.S. 221, 232 (2020) (citing St. Cyr , 533 U. S., at 299–305). Congress enacted §1252(a)(2)(D) to ensure the constitutionality of its jurisdiction-stripping provisions. See 589 U. S., at 232–234. 4 Similarly, if the IJ decides a noncitizen is eligible for cancellation of removal at step one, his step-two discretionary determination on whether or not to grant cancellation of removal in the particular case is not reviewable as a question of law. SUPREME COURT OF THE UNITED STATES _________________ No. 22–666 _________________ Situ Kamu Wilkinson, PETITIONER v. Merrick B. Garland, Attorney General on writ of certiorari to the united states court of appeals for the third circuit [March 19, 2024] Justice Jackson, concurring in the judgment. The Immigration and Nationality Act plainly constrains judicial review of discretionary-relief determinations. It first strips courts of jurisdiction to review “any judgment regarding the granting of relief ” under provisions including 8 U. S. C. §1229b, which governs cancellation of removal. See §1252(a)(2)(B)(i). Then, the Act restores judicial review for only a subset of claims—“constitutional claims or questions of law” raised in a petition for review in the courts of appeals. §1252(a)(2)(D). Through these provisions, Congress made clear that courts should play a minimal role in the discretionary-relief process. In Guerrero-Lasprilla v. Barr , 589 U.S. 221 (2020), the Court interpreted the phrase “questions of law” in §1252(a)(2)(D) to include mixed questions of law and fact, i . e ., “the application of a legal standard to undisputed or established facts.” Id ., at 225. Today, the Court removes any doubt that the phrase “questions of law” encompasses all mixed questions, even those that are “primarily factual.” Ante, at 15. Thus, an immigration judge’s determination that a “noncitizen’s removal would result in ‘exceptional and extremely unusual hardship’ ” presents a judicially reviewable mixed question. Ante, at 1 (quoting §1229b(b)(1)(D)). Pointing to our precedent, the Court holds that “ Guerrero-Lasprilla compels this conclusion.” Ante , at 11. I am skeptical that Congress intended “questions of law” as used in §1252(a)(2)(D) to sweep so broadly, given the statutory scheme. The legislative history of the provision, though not conclusive, provides additional evidence to the contrary. See H. R. Conf. Rep. No. 109–72, p. 175 (2005) (noting that “[t]he purpose” of the provision was “to permit judicial review over . . . constitutional and statutory-construction questions , not discretionary or factual questions” (emphasis added)). As the dissent observes, under a maximalist reading of “questions of law,” the exception to limited judicial review is poised to swallow the rule. See post , at 2–4 (opinion of Alito, J.). If that reading is correct, Congress went through an awful lot to achieve relatively little. I had not yet joined the Court when it decided Guerrero-Lasprilla . But I agree that Guerrero-Lasprilla controls this case. The fundamental principle of stare decisis —“that today’s Court should stand by yesterday’s decisions”—has “enhanced force” when a decision interprets a statute. Kimble v. Marvel Entertainment, LLC , 576 U.S. 446 , 455–456 (2015). Congress remains free to revise the statute, and it should do so if we have strayed from its intent concerning the scope of judicial review set forth in §1252(a)(2)(D). I concur in today’s judgment with the understanding that the jurisdiction-stripping provision is not “meaningless.” Ante, at 15. When reviewing denials of discretionary relief, courts should respect the choice of Congress, reflecting the will of the People, to limit judicial interference. Courts cannot review the facts underlying a hardship determination in the cancellation-of-removal context, and they should carefully distinguish between application of the “exceptional and extremely unusual hardship” legal standard, such as it is, and those unreviewable facts. SUPREME COURT OF THE UNITED STATES _________________ No. 22–666 _________________ Situ Kamu Wilkinson, PETITIONER v. Merrick B. Garland, Attorney General on writ of certiorari to the united states court of appeals for the third circuit [March 19, 2024] Chief Justice Roberts, dissenting. I joined the opinion of the Court in Guerrero-Lasprilla v. Barr , 589 U.S. 221 (2020), and continue to believe that it was correctly decided. I agree with Justice Alito’s dissent in this case, however, that the Court errs in reading the language in Guerrero-Lasprilla “as broadly as possible,” indeed “to the outer limits of its possible reach.” Post , at 6, 5. Nothing in Guerrero-Lasprilla requires such a reading, and I accordingly join Justice Alito’s dissent. SUPREME COURT OF THE UNITED STATES _________________ No. 22–666 _________________ Situ Kamu Wilkinson, PETITIONER v. Merrick B. Garland, Attorney General on writ of certiorari to the united states court of appeals for the third circuit [March 19, 2024] Justice Alito, with whom The Chief Justice and Justice Thomas join, dissenting. In the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 110Stat. 3009–546, Congress sought to control illegal immigration and streamline the procedures for removing illegal aliens who had been convicted of criminal offenses. A key provision of the Act is 8 U. S. C. §1252(a)(2)(B)(i), which provides that “no court shall have jurisdiction to review . . . any judgment regarding the granting” of certain forms of discretionary relief. After IIRIRA’s enactment, this Court flagged a “substantial constitutional questio[n]” that would arise if federal habeas courts were stripped of jurisdiction to review “pure question[s] of law.” INS v. St. Cyr , 533 U.S. 289 , 300 (2001). Congress responded by enacting an amendment clarifying that §1252(a)(2)(B) did not “preclud[e] review of constitutional claims or questions of law.” §1252(a)(2)(D). I In Guerrero-Lasprilla v. Barr , 589 U.S. 221 (2020), this Court addressed the meaning of this amendment. The case concerned two criminal aliens who were ordered removed and then failed to ask to have their removal proceedings reopened by the 90-day statutory deadline. They argued, however, that the deadline should be equitably tolled. The Board of Immigration Appeals (BIA) rejected that argument, and the issue before us was whether the Court of Appeals had jurisdiction to review such a decision under §1252(a)(2)(B) and §1252(a)(2)(D). The answer to that question depended on whether the correctness of the BIA’s decisions was a “questio[n] of law” within the meaning of §1252(a)(2)(D). The aliens urged us to decide the case on “narrow grounds.” Brief for Petitioners in Guerrero-Lasprilla v. Barr , O. T. 2019, No. 18–776 etc., p. 15. They did not dispute the relevant facts, see 589 U. S., at 226, but argued that the BIA had applied the wrong legal test in holding that they had not acted with sufficient diligence to justify equitable tolling—specifically, that the BIA had demanded a demonstration of “ ‘maximum feasible diligence’ ” rather than “ ‘reasonable diligence,’ ” which they claimed was the right test. Brief for Petitioners in Guerrero-Lasprilla , at 15. The Court ruled for the aliens and in doing so stated broadly that “questions of law” include all questions that involve the application of the law to a particular set of facts. 589 U. S., at 228. Under this statement, the phrase “questions of law” has a stunning sweep. It encompasses all sorts of discretionary rulings that depend almost entirely on the relevant facts, as a few examples of mundane trial court rulings illustrate. For one, take a trial court’s denial of a request for a continuance or a decision about the length of a trial day or the days of the week during which a jury is required to sit. See Morris v. Slappy , 461 U.S. 1 , 11 (1983). Such decisions are governed by a legal standard, albeit a very permissive one: the decisions cannot be “unreasoning and arbitrary.” Ibid. But in the rare case in which such a decision is reversed on appeal, the appellate court is unlikely to say that the trial court made an error of law because it mistakenly thought a continuance would be unreasonable and arbitrary. Instead, the question on appeal would almost certainly be based on an assessment of the facts. Here is another example. Under the broad language of Guerrero-Lasprilla , juries decide questions of law whenever they return a verdict in a criminal or civil case. If, for example, a jury in a criminal case finds that a defendant violated a statute that requires “knowing” conduct, the jury decides a question of law because it applies the law (as set out in the court’s instructions on the meaning of “knowing” conduct, see, e.g ., 2B K. O’Malley, J. Grenig, & W. Lee, Federal Jury Practice and Instructions, Criminal §70:07 (6th ed. 2010), to the facts as they see them. Likewise, in a routine negligence case, the jury applies the law (as explained in the court’s instructions on the meaning of “negligence,” see, e.g ., 3A id ., Civil §155:30 (2012), to the facts shown at trial. When Congress responded to St. Cyr by enacting §1252(a)(2)(D), did it mean to adopt this maximalist understanding of “questions of law”? St. Cyr never suggested that Congress was obligated to go that far, and if Congress had wanted to achieve the end that results from the Court’s broad statements in Guerrero-Lasprilla , Congress might as well have repealed §1252(a)(2)(B) outright. Under the Guerrero-Lasprilla formulation, the net effect of §1252(a)(2)(B) and §1252(a)(2)(D) is as follows. Before the enactment of those provisions, pure findings of fact were subject to review, but under a very deferential standard—namely, they could be overturned only if “ ‘any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Nasrallah v. Barr , 590 U.S. 573, 584 (2020). Afterwards, pure findings of fact were not reviewable at all. Is it plausible that this pipsqueak of a change was Congress’s cure for what it saw as undue delay in the conclusion of removal proceedings for criminal aliens? I hardly think so. II I dissented in Guerrero-Lasprilla because I feared that the Court’s sweeping language would lead to “absurd results in light of the statute’s structure” and would “transform §1252(a)(2)(D)’s narrow exception into a broad provision permitting judicial review of all criminal aliens’ challenges to their removal proceedings except the precious few that raise only pure questions of fact.” 589 U. S., at 238, 240 (Thomas, J., joined by Alito, J., dissenting). Under this reading, “the exception” for “questions of law” “all but swallows the rule.” Id ., at 241. We are permitted to exercise at least a modicum of “ ‘common sense’ ” when we interpret a statute, see West Virginia v. EPA , 597 U.S. 697, 722 (2022), and Guerrero-Lasprilla’ s broad language defies common sense. If the Congress that enacted §1252(a)(2)(D) had wanted to bring about the result that the broad statements in Guerrero-Lasprilla suggest, it could have simply repealed §1252(a)(2)(B) and stated in §1252(a)(2)(D) that courts cannot review pure questions of fact. Qualifying the broad prohibition in §1252(a)(2)(D) by adding an exception that all but eliminates the prohibition would have been a very odd way of achieving that result. What the Court says that Congress did—combining the broad prohibition in §1252(a)(2)(B) with the nearly congruent exception in §1252(a)(2)(D)—would be the equivalent of a city council adopting an ordinance banning all dogs from a park with an exception for all dogs that weigh under 125 pounds. Or the council passes an ordinance prohibiting all persons from riding a bicycle without a helmet but then adopts an exception for all persons under the age of 90. When Congress enacted §1252(a)(2)(D), it was not engaging in such silliness. III Accepting of the judgment in Guerrero-Lasprilla— that the BIA’s understanding of the scope of equitable estoppel is a question of law—does not require that we take the language in the Court’s opinion to the outer limits of its possible reach. But that is what the Court has now done. As Justice Breyer, the author of the opinion in Guerrero-Lasprilla , recognized in an earlier opinion for the Court, the concept of a question of law does not always encompass all applications of the law to a set of facts. In Merck Sharp & Dohme Corp. v. Albrecht , 587 U.S. 299 (2019), the decision hung on the question whether the Food and Drug Administration would have approved a change in a drug’s label. The Court recognized that this question contained both legal and factual elements, but the Court did not hold that the question was one of law simply because it involved the application of law to a set of facts. Id ., at 316–318. Rather, the Court considered which element was most likely to be contested and asked whether the answer to the question whether the FDA would have approved the change would generally turn on a judgment about the law or the facts. Ibid . If that same mode of analysis is applied here, the answer is clear—and it is the opposite of the one given by the Court. Whether “removal would result in exceptional and extremely unusual hardship” to the “spouse, parent, or child” of the alien subject to removal is overwhelmingly a question of fact. §1229b(b)(1)(D). The only legal component consists of the meaning of the everyday terms “hardship,” “exceptional,” and “unusual.” The facts of this case illustrate the degree to which the factual element involved in the question at hand overwhelms the slim legal component. Below, petitioner argued that the Immigration Judge misunderstood “the depth of the emotional relationship between Petitioner and his Child,” the amount of “care and support that Petitioner’s Child would receive if Petitioner is removed,” and “the Child’s uncommon and difficult situation, in light of his family’s unwillingness to provide him access to care for his mental health needs.” Brief for Petitioner in No. 21–3166 (CA3), pp. 16–17. All those issues are entirely factual, and there is no legal principle that can help an immigration judge, the BIA, or a court assess whether any “hardship” resulting from petitioner’s removal would be “exceptional and extremely unusual.” That question must be decided by the application of what the decision-maker knows from experience about human nature and family relationships. Consequently, the question should not be classified as a “question of law” under §1252(a)(2)(D). The Court, however, reads Guerrero-Lasprilla as broadly as possible. As it sees things, all “[m]ixed questions” are “questions of law,” even if they are “primarily factual.” Ante , at 15. And since the question here is overwhelmingly factual, what the Court seems to mean by “primarily” is anything that falls short of 100%. That is not what Congress meant when it enacted §1252(a)(2)(B) and §1252(a)(2)(D), and I therefore respectfully dissent.

The Supreme Court ruled that a Court of Appeals has the authority to review an Immigration Judge's decision on whether a noncitizen's removal would cause exceptional and extremely unusual hardship to their US-citizen family member, deeming it a mixed question of law and fact and thus reviewable under §1252(a)(2)(D). However, Justice Alito dissented, arguing that the question is overwhelmingly factual and shouldn't be classified as a "question of law."

Lawsuits & Legal Procedures

Conley v. Gibson

https://supreme.justia.com/cases/federal/us/355/41/

U.S. Supreme Court Conley v. Gibson, 355 U.S. 41 (1957) Conley v. Gibson No. 7 Argued October 21, 1957 Decided November 18, 1957 355 U.S. 41 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Syllabus Petitioners, who are Negro members of a union designated as their bargaining agent under the Railway Labor Act, brought a class suit against the union, its brotherhood and certain of their officers to compel them to represent petitioners without discrimination in protection of their employment and seniority rights under a contract between the union and the Railroad. They alleged that the Railroad had purported to abolish 45 jobs held by petitioners and other Negroes, but had employed whites in the same jobs (except in a few instances in which it had rehired Negroes to fill their old jobs with loss of seniority) and that, despite repeated pleas, the union had done nothing to protect petitioners from such discriminatory discharges. The District Court dismissed the suit on the ground that the National Railroad Adjustment Board had exclusive jurisdiction over the controversy. The Court of Appeals affirmed. Held: 1. It was error to dismiss the complaint for want of jurisdiction. Section 3 First (i) of the Railway Labor Act confers upon the Adjustment Board exclusive jurisdiction only over "disputes between an employee or group of employees and a carrier or carriers," whereas this is a suit by employees against their bargaining agent to enforce their statutory right not to be discriminated against by it in bargaining. Pp. 355 U. S. 44 -45. 2. The Railroad was not an indispensable party to this suit, and failure to join it was not a ground for dismissing the suit. P. 355 U. S. 45 . 3. The complaint adequately set forth a claim upon which relief could be granted. Pp. 355 U. S. 45 -48. (a) The fact that, under the Railway Labor Act, aggrieved employees can file their own grievances with the Adjustment Board or sue the employer for breach of contract is no justification for the union's alleged discrimination in refusing to represent petitioners. P. 355 U. S. 47 . (b) Failure of the complaint to set forth specific facts to support its general allegations of discrimination was not a sufficient Page 355 U. S. 42 ground for dismissal of the suit, since the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. Pp. 355 U. S. 47 -48. 229 F.2d 436, reversed. MR. JUSTICE BLACK delivered the opinion of the Court. Once again, Negro employees are here under the Railway Labor Act [ Footnote 1 ] asking that their collective bargaining agent be compelled to represent them fairly. In a series of cases beginning with Steele v. Louisville & Nashville R. Co., 323 U. S. 192 , this Court has emphatically and repeatedly ruled that an exclusive bargaining agent under the Railway Labor Act is obligated to represent all employees in the bargaining unit fairly and without discrimination because of race, and has held that the courts have power to protect employees against such invidious discrimination. [ Footnote 2 ] This class suit was brought in a Federal District Court in Texas by certain Negro members of the Brotherhood of Railway and Steamship Clerks, petitioners here, on behalf of themselves and other Negro employees similarly situated against the Brotherhood, its Local Union No. 28 and certain officers of both. In summary, the complaint Page 355 U. S. 43 made the following allegations relevant to our decision: Petitioners were employees of the Texas and New Orleans Railroad at its Houston Freight House. Local 28 of the Brotherhood was the designated bargaining agents under the Railway Labor Act for the bargaining unit to which petitioners belonged. A contract existed between the Union and the Railroad which gave the employees in the bargaining unit certain protection from discharge and loss of seniority. In May, 1954, the Railroad purported to abolish 45 jobs held by petitioners or other Negroes, all of whom were either discharged or demoted. In truth, the 45 jobs were not abolished at all, but instead filled by whites as the Negroes were ousted, except for a few instances where Negroes were rehired to fill their old jobs, but with loss of seniority. Despite repeated pleas by petitioners, the Union, acting according to plan, did nothing to protect them against these discriminatory discharges and refused to give them protection comparable to that given white employees. The complaint then went on to allege that the Union had failed in general to represent Negro employees equally and in good faith. It charged that such discrimination constituted a violation of petitioners' right under the Railway Labor Act to fair representation from their bargaining agent. And it concluded by asking for relief in the nature of declaratory judgment, injunction and damages. The respondents appeared and moved to dismiss the complaint on several grounds: (1) the National Railroad Adjustment Board had exclusive jurisdiction over the controversy; (2) the Texas and New Orleans Railroad, which had not been joined, was an indispensable party defendant; and (3) the complaint failed to state a claim upon which relief could be given. The District Court granted the motion to dismiss holding that Congress had given the Adjustment Board exclusive jurisdiction over Page 355 U. S. 44 the controversy. The Court of Appeals for the Fifth Circuit, apparently relying on the same ground, affirmed. 229 F.2d 436. Since the case raised an important question concerning the protection of employee rights under the Railway Labor Act we granted certiorari. 352 U.S. 818. We hold that it was error for the courts below to dismiss the complaint for lack of jurisdiction. They took the position that § 3 First (i) of the Railway Labor Act conferred exclusive jurisdiction on the Adjustment Board because the case, in their view, involved the interpretation and application of the collective bargaining agreement. But § 3 First (i), by its own terms, applies only to "disputes between an employee or group of employees and a carrier or carriers." [ Footnote 3 ] This case involves no dispute between employee and employer, but, to the contrary, is a suit by employees against the bargaining agent to enforce their statutory right not to be unfairly discriminated against by it in bargaining. [ Footnote 4 ] The Adjustment Board has no Page 355 U. S. 45 power under § 3 First (i) or any other provision of the Act to protect them from such discrimination. Furthermore, the contract between the Brotherhood and the Railroad will be, at most, only incidentally involved in resolving this controversy between petitioners and their bargaining agent. Although the District Court did not pass on the other reasons advanced for dismissal of the complaint, we think it timely and proper for us to consider them here. They have been briefed and argued by both parties, and the respondents urge that the decision below be upheld, if necessary, on these other grounds. As in the courts below, respondents contend that the Texas and New Orleans Railroad Company is an indispensable party which the petitioners have failed to join as a defendant. On the basis of the allegations made in the complaint and the relief demanded by petitioners, we believe that contention is unjustifiable. We cannot see how the Railroad's rights or interests will be affected by this action to enforce the duty of the bargaining representative to represent petitioners fairly. This is not a suit, directly or indirectly, against the Railroad. No relief is asked from it, and there is no prospect that any will or can be granted which will bind it. If an issue does develop which necessitates joining the Railroad, either it or the respondents will then have an adequate opportunity to request joinder. Turning to respondents' final ground, we hold that, under the general principles laid down in the Steele, Graham, and Howard, cases the complaint adequately set forth a claim upon which relief could be granted. In appraising the sufficiency of the complaint, we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts Page 355 U. S. 46 in support of his claim which would entitle him to relief. [ Footnote 5 ] Here, the complaint alleged, in part, that petitioners were discharged wrongfully by the Railroad and that the Union, acting according to plan, refused to protect their jobs as it did those of white employees or to help them with their grievances all because they were Negroes. If these allegations are proven, there has been a manifest breach of the Union's statutory duty to represent fairly and without hostile discrimination all of the employees in the bargaining unit. This Court squarely held in Steele and subsequent cases that discrimination in representation because of race is prohibited by the Railway Labor Act. The bargaining representative's duty not to draw "irrelevant and invidious" [ Footnote 6 ] distinctions among those it represents does not come to an abrupt end, as the respondents seem to contend, with the making of an agreement between union and employer. Collective bargaining is a continuing process. Among other things, it involves day-to-day adjustments in the contract and other working rules, resolution of new problems not covered by existing agreements, and the protection of employee rights already secured by contract. The bargaining representative can no more unfairly discriminate in carrying out these functions than it can in negotiating a collective agreement. [ Footnote 7 ] A contract may be fair and impartial on its face, yet administered in such a way, with the active or tacit consent of the union, as to be flagrantly discriminatory against some members of the bargaining unit. Page 355 U. S. 47 The respondents point to the fact that under the Railway Labor Act aggrieved employees can file their own grievances with the Adjustment Board or sue the employer for breach of contract. Granting this, it still furnishes no sanction for the Union's alleged discrimination in refusing to represent petitioners. The Railway Labor Act, in an attempt to aid collective action by employees, conferred great power and protection on the bargaining agent chosen by a majority of them. As individuals or small groups, the employees cannot begin to possess the bargaining power of their representative in negotiating with the employer or in presenting their grievances to him. Nor may a minority choose another agent to bargain in their behalf. We need not pass on the Union's claim that it was not obliged to handle any grievances at all, because we are clear that, once to undertook to bargain or present grievances for some of the employees it represented, it could not refuse to take similar action in good faith for other employees just because they were Negroes. The respondents also argue that the complaint failed to set forth specific facts to support its general allegations of discrimination, and that its dismissal is therefore proper. The decisive answer to this is that the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is "a short and plain statement of the claim" [ Footnote 8 ] that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. The illustrative forms appended to the Rules plainly demonstrate this. Such simplified "notice pleading" is made possible by the liberal opportunity for discovery and the other pretrial procedures Page 355 U. S. 48 established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues. [ Footnote 9 ] Following the simple guide of Rule 8(f) that "all pleadings shall be so construed as to do substantial justice," we have no doubt that petitioners' complaint adequately set forth a claim and gave the respondents fair notice of its basis. The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome, and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits. Cf. Maty v. Grasselli Chemical Co., 303 U. S. 197 . The judgment is reversed, and the cause is remanded to the District Court for further proceedings not inconsistent with this opinion. It is so ordered. [ Footnote 1 ] 44 Stat. 577, as amended, 45 U.S.C. § 151 et seq. [ Footnote 2 ] Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U. S. 210 ; Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U. S. 232 ; Brotherhood of Railroad Trainmen v. Howard, 343 U. S. 768 ; cf. Wallace Corp. v. Labor Board, 323 U. S. 248 ; Syres v. Oil Workers International Union, 350 U.S. 892. [ Footnote 3 ] In full, § 3 First (i) reads: "The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on the date of approval of this Act (June 21, 1934), shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes." 48 Stat. 1191, 45 U.S.C. § 153 First (i). [ Footnote 4 ] For this reason, the decision in Slocum v. Delaware, L. & W.R. Co., 339 U. S. 239 , is not applicable here. The courts below also relied on Hayes v. Union Pacific R. Co., 184 F.2d 337, certiorari denied, 340 U.S. 942, but, for the reasons set forth in the text, we believe that case was decided incorrectly. [ Footnote 5 ] See, e.g., Leimer v. State Mutual Life Assur. Co., 108 F.2d 302; Dioguardi v. Durning, 139 F.2d 774; Continental Collieries v. Shober, 130 F.2d 631. [ Footnote 6 ] Steele v. Louisville & Nashville R. Co., 323 U. S. 192 , 323 U. S. 203 . [ Footnote 7 ] See Dillard v. Chesapeake & Ohio R. Co., 199 F.2d 948; Hughes Tool Co. v. National Labor Relations Board, 147 F.2d 69, 74. [ Footnote 8 ] Rule 8(a)(2). [ Footnote 9 ] See, e.g., Rule 12(e) (motion for a more definite statement); Rule 12(f) (motion to strike portions of the pleading); Rule 12(c) (motion for judgment on the pleadings); Rule 16 (pretrial procedure and formulation of issue); Rules 26-37 (depositions and discovery); Rule 56 (motion for summary judgment): Rule 15 (right to amend).

The Supreme Court held that the District Court erred in dismissing the complaint of a class of Negro employees against their union for failing to represent them fairly in a dispute with the Railroad. The Court found that the National Railroad Adjustment Board did not have exclusive jurisdiction over the case, as it involved a dispute between employees and their bargaining agent, not a carrier. The Court also held that the complaint adequately set forth a claim for relief, as the Railway Labor Act allows aggrieved employees to file their own grievances or sue their employer. The Court reversed the lower court's decision and remanded the case for further proceedings.

Lawsuits & Legal Procedures

Hoffman v. Blaski

https://supreme.justia.com/cases/federal/us/363/335/

U.S. Supreme Court Hoffman v. Blaski, 363 U.S. 335 (1960) Hoffman v. Blaski No. 25 Argued April 19-20, 1960 Decided June 13, 1960 363 U.S. 335 ast|>* 363 U.S. 335 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Syllabus Under 28 U.S.C. § 1404(a), a federal district court in which a civil action has been properly brought is not empowered to transfer the action on the motion of the defendant to a district in which the plaintiff did not have a right to bring it. Pp. 363 U. S. 335 -344. (a) The phrase "where it might have been brought" in § 1404(a) cannot be interpreted to mean "where it may now be rebrought, with defendants' consent." Pp. 363 U. S. 342 -343. (b) Under § 1404(a), the power of a district court to transfer an action to another district is made to depend not upon the wish or waiver of the defendant, but upon whether the transferee district is one in which the action "might have been brought" by the plaintiff. Pp. 363 U. S. 343 -344. 260 F.2d 317, 261 F.2d 467, affirmed. MR. JUSTICE WHITTAKER delivered the opinion of the Court. To relieve against what was apparently thought to be the harshness of dismissal, under the doctrine of forum Page 363 U. S. 336 non conveniens, of an action brought in an inconvenient one of two or more legally available forums, Gulf Oil Corp. v. Gilbert, 330 U. S. 501 , and concerned by the reach of Baltimore & Ohio R. Co. v. Kepner, 314 U. S. 44 , [ Footnote 1 ] Congress, in 1948, enacted 28 U.S.C. § 1404(a), which provides: "§ 1404. Change of venue." "(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." The instant cases present the question whether a District Court in which a civil action has been properly brought is empowered by § 1404(a) to transfer the action, on the motion of the defendant, to a district in which the plaintiff did not have a right to bring it. No. 25, Blaski. -- Respondents, Blaski and others, residents of Illinois, brought this patent infringement action in the United States District Court for the Northern District of Texas against one Howell and a Texas corporation controlled by him, alleging that the defendants are residents of, and maintain their only place of business in, the City of Dallas, in the Northern District of Texas, where they are infringing respondents' patents. After being served with process and filing their answer, the defendants moved, under § 1404(a), to transfer the action to the United States District Court for the Northern District of Illinois. [ Footnote 2 ] Respondents objected to the Page 363 U. S. 337 transfer on the ground that, inasmuch as the defendants did not reside, maintain a place of business, or infringe the patents in, and could not have been served with process in, the Illinois district, the courts of that district lacked venue over the action [ Footnote 3 ] and ability to command jurisdiction over the defendants; [ Footnote 4 ] that therefore that district was not a forum in which the respondents had a right to bring the action, and hence the court was without power to transfer it to that district. Without mentioning that objection or the question it raised, the District Court found that "the motion should be granted for the convenience of the parties and witnesses in the interest of justice," and ordered the case transferred to the Illinois district. Thereupon, respondents moved in the Fifth Circuit for leave to file a petition for a writ of mandamus directing the vacation of that order. That court, holding that "[t]he purposes for which § 1404(a) was enacted would be unduly circumscribed if a transfer could not be made 'in the interest of justice' to a district where the defendants not only waive venue but to which they seek the transfer," denied the motion. Ex parte Blaski, 245 F.2d 737, 738. Upon receipt of a certified copy of the pleadings and record, the Illinois District Court assigned the action to Judge Hoffman's calendar. Respondents promptly moved for an order remanding the action on the ground that the Texas District Court did not have power to make the transfer order and, hence, the Illinois District Court was not thereby vested with jurisdiction of the action. Page 363 U. S. 338 After expressing his view that the "weight of reason and logic" favored "retransfer of this case to Texas," Judge Hoffman, with misgivings, denied the motion. Respondents then filed in the Seventh Circuit a petition for a writ of mandamus directing Judge Hoffman to reverse his order. After hearing and rehearing, the Seventh Circuit, holding that, "[w]hen Congress provided [in § 1404(a)] for transfer [of a civil action] to a district 'where it might have been brought,' it is hardly open to doubt but that it referred to a district where the plaintiff . . . had a right to bring the case," and that respondents did not have a right to bring this action in the Illinois district, granted the writ, one judge dissenting. 260 F.2d 317, 320. No. 26, Behimer. -- Diversity of citizenship then existing, respondents, Behimer and Roberts, residents of Illinois and New York, respectively, brought this stockholders' derivative action, as minority stockholders of Utah Oil Refining Corporation, a Utah corporation, on behalf of themselves and others similarly situated, in the United States District Court for the Northern District of Illinois against Standard Oil Company and Standard Oil Foundation, Inc., Indiana corporations but licensed to do and doing business in the Northern District of Illinois, for damages claimed to have been sustained through the alleged illegal acquisition by defendants of the assets of the Utah corporation at an inadequate price. After being served with process and filing their answer, the defendants moved under § 1404(a) to transfer the action to the United States District Court for the District of Utah. [ Footnote 5 ] Respondents objected to the transfer on the Page 363 U. S. 339 ground that, inasmuch as the defendants were not incorporated in or licensed to do or doing business in, and could not be served with process in, the district of Utah, the courts of that district lacked venue over the action [ Footnote 6 ] and ability to command jurisdiction over the defendants; [ Footnote 7 ] that therefore that district was not a forum in which the respondents had a right to bring the action, and, hence, the court was without power to transfer it to that district. Without mentioning the question raised by that objection, the court found that the proposed transfer would be "for the convenience of the parties and witnesses, and in the interest of justice," and ordered the case transferred to the district of Utah. Respondents then filed in the Seventh Circuit a petition for a writ of mandamus directing the District Court to reverse its order. After hearing, the Seventh Circuit, following its decision in Blaski v. Hoffman, supra, granted the writ. 261 F.2d 467. To settle the conflict that has arisen among the circuits respecting the proper interpretation and application of § 1404(a), [ Footnote 8 ] we granted certiorari. 359 U.S. 904; 361 U.S. 809. Page 363 U. S. 340 Without sacrifice or slight of any tenable position, the parties have in this Court commendably narrowed their contentions to the scope of the only relevant inquiry. The points of contention may be sharpened by first observing what is not in contest. Discretion of the district judges concerned is not involved. Propriety of the remedy of mandamus is not assailed. No claim is made here that the order of the Fifth Circuit denying the motion of respondents in the Blaski case for leave to file a petition for writ of mandamus, 245 F.2d 737, precluded Judge Hoffman or the Seventh Circuit from remanding that case. [ Footnote 9 ] Petitioners concede that these actions were Page 363 U. S. 341 properly brought in the respective transferor forums; that statutory venue did not exist over either of these actions in the respective transferee districts, [ Footnote 10 ] and that the respective defendants were not within the reach of the process of the respective transferee courts. [ Footnote 11 ] They concede, too, Page 363 U. S. 342 that § 1404(a), being "not unlimited," "may be utilized only to direct an action to any other district or division where it might have been brought,'" and that, like the superseded doctrine of forum non conveniens, Gulf Oil Corp. v. Gilbert, 330 U. S. 501 , 330 U. S. 507 , the statute requires "an alternative forum in which plaintiff might proceed." Petitioners' "thesis" and sole claim is that § 1404(a), being remedial, Ex parte Collett, 337 U. S. 55 , 337 U. S. 71 , should be broadly construed, and, when so construed, the phrase "where it might have been brought" should be held to relate not only to the time of the bringing of the action, but also to the time of the transfer; and that "if, at such time, the transferee forum has the power to adjudicate the issues of the action, it is a forum in which the action might then have been brought. [ Footnote 12 ]" (Emphasis added.) They argue that, in the interim between the bringing of the action and the filing of a motion to transfer it, the defendants may move their residence to, or, if corporations, may begin the transaction of business in, some other district, and, if such is done, the phrase "where it might have been brought" should be construed to empower the District Court to transfer the action, on motion of the defendants, to such other district; and that, similarly, if, as here, the defendants move to transfer the action to some other district and consent to submit to the jurisdiction of such other district, the latter district should be held one "in which the action might then have been brought." (Emphasis added.) We do not agree. We do not think the § 1404(a) phrase "where it might have been brought" can be interpreted to mean, as petitioners' theory would required, Page 363 U. S. 343 "where it may now be rebrought, with defendants' consent." This Court has said, in a different context, that § 1404(a) is "unambiguous, direct [and] clear," Ex parte Collett, 337 U.S. at 337 U. S. 58 , and that "the unequivocal words of § 1404(a) and the legislative history . . . [establish] that Congress indeed meant what it said." United States v. National City Lines, Inc., 337 U. S. 78 , 337 U. S. 84 . Like the Seventh Circuit, 260 F.2d at 322, we think the dissenting opinion of Judges Hastie and McLaughlin in Paramount Pictures, Inc. v. Rodney, 186 F.2d 111, 119 (C.A. 3d Cir.), correctly answered this contention: "But we do not see how the conduct of a defendant after suit has been instituted can add to the forums where 'it might have been brought.' In the normal meaning of words, this language of Section 1404(a) directs the attention of the judge who is considering a transfer to the situation which existed when suit was instituted." It is not to be doubted that the transferee courts, like every District Court, had jurisdiction to entertain actions of the character involved, but it is obvious that they did not acquire jurisdiction over these particular actions when they were brought in the transferor courts. The transferee courts could have acquired jurisdiction over these actions only if properly brought in those courts, or if validly transferred thereto under § 1404(a). Of course, venue, like jurisdiction over the person, may be waived. A defendant, properly served with process by a court having subject matter jurisdiction, waives venue by failing seasonably to assert it, or even simply by making default. Commercial Casualty Ins. Co. v. Consolidated Stone Co., 278 U. S. 177 , 278 U. S. 179 -180; Neirbo Co. v. Bethlehem Shipbuilding Corp., Ltd., 308 U. S. 165 . But the power of a District Court under § 1404(a) to transfer an action to another district is made to depend not upon the wish or waiver of the defendant, but rather upon whether the transferee district was one Page 363 U. S. 344 in which the action "might have been brought" by the plaintiff. The thesis urged by petitioners would not only do violence to the plain words of § 1404(a), but would also inject gross discrimination. That thesis, if adopted, would empower a District Court, upon a finding of convenience, to transfer an action to any district desired by the defendants and in which they were willing to waive their statutory defenses as to venue and jurisdiction over their persons, regardless of the fact that such transferee district was not one in which the action "might have been brought" by the plaintiff. Conversely, that thesis would not permit the court, upon motion of the plaintiffs and a like showing of convenience, to transfer the action to the same district, without the consent and waiver of venue and personal jurisdiction defenses by the defendants. Nothing in § 1404(a) or in its legislative history suggests such a unilateral objective, and we should not, under the guise of interpretation, ascribe to Congress any such discriminatory purpose. We agree with the Seventh Circuit that: "If, when a suit is commenced, plaintiff has a right to sue in that district, independently of the wishes of defendant, it is a district 'where [the action] might have been brought.' If he does not have that right, independently of the wishes of defendant, it is not a district 'where it might have been brought,' and it is immaterial that the defendant subsequently [makes himself subject, by consent, waiver of venue and personal jurisdiction defenses or otherwise, to the jurisdiction of some other forum]." 260 F.2d at 321 and 261 F.2d at 469. Inasmuch as the respondents (plaintiffs) did not have a right to bring these actions in the respective transferee districts, it follows that the judgments of the Court of Appeals were correct, and must be Affirmed. Page 363 U. S. 345 * Together with No. 26, Sullivan, Chief Judge, U.S. District Court v. Behimer et al., argued April 20, 1960, also on certiorari to the same Court. [ Footnote 1 ] See the Reviser's Notes following 28 U.S.C. § 1404. [ Footnote 2 ] The asserted basis of the motion was that trial of the action in the Illinois District Court would be more convenient to the parties and witnesses and in the interest of justice because several actions involving the validity of these patents were then pending in that court, and that pretrial and discovery steps taken in those actions had developed a substantial amount of evidence that would be relevant and useful in this action. Defendants also stated in the motion that, if and when the case be so transferred, they would waive all objections to the venue of the Illinois District Court over the action and would enter their appearance in the action in that court. [ Footnote 3 ] See 28 U.S.C. § 1400(b), quoted in note 10 infra. [ Footnote 4 ] See Rule 4(f) of the Fed.Rules Civ.Proc., quoted in note 11 infra. [ Footnote 5 ] The motion asserted, and the court found, that trial of the action in the district of Utah would be more convenient to the parties and witnesses for the reasons, among others, that all of the officers and directors and a majority of the minority stockholders of the Utah corporation reside in that district; that the books and records of the corporation are located in that district; that the substantive law of Utah governs the action, and that the calendar of the Utah court was less congested than the Illinois one. As part of their motion, defendants stated that, in the event of the transfer of the action as requested, they would waive all objections to the venue of the Utah court and enter appearances in the action in that court. [ Footnote 6 ] See 28 U.S.C. § 1391(c), quoted in note 10, infra. [ Footnote 7 ] See Rule 4(f) of the Fed.Rules Civ.Proc., quoted in note 11 infra. [ Footnote 8 ] The decisions of the circuits are in great conflict and confusion. The Second Circuit has held one way on a plaintiff's motion and the other on a defendant's motion. Compare Foster-Milburn Co. v. Knight, 181 F.2d 949, 952-953, with Anthony v. Kaufman, 193 F.2d 85, and Torres v. Walsh, 221 F.2d 319. The Fifth Circuit, too, has held both ways. Compare Blackmar v. Guerre, 190 F.2d 427, 429, with Ex parte Blaski, 245 F.2d 737. The Ninth Circuit has held a District Court to be without power to transfer an action, on plaintiff's motion, to a district in which plaintiff did not have a legal right to bring it originally. Shapiro v. Bonanza Hotel Co., 185 F.2d 777, 780. The Third Circuit has held, two of the five judges dissenting, that a District Court has power to transfer an action, on defendant's motion, to a district in which the plaintiff did not have a legal right to bring it. Paramount Pictures, Inc. v. Rodney, 186 F.2d 111. The First Circuit has upheld transfer, on defendant's motion, to a district in which venue existed but where process could not be served on defendants (but defendants had been served in the transferor district). In re Josephson, 218 F.2d 174. [ Footnote 9 ] That order did not purport to determine the jurisdiction of the transferee court, and therefore did not preclude Judge Hoffman of power to determine his own jurisdiction, nor did it preclude the power of the Seventh Circuit to review his action. Fettig Canning Co. v. Steckler, 188 F.2d 715 (C.A. 7th Cir.); Wilson v. Kansas City Southern R. Co., 101 F. Supp. 56 (D.C.W.D.Mo.); United States v. Reid, 104 F. Supp. 260 , 266 (D.C.E.D.Ark.). Several reasons why principles of res judicata do not apply may be stated in a few sentences. The orders of the Texas and Illinois District Courts on the respective motions to transfer and to remand, like the orders of the Fifth and Seventh Circuits on the respective petitions for mandamus, were (1) interlocutory, (2) not upon the merits, and (3) were entered in the same case by courts of coordinate jurisdiction. Here, the sole basis of the right of the Fifth Circuit to entertain the petition for a writ of mandamus was to protect its appellate jurisdiction, 28 U.S.C. § 1651(a); Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 178 F.2d 866, 869-870 (C.A. 2d Cir.); Foster-Milburn Co. v. Knight, 181 F.2d 949, 951 (C.A. 2d Cir.); In re Josephson, 218 F.2d 174, 177 (C.A. 1st Cir.); Torres v. Walsh, 221 F.2d 319, 321 (C.A. 2d Cir.), by denying leave to file the petition, it forsook such right, but it did not thereby determine that the Illinois District Court had jurisdiction of the action. The question of that court's jurisdiction still remained subject to attack as of right on appeal to the Seventh Circuit from any final judgment in the action. When, therefore, jurisdiction of the District Court was assailed in the Seventh Circuit, by the petition for mandamus, that court surely had power to determine whether it would hold, on such an appeal, that the Illinois District Court did or did not have jurisdiction of the action and, if not, to say so and thus avoid the delays and expense of a futile trial. [ Footnote 10 ] Venue over patent infringement actions is prescribed by 28 U.S.C. § 1400(b), which provides: "(b) Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business." See Stonite Products Co. v. Melvin Lloyd Co., 315 U. S. 561 ; Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222 . General venue over actions against corporations is prescribed by 28 U.S.C. § 1391(c), which provides: "(c) A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes." [ Footnote 11 ] General provisions respecting service of the process of federal courts are prescribed by Rule 4(f) of the Fed.Rules Civ.Proc., which provides: "(f) Territorial Limits of Effective Service." "All process other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held and, when a statute of the United States so provides, beyond the territorial limits of that state. A subpoena may be served within the territorial limits provided in Rule 45." [ Footnote 12 ] A similar view was expressed in Paramount Pictures, Inc. v. Rodney, 186 F.2d 111 (C.A. 3d Cir.). The court there thought that the § 1404(a) phrase "might have been brought" means "could now be brought." Id. at 114. MR. JUSTICE STEWART, concurring in No. 25. Two Courts of Appeals disagreed about the meaning of a federal law, as conscientious federal courts sometimes do. From the point of view of efficient judicial administration, the resulting history of this litigation is no subject for applause. But, as the Court points out, no claim was made here that the decision of the Fifth Circuit precluded Judge Hoffman or the Seventh Circuit from remanding the case, and, on the merits of that question, I agree with the Court that principles of res judicata were inapplicable. In any event, the conflict between the Circuits is now resolved, and what happened here will not happen again. MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN and MR. JUSTICE BRENNAN join, dissenting.* My special disagreement with the Court in this case concerns a matter of judicial administration arising out of the fact that after the question on the merits had been considered by the Court of Appeals for the Fifth Circuit, the same question between the same parties was later independently again adjudicated by the Court of Appeals for the Seventh Circuit. I cannot join the Court's approval of the right of the Seventh Circuit to make such a re-examination. It is true that in its opinion in this case and No. 26, Sullivan v. Behimer, decided today, the Court settles the question over which the two Courts of Appeals disagreed, so that it should not recur. This is not, however, an isolated case. A general principle of judicial administration in the federal courts is at stake. In addition, while the Court today settles one problem arising in the application of § 1404(a), other questions involving that section may readily give rise to conflicting Page 363 U. S. 346 views among the eleven Courts of Appeals. Under the Court's opinion, for example, transfer always depends upon the meaning of the federal venue statutes, and upon the jurisdiction of the transferee court over the person of the defendant, which may be a problem of constitutional dimensions, and there is obviously a substantial opportunity for conflict between the Courts of Appeals over those matters. We ought to forestall in other situations of potential controversy the kind of judicial unseemliness which this case discloses. Plaintiffs brought this action for patent infringement in the United States District Court for the Northern District of Texas. Defendants moved pursuant to 28 U.S.C. § 1404(a) to have it transferred to the Northern District of Illinois. Finding transfer to be "for the convenience of parties and witnesses, in the interest of justice," the Texas District Court granted the motion and transferred the action to Illinois. Plaintiffs sought a writ of mandamus in the Court of Appeals for the Fifth Circuit to require the Texas District Court to set aside the transfer. In plaintiffs' view, the Northern District of Illinois was not a place where the action "might have been brought," and thus the Texas District Court had no power to transfer the action there under § 1404(a). The Fifth Circuit fully examined the merits of this claim and rejected it, holding that, in the circumstances before the court, the Northern District of Illinois was a jurisdiction where the action "might have been brought." Leave to file a mandamus petition was therefore denied, and the action was duly transferred. 245 F.2d 737. Upon the assignment of the action to the calendar of the United States District Court for the Northern District of Illinois, plaintiffs moved that court to disregard the explicit decision of another District Court in the same case, sustained by the appropriate Court of Page 363 U. S. 347 Appeals, and to send the case back to Texas. Plaintiffs advanced precisely the claim already rejected by the Fifth Circuit, namely, that the Northern District of Illinois was not a place where the action "might have been brought" within the proper meaning of § 1404(a). Transfer had, in their view, erroneously been ordered by the Texas District Court and the power to transfer erroneously approved by the Fifth Circuit. Plaintiffs' application was denied by the Illinois District Court. Still not accepting the decision against them, plaintiffs again sought an appellate remedy by way of mandamus, this time in the Court of Appeals for the Seventh Circuit. Initially, mandamus was denied. On rehearing, however, the Seventh Circuit held that the prior decision of the Fifth Circuit was wrong. It held that § 1404(a) did not authorize transfer to Illinois, and it ordered the action "remanded" to the Texas District Court within the Fifth Circuit, from whence it had come, to go forward there. 260 F.2d 317. That "remand" is the order which is here on certiorari. 359 U.S. 904. The Court of Appeals for the Seventh Circuit has thus refused to permit an Illinois District Court to entertain an action transferred to it with the approval, after full consideration of the problem involved, of the Court of Appeals for the Fifth Circuit. The Seventh Circuit considered no evidence not before the Fifth Circuit in so deciding. It considered precisely the same issue, and reached a contrary legal conclusion. This was after explicit prior adjudication of the question at the same level of the federal system in the same case and between the same parties. Because the question involved is the transferability of the action, the consequence of the Seventh Circuit's disregard of the Fifth Circuit's prior decision is not only that a question once decided has been reopened, with all the wasted motion, delay, and Page 363 U. S. 348 expense which that normally entails. Unless and until this Court acts, the litigants have no forum in which trial may go forward. Each Court of Appeals involved has refused to have the District Court in its Circuit hear the case, and has sent it to a District Court in the other. This is the judicial conduct the Court now approves. The Court does not suggest that the Court of Appeals for the Fifth Circuit was powerless, was without jurisdiction, to review, as it did, the question of the applicability of § 1404(a) to this case. The occasion for the Fifth Circuit's review by way of mandamus may have been, as the Court suggests, "to protect its appellate jurisdiction," but there can be no question that the Fifth Circuit undertook to and did resolve on its merits the controversy between the parties regarding the meaning of § 1404(a). Yet the Court decides that the review in the Fifth Circuit was so much wasted motion, properly ignored by the Court of Appeals for the Seventh Circuit in arriving at a contrary result. The case is treated just as if the Fifth Circuit had never considered the questions involved in it. I am at a loss to appreciate why all the considerations bearing on the good administration of justice which underlie the technical doctrine of res judicata did not apply here to require the Court of Appeals for the Seventh Circuit to defer to the previous decision. "Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest; and that matters once tried shall be considered forever settled as between the parties. We see no reason why this doctrine should not apply in every case where one voluntarily appears, presents his case, and is fully heard, and why he should not, in the absence of fraud, be thereafter concluded by the judgment of the tribunal to which he has submitted his cause." Baldwin v. Iowa Traveling Men's Ass'n, 283 U. S. 522 , 283 U. S. 525 -526. One would suppose that these considerations would be Page 363 U. S. 349 especially important in enforcing comity among federal courts of equal authority. The fact that the issue involved is the propriety of a transfer of the action only makes the case for deference to the previous decision of a coordinate court in the same litigation that much stronger. The course of judicial action now approved by the Court allows transfer over a persisting objection only when concurred in by two sets of courts: those in the place where the case begins and those in the place to which transfer is ordered. Not only does the place of trial thus remain unsettled for an unnecessarily long time to accommodate double judicial consideration but, as this case shows, the result of a disagreement between the courts involved is that the litigation cannot go forward at all unless this Court resolves the matter. Surely a seemly system of judicial remedies, especially appellate judicial remedies, regarding controverted transfer provisions of the United States Code should encourage, not discourage, quick settlement of questions of transfer, and should preclude two Courts of Appeals from creating, through their disagreement in the same case, an impasse to the litigation which only this Court can remove. Section 1404(a) was meant to serve the ends of "convenience" and "justice" in the trial of actions. It perverts those ends to permit a question arising under § 1404(a), as here, to be litigated, in turn, before a District Court and Court of Appeals in one Circuit, and a District Court and Court of Appeals in another Circuit one thousand miles distant, thereby delaying trial for a year and a half, only to have the result of all that preliminary litigation be that trial may not go forward at all until this Court shall settle the question of where it shall go forward, after at least another year's delay. We are not vouchsafed claims of reason or of the due administration of justice that require the duplication of Page 363 U. S. 350 appellate remedies approved by the Court in this case. Why is not a single judicial appellate remedy in a Court of Appeals entirely adequate for one aggrieved by a transfer? Once the Court of Appeals for the Fifth Circuit had decided, after due consideration, that the proper meaning of § 1404(a) included Illinois as a place where the action "might have been brought," this should have ended the matter, except, of course, for this Court's power of review of that decision through the writ of certiorari, a power which we declined to exercise in this case. Nor does such a view of right and wise judicial administration depend upon the nature of the procedural or even jurisdictional issue in controversy. Technically, res judicata controls even a decision on a matter of true jurisdiction. "We see no reason why a court, in the absence of an allegation of fraud in obtaining the judgment, should examine again the question whether the court making the earlier determination on an actual contest over jurisdiction between the parties, did have jurisdiction of the subject matter of the litigation." Stoll v. Gottlieb, 305 U. S. 165 , at 305 U. S. 172 . See also Baldwin v. Iowa Traveling Men's Ass'n, supra, 283 U. S. 522 . Surely a prior decision of a federal court on the unfundamental issue of venue ought to receive similar respect from a coordinate federal court when the parties and the facts are the same. The question is of the appropriate scheme of judicial remedies for enforcing rights under a federal remedial statute aimed at enhancing the fair administration of justice in the federal courts. It is not consonant with reason to permit a duplicate appellate procedure for questions under this statute, thereby forestalling final decision on a pretrial matter which ought to be decided as expeditiously as possible, causing wasteful delay and expense, and thus depriving the statutory motion to transfer of effectiveness in achieving the ends of "convenience" and "justice" for which it was created. Page 363 U. S. 351 * [This opinion applies only to No. 25, Hoffman v. Blaski. For opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE HARLAN and MR. JUSTICE BRENNAN in No. 26, Sullivan v. Behimer, see post, p. 363 U. S. 351 .] MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN and MR. JUSTICE BRENNAN join, dissenting.* The problem in this case is of important concern to the effective administration of justice in the federal courts. At issue is the scope of 28 U.S.C. § 1404(a), providing for the transfer of litigation from one Federal District Court to another. The main federal venue statutes necessarily deal with classes of cases, without regard to the occasional situation in which a normally appropriate venue may operate vexatiously. Section 1404(a) was devised to avoid needless hardship and even miscarriage of justice by empowering district judges to recognize special circumstances calling for special relief. It provides that an action, although begun in a place falling within the normally applicable venue rubric may be sent by the District Court to go forward in another district much more appropriate when judged by the criteria of judicial justice. The terms of § 1404(a) are as follows: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." The part of § 1404(a) the meaning of which is at issue here is its last phrase, "any other district or division where it (the action) might have been brought." The significance of this phrase is this: even though a place be found to be an overwhelmingly more appropriate forum from the standpoint of "convenience" and "justice," the litigation may not be sent to go forward there unless it is a Page 363 U. S. 352 place where the action "might have been brought." Upon the scope to be given this phrase thus depends almost entirely the effectiveness of § 1404(a) to insure an appropriate place of trial, when the action is begun in an oppressive forum. One would have to be singularly unmindful of the treachery and versatility of our language to deny that, as a mere matter of English, the words "where it might have been brought" may carry more than one meaning. For example, under Rule 3 of the Federal Rules of Civil Procedure, civil actions are "commenced" by filing a complaint with the court. As a matter of English, there is no reason why "commenced," so used, should not be thought to be synonymous with "brought" as used in § 1404(a), so that an action "might have been brought" in any district where a complaint might have been filed, or perhaps only in districts with jurisdiction over the subject matter of the litigation. As a matter of English alone, the phrase might just as well be thought to refer either to those places where the defendant "might have been" served with process, or to those places where the action "might have been brought" in light of the applicable venue provision, for those provisions speak generally of there actions "may be brought." Or the phrase may be thought. as a matter of English alone. to refer to those places where the action "might have been brought" in light of the applicable statute of limitations, or other provisions preventing a court from reaching the merits of the litigation. On the face of its words alone, the phrase may refer to any one of those considerations, i.e., venue, amenability to service, or period of limitations, to all of them, or to none of them, or to others as well. [ Footnote 2/1 ] And, to Page 363 U. S. 353 the extent that these are matters which may or may not be raised at the defendant's election, the English of the phrase surely does not tell whether the defendant's actual or potential waiver or failure to raise such objections is to be taken into account in determining whether a district is one in which the action "might have been brought," or whether the phrase refers only to those districts where the plaintiff "might have brought" the action even over a timely objection on the part of the defendant, that is, where he had "a right" to bring it. The particular problem in the present case has been a relatively commonplace one in the application of § 1404(a), and it demonstrates the failure of the words of the section, considered merely as words, to define with precision those places where an action "might have been brought." The problem here is this. Action was brought by plaintiff in district A, a proper venue under the applicable venue statute. Defendant objected, and moved for transfer to district B, submitting that, in the interests of "convenience" and "justice" to all concerned, the action should go forward there instead of in district A. District B, however, is one in which, had the complaint been Page 363 U. S. 354 filed there, the plaintiff would have been unable, without the defendant's consent, to serve him with process. In addition, the defendant in district B, had the complaint been filed there, would have had an objection to the venue under the applicable venue statute. In moving for transfer to B, the defendant stipulates to waiving all objections to venue there and to submitting his person to the jurisdiction of District Court B, should transfer be ordered. The District Court in A agrees that B, not A, is the appropriate place for trial, and is disposed to transfer the action there, for, in light of the defendant's stipulation, there is no way in which the plaintiff can be prejudiced by the lack of venue in B or the impossibility, as an original matter, of serving defendant there. Is B a place where the action "might have been brought" so that the transfer can be effected? The Court finds it "plain," from the words of the phrase themselves, that B is not such a place, and that, for it, is the end of the matter. We would all agree that B would be a place where the action "might have been brought" if it were a place of statutory venue, if the defendant had always been amenable to process there, and if B had no other special characteristics whereby the defendant could prevent consideration there of the merits of the cause of action. Almost every statute has a core of indisputable application, and this statute plainly applies to permit transfer to a place where there could never have been any objection to the maintenance of the action. But is it clear, as the Court would have it, that, as a mere matter of English, because potential objections peculiar to the forum would have been present in B, it is not to be deemed a place where the action "might have been brought," although defendant not only might but is prepared to waive, as he effectively may, such objections? Page 363 U. S. 355 I submit that it is not clear from the words themselves, and the experience in the lower courts gives compelling proof of it. At least 28 District Courts, located in all parts of the Nation, have had to give concrete meaning to the set of words in controversy. These are the judges who are, to use a familiar but appropriate phrase, on the firing line, who are in much more intimate, continuous touch with the needs for the effective functioning of the federal judicial system at the trial level than is this Court. They have not found the last phrase of § 1404(a) unambiguous. There has been anything but the substantial uniformity of views to be expected in the application of a clear and unambiguous direction. There have been severe differences with regard to whether § 1404(a) is ever available as a remedy to a plaintiff forced into an inconvenient forum, and, if so, under what conditions. [ Footnote 2/2 ] With regard to defendants' motions to transfer, it has been held that "brought" in § 1404(a) is synonymous with "commenced" in Rule 3, so that transfer may be made to virtually any district dictated by "convenience" and "justice." [ Footnote 2/3 ] It has been held that the phrase is to be applied as if it read "where it might have been brought now, " thus giving full effect to a waiver of objections by defendant Page 363 U. S. 356 in moving for transfer. [ Footnote 2/4 ] It has been said, on the other hand, that "[s]ection 1404(a) . . . contemplates statutory venue, and not consent venue." [ Footnote 2/5 ] With regard to the particular problem in this case, which has arisen most often, a majority of the District Courts which have considered the problem have ruled against the Court's "plain" meaning of the statute. At least seven District Courts have ruled that, because of the defendant's consent to have the action go forward there, a district is one where the action "might have been brought" even though it is a place where the defendant might either have objected to the venue, or avoided process, or both, had the action been brought there originally. [ Footnote 2/6 ] At least three District Courts have held or implied, to the contrary, that the defendant's consent is not relevant, and that such a district cannot be one where the action "might have been brought." [ Footnote 2/7 ] Two others have simply denied motions by the defendant on the ground that the transferee court was not one where the action "might have been brought," without discussing whether, Page 363 U. S. 357 in moving for transfer, the defendant had consented to go forward in the transferee court, or what the effect of that consent would be. [ Footnote 2/8 ] Two District Courts have granted the defendant's motion to transfer, making the matter turn on the presence of a number of defendants and the fact that some of them were suable as of right in the transferee court. [ Footnote 2/9 ] Two others have found the amenability of the defendant to service of process in the place to which transfer is proposed to be wholly irrelevant to whether the action "might have been brought" there, and have ordered transfer to such a place on the plaintiff's motion even though the defendant did not consent. [ Footnote 2/10 ] It simply cannot be said, in the face of this experience, that the words of the statute are so compellingly precise, so unambiguous, that § 1404(a), as a matter of "plain words," does not apply in the present case. The experience in the Courts of Appeals is also revealing. Of the six cases where defendants have moved for transfer, in only two has it been held that the defendant's consent to the transfer is not relevant in determining whether the place to which transfer is proposed is a place where the action "might have been brought," and these are the two decisions of the Seventh Circuit now before us. Blaski v. Hoffman, 260 F.2d 317 (C.A. 7th Cir. 1958); Behimer v. Sullivan, 261 F.2d 467 (C.A. 7th Cir. 1958). Page 363 U. S. 358 The Third Circuit has ruled in favor of transfer on the defendant's motion to a place where the defendant might have objected to the venue, Paramount Pictures, Inc. v. Rodney, 186 F.2d 111 (C.A. 3d Cir. 1951). The First and Second Circuits have ruled in favor of transfer on defendant's motion to a place where the defendant could not have been served with process, Torres v. Walsh, 221 F.2d 319 (C.A. 2d Cir. 1955); In re Josephson, 218 F.2d 174 (C.A. 1st 1954). And the Second and Fifth Circuits have ruled in favor of transfer on defendant's motion to a place where there was neither statutory venue nor a chance to serve the defendant. Anthony v. Kaufman, 193 F.2d 85 (C.A. 2d Cir. 1951); Ex parte Blaski, 245 F.2d 737 (C.A. 5th Cir. 1957). All these courts have considered the meaning of the phrase in detail, and have held that the place to which transfer was proposed was a place where the action "might have been brought." Thus, the Court's view of the meaning of § 1404(a) is contrary to the rulings of every Court of Appeals but one which has considered the problem, and is contrary to the view of more than half the District Courts, as well. Yet the Court maintains that the statute unambiguously means what it says it does. Surely the Court creates its own verbal prison in holding that "the plain words" of § 1404(a) dictate that transfer may not be made in this case although transfer concededly was in the interest of "convenience" and "justice." Moreover, the Court, while finding the statutory words "plain," decides the case by applying not the statutory language, but a formula of words found nowhere in the statute, namely, whether plaintiffs had "a right to bring these actions in the respective transferee districts." This is the Court's language, not that of Congress. Although it is, of course, a grammatically plausible interpretation of the phrase "where it might have been brought," it has been, I submit, established that it is not Page 363 U. S. 359 by any means the only plausible interpretation. In fact, the Court's rephrasing, as distinguished from Congress' phrasing, gives the narrowest possible scope to the operation of § 1404(a). There can be expected to be very few, if any, alternative forums in a given case where the plaintiff has a "right" to sue, considering that that means places of unobjectionable venue where the defendant is amenable to service of process and where there are no other impediments such as a statute of limitations which the defendant can rely on to defeat the action. This case, then, cannot be decided, and is not decided, by the short way of a mechanical application of Congress' words to the situation. Indeed, it would be extraordinary if a case which could be so decided were deemed worthy of this Court's attention twelve years after the applicable statute was enacted. To conclude, as the Court does, that the transferee court is inexorably designated by the inherent force of the words "where it might have been brought" is to state a conclusion that conceals the process by which the meaning is, as a matter of choice, extracted from the words. The problem in this case is one of resolving an ambiguity by all the considerations relevant to resolving an ambiguity concerning the conduct of litigation, and, more particularly, the considerations that are relevant to resolving an ambiguous direction for the fair conduct of litigation in the federal judicial system. At the crux of the business, as I see it, is the realization that we are concerned here not with a question of a limitation upon the power of a federal court, but with the place in which that court may exercise its power. We are dealing, that is, not with the jurisdiction of the federal courts, which is beyond the power of litigants to confer, but with the locality of a lawsuit, the rules regulating which are designed mainly for the convenience of the litigants. "[T]he locality of a law suit -- the place where judicial authority may be Page 363 U. S. 360 exercised -- though defined by legislation, relates to the convenience of litigants, and, as such, is subject to their disposition. . . . [A venue statute] 'merely accords to the defendant a personal privilege respecting the venue, or place of suit, which he may assert, or may waive at his election.' Commercial Ins. Co. v. Stone Co., 278 U. S. 177 , 278 U. S. 179 ." Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U. S. 165 , 308 U. S. 168 . And, in that case, the Court was merely reiterating considerations already forcefully set out in General Investment Co. v. Lake Shore R. Co., 260 U. S. 261 , and Lee v. Chesapeake & Ohio R. Co., 260 U. S. 653 . This basic difference "between the court's power and the litigant's convenience is historic in the federal courts." 308 U.S. at 308 U. S. 168 . Applying these considerations to a problem under a different statute but relevant to the present one, namely, whether removal from a state court to a federal court might be had upon the motion of the defendant when the federal court was one where the venue would have been subject to objection had the action originally been brought there, this Court, speaking unanimously through Mr. Justice Van Devanter, discriminatingly reminded that "[i]t therefore cannot be affirmed broadly that this suit could not have been brought . . . [in the federal court], but only that it could not have been brought and maintained in that court over a seasonable objection by the company to being sued there." This analysis has striking application to the present problem under § 1404(a), and it is also relevant here that the Court sanctioned removal in that case to a federal court with no statutory venue, partly because "there could be no purpose in extending to removals the personal privilege accorded to defendants by [the venue statutes], since removals are had only at the instance of defendants." General Investment Co. v. Lake Shore R. Co., 260 U. S. 261 , 260 U. S. 273 , 260 U. S. 275 . See also, to the same effect, Lee v. Chesapeake & Ohio R. Co. , 260 Page 363 U. S. 361 U.S. 653, overruling Ex parte Wisner, 203 U. S. 449 , and qualifying In re Moore, 209 U. S. 490 . The rule that statutory venue rules governing the place of trial do not affect the power of a federal court to entertain an action, or of the plaintiff to bring it, but only afford the defendant a privilege to object to the place chosen, is now enacted as part of the Judicial Code. 28 U.S.C. § 1406(b). And, of course, it needs no discussion that a defendant is always free voluntarily to submit his person to the jurisdiction of a federal court. In light of the nature of rules governing the place of trial in the federal system, as thus expounded and codified, as distinguished from limitation upon the power of the federal courts to adjudicate, what are the competing considerations here? The transferee court in this case plainly had and has jurisdiction to adjudicate this action with the defendant's acquiescence. As the defendant, whose privilege it is to object to the place of trial, has moved for transfer, and has acquiesced to going forward with the litigation in the transferee court, it would appear presumptively, unless there are strong considerations otherwise, that there is no impediment to effecting the transfer so long as "convenience" and "justice" dictate that it be made. It does not counsel otherwise that here, the plaintiff is to be sent to a venue to which he objects, whereas ordinarily, when the defendant waives his privilege to object to the place of trial, it is to acquiesce in the plaintiff's choice of forum. This would be a powerful argument if, under § 1404(a), a transfer were to be made whenever requested by the defendant. Such is not the case, and this bears emphasis. A transfer can be made under § 1404(a) to a place where the action "might have been brought" only when "convenience" and "justice" so dictate, not whenever the defendant so moves. A legitimate objection by the plaintiff to proceeding in the transferee forum will presumably be reflected in a decision that Page 363 U. S. 362 the interest of justice does not require the transfer, and so it becomes irrelevant that the proposed place of transfer is deemed one where the action "might have been brought." If the plaintiff's objection to proceedings in the transferee court is not consonant with the interests of justice, a good reason is wanting why the transfer should not be made. On the other hand, the Court's view restricts transfer, when concededly warranted in the interest of justice, to protect no legitimate interest on the part of the plaintiff. And, by making transfer turn on whether the defendant could have been served with process in the transferee district on the day the action was brought, the Court's view may create difficult problems in ascertaining that fact, especially in the case of noncorporate defendants. These are problems which have no conceivable relation to the proper administration of a provision meant to assure the most convenient and just place for trial. Nor is it necessary to reach the Court's result in order to preserve an appropriate meaning for the phrase "where it might have been brought." I fully agree that the final words of § 1404(a) are words of limitation upon the scope of the provision. But to hold, as I would, that a district is one where the action "might have been brought" when the defendant consents to going forward with the litigation there does not remove the quality of those words as a limitation. The words compel the defendant, in effect, to waive any objections to going forward in the transferee district which he might have had if the action had been brought there, in order to obtain a transfer. The words therefore insure that transfer will not be a device for doing the plaintiff out of any forum in which to proceed, no matter how inconvenient. The words, in any case, plainly limit the plaintiff's right to seek a transfer when the defendant does not consent to the change of venue. Moreover, the words may serve to prevent transfer to Page 363 U. S. 363 courts with a lack of federal power to adjudicate the matter of the dispute which the defendant cannot confer with his consent. [ Footnote 2/11 ] In light of the fact that the venue statutes in Title 28 U.S.C. are phrased in terms of where the action "may be brought," or, in some cases, where it "shall" or "must" be brought, [ Footnote 2/12 ] the most obvious limiting significance of the phrase "where it might have been brought" is that it refers to places where, under the venue provisions, the action, "may," "shall," or "must" be brought, assuming the existence of federal jurisdiction. [ Footnote 2/13 ] In the meaning of federal venue provisions as expounded by this Court, and by Congress in § 1406(b), these, as has been said, are not only places where, under the applicable provision, no objection to the venue is available to the defendant. They are also places where the defendant consents to be sued. The relevant legislative history of § 1404(a) is found in the statement in the Reviser's Notes, accompanying the 1948 Judicial Code, that § 1404(a) "was drafted in accordance with the doctrine of forum non conveniens." [ Footnote 2/14 ] Under that doctrine, the remedy for an inconvenient Page 363 U. S. 364 forum was not to transfer the action, but to dismiss it. In Gulf Oil Corp. v. Gilbert, 330 U. S. 501 , 330 U. S. 506 -507, we held that, "[i]n all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them." It is entirely "in accordance" with this view of the doctrine of forum non conveniens to hold that transfer may be made at the instance of the defendant regardless of the plaintiff's right, as an original matter, to sue him in the transferee court, so long as the defendant stipulates to going forward with the litigation there. Indeed, to hold otherwise, as the Court does, is to limit § 1404(a) to a much narrower operation than the nonstatutory doctrine of forum non conveniens. Investigation has disclosed several forum non conveniens cases, one of them in this Court, where dismissal of the action on the defendant's motion was made upon the condition of the defendant's voluntary submission to the jurisdiction of another more convenient forum when that forum was not available to the plaintiff as of right over the defendant's objection. See Canada Malting Co. v. Paterson Steamships, Ltd., 49 F.2d 802, 804, affirmed, 285 U. S. 285 U.S. 413, 285 U. S. 424 ; Giatilis v. The Darnie, 171 F. Supp. 751 , 754; Bulkley, Dunton Paper Co. v. The Rio Salado, 67 F. Supp. 115 , 116; Libby, McNeill & Libby v. Bristol City Line of Steamships, 41 F. Supp. 386 , 389; The City of Agra, 35 F. Supp. 351 ; Strassburger v. Singer Mfg. Co., 263 App.Div. 518, 33 N.Y.S.2d 424; Wendel v. Hoffman, 258 App.Div. 1084, 259 App.Div. 732, 18 N.Y.S.2d 96. See also Cerro De Pasco Copper corp. v. Knut Knutsen, 187 F.2d 990, and Swift & Co. v. Compania Caribe, 339 U. S. 684 , 339 U. S. 697 -698: "it was improper, under the circumstances here shown, to remit a United States citizen to the courts of a foreign country without assuring the citizen that respondents would appear in those courts and that security would be given Page 363 U. S. 365 equal to what had been obtained by attachment in the District Court. The power of the District Court to give a libellant such assurance is shown by Canada Malting Co. v. Paterson Steamships, Ltd., 285 U. S. 413 , 285 U. S. 424 [ supra ]." In view of the familiarity of this device of dismissing for forum non conveniens when as of right no other forum was available to plaintiff, upon the defendant's agreement to appear in the more convenient forum, it is almost necessary to suppose, in light of the Reviser's description of § 1404(a) as "in accordance with the doctrine of forum non conveniens, " that transfer under § 1404(a) may likewise be made where the defendant consents to going forward with the case in the transferee court. The only consideration of the Court not resting on the "plain meaning" of § 1404(a) is that it would constitute "gross discrimination" to permit transfer to be made with the defendant's consent and over the plaintiff's objection to a district to which the plaintiff could not similarly obtain transfer over the defendant's objection. To speak of such a situation as regards this statute as "discrimination" is a sterile use of the concept. Mutuality is not an empty or abstract doctrine; it summarizes the reality of fair dealing between litigants. Transfer cannot be made under this statute unless it is found to be in the interest of "convenience" and in the interest of "justice." Whether a party is in any sense being "discriminated" against through a transfer is certainly relevant to whether the interest of justice is being served. If the interest of justice is being served, as it must be for a transfer to be made, how can it be said that there is "discrimination" in any meaningful sense? Moreover, the transfer provision cannot be viewed in isolation in finding "discrimination." It, after all, operates to temper only to a slight degree the enormous "discrimination" inherent in our system of litigation, whereby the sole choice of forum, from among those where service is possible and venue unobjectionable, Page 363 U. S. 366 is placed with the plaintiff. The plaintiff may choose from among these forums at will; under § 1404(a), the defendant must satisfy a very substantial burden of demonstrating where "justice" and "convenience" lie in order to have his objection to a forum of hardship in the particular situation respected. In summary, then, the "plain meaning" of § 1404(a) does not conclude the present case against the transfer, for the statute, as applied in this case, is not "plain" in meaning one way or another, but contains ambiguities which must be resolved by considerations relevant to the problem with which the statute deals. Moreover, the most obvious significance for the set of words here in question, considered as self-contained words, is that they have regard for the limitations contained in the regular statutory rules of venue. Those rules, it is beyond dispute, take into account the consent of the defendant to proceed in the forum, even if it is not a forum designated by statute. And the doctrine of forum non conveniens, "in accordance with" which § 1404 (a) was drafted, also took into account the defendant's consent to proceed in another forum to which he was not obligated to submit. Nor can a decision against transfer be rested upon notions of "discrimination" or of unfairness to the plaintiff in wrenching him out of the forum of his choice to go forward in a place to which he objects. In the proper administration of § 1404(a), such consequences cannot survive the necessity to find transfer to be in the interests of "convenience" and "justice," before it can be made. On the other hand, to restrict transfer, as the Court does, to those very few places where the defendant was originally amenable to process and could have had no objection to the venue is drastically to restrict the number of situations in which § 1404(a) may serve the interests of justice by relieving the parties from a vexatious forum. And it is to restrict the operation of the section capriciously, for Page 363 U. S. 367 such a drastic limitation is not counseled by any legitimate interest of the plaintiff or by any interest of the federal courts in their jurisdiction. The defendant's interest, of course, is not involved, because he is the movant for transfer. The essence of this case is to give fair scope to the role of § 1404(a) in our system of venue regulations, that is, a system whereby litigation may be brought in only a limited number of federal districts, which are chosen generally upon the basis of presumed convenience. Two extremes are possible in the administration of such a system, duly mindful of the fact that, in our jurisprudence, venue does not touch the power of the court. (1) All venue may be determined solely by rigid rules, which the defendant may invoke and which work for convenience in the generality of cases. In such an extreme situation, there would be no means of responding to the special circumstances of particular cases when the rigid venue rules are inappropriate. (2) At the other extreme, there may be no rigid venue provisions, but all venue may be determined, upon the defendant's objection to the plaintiff's choice of forum, by a finding of fact in each case of what is the most convenient forum from the point of view of the parties and the court. The element of undesirability in the second extreme is that it involves too much preliminary litigation; it is desirable in that it makes venue responsive to actual convenience. The first extreme is undesirable for according too little -- in fact nothing -- to actual convenience when the case is a special one; it is desirable in that it does away with preliminary litigation. If anything is plain, from its history and from its words, it is that § 1404(a) means to afford a balance, a compromise, between these two extremes. It is in this spirit that its provisions must be read. In the ordinary course, the regular venue rules are to prevail, with no preliminary litigation to determine the actual convenience. But the Page 363 U. S. 368 statute means to allow for cases where the ordinary rules are found to work a great hardship; there, actual convenience is to prevail. We should therefore not, as the Court has done, impose limitations upon the operation of § 1404(a) which have no relation to ordinary considerations governing the place of trial in the federal system and which arbitrarily prevent actual convenience from determining the place of trial. The limitations upon the section should only be those which recognize legitimate countervailing considerations to the free reign of actual convenience, namely limitations regarding the power of the federal courts to adjudicate, and limitation recognizing the historic privilege of the defendant, should be choose to exercise it, to object to the place of trial unless it is affirmatively designated by the venue statute. It may be urged in answer to this analysis that, if transfer is available as a matter of "convenience" and "justice" in every case in which the defendant consents to going forward in the transferee court, § 1404(a) will entail burdensome preliminary litigation, and may, if improperly administered, prove vexatious to plaintiffs. Thus, even arbitrary limitations, such as the Court imposes, may be said to be warranted. In effect, this argument against transfer in situations like the present implies distrust in the ability and character of district judges to hold the balance even -- that is, to dispose quickly of frivolous contentions and to prevent transfer from proving unduly prejudicial to plaintiffs while according it its proper scope to deal with cases of real inconvenience. "Such apprehension implies a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules of procedure. It reflects an attitude against which we were warned by Mr. Justice Holmes, speaking for the whole Court, likewise in regard to a question of procedure: 'Universal distrust creates universal incompetence.' Graham v. United States, 231 U. S. 474 , 231 U. S. 480 ." Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U. S. 180 , 185. As in that case, doubts here should be resolved in favor of the competence of the District Courts wisely to administer § 1404(a). Whatever salutary effect that section is to have must, in any event, depend upon due appreciation by district judges of the relevant considerations involved in ordering a transfer. Nothing is to be gained by parceling out the areas of their discretion mechanically, making distinctions which have no relevance to the manner in which venue provisions are ordinarily administered in the federal courts. I would therefore permit considerations of "convenience" and "justice" to be operative whenever the defendant consents to going forward in the transferee court on the same terms on which he was sued in the original forum. Against a rare abuse, there will always be available the corrective supervisory power of the Courts of Appeals, and ultimately of this Court. * [This opinion applies only to No. 26, Sullivan v. Behimer. For opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE HARLAN and MR. JUSTICE BRENNAN, in No. 25, Hoffman v. Blaski, see ante, p. 363 U. S. 345 .] [ Footnote 2/1 ] See, e.g., Felchlin v. American Smelting & Refining Co., 136 F. Supp. 577 (D.C.S.D.Cal.1955) (transfer denied on defendant's motion because plaintiff was an executor not qualified in transferee court); Masterpiece Productions, Inc. v. United Artists Corp., 90 F. Supp. 750 (D.C.E.D.Pa.1950) (transfer denied on defendant's motion because, had the action originally been brought in the transferee court, the alignment of parties would have been different, there being one involuntary party, thereby destroying complete diversity of citizenship); Lucas v. New York Central R. Co., 88 F. Supp. 536 (D.C.S.D.N.Y.1950) (transfer denied on defendant's motion because defendant's corporate status would have destroyed diversity of citizenship had the action been brought in the transferee court). In all of these cases, transfer was denied because the transferee court was deemed not to be one where the action "might have been brought." See also Arvidson v. Reynolds Metals Co., 107 F. Supp. 51 (D.C.W.D.Wash.1952) (denying the defendant's motion for transfer in part because the action was a local one, and state courts in the transferee district would not have taken jurisdiction over it). [ Footnote 2/2 ] See, e.g., Dufek v. Roux Distrib. Co., 125 F. Supp. 716 (D.C.S.D.N.Y.1954); Barnhart v. John B. Rogers Producing Co., 86 F. Supp. 595 (D.C.N.D.Ohio 1949); Troy v. Poorvu, 132 F. Supp. 864 (D.C.Mass.1955); United States v. Reid, 104 F. Supp. 260 (D.C.E.D.Ark.1952); Otto v. Hirl, 89 F. Supp. 72 (D.C.S.D.Iowa 1952); McGee v. Southern Pacific Co., 151 F. Supp. 338 (D.C.S.D.N.Y.1957); Rogers v. Halford, 107 F. Supp. 295 (D.C.E.D.Wisc.1952); Herzog v. Central Steel Tube Co., 98 F. Supp. 607 (D.C.S.D.Iowa 1951); Mitchell v. Gundlach, 136 F. Supp. 169 (D.C.Md.1955); McCarley v. Foster-Milburn Co., 89 F. Supp. 643 (D.C.W.D.N.Y.1950). [ Footnote 2/3 ] Otto v. Hirl, 89 F. Supp. 72 , 74 (D.C.S.D.Iowa 1952). [ Footnote 2/4 ] Cain v. Bowater's Newfoundland Pulp & Paper Mills, Ltd., 127 F. Supp. 949 , 950 (D.C.E.D.Pa.1954). [ Footnote 2/5 ] Johnson v. Harris, 112 F. Supp. 338 , 341 (D.C.E.D.Tenn.1953). [ Footnote 2/6 ] Hill v. Upper Mississippi Towing Corp., 141 F. Supp. 692 (D.C.Minn.1956); McGee v. Southern Pacific Co., 151 F. Supp. 338 (D.C.S.D.N.Y.1957); Welch v. Esso Shipping Co., 112 F. Supp. 611 (D.C.S.D.N.Y.1953); Mire v. Esso Shipping Co., 112 F. Supp. 612 (D.C.S.D.N.Y.1953); Cain v. Bowater's Newfoundland Pulp & Paper Mills, Ltd., 127 F. Supp. 949 (D.C.E.D.Pa.1954); Anthony v. RKO Radio Pictures, 103 F. Supp. 56 (D.C.N.Y.1951); Blaski v. Howell (D.C.N.D.Ill., March 14, 1958). [ Footnote 2/7 ] General Electric Co. v. Central Transit Warehouse Co., 127 F. Supp. 817 (D.C.W.D.Mo.1955); Tivoli Realty v. Paramount Pictures, 89 F. Supp. 278 (D.C.Del.1950); Felchlin v. American Smelting & Refining Co., 136 F. Supp. 577 (D.C.S.D.Cal.1955). See also Johnson v. Harris, 112 F. Supp. 338 (D.C.E.D.Tenn.1953) (dictum). [ Footnote 2/8 ] Silbert v. Nu-Car Carriers, 111 F. Supp. 357 (D.C.S.D.N.Y.1953); Hampton Theaters, Inc. v. Paramount Film Distributing Corp., 90 F. Supp. 645 (D.C.D.C.1950). See also Arvidson v. Reynolds Metals Co., 107 F. Supp. 51 (D.C.W.D.Wash.1952) (denying the defendants' motion to transfer in part because the plaintiff would not have been amenable to process in the transferee court). [ Footnote 2/9 ] Ferguson v. Ford Motor Co., 89 F. Supp. 45 (D.C.S.D.N.Y.1950); Glasfloss Corp. v. Owens-Corning Fiberglas Corp., 90 F. Supp. 967 (D.C.S.D.N.Y.1950). [ Footnote 2/10 ] McCarley v. Foster-Milburn Co., 89 F. Supp. 643 (D.C.W.D.N.Y.1950); Troy v. Poorvu, 132 F. Supp. 864 (D.C.Mass.1955). [ Footnote 2/11 ] See cases cited in 363 U.S. 335 fn2/1|>note 1, supra. [ Footnote 2/12 ] See 28 U.S.C. §§ 1391, 1392(a) and (b), 1393(a) and (b), 1396-1399, 1400(b), 1401 and 1403. [ Footnote 2/13 ] See Chief Judge Magruder's opinion for the Court of Appeals for the First Circuit in In re Josephson, 218 F.2d 174, 184. [ Footnote 2/14 ] The whole of the statement in the Reviser's Note dealing with subsection (a) of § 1404 is as follows: "Subsection (a) was drafted in accordance with the doctrine of forum non conveniens, permitting transfer to a more convenient forum, even though the venue is proper. As an example of the need of such a provision, see Baltimore & Ohio R. Co. v. Kepner, . . . 314 U. S. 44 , . . . which was prosecuted under the Federal Employer's Liability Act in New York, although the accident occurred and the employee resided in Ohio. The new subsection requires the court to determine that the transfer is necessary for convenience of the parties and witnesses, and further, that it is in the interest of justice to do so."

The Supreme Court ruled that a federal district court cannot transfer a civil case to another district solely based on the defendant's request if the plaintiff did not have the right to bring the case in that district. The power to transfer a case under 28 U.S.C. § 1404(a) depends on whether the plaintiff could have originally brought the action in the transferee district, regardless of the defendant's wishes or consent.

Lawsuits & Legal Procedures

Goldberg v. Kelly

https://supreme.justia.com/cases/federal/us/397/254/

U.S. Supreme Court Goldberg v. Kelly, 397 U.S. 254 (1970) Goldberg v. Kelly No. 62 Argued October 13, 1969 Decided March 23, 1970 397 U.S. 254 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK Syllabus Appellees are New York City residents receiving financial aid under the federally assisted Aid to Families with Dependent Children program or under New York State's general Home Relief program who allege that officials administering these programs terminated, or were about to terminate, such aid without prior notice and hearing, thereby denying them due process of law. The District Court held that only a pre-termination evidentiary hearing would satisfy the constitutional command, and rejected the argument of the welfare officials that the combination of the existing post-termination "fair hearing" and informal pre-termination review was sufficient. Held: 1. Welfare benefits are a matter of statutory entitlement for persons qualified to receive them, and procedural due process is applicable to their termination. Pp. 397 U. S. 261 -263. 2. The interest of the eligible recipient in the uninterrupted receipt of public assistance, which provides him with essential food, clothing, housing, and medical care, coupled with the State's interest that his payments not be erroneously terminated, clearly outweighs the State's competing concern to prevent any increase in its fiscal and administrative burdens. Pp. 397 U. S. 264 -266. 3. A pre-termination evidentiary hearing is necessary to provide the welfare recipient with procedural due process. Pp. 397 U. S. 264 , 397 U. S. 266 -271. (a) Such hearing need not take the form of a judicial or quasi -judicial trial, but the recipient must be provided with timely and adequate notice detailing the reasons for termination, and an effective opportunity to defend by confronting adverse witnesses and by presenting his own arguments and evidence orally before the decisionmaker. Pp. 397 U. S. 266 -270. Page 397 U. S. 255 (b) Counsel need not be furnished at the pre-termination hearing, but the recipient must be allowed to retain an attorney if he so desires. P. 397 U. S. 270 . (c) The decisionmaker need not file a full opinion or make formal findings of fact or conclusions of law, but should state the reason for his determination and indicate the evidence he relied on. P. 397 U. S. 271 . (d) The decisionmaker must be impartial, and, although prior involvement in some aspects of a case will not necessarily bar a welfare official from acting as decisionmaker, he should not have participated in making the determination under review. P. 397 U. S. 271 . 294 F. Supp. 893 , affirmed. MR. JUSTICE BRENNAN delivered the opinion of the Court. The question for decision is whether a State that terminates public assistance payments to a particular recipient without affording him the opportunity for an evidentiary hearing prior to termination denies the recipient procedural due process in violation of the Due Process Clause of the Fourteenth Amendment. This action was brought in the District Court for the Southern District of New York by residents of New Page 397 U. S. 256 York City receiving financial aid under the federally assisted program of Aid to Families with Dependent Children (AFDC) or under New York State's general Home Relief program. [ Footnote 1 ] Their complaint alleged that the New York State and New York City officials administering these programs terminated, or were about to terminate, such aid without prior notice and hearing, thereby denying them due process of law. [ Footnote 2 ] At the time Page 397 U. S. 257 the suits were filed, there was no requirement of prior notice or hearing of any kind before termination of financial aid. However, the State and city adopted procedures for notice and hearing after the suits were brought, and the plaintiffs, appellees here, then challenged the constitutional adequacy of those procedures. The State Commissioner of Social Services amended the State Department of Social Services' Official Regulations to require that local social services officials proposing to discontinue or suspend a recipient's financial aid do so according to a procedure that conforms to either subdivision (a) or subdivision (b) of § 351.26 of the regulations as amended. [ Footnote 3 ] The City of New York Page 397 U. S. 258 elected to promulgate a local procedure according to subdivision (b). That subdivision, so far as here pertinent, provides that the local procedure must include the giving of notice to the recipient of the reasons for a proposed discontinuance or suspension at least seven days prior to its effective date, with notice also that, upon request, the recipient may have the proposal reviewed by a local welfare official holding a position superior to that of the supervisor who approved the proposed discontinuance or suspension, and, further, that the recipient may submit, for purposes of the review, a written statement to demonstrate why his grant should not be discontinued or suspended. The decision by the reviewing official whether to discontinue or suspend aid must be made expeditiously, with written notice of the decision to the recipient. The section further expressly provides that "[a]ssistance shall not be discontinued or suspended prior to the date such notice of decision is sent to the recipient and his representative, if any, or prior to the proposed effective date of discontinuance or suspension, whichever occurs later." Pursuant to subdivision (b), the New York City Department of Social Services promulgated Procedure No. 68-18. A caseworker who has doubts about the recipient's continued eligibility must first discuss them with the recipient. If the caseworker concludes that the recipient is no longer eligible, he recommends termination Page 397 U. S. 259 of aid to a unit supervisor. If the latter concurs, he sends the recipient a letter stating the reasons for proposing to terminate aid and notifying him that, within seven days, he may request that a higher official review the record, and may support the request with a written statement, prepared personally or with the aid of an attorney or other person. If the reviewing official affirms the determination of ineligibility, aid is stopped immediately and the recipient is informed by letter of the reasons for the action. Appellees' challenge to this procedure emphasizes the absence of any provisions for the personal appearance of the recipient before the reviewing official, for oral presentation of evidence, and for confrontation and cross-examination of adverse witnesses. [ Footnote 4 ] However, the letter does inform the recipient that he may request a post-termination "fair hearing." [ Footnote 5 ] This is a proceeding before an independent Page 397 U. S. 260 state hearing officer at which the recipient may appear personally, offer oral evidence, confront and cross-examine the witnesses against him, and have a record made of the hearing. If the recipient prevails at the "fair hearing," he is paid all funds erroneously withheld. [ Footnote 6 ] HEW Handbook, pt. IV, §§ 6200-6500; 18 NYCRR §§ 4.2-84.23. A recipient whose aid is not restored by a "fair hearing" decision may have judicial review. N.Y.Civil Practice Law and Rules, Art. 78 (1963). The recipient is so notified, 18 NYCRR § 84.16. I The constitutional issue to be decided, therefore, is the narrow one whether the Due Process Clause requires that the recipient he afforded an evidentiary hearing before the termination of benefits. [ Footnote 7 ] The District Court held Page 397 U. S. 261 that only a pre-termination evidentiary hearing would satisfy the constitutional command, and rejected the argument of the state and city officials that the combination of the post-termination "fair hearing" with the informal pre-termination review disposed of all due process claims. The court said: "While post-termination review is relevant, there is one overpowering fact which controls here. By hypothesis, a welfare recipient is destitute, without funds or assets. . . . Suffice it to say that to cut off a welfare recipient in the face of . . . 'brutal need' without a prior hearing of some sort is unconscionable unless overwhelming considerations justify it." Kelly v. Wyman, 294 F. Supp. 893 , 899, 900 (1968). The court rejected the argument that the need to protect the public's tax revenues supplied the requisite "overwhelming consideration." "Against the justified desire to protect public funds must be weighed the individual's overpowering need in this unique situation not to be wrongfully deprived of assistance. . . . While the problem of additional expense must be kept in mind, it does not justify denying a hearing meeting the ordinary standards of due process. Under all the circumstances, we hold that due process requires an adequate hearing before termination of welfare benefits, and the fact that there is a later constitutionally fair proceeding does not alter the result." Id. at 901. Although state officials were party defendants in the action, only the Commissioner of Social Services of the City of New York appealed. We noted probable jurisdiction, 394 U.S. 971 (1969), to decide important issues that have been the subject of disagreement in principle between the three-judge court in the present case and that convened in Wheeler v. Montgomery, No. 14, post, p. 397 U. S. 280 , also decided today. We affirm. Appellant does not contend that procedural due process is not applicable to the termination of welfare benefits. Page 397 U. S. 262 Such benefits are a matter of statutory entitlement for persons qualified to receive them. [ Footnote 8 ] Their termination involves state action that adjudicates important rights. The constitutional challenge cannot be answered by an argument that public assistance benefits are "a privilege,' and not a 'right.'" Shapiro v. Thompson, 394 U. S. 618 , 394 U. S. 627 n. 6 (1969). Relevant constitutional restraints apply as much to the withdrawal of public assistance benefits as to disqualification for unemployment compensation, Sherbert v. Verner, 374 U. S. 398 (1963); or to denial of a tax exemption, Speiser v. Randall, 357 U. S. 513 (1958); or to discharge from public employment, Slochower v. Board of Higher Education, 350 U. S. 551 (1956). [ Footnote 9 ] The extent to which procedural due process Page 397 U. S. 263 must be afforded the recipient is influenced by the extent to which he may be "condemned to suffer grievous loss," Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123 , 341 U. S. 168 (1951) (Frankfurter, J., concurring), and depends upon whether the recipient's interest in avoiding that loss outweighs the governmental interest in summary adjudication. Accordingly, as we said in Cafeteria & Restaurant Workers Union v. McElroy, 367 U. S. 886 , 367 U. S. 895 (1961), "consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved, as well as of the private interest that has been affected by governmental action." See also Hannah v. Larche, 363 U. S. 420 , 363 U. S. 440 , 442 (1960). It is true, of course, that some governmental benefits may be administratively terminated without affording the recipient a pre-termination evidentiary hearing. [ Footnote 10 ] Page 397 U. S. 264 But we agree with the District Court that, when welfare is discontinued, only a pre-termination evidentiary hearing provides the recipient with procedural due process. Cf. Sniadach v. Family Finance Corp., 395 U. S. 337 (1969). For qualified recipients, welfare provides the means to obtain essential food, clothing, housing, and medical care. [ Footnote 11 ] Cf. Nash v. Florida Industrial Commission, 389 U. S. 235 , 389 U. S. 239 (1967). Thus, the crucial factor in this context -- a factor not present in the case of the blacklisted government contractor, the discharged government employee, the taxpayer denied a tax exemption, or virtually anyone else whose governmental entitlements are ended -- is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. Since he lacks independent resources, his situation becomes immediately desperate. His need to concentrate upon finding the means for daily subsistence, in turn, adversely affects his ability to seek redress from the welfare bureaucracy. [ Footnote 12 ] Moreover, important governmental interests are promoted by affording recipients a pre-termination evidentiary hearing. From its founding, the Nation's basic Page 397 U. S. 265 commitment has been to foster the dignity and wellbeing of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty. [ Footnote 13 ] This perception, against the background of our traditions, has significantly influenced the development of the contemporary public assistance system. Welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life of the community. At the same time, welfare guards against the societal malaise that may flow from a widespread sense of unjustified frustration and insecurity. Public assistance, then, is not mere charity, but a means to "promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity." The same governmental interests that counsel the provision of welfare, counsel as well its uninterrupted provision to those eligible to receive it; pre-termination evidentiary hearings are indispensable to that end. Appellant does not challenge the force of these considerations but argues that they are outweighed by countervailing governmental interests in conserving fiscal and administrative resources. These interests, the argument goes, justify the delay of any evidentiary hearing until after discontinuance of the grants. Summary adjudication protects the public fisc by stopping payments promptly upon discovery of reason to believe that a recipient is no longer eligible. Since most terminations are accepted without challenge, summary adjudication also conserves both the fisc and administrative time and energy by reducing the number of evidentiary hearings actually held. Page 397 U. S. 266 We agree with the District Court, however, that these governmental interests are not overriding in the welfare context. The requirement of a prior hearing doubtless involves some greater expense, and the benefits paid to ineligible recipients pending decision at the hearing probably cannot he recouped, since these recipients are likely to be judgment-proof. But the State is not without weapons to minimize these increased costs. Much of the drain on fiscal and administrative resources can be reduced by developing procedures for prompt pre-termination hearings and by skillful use of personnel and facilities. Indeed, the very provision for a post-termination evidentiary hearing in New York's Home Relief program is itself cogent evidence that the State recognizes the primacy of the public interest in correct eligibility determinations, and therefore in the provision of procedural safeguards. Thus, the interest of the eligible recipient in uninterrupted receipt of public assistance, coupled with the State's interest that his payments not be erroneously terminated, clearly outweighs the State's competing concern to prevent any increase in its fiscal and administrative burdens. As the District Court correctly concluded, "[t]he stakes are simply too high for the welfare recipient, and the possibility for honest error or irritable misjudgment too great, to allow termination of aid without giving the recipient a chance, if he so desires, to be fully informed of the case against him so that he may contest its basis and produce evidence in rebuttal." 294 F. Supp. at 904-905. II We also agree with the District Court, however, that the pre-termination hearing need not take the form of a judicial or quasi -judicial trial. We bear in mind that the statutory "fair hearing" will provide the recipient Page 397 U. S. 267 with a full administrative review. [ Footnote 14 ] Accordingly, the pre-termination hearing has one function only: to produce an initial determination of the validity of the welfare department's grounds for discontinuance of payments in order to protect a recipient against an erroneous termination of his benefits. Cf. Sniadach v. Family Finance Corp., 395 U. S. 337 , 395 U. S. 343 (1969) (HARLAN, J., concurring). Thus, a complete record and a comprehensive opinion, which would serve primarily to facilitate judicial review and to guide future decisions, need not be provided at the pre-termination stage. We recognize, too, that both welfare authorities and recipients have an interest in relatively speedy resolution of questions of eligibility, that they are used to dealing with one another informally, and that some welfare departments have very burdensome caseloads. These considerations justify the limitation of the pre-termination hearing to minimum procedural safeguards, adapted to the particular characteristics of welfare recipients, and to the limited nature of the controversies to be resolved. We wish to add that we, no less than the dissenters, recognize the importance of not imposing upon the States or the Federal Government in this developing field of law any procedural requirements beyond those demanded by rudimentary due process. "The fundamental requisite of due process of law is the opportunity to be heard." Grannis v. Ordean, 234 U. S. 385 , 234 U. S. 394 (1914). The hearing must be "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U. S. 545 , 380 U. S. 552 (1965). In the present context, these principles require that a recipient have timely and adequate notice detailing the reasons for a Page 397 U. S. 268 proposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally. These rights are important in cases such as those before us, where recipients have challenged proposed terminations as resting on incorrect or misleading factual premises or on misapplication of rules or policies to the facts of particular cases. [ Footnote 15 ] We are not prepared to say that the seven-day notice currently provided by New York City is constitutionally insufficient per se, although there may be cases where fairness would require that a longer time be given. Nor do we see any constitutional deficiency in the content or form of the notice. New York employs both a letter and a personal conference with a caseworker to inform a recipient of the precise questions raised about his continued eligibility. Evidently the recipient is told the legal and factual bases for the Department's doubts. This combination is probably the most effective method of communicating with recipients. The city's procedures presently do not permit recipients to appear personally, with or without counsel, before the official who finally determines continued eligibility. Thus, a recipient is not permitted to present evidence to that official orally, or to confront or cross-examine adverse witnesses. These omissions are fatal to the constitutional adequacy of the procedures. The opportunity to be heard must be tailored to the Page 397 U. S. 269 capacities and circumstances of those who are to be heard. [ Footnote 16 ] It is not enough that a welfare recipient may present his position to the decisionmaker in writing or second-hand through his caseworker. Written submissions are an unrealistic option for most recipients, who lack the educational attainment necessary to write effectively and who cannot obtain professional assistance. Moreover, written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decisionmaker appears to regard as important. Particularly where credibility and veracity are at issue, as they must be in many termination proceedings, written submissions are a wholly unsatisfactory basis for decision. The second-hand presentation to the decisionmaker by the caseworker has its own deficiencies; since the caseworker usually gathers the facts upon which the charge of ineligibility rests, the presentation of the recipient's side of the controversy cannot safely be left to him. Therefore, a recipient must be allowed to state his position orally. Informal procedures will suffice; in this context, due process does not require a particular order of proof or mode of offering evidence. Cf. HEW Handbook, pt. IV, § 6400(a). In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses. E.g., ICC v. Louisville & N. R. Co., 227 U. S. 88 , 227 U. S. 93 -94 (1913); Willner v. Committee on Character & Fitness, 373 U. S. 96 , 373 U. S. 103 -104 (1963). What we said in Page 397 U. S. 270 Greene v. McElroy, 360 U. S. 474 , 360 U. S. 496 -497 (1959), is particularly pertinent here: "Certain principles have remained relatively immutable in our jurisprudence. One of these is that, where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment. . . . This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, . . . but also in all types of cases where administrative . . . actions were under scrutiny." Welfare recipients must therefore be given an opportunity to confront and cross-examine the witnesses relied on by the department. "The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel." Powell v. Alabama, 287 U. S. 45 , 669 (1932). We do not say that counsel must be provided at the pre-termination hearing, but only that the recipient must be allowed to retain an attorney if he so desires. Counsel can help delineate the issues, present the factual contentions in an orderly manner, conduct cross-examination, and generally safeguard the Page 397 U. S. 271 interests of the recipient. We do not anticipate that this assistance will unduly prolong or otherwise encumber the hearing. Evidently, HEW has reached the same conclusion. See 45 CFR § 205.10, 34 Fed.Reg. 1144 (1969); 45 CFR § 220.25, 34 Fed.Reg. 13595 (1969). Finally, the decisionmaker's conclusion as to a recipient's eligibility must rest solely on the legal rules and evidence adduced at the hearing. Ohio Bell Tel. Co. v. PUC, 301 U. S. 292 (1937); United States v. Abilene & S. R. Co., 265 U. S. 274 , 265 U. S. 288 -289 (1924). To demonstrate compliance with this elementary requirement, the decisionmaker should state the reasons for his determination and indicate the evidence he relied on, cf. Wichita R. & Light Co. v. PUC, 260 U. S. 48 , 260 U. S. 57 -59 (1922), though his statement need not amount to a full opinion, or even formal findings of fact and conclusions of law. And, of course, an impartial decisionmaker is essential. Cf. In re Murchison, 349 U. S. 133 (1955); Wong Yang Sung v. McGrath, 339 U. S. 33 , 339 U. S. 45 -46 (1950). We agree with the District Court that prior involvement in some aspects of a case will not necessarily bar a welfare official from acting as a decisionmaker. He should not, however, have participated in making the determination under review. Affirmed. [For dissenting opinion of MR. CHIEF JUSTICE BURGER, see post, p. 397 U. S. 282 .] [For dissenting opinion of MR. JUSTICE, STEWART, see post, p. 397 U. S. 285 .] [ Footnote 1 ] AFDC was established by the Social Security Act of 1935, 49 Stat. 627, as amended, 42 U.S.C. §§ 601-610 (1964 ed. and Supp. IV). It is a categorical assistance program supported by federal grants-in-aid but administered by the States according to regulations of the Secretary of Health, Education, and Welfare. See N.Y. Social Welfare Law §§ 343-36 (1966). We considered other aspects of AFDC in King v. Smith, 392 U. S. 309 (1968), and in Shapiro v. Thompson, 394 U. S. 618 (1969). Home Relief is a general assistance program financed and administered solely by New York state and local governments. N.Y.Social Welfare Law §§ 157-165 (1966), since July 1, 1967, Social Services Law §§ 157-166. It assists any person unable to support himself or to secure support from other sources. Id. § 158. [ Footnote 2 ] Two suits were brought and consolidated in the District Court. The named plaintiffs were 20 in number, including intervenors. Fourteen had been or were about to be cut off from AFDC, and six from Home Relief. During the course of this litigation, most, though not all, of the plaintiffs either received a "fair hearing" ( see infra at 397 U. S. 259 -260) or were restored to the rolls without a hearing. However, even in many of the cases where payments have been resumed, the underlying questions of eligibility that resulted in the bringing of this suit have not been resolved. For example, Mrs. Altagracia Guzman alleged that she was in danger of losing AFDC payments for failure to cooperate with the City Department of Social Services in suing her estranged husband. She contended that the departmental policy requiring such cooperation was inapplicable to the facts of her case. The record shows that payments to Mrs. Guzman have not been terminated, but there is no indication that the basic dispute over her duty to cooperate has been resolved, or that the alleged danger of termination has been removed. Home Relief payments to Juan DeJesus were terminated because he refused to accept counseling and rehabilitation for drug addiction. Mr. DeJesus maintains that he does not use drugs. His payments were restored the day after his complaint was filed. But there is nothing in the record to indicate that the underlying factual dispute in his case has been settled. [ Footnote 3 ] The adoption in February, 1968, and the amendment in April of Regulation § 51.26 coincided with or followed several revisions by the Department of Health, Education, and Welfare of its regulations implementing 42 U.S.C. § 602(a)(4), which is the provision of the Social Security Act that requires a State to afford a "fair hearing" to any recipient of aid under a federally assisted program before termination of his aid becomes final. This requirement is satisfied by a post-termination "fair hearing" under regulations presently in effect. See HEW Handbook of Public Assistance Administration (hereafter HEW Handbook), pt. IV, §§ 6200-6400. A new HEW regulation, 34 Fed.Reg. 1144 (1969), now scheduled to take effect in July, 1970, 34 Fed.Reg. 13595 (1969), would require continuation of AFDC payments until the final decision after a "fair hearing," and would give recipients a right to appointed counsel at "fair hearings." 45 CFR § 205.10, 34 Fed.Reg. 1144 (1969); 45 CFR § 220.25, 34 Fed.Reg. 1356 (1969). For the safeguards specified at such "fair hearings," see HEW Handbook, pt. IV, §§ 6200-6400. Another recent regulation now in effect requires a local agency administering AFDC to give "advance notice of questions it has about an individual's eligibility so that a recipient has an opportunity to discuss his situation before receiving formal written notice of reduction in payment or termination of assistance." Id. pt. IV, § 2300(d)(5). This case presents no issue of the validity or construction of the federal regulations. It is only subdivision (b) of § 351.26 of the New York State regulations and implementing procedure 68-18 of New York City that pose the constitutional question before us. Cf. Shapiro v. Thompson, 394 U. S. 618 , 394 U. S. 641 (1969). Even assuming that the constitutional question might be avoided in the context of AFDC by construction of the Social Security Act. or of the present federal regulations thereunder, or by waiting for the new regulations to become effective, the question must be faced and decided in the context of New York's Home Relief program, to which the procedures also apply. [ Footnote 4 ] These omissions contrast with the provisions of subdivision (a) of § 351.26, the validity of which is not at issue in this Court. That subdivision also requires written notification to the recipient, at least seven days prior to the proposed effective date, of the reasons for the proposed discontinuance or suspension. However, the notification must further advise the recipient that, if he makes a request therefor, he will be afforded an opportunity to appear at a time and place indicated before the official identified in the notice, who will review his case with him and allow him to present such written and oral evidence as the recipient may have to demonstrate why aid should not be discontinued or suspended. The District Court assumed that subdivision (a) would be construed to afford rights of confrontation and cross-examination and a decision based solely on the record. 294 F. Supp. 893 , 906-907 (1968). [ Footnote 5 ] N.Y.Social Welfare Law § 353(2) (1966) provides for a post-termination "fair hearing" pursuant to 42 U.S.C. § 602(a)(4). See n 3, supra. Although the District Court noted that HEW had raised some objections to the New York "fair hearing" procedures, 294 F. Supp. at 898 n. 9, these objections are not at issue in this Court. Shortly before this suit was filed, New York State adopted a similar provision for a "fair hearing" in terminations of Home Relief. 18 NYCRR §§ 84.2-84.23. In both AFDC and Home Relief, the "fair hearing" must be held within 10 working days of the request, § 84.6, with decision within 12 working days thereafter, § 84.15. It was conceded in oral argument that these time limits are not in fact, observed. [ Footnote 6 ] Current HEW regulations require the States to make full retroactive payments (with federal matching funds) whenever a "fair hearing" results in a reversal of a termination of assistance. HEW Handbook, pt. IV, §§ 6200(k), 6300(g), 6500 (a); see 18 NYCRR § 358.8. Under New York State regulations, retroactive payments can also be made, with certain limitations, to correct an erroneous termination discovered before a "fair hearing" has been held. 18 NYCRR § 351.27. HEW regulations also authorize, but do not require, the States to continue AFDC payments without loss of federal matching funds pending completion of a "fair hearing." HEW Handbook, pt. IV, § 6500(b). The new HEW regulations, presently scheduled to become effective July 1, 1970, will supersede all of these provisions. See n 3, supra. [ Footnote 7 ] Appellant does not question the recipient's due process right to evidentiary review after termination. For a general discussion of the provision of an evidentiary hearing prior to termination, see Comment, The Constitutional Minimum for the Termination of Welfare Benefits: The Need for and Requirements of a Prior Hearing, 68 Mich.L.Rev. 112 (1969). [ Footnote 8 ] It may be realistic today to regard welfare entitlements as more like "property" than a "gratuity." Much of the existing wealth in this country takes the form of rights that do not fall within traditional common law concepts of property. It has been aptly noted that "[s]ociety today is built around entitlement. The automobile dealer has his franchise, the doctor and lawyer their professional licenses, the worker his union membership, contract, and pension rights, the executive his contract and stock options; all are devices to aid security and independence. Many of the most important of these entitlements now flow from government: subsidies to farmers and businessmen, routes for airlines and channels for television stations; long-term contracts for defense, space, and education; social security pensions for individuals. Such sources of security, whether private or public, are no longer regarded as luxuries or gratuities; to the recipients, they are essentials, fully deserved, and in no sense a form of charity. It is only the poor whose entitlements, although recognized by public policy, have not been effectively enforced." Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245, 1255 (1965). See also Reich, The New Property, 73 Yale L.J. 733 (1964). [ Footnote 9 ] See also Goldsmith v. United States Board of Tax Appeals, 270 U. S. 117 (1926) (right of a certified public accountant to practice before the Board of Tax Appeals); Hornsby v. Allen, 326 F.2d 605 (C.A. 5th Cir. 1964) (right to obtain a retail liquor store license); Dixon v. Alabama State Board of Education, 294 F.2d 150 (C.A. 5th Cir.), cert. denied, 368 U.S. 930 (1961) (right to attend a public college). [ Footnote 10 ] One Court of Appeals has stated: "In a wide variety of situations, it has long been recognized that, where harm to the public is threatened, and the private interest infringed is reasonably deemed to be of less importance, an official body can take summary action pending a later hearing." R. A. Holman & Co. v. SEC, 112 U.S.App.D.C. 43, 47, 299 F.2d 127, 131, cert. denied, 370 U.S. 911 (1962) (suspension of exemption from stock registration requirement). See also for example, Ewing v. Mytinger & Casselberry, Inc., 339 U. S. 594 (1950) (seizure of mislabeled vitamin product); North American Cold Storage Co. v. Chicago, 211 U. S. 306 (1908) (seizure of food not fit for human use); Yakus v. United States, 321 U. S. 414 (1944) (adoption of wartime price regulations); Gonzalez v. Freeman, 118 U.S.App.D.C. 180, 334 F.2d 570 (1964) (disqualification of a contractor to do business with the Government). In Cafeteria & Restaurant Workers Union v. McElroy, supra, at 367 U. S. 896 , summary dismissal of a public employee was upheld because, "[i]n [its] proprietary military capacity, the Federal Government . . . has traditionally exercised unfettered control," and because the case involved the Government's "dispatch of its own internal affairs." Cf. Perkins v. Lukens Steel Co., 310 U. S. 113 (1940). [ Footnote 11 ] Administrative determination that a person is ineligible for welfare may also render him ineligible for participation in state-financed medical programs. See N.Y.Social Welfare Law § 366 (1966). [ Footnote 12 ] His impaired adversary position is particularly telling in light of the welfare bureaucracy's difficulties in reaching correct decisions on eligibility. See Comment, Due Process and the Right to a Prior Hearing in Welfare Cases, 37 Ford.L.Rev. 604, 610-611 (1969). [ Footnote 13 ] See, e.g., Reich. supra, n 8, 74 Yale L.J. at 1255. [ Footnote 14 ] Due process does not, of course, require two hearings. If, for example, a State simply wishes to continue benefits until after a "fair" hearing, there will he no need for a preliminary hearing. [ Footnote 15 ] This case presents no question requiring our determination whether due process requires only an opportunity for written submission, or an opportunity both for written submission and oral argument, where there are no factual issues in dispute or where the application of the rule of law is not intertwined with factual issues. See FCC v. WJR, 337 U. S. 265 , 337 U. S. 275 -277 (1949). [ Footnote 16 ] "[T]he prosecution of an appeal demands a degree of security, awareness, tenacity, and ability which few dependent people have." Wedemeyer & Moore, The American Welfare System, 54 Calif.L.Rev. 326, 342 (1966). MR. JUSTICE BLACK, dissenting. In the last half century, the United States, along with many, perhaps most, other nations of the world, has moved far toward becoming a welfare state, that is, a nation that, for one reason or another, taxes its most Page 397 U. S. 272 affluent people to help support, feed, clothe, and shelter its less fortunate citizens. The result is that, today, more than nine million men, women, and children in the United States receive some kind of state or federally financed public assistance in the form of allowances or gratuities, generally paid them periodically, usually by the week, month, or quarter. [ Footnote 2/1 ] Since these gratuities are paid on the basis of need, the list of recipients is not static, and some people go off the lists and others are added from time to time. These ever-changing lists put a constant administrative burden on government, and it certainly could not have reasonably anticipated that this burden would include the additional procedural expense imposed by the Court today. The dilemma of the ever-increasing poor in the midst of constantly growing affluence presses upon us, and must inevitably be met within the framework of our democratic constitutional government if our system is to survive as such. It was largely to escape just such pressing economic problems and attendant government repression that people from Europe, Asia, and other areas settled this country and formed our Nation. Many of those settlers had personally suffered from persecutions of various kinds, and wanted to get away from governments that had unrestrained powers to make life miserable for their citizens. It was for this reason, or so I believe, that, on reaching these new lands, the early settlers undertook to curb their governments by confining their powers Page 397 U. S. 273 within written boundaries, which eventually became written constitutions. [ Footnote 2/2 ] They wrote their basic charters, as nearly as men's collective wisdom could do so, as to proclaim to their people and their officials an emphatic command that: "Thus, far and no farther shall you go, and where we neither delegate powers to you, nor prohibit your exercise of them, we the people are left free. [ Footnote 2/3 ]" Representatives of the people of the Thirteen Original Colonies spent long, hot months in the summer of 1787 in Philadelphia, Pennsylvania, creating a government of limited powers. They divided it into three departments -- Legislative, Judicial, and Executive. The Judicial Department was to have no part whatever in making any laws. In fact, proposals looking to vesting some power in the Judiciary to take part in the legislative process and veto laws were offered, considered, and rejected by the Constitutional Convention. [ Footnote 2/4 ] In my Page 397 U. S. 274 judgment, there is not one word, phrase, or sentence from the beginning to the end of the Constitution from which it can be inferred that judges were granted any such legislative power. True, Marbury v. Madison , 1 Cranch 137 (1803), held, and properly, I think, that courts must be the final interpreters of the Constitution, and I recognize that the holding can provide an opportunity to slide imperceptibly into constitutional amendment and law-making. But when federal judges use this judicial power for legislative purposes, I think they wander out of their field of vested powers and transgress into the area constitutionally assigned to the Congress and the people. That is precisely what I believe the Court is doing in this case. Hence, my dissent. The more than a million names on the relief rolls in New York, [ Footnote 2/5 ] and the more than nine million names on the rolls of all the 50 States were not put there at random. The names are there because state welfare officials believed that those people were eligible for assistance. Probably, in the officials' haste to make out the lists, many names were put there erroneously in order to alleviate immediate suffering, and undoubtedly some people are drawing relief who are not entitled under the law to do so. Doubtless some draw relief checks from time to time who know they are not eligible, either because they are not actually in need or for some other reason. Many of those who thus draw undeserved gratuities are without sufficient property to enable the government to collect back from them any money they wrongfully receive. But the Court today holds that it would violate the Due Process Clause of the Fourteenth Amendment to stop paying those people weekly or monthly allowances unless the government first affords them a full "evidentiary hearing," even Page 397 U. S. 275 though welfare officials are persuaded that the recipients are not rightfully entitled to receive a penny under the law. In other words, although some recipients might be on the lists for payment wholly because of deliberate fraud on their part, the Court holds that the government is helpless, and must continue, until after an evidentiary hearing, to pay money that it does not owe, never has owed, and never could owe. I do not believe there is any provision in our Constitution that should thus paralyze the government's efforts to protect itself against making payments to people who are not entitled to them. Particularly do I not think that the Fourteenth Amendment should be given such an unnecessarily broad construction. That Amendment came into being primarily to protect Negroes from discrimination, and while some of its language can and does protect others, all know that the chief purpose behind it was to protect ex-slaves. Cf. Adamson v. California, 332 U. S. 46 , 332 U. S. 71 -72, and n. 5 (1947) (dissenting opinion). The Court, however, relies upon the Fourteenth Amendment, and, in effect, says that failure of the government to pay a promised charitable instalment to an individual deprives that individual of his own property in violation of the Due Process Clause of the Fourteenth Amendment. It somewhat strains credulity to say that the government's promise of charity to an individual is property belonging to that individual when the government denies that the individual is honestly entitled to receive such a payment. I would have little, if any, objection to the majority's decision in this case if it were written as the report of the House Committee on Education and Labor, but, as an opinion ostensibly resting on the language of the Constitution, I find it woefully deficient. Once the verbiage is pared away, it is obvious that this Court today adopts the views of the District Court "that to cut off a welfare recipient in the face of . . . brutal need' without a prior Page 397 U. S. 276 hearing of some sort is unconscionable," and therefore, says the Court, unconstitutional. The majority reaches this result by a process of weighing "the recipient's interest in avoiding" the termination of welfare benefits against "the governmental interest in summary adjudication." Ante at 397 U. S. 263 . Today's balancing act requires a "pre-termination evidentiary hearing," yet there is nothing that indicates what tomorrow's balance will be. Although the majority attempts to bolster its decision with limited quotations from prior cases, it is obvious that today's result does not depend on the language of the Constitution itself or the principles of other decisions, but solely on the collective judgment of the majority as to what would be a fair and humane procedure in this case. This decision is thus only another variant of the view often expressed by some members of this Court that the Due Process Clause forbids any conduct that a majority of the Court believes "unfair," "indecent," or "shocking to their consciences." See, e.g., Rochin v. California, 342 U. S. 165 , 342 U. S. 172 (1952). Neither these words nor any like them appear anywhere in the Due Process Clause. If they did, they would leave the majority of Justices free to hold any conduct unconstitutional that they should conclude on their own to be unfair or shocking to them. [ Footnote 2/6 ] Had the drafters of the Due Process Clause meant to leave judges such ambulatory power to declare Page 397 U. S. 277 laws unconstitutional, the chief value of a written constitution, as the Founders saw it, would have been lost. In fact, if that view of due process is correct, the Due Process Clause could easily swallow up all other parts of the Constitution. And, truly, the Constitution would always be "what the judges say it is" at a given moment, not what the Founders wrote into the document. [ Footnote 2/7 ] A written constitution, designed to guarantee protection against governmental abuses, including those of judges, must have written standards that mean something definite and have an explicit content. I regret very much to be compelled to say that the Court today makes a drastic and dangerous departure from a Constitution written to control and limit the government and the judges, and moves toward a constitution designed to be no more and no less than what the judges of a particular social and economic philosophy declare, on the one hand, to be fair, or, on the other hand, to be shocking and unconscionable. The procedure required today as a matter of constitutional law finds no precedent in our legal system. Reduced to its simplest terms, the problem in this case is similar to that frequently encountered when two parties have an ongoing legal relationship that requires one party to make periodic payments to the other. Often the situation arises where the party "owing" the money stops paying it and justifies his conduct by arguing that the recipient is not legally entitled to payment. The recipient can, of course, disagree and go to court to compel payment. But I know of no situation in our legal system in which the person alleged to owe money to Page 397 U. S. 278 another is required by law to continue making payments to a judgment-proof claimant without the benefit of any security or bond to insure that these payments can be recovered if he wins his legal argument. Yet today's decision in no way obligates the welfare recipient to pay back any benefits wrongfully received during the pre-termination evidentiary hearings or post any bond, and, in all "fairness," it could not do so. These recipients are, by definition, too poor to post a bond or to repay the benefits that, as the majority assumes, must be spent as received to insure survival. The Court apparently feels that this decision will benefit the poor and needy. In my judgment, the eventual result will be just the opposite. While today's decision requires only an administrative, evidentiary hearing, the inevitable logic of the approach taken will lead to constitutionally imposed, time-consuming delays of a full adversary process of administrative and judicial review. In the next case, the welfare recipients are bound to argue that cutting off benefits before judicial review of the agency's decision is also a denial of due process. Since, by hypothesis, termination of aid at that point may still "deprive an eligible recipient of the very means by which to live while he waits," ante at 397 U. S. 264 , I would be surprised if the weighing process did not compel the conclusion that termination without full judicial review would be unconscionable. After all, at each step, as the majority seems to feel, the issue is only one of weighing the government's pocketbook against the actual survival of the recipient, and surely that balance must always tip in favor of the individual. Similarly today's decision requires only the opportunity to have the benefit of counsel at the administrative hearing, but it is difficult to believe that the same reasoning process would not require the appointment of counsel, for otherwise the right to counsel is a meaningless one, since these Page 397 U. S. 279 people are too poor to hire their own advocates. Cf. Gideon v. Wainwright, 372 U. S. 335 , 372 U. S. 344 (1963). Thus, the end result of today's decision may well be that the government, once it decides to give welfare benefits, cannot reverse that decision until the recipient has had the benefits of full administrative and Judicial review, including, of course, the opportunity to present his case to this Court. Since this process will usually entail a delay of several years, the inevitable result of such a constitutionally imposed burden will be that the government will not put a claimant on the rolls initially until it has made an exhaustive investigation to determine his eligibility. While this Court will perhaps have insured that no needy person will be taken off the rolls without a full "due process" proceeding, it will also have insured that many will never get on the rolls, or at least that they will remain destitute during the lengthy proceedings followed to determine initial eligibility. For the foregoing reasons, I dissent from the Court's holding. The operation of a welfare state is a new experiment for our Nation. For this reason, among others, I feel that new experiments in carrying out a welfare program should not be frozen into our constitutional structure. They should be left, as are other legislative determinations, to the Congress and the legislatures that the people elect to make our laws. [ Footnote 2/1 ] This figure includes all recipients of Old-age Assistance, Aid to Families with Dependent Children, Aid to the Blind, Aid to the Permanently and Totally Disabled, and general assistance. In this case, appellants are AFDC and general assistance recipients. In New York State alone, there are 951,000 AFDC recipients and 108,000 on general assistance. In the Nation as a whole, the comparable figures are 6,080,000 and 391,000. U.S. Bureau of the Census, Statistical Abstract of the United States: 1969 (90th ed.), Table 435, p. 27. [ Footnote 2/2 ] The goal of a written constitution with fixed limits on governmental power had long been desired. Prior to our colonial constitutions, the closest man had come to realizing this goal was the political movement of the Levellers in England in the 1640's. J. Frank, The Levellers (1955). In 1647, the Levellers proposed the adoption of An Agreement of the People which set forth written limitations on the English Government. This proposal contained many of the ideas which later were incorporated in the constitutions of this Nation. Id. at 135-147. [ Footnote 2/3 ] This command is expressed in the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." [ Footnote 2/4 ] It was proposed that members of the judicial branch would sit on a Council of Revision which would consider legislation and have the power to veto it. This proposal was rejected. J. Elliot, 1 Elliot's Debates 160, 164, 214 (Journal of the Federal Convention); 395, 39 (Yates' Minutes); vol. 5, pp.151, 164 166, 344-349 (Madison's notes) (Lippincott ed. 1876). It was also suggested that The Chief Justice would serve as a member of the President's executive council, but this proposal was similarly rejected. Id., vol. 5, pp. 442, 445, 446, 462. [ Footnote 2/5 ] See 397 U.S. 254 fn2/1|>n. 1, supra. [ Footnote 2/6 ] I am aware that some feel that the process employed in reaching today's decision is not dependent on the individual views of the Justices involved, but is a mere objective search for the "collective conscience of mankind;" but, in my view, that description is only a euphemism for an individual's judgment. Judges are as human as anyone, and as likely as others to see the world through their own eyes and find the "collective conscience" remarkably similar to their own. Cf. Griswold v. Connecticut, 381 U. S. 479 , 381 U. S. 518 -519 (1965) (BLACK, J., dissenting); Sniadach v. Family Finance Corp., 395 U. S. 337 , 395 U. S. 350 -351 (1969) (BLACK, J., dissenting). [ Footnote 2/7 ] To realize how uncertain a standard of "fundamental fairness" would be, one has only to reflect for a moment on the possible disagreement if the "fairness" of the procedure in this case were propounded to the head of the National Welfare Rights Organization, the president of the national Chamber of Commerce, and the chairman of the John Birch Society.

In Goldberg v. Kelly, the US Supreme Court ruled that welfare benefits are a statutory entitlement and recipients have a right to procedural due process before these benefits can be terminated. The Court held that a pre-termination evidentiary hearing is necessary, but it need not be a formal trial. Recipients must receive timely notice, have the opportunity to defend themselves, and be allowed to retain an attorney if desired. The decision-maker must be impartial and state the reasons for their determination. This case affirmed the rights of welfare recipients and set a precedent for procedural due process in similar cases.

Lawsuits & Legal Procedures

Beacon Theatres, Inc. v. Westover

https://supreme.justia.com/cases/federal/us/359/500/

U.S. Supreme Court Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959) Beacon Theatres, Inc. v. Westover No. 45 Argued December 10, 1958 Decided May 25, 1959 359 U.S. 500 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus In anticipation of a suit by petitioner for treble damages under the Sherman and Clayton Acts, the prospective defendant brought suit against petitioner in a Federal District Court for a declaratory judgment which would have settled some of the key issues in such an antitrust suit, and prayed that the bringing of such a suit be enjoined pending outcome of the declaratory judgment litigation. Petitioner filed a counterclaim raising the issues which would have been raised in the antitrust suit for treble damages, and demanded a jury trial. Purporting to act in the exercise of its discretion under Rules 42(b) and 57 of the Federal Rules of Civil Procedure, the District Court ruled that it would try in equity, without a jury, the issues common to both proceedings before trying petitioner's counterclaim. The Court of Appeals held that the District Court had acted within the proper scope of its discretion, and it denied petitioner's application for a writ of mandamus requiring the District Court to set aside its ruling. Held: the judgment of the Court of Appeals is reversed. Pp. 359 U. S. 501 -511. 1. The District Court's finding that the complaint for declaratory relief presented basically equitable issues draws no support from the Declaratory Judgment Act, which specifically preserves the right to a jury trial for both parties. P. 359 U. S. 504 . 2. If petitioner would have been entitled to a jury trial in a treble damage suit, he cannot be deprived of that right merely because the prospective defendant took advantage of the availability of declaratory relief to sue petitioner first. P. 359 U. S. 504 . 3. Since the right to trial by jury applies to treble damage suits under the antitrust laws, and is an essential part of the congressional plan for making competition, rather than monopoly, the rule of trade, the antitrust issues raised in the declaratory judgment suit were essentially jury questions. P. 359 U. S. 504 . 4. Assuming that the pleadings can be construed to support a request for an injunction against threats of lawsuits, and as alleging the kind of harassment by a multiplicity of lawsuits which would traditionally have justified equity in taking jurisdiction and settling Page 359 U. S. 501 the case in one suit, nevertheless, under the Declaratory Judgment Act and the Federal Rules of Civil Procedure, neither claim can justify denying petitioner a trial by jury of all the issues in the antitrust controversy. Pp. 359 U. S. 506 -511. (a) Today, the existence of irreparable harm and inadequacy of legal remedies as a basis of injunctive relief must be determined not by precedents under discarded procedures, but in the light of the remedies now made available by the Declaratory Judgment Act and the Federal Rules of Civil Procedure. Pp. 359 U. S. 506 -510. (b) Viewed in this manner, the use of discretion by the District Court under Rule 42(b) to deprive petitioner of a full jury trial of the issues in the antitrust controversy cannot be justified. P. 359 U. S. 508 . 5. Mandamus is available under the All Writs Act, 28 U.S.C. § 1651, to require jury trial where it has been improperly denied. P. 359 U. S. 511 . 252 F.2d 864 reversed. MR. JUSTICE BLACK delivered the opinion of the Court. Petitioner, Beacon Theatres, Inc., sought by mandamus to require a district judge in the Southern District of California to vacate certain orders alleged to deprive it of a jury trial of issues arising in a suit brought against it by Fox West Coast Theatres, Inc. The Court of Appeals for the Ninth Circuit refused the writ, holding that the trial judge had acted within his proper discretion in denying petitioner's request for a jury. 252 F.2d 864. We granted certiorari, 356 U.S. 956, because "Maintenance of the jury as a factfinding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care." Dimick v. Schiedt, 293 U. S. 474 , 293 U. S. 486 . Page 359 U. S. 502 Fox had asked for declaratory relief against Beacon, alleging a controversy arising under the Sherman Antitrust Act, 26 Stat. 209, as amended, 15 U.S.C. §§ 1, 2, and under the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15, which authorizes suits for treble damages against Sherman Act violators. According to the complaint, Fox operates a movie theatre in San Bernardino, California, and has long been exhibiting films under contracts with movie distributors. These contracts grant it the exclusive right to show "first run" pictures in the "San Bernardino competitive area" and provide for "clearance" -- a period of time during which no other theatre can exhibit the same pictures. After building a drive-in theatre about 11 miles from San Bernardino, Beacon notified Fox that it considered contracts barring simultaneous exhibitions of first-run films in the two theatres to be overt acts in violation of the antitrust laws. [ Footnote 1 ] Fox's complaint alleged that this notification, together with threats of treble damage suits against Fox and its distributors, gave rise to "duress and coercion" which deprived Fox of a valuable property right, the right to negotiate for exclusive first-run contracts. Unless Beacon was restrained, the complaint continued, irreparable harm would result. Accordingly, while its pleading was styled a "Complaint for Declaratory Relief," Fox prayed both for a declaration that a grant of clearance between the Fox and Beacon theatres is reasonable and Page 359 U. S. 503 not in violation of the antitrust laws, and for an injunction, pending final resolution of the litigation, to prevent Beacon from instituting any action under the antitrust laws against Fox and its distributors arising out of the controversy alleged in the complaint. [ Footnote 2 ] Beacon filed an answer, a counterclaim against Fox, and a cross-claim against an exhibitor who had intervened. These denied the threats and asserted that there was no substantial competition between the two theatres, that the clearances granted were therefore unreasonable, and that a conspiracy existed between Fox and its distributors to manipulate contracts and clearances so as to restrain trade and monopolize first-run pictures in violation of the antitrust laws. Treble damages were asked. Beacon demanded a jury trial of the factual issues in the case, as provided by Federal Rule of Civil Procedure 38(b). The District Court, however, viewed the issues raised by the "Complaint for Declaratory Relief," including the question of competition between the two theatres, as essentially equitable. Acting under the purported authority of Rules 42(b) and 57, it directed that these issues be tried to the court before jury determination of the validity of the charges of antitrust violations made in the counterclaim and cross-claim. [ Footnote 3 ] A common issue of the "Complaint for Declaratory Relief," the counterclaim, and the cross-claim was the reasonableness of the clearances granted to Fox, which depended, in part, on the Page 359 U. S. 504 existence of competition between the two theatres. Thus, the effect of the action of the District Court could be, as the Court of Appeals believed, "to limit the petitioner's opportunity fully to try to a jury every issue which has a bearing upon its treble damage suit," for determination of the issue of clearances by the judge might "operate either by way of res judicata or collateral estoppel so as to conclude both parties with respect thereto at the subsequent trial of the treble damage claim." 252 F.2d at 874. The District Court's finding that the Complaint for Declaratory Relief presented basically equitable issues draws no support from the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202; Fed.Rules Civ.Proc. 57. See also 48 Stat. 955, 28 U.S.C. (1940 ed.) § 400. That statute, while allowing prospective defendants to sue to establish their nonliability, specifically preserves the right to jury trial for both parties. [ Footnote 4 ] It follows that, if Beacon would have been entitled to a jury trial in a treble damage suit against Fox, it cannot be deprived of that right merely because Fox took advantage of the availability of declaratory relief to sue Beacon first. Since the right to trial by jury applies to treble damage suits under the antitrust laws, and is, in fact, an essential part of the congressional plan for making competition, rather than monopoly, the rule of trade, see Fleitmann v. Welsbach Street Lighting Co., 240 U. S. 27 , 240 U. S. 29 , the Sherman and Clayton Act issues on which Fox sought a declaration were essentially jury questions. Nevertheless, the Court of Appeals refused to upset the order of the district judge. It held that the question of whether a right to jury trial existed was to be judged Page 359 U. S. 505 by Fox's complaint read as a whole. In addition to seeking a declaratory judgment, the court said, Fox's complaint can be read as making out a valid plea for injunctive relief, thus stating a claim traditionally cognizable in equity. A party who is entitled to maintain a suit in equity for an injunction, said the court, may have all the issues in his suit determined by the judge without a jury, regardless of whether legal rights are involved. The court then rejected the argument that equitable relief, traditionally available only when legal remedies are inadequate, was rendered unnecessary in this case by the filing of the counterclaim and cross-claim which presented all the issues necessary to a determination of the right to injunctive relief. Relying on American Life Ins. Co. v. Stewart, 300 U. S. 203 , 300 U. S. 215 , decided before the enactment of the Federal Rules of Civil Procedure, it invoked the principle that a court sitting in equity could retain jurisdiction even though later a legal remedy became available. In such instances, the equity court had discretion to enjoin the later lawsuit in order to allow the whole dispute to be determined in one case in one court. [ Footnote 5 ] Reasoning by analogy, the Court of Appeals held it was not an abuse of discretion for the district judge, acting under Federal Rule of Civil Procedure 42(b), to try the equitable cause first, even though this might, through collateral estoppel, prevent a full jury trial of the counterclaim and cross-claim which were as effectively stopped as by an equity injunction. [ Footnote 6 ] Page 359 U. S. 506 Beacon takes issue with the holding of the Court of Appeals that the complaint stated a claim upon which equitable relief could be granted. As initially filed, the complaint alleged that threats of lawsuits by petitioner against Fox and its distributors were causing irreparable harm to Fox's business relationships. The prayer for relief, however, made no mention of the threats, but asked only that, pending litigation of the claim for declaratory judgment, Beacon be enjoined from beginning any lawsuits under the antitrust laws against Fox and its distributors arising out of the controversy alleged in the complaint. Evidently of the opinion that this prayer did not state a good claim for equitable relief, the Court of Appeals construed it to include a request for an injunction against threats of lawsuits. This liberal construction of a pleading is in line with Rule 8 of the Federal Rules of Civil Procedure. See Conley v. Gibson, 355 U. S. 41 , 355 U. S. 47 -48. But this fact does not solve our problem. Assuming that the pleadings can be construed to support such a request, and assuming additionally that the complaint can be read as alleging the kind of harassment by a multiplicity of lawsuits which would traditionally have justified equity to take jurisdiction and settle the case in one suit, [ Footnote 7 ] we are nevertheless of the opinion that, under the Declaratory Judgment Act and the Federal Rules of Civil Procedure, neither claim can justify denying Beacon a trial by jury of all the issues in the antitrust controversy. The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal Page 359 U. S. 507 remedies. [ Footnote 8 ] At least as much is required to justify a trial court in using its discretion under the Federal Rules to allow claims of equitable origins to be tried ahead of legal ones, since this has the same effect as an equitable injunction of the legal claims. And it is immaterial, in judging if that discretion is properly employed, that, before the Federal Rules and the Declaratory Judgment Act were passed, courts of equity, exercising a jurisdiction separate from courts of law, were, in some cass, allowed to enjoin subsequent legal actions between the same parties involving the same controversy. This was because the subsequent legal action, though providing an opportunity to try the case to a jury, might not protect the right of the equity plaintiff to a fair and orderly adjudication of the controversy. See, e.g., New York Life Ins. Co. v. Seymour, 45 F.2d 47. Under such circumstances, the legal remedy could quite naturally be deemed inadequate. Inadequacy of remedy and irreparable harm are practical terms, however. As such, their existence today must be determined not by precedents decided under discarded procedures, but in the light of the remedies now made available by the Declaratory Judgment Act and the Federal Rules. [ Footnote 9 ] Page 359 U. S. 508 Viewed in this manner, the use of discretion by the trial court under Rule 42(b) to deprive Beacon of a full jury trial on its counterclaim and cross-claim, as well as on Fox's plea for declaratory relief, cannot be justified. Under the Federal Rules, the same court may try both legal and equitable causes in the same action. Fed.Rules Civ.Proc. 1, 2, 18. Thus, any defenses, equitable or legal, Fox may have to charges of antitrust violations can be raised either in its suit for declaratory relief or in answer to Beacon's counterclaim. On proper showing, harassment by threats of other suits, or other suits actually brought, involving the issues being tried in this case, could be temporarily enjoined pending the outcome of this litigation. Whatever permanent injunctive relief Fox might be entitled to on the basis of the decision in this case could, of course, be given by the court after the jury renders its verdict. In this way, the issues between these parties could be settled in one suit giving Beacon a full jury trial of every antitrust issue. Cf. Ring v. Spina, 166 F.2d 546. By contrast, the holding of the court below while granting Fox no additional protection unless the avoidance of jury trial be considered as such, would compel Beacon to split his antitrust case, trying part to a judge and part to a jury. [ Footnote 10 ] Such a result, which involves the postponement and subordination of Fox's own legal claim for declaratory relief, as well as of the counterclaim which Beacon was compelled by the Federal Rules to bring, [ Footnote 11 ] is not permissible. Our decision is consistent with the plan of the Federal Rules and the Declaratory Judgment Act to effect Page 359 U. S. 509 substantial procedural reform while retaining a distinction between jury and nonjury issues and leaving substantive rights unchanged. [ Footnote 12 ] Since, in the federal courts, equity has always acted only when legal remedies were inadequate, [ Footnote 13 ] the expansion of adequate legal remedies provided by the Declaratory Judgment Act and the Federal Rules necessarily affects the scope of equity. Thus, the justification for equity's deciding legal issues once it obtains jurisdiction, and refusing to dismiss a case merely because subsequently a legal remedy becomes available, must be reevaluated in the light of the liberal joinder provisions of the Federal Rules which allow legal and equitable causes to be brought and resolved in one civil action. [ Footnote 14 ] Similarly, the need for, and therefore the availability of, such equitable remedies as Bills of Peace, Quia Timet, and Injunction must be reconsidered in view of the existence of the Declaratory Judgment Act, as well as the liberal joinder provision of the Rules. [ Footnote 15 ] This is not only in accord with the spirit of the Rules and the Act, Page 359 U. S. 510 but is required by the provision in the Rules that "[t]he right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved . . . inviolate. [ Footnote 16 ]" If there should be cases where the availability of declaratory judgment or joinder in one suit of legal and equitable causes would not in all respects protect the plaintiff seeking equitable relief from irreparable harm while affording a jury trial in the legal cause, the trial court will necessarily have to use its discretion in deciding whether the legal or equitable cause should be tried first. Since the right to jury trial is a constitutional one, however, while no similar requirement protects trials by the court, [ Footnote 17 ] that discretion is very narrowly limited, and must, wherever possible, be exercised to preserve jury trial. As this Court said in Scott v. Neely, 140 U. S. 106 , 140 U. S. 109 -110: "In the Federal courts, this [jury] right cannot be dispensed with except by the assent of the parties entitled to it, nor can it be impaired by any blending with a claim, properly cognizable at law, of a demand for equitable relief in aid of the legal action, or during its pendency. [ Footnote 18 ]" This longstanding principle of equity dictates that only under the Page 359 U. S. 511 most imperative circumstances, circumstances which, in view of the flexible procedures of the Federal Rules, we cannot now anticipate, [ Footnote 19 ] can the right to a jury trial of legal issues be lost through prior determination of equitable claims. See Leimer v. Woods, 196 F.2d 828, 833-836. As we have shown, this is far from being such a case. Respondent claims mandamus is not available under the All Writs Act, 28 U.S.C. § 1651. Whatever differences of opinion there may be in other types of cases, we think the right to grant mandamus to require jury trial where it has been improperly denied is settled. [ Footnote 20 ] The judgment of the Court of Appeals is Reversed. MR. JUSTICE FRANKFURTER took no part in the consideration or decision of this case. [ Footnote 1 ] Beacon allegedly stated that the clearances granted violated both the antitrust laws and the decrees issued in United States v. Paramount Pictures, Inc., 66 F. Supp. 323 ; 70 F. Supp. 53 , affirmed in part and reversed in part, 334 U. S. 334 U.S. 131, subsequent proceedings in the District Court, 85 F. Supp. 881 . The decrees in that case set limits on what clearances could be given when theatres were in competition with each other, and held that there should be no clearances between theatres not in substantial competition. Neither Beacon nor Fox, however, appears to have been a party to those decrees. Their relevance, therefore, seems to be only that of significant precedents. [ Footnote 2 ] Other prayers aside from the general equitable plea for "such further relief as the court deems proper" added nothing material to those set out. [ Footnote 3 ] Fed.Rules Civ.Proc., 42(b) reads: "The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues." Rule 57 reads in part: "The court may order a speedy hearing of an action for a declaratory judgment, and may advance it on the calendar." [ Footnote 4 ] See, e.g., (American) Lumbermens Mut. Cas. Co. of Illinois v. Timms & Howard, Inc., 108 F.2d 497; Hargrove v. American Cent. Ins. Co., 125 F.2d 225; Johnson v. Fidelity & Casualty Co., 238 F.2d 322. See Fed.Rules Civ.Proc. 57, 38, 39. [ Footnote 5 ] Compare Enelow v. New York Life Ins. Co., 293 U. S. 379 , with American Life Ins. Co. v. Stewart, 300 U. S. 203 . See also City of Morgantown v. Royal Ins. Co., 337 U. S. 254 ; Peake v. Lincoln Nat. Life Ins. Co., 15 F.2d 303. [ Footnote 6 ] 252 F.2d at 874. In Ettelson v. Metropolitan Life Ins. Co., 317 U. S. 188 , 317 U. S. 192 , this Court recognized that orders enabling equitable causes to be tried before legal ones had the same effect as injunctions. In City of Morgantown v. Royal Ins. Co., 337 U. S. 254 , the Court denied at least some such orders the status of injunctions for the purposes of appealability. It did not, of course, imply that, when the orders came to be reviewed, they would be examined any less strictly than injunctions. 337 U.S. at 337 U. S. 258 . [ Footnote 7 ] See, e.g., Smyth v. Ames, 169 U. S. 466 , 169 U. S. 515 ; Detroit of Detroit Citizens' Street R. Co., 184 U. S. 368 , 184 U. S. 378 -382; cf. Matthews v. Rodgers, 284 U. S. 521 . [ Footnote 8 ] E.g., 54 U. S. Wheeling & Belmont Bridge Co., 13 How. 518, 54 U. S. 561 ; Parker v. Winnipiseogee Lake Cotton & Woollen Co. , 2 Black 545, 67 U. S. 551 ; Enelow v. New York Life Ins. Co., 293 U. S. 379 . [ Footnote 9 ] See, e.g., Cook, Cases on Equity (4th ed.), 18; 4 Pomeroy, Equity Jurisprudence (5th ed.), § 1370; 5 Moore, Federal Practice, 154-158; Morris, Jury Trial Under the Federal Fusion of Law and Equity, 20 Tex.L.Rev. 427, 441-443. Cf. Maryland Theater Corp. v. Brennan, 180 Md. 377, 389, 24 A.2d 911; Hasselbring v. Koepke, 263 Mich. 466, 248 N.W. 869. But cf. 1 Pomeroy, Equity Jurisprudence (5th ed.), §§ 182, 183. Significantly the Court of Appeals itself relied on the procedural changes brought about by the Federal Rules when it found the plea for equitable relief valid, for it did so by relying on Conley v. Gibson, 355 U. S. 41 , which emphasized the liberal construction policies of the Rules. [ Footnote 10 ] Since the issue of violation of the antitrust laws often turns on the reasonableness of a restraint on trade in the light of all the facts, see, e.g., Standard Oil Co. v. United States, 221 U. S. 1 , 221 U. S. 60 , it is particularly undesirable to have some of the relevant considerations tried by one factfinder, and some by another. [ Footnote 11 ] Fed.Rules Civ.Proc., 13(a). [ Footnote 12 ] See 28 U.S.C. § 2072; Fed.Rules Civ.Proc. 39(a), 57. See also Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368 , 336 U. S. 382 , note 26; United States v. Yellow Cab Co., 340 U. S. 543 , 340 U. S. 555 -556. [ Footnote 13 ] See 36 Stat. 1163, derived from Act of Sept. 24, 1789, § 16, 1 Stat. 82. This provision, which antedates the Seventh Amendment, is discussed in 5 Moore, Federal Practice, 32. See, e.g., 60 U. S. Town of Babin, 19 How. 271, 60 U. S. 277 -278; Insurance Co. v. Bailey , 13 Wall. 616, 80 U. S. 620 -621; Grand Chute v. Winegar , 15 Wall. 373; Buzard v. Houston, 119 U. S. 347 , 119 U. S. 351 -352. [ Footnote 14 ] See Fed.Rules Civ.Proc., 1, 2, 18. Cf. Prudential Ins. Co. of America v. Saxe, 77 U.S.App.D.C. 144, 134 F.2d 16, 31-34; Morris, Jury Trial Under the Federal Fusion of Law and Equity, 20 Tex.L.Rev. 427, 441-443. [ Footnote 15 ] See 1 Pomeroy, Equity Jurisprudence (5th ed.) §§ 251 3/4, 254, 264(b); 5 Moore, Federal Practice, 32; but cf. id., 209-211. See also Note, The Joinder Rules and Equity Jurisdiction in the Avoidance of a Multiplicity of Suits, 12 Md.L.Rev. 88. Of course, unless there is an issue of a right to jury trial or of other rights which depend on whether the cause is a "legal" or "equitable" one, the question of adequacy of legal remedies is purely academic, and need not arise. [ Footnote 16 ] Fed.Rules Civ.Proc. 38(a). In delegating to the Supreme Court responsibility for drawing up rules, Congress declared that: "Such rules shall not abridge, enlarge or modify any substantive right, and shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment to the Constitution." 28 U.S.C. § 2072. The Seventh Amendment reads: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States than according to the rules of the common law." [ Footnote 17 ] See Hurwitz v. Hurwitz, 78 U.S.App.D.C. 66, 136 F.2d 796, 798-799; cf. 53 U. S. Fitzhugh, 12 How. 443, 53 U. S. 459 -460. [ Footnote 18 ] This Court has long emphasized the importance of the jury trial. See Parsons v. Bedford , 3 Pet. 433, 28 U. S. 446 . See also Galloway v. United States, 319 U. S. 372 . Id. at 319 U. S. 396 (dissenting opinion). [ Footnote 19 ] For an example of the flexible procedures available under the Federal Rules, see Ring v. Spina, 166 F.2d 546, 550. [ Footnote 20 ] E.g., Ex parte Simons, 247 U. S. 231 , 247 U. S. 239 -240; Ex parte Peterson, 253 U. S. 300 , 253 U. S. 305 -306; Bereslavsky v. Caffey, 161 F.2d 499 (C.A. 2d Cir.); Canister Co. v. Leahy, 191 F.2d 255; Black v. Boyd, 248 F.2d 156, 160-161 (C.A. 6th Cir.). Cf. Bruckman v. Hollzer, 152 F.2d 730 (C.A. 9th Cir.). But cf. In re Chappell & Co., 201 F.2d 343 (C.A. 1st Cir.). See also La Buy v. Howes Leather Co., 352 U. S. 249 . MR. JUSTICE STEWART, with whom MR. JUSTICE HARLAN and MR. JUSTICE WHITTAKER concur, dissenting. There can be no doubt that a litigant is entitled to a writ of mandamus to protect a clear constitutional or statutory right to a jury trial. But there was no denial of such a right here. The district judge simply exercised his inherent discretion, now explicitly confirmed by the Federal Rules of Civil Procedure, to schedule the trial of an equitable claim in advance of an action at law. Even an abuse of such discretion could not, I think, be attacked Page 359 U. S. 512 by the extraordinary writ of mandamus. [ Footnote 2/1 ] In any event, no abuse of discretion is apparent in this case. The complaint filed by Fox stated a claim traditionally cognizable in equity. That claim, in brief, was that Beacon had wrongfully interfered with the right of Fox to compete freely with Beacon and other distributors for the licensing of films for first-run exhibition in the San Bernardino area. The complaint alleged that the plaintiff was without an adequate remedy at law, and would be irreparably harmed unless the defendant were restrained from continuing to interfere -- by coercion and threats of litigation -- with the plaintiff's lawful business relationships. The Court of Appeals found that the complaint, although inartistically drawn, contained allegations entitling the petitioner to equitable relief. [ Footnote 2/2 ] That finding is accepted in the prevailing opinion today. If the complaint had been answered simply by a general denial, therefore, the issues would, under traditional principles, have been triable as a proceeding in equity. Instead of just putting in issue the allegations of the complaint, however, Beacon filed pleadings which affirmatively alleged the existence of a broad conspiracy among the plaintiff and other theatre owners to monopolize the first-run exhibition of films in the San Bernardino area to refrain from competing among themselves, and to discriminate against Beacon in granting film licenses. Based upon these allegations, Beacon asked damages in the amount of $300,000. Clearly these conspiracy allegations stated a cause of action triable as of right by a Page 359 U. S. 513 jury. What was demanded by Beacon, however, was a jury trial not only of this cause of action, but also of the issues presented by the original complaint. Upon motion of Fox, the trial judge ordered the original action for declaratory and equitable relief to be tried separately to the court and in advance of the trial of the defendant's counterclaim and cross-claim for damages. The court's order, which carefully preserved the right to trial by jury upon the conspiracy and damage issues raised by the counterclaim and cross-claim, was in conformity with the specific provisions of the Federal Rules of Civil Procedure. [ Footnote 2/3 ] Yet it is decided today that the Court of Appeals must compel the district judge to rescind it. Assuming the existence of a factual issue common both to the plaintiff's original action and the defendant's counterclaim for damages, I cannot agree that the District Court must be compelled to try the counterclaim first. [ Footnote 2/4 ] Page 359 U. S. 514 It is, of course, a matter of no great moment in what order the issues between the parties in the present litigation are tried. What is disturbing is the process by which the Court arrives at its decision -- a process which appears to disregard the historic relationship between equity and law. I The Court suggests that "the expansion of adequate legal remedies provided by the Declaratory Judgment Act . . . necessarily affects the scope of equity." Does the Court mean to say that the mere availability of an action for a declaratory judgment operates to furnish "an adequate remedy at law," so as to deprive a court of equity of the power to act? That novel line of reasoning is at least implied in the Court's opinion. But the Declaratory Judgment Act did not "expand" the substantive law. Page 359 U. S. 515 That Act merely provided a new statutory remedy, neither legal nor equitable, but available in the areas of both equity and law. When declaratory relief is sought, the right to trial by jury depends upon the basic context in which the issues are presented. See Moore's Federal Practice (2d ed.) §§ 38.29, 57.30; Borchard, Declaratory Judgments (2d ed.), 399-404. If the basic issues in an action for declaratory relief are of a kind traditionally cognizable in equity, e.g., a suit for cancellation of a written instrument, the declaratory judgment is not a "remedy at law." [ Footnote 2/5 ] If, on the other hand, the issues arise in a context traditionally cognizable at common law, the right to a jury trial, of course, remains unimpaired, even though the only relief demanded is a declaratory judgment. [ Footnote 2/6 ] Thus, if, in this case, the complaint had asked merely for a judgment declaring that the plaintiff's specified manner of business dealings with distributors and other exhibitors did not render it liable to Beacon under the antitrust laws, this would have been simply a "juxtaposition of parties" case in which Beacon could have demanded a jury trial. [ Footnote 2/7 ] But the complaint in the present case, as the Court recognizes, presented issues of exclusively equitable cognizance, going well beyond a mere defense to any subsequent action at law. Fox sought from the court protection against Beacon's allegedly unlawful interference with its business relationships -- protection which this Page 359 U. S. 516 Court seems to recognize might not have been afforded by a declaratory judgment, unsupplemented by equitable relief. The availability of a declaratory judgment did not, therefore, operate to confer upon Beacon the right to trial by jury with respect to the issues raised by the complaint. II The Court's opinion does not, of course, hold or even suggest that a court of equity may never determine "legal rights." For indeed it is precisely such rights which the Chancellor, when his jurisdiction has been properly invoked, has often been called upon to decide. Issues of fact are rarely either "legal" or "equitable." All depends upon the context in which they arise. The examples cited by Chief Judge Pope in his thorough opinion in the Court of Appeals in this case are illustrative: ". . . [I]n a suit by one in possession of real property to quiet title, or to remove a cloud on title, the court of equity may determine the legal title. In a suit for specific performance of a contract, the court may determine the making, validity and the terms of the contract involved. In a suit for an injunction against trespass to real property, the court may determine the legal right of the plaintiff to the possession of that property. Cf. Pomeroy, Equity Jurisprudence, 5th ed., §§ 138-221, 221a, 221b, 221d, 250." 252 F.2d 864, 874. Though apparently not disputing these principles, the Court holds, quite apart from its reliance upon the Declaratory Judgment Act, that Beacon, by filing its counterclaim and cross-claim, acquired a right to trial by jury of issues which otherwise would have been properly triable to the court. Support for this position is found in the principle that, "in the federal courts, equity has always acted only when legal remedies were inadequate. . . ." Yet that principle is not employed in its traditional sense as a limitation upon the exercise of power by a court of Page 359 U. S. 517 equity. This is apparent in the Court's recognition that the allegations of the complaint entitled Fox to equitable relief -- relief to which Fox would not have been entitled if it had had an adequate remedy at law. Instead, the principle is employed today to mean that, because it is possible under the counterclaim to have a jury trial of the factual issue of substantial competition, that issue must be tried by a jury even though the issue was primarily presented in the original claim for equitable relief. This is a marked departure from long settled principles. It has been an established rule "that equitable jurisdiction existing at the filing of a bill is not destroyed because an adequate legal remedy may have become available thereafter. [ Footnote 2/8 ]" American Life Ins. Co. v. Stewart, 300 U. S. 203 , 300 U. S. 215 . See Dawson v. Kentucky Distilleries & Warehouse Co., 255 U. S. 288 , 255 U. S. 296 . It has also been long settled that the District Court, in its discretion, may order the trial of a suit in equity in advance of an action at law between the same parties, even if there is a factual issue common to both. In the words of Mr. Justice Cardozo, writing for a unanimous Court in American Life Ins. Co. v. Stewart, supra: "A court has control over its own docket. . . . In the exercise of a sound discretion, it may hold one lawsuit in abeyance to abide the outcome of another, especially where the parties and the issues are the same. . . . If request had been made by the respondents to suspend the suits in equity till the other causes were disposed of, the District Court could have considered whether justice would not be Page 359 U. S. 518 done by pursuing such a course, the remedy in equity being exceptional and the outcome of necessity. . . . There would be many circumstances to be weighed, as, for instance, the condition of the court calendar, whether the insurer had been precipitate or its adversaries dilatory, as well as other factors. In the end, benefit and hardship would have to be set off, the one against the other, and a balance ascertained." 300 U. S. 300 U.S. 203, 300 U. S. 215 -216. [ Footnote 2/9 ] III The Court today sweeps away these basic principles as "precedents decided under discarded procedures." It suggests that the Federal Rules of Civil Procedure have somehow worked an "expansion of adequate legal remedies" so as to oust the District Courts of equitable jurisdiction, as well as to deprive them of their traditional power to control their own dockets. But obviously the Federal Rules could not and did not "expand" the substantive law one whit. [ Footnote 2/10 ] Like the Declaratory Judgment Act, the Federal Rules preserve inviolate the right to trial by jury in actions historically cognizable at common law, as under the Constitution they must. [ Footnote 2/11 ] They do not create a right of trial Page 359 U. S. 519 by jury where that right "does not exist under the Constitution or statutes of the United States." Rule 39(a). Since Beacon's counterclaim was compulsory under the Rules, see Rule 13(a), it is apparent that, by filing it, Beacon could not be held to have waived its jury rights. [ Footnote 2/12 ] Compare American Mills Co. v. American Surety Co., 260 U. S. 360 . But neither can the counterclaim be held to have transformed Fox's original complaint into an action at law. [ Footnote 2/13 ] See Bendix Aviation Corp. v. Glass, 81 F. Supp. 645 . The Rules make possible the trial of legal and equitable claims in the same proceeding, but they expressly affirm the power of a trial judge to determine the order in which claims shall be heard. Rule 42(b). Certainly the Federal Rules were not intended to undermine the basic structure of equity jurisprudence, developed over the centuries and explicitly recognized in the United States Constitution. [ Footnote 2/14 ] For these reasons, I think the petition for a writ of mandamus should have been dismissed. [ Footnote 2/1 ] Compare Black v. Boyd, 248 F.2d 156, with Black v. Boyd, 251 F.2d 843. [ Footnote 2/2 ] Cf. De Groot v. Peters, 124 Cal. 406, 57 P. 209; California Grape Control Bd. v. California P. Corp., 4 Cal. App. 2d 242 , 244, 40 P.2d 846. Compare Kessler v. Eldred, 206 U. S. 285 ; International News Service v. Associated Press, 248 U. S. 215 , 248 U. S. 236 ; Truax v. Raich, 239 U. S. 33 , 239 U. S. 38 . [ Footnote 2/3 ] Rule 42(b) provides: "(b) Separate Trials. The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues." The Note to Rule 39 of the Advisory Committee on Rules states that, "When certain of the issues are to be tried by jury and others by the court, the court may determine the sequence in which such issues shall be tried." This language was at one time contained in a draft of the Rules, but was deleted because "the power is adequately given by Rule 42(b). . . ." Moore's Federal Practice (2d. ed.) § 39.12, n. 8. See also Rule 57, which provides, inter alia, that "The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar." [ Footnote 2/4 ] It is not altogether clear at this stage of the proceedings whether the existence of substantial competition between Fox and Beacon is actually a material issue of fact common to both the equitable claim and the counterclaim for damages. The respondent ingeniously argues that determination in the equitable suit of the issue of competition between the theatres would be determinative of little or nothing in the counterclaim for damages. "The fact issue in the action for equitable and declaratory relief is whether the Fox West Coast California Theatre and the Petitioner's drive-in are substantially competitive with each other. The fact issue in the counterclaim is whether the cross-defendants and co-conspirators therein named conspired together in restraint of trade and to monopolize in the manner alleged in the counterclaim. Absent conspiracy, whether or not the distributors licensed a single first run picture to Petitioner's drive-in, be it in substantial competition or not in substantial competition with other first run theatres in the San Bernardino area, Petitioner will not have made out a case on its counterclaim. . . . If Petitioner, on its counterclaim, should fail to prove conspiracy, the issue of competition between the theatres is meaningless. If petitioner, on the other hand, succeeds in proving the allegations of its counterclaim, the conspiracy to monopolize first run and to discriminate against the new drive-in, the existence or nonexistence of competition between the theatres would exculpate none of the alleged wrongdoers, although, if there was an absence of competition between the drive-in and the other first run theatres, as Petitioner contended in its answer to the complaint, it might have some difficulty proving injury to its business." [ Footnote 2/5 ] State Farm Mut. Auto. Ins. Co. v. Mossey, 195 F.2d 56, 60; Connecticut General Life Ins. Co. v. Candimat Co., 83 F. Supp. 1 . [ Footnote 2/6 ] Dickinson v. General Accident F. & L. Assur. Corp., 147 F.2d 396; Hargrove v. American Cent. Ins. Co., 125 F.2d 225; Pacific Indemnity Co. v. McDonald, 107 F.2d 446. [ Footnote 2/7 ] Moore's Federal Practice (2d ed.) § 57.31(2). "Transposition of parties" would perhaps be a more accurate description. A typical such case is one in which a plaintiff uses the declaratory judgment procedure to seek a determination of nonliability to a legal claim asserted by the defendant. The defendant in such a case is, of course, entitled to a jury trial. [ Footnote 2/8 ] The suggestion by the Court that "This was because the subsequent legal action, though providing an opportunity to try the case to a jury, might not protect the right of the equity plaintiff to a fair and orderly adjudication of the controversy" is plainly inconsistent with many of the cases in which the rule has been applied. See, e.g., Beedle v. Bennett, 122 U. S. 71 ; Clark v. Wooster, 119 U. S. 332 . [ Footnote 2/9 ] It is arguable that, if a case factually similar to American Life Ins. Co. v. Stewart were to arise under the Declaratory Judgment Act, the defendant would be entitled to a jury trial. See footnote 7 But cf. 5 Moore's Federal Practice (2d ed.), p. 158. [ Footnote 2/10 ] Congressional authorization of the Rules expressly provided that "Said rules shall neither abridge, enlarge, nor modify the substantive rights of any litigant." 48 Stat. 1064. See 28 U.S.C. § 2072. [ Footnote 2/11 ] "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States than according to the rules of the common law." U.S.Const., Amend. VII. See Rules 38, 39, Fed.Rules Civ.Proc. [ Footnote 2/12 ] This is not, of course, to suggest that the filing of a permissive "legal" counterclaim to an "equitable" complaint would amount to a waiver of jury rights on the issues raised by the counterclaim. [ Footnote 2/13 ] Determination of whether a claim stated by the complaint is triable by the court or by a jury will normally not be dependent upon the "legal" or "equitable" character of the counterclaim. See Borchard, Declaratory Judgments (2d ed.), p. 404. There are situations, however, such as a case in which the plaintiff seeks a declaration of invalidity or non-infringement of a patent, in which the relief sought by the counterclaim will determine the nature of the entire case. See Moore's Federal Practice (2d ed.) § 38.29. [ Footnote 2/14 ] "The judicial Power shall extend to all Cases, in Law and Equity. . . ." Art. III, § 2.

The Supreme Court held that a defendant in a declaratory judgment action raising antitrust claims is entitled to a jury trial on those claims, even if the plaintiff seeks primarily equitable relief. The Court found that the right to a jury trial in treble damage suits under the antitrust laws is an essential part of the congressional plan for making competition, rather than monopoly, the rule of trade. Therefore, the Court reversed the lower court's decision to deny the defendant's request for a jury trial.

Immigration & National Security

Department of State v. Munoz

https://supreme.justia.com/cases/federal/us/602/23-334/

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. SUPREME COURT OF THE UNITED STATES _________________ No. 23–334 _________________ Department of State, et al., PETITIONERS v. Sandra MuÑoz, et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 21, 2024] Justice Barrett delivered the opinion of the Court. Luis Asencio-Cordero seeks to enter the United States to live with Sandra Muñoz, his wife. To obtain the necessary visa, he submitted an application at the United States consulate in San Salvador. A consular officer denied his application, however, after finding that Asencio-Cordero is affiliated with MS–13, a transnational criminal gang. Because of national security concerns, the consular officer did not disclose the basis for his decision. And because Asencio-Cordero, as a noncitizen, has no constitutional right to enter the United States, he cannot elicit that information or challenge the denial of his visa. Muñoz, on the other hand, is a citizen, and she filed her own challenge to the consular officer’s decision. She reasons as follows: The right to live with her noncitizen spouse in the United States is implicit in the “liberty” protected by the Fifth Amendment; the denial of her husband’s visa deprived her of this interest, thereby triggering her right to due process; the consular officer violated her right to due process by declining to disclose the basis for finding Asencio-Cordero inadmissible; and this, in turn, enables judicial review, even though visa denials are ordinarily unreviewable by courts. Muñoz’s argument fails at the threshold. Her argument is built on the premise that the right to bring her noncitizen spouse to the United States is an unenumerated constitutional right. To establish this premise, she must show that the asserted right is “ ‘deeply rooted in this Nation’s history and tradition.’ ” Washington v. Glucksberg , 521 U.S. 702 , 720–721 (1997). She cannot make that showing. In fact, Congress’s longstanding regulation of spousal immigration—including through bars on admissibility—cuts the other way. I A To be admitted to the United States, a noncitizen typically needs a visa. 66Stat. 181, 8 U. S. C. §1181(a). Visa decisions are made by the political branches. Trump v. Hawaii , 585 U.S. 667, 702–703 (2018); see also Oceanic Steam Nav. Co. v. Stranahan , 214 U.S. 320 , 339 (1909) (explaining that “over no conceivable subject is the legislative power of Congress more complete”). As a general matter, Congress sets the terms for entry, and the Department of State implements those requirements at United States Embassies and consulates in foreign countries.[ 1 ] Congress has streamlined the visa process for noncitizens with immediate relatives in the United States. The citizen-relative must first file a petition with U. S. Citizenship and Immigration Services (USCIS), an agency housed within the Department of Homeland Security, to have the noncitizen classified as an immediate relative. See Scialabba v. Cuellar de Osorio , 573 U.S. 41 , 46–47 (2014) (plurality opinion); §§1151(b)(2)(A)(i), 1154(a)(1)(A). If USCIS approves the petition, then the noncitizen may apply for a visa. §§1201(a), 1202(a). As part of this process, the noncitizen submits written materials and interviews with a consular officer abroad. §§1201(a)(1), 1202. Ordinarily, a consular officer who denies a visa application “because the officer determines the alien to be inadmissible” must “provide the alien with a timely written notice that . . . (A) states the determination, and (B) lists the specific provision or provisions of law under which the alien is inadmissible.” §1182(b)(1). The statute requires no explanation, however, “to any alien inadmissible” on certain grounds related to crime and national security. §1182(b)(3). This case involves a noncitizen to whom this statutory exception applies. B Sandra Muñoz, an American citizen, married Luis Asencio-Cordero, a Salvadoran citizen, in 2010. Several years later, the couple began taking steps to obtain an immigrant visa for Asencio-Cordero. Muñoz filed a petition to classify her husband as an immediate relative, which USCIS granted. §§1151(b)(2)(A)(i), 1154(a)(1)(A). Because Asencio-Cordero had entered the United States unlawfully, he was required to return to El Salvador and submit his visa application at a consulate there. See §§1154(b), 1202; 22 CFR §42. He met with a consular officer in San Salvador and underwent several interviews. In December 2015, the officer denied Asencio-Cordero’s application, citing 8 U. S. C. §1182(a)(3)(A)(ii). That provision renders inadmissible a noncitizen whom the officer “knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in” certain specified offenses or “any other unlawful activity.” Ibid . The officer provided no additional details—but, given the reason for the visa denial, even the statutory citation was more information than Asencio-Cordero was entitled to receive. §1182(b)(3). Asencio-Cordero guessed (as it turns out, accurately) that he was denied a visa based on a finding that he was a member of MS–13, a transnational criminal gang. He also guessed (again, accurately) that this finding was based at least in part on the conclusion that his tattoos signified gang membership. Asencio-Cordero and Muñoz denied that Asencio-Cordero was affiliated with MS–13 or any other gang, and they pressed the consulate to reconsider the officer’s finding. When the consulate held firm, they appealed to the Department of State, submitting evidence that the tattoos were innocent. A Department official informed Asencio-Cordero and Muñoz that the Department agreed with the consulate’s determination. The next day, the consul in San Salvador notified them that Asencio-Cordero’s application had gone through multiple rounds of review—including by the consular officer, consular supervisors, the consul himself, the Bureau of Consular Affairs, and the State Department’s Immigration Visa Unit—and none of these reviews had “ ‘revealed any grounds to change the finding of inadmissibilty.’ ” App. 7. Asencio-Cordero and Muñoz sued the Department of State, the Secretary of State, and the United States consul in San Salvador. (For simplicity’s sake, we will refer to the defendants collectively as the State Department.) They alleged, among other things, that the State Department had abridged Muñoz’s constitutional liberty interest in her husband’s visa application by failing to give a sufficient reason why Asencio-Cordero is inadmissible under the “unlawful activity” bar. The District Court agreed and ordered discovery. In a sworn declaration, an attorney adviser from the State Department explained that Asencio-Cordero was deemed inadmissible because he belonged to MS–13. The finding was “based on the in-person interview, a criminal review of . . . Asencio[-]Cordero, and a review of [his] tattoos.” App. to Pet. for Cert. 124a. In addition to the affidavit, the State Department provided the District Court with confidential law enforcement information, which it reviewed in camera , identifying Ascencio-Cordero as a member of MS–13. Satisfied, the District Court granted summary judgment to the State Department. The Ninth Circuit vacated the judgment and remanded the case. Consistent with circuit precedent, it held that Muñoz, as a citizen, had a constitutionally protected liberty interest in her husband’s visa application. Because of that interest, the Ninth Circuit said, the Due Process Clause required the State Department to give Muñoz a “ ‘facially legitimate and bona fide reason’ ” for denying her husband’s visa. 50 F. 4th 906, 916 (2022) (quoting Kleindienst v. Mandel , 408 U.S. 753 , 766–770 (1972)). The initial statutory citation did not qualify, 50 F. 4th, at 917–918, and the later affidavit was untimely, id ., at 921–922. Delay carried a serious consequence for the State Department. Visa denials are insulated from judicial review by the doctrine of consular nonreviewability. But the Ninth Circuit held that by declining to give Muñoz more information earlier in the process, the State Department had forfeited its entitlement “to shield its visa decision from judicial review.” Id ., at 924. The panel remanded for the District Court to consider the merits of Muñoz’s suit, which include a request for a declaration invalidating the finding that Asencio-Cordero is inadmissible and an order demanding that the State Department readjudicate Asencio-Cordero’s application.[ 2 ] The Ninth Circuit denied en banc review over the dissent of 10 judges, and we granted the State Department’s petition for certiorari. 601 U. S. ___ (2024).[ 3 ] II “For more than a century, this Court has recognized that the admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’ ” Trump , 585 U. S., at 702 (quoting Fiallo v. Bell , 430 U.S. 787 , 792 (1977)). Congress may delegate to executive officials the discretionary authority to admit noncitizens “immune from judicial inquiry or interference.” Harisiades v. Shaughnessy , 342 U.S. 580 , 588–591 (1952). When it does so, the action of an executive officer “to admit or to exclude an alien” “is final and conclusive.” United States ex rel. Knauff v. Shaughnessy , 338 U.S. 537 , 543 (1950); see also Dept. of Homeland Security v. Thuraissigiam , 591 U.S. 103, 138–139 (2020); Mandel , 408 U. S., at 765–766; Nishimura Ekiu v. United States , 142 U.S. 651 , 659–660 (1892). The Judicial Branch has no role to play “unless expressly authorized by law.” Knauff , 338 U. S., at 543. The Immigration and Nationality Act (INA) does not authorize judicial review of a consular officer’s denial of a visa; thus, as a rule, the federal courts cannot review those decisions.[ 4 ] This principle is known as the doctrine of consular nonreviewability. We have assumed that a narrow exception to this bar exists “when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen.” Trump , 585 U. S., at 703. In that event, the Court has considered whether the Executive gave a “ ‘facially legitimate and bona fide reason’ ” for denying the visa. Kerry v. Din , 576 U.S. 86 , 103–104 (2015) (Kennedy, J., concurring in judgment) (quoting Mandel , 408 U. S., at 770). If so, the inquiry is at an end—the Court has disclaimed the authority to “ ‘look behind the exercise of that discretion,’ ” much less to balance the reason given against the asserted constitutional right. Din , 576 U. S., at 104. Asencio-Cordero cannot invoke the exception himself, because he has no “constitutional right of entry to this country as a nonimmigrant or otherwise.” Mandel , 408 U. S., at 762. Thus, so far as Asencio-Cordero is concerned, the doctrine of consular nonreviewability applies. Muñoz, however, is an American citizen, and she asserts that the denial of her husband’s visa violated her constitutional rights, thereby enabling judicial review. Specifically, she argues that the State Department abridged her fundamental right to live with her spouse in her country of citizenship—and that it did so without affording her the fair procedure guaranteed by the Fifth Amendment. The Ninth Circuit is the only Court of Appeals to have embraced this asserted right—every other Circuit to consider the issue has rejected it.[ 5 ] See Colindres v. U. S. Dept. of State , 71 F. 4th 1018, 1021 (CADC 2023); Baaghil v. Miller , 1 F. 4th 427, 433 (CA6 2021); Bakran v. Secretary, U. S. Dept. of Homeland Security , 894 F.3d 557, 564 (CA3 2018); Bright v. Parra , 919 F.2d 31, 34 (CA5 1990) ( per curiam ); Burrafato v. U. S. Dept. of State , 523 F.2d 554, 554–557 (CA2 1975); Silverman v. Rogers , 437 F.2d 102, 107 (CA1 1970). In Din , this Court considered but did not resolve the question. A plurality concluded that a citizen does not have a fundamental right to bring her noncitizen spouse to the United States. 576 U. S., at 96. Two Justices chose not to reach the issue, explaining that even if the right existed, the statutory citation provided by the Executive qualified as a facially legitimate and bona fide reason. Id . , at 105 (opinion of Kennedy, J.). Since Din , the existence of the right has continued to divide the Circuits. Today, we resolve the open question. Like the Din plurality, we hold that a citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country. III The Due Process Clause of the Fifth Amendment requires the Government to provide due process of law before it deprives someone of “life, liberty, or property.” Under our precedent, the Clause promises more than fair process: It also “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Glucksberg , 521 U. S., at 720. When a fundamental right is at stake, the Government can act only by narrowly tailored means that serve a compelling state interest. Id ., at 721. Identifying unenumerated rights carries a serious risk of judicial overreach, so this Court “exercise[s] the utmost care whenever we are asked to break new ground in this field.” Id ., at 720 (internal quotation marks omitted). To that end, Glucksberg ’s two-step inquiry disciplines the substantive due process analysis. First, it insists on a “careful description of the asserted fundamental liberty interest.” Id ., at 721 (internal quotation marks omitted). Second, it stresses that “the Due Process Clause specially protects” only “those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.” Id ., at 720–721 (internal quotation marks omitted). We start with a “careful description of the asserted fundamental liberty interest.” Id ., at 721 (internal quotation marks omitted). Muñoz invokes the “fundamental right of marriage,” but the State Department does not deny that Muñoz (who is already married) has a fundamental right to marriage. Muñoz claims something distinct: the right to reside with her noncitizen spouse in the United States . That involves more than marriage and more than spousal cohabitation—it includes the right to have her noncitizen husband enter (and remain in) the United States. It is difficult to pin down the nature of the right Muñoz claims. The logic of her position suggests an entitlement to bring Asencio-Cordero to the United States—how else could Muñoz enjoy the asserted right to live with her noncitizen husband in her country of citizenship? See also Brief for Petitioners 23, n. 8 (characterizing Muñoz’s claim as an “entitle[ment] to the visa itself ”). Yet Muñoz disclaims that characterization, insisting that “[she] does not advance a substantive right to immigrate one’s spouse.” Brief for Respondents 19, n. 10. This concession is wise, because such a claim would ordinarily trigger strict scrutiny—and it would be remarkable to put the Government to the most demanding test in constitutional law in the field of immigration, an area unsuited to rigorous judicial oversight. Fiallo , 430 U. S., at 792 (“Our cases ‘have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control’ ”). Though understandable, Muñoz’s concession makes characterizing the asserted right a conceptually harder task. Here is her formulation: a “marital right . . . sufficiently important that it cannot be unduly burdened without procedural due process as to an inadmissibility finding that would block her from residing with her spouse in her country of citizenship.” Brief for Respondents 19, n. 10. So described, the asserted right is neither fish nor fowl. It is fundamental enough to be implicit in “liberty;” but, unlike other implied fundamental rights, its deprivation does not trigger strict scrutiny. See Din , 576 U. S., at 99 (plurality opinion) (observing that this argument posits “two categories of implied rights protected by the Due Process Clause: really fundamental rights, which cannot be taken away at all absent a compelling state interest; and not-so- fundamental rights, which can be taken away so long as procedural due process is observed”). This right would be in a category of one: a substantive due process right that gets only procedural due process protection. Ibid . We need not decide whether such a category exists, because Muñoz cannot clear the second step of Glucksberg ’s test: demonstrating that the right to bring a noncitizen spouse to the United States is “ ‘deeply rooted in this Nation’s history and tradition.’ ” 521 U. S., at 721. On the contrary, the through line of history is recognition of the Government’s sovereign authority to set the terms governing the admission and exclusion of noncitizens. And Muñoz points to no subsidiary tradition that curbs this authority in the case of noncitizen spouses. From the beginning, the admission of noncitizens into the country was characterized as “of favor [and] not of right .” J. Madison, Report of 1800 (Jan. 7, 1800), in 17 Papers of James Madison 319 (D. Mattern, J. Stagg, J. Cross, & S. Perdue eds. 1991) (emphasis added); see also 2 Records of the Federal Convention of 1787, p. 238 (M. Farrand ed. 1911) (recounting Gouverneur Morris’s observation that “every Society from a great nation down to a club ha[s] the right of declaring the conditions on which new members should be admitted”); Debate on Virginia Resolutions, in The Virginia Report of 1799–1800, p. 31 (1850) (“[B]y the law of nations, it is left in the power of all states to take such measures about the admission of strangers as they think convenient”). Consistent with this view, the 1798 Act Concerning Aliens gave the President complete discretion to remove “all such aliens as he shall judge dangerous to the peace and safety of the United States.” 1Stat. 571 (emphasis deleted). The Act made no exception for spouses—or, for that matter, other family members. The United States had relatively open borders until the late 19th century. But once Congress began to restrict immigration, “it enacted a complicated web of regulations that erected serious impediments to a person’s ability to bring a spouse into the United States.” Din , 576 U. S., at 96 (plurality opinion). One of the first federal immigration statutes, the Immigration Act of 1882, required executive officials to “examine” noncitizens and deny “permi[ssion] to land” to “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.” 22Stat. 214. The Act provided no exception for citizens’ spouses. And when Congress drafted a successor statute that expanded the grounds of inadmissibility, it again gave no special treatment to the marital relationship. Immigration Act of 1891, ch. 551, 26Stat. 1084. There are other examples. The Page Act of 1875, which functioned as a restriction on Chinese female immigration, contained no exception for wives. 18Stat. 477–478; see Colindres , 71 F. 4th, at 1023. Or consider the Emergency Quota Act of 1921, which capped the number of immigrants permitted to enter the country each year. 42Stat. 5–6. Although the Act gave preferential treatment to citizens’ wives, “once all the quota spots were filled for the year, the spouse was barred without exception.” Din , 576 U. S., at 97 (plurality opinion).[ 6 ] See also C. Bredbenner, A Nationality of Her Own: Women, Marriage, and the Law of Citizenship 115 (1998) (“[C]itizens’ wives were still quota immigrants, and immigration officials could regulate their entry closely if economic or other circumstances prompted a general tightening of admission”). In 1924, Congress, showing favor to men rather than marriage, lifted the quotas for male citizens with noncitizen wives, but did not similarly clear the way for female citizens with noncitizen husbands. Abrams 12. This gender disparity did not change until 1952. Id ., at 13–14. That is not to say that Congress has not extended special treatment to marriage—it has. For instance, the War Brides Act of 1945 provided that the noncitizen spouses of World War II veterans would be exempt from certain admissibility bars and documentary requirements. Ch. 591, 59Stat. 659. Closer to home, Asencio-Cordero’s visa application rested on his marriage to Muñoz, which made him eligible for immigrant status. §1154. But while Congress has made it easier for spouses to immigrate, it has never made spousal immigration a matter of right. On the contrary, qualifications and restrictions have long been the norm. See, e.g. , Act of Aug. 9, 1946, ch. 945, 60Stat. 975 (granting nonquota status to Chinese wives of American citizens, but only for those with longstanding marriages). Of particular relevance to Muñoz, Congress has not exempted spouses from inadmissibility restrictions like the INA’s unlawful-activity bar. Precusors to that bar have existed since the early 20th century. For example, the Immigration Act of 1917 provided for the exclusion of “persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude.” Ch. 29, 39Stat. 875. Consular officers applied this bar to spouses, and courts refused to review those visa denials, citing the doctrine of consular nonreviewability. See, e.g. , United States ex rel. Ulrich v. Kellogg , 30 F.2d 984, 985–986 (CADC 1929). United States ex rel. Knauff v . Shaughnessy is a striking example from this Court. In Knauff , a United States citizen (and World War II veteran) found himself similarly situated to Muñoz: His noncitizen wife was denied admission for security reasons, based on “information of a confidential nature, the disclosure of which would be prejudicial to the public interest.” 338 U. S., at 541, 544. We held that the War Brides Act did not supersede the statute on which the Attorney General had relied. Id ., at 546–547 (“There is nothing in the War Brides Act . . . to indicate that it was the purpose of Congress, by partially suspending compliance with certain requirements and quota provisions of the immigration laws, to relax the security provisions of the immigration laws”). So, “[a]s all other aliens, petitioner had to stand the test of security.” Id ., at 547. Nor was she entitled to a hearing, because “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” Id ., at 544. The Attorney General’s decision was “final and conclusive,” and he did not have to divulge the reason for it. Id. , at 543.[ 7 ] Knauff thus reaffirmed the longstanding principle “that the United States can, as a matter of public policy . . . forbid aliens or classes of aliens from coming within their borders,” and “[n]o limits can be put by the courts upon” that power. Wong Wing v. United States , 163 U.S. 228 , 237 (1896). Congress’s authority to “formulat[e] . . . policies” concerning the entry of noncitizens “has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government,” representing “not merely ‘a page of history,’ but a whole volume.” Galvan v. Press , 347 U.S. 522 , 531 (1954) (citation omitted). “[T]he Court’s general reaffirmations of this principle have been legion.” Mandel , 408 U. S., at 765–766; see also id ., at 765 (“[T]he power to exclude aliens is ‘inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers—a power to be exercised exclusively by the political branches of government’ ”).[ 8 ] While “families of putative immigrants certainly have an interest in their admission,” it is a “fallacy” to leap from that premise to the conclusion that United States citizens have a “ ‘fundamental right’ ” that can limit how Congress exercises “the Nation’s sovereign power to admit or exclude foreigners.” Fiallo , 430 U. S., at 795, n. 6. To be sure, Congress can use its authority over immigration to prioritize the unity of the immigrant family. Din , 576 U. S., at 97 (plurality opinion). See, e.g. , §1151(b)(2)(A)(i) (exempting “immediate relatives” from certain numerical quotas). It has frequently done just that. But the Constitution does not require this result; moreover, Congress’s generosity with respect to spousal immigration has always been subject to restrictions, including bars on admissibility. This is an area in which more than family unity is at play: Other issues, including national security and foreign policy, matter too. Thus, while Congress may show special solicitude to noncitizen spouses, such solicitude is “a matter of legislative grace rather than fundamental right.” Din , 576 U. S., at 97 (plurality opinion). Muñoz has pointed to no evidence suggesting otherwise.[ 9 ] IV As the State Department observes, Muñoz’s claim to a procedural due process right in someone else’s legal proceeding would have unsettling collateral consequences. Consider where her logic leads: Could a wife challenge her husband’s “assignment to a remote prison or to an overseas military deployment, even though prisoners and service members themselves cannot bring such challenges”? Reply Brief 13. Could a citizen assert procedural rights in the removal proceeding of her spouse? Brief for Petitioners 30. Muñoz’s position would usher in a new strain of constitutional law, for the Constitution does not ordinarily prevent the government from taking actions that “indirectly or incidentally” burden a citizen’s legal rights. Castle Rock v. Gonzales , 545 U.S. 748 , 767 (2005) (quoting O’Bannon v. Town Court Nursing Center , 447 U.S. 773 , 788 (1980)). Our decision in O’Bannon is illustrative. There, a group of nursing-home residents alleged that the government had violated their liberty interests when it decertified their nursing home without providing them a hearing. 447 U. S., at 777–781, 784. We acknowledged that the residents would suffer harm from the government’s decision. Id ., at 784, and n. 16. But we held that absent a “direct restraint on [their liberty],” the decision did not implicate their due process rights. Id ., at 788. The decertification decision imposed only an indirect harm. We explained that the residents were akin to “members of a family who have been dependent on an errant father.” Ibid . Although “they may suffer serious trauma if he is deprived of his liberty or property as a consequence of criminal proceedings,” such family members “surely . . . have no constitutional right to participate in his trial or sentencing procedures.” Ibid . The same principle governs here. Muñoz has suffered harm from the denial of Asencio-Cordero’s visa application, but that harm does not give her a constitutional right to participate in his consular process. Lest there be any doubt, Mandel does not hold that citizens have procedural due process rights in the visa proceedings of others. The Ninth Circuit seems to have read Mandel that way, but that is a misreading. In Mandel, the Attorney General refused to waive inadmissibility and grant Ernest Mandel, a self-described “ ‘revolutionary Marxist,’ ” a temporary visa to attend academic conferences in the United States. 408 U. S., at 756. A group of professors sued on the ground that the Executive’s discretion to grant a waiver was limited by their First Amendment right to hear Mandel speak; they insisted that “the First Amendment claim should prevail, at least where no justification is advanced for denial of a waiver.” Id ., at 769. In response, the Attorney General asserted that “Congress has delegated the waiver decision to the Executive in its sole and unfettered discretion, and any reason or no reason may be given.” Ibid . But because “the Attorney General did inform Mandel’s counsel of the reason for refusing him a waiver,” the Court chose not to resolve this statutory argument. Ibid . (emphasis added). Instead, it said that so long as the Executive gives a “facially legitimate and bona fide reason” for denying a waiver under §212(a)(28) of the INA—the statutory provision at issue—“the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.” Id ., at 770. The Court expressly declined to address whether a constitutional challenge would “be available for attacking [an] exercise of discretion for which no justification whatsoever is advanced.” Ibid . Thus, the “facially legitimate and bona fide reason” in Mandel was the justification for avoiding a difficult question of statutory interpretation; it had nothing to do with procedural due process. Indeed, a procedural due process claim was not even before the Court. The professors argued that the denial of Mandel’s visa directly deprived them of their First Amendment rights, not that their First Amendment rights entitled them to procedural protections in Mandel’s visa application process. Id ., at 754. To make an argument logically analogous to that of the professors, Muñoz would have to claim that the denial of Asencio-Cordero’s visa violated her substantive due process right to bring her noncitizen spouse to the United States—thereby triggering the State Department’s obligation to demonstrate why denying him the visa is the least restrictive means of serving the Government’s interest in national security. But, as we have explained, Muñoz has disavowed that argument, which cannot succeed in any event because the asserted right is not a longstanding and “ ‘deeply rooted’ ” tradition in this country. Glucksberg , 521 U. S., at 721. The bottom line is that procedural due process is an odd vehicle for Muñoz’s argument, and Mandel does not support it. Whatever else it may stand for, Mandel does not hold that a citizen’s independent constitutional right (say, a free speech claim) gives that citizen a procedural due process right to a “facially legitimate and bona fide reason” for why someone else’s visa was denied. And Muñoz is not constitutionally entitled to one here. *  *  * The judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered . Notes 1 We describe the process for noncitizens who, like Asencio-Cordero, have not yet been lawfully admitted to the United States and must therefore apply from abroad. Compare 8 U. S. C. §1255(a) (adjustment of status to lawful permanent resident for noncitizens already admitted into the United States) with 22 CFR §§42.61, 42.62 (2023) (noncitizens applying for immigrant visa must appear in person before consular officer in consular district of residence). 2 At oral argument in this Court, Muñoz suggested that she is asserting a constitutional entitlement only to information—a “facially legitimate and bona fide reason” why the consular officer deemed her husband inadmissible under the “unlawful activity” bar. Tr. of Oral Arg. 59–64. Elsewhere, though, she suggests that the Due Process Clause entitles her to both the information and “a meaningful opportunity to respond.” Brief for Respondents 11. If appeal is no longer available under State Department regulations (and the Ninth Circuit said it was not), Muñoz presumably seeks what she sought below: judicial review of the inadmissibility finding and a court order requiring the State Department to reconsider Asencio-Cordero’s visa application. 50 F. 4th, at 912, n. 14. This level of judicial involvement in the visa process would be a significant extension of our precedent. The dissent, however, would remand to the Ninth Circuit for consideration of this relief. Post , at 10, n. 2 (opinion of Sotomayor, J.). 3 Inexplicably, the dissent claims that the Court is reaching out improperly to settle this issue. Post , at 2. We granted certiorari on this very question to resolve a longstanding circuit split. 601 U. S. ___ (2024). And we did so at the request of the Solicitor General, who emphasized both the Government’s need for uniformity in the administration of immigration law and the importance of this issue to national security. Pet. for Cert. 27–28, 31–33. 4 In Trump v. Hawaii , the plaintiffs argued that a proclamation excluding certain classes of noncitizens from entering the United States exceeded the President’s authority under the Immigration and Nationality Act. 585 U.S. 667, 681–682 (2018). The Court explained that the doctrine of consular nonreviewability is not jurisdictional and “assume[d] without deciding that [the] plaintiffs’ statutory claims [were] reviewable.” Id ., at 682–683. 5 The dissent characterizes our decision today as extreme, post , at 14, but it is the dissent who embraces the outlier position: Our opinion is in line with the vast majority of Circuits that have decided this question. The dissent aligns itself with the lone Circuit going the other way. 6 Given the then-existing law of coverture, the Act was only relevant to noncitizen wives—a citizen wife with a noncitizen husband was forced to assume her husband’s nationality. K. Abrams, What Makes the Family Special? 80 U. Chi. L. Rev. 7, 11 (2013) (Abrams). (“Giving wives the opportunity to sponsor their husbands would have been nonsensical; under the Expatriation Act of 1907, a wife automatically lost her US citizenship upon marrying a foreigner, so there could be no such thing as a US citizen wife with an immigrant husband” (footnotes omitted)). This changed in 1922, when the Cable Act “largely undid derivative citizenship for married women.” Ibid. 7 The dissent criticizes Knauff because the Attorney General, under pressure from Congress, ultimately revisited his decision and admitted Knauff as a lawful permanent resident. Post , at 19. But the history of the case does not establish that the Court was wrong to decline to review the Attorney General’s decision. It reflects a decision that was made by the political branches and reversed through the political process. Moreover, Knauff remains good law that we have repeatedly reaffirmed. Dept. of Homeland Security v. Thuraissigiam , 591 U.S. 103, 138–139 (2020). 8 The dissent barely acknowledges that any of this precedent exists. In fact, rather than recognizing the prerogatives of the political branches in this area, the dissent criticizes the United States’ immigration policy, post , at 4–5, as well as the competence of the Executive Branch officials who make difficult, high-stakes decisions about which noncitizens seeking entry to the United States pose a threat to national security, post , at 6–7. Perhaps our dissenting colleagues are well-equipped to set immigration policy and manage border security, but the Constitution entrusts those tasks to the political branches. 9 The dissent never addresses the actual issue in this case, which is whether the Judiciary has any authority to review visa determinations made by the State Department. Instead, the dissent chooses the rhetorically easier path of charging the Court with endangering the fundamental right to marriage. See post , at 11–14. To be clear: Today’s decision does not remotely call into question any precedent of this Court, including those protecting marriage as a fundamental right. By contrast, the dissent would upend more than a century’s worth of this Court’s precedent regarding the doctrine of consular nonreviewability, not to mention equally longstanding congressional and Executive Branch practice. Ibid . SUPREME COURT OF THE UNITED STATES _________________ No. 23–334 _________________ Department of State, et al., PETITIONERS v. Sandra MuÑoz, et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 21, 2024] Justice Gorsuch, concurring in the judgment. A consular officer denied Sandra Muñoz’s husband a visa to come to and live lawfully in the United States. 526 F. Supp. 3d 709, 713–714 (CD Cal. 2021). In doing so, the officer simply cited 8 U. S. C. §1182(a)(3)(A)(ii), a provision of the Immigration and Nationality Act that makes inadmissible any person a consular officer “has reasonable ground to believe . . . seeks to enter the United States to engage . . . in . . . any other unlawful activity.” Eventually, Ms. Muñoz sued for further explanation of that decision. See App. 2, 8–9. The government, she claimed, needed to identify for her not just the statute on which it based its decision, but also the “ ‘discrete factual predicates’ ” on which it relied. Id ., at 8, ¶36. Over the course of this litigation, the United States has given Ms. Muñoz what she requested. As the Ninth Circuit recognized, the United States has now revealed the factual basis for its decision to deny her husband a visa. 50 F. 4th 906, 919–920 (2022); see App. to Pet. for Cert. 124a; App. 76. In this Court, too, the government has assured Ms. Muñoz that she has a chance to use and respond to that information. She can again seek her husband’s admission to this country, the government says—and this time she will be armed with an understanding of why the government denied the last application. Tr. of Oral Arg. 45, 104. Those developments should end this case. With no more information to uncover and no bar to trying for admission again, nothing is left for a court to address through this litigation. In particular, the constitutional questions presented by the government no longer have any practical relevance here. Whether or not Ms. Muñoz had a constitutional right to the information she wanted, the government gave it to her. I therefore would reverse the Ninth Circuit’s decision without reaching the government’s constitutional arguments. See City of Mesquite v. Aladdin’s Castle, Inc. , 455 U.S. 283 , 294–295 (1982). At the same time, I do not cast aspersions on the motives of my colleagues who do reach the government’s arguments. They may see the case differently than I do, but their decision and rationales are essentially those the Solicitor General and the Department of State urged this Court to adopt. SUPREME COURT OF THE UNITED STATES _________________ No. 23–334 _________________ Department of State, et al., PETITIONERS v. Sandra MuÑoz, et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 21, 2024] Justice Sotomayor, with whom Justice Kagan and Justice Jackson join, dissenting. “The right to marry is fundamental as a matter of history and tradition.” Obergefell v. Hodges , 576 U.S. 644 , 671 (2015). After U. S. citizen Sandra Muñoz and her Salvadoran husband spent five years of married life in the United States, the Government told her that he could no longer reenter the country. If she wanted to live together with him and their child again, she would have to move to El Salvador. The reason? A consular officer’s bare assertion that her husband, who has no criminal record in the United States or El Salvador, planned to engage in “unlawful activity.” 8 U. S. C. §1182(a)(3)(A)(ii). Muñoz argues that the Government, having burdened her fundamental right to marriage, owes her one thing: the factual basis for excluding her husband. The majority could have resolved this case on narrow grounds under longstanding precedent. This Court has already recognized that excluding a noncitizen from the country can burden the constitutional rights of citizens who seek his presence. See Kleindienst v. Mandel , 408 U.S. 753 , 765–770 (1972). Acknowledging the Government’s power over admission and exclusion, the Mandel Court held that “a facially legitimate and bona fide reason” for the exclusion sufficed to justify that burden. Id ., at 770. In this case, after protracted litigation, the Government finally explained that it denied Muñoz’s husband a visa because of its belief that he had connections to the gang MS–13. Regardless of the validity of that belief, it is a “facially legitimate and bona fide reason.” Ibid. ; see also ante, at 1 (Gorsuch, J., concurring in judgment). Under this Court’s precedent, that is enough. Instead, the majority today chooses a broad holding on marriage over a narrow one on procedure.[ 1 ] It holds that Muñoz’s right to marry, live with, and raise children alongside her husband entitles her to nothing when the Government excludes him from the country. Despite the majority’s assurance two Terms ago that its eradication of the right to abortion “does not undermine . . . in any way” other entrenched substantive due process rights such as “the right to marry,” “the right to reside with relatives,” and “the right to make decisions about the education of one’s children,” the Court fails at the first pass. Dobbs v. Jackson Women’s Health Organization , 597 U.S. 215, 256–257 (2022). Because, to me, there is no question that excluding a citizen’s spouse burdens her right to marriage, and that burden requires the Government to provide at least a factual basis for its decision, I respectfully dissent. I A Marriage is not an automatic ticket to a green card. A married citizen-noncitizen couple must jump through a series of administrative hoops to apply for the lawful permanent residency that marriage can confer. Noncitizen spouses coming from abroad must apply for a visa to enter the United States. In certain cases, however, the law requires even couples who meet and marry in the United States to send the noncitizen spouse back to his country of origin to do the same thing. In doing so, the couple must take an enormous risk to pursue the stability of lawful immigration status: the risk that when the noncitizen spouse tries to reenter the United States, he will face unexpected exile. In technical immigration terms, a noncitizen spouse applying for a green card seeks to “[a]djus[t]” his immigration “status” from “nonimmigrant to that of [a] person admitted for permanent residence.” 8 U. S. C. §1255. To do so, the citizen spouse must petition the Government on the noncitizen’s behalf. The citizen spouse first sends United States Citizenship and Immigration Services (USCIS) a petition to classify the noncitizen spouse as an “immediate relative.” §§1151(b)(2)(A)(i), 1154(a)(1)(A). Once USCIS approves the petition, a noncitizen spouse who is already in the United States can then apply to adjust his status to lawful permanent resident without leaving the country. See §1255(a). For a noncitizen spouse living outside of the United States, however, USCIS first approves the immediate-relative petition, but then sends it to the consulate of the country where the noncitizen spouse lives for processing. See §1154(b); 22 CFR §§42.42, 42.61 (2023). A consular officer interviews the noncitizen spouse and makes the final admission decision. See 8 U. S. C. §§1201, 1202(f ). Because of idiosyncrasies in our immigration system, not all noncitizen spouses living in the United States can adjust their status with USCIS. Even when a couple meets, marries, and lives in the United States, the noncitizen spouse may instead have to travel back to his country of origin for consular processing if he was never formally “inspected and admitted or paroled” at the Border. §1255(a). A noncitizen who entered without “inspect[ion]” in this way typically cannot adjust his status from within the United States based on an immediate-relative petition. See ibid. Once the citizen spouse submits the petition to USCIS, the noncitizen spouse must return to his country of origin and meet with a consular officer, who will then adjudicate his application. See 22 CFR §§42.42, 42.61, 42.62. Living in the United States after initially having entered without inspection is not unusual. In fact, the Government endorses the presence of many of these members of our national community. Recipients under the Deferred Action for Childhood Arrivals (DACA) program, for instance, may have been brought across the border by their parents without inspection. Even though DACA status entitles them to work and live in the country without the immediate threat of removal, see 8 CFR §236.21(c), it does not change their initial entry designation. As of the end of 2023, there were roughly 530,000 active DACA recipients in the United States. See Dept. of Homeland Security (DHS), USCIS, Count of Active DACA Recipients by Month of Current DACA Expiration (as of Dec. 31, 2023). The same is true of the approximately 680,000 holders of Temporary Protected Status (TPS), who have been designated temporarily unable to return to their home countries because of war, natural disasters, or other extraordinary circumstances. See DHS, Citizenship and Immigration Services Ombudsman, Ann. Rep. 45 (June 30, 2023); Sanchez v. Mayorkas , 593 U.S. 409, 419 (2021) (holding that TPS status did not change an entry without inspection into a lawful admission that would allow adjustment to lawful permanent residency from within the United States). Even when married to a U. S. citizen, DACA recipients and TPS holders are barred from adjusting status within the United States if they entered without inspection. See 8 U. S. C. §1255(a). Ironically, the longer the noncitizen spouse has lived in the United States, the more difficult and uncertain the process to adjust to lawful status can become. A noncitizen who initially entered without inspection will accrue “unlawful presence,” which can bar him from reentering the country if he leaves. §1182(a)(9)(B). If a noncitizen who has lived in the United States between six months and one year leaves and tries to reenter, he will be subject to a 3-year reentry bar. §1182(a)(9)(B)(i)(I). If he has lived in the United States for more than a year and tries to reenter, he faces a 10-year ban. §1182(a)(9)(B)(i)(II). This scheme places couples who meet and marry in the United States in a difficult position if the noncitizen spouse entered without inspection. The couple can continue to live with one spouse in a precarious immigration status; or, they can seek the stability of permanent residency for the noncitizen spouse but face a potential multiyear exile when he leaves and applies for reentry. Recognizing this difficult choice, USCIS allows a noncitizen spouse to apply for a waiver of inadmissibility for any accrued unlawful presence before departing the United States for his consular interview. To obtain such a waiver, the noncitizen spouse must show that the citizen spouse will suffer “extreme hardship” if her noncitizen spouse is not admitted. §1182(a)(9)(B)(v). Then, once the noncitizen spouse returns to his country of origin, if a consular officer approves his visa application, he can reenter free from the inadmissibility bar. Consular officers fall under the State Department, see §1104(a), not DHS, which oversees USCIS, see 6 U. S. C. §271(a). Even though DHS officers and consular officers make admission determinations under the same substantive laws, see §1182, in reality, a noncitizen seeking admission via consular processing faces a far higher risk of arbitrary denial with far less opportunity for review than a noncitizen seeking admission from DHS. DHS officers are constrained by a framework of required process that does not apply to consular processing. A noncitizen denied adjustment of status in the United States must receive notice and the reasons for a denial. See 8 CFR §245.2(a)(5)(i); DHS, USCIS, Policy Manual, vol. 7, pt. A, ch. 11—Decision Procedures (June 14, 2024) (requiring that a denial notice either “[e]xplain what eligibility requirements are not met and why they are not met” or “[e]xplain the positive and negative factors considered, the relative weight given to each factor individually and collectively, and why the negative factors outweigh the positive factors”). He can renew his application in removal proceedings before an immigration court, see 8 U. S. C. §1229b(b)(1), where DHS must present any evidence against him in adversarial proceedings, see §§1229(a), 1229a(b)(4)(B), 1229a(c)(3). From those removal proceedings, a noncitizen can petition for review to the Board of Immigration Appeals (BIA), see 8 CFR §1003.1(b), and, ultimately, a federal court of appeals, see 8 U. S. C. §1252(a). In contrast, a noncitizen denied admission via consular processing is entitled to nothing more than a cite to the statute under which the consular officer decided to exclude him. §1182(b)(1).[ 2 ] He has no opportunity for administrative or judicial review, and can only submit more evidence and request reconsideration. 22 CFR §42.81(e). Former consular officers tell this Court that this lack of accountability, coupled with deficient information and inconsistent training, means decisions often “rely on stereotypes or tropes,” even “bias or bad faith.” Brief for Former Consular Officers as Amici Curiae 8. Visa applicants may “experience disparate outcomes based on nothing more than the luck or misfortune of which diplomatic post and consular officer . . . they happen to be assigned.” Id ., at 8–9. The State Department’s Office of the Inspector General has documented numerous deficiencies in consular processing across several continents. See, e . g ., ISP–I–19–14, Inspection of Embassy Bogota, Colombia, p. 16 (Apr. 2019) (finding consular managers in Bogota required visa adjudicators to maintain an average of 30 in-person interviews per hour). Supervisors are required by the State Department to review a certain percentage of visa denials but often fail to do so. See, e . g ., Office of Inspector General, ISP–I–19–17, Inspection of Embassy Santo Domingo, Dominican Republic, p. 12 (July 2019) (finding “managers did not review 284 (23 percent) of the refusals that should have been reviewed between April 1 and June 30, 2018”); Office of Inspector General, ISP–I–16–24A, Inspection of Embassy Ankara, Turkey, p. 20 (Sept. 2016) (finding visa adjudicator failed to review the required 10% of visa issuances and 20% of visa denials). When the Government requires one spouse to leave the country to apply for immigration status based on his marriage, it therefore asks him to give up the process he would receive in the United States and subject himself to the black box of consular processing. B Muñoz, a celebrated workers’ rights lawyer from Los Angeles, California, met Luis Asencio-Cordero in 2008, three years after he had arrived in the United States. They have been married since 2010 and have a child together. In 2013, Muñoz filed an immediate-relative petition for her husband, which USCIS approved. Because Asencio-Cordero had originally entered the United States without inspection, the Government required him to return to El Salvador, his country of origin, for consular processing to obtain his immigrant visa. Yet he also faced a bar to reentry if he left the country. DHS granted him a waiver of this bar upon his anticipated return to the United States because of the “extreme hardship” Muñoz would suffer if he were excluded. 8 U. S. C. §1182(a)(9)(B)(v). In April 2015, Asencio-Cordero traveled from California to El Salvador. That was the last time he stood on American soil. Asencio-Cordero attended the initial consular interview in San Salvador on May 28, 2015. In December 2015, a consular officer denied his visa application. As justification, the denial cited only to §1182(a)(3)(A)(ii). That statute provides that any noncitizen “who a consular officer . . . knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in . . . any other unlawful activity . . . is inadmissible.” In other words, the consular officer excluded Asencio-Cordero based on a belief that he planned to engage in some unspecified unlawful conduct upon return to the United States. “[U]nlawful activity” could mean anything from jaywalking to murder. Asencio-Cordero has no criminal history in the United States or El Salvador. See 50 F. 4th 906, 911 (CA9 2022); Brief for Respondents 8, n. 5 (“It is uncontested that Asencio-Cordero has never been charged with any crime”). With no obvious justification for the consular officer’s belief, Muñoz and Asencio-Cordero asked for reconsideration. Muñoz sought the help of Congresswoman Judy Chu, who sent a letter to the State Department on Muñoz’s behalf. The following day, the consulate responded to the letter again with only a citation to §1182(a)(3)(A)(ii). In January and April 2016, Muñoz asked the State Department for the factual basis for her husband’s inadmissibility. She and her husband provided evidence of her accolades at work and attestations of Asencio-Cordero’s good moral character. A few days later, the consulate notified Muñoz that the State Department had reviewed the denial and concurred with the consular officer’s decision. It denied reconsideration. After the consulate denied reconsideration, Muñoz and her husband wrote to the State Department again requesting a factual basis for the inadmissibility decision. Asencio-Cordero has no criminal record, but he does have several tattoos from his teenage years. App. 22. They depict a range of subjects, including “Our Lady of Guadalupe, Sigmund Freud, a ‘tribal’ pattern with a paw print, and theatrical masks with dice and cards.” Brief for Respondents 2, n. 2. Some of these images have deep significance in Latin American culture. See, e . g ., Brief for Professors and Scholars as Amici Curiae 8–10 (“Many Latin Americans view La Virgen de Guadalupe as a special protector, and as a symbol of pan-Latinx identity that transcends attachment to any one geography”). Some also happen to appear on gang members. See ibid. (noting that “law enforcement agencies and officials often use tattoos of common Catholic imagery . . . as indicia of gang membership”). Speculating about potential bases for a visa denial, Muñoz and her husband included additional evidence from a court-approved gang expert in their letter to the State Department. The expert reviewed Asencio-Cordero’s tattoos and concluded that none were “ ‘related to any gang or criminal organization in the United States or elsewhere.’ ” 50 F. 4th, at 911. The State Department responded that it lacked authority to overturn consular decisions and “ ‘concurred in the finding of ineligibility.’ ” Ibid. The consulate followed up in May 2016, a year after Asencio-Cordero’s initial interview, by listing all the entities that had reviewed the visa application and noting that “ ‘there is no appeal.’ ” Ibid. It was only after Muñoz and her husband sued the Government in Federal District Court that they finally received the factual basis for the denial. After almost two years of litigation, the Government submitted a declaration from a State Department attorney-adviser. Id ., at 912. That declaration stated that the consular officer denied Asencio-Cordero’s visa application under §1182(a)(3)(A)(ii) because “ ‘based on the in-person interview, a criminal review of Mr. Asencio Cordero and a review of . . . Mr. Asencio Cordero’s tattoos, the consular officer determined that Mr. Asencio Cordero was a member of a known criminal organization . . . specifically MS-13.’ ” Ibid. (alterations omitted). The Court of Appeals ruled in Muñoz’s favor. It held that the Government’s reason was too little, too late. The denial of her husband’s visa burdened Muñoz’s right to marriage, and the Government had provided inadequate process. Even though the Government provided a “facially legitimate and bona fide” reason, that reason was not “timely” enough to satisfy constitutional due process requirements. Id ., at 919–921. This Court granted the Government’s petition for a writ of certiorari. 601 U. S. ___ (2024). II There was a simple way to resolve this case. I agree with Justice Gorsuch that “the United States has now revealed the factual basis for its decision to deny [Muñoz’s] husband a visa,” and she has thus received whatever process she was due. Ante , at 1 (opinion concurring in judgment).[ 3 ] That could and should have been the end of it. Instead, the majority swings for the fences. It seizes on the Government’s invitation to abrogate the right to marriage in the immigration context and sharply limit this Court’s longstanding precedent. Muñoz has a constitutionally protected interest in her husband’s visa application because its denial burdened her right to marriage. She petitioned USCIS to recognize their marriage so that her husband could remain lawfully beside her and their child in the United States. It was the extreme hardship Muñoz faced from her husband’s exclusion that formed the basis for USCIS’s waiver of his inadmissibility. For the majority, however, once Muñoz’s husband left the country in reliance on those approvals, their marriage ceased to matter. Suddenly, the Government owed her no explanation at all. The constitutional right to marriage is not so flimsy. The Government cannot banish a U. S. citizen’s spouse and give only a bare statutory citation as an excuse. By denying Muñoz the right to a factual basis for her husband’s exclusion, the majority departs from longstanding precedent and gravely undervalues the right to marriage in the immigration context. A The constitutional right to marriage has deep roots. “[M]arriage,” this Court said over a century ago, “is something more than a mere contract.” Maynard v. Hill , 125 U.S. 190 , 210–211 (1888). It is “the most important relation in life,” id. , at 205, and “the foundation of the family,” id. , at 211. This Court has described it in one breath as the right “to marry, establish a home and bring up children,” a right “long recognized at common law as essential to the orderly pursuit of happiness by free men.” Meyer v. Nebraska , 262 U.S. 390 , 399 (1923). In upholding the right of Mildred and Richard Loving to have their marriage license from the District of Columbia recognized by Virginia, this Court emphasized that “[m]arriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” Loving v. Virginia , 388 U.S. 1 , 12 (1967) (quoting Skinner v. Oklahoma ex rel. Williamson , 316 U.S. 535 , 541 (1942)). Indeed, the right to marriage was one of the first building blocks of substantive due process. The right was so “ ‘fundamental’ ” and “ ‘implicit in the concept of ordered liberty’ ” that the Roe Court invoked it as part of the foundation underlying the right to abortion. Roe v. Wade , 410 U.S. 113 , 152–153 (1973) (cataloguing existing substantive due process rights as extending to “marriage, procreation, contraception, family relationships, and child rearing and education” (citations omitted)), overruled, Dobbs , 597 U.S. 215. Almost 10 years ago, this Court vindicated the expansiveness of the right to marriage. It upheld the right of James Obergefell and his terminally ill husband, John Arthur, to have their marriage from Maryland recognized in Ohio. Rejecting the idea that “Ohio can erase [Obergefell’s] marriage to John Arthur for all time” by declining to place Obergefell as the surviving spouse on Arthur’s death certificate, this Court reasoned that “ marriage is a right ‘older than the Bill of Rights.’ ” Obergefell , 576 U. S., at 666, 678. Marriage “ ‘fulfils yearnings for security, safe haven, and connection that express our common humanity.’ ” Id ., at 666. “Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.” Id ., at 667. The majority, ignoring these precedents, makes the same fatal error it made in Dobbs : requiring too “ ‘careful [a] description of the asserted fundamental liberty interest.’ ” Ante , at 9 (quoting Washington v. Glucksberg , 521 U.S. 702 , 721 (1997)); cf. Dobbs , 597 U. S., at 374–375 (Breyer, Sotomayor, and Kagan, JJ., dissenting). The majority faults Muñoz’s invocation of the “ ‘fundamental right to marriage’ ” as “difficult to pin down.” Ante , at 9. Instead, it tries to characterize her asserted right as “an entitlement to bring [her husband] to the United States,” even though it acknowledges that Muñoz “disclaims that characterization.” Ibid. Obergefell rejected what the majority does today as “inconsistent with the approach this Court has used in discussing [the] fundamental rights” of “marriage and intimacy.” 576 U. S., at 671. Cataloguing a half century of precedent on the right to marriage, the Court stressed that “ Loving did not ask about a ‘right to interracial marriage’; Turner did not ask about a ‘right of inmates to marry’; and Zablocki did not ask about a ‘right of fathers with unpaid child support duties to marry.’ ” Ibid. Instead, “each case inquired about the right to marry in its comprehensive sense” of “marriage and intimacy.” Ibid. Similarly, Muñoz does not argue that her marriage gives her the right to immigrate her husband. She instead advances the reasonable position that blocking her from living with her husband in the United States burdens her right “to marry, establish a home and bring up children” with him. Meyer , 262 U. S., at 399. This Court has never required that plaintiffs be fully prevented from exercising their right to marriage before invoking it. Instead, the question is whether a challenged government action burdens the right. For example, the Court in Zablocki v. Redhail , 434 U.S. 374 (1978), examined the “burde[n]” placed on fathers by a statute that required a hearing to “counsel” them “as to the necessity of fulfilling” any outstanding child support obligations before being granted permission to marry. Id ., at 387–388. The Court in Turner v. Safley , 482 U.S. 78 (1987), applied Zablocki to incarcerated people to hold that the particular prison marriage restriction at issue “impermissibly burden[ed] the right to marry.” 482 U. S., at 97. There can be no real question that excluding a citizen’s spouse from the country “burdens” the citizen’s right to marriage as this Court has repeatedly defined it. This Court has never held that a married couple’s ability to move their home elsewhere removes the burden on their constitutional rights. It did not tell Richard and Mildred Loving to stay in the District of Columbia or James Obergefell and John Arthur to stay in Maryland. It upheld their ability to exercise their right to marriage wherever they sought to make their home. Muñoz may be able to live in El Salvador alongside her husband or at least visit him there, but not everyone is so lucky. The majority’s holding will also extend to those couples who, like the Lovings and the Obergefells, depend on American law for their marriages’ validity. Same-sex couples may be forced to relocate to countries that do not recognize same-sex marriage, or even those that criminalize homosexuality. American husbands may be unable to follow their wives abroad if their wives’ countries of origin do not recognize derivative immigration status from women (as was the case in this country for many years, see ante , at 12 (noting visa “quotas . . . for female citizens with noncitizen husbands” until 1952)). The majority’s failure to respect the right to marriage in this country consigns U. S. citizens to rely on the fickle grace of other countries’ immigration laws to vindicate one of the “ ‘basic civil rights of man’ ” and live alongside their spouses. Loving , 388 U. S., at 12. B Given that the Government has burdened Muñoz’s right to marriage by excluding her husband from the country, the question is the remedy for that burden. Muñoz argues that this burden triggers procedural due process protections in her husband’s visa denial. Emphasizing that substantive due process rights like the right to marriage usually trigger strict scrutiny, the majority faults Muñoz for creating a right “in a category of one: a substantive due process right that gets only procedural due process protection.” Ante , at 10. Muñoz, however, did not create that category of rights. This Court did. See Mandel , 408 U. S., at 768–770. This Court already set the ground rules for when the Government’s exercise of its extensive power over the exclusion of noncitizens burdens a U. S. citizen’s constitutional rights. See id ., at 770. In short, a fundamental right may trigger procedural due process protections over a noncitizen’s exclusion, but such protections are limited. See ibid. Noncitizens who apply for visas from outside the United States have no constitutional entitlement to enter the country, and therefore typically have no constitutional process protections in the visa application themselves. See Landon v. Plasencia , 459 U.S. 21 , 32 (1982). In contrast, noncitizens who already live in the United States whom the Government seeks to remove have procedural due process protections during that removal. See Yick Wo v. Hopkins , 118 U.S. 356 , 369 (1886); Zadvydas v. Davis , 533 U.S. 678 , 693 (2001). Had the Government sought to remove Muñoz’s husband when they were living together in the United States, he would have had his own constitutional protections in those proceedings. Instead, because the Government forced him to leave the country and reenter in order to adjust his immigration status, he lost them. Not only do noncitizens seeking to enter the United States lack constitutional process rights in their visa applications. This Court has further insulated the Government’s visa determinations from review by declining to evaluate them at all. See ante, at 6–7. This judge-made “doctrine of consular nonreviewability” reflects the Judicial Branch’s recognition that the “ ‘admission and exclusion of foreign nationals’ ” is an area of unusually heightened congressional and executive power. Ante, at 6–7.[ 4 ] When the de- nial of a noncitizen’s visa burdens a U. S. citizen’s constitutional rights, however, this Court has had to reconcile the importance of those rights with its recognition of Government authority over visa determinations. In Mandel , it set the remedy. The Mandel Court held that when a visa denial “implicate[s]” a citizen’s rights, a court will not look behind a “facially legitimate and bona fide” reason for the denial. 408 U. S., at 765, 769. In Mandel , a group of U. S. professors sued the Government over the visa denial of Dr. Ernest E. Mandel, a famous Belgian Marxist. See id ., at 756, 759–760. The professors argued that excluding Mandel burdened their First Amendment right to hear and meet with him in person. See id ., at 760. The Court agreed that the professors had a First Amendment “ ‘right to receive information’ ” from Mandel. Id ., at 762, 764. It also emphasized, as the majority does today, Congress’s power over the admission and exclusion of noncitizens. See id ., at 766–767; ante , at 6–7. To avoid the need to balance “the strength of the audience’s interest against that of the Government in refusing a waiver to the particular [noncitizen] applicant, according to some as yet undetermined standard,” Mandel , 408 U. S., at 768–769, the Court instead noted that “the Attorney General did inform Mandel’s counsel of the reason for refusing him a waiver. And that reason was facially legitimate and bona fide .” Id ., at 769 (emphasis added). Therefore, “when the Executive exercises [conditional power to exclude] negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.” Id ., at 770. In other words, when a visa denial burdens a noncitizen’s constitutional rights, rather than attempt to balance the competing interests under strict scrutiny, a court should accept the Government’s “facially legitimate and bona fide reason.” Ibid. That minimal requirement ensures that courts do not unduly intrude on “the Government’s sovereign authority to set the terms governing the admission and exclusion of noncitizens,” ante , at 11, while also ensuring that the Government does not arbitrarily burden citizens’ constitutional rights. This Court has repeatedly relied on Mandel ’s test in the immigration context. See, e . g ., Trump v. Hawaii , 585 U.S. 667, 703 (2018) (noting that “this Court has engaged in a circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen”); Fiallo v. Bell , 430 U.S. 787 , 794, 799 (1977) (relying on Mandel in declining to “probe and test the justifications for [a] legislative” distinction between mothers and fathers because this Court has applied limited scrutiny to “resolv[e] similar challenges to immigration legislation based on other constitutional rights of citizens”).[ 5 ] Indeed, less than a decade ago, six Justices ruling on the exact legal question the Court confronts today would have held that Mandel controlled or extended its protections even further in the marriage context. See Kerry v. Din , 576 U.S. 86 , 103–104 (2015) (Kennedy, J., concurring in judgment) (“The reasoning and the holding in Mandel control here. . . . Like the professors who sought an audience with Dr. Mandel, [respondent] claims her constitutional rights were burdened by the denial of a visa to a noncitizen, namely her husband”); id ., at 107 (Breyer, J., dissenting) (reasoning that respondent’s “liberty interest [in] her freedom to live together with her husband in the United States” is the kind “to which the Due Process Clause grants procedural protection”). Outside the immigration context, this Court has endorsed similar tests in circumstances where there is a heightened underlying governmental power. For instance, in Turner , the Court evaluated the right to marriage in the prison context. Even though an incarcerated person “ ‘retains those [constitutional] rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system,’ ” the Court emphasized that “[t]he right to marry, like many other rights, is subject to substantial restrictions as a result of incarceration.” 482 U. S., at 95 (quoting Pell v. Procunier , 417 U.S. 817 , 822 (1974)). Only because the challenged prison regulation there was not “reasonably related” to the government’s articulated penological interests, or “legitimate security and rehabilitation concerns,” did this Court hold it unconstitutional. Turner , 482 U. S., at 95; see id ., at 99. Just as Turner looked at burdens on the right to marriage through the narrow lens of “penological interests” to defer to the government’s control over prisons, Mandel used a “facially legitimate and bona fide reason” to defer to the Government’s power over the exclusion of noncitizens. Neither case erased the constitutional right at issue. The Court simply recognized that the right can be substantially limited in areas where the government exercises unusually heightened control. Applying Mandel and Turner here, the remedy is clear. The Government’s exclusion of Muñoz’s husband entitles her at least to the remedy required in Mandel : a “facially legitimate and bona fide reason” for the exclusion. 408 U. S., at 770. C The majority resists this conclusion by worrying about its “unsettling collateral consequences.” Ante , at 16. The majority poses a series of hypotheticals that it fears will result from recognizing the limited right Muñoz proposes. These fears are groundless. First, the majority’s concern that applying Mandel to Muñoz’s right to marriage in this case will result in a slippery slope of constitutional challenges is unfounded. Muñoz’s right triggers limited process protections in part because her husband lost his own procedural protections when the Government required him to leave the country. Muñoz’s right to marriage raises that floor from zero process to some by requiring the Government to provide a “facially legitimate and bona fide reason” when her husband receives no process. In contrast, a citizen’s liberty interest “in the removal proceeding of her spouse” in the United States, ante , at 16, would presumably be limited by the noncitizen’s own due process rights in that same proceeding. Similarly, any challenge from a wife to her husband’s “ ‘assignment to a remote prison,’ ” ibid ., would presumably be limited by the criminal procedural protections her husband already received. Second, the majority’s reliance on O’Bannon v. Town Court Nursing Center , 447 U.S. 773 (1980), is misplaced and highlights the speculative nature of its concerns. O’Bannon rejected a freestanding constitutional interest in avoiding “serious trauma.” Id ., at 788. The residents of a government-funded nursing home sought relief from transfer to alternative housing because of the emotional harm they would suffer from the move. Id ., at 777–781, 784. Muñoz, however, does not rely on a free-floating emotional harm that separation from her husband will cause. She invokes her fundamental right to marry, live, and raise a family with her husband, the right recognized by this Court for centuries. See supra , at 11–14. Denying her husband entry to the country directly burdens that right. In sum, the majority’s concerns are unwarranted. There are few circumstances where the limited relief sought by Muñoz would be available. III A “facially legitimate and bona fide” reason may seem like a meager remedy for burdening a fundamental right. Yet even the barest explanation requirement can be powerful. The majority relies heavily on United States ex rel. Knauff v. Shaughnessy , 338 U.S. 537 (1950). See ante , at 6–7, 13–14. A closer look at the story of Ellen Knauff, however, illustrates the importance of putting the Government to a minimal evidence requirement when a visa denial burdens a constitutional right. Knauff ’s U. S. citizen husband sought to bring her to the United States after they married during his deployment to Germany. After this Court upheld her exclusion on undisclosed national security grounds, there was a public outcry. See C. Weisselberg, The Exclusion and Detention of Aliens: Lessons From the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933, 958–964 (1995). Both Houses of Congress introduced private bills for her relief and, after the Attorney General rushed to remove Knauff from Ellis Island before Congress could act, Justice Jackson (who had vigorously dissented in the case) issued a stay from this Court. See id ., at 958, n. 127. After extensive advocacy, the Attorney General ordered immigration officials to reopen the case. See id ., at 961–962. Eventually, Knauff won her case before the BIA when the Government failed to prove up its national security concerns. Id ., at 963–964. She was finally admitted as a lawful permanent resident. Id. , at 964. The majority relies heavily on “[t]he rule of Knauff ”: that “the Attorney General has the unchallengeable power to exclude” a noncitizen. Ibid. ; ante , at 14 (emphasizing that “ ‘[n]o limits can be put by the courts upon’ ” the exercise of the Government’s power to “ ‘forbid aliens or classes of aliens from coming within their borders’ ”). Yet, “the full story of Ellen Knauff shows a populace and a Congress unwilling to accept the exercise of this sort of raw power.” Weisselberg, 143 U. Pa. L. Rev., at 964. “Once the government was required to justify its exclusion decision with substantial and reliable evidence, in an open proceeding, Knauff gained admission into the United States.” Ibid. Knauff brought her own habeas petition to challenge her exclusion. Knauff , 338 U. S., at 539–540. Her husband did not argue that her exclusion burdened his right to marriage. Twenty-two years after Knauff , however, when faced with such a challenge, this Court limited the justification that the Government must provide in these circumstances to a “facially legitimate and bona fide reason.” Mandel , 408 U. S., at 770. The majority, not content to resolve this case on even those narrow grounds, instead relieves the Government of any need to justify itself at all. Knauff ’s story illustrates why the right to marriage deserves more. By leaving U. S. citizens without even a factual basis for their spouses’ exclusion, the majority paves the way for arbitrary denials of a right this Court has repeatedly held among the most important to our Nation. *  *  * A traveler to the United States two centuries ago reported that “ ‘[t]here is certainly no country in the world where the tie of marriage is so much respected as in America.’ ” Obergefell , 576 U. S., at 669 (quoting 1 A. de Tocqueville, Democracy in America 309 (H. Reeve transl., rev. ed. 1900)). Today, the majority fails to live up to that centuries-old promise. Muñoz may be able to live with her husband in El Salvador, but it will mean raising her U. S.-citizen child outside the United States. Others will be less fortunate. The burden will fall most heavily on same-sex couples and others who lack the ability, for legal or financial reasons, to make a home in the noncitizen spouse’s country of origin. For those couples, this Court’s vision of marriage as the “assurance that while both still live there will be someone to care for the other” rings hollow. Obergefell , 576 U. S., at 667. I respectfully dissent. Notes 1 The Government asked this Court to review three questions: “1. Whether a consular officer’s refusal of a visa to a U. S. citizen’s noncitizen spouse impinges upon a constitutionally protected interest of the citizen. “2. Whether, assuming that such a constitutional interest exists, notifying a visa applicant that he was deemed inadmissible under 8 U. S. C. 1182(a)(3)(A)(ii) suffices to provide any process that is due. “3. Whether, assuming that such a constitutional interest exists and that citing Section 1182(a)(3)(A)(ii) is insufficient standing alone, due process requires the government to provide a further factual basis for the visa denial ‘within a reasonable time,’ or else forfeit the ability to invoke consular nonreviewability in court.” Pet. for Cert. I. This Court granted certiorari limited to the first and second questions. 601 U. S. ___ (2024). The majority chooses to decide this case on the first question presented rather than “assuming that such a constitutional interest exists” and determining what “process . . . is due” (the second question presented). Pet. for Cert. I. 2 As the majority notes, if the consular officer denies admission based on “certain grounds related to crime and national security,” a noncitizen is entitled to “no explanation” at all. Ante, at 3 (citing 8 U. S. C. §1182(b)(3)). 3 Unlike Justice Gorsuch, I would vacate and remand the opinion below. The Court of Appeals and District Court correctly resolved the two questions on which this Court granted certiorari. The Ninth Circuit nevertheless vacated the District Court’s judgment and remanded based on the answer to a third question, which is not before this Court. See supra , at 2, n. 1; 50 F. 4th 906, 923–924 (2022) (“Because no ‘fact in the record’ justifying the denial of Asencio-Cordero’s visa was made available to [Muñoz and her husband] until nearly three years had elapsed after the denial, and until after litigation had begun, we conclude that the government did not meet the notice requirements of due process when it denied Asencio-Cordero’s visa”). I would let the Ninth Circuit decide in the first instance the effect of a Court holding that Muñoz received all the process she was constitutionally due. 4 Judges created this doctrine because of the otherwise “strong presumption that Congress intends judicial review of administrative action.” Bowen v. Michigan Academy of Family Physicians , 476 U.S. 667 , 670 (1986). The majority emphasizes that the Government asked the Court for the holding it reaches today. See ante, at 6, n. 3. It is hardly unusual for the Government to ask this Court for less judicial review over its immigration decisions. See, e . g ., Wilkinson v. Garland , 601 U.S. 209 (2024) (arguing that eligibility for cancellation of removal is unreviewable); Santos-Zacaria v. Garland , 598 U.S. 411 (2023) (arguing that noncitizens must request discretionary forms of administrative review before challenging a final order of removal in federal court); Patel v. Garland , 596 U.S. 328 (2022) (arguing that federal courts lack jurisdiction to review facts found as part of eligibility determination for discretionary relief ); Garland v. Aleman Gonzalez , 596 U.S. 543 (2022) (arguing that district courts lack jurisdiction to entertain noncitizens’ requests for class-wide injunctive relief ). Unusually, in this case, the Government’s argument against review is not based on any statutes passed by Congress but on a doctrine that this Court created itself. Rather than exercise the restraint counseled by Mandel , the majority instead chooses to exclude a fundamental right from Mandel ’s prudent exception. See infra , at 16–19. 5 Despite the majority’s claim that its decision is the majority rule in the Courts of Appeals, ante, at 8, and n. 5, lower courts have rarely reached the question the majority reaches today. That is because they have relied on Mandel to hold that the Government has in any case provided a “ ‘facially legitimate and bona fide’ ” reason. See, e . g ., Sesay v. United States , 984 F.3d 312, 315–316, and n. 2 (CA4 2021); Del Valle v. U. S. Dept. of State , 16 F. 4th 832, 838–842 (CA11 2021); Yafai v. Pompeo , 912 F.3d 1018, 1020–1021 (CA7 2019). One of the cases the majority cites pre-dates Mandel , Silverman v. Rogers , 437 F.2d 102 (CA1 1970), and two others reached the majority’s holding based only on conclusory assertions, see Burrafato v. U. S. Dept. of State , 523 F.2d 554, 555–557 (CA2 1975); Bright v. Parra , 919 F.2d 31, 34 (CA5 1990) ( per curiam ). Only two Circuits have used the majority’s reasoning to hold that a U. S. citizen’s right to marriage does not trigger the Mandel remedy. In one, the court had an alternative holding that “even if we take [the right to marriage] as a given, the argument fails because the consulate provided a facially legitimate reason for the visa denials.” Baaghil v. Miller , 1 F. 4th 427, 434 (CA6 2021). In the other, a concurring judge urged his colleagues to resolve this challenge on the same narrow holding that the majority could have followed today. See, e . g ., Colindres v. United States Dept. of State , 71 F. 4th 1018, 1027 (CADC 2023) (opinion of Srinivasan, J.) (“There is no need for us to take up the merits of [the] constitutional question . . . and I would refrain from doing so. Rather, we can rest our decision solely on the ground . . . that even assuming [appellant’s] fundamental right to marriage includes a protected interest in living in the country with her husband, such that at least some form of due process scrutiny applies, the government’s denial of a visa to him afforded her adequate process”).

The Supreme Court ruled that a U.S. citizen does not have a constitutional right to live in the country with their noncitizen spouse, and that visa denials by consular officers are generally not subject to judicial review. In this case, the Court found that the consular officer's decision to deny a visa to a noncitizen based on national security concerns was valid and could not be challenged by the U.S. citizen spouse.

Lawsuits & Legal Procedures

Van Dusen v. Barrack

https://supreme.justia.com/cases/federal/us/376/612/

U.S. Supreme Court Van Dusen v. Barrack, 376 U.S. 612 (1964) Van Dusen v. Barrack Nos. 56 and 80 Argued January 8-9, 1964 Decided March 30, 1964 376 U.S. 612 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Syllabus Respondents, personal representatives of Pennsylvania decedents, instituted in the United States District Court for the Eastern District of Pennsylvania 40 wrongful death actions arising from an airplane crash in Massachusetts. Acting on petitioners' motion under § 1404(a) of the Judicial Code of 1948, which provides for transfer of civil actions for the convenience of parties and witnesses, in the interest of justice, to any district where such action "might have been brought," the District Court ordered that the actions be transferred to the District of Massachusetts, where over 100 other actions arising out of the same disaster are pending. The Court of Appeals, interpreting § 1404(a) and relying on Rule 17(b) of the Federal Rules of Civil Procedure, vacated the transfer order, holding that it could be granted only if, at the time the actions were filed, respondents were personal representatives qualified to sue in Massachusetts courts. Held: 1. In § 1404(a), the phrase "where it might have been brought" must be construed with reference to federal venue laws setting forth the districts where such actions "may be brought," and not with reference to the laws, such as those relating to damages and the capacity of personal representatives to sue, of the State where the transferee district court is located. Pp. 376 U. S. 616 -626. 2. In a case such as this, where the actions were properly brought in the transferor district court and where defendants seek transfer under § 1404(a), the change of venue should not be accompanied by a change in the governing state laws. Pp. 376 U. S. 626 -640. 3. Where a § 1404(a) transfer is held not to effect a change of state law, but essentially only to authorize a change of federal courtrooms, the provision in Rule 17(b) that the capacity of personal representatives to sue or be sued shall be determined by the law of the State "in which the district court is held" should similarly be interpreted to refer to the law of the State in which the transferor District Court is located. Pp. 376 U. S. 640 -643. Page 376 U. S. 613 4. The general criteria of convenience and fairness of § 1404(a) include what witnesses may be heard, the evidence which will be relevant and important under the applicable state laws, and also consideration of the judicial familiarity with the governing state laws and the relative ease and practicality of trying the action in the proposed transferee District Court. Pp. 376 U. S. 643 -646. 309 F.2d 953, reversed and remanded. MR. JUSTICE GOLDBERG delivered the opinion of the Court. This case involves the construction and application of § 1404(a) of the Judicial Code of 1948. Section 1404(a), which allows a "change of venue" within the federal judicial system, provides that: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). The facts, which need but brief statement here, reveal that the disputed change of venue is set against the background of an alleged mass tort. On October 4, 1960, shortly after departing from a Boston airport, a commercial airliner, scheduled to fly from Boston to Philadelphia, plunged into Boston Harbor. As a result of the crash, over 150 actions for personal injury and wrongful death Page 376 U. S. 614 have been instituted against the airline, various manufacturers, the United States, and, in some cases, the Massachusetts Port Authority. In most of these actions, the plaintiffs have alleged that the crash resulted from the defendants' negligence in permitting the aircraft's engines to ingest some birds. More than 100 actions were brought in the United States District Court for the District of Massachusetts, and more than 45 actions in the United States District Court for the Eastern District of Pennsylvania. The present case concerns 40 of the wrongful death actions brought in the Eastern District of Pennsylvania by personal representatives of victims of the crash. [ Footnote 1 ] The defendants, petitioners in this Court, moved under § 1404(a) to transfer these actions to the District of Massachusetts, where it was alleged that most of the witnesses resided and where over 100 other actions are pending. The District Court granted the motion, holding that the transfer was justified regardless of whether the transferred actions would be governed by the laws and choice-of-law rules of Pennsylvania or of Massachusetts. 204 F. Supp. 426 . The District Court also specifically held that transfer was not precluded by the fact that the plaintiffs had not qualified under Massachusetts law to sue as representatives of the decedents. The plaintiffs, respondents in this Court, sought a writ of mandamus from the Court of Appeals and successfully contended that the District Court erred, and should vacate its order of transfer. 309 F.2d 953. The Court of Appeals held that a § 1404(a) transfer could be granted only if, at the time the suits were brought, the plaintiffs had qualified to sue in Massachusetts, the State of the transferee District Court. The Court of Appeals relied in part upon Page 376 U. S. 615 its interpretation of Rule 17(b) of the Federal Rules of Civil Procedure. [ Footnote 2 ] We granted certiorari to review important questions concerning the construction and operation of § 1404(a). 372 U.S. 964. For reasons to be stated below, we hold that the judgment of the Court of Appeals must be reversed, that both the Court of Appeals and the District Court erred in their fundamental assumptions regarding the state law to be applied to an action transferred under § 1404(a), and that, accordingly, the case must be remanded to the District Court. [ Footnote 3 ] Page 376 U. S. 616 I . WHERE THE ACTION "MIGHT HAVE BEEN BROUGHT" Section 1404(a) reflects an increased desire to have federal civil suits tried in the federal system at the place called for in the particular case by considerations of convenience and justice. [ Footnote 4 ] Thus, as the Court recognized in Continental Grain Co. v. Barge F.B.L.-585, 364 U. S. 19 , 364 U. S. 26 -27, the purpose of the section is to prevent the waste "of time, energy and money" and "to protect litigants, witnesses and the public against unnecessary inconvenience and expense. . . ." To this end, it empowers a district court to transfer "any civil action" [ Footnote 5 ] to another district court if the transfer is warranted by the convenience of parties and witnesses and promotes the interest of justice. This transfer power is, however, expressly limited by the final clause of § 1404(a) restricting transfer to those federal districts in which the action "might have been brought." Although, in the present case, the plaintiffs were qualified to bring suit as personal representatives under Pennsylvania law (the law of the State of the transferor federal court), the Court of Appeals ruled that the defendants' transfer motion must be denied because, at the time the suits were brought in Pennsylvania (the transferor forum), the complainants had not obtained the appointments requisite to initiate such actions in Massachusetts (the transferee forum). Page 376 U. S. 617 At the outset, therefore, we must consider whether the incapacity of the plaintiffs at the time they commenced their actions in the transferor forum to sue under the state law of the transferee forum renders the latter forum impermissible under the "might have been brought" limitation. There is no question concerning the propriety either of venue or of jurisdiction in the District of Massachusetts, the proposed transferee forum. [ Footnote 6 ] The Court of Appeals conceded that it was "quite likely" that the plaintiffs could have obtained ancillary appointment in Massachusetts, but held this legally irrelevant. 309 F.2d at 957-958. In concluding that the transfer could not be granted, the Court of Appeals relied upon Hoffman v. Blaski, 363 U. S. 335 , as establishing that, "unless the plaintiff had an unqualified right to bring suit in the transferee forum at the time he filed his original complaint, transfer to that district is not authorized by § 1404(a)." 309 F.2d at 957. (Emphasis in original.) The court found the analogy to Hoffman particularly persuasive because it could "perceive no basis in either logic or policy for making any distinction between the absence of venue in the transferee forum and prospective plaintiff's lack of capacity to sue there." Ibid. In addition, the court held that the transfer must be denied because in actions by personal representatives Page 376 U. S. 618 "Rule 17(b), Fed.R.Civ.P., requires the district court to refer to the law of the state in which it sits to determine capacity to sue." [ Footnote 7 ] Id., 309 F.2d at 958. The defendants contend that the concluding phrase of § 1404(a) -- "where it might have been brought" -- refers to those districts in which Congress has provided by its venue statutes that the action "may be brought." Applying this criterion, the defendants argue that the posture of the case under state law is irrelevant. They contend that Hoffman v. Blaski, supra, did not rule that the limitations of state law were relevant to determining where the action "might have been brought," but ruled only that the requirement prohibited transfer where the proposed transferee forum lacked both venue of the action and power to command jurisdiction over the defendants when the suits were originally instituted. The defendants contend further that the decision below is contrary to the policy underlying Hoffman, since this decision effectively enables a plaintiff, simply by failing to proceed in other potential forums and qualify as a personal representative, to restrict and frustrate efforts to have the action transferred to a federal forum which would be far more convenient and appropriate. Finally, with regard to the conclusion that Rule 17(b) precludes transfer, the defendants argue that, under § 1404(a), the effect of the Rule, like the existence of different state laws in the transferee forum, is not relevant to a determination of where, as indicated by federal venue laws, the action "might have been brought." The defendants conclude that the effect of transfer upon potential state law defenses and upon the state law applied under Rule 17(b) should instead be considered and assessed with reference to the criterion that the transfer be "in the interest of justice." See infra, pp. 376 U. S. 624 -626, 376 U. S. 640 -643. Page 376 U. S. 619 The plaintiffs respond emphasizing that they are "Pennsylvania fiduciaries representing the estates of Pennsylvania decedents." They were not and are not qualified to bring these or related actions in Massachusetts, and their lack of capacity would, under Massachusetts law, constitute "an absolute defense." The plaintiffs contend that Hoffman v. Blaski established that transfer must be denied unless, at the time the action was brought, the complaint had an independent right to institute that action in the transferee forum, regardless of the fact that the defendant, in seeking transfer, might expressly or implicitly agree to venue and jurisdiction in the transferee forum and waive defenses that would have been available only under the law of the transferee State. In addition, the plaintiffs argue, even if the limiting phrase "where it might have been brought" relates only to federal venue laws, Rule 17(b) expressly provides that the capacity of a fiduciary to sue in a United States district court shall be determined "by the law of the state in which the district court is held." The plaintiffs understand the language of the Rule to refer to the law of the State in which the transferee court is held, rather than to the law of the State of the transferor court. They conclude that, since they "were not qualified to sue in Massachusetts [the State in which the transferee court would be held], they were not qualified to sue in the United States district court in Massachusetts, and the District of Massachusetts was not a district in which these actions 'might have been brought.'" A. In Hoffman v. Blaski, this Court first considered the nature of the limitation imposed by the words "where it might have been brought." The plaintiff opposed the defendant's motion to transfer on the ground that the proposed transferee forum lacked both "venue over the action and ability to command jurisdiction over the . . ." Page 376 U. S. 620 defendant. [ Footnote 8 ] 363 U.S. at 363 U. S. 337 . The question, as stated by the Court, was "whether a District Court in which a civil action has been properly brought is empowered by § 1404(a) to transfer the action, on the motion of the defendant, to a district in which the plaintiff did not have a right to bring it." Id. at 363 U. S. 336 . (Emphasis in original.) The defendant emphasized that "venue, like jurisdiction over the person, may be waived." Id. at 363 U. S. 343 . This Court held that, despite the defendant's waivers or consent, a forum which had been improper for both venue and service of process was not a forum where the action "might have been brought." [ Footnote 9 ] In the present case, the Court of Appeals concluded that transfer could not be granted because here, as in Hoffman v. Blaski, the plaintiffs did not have an "independent" or "unqualified" right to bring the actions in the transferee Page 376 U. S. 621 forum. [ Footnote 10 ] The propriety of this analogy to Hoffman turns, however, on the validity of the assumption that the "where it might have been brought" clause refers not only to federal venue statutes, but also to the laws applied in the State of the transferee forum. It must be noted that the instant case, unlike Hoffman, involves a motion to transfer to a district in which both venue and jurisdiction are proper. This difference plainly demonstrates that the Court of Appeals extended the Hoffman decision and increased the restrictions on transfers to convenient federal forums. The issue here is not that presented in Hoffman, but instead is whether the limiting words of § 1404(a) prevent a change of venue within the federal system because, under the law of the State of the transferee forum, the plaintiff was not qualified to sue or might otherwise be frustrated or prejudiced in pursuing his action. We cannot agree that the final clause of § 1404(a) was intended to restrict the availability of convenient federal forums by referring to state law rules, such as those concerning capacity to sue, which would have applied if the action had originally been instituted in the transferee federal court. Several considerations compel this conclusion. First, if the concluding clause is considered as an independent entity and perused for its plain meaning, it seems clear that the most obvious referents of the words are found in their immediate statutory context. [ Footnote 11 ] Section Page 376 U. S. 622 1404(a) was enacted as part of Chapter 87 of Part IV of the Judicial Code of 1948. That Chapter is designated "District Courts; Venue." The Chapter itself is in that Part of the Code dealing generally with "Jurisdiction and Venue." In the immediate Chapter, which includes §§ 1391-1406, the phrase "may be brought" recurs at least 10 times, [ Footnote 12 ] and the phrase "may be prosecuted" at least 8 times. [ Footnote 13 ] The statutory context is thus persuasive evidence that the "might have been brought" language of § 1404(a) plainly refers to the similar wording in the related federal statutes, and not directly to the laws of the State of the transferee forum. Secondly, it should be asked whether the purposes of § 1404(a) warrant a broad or generous construction of the limiting clause. The answer, we think, is quite evident. As MR. JUSTICE BLACK said, speaking for the Court in Continental Grain Co. v. Barge F.B.L.-585, 364 U.S. at 364 U. S. 26 : "The idea behind § 1404(a) is that where a 'civil action' to vindicate a wrong -- however brought in a court -- presents issues and requires witnesses that make one District Court more convenient than another, the trial judge can, after findings, transfer the whole action to the more convenient court." This remedial purpose -- the individualized, case-by-case consideration of convenience and fairness -- militates against restricting the number of permissible forums within the federal system. [ Footnote 14 ] Page 376 U. S. 623 There is no valid reason for reading the words "where it might have been brought" to narrow the range of permissible federal forums beyond those permitted by federal venue statutes which, after all, are generalized attempts to promote the same goals of convenience and fairness. Finally, in construing § 1404(a), we should consider whether a suggested interpretation would discriminatorily enable parties opposed to transfer, by means of their own acts or omissions, to prevent a transfer otherwise proper and warranted by convenience and justice. In Continental Grain Co. v. Barge F.B.L.-585, supra, the plaintiff, having joined in a single complaint both in rem and in personam damage claims, opposed transfer to a convenient forum on the ground that the in rem claim could not have been brought in the transferee forum. [ Footnote 15 ] In approving the transfer order, this Court observed that failure to adopt a "common sense approach . . . would practically scuttle the forum non conveniens statute so far as admiralty actions are concerned. All a plaintiff would need to do to escape from it entirely would be to bring his action against both the owner and the ship, as was done here." Id., 364 U.S. at 364 U. S. 24 -25. The case at bar presents a similar situation. The Court of Appeals' decision would grant personal representatives bringing wrongful death actions the power unilaterally to reduce the number of permissible federal forums simply by refraining from qualifying as representatives in States other than the one in which they wished to litigate. The extent of that power is graphically illustrated by the laws of the American jurisdictions, the vast majority of which require that, as a condition of qualifying to bring suit, a foreign executor or representative must obtain ancillary appointment Page 376 U. S. 624 or perform some preliminary act. [ Footnote 16 ] The possibilities thus suggested by the facts of the present case amply demonstrate that the limiting phrase of § 1404(a) should be construed to prevent parties who are opposed to a change of venue from defeating a transfer which, but for their own deliberate acts or omissions, would be proper, convenient and just. The power to defeat a transfer to the convenient federal forum should derive from rights and privileges conferred by federal law, and not from the deliberate conduct of a party favoring trial in an inconvenient forum. In summary, then, we hold that the words "where it might have been brought" must be construed with reference to the federal laws delimiting the districts in which such an action "may be brought," and not with reference to laws of the transferee State concerning the capacity of fiduciaries to bring suit. B. The Court of Appeals, in reversing the District Court, relied in part upon Rule 17(b) of the Federal Rules of Civil Procedure. The relevant portion of the Rule provides that the capacity of personal representatives "to sue or be sued shall be determined by the law of the state in which the district court is held." [ Footnote 17 ] In our view, the "where it might have been brought" clause does not refer to this Rule, and the effect of the Rule, therefore, raises a separate question. This conclusion does not, however, establish that Rule 17(b), if applied as interpreted by the Court of Appeals, would not preclude the requested transfer. The reliance placed on Rule 17(b) necessarily assumes that its language -- which is Page 376 U. S. 625 not free from ambiguity -- requires the application of the law of the State of the transferee district court, rather than that of the transferor district court. [ Footnote 18 ] On this assumption, the defendants in the present case, after a transfer to Massachusetts, would be entitled to raise the defense of incapacity under Massachusetts law, and thereby defeat the actions. Thus, a § 1404(a) transfer might result in a prejudicial change in the applicable state law. This possibility makes it apparent, that, although Rule 17(b) may be irrelevant to a determination of where an action "might have been brought," the effect of the Rule may necessarily render a change of venue against the "interest of justice." Although the Court of Appeals specifically relied on Rule 17(b), in our opinion, the underlying and fundamental question is whether, in a case such as the present, a change of venue within the federal system is to be accompanied by a change in the applicable state law. [ Footnote 19 ] Whenever the law of the transferee State significantly differs from that of the transferor State -- whether that difference relates to capacity to sue, statutes of limitations, or "substantive" rules of liability -- it becomes necessary Page 376 U. S. 626 to consider what bearing a change of venue, if accompanied by a change in state law, would have on "the interest of justice." This fundamental question underlies the problem of the interpretation of the words of Rule 17(b), and requires a determination of whether the existence of differing state laws would necessarily render a transfer against "the interest of justice." In view of the facts of this case and their bearing on this basic question, we must consider first, insofar as is relevant, the relationship between a change of venue under § 1404(a) and the applicable state law. II . "THE INTEREST OF JUSTICE": EFFECT OF A CHANGE OF VENUE UPON APPLICABLE STATE LAW A. The plaintiffs contend that the change of venue ordered by the District Court was necessarily precluded by the likelihood that it would be accompanied by a highly prejudicial change in the applicable state law. The prejudice alleged is not limited to that which might flow from the Massachusetts laws governing capacity to sue. Indeed, the plaintiffs emphasize the likelihood that the defendants' "ultimate reason for seeking transfer is to move to a forum where recoveries for wrongful death are restricted to sharply limited punitive damages, rather than compensation for the loss suffered. [ Footnote 20 ]" It is argued that Pennsylvania choice of law rules would result in the application of laws substantially different from those that would be applied by courts sitting in Massachusetts. The District Court held, however, that transfer could be ordered regardless of the state laws and choice of law rules to be applied in the transferee forum and regardless Page 376 U. S. 627 of the possibility that the laws applicable in the transferor State would significantly differ from those applicable in the transferee State. This ruling assumed that transfer to a more convenient forum may be granted on a defendant's motion even though that transfer would seriously prejudice the plaintiff's legal claim. If this assumption is valid, the plaintiffs argue, transfer is necessarily precluded -- regardless of convenience and other considerations -- as against the "interest of justice" in dealing with plaintiffs who have either exercised the venue privilege conferred by federal statutes or had their cases removed from state into federal court. If conflict of laws rules are laid aside, it is clear that Massachusetts (the State of the transferee court) and Pennsylvania (the State of the transferor court) have significantly different laws concerning recovery for wrongful death. The Massachusetts Death Act provides that one who negligently causes the death of another "shall be liable in damages in the sum of not less than two thousand nor more than twenty thousand dollars, to be assessed with reference to the degree of his culpability. . . ." Mass.Ann. Laws, c. 229, § 2 (Supp.1961). By contrast, under Pennsylvania law, the recovery of damages (1) is based upon the more common principle of compensation for losses, rather than upon the degree of the tortfeasor's culpability, and (2) is not limited to $20,000. [ Footnote 21 ] Some of the defendants urge, however, that Page 376 U. S. 628 these differences are irrelevant to the present case because Pennsylvania state courts, applying their own choice of law rules, would require that the Massachusetts Death Act be applied in its entirety, including its culpability principle and damage limitation. [ Footnote 22 ] It follows that a federal district court sitting in Pennsylvania, and referring, as is required by Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U. S. 487 , to Pennsylvania choice of law rules, would therefore be applying the same substantive rules as would a state or federal court in Massachusetts if the actions had been commenced there. This argument highlights the fact that the most convenient forum is frequently the place where the cause of action arose, and that the conflict of laws rules of other States may often refer to the substantive rules of the more convenient forum. [ Footnote 23 ] The plaintiffs, however, point to the decision of the New York Court of Appeals in Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526, and the decision of the Court of Appeals for the Second Circuit in Pearson v. Northeast Airlines, Inc., 309 F.2d 553, cert. denied, 372 U.S. 912, as indicating that Pennsylvania, in light of its laws and policies, Page 376 U. S. 629 might not apply the culpability and damage limitation aspects of the Massachusetts statute. The District Court, in ordering that the actions be transferred, found it both undesirable and unnecessary to rule on the question of whether Pennsylvania courts would accept the right of action provided by the Massachusetts statute while at the same time denying enforcement of the Massachusetts measure of recovery. [ Footnote 24 ] 204 F. Supp. at 433-436. The District Court found it undesirable to resolve this question because the Pennsylvania courts had not yet considered it and because they would, in view of similar pending cases, soon have an opportunity to do so. The District Court, being of the opinion that the District of Massachusetts was, in any event, a more convenient place for trial, reasoned that the transfer should be granted forthwith, and that the transferee court could proceed to the trial of the actions and postpone consideration of the Pennsylvania choice of law rule as to damages until a later time at which the Pennsylvania decisions might well have supplied useful guidance. Fundamentally, however, the transferring District Court assumed that the Pennsylvania choice of law rule was irrelevant, because the transfer would be permissible and justified even if accompanied by a significant change of law. The possibilities suggested by the plaintiffs' argument illustrate the difficulties that would arise if a change of venue, granted at the motion of a defendant, were to result in a change of law. Although in the present case the contentions concern rules relating to capacity to sue and damages, in other cases the transferee forum might have a shorter statute of limitations or might refuse to Page 376 U. S. 630 adjudicate a claim which would have been actionable in the transferor State. In such cases, a defendant's motion to transfer could be tantamount to a motion to dismiss. [ Footnote 25 ] In light, therefore, of this background and the facts of the present case, we need not and do not consider the merits of the contentions concerning the meaning and proper application of Pennsylvania's laws and choice of law rules. For present purposes, it is enough that the potential prejudice to the plaintiffs is so substantial as to require review of the assumption that a change of state law would be a permissible result of transfer under § 1404(a). The decisions of the lower federal courts, taken as a whole, reveal that courts construing § 1404(a) have been strongly inclined to protect plaintiffs against the risk that transfer might be accompanied by a prejudicial change in applicable state laws. [ Footnote 26 ] Although the federal courts have Page 376 U. S. 631 utilized a variety of doctrines in order to approve a desirable transfer and, at the same time, protect the plaintiffs, [ Footnote 27 ] the prevailing view in the lower federal court is that adopted by the Court of Appeals for the Tenth Circuit in 1950, only two years after the enactment of § 1404(a), in Headrick v. Atchison, T. & S.F. R. Co., 182 F.2d 305, and further developed in the recent decision of the Court of Appeals for the Second Circuit in H. L. Green Co., Inc. v. MacMahon, 312 F.2d 650. These cases have adopted and applied a general interpretative principle which we believe faithfully reflects the purposes underlying § 1404(a). In Headrick v. Atchison, T. & S.F. R. Co., supra, the plaintiff, a Missouri citizen, had been injured in an accident in California. He contended that responsibility lay with the defendant railroad, a Kansas corporation doing business in a number of States. The plaintiff's Missouri attorney entered into settlement negotiations with the defendant, but "these negotiations continued until after an action was barred by the statute of limitations of California, [and] thereafter the attorney was advised that the defendant would rely upon such statute as a bar to the plaintiff's claim. . . ." Id., 182 F.2d at 307. The plaintiff thereupon filed his action in a state court in New Mexico, where the defendant was amenable to process and where, by virtue of a longer statute of limitations, suit was not barred. The defendant then removed the case to the United States District Court for the District of New Mexico on the ground of diversity. In the District Court, the Page 376 U. S. 632 defendant moved for dismissal "or, in the alternative, to transfer the cause to the United States District Court of California, Northern Division, pursuant to . . . § 1404(a)." Ibid. The court denied the transfer, indicating "that it would have transferred the action to California had the statute of limitations of that state not run, but, since it had, a transfer would be futile and unavailing." Id., 182 F.2d at 308. The Court of Appeals reversed, observing first that the plaintiff: "had a legal right to select any forum where the defendant was amenable to process, and no contention is made here that the case was not properly brought in the New Mexico state court. It is conceded that the action is not barred by the New Mexico statute. Had the case been tried in the New Mexico state court, the procedural laws of New Mexico including the statutes of limitations would be applicable. . . . [I]n removal cases, the Federal Court must apply the state law and the state policy." Id., 182 F.2d at 309. From this it followed, the court concluded, that: "Upon removal to the Federal Court in New Mexico, the case would remain a New Mexico case controlled by the law and policy of that state, and if § 1404(a) is applicable and a transfer to the California court is ordered for the convenience of the parties, the witnesses, and in the interests of justice, there is no logical reason why it should not remain a New Mexico case still controlled by the law and policy of that state." Id., 182 F.2d at 309-310. Although the cases following the Headrick principle have usually involved a similar problem concerning statutes of limitations, the Court of Appeals for the Second Circuit plainly indicated in H. L. Green Co., Inc. v. MacMahon, Page 376 U. S. 633 supra, that the Headrick rule was equally applicable to other laws of the transferor State, including choice of law rules, which might affect the outcome of the litigation. The plaintiff in that case brought an action under the Securities Exchange Act in the District Court for the Southern District of New York, and there moved to amend his complaint to add a common law claim arising under New York law. Without ruling on the motion to add to the complaint, the District Court granted a motion by the defendant to transfer to the Southern District of Alabama pursuant to § 1404(a). The plaintiff objected to transfer not only because the Alabama statute of limitations would be unfavorable, but also because prejudice would result from applying Alabama law "to the common law claim [which the plaintiff] has moved to join with the statutory claim." 312 F.2d at 652. The Court of Appeals rejected these contentions: "Although, as a matter of federal policy, a case may be transferred to a more convenient part of the system, whatever rights the parties have acquired under state law should be unaffected. The case should remain as it was in all respects but location. Headrick v. Atchison, T. & S.F. Ry. Co., 182 F.2d 305. . . ." Id., 312 F.2d at 652-653. The Court made the import of this rule plain by expressly declaring first that the transferee court sitting in Alabama should apply New York law in ruling on the motion to add to the complaint and, secondly, that if the complaint were thus amended, the transferee court "will apply New York law (including any relevant New York choice of law rules)." Id., 312 F.2d at 654. Of course, these cases allow plaintiffs to retain whatever advantages may flow from the state laws of the forum they have initially selected. There is nothing, however, in the language or policy of § 1404(a) to justify Page 376 U. S. 634 its use by defendants to defeat the advantages accruing to plaintiffs who have chosen a forum which, although it was inconvenient, was a proper venue. In this regard, the transfer provisions of § 1404(a) may be compared with those of § 1406(a). [ Footnote 28 ] Although both sections were broadly designed to allow transfer instead of dismissal, § 1406(a) provides for transfer from forums in which venue is wrongly or improperly laid, whereas, in contrast, § 1404(a) operates on the premises that the plaintiff has properly exercised his venue privilege. [ Footnote 29 ] This distinction underlines the fact that Congress, in passing § 1404(a), was primarily concerned with the problems arising where, despite the propriety of the plaintiff's venue selection, the chosen forum was an inconvenient one. [ Footnote 30 ] Page 376 U. S. 635 In considering the Judicial Code, Congress was particularly aware of the need for provisions to mitigate abuses stemming from broad federal venue provisions. The venue provision of the Federal Employers' Liability Act was the subject of special concern. [ Footnote 31 ] However, while the Judicial Code was pending, Congress considered and rejected the Jennings bill, which, as the Court stated in Ex parte Collett, 337 U. S. 55 , 337 U. S. 64 , "was far more drastic than § 1404(a)," and which "would in large part have repealed [the venue section] of the Liability Act" by severely delimiting the permissible forums. [ Footnote 32 ] This legislative background supports the view that § 1404(a) was not designed to narrow the plaintiff's venue privilege or to defeat the state law advantages that might accrue from the exercise of this venue privilege, but rather the provision was simply to counteract the inconveniences that flowed from the venue statutes by permitting transfer to a convenient federal court. The legislative Page 376 U. S. 636 history of § 1404(a) certainly does not justify the rather startling conclusion that one might "get a change of law as a bonus for a change of venue." [ Footnote 33 ] Indeed, an interpretation accepting such a rule would go far to frustrate the remedial purposes of § 1404(a). If a change of law were in the offing, the parties might well regard the section primarily as a forum-shopping instrument. [ Footnote 34 ] And, more importantly, courts would at least be reluctant to grant transfers, despite considerations of convenience, if to do so might conceivably prejudice the claim of a plaintiff who had initially selected a permissible forum. [ Footnote 35 ] We believe, therefore, that both the history and purposes of § 1404(a) indicate that it should be regarded as a federal judicial housekeeping measure, dealing with the placement of litigation in the federal courts and generally Page 376 U. S. 637 intended, on the basis of convenience and fairness, simply to authorize a change of courtrooms. [ Footnote 36 ] Although we deal here with a congressional statute apportioning the business of the federal courts, our interpretation of that statute fully accords with and is supported by the policy underlying Erie R. Co. v. Tompkins, 304 U. S. 64 . This Court has often formulated the Erie doctrine by stating that it establishes "the principle of uniformity within a state," Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U. S. 487 , 313 U. S. 496 , and declaring that federal courts in diversity of citizenship cases are to apply the laws "of the states in which they sit," Griffin v. McCoach, 313 U. S. 498 , 313 U. S. 503 . [ Footnote 37 ] A superficial reading of these formulations might suggest that a transferee federal court should apply the law of the State in which it Page 376 U. S. 638 sits, rather than the law of the transferor State. Such a reading, however, directly contradicts the fundamental Erie doctrine which the quoted formulations were designed to express. As this Court said in Guaranty Trust Co. v. York, 326 U. S. 99 , 326 U. S. 109 : " Erie R. Co. v. Tompkins was not an endeavor to formulate scientific legal terminology. It expressed a policy that touches vitally the proper distribution of judicial power between State and federal courts. . . . The nub of the policy that underlies Erie R. Co. v. Tompkins is that, for the same transaction, the accident of a suit by a nonresident litigant in a federal court, instead of in a State court a block away, should not lead to a substantially different result." Applying this analysis to § 1404(a), we should ensure that the "accident" of federal diversity jurisdiction does not enable a party to utilize a transfer to achieve a result in federal court which could not have been achieved in the courts of the State where the action was filed. This purpose would be defeated in cases such as the present if nonresident defendants, properly subjected to suit in the transferor State (Pennsylvania), could invoke § 1404(a) to gain the benefits of the laws of another jurisdiction (Massachusetts). What Erie and the cases following it have sought was an identity or uniformity between federal and state courts; [ Footnote 38 ] and the fact that, in most instances, this could be achieved by directing federal courts to apply the laws of the States "in which they Page 376 U. S. 639 sit" should not obscure that, in applying the same reasoning to § 1404(a), the critical identity to be maintained is between the federal district court which decides the case and the courts of the State in which the action was filed. [ Footnote 39 ] We conclude, therefore, that, in cases such as the present, where the defendants seek transfer, the transferee district court must be obligated to apply the state law that would have been applied if there had been no change of venue. A change of venue under § 1404(a) generally should be, with respect to state law, but a change of courtrooms. [ Footnote 40 ] We therefore reject the plaintiffs' contention that the transfer was necessarily precluded by the likelihood that a prejudicial change of law would result. In so ruling, however, we do not and need not consider whether, in all cases, § 1404(a) would require the application of the law of the transferor, as opposed to the transferee, State. [ Footnote 41 ] Page 376 U. S. 640 We do not attempt to determine whether, for example, the same considerations would govern if a plaintiff sought transfer under § 1404(a), [ Footnote 42 ] or if it was contended that the transferor State would simply have dismissed the action on the ground of forum non conveniens. [ Footnote 43 ] B. It is in light of the foregoing analysis that we must consider the interpretation of Rule 17(b) of the Federal Rules of Civil Procedure and the relationship between that Rule and the laws applicable following a § 1404(a) transfer. As indicated supra at 376 U. S. 619 , the plaintiffs contend that transfer cannot be granted because, although they are fully qualified as personal representatives to sue in courts in Pennsylvania, they lack the qualifications necessary to sue in Massachusetts. Rule 17(b) provides that, for such personal representatives, "capacity to sue or be sued shall be determined by the law of the state in which the district court is held." [ Footnote 44 ] The question arising here is whether the Court of Appeals was correct in assuming that, in the context of a § 1404(a) transfer between district courts, the language of the Rule referred to the law of the State in which the transferee district court is held, rather than to the law of the State of the transferor district court. The plaintiffs, arguing that Rule 17(b) refers only to the transferee district court, suggests that their interpretation Page 376 U. S. 641 is necessary to protect the interest of States in controlling the qualifications of foreign fiduciaries. The plaintiffs state that the vast majority of American jurisdictions permit only locally qualified foreign representatives, because safeguards are needed "to protect local citizens who are potential defendants from suits by more than one fiduciary purporting to represent the same decedent and protect all persons from losses caused by the actions of irresponsible out-of-state fiduciaries." These considerations do not, however, support the plaintiffs' interpretation of Rule 17(b). [ Footnote 45 ] In the present case, for example, it is conceded that the plaintiffs are qualified as personal representatives under the laws of the transferor State (Pennsylvania). It seems clear that the defendants, who are seeking transfer to another jurisdiction, will be equitably protected if Rule 17(b) is interpreted to refer to the laws of the transferor State (Pennsylvania). It would be ironic if Rule 17(b) were construed so that these plaintiffs could defeat transfer by arguing that the defendants would receive inadequate protection against "foreign" fiduciaries. Page 376 U. S. 642 We think it is clear that the Rule's reference to the State "in which the district court is held" was intended to achieve the same basic uniformity between state and federal courts as was intended by the decisions which have formulated the Erie policy in terms of requiring federal courts to apply the laws of the States "in which they sit." [ Footnote 46 ] See supra at 376 U. S. 637 -639. The plaintiffs' argument assumes, [ Footnote 47 ] incorrectly we think, that the critical phrase "in which the district court is held" carries a plain meaning which governs even in the case of a § 1404(a) transfer involving two district courts sitting in different States. It should be remembered, however, that this phrase, like those which were formulated to express the Erie doctrine, was employed long before the enactment of a § 1404(a) provision for transfer within the federal system. [ Footnote 48 ] We believe that Rule 17(b) was intended to work an accommodation of interests within our federal system, and that, in interpreting it in new contexts, we should look to its guiding policy, and keep it "free from entanglements with analytical or terminological niceties." Cf. Guaranty Trust Co. v. York, 326 U.S. at 326 U. S. 110 . Since, in this case, the transferee district court must, under § 1404(a), apply the laws of the State of the transferor district court, it follows, in our view, that Rule 17(b) must be interpreted similarly, so that the capacity to sue will also be governed by the laws of the transferor State. Where a § 1404(a) transfer is thus held not to effect a change of law, but essentially only to authorize a change of courtrooms, the reference in Rule 17(b)to the Page 376 U. S. 643 law of the State "in which the district court is held" should be applied in a corresponding manner so that it will refer to the district court which sits in the State that will generally be the source of applicable laws. We conclude, therefore, that the Court of Appeals misconceived the meaning and application of Rule 17(b), and erred in holding that it required the denial of the § 1404(a) transfer. III . APPLICABLE LAW: EFFECT ON THE CONVENIENCE OF PARTIES AND WITNESSES The holding that a § 1404(a) transfer would not alter the state law to be applied does not dispose of the question of whether the proposed transfer can be justified when measured against the relevant criteria of convenience and fairness. Though the answer to this question does not follow automatically from the determination that the transferred actions will carry with them the transferor's laws, that determination nevertheless may make the transfer more or less practical and desirable. The matters to be weighed in assessing convenience and fairness are pervasively shaped by the contours of the applicable laws. The legal rules obviously govern what facts will be relevant and irrelevant, what witnesses may be heard, what evidence will be most vital, and so on. Not only do the rules thus affect the convenience of a given place of trial, but they also bear on considerations such as judicial familiarity with the governing laws and the relative ease and practicality of trying the cases in the alternative forums. In the present case, the District Court held that the requested transfer could and should be granted regardless of whether the laws of the transferor State or of the transferee State were to be applied. 204 F. Supp. at 433-436. The court based its ruling on a general finding that transfer to Massachusetts would be sufficiently convenient and Page 376 U. S. 644 fair under the laws of either Pennsylvania or Massachusetts. We do not attempt to review this general conclusion or to reassess the discretion that was exercised. We do conclude, however, that the District Court in assuming that the transferee court would be free to determine which State's laws were to be applied, overlooked or did not adequately consider several criteria or factors the relevance of which is made more apparent when it is recognized that, even after transfer, the laws of the transferor State will continue to apply. It is apparent that the desirability of transfer might be significantly affected if Pennsylvania courts decided that, in actions such as the present, they would recognize the cause of action based on the Massachusetts Death Act, but would not apply that statute's culpability principle and damage limitation. In regard to this possibility, it is relevant to note that the District Court, in transferring these actions, generally assumed that transfer to Massachusetts would facilitate the consolidation of these cases with those now pending in the Massachusetts District Court, and that, as a result, transfer would be accompanied by the full benefits of consolidation and uniformity of result. 204 F. Supp. at 431-432. Since, however, Pennsylvania laws would govern the trial of the transferred cases, insofar as those laws may be significantly different from the laws governing the cases already pending in Massachusetts, the feasibility of consolidation and the benefits therefrom may be substantially altered. Moreover, if the transferred actions would not be subject to the Massachusetts culpability and damage limitation provisions, then the plaintiffs might find a relatively greater need for compensatory damage witnesses to testify with regard to the economic losses suffered by individuals. It is possible that such a difference in damage rules could make the plaintiffs relatively more dependent upon witnesses more conveniently located for a trial in Pennsylvania. Page 376 U. S. 645 In addition, it has long been recognized that: "There is an appropriateness . . . in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself." Gulf Oil Corp. v. Gilbert, 330 U. S. 501 , 330 U. S. 509 . Thus, to the extent that Pennsylvania laws are difficult or unclear, and might not defer to Massachusetts laws, it may be advantageous to retain the actions in Pennsylvania where the judges possess a more ready familiarity with the local laws. If, on the other hand, Pennsylvania courts would apply the Massachusetts Death Act in its entirety, these same factors might well weigh quite differently. Consolidation of the transferred cases with those now pending in Massachusetts might be freed from any potential difficulties, and rendered more desirable. The plaintiffs' need for witnesses residing in Pennsylvania might be significantly reduced. And, of course, the trial would be held in the State in which the causes of action arose, and in which the federal judges are more familiar with the governing laws. In pointing to these considerations, we are fully aware that the District Court concluded that the relevant Pennsylvania law was unsettled, that its determination involved difficult questions, and that, in the near future, Pennsylvania courts might provide guidance. [ Footnote 49 ] We think that this uncertainty, however, should itself have been considered as a factor bearing on the desirability of transfer. Section 1404(a) provides for transfer to a more Page 376 U. S. 646 convenient forum, not to a forum likely to prove equally convenient or inconvenient. We do not suggest that elements of uncertainty in transferor state law would alone justify a denial of transfer; but we do think that the uncertainty is one factor, among others, to be considered in assessing the desirability of transfer. We have not singled out the above criteria for the purpose of suggesting either that they are of controlling importance or that the criteria actually relied upon by the District Court were improper. We have concluded, however, that the District Court ignored certain considerations which might well have been more clearly appraised and might have been considered controlling had not that court assumed that, even after transfer to Massachusetts, the transferee District Court would be free to decide that the law of its State might apply. It is appropriate, therefore, to reverse the judgment of the Court of Appeals and to remand to the District Court to reconsider the motion to transfer. Accordingly, the judgment of the Court of Appeals for the Third Circuit is reversed, and the cause remanded to the District Court for further proceedings in conformity with this opinion. Reversed and remanded. MR. JUSTICE BLACK concurs in the reversal substantially for the reasons set forth in the opinion of the Court, but he believes that, under the circumstances shown in the opinion, this Court should now hold it was error to order these actions transferred to the District of Massachusetts. [ Footnote 1 ] The plaintiffs are "Pennsylvania fiduciaries representing the estates of Pennsylvania decedents." [ Footnote 2 ] Rule 17(b), Fed.Rules Civ.Proc., 28 U.S.C.: "Capacity to Sue or Be Sued. The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of his domicile. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized. In all other cases, capacity to sue or be sued shall be determined by the law of the state in which the district court is held, except (1) that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States, and (2) that the capacity of a receiver appointed by a court of the United States to sue or be sued in a court of the United States is governed by Title 28, U.S.C., §§ 754 and 959(a)." [ Footnote 3 ] Although it is clear that this Court has jurisdiction to review the judgment of the Court of Appeals, the Government, a defendant in this case, urges that the judgment below be reversed because mandamus was an improper remedy. However, in Hoffman v. Blaski, 363 U. S. 335 , as the Government concedes, this Court reviewed decisions in § 1404(a) transfer cases which the Court of Appeals reviewed through exercise of the mandamus power. See also Norwood v. Kirkpatrick, 349 U. S. 29 ; Ex parte Collett, 337 U. S. 55 . Since, in our opinion, the courts below erred in interpreting the legal limitations upon and criteria for a § 1404(a) transfer, we find it unnecessary to consider the mandamus contentions advanced by the Government. Cf. Platt v. Minnesota Mining & Mfg. Co., ante, at 376 U. S. 240 . [ Footnote 4 ] See, e.g., Norwood v. Kirkpatrick, supra, at 349 U. S. 32 : "When Congress adopted § 1404(a), it intended to do more than just codify the existing law on forum non conveniens. . . . Congress, in writing § 1404(a), which was an entirely new section, was revising as well as codifying." 1 Moore, Federal Practice (2d ed., 1961), pp. 1751-1758. [ Footnote 5 ] See Ex parte Collett, supra, and United States v. National City Lines, Inc., 337 U. S. 78 (interpreting "any civil action" to include actions governed by special, as well as general, venue provisions). [ Footnote 6 ] See 204 F. Supp. 426 , 437. Nor is there any question concerning the propriety either of venue or of jurisdiction in the Eastern District of Pennsylvania, the transferor forum. The District Court indicated that one of the cases arising from the Boston Harbor crash had "already been transferred due to improper venue. . . ." Id., 204 F. Supp. at 427, n. 1. The Court of Appeals noted that counsel suggested that two other cases "must eventually be transferred to the district court in Massachusetts, since venue in the Eastern District of Pennsylvania is improper." 309 F.2d 953 at 958. The transfers ordered in these cases were not contested in the Court of Appeals, ibid., and are not involved in the present case. See notes 11 29 infra. [ Footnote 7 ] The text of Rule 17(b) is set forth in note 2 supra. [ Footnote 8 ] In the two cases decided sub nom. Hoffman v. Blaski, supra, the petitioners conceded "that statutory venue did not exist over either of these actions in the respective transferee districts, and that the respective defendants were not within the reach of the process of the respective transferee courts." Id. 363 U.S. at 363 U. S. 341 . [ Footnote 9 ] Two weeks after Hoffman, the Court decided Continental Grain Co. v. Barge F.B.L.-585, 364 U. S. 19 . See infra at 376 U. S. 622 . In that case, a cargo owner, seeking damages from a barge owner, had joined in a single complaint an in personam claim against the barge owner and an in rem claim against the barge. The complaint was filed in the Federal District Court in New Orleans. At that time, the barge, or the res, was in New Orleans. The plaintiff cargo owner opposed a motion to transfer to the District Court in Memphis on the ground that the in rem claim could not have been brought in that forum, which had only personal jurisdiction over the barge owner at the time the New Orleans suit was brought. The Court, rejecting this argument, held that, for purposes of assessing where the litigation "might have been brought," the in personam and in rem claims should be practically viewed as a single "civil action" in which the complainant had chosen "an alternative way of bringing the owner into court." Id., at 364 U. S. 26 . See Comment, 31 U. of Chi.L.Rev. 373 (1964). [ Footnote 10 ] A similar rule had been applied in Felchlin v. American Smelting & Refining Co., 136 F. Supp. 577 (D.C.S.D.Cal.1955). [ Footnote 11 ] See Note, 60 Yale L.J. 183 (1951). The analogous provisions of § 1406(a), which shares the same statutory context, contain a similar phrase: "The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or, if it be in the interest of justice, transfer such case to any district or division in which it could have been brought. " 28 U.S.C. § 1406(a). (Emphasis added.) See Goldlawr, Inc., v. Heiman, 369 U. S. 463 ; Hart and Wechsler, The Federal Courts and the Federal System (1953), p. 979; Comment, 30 U. of Chi.L.Rev. 735 (1963). [ Footnote 12 ] 28 U.S.C. §§ 1391(a)(b), 1392(a)(b), 1393(b), 1395(d), 1396, 1397, 1399, 1400(b). [ Footnote 13 ] 28 U.S.C. §§ 1394, 1395(a)(b)(c)(e), 1401, 1402(a)(b). Other venue provisions in the same chapter of the Judicial Code use language such as: "may be sued," § 1391(d); "must be brought," § 1393(a); "shall be brought," §§ 1398, 1403; and "may be instituted," § 1400(a). [ Footnote 14 ] Note, 76 Harv.L.Rev. 1679, 1680 (1963). [ Footnote 15 ] See note 9 supra. [ Footnote 16 ] See Note, 17 Rutgers L.Rev. 664, 668 (1963); 52 A.L.R.2d 1048. The implications of the Court of Appeals' decision are plainly indicated by two subsequent decisions, Goranson v. Capital Airlines, Inc., 221 F. Supp. 820 (D.C.E.D.Va.), and Thompson v. Capital Airlines, Inc., 220 F. Supp. 140 (D.C.S.D.N.Y.). [ Footnote 17 ] The text of Rule 17(b) is set forth in note 2 supra. [ Footnote 18 ] See the rationale adopted in Felchlin v. American Smelting & Refining Co., 136 F. Supp. 577 (relied upon by the Court of Appeals in the present case, 309 F.2d at 957). [ Footnote 19 ] It has been observed that, in the present case, "the [Court of Appeals'] foray into Massachusetts substantive law need never have been undertaken had the court been confident that the transferee forum would treat the question of qualification as governed by the doctrine . . . that the transferee court should apply the law of the transferor forum." Note, 76 Harv.L.Rev. 1679, 1681 (1963). Similarly, it has been noted that if, under the Court of Appeals decision, "there is no significant difference between venue-jurisdiction and capacity, there may be no adequate difference between capacity and a host of other defensive bars that may foreseeably subject a plaintiff to dismissal." Note, 17 Rutgers L.Rev. 664, 666 (1963); cf. Comment, 51 Col.L.Rev. 762, 771 (1951). [ Footnote 20 ] See Cavers, Change in Choice of Law Thinking and Its Bearing on the Klaxon Problem, in A.L.I., Study of the Division of Jurisdiction between State and Federal Courts (Tent. Draft No. 1, 1963), pp. 154, 193. [ Footnote 21 ] In Massachusetts Bonding & Ins. Co. v. United States, 352 U. S. 128 , this Court reviewed the relationship between the provisions of the Federal Tort Claims Act and the principles of the Massachusetts Death Act. Only two States, Alabama and Massachusetts, "award only punitive damages for wrongful deaths." Id. at 352 U. S. 130 -131. The Court stated: "The assessment of damages with reference to the degree of culpability of the tortfeasor, rather than with reference to the amount of pecuniary loss suffered by the next of kin, makes those damages punitive in nature. That has been the holding of the Supreme Judicial Court of Massachusetts. . . . The standard of liability under the Massachusetts Death Act is punitive -- i.e., 'with reference to the degree' of culpability -- not compensatory. . . . There is nothing in the Massachusetts law which measures the damages by 'pecuniary injuries.'" Id. at 352 U. S. 129 , 352 U. S. 132 -133. E.g., Beatty v. Fox, 328 Mass. 216, 102 N.E.2d 781 ; Macchiaroli v. Howell, 294 Mass. 144, 200 N.E. 905; Boott Mills v. Boston & M. R.R., 218 Mass. 582, 106 N.E. 680; Bagley v. Small, 92 N.H. 107, 26 A.2d 23. Compare 12 Purdon's Pa.Stat.Ann. §§ 1601-1604; Spangler v. Helm's New York-Pittsburgh Motor Express, 396 Pa. 482, 153 A.2d 490; cf. Thirteenth & Fifteenth Street Passenger R. Co. v. Boudrou, 92 Pa. 475, 481-482. [ Footnote 22 ] Cf. Goranson v. Kloeb, 308 F.2d 655. [ Footnote 23 ] See Blume, Place of Trial of Civil Cases, 48 Mich.L.Rev. 1, 37 (1949). [ Footnote 24 ] The defendants, rejecting the view adopted by the Second Circuit in Pearson v. Northeast Airlines, Inc., 309 F.2d 553, contend that the Full Faith and Credit Clause requires Pennsylvania courts to follow all the terms of the Massachusetts Death Act. We intimate no view concerning this contention. [ Footnote 25 ] See, e.g., Note, 64 Harv.L.Rev. 1347, 1354-1355 (1951), which assumes that changes of venue might be accompanied by changes of law and concludes that: "To make the transfer purely for reasons of convenience, without considering the difference in law, would amount to directing a verdict on the merits without examining them." [ Footnote 26 ] See H. L. Green Co., Inc., v. MacMahon, 312 F.2d 650; Benton v. Vinson, Elkins, Weems & Searls, 255 F.2d 299; Headrick v. Atchison, T. & S.F. R. Co., 182 F.2d 305. See also, e.g., King Bros. Productions, Inc. v. RKO Teleradio Pictures, Inc., 209 F. Supp. 271; Gomez v. The SS Dorothy, 183 F. Supp. 499 ; Hargrove v. Louisville & N. R. Co., 153 F. Supp. 681 ; Heaton v. Southern R. Co., 119 F. Supp. 658 ; Frechoux v. Lykes Bros. S.S. Co., Inc., 118 F. Supp. 234; Greve v. Gibraltar Enterprises, Inc., 85 F. Supp. 410 ; cf. Curry v. States Marine Corp. of Delaware, 118 F. Supp. 234. But cf. Goranson v. Kloeb, 308 F.2d 655 (transfer granted because, even assuming transferee law applied, the substantive rules would be identical); Felchlin v. American Smelting & Refining Co., 136 F. Supp. 577 ( see note 18 supra ); Curry v. States Marine Corp. of Delaware, supra (transfer denied upon failure of parties to stipulate that transferor statute of limitations would apply). See also authorities cited, note 39 infra. [ Footnote 27 ] Frequently, courts dealing with a defendant's motion to transfer have relied at least in part upon a "transfer on condition" or estoppel approach to grant transfer and protect the plaintiff. E.g., Frechoux v. Lykes Bros. S.S. Co., supra; Greve v. Gibraltar Enterprises, Inc., supra; Crawford v. The SS Shirley Lykes, 148 F. Supp. 958 ; May v. The Steel Navigator, 152 F. Supp. 254 ; Hokanson v. Helene Curtis Industries, Inc., 177 F. Supp. 701 . [ Footnote 28 ] See note 11 supra. [ Footnote 29 ] In Viaggio v. Field, 177 F. Supp. 643 , 648 , the District Court suggested that cases where defendants sought transfer under § 1404(a) were the "converse of the situation . . . in the instant case [under § 1406(a)], where it is the plaintiff who brought the suit incorrectly in this court and is now asking to have it transferred to another court and hopes thereby to obtain an advantage with respect to [the transferee state's statute of] limitations." See Skilling v. Funk Aircraft Co., 173 F. Supp. 939 ; Comment, 61 Col.L.Rev. 902, 914 (1961); Comment, 30 U. of Chi.L.Rev. 735, 745, n. 68 (1963); Comment, 1962 Wis.L.Rev. 342, 35. Cf. Goldlawr, Inc. v. Heiman, 369 U.S. at 369 U. S. 466 -467. See note 6 supra. [ Footnote 30 ] See Gulf Oil Corp. v. Gilbert, 330 U. S. 501 , 330 U. S. 507 : "The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute. These statutes are drawn with a necessary generality, and usually give a plaintiff a choice of courts, so that he may be quite sure of some place in which to pursue his remedy." The Revisor's Note to § 1404(a) states that it "was drafted in accordance with the doctrine of forum non conveniens, permitting transfer to a more convenient forum, even though the venue is proper. As an example of the need of such a provision, see Baltimore & Ohio R. Co. v. Kepner, 314 U. S. 44 (1941), which was prosecuted under the Federal Employer's Liability Act in New York, although the accident occurred and the employee resided in Ohio. The new subsection requires the court to determine that the transfer is necessary for convenience of the parties and witnesses, and further, that it is in the interest of justice to do so." Revision of Title 28, United States Code, Report of the House Committee on Revision of the Laws on H.R. 7124, 79th Cong., 2d Sess., p. A127. [ Footnote 31 ] See Ex parte Collett, supra, at 337 U. S. 68 -69; Revisor's Note following § 1404(a) ( note 30 supra ); Moore, Commentary on the U.S. Judicial Code (1949), p. 206. [ Footnote 32 ] In Ex parte Collett, supra, at 337 U. S. 60 , the Court observed: "Section 6 of the Liability Act defines the proper forum; § 1404(a) of the Code deals with the right to transfer an action properly brought. The two sections deal with two separate and distinct problems. Section 1404(a) does not limit or otherwise modify any right granted in § 6 of the Liability Act or elsewhere to bring suit in a particular district. An action may still be brought in any court, state or federal, in which it might have been brought previously." (Emphasis added.) [ Footnote 33 ] Mr. Justice Jackson, dissenting in Wells v. Simonds Abrasive Co., 345 U. S. 514 , 345 U. S. 522 , expressed dismay at what he viewed as such a suggestion: "Are we then to understand that parties may get a change of law as a bonus for a change of venue? If the law of the forum in which the case is tried is to be the sole test of substantive law, burden of proof, contributory negligence, measure of damages, limitations, admission of evidence, conflict of laws and other doctrines, . . . then shopping for a favorable law via the [transfer] route opens up possibilities of conflict, confusion and injustice greater than anything Swift v. Tyson , 16 Pet. 1, ever held." [ Footnote 34 ] See Currie, Change of Venue and the Conflict of Laws, 22 U. of Chi.L.Rev. 405, 441 (1955): "If it should be established as a rule of thumb that the transferee court is to apply the law of the state in which it sits, every case in which there is a difference of law between the original and the transferee state would become a game of chess, with Section 1404(a) authorizing a knight's move; and nothing would be certain except that the parties would land on a square of a different color." [ Footnote 35 ] See, e.g., Note, 64 Harv.L.Rev. 1347, 1355 (1951): "It would seem best, therefore, not to transfer at all where the law which would be applied in the transferee forum would be materially different from that applied by the transferring court." [ Footnote 36 ] For recent proposals, see A.L.I., Study of the Division of Jurisdiction between State and Federal Courts (Tent. Draft No. 1, 1963), §§ 1306, 1307, 1308. The commentary on the proposed § 1306 notes that, where the defendant seeks transfer, the section would provide "that the transferee court shall apply the rules which the transferor court would have been bound to apply. . . . The effect is to give the plaintiff the benefit which traditionally he has had in the selection of a forum with favorable choice of law rules. . . . It may be thought undesirable to let the plaintiff reap a choice of law benefit from the deliberate selection of an inconvenient forum. In a sense, this is so, but the alternatives seem even more undesirable. If the rules of the State where the transferee district is located were to control, the judge exercising his discretion upon a motion for transfer might well make a ruling decisive of the merits of the case. Whether he should simply decide the appropriate place for trial, letting the choice of law bonus fall as it may, or include in his consideration of 'the interest of justice' the 'just' choice of law rule, the result is unfortunate. . . ." Id. at 65-66. [ Footnote 37 ] See also, e.g., Guaranty Trust Co. v. York, 326 U. S. 99 , 326 U. S. 108 ("a federal court adjudicating a state-created right solely because of the diversity of citizenship of the parties is for that purpose, in effect, only another court of the State. . . ."). [ Footnote 38 ] In Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U. S. 487 , 313 U. S. 496 , the Court observed that: "Whatever lack of uniformity [the Erie doctrine] may produce between federal courts in different states is attributable to our federal system, which leaves to a state, within the limits permitted by the Constitution, the right to pursue local policies diverging from those of its neighbors." See note 36 supra. [ Footnote 39 ] See cases cited notes 26-27 supra. See 1 Moore, supra, at 1772-1777; Currie, Change of Venue and the Conflict of Laws, 22 U. of Chi.L.Rev. 405, 410-413, 438-439 (1955); Currie, Change of Venue and the Conflict of Laws: A Retraction, 27 U. of Chi.L.Rev. 341 (1960); Note, 60 Yale L.J. 537 (1951). But see Kaufman, Observations on Transfers under § 1404(a) of the New Judicial Code, 10 F.R.D. 595, 601 (1951); Note, 64 Harv.L.Rev. 1347, 1354-1355 (1951); cf. Note, 35 Cornell L.Q. 459, 462, 464 (1950). [ Footnote 40 ] Of course, the transferee District Court may apply its own rules governing the conduct and dispatch of cases in its court. We are only concerned here with those state laws of the transferor State which would significantly affect the outcome of the case. [ Footnote 41 ] We do not suggest that the application of transferor state law is free from constitutional limitations. See, e.g., Watson v. Employers Liability Assurance Corp., Ltd., 348 U. S. 66 ; Hughes v. Fetter, 341 U. S. 609 ; Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U. S. 493 ; Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U. S. 532 ; Home Ins. Co. v. Dick, 281 U. S. 397 . [ Footnote 42 ] Cf. note 29 supra. [ Footnote 43 ] Compare Currie, Change of Venue and the Conflict of Laws: A Retraction, 27 U. of Chi.L.Rev. at 348 (1960) with Note, 60 Yale L.J. 537, 539-541 (1951). In Parsons v. Chesapeake & O. R. Co., 375 U. S. 71 , involving a suit arising under the Federal Employers' Liability Act, the Court ruled in a per curiam opinion that: "a prior state court dismissal on the ground of forum non conveniens can never serve to divest a federal district judge of the discretionary power vested in him by Congress to rule upon a motion to transfer under § 1404(a)." Id. at 375 U. S. 73 -74. [ Footnote 44 ] The text of Rule 17(b) is set forth in note 2 supra. [ Footnote 45 ] The Court of Appeals, referring to Rule 17(b), observed: "That most jurisdictions do not permit foreign personal representatives to bring suit in their courts as a matter of right is a well known rule of law, and we cannot presume that Congress intended to alter state policy to the extent of permitting transfer of such suits to the federal courts sitting in those states." 309 F.2d at 958. This assumes that it is consistent with the purposes of Rule 17(b) that the governing or prevailing "state policy" be the policy of the transferee State, rather than that of the transferor State. Since, however, the actions, when originally instituted, were subject to the transferor State's laws, it is misleading to suggest that the continued application of those laws would "alter" state policy. To the contrary, if the plaintiffs have selected a proper state forum and have qualified therein as personal representatives, the policy of that State would be "altered" if, as a result of the defendants' motion to transfer under § 1404(a), the plaintiffs lost their status as qualified representatives. [ Footnote 46 ] Cf. Note, 62 Harv.L.Rev. 1030, 1037-1041 (1949). [ Footnote 47 ] See Felchlin v. American Smelting & Refining Co., 136 F. Supp. 577 , 581-582 ( note 18 supra ). [ Footnote 48 ] The relevant provisions of Rule 17(b) were adopted by this Court and transmitted to Congress on December 20, 1937. See 308 U.S. 649, 685. Section 1404(a) was first enacted in the Judicial Code of 1948. [ Footnote 49 ] 204 F. Supp. at 435 and n. 20. The District Court opinion was filed in April, 1962. The defendants allege that a subsequent Pennsylvania decision, Griffith v. United Air Lines, Inc. (Pa.C.P., Phila.Cty., June Term, 1962, No. 2013), indicates that Pennsylvania courts would accept and apply the Massachusetts Death Act in its entirety. Of course, we intimate no view with respect to this contention.

Here is a summary of the Supreme Court case Van Dusen v. Barrack: Issue: Whether a transfer of a case from one federal district court to another under § 1404(a) of the Judicial Code of 1948 results in a change of the applicable state law. Holding: No. The Supreme Court held that the phrase "where it might have been brought" in § 1404(a) refers to federal venue laws and not the laws of the state where the transferee district court is located. Therefore, a transfer under § 1404(a) should not change the governing state laws. The Court also interpreted Rule 17(b) of the Federal Rules of Civil Procedure, which relates to the capacity of personal representatives to sue, to refer to the law of the state in which the transferor district court is located. Facts: Respondents, personal representatives of Pennsylvania decedents, filed wrongful death actions in a Pennsylvania district court arising from an airplane crash in Massachusetts. The district court granted petitioners' motion to transfer the cases to a Massachusetts district court under § 1404(a) for the convenience of parties and witnesses. The Court of Appeals vacated the transfer order, holding that it could only be granted if respondents were qualified to sue in Massachusetts courts. Reasoning: The Supreme Court interpreted § 1404(a) as referring to federal venue laws, not state laws, when determining where an action "might have been brought." The Court also emphasized that a § 1404(a) transfer should not change the governing state laws, especially when the actions were properly brought in the transferor district court. Regarding Rule 17(b), the Court interpreted "the district court" to refer to the transferor district court, ensuring that plaintiffs' status as qualified representatives would not be lost due to a transfer. The Court outlined the criteria for convenience and fairness under § 1404(a), including witnesses, relevant evidence, judicial familiarity with governing state laws, and the practicality of trying the case in the transferee district court.

Lawsuits & Legal Procedures

United Mine Workers of America v. Gibbs

https://supreme.justia.com/cases/federal/us/383/715/

U.S. Supreme Court United Mine Workers v. Gibbs, 383 U.S. 715 (1966) United Mine Workers of America v. Gibbs No. 243 Argued January 20, 1966 Decided March 28, 1966 383 U.S. 715 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Syllabus A coal company closed a mine in Tennessee and laid off miners belonging to one of petitioner's local unions. Thereafter, the company, through a subsidiary, attempted to open a new mine nearby with members of a rival union. Respondent was hired as mine superintendent and given a contract to truck coal to the nearest rail loading point. On August 15 and 16, 1960, armed members of petitioner's local forcibly prevented the opening of the mine, threatened respondent, and assaulted an organizer for the rival union. Petitioner's area representative was away at a union board meeting when he learned of the violence. He returned late on August 16 with instructions to establish a limited picket line, prevent further violence, and to see that neighboring mines were not struck. There was no further violence at the mine site; a picket line was maintained for nine months, and no further effort was made to open the mine. Respondent lost his job as superintendent, never performed his haulage contract, and allegedly lost other trucking contracts and mine leases because of a concerted union plan against him. Suing only the international union, he sought recovery under § 303 of the Labor Management Relations Act and the common law of Tennessee. Jurisdiction was premised on allegations of secondary boycotts under § 303, and the state law claim, for which jurisdiction was based on the doctrine of pendent jurisdiction, asserted an unlawful conspiracy and boycott to interfere with respondent's contracts of employment and haulage. The jury found that petitioner had violated both § 303 and state law, and respondent was awarded actual and punitive damages. On motion, the trial court set aside the damages award with respect to the haulage contract on the ground that damage was not proved. It also held that union pressure on respondent's employer to discharge him would constitute only a primary dispute with the employer, not cognizable under § 303. Interference with employment was cognizable as a state claim, and a remitted award was sustained thereon. The Court of Appeals affirmed. Held: 1. The District Court properly entertained jurisdiction of the claim based on state law. Pp. 383 U. S. 721 -729. Page 383 U. S. 716 (a) The state law claim, based in part on violence and intimidation, was not preempted by § 303. P. 383 U. S. 721 . (b) Pendent jurisdiction, in the sense of judicial power, exists whenever there is a substantial federal claim and the relationship between it and the asserted state claims permits the conclusion that the entire action before the court comprises one "case." P. 383 U. S. 725 . (c) Pendent jurisdiction is a doctrine of discretion, justified by judicial economy, convenience and fairness to litigants. P. 383 U. S. 726 . (d) The District Court did not exceed its discretion in exercising jurisdiction over the state law claim. Pp. 383 U. S. 727 -729. 2. State law remedies against violence and threats of violence arising in labor disputes have been sustained against the challenge of preemption by federal labor legislation, but the scope of such remedies is confined to the direct consequences of such conduct. Pp. 383 U. S. 729 -731. 3. Although petitioner concedes that violence which would justify application of such limited state tort law occurred during the first two days of the strike, it appeared that neither the pleadings, arguments of counsel, nor the instructions to the jury adequately defined the area within which damages could be awarded under state law, where the tort claimed, essentially a "conspiracy" to interfere with respondent's contractual relations, was not itself so limited. Pp. 383 U. S. 732 -735. 4. Since petitioner was not clearly proved to have participated in or authorized the two days' violence, nor to have ratified it or built its picketing campaign upon the fear of the violence engendered, the special proof requirements of § 6 of the Norris-LaGuardia Act were not satisfied, and petitioner cannot be held liable to respondent under state law. Pp. 383 U. S. 735 -742. (a) While the Labor Management Relations Act expressly provides that, for purposes of that Act, including § 303, the union's responsibility for acts of its members and officers is to be measured by ordinary agency standards, rather than § 6's more stringent standard of "clear proof," it does not displace § 6 for other purposes, and § 6 plainly applies to federal court hearings of state tort claims arising out of labor disputes. Pp. 383 U. S. 736 -737. (b) The "clear proof" language of § 6 is similar to "clear, unequivocal, and convincing proof," used elsewhere. Although, under this standard, the plaintiff in a civil suit does not have to satisfy the criminal standard of reasonable doubt, he is required to persuade by a substantial margin, and to come forward with more than a bare preponderance of the evidence. P. 383 U. S. 737 . Page 383 U. S. 717 (c) Respondent did not present clear proof that petitioner authorized or participated in the violence, or that it ratified the violence which had occurred, and, accordingly, cannot recover from petitioner. Pp. 383 U. S. 738 -742. 343 F.2d 609, reversed. MR. JUSTICE BRENNAN delivered the opinion of the Court. Respondent Paul Gibbs was awarded compensatory and punitive damages in this action against petitioner United Mine Workers of America (UMW) for alleged violations of § 303 of the Labor Management Relations Act, 1947, 61 Stat. 158, as amended, [ Footnote 1 ] and of the common law of Page 383 U. S. 718 Tennessee. The case grew out of the rivalry between the United Mine Workers and the Southern Labor Union over representation of workers in the southern Appalachian coal fields. Tennessee Consolidated Coal Company, not a party here, laid off 100 miners of the UMW's Local 5881 when it closed one of its mines in southern Tennessee during the spring of 1960. Late that summer, Grundy Company, a wholly owned subsidiary of Consolidated, hired respondent as mine superintendent to attempt to open a new mine on Consolidated's property at nearby Gray's Creek through use of members of the Southern Labor Union. As part of the arrangement, Grundy also gave respondent a contract to haul the mine's coal to the nearest railroad loading point. On August 15 and 16, 1960, armed members of Local 5881 forcibly prevented the opening of the mine, threatening respondent and beating an organizer for the rival union. [ Footnote 2 ] The members of the local believed Consolidated Page 383 U. S. 719 had promised them the jobs at the new mine; they insisted that, if anyone would do the work, they would. At this time, no representative of the IMW, their international union, was present. George Gilbert, the UMW's field representative for the area including Local 881, was away at Middlesboro, Kentucky, attending an Executive Board meeting when the members of the local discovered Grundy's plan; [ Footnote 3 ] he did not return to the area until late in the day of August 16. There was uncontradicted testimony that he first learned of the violence while at the meeting, and returned with explicit instructions from his international union superiors to establish a limited picket line, to prevent any further violence, and to see to it that the strike did not spread to neighboring mines. There was no further violence at the mine site; a picket line was maintained there for nine months, and no further attempts were made to open the mine during that period. [ Footnote 4 ] Page 383 U. S. 720 Respondent lost his job as superintendent, and never entered into performance of his haulage contract. He testified that he soon began to lose other trucking contracts and mine leases he held in nearby areas. Claiming these effects to be the result of a concerted union plan against him, he sought recovery not against Local 5881 or its members, but only against petitioner, the international union. The suit was brought in the United States District Court for the Eastern District of Tennessee, and jurisdiction was premised on allegations of secondary boycotts under § 303. The state law claim, for which jurisdiction was based upon the doctrine of pendent jurisdiction, asserted "an unlawful conspiracy and an unlawful boycott aimed at him and [Grundy] to maliciously, wantonly and willfully interfere with his contract of employment and with his contract of haulage. [ Footnote 5 ]" The trial judge refused to submit to the jury the claims of pressure intended to cause mining firms other than Grundy to cease doing business with Gibbs; he found those claims unsupported by the evidence. The jury's verdict was that the UMW had violated both § 303 and state law. Gibbs was awarded $60,000 as damages under the employment contract and $14,500 under the haulage contract; he was also awarded $100,000 punitive damages. On motion, the trial court set aside the award of damages with respect to the haulage contract on the ground that damage was unproved. It also held that union pressure on Grundy to discharge respondent as supervisor would constitute only a primary dispute with Grundy, as respondent's employer, and hence was not cognizable as a claim under § 303. Interference with the Page 383 U. S. 721 employment relationship was cognizable as a state claim, however, and a remitted award was sustained on the state law claim. [ Footnote 6 ] 220 F. Supp. 871 . The Court of Appeals for the Sixth Circuit affirmed. 343 F.2d 609. We granted certiorari. 382 U.S. 809. We reverse. I A threshold question is whether the District Court properly entertained jurisdiction of the claim based on Tennessee law. There was no need to decide a like question in Teamsters Union v. Morton, 377 U. S. 252 , since the pertinent state claim there was based on peaceful secondary activities, and we held that state law based on such activities had been preempted by § 303. But here, respondent's claim is based in part on proofs of violence and intimidation. "[W]e have allowed the States to grant compensation for the consequences, as defined by the traditional law of torts, of conduct marked by violence and imminent threats to the public order. United Automobile Workers v. Russell, 356 U. S. 634 ; United Construction Workers v. Laburnum Corp., 347 U. S. 656 . . . . State jurisdiction has prevailed in these situations because the compelling state interest, in the scheme of our federalism, in the maintenance of domestic peace is not overridden in the absence of clearly expressed congressional direction." San Diego Building Trades Council v. Garmon, 359 U. S. 236 , 359 U. S. 247 . Page 383 U. S. 722 The fact that state remedies were not entirely preempted does not, however, answer the question whether the state claim was properly adjudicated in the District Court absent diversity jurisdiction. The Court held in Hurn v. Oursler, 289 U. S. 238 , that state law claims are appropriate for federal court determination if they form a separate but parallel ground for relief also sought in a substantial claim based on federal law. The Court distinguished permissible from nonpermissible exercises of federal judicial power over state law claims by contrasting "a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground; in the latter, it may not do so upon the nonfederal cause of action." 289 U.S. at 289 U. S. 246 . The question is into which category the present action fell. Hurn was decided in 1933, before the unification of law and equity by the Federal Rules of Civil Procedure. At the time, the meaning of "cause of action" was a subject of serious dispute; [ Footnote 7 ] the phrase might "mean one thing for one purpose and something different for another." Page 383 U. S. 723 United States v. Memphis Cotton Oil Co., 288 U. S. 62 , 288 U. S. 67 -68. [ Footnote 8 ] The Court in Hurn identified what it meant by the term by citation of Baltimore S.S. Co. v. Phillips, 274 U. S. 316 , a case in which "cause of action" had been used to identify the operative scope of the doctrine of res judicata. In that case, the Court had noted that " the whole tendency of our decisions is to require a plaintiff to try his whole cause of action and his whole case at one time.'" 274 U.S. at 274 U. S. 320 . It stated its holding in the following language, quoted in part in the Hurn opinion: "Upon principle, it is perfectly plain that the respondent [a seaman suing for an injury sustained while working aboard ship] suffered but one actionable wrong, and was entitled to but one recovery, whether his injury was due to one or the other of several distinct acts of alleged negligence, or to a combination of some or all of them. In either view, there would be but a single wrongful invasion of a single primary right of the plaintiff, namely, the right of bodily safety, whether the acts constituting such invasion were one or many, simple or complex." "A cause of action does not consist of facts, but of the unlawful violation of a right which the facts show. The number and variety of the facts alleged do not establish more than one cause of action so long as their result, whether they be considered severally or in combination, is the violation of but one right by a single legal wrong. The mere multiplication of grounds of negligence alleged as causing the same injury does not result in multiplying the causes of action." "The facts are merely the means, Page 383 U. S. 724 and not the end. They do not constitute the cause of action, but they show its existence by making the wrong appear." Id. at 271 U. S. 321 . Had the Court found a jurisdictional bar to reaching the state claim in Hurn, we assume that the doctrine of res judicata would not have been applicable in any subsequent state suit. But the citation of Baltimore S.S. Co. shows that the Court found that the weighty policies of judicial economy and fairness to parties reflected in res judicata doctrine were, in themselves, strong counsel for the adoption of a rule which would permit federal courts to dispose of the state as well as the federal claims. With the adoption of the Federal Rules of Civil Procedure and the unified form of action, Fed.Rule Civ.Proc. 2, much of the controversy over "cause of action" abated. The phrase remained as the keystone of the Hurn test, however, and, as commentators have noted, [ Footnote 9 ] has been the source of considerable confusion. Under the Rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged. [ Footnote 10 ] Yet, because the Hurn question involves issues of jurisdiction, as well as convenience, there has been some tendency to limit its application to cases in which the state and federal claims are, as in Hurn, "little more than the equivalent of different epithets to characterize the same group of circumstances." 289 U.S. at 289 U. S. 246 . [ Footnote 11 ] Page 383 U. S. 725 This limited approach is unnecessarily grudging. Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim "arising under [t]he Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . ," U.S.Const., Art. III, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional "case." [ Footnote 12 ] The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. Levering & Garriges Co. v. Morrin, 289 U. S. 103 . The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole. [ Footnote 13 ] Page 383 U. S. 726 That power need not be exercised in every case in which it is found to exist. It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff's right. [ Footnote 14 ] Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present, a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them, Erie R. Co. v. Tompkins, 304 U. S. 64 . Needless decisions of state law should be avoided, both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. [ Footnote 15 ] Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well. [ Footnote 16 ] Similarly, if it appears that the state issues substantially predominate, whether, in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and Page 383 U. S. 727 left for resolution to state tribunals. There may, on the other hand, be situations in which the state claim is so closely tied to questions of federal policy that the argument for exercise of pendent jurisdiction is particularly strong. In the present case, for example, the allowable scope of the state claim implicates the federal doctrine of preemption; while this interrelationship does not create statutory federal question jurisdiction, Louisville & N. R. Co. v. Mottley, 211 U. S. 149 , its existence is relevant to the exercise of discretion. Finally, there may be reasons independent of jurisdictional considerations, such a the likelihood of jury confusion in treating divergent legal theories of relief, that would justify separating state and federal claims for trial, Fed.Rule Civ.Proc. 42(b). If so, jurisdiction should ordinarily be refused. The question of power will ordinarily be resolved on the pleadings. But the issue whether pendent jurisdiction has been properly assumed is one which remains open throughout the litigation. Pretrial procedures, or even the trial itself, may reveal a substantial hegemony of state law claims, or likelihood of jury confusion, which could not have been anticipated at the pleading stage. Although it will, of course, be appropriate to take account in this circumstance of the already completed course of the litigation, dismissal of the state claim might even then be merited. For example, it may appear that the plaintiff was well aware of the nature of his proofs and the relative importance of his claims; recognition of a federal court's wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant's effort to impose upon it what is in effect only a state law case. Once it appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed. Page 383 U. S. 728 We are not prepared to say that, in the present case, the District Court exceeded its discretion in proceeding to judgment on the state claim. We may assume for purposes of decision that the District Court was correct in its holding that the claim of pressure on Grundy to terminate the employment contract was outside the purview of § 303. Even so, the § 303 claims based on secondary pressures on Grundy relative to the haulage contract and on other coal operators generally were substantial. Although § 303 limited recovery to compensatory damages based on secondary pressures, Teamsters Union v. Morton, supra, and state law allowed both compensatory and punitive damages, and allowed such damages as to both secondary and primary activity, the state and federal claims arose from the same nucleus of operative fact and reflected alternative remedies. Indeed, the verdict sheet sent in to the jury authorized only one award of damages, so that recovery could not be given separately on the federal and state claims. It is true that the § 303 claims ultimately failed, and that the only recovery allowed respondent was on the state claim. We cannot confidently say, however, that the federal issues were so remote, or played such a minor role at the trial that, in effect, the state claim only was tried. Although the District Court dismissed as unproved the § 303 claims that petitioner's secondary activities included attempts to induce coal operators other than Grundy to cease doing business with respondent, the court submitted the § 303 claims relating to Grundy to the jury. The jury returned verdicts against petitioner on those § 303 claims, and it was only on petitioner's motion for a directed verdict and a judgment n.o.v. that the verdicts on those claims were set aside. The District Judge considered the claim as to the haulage Page 383 U. S. 729 contract proved as to liability, and held it failed only for lack of proof of damages. Although there was some risk of confusing the jury in joining the state and federal claims, especially since, as will be developed, differing standards of proof of UMW involvement applied -- the possibility of confusion could be lessened by employing a special verdict form, as the District Court did. Moreover, the question whether the permissible scope of the state claim was limited by the doctrine of preemption afforded a special reason for the exercise of pendent jurisdiction; the federal courts are particularly appropriate bodies for the application of preemption principles. We thus conclude that, although it may be that the District Court might, in its sound discretion, have dismissed the state claim, the circumstances show no error in refusing to do so. II This Court has consistently recognized the right of States to deal with violence and threats of violence appearing in labor disputes, sustaining a variety of remedial measures against the contention that state law was preempted by the passage of federal labor legislation. Allen-Bradley Local v. Wisconsin Board, 315 U. S. 740 ; United Construction Workers v. Laburnum Construction Corp., 347 U. S. 656 ; United Automobile Workers v. Wisconsin Board, 351 U. S. 266 ; Youngdahl v. Rainfair, Inc., 355 U. S. 131 ; United Automobile Workers v. Russell, 356 U. S. 634 . Petitioner concedes the principle, but argues that the permissible scope of state remedies in this area is strictly confined to the direct consequences of such conduct, and does not include consequences resulting from associated peaceful picketing or other union activity. We agree. Our opinions on this subject, frequently announced over weighty arguments in dissent that state remedies Page 383 U. S. 730 were being given too broad scope, have approved only remedies carefully limited to the protection of the compelling state interest in the maintenance of domestic peace. Thus, in San Diego Building Trades Council v. Garmon, 359 U. S. 236 , we read our prior decisions as only allowing "the States to grant compensation for the consequences, as defined by the traditional law of torts, of conduct marked by violence and imminent threats to the public order," id. at 359 U. S. 247 , and noted that, in Laburnum, "damages were restricted to the 'damages directly and proximately caused by wrongful conduct chargeable to the defendants . . . ' as defined by the traditional law of torts. . . . Thus, there is nothing in the measure of damages to indicate that state power was exerted to compensate for anything more than the direct consequences of the violent conduct." Id. 359 U. S. 248 , n. 6, at 359 U. S. 249 . In Russell, we specifically observed that the jury had been charged that, to award damages, it must find a proximate relation between the violence and threats of force and violence complained of, on the one hand, and the loss of wages allegedly suffered, on the other. 356 U.S. at 356 U. S. 638 , n. 3. In the two Wisconsin Board cases it was noted that the State's administrative injunctive relief was limited to prohibition against continuation of the unlawful picketing, not all picketing. 315 U.S. at 315 U. S. 748 ; 351 U.S. at 351 U. S. 269 -270, n. 3. And in Youngdahl, the Court held that a state court injunction which would have prohibited all picketing must be modified to permit peaceful picketing of the premises. We said, "[t]hough the state court was within its discretionary power in enjoining future acts of violence, intimidation and threats of violence by the strikers and the union, yet it is equally clear that such court entered the preempted domain Page 383 U. S. 731 of the National Labor Relations Board insofar as it enjoined peaceful picketing. . . ." 355 U.S. at 355 U. S. 139 . [ Footnote 17 ] It is true that, in Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U. S. 287 , the Court approved sweeping state injunctive relief barring any future picketing in a labor dispute, whether peaceful or not. That case, however, was decided only on a constitutional claim of freedom of speech. We did not consider the impact of federal labor policy on state regulatory power. Moreover, as we recognized in Youngdahl, supra, at 355 U. S. 139 , the case was decided in the context of a strike marked by extreme and repeated acts of violence -- "a pattern of violence . . . which would inevitably reappear in the event picketing were later resumed." The Court in Meadowmoor had stated the question presented as "whether a state can choose to authorize its courts to enjoin acts of picketing in themselves peaceful when they are enmeshed with contemporaneously violent conduct which is concededly outlawed," 312 U.S. at 312 U. S. 292 , and had reasoned that "acts which, in isolation, are peaceful may be part of a coercive thrust when entangled with acts of violence. The picketing in this case was set in a background of violence. In such a setting, it could justifiably be concluded that the momentum of fear generated by past violence would survive even though future picketing might be wholly peaceful." Id. at 312 U. S. 294 . Such special facts, if they appeared in an action for damages after picketing marred by violence had occurred, Page 383 U. S. 732 might support the conclusion that all damages resulting from the picketing were proximately caused by its violent component or by the fear which that violence engendered. [ Footnote 18 ] Where the consequences of peaceful and violent conduct are separable, however, it is clear that recovery may be had only for the latter. In the present case, petitioner concedes that violence which would justify application of state tort law within these narrow bounds occurred during the first two days of the strike. It is a separate issue, however, whether the pleadings, the arguments of counsel to the jury, or the instructions to the jury adequately defined the compass within which damages could be awarded under state law. The tort claimed was, in essence, a "conspiracy" to interfere with Gibbs' contractual relations. The tort of "conspiracy" is poorly defined, and highly susceptible to judicial expansion; its relatively brief history is colored by use as a weapon against the developing labor movement. [ Footnote 19 ] Indeed, a reading of the record in this case gives the impression that the notion of "conspiracy" was employed here to expand the application of state law substantially Page 383 U. S. 733 beyond the limits to be observed in showing direct union involvement in violence. Thus, respondent's complaint alleged "an unlawful conspiracy and an unlawful boycott . . . to maliciously, wantonly and willfully interfere with his contract of employment and with his contract of haulage." No limitation to interference by violence appears. Similarly, counsel, in arguing to the jury, asserted not that the conspiracy in which the union had allegedly participated and from which its liability could be inferred was a conspiracy of violence, but that it was a conspiracy to impose the UMW and the UMW's standard contract on the coal fields of Tennessee. [ Footnote 20 ] Under the state law, it would not have been relevant that the union had not actually authorized, participated in, or ratified the particular violence involved, or even the general use of violence. It would only be necessary to show a conspiracy in which the union had a part, and to show also that those who engaged in the violence were members of the conspiracy, and their acts were related to the conspiracy's purpose. [ Footnote 21 ] The instructions to the jury also appear not to have kept the conspiracy concept within any proper bounds. The charge instructed the jury separately on the § 303 and conspiracy claims, characterizing each as predicated on an assertion that there had been "unlawful" picketing action, and distinguishing one from the other on the basis that, in the conspiracy claim "the lawfulness of the means, rather than the lawfulness of the object or the purpose Page 383 U. S. 734 of the picketing . . . is controlling." But, in charging the conspiracy claim, the court stressed that the "unlawfulness" of the picketing, rather than violence as such, would be controlling. Thus, in characterizing respondent's claim of a conspiracy intentionally to interfere with his contractual relations with Grundy, the trial judge said respondent asserted the interference to be "wrongful in that it was accomplished by unlawful means, including violence and threats of violence." Turning to the question of the international union's responsibility, he said this depended on a showing that it "was a party to a conspiracy pursuant to which the interference was committed." He defined conspiracy as "an agreement between two or more . . . to do an unlawful thing, or to do a lawful thing by unlawful means. . . . It is not essential to the existence of a conspiracy that the agreement between the conspirators be formally made between the parties at any one time, if, for example, two persons agreed to pursue an unlawful purpose or pursue a lawful purpose by unlawful means, then later a third person with knowledge of the existence of the conspiracy assents to it either impliedly or expressly and participates in it, then all three are conspirators in the same conspiracy. . . . [A]ll that is required is that each party to the conspiracy know of the existence of the conspiracy and that each agrees to assist in some manner in the furtherance of the unlawful purpose . . . or any unlawful means of accomplishing an unlawful purpose." The trial judge then charged, in accordance with the Tennessee common law on conspiracy, [ Footnote 22 ] that the union, if a member of a conspiracy, would be liable for all acts "done in concert . . . with the common purpose, and to effect Page 383 U. S. 735 a common design," whether or not it had authorized, participated in, or ratified the particular acts. The jury was told it might award "only such damages as . . . he has sustained as a proximate and direct result of the action of the defendant," and that "[n]o award of damages can be made . . . on the basis of losses sustained . . . as a result of lawful activity upon the part of the defendant or its agents." Such instructions do not focus the jury's attention upon violence or threats of violence as the essential predicate of any recovery it might award. III Even assuming the conspiracy concept could be and was kept within limits proper to the application of state tort law under the preemption doctrine, reversal is nevertheless required here for failure to meet the special proof requirements imposed by § 6 of the Norris-LaGuardia Act: [ Footnote 23 ] "No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof." Petitioner vigorously contends that § 6 applied to the state claims in this case; that, on this record, it cannot be charged with having participated in or authorized the violence of August 15-16, and that its acts, once it learned of the violence, fell short of what would be necessary to show either ratification of the violence or any intent to build its picketing campaign upon the fears the violence engendered. We agree. Page 383 U. S. 736 We held in Brotherhood of Carpenters v. United States, 330 U. S. 395 , 330 U. S. 403 , that "whether § 6 should be called a rule of evidence or one that changes the substantive law of agency . . . , its purpose and effect was to relieve organizations . . . and members of those organizations from liability for damages or imputation of guilt for lawless acts done in labor disputes by some individual officers or members of the organization without clear proof that the organization or member charged with responsibility for the offense actually participated, gave prior authorization, or ratified such acts after actual knowledge of their perpetration." Shortly thereafter, Congress passed the Labor Management Relations Act, which expressly provides that, for the purposes of that statute, including § 303, the responsibility of a union for the acts of its members and officers is to be measured by reference to ordinary doctrines of agency, rather than the more stringent standards of § 6. [ Footnote 24 ] Yet, although the legislative history indicates that Congress was well aware of the Carpenters decision, [ Footnote 25 ] it did not repeal § 6 outright, but left it applicable to cases not arising under the new Act. This selectivity is not surprising, for, on state claims, though not on § 303 claims, punitive damages may be recovered. The driving force behind § 6 [ Footnote 26 ] and the opposition to § 303, even in its limited form, [ Footnote 27 ] was the fear that unions might be destroyed Page 383 U. S. 737 if they could be held liable for damage done by acts beyond their practical control. Plainly, § 6 applies to federal court adjudications of state tort claims arising out of labor disputes, whether or not they are associated with claims under § 303 to which the section does not apply. [ Footnote 28 ] Although the statute does not define "clear proof," its history and rationale suggest that Congress meant at least to signify a meaning like that commonly accorded such similar phrases as "clear, unequivocal, and convincing proof." Under this standard, the plaintiff in a civil case is not required to satisfy the criminal standard of reasonable doubt on the issue of participation, authorization or ratification; neither may he prevail by meeting the ordinary civil burden of persuasion. He is required to persuade by a substantial margin, to come forward with "more than a bare preponderance of the evidence to prevail." Schneiderman v. United States, 320 U. S. 118 , 320 U. S. 125 . In our view, that burden was not met. [ Footnote 29 ] Page 383 U. S. 738 At the outset, it is clear that the requisite showing was not made as to possible union authorization of or participation in the violence of August 15 and 16. Although it is undoubtedly true that the officers and members of Local 5881 were present in force at the mine site on those days, neither the Local nor they are parties to this suit. Mr. Gilbert, the UMW representative, had left the area for a business meeting before the series of events culminating in the violence, and, immediately upon his return, the violence subsided. The Sixth Circuit conceded that "[t]he proofs were sketchy as to defendant's responsibility for the [first two days' violence]." This view accurately reflects the state of the record. Petitioner was not even aware of Grundy's plan to open the Gray's Creek mine until after the violence had occurred. The remaining issue is whether there was clear proof that the union ratified the violence which had occurred. Preliminarily, we note that it would be inconsistent with the fabric of national labor policy to infer ratification from the mere fact that petitioner involved itself in the dispute after the violence had occurred, or from the fact that it carried on some normal union functions, such as provision of strike relief. A union would ordinarily Page 383 U. S. 739 undertake these tasks during the course of a lawful strike. National labor policy requires that national unions be encouraged to exercise a restraining influence on explosive strike situations, and, when they seek to do so, they should not, for these activities, be made to risk liability for such harm as may already have been done. The fact that ripples of the earlier violence may still be felt should not be permitted, and, under § 6, is not permitted, to impose such liability. Because the dispute which sparked the violence will often continue, the union will feel a responsibility to take up the dispute, as well as to curb its excesses. There can be no rigid requirement that a union affirmatively disavow such unlawful acts as may previously have occurred. Cf. ILGWU v. Labor Board, 237 F.2d 545. What is required is proof either that the union approved the violence which occurred or that it participated actively or by knowing tolerance in further acts which were, in themselves, actionable under state law or intentionally drew upon the previous violence for their force. The record here is persuasive that the petitioner did what it could to stop or curtail the violence. There was repeated and uncontradicted testimony that, when news of the violence reached the meeting that Gilbert was attending, he was given firm instructions to return to the scene, to assume control of the strike, to suppress violence, to limit the size of the picket line, and to assure that no other area mines were affected. [ Footnote 30 ] He Page 383 U. S. 740 succeeded. Although, the day after his return, two Consolidated officers were harassed by a large and unruly mob in a nearby town, this incident was unrelated to respondent, and was not repeated. There was no further violence at the mine site, and the number of pickets was reduced to a very few. Other mines in the immediate area, including two worked on lease by Gibbs, continued to operate, although strenuous effort was required to accomplish this; one union official testified, "I thought I was going to get whipped two or three times [by members of the Local who opposed this policy]." [ Footnote 31 ] To be sure, there was testimony that Gilbert, and, through him, the international union, were not pleased with respondent's role in the abortive venture to open the Gray's Creek mines with members of the Southern Labor Union. A company officer testified that, when the mines finally opened, respondent was not hired, because, "Had I hired Mr. Paul Gibbs, none of these mines would be open today." Respondent testified that Gilbert had told him, shortly after assuming control of the strike, "I want you to keep your damn hands off of that Gray's Creek area over there, and tell that Southern Labor Union that we don't intend for you to work that mine." To another, Gilbert is alleged to have said, "Hell, we can't let that Page 383 U. S. 741 go on . . . Paul was trying to bring this other union in there, and [Gilbert said] he ain't going to get by with it." A third witness reported remarks of a similar tenor. Respondent testified that fear for his own safety caused him not to visit his mine leases after the events of August 15 and 16. His foreman testified to minor acts of violence at the mine site, never connected to any person or persons. The relevant question, however, is whether Gilbert or other UMW representatives were clearly shown to have endorsed violence or threats of violence as a means of settling the dispute. The Sixth Circuit's answer was that they had. Its view of the record gave it "the impression that the threat of violence remained throughout the succeeding days and months. The night and day picketing that followed its spectacular beginning was but a guaranty and warning that like treatment would be accorded further attempts to open the Gray's Creek area. The aura of violence remained to enhance the effectiveness of the picketing. Certainly there is a threat of violence when the man who has just knocked me down my front steps continues to stand guard at my front door." 343 F.2d at 616. An "impression" is too ephemeral a product to be the result of "clear proof." As we have said, the mere fact of continued picketing at the mine site is not properly relied upon to show ratification. But even accepting the passage as a holding that "clear proof" of UMW involvement is present, we do not so read the record. If there was a remaining threat of violence here, it was a threat which arose from the context of the dispute, and not from the manner in which the international union was shown to have handled it. This dispute began when unemployed miners in the Appalachian hills discovered Page 383 U. S. 742 that jobs they believed had been promised to them were being given to others behind their backs. In considering the vicarious liability of the international union, accommodation must be made for that fact. The record here clearly bears the construction that the international union exerted pressure to assure that respondent would lose his present jobs and obtain no more. But the record fails to rebut petitioner's contention that it had been unwilling to see its ends accomplished through violence, and indeed had sought to control the excesses which had occurred. Since the record establishes only peaceful activities in this regard on the part of petitioner, respondent was limited to his § 303 remedy. Teamsters Union v. Morton, supra. Although our result would undoubtedly be firmer if the petitioner had assured respondent that, having assumed control of the strike, it would prevent further violence, in the circumstances of this case, the crucial fact of petitioner's participation in or ratification of the violence that occurred was not proved to the degree of certainty required by § 6. Reversed. THE CHIEF JUSTICE took no part in the decision of this case. [ Footnote 1 ] Section 303 of the Labor Management Relations Act, 1947 provides: "(a) It shall be unlawful, for the purpose of this section only, in an industry or activity affecting commerce, for any labor organization to engage in any activity or conduct defined as an unfair labor practice in section 158(b)(4) of this title." "(b) Whoever shall be injured in his business or property by reason [of] any violation of subsection (a) of this section may sue therefor in any district court of the United States subject to the limitations and provisions of section 185 of this title without respect to the amount in controversy, or in any other court having jurisdiction of the parties, and shall recover the damages by him sustained and the cost of the suit." 29 U.S.C. § 187 (1964 ed.). Section 158(b)(4) of Title 29 U.S.C. (1964 ed.), § 8(b)(4) of the National Labor Relations Act, as amended, 73 Stat. 542, provides, in relevant part, that: "(b) It shall be an unfair labor practice for a labor organization or its agents --" " * * * *" "(4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise, handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is --" " * * * *" "(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing. . . ." [ Footnote 2 ] These events were also the subject of two proceedings before the National Labor Relations Board. In one, the Board found that Consolidated had unlawfully assisted the Southern Labor Union in violation of § 8(a)(2) of the National Labor Relations Act, as amended, 49 Stat. 452, 29 U.S.C. § 158(a)(2) (1964 ed.), Tennessee Consolidated Coal Co., 131 NLRB 536, enforcement denied sub nom. Labor Board v. Tennessee Consolidated Coal Co., 307 F.2d 374 (C.A. 6th Cir.1962). In the other, it found that Local 5881 had engaged in coercive picketing in violation of § 8(b)(1)(A), 61 Stat. 141, 29 U.S.C. § 158(b)(1)(A) (1964 ed.), Local 5881, UMWA, 130 NLRB 1181. The International itself was not charged in this proceeding, and the Board's consideration focused entirely on the events of August 16. [ Footnote 3 ] The only testimony suggesting that Gilbert might have been at the mine site on August 15-16 was Gibbs' statement that "Well, everything happened so fast there, I'm thinking that I seen Mr. Gilbert drive up there, but where he went, I don't know." Whether such testimony could ever be sufficient to establish presence, we need not decide, since respondent effectively conceded in the Sixth Circuit and here that Gilbert was in Middlesboro when the violence occurred. [ Footnote 4 ] Immediately after the Board's order in the proceedings against it, note 2 supra, Consolidated reopened the mine it had closed during the spring of 1960, and hired the men of Local 5881. Later, and while this litigation was awaiting trial, that mine was closed as the result of an accident. At this point, the fall of 1962, the Gray's Creek mine was opened using members of Local 5881. [ Footnote 5 ] See Dukes v. Brotherhood of Painters, Local No. 47, 191 Tenn. 495, 235 S.W.2d 7 (1950); Brumley v. Chattanooga Speedway Motordrome Co., 138 Tenn. 534, 198 S.W. 775 (1917); Dale v. Temple Co., 186 Tenn. 69, 208 S.W.2d 344 (1948). [ Footnote 6 ] The questions had been submitted to the jury on a special verdict form. The suggested remittitur from $60,000 to $30,000 for damages on the employment contract and from $100,000 to $45,000 punitive damages was accepted by respondent. In view of our disposition, we do not reach petitioner's contentions that the verdict must be set aside in toto for prejudicial summation by respondent's counsel, or because the actual damages awarded substantially exceeded the proof, and the punitive damage award may have rested in part on the award of actual damages for interference with the haulage contract, which was vacated as unproved. [ Footnote 7 ] See Clark on Code Pleading 75 et seq. (1928); Clark, The Code Cause of Action, 33 Yale L.J. 817 (1924); McCaskill, Actions and Causes of Actions, 34 Yale L.J. 614 (1925); McCaskill, One Form of Civil Action, But What Procedure, for the Federal Courts, 30 Ill.L.Rev. 415 (1935); Gavit, A "Pragmatic Definition" of the "Cause of Action"? 82 U.Pa.L.Rev. 129 (1933); Clark, The Cause of Action, id. at 354 (1934); Gavit, The Cause of Action -- a Reply, id. at 695 (1934). [ Footnote 8 ] See also American Fire & Cas. Co. v. Finn, 341 U. S. 6 , 341 U. S. 12 ; Musher Foundation, Inc. v. Alba Trading Co., 127 F.2d 9, 12 (C.A.2d Cir.1942) (dissenting opinion of Clark, J.). [ Footnote 9 ] Shulman & Jaegerman, Some Jurisdictional Limitations on Federal Procedure, 45 Yale L.J. 393, 397-410 (1936); Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp.Prob. 216, 232 (1948); Barron & Holtzoff, Federal Practice and Procedure § 23 (1965 Supp.). [ Footnote 10 ] See, e.g., Fed.Rules Civ.Proc. 2, 18-20, 42. [ Footnote 11 ] E.g., Musher Foundation v. Alba Trading Co., supra; Note, The Evolution and Scope of the Doctrine of Pendent Jurisdiction in the Federal Courts, 62 Col.L.Rev. 1018, 1029-1030 (1962). [ Footnote 12 ] The question whether joined state and federal claims constitute one "case" for jurisdictional purposes is to be distinguished from the often equally difficult inquiry whether any "case" at all is presented, Gully v. First National Bank, 299 U. S. 109 , although the issue whether a claim for relief qualifies as a case "arising under . . . the Laws of the United States" and the issue whether federal and state claims constitute one "case" for pendent jurisdiction purposes may often appear together, see Dann v. Studebaker-Packard Corp., 288 F.2d 201, 211-215 (C.A. 6th Cir.1961); Borak v. J. I. Case Co., 317 F.2d 838, 847-848 (C.A. 7th Cir.1963), aff'd on other grounds, 377 U. S. 377 U.S. 426. [ Footnote 13 ] Cf. Armstrong Co. v. Nu-Enamel Corp., 305 U. S. 315 , 305 U. S. 325 . Note, Problems of Parallel State and Federal Remedies, 71 Harv.L.Rev. 513, 514 (1958). While it is commonplace that the Federal Rules of Civil Procedure do not expand the jurisdiction of federal courts, they do embody "the whole tendency of our decisions . . . to require a plaintiff to try his . . . whole case at one time," Baltimore S.S. Co. v. Phillips, supra, and, to that extent, emphasize the basis of pendent jurisdiction. [ Footnote 14 ] Massachusetts Universalist Convention v. Hildreth & Rogers Co., 183 F.2d 497 (C.A. 1st Cir.1950); Moynahan v. Pari-Mutuel Employees Guild, 317 F.2d 209, 211-212 (C.A. 9th Cir.1963); op. cit. supra, notes 9 and | 9 and S. 715fn11|>11. [ Footnote 15 ] Some have seen this consideration as the principal argument against exercise of pendent jurisdiction. Thus, before Erie, it was remarked that "the limitations [on pendent. jurisdiction] are, in the wise discretion of the courts, to be fixed in individual cases by the exercise of that statesmanship which is required of any arbiter of the relations of states to nation in a federal system." Shulman & Jaegerman, supra, note 9 at 408. In his oft-cited concurrence in Strachman v. Palmer, 177 F.2d 427, 431 (C.A. 1st Cir.1949), Judge Magruder counseled that "[f]ederal courts should not be overeager to hold on to the determination of issues that might be more appropriately left to settlement in state court litigation," at 433. See also Wechsler, supra, note 9 at 232-233; Note, 74 Harv.L.Rev. 1660, 1661 (1961); Note, supra, note 11 at 1013-1044. [ Footnote 16 ] Note, supra, note 11 at 1025-1026; Wham-O-Mfg. Co. v. Paradise Mfg. Co., 327 F.2d 748, 752-754 (C.A. 9th Cir.1964). [ Footnote 17 ] In Teamsters Union v. Morton, supra, a similar analysis was applied to permit recovery under § 303 of damages suffered during a strike characterized by proscribed secondary activity only to the extent that the damages claimed were the proximate result of such activity; damages for associated primary strike activity could not be recovered. [ Footnote 18 ] It would, of course, be relevant if the Board had already intervened and, as here, note 2 supra, issued an order which permitted the continuance of peaceful picketing activity. [ Footnote 19 ] On the flexibility of "conspiracy" as a tort, see Original Ballet Ruse, Ltd. v. Ballet Theatre, Inc., 133 F.2d 187, 189 (C.A.2d Cir.1943); Riley v. Dun & Bradstreet, Inc., 195 F.2d 812 (C.A. 6th Cir.1952); Charlesworth, Conspiracy as a Ground of Liability in Tort, 36 L.Q.Rev. 38 (1920); Burdick, Conspiracy as a Crime, and as a Tort, 7 Col.L.Rev. 229 (1907); Burdick, The Tort of Conspiracy, 8 Col.L.Rev. 117 (1908). The anti-labor uses of the doctrine are well illustrated in Sayre, Labor and the Courts, 39 Yale L.J. 682, 684-687 (1930). Similar dangers are presented by the tort of malicious interference with contract, id. at 691-695, a doctrine equally young which, in its origins, required a showing of interference by force, threats, or fraud, but does so no more, Sayre, Inducing Breach of Contract, 36 Harv.L.Rev. 663 (1923); Comment, 56 Nw.U.L.Rev. 391 (1961). [ Footnote 20 ] Respondent's attorney argued in summation: ". . . and here is the conspiracy. Mr. Pass [an official of petitioner's] testified, we want that contract all over this nation. That contract or better. I don't guess at that, there is his testimony. There is no deviation from that contract, Mr. Turnblazer so says, unless it is approved in Washington. They impose a nationwide contract all over this nation, all over. I don't care whether it is in Canada or West Virginia or California or Tennessee." [ Footnote 21 ] Note 5 supra. [ Footnote 22 ] Ibid. [ Footnote 23 ] 47 Stat. 71, 29 U.S.C. § 106 (1964 ed.). [ Footnote 24 ] National Labor Relations Act, as amended, § 2(13), 61 Stat. 139, 29 U.S.C. § 152(13) (1964 ed.); Labor Management Relations Act, 1947, §§ 301(e), 303(b), 61 Stat. 157, 159, 29 U.S.C. §§ 185(e), 187(b) (1964 ed.). [ Footnote 25 ] See, e.g., S.Rep. No. 105, 80th Cong., 1st Sess., p. 21. [ Footnote 26 ] The fullest statement of the basis for § 6 appears in S.Rep. No. 163, 72d Cong., 1st Sess., pp. 121. [ Footnote 27 ] The present § 303 was introduced on the floor of the Senate by Senator Taft, in response to a more severe proposal which would have permitted injunctive relief as well as damages against secondary activity. 93 Cong.Rec. 4769-4770, 4833-4847, 4858-4875 (1947). The tenor of the opposition may be seen in those pages, and also at 93 Cong.Rec. 4765-4766 (remarks of Senator Thomas); 93 Cong.Rec. 6451-6452 (remarks of Senator Morse); 93 Cong.Rec. 6520-6521 (remarks of Senator Pepper). [ Footnote 28 ] The argument might be made that, if there were "clear proof" that the local union was responsible, the responsibility of the international union vis-a-vis its local would be governed by a less demanding standard than that applicable for determining the responsibility of a labor organization or its officers on the basis of the acts of "individual officers, members, or agents" of the organization. Since the local was not a party here, we have no occasion to assess this issue. Liability of the international union is premised on the acts of Gilbert and the UMW's other agents, or not at all. [ Footnote 29 ] In charging the jury, the trial judge first instructed the jury at length that the plaintiff's burden was to prove his case by a preponderance of the evidence, and that, "if the plaintiff carries the burden of proof by a preponderance of the evidence, however slight that preponderance might be, he has done all that is required of him and is entitled to a verdict." In connection with substantive discussion of the state claim, he then remarked: "Before the defendant may be held responsible for the acts of its agents in entering into a conspiracy during the course of a labor dispute, there must be clear proof that the particular conspiracy charged or the act generally of that nature had been expressly authorized or necessarily followed from a granted authority by the defendant, or that such conspiracy was subsequently ratified by the defendant after actual knowledge thereof." The phrase "clear proof," referred to just this once, was never explained. The possibility is strong that the jury either did not understand the phrase or completely overlooked it in the context of the lengthy charge given. No challenge is directly made to the charge, however, and it does not appear whether an objection was entered. Accordingly, we do not rest judgment on this point. [ Footnote 30 ] Other international union personnel were also later sent, perhaps in part because the union wanted to put its best foot forward in the NLRB proceedings, note 2 supra, which ensued. One such person testified, ". . . I explained to them that the labor board was there investigating, and that certainly any mass picketing would only cause them a great deal of trouble, and instructed them that they should limit the number of their pickets, and under no circumstances have any violence or any threats of violence to any person coming into or near that area." [ Footnote 31 ] About six days after the violence, an earth-moving equipment salesman driving by the entrance to the mine site stopped to ask how he might get to another mine. Gilbert was present among the picketers, and gave him instructions. Gilbert told the salesman that he "couldn't get through" the road chosen, and should approach by another route; he said the salesman should tell any union men he met that he had spoken to Gilbert. A sinister cast can be put on this incident, but it shows clearly only that Gilbert was in control of the strike, and that operations unrelated to Gray's Creek were not being interfered with. It is significant that the salesman did not claim to have been stopped by force or threatened in any way; it appears he did no more than seek directions, and received no more in return. MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK joins, concurring. I agree with and join in Part I of the Court's opinion relating to pendent jurisdiction. As to Part II, I refrain from joining the Court's speculations about the uses to which it may put the preemption doctrine in similar future cases. The holding in Part III that the Norris-LaGuardia Act requires reversal here seems to me correct, but my interpretation of the statute is different, and somewhat narrower, than that of the Court. The statutory requirement for union liability in this case is "clear proof of actual participation in, or actual Page 383 U. S. 743 authorization of . . . [the unlawful acts], or of ratification of such acts after actual knowledge thereof. [ Footnote 2/1 ]" The Court construes this provision as fixing a new test of the quantum of proof, somewhere between ordinary civil and criminal standards. I do not think the admittedly vague legislative history imports this reading, and I believe it introduces a revealing inconsistency, since the new test could not be applied to criminal cases, concededly governed by the same statutory language, without standing the statute on its head by having it reduce present quantum of proof requirements in criminal cases, that is, proof "beyond a reasonable doubt." The best reading I can give the statute, absent more light than has been shed upon it in this case, is one directing it against a particular type of inferential proof of authority or ratification unacceptable to those who framed the law. For me, the gist of the statute is that, in the usual instance, a union's carrying on of its normal strike functions and its failure to take affirmative action to dispel misconduct are not, in themselves, proof of authorization or ratification of the wrongdoing. [ Footnote 2/2 ] Page 383 U. S. 744 In the present case, apart from a few quite ambiguous episodes, there was nothing to bring the violence home to the union except, as the Sixth Circuit stressed ( see p. 383 U. S. 741 , ante ), that the union continued, through its picketing, the threat that the earlier violence would be renewed, and did not repudiate the violence or promise to oppose its renewal. Whatever arguments could be made for imposing liability in such a situation, I think it approximates what the statute was designed to forbid. On this basis, I concur in the reversal. [ Footnote 2/1 ] Norris-LaGuardia Act, § 6, 47 Stat. 71, 28 U.S.C. § 106 (1964 ed.). The section is quoted in full at p. 383 U. S. 735 , ante. [ Footnote 2/2 ] The principal legislative doctrine, S.Rep. No. 163, 72 Cong., 1st Sess., pp. 19-21, is not very illuminating, but it does, at the end of its discussion of the section, make reference to Frankfurter & Greene, The Labor Injunction 74-75 (1930). At these pages, to illustrate rulings rulings on union responsibility that are deemed improper, that book states: "'Authoriziation' has been found as a fact where the unlawful acts 'have been on such a large scale, and, in point of time and place so connected with the admitted conduct of the strike, that it is impossible on the record here to view them in any other light than as done in furtherance of a common purpose and as part of a common plan;' where the union has failed to discipline the wrongdoer; where the union has granted strike benefits." (Footnotes omitted.) See also id., at 220-221, n. 42; United Brotherhood of Carpenters v. United States, 330 U. S. 395 , 330 U. S. 418 -419, and n. 2 (Frankfurther, J., dissenting).

The Supreme Court held that the District Court had the authority to hear the state law claim, which was based on violence and intimidation, and was not preempted by federal law. The Court also established the concept of "pendent jurisdiction," which allows federal courts to hear related state law claims alongside substantial federal claims if they arise from the same "case." The Court emphasized that pendent jurisdiction is discretionary and guided by judicial economy and fairness. In this case, the Court found that the union was not liable for unauthorized violent acts committed by its members during a strike, and that continuing picketing or failing to take action against the violence did not prove the union authorized or ratified the misconduct.

Lawsuits & Legal Procedures

Blonder Tongue v. University of Illinois Foundation

https://supreme.justia.com/cases/federal/us/402/313/

U.S. Supreme Court Blonder Tongue v. University of Illinois Found., 402 U.S. 313 (1971) Blonder Tongue Laboratories, Inc. v. University of Illinois Foundation No. 338 Argued January 14, 1971 Decided May 3, 1971 402 U.S. 313 CERTIORARI TO THE UNITED STATE COURT OF APPEALS FOR THE SEVENTH CIRCUIT Syllabus This Court's holding in Triplett v. Lowell, 297 U. S. 638 , that a determination of patent invalidity is not res judicata against the patentee in subsequent litigation against a different defendant overruled to the extent that it forecloses an estoppel plea by one facing a charge of infringement of a patent that has once been declared invalid, and in this infringement suit, where, because of Triplett, petitioner did not plead estoppel and the patentee had no opportunity to challenge the appropriateness of such a plea, the parties should be allowed to amend their pleadings and introduce evidence on the estoppel issue. Pp. 402 U. S. 317 -350. 422 F.2d 769, vacated and remanded. WHITE, J., delivered the opinion for a unanimous Court. Page 402 U. S. 314 MR. JUSTICE WHITE delivered the opinion of the Court. Respondent University of Illinois Foundation (hereafter Foundation) is the owner by assignment of U.S. Patent No. 3,210,767, issued to Dwight E. Isbell on October 5, 1965. The patent is for "Frequency Independent Unidirectional Antennas," and Isbell first filed his application May 3, 1960. The antennas covered are designed for transmission and reception of electromagnetic radio frequency signals used in many types of communications, including the broadcasting of radio and television signals. The patent has been much litigated since it was granted, primarily because it claims a high quality television antenna for color reception. [ Footnote 1 ] One of the first infringement suits brought by the Foundation was filed in the Southern District of Iowa against the Winegard Co., an antenna manufacturer. [ Footnote 2 ] Trial was to the court, and, after pursuing the inquiry mandated by Graham v. John Deere Co., 383 U. S. 1 , 383 U. S. 17 -18 (1966), Chief Judge Stephenson held the patent invalid, since "it would have been obvious to one ordinarily skilled in the art and wishing to design a frequency independent unidirectional Page 402 U. S. 315 antenna to combine these three old elements, all suggested by the prior art references previously discussed." University of Illinois Foundation v. Winegard Co., 271 F. Supp. 412 , 419 (SD Iowa 1967) (footnote omitted). [ Footnote 3 ] Accordingly, he entered judgment for the alleged infringer and against the patentee. On appeal, the Court of Appeals for the Eighth Circuit unanimously affirmed Judge Stephenson. 402 F.2d 125 (1968). We denied the patentee's petition for certiorari. 394 U.S. 917 (1969). In March, 1966, well before Judge Stephenson had ruled in the Winegard case, the Foundation also filed suit in the Northern District of Illinois charging a Chicago customer of petitioner, Blonder-Tongue Laboratories, Inc. (hereafter B-T), with infringing two patents it owned by assignment: the Isbell patent and U.S. Patent No. Re. 25,740, reissued March 9, 1965, to P. E. Mayes et al. The Mayes patent was entitled "Log Periodic Backward Wave Antenna Array," and was, as indicated, a reissue of No. 3,108,280, applied for on September 30, 1960. B-T chose to subject itself to the jurisdiction of the court to Page 402 U. S. 316 defend its customer, and it filed an answer and counterclaim against the Foundation and its licensee, respondent JFD Electronics Corp., charging: (1) that both the Isbell and Mayes patents were invalid; (2) that, if those patents were valid, the B-T antennas did not infringe either of them; (3) that the Foundation and JFD were guilty of unfair competition; (4) that the Foundation and JFD had violated the "anti-trust laws of the United States, including the Sherman and Clayton Acts, as amended"; and (5) that certain JFD antenna models infringed B-T's patent No. 3,259,904, "Antenna Having Combined Support and Lead-In," issued July 5, 1966. Trial was again to the court, and, on June 27, 1968, Judge Hoffman held that the Foundation's patents were valid and infringed, dismissed the unfair competition and antitrust charges, and found claim 5 of the B-T patent obvious and invalid. Before discussing the Isbell patent in detail, Judge Hoffman noted that it had been held invalid as obvious by Judge Stephenson in the Winegard litigation. He stated: "This court is, of course, free to decide the case at bar on the basis of the evidence before it. Triplett v. Lowell, 297 U. S. 638 , 297 U. S. 642 (1936). Although a patent has been adjudged invalid in another patent infringement action against other defendants, patent owners cannot be deprived 'of the right to show, if they can, that, as against defendants who have not previously been in court, the patent is valid and infringed.' Aghnides v. Holden, 22[6] F.2d 949, 951 (7th Cir.1955). On the basis of the evidence before it, this court disagrees with the conclusion reached in the Winegard case and finds both the Isbell patent and the Mayes et al. patent valid and enforceable patents." App. 73. Page 402 U. S. 317 B-T appealed, and the Court of Appeals for the Seventh Circuit affirmed: (1) the findings that the Isbell patent was both valid and infringed by B-T's products; (2) the dismissal of B-T's unfair competition and antitrust counterclaims; and (3) the finding that claim 5 of the B-T patent was obvious. However, the Court of Appeals reversed the judgment insofar as Judge Hoffman had found the Mayes patent valid and enforceable, enjoined infringement thereof, and provided damages for such infringement. 422 F.2d 769 (1970). B-T sought certiorari, assigning the conflict between the Courts of Appeals for the Seventh and Eighth Circuits as to the validity of the Isbell patent as a primary reason for granting the writ. [ Footnote 4 ] We granted certiorari, 400 U.S. 864 (1970), and subsequently requested the parties to discuss the following additional issues not raised in the petition for review: "1. Should the holding of Triplett v. Lowell, 297 U. S. 638 , that a determination of patent invalidity is not res judicata as against the patentee in subsequent litigation against a different defendant, be adhered to?" "2. If not, does the determination of invalidity in the Winegard litigation bind the respondents in this case?" In Triplett v. Lowell, 297 U. S. 638 (1936), this Court held: "Neither reason nor authority support the contention that an adjudication adverse to any or all the claims of a patent precludes another suit upon the same claims against a different defendant. While Page 402 U. S. 318 the earlier decision may, by comity, be given great weight in a later litigation, and thus persuade the court to render a like decree, it is not res adjudicata, and may not be pleaded as a defense." 297 U.S. at 297 U. S. 642 . The holding in Triplett has been at least gently criticized by some judges. In its opinion in the instant case, the Court of Appeals for the Seventh Circuit recognized the Triplett rule, but nevertheless remarked that it "would seem sound judicial policy that the adjudication of [the question of the Isbell patent's validity] against the Foundation in one action where it was a party would provide a defense in any other action by the Foundation for infringement of the same patent." 422 F.2d at 772. [ Footnote 5 ] Page 402 U. S. 319 In its brief here, the Foundation urges that the rule of Triplett be maintained. Petitioner B-T's brief took the same position, stating that, "[t]hough petitioners stand to gain by any such result, we cannot urge the destruction of a long-accepted safeguard for patentees merely for the expediency of victory." Brief for Petitioner 12. The Government, however, appearing as amicus curiae, urges that Triplett was based on uncritical acceptance of the doctrine of mutuality of estoppel, since limited significantly, and that the time has come to modify Triplett so that "claims of estoppel in patent cases [are] considered on a case by case basis, giving due weight to any factors which would point to an unfair or anomalous result from their allowance." Brief for the United States 7. The Government's position was spelled out in a brief filed more than a month after petitioner B-T filed its brief. At oral argument, the following colloquy occurred between the Court and counsel for B-T: "Q. You're not asking for Triplett to be overruled?" "A. No, I'm not. I maintain that my brother here did have a right if there was a genuine new issue or some other interpretation of the [patent] claim or some interpretation of law in another circuit that's different than this Circuit, he had a right to try, under Triplett below, in another circuit." "In this particular case, where we're stuck with substantially the same documentary evidence, where we were not able to produce [in the Seventh Circuit] even that modicum of expert testimony that existed in the Eighth Circuit, we think there may be, as suggested by the Solicitor General, some reason for modification of that document [ sic ] in a case such as this." Tr. of Oral Arg. 7-8. Page 402 U. S. 320 In light of this change of attitude from the time petitioner's brief was filed, we consider that the question of modifying Triplett is properly before us. [ Footnote 6 ] II Triplett v. Lowell exemplified the judge-made doctrine of mutuality of estoppel, ordaining that, unless both parties (or their privies) in a second action are bound by a judgment in a previous case, neither party (nor his privy) in the second action may use the prior judgment as determinative Page 402 U. S. 321 of an issue in the second action. Triplett was decided in 1936. The opinion stated that "the rules of the common law applicable to successive litigations concerning the same subject matter" did not preclude "relitigation of the validity of a patent claim previously held invalid in a suit against a different defendant." 297 U.S. at 297 U. S. 644 . In Bigelow v. Old Dominion Copper Co., 225 U. S. 111 , 225 U. S. 127 (1912), the Court had stated that it was "a principle of general elementary law that the estoppel of a judgment must be mutual." [ Footnote 7 ] The same Page 402 U. S. 322 rule was reflected in the Restatement of Judgments. Restatement of Judgments § 93 (1942). [ Footnote 8 ] But even at the time Triplett was decided, and certainly by the time the Restatement was published, the mutuality rule had been under fire. Courts had discarded the requirement of mutuality and held that only the party against whom the plea of estoppel was asserted had to have been in privity with a party in the prior action. [ Footnote 9 ] As Judge Friendly has noted, Bentham had attacked Page 402 U. S. 323 the doctrine "as destitute of any semblance of reason, and as 'a maxim which one would suppose to have found its way from the gaming table to the bench.' . . ." Zdanok v. Glidden Co., 327 F.2d 944, 954 (CA2 1964), cert. denied, 377 U.S. 934 (1964) (quoting 3 J. Bentham, Rationale of Judicial Evidence 579 (1827), reprinted in 7 Works of Jeremy Bentham 171 (J. Bowring ed. 1843)). There was also ferment in scholarly quarters. [ Footnote 10 ] Building upon the authority cited above, the California Supreme Court, in Bernhard v. Bank of America Nat. Trust & Savings Assn., 19 Cal. 2d 807 , 122 P.2d 892 (1942), unanimously rejected the doctrine of mutuality, stating that there was "no compelling reason . . . for requiring that the party asserting the plea of res judicata must have been a party, or in privity with a party, to the earlier litigation." Id. at 812, 122 P.2d at 894. Justice Traynor's opinion, handed down the same year the Restatement was published, listed criteria since employed by many courts in many contexts: "In determining the validity of a plea of res judicata three questions are pertinent: was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the plea is asserted a party or in Page 402 U. S. 324 privity with a party to the prior adjudication?" 19 Cal. 2d at 813, 122 P.2d at 895. Although the force of the mutuality rule had been diminished by exceptions and Bernhard itself might easily have been brought within one of the established exceptions, "Justice Traynor chose instead to extirpate the mutuality requirement and put it to the torch." Currie, Civil Procedure: The Tempest Brews, 53 Calif.L.Rev. 25, 26 (1965). Bernhard had significant impact. Many state and federal courts rejected the mutuality requirement, especially where the prior judgment was invoked defensively in a second action against a plaintiff bringing suit on an issue he litigated and lost as plaintiff in a prior action. [ Footnote 11 ] The trend has been apparent in federal question cases. [ Footnote 12 ] The federal courts found Bernhard persuasive. As Judge Hastie stated more than 20 years ago: "This second effort to prove negligence is comprehended by the generally accepted precept that a party who has had one fair and full opportunity to prove a claim and has failed in that effort should not be permitted to go to trial on the merits of that claim a second time. Both orderliness and reasonable time saving in judicial administration require that Page 402 U. S. 325 this be so unless some overriding consideration of fairness to a litigant dictates a different result in the circumstances of a particular case." "The countervailing consideration urged here is lack of mutuality of estoppel. In the present suit, [the plaintiff] would not have been permitted to take advantage of an earlier affirmative finding of negligence, had such finding been made in [his first suit against a different defendant]. For that reason he argues that he should not be bound by a contrary finding in that case. But a finding of negligence in the [plaintiff's first suit] would not have been binding against the [defendant in a second suit] because [that defendant] had no opportunity to contest the issue there. The finding of no negligence, on the other hand, was made after full opportunity to [plaintiff] on his own election to prove the very matter which he now urges a second time. Thus, no unfairness results here from estoppel which is not mutual. In reality, the argument of [plaintiff] is merely that the application of res judicata in this case makes the law asymmetrical. But the achievement of substantial justice, rather than symmetry, is the measure of the fairness of the rules of res judicata. " Bruszewski v. United States, 181 F.2d 419, 421 (CA3 1950), cert. denied, 340 U.S. 865 (1950). Many federal courts, exercising both federal question and diversity jurisdiction, are in accord unless in a diversity case bound to apply a conflicting state rule requiring mutuality. [ Footnote 13 ] Page 402 U. S. 326 Of course, transformation of estoppel law was neither instantaneous nor universal. As late as 1961, eminent authority stated that "[m]ost state courts recognize and apply the doctrine of mutuality, subject to certain exceptions. . . . And the same is true of federal courts, when free to apply their own doctrine." Moore & Currier, Mutuality and Conclusiveness of Judgments, 35 Tul.L.Rev. 301, 304 (1961) (footnotes omitted); see also, 1B J. Moore, Federal Practice �0.412[1], pp 1803-1804 (1965). However, in 1970, Professor Moore noted that "the trend in the federal courts is away from the rigid requirements of mutuality advocated herein." Id. Supp. 1970, at 53. The same trend is evident in the state courts. [ Footnote 14 ] Page 402 U. S. 327 Undeniably, the court-produced doctrine of mutuality of estoppel is undergoing fundamental change in the common law tradition. In its pristine formulation, an increasing number of courts have rejected the principle as unsound. Nor is it irrelevant that the abrogation of mutuality has been accompanied by other developments -- such as expansion of the definition of "claim" in bar and merger contexts [ Footnote 15 ] and expansion of the preclusive effects afforded criminal judgments in civil litigation [ Footnote 16 ] -- which enhance the capabilities of the courts to deal with some issues swiftly but fairly. Obviously, these mutations in estoppel doctrine are not before us for wholesale approval or rejection. But, at the very least, they counsel us to reexamine whether mutuality of estoppel is a viable rule where a patentee seeks to relitigate the validity of a patent once a federal court has declared it to be invalid. [ Footnote 17 ] Page 402 U. S. 328 III The cases and authorities discussed above connect erosion of the mutuality requirement to the goal of limiting relitigation of issues where that can be achieved without compromising fairness in particular cases. The courts have often discarded the rule while commenting on crowded dockets and long delays preceding trial. Authorities differ on whether the public interest in efficient judicial administration is a sufficient ground, in and of itself, for abandoning mutuality, [ Footnote 18 ] but it is clear that more than crowded dockets is involved. The broader question is whether it is any longer tenable to afford a litigant more than one full and fair opportunity for judicial resolution of the same issue. The question in these terms includes as part of the calculus the effect on judicial administration, but it also encompasses the concern exemplified by Bentham's reference to the gaming table in his attack on the principle of mutuality of estoppel. Page 402 U. S. 329 In any lawsuit where a defendant, because of the mutuality principle, is forced to present a complete defense on the merits to a claim which the plaintiff has fully litigated and lost in a prior action, there is an arguable misallocation of resources. To the extent the defendant in the second suit may not win by asserting, without contradiction, that the plaintiff had fully and fairly, but unsuccessfully, litigated the same claim in the prior suit, the defendant's time and money are diverted from alternative uses -- productive or otherwise -- to relitigation of a decided issue. And, still assuming that the issue was resolved correctly in the first suit, there is reason to be concerned about the plaintiff's allocation of resources. Permitting repeated litigation of the same issue as long as the supply of unrelated defendants holds out reflects either the aura of the gaming table or "a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules of procedure." Kerotest Mfg. Co. v. C-O-Two Co., 342 U. S. 180 , 342 U. S. 185 (1952). Although neither judges, the parties, nor the adversary system performs perfectly in all cases, the requirement of determining whether the party against whom an estoppel is asserted had a full and fair opportunity to litigate is a most significant safeguard. Some litigants -- those who never appeared in a prior action -- may not be collaterally estopped without litigating the issue. They have never had a chance to present their evidence and arguments on the claim. Due process prohibits estopping them despite one or more existing adjudications of the identical issue which stand squarely against their position. See Hansberry v. Lee, 311 U. S. 32 , 311 U. S. 40 (1940); Bernhard, 19 Cal. 2d at 811, 122 P.2d at 894. Also, the authorities have been more willing to permit a defendant in a second suit to invoke an estoppel against a plaintiff who lost on the same claim in an earlier suit than they have been to allow a plaintiff Page 402 U. S. 330 in the second suit to use offensively a judgment obtained by a different plaintiff in a prior suit against the same defendant. [ Footnote 19 ] But the case before us involves neither due process nor "offensive use" questions. Rather, it depends on the considerations weighing for and against permitting a patent holder to sue on his patent after it has once been held invalid following opportunity for full and fair trial. There are several components of the problem. First, we analyze the proposed abrogation or modification of the Triplett rule in terms of those considerations relevant to the patent system. Second, we deal broadly with the economic costs of continued adherence to Triplett. Finally, we explore the nature of the burden, if any, that permitting patentees to relitigate patents once held invalid imposes on the federal courts. A Starting with the premise that the statutes creating the patent system, expressly sanctioned by the Constitution, [ Footnote 20 ] represent an affirmative policy choice by Congress to reward inventors, respondents extrapolate a special public interest in sustaining "good" patents and characterize patent litigation as so technical and difficult as to present unusual potential for unsound adjudications. Although Triplett made no such argument in support of its holding, that rule, offering the unrestricted right to Page 402 U. S. 331 relitigate patent validity, is thus deemed an essential safeguard against improvident judgments of invalidity. [ Footnote 21 ] We fully accept congressional judgment to reward inventors through the patent system. We are also aware that some courts have frankly stated that patent litigation can present issues so complex that legal minds, without appropriate grounding in science and technology, may have difficulty in reaching decision. [ Footnote 22 ] On the other hand, this Court has observed that issues of nonobviousness under 35 U.S.C. § 103 present difficulties "comparable to those encountered daily by the courts in such frames of reference as negligence and scienter, and should be amenable to a case-by-case development." Graham v. John Deere Co., 383 U.S. at 383 U. S. 18 . But assuming a patent case so difficult as to provoke a frank admission of judicial uncertainty, one might ask what reason there is to expect that a second district judge or court of Page 402 U. S. 332 appeals would be able to decide the issue more accurately. Moreover, as Graham also indicates, Congress has, from the outset, chosen to impose broad criteria of patentability while lodging in the federal courts final authority to decide that question. 383 U.S. at 383 U. S. 10 . In any event, it cannot be sensibly contended that all issues concerning patent validity are so complex and unyielding. Nonobviousness itself is not always difficult to perceive and decide, and other questions on which patentability depends are, more often than not, no more difficult than those encountered in the usual nonpatent case. [ Footnote 23 ] Even conceding the extreme intricacy of some patent cases, we should keep firmly in mind that we are considering the situation where the patentee was plaintiff in the prior suit and chose to litigate at that time and place. Presumably, he was prepared to litigate, and to litigate to the finish, against the defendant there involved. Patent litigation characteristically proceeds with some deliberation and, with the avenues for discovery available under the present rules of procedure, there is no reason to suppose that plaintiff patentees would face either surprise or unusual difficulties in getting all relevant and probative evidence before the court in the first litigation. Moreover, we do not suggest, without legislative guidance, that a plea of estoppel by an infringement or Page 402 U. S. 333 royalty suit defendant must automatically be accepted once the defendant, in support of his plea, identifies the issue in suit as the identical question finally decided against the patentee or one of his privies in previous litigation. [ Footnote 24 ] Rather, the patentee-plaintiff must be permitted to demonstrate, if he can, that he did not have "a fair opportunity procedurally, substantively and evidentially to pursue his claim the first time." Eisel v. Columbia Packing Co., 181 F. Supp. 298 , 301 (Mass.1960). This element in the estoppel decision will comprehend, we believe, the important concerns about the complexity of patent litigation and the posited hazard that the prior proceedings were seriously defective. Determining whether a patentee has had a full and fair chance to litigate the validity of his patent in an earlier case is, of necessity, not a simple matter. In addition to the considerations of choice of forum and incentive to litigate mentioned above, [ Footnote 25 ] certain other factors immediately emerge. For example, if the issue is nonobviousness, appropriate inquiries would be whether the first validity determination purported to employ the standards announced in Graham v. John Deere Co., supra; whether the opinions filed by the District Court and the reviewing court, if any, indicate that the prior case was one of those relatively rare instances where the courts wholly failed to grasp the technical subject matter and issues in suit; and whether, without fault of his own, the patentee was deprived of crucial evidence or witnesses in the first litigation. [ Footnote 26 ] But as so often is the case, no one Page 402 U. S. 334 set of facts, no one collection of words or phrases, will provide an automatic formula for proper rulings on estoppel pleas. In the end, decision will necessarily rest on the trial courts' sense of justice and equity. We are not persuaded, therefore, that the Triplett rule, as it was formulated, is essential to effectuate the purposes of the patent system or is an indispensable or even an effective safeguard against faulty trials and judgments. Whatever legitimate concern there my be about the intricacies of some patent suits, it is insufficient, in and of itself, to justify patentees relitigating validity issues as long as new defendants are available. This is especially true if the court in the second litigation must decide in a principled way whether or not it is just and equitable to allow the plea of estoppel in the case before it. B An examination of the economic consequences of continued adherence to Triplett has two branches. Both, however, begin with the acknowledged fact that patent litigation is a very costly process. Judge Frank observed in 1942 that "the expense of defending a patent suit is often staggering to the small businessman." Picard v. United Aircraft Corp., 128 F.2d 632, 641 (CA2 1942) (concurring opinion). In Lear, Inc. v. Adkins, 395 U. S. 653 , 395 U. S. 669 (1969), we noted that one of the benefits accruing to a businessman accepting a license from a patentee who was threatening him with a suit was avoiding "the necessity of defending an expensive infringement action during the period when he may be least able to afford one." Similarly, in replying to claims by alleged Page 402 U. S. 335 infringers that they have been guilty of laches in suing on their patents, patentees have claimed that the expense of litigating forced them to postpone bringing legal action. See, e.g., Baker Mfg. Co. v. Whitewater Mfg. Co., 430 F.2d 1008, 1011015 (CA7 1970). In recent congressional hearings on revision of the patent laws, a lawyer-businessman discussing a proposal of the American Society of Inventors for government-sponsored insurance to provide funds for litigation to individual inventors holding nonassigned patents stated: "We are advised that the average cost for litigating a patent is about $50,000." [ Footnote 27 ] This statement, and arguments such as the one made in Baker Mfg., supra, must be assessed in light of the fact that they are advanced by patentees contemplating action as plaintiffs, and patentees are heavily favored as a class of litigants by the patent statute. Section 282 of the Patent Code provides, in pertinent part: "A patent shall be presumed valid. The burden of establishing invalidity of a patent shall rest on a party asserting it." If a patentee's expense is high though he enjoys the benefits of the presumption of validity, the defendant in an infringement suit will have even higher costs as he both introduces proof to overcome the presumption and attempts to rebut whatever proof the patentee offers to bolster the claims. In testimony before the Senate subcommittee considering patent law revision in 1967, a member of the President's Commission on the Patent Page 402 U. S. 336 System discussed the financial burden looming before one charged as a defendant in a complex infringement action in terms of amounts that sometimes run to "hundreds of thousands of dollars." [ Footnote 28 ] Statistics tend to bear this out. Patent suits constitute between 1% and 2% of the total number of civil cases filed each year in the District Courts. [ Footnote 29 ] Despite this relatively small figure, and notwithstanding the overwhelming tendency to try these suits without juries, [ Footnote 30 ] Page 402 U. S. 337 patent cases that go to trial seem to take an inordinate amount of trial time. [ Footnote 31 ] While, in 1961, a Senate staff report stated that the "typical patent trial, without a jury, was completed in 3 days or less," [ Footnote 32 ] recent figures indicate that this description of the time required is today Page 402 U. S. 338 inaccurate. [ Footnote 33 ] And time -- particularly trial time -- is unquestionably expensive. As stated at the outset of this section, the expense of patent litigation has two principal consequences if the Triplett rule is maintained. First, assuming that a perfectly sound judgment of invalidity has been rendered in an earlier suit involving the patentee, a second infringement action raising the same issue and involving much of the same proof has a high cost to the individual parties. The patentee is expending funds on litigation to protect a patent which is, by hypothesis, invalid. These moneys could be put to better use, such as further research and development. The alleged infringer -- operating as he must against the presumption of validity -- is forced to divert substantial funds to litigation that is wasteful. The second major economic consideration is far more significant. Under Triplett, only the comity restraints flowing from an adverse prior judgment operate to limit the patentee's right to sue different defendants on the same patent. In each successive suit, the patentee enjoys the statutory presumption of validity, and so may easily put the alleged infringer to his expensive proof. As a consequence, prospective defendants will often decide that paying royalties under a license or other settlement is preferable to the costly burden of challenging the patent. Page 402 U. S. 339 The problem has surfaced and drawn comment before. See, e.g., Nickerson v. Kutschera, 419 F.2d 983, 988 n. 4 (CA3 1969) (dissenting opinion); Picard v.'United Aircraft Corp., 128 F.2d at 641-642 (concurring opinion). In 1961, the Senate Judiciary Subcommittee on Patents, Trademarks, and Copyrights published a staff study of infringement and declaratory judgment actions terminated in the district courts and courts of appeals during 1949-1958; the report showed 62 actions commenced after an earlier determination that the patent in suit was not valid. It also noted that the "vast majority" of such suits were terminated without a second adjudication of validity. 1961 Staff Report 19. It is apparent that termination without a second adjudication of validity was the result of a licensing agreement or some other settlement between the parties to the second suit. It is also important to recognize that this study covered only cases filed and terminated; there were undoubtedly more suits that were threatened but not filed, because the threat alone was sufficient to forestall a challenge to the patent. This is borne out by the observations of the President's Commission on the Patent System and recent testimony on proposals for changes in the patent laws. Motivated by the economic consequences of repetitious patent litigation, the Commission proposed: "A final federal judicial determination declaring a patent claim invalid shall be in rem, and the cancellation of such claim shall be indicated on all patent copies subsequently distributed by the Patent Office." Recommendation XXIII, Commission Report 38. The Commission stressed the competitive disadvantage imposed on an alleged infringer who is unable or unwilling to defend a suit on the patent, stating also that a "patentee, having been afforded the opportunity to Page 402 U. S. 340 exhaust his remedy of appeal from a holding of invalidity, has had his 'day in court,' and should not be allowed to harass others on the basis of an invalid claim. There are few, if any, logical grounds for permitting him to clutter crowded court dockets and to subject others to costly litigation." Id. at 39. The report provoked the introduction of several bills to effect broad changes in the patent system. Some bills contained provisions imposing an inflexible rule of in rem invalidity operating against a patentee regardless of the character of the litigation in which his patent was first declared invalid. See S. 1042, 90th Cong., 1st Sess., § 294 (1967), and H.R. 5924, 90th Cong., 1st Sess., § 294 (1967); [ Footnote 34 ] cf. Page 402 U. S. 341 S. 3892, 90th Cong., 2d Sess., § 294 (1968). [ Footnote 35 ] Hearings were held in both Houses on these and other patent revision bills. [ Footnote 36 ] Page 402 U. S. 342 In the Senate hearings, a member of the President's Commission remarked: "The businessman can be subjected to considerable harassment as an alleged infringer. Even in cases where he feels strongly that the patent would ultimately be held invalid, when he considers the hundreds of thousands of dollars in complex cases that could be involved in defending a suit, he may conclude that the best course of action is to settle for less to get rid of the problem. These nuisance settlements, although distasteful, are often, under the present system, justified on pure economics." " * * * *" "In many instances, the very survival of the small businessman may be at stake. His cost of fully litigating a claim against him can seriously impair his ability to stay in business." 1967 Senate Hearings 103. [ Footnote 37 ] The tendency of Triplett to multiply the opportunities for holders of invalid patents to exact licensing agreements or other settlements from alleged infringers must Page 402 U. S. 343 be considered in the context of other decisions of this Court. Although recognizing the patent system's desirable stimulus to invention, we have also viewed the patent as a monopoly which, although sanctioned by law, has the economic consequences attending other monopolies. [ Footnote 38 ] A patent yielding returns for a device that fails to meet the congressionally imposed criteria of patentability is anomalous. [ Footnote 39 ] This Court has observed: "A patent by its very nature is affected with a public interest. . . . [It] is an exception to the general rule against monopolies and to the right to access to a free and open market. The far-reaching social and economic consequences of a patent, therefore, give the public a paramount interest in seeing that patent monopolies spring from backgrounds free from fraud or other inequitable conduct and that such monopolies are kept within their legitimate scope." Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U. S. 806 , 324 U. S. 816 (1945). One obvious manifestation of this principle has been the series of decisions in which the Court has condemned attempts to broaden the physical or temporal scope of the patent monopoly. As stated in Mercoid v. Mid-Continent Investment Co., 320 U. S. 661 , 320 U. S. 666 (1944): "The necessities or convenience of the patentee do not justify any use of the monopoly of the patent Page 402 U. S. 344 to create another monopoly. The fact that the patentee has the power to refuse a license does not enable him to enlarge the monopoly of the patent by the expedient of attaching conditions to its use. United States v. Masonite Corp. , [ 316 U.S. 265 ,] 316 U. S. 277 [(1942)]. The method by which the monopoly is sought to be extended is immaterial. United States v. Univis Lens Co. , [ 316 U.S. 241 ,] 316 U. S. 251 -252 [(1942)]. The patent is a privilege. But it is a privilege which is conditioned by a public purpose. It results from invention and is limited to the invention which it defines. [ Footnote 40 ]" A second group of authorities encourage authoritative testing of patent validity. In 1952, the Court indicated that a manufacturer of a device need not await the filing of an infringement action in order to test the validity of a competitor's patent, but may institute his own suit under the Declaratory Judgment Act. Kerotest Mfg. Co. v. C-O-Two Co., 342 U.S. at 342 U. S. 185 -186. [ Footnote 41 ] Other Page 402 U. S. 345 decisions of this type involved removal of restrictions on those who would challenge the validity of patents. [ Footnote 42 ] Two Terms ago in Lear, Inc. v. Adkins, 395 U. S. 653 (1969), we relied on both lines of authority to abrogate the doctrine that, in a contract action for unpaid patent royalties, the licensee of a patent is estopped from proving "that his licensor was demanding royalties for the use of an idea which was in reality a part of the public domain." 395 U.S. at 395 U. S. 656 . The principle that "federal law requires that all ideas in general circulation be dedicated to the common good unless they are protected by a valid patent," 395 U.S. at 395 U. S. 668 , found support in Sears and Compco and the first line of cases discussed above. [ Footnote 43 ] The holding that licensee estoppel was no longer tenable was rooted in the second line of cases eliminating obstacles to suit by those disposed to challenge the validity of a patent. 395 U.S. at 395 U. S. 663 -668. Moreover, as indicated earlier, we relied on practical considerations that patent licensees "may often be the only individuals with enough economic incentive to challenge the patentability of an inventor's discovery." 395 U.S. at 395 U. S. 670 . To be sure, Lear obviates to some extent the concern that Triplett prompts alleged infringers to pay royalties on patents previously declared invalid, rather than to engage in costly litigation when infringement suits are Page 402 U. S. 346 threatened. Lear permits an accused infringer to accept a license, pay royalties for a time, and cease paying when financially able to litigate validity, secure in the knowledge that invalidity may be urged when the patentee-licensor sues for unpaid royalties. Nevertheless, if the claims are, in fact, invalid, and are identical to those invalidated in a previous suit against another party, any royalties actually paid are an unjust increment to the alleged infringer's costs. Those payments put him at a competitive disadvantage vis-a-vis other alleged infringers who can afford to litigate or have successfully litigated the patent's validity. This has several economic consequences. First, the alleged infringer who cannot afford to defend may absorb the royalty costs in order to compete with other manufacturers who have secured holdings that the patent is invalid, cutting the profitability of his business and perhaps assuring that he will never be in a financial position to challenge the patent in court. On the other hand, the manufacturer who has secured a judicial holding that the patent is invalid may be able to increase his market share substantially, and he may do so without coming close to the price levels that would prevail in a competitive market. Because he is free of royalty payments, the manufacturer with a judgment against the patent may price his products higher than competitive levels absent the invalid patent, yet just below the levels set by those manufacturers who must pay royalties. Third, consumers will pay higher prices for goods covered by the invalid patent than would be true had the initial ruling of invalidity had at least the potential for broader effect. And even if the alleged infringer can escape royalty obligations under Lear when he is able to bear the cost of litigation, any royalty payments passed on to consumers are, as a practical matter, unrecoverable by those who in fact, paid them. Beyond all of this, the Page 402 U. S. 347 rule of Triplett may permit invalid patents to serve almost as effectively as would valid patents as barriers to the entry of new firms -- particularly small firms. Economic consequences like these, to the extent that they can be avoided, weigh in favor of modification of the Triplett mutuality principle. Arguably, however, the availability of estoppel to one charged with infringement of a patent previously held invalid will merely shift the focus of litigation from the merits of the dispute to the question whether the party to be estopped had a full and fair opportunity to litigate his claim in the first action. Moore & Currier, supra, n 7, at 309-310. It would seem sufficient answer to note that, once it is determined that the issue in both actions was identical, it will be easier to decide whether there was a full opportunity to determine that issue in the first action than it would be to relitigate completely the question of validity. And, this does not in fact, seem to have been a problem in other contexts, where strict mutuality of estoppel has been abandoned. It has also been suggested that 35 U.S.C. § 285, which allows a court to award reasonable attorney's fees to a prevailing party "in exceptional cases," [ Footnote 44 ] and 35 U.S.C. § 288, under which a patentee forfeits his right to recover costs even as to the valid claims of his patent if he does not disclaim invalid claims before bringing suit, work to inhibit repetitious suits on invalid patents. But neither of these provisions can operate until after litigation has occurred, and the outlay required to try a lawsuit presenting validity issues is the factor which undoubtedly forces many alleged infringers into accepting Page 402 U. S. 348 licenses, rather than litigating. If concern about such license agreements is proper, as our cases indicate that it is, the accused infringer should have available an estoppel defense that can be pleaded affirmatively and determined on a pretrial motion for judgment on the pleadings or summary judgment. Fed.Rules Civ.Proc. 8(c), 12(c), and 56. C As the preceding discussion indicates; although patent trials are only a small portion of the total amount of litigation in the federal courts, they tend to be of disproportionate length. [ Footnote 45 ] Despite this, respondents urge that the burden on the federal courts from relitigation of patents once held invalid is de minimis. They rely on the figures presented in the 1961 Staff Report: during the period 1948-1959, 62 federal suits were terminated which involved relitigation of a patent previously held invalid, a figure constituting about 1% of the patent suits commenced during the same period. The same figures show that these 62 suits involved 27 patents, indicating that some patentees sue more than once after their patent has been invalidated. Respondents also urge that most of these 62 suits were settled without litigation. 1961 Staff Report 19. But, as we have suggested, this fact cuts both ways. Even accepting respondents' characterization of these figures as de minimis, it is clear that abrogation of Triplett will save some judicial time if even a few relatively lengthy patent suits may be fairly disposed of on pleas of estoppel. More fundamentally, while the cases do discuss reduction in dockets as an effect of elimination of the mutuality requirement, they do not purport to hold that predictions about the actual amount of judicial time that will be saved under such a holding control decision Page 402 U. S. 349 of that question. Of course, we have no comparable figures for the past decade concerning suits begun after one declaration of invalidity, although number of recent, significant examples of repeated litigation of the same patent have come to our attention. [ Footnote 46 ] Regardless of the magnitude of the figures, the economic consequences of continued adherence to Triplett are serious and any reduction of litigation in this context is by comparison an incidental matter in considering.whether to abrogate the mutuality requirement. D It is clear that judicial decisions have tended to depart from the rigid requirements of mutuality. In accordance with this trend, there has been a corresponding development of the lower courts' ability and facility in dealing with questions of when it is appropriate and fair to impose an estoppel against a party who has already litigated an issue once and lost. As one commentator has stated: "Under the tests of time and subsequent developments, the Bernhard decision has proved its merit and the mettle of its author. The abrasive action of new factual configurations and of actual human controversies, disposed of in the common law tradition by competent courts, far more than the commentaries of academicians, leaves the decision revealed for what it is, as it was written: a shining landmark of progress in justice and law administration." Currie, 53 Calif.L.Rev. at 37. When these judicial developments are considered in the light of our consistent view -- last presented in Lear, Inc. v. Adkins -- that the holder of a patent should not be insulated from the assertion of defenses and thus allowed Page 402 U. S. 350 to exact royalties for the use of an idea that is not in fact, patentable or that is beyond the scope of the patent monopoly granted, it is apparent that the uncritical acceptance of the principle of mutuality of estoppel expressed in Triplett v. Lowell is today out of place. Thus, we conclude that Triplett should be overruled to the extent it forecloses a plea of estoppel by one facing a charge of infringement of a patent that has once been declared invalid. IV Res judicata and collateral estoppel are affirmative defenses that must be pleaded. Fed.Rule Civ.Proc. 8(c). The purpose of such pleading is to give the opposing party notice of the plea of estoppel and a chance to argue, if he can, why the imposition of an estoppel would be inappropriate. Because of Triplett v. Lowell, petitioner did not plead estoppel and respondents never had an opportunity to challenge the appropriateness of such a plea on the grounds set forth in 402 U. S. Therefore, given the partial overruling of Triplett, we remand the case. Petitioner should be allowed to amend its pleadings in the District Court to assert a plea of estoppel. Respondents must then be permitted to amend their pleadings, and to supplement the record with any evidence showing why an estoppel should not be imposed in this case. If necessary, petitioner may also supplement the record. In taking this action, we intimate no views on the other issues presented in this case. The judgment of the Court of Appeals is vacated and the cause is remanded to the District Court for further proceedings consistent with this opinion. [ Footnote 1 ] The Foundation has filed six infringement actions based on the Isbell patent. Foundation's Brief 22. [ Footnote 2 ] The Foundation claimed that all of the Isbell patent's 15 claims except numbers 6, 7, and 8 were infringed by one or more of Winegard's 22 antenna models designed for receiving television signals. [ Footnote 3 ] The District Judge held: "Those skilled in the art [of antenna design] at the time of the Isbell application knew (1) the log periodic method of designing frequency independent antennas, (2) that antenna arrays consisting of straight dipoles with progressively varied lengths and spacings exhibit greater broad band characteristics than those consisting of dipoles of equal length and spacing and, (3) that a dipole array type antenna having elements spaced less than 1/2 wavelength apart could be made unidirectional in radiation pattern by transposing the feeder line between elements and feeding the array at the end of the smallest element." "It is the opinion of the Court that it would have been obvious to one ordinarily skilled in the art and wishing to design a frequency independent unidirectional antenna to combine these three old elements, all suggested by the prior art references previously discussed." 271 F. Supp. at 418-419. [ Footnote 4 ] See Petition for Certiorari 13. The grant of certiorari was not limited to the validity vel non of the Isbell patent. [ Footnote 5 ] See also Nickerson v. Kutschera, 419 F.2d 983, 984 (CA3 1969); id. at 984-988 (Hastie, C.J., dissenting); Nickerson v. Kutschera, 390 F.2d 812 (CA3 1968); Tidewater Patent Development Co. v. Kitchen, 371 F.2d 1004, 1006 (CA4 1966); Aghnides v. Holden, 226 F.2d 949, 951 (CA7 1955) (Schnackenberg, J., concurring); Technograph Printed Circuits, Ltd. v. Packard Bell Electronics Corp., 290 F. Supp. 308 , 317-319 (CD Cal.1968) (holding that Triplett did not bar an infringement suit defendant's motion for summary judgment on res judicata grounds because (1) the statements as to mutuality of estoppel were dicta, and (2) the Triplett rule conflicted not only with more recent precedent in the estoppel area, but also with the spirit of certain provisions of the Federal Rules of Civil Procedure, adopted six years after Triplett was decided); Nickerson v. Pep Boys -- Manny, Moe & Jack, 247 F. Supp. 221 (Del.1965). In the latter case, Judge Steel imposed an estoppel on facts somewhat similar to those before us. He analyzed the cases relied on in Triplett, id. at 221-222, and concluded: "[f]rom the standpoint of the precedents [it cites], . . . Triplett v. Lowell does not rest upon too solid a foundation." Id. at 222. Cf. Technograph Printed Circuits, Ltd. v. United States, 178 Ct.Cl. 543, 372 F.2d 969 (1967); Agrashell, Inc. v. Bernard Sirotta Co., 281 F. Supp. 704 , 707-708 (EDNY 1968). [ Footnote 6 ] In rebuttal, counsel for petitioner made it clear that he was urging a "modification" of Triplett. "Q. Well, has Petitioner finally decided to forego any request for reconsidering Triplett, entirely, or in any part? I understood you previously to say you would welcome a modification of it to some extent." "A. Well, Your Honor, I think that is correct. The question . . . that was asked of us in our brief by this Court was should Triplett be overruled. That we answered no." "Now the question is should there be modification. I think in all of law, when somebody is abusing it, . . . there are exceptions, and I think the Solicitor [General] is very close to [using] the idea that, if in fact, this were the same trial and they had the opportunity to present their witnesses before, and they didn't do it, that it seriously ought to be considered whether there ought to be an estoppel in a situation such as this." Tr. of Oral Arg. 64-65. Rule 23(1)(c) of the Rules of this Court states that "[o]nly the questions set forth in the petition or fairly comprised therein will be considered by the court." While this rule reflects many decisions stating that the Court is not required to decide questions not raised in a petition for certiorari, it does not limit our power to decide important questions not raised by the parties. The rule has certain well recognized exceptions, particularly in cases arising in the federal courts. See R. Robertson & F. Kirkham, Jurisdiction of the Supreme Court of the United States § 418 (R. Wolfson & P. Kurland ed.1951); R. Stern & E. Gressman, Supreme Court Practice § 6.37 (4th ed.1969). The instant case is not one where the parties have not briefed or argued a question that the Court nevertheless finds controlling under its authority to notice plain error. See Rule 40(1)(d)(2), Rules of the Supreme Court of the United States; Silber v. United States, 370 U. S. 717 (1962). Rather, given what transpired at oral argument, the case is like Moragne v. States Marine Lines, Inc., 398 U. S. 375 (1970). There, after granting certiorari, we asked the parties to brief and argue the continued validity of The Harrisburg, 119 U. S. 199 (1886). The petitioner, who would have stood to gain if The Harrisburg perished, argued that that decision should be overruled, but strongly maintained that it was unnecessary to do so in order to afford her relief. Respondent, of course, argued that The Harrisburg should be left intact. The United States, appearing as amicus curiae, urged the Court to overrule The Harrisburg, and that was the result. Moreover, in a landmark decision involving an important question of judicial administration in the federal courts, this Court overruled a prior decision of many years' standing although the parties did not urge such a holding in their briefs. Erie R. Co. v. Tompkins, 304 U. S. 64 , 66, 68-69 [argument of counsel omitted from electronic version] (1938). See also R. Jackson, The Struggle for Judicial Supremacy 281-282 (1949). While the question here is hardly of comparable importance, it is a significant one, in the same general field, and it has been fully briefed and argued by the parties and amici. See Moragne, 398 U.S. at 398 U. S. 378 -380, n. 1; cf. NLRB v. Pittsburgh S.S. Co., 337 U. S. 656 , 337 U. S. 661 -662 (1949). [ Footnote 7 ] See also 225 U.S. at 225 U. S. 130 -131; Stone v. Farmers' Bank, 174 U. S. 409 (1899); Keokuk & W. R. Co. v. Missouri, 152 U. S. 301 , 152 U. S. 317 (1894); Litchfield v. Goodnow, 123 U. S. 549 , 123 U. S. 552 (1887). Bigelow also spent some time discussing one of the many exceptions to the mutuality requirement, 225 U.S. at 225 U. S. 127 -128. These "exceptions" are described in Moore & Currier, Mutuality and Conclusiveness of Judgments, 35 Tul.L.Rev. 301, 311-329 (1961), and Note, 35 Geo.Wash.L.Rev. 1010, 1015-1017 (1967). [ Footnote 8 ] Under the topic head "Persons not Parties or Privies," § 93 provides: "General Rule. Except as stated in §§ 94-111, a person who is not a party or privy to a party to an action in which a valid judgment other than a judgment in rem is rendered (a) cannot directly or collaterally attack the judgment, and (b) is not bound by or entitled to claim the benefits of an adjudication upon any matter decided in the action." Illustration 10 of the Restatement stated the essentials of the Triplett rule: "A brings an action against B for infringement of a patent. B defends on the ground that the alleged patent was void and obtains judgment. A brings an action for infringement of the same patent against C who seeks to interpose the judgment in favor of B as res judicata, but setting up no relation with B. On demurrer, judgment should be for A." [ Footnote 9 ] Atkinson v. White, 60 Me. 396, 398 (1872); Jenkins v. Atlantic Coast Line R. Co., 89 S.C. 408, 71 S.E. 1010 (1911); United States v. Wexler, 8 F.2d 880 (EDNY 1925); Brobston v. Darby Borough, 290 Pa. 331, 138 A. 849 (1927); Eagle, Star & British Dominions Ins. Co. v. Heller, 149 Va. 82, 140 S.E. 314 (1927); Liberty Mutual Ins. Co. v. George Colon & Co., 260 N.Y. 305, 183 N.E. 506 (1932); Coca Cola Co. v. Pepsi-Cola Co., 36 Del. 124, 172 A. 260 (Super.Ct.1934); see also Good Health Dairy Products Corp. v. Emery, 275 N.Y. 14, 19, 9 N.E.2d 758, 760 (1937). In the latter case, the New York Court of Appeals stated: "It is true that [the owner of the automobile], not being a party to the earlier actions, and not having had a chance to litigate her rights and liabilities, is not bound by the judgments entered therein, but, on the other hand, that is not a valid ground for allowing the plaintiffs to litigate anew the precise questions which were decided against them in a case in which they were parties." [ Footnote 10 ] The principle was attacked in Cox, Res Adjudicata: Who Entitled to Plead, 9 Va.L.Rev. (n.s.) 241, 245-247 (1923); Comment, 35 Yale L.J. 607, 610 (1926); Comment, 29 Ill.L.Rev. 93, 94 (1934); Note, 18 N.Y. U. L.Q.Rev. 565, 570-573 (1941); Recent Decisions, 27 Va.L.Rev. 955 (1941); Recent Cases, 15 U.Cin.L.Rev. 349 (1941). Cf. von Moschzisker, Res Judicata, 38 Yale L.J. 299, 303 (1929); Comment, 23 Ore.L.Rev. 273 (1944); Recent Cases, 54 Harv.L.Rev. 889 (1941). [ Footnote 11 ] For discussion of the "offensive-defensive" distinction, see generally Vestal, Preclusion/ Res Judicata Variables: Parties, 50 Iowa L.Rev. 27, 43-76 (1964); Note, 35 Geo.Wash.L.Rev. 1010 (1967). See also Currie, Mutuality of Collateral Estoppel: Limits of the Bernhard Doctrine, 9 Stan.L.Rev. 281 (1957); Note, 68 Col.L.Rev. 1590 (1968); Note, 52 Cornell L.Q. 724 (1967). [ Footnote 12 ] In federal question cases, the law applied is federal law. This Court has noted, "It has been held in non-diversity cases, since Erie R. Co. v. Tompkins, that the federal courts will apply their own rule of res judicata. " Heiser v. Woodruff, 327 U. S. 726 , 327 U. S. 733 (1946). See also Vestal, Res Judicata /Preclusion by Judgment: The Law Applied in Federal Courts, 66 Mich.L.Rev. 1723, 1739, 1745 (1968); id. cases cited at 1739-1740, nn. 62-64. [ Footnote 13 ] See, e.g., Lober v. Moore, 135 U.S.App.D.C. 146, 417 F.2d 714 (1969); Provident Tradesmens Bank & Trust Co. v. Lumbermens Mutual Cas. Co., 411 F.2d 88, 92-95 (CA3 1969); Seuros Tepeyac, S.A. Compania Mexicana v. Jernigan, 410 F.2d 718, 726-728 (CA5 1969), cert. denied, 396 U.S. 905 (1969); Cauefield v. Fidelity & Cas. Co. of New York, 378 F.2d 876, 878-879 (CA5), cert. denied, 389 U.S. 1009 (1967); Graves v. Associated Transport, Inc., 344 F.2d 894 (CA4 1965); Kurlan v. Commissioner, 343 F.2d 625, 628-629 (CA2 1965); United States v. United Air Lines, 216 F. Supp. 709, 725-730 (ED Wash., Nev.1962), aff'd, as to res judicata, sub nom. United Air Lines v. Wiener, 335 F.2d 379, 404-405 (CA9 1964); Zdanok v. Glidden Co., supra, at 954-956; Davis v. McKinnon & Mooney, 266 F.2d 870, 872-873 (CA6 1959); People v. Ohio Cas. Ins. Co., 232 F.2d 474, 477 (CA10 1956); Adriaanse v. United States, 184 F.2d 968 (CA2 1950) , cert. denied, 340 U.S. 932 (1951); Maryland v. Capital Airlines, Inc., 267 F. Supp. 298 , 302-305 (Md.1967); Mathews v. New York Racing Assn., Inc., 193 F. Supp. 293 (SDNY 1961); Eisel v. Columbia Packing Co., 181 F. Supp. 298 (Mass.1960). [ Footnote 14 ] See cases cited n 9, supra. A more recent canvass of cases is presented in Note, 35 Geo.Wash.L.Rev. 1010 (1967). The Supreme Court of Oregon was the most recent state court to adopt Bernhard. Babler v. Fletcher, 257 Ore. 1, 474 P.2d 329 (1970); see also Pennington v. Snow, 471 P.2d 370 , 376-377 (Alaska 1970); Ellis v. Crockett, 51 Haw. 45, 56, 451 P.2d 814 , 822 (1969); Pat Perusse Realty Co. v. Lingo, 249 Md. 33, 238 A.2d 100 (1968); Sanderson v. Balfour, 109 N.H. 213, 247 A.2d 185 (1968); Home Owners Fed. Savings & Loan Assn. v. Northwestern Fire & Marine Ins. Co., 354 Mass. 448, 451-455, 238 N.E.2d 55 , 57-59 (1968) (approving use of Bernhard by a defendant against a previously losing plaintiff); DeWitt, Inc. v. Hall, 19 N.Y.2d 141, 225 N.E.2d 195 (1967); Lustik v. Rankila, 269 Minn. 515, 131 N.W.2d 741 (1964); Lucas v. Velikanje, 2 Wash. App. 888, 471 P.2d 103 (1970) (lower state appellate court held that State Supreme Court would follow Bernhard in an appropriate case); Howell v. Vito's Trucking & Excavating Co., 20 Mich.App. 140, 173 N.W.2d 777 (1969); Desmond v. Kramer, 96 N.J.Super. 96, 232 A.2d 470 (1967); Lynch v. Chicago Transit Authority, 62 Ill.App.2d 220, 210 N.E.2d 792 (1965). [ Footnote 15 ] See F. James, Civil Procedure 552-573 (1965); Vestal, Res Judicata /Preclusion by Judgment: The Law Applied in Federal Courts, 66 Mich.L.Rev. 1723, 1724 (1968). [ Footnote 16 ] See Moore v. United States, 360 F.2d 353 (CA4 1965); Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., 58 Cal. 2d 601 , 375 P.2d 439 (1962); Eagle, Star & British Dominions Ins. Co. v. Heller, 149 Va. 82, 140 S.E. 314 (1927); Vestal, supra, n 15, at 1724; Vestal & Coughenour, Preclusion/ Res Judicata Variables: Criminal Prosecutions, 19 Vand.L.Rev. 683 (1966). [ Footnote 17 ] We agree with the Government that Congress has not approved the Triplett rule, either by its failure to modify that rule over the years, see Boys Markets, Inc. v. Retail Clerks Union, 398 U. S. 235 , 398 U. S. 241 -242 (1970); Girouard v. United States, 328 U. S. 61 , 328 U. S. 69 -70 (1946); Helvering v. Hallock, 309 U. S. 106 , 309 U. S. 119 -120 (1940); by anything that transpired during the preparation for and accomplishment of the 1952 revision of the Patent Code; or because in rem invalidity provisions, see n 34, infra have disappeared from recent proposals for reform of the patent statute. [ Footnote 18 ] Professors Moore and Currier point out that one of the underpinnings of the general concept of res judicata is the prevention of harassment of some litigants by the repeated assertion of the same or different claims against them by others, and that this problem is simply not present where the person asserting an estoppel was not a party (or privy to a party) in the earlier suit. They then argue that "the doctrine of judicial finality is not a catchpenny contrivance to dispose of cases merely for the sake of disposition and clear up dockets in that manner." Moore & Currier, supra, n 7, at 308. On the other hand, Professor Vestal argues that "[j]udges, overwhelmed by docket loads, are looking for devices to expedite their work. Preclusion offers an opportunity to eliminate litigation which is not necessary or desirable." Vestal, supra, n 15, at 1724. [ Footnote 19 ] But see United States v. United Air Lines, supra; Zdanok v. Glidden Co., supra; Currie, Civil Procedure: The Tempest Brews, 53 Calif.L.Rev. 25, 28-37 (1965); Vestal, 50 Iowa L.Rev. at 5559; cf. Semmel, Collateral Estoppel, Mutuality and Joinder of Parties, 68 Col.L.Rev. 1457 (1968); Weinstein, Revision of Procedure: Some Problems in Class Actions, 9 Buffalo L.Rev. 433, 448 454 (1960); Note, 35 Geo.Wash.L.Rev. 1010 (1967). [ Footnote 20 ] U.S.Const., Art. I, § 8, cl. 8. [ Footnote 21 ] The Court of Claims has stated: "For patent litigation, there is a special reason why relitigation is not automatically banned as needless or redundant, and why error should not be perpetuated without inquiry. Patent validity raises issues significant to the public, as well as to the named parties. Sinclair & Carroll Co. v. Interchemical Corp., 325 U. S. 327 , 325 U. S. 330 (1945). It is just as important that a good patent be ultimately upheld as that a bad one be definitively stricken. At the same time, it must be remembered that the issue of patent validity is often" "as fugitive, impalpable, wayward, and vague a phantom as exists in the whole paraphernalia of legal concepts. . . . If there be an issue more troublesome, or more apt for litigation than this, we are not aware of it." " Harries v. Air King Products Co., supra, 183 F.2d at 162 (per L. Hand, C.J.). Because of the intrinsic nature of the subject, the first decision can be quite wrong, or derived from an insufficient record or presentation." Technograph Printed Circuits, 178 Ct.Cl. at 556, 372 F.2d at 977-978. [ Footnote 22 ] See Nyssonen v. Bendix Corp., 342 F.2d 531, 532 (CA1 1965); Harries v. Air King Products Co., 183 F.2d 158, 164 (CA2 1950); Parke-Davis & Co. v. H. K. Mulford Co., 189 F. 95, 115 (SDNY 1911). [ Footnote 23 ] The Triplett rule apparently operates to defeat a plea of estoppel where a patent has been declared invalid under provisions other than 35 U.S.C. § 103, the section defining nonobviousness of the subject matter as a prerequisite to patentability and giving rise to many technical issues which it is claimed courts are poorly equipped to judge. Under §§ 101 and 102 of the 1952 Act, patentability is also conditioned on novelty and utility. Some subsections of § 102 -- each of which can result in the loss of a patent -- involve completely nontechnical issues. Yet the breadth of Triplett would force defendants in repetitious suits on a patent invalidated on one of these grounds to repeat proof that may be simple of understanding, yet expensive to produce. [ Footnote 24 ] See nn. 34-35 infra. [ Footnote 25 ] See Zdanok v. Glidden Co., 327 F.2d at 956; Teitelbaum Furs, Inc., 58 Cal. 2d at 606-607, 375 P.2d at 441; cf. Berner v. British Commonwealth Pacific Airlines, Ltd., 346 F.2d 532, 540-541 (CA2 1965). [ Footnote 26 ] It has been argued that one factor to be considered in deciding whether to allow a plea of estoppel in a second action is the possibility that the judgment in the first action was a compromise verdict by a jury. This problem has not, however, been deemed sufficient to preclude abrogation of the mutuality principle in other contexts. Nor would it appear to be a significant consideration in deciding when to sustain a plea of estoppel in patent litigation, since most patent cases are tried to the court. See n 30, infra. [ Footnote 27 ] Hearings on Patent Law Revision before the Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee on the Judiciary, 90th Cong., 2d Sess., 616 (1968) (statement of Henry J. Cappello, President, Space Recovery Research Center, Inc., and consultant on patent policy for the National Small Business Association) (hereafter 1968 Senate Hearings). [ Footnote 28 ] Hearings on Patent Law Revision before the Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., 103 (1967) (statement of James W. Birkenstock, Vice President, I.B.M. Corp.) (hereafter 1967 Senate Hearings). It is significant that the President's Commission identified as one of its primary objectives "reduc[ing] the expense of obtaining and litigating a patent." "To Promote the Progress of . . . Useful Arts" In an Age of Exploding Technology, Report of the President's Commission on the Patent System 4 (1966) (hereafter Commission Report). Judge Rich of the Court of Customs and Patent Appeals, whose public reaction to the Commission Report was mixed, did agree that "[l]itigation being as expensive as it is, no one embarks upon it lightly." Rich, The Proposed Patent Legislation: Some Comments, 35 Geo.Wash.L.Rev. 641, 644 (1967). [ Footnote 29 ] In fiscal 1968, 71,449 civil actions were filed in the federal district courts, 857 of which were patent suits. In fiscal 1969, 77,193 civil suits were filed; 889 involved patents. In fiscal 1970, 87,321 civil suits were initiated, 1,023 of which involved patents. Annual Report of the Director of the Administrative Office of the United States Courts for the Fiscal Year Ended June 30, 1968, Table C-2 (1969); Annual Report of the Director of the Administrative Office of the United States Courts for the Fiscal Year Ended June 30, 1969, Table C-2 (1970); Annual Report of the Director of the Administrative Office of the United States Courts for the Fiscal Year Ended June 30, 1970, Table C-2 (temp. ed.1971) (hereafter Annual Report 1968, etc.). [ Footnote 30 ] Most patent cases are tried to the court. In fiscal 1968, 1969, and 1970, the total number of patent cases going to trial and the number of patent cases going to juries were, respectively: 1968 -- 131, 2; 1969 -- 132, 8; and 1970 -- 119, 3. Annual Reports 19681970, Table C-8. [ Footnote 31 ] The table below compares patent cases tried to the court during fiscal 1968, 1969, and 1970 with all nonjury civil cases tried during the same years. It reveals several facts: (1) something over 90% of all civil litigation is concluded within three full trial days, but less than half the patent cases are concluded in such a period of time; (2) whereas between 1.2% and 1.7% of civil nonjury trials in general require 10 or more trial days, between 14.7% and 19% of the patent cases tried to the court require 10 or more days to conclude; and (3), while the three-year trend in the district courts appears to be toward more expeditious handling of civil cases tried without a jury in terms of an annual increase in the percentage of cases concluded in three trial days or less and an overall decrease in the percentage of cases requiring 10 or more days, the trends in patent litigation are exactly contrary. bwm: Fiscal 1968 Fiscal 1969 Fiscal 1970 Total civil non-jury trials. . . . . 5,478 5,619 6,078 Total patent non-jury trials . . . . 129 124 116 Approx. % of non-jury civil cases concluded in 3 trial days or less . . . . . . . . . . . 92.2 92.8 93.1 Approx. % of non-jury patent cases concluded in 3 trial days or less . . . . . . . . . . . 49.6 46.8 44.0 Approx. % of non-jury civil trials taking 10 or more trial days to conclude. . . . . . . . . . . . 1.7 1.2 1.3 Approx. % of non-jury patent trials taking 10 or more trial days to conclude . . . . . . 14.7 15.3 19 ewm: Source: Annual Reports 1968-1970, Table C-8. [ Footnote 32 ] An Analysis of Patent Litigation Statistics, Staff Report of the Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee on the Judiciary, 86th Cong., 2d Sess., 2 (1961) (Committee Print) (hereafter 1961 Staff Report). [ Footnote 33 ] See n 31, supra. The 1961 Staff Report also noted that, during the "fiscal years 1954-58 . . . nine [patent] trials consumed 20 or more days." Id. at 2. Further examination of recent figures from the Administrative Office of the United States Courts indicates that this statement would also be of questionable validity today. In fiscal 1968, 38 civil trials that took 20 days or more to try were terminated. Of these, five, or about 13%, were patent cases. The comparable figures for fiscal 1969 are 28 civil trials requiring 20 or more days concluded, seven (25%) of which were patent cases. In fiscal 1970, 32 such civil cases were terminated; seven, or about 22%, of these suits were patent cases. Annual Reports, 1968-1970, Table C-9. [ Footnote 34 ] "Estoppel and cancellation" "(a) In any action in a Federal court in which the issue of the validity or scope of a claim of a patent is properly before the court, and the owner of the patent as shown by the records of the Patent Office is a party or has been given notice as provided in subsection (c) of this section, a final adjudication, from which no appeal has been or can be taken, limiting the scope of the claim or holding it to be invalid, shall constitute an estoppel against the patentee, and those in privity with him, in any subsequent Federal action, and may constitute an estoppel in such other Federal actions as the latter court may determine, involving such patent. Within thirty days of such adjudication the clerk of the court shall transmit notice thereof to the Commissioner, who shall place the same in the public records of the Patent Office pertaining to such patent, and endorse notice on all copies of the patent thereafter distributed by the Patent Office that the patent is subject to such adjudication." "(b) In any action as set forth in subsection (a) of this section, upon a final adjudication from which no appeal has been or can be taken that a claim of the patent is invalid, the court may order cancellation of such claim from the patent. Such order shall be included in the notice to the Commissioner specified in subsection (a) of this section, and the notice of cancellation of a claim shall be published by the Commissioner and endorsed on all copies of the patent thereafter distributed by the Patent Office." "(c) In any action in a Federal court in which the validity or scope of a claim of a patent is drawn into question, the owner of the patent, as shown by the records of the Patent Office, shall have the unconditional right to intervene to defend the validity or scope of such claim. The party challenging the validity or scope of the claim shall serve upon the patent owner a copy of the earliest pleadings asserting such invalidity. If such owner cannot be served with such pleadings, after reasonable diligence is exercised, service may be made as provided for in the Federal Rules of Civil Procedure and, in addition, notice shall be transmitted to the Patent Office and shall be published in the Official Gazette." [ Footnote 35 ] "Cancellation by court" "(a) In any action in a Federal court in which the issue of the validity of a claim of a patent is drawn into question, and the owner of the patent is shown by the records of the Patent Office is a party or has been given notice as provided in subsection (b) of this section, the court may, upon final adjudication, from which no appeal has been or can be taken, holding the claim to be invalid after such claim has previously been held invalid on the same ground by a court of competent jurisdiction from which no appeal has been or can be taken, order cancellation of such claim from the patent. Within thirty days of such order the clerk of the court shall transmit notice thereof to the Commissioner, who shall place the same in the public records of the Patent Office pertaining to such patent, and notice of cancellation of the claim shall be published by the Commissioner and endorsed on all copies of the patent thereafter distributed by the Patent Office." "(b) In any action in a Federal court in which the validity of a claim of a patent is drawn into question, the owner of the patent, as shown by the records of the Patent Office, shall have the unconditional right to intervene to defend the validity of such claim. The party challenging the validity of the claim shall serve upon the patent owner a copy of the earliest pleadings asserting such invalidity. If such owner cannot be served with such pleadings, after reasonable diligence is exercised, service may be made as provided for in the Federal Rules of Civil Procedure and, in addition, notice shall be transmitted to the Patent Office and shall be published in the Official Gazette." [ Footnote 36 ] See, e.g., Hearings on General Revision of the Patent Laws before Subcommittee No. 3 of the House Committee on the Judiciary, 90th Cong., 1st and 2d Sess. (1967-1968); 1967 Senate Hearings, supra, n 28. In House Hearings, testimony on in rem invalidity provisions covered the full spectrum of opinion. The Patent Section of the American Bar Association was opposed. House Hearings 464-465. The Department of Justice favored it. Id. at 622. The Judicial Conference of the United States approved the provision in principle. Report of the Proceedings of the Judicial Conference of the United States, Feb. and Sept. 1968, p. 81. Testimony in the Senate Hearings was also varied. [ Footnote 37 ] Although these bills died in committee, it is noteworthy that, by ascribing binding effect to the first federal declaration of invalidity, some of the proposed provisions went beyond mere abrogation of Triplett's mutuality principle. Had the statutes been enacted as proposed, see nn. 34-35 supra, the question of whether the patentee had a full and fair opportunity to litigate the validity of his patent in the first suit would apparently have been irrelevant once it was shown that the patentee had received notice that the validity of his patent was in issue. [ Footnote 38 ] See generally Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225 , 376 U. S. 229 -230 (1964); Compco Corp. v. Da-Brite Lighting, 376 U. S. 234 (1964); Kennedy, Patent and Antitrust Policy: The Search for a Unitary Theory, 35 Geo.Wash.L.Rev. 512 (1967). [ Footnote 39 ] United States v. Bell Telephone Co., 128 U. S. 315 , 128 U. S. 357 , 370 (1888); see also Katzinger Co. v. Chicago Mfg. Co., 329 U. S. 394 , 329 U. S. 400 -401 (1947); Cuno Corp. v. Automatic Device Corp., 314 U. S. 84 , 314 U. S. 92 (1941); A. & P. Tea Co. v. Supermarket Corp., 340 U. S. 147 , 340 U. S. 154 -155 (190) (concurring opinion). [ Footnote 40 ] See also Brulotte v. Thys Co., 379 U. S. 29 (1964); International Salt Co. v. United States, 332 U. S. 392 (1947); United States v. Gypsum Co., 333 U. S. 364 , 333 U. S. 389 (1948); Scott Paper Co. v. Marcalus Co., 326 U. S. 249 (1945); Morton Salt Co. v. Suppiger Co., 314 U. S. 488 , 314 U. S. 491 -492 (1942); Ethyl Gasoline Corp. v. United States, 309 U. S. 436 , 309 U. S. 455 -459 (1940); International Business Machines Corp. v. United States, 298 U. S. 131 (1936); Carbice Corp. v. American Patents Corp., 283 U. S. 27 (1931); Motion Picture Patents Co. v. Universal Film Co., 243 U. S. 502 (1917). [ Footnote 41 ] In Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U. S. 172 (1965), the defendant in an infringement action was permitted to counterclaim for treble damages under § 4 of the Clayton Act by asserting that the patent was invalid because procured or enforced with knowledge of fraud practiced on the Patent Office, "provided the other elements necessary to a [monopolization case under § 2 of the Sherman Act] are present." Id. at 382 U. S. 174 . [ Footnote 42 ] See MacGregor v. Westinghouse Electric & Mfg. Co., 329 U. S. 402 , 329 U. S. 407 (1947); Katzinger Co. v. Chicago Mfg. Co., 329 U.S. at 329 U. S. 398 -401; Scott Paper Co. v. Marcalus Co., supra; Sola Electric Co. v. Jefferson Electric Co., 317 U. S. 173 (1942); Westinghouse Electric & Mfg. Co. v. Formica Insulation Co., 266 U. S. 342 (1924); Pope Mfg. Co. v. Gormully, 144 U. S. 224 , 144 U. S. 234 (1892). [ Footnote 43 ] See Sears, 376 U.S. at 376 U. S. 229 -231; see also Beckman Instruments, Inc. v. Technical Development Corp., 433 F.2d 55, 58-59 (CA7 1970); Kraly v. National Distillers & Chemical Corp., 319 F. Supp. 1349 (ND Ill.1970). [ Footnote 44 ] Including, apparently, a suit on a patent previously held invalid and as to which the second court can find no reasonable argument for validity. See Tidewater Patent Development Co. v. Kitchen, 371 F.2d 1004, 1013 (CA4 1966); Dole Valve Co. v. Perfection Bar Equipment, Inc., 318 F. Supp. 122 (ND Ill.1970). [ Footnote 45 ] See nn. 31-33 supra, and accompanying text. [ Footnote 46 ] See, e.g., cases cited n 5, supra; Brief for Petitioner B-T 13-14; Brief for the United States as amicus curiae 28 and 32 n. 12.

The case of Blonder Tongue v. University of Illinois Found. revolved around the validity of a patent for a television antenna designed for color reception. The patent was first declared invalid due to obviousness in a previous case, University of Illinois Foundation v. Winegard Co. However, in this case, the Supreme Court overruled the concept of res judicata, which would have prevented the patentee from being able to assert the patent's validity in subsequent litigation. The Court's decision allowed for an estoppel plea, where a party could argue that a patent previously declared invalid should not be infringed upon again. This ruling set a precedent for future patent infringement cases, allowing for more flexibility in patent litigation.

Lawsuits & Legal Procedures

Fuentes v. Shevin

https://supreme.justia.com/cases/federal/us/407/67/

U.S. Supreme Court Fuentes v. Shevin, 407 U.S. 67 (1972) Fuentes v. Shevin No. 70-5039 Argued November 9, 1971 Decided June 12, 1972 407 U.S. 67 ast|>* 407 U.S. 67 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Syllabus Appellants, most of whom were purchasers of household goods under conditional sales contracts, challenge the constitutionality of prejudgment replevin provisions of Florida law (in No. 70-5039) and Pennsylvania law (in No. 70-5138). These provisions permit a private party, without a hearing or prior notice to the other party, to obtain a prejudgment writ of replevin through a summary process of ex parte application to a court clerk, upon the posting of a bond for double the value of the property to be seized. The sheriff is then required to execute the writ by seizing the property. Under the Florida statute, the officer seizing the property must keep it for three days. During that period, the defendant may reclaim possession by posting his own security bond for double the property's value, in default of which the property is transferred to the applicant for the writ, pending a final judgment in the underlying repossession action. In Pennsylvania, the applicant need not initiate a repossession action or allege (as Florida requires) legal entitlement to the property, it being sufficient that he file an "affidavit of the value of the property"; and to secure a post-seizure hearing, the party losing the property through replevin must himself initiate a suit to recover the property. He may also post his own counterbond within three days of the seizure to regain possession. Included in the printed form sales contracts that appellants signed were provisions for the sellers' repossession of the merchandise on the buyers' default. Three-judge District Courts in both cases upheld the constitutionality of the challenged replevin provisions. Held: 1. The Florida and Pennsylvania replevin provisions are invalid under the Fourteenth Amendment since they work a deprivation of property without due process of law by denying the right to a Page 407 U. S. 68 prior opportunity to be heard before chattels are taken from the possessor. Pp. 407 U. S. 80 -93. (a) Procedural due process in the context of these cases requires an opportunity for a hearing before the State authorizes its agents to seize property in the possession of a person upon the application of another, and the minimal deterrent effect of the bond requirement against unfounded applications for a writ constitutes no substitute for a pre-seizure hearing. Pp. 407 U. S. 80 -84. (b) From the standpoint of the application of the Due Process Clause, it is immaterial that the deprivation may be temporary and nonfinal during the three-day post-seizure period. Pp. 407 U. S. 84 -86. (c) The possessory interest of appellants, who had made substantial installment payments, was sufficient for them to invoke procedural due process safeguards notwithstanding their lack of full title to the replevied goods. Pp. 407 U. S. 86 -87. (d) The District Courts erred in rejecting appellants' constitutional claim on the ground that the household goods seized were not items of "necessity," and therefore did not require due process protection, as the Fourteenth Amendment imposes no such limitation. Pp. 407 U. S. 88 -90. (e) The broadly drawn provisions here involved serve no such important a state interest as might justify summary seizure. Pp. 407 U. S. 90 -93. 2. The contract provisions for repossession by the seller on the buyer's default did not amount to a waiver of the appellants' procedural due process rights, those provisions neither dispensing with a prior hearing nor indicating the procedure by which repossession was to be achieved. D. H. Overmyer Co. v. Frick Co., 405 U. S. 174 , distinguished. Pp. 407 U. S. 94 -96. No. 70-5039, 317 F. Supp. 954 , and No. 70-5138, 326 F. Supp. 127 , vacated and remanded. STEWART, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, and MARSHALL, JJ., joined. WHITE, J., filed a dissenting opinion, in which BURGER, C.J., and BLACKMUN, J., joined, post, p. 407 U. S. 97 . POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the cases. Page 407 U. S. 69 MR. JUSTICE STEWART delivered the opinion of the Court. We here review the decisions of two three-judge federal District Courts that upheld the constitutionality of Florida and Pennsylvania laws authorizing the summary seizure of goods or chattels in a person's possession under a writ of replevin. Both statutes provide for the issuance of writs ordering state agents to seize a person's possessions, simply upon the ex parte application of any other person who claims a right to them and posts a Page 407 U. S. 70 security bond. Neither statute provides for notice to be given to the possessor of the property, and neither statute gives the possessor an opportunity to challenge the seizure at any kind of prior hearing. The question is whether these statutory procedures violate the Fourteenth Amendment's guarantee that no State shall deprive any person of property without due process of law. I The appellant in No. 5039, Margarita Fuentes, is a resident of Florida. She purchased a gas stove and service policy from the Firestone Tire and Rubber Co. (Firestone) under a conditional sales contract calling for monthly payments over a period of time. A few months later, she purchased a stereophonic phonograph from the same company under the same sort of contract. The total cost of the stove and stereo was about $500, plus an additional financing charge of over $100. Under the contracts, Firestone retained title to the merchandise, but Mrs. Fuentes was entitled to possession unless and until she should default on her installment payments. For more than a year, Mrs. Fuentes made her installment payments. But then, with only about $200 remaining to be paid, a dispute developed between her and Firestone over the servicing of the stove. Firestone instituted an action in a small claims court for repossession of both the stove and the stereo, claiming that Mrs. Fuentes had refused to make her remaining payments. Simultaneously with the filing of that action and before Mrs. Fuentes had even received a summons to answer its complaint, Firestone obtained a writ of replevin ordering a sheriff to seize the disputed goods at once. In conformance with Florida procedure, [ Footnote 1 ] Firestone Page 407 U. S. 71 had only to fill in the blanks on the appropriate form documents and submit them to the clerk of the small claims court. The clerk signed and stamped the documents and issued a writ of replevin. Later the same day, a local deputy sheriff and an agent of Firestone went to Mrs. Fuentes' home and seized the stove and stereo. Shortly thereafter, Mrs. Fuentes instituted the present action in a federal district court, challenging the constitutionality of the Florida prejudgment replevin procedures under the Due Process Clause of the Fourteenth Amendment. [ Footnote 2 ] She sought declaratory and injunctive relief against continued enforcement of the procedural provisions of the state statutes that authorize prejudgment replevin. [ Footnote 3 ] The appellants in No. 5138 filed a very similar action in a federal district court in Pennsylvania, challenging the constitutionality of that State's prejudgment replevin process. Like Mrs. Fuentes, they had had possessions seized under writs of replevin. Three of the appellants had purchased personal property -- a bed, a table, and other household goods -- under installment sales contracts like the one signed by Mrs. Fuentes, and the sellers of the property had obtained and executed summary writs of replevin, claiming that the appellants had fallen behind in their installment payments. Page 407 U. S. 72 The experience of the fourth appellant, Rosa Washington, had been more bizarre. She had been divorced from a local deputy sheriff, and was engaged in a dispute with him over the custody of their son. Her former husband, being familiar with the routine forms used in the replevin process, had obtained a writ that ordered the seizure of the boy's clothes, furniture, and toys. [ Footnote 4 ] In both No. 5039 and No. 5138, three-judge District Courts were convened to consider the appellants' challenges to the constitutional validity of the Florida and Pennsylvania statutes. The courts in both cases upheld the constitutionality of the statutes. Fuentes v. Faircloth, 317 F. Supp. 954 (SD Fla); Epps v. Cortese, 326 F. Supp. 127 (ED Pa.). [ Footnote 5 ] We noted probable jurisdiction of both appeals. 401 U.S. 906; 402 U.S. 994.. Page 407 U. S. 73 II Under the Florida statute challenged here, [ Footnote 6 ] "[a]ny person whose goods or chattels are wrongfully detained by any other person . . . may have a writ of replevin to recover them. . . ." Fla.Stat.Ann. § 78.01 (Supp. 1972-1973). There is no requirement that the applicant make a convincing showing before the seizure Page 407 U. S. 74 that the goods are, in fact, "wrongfully detained." Rather, Florida law automatically relies on the bare assertion of the party seeking the writ that he is entitled to one and allows a court clerk to issue the writ summarily. It requires only that the applicant file a complaint, initiating a court action for repossession and reciting in conclusory fashion that he is "lawfully entitled to the possession" of the property, and that he file a security bond "in at least double the value of the property to be replevied conditioned that plaintiff will prosecute his action to effect and without delay and that, if defendant recovers judgment against him in the action, he will return the property, if return thereof is adjudged, and will pay defendant all sums of money recovered against plaintiff by defendant in the action." Fla.Stat.Ann. § 78.07 (Supp. 1972-1973). Page 407 U. S. 75 On the sole basis of the complaint and bond, a writ is issued "command[ing] the officer to whom it may be directed to replevy the goods and chattels in possession of defendant . . . and to summon the defendant to answer the complaint." Fla.Stat.Ann. § 78.08 (Supp. 1972-1973). If the goods are "in any dwelling house or other building or enclosure," the officer is required to demand their delivery; but, if they are not delivered, "he shall cause such house, building or enclosure to be broken open and shall make replevin according to the writ. . . ." Fla.Stat.Ann. § 78.10 (Supp. 1972-1973). Thus, at the same moment that the defendant receives the complaint seeking repossession of property through court action, the property is seized from him. He is provided no prior notice and allowed no opportunity whatever to challenge the issuance of the writ. After the property has been seized, he will eventually have an opportunity for a hearing, as the defendant in the trial of the court action for repossession, which the plaintiff is required to pursue. And he is also not wholly without recourse in the meantime. For, under the Florida statute, the officer who seizes the property must keep it for three days, and, during that period, the defendant may reclaim possession of the property by posting his own security bond in double its value. But if he does not post such a bond, the property is transferred to the party who sought the writ, pending a final judgment in the underlying action for repossession. Fla.Stat.Ann. § 78.13 (Supp. 1972-1973). The Pennsylvania law [ Footnote 7 ] differs, though not in its essential nature, from that of Florida. As in Florida, Page 407 U. S. 76 a private party may obtain a prejudgment writ of replevin through a summary process of ex parte application to a prothonotary. As in Florida, the party seeking Page 407 U. S. 77 the writ may simply post with his application a bond in double the value of the property to be seized. Pa.Rule Civ.Proc. 1073(a). There is no opportunity for a prior hearing, and no prior notice to the other party. On this basis, a sheriff is required to execute the writ by seizing the specified property. Unlike the Florida statute, however, the Pennsylvania law does not require that there ever be opportunity for a hearing on the merits of the conflicting claims to possession of the replevied property. The party seeking the writ is not obliged to initiate a court action for repossession. [ Footnote 8 ] Indeed, Page 407 U. S. 78 he need not even formally allege that he is lawfully entitled to the property. The most that is required is that he file an "affidavit of the value of the property to be replevied." Pa.Rule Civ.Proc. 1073(a). If the party who loses property through replevin seizure is to get even a post-seizure hearing, he must initiate a lawsuit himself. [ Footnote 9 ] He may also, as under Florida law, post his own counterbond within three days after the seizure to regain possession. Pa.Rule Civ.Proc. 1076. III Although these prejudgment replevin statutes are descended from the common law replevin action of six centuries ago, they bear very little resemblance to it. Replevin at common law was an action for the return of specific goods wrongfully taken or "distrained." Typically, it was used after a landlord (the "distrainor") had seized possessions from a tenant (the "distrainee") to satisfy a debt allegedly owed. If the tenant then instituted a replevin action and posted security, the landlord could be ordered to return the property at Page 407 U. S. 79 once, pending a final judgment in the underlying action. [ Footnote 10 ] However, this prejudgment replevin of goods at common law did not follow from an entirely ex parte process of pleading by the distrainee. For "[t]he distrainor could always stop the action of replevin by claiming to be the owner of the goods; and as this claim was often made merely to delay the proceedings, the writ de propriatate probanda was devised early in the fourteenth century, which enabled the sheriff to determine summarily the question of ownership. If the question of ownership was determined against the distrainor, the goods were delivered back to the distrainee [pending final judgment]." 3 W. Holdsworth, History of English Law 284 (1927). Prejudgment replevin statutes like those of Florida and Pennsylvania are derived from this ancient possessory action in that they authorize the seizure of property before a final judgment. But the similarity ends there. As in the present cases, such statutes are most commonly used by creditors to seize goods allegedly wrongfully detained -- not wrongfully taken -- by debtors. At common law, if a creditor wished to invoke state power to recover goods wrongfully detained, he had to proceed through the action of debt or detinue. [ Footnote 11 ] These actions, however, did not provide for a return of property before final judgment. [ Footnote 12 ] And, more importantly, on the occasions when the common law did allow prejudgment seizure by state power, it provided some kind Page 407 U. S. 80 of notice and opportunity to be heard to the party then in possession of the property, and a state official made at least a summary determination of the relative rights of the disputing parties before stepping into the dispute and taking goods from one of them. IV For more than a century, the central meaning of procedural due process has been clear: "Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right, they must first be notified." Baldwin v. Hale , 1 Wall. 223, 68 U. S. 233 . See Windsor v. McVeigh, 93 U. S. 274 ; Hovey v. Elliott, 167 U. S. 409 ; Grannis v. Ordean, 234 U. S. 385 . It is equally fundamental that the right to notice and an opportunity to be heard "must be granted at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U. S. 545 , 380 U. S. 552 . The primary question in the present cases is whether these state statutes are constitutionally defective in failing to provide for hearings "at a meaningful time." The Florida replevin process guarantees an opportunity for a hearing after the seizure of goods, and the Pennsylvania process allows a post-seizure hearing if the aggrieved party shoulders the burden of initiating one. But neither the Florida nor the Pennsylvania statute provides for notice or an opportunity to be heard before the seizure. The issue is whether procedural due process in the context of these cases requires an opportunity for a hearing before the State authorizes its agents to seize property in the possession of a person upon the application of another. The constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of decisionmaking when it acts to deprive a person of his possessions. The purpose of this requirement is not Page 407 U. S. 81 only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment -- to minimize substantively unfair or mistaken deprivations of property, a danger that is especially great when the State seizes goods simply upon the application of and for the benefit of a private party. So viewed, the prohibition against the deprivation of property without due process of law reflects the high value, embedded in our constitutional and political history, that we place on a person's right to enjoy what is his, free of governmental interference. See Lynch v. Household Finance Corp., 405 U. S. 538 , 405 U. S. 552 . The requirement of notice and an opportunity to be heard raises no impenetrable barrier to the taking of a person's possessions. But the fair process of decisionmaking that it guarantees works, by itself, to protect against arbitrary deprivation of property. For when a person has an opportunity to speak up in his own defense, and when the State must listen to what he has to say, substantively unfair and simply mistaken deprivations of property interests can be prevented. It has long been recognized that "fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights. . . . [And n]o better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it." Joint Ant-Fascist Refugee Committee v. McGrath, 341 U. S. 123 , 341 U. S. 170 -172 (Frankfurter, J., concurring). If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented. At a later hearing, an individual's possessions can be returned to him if they were unfairly or mistakenly taken in the first place. Damages may even be Page 407 U. S. 82 awarded to him for the wrongful deprivation. But no later hearing and no damage award can undo the fact that the arbitrary taking that was subject to the right of procedural due process has already occurred. "This Court has not . . . embraced the general proposition that a wrong may be done if it can be undone." Stanley v. Illinois, 405 U. S. 645 , 405 U. S. 647 . This is no new principle of constitutional law. The right to a prior hearing has long been recognized by this Court under the Fourteenth and Fifth Amendments. Although the Court has held that due process tolerates variances in the form of a hearing "appropriate to the nature of the case," Mullane v. Central Hanover Tr. Co., 339 U. S. 306 , 339 U. S. 313 , and "depending upon the importance of the interests involved and the nature of the subsequent proceedings [if any]," Boddie v. Connecticut, 401 U. S. 371 , 401 U. S. 378 , the Court has traditionally insisted that, whatever its form, opportunity for that hearing must be provided before the deprivation at issue takes effect. E.g., Bell v. Burson, 402 U. S. 535 , 402 U. S. 542 ; Wisconsin v. Constantineau, 400 U. S. 433 , 400 U. S. 437 ; Goldberg v. Kelly, 397 U. S. 254 ; Armstrong v. Manzo, 380 U.S. at 380 U. S. 551 ; Mullane v. Central Hanover Tr. Co., supra, at 339 U. S. 313 ; Opp Cotton Mills v. Administrator, 312 U. S. 126 , 312 U. S. 152 -153; United States v. Illinois Central R. Co., 291 U. S. 457 , 291 U. S. 463 ; Londoner v. City & County of Denver, 210 U. S. 373 , 210 U. S. 385 -386. See In re Ruffalo, 390 U. S. 544 , 390 U. S. 550 -551. "That the hearing required by due process is subject to waiver, and is not fixed in form does not affect its root requirement that an individual be given an opportunity for a hearing before he is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event." Boddie v. Connecticut, supra, at 401 U. S. 379 -379 (emphasis in original). Page 407 U. S. 83 The Florida and Pennsylvania prejudgment replevin statutes fly in the face of this principle. To be sure, the requirements that a party seeking a writ must first post a bond, allege conclusorily that he is entitled to specific goods, and open himself to possible liability in damages if he is wrong, serve to deter wholly unfounded applications for a writ. But those requirements are hardly a substitute for a prior hearing, for they test no more than the strength of the applicant's own belief in his rights. [ Footnote 13 ] Since his private gain is at stake, the danger is all too great that his confidence in his cause will be misplaced. Lawyers and judges are familiar with the phenomenon of a party mistakenly but firmly convinced that his view of the facts and law will prevail, and therefore quite willing to risk the costs of litigation. Because of the understandable, self-interested fallibility of litigants, a court does not decide a dispute until it has had an opportunity to hear both sides -- and does not generally take even tentative action until it has itself examined the support for the plaintiff's position. The Florida and Pennsylvania statutes do not even require the official issuing a writ of replevin to do that much. The minimal deterrent effect of a bond requirement is, in a practical sense, no substitute for an informed evaluation by a neutral official. More specifically, as a matter of constitutional principle, it is no replacement for the right to a prior hearing that is the only truly effective safeguard against arbitrary deprivation of property. While the existence of these other, less Page 407 U. S. 84 effective, safeguards may be among the considerations that affect the form of hearing demanded by due process, they are far from enough by themselves to obviate the right to a prior hearing of some kind. V The right to a prior hearing, of course, attaches only to the deprivation of an interest encompassed within the Fourteenth Amendment's protection. In the present cases, the Florida and Pennsylvania statutes were applied to replevy chattels in the appellants' possession. The replevin was not cast as a final judgment; most, if not all, of the appellants lacked full title to the chattels; and their claim even to continued possession was a matter in dispute. Moreover, the chattels at stake were nothing more than an assortment of household goods. Nonetheless, it is clear that the appellants were deprived of possessory interests in those chattels that were within the protection of the Fourteenth Amendment. A A deprivation of a person's possessions under a prejudgment writ of replevin, at least in theory, may be only temporary. The Florida and Pennsylvania statutes do not require a person to wait until a post-seizure hearing and final judgment to recover what has been replevied. Within three days after the seizure, the statutes allow him to recover the goods if he, in return, surrenders other property -- a payment necessary to secure a bond in double the value of the goods seized from him. [ Footnote 14 ] But it is now Page 407 U. S. 85 well settled that a temporary, nonfinal deprivation of property is nonetheless a "deprivation" in the terms of the Fourteenth Amendment. Sniadach v. Family Finance Corp., 395 U. S. 337 ; Bell v. Burson, 402 U. S. 535 . Both Sniadach and Bell involved takings of property pending a final judgment in an underlying dispute. In both cases, the challenged statutes included recovery provisions, allowing the defendants to post security to quickly regain the property taken from them. [ Footnote 15 ] Yet the Court firmly held that these were deprivations of property that had to be preceded by a fair hearing. The present cases are no different. When officials of Florida or Pennsylvania seize one piece of property from a person's possession and then agree to return it if he surrenders another, they deprive him of property whether or not he has the funds, the knowledge, and the time needed to take advantage of the recovery provision. Page 407 U. S. 86 The Fourteenth Amendment draws no bright lines around three-day, 10-day or 5-day deprivations of property. Any significant taking of property by the State is within the purview of the Due Process Clause. While the length and consequent severity of a deprivation may be another factor to weigh in determining the appropriate form of hearing, it is not decisive of the basic right to a prior hearing of some kind. B The appellants who signed conditional sales contracts lacked full legal title to the replevied goods. The Fourteenth Amendment's protection of "property," however, has never been interpreted to safeguard only the rights of undisputed ownership. Rather, it has been read broadly to extend protection to "any significant property interest," Boddie v. Connecticut, 401 U.S. at 401 U. S. 379 , including statutory entitlements. See Bell v. Burson, 402 U.S. at 402 U. S. 539 ; Goldberg v. Kelly, 397 U.S. at 397 U. S. 262 . The appellants were deprived of such an interest in the replevied goods -- the interest in continued possession and use of the goods. See Sniadach v. Family Finance Corp., 395 U.S. at 395 U. S. 342 (Harlan, J., concurring). They had acquired this interest under the conditional sales contracts that entitled them to possession and use of the chattels before transfer of title. In exchange for immediate possession, the appellants had agreed to pay a major financing charge beyond the basic price of the merchandise. Moreover, by the time the goods were summarily repossessed, they had made substantial installment payments. Clearly, their possessory interest in the goods, dearly bought and protected by contract, [ Footnote 16 ] Page 407 U. S. 87 was sufficient to invoke the protection of the Due Process Clause. Their ultimate right to continued possession was, of course, in dispute. If it were shown at a hearing that the appellants had defaulted on their contractual obligations, it might well be that the sellers of the goods would be entitled to repossession. But even assuming that the appellants had fallen behind in their installment payments, and that they had no other valid defenses, [ Footnote 17 ] that is immaterial here. The right to be heard does not depend upon an advance showing that one will surely prevail at the hearing. "To one who protests against the taking of his property without due process of law, it is no answer to say that, in his particular case, due process of law would have led to the same result because he had no adequate defense upon the merits." Coe v. Armour Fertilizer Works, 237 U. S. 413 , 237 U. S. 424 . It is enough to invoke the procedural safeguards of the Fourteenth Amendment that a significant property interest is at stake, whatever the ultimate outcome of a hearing on the contractual right to continued possession and use of the goods. [ Footnote 18 ] Page 407 U. S. 88 C Nevertheless, the District Courts rejected the appellants' constitutional claim on the ground that the goods seized from them -- a stove, a stereo, a table, a bed, and so forth -- were not deserving of due process protection, since they were not absolute necessities of life. The courts based this holding on a very narrow reading of Sniadach v. Family Finance Corp., supra, and Goldberg v. Kelly, supra, in which this Court held that the Constitution requires a hearing before prejudgment wage garnishment and before the termination of certain welfare benefits. They reasoned that Sniadach and Goldberg, as a matter of constitutional principle, established no more than that a prior hearing is required with respect to the deprivation of such basically "necessary" items as wages and welfare benefits. This reading of Sniadach and Goldberg reflects the premise that those cases marked a radical departure from established principles of procedural due process. They did not. Both decisions were in the mainstream of past cases, having little or nothing to do with the absolute "necessities" of life, but establishing that due process requires an opportunity for a hearing before a deprivation of property takes effect. [ Footnote 19 ] E.g., Opp Cotton Mills v. Administrator, 312 U.S. at 312 U. S. 152 -153; United States v. Illinois Central R. Co., 291 U.S. at 291 U. S. 463 ; Southern R. Co. v. Virginia, 290 U. S. 190 ; Londoner v. City & County of Denver, 210 U. S. 373 ; Central of Georgia v. Wright, 207 U. S. 127 ; Security Trust Page 407 U. S. 89 Co. v. Lexington, 203 U. S. 323 ; Hibben v. Smith, 191 U. S. 310 ; Glidden v. Harrington, 189 U. S. 255 . In none of those cases did the Court hold that this most basic due process requirement is limited to the protection of only a few types of property interests. While Sniadach and Goldberg emphasized the special importance of wages and welfare benefits, they did not convert that emphasis into a new and more limited constitutional doctrine. [ Footnote 20 ] Nor did they carve out a rule of "necessity" for the sort of nonfinal deprivations of property that they involved. That was made clear in Bell v. Burson, 402 U. S. 535 , holding that there must be an opportunity for a fair hearing before mere suspension of a driver's license. A driver's license clearly does not rise to the level of "necessity" exemplified by wages and welfare benefits. Rather, as the Court accurately stated, it is an "important interest," id. at 402 U. S. 539 , entitled to the protection of procedural due process of law. The household goods, for which the appellants contracted and paid substantial sums, are deserving of similar protection. While a driver's license, for example, "may become [indirectly] essential in the pursuit of a livelihood," ibid., a stove or a bed may be equally essential to provide a minimally decent environment for human beings in their day-to-day lives. It is, after all, such consumer goods that people work and earn a livelihood in order to acquire. No doubt, there may be many gradations in the "importance" or "necessity" of various consumer goods. Stoves could be compared to television sets, or beds Page 407 U. S. 90 could be compared to tables. But if the root principle of procedural due process is to be applied with objectivity, it cannot rest on such distinctions. The Fourteenth Amendment speaks of "property" generally. And, under our free enterprise system, an individual's choices in the marketplace are respected, however unwise they may seem to someone else. It is not the business of a court adjudicating due process rights to make its own critical evaluation of those choices and protect only the ones that, by its own lights, are "necessary." [ Footnote 21 ] VI There are "extraordinary situations" that justify postponing notice and opportunity for a hearing. Boddie v. Connecticut, 401 U.S. at 401 U. S. 379 . These situations, however, must be truly unusual. [ Footnote 22 ] Only in a few limited situations Page 407 U. S. 91 has this Court allowed outright seizure [ Footnote 23 ] without opportunity for a prior hearing. First, in each case, the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance. Thus, the Court has allowed summary seizure of property Page 407 U. S. 92 to collect the internal revenue of the United States, [ Footnote 24 ] to meet the needs of a national war effort, [ Footnote 25 ] to protect against the economic disaster of a bank failure, [ Footnote 26 ] and to protect the public from misbranded drugs [ Footnote 27 ] and contaminated food. [ Footnote 28 ] The Florida and Pennsylvania prejudgment replevin statutes serve no such important governmental or general public interest. They allow summary seizure of a person's possessions when no more than private gain is directly at stake. [ Footnote 29 ] The replevin of chattels, as in the Page 407 U. S. 93 present cases, may satisfy a debt or settle a score. But state intervention in a private dispute hardly compares to state action furthering a war effort or protecting the public health. Nor do the broadly drawn Florida and Pennsylvania statutes limit the summary seizure of goods to special situations demanding prompt action. There may be cases in which a creditor could make a showing of immediate danger that a debtor will destroy or conceal disputed goods. But the statutes before us are not "narrowly drawn to meet any such unusual condition." Sniadach v. Family Finance Corp., supra, at 395 U. S. 339 . And no such unusual situation is presented by the facts of these cases. The statutes, moreover, abdicate effective state control over state power. Private parties, serving their own private advantage, may unilaterally invoke state power to replevy goods from another. No state official participates in the decision to seek a writ; no state official reviews the basis for the claim to repossession; and no state official evaluates the need for immediate seizure. There is not even a requirement that the plaintiff provide any information to the court on these matters. The State acts largely in the dark. [ Footnote 30 ] Page 407 U. S. 94 VII Finally, we must consider the contention that the appellants who signed conditional sales contracts thereby waived their basic procedural due process rights. The contract signed by Mrs. Fuentes provided that, "in the event of default of any payment or payments, Seller at its option may take back the merchandise. . . ." The contracts signed by the Pennsylvania appellants similarly provided that the seller "may retake" or "repossess" the merchandise in the event of a "default in any payment." These terms were parts of printed form contracts, appearing in relatively small type and unaccompanied by any explanations clarifying their meaning. In D. H. Overmyer Co. v. Frick Co., 405 U. S. 174 , the Court recently outlined the considerations relevant to determination of a contractual waiver of due process rights. Applying the standards governing waiver of constitutional rights in a criminal proceeding [ Footnote 31 ] -- although not holding that such standards must necessarily apply -- the Court held that, on the particular facts of that case, the contractual waiver of due process Page 407 U. S. 95 rights was "voluntarily, intelligently, and knowingly" made. Id. at 405 U. S. 187 . The contract in Overmyer was negotiated between two corporations; the waiver provision was specifically bargained for, and drafted by their lawyers in the process of these negotiations. As the Court noted, it was "not a case of unequal bargaining power or overreaching. The Overmyer-Frick agreement, from the start, was not a contract of adhesion." Id. at 405 U. S. 186 . Both parties were "aware of the significance" of the waiver provision. Ibid. The facts of the present cases are a far cry from those of Overmyer. There was no bargaining over contractual terms between the parties who, in any event, were far from equal in bargaining power. The purported waiver provision was a printed part of a form sales contract and a necessary condition of the sale. The appellees made no showing whatever that the appellants were actually aware or made aware of the significance of the fine print now relied upon as a waiver of constitutional rights. The Court in Overmyer observed that, "where the contract is one of adhesion, where there is great disparity in bargaining power, and where the debtor receives nothing for the [waiver] provision, other legal consequences may ensue." Id. at 405 U. S. 188 . Yet, as in Overmyer, there is no need in the present cases to canvass those consequences fully. For a waiver of constitutional rights in any context must, at the very least, be clear. We need not concern ourselves with the involuntariness or unintelligence of a waiver when the contractual language relied upon does not, on its face, even amount to a waiver. The conditional sales contracts here simply provided that, upon a default, the seller "may take back," "may retake" or "may repossess" merchandise. The contracts Page 407 U. S. 96 included nothing about the waiver of a prior hearing. They did not indicate how or through what process -- a final judgment, self-help, prejudgment replevin with a prior hearing, or prejudgment replevin without a prior hearing -- the seller could take back the goods. Rather, the purported waiver provisions here are no more than a statement of the seller's right to repossession upon occurrence of certain events. The appellees do not suggest that these provisions waived the appellants' right to a full post-seizure hearing to determine whether those events had, in fact, occurred and to consider any other available defenses. By the same token, the language of the purported waiver provisions did not waive the appellants' constitutional right to a pre-seizure hearing of some kind. VIII We hold that the Florida and Pennsylvania prejudgment replevin provisions work a deprivation of property without due process of law insofar as they deny the right to a prior opportunity to be heard before chattels are taken from their possessor. [ Footnote 32 ] Our holding, however, is a narrow one. We do not question the power of a State to seize goods before a final judgment in order to protect the security interests of creditors so long as those creditors have tested their claim to the goods through the process of a fair prior hearing. The nature and form of such prior hearings, moreover, are legitimately open to many potential variations, and are a Page 407 U. S. 97 subject, at this point, for legislation -- not adjudication. [ Footnote 33 ] Since the essential reason for the requirement of a prior hearing is to prevent unfair and mistaken deprivations of property, however, it is axiomatic that the hearing must provide a real test. "[D]ue process is afforded only by the kinds of 'notice' and 'hearing' that are aimed at establishing the validity, or at least the probable validity, of the underlying claim against the alleged debtor before he can be deprived of his property. . . ." Sniadach v. Family Finance Corp., supra, at 395 U. S. 343 (Harlan, J., concurring). See Bell v. Burson, supra, at 402 U. S. 540 ; Goldberg v. Kelly, supra, at 397 U. S. 267 . For the foregoing reasons, the judgments of the District Courts are vacated, and these cases are remanded for further proceedings consistent with this opinion. It is so ordered. MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST did not participate in the consideration or decision of these cases. * Together with No. 70-5138, Parham et al. v. Cortese et al., on appeal from the United States District Court for the Eastern District of Pennsylvania. [ Footnote 1 ] See infra at 407 U. S. 73 -75 [ Footnote 2 ] Both Mrs. Fuentes and the appellants in No. 5138 also challenged the prejudgment replevin procedures under the Fourth Amendment, made applicable to the States by the Fourteenth. We do not, however, reach that issue. See n 32, infra. [ Footnote 3 ] Neither Mrs. Fuentes nor the appellants in No. 5138 sought an injunction against any pending or future court proceedings as such. Compare Younger v. Harris, 401 U. S. 37 . Rather, they challenged only the summary extrajudicial process of prejudgment seizure of property to which they had already been subjected. They invoked the jurisdiction of the federal district courts under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3). [ Footnote 4 ] Unlike Mrs. Fuentes in No. 5039, none of the appellants in No. 5138 was ever sued in any court by the party who initiated seizure of the property. See infra at 407 U. S. 77 -78. [ Footnote 5 ] Since the announcement of this Court's decision in Sniadach v. Family Finance Corp., 395 U. S. 337 , summary prejudgment remedies have come under constitutional challenge throughout the country. The summary deprivation of property under statutes very similar to the Florida and Pennsylvania statutes at issue here has been held unconstitutional by at least two courts. Laprease v. Raymours Furniture Co., 315 F. Supp. 716 (NDNY); Blair v. Pitchess, 5 Cal. 3d 258 , 486 P.2d 1242. But see Brunswick Corp. v. J. P., Inc., 424 F.2d 100 (CA10); Wheeler v. Adams Co., 322 F. Supp. 645 (Md.); Almor Furniture & Appliances, Inc. v. MacMillan, 116 N.J.Super. 65, 280 A.2d 862 . Applying Sniadach to other closely related forms of summary prejudgment remedies, some courts have construed that decision as setting forth general principles of procedural due process and have struck down such remedies. E.g., Adams v. Egley, 338 F. Supp. 614 (SD Cal.); Collins v. The Viceroy Hotel Corp., 338 F. Supp. 390 (ND Ill.); Santiago v. McElroy, 319 F. Supp. 284 (ED Pa.); Klim v. Jones, 315 F. Supp. 109 (ND Cal.); Randone v. Appellate Dept., 5 Cal. 3d 536 , 488 P.2d 13; Larson v. Fetherston, 44 Wis.2d 712, 172 N.W.2d 20 ; Jones Press Inc. v. Motor Travel Services Inc., 286 Minn. 205, 176 N.W.2d 87 . See Lebowitz v. Forbes Leasing & Finance Corp., 326 F. Supp. 1335 , 1341-1348 (ED Pa.). Other courts, however, have construed Sniadach as closely confined to its own facts and have upheld such summary prejudgment remedies. E.g., Reeves v. Motor Contract Co., 324 F. Supp. 1011 (ND Ga.); Black Watch Farms v. Dick, 323 F. Supp. 100 (Conn.); American Olean Tile Co. v. Zimmerman, 317 F. Supp. 150 (Hawaii); Young v. Ridley, 309 F. Supp. 1308 (DC); Termplan, Inc. v. Superior Court of Maricopa County, 105 Ariz. 270, 463 P.2d 68 ; 300 West 154th Street Realty Co. v. Department of Buildings, 26 N.Y.2d 538 , 260 N.E.2d 534. [ Footnote 6 ] The relevant Florida statutory provisions are the following: Fla.Stat.Ann. § 78.01 (Supp. 1972-1973): "Right to replevin. -- Any person whose goods or chattels are wrongfully detained by any other person or officer may have a writ of replevin to recover them and any damages sustained by reason of the wrongful caption or detention as herein provided. Or such person may seek like relief, but with summons to defendant instead of replevy writ in which event no bond is required and the property shall be seized only after judgment, such judgment to be in like form as that provided when defendant has retaken the property on a forthcoming bond." Fla.Stat.Ann. § 78.07 (Supp. 1972-1973): "Bond; Requisites. -- Before a replevy writ issues, plaintiff shall file a bond with surety payable to defendant to be approved by the clerk in at least double the value of the property to be replevied conditioned that plaintiff will prosecute his action to effect and without delay and that, if defendant recovers judgment against him in the action, he will return the property, if return thereof is adjudged, and will pay defendant all sums of money recovered against plaintiff by defendant in the action." Fla.Stat.Ann. § 78.08 (Supp. 1972-1973): "Writ; form; return. -- The writ shall command the officer to whom it may be directed to replevy the goods and chattels in possession of defendant, describing them, and to summon the defendant to answer the complaint." Fla.Stat.Ann. § 78.10 (Supp. 1972-1973): "Writ; execution on property in buildings, etc. -- In executing the writ of replevin, if the property or any part thereof is secreted or concealed in any dwelling house or other building or enclosure, the officer shall publicly demand delivery thereof and if it is not delivered by the defendant or some other person, he shall cause such house, building or enclosure to be broken open and shall make replevin according to the writ; and if necessary, he shall take to his assistance the power of the county." Fla.Stat.Ann. § 78.13 (Supp. 1972-1973): "Writ; disposition of property levied on. -- The officer executing the writ shall deliver the property to plaintiff after the lapse of three (3) days from the time the property was taken unless within the three (3) days defendant gives bond with surety to be approved by the officer in double the value of the property as appraised by the officer, conditioned to have the property forthcoming to abide the result of the action, in which event the property shall be redelivered to defendant." [ Footnote 7 ] The basic Pennsylvania statutory provision regarding the issuance of writs of replevin is the following: "Pa.Stat.Ann., Tit. 12, § 1821. Writs of replevin authorized" "It shall and may be lawful for the justices of each county in this province to grant writs of replevin, in all cases whatsoever, where replevins may be granted by the laws of England, taking security as the said law directs, and make them returnable to the respective courts of common pleas, in the proper county, there to be determined according to law." The procedural prerequisites to issuance of a prejudgment writ are, however, set forth in the Pennsylvania Rules of Civil Procedure. The relevant rules are the following: "Rule 1073. Commencement of Action" "(a) An action of replevin with bond shall be commenced by filing with the prothonotary a praecipe for a writ of replevin with bond, together with" "(1) the plaintiff's affidavit of the value of the property to be replevied, and" "(2) the plaintiff's bond in double the value of the property, with security approved by the prothonotary, naming the Commonwealth of Pennsylvania as obligee, conditioned that, if the plaintiff fails to maintain his right of possession of the property, he shall pay to the party entitled thereto the value of the property and all legal costs, fees and damages sustained by reason of the issuance of the writ." "(b) An action of replevin without bond shall be commenced by filing with the prothonotary" "(1) a praecipe for a writ of replevin without bond or" "(2) a complaint." "If the action is commenced without bond, the sheriff shall not replevy the property but at any time before the entry of judgment the plaintiff, upon filing the affidavit and bond prescribed by subdivision (a) of this rule, may obtain a writ of replevin with bond, issued in the original action, and have the sheriff replevy the property." "Rule 1076. Counterbond" "(a) A counterbond may be filed with the prothonotary by a defendant or intervenor claiming the right to the possession of the property, except a party claiming only a lien thereon, within seventy-two (72) hours after the property has been replevied, or within seventy-two (72) hours after service upon the defendant when the taking of possession of the property by the sheriff has been waived by the plaintiff as provided by Rule 1077(a), or within such extension of time as may be granted by the court upon cause shown." "(b) The counterbond shall be in the same amount as the original bond, with security approved by the prothonotary, naming the Commonwealth of Pennsylvania as obligee, conditioned that, if the party filing it fails to maintain his right to possession of the property he shall pay to the party entitled thereto the value of the property, and all legal costs, fees and damages sustained by reason of the delivery of the replevied property to the party filing the counterbond." "Rule 1077. Disposition of Replevied Property. Sheriff's Return" "(a) When a writ of replevin with bond is issued, the sheriff shall leave the property during the time allowed for the filing of a counterbond in the possession of the defendant or of any other person if the plaintiff so authorizes him in writing." "(b) Property taken into possession by the sheriff shall be held by him until the expiration of the time for filing a counterbond. If the property is not ordered to be impounded and if no counterbond is filed, the sheriff shall deliver the property to the plaintiff." "(c) If the property is not ordered to be impounded and the person in possession files a counterbond, the property shall be delivered to him, but if he does not file a counterbond, the property shall be delivered to the party first filing a counterbond." "(d) When perishable property is replevied the court may make such order relating to its sale or disposition as shall be proper." "(e) The return of the sheriff to the writ of replevin with bond shall state the disposition made by him of the property and the name and address of any person found in possession of the property." [ Footnote 8 ] Pa.Rule Civ.Proc. 1073(b) does establish a procedure whereby an applicant may obtain a writ by filing a complaint, initiating a later court action. See n 7, supra. In the case of every appellant in No. 70-5138, the applicant proceeded under Rule 1073(a), rather than 1073(b), seizing property under no more than a security bond and initiating no court action. [ Footnote 9 ] Pa.Rule Civ.Proc. 1037(a) establishes the procedure for initiating such a suit: "If an action is not commenced by a complaint [under Rule 1073(b)], the prothonotary, upon praecipe of the defendant, shall enter a rule upon the plaintiff to file a complaint. If a complaint is not filed within twenty (20) days after service of the rule, the prothonotary, upon praecipe of the defendant, shall enter a judgment of non pros." None of the appellants in No. 70-5138 attempted to initiate the process to require the filing of a post-seizure complaint under Rule 1037(a). [ Footnote 10 ] See T. Plucknett, A Concise History of the Common Law 367-369 (1956); 3 W. Holdsworth, History of English Law 284-285 (1927); 2 F. Pollock & F. Maitland, History of English Law 577 (1909); J. Cobbey, Replevin 19-29 (1890). [ Footnote 11 ] See Plucknett, supra, n 10, at 362-365; Pollock & Maitland, supra, n 10, at 173-175, 203-211. [ Footnote 12 ] The creditor could, of course, proceed without the use of state power, through self-help, by "distraining" the property before a judgment. See n 10, supra. [ Footnote 13 ] They may not even test that much. For if an applicant for the writ knows that he is dealing with an uneducated, uninformed consumer with little access to legal help and little familiarity with legal procedures, there may be a substantial possibility that a summary seizure of property -- however unwarranted -- may go unchallenged, and the applicant may feel that he can act with impunity. [ Footnote 14 ] The appellants argue that this opportunity for quick recovery exists only in theory. They allege that very few people in their position are able to obtain a recovery bond, even if they know of the possibility. Appellant Fuentes says that, in her case, she was never told that she could recover the stove and stereo, and that the deputy sheriff seizing them gave them at once to the Firestone agent, rather than holding them for three days. She further asserts that, of 442 cases of prejudgment replevin in small claims courts in Dade County, Florida, in 1969, there was not one case in which the defendant took advantage of the recovery provision. [ Footnote 15 ] Bell v. Burson, 402 U. S. 535 , 402 U. S. 536 . Although not mentioned in the Sniadach opinion, there clearly was a quick-recovery provision in the Wisconsin prejudgment garnishment statute at issue. Wis.Stat.Ann. § 267.21(1) (Supp. 1970-1971). Family Finance Corp. v. Sniadach, 37 Wis.2d 163, 173-114, 154 N.W.2d 259, 265. Mr. Justice Harlan adverted to the recovery provision in his concurring opinion. 395 U.S. at 395 U. S. 343 . These sorts of provisions for recovery of property by posting security are, of course, entirely different from the security requirement upheld in Lindsey v. Normet, 405 U. S. 56 , 405 U. S. 65 . There, the Court upheld a requirement that a tenant wanting a continuance of an eviction hearing must post security for accruing rent during the continuance. The tenant did not have to post security in order to remain in possession before a hearing; rather, he had to post security only in order to obtain a continuance of the hearing. Moreover, the security requirement in Lindsey was not a recovery provision. For the tenant was not deprived of his possessory interest even for one day without opportunity for a hearing. [ Footnote 16 ] The possessory interest of Rosa Washington, an appellant in No. 5138, in her son's clothes, furniture, and toys was no less sufficient to invoke due process safeguards. Her interest was not protected by contract. Rather, it was protected by ordinary property law, there being a dispute between her and her estranged husband over which of them had a legal right not only to custody of the child but also to possession of the chattels. [ Footnote 17 ] Mrs. Fuentes argues that Florida law allows her to defend on the ground that Firestone breached its obligations under the sales contract by failing to repair serious defects in the stove it sold her. We need not consider this issue here. It is enough that the right to continued possession of the goods was open to some dispute at a hearing, since the sellers of the goods had to show, at the least, that the appellants had defaulted in their payments. [ Footnote 18 ] The issues decisive of the ultimate right to continued possession, of course, may be quite simple. The simplicity of the issues might be relevant to the formality or scheduling of a prior hearing. See Lindsey v. Normet, 405 U.S. at 405 U. S. 65 . But it certainly cannot undercut the right to a prior hearing of some kind. [ Footnote 19 ] The Supreme Court of California recently put the matter accurately: " Sniadach does not mark a radical departure in constitutional adjudication. It is not a rivulet of wage garnishment, but part of the mainstream of the past procedural due process decisions of the United States Supreme Court." Randone v. Appellate Dept., 5 Cal. 3d 536 , 550, 488 P.2d 13, 22. [ Footnote 20 ] Sniadach v. Family Finance Corp., supra, at 395 U. S. 340 ; Goldberg v. Kelly, 397 U. S. 254 , 397 U. S. 264 . Of course, the primary issue in Goldberg was the form of hearing demanded by due process before termination of welfare benefits; the importance of welfare was directly relevant to that question. [ Footnote 21 ] The relative weight of liberty or property interests is relevant, of course, to the form of notice and hearing required by due process. See, e.g., Boddie v. Connecticut, 401 U. S. 371 , 401 U. S. 378 , and cases cited therein. But some form of notice and hearing -- formal or informal -- is required before deprivation of a property interest that "cannot be characterized as de minimis. " Sniadach v. Family Finance Corp., supra, at 395 U. S. 342 (Harlan, J., concurring). [ Footnote 22 ] A prior hearing always imposes some costs in time, effort, and expense, and it is often more efficient to dispense with the opportunity for such a hearing. But these rather ordinary costs cannot outweigh the constitutional right. See Bell v. Burson, supra, at 402 U. S. 540 -541; Goldberg v. Kelly, supra, at 397 U. S. 261 . Procedural due process is not intended to promote efficiency or accommodate all possible interests: it is intended to protect the particular interests of the person whose possessions are about to be taken. "The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones." Stanley v. Illinois, 405 U. S. 645 ,6 405 U. S. 56 . [ Footnote 23 ] Of course, outright seizure of property is not the only kind of deprivation that must be preceded by a prior hearing. See, e.g., Sniadach v. Family Finance Corp., supra. In three cases, the Court has allowed the attachment of property without a prior hearing. In one, the attachment was necessary to protect the public against the same sort of immediate harm involved in the seizure cases -- a bank failure. Coffin Bros. & Co. v. Bennett, 277 U. S. 29 . Another case involved attachment necessary to secure jurisdiction in state court -- clearly a most basic and important public interest. Ownbey v. Morgan, 256 U. S. 94 . It is much less clear what interests were involved in the third case, decided with an unexplicated per curiam opinion simply citing Coffin Bros. and Ownbey. McKay v. McInnes, 279 U.S. 820. As far as essential procedural due process doctrine goes, McKay cannot stand for any more than was established in the Coffin Bros. and Ownbey cases on which it relied completely. See Sniadach v. Family Finance Corp., supra, at 395 U. S. 340 ; id. at 395 U. S. 344 (Harlan, J., concurring). In cases involving deprivation of other interests, such as government employment, the Court similarly has required an unusually important governmental need to outweigh the right to a prior hearing. See, e.g., Cafeteria Workers v. McElroy, 367 U. S. 886 , 367 U. S. 895 -896. Seizure under a search warrant is quite a different matter, see n 30, infra. [ Footnote 24 ] Phillips v. Commissioner, 283 U. S. 589 . The Court stated that "[d]elay in the judicial determination of property rights is not uncommon where it is essential that governmental needs be immediately satisfied." Id. at 283 U. S. 597 (emphasis supplied). The Court then relied on "the need of the government promptly to secure its revenues." Id. at 283 U. S. 596 . [ Footnote 25 ] Central Union Trust Co. v. Garvan, 254 U. S. 554 , 254 U. S. 566 ; Stoehr v. Wallace, 255 U. S. 239 , 255 U. S. 245 ; United States v. Pfitsch, 256 U. S. 547 , 256 U. S. 553 . [ Footnote 26 ] Fahey v. Mallonee, 332 U. S. 245 . [ Footnote 27 ] Ewing v. Mytinger & Casselberry, Inc., 339 U. S. 594 . [ Footnote 28 ] North American Storage Co. v. Chicago, 211 U. S. 306 . [ Footnote 29 ] By allowing repossession without an opportunity for a prior hearing, the Florida and Pennsylvania statutes may be intended specifically to reduce the costs for the private party seeking to seize goods in another party's possession. Even if the private gain at stake in repossession actions were equal to the great public interests recognized in this Court's past decisions, see nn 24-28, supra, the Court has made clear that the avoidance of the ordinary costs imposed by the opportunity for a hearing is not sufficient to override the constitutional right. See n 22, supra. The appellees argue that the cost of holding hearings may be especially onerous in the context of the creditor-debtor relationship. But the Court's holding in Sniadach v. Family Finance Corp., supra, indisputably demonstrates that ordinary hearing costs are no more able to override due process rights in the creditor-debtor context than in other contexts. In any event, the aggregate cost of an opportunity to be heard before repossession should not be exaggerated. For we deal here only with the right to an opportunity to be heard. Since the issues and facts decisive of rights in repossession suits may very often be quite simple, there is a likelihood that many defendants would forgo their opportunity, sensing the futility of the exercise in the particular case. And, of course, no hearing need be held unless the defendant, having received notice of his opportunity, takes advantage of it. [ Footnote 30 ] The seizure of possessions under a writ of replevin is entirely different from the seizure of possessions under a search warrant. First, a search warrant is generally issued to serve a highly important governmental need -- e.g., the apprehension and conviction of criminals -- rather than the mere private advantage of a private party in an economic transaction. Second, a search warrant is generally issued in situations demanding prompt action. The danger is all too obvious that a criminal will destroy or hide evidence or fruits of his crime if given any prior notice. Third, the Fourth Amendment guarantees that the State will not issue search warrants merely upon the conclusory application of a private party. It guarantees that the State will not abdicate control over the issuance of warrants and that no warrant will be issued without a prior showing of probable cause. Thus, our decision today in no way implies that there must be opportunity for an adversary hearing before a search warrant is issued. But cf. A Quantity of Books v. Kansas, 378 U. S. 205 . [ Footnote 31 ] See Brady v. United States, 397 U. S. 742 , 397 U. S. 748 ; Johnson v. Zerbst, 304 U. S. 458 , 304 U. S. 464 . In the civil area, the Court has said that "[w]e do not presume acquiescence in the loss of fundamental rights," Ohio Bell Tel. Co. v. Public Utilities Comm'n, 301 U. S. 292 , 301 U. S. 307 . Indeed, in the civil no less than the criminal area, "courts indulge every reasonable presumption against waiver." Aetna Ins. Co. v. Kennedy, 301 U. S. 389 , 301 U. S. 393 . [ Footnote 32 ] We do not reach the appellants' argument that the Florida and Pennsylvania statutory procedures violate the Fourth Amendment, made applicable to the States by the Fourteenth. See n 2, supra. For once a prior hearing is required, at which the applicant for a writ must establish the probable validity of his claim for repossession, the Fourth Amendment problem may well be obviated. There is no need for us to decide that question at this point. [ Footnote 33 ] Leeway remains to develop a form of hearing that will minimize unnecessary cost and delay while preserving the fairness and effectiveness of the hearing in preventing seizures of goods where the party seeking the writ has little probability of succeeding on the merits of the dispute. MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, dissenting. Because the Court's opinion and judgment improvidently, in my view, call into question important aspects of the statutes of almost all the States governing secured transactions and the procedure for repossessing personal property, I must dissent for the reasons that follow. First: It is my view that, when the federal actions were filed in these cases and the respective District Page 407 U. S. 98 Courts proceeded to judgment, there were state court proceedings in progress. It seems apparent to me that the judgments should be vacated and the District Courts instructed to reconsider these cases in the light of the principles announced in Younger v. Harris, 401 U. S. 37 (1971); Samuels v. Mackell, 401 U. S. 66 ; Boyle v. Landry, 401 U. S. 77 ; and Perez v. Ledesma, 401 U. S. 82 . In No. 70-5039, the Florida statutes provide for the commencement of an action of replevin, with bond, by serving a writ summoning the defendant to answer the complaint. Thereupon, the sheriff may seize the property, subject to repossession by defendant within three days upon filing of a counterbond, failing which the property is delivered to plaintiff to await final judgment in the replevin action. Fla.Stat.Ann. § 78.01 et seq. (Supp. 1972-1973). This procedure was attacked in a complaint filed by appellant Fuentes in the federal court, alleging that an affidavit in replevin had been filed by Firestone Tire & Rubber Co. in the Small Claims Court of Dade County; that a writ of replevin had been issued pursuant thereto and duly served, together with the affidavit and complaint; and that a trial date had been set in the Small Claims Court. Firestone's answer admitted that the replevin action was pending in the Small Claims Court and asserted that Mrs. Fuentes, plaintiff in the federal court and appellant here, had not denied her default or alleged that she had the right to possession of the property. Clearly, state court proceedings were pending, no bad faith or harassment was alleged, and no irreparable injury appeared that could not have been averted by raising constitutional objections in the pending state court proceeding. In this posture, it would appear that the case should be reconsidered under Younger v. Harris and companion cases, which were announced after the District Court's judgment. Page 407 U. S. 99 In No. 70-5138, Pennsylvania Rule of Civil Procedure 1073 expressly provides that an "[a]ction of replevin with bond shall be commenced by filing with the prothonotary a praecipe for a writ of replevin with bond. . . ." When the writ issues and is served, the defendant has three days to file a counterbond, and, should he care to have a hearing, he may file his own praecipe, in which event the plaintiff must proceed further in the action by filing and serving his complaint. In the cases before us, actions in replevin were commenced in accordance with the rules, and appellee Sears, Roebuck & Co. urged in the District Court that plaintiffs had "adequate remedies at law which they could pursue in the state court proceedings which are still pending in accordance with the statutes and rules of Pennsylvania." App. 60. Under Younger v. Harris and companion cases, the District Court's judgment should be vacated and the case reconsidered. Second: it goes without saying that, in the typical installment sale of personal property, both seller and buyer have interests in the property until the purchase price is fully paid, the seller early in the transaction often having more at stake than the buyer. Nor is it disputed that the buyer's right to possession is conditioned upon his making the stipulated payments, and that, upon default, the seller is entitled to possession. Finally, there is no question in these cases that, if default is disputed by the buyer he has the opportunity for a full hearing, and that, if he prevails, he may have the property or its full value as damages. The narrow issue, as the Court notes, is whether it comports with due process to permit the seller, pending final judgment, to take possession of the property through a writ of replevin served by the sheriff without affording the buyer opportunity to insist that the seller establish at a hearing that there is reasonable Page 407 U. S. 100 basis for his claim of default. The interests of the buyer and seller are obviously antagonistic during this interim period: the buyer wants the use of the property pending final judgment; the seller's interest is to prevent further use and deterioration of his security. By the Florida and Pennsylvania laws, the property is, to all intents and purposes, placed in custody and immobilized during this time. The buyer loses use of the property temporarily, but is protected against loss; the seller is protected against deterioration of the property, but must undertake by bond to make the buyer whole in the event the latter prevails. In considering whether this resolution of conflicting interests is unconstitutional, much depends on one's perceptions of the practical considerations involved. The Court holds it constitutionally essential to afford opportunity for a probable cause hearing prior to repossession. Its stated purpose is "to prevent unfair and mistaken deprivations of property." But in these typical situations, the buyer-debtor has either defaulted or he has not. If there is a default, it would seem not only "fair," but essential, that the creditor be allowed to repossess; and I cannot say that the likelihood of a mistaken claim of default is sufficiently real or recurring to justify a broad constitutional requirement that a creditor do more than the typical state law requires and permits him to do. Sellers are normally in the business of selling and collecting the price for their merchandise. I could be quite wrong, but it would not seem in the creditor's interest for a default occasioning repossession to occur; as a practical matter, it would much better serve his interests if the transaction goes forward and is completed as planned. Dollar-and-cents considerations weigh heavily against false claims of default, as well as against precipitate action that would allow no opportunity for mistakes to surface and be Page 407 U. S. 101 corrected.* Nor does it seem to me that creditors would lightly undertake the expense of instituting replevin actions and putting up bonds. The Court relies on prior cases, particularly Goldberg v. Kelly, 397 U. S. 254 (1970); Bell v. Burson, 402 U. S. 535 (1971); and Stanley v. Illinois, 405 U. S. 645 (1972). But these cases provide no automatic test for determining whether and when due process of law requires adversary proceedings. Indeed, "[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation. . . ." "[W]hat procedures due process may require under any given set of circumstances must begin Page 407 U. S. 102 with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action." Cafeteria Workers v. McElroy, 367 U. S. 886 , 367 U. S. 895 (1961). See also Stanley v. Illinois, supra, at 405 U. S. 650 ; Goldberg v. Kelly, supra, at 397 U. S. 263 . Viewing the issue before us in this light, I would not construe the Due Process Clause to require the creditors to do more than they have done in these cases to secure possession pending final hearing. Certainly, I would not ignore, as the Court does, the creditor's interest in preventing further use and deterioration of the property in which he has substantial interest. Surely, under the Court's own definition, the creditor has a "property" interest as deserving of protection as that of the debtor. At least the debtor, who is very likely uninterested in a speedy resolution that could terminate his use of the property, should be required to make those payments, into court or otherwise, upon which his right to possession is conditioned. Cf. Lindsey v. Normet, 405 U. S. 56 (1972). Third: the Court's rhetoric is seductive, but, in end analysis, the result it reaches will have little impact, and represents no more than ideological tinkering with state law. It would appear that creditors could withstand attack under today's opinion simply by making clear in the controlling credit instruments that they may retake possession without a hearing, or, for that matter, without resort to Judicial process at all. Alternatively, they need only give a few days' notice of a hearing, take possession if hearing is waived or if there is default; and, if hearing is necessary, merely establish probable cause for asserting that default has occurred. It is very doubtful in my mind that such a hearing would, in fact, result in protections for the debtor substantially different from those the present laws provide. Page 407 U. S. 103 On the contrary, the availability of credit may well be diminished or, in any event, the expense of securing it increased. None of this seems worth the candle to me. The procedure that the Court strikes down is not some barbaric hangover from bygone days. The respective rights of the parties in secured transactions have undergone the most intensive analysis in recent years. The Uniform Commercial Code, which now so pervasively governs the subject matter with which it deals, provides in Art. 9, § 9-503, that: "Unless otherwise agreed, a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action. . . ." Recent studies have suggested no changes in Art. 9 in this respect. See Permanent Editorial Board for the Uniform Commercial Code, Review Committee for Article 9 of the Uniform Commercial Code, Final Report, § 9-503 (April 25, 1971). I am content to rest on the judgment of those who have wrestled with these problems so long and often and upon the judgment of the legislatures that have considered and so recently adopted provisions that contemplate precisely what has happened in these cases. * Appellants Paul and Ellen Parham admitted in their complaints that they were delinquent in their payments. They stipulated to this effect, as well as to receipt of notices of delinquency prior to institution of the replevin action, and the District Court so found. Appellant Epps alleged in his complaint that he was not in default. The defendant, Government Employees Exchange Corp., answered that Epps was in default in the amount of $311.25 as of August 9, 1970, that the entire sum due had been demanded in accordance with the relevant documents, and that Epps had failed and refused to pay that sum. The District Court did not resolve this factual dispute. It did find that Epps earned in excess of $10,000 per year, and that the agreements Epps and Parham entered into complied with the provisions of Pennsylvania's Uniform Commercial Code and its Services and Installment Sales Act. As for appellant Rosa Washington, the District Court, based on the allegations of her complaint, entered a temporary restraining order requiring that the property seized from her be returned forthwith. At a subsequent hearing, the order was dissolved, the court finding "that the representations upon which the temporary restraining order of September 18, 1970, issued were incorrect, both as to allegations contained in the complaint and representations made by counsel." (App. 29.) It was stipulated between appellant Fuentes and defendants in the District Court that Mrs. Fuentes was in default at the time the replevin action was filed and that notices to this effect were sent to her over several months prior to institution of the suit. (App. 25-26.)

The Supreme Court ruled that Florida and Pennsylvania's replevin laws, which allowed sellers to seize goods from buyers without a hearing or notice, violated the Fourteenth Amendment's due process clause. The Court held that buyers had a possessory interest in the goods, even if they had not fully paid, and that the states' laws deprived them of their property without due process. The Court found that the buyers were entitled to a hearing before their goods could be seized, and that the bond requirement did not provide an adequate substitute for a pre-seizure hearing.

Lawsuits & Legal Procedures

The Bremen v. Zapata Off-Shore Co.

https://supreme.justia.com/cases/federal/us/407/1/

U.S. Supreme Court The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972) The Bremen v. Zapata Off-Shore Co. No. 71-322 Argued March 21, 1972 Decided June 12, 1972 407 U.S. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Syllabus Petitioner Unterweser made an agreement to tow respondent's drilling rig from Louisiana to Italy. The contract contained a forum-selection clause providing for the litigation of any dispute in the High Court of Justice in London. When the rig under tow was damaged in a storm, respondent instructed Unterweser to tow the rig to Tampa, the nearest port of refuge. There, respondent brought suit in admiralty against petitioners. Unterweser invoked the forum clause in moving for dismissal for want of jurisdiction and brought suit in the English court, which ruled that it had jurisdiction under the contractual forum provision. The District Court, relying on Carbon Black Export, Inc. v. The Monrosa, 254 F.2d 297, held the forum-selection clause unenforceable, and refused to decline jurisdiction on the basis of forum non conveniens. The Court of Appeals affirmed. Held: The forum-selection clause, which was a vital part of the towing contract, is binding on the parties unless respondent can meet the heavy burden of showing that its enforcement would be unreasonable, unfair, or unjust. Pp. 407 U. S. 8 -20 428 F.2d 888 and 446 F.2d 907, vacated and remanded. BURGER, C. J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. WHITE, J., filed a concurring statement, post, p. 407 U. S. 20 . DOUGLAS, J., filed a dissenting opinion, post, p. 407 U. S. 20 . Page 407 U. S. 2 MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted certiorari to review a judgment of the United States Court of Appeals for the Fifth Circuit declining to enforce a forum selection clause governing disputes arising under an international towage contract between petitioners and respondent. The circuits have differed in their approach to such clauses. [ Footnote 1 ] For the reasons stated hereafter, we vacate the judgment of the Court of Appeals. In November, 1967, respondent Zapata, a Houston-based American corporation, contracted with petitioner Unterweser, a German corporation, to tow Zapata's ocean-going, self-elevating drilling rig Chaparral from Louisiana to a point off Ravenna, Italy, in the Adriatic Sea, where Zapata had agreed to drill certain wells. Zapata had solicited bids for the towage, and several companies, including Unterweser, had responded. Unterweser was the low bidder and Zapata requested it to submit a contract, which it did. The contract submitted by Unterweser contained the following provision, which is at issue in this case: "Any dispute arising must be treated before the London Court of Justice. " Page 407 U. S. 3 In addition, the contract contained two clauses purporting to exculpate Unterweser from liability for damages to the towed barge. [ Footnote 2 ] After reviewing the contract and making several changes, but without any alteration in the forum selection or exculpatory clauses, a Zapata vice-president executed the contract and forwarded it to Unterweser in Germany, where Unterweser accepted the changes, and the contract became effective. On January 5, 1968, Unterweser's deep sea tug Bremen departed Venice, Louisiana, with the Chaparral in tow bound for Italy. On January 9, while the flotilla was in international waters in the middle of the Gulf of Mexico, a severe storm arose. The sharp roll of the Chaparral in Gulf waters caused its elevator legs, which had been raised for the voyage, to break off and fall into the sea, seriously damaging the Chaparral. In this emergency situation, Zapata instructed the Bremen to tow its damaged rig to Tampa, Florida, the nearest port of refuge. On January 12, Zapata, ignoring its contract promise to litigate "any dispute arising" in the English courts, commenced a suit in admiralty in the United States Page 407 U. S. 4 District Court at Tampa, seeking $3,500,000 damages against Unterweser in personam and the Bremen in rem, alleging negligent towage and breach of contract. [ Footnote 3 ] Unterweser responded by invoking the forum clause of the towage contract, and moved to dismiss for lack of jurisdiction or on forum non conveniens grounds, or, in the alternative, to stay the action pending submission of the dispute to the "London Court of Justice." Shortly thereafter, in February, before the District Court had ruled on its motion to stay or dismiss the United States action, Unterweser commenced an action against Zapata seeking damages for breach of the towage contract in the High Court of Justice in London, as the contract provided; Zapata appeared in that court to contest jurisdiction, but its challenge was rejected, the English courts holding that the contractual forum provision conferred jurisdiction. [ Footnote 4 ] Page 407 U. S. 5 In the meantime, Unterweser was faced with a dilemma in the pending action in the United States court at Tampa. The six-month period for filing action to limit its liability to Zapata and other potential claimants was about to expire, [ Footnote 5 ] but the United States District Court in Tampa had not yet ruled on Unterweser's motion to dismiss or stay Zapata's action. On July 2, 1968, confronted with difficult alternatives, Unterweser filed an action to limit its liability in the District Court in Tampa. That court entered the customary injunction against proceedings outside the limitation court, and Zapata refiled its initial claim in the limitation action. [ Footnote 6 ] Page 407 U. S. 6 It was only at this juncture, on July 29, after the six-month period for filing the limitation action had run, that the District Court denied Unterweser's January motion to dismiss or stay Zapata's initial action. In denying the motion, that court relied on the prior decision of the Court of Appeals in Carbon Black Export, Inc. v. The Monrosa, 254 F.2d 297 (CA5 1958), cert. dismissed, 359 U. S. 180 (1959). In that case, the Court of Appeals had held a forum selection clause unenforceable, reiterating the traditional view of many American courts that "agreements in advance of controversy whose object is to oust the jurisdiction of the courts are contrary to public policy, and will not be enforced." 254 F.2d at 300-301. [ Footnote 7 ] Apparently concluding that it was bound by the Carbon Black case, the District Court gave the forum selection clause little, if any, weight. Instead, the court treated the motion to dismiss under normal forum non conveniens doctrine applicable in the absence of such a clause, citing Gulf Oil Corp. v. Gilbert, 330 U. S. 501 (1947). Under that doctrine "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Id. at 330 U. S. 508 . The District Court concluded: "The balance of conveniences here is not strongly in favor of [Unterweser] and [Zapata's] choice of forum should not be disturbed." Thereafter, on January 21, 1969, the District Court denied another motion by Unterweser to stay the limitation action pending determination of the controversy in the High Court of Justice in London, and granted Zapata's motion to restrain Unterweser from litigating Page 407 U. S. 7 further in the London court. The District Judge ruled that, having taken jurisdiction in the limitation proceeding, he had jurisdiction to determine all matters relating to the controversy. He ruled that Unterweser should be required to "do equity" by refraining from also litigating the controversy in the London court, not only for the reasons he had previously stated for denying Unterweser's first motion to stay Zapata's action, but also because Unterweser had invoked the United States court's jurisdiction to obtain the benefit of the Limitation Act. On appeal, a divided panel of the Court of Appeals affirmed, and, on rehearing en banc, the panel opinion was adopted, with six of the 14 en banc judges dissenting. As had the District Court, the majority rested on the Carbon Black decision, concluding that, " at the very least,'" that case stood for the proposition that a forum selection clause "`will not be enforced unless the selected state would provide a more convenient forum than the state in which suit is brought.'" From that premise, the Court of Appeals proceeded to conclude that, apart from the forum selection clause, the District Court did not abuse its discretion in refusing to decline jurisdiction on the basis of forum non conveniens. It noted that (1) the flotilla never "escaped the Fifth Circuit's mare nostrum, and the casualty occurred in close proximity to the district court"; (2) a considerable number of potential witnesses, including Zapata crewmen, resided in the Gulf Coast area; (3) preparation for the voyage and inspection and repair work had been performed in the Gulf area; (4) the testimony of the Bremen crew was available by way of deposition; (5) England had no interest in or contact with the controversy other than the forum selection clause. The Court of Appeals majority further noted that Zapata was a United States citizen and "[t]he discretion Page 407 U. S. 8 of the district court to remand the case to a foreign forum was consequently limited" -- especially since it appeared likely that the English courts would enforce the exculpatory clauses. [ Footnote 8 ] In the Court of Appeals' view, enforcement of such clauses would be contrary to public policy in American courts under Bisso v. Inland Waterways Corp., 349 U. S. 85 (1955), and Dixilyn Drilling Corp. v. Crescent Towing & Salvage Co., 372 U. S. 697 (1963). Therefore, "[t]he district court was entitled to consider that remanding Zapata to a foreign forum, with no practical contact with the controversy, could raise a bar to recovery by a United States citizen which its own convenient courts would not countenance. [ Footnote 9 ]" We hold, with the six dissenting members of the Court of Appeals, that far too little weight and effect were given to the forum clause in resolving this controversy. For at least two decades, we have witnessed an expansion of overseas commercial activities by business enterprises based in the United States. The barrier of distance that, once tended to confine a business concern to a modest territory no longer does so. Here we see an American Page 407 U. S. 9 company with special expertise contracting with a foreign company to tow a complex machine thousands of miles across seas and oceans. The expansion of American business and industry will hardly be encouraged if, notwithstanding solemn contracts, we insist on a parochial concept that all disputes must be resolved under our laws and in our courts. Absent a contract forum, the considerations relied on by the Court of Appeals would be persuasive reasons for holding an American forum convenient in the traditional sense, but in an era of expanding world trade and commerce, the absolute aspects of the doctrine of the Carbon Black case have little place, and would be a heavy hand indeed on the future development of international commercial dealings by Americans. We cannot have trade and commerce in world markets and international waters exclusively on our terms, governed by our laws, and resolved in our courts. Forum selection clauses have historically not been favored by American courts. Many courts, federal and state, have declined to enforce such clauses on the ground that they were "contrary to public policy," or that their effect was to "oust the jurisdiction" of the court. [ Footnote 10 ] Although Page 407 U. S. 10 this view apparently still has considerable acceptance, other courts are tending to adopt a more hospitable attitude toward forum selection clauses. This view, advanced in the well reasoned dissenting opinion in the instant case, is that such clauses are prima facie valid, and should be enforced unless enforcement is shown by the resisting party to be "unreasonable" under the circumstances. [ Footnote 11 ] We believe this is the correct doctrine to be followed by federal district courts sitting in admiralty. It is merely the other side of the proposition recognized by this Court in National Equipment Rental, Ltd. v. Szukhent, 375 U. S. 311 (1964), holding that in federal courts a party may validly consent to be sued in a jurisdiction Page 407 U. S. 11 where he cannot be found for service of process through contractual designation of an "agent" for receipt of process in that jurisdiction. In so holding, the Court stated: "[I]t is settled . . . that parties to a contract may agree in advance to submit to the jurisdiction of a given court, to permit notice to be served by the opposing party, or even to waive notice altogether." Id. at 375 U. S. 315 -316. This approach is substantially that followed in other common law countries, including England. [ Footnote 12 ] It is the view advanced by noted scholars, and that adopted by the Restatement of the Conflict of Laws. [ Footnote 13 ] It accords with ancient concepts of freedom of contract, and reflects an appreciation of the expanding horizons of American contractors who seek business in all parts of the world. Not surprisingly, foreign businessmen prefer, as do we, to Page 407 U. S. 12 have disputes resolved in their own courts, but, if that choice is not available, then in a neutral forum with expertise in the subject matter. Plainly, the courts of England meet the standards of neutrality and long experience in admiralty litigation. The choice of that forum was made in an arm's length negotiation by experienced and sophisticated businessmen, and, absent some compelling and countervailing reason, it should be honored by the parties and enforced by the courts. The argument that such clauses are improper because they tend to "oust" a court of jurisdiction is hardly more than a vestigial legal fiction. It appears to rest at core on historical judicial resistance to any attempt to reduce the power and business of a particular court, and has little place in an era when all courts are overloaded and when businesses, once essentially local, now operate in world markets. It reflects something of a provincial attitude regarding the fairness of other tribunals. No one seriously contends in this case that the forum selection clause "ousted" the District Court of jurisdiction over Zapata's action. The threshold question is whether that court should have exercised its jurisdiction to do more than give effect to the legitimate expectations of the parties, manifested in their freely negotiated agreement, by specifically enforcing the forum clause. There are compelling reasons why a freely negotiated private international agreement, unaffected by fraud, undue influence, or overweening bargaining power, [ Footnote 14 ] such Page 407 U. S. 13 as that involved here, should be given full effect. In this case, for example, we are concerned with a far from routine transaction between companies of two different nations contemplating the tow of an extremely costly piece of equipment from Louisiana across the Gulf of Mexico and the Atlantic Ocean, through the Mediterranean Sea to its final destination in the Adriatic Sea. In the course of its voyage, it was to traverse the waters of many jurisdictions. The Chaparral could have been damaged at any point along the route, and there were countless possible ports of refuge. That the accident occurred in the Gulf of Mexico and the barge was towed to Tampa in an emergency were mere fortuities. It cannot be doubted for a moment that the parties sought to provide for a neutral forum for the resolution of any disputes arising during the tow. Manifestly, much uncertainty and possibly great inconvenience to both parties could arise if a suit could be maintained in any jurisdiction in which an accident might occur or if jurisdiction were left to any place where the Bremen or Unterweser might happen to be found. [ Footnote 15 ] The elimination of all such uncertainties by agreeing in advance on a forum acceptable to both parties is an indispensable element in international trade, Page 407 U. S. 14 commerce, and contracting. There is strong evidence that the forum clause was a vital part of the agreement, [ Footnote 16 ] and it would be unrealistic to think that the parties did not conduct their negotiations, including fixing the monetary terms, with the consequences of the forum clause figuring prominently in their calculations. Under these circumstances, as Justice Karminski reasoned in sustaining jurisdiction over Zapata in the High Court of Justice, "[t]he force of an agreement for litigation in this country, freely entered into between two competent parties, seems to me to be very powerful." Page 407 U. S. 15 Thus, in the light of present-day commercial realities and expanding international trade, we conclude that the forum clause should control absent a strong showing that it should be set aside. Although their opinions are not altogether explicit, it seems reasonably clear that the District Court and the Court of Appeals placed the burden on Unterweser to show that London would be a more convenient forum than Tampa, although the contract expressly resolved that issue. The correct approach would have been to enforce the forum clause specifically unless Zapata could clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching. Accordingly, the case must be remanded for reconsideration. We note, however, that there is nothing in the record presently before us that would support a refusal to enforce the forum clause. The Court of Appeals suggested that enforcement would be contrary to the public policy of the forum under Bisso v. Inland Waterways Corp., 349 U. S. 85 (1955), because of the prospect that the English courts would enforce the clauses of the towage contract purporting to exculpate Unterweser from liability for damages to the Chaparral. A contractual choice of forum clause should be held unenforceable if enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision. See, e.g., Boyd v. Grand Trunk W. R. Co., 338 U. S. 263 (1949). It is clear, however, that whatever the proper scope of the policy expressed in Bisso, [ Footnote 17 ] it does not reach this case. Bisso rested on considerations with respect to the towage business strictly in Page 407 U. S. 16 American waters, and those considerations are not controlling in an international commercial agreement. Speaking for the dissenting judges in the Court of Appeals, Judge Wisdom pointed out: "[W]e should be careful not to over-emphasize the strength of the [ Bisso ] policy. . . . [T]wo concerns underlie the rejection of exculpatory agreements: that they may be produced by overweening bargaining power; and that they do not sufficiently discourage negligence. . . . Here, the conduct in question is that of a foreign party occurring in international waters outside our jurisdiction. The evidence disputes any notion of overreaching in the contractual agreement. And, for all we know, the uncertainties and dangers in the new field of transoceanic towage of oil rigs were so great that the tower was unwilling to take financial responsibility for the risks, and the parties thus allocated responsibility for the voyage to the tow. It is equally possible that the contract price took this factor into account. I conclude that we should not invalidate the forum selection clause here unless we are firmly convinced that we would thereby significantly encourage negligent conduct within the boundaries of the United States." 428 F.2d at 907-908. (Footnotes omitted.) Courts have also suggested that a forum clause, even though it is freely bargained for and contravenes no important public policy of the forum, may nevertheless be "unreasonable" and unenforceable if the chosen forum is seriously inconvenient for the trial of the action. Of course, where it can be said with reasonable assurance that, at the time they entered the contract, the parties to a freely negotiated private international commercial agreement contemplated the claimed inconvenience, it is difficult to see why any such claim of inconvenience should be heard to render the forum clause unenforceable. Page 407 U. S. 17 We are not here dealing with an agreement between two Americans to resolve their essentially local disputes in a remote alien forum. In such a case, the serious inconvenience of the contractual forum to one or both of the parties might carry greater weight in determining the reasonableness of the forum clause. The remoteness of the forum might suggest that the agreement was an adhesive one, or that the parties did not have the particular controversy in mind when they made their agreement; yet even there, the party claiming should bear a heavy burden of proof. [ Footnote 18 ] Similarly, selection of a remote forum to apply differing foreign law to an essentially American controversy might contravene an important public policy of the forum. For example, so long as Bisso governs American courts with respect to the towage business in American waters, it would quite arguably be improper to permit an American tower to avoid that policy by providing a foreign forum for resolution of his disputes with an American towee. This case, however, involves a freely negotiated international commercial transaction between a German and an American corporation for towage of a vessel from the Gulf of Mexico to the Adriatic Sea. As noted, selection of a London forum was clearly a reasonable effort to bring vital certainty to this international transaction, and to provide a neutral forum experienced and capable in the resolution of admiralty litigation. Whatever "inconvenience" Zapata would suffer by being forced to litigate in the contractual forum as it agreed to do was clearly Page 407 U. S. 18 foreseeable at the time of contracting. In such circumstances, it should be incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be so gravely difficult and inconvenient that he will, for all practical purposes, be deprived of his day in court. Absent that, there is no basis for concluding that it would be unfair, unjust, or unreasonable to hold that party to his bargain. In the course of its ruling on Unterweser's second motion to stay the proceedings in Tampa, the District Court did make a conclusory finding that the balance of convenience was "strongly" in favor of litigation in Tampa. However, as previously noted, in making that finding, the court erroneously placed the burden of proof on Unterweser to show that the balance of convenience was strongly in its favor. [ Footnote 19 ] Moreover, the finding falls far short of a conclusion that Zapata would be effectively deprived of its day in court should it be Page 407 U. S. 19 forced to litigate in London. Indeed, it cannot even be assumed that it would be placed to the expense of transporting its witnesses to London. It is not unusual for important issues in international admiralty cases to be dealt with by deposition. Both the District Court and the Court of Appeals majority appeared satisfied that Unterweser could receive a fair hearing in Tampa by using deposition testimony of its witnesses from distant places, and there is no reason to conclude that Zapata could not use deposition testimony to equal advantage if forced to litigate in London, as it bound itself to do. Nevertheless, to allow Zapata opportunity to carry its heavy burden of showing not only that the balance of convenience is strongly in favor of trial in Tampa (that is, that it will be far more inconvenient for Zapata to litigate in London than it will be for Unterweser to litigate in Tampa), but also that a London trial will be so manifestly and gravely inconvenient to Zapata that it will be effectively deprived of a meaningful day in court, we remand for further proceedings. Zapata's remaining contentions do not require extended treatment. It is clear that Unterweser's action in filing its limitation complaint in the District Court in Tampa was, so far as Zapata was concerned, solely a defensive measure made necessary as a response to Zapata's breach of the forum clause of the contract. When the six-month statutory period for filing an action to limit its liability had almost run without the District Court's having ruled on Unterweser's initial motion to dismiss or stay Zapata's action pursuant to the forum clause, Unterweser had no other prudent alternative but to protect itself by filing for limitation of its liability. [ Footnote 20 ] Its action in so doing was a direct consequence Page 407 U. S. 20 of Zapata's failure to abide by the forum clause of the towage contract. There is no basis on which to conclude that this purely necessary defensive action by Unterweser should preclude it from relying on the forum clause it bargained for. For the first time in this litigation, Zapata has suggested to this Court that the forum clause should not be construed to provide for an exclusive forum or to include in rem actions. However, the language of the clause is clearly mandatory and all-encompassing; the language of the clause in the Cabon Black case was far different. [ Footnote 21 ] The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. Vacated and remanded. [ Footnote 1 ] Compare, e.g., Central Contraction Co. v. Maryland Casualty Co., 367 F.2d 341 (CA3 1966), and Wm. H. Muller & Co. v. Swedish American Line Ltd., 224 F.2d 806 (CA2) cert. denied, 350 U.S. 903 (1955), with Carbon Black Export, Inc. v. The Monrosa, 254 F.2d 297 (CA5 1958), cert. dismissed, 359 U. S. 180 (1959). [ Footnote 2 ] The General Towage Conditions of the contract included the following: "1. . . . [Unterweser and its] masters and crews are not responsible for defaults and/or errors in the navigation of the tow." "2. . . ." "b) Damages suffered by the towed object are in any case for account of its Owners." In addition, the contract provided that any insurance of the Chaparral was to be "for account of" Zapata. Unterweser's initial telegraphic bid had also offered to "arrange insurance covering towage risk for rig if desired." As Zapata had chosen to be self-insured on all its rigs, the loss in this case was not compensated by insurance. [ Footnote 3 ] The Bremen was arrested by a United States marshal acting pursuant to Zapata's complaint immediately upon her arrival in Tampa. The tug was subsequently released when Unterweser furnished security in the amount of $3,500;000. [ Footnote 4 ] Zapata appeared specially and moved to set aside service of process outside the country. Justice Karminski of the High Court of Justice denied the motion on the ground the contractual choice of forum provision conferred jurisdiction, and would be enforced absent a factual showing it would not be "fair and right" to do so. He did not believe Zapata had made such a showing, and held that it should be required to "stick to [its] bargain." App. 206, 211, 213. The Court of Appeal dismissed an appeal on the ground that Justice Karminski had properly applied the English rule. Lord Justice Willmer stated that rule as follows: "The law on the subject, I think, is not open to doubt. . . . It is always open to parties to stipulate . . . that a particular Court shall have jurisdiction over any dispute arising out of their contract. Here, the parties chose to stipulate that disputes were to be referred to the 'London Court,' which I take as meaning the High Court in this country. Prima facie, it is the policy of the Court to hold parties to the bargain into which they have entered. . . . But that is not an inflexible rule, as was shown, for instance, by the case of The Fehmarn, [1957] 1 Lloyd's Rep. 511; (C.A.) [1957] 2 Lloyd's Rep. 551. . . ." "I approach the matter, therefore, in this way, that the Court has a discretion, but it is a discretion which, in the ordinary way and in the absence of strong reason to the contrary, will be exercised in favour of holding parties to their bargain. The question is whether sufficient circumstances have been shown to exist in this case to make it desirable, on the grounds of balance of convenience, that proceedings should not take place in this country. . . ." [1968] 2 Lloyd's Rep. 158, 162-163. [ Footnote 5 ] 46 U.S.C. §§ 183, 185. See generally G. Gilmore & C. Black, Admiralty § 115 (1957). [ Footnote 6 ] In its limitation complaint, Unterweser stated it "reserve[d] all rights" under its previous motion to dismiss or stay Zapata's action, and reasserted that the High Court of Justice was the proper forum for determining the entire controversy, including its own right to limited liability, in accord with the contractual forum clause. Unterweser later counterclaimed, setting forth the same contractual cause of action as in its English action and a further cause of action for salvage arising out of the Bremen's services following the casualty. In its counterclaim, Unterweser again asserted that the High Court of Justice in London was the proper forum for determining all aspects of the controversy, including its counterclaim. [ Footnote 7 ] The Carbon Black court went on to say that it was, in any event, unnecessary for it to reject the more liberal position taken in Wm. H. Muller & Co. v. Swedish American Line Ltd., 224 F.2d 806 (CA2), cert. denied, 350 U.S. 903 (1955), because the case before it had a greater nexus with the United States than that in Muller. [ Footnote 8 ] The record contains an undisputed affidavit of a British solicitor stating an opinion that the exculpatory clauses of the contract would be held " prima facie valid and enforceable" against Zapata in any action maintained in England in which Zapata alleged that defaults or errors in Unterweser's tow caused the casualty and damage to the Chaparral. In addition, it is not disputed that, while the limitation fund in the District Court in Tampa amounts to $1,390,000, the limitation fund in England would be only slightly in excess of $80,000 under English law. [ Footnote 9 ] The Court of Appeals also indicated in passing that, even if it took the view that choice of forum clauses were enforceable unless "unreasonable," it was "doubtful" that enforcement would be proper here, because the exculpatory clauses would deny Zapata relief to which it was "entitled," and because England was "seriously inconvenient" for trial of the action. [ Footnote 10 ] Many decisions reflecting this view are collected in Annot. 56 A.L.R.2d 300, 306-320 (1957), and Later Case Service (1967). For leading early cases, see, e.g., Nute v. Hamilton Mutual Ins. Co., 72 Mass. (6 Gray) 174 (1856); Nashua River Paper Co. v. Hammermill Paper Co., 223 Mass. 8, 111 N.E. 678 (1916); Benson v. Eastern Bldg. & Loan Assn., 174 N.Y. 83, 66 N.E. 627 (1903). The early admiralty cases were in accord. See, e.g., Wood & Selick, Inc. v. Compagnie Generale Transatlantique, 43 F.2d 941 (CA2 1930); The Ciano, 58 F. Supp. 65 (ED Pa.1944); Kuhnhold v. Compagnie Generale Transatlantique, 251 F. 387 (SDNY 1918); Prince Steam-Shipping Co. v. Lehman, 39 F. 704 (SDNY 1889). In Insurance Co. v. Morse , 20 Wall. 445 (1874), this Court broadly stated that "agreements in advance to oust the courts of the jurisdiction conferred by law are illegal and void." Id. at 87 U. S. 451 . But the holding of that case was only that the State of Wisconsin could not by statute force a foreign corporation to "agree" to surrender its federal statutory right to remove a state court action to the federal courts as a condition of doing business in Wisconsin. Thus, the case is properly understood as one in which a state statutory requirement was viewed as imposing an unconstitutional condition on the exercise of the federal right of removal. See, e.g., Wisconsin v. Philadelphia & Reading Coal Co., 241 U. S. 329 (1916). As Judge Hand noted in Krenger v. Pennsylvania R. Co., 174 F.2d 556 (CA2 1949), even at that date, there was, in fact, no "absolute taboo" against such clauses. See, e.g., Mittenthal v. Mascagni, 183 Mass.19, 66 N.E. 425 (1903); Daley v. People's Bldg., Loan & Sav. Assn., 178 Mass. 13, 59 N.E. 452 (1901) (Holmes, J.). See also Cerro de Pasco Copper Corp. v. Knut Knutsen, O.A.S., 187 F.2d 990 (CA2 1951). [ Footnote 11 ] E.g., Central Contracting Co. v. Maryland Casualty Co., 367 F.2d 341 (CA3 1966); Anastasiadis U.S.S. Little John, 346 F.2d 281 (CA5 1965) (by implication); Wm. H. Muller & Co. v. Swedish American Line Ltd., 24 F.2d 806 (CA2), cert. denied;. 350 U.S. 903 (1955); Cerro de Pasco Copper Corp. v. Knut Knutsen, O.A.S., 187 F.2d 990 (CA2 1951); Central Contracting Co. v. C. E. Youngdahl & Co., 418 Pa. 122, 209 A.2d 810 (1965). The Muller case was overruled in Indussa Corp. U.S.S. Ranborg, 377 F.2d 200 (CA2 1967), insofar as it held that the forum clause was not inconsistent with the "lessening of liability" provision of the Carriage of Goods by Sea Act, 46 U.S.C. § 1303(8), which was applicable to the transactions in Muller, Indussa, and Carbon Black. That Act is not applicable in this case. [ Footnote 12 ] In addition to the decision of the Court of Appeal in the instant case, Unterweser Reederei G.m.b.H. v. Zapata Off-Shore Co. [The Chaparral], [1968] 2 Lloyd's Rep. 158 (C.A.), see e.g., Mackender v. Feldia A.G., [1967] 2 Q.B. 590 (C.A.); The Fehmarn, [1958] 1 W.L.R. 159 (C.A.); Law v. Garrett, [1878] 8 Ch.D. 26 (C.A.); The Eleftheria, [1970] P. 94. As indicated by tho clear statements in The Eleftheria and of Lord Justice Willmer in this case, supra, n 4, the decision of the trial court calls for an exercise of discretion. See generally A. Dicey & J. Morris, The Conflict of Laws 979-980, 1087-1088 (8th ed.1967); Cowen & Mendes da Costa, The Contractual Forum: Situation in England and the British Commonwealth, 13 Am.J.Comp.Law 179 (1964); Reese, The Contractual Forum: Situation in the United States, id. at 187, 190 n. 13; Graupner, Contractual Stipulations Conferring Exclusive Jurisdiction Upon Foreign Courts in the Law of England and Scotland, 59 L.Q.Rev. 227 (1943). [ Footnote 13 ] Restatement (Second) of the Conflict of Laws § 80 (1971); Reese, The Contractual Forum: Situation in the United States, 13 Am.J.Comp.Law 187 (1964); A. Ehrenzweig, Conflict of Laws § 41 (1962). See also Model Choice of Forum Act (National Conference of Commissioners on Uniform State Laws 1968). [ Footnote 14 ] The record here refutes any notion of overweening bargaining power. Judge Wisdom, dissenting in the Court of Appeals, noted: "Zapata has neither presented evidence of nor alleged fraud or undue bargaining power in the agreement. Unterweser was only one of several companies bidding on the project. No evidence contradicts its Managing Director's affidavit that it specified English courts 'in an effort to meet Zapata Off-Shore Company half way.' Zapata's Vice President has declared by affidavit that no specific negotiations concerning the forum clause took place. But this was not simply a form contract with boilerplate language that Zapata had no power to alter. The towing of an oil rig across the Atlantic was a new business. Zapata did make alterations to the contract submitted by Unterweser. The forum clause could hardly be ignored. It is the final sentence of the agreement, immediately preceding the date and the parties' signatures. . . ." 428 F.2d 888, 907. [ Footnote 15 ] At the very least, the clause was an effort to eliminate all uncertainty as to the nature, location, and outlook of the forum in which these companies of differing nationalities might find themselves. Moreover, while the contract here did not specifically provide that the substantive law of England should be applied, it is the general rule in English courts that the parties are assumed, absent contrary indication, to have designated the forum with the view that it should apply its own law. See, e.g., Tzortzis v. Monark Line A/B, [1968] 1 W.L.R. 406 (C.A.); see generally 1 T. Carver, Carriage by Sea 496-497 (12th ed.1971); G. Cheshire, Private International Law 193 (7th ed.1965); A. Dicey & J. Morris, The Conflict of Laws 705, 1046 (8th ed.1967); Collins, Arbitration Clauses and Forum Selecting Clauses in the Conflict of Laws: Some Recent Developments in England, 2 J.Mar.L. & Comm. 363, 365-370 and n. 7 (1971). It is therefore reasonable to conclude that the forum clause was also an effort to obtain certainty as to the applicable substantive law. The record contains an affidavit of a Managing Director of Unterweser stating that Unterweser considered the choice of forum provision to be of "overriding importance" to the transaction. He stated that Unterweser towage contracts ordinarily provide for exclusive German jurisdiction and application of German law, but that, "[i]n this instance, in an effort to meet [Zapata] half-way, [Unterweser] proposed the London Court of Justice. Had this provision not been accepted by [Zapata], [Unterweser] would not have entered into the towage contract. . . ." He also stated that the parties intended, by designating the London forum, that English law would be applied. A responsive affidavit by Hoyt Taylor, a vice-president of Zapata, denied that there were any discussions between Zapata and Unterweser concerning the forum clause or the question of the applicable law. [ Footnote 16 ] See nn. 14-15 supra. Zapata has denied specifically discussing the forum clause with Unterweser, but, as Judge Wisdom pointed out, Zapata made numerous changes in the contract without altering the forum clause, which could hardly have escaped its attention. Zapata is clearly not unsophisticated in such matters. The contract of its wholly owned subsidiary with an Italian corporation covering the contemplated drilling operations in the Adriatic Sea provided that all disputes were to be settled by arbitration in London under English law, and contained broad exculpatory clauses. App. 306-311. [ Footnote 17 ] Dixilyn Drilling Corp. v. Crescent Towing & Salvage Co., 372 U. S. 697 (1963) (per curiam), merely followed Bisso and declined to subject its rule governing towage contracts in American waters to "indeterminate exceptions" based on delicate analysis of the facts of each case. See 372 U.S. at 372 U. S. 698 (Harlan, J., concurring). [ Footnote 18 ] See, e.g., Model Choice of Forum Act § 3(3), supra, n 13, comment: "On rare occasions, the state of the forum may be a substantially more convenient place for the trial of a particular controversy than the chosen state. If so, the present clause would permit the action to proceed. This result will presumably be in accord with the desires of the parties. It can be assumed that they did not have the particular controversy in mind when they made the choice of forum agreement, since they would not consciously have agreed to have the action brought in an inconvenient place." [ Footnote 19 ] Applying the proper burden of proof, Justice Karminski, in the High Court of Justice at London, made the following findings, which appear to have substantial support in the record: "[Zapata] pointed out that in this case the balance of convenience so far as witnesses were concerned pointed in the direction of having the case heard and tried in the United States District Court at Tampa in Florida because the probability is that most, but not necessarily all, of the witnesses will be American. The answer, as it seems to me, is that a substantial minority, at least, of witnesses are likely to be German. The tug was a German vessel, and was, as far as I know, manned by a German crew. . . . Where they all are now or are likely to be when this matter is litigated I do not know, because the experience of the Admiralty Court here strongly points out that maritime witnesses, in the course of their duties, move about freely. The homes of the German crew presumably are in Germany. There is probably a balance of numbers in favour of the Americans, but not, as I am inclined to think, a very heavy balance." App. 212. It should also be noted that, if the exculpatory clause is enforced in the English courts, many of Zapata's witnesses on the questions of negligence and damage may be completely unnecessary. [ Footnote 20 ] Zapata has suggested that Unterweser was not in any way required to file its "affirmative" limitation complaint, because it could just as easily have pleaded limitation of liability by way of defense in Zapata's initial action, either before or after the six-month period. That course of action was not without risk, however, that Unterweser's attempt to limit its liability by answer would be held invalid. See G. Gilmore & C. Black, Admiralty § 115 (1957). We do not believe this hazardous option in any way deprived Unterweser's limitation complaint of its essentially defensive character so far as Zapata was concerned. [ Footnote 21 ] See 359 U.S. at 359 U. S. 182 . MR. JUSTICE WHITE, concurring. I concur in the opinion and judgment of the Court except insofar as the opinion comments on the issues which are remanded to the District Court. In my view, these issues are best left for consideration by the District Court in the first instance. MR. JUSTICE DOUGLAS, dissenting. Petitioner Unterweser contracted with respondent to tow respondent's drilling barge from Louisiana to Italy. The towage contract contained a "forum selection clause" Page 407 U. S. 21 providing that any dispute must be litigated before the High Court of Justice in London, England. While the barge was being towed in the Gulf of Mexico, a casualty was suffered. The tow made for Tampa Bay, he nearest port, where respondent brought suit for damages in the District Court. Petitioners sued respondent in the High Court of Justice in London, which denied respondent's motion to dismiss. Petitioners, having previously moved the District Court to dismiss, filed a complaint in that court seeking exoneration or limitation of liability as provided in 46 U.S.C. § 185. Respondent filed its claim in the limitation proceedings, asserting the same cause of action as in its original action. Petitioners then filed objections to respondent's claim and counterclaimed against respondent, alleging the same claims embodied in its English action, plus an additional salvage claim. Respondent moved for an injunction against petitioners' litigating further in the English case, and the District Court granted the injunction pending determination of the limitation action. Petitioners moved to stay their own limitation proceeding pending a resolution of the suit in the English court. That motion was denied. 296 F. Supp. 733 . That was the posture of the case as it reached the Court of Appeals, petitioners appealing from the last two orders. The Court of Appeals affirmed. 428 F.2d 888, 446 F.2d 907. Chief Justice Taft, in Hartford Accident Co. v. Southern Pacific, 273 U. S. 207 , 273 U. S. 214 , in discussing the Limitation of Liability Act, said that "the great object of the statute was to encourage shipbuilding, and to induce the investment of money in this branch of industry, by limiting the venture of those who build the ship to the loss of the ship itself or her freight then pending, in cases of damage or wrong, happening without the privity or Page 407 U. S. 22 knowledge of the ship owner, and by the fault or neglect of the master or other persons on board; that the origin of this proceeding for limitation of liability is to be found in the general maritime law, differing from the English maritime law; and that such a proceeding is entirely within the constitutional grant of power to Congress to establish courts of admiralty and maritime jurisdiction." Chief Justice Taft went on to describe how the owner of a vessel who, in case the vessel is found at fault, may limit his liability to the value of the vessel and may bring all claimants "into concourse in the proceeding, by monition," and they may be enjoined from suing the owner and the vessel on such claims in any other court. Id. at 273 U. S. 215 . Chief Justice Taft concluded: "[T]his Court has, by its rules and decisions, given the statute a very broad and equitable construction for the purpose of carrying out its purpose and for facilitating a settlement of the whole controversy over such losses as are comprehended within it, and that all the ease with which rights can be adjusted in equity is intended to be given to the proceeding. It is the administration of equity in an admiralty court. . . . The proceeding partakes in a way of the features of a bill to enjoin a multiplicity of suits, a bill in the nature of an interpleader, and a creditor's bill. It looks to a complete and just disposition of a many-cornered controversy, and is applicable to proceedings in rem against the ship, as well as to proceedings in personam against the owner, the limitation extending to the owner's property as well as to his person." Id. at 273 U. S. 215 -216. The Limitation Court is a court of equity, and, traditionally, an equity court may enjoin litigation in another court where equitable considerations indicate that the other litigation might prejudice the proceedings in the Limitation Court. Petitioners' petition for limitation Page 407 U. S. 23 subjects them to the full equitable powers of the Limitation Court. Respondent is a citizen of this country. Moreover, if it were remitted to the English court, its substantive rights would be adversely affected. Exculpatory provisions in the towage control provide (1) that petitioners, the masters and the crews "are not responsible for defaults and/or errors in the navigation of the tow" and (2) that "[d]amages suffered by the towed object are in any case for account of its Owners." Under our decision in Dixilyn Drilling Corp v. Crescent Towing & Salvage Co., 372 U. S. 697 , 372 U. S. 698 , "a contract which exempts the tower from liability for its own negligence" is not enforceable, though there is evidence in the present record that it is enforceable in England. That policy was first announced in Bisso v. Inland Waterways Corp., 349 U. S. 85 , and followed in Boston Metals Co. v. The Winding Gulf, 349 U. S. 122 ; Dixilyn, supra; Gray v. Johanesson, 287 F.2d 852 (CA5); California Co. v. Jumonville, 327 F.2d 988 (CA5); American S.S. Co. v. Great Lakes Towing Co., 333 F.2d 426 (CA7); D. R. Kincaid, Ltd. v. Trans-Pacific Towing, Inc., 367 F.2d 857 (CA9); A. L. Mechling Barge Lines, Inc. v. Derby Co., 399 F.2d 304 (CA5). Cf. United States v. Seckinger, 397 U. S. 203 . Although the casualty occurred on the high seas, the Bisso doctrine is nonetheless applicable. The Scotland, 105 U. S. 24 ; The Belgenland, 114 U. S. 355 ; The Gylfe v. The Trujillo, 209 F.2d 386 (CA2). Moreover, the casualty occurred close to the District Court, a number of potential witnesses, including respondent's crewmen, reside in that area, and the inspection and repair work were done there. The testimony of the tower's crewmen, residing in Germany, is already available by way of depositions taken in the proceedings. Page 407 U. S. 24 All in all, the District Court judge exercised his discretion wisely in enjoining petitioners from pursuing the litigation in England. * I would affirm the judgment below. * It is said that, because these parties specifically agreed to litigate their disputes before the London Court of Justice, the District Court, absent "unreasonable" circumstances, should have honored that choice by declining to exercise its jurisdiction. The forum selection clause, however, is part and parcel of the exculpatory provision in the towing agreement which, as mentioned in the text, is not enforceable in American courts. For only by avoiding litigation in the United States could petitioners hope to evade the Bisso doctrine. Judges in this country have traditionally been hostile to attempts to circumvent the public policy against exculpatory agreements. For example, clauses specifying that the law of a foreign place (which favors such releases) should control have regularly been ignored. Thus, in The Kensington, 183 U. S. 263 , 183 U. S. 276 , the Court held void an exemption from liability despite the fact that the contract provided that it should be construed under Belgian law, which was more tolerant. And see E. Gerli & Co. v. Cunard S.S. Co., 48 F.2d 115, 117 (CA2); Oceanic Steam Nav. Co. v. Corcoran, 9 F.2d 724, 731 (CA2); In re Lea Fabrics, Inc., 226 F. Supp. 232 , 237 (NJ); F. A. Straus & Co. v. Canadian P. R. Co., 254 N.Y. 407, 173 N.E. 564; Siegelman v. Cunard White Star, 221 F.2d 189, 199 (CA2) (Frank, J., dissenting). 6A A. Corbin on Contracts § 1446 (1962). The instant stratagem of specifying a foreign forum is essentially the same as invoking a foreign law of construction, except that the present circumvention also requires the American party to travel across an ocean to seek relief. Unless we are prepared to overrule Bisso, we should not countenance devices designed solely for the purpose of evading its prohibition. It is argued, however, that one of the rationales of the Bisso doctrine, "to protect those in need of goods or services from being overreached by others who have power to drive hard bargains" (349 U.S. at 349 U. S. 91 ), does not apply here, because these parties may have been of equal bargaining stature. Yet we have often adopted prophylactic rules rather than attempt to sort the core cases from the marginal ones. In any event, the other objective of the Bisso doctrine, to "discourage negligence by making wrongdoers pay damages" ( ibid. ) applies here and in every case, regardless of the relative bargaining strengths of the parties.

The Supreme Court ruled that a forum-selection clause in an international towage contract was binding unless it could be proven to be unreasonable, unfair, or unjust. The Court vacated the judgment of the Court of Appeals, which had declined to enforce the clause, and remanded the case for further consideration.

Lawsuits & Legal Procedures

Adickes v. S.H. Kress & Co.

https://supreme.justia.com/cases/federal/us/398/144/

U.S. Supreme Court Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970) Adickes v. S. H. Kress & Co. No. 79 Argued November 12, 1969 Decided June 1, 1970 398 U.S. 144 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus Petitioner is a white school teacher who was refused service in respondent's lunchroom when she was accompanied by six Negro students, and who was arrested for vagrancy by the Hattiesburg, Mississippi, police when she left respondent's premises. She filed a complaint in the Federal District Court to recover damages alleging deprivation of her right under the Equal Protection Clause not to be discriminated against on the basis of race. The complaint had two counts, each based on 42 U.S.C. § 1983: (1) that she had been refused service because she was a "Caucasian in the company of Negroes" (under which she sought to prove that the refusal to serve her was pursuant to a "custom of the community to segregate races in public eating places") and (2) that the refusal of service and the arrest were the product of a conspiracy between respondent and the police (under which she alleged that the policeman who arrested her was in the store at the time of the refusal of service). The District Court ruled that, to recover under the first count, petitioner would have to prove a specific "custom of refusing service to whites who were in the company of Negroes" that was "enforced by the State" under its criminal trespass statute. The court directed a verdict for respondent on this count because petitioner failed to prove other instances of whites having been refused service while in company of Negroes in Hattiesburg. The Court of Appeals affirmed, holding that § 1983 requires the discriminatory custom be proved to exist in the locale where the discrimination took place and in the State generally, and that petitioner's proof was deficient on both points. The second count was dismissed before trial by the District Court on a motion for summary judgment, since petitioner "failed to allege any facts from which a conspiracy might be inferred." The Court of Appeals affirmed this determination. Held: 1. The District Court, on the basis of this record, erred in granting summary judgment on the conspiracy count. Pp. 398 U. S. 149 -161. Page 398 U. S. 145 (a) The involvement of a policeman, a state official, whether or not his actions were lawful or authorized, in the alleged conspiracy would plainly provide the state action needed to show a direct violation of petitioner's Fourteenth Amendment rights entitling her to relief under § 1983, and private persons involved in such a conspiracy are acting "under color" of law, and can be liable under § 1983. Pp. 398 U. S. 150 -152. (b) Respondent did not carry out its burden, as the party moving for summary judgment of showing the absence of a genuine issue as to any material fact, as it did not foreclose the possibility that there was a policeman in the store while the petitioner was awaiting service (from which the jury could infer an understanding between the officer and an employee of respondent that petitioner not be served), and its failure to meet that burden requires reversal. Pp. 398 U. S. 153 -159. (c) Because respondent failed to meet its initial burden as the party moving for summary judgment, petitioner was not required to come forward with suitable opposing affidavits under Fed.Rule Civ.Proc. 56(e). Pp. 398 U. S. 159 -161. 2. Petitioner will have established a claim under § 1983 for violation of her equal protection rights if she proves that she was refused service by respondent because of a state-enforced custom requiring racial segregation in Hattiesburg restaurants. Pp. 398 U. S. 161 -174. (a) Based upon the language of the statute legislative history, and judicial decisions, the words "under color of a . . . custom or usage, of [a] State," in § 1983, mean that the "custom or usage" must have the force of law by virtue of the persistent practices of state officials. Pp. 398 U. S. 162 -169. (b) Petitioner would have shown an abridgment of her constitutional right of equal protection if she proved that respondent refused her service because of a state-enforced custom of racial segregation in public restaurants. Pp. 398 U. S. 169 -171. (c) The District Court erred in its implicit assumption that a custom can have the force of law only if it is enforced by a state statute. Pp. 398 U. S. 171 -172. (d) The District Court's ruling that proving a "custom" in this case required demonstrating a specific practice of not serving white persons in the company of Negroes in public restaurants was too narrow as the relevant inquiry is whether there was a longstanding and still prevailing state-enforced custom of segregating the races in public eating places. P. 398 U. S. 173 . Page 398 U. S. 146 (e) The courts below erred in suggesting that the custom must exist throughout the State, as a custom with the force of law in a political subdivision can offend the Fourteenth Amendment even though it lacks state-wide application. P. 398 U. S. 173 . 409 F.2d 121, reversed and remanded. MR. JUSTICE HARLAN delivered the opinion of the Court. Petitioner, Sandra Adickes, a white school teacher from New York, brought this suit in the United States District Court for the Southern District of New York against respondent S. H. Kress & Co. ("Kress") to recover damages under 42 U.S.C. § 1983 [ Footnote 1 ] for an alleged violation of her constitutional rights under the Equal Protection Clause of the Fourteenth Amendment. The suit arises out of Kress' refusal to serve lunch to Miss Adickes at its restaurant facilities in its Hattiesburg, Mississippi, store on August 14, 1964, and Miss Adickes' subsequent arrest upon her departure from the store by the Hattiesburg police on a charge of vagrancy. At the time of both the refusal to serve and the arrest, Miss Adickes was with six young people, all Negroes, who were her students in a Mississippi "Freedom School" where she was Page 398 U. S. 147 teaching that summer. Unlike Miss Adickes, the students were offered service, and were not arrested. Petitioner's complaint had two counts, [ Footnote 2 ] each bottomed on § 1983, and each alleging that Kress had deprived her of the right under the Equal Protection Clause of the Fourteenth Amendment not to be discriminated against on the basis of race. The first count charged that Miss Adickes had been refused service by Kress because she was a "Caucasian in the company of Negroes." Petitioner sought, inter alia, to prove that the refusal to serve her was pursuant to a "custom of the community to segregate the races in public eating places." However, in a pretrial decision, 252 F. Supp. 140 (1966), the District Court ruled that, to recover under this count, Miss Adickes would have to prove that, at the time she was refused service, there was a specific "custom . . . of refusing service to whites in the company of Negroes," and that this custom was "enforced by the State" under Mississippi's criminal trespass statute. [ Footnote 3 ] Because petitioner was unable to prove at the trial that there were other instances in Hattiesburg of a white person having been refused service while in the company of Negroes, Page 398 U. S. 148 the District Court directed a verdict in favor of respondent. A divided panel of the Court of Appeals affirmed on this ground, also holding that § 1983 "requires that the discriminatory custom or usage be proved to exist in the locale where the discrimination took place, and in the State generally," and that petitioner's "proof on both points was deficient," 409 F.2d 121, 124 (1968). The second count of her complaint, alleging that both the refusal of service and her subsequent arrest were the product of a conspiracy between Kress and the Hattiesburg police, was dismissed before trial on a motion for summary judgment. The District Court ruled that petitioner had "failed to allege any facts from which a conspiracy might be inferred." 252 F. Supp. at 144. This determination was unanimously affirmed by the Court of Appeals, 409 F.2d at 126-127. Miss Adickes, in seeking review here, claims that the District Court erred both in directing a verdict on the substantive count, and in granting summary judgment on the conspiracy count. Last Term we granted certiorari, 394 U.S. 1011 (1969), and we now reverse and remand for further proceedings on each of the two counts. As explained in 398 U. S. because the respondent failed to show the absence of any disputed material fact, we think the District Court erred in granting summary judgment. With respect to the substantive count, for reasons explained in 398 U. S. we think petitioner will have made out a claim under § 1983 for violation of her equal protection rights if she proves that she was refused service by Kress because of a state-enforced custom requiring racial segregation in Hattiesburg restaurants. We think the courts below erred (1) in assuming that the only proof relevant to showing that a custom was state-enforced related to the Mississippi criminal trespass statute; (2) in defining the relevant Page 398 U. S. 149 state-enforced custom as requiring proof of a practice both in Hattiesburg and throughout Mississippi, of refusing to serve white persons in the company of Negroes, rather than simply proof of state-enforced segregation of the races in Hattiesburg restaurants. I Briefly stated, the conspiracy count of petitioner's complaint made the following allegations: while serving as a volunteer teacher at a "Freedom School" for Negro children in Hattiesburg, Mississippi, petitioner went with six of her students to the Hattiesburg Public Library at about noon on August 14, 1964. The librarian refused to allow the Negro students to use the library, and asked them to leave. Because they did not leave, the librarian called the Hattiesburg chief of police, who told petitioner and her students that the library was closed, and ordered them to leave. From the library, petitioner and the students proceeded to respondent's store, where they wished to eat lunch. According to the complaint, after the group sat down to eat, a policeman came into the store "and observed [Miss Adickes] in the company of the Negro students." A waitress then came to the booth where petitioner was sitting, took the orders of the Negro students, but refused to serve petitioner because she was a white person "in the company of Negroes." The complaint goes on to allege that, after this refusal of service, petitioner and her students left the Kress store. When the group reached the sidewalk outside the store, "the Officer of the Law who had previously entered [the] store" arrested petitioner on a groundless charge of vagrancy and took her into custody. On the basis of these underlying facts, petitioner alleged that Kress and the Hattiesburg police had conspired (1) "to deprive [her] of her right to enjoy equal treatment and service in a place of public accommodation"; Page 398 U. S. 150 and (2) to cause her arrest "on the false charge of vagrancy." A. CONSPIRACIES BETWEEN PUBLIC OFFICIALS AND PRIVATE PERSONS -- GOVERNING PRINCIPLES The terms of § 1983 make plain two elements that are necessary for recovery. First, the plaintiff must prove that the defendant has deprived him of a right secured by the "Constitution and laws" of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory." This second element requires that the plaintiff show that the defendant acted "under color of law." [ Footnote 4 ] As noted earlier, we read both counts of petitioner's complaint to allege discrimination based on race in violation of petitioner's equal protection rights. [ Footnote 5 ] Few principles Page 398 U. S. 151 of law are more firmly stitched into our constitutional fabric than the proposition that a State must not discriminate against a person because of his race Page 398 U. S. 152 or the race of his companions, or in any way act to compel or encourage racial segregation. [ Footnote 6 ] Although this is a lawsuit against a private party, not the State or one of its officials, our cases make clear that petitioner will have made out a violation of her Fourteenth Amendment rights and will be entitled to relief under § 1983 if she can prove that a Kress employee, in the course of employment, and a Hattiesburg policeman somehow reached an understanding to deny Miss Adickes service in the Kress store, or to cause her subsequent arrest because she was a white person in the company of Negroes. The involvement of a state official in such a conspiracy plainly provides the state action essential to show a direct violation of petitioner's Fourteenth Amendment equal protection rights, whether or not the actions of the police were officially authorized, or lawful; Monroe v. Pape, 365 U. S. 167 (1961); see United States v. Classic, 313 U. S. 299 , 313 U. S. 326 (1941); Screws v. United States, 325 U. S. 91 , 325 U. S. 107 -111 (1945); Williams v. United States, 341 U. S. 97 , 341 U. S. 99 -100 (1951). Moreover, a private party involved in such a conspiracy, even though not an official of the State, can be liable under § 1983. "Private persons, jointly engaged with state officials in the prohibited action, are acting 'under color' of law for purposes of the statute. To act 'under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents," United States v. Price, 383 U. S. 787 , 383 U. S. 794 (1966). [ Footnote 7 ] Page 398 U. S. 153 SUMMARY JUDGMENT We now proceed to consider whether the District Court erred in granting summary judgment on the conspiracy count. In granting respondent's motion, the District Court simply stated that there was "no evidence in the complaint or in the affidavits and other papers from which a 'reasonably minded person' might draw an inference of conspiracy," 252 F. Supp. at 144, aff'd, 409 F.2d at 126-127. Our own scrutiny of the factual allegations of petitioner's complaint, as well as the material found in the affidavits and depositions presented by Kress to the District Court, however, convinces us that summary judgment was improper here, for we think respondent failed to carry its burden of showing the absence of any genuine issue of fact. Before explaining why this is so, it is useful to state the factual arguments, made by the parties concerning summary judgment, and the reasoning of the courts below. In moving for summary judgment, Kress argued that "uncontested facts" established that no conspiracy existed between any Kress employee and the police. To support this assertion, Kress pointed first to the statements in the deposition of the store manager (Mr. Powell) that (a) he had not communicated with the police, [ Footnote 8 ] and that (b) he had, by a prearranged tacit Page 398 U. S. 154 signal, [ Footnote 9 ] ordered the food counter supervisor to see that Miss Adickes was refused service only because he was fearful of a riot in the store by customers angered at seeing a "mixed group" of whites and blacks eating together. [ Footnote 10 ] Kress also relied on affidavits from the Hattiesburg Page 398 U. S. 155 chief of police, [ Footnote 11 ] and the two arresting officers, [ Footnote 12 ] to the effect that store manager Powell had not requested that petitioner be arrested. Finally, Kress pointed to the statements in petitioner's own deposition that she had no knowledge of any communication between any Kress employee and any member of the Hattiesburg police, and was relying on circumstantial evidence to support her Page 398 U. S. 156 contention that there was an arrangement between Kress and the police. Petitioner, in opposing summary judgment, pointed out that respondent had failed in its moving papers to dispute the allegation in petitioner's complaint, a statement at her deposition, [ Footnote 13 ] and an unsworn statement by a Kress employee, [ Footnote 14 ] all to the effect that there was a policeman in the store at the time of the refusal to serve her, and that this was the policeman who subsequently Page 398 U. S. 157 arrested her. Petitioner argued that, although she had no knowledge of an agreement between Kress and the police, the sequence of events created a substantial enough possibility of a conspiracy to allow her to proceed to trial, especially given the fact that the noncircumstantial evidence of the conspiracy could only come from adverse witnesses. Further, she submitted an affidavit specifically disputing the manager's assertion that the situation in the store at the time of the refusal was "explosive," thus creating an issue of fact as to what his motives might have been in ordering the refusal of service. We think that, on the basis of this record, it was error to grant summary judgment. As the moving party, respondent had the burden of showing the absence of a genuine issue as to any material fact, and, for these purposes, the material it lodged must be viewed in the light most favorable to the opposing party. [ Footnote 15 ] Respondent here did not carry its burden, because of its failure to foreclose the possibility that there was a policeman in the Kress store while petitioner was awaiting service, and that this policeman reached an understanding with some Kress employee that petitioner not be served. It is true that Mr. Powell, the store manager, claimed in his deposition that he had not seen or communicated with a policeman prior to his tacit signal to Miss Baggett, the supervisor of the food counter. But respondent did not submit any affidavits from Miss Baggett, [ Footnote 16 ] or from Page 398 U. S. 158 Miss Freeman, [ Footnote 17 ] the waitress who actually refused petitioner service, either of whom might well have seen and communicated with a policeman in the store. Further, we find it particularly noteworthy that the two officers involved in the arrest each failed in his affidavit to foreclose the possibility (1) that he was in the store while petitioner was there; and (2) that, upon seeing petitioner with Negroes, he communicated his disapproval to a Kress employee, thereby influencing the decision not to serve petitioner. Given these unexplained gaps in the materials submitted by respondent, we conclude that respondent failed to fulfill its initial burden of demonstrating what is a critical element in this aspect of the case -- that there was no policeman in the store. If a policeman were present, we think it would be open to a jury, in light of the sequence that followed, to infer from the circumstances that the policeman and a Kress employee had a "meeting of the minds," and thus reached an understanding that petitioner should be refused service. Because, "[o]n summary judgment, the inferences to be drawn from the underlying facts contained in [the moving party's] materials must be viewed in the light Page 398 U. S. 159 most favorable to the party opposing the motion," United States v. Diebold, Inc., 369 U. S. 654 , 369 U. S. 655 (1962), we think respondent's failure to show there was no policeman in the store requires reversal. Pointing to Rule 56(e), as amended in 1963, [ Footnote 18 ] respondent argues that it was incumbent on petitioner to come forward with an affidavit properly asserting the presence of the policeman in the store, if she were to rely on that fact to avoid summary judgment. Respondent notes in this regard that none of the materials upon which petitioner relied met the requirements of Rule 56(e). [ Footnote 19 ] This argument does not withstand scrutiny, however, for both the commentary on and background of the 1963 amendment conclusively show that it was not intended to modify the burden of the moving party under Rule 56(c) to show initially the absence of a genuine issue concerning any material fact. [ Footnote 20 ] The Advisory Committee Page 398 U. S. 160 note on the amendment states that the changes were not designed to "affect the ordinary standards applicable to the summary judgment." And, in a comment directed specifically to a contention like respondent's, the Committee stated that, "[w]here the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter s presented. [ Footnote 21 ]" Because respondent did not meet its initial burden of establishing the absence of a policeman in the store, petitioner here was not required to come forward with suitable opposing affidavits. [ Footnote 22 ] If respondent had met its initial burden by, for example, submitting affidavits from the policemen denying their presence in the store at the time in question, Rule 56(e) would then have required petitioner to have done more than simply rely on the contrary allegation in her complaint. To have avoided conceding this fact for purposes of summary judgment, petitioner would have had to come forward with either (1) the affidavit of someone who saw the policeman in the store or (2) an affidavit under Rule 56(f) explaining why at that time it was impractical to do so. Even though not essential here to defeat Page 398 U. S. 161 respondent's motion, the submission of such an affidavit would have been the preferable course for petitioner's counsel to have followed. As one commentator has said: "It has always been perilous for the opposing party neither to proffer any countering evidentiary materials nor file a 56(f) affidavit. And the peril rightly continues [after the amendment to Rule 56(e)]. Yet the party moving for summary judgment has the burden to show that he is entitled to judgment under established principles; and if he does not discharge that burden, then he is not entitled to judgment. No defense to an insufficient showing is required." 6 J. Moore, Federal Practice � 56.22 [2], pp. 2824-2825 (2d ed.1966). II There remains to be discussed the substantive count of petitioner's complaint, and the showing necessary for petitioner to prove that respondent refused her service "under color of any . . . custom, or usage, of [the] State" in violation of her rights under the Equal Protection Clause of the Fourteenth Amendment. [ Footnote 23 ] Page 398 U. S. 162 A. CUSTOM OR USAGE We are first confronted with the issue of whether a "custom" for purposes of § 1983 must have the force of law, or whether, as argued in dissent, no state involvement is required. Although this Court has never explicitly decided this question, we do not interpret the statute against an amorphous backdrop. What is now 42 U.S.C. § 1983 came into existence as § 1 of the Ku Klux Klan Act of April 20, 1871, 17 Stat. 13. The Chairman of the House Select Committee which drafted this legislation described [ Footnote 24 ] § 1 as modeled after § 2 of the Civil Rights Act of 1866 -- a criminal provision that also contained language that forbade certain acts by any person "under color of any law, statute, ordinance, regulation, or custom," 14 Stat. 27. In the Civil Rights Cases, 109 U. S. 3 , 109 U. S. 16 (1883), the Court said of this 1866 statute: "This law is clearly corrective in its Page 398 U. S. 163 character, intended to counteract and furnish redress against State laws and proceedings, and customs having the force of law, which sanction the wrongful acts specified." (Emphasis added.) Moreover, after an exhaustive examination of the legislative history of the 1866 Act, both the majority and dissenting opinions [ Footnote 25 ] in Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968), concluded that § 2 of the 1866 Civil Rights Act was intended to be limited to "deprivations perpetrated under color of law.'" [ Footnote 26 ] (Emphasis added.) Quite apart from this Court's construction of the identical "under color of" provision of § 2 of the 1866 Act, the legislative history of § 1 of the 1871 Act, the lineal ancestor of § 1983, also indicates that the provision in question here was intended to encompass only conduct supported by state action. That such a limitation was intended for § 1 can be seen from an examination of the statements and actions of both the supporters and opponents of the Ku Klux Klan Act. Page 398 U. S. 164 In first reporting the Committee's recommendations to the House, Representative Shellabarger, the Chairman of the House Select Committee which drafted the Ku Klux Klan Act, said that § 1 was, " in its terms, carefully confined to giving a civil action for such wrongs against citizenship as are done under color of State laws which abridge these rights. [ Footnote 27 ]" (Emphasis added.) Senator Edmunds, Chairman of the Senate Committee on the Judiciary and also a supporter of the bill, said of this provision: "The first section is one that I believe nobody objects to, as defining the rights secured by the Constitution of the United States when they are assailed by any State law or under color of any State law, and it is merely carrying out the principles of the civil rights bill, which have since become a part of the Constitution. [ Footnote 28 ]" (Emphasis added.) Thus, in each House, the leader of those favoring the bill expressly stated his understanding that § 1 was limited to deprivations of rights done under color of law. That Congress intended to limit the scope of § 1 to actions taken under color of law is further seen by contrasting its legislative history with that of other sections of the same Act. On the one hand, there was comparatively little debate over § 1 of the Ku Klux Klan Act, and it was eventually enacted in form identical to that, in which it was introduced in the House. [ Footnote 29 ] Its history thus stands in sharp contrast to that of other sections Page 398 U. S. 165 of the Act. [ Footnote 30 ] For example, § 2 of the 1871 Act, [ Footnote 31 ] a provision aimed at private conspiracies with no "under color of law" requirement, created a great storm of controversy, in part because it was thought to encompass private conduct. Senator Thurman, for example, one of the leaders of the opposition to the Act, although objecting to § 1 on other grounds, admitted its constitutionality [ Footnote 32 ] and characterized it as "refer[ring] to a deprivation under color of law, either statute law or custom or usage' which has become common law. " [ Footnote 33 ] (Emphasis added.) This same Senator insisted vociferously on the absence of congressional power under § 5 of the Fourteenth Page 398 U. S. 166 Amendment to penalize a conspiracy of private individuals to violate state law. [ Footnote 34 ] The comparative lack of controversy concerning § 1, in the context of the heated debate over the other provisions, suggests that the opponents of the Act, with minor exceptions, like its proponents, understood § 1 to be limited to conduct under color of law. In addition to the legislative history, there exists an unbroken line of decisions, extending back many years, in which this Court has declared that action "under color of law" is a predicate for a cause of action under § 1983, [ Footnote 35 ] or its criminal counterpart, 18 U.S.C. § 242. [ Footnote 36 ] Moreover, with the possible exception of an exceedingly opaque district court opinion, [ Footnote 37 ] every lower court opinion of which we are aware that has considered the issue has concluded that a "custom or usage," for purposes, of § 1983 requires state involvement, and is not simply a practice that reflects longstanding social habits, generally Page 398 U. S. 167 observed by the people in a locality. [ Footnote 38 ] Finally, the language of the statute itself points in the same direction, for it expressly requires that the "custom or usage" be that "of any state," not simply of the people living in a state. In sum, against this background, we think it clear that a "custom, or usage, of [a] State" for purposes of § 1983 must have the force of law by virtue of the persistent practices of state officials. Congress included customs and usages within its definition of law in § 1983 because of the persistent and widespread discriminatory practices of state officials in some areas of the post-bellum South. As Representative Garfield said: "[E]ven where the laws are just and equal on their face, yet, by a systematic maladministration of them, or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them. [ Footnote 39 ]" Although not authorized by written law, such Page 398 U. S. 168 practices of state officials could well be so permanent and well settled as to constitute a "custom or usage" with the force of law. This interpretation of custom recognizes that settled practices of state officials may, by imposing sanctions or withholding benefits, transform private predilections into compulsory rules of behavior no less than legislative pronouncements. If authority be needed for this truism, it can be found in Nashville, C. & St. L.R. Co. v. Browning, 310 U. S. 362 (1940), where the Court held that, although a statutory provision suggested a different note, the "law" in Tennessee as established by longstanding practice of state officials was that railroads and public utilities were taxed at full cash value. What Justice Frankfurter wrote there seems equally apt here: "It would be a narrow conception of jurisprudence to confine the notion of 'laws' to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice . . . can establish what is state law. The Equal Protection Clause did not write an empty formalism into the Constitution. Deeply embedded traditional ways of carrying out state policy, such as those of which petitioner complains, are often tougher and truer law than the dead words of the written text." Id. at 310 U. S. 369 . And in circumstances more closely analogous to the case at hand, the statements of the chief of police and mayor of New Orleans, as interpreted by the Court Page 398 U. S. 169 in Lombard v. Louisiana, 373 U. S. 267 (1963), could well have been taken by restaurant proprietors as articulating a custom having the force of law. Cf. Garner v. Louisiana, 368 U. S. 157 , 368 U. S. 176 -185 (DOUGLAS, J., concurring) (1961); Wright v. Georgia, 373 U. S. 284 (1963); Baldwin v. Morgan, 287 F.2d 750, 754 (C.A. 5th Cir.1961). B. STATE ACTION -- 14TH AMENDMENT VIOLATION For petitioner to recover under the substantive count of her complaint, she must show a deprivation of a right guaranteed to her by the Equal Protection Clause of the Fourteenth Amendment. Since the "action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States," Shelley v. Kraemer, 334 U. S. 1 , 334 U. S. 13 (1948), we must decide, for purposes of this case, the following "state action" issue: is there sufficient state action to prove a violation of petitioner's Fourteenth Amendment rights if she shows that Kress refused her service because of a state-enforced custom compelling segregation of the races in Hattiesburg restaurants? In analyzing this problem, it is useful to state two polar propositions, each of which is easily identified and resolved. On the one hand, the Fourteenth Amendment plainly prohibits a State itself from discriminating because of race. On the other hand, § 1 of the Fourteenth Amendment does not forbid a private party, not acting against a backdrop of state compulsion or involvement, to discriminate on the basis of race in his personal affairs as an expression of his own personal predilections. As was said in Shelley v. Kraemer, supra, § 1 of "[t]hat Amendment erects no shield against merely private conduct, however discriminatory or wrongful." 334 U.S. at 334 U. S. 13 . Page 398 U. S. 170 At what point between these two extremes a State's involvement in the refusal becomes sufficient to make the private refusal to serve a violation of the Fourteenth Amendment is far from clear under our case law. If a State had a law requiring a private person to refuse service because of race, it is clear beyond dispute that the law would violate the Fourteenth Amendment, and could be declared invalid and enjoined from enforcement. Nor can a State enforce such a law requiring discrimination through either convictions of proprietors who refuse to discriminate, or trespass prosecutions of patrons who, after being denied service pursuant to such a law, refuse to honor a request to leave the premises. [ Footnote 40 ] The question most relevant for this case, however, is a slightly different one. It is whether the decision of an owner of a restaurant to discriminate on the basis of race under the compulsion of state law offends the Fourteenth Amendment. Although this Court has not explicitly decided the Fourteenth Amendment state action issue implicit in this question, underlying the Court's decisions in the sit-in cases is the notion that a State is responsible for the discriminatory act of a private party when the State, by its law, has compelled the act. As the Court said in Peterson v. City of Greenville, 373 U. S. 244 , 373 U. S. 248 (1963): "When the State has commanded a particular result, it has saved to itself the power to determine that result, and thereby, 'to a significant extent' has 'become involved' in it." Moreover, there is much support in lower court opinions for the conclusion that discriminatory acts by private parties done under the compulsion of state law offend the Fourteenth Page 398 U. S. 171 Amendment. In Baldwin v. Morgan, supra, the Fifth Circuit held that "[t]he very act of posting and maintaining separate [waiting room] facilities when done by the [railroad] Terminal as commanded by these state orders is action by the state." The Court then went on to say: "As we have pointed out above, the State may not use race or color as the basis for distinction. It may not do so by direct action or through the medium of others who are under State compulsion to do so. " Id. at 755-756 (emphasis added). We think the same principle governs here. For state action purposes, it makes no difference, of course, whether the racially discriminatory act by the private party is compelled by a statutory provision or by a custom having the force of law -- in either case, it is the State that has commanded the result by its law. Without deciding whether less substantial involvement of a State might satisfy the state action requirement of the Fourteenth Amendment, we conclude that petitioner would show an abridgment of her equal protection right if she proves that Kress refused her service because of a state-enforced custom of segregating the races in public restaurants. C. THREE ADDITIONAL POINTS For purposes of remand, we consider it appropriate to make three additional points. First, the District Court's pretrial opinion seems to suggest that the exclusive means available to petitioner for demonstrating that state enforcement of the custom relevant here would be by showing that the State used its criminal trespass statute for this purpose. We disagree with the District Court's implicit assumption that a custom can have the force of law only if it is enforced Page 398 U. S. 172 by a state statute. [ Footnote 41 ] Any such limitation is too restrictive, for a state official might act to give a custom the force of law in a variety of ways, at least two examples of which are suggested by the record here. For one thing, petitioner may be able to show that the police subjected her to false arrest for vagrancy for the purpose of harassing and punishing her for attempting to eat with black people. [ Footnote 42 ] Alternatively, it might be shown on remand that the Hattiesburg police would intentionally tolerate violence or threats of violence directed toward those who violated the practice of segregating the races at restaurants. [ Footnote 43 ] Page 398 U. S. 173 Second, we think the District Court was wrong in ruling that the only proof relevant to showing a custom in this case was that demonstrating a specific practice of not serving white persons who were in the company of black persons in public restaurants. As Judge Waterman pointed out in his dissent below, petitioner could not possibly prove a "long and unvarying" habit of serving only the black persons in a "mixed" party of whites and blacks for the simple reason that "it was only after the Civil Rights Act of 1964 became law that Afro-Americans had an opportunity to be served in Mississippi white' restaurants" at all, 409 F.2d at 128. Like Judge Waterman, we think the District Court viewed the matter too narrowly, for under petitioner's complaint the relevant inquiry is whether, at the time of the episode in question, there was a longstanding and still prevailing state-enforced custom of segregating the races in public eating places. Such a custom, of course, would perforce encompass the particular kind of refusal to serve challenged in this case. Third, both the District Court and the majority opinion in the Court of Appeals suggested that petitioner would have to show that the relevant custom existed throughout the State, and that proof that it had the force of law in Hattiesburg -- a political subdivision of the State -- was insufficient. This too we think was error. In the same way that a law whose source is a town ordinance can offend the Fourteenth Amendment even though it has less than state-wide application, so too can a custom with the force of law in a political subdivision of a State offend the Fourteenth Amendment even though it lacks state-wide application. In summary, if petitioner can show (1) the existence of a state-enforced custom of segregating the races in public eating places in Hattiesburg at the time of the incident Page 398 U. S. 174 in question; and (2) that Kress' refusal to serve her was motivated by that state-enforced custom, she will have made out a claim under § 1083. [ Footnote 44 ] For the foregoing reasons, we think petitioner is entitled to a new trial on the substantive count of her complaint. The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. MR. JUSTICE MARSHALL took no part in the decision of this case. Page 398 U. S. 175 [ Footnote 1 ] Rev.Stat. § 1979 42 U.S.C. § 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." [ Footnote 2 ] The District Court denied petitioner's request to amend her complaint to include a third count seeking liquidated damages under §§ 1 and 2 of the Civil Rights Act of 1875, 18 Stat. 335. Although, in her certiorari petition, petitioner challenged this ruling, and asked this Court to revive this statute by overruling the holding in the Civil Rights Cases, 109 U. S. 3 (1883), examination of the record shows that petitioner never raised any issue concerning the 1875 statute before the Court of Appeals. Accordingly, the Second Circuit did not rule on these contentions. Where issues are neither raised before nor considered by the Court of Appeals, this Court will not ordinarily consider them. Lawn v. United States, 355 U. S. 339 , 355 U. S. 362 -363, n. 16 (1958); Husty v. United States, 282 U. S. 694 , 282 U. S. 701 -702 (1931); Duignan v. United States, 274 U. S. 195 , 274 U. S. 200 (1927). We decline to do so here. [ Footnote 3 ] The statute, Miss.Code Ann. § 2046.5 (1956), inter alia, gives the owners, managers, or employees of business establishments the right to choose customers by refusing service. [ Footnote 4 ] See, e.g., Monroe v. Pape, 365 U. S. 167 , 365 U. S. 184 , 365 U. S. 187 (1961); United States v. Price, 383 U. S. 787 , 383 U. S. 793 , 383 U. S. 794 (1966). [ Footnote 5 ] The first count of petitioner's complaint alleges that Kress' refusal to serve petitioner "deprived [her] of the privilege of equal enjoyment of a place of public accommodation by reason of her association with Negroes and [she] was thereby discriminated against because of race in violation of the Constitution of the United States and of Title 42 United States Code, Section 1983." (App. 4.) (Emphasis added.) The conspiracy count alleges, inter alia, that Kress and the Hattiesburg police "conspired together to deprive plaintiff of her right to enjoy equal treatment and service in a place of public accommodation." The language of the complaint might, if read generously, support the contention that petitioner was alleging a violation of Title II, the Public Accommodations provisions, of the 1964 Civil Rights Act, 78 Stat. 243, 42 U.S.C. § 2000a. It is clear, and respondent seemingly concedes, that its refusal to serve petitioner was a violation of § 201 of the 1964 Act, 42 U.S.C. § 2000a. It is very doubtful, however, that Kress' violation of Miss Adickes' rights under the Public Accommodations Title could properly serve as a basis for recovery under § 1983. Congress deliberately provided no damages remedy in the Public Accommodations Act itself, and § 207(b) provides that the injunction remedy of § 206 was the "exclusive means of enforcing the rights based on this title." Moreover, the legislative history makes quite plain that Congress did not intend that violations of the Public Accommodations Title be enforced through the damages provisions of § 1983. See 110 Cong.Rec. 9767 (remark of floor manager that the language of 207(b) "is necessary because otherwise it . . . would result . . . in civil liability for damages under 42 U.S.C. § 1983"); see also 110 Cong.Rec. 7384, 7405. In United States v. Johnson, 390 U. S. 563 (1968), the Court held that violations of § 203(b) of the Public Accommodations Title could serve as the basis for criminal prosecution under 18 U.S.C. § 241 (another civil rights statute) against "outsiders," having no relation to owners and proprietors of places of public accommodations, notwithstanding the "exclusive" remedy provision of § 207(b). It is doubtful whether the Johnson reasoning would allow recovery under § 1983 for Kress' alleged violation of § 201, and indeed the petitioner does not otherwise contend. The Court, in Johnson, in holding that the § 207(b) limitation did not apply to violations of § 203, stated: "[T]he exclusive remedy provision of § 207(b) was inserted only to make clear that the substantive rights to public accommodation defined in § 201 and § 202 are to be enforced exclusively by injunction. " 390 U.S. at 390 U. S. 567 . In any event, we think it clear that there can be recovery under § 1983 for conduct that violates the Fourteenth Amendment, even though the same conduct might also violate the Public Accommodations Title, which itself neither provides a damages remedy nor can be the basis of a § 1983 action. Section 207(b) of the Public Accommodations Title expressly provides that nothing in that title "shall preclude any individual . . . from asserting any right based on any other Federal or State law not inconsistent with this title . . . or from pursuing any remedy, civil or criminal, which may be available for the vindication or enforcement of such right." Therefore, quite apart from whether § 207 precludes enforcement of one's rights under the Public Accommodations Title through a damages action under 42 U.S.C. § 1983, we think it evident that enforcement of one's constitutional rights under § 1983 is not "inconsistent" with the Public Accommodations Act. [ Footnote 6 ] E.g., Brown v. Board of Education, 347 U. S. 483 (1954); cf. Barrows v. Jackson, 346 U. S. 249 (1953). [ Footnote 7 ] Although Price concerned a criminal prosecution involving 18 U.S.C. § 242, we have previously held that "under color of law" means the same thing for § 1983. Monroe v. Pape, supra, at 365 U. S. 185 (majority opinion), 365 U. S. 212 (opinion of Frankfurter, J.); United States v. Price, supra, at 383 U. S. 794 n. 7. [ Footnote 8 ] In his deposition, Powell admitted knowing Hugh Herring, chief of police of Hattiesburg, and said that he had seen and talked to him on two occasions in 1964 prior to the incident with Miss Adickes. (App. 123-126.) When asked how often the arresting officer, Ralph Hillman, came into the store, Powell stated that he didn't know precisely, but "Maybe every day." However, Powell said that, on August 14, he didn't recall seeing any policemen either inside or outside the store (App. 136), and he denied (1) that he had called the police, (2) that he had agreed with any public official to deny Miss Adickes the use of the library, (3) that he had agreed with any public official to refuse Miss Adickes service in the Kress store on the day in question, or (4) that he had asked any public official to have Miss Adickes arrested. App. 154-155. [ Footnote 9 ] The signal, according to Powell, was a nod of his head. Powell claimed that, at a meeting about a month earlier with Miss Baggett, the food counter supervisor, he "told her not to serve the white person in the group if I shook my head no, but, if I didn't give her any sign, to go ahead and serve anybody." App. 135. Powell stated that he had prearranged this tacit signal with Miss Baggett because "there was quite a lot of violence . . . in Hattiesburg" directed towards whites "with colored people, in what you call a mixed group." App. 131. [ Footnote 10 ] Powell described the circumstances of his refusal as follows: "On this particular day, just shortly after 12 o'clock, I estimate there was 75 to 100 people in the store, and the lunch counter was pretty -- was pretty well to capacity there, full, and I was going up towards the front of the store in one of the aisles, and looking towards the front of the store, and there was a group of colored girls, and a white woman who came into the north door, which was next to the lunch counter." "And the one thing that really stopped me and called my attention to this group was the fact that they were dressed alike. They all had on what looked like a light blue denim skirt. And the best I can remember is that they were -- they were almost identical, all of them. And they came into the door, and people coming in stopped to look, and they went on to the booths. And there happened to be two empty there. And one group of them and the white woman sat down in one, and the rest of them sat in the second group." "And almost immediately there -- I mean this, it didn't take just a few seconds from the time they came into the door to sit down, but already the people began to mill around the store and started coming over towards the lunch counter. And by that time, I was up close to the candy counter, and I had a wide open view there. And the people had real sour looks on their faces, nobody was joking, or being corny, or carrying on. They looked like a frightened mob. They really did. I have seen mobs before. I was in Korea during the riots in 1954 and 1955. And I know what they are. And this actually got me." "I looked out towards the front, and we have what they call see-through windows. There is no backs to them. You can look out of the store right into the street. And the north window, it looks right into the lunch counter. 25 or 30 people were standing there looking in, and across the street even, in a jewelry store, people were standing there, and it looked really bad to me. It looked like one person could have yelled 'Lets get them,' which has happened before, and cause this group to turn into a mob. And, so, quickly I just made up my mind to avoid the riot, and protect the people that were in the store, and my employees, as far as the people in the mob who were going to get hurt themselves. I just knew that something was going to break loose there." App. 133-134. [ Footnote 11 ] The affidavit of the chief of police, who it appears was not present at the arrest, states in relevant part: "Mr. Powell had made no request of me to arrest Miss Sandra Adickes or any other person; in fact, I did not know Mr. Powell personally until the day of this statement. [ But cf. Powell's statement at his deposition, n 8, supra. ] Mr. Powell and I had not discussed the arrest of this person until the day of this statement, and we had never previously discussed her in any way." (App. 107.) [ Footnote 12 ] The affidavits of Sergeant Boone and Officer Hillman each state, in identical language: "I was contacted on this date by Mr. John H. Williams, Jr., a representative of Genesco, owners of S. H. Kress and Company, who requested that I make a statement concerning alleged conspiracy in connection with the aforesaid arrest." "This arrest was made on the public streets of Hattiesburg, Mississippi, and was an officer's discretion arrest. I had not consulted with Mr. G. T. Powell, Manager of S. H. Kress and Company in Hattiesburg, and did not know his name until this date. No one at the Kress store asked that the arrest be made, and I did not consult with anyone prior to the arrest." (App. 110, 112.) [ Footnote 13 ] When asked whether she saw any policeman in the store up to the time of the refusal of service, Miss Adickes answered: "My back was to the door, but one of my students saw a policeman come in." (App. 75.) She went on to identify the student as "Carolyn." At the trial, Carolyn Moncure, one of the students who was with petitioner, testified that, "about five minutes" after the group had sat down and while they were still waiting for service, she saw a policeman come in the store. She stated: "[H]e came in the store, my face was facing the front of the store, and he came in the store and he passed, and he stopped right at the end of our booth, and he stood up and he looked around and he smiled, and he went to the back of the store, he came right back and he left out." (App. 32.) This testimony was corroborated by that of Dianne Moncure, Carolyn's sister, who was also part of the group. She testified that, while the group was waiting for service, a policeman entered the store, stood "for awhile" looking at the group, and then "walked to the back of the store." (App. 291.) [ Footnote 14 ] During discovery, respondent gave to petitioner an unsworn statement by Miss Irene Sullivan, a check-out girl. In this statement, Miss Sullivan said that she had seen Patrolman Hillman come into the store "[s]hortly after 12:00 noon," while petitioner's group was in the store. She said that he had traded a "hello greeting" with her, and then walked past her check-out counter toward the back of the store "out of [her] line of vision." She went on: "A few minutes later, Patrolman Hillman left our store by the northerly front door just slightly ahead of a group composed of several Negroes accompanied by a white woman. As Hillman stepped onto the sidewalk outside our store, the police car pulled across the street and into an alley that is alongside our store. The police car stopped and Patrolman Hillman escorted the white woman away from the Negroes and into the police car." (App. 178.) [ Footnote 15 ] See, e.g., United States v. Diebold, Inc., 369 U. S. 654 , 369 U. S. 655 (1962); 6 J. Moore, Federal Practice 56.15[3] (2d ed.1966). [ Footnote 16 ] In a supplemental brief filed in this Court, respondent lodged a copy of an unsworn statement by Miss Baggett denying any contact with the police on the day in question. Apart from the fact that the statement is unsworn, see Fed.Rule Civ.Proc. 56(e), the statement itself is not in the record of the proceedings below, and therefore could not have been considered by the trial court. Manifestly, it cannot be properly considered by us in the disposition of the case. During discovery, petitioner attempted to depose Miss Baggett. However, Kress successfully resisted this by convincing the District Court that Miss Baggett was not a "managing agent," and "was without power to make managerial decisions." [ Footnote 17 ] The record does contain an unsworn statement by Miss Freeman in which she states that she "did not contact the police or ask anyone else to contact the police to make the arrest which subsequently occurred." (App. 177) (Emphasis added.) This statement, being unsworn, does not meet the requirements of Fed.Rule Civ.Proc. 56(e), and was not relied on by respondent in moving for summary judgment. Moreover, it does not foreclose the possibility that Miss Freeman was influenced in her refusal to serve Miss Adickes by some contact with a policeman present in the store. [ Footnote 18 ] The amendment added the following to Rule 56(e): "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment if appropriate shall be entered against him." [ Footnote 19 ] Petitioner's statement at her deposition, see n 13, supra, was, of course, hearsay; and the statement of Miss Sullivan, see n 14, supra, was unsworn. And, the rule specifies that reliance on allegation in the complaint is not sufficient. See Fed.Rule Civ.Proc. 56(e). [ Footnote 20 ] The purpose of the 1963 amendment was to overturn a line of cases, primarily in the Third Circuit, that had held that a party opposing summary judgment could successfully create a dispute as to a material fact asserted in an affidavit by the moving party simply by relying on a contrary allegation in a well pleaded complaint. E.g., Frederick Hart & Co. v. Recordgraph Corp., 169 F.2d 580 (1948); United States ex rel. Kolton v. Halpern, 260 F.2d 590 (1958). See Advisory Committee Note on 1963 Amendment to subdivision (e) of Rule 56. [ Footnote 21 ] Ibid. (emphasis added). [ Footnote 22 ] In First National Bank v. Cities Service, 391 U. S. 253 (1968), the petitioner claimed that the lower courts had misapplied Rule 56(e) to shift the burden imposed by Rule 56(c). In rejecting this contention, we said: "Essentially all that the lower courts held in this case was that Rule 56(e) placed upon [petitioner] the burden of producing evidence of the conspiracy he alleged only after respondent . . . conclusively showed that the facts upon which he relied to support his allegation were not susceptible of the interpretation which he sought to give them. " Id. at 391 U. S. 289 (Emphasis added.) In this case, on the other hand, we hold that respondent failed to show conclusively that a fact alleged by petitioner was "not susceptible" of an interpretation that might give rise to an inference of conspiracy. [ Footnote 23 ] Petitioner also appears to argue that, quite apart from custom, she was refused service under color of the state trespass statute, supra, n 2. It should be noted, however, that this trespass statute, by its terms, does not compel segregation of the races. Although such a trespass statute might well have invalid applications if used to compel segregation of the races through state trespass convictions, see Robinson v. Florida, 378 U. S. 153 (1964), the statute here was not so used in this case. Miss Adickes, although refused service, was not asked to leave the store, and was not arrested for a trespass arising from a refusal to leave pursuant to this statute. The majority below, because it thought the code provision merely restated the common law "allowing [restauranteurs] to serve whomever they wished," 409 F.2d at 126, concluded that a private discrimination on the basis of race pursuant to this provision would not fulfill the "state action" requirement necessary to show a violation of the Fourteenth Amendment. Judge Waterman, in dissent, argued that the statute changed the common law, and operated to encourage racial discrimination. Because a factual predicate for statutory relief under § 1983 has not yet been established below, we think it inappropriate in the present posture of this case to decide the constitutional issue of whether or not proof that a private person knowingly discriminated on the basis of race pursuant to a state trespass statute like the one involved here would make out a violation of the Fourteenth Amendment. Whatever else may also be necessary to show that a person has acted "under color of [a] statute" for purposes of § 1983, see n 44, infra we think it essential that he act with the knowledge of and pursuant to that statute. The courts below have made no factual determinations concerning whether or not the Kress refusal to serve Miss Adickes was the result of action by a Kress employee who had knowledge of the trespass statute, and who was acting pursuant to it. [ Footnote 24 ] Cong.Globe, 42d Cong., 1st Sess., App. 68 (statement by Rep. Shellabarger). [ Footnote 25 ] 392 U.S. at 392 U. S. 424 -426 (majority opinion); id. at 392 U. S. 454 -473 (HARLAN, J., dissenting). [ Footnote 26 ] Id. at 392 U. S. 426 . In arguing that § 1 of the 1866 Act (the predecessor of what is now 42 U.S.C. § 1982) was meant to cover private, as well as governmental, interference with certain rights, the Court in Jones said: "Indeed, if § 1 had been intended to grant nothing more than an immunity from governmental interference, then much of § 2 would have made no sense at all. For that section, which provided fines and prison terms for certain individuals who deprived others of rights 'secured or protected' by § 1, was carefully drafted to exempt private violations of § 1 from the criminal sanctions it imposed. . . . Hence, the structure of the 1866 Act, as well as its language, points to the conclusion . . . [that] only those deprivations perpetrated 'under color of law' were to be criminally punishable under § 2." Id. 392 U. S. 424 -426. The Court in Jones cited the legislative history of § 2 to support its conclusion that the section "was carefully drafted to exempt private violations" and punish only " governmental interference. " Id. at 392 U. S. 424 -425 and n. 33. [ Footnote 27 ] Cong.Globe, 42d Cong., 1st Sess., App. 68. [ Footnote 28 ] Id. at 568 (emphasis added), quoted in Monroe v. Pape, supra, at 365 U. S. 171 ; see also Cong.Globe, supra, at App. 79 (Rep. A. Perry) (§ 1 understood to remedy injuries done "under color of State authority"). [ Footnote 29 ] Compare id. at App. 68 with 17 Stat. 13. See id. at 568; App. 153-154 (Rep. Garfield). [ Footnote 30 ] Throughout the debates, for example, "moderates" who expressed no opposition to § 1 objected to other proposals that they saw as allowing the Federal Government to take over the State's traditional role of punishing unlawful conduct of private parties. See, e.g., id. at 578-579 (Sen. Trumbull, the author of the 1866 Act); 514 (Rep. Poland); App. 53 (Rep. Garfield). [ Footnote 31 ] Section 2 of the Ku Klux Klan Act is as amended, 42 U.S.C. § 1985(3). In Collins v. Hardyman, 341 U. S. 651 (1951), in order to avoid deciding whether there was congressional power to allow a civil remedy for purely private conspiracies, the Court in effect interpreted § 1985(3) to require action under color of law even though this element is not found in the express terms of the statute. In a dissent joined by MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS, Mr. Justice Burton said of § 1985(3): "The language of the statute refutes the suggestion that action under color of state law is a necessary ingredient of the cause of action which it recognizes. . . . When Congress, at this period, did intend to limit comparable civil rights legislation to action under color of state law, it said so in unmistakable terms," citing and quoting what is now § 1983. Id. at 341 U. S. 663 -664. Without intimating any view concerning the correctness of the Court's interpretation of § 1985(3) in Collins, we agree with the dissenters in that case that Congress, in enacting what is now § 1983, "said . . . in unmistakable terms" that action under color of law is necessary. [ Footnote 32 ] Cong.Globe, supra, at App. 216. [ Footnote 33 ] Id. at App. 217; see also id. at App. 268 (Rep. Sloss). [ Footnote 34 ] Id. at App. 218. [ Footnote 35 ] E.g., Pierson v. Ray, 386 U. S. 547 , 386 U. S. 554 (1967); Monroe v. Pape, supra; Smith v. Allwright, 321 U. S. 649 (1944). [ Footnote 36 ] United States v. Price, 383 U. S. 787 , 383 U. S. 794 n. 7 (1966); Williams v. United States, supra; Screws v. United States, supra, at 325 U. S. 109 ; United States v. Classic, supra, at 313 U. S. 326 -329. Section 242 of 18 U.S.C. is the direct descendant of § 2 of the 1866 Civil Rights Act. See n 26, supra. [ Footnote 37 ] In Gannon v. Action, 303 F. Supp. 1240 (D.C.E.D. Mo.1969), the opinion, on the one hand, said that "Section 1983 . . . requires that the action for which redress is sought be under color' of state law." It then went on to decide that the defendants under color of a "custom of [ sic] usage of the State of Missouri . . . [of] undisturbed worship by its citizens according to the dictates of their consciences" entered a St. Louis cathedral, disrupted a service, and thus "deprived plaintiffs of their constitutional rights of freedom of assembly, speech, and worship, and to use and enjoy their property, all in violation of section 1983," id. at 1245. See 23 Vand.L.Rev. 413, 419-420 (1970). [ Footnote 38 ] Williams v. Howard Johnson's, Inc., 323 F.2d 102 (C.A.4th Cir.1963); Williams v. Hot Shoppes, Inc., 110 U.S.App.D.C. 358, 363, 293 F.2d 835 840 (1961) ("As to the argument based upon the custom or usage' language of the statute we join with the unanimous decision of the Fourth Circuit in. support of the proposition that -- `The customs of the people of a state do not constitute state action within the prohibition of the Fourteenth Amendment,'" quoting from Williams v. Howard Johnson's Restaurant, 268 F.2d 845, 848 (C.A.4th Cir.1959)), and 110 U.S.App.D.C. at 367-368, 293 F.2d at 844-845 (Bazelon, J., dissenting); see Slack v. Atlantic White Tower System, 181 F. Supp. 124 , 127-128, 130 (D.C. Md.), aff'd, 284 F.2d 746 (C.A.4th Cir.1960). It should also be noted that the dissenting opinion below thought a "custom or usage" had to have the force of law. 409 F.2d at 128. [ Footnote 39 ] Cong.Globe, 42d Cong., 1st Sess., App. 153. MR. JUSTICE BRENNAN, post at 398 U. S. 219 , 398 U. S. 230 , infers from this statement that Rep. Garfield thought § 1983 was meant to provide a remedy in circumstances where the State had failed to take affirmative action to prevent widespread private discrimination. Such a reading of the statement is too broad, however. All Rep. Garfield said was that a State, through the practices of its officials, could deny a person equal protection of the laws by the "systematic maladministration" of, or "a neglect or refusal to enforce" written laws that were "just and equal on their face." Official inaction in the sense of neglecting to enforce laws already on the books is quite different from the inaction implicit in the failure to enact corrective legislation. [ Footnote 40 ] E.g., Peterson v. City of Greenville, 373 U. S. 244 (1963); Robinson v. Florida, 378 U. S. 153 (1964); see Lombard v. Louisiana, 373 U. S. 267 (1963); Shuttlesworth v. Birmingham, 373 U. S. 262 (1963). [ Footnote 41 ] Because it thought petitioner had failed to prove the existence of a custom, the majority of the Second Circuit explicitly refused to decide whether petitioner had to prove "the custom or usage was enforced by a state statute," 409 F.2d at 125. [ Footnote 42 ] Together with some other civil rights workers also being prosecuted on vagrancy charges, Miss Adickes, in a separate action, removed the state vagrancy prosecution against her to a federal court on the ground that the arrest and prosecution were in retaliation for her attempt to exercise her rights under the Public Accommodations Title of the 1964 Civil Rights Act. The District Court remanded the charge to the state courts, but the Fifth Circuit reversed, finding that "[t]he utter baselessness of any conceivable contention that the vagrancy statutes prohibited any conduct in which these persons were engaged merely buttresses the undisputed evidence before the trial court when the order of remand was entered that these protected acts [ i.e., 'attempts to enjoy equal public accommodations in the Hattiesburg City Library, and a restaurant in the nationally known Kress store'] constituted the conduct for which they were then and there being arrested." Achtenberg v. Mississippi, 393 F.2d 468, 474 (C.A. 5th Cir.1968). Although one judge dissented on the ground that Miss Adickes' case was not properly removable under Georgia v. Rachel, 384 U. S. 780 (1966), he too thought that the "vagrancy charges against Miss Adickes were shown to be baseless and an unsophisticated subterfuge," id. at 475. [ Footnote 43 ] See n 10, supra. [ Footnote 44 ] Any notion that a private person is necessarily immune from liability under § 1983 because of the " under color of " requirement of the statute was put to rest by our holding in United States v. Price, supra, see n 7, supra. There, in the context of a conspiracy, the Court said: "To act 'under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State . . ." id. at 383 U. S. 794 . Because the core of congressional concern in enacting § 1983 was to provide a remedy for violations of the Equal Protection Clause arising from racial discrimination, we think that a private person who discriminates on the basis of race with the knowledge of and pursuant to a state-enforced custom requiring such discrimination is a "participant in joint activity with the State," and is acting "under color of" that custom for purposes of § 1983. We intimate no views concerning the relief that might be appropriate if a violation is shown. See Williams v. Hot Shoppes, Inc., 110 U.S.App.D.C. 358, 370-371 293 F.2d 835, 847-848 (1961) (Bazelon, J., dissenting). The parties have not briefed these remedial issues, and if a violation is proved they are best explored in the first instance below in light of the new record that will be developed on remand. Nor do we mean to determine at this juncture whether there are any defenses available to defendants in § 1983 actions like the one at hand. Cf. Pierson v. Ray, 386 U. S. 547 (1967). MR. JUSTICE BLACK, concurring in the judgment. The petitioner, Sandra Adickes, brought suit against the respondent, S. H. Kress & Co., to recover damages for alleged violations of 42 U.S.C. § 1983. In one count of her complaint, she alleged that a police officer of the City of Hattiesburg, Mississippi, had conspired with employees of Kress to deprive her of rights secured by the Constitution, and that this joint action of a state official and private individuals was sufficient to constitute a violation of § 1983. She further alleged in another count that Kress' refusal to serve her while she was in the company of Negroes was action "under color of" a custom of refusing to serve Negroes and whites together in Mississippi, and that this action was a violation of § 1983. The trial judge granted a motion for summary judgment in favor of Kress on the conspiracy allegation and, after full presentation of evidence by the petitioner, granted a motion for a directed verdict in favor of the respondent on the custom allegation. Both decisions rested on conclusions that there were no issues of fact supported by sufficient evidence to require a jury trial. I think the trial court and the Court of Appeals which affirmed were wrong in allowing summary judgment on the conspiracy allegation. And -- assuming for present purposes that the trial court's statutory interpretation concerning "custom or usage" was correct -- it was also error to direct a verdict on that count. In my judgment, on this record, petitioner should have been permitted to have the jury consider both her claims. Summary judgments may be granted only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact. . . ." Fed.Rule Civ.Proc. 56(c). Petitioner in this case alleged that she went into Kress in the company of Negroes Page 398 U. S. 176 and that the waitress refused to serve her, stating "[w]e have to serve the colored, but we are not going to serve the whites that come in with them." Petitioner then alleged that she left the store with her friends and as soon as she stepped outside a policeman arrested her and charged her with vagrancy. On the basis of these facts she argued that there was a conspiracy between the store and the officer to deprive her of federally protected rights. The store filed affidavits denying any such conspiracy and the trial court granted the motion for summary judgment, concluding that petitioner had not alleged any basic facts sufficient to support a finding of conspiracy. The existence or nonexistence of a conspiracy is essentially a factual issue that the jury, not the trial judge, should decide. In this case, petitioner may have had to prove her case by impeaching the store's witnesses and appealing to the jury to disbelieve all that they said was true in the affidavits. The right to confront, cross-examine and impeach adverse witnesses is one of the most fundamental rights sought to be preserved by the Seventh Amendment provision for jury trials in civil cases. The advantages of trial before a live jury with live witnesses, and all the possibilities of considering the human factors, should not be eliminated by substituting trial by affidavit and the sterile bareness of summary judgment. "It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given their testimony can be appraised. Trial by affidavit is no substitute for trial by jury which so long has been the hallmark of 'even handed justice.'" Poller v. Columbia Broadcasting, 368 U. S. 464 , 368 U. S. 473 (1962). Second, it was error for the trial judge to direct a verdict in favor of the respondent on the "custom" Page 398 U. S. 177 count. The trial judge surveyed the evidence and concluded that it was insufficient to prove the existence of a custom of not serving white people in the company of Negroes. He thereupon took the case away from the jury, directing a verdict for the respondent. The Court of Appeals affirmed this conclusion. In my opinion this was clear error. Petitioner testified at trial as follows: "Q. Did you have occasion to know of specific instances where white persons in the company of Negroes were discriminated against? A. Yes." "Q. How many such instances can you recall? A. I can think of about three at the moment." "Q. Will you describe the three instances to us? A. I know that people were turned away from a white church, an integrated group was turned away from a white church in Hattiesburg. I was not present, but this was explained to me. I saw a rabbi being beaten because he was in the company of Negroes." "Q. This was a white rabbi? A. Yes. And people were turned away from a drug store in Hattiesburg, an integrated group. I don't remember the name of the drug store." "Q. On the basis of what you studied and on the basis of what you observed, and on the basis of your conversations with other persons there, did you come to a conclusion with regard to the custom and usage with regard to the white community towards serving persons, white persons, in the company of Negroes? A. Yes." "Q. What was that conclusion? A. The conclusion was that white persons it was a custom and usage not to serve white persons in the company of Negroes. Page 398 U. S. 178 This evidence, although weakened by the cross-examination, was sufficient, I think, to require the court to let the case go to the jury and secure petitioner's constitutionally guaranteed right to a trial by that jury. See Galloway v. United States, 319 U. S. 372 , 319 U. S. 396 (1943) (BLACK, J., dissenting)." I do not find it necessary at this time to pass on the validity of the statutory provision concerning "custom or usage" or on the trial court's views, concurred in by the Court of Appeals, on the proper interpretation of that term. Assuming that the trial court's interpretation was correct and that the provision as so interpreted is valid, there was enough evidence in this record to warrant submitting the entire question of custom or usage to the jury in accordance with instructions framed to reflect those views. For the foregoing reasons, I concur in the judgment reversing the Court of Appeals and remanding for a new trial on both counts. MR. JUSTICE DOUGLAS, dissenting in part. I The statutory words "under color of any statute, ordinance, regulation, custom, or usage, of any State," 42 U.S.C. § 1983, are seriously emasculated by today's ruling. Custom, it is said, must have "the force of law"; and "law," as I read the opinion, is used in the Hamiltonian sense. [ Footnote 2/1 ] Page 398 U. S. 179 The Court requires state involvement in the enforcement of a "custom" before that "custom" can be actionable under 42 U.S.C. § 1983. That means, according to the Court, that "custom" for the purposes of § 1983 "must have the force of law by virtue of the persistent practices of state officials." That construction of § 1983 is, to borrow a phrase from the first Mr. Justice Harlan, "too narrow and artificial." Civil Rights Cases, 109 U. S. 3 , 109 U. S. 26 (dissenting opinion). Section 1983, by its terms, protects all "rights" that are "secured by the Constitution and laws" of the United States. There is no more basic "right" than the exemption from discrimination on account of race -- an exemption that stems not only from the Equal Protection Clause of the Fourteenth Amendment, but also from the Thirteenth Amendment and from a myriad of "laws" enacted by Congress. And, so far as § 1983 is concerned, it is sufficient that the deprivation of that right be "under color" of "any . . . custom . . . of any State." The "custom," to be actionable, must obviously reflect more than the prejudices of a few; it must reflect the dominant communal sentiment. II The "custom . . . of any State" can, of course, include the predominant attitude backed by some direct or indirect sanctions inscribed in law books. Thus, in Garner v. Louisiana, 368 U. S. 157 , another restaurant case involving racial discrimination, there was no state law or municipal ordinance that, in terms, required segregation of the races in restaurants. But segregation was basic to the structure of Louisiana as a community, as revealed by a mosaic of laws. Id. at 368 U. S. 179 -181 (concurring opinion). The same is true of Mississippi in the present case. In 1964, at the time of the discrimination perpetrated in this case, there were numerous Mississippi laws that were designed to continue a regime of segregation of Page 398 U. S. 180 the races. The state legislature had passed a resolution condemning this Court's Brown v. Board of Education decisions, 347 U. S. 347 U.S. 483, 349 U. S. 349 U.S. 294, as "unconstitutional" infringements on States' rights. Miss.Laws 1956, c. 466, Senate Concurrent Resolution No. 125. Part of the Mississippi program to perpetuate the segregated way of life was the State Sovereignty Commission, Miss.Code Ann. § 9028-31 et seq. (1956), of which the Governor was chairman and which was charged with the duty "to do and perform any and all acts and things deemed necessary and proper to protect the sovereignty of the State of Mississippi . . . from encroachment thereon by the Federal Government. . . ." Id. § 9028-35. Miss.Code Ann. § 4065.3 (1956) required "the entire executive branch of the government of the State of Mississippi . . . to prohibit by any lawful, peaceful, and constitutional means, the causing of a mixing or integration of the white and Negro races in public schools, public parks, public waiting rooms, public places of amusement, recreation or assembly in this state, by any branch of the federal government. . . ." Every word and deed of a state officer, agent, or employee that was connected with maintaining segregated schools in Mississippi was deemed to be "the sovereign act . . . of the sovereign State of Mississippi." Id. § 4065.4 (Supp. 1968). It was unlawful for a white student to attend any school of high school or lower level that was also attended by Negro students. Id. § 6220.5. Separate junior college districts were established for blacks and whites. Id. § 6475-14 (1952). The Ellisville State School for the feeble-minded was required to provide for separate maintenance of blacks and whites. Id. § 6766. The State Insane Hospital was required to keep the two races separate, id. § 6883, as was the South Mississippi Charity Hospital. Id. § 6927. Separate entrances were required to be maintained at state hospitals Page 398 U. S. 181 for black and white patients. Id. § 6973. It was the responsibility of those in authority to furnish a sufficient number of Negro nurses to attend Negro patients, but the Negro nurses were to be under the supervision of white supervisors. Id. § 6974. It was unlawful for Negro and white convicts to be confined or worked together. Id. § 7913 (1956). County sheriffs were required to maintain segregated rooms in the jails. Id. § 4259. It was unlawful for taxicab drivers to carry black and white passengers together. Id. § 3499. Railroad depots in cities of 3,000 or more inhabitants were required to have separate "closets" for blacks and whites. Id. § 7848. And it was a crime to overthrow the segregation laws of the State. Id. § 2056(7). The situation was thus similar to that which existed in Garner. Although there was no law that, in terms required segregation of the races in restaurants, it was plain that the discrimination was perpetrated pursuant to a deeply entrenched custom in Louisiana that was "at least as powerful as any law." Garner v. Louisiana, supra, at 368 U. S. 181 (concurring opinion); cf. Robinson v. Florida, 378 U. S. 153 , 378 U. S. 156 . III The "custom . . . of any State," however, can be much more pervasive. It includes the unwritten commitment, stronger than ordinances, statutes, and regulation, by which men live and arrange their lives. Bronislaw Malinowski, the famed anthropologist, in speaking of the "cake of custom" of a Melanesian community "safeguarding life, property and personality" said: [ Footnote 2/2 ] "There is no religious sanction to these rules, no fear, superstitious or rational, enforces them, no Page 398 U. S. 182 tribal punishment visits their breach, nor even the stigma of public opinion or moral blame. The forces which make these rules binding we shall lay bare and find them not simple, but clearly definable, not to be described by one word or one concept, but very real nonetheless. The binding forces of Melanesian civil law are to be found in the concatenation of the obligations, in the fact that they are arranged into chains of mutual services, a give and take extending over long periods of time and covering wide aspects of interest and activity. To this there is added the conspicuous and ceremonial manner in which most of the legal obligations have to be discharged. This binds people by an appeal to their vanity and self-regard, to their love of self-enhancement by display. Thus, the binding force of these rules is due to the natural mental trend of self-interest, ambition and vanity, set into play by a special social mechanism into which the obligatory actions are framed." This concept of "custom" is, I think, universal, and as relevant here as elsewhere. It makes apparent that our problem under 42 U.S.C. § 1983 does not make our sole aim the search for "state action" in the Hamiltonian sense of "law." That restricted kind of a search certainly is not compelled by grammar. "Of" is a word of many meanings, one of which indicates "the thing or person whence anything originates, comes, is acquired or sought." 7 Oxford English Dictionary (definition III). The words "under color of any . . . custom . . . of any State" do no more than describe the geographical area or political entity in which the "custom" originates and where it is found. The philosophy of the Black Codes reached much further than the sanctions actually prescribed in them. Federal judges, who entered the early school desegregation Page 398 U. S. 183 decrees, often felt the ostracism of the community, though the local "law" never even purported to place penalties on judges for doing such acts. Forty years ago in Washington, D.C. a black who was found after the sun set in the northwest section of the District on or above Chevy Chase Circle was arrested, though his only "crime" was waiting for a bus to take him home after caddying at a plush golf course in the environs. There was no "law" sanctioning such an arrest. It was done "under color" of a "custom" of the Nation's Capital. Harry Golden [ Footnote 2/3 ] recently wrote: "Southerners drew a line and prohibited Negroes crossing it. They doomed themselves to a lifetime of guarding that line, fearing it would be breached. Because the white Southerner must forever watch that line, the Negro intrudes upon the white at every level of life." Is not the maintenance of that line by habit a "custom?" Title 42 U.S.C. § 1983 was derived from § 1 of the "Ku Klux Klan Act" of 1871, 17 Stat. 13. The "under color of" provisions of § 1 of the 1871 Act, in turn, were derived from § 2 of the Civil Rights Act of 1866, 14 Stat. 27. The meaning of "under color of . . . custom" in the context of the 1866 Act is therefore relevant to the meaning of that phrase as it is used in § 1983, for, as the Court states, the "under color of" provisions mean the same thing for § 1983 as they do for 18 U.S.C. § 242, the direct descendant of § 2 of the 1866 Act. [ Footnote 2/4 ] Ante at 398 U. S. 152 n. 7. Page 398 U. S. 184 A "custom" of the community or State was one of the targets of the Civil Rights Act of 1866. Section 1, which we upheld in Jones v. Alfred H. Mayer Co., 392 U. S. 409 , provided a civil remedy for specified private acts of racial discrimination. Section 2 of that Act provided criminal sanctions for acts done "under color of any" custom of a State. A Congress that, in 1866, was not bent only on "the nullification of racist laws," id. at 392 U. S. 429 , was not restricting itself strictly to state action; it was out to ban racial discrimination partly as respects private actions, partly under state law in the Hamiltonian sense, and partly under the color of "custom." Of course, § 2 of the 1866 Act did not cover purely private actions as did § 1 of the Act, and that was the point of our discussion of § 2 in Jones v. Alfred H. Mayer Co. But the Court does not come to grips with the fact that actions taken "under color of any . . . custom" were covered by § 2 of the 1866 Act quite apart from Page 398 U. S. 185 actions taken under "color of any statute, ordinance, [or] regulation" -- in other words, quite apart from actions taken under "color of law" in the traditional sense. Instead, the Court seems to divide all actions into two groups -- those constituting "state action" and those constituting purely "private action" -- with coverage of § 2 limited to the former. While § 2 did not reach "private violations," it did reach discrimination based on "color of custom," which is far beyond the realm of a mere private predilection or prejudice. And, despite the Court's suggestion to the contrary, the use of the term "under color of law" by the Court in Jones v. Alfred H. Mayer Co. was merely a shorthand reference for all the "under color of" provisions in § 2, and had no relevance to the specific problem of defining the meaning of "under color of . . . custom." [ Footnote 2/5 ] Section 2, like § 1, involved in Jones v. Alfred H. Mayer Co., was bottomed on the Thirteenth Amendment, for it was enacted before the Fourteenth Amendment was adopted. As we stated in Jones v. Alfred H. Mayer Co.: "Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the Page 398 U. S. 186 authority to translate that determination into effective legislation." Id. at 392 U. S. 440 . While the Privileges and Immunities Clause, the Due Process Clause, and the Equal Protection Clause of the Fourteenth Amendment are each protective of the individual as against "state" action, the guarantees of the Thirteenth Amendment and various laws of the United States are not so restricted. And § 1983 protects not only Fourteenth Amendment rights, but " any rights . . . secured by the Constitution and laws." With regard to § 1983's scope of protection for violations of these rights, Congress in § 1983 aimed partly at "state" action and it was with that aspect of it that we were concerned in Monroe v. Pape, 365 U. S. 167 . If the wrong done to the individual was under "color" of "custom" alone, the ingredients of the cause of action were satisfied. [ Footnote 2/6 ] The adoption of the Fourteenth Amendment Page 398 U. S. 187 expanded the substantive rights covered by § 1 of the 1871 Act vis-a-vis those covered by § 2 of the 1866 Act. But that expanded coverage did not make "state action" a necessary ingredient in all of the remedial provisions of § 1 of the 1871 Act. Neither all of § 1 of the 1871 Act nor all of its successor, § 1983, was intended to be conditioned by the need for "state" complicity. Moreover, a majority of the Court held in United States v. Guest, 383 U. S. 745 , 383 U. S. 761 , 383 U. S. 774 , 383 U. S. 782 and n. 6, that § 5 of the Fourteenth Amendment enables Congress to punish interferences with constitutional rights "whether or not state officers or others acting under the color of state law are implicated." Id. at 383 U. S. 782 . There, the statute involved (18 U.S.C. § 241) proscribed all conspiracies to impair any right "secured" by the Constitution. A majority agreed that, in order for a conspiracy to qualify it need not involve any "state" action. By the same reasoning the "custom . . . of any State" as used in § 1983 need not involve official state development, maintenance, or participation. The reach of § 1983 is constitutional rights, including those under the Fourteenth Amendment; and Congress rightfully was concerned with their full protection, whoever might be the instigator or offender. To repeat, § 1983 was "one of the means whereby Congress exercised the power vested in it by § 5 of the Fourteenth Amendment to enforce the provisions of that Amendment." Monroe v. Pape, supra, at 365 U. S. 171 . Yet powers exercised by Congress may stem from more than one constitutional source. McCulloch v. Maryland , 4 Wheat. 316, 17 U. S. 421 ; Veazie Bank v. Fenno , 8 Wall. 533, 75 U. S. 548 -549; Edye v. Robertson, 112 U. S. 580 , 112 U. S. 595 -596; United States v. Gettysburg Electric R. Co., 160 U. S. 668 , 160 U. S. 683 . Moreover, § 1983 protects "any rights" that are "secured" by "the Constitution and laws" Page 398 U. S. 188 of the United States, which makes unmistakably clear that § 1983 does not cover, reach, protect, or secure only Fourteenth Amendment rights. The Thirteenth Amendment and its enabling legislation cover a wide range of "rights" designed to rid us of all the badges of slavery. And, as I have said, the phrase "under color of any . . . custom" derives from § 2 of the 1866 Act which rested on the Thirteenth Amendment whose enforcement does not turn on "state action." [ Footnote 2/7 ] The failure of the Court to come to face with those realities leads to the regressive decision announced today. It is time we stopped being niggardly in construing civil rights legislation. It is time we kept up with Congress and construed its laws in the full amplitude needed to rid their enforcement of the lingering tolerance for racial discrimination that we sanction today. [ Footnote 2/1 ] The Federalist, No. 15: "It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the COERCION of the magistracy, or by the COERCION of arms." [ Footnote 2/2 ] B. Malinowski, Crime and Custom in Savage Society 66-67 (1932). [ Footnote 2/3 ] Book Guide, Boston Sunday Herald Traveler, February 22, 1970, p. 2. [ Footnote 2/4 ] Section 2 of the 1866 Act, which we discussed in Jones v. Alfred H. Mayer Co., 392 U. S. 409 , 392 U. S. 424 -426, made it a criminal offense for any person "under color of any law, statute, ordinance, regulation, or custom" to subject any inhabitant of "any State or Territory to the deprivation of any right secured or protected by this act." The direct descendant of § 2 is 18 U.S.C. § 242, which, in an earlier form, was before the Court in United States v. Classic, 313 U. S. 299 , and Screws v. United States, 325 U. S. 91 . Section 242 provides: "Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both." (Emphasis added.) Section 1983 of 42 U.S.C. provides a civil remedy. It reads: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." (Emphasis added.) [ Footnote 2/5 ] The meaning of "under color of . . . custom" was not before the Court in Jones v. Alfred H. Mayer Co., and language from the Court's opinion in that case, taken out of context, can be highly misleading. For example, the language quoted in n. 26 of the Court's opinion in this case distinguished "private violations" covered by § 1 of the 1866 Act from "deprivations perpetrated under color of law'" covered by § 2 of the Act. The Court here interprets that use of the phrase "under color of law" to exclude actions taken "under color of . . . custom" sans state action. A more realistic interpretation of the quoted language, however, is that "under color of law" was merely being used by the Court as a shorthand phrase for "under color of any statute, ordinance, regulation, custom, or usage, of any State," and that the Court, without in any way addressing the question of the meaning of "custom," was merely using the phrase to distinguish purely private violations. [ Footnote 2/6 ] The trial court restricted the evidence on custom to that which related to the specific practice of not serving white persons who were in the company of black persons in public restaurants. Such evidence was necessarily limited, as the Court points out, by the fact that it was only after the Civil Rights Act of 1964 went into effect that blacks could be served in " white' restaurants" in Mississippi at all. Although I agree with my Brother BLACK that the evidence introduced under this narrow definition of custom, as outlined in his opinion, was sufficient to require a jury trial on that question, I also agree with the Court's conclusion that the definition employed by the trial court was far too restrictive. Petitioner argued that the relevant custom was the custom against integration of the races, and that the refusal to serve a white person in the company of blacks was merely a specific manifestation of that custom. I think that petitioner's definition of custom is the correct one. There is abundant evidence in the record of a custom of racial segregation in Mississippi, and in Hattiesburg in particular. In fact, the trial judge conceded, "I certainly don't dispute that it could be shown that there was a custom and usage of discrimination in the past. . . . It is certainly a way of life so far as the people in Mississippi were concerned." [ Footnote 2/7 ] This case concerns only the meaning of "custom . . . of any State" as those words are used in § 1983. It does not involve the question whether, under certain circumstances, "custom" can constitute state action for purposes of the Fourteenth Amendment. See Garner v. Louisiana, supra, at 368 U. S. 178 -179 (concurring opinion). MR. JUSTICE BRENNAN, concurring in part and dissenting in part. Petitioner contends that, in 1964, respondent, while acting "under color of . . . statute" or "under color of . . . custom, or usage" of the State of Mississippi, subjected her to the deprivation of her right under the Equal Protection Clause of the Fourteenth Amendment not to be denied service in respondent's restaurant due to racial discrimination in which the State of Mississippi was involved, and that, therefore, respondent is liable to her in damages under 42 U.S.C. § 1983. To recover under 1983, petitioner must prove two separate and independent elements: first, that respondent subjected her to the Page 398 U. S. 189 deprivation of a right "secured by the Constitution and laws"; and, second, that, while doing so, respondent acted under color of a statute, ordinance, regulation, custom, or usage of the State of Mississippi. Whether a person suing under § 1983 must show state action in the first element -- the deprivation of a right "secured by the Constitution and laws" -- depends on the nature of the particular right asserted. For example, a person may be deprived of a right secured by the Constitution and 42 U.S.C. § 1982 by a private person acting completely independently of state government. See Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968). On the other hand, the constitutional right to equal protection of the laws, unelaborated by any statute, can be violated only by action involving a State. The discussion in United States v. Reese, 92 U. S. 214 , 92 U. S. 249 -252 (1876) (Hunt, J., dissenting), of various constitutional uses of the word "State" suggests that, as an original matter, "State" in the Equal Protection Clause might have been interpreted in any of several ways. Moreover, some have thought that historical evidence points to an interpretation covering some categories of state inaction in the face of wholly private conduct, see, e.g., Bell v. Maryland, 378 U. S. 226 , 378 U. S. 286 -316 (1964) (Goldberg, J., concurring); R. Harris, The Quest for Equality 24-56 (1960); J. tenBroek, Equal Under Law 201-239 (1965). However, our cases have held that the Equal Protection Clause applies only to action by state government or officials and those significantly involved with them. Shelley v. Kraemer, 334 U. S. 1 , 334 U. S. 13 (1948); Burton v. Wilmington Parking Authority, 365 U. S. 715 , 365 U. S. 721 -722 (1961). Whether and when a person suing under 1983 must show state action in the second element -- action under color of a statute, ordinance, regulation, custom, or Page 398 U. S. 190 usage of a State -- depends on an analysis of the text, legislative history, and policy of § 1983. See 398 U. S. infra. These two inquiries are wholly different, though, in particular cases, a showing of state action under one element may suffice under the other. In the present case, petitioner alleged as the first element under § 1983 a deprivation of her right to equal protection. Therefore, under our cases, she must show state action. She asserts that there was state action in two different respects. First, she contends that there was a conspiracy between respondent and local police to discriminate against her in restaurant service because she, a white person, sought service while accompanied by Negro friends. The Court treats this aspect of her claim in 398 U. S. which I join. [ Footnote 3/1 ] Petitioner contends, alternatively, that respondent's discrimination was authorized and encouraged by Mississippi statutes. To that contention I now turn. I The state action doctrine reflects the profound judgment that denials of equal treatment, and particularly denials on account of race or color, are singularly grave when government has or shares responsibility for them. Government is the social organ to which all in our society look for the promotion of liberty, justice, fair and equal treatment, and the setting of worthy norms and goals for social conduct. Therefore something is uniquely amiss in a society where the government, the authoritative oracle of community values, involves itself in racial Page 398 U. S. 191 discrimination. Accordingly, in the cases that have come before us this Court has condemned significant state involvement in racial discrimination, however subtle and indirect it may have been and whatever form it may have taken. See, e.g., Burton v. Wilmington Parking Authority, supra; Evans v. Newton, 382 U. S. 296 (1966); Hunter v. Erickson, 393 U. S. 385 (1969). These decisions represent vigilant fidelity to the constitutional principle that no State shall in any significant way lend its authority to the sordid business of racial discrimination. Among the state action cases that most nearly resemble the present one are the sit-in cases decided in 1963 and 1964. In Peterson v. City of Greenville, 373 U. S. 244 (1963), the petitioners were convicted of trespass for refusing to leave a lunch counter at a Kress store in South Carolina. A Greenville ordinance at that time imposed on the proprietors of restaurants the duty to segregate the races in their establishments, and there was evidence that the Kress manager was aware of the ordinance. We held that the existence of the ordinance, together with a showing that the Kress manager excluded the petitioners solely because they were Negroes, was sufficient to constitute discriminatory state action in violation of the Fourteenth Amendment: "When the State has commanded a particular result, it has saved to itself the power to determine that result, and thereby 'to a significant extent,' has 'become involved' in it, and, in fact, has removed that decision from the sphere of private choice. . . ." "Consequently these convictions cannot stand, even assuming as respondent contends, that the manager would have acted as he did independently of the existence of the ordinance." 373 U.S. at 373 U. S. 248 . Page 398 U. S. 192 Although the case involved trespass convictions, the Court did not rely on the State's enforcement of its neutral trespass laws in analyzing the elements of state action present. Nor did it cite Shelley v. Kraemer, supra, the logical starting point for an analysis in terms of judicial enforcement. The denial of equal protection occurred when the petitioners were denied service in the restaurant. That denial of equal protection tainted the subsequent convictions. And, as we noted in Reitman v. Mulkey, 387 U. S. 369 , 387 U. S. 380 (1967), no "proof [was] required that the restaurant owner had actually been influenced by the state statute. . . ." Thus, Peterson establishes the proposition that, where a State commands a class of persons to discriminate on the basis of race, discrimination by a private person within that class is state action, regardless of whether he was motivated by the command. The Court's intimation in the present case that private discrimination might be state action only where the private person acted under compulsion imposed by the State echoes MR. JUSTICE HARLAN's argument in Peterson that private discrimination is state action only where the State motivates the private person to discriminate. See 373 U.S. at 373 U. S. 251 -253. That argument was squarely rejected by the Court in Peterson, and I see no reason to resurrect it now. The rationale of Peterson was extended in Lombard v. Louisiana, 373 U. S. 267 (1963). There, the petitioners were convicted of trespass for refusing to leave a restaurant after being denied service. Prior to the arrests, the mayor and superintendent of police of New Orleans had publicly stated that sit-in demonstrations were undesirable, and that relevant trespass laws would be fully enforced. Although these statements, unlike the ordinance in Peterson, were not discriminatory on their face, the Court interpreted them Page 398 U. S. 193 as evidencing state support for the system of racial segregation prevalent in the private institutions against which the petitioners' sit-in was directed. Moreover, the statements, unlike the ordinance in Peterson, did not command restaurateurs to discriminate. A restaurateur in New Orleans, unlike one in Greenville, could integrate his services without violating any law. Although there was evidence that the restaurateur's actions were influenced by the official statements, the Court did not rely on this factor. The Court held on the basis of the statements alone that the degree of state involvement in the private discriminatory denial of service to the petitioners was sufficient to make that denial state action violative of the Fourteenth Amendment. As in Peterson, the Court's analysis of state action did not turn on the actual enforcement of the State's criminal law. Lombard, therefore, advances at least two propositions. First, an authoritative expression of state policy that is nondiscriminatory on its face may be found to be discriminatory when considered against the factual background of its promulgation. Cf. Guinn v. United States, 238 U. S. 347 , 238 U. S. 364 -365 (1915); Gomillion v. Lightfoot, 364 U. S. 339 (1960). Second, where a state policy enforces privately chosen racial discrimination in places of public accommodation, it renders such private discrimination unconstitutional state action, regardless of whether the private discriminatory was motivated or influenced by it. The principles of Peterson and Lombard were extended further in Robinson v. Florida, 378 U. S. 153 (1964). That case also involved trespass convictions arising out of a sit-in at a segregated restaurant. At the time, a Florida regulation required restaurants to maintain separate lavatory and toilet facilities for each race as well as each sex. However, the regulation did not require segregation of a restaurant itself; nor did the Page 398 U. S. 194 convictions of the demonstrators result from anything they did with respect to the facilities that were the subject of the regulation. Nevertheless, this Court reversed the convictions on the ground that, by virtue of the regulation the State had become sufficiently involved in the privately chosen segregation of the restaurant to make that segregation state action. The Court commented: "While these Florida regulations do not directly and expressly forbid restaurants to serve both white and colored people together, they certainly embody a state policy putting burdens upon any restaurant which serves both races, burdens bound to discourage the serving of the two races together." 378 U.S. at 378 U. S. 156 . Robinson involved neither a state command of restaurant segregation, as in Peterson, nor a state policy of enforcing restaurant segregation, as in Lombard. It involved state imposition of burdens amounting to discouragement of private integration. It is true that the burden in that case happened to take the form of a requirement of segregated lavatory facilities; but any other burden -- for example, a tax on integrated restaurants -- would have sufficed to render the privately chosen restaurant segregation unconstitutional state action. Again, the Court's finding of state action did not depend on the use of the State's trespass law. Robinson thus stands for the proposition that state discouragement of a particular kind of privately chosen integration renders that kind of privately chosen segregation unconstitutional state action. The step from Peterson, Lombard, and Robinson to the present case is a small one. Indeed, it may be no step at all, since those cases together hold that a state Page 398 U. S. 195 policy of discouraging privately chosen integration or encouraging privately chosen segregation, even though the policy is expressed in a form nondiscriminatory on its face, is unconstitutional and taints the privately chosen segregation it seeks to bring about. These precedents suggest that the question of state action in this case is whether, as petitioner contends, Mississippi statutes do in fact, manifest a state policy of encouraging and supporting restaurant segregation, so that respondent's alleged privately chosen segregation is unconstitutional state action. To establish the existence in 1964 of a state statutory policy to maintain segregation in restaurant facilities, petitioner relies principally on Miss.Code Ann. § 2046.5 (1956), which, on its face, "authorizes" and "empowers" owners of hotels, restaurants, and other places of public accommodation and amusement to refuse to serve whomsoever they choose. [ Footnote 3/2 ] The decision whether to serve a particular Page 398 U. S. 196 individual is left to the unfettered discretion of the restaurant management, which may refuse service for any reason or for no reason. Thus, while there is no explicit command in § 2046.5 that segregated eating facilities be maintained, a refusal to serve on the basis of race alone falls clearly within the broad terms of the statute. The restaurateur is informed, in essence, that he may discriminate for racial or any other reasons, and that he may call upon the police power of the State to make that private decision effective through the trespass sanctions expressly incorporated in § 2046.5. It is clear that, to the extent that the statute authorizes and empowers restaurateurs to discriminate on the basis of race, it cannot pass muster under the Fourteenth Amendment. Burton v. Wilmington Parking Authority, supra, at 365 U. S. 726 -727 (STEWART, J., concurring). Burton involved a statute that permitted a restaurateur to refuse service to "persons whose reception or entertainment by him would be offensive to the major part of his customers. . . ." MR. JUSTICE STEWART took the position that the state courts had "construed this legislative enactment as authorizing discriminatory classification based exclusively on color." 365 U.S. at 365 U. S. 726 -727. Justices Frankfurter, HARLAN, and Whittaker, the only other Justices who dealt at length with the statute, [ Footnote 3/3 ] Page 398 U. S. 197 agreed that it would violate the Fourteenth Amendment if so construed. However, they thought the construction adopted by the state courts insufficiently clear to make possible a final determination of the issue. The language of § 2046.5 is considerably broader than that involved in Burton. Although § 2046.5 apparently has not been authoritatively interpreted by the state courts, its plain language clearly authorizes a restaurateur to refuse service for any reason, which obviously includes a refusal based upon race. Were there any conceivable doubt that § 2046.5 was intended to authorize, inter alia, "discriminatory classification based exclusively on color," it is completely dispelled by a consideration of the historical context in which § 2046.5 was enacted. A legislative or constitutional provision need not be considered in isolation, but may be examined "in terms of its immediate objective,' its `ultimate effect' and its `historical context and the conditions existing prior to its enactment.'" Reitman v. Mulkey, supra, at 387 U. S. 373 ; cf. Lombard v. Louisiana, supra. Through the 1950's and 1960's Mississippi had a "steel-hard, inflexible, undeviating official policy of segregation." United States v. City of Jackson, 318 F.2d 1, 5 (C.A. 5th Cir.1963) (Wisdom, J.). See generally J. Silver, Mississippi: The Closed Society (1964). Section 2046.5 itself was originally enacted in 1956 in the wake of our decisions in Brown v. Board of Education, 347 U. S. 483 (1954); 349 U. S. 349 U.S. 294 (1955). It was passed contemporaneously with numerous statutes and resolutions condemning Brown, [ Footnote 3/4 ] requiring racial segregation in various transportation facilities, [ Footnote 3/5 ] and committing the state government to continued adherence to the principles of racial Page 398 U. S. 198 segregation. [ Footnote 3/6 ] Together with these other statutes and resolutions, § 2046.5 is indexed in the 1956 Mississippi Session Laws under "Segregation" and "Races." [ Footnote 3/7 ] Prior Page 398 U. S. 199 to 1956, the State had declared unlawful any conspiracy "[t]o overthrow or violate the segregation laws of this state. . . ." [ Footnote 3/8 ] Subsequent to the passage of § 2046.5, breach of the peace, vagrancy, and trespass statutes similar to § 2046.5 [ Footnote 3/9 ] were enacted or employed to give local officials additional weapons to combat attempts to desegregate places of public accommodation. See, e.g., Dilworth v. Riner, 343 F.2d 226 (C.A. 5th Cir.1965). [ Footnote 3/10 ] Illustrative of the practical effect of these various provisions is the incident that gave rise to this litigation. Page 398 U. S. 200 Petitioner was arrested for vagrancy shortly after she had unsuccessfully sought service at respondent's store. In ordering dismissal of the charges after removal of the prosecutions to the federal courts, the Court of Appeals for the Fifth Circuit noted "[t]he utter baselessness of any conceivable contention that the vagrancy statutes prohibited any conduct in which these persons were engaged," and concluded that the arrests had been made solely because petitioner had attempted to receive service at a city library and at respondent's store in the company of Negro friends. Achtenberg v. Mississippi, 393 F.2d 468, 474 475 (C.A. 5th Cir.1968). [ Footnote 3/11 ] In sum, it may be said of the various statutes and resolutions that constituted Mississippi's response to Brown that "they are bound together as the parts of a single plan. The plan may make the parts unlawful." Swift & Co. v. United States, 196 U. S. 375 , 196 U. S. 396 (1905) (Holmes, J.). Section 2046.5 was an integral part of this scheme to foster and encourage the practice of segregation in places of public accommodation and elsewhere, which it furthered by authorizing discrimination and by affording those who elected to discriminate on the basis of race a remedy under state law. Indeed, it is difficult to conceive of any purpose for the enactment of § 2046.5 other than to make clear the authorization of private discrimination where such express authorization did not exist previously. Cf. Mulkey v. Reitman, 64 Cal.2d Page 398 U. S. 201 529, 544, 413 P.2d 825, 835-836 (1966), aff'd, 387 U. S. 387 U.S. 369 (1967). Judge Waterman, dissenting in the Court of Appeals, states that, under the common law, an innkeeper, and, by analogy, a restaurateur, did not have the right to serve only whomever he wished and to discriminate on the basis of race in selecting his customers. 409 F.2d 121, 131-133. See Bell v. Maryland, 378 U. S. 226 , 378 U. S. 296 -300 (1964) (Goldberg, J., concurring). Since the common law is presumed to apply in Mississippi, Western Union Telegraph Co. v. Goodman, 166 Miss. 782, 146 So. 128 (1933), Judge Waterman concludes that the State has "drastically changed the common law" by enacting § 2046.5. [ Footnote 3/12 ] 409 F.2d at 132. Further support for this view can be found in the preamble to § 2046.5, which states that that provision " confer[s] upon any person . . . the further right to refuse to sell or render a service to any person. . . ." Miss.Laws 1956, c. 257. (Emphasis added.) This formulation suggests that the legislature intended to alter the existing state law. It is not completely clear, however, that the common law in regard to innkeepers and restaurateurs, as understood by Judge Waterman, was ever widely enforced in Mississippi in racial matters. In Reconstruction times Page 398 U. S. 202 the State enacted a civil rights law that forbade discrimination in places of public accommodation and amusement. See Miss.Laws 1873, c. LXIII. It was upheld and applied in Donnell v. State, 48 Miss. 661 (1873). That law, however, quickly fell into desuetude. [ Footnote 3/13 ] Thus, some question exists as to whether Mississippi "changed" the law as it existed in that State in 1956. At least it can be said, however, that Mississippi, by enacting § 2046.5, clarified the state law, and, in doing so, elected to place the full authority of the State behind private acts of discrimination. Since § 2046.5 authorizes discrimination on the basis of race, it is invalid as applied to authorize such discrimination in particular cases. The remaining question concerning this aspect of the present case is what nexus between § 2046.5 and respondent's alleged discrimination petitioner must show to establish that that discrimination is state action violative of the Fourteenth Amendment. Our prior decisions leave no doubt that the mere existence of efforts by the State, through legislation or otherwise, to authorize, encourage, or otherwise support racial discrimination in a particular facet of life constitutes illegal state involvement in those pertinent private acts of discrimination that subsequently occur. See, e.g., Peterson v. City of Greenville, supra; Lombard v. Louisiana, supra; Robinson v. Florida, Page 398 U. S. 203 supra. [ Footnote 3/14 ] This is so, as we noted in Reitman v. Mulkey, supra, at 387 U. S. 380 , whether or not the private discriminatory was actually influenced in the commission of his act by the policy of the State. Thus, when private action conforms with state policy, it becomes a manifestation of that policy, and is thereby drawn within the ambit of state action. In sum, if an individual discriminates on the basis of race, and does so in conformity with the State's policy to authorize or encourage such discrimination, neither the State nor the private party will be heard to say that their mutual involvement is outside the prohibitions of the Fourteenth Amendment. Therefore, in light of the statutory scheme including § 2046.5, which authorized and encouraged restaurant segregation, petitioner will fully satisfy the state action requirement of the Fourteenth Amendment if she establishes that she was refused service on the basis of race. I turn now to the other elements of petitioner's case under § 1983. II Title 42 U.S.C. § 1983 derives from § 1 of the Civil Rights Act of 1871, 17 Stat. 13, entitled, "An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes." [ Footnote 3/15 ] The 1871 Act, popularly known as the "Ku Page 398 U. S. 204 Klux Klan Act," was, as its legislative history makes absolutely clear, a response to the outrages committed by the Klan in many parts of the South. The conditions that gave rise to the Act were discussed extensively in Monroe v. Pape, 365 U. S. 167 , 365 U. S. 172 -183 (1961). In the context of that case, we pointed out that, although the 1871 Act was engendered by the activities of the Klan, the language and purposes of § 1983 are not restricted to that evil. See 365 U.S. at 365 U. S. 183 . See also Page 398 U. S. 205 United States v. Mosley, 238 U. S. 383 , 238 U. S. 388 (1915), where Mr. Justice Holmes, speaking for the Court, commented on § 6 of the Enforcement Act of 1870, 16 Stat. 141, as amended, now 18 U.S.C. § 241, in words applicable to § 1983: "Just as the Fourteenth Amendment . . . was adopted with a view to the protection of the colored race, but has been found to be equally important in its application to the rights of all, [the statute] had a general scope, and used general words that have become the most important now that the Ku Klux have passed away. . . . [W]e cannot allow the past so far to affect the present as to deprive citizens of the United States of the general protection which on its face [the statute] most reasonably affords." Stirred to action by the wholesale breakdown of protection of civil rights in the South, Congress carried to completion the creation of a comprehensive scheme of remedies -- civil, criminal, and military [ Footnote 3/16 ] --for the protection of constitutional rights from all major interference. In the 1871 Act, Congress undertook to provide broad federal civil remedies against interference with the exercise and actual enjoyment of constitutional rights, particularly the right to equal protection. Section 1 (now § 1983) provided a civil remedy for deprivation of any constitutional right by a person acting "under color of any law, statute, ordinance, regulation, custom, or usage of any State. . . ." Section 2 (now surviving Page 398 U. S. 206 in part as § 1985(3)) provided a civil and a criminal remedy against conspiratorial interference with any person's enjoyment of equal protection. Section 6 (now § 1986) cast the net of civil liability even more widely by providing a remedy against any person who, having the ability by reasonable diligence to prevent a violation of § 2, fails to do so. These remedies were bolstered by other criminal provisions of § 2, and by previously enacted criminal laws. Section 2 of the Civil Rights Act of 1866, 14 Stat. 27, reenacted as § 17 of the Enforcement Act of 1870, 16 Stat. 144, as amended, now 18 U.S.C. § 242, provided a criminal remedy against what amounts to a violation of § 1983. Section 6 of the Enforcement Act of 1870, 16 Stat. 141, as amended, now 18 U.S.C. § 241, provided a criminal remedy against conspiracies to interfere with the exercise or enjoyment of a federal right. [ Footnote 3/17 ] The history of this scheme of remedies for the protection of civil rights was, until very recently, one of virtual nullification by this Court. Key provisions were declared unconstitutional or given an unduly narrow construction wholly out of keeping with their purposes. [ Footnote 3/18 ] In United States v. Harris, 106 U. S. 629 (1883), the Court invalidated the criminal provision of § 2 of the Page 398 U. S. 207 Ku Klux Klan Act, the criminal analogue to § 1985(3), on the ground that Congress was not authorized by § 5 of the Fourteenth Amendment to prohibit interference by private persons with the exercise of Fourteenth Amendment rights, except perhaps in extreme and remote circumstances. Essential to the holding was a recognition that the language of § 2 plainly reaches conspiracies not involving state officials. See also Baldwin v. Franks, 120 U. S. 678 (1887). The statute (Rev.Stat. § 5519) was repealed in 1909. 35 Stat. 1154. In Collins v. Hardyman, 341 U. S. 651 (1951), the Court, under the influence of Harris, construed § 1985(3). Pointing out that the language of § 1985(3) is exactly the same (except for the remedy provided) as the language of the statute condemned in Harris, the Court thought it necessary to read in a limitation of the section to conspiracies involving state action, in order to sustain its constitutionality. This limiting construction necessarily carried over to § 1986, whose scope is keyed to that of § 1985. Section 241 of 18 U.S.C. fared little better. That statute, as indicated, deals generally with conspiracies to interfere with the exercise of federal rights. It was established soon after its enactment that § 241 reaches conspiracies among private persons to interfere with "rights which arise from the relationship of the individual and the Federal Government." United States v. Williams, 341 U. S. 70 , 341 U. S. 77 (1951) (opinion of Frankfurter, J.). See, e.g., Ex parte Yarbrough, 110 U. S. 651 (1884); United States v. Waddell, 112 U. S. 76 (1884); Logan v. United States, 144 U. S. 263 (1892); In re Quarles, 158 U. S. 532 (1895). However, the concept of "arising from" was given a very narrow construction in United States v. Cruikshank, 92 U. S. 542 (1876). Moreover, in United States v. Williams, supra, the Court divided 4 to 4 on the question whether § 241 reaches private conspiracies to Page 398 U. S. 208 interfere with the exercise of Fourteenth Amendment rights, which arise from the relation of an individual and a State. The four members of the Court who thought § 241 does not protect the exercise of Fourteenth Amendment rights placed considerable reliance on the argument that § 241 would be unconstitutional if construed otherwise. See 341 U.S. at 341 U. S. 77 -78. See also Hodges v. United States, 203 U. S. 1 (1906). Although the other principal criminal statute protecting civil rights, 18 U.S.C. § 242, the criminal analogue to § 1983, was construed to protect Fourteenth Amendment rights, it was nonetheless held constitutional. However, under this statute, a violation can be found only if the defendant acted "willfully," that is, with "a specific intent to deprive a person of a federal right made definite by decision or other rule of law." See Screws v. United States, 325 U. S. 91 , 325 U. S. 103 (1945). Moreover, this Court has never had occasion to consider whether § 242 reaches wholly nonofficial conduct. Thus, until very recently, the construction of the surviving remedial civil rights statutes was narrowed or placed in doubt by a restrictive view of the power of Congress under § 5 of the Fourteenth Amendment. But that view of congressional power has now been completely rejected by this Court. In United States v. Guest, 383 U. S. 745 (1966), and United States v. Price, 383 U. S. 787 (1966), the Court expressly held that § 241 does protect Fourteenth Amendment rights, thereby squarely resolving the issue that divided the court in Williams. Because the conspiracy in Guest was alleged to have been carried out by private persons acting in conjunction with state officials, [ Footnote 3/19 ] the Court found it unnecessary to consider whether § 241 Page 398 U. S. 209 would be constitutional if construed to reach wholly private conspiracies to interfere with the exercise of Fourteenth Amendment rights. However, to put the point beyond doubt, six members of the Court in Guest expressly stated their view that Congress has power under § 5 of the Fourteenth Amendment to protect Fourteenth Amendment rights against interference by private persons, without regard to state involvement in the private interference. See United States v. Guest, supra, at 383 U. S. 761 -762 (opinion of Clark, J., joined by BLACK and Fortas, JJ.), 383 U. S. 774 -786 (opinion of BRENNAN, J., joined by Warren, C.J., and DOUGLAS, J.). This general view of congressional power under § 5 was expressly adopted by the Court in Katzenbach v. Morgan, 384 U. S. 641 (1966), where we said: "By including § 5, the draftsmen sought to grant to Congress, by a specific provision applicable to the Fourteenth Amendment, the same broad powers expressed in the Necessary and Proper Clause, Art. I, § 8, cl. 18. . . . Correctly viewed, § 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment." 384 U.S. at 384 U. S. 650 -651. See also South Carolina v. Katzenbach, 383 U. S. 301 (1966). [ Footnote 3/20 ] Thus, the holding of Harris and the Civil Rights Cases, 109 U. S. 3 (1883), that Congress cannot, under § 5, protect the exercise of Fourteenth Amendment rights from private interference has been overruled. See United States v. Guest, supra, at 383 U. S. 782 -783 (opinion of BRENNAN, Page 398 U. S. 210 J.). Consequently, the interpretation of the civil rights statutes need no longer be warped by unwarranted concern that Congress lacks power under § 5 to reach conduct by persons other than public officials. There is no doubt that § 1983 protects Fourteenth Amendment rights. See Monroe v. Pape, supra, at 365 U. S. 170 -171; id. at 365 U. S. 205 -206 (opinion of Frankfurter, J.). Accordingly, the only substantial question in this branch of the present case is whether § 1983 was intended by Congress to reach nonofficial conduct of the kind at issue here. Petitioner contends that respondent's discrimination against her was within the scope of § 1983 on either of two grounds. First, she claims that respondent acted under color of Mississippi statutory law, and, in particular, Mississippi Code § 2046.5. Second, she claims that respondent acted under color of a custom or usage of Mississippi, which prescribed segregation of the races in dining facilities. Petitioner's claim that respondent acted under color of Mississippi statutory law is similar to her claim that respondent's action constituted state action. Indeed, the two claims would be proved by the same factual showing if respondent were a state official who acted by virtue of his official capacity or a private party acting in conjunction with such state official, for when a state official acts by virtue of his official capacity, it is precisely the use or misuse of state authority that makes the action state action. However, when a private party acts alone, [ Footnote 3/21 ] more must be shown, in my view, to establish that he acts "under color of" a state statute or other authority than is needed to show that his action constitutes state action. Page 398 U. S. 211 As I pointed out in 398 U. S. supra, under the constitutional principle that no State shall have any significant involvement whatever in racial discrimination and under our prior cases, the mere existence of a state policy authorizing, encouraging, or otherwise supporting racial discrimination in a particular kind of service is sufficient to render private discrimination in that service state action. However, the statutory term "under color of any statute" has a narrower meaning than the constitutional concept of "state action." The "under color" language of § 1983 serves generally to limit the kinds of constitutional violation for which the section provides a remedy. To understand how that language applies to private persons, it is helpful to consider its application to state officials. In other legal usage, the word "color," as in "color of authority," "color of law," "color of office," "color of title," and "colorable," suggests a kind of holding out, and means "appearance, semblance, or simulacrum," but not necessarily the reality. See H. Black, Law Dictionary 331-332 (rev.4th ed.1968). However, as the word appears in § 1983, it covers both actions actually authorized by a State, see Myers v. Anderson, 238 U. S. 368 (1915); Nixon v. Herndon, 273 U. S. 536 (1927); Lane v. Wilson, 307 U. S. 268 (1939), and misuse of state authority in ways not intended by the State, see, e.g., Monroe v. Pape, supra; Screws v. United States, supra, at 325 U. S. 111 . In some of these latter situations, there is a holding out in that the official uses his actual authority to give the appearance that he has authority to take the particular action he is taking. In other cases, the abuse of power is so palpable that the victim or any observer may well be aware that the official is exceeding his authority, so that any holding out of authority would be wholly transparent. In these cases, the misuse of authority alone is enough to warrant recovery. See, e.g., Monroe v. Pape, supra; Page 398 U. S. 212 United States v. Classic, 313 U. S. 299 , 313 U. S. 326 (1941); Catlette v. United States, 132 F.2d 902 (C.A.4th Cir.1943). Thus, a public official acting by virtue of his official capacity always acts under color of a state statute or other law, whether or not he overtly relies on that authority to support his action, and whether or not that action violates state law. A private person acts "under color of" a state statute or other law when he, like the official, in some way acts consciously pursuant to some law that gives him aid, comfort, or incentive, cf. Griffin v. Maryland, 378 U. S. 130 (1964); Flemming v. South Carolina Elec. & Gas Co., 224 F.2d 752 (C.A.4th Cir.1955), appeal dismissed, 351 U.S. 901 (1956); or when he acts in conjunction with a state official, as in United States v. Price, supra. In the present case, Mississippi statutory law did authorize and encourage respondent to discriminate against petitioner on the basis of race. Therefore petitioner can establish that respondent acted "under color of" Mississippi statutory law by showing that respondent was aware of that body of law as prescribing, encouraging, authorizing, legitimating, effectuating, or otherwise supporting its refusal to serve petitioner. The vice of action under color of statute exists wherever the private discriminatory consciously draws from a state statute any kind of support for his discrimination. Therefore, it is irrelevant that petitioner was not arrested under the trespass provision of § 2046.5. Petitioner's second contention, that respondent discriminated against her "under color of [a] custom, or usage" of Mississippi, presents more difficulty. I have found few prior cases construing the phrase "under color of custom, or usage" in the context of § 1983 [ Footnote 3/22 ] and it Page 398 U. S. 213 has not been litigated under 18 U.S.C. § 242, though, in that context it, was briefly discussed in the opinions in Jones v. Alfred H. Mayer Co., supra. It is true that, on occasion, this Court has summed up the statutory language "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory" as meaning "under color of law," and as incorporating a requirement of state action akin to that of the Equal Protection Clause. See, e.g., United States v. Price, supra, at 383 U. S. 794 n. 7. But the loose and vague phrase "under color of law" has always been used by the Court in the context of cases in which reliance was put on something other than "custom or usage." The Court Page 398 U. S. 214 has never held, or even intimated, that "custom or usage" means "law." Indeed, MR. JUSTICE HARLAN, dissenting in Jones v. Alfred H. Mayer Co., supra, used a different formula in summarizing the "under color of" language in § 242; he said it referred to "action taken pursuant to state or community authority. " 392 U.S. at 392 U. S. 454 . Moreover, he referred to "discriminations which were legitimated by a state or community sanction sufficiently powerful to deserve the name custom.'" Id. at 392 U. S. 457 . (Emphasis added.) See also Monroe v. Pape, supra, at 365 U. S. 193 (HARLAN, J., concurring) ("abuses so recurrent as to amount to `custom, or usage' "). Thus, "under color of law" has not been the only formula used by members of this Court to summarize the parallel language in §§ 242 and 1983. [ Footnote 3/23 ] It is also true that the phrase "under color Page 398 U. S. 215 of law" occurs in the debates on the 1871 Act, see 398 U.S. 144 fn3/25|>n. 25, infra. But since, in the original version of § 1983, as introduced and enacted, the word "law" was the first word in the enumeration following "color of," [ Footnote 3/24 ] the use of "under color of law" as a handy formula in debate is readily explained. More importantly, the phrase has never been taken to be a considered, comprehensive, and authoritative summation of the provisions of § 1983. As this Court said over a century ago and has since repeated, "In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy." United States v. Boisdore's Heirs , 8 How. 113, 49 U. S. 122 (1849) (Taney, C.J.); Mastro Plastics Corp. v. NLRB, 350 U. S. 270 , 350 U. S. 285 (1956); Richards v. United States, 369 U. S. 1 , 369 U. S. 11 (1962); Dandridge v. Williams, 397 U. S. 471 , 397 U. S. 517 (1970) (MARSHALL, J., dissenting). The legislative history of § 1983 provides no direct guidance for the interpretation of the phrase "custom or usage." Much of the lengthy debate concerned the truth of the allegations of KKK outrages and the constitutionality and wisdom of other sections of the Act. Little attention was given to the precise wording of § 1983, and there was no sustained discussion of the meaning of "custom or usage." [ Footnote 3/25 ] Consequently, in my Page 398 U. S. 216 view, we are called on to analyze the purposes Congress sought to achieve by enacting § 1983 in the context of the Civil Rights Act of 1871. Only by relating the Page 398 U. S. 217 phrase "custom or usage" to congressional purposes can we properly interpret and apply the statutory language today. In seeking to determine the purposes of § 1983, it is important to recall that it originated as part of a statute directed against the depredations of a private army. Cong.Globe, 42d Cong., 1st Sess., 339 (remarks of Rep. Kelley, a supporter of the bill). The Klan was recognized by Congress to be a widespread conspiracy "operating wholly outside the law," Jones v. Alfred H. Mayer Co., supra, at 392 U. S. 436 , and employing a variety of methods to coerce Negroes and others to forgo exercise of civil rights theoretically protected by the Constitution and federal statutes. In some areas of the South, the Klan was strong enough to paralyze the operations of state government. As Representative Coburn, a supporter of the bill, noted: "Such, then, is the character of these outrages -- numerous, repeated, continued from month to month and year to year, extending over many States; all similar in their character, aimed at a similar class of citizens; all palliated or excused or Page 398 U. S. 218 justified or absolutely denied by the same class of men. Not like the local outbreaks sometimes appearing in particular districts, where a mob or a band of regulators may for a time commit crimes and defy the law, but having every mark and attribute of a systematic, persistent, well defined organization, with a fixed purpose, with a regular plan of action." "The development of this condition of affairs was not the work of a day, or even of a year. It could not be, in the nature of things; it must be slow; one fact to be piled on another, week after week, year after year. . . ." "Such occurrences show that there is a pre-concerted and effective plan by which thousands of men are deprived of the equal protection of the laws. The arresting power is fettered, the witnesses are silenced, the courts are impotent, the laws are annulled, the criminal goes free, the persecuted citizen looks in vain for redress. This condition of affairs extends to counties and States; it is, in many places, the rule, and not the exception." Cong.Globe, 42d Cong., 1st Sess., 458-459. See also id. at App. 172 (remarks of Sen. Pool, a supporter); id. at 653 (remarks of Sen. Osborn, a supporter); id. at 155-160 (remarks of Sen. Sherman, a supporter). Thus, the mischief that the legislation of 1871 was intended to remedy derived, not from state action, but from concerted "private" action that the States were unwilling or unable to cope with. Senator Schurz, a moderate opponent who, on behalf of the President, had personally investigated the disorders in the South, summed up the condition to be dealt with: "The real evil in the southern States you will find in the baffled pro-slavery tendency prevailing there; Page 398 U. S. 219 in a diseased public sentiment which partly vents itself in violent acts, partly winks at them, and partly permits itself to be overawed by them. That public sentiment is not only terrorizing timid people, but it is corrupting the jury-box, it is overawing the witness-stand, and it is thus obstructing the functions of justice." Id. at 687. Representative [later President] Garfield, a moderate supporter, focused more specifically on one of the principal evils § 1983 was designed to remedy: "[T]he chief complaint is not that the laws of the State are unequal, but that, even where the laws are just and equal on their face, yet, by a systematic maladministration of them, or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them." Id. at App. 153. Accordingly, in his view, § 1983 was intended to provide a remedy in federal court for, inter alia, certain denials of equal protection that occurred even in States with just and equal laws when some private persons acted against others and the State failed to provide protection. Thus, both the House and the Senate were quite aware that the task before them was to devise a scheme of remedies against privately instigated interference with the exercise of constitutional rights, through terror, force of numbers, concerted action, and other means. The debates in both Houses also make it clear that many of those who gave the most careful attention to the conditions that called for the bill, to the provisions of the bill itself, and to the problems of constitutionality and policy it presented did not think that, in § 1983, the Federal Government undertook to provide a federal remedy for every isolated act by private persons that Page 398 U. S. 220 amounted to interference with the exercise of a constitutional right. See, e.g., id. at 578-579 (remarks of Sen. Trumbull, an opponent); id. at 514 (remarks of Rep. Poland, a supporter and conferee); id. at App. 153 (remarks of Rep. Garfield); id. at App. 79 (remarks of Rep. A. Perry, a supporter). [ Footnote 3/26 ] Where, for example, the injury to federal rights was the result of a genuinely individual act of private prejudice, then it could not be said that the state and local authorities were failing to give equal protection by countenancing major interference with the exercise of federal rights. Indeed, in most instances, it could rightly be said that the acts of discrimination were isolated precisely because the State was affirmatively fulfilling its obligation to afford equal protection. In such circumstances, no useful purpose would be served by providing a federal remedy for the isolated wrong, and the resulting federal intrusion into state affairs would be unjustified. Near the conclusion of the debate, Rep. Garfield observed: "I believe, Mr. Speaker, that we have at last secured a bill, trenchant in its provisions, that reaches down into the very heart of the Ku Klux organization, and yet is so guarded as to preserve intact the autonomy of the States, the machinery of the State governments, and the municipal organizations established under State laws." Id. at 808. This statute, "trenchant" but measured, provided a scheme of three civil remedies, currently codified in §§ 1983, 1985, and 1986. In view of the purposes these remedies were designed to achieve, § 1983 would be read too narrowly if it were restricted to acts of state officials and those acting in concert with them. Congress did not say, "Every state official and others acting Page 398 U. S. 221 in concert with him . . ."; Congress said, " [A]ny [now Every ] person who, under color . . ." (emphasis added). Similarly, it would be read too broadly if interpreted to reach acts of purely individual discrimination. As I read § 1983, together with the other sections, against the background of the congressional debates, I understand them to protect the exercise of constitutional rights by reaching three kinds of interference that are sufficiently "major" in their effects to have warranted congressional action. The first category is that involving action under color of authority derived from state government, and this category of invasions is clearly within § 1983. Where state officials or private persons, acting consciously with state support, participate in the interference with the exercise of federal rights, the interference assumes a far graver cast than it otherwise would have, and the authority of the State is brought into conflict with the authority of the Constitution. See, e.g., Monroe v. Pape, supra, at 365 U. S. 238 (opinion of Frankfurter, J.). The second category is that involving conspiracy, which is within the ambit of § 1985. It is well recognized in the criminal law that conspiratorial agreements for concerted action present aggravated dangers to society, see United States v. Rabinowich, 238 U. S. 78 , 238 U. S. 88 (1915); Pinkerton v. United States, 328 U. S. 640 , 328 U. S. 644 (1946); Krulewitch v. United States, 336 U. S. 440 , 336 U. S. 448 -449 (1949) (Jackson, J., concurring); Note, Developments in the Law -- Criminal Conspiracy, 72 Harv.L.Rev. 920, 923-924 (1959), and, for this general reason, as exemplified in the activities of the Ku Klux Klan, Congress provided for a civil remedy against conspiratorial interference with the right to equal protection. [ Footnote 3/27 ] Page 398 U. S. 222 The third category is that where, in the absence of the overt elements of a conspiracy, constitutional rights are violated by widespread habitual practices or conventions regarded as prescribing norms for conduct, and supported by common consent, or official or unofficial community sanctions -- in short, customs and usages. Where violation of constitutional rights is customary, the violation is, by definition, widespread and enduring, and therefore worthy of congressional response. As I read § 1983, that response was made in the provision of a remedy against "[e]very person who, under color of any . . . custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution. . . . [ Footnote 3/28 ]" The excerpts from the congressional debate that I have quoted make clear that Congress wanted a civil remedy not only against conspiratorial violence, but also against the perhaps more subtle but potentially more virulent customary infringements of constitutional rights. The Ku Klux Klan was an extreme reflection of broadly held attitudes toward Negroes and longstanding practices of denying them rights that the Constitution secured for all people. The fundamental evil was a "diseased public sentiment" reflected in multifarious efforts to confine Negroes in their former status of inferiority. Accordingly, a statute designed to reach "down into the very heart of the Ku Klux organization" had to deal with the widespread manifestations of that diseased public Page 398 U. S. 223 sentiment. Respect for constitutional rights was to be "embodied not only in the laws, but intrenched in the daily habits of the American people. . . ." Cong.Globe, 42d Cong., 1st Sess., 339 (remarks of Rep. Kelley). Congress could not legislate popular sentiments, but in providing generally in the Ku Klux Klan Act for the protection of constitutional rights against major types of interference it could, and I think it did in § 1983, provide a remedy against violations that, in particular States were so common as to be customary. As this Court recently said in construing another of the early civil rights statutes, "We think that history leaves no doubt that, if we are to give [the statute] the scope that its origins dictate, we must accord it a sweep as broad as its language." United States v. Price, supra, at 383 U. S. 801 . The language of § 1983 imposes no obstacle to an interpretation carrying out the congressional purposes I have identified. I think it clearly possible for a private person or entity like respondent to "subject" a person or "[cause him] to be subjected . . . to the deprivation" of a constitutional right, as those quoted words are used in § 1983. In Monroe v. Pape, supra, we held that a cause of action was stated under § 1983 by an allegation that police officers invaded petitioners' home in violation of the Fourth and Fourteenth Amendments. Certainly if "deprivation" in § 1983 means something like "extinguishment," then no cause of action could have been stated, for no policeman, nor even any state government as a whole, can extinguish a constitutional right, at least not while this Court sits. Cf. Panhandle Oil Co. v. Knox, 277 U. S. 218 , 277 U. S. 223 (Holmes, J., dissenting). [ Footnote 3/29 ] A constitutional Page 398 U. S. 224 right can be extinguished only by amendment of the Constitution itself. If "deprivation" meant "extinguishment," 1983 -- and also 18 U.S. C § 242 -- would be a nullity. Thus, all the cases finding violations of these sections must be taken to have held that "deprivation" as used in these statutes means, not "extinguishment," but rather something like "violation," "denial," or "infringement." Cf. Jones v. Alfred H. Mayer Co., supra, at 392 U. S. 420 -421; Cong.Globe, 39th Cong., 1st Sess., 605 (remarks of Sen. Trumbull, manager of 1866 Civil Rights bill, on § 242). As the present case illustrates, it is possible for private action in some circumstances to constitute state action violating a constitutional right, and such action amounts to "deprivation" within the meaning of § 1983. In discussing petitioner's contention that respondent acted under color of state law, I have already indicated my understanding of the words "under color of." See supra at 398 U. S. 211 -212. I would apply that understanding here as well. I read "custom, or usage" in 1983 to mean what it has usually meant at common law -- a widespread and longstanding practice, commonly regarded as prescribing norms for conduct, and backed by sanctions. Page 398 U. S. 225 See, e.g., 37 U. S. Lucas, 12 Pet. 410, 37 U. S. 437 , 37 U. S. 445 -446 (1838); United States v. Arredondo , 6 Pet. 691, 31 U. S. 713 -714 (1832). The sanctions need not be imposed by the State. A custom can have the effect or force of law even where it is not backed by the force of the State. See, e.g., 56 U. S. Otterback, 15 How. 539, 56 U. S. 545 (1854); Merchants' Bank v. State Bank , 10 Wall. 604, 77 U. S. 651 (1871); cf. Jones v. Alfred H. Mayer Co., supra, at 392 U. S. 423 . [ Footnote 3/30 ] The power of custom to generate and impose rules of conduct, even without the support of the State, has long been recognized. See, e.g., 68 U. S. Hacket, 1 Wall. 83, 68 U. S. 95 (1864); 1 W. Blackstone, Commentaries *64; B. Cardozo, The Nature of the Judicial Process 58-64 (1921). [ Footnote 3/31 ] Page 398 U. S. 226 Of course, a custom or usage is within § 1983 only if it is a custom of a "State or Territory." It was recognized during the debate on the Ku Klux Klan Act that the word "State" does not refer only to state government. In Texas v. White , 7 Wall. 700, 74 U. S. 720 -721 (1869), [ Footnote 3/32 ] decided just two years before the debate, this Court said of the word "State" as used in the Constitution: "It describes sometimes a people or community of individuals united more or less closely in political relations, inhabiting temporarily or permanently the same country; often it denotes only the country or territorial region inhabited by such a community; not unfrequently, it is applied to the government under which the people live; at other times, it represents the combined idea of people, territory, and government." "It is not difficult to see that, in all these senses, the primary conception is that of a people or community. The people, in whatever territory dwelling, either temporarily or permanently, and whether organized under a regular government or united by looser and less definite relations, constitute the state." "This is undoubtedly the fundamental idea upon which the republican institutions of our own country are established. . . ." "In the Constitution, the term 'state' most frequently expresses the combined idea, just noticed, of people, territory, and government. A state, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a Page 398 U. S. 227 government sanctioned and limited by a written constitution, and established by the consent of the governed." This language was quoted in the debate. See Cong.Globe, 42d Cong., 1st Sess., App. 80 (remarks of Rep. A. Perry). When the word "State" in § 1983 is so understood, then it is not at all strained or tortured -- indeed, it is perfectly natural -- to read "custom" as meaning simply "custom" in the enumeration "statute, ordinance, regulation, custom, or usage, of any State." Moreover, I agree with the Court that, just as an ordinance can be state action, so, too, can a custom of a subdivision of a State be a custom "of [a] State" for purposes of 1983; and, in my view, a custom of the people living in a subdivision is a custom of the subdivision. Thus, a person acts under color of a custom or usage of a State when there is among the people of a State or subdivision of a State a widespread and longstanding practice regarded as prescribing norms for conduct and supported by community sentiment or sanctions, and a person acts in accordance with this custom either from a belief that the norms it prescribes authorize or require his conduct or from a belief that the community at large regards it as authorizing or requiring his conduct. [ Footnote 3/33 ] Page 398 U. S. 228 The Court eschews any attempt to interpret § 1983 against the background of a rational scheme of congressional purposes. Instead, it relies basically on three sets of materials to support its restrictive interpretation of the statute. First are cases; some make casual use of the vague phrase "under color of law" as a summation of the "under color" language of § 1983, and the rest interpret the significance of custom either under an erroneous theory of constitutional law or outside the specific context of 1983 altogether. I have already shown why these cases are hardly relevant, much less controlling, here. See supra at 398 U. S. 213 -214 and n. 22. The Court's second set of authorities consists of three quotations from the legislative history purporting to explain the scope of § 1983. I have already shown that such quotations cannot be set up as a reliable guide to interpretation. See 398 U.S. 144 fn3/25|>n. 25, supra. Given the demonstrable lack of consensus among the debaters on this precise issue, it is highly misleading to select two or three statements arguably favorable to one view and pronounce them authoritative. Moreover, as I have already indicated, see n. 25 supra, the remarks of Representative Shellabarger and Senator Edmunds consist merely of a handy formula for a debate not directed to matters of draftsmanship, and are themselves subject to varying interpretation. Finally, the Court dwells on the relative lack of controversy over § 1983 in contrast to the heated debate over § 2 of the 1871 Act. However, despite Senator Edmunds' complacent prediction, § 1983 was opposed, and opposed vigorously. Senator Johnston commented, "The Senator from Vermont [Senator Edmunds] said that there would be no objection to the first section of the bill. That section, in my view, has only the slight objection of being unconstitutional." Cong.Globe, 42d Cong., 1st Sess., App. 215. Representative Page 398 U. S. 229 McHenry called § 1983 an "outrage," a "flagrant infraction" of the Constitution. Id. at 429. Representative Edward Rice characterized it as bringing "lambs to the slaughter"; it was, he said, "a provision for dragging persons from their homes, from their neighbors, and from the vicinage of the witnesses for the redress of private grievances to the Federal courts." Id. at 395. See also id. at App. 216-217 (remarks of Sen. Thurman). Moreover, the Court does not adequately characterize the controversy over § 2 of the Act. As originally proposed, § 2 would have made a federal crime of any conspiracy in a State to commit an act that, if committed on a federal enclave, would constitute "murder, manslaughter, mayhem, robbery, assault and battery, perjury, subornation of perjury, criminal obstruction of legal process or resistance of officers in discharge of official duty, arson, or larceny." See id. at App. 68-69 (remarks of Rep. Shellabarger). Extreme opponents of the bill attacked this section, as they attacked other sections. Moderate opponents objected not because the section reached private conduct ,but because it ousted the States from a broad range of their criminal jurisdiction even where they were successfully meeting their constitutional obligation to provide equal protection. See, e.g., id. at 366 (remarks of Rep. Arthur, an opponent). Representative Garfield, for example, criticized the original § 2, see id. at App. 153, but praised and voted for the final bill, including § 2, which he understood to reach private conduct, see id. at 807, 808. On its intrinsic merits, the Court's conclusion that custom "for purposes of § 1983 must have the force of law" would be wholly acceptable if the phrase "force of law" meant, as at common law, merely that custom must have the effect of law -- that it be generally regarded as having normative force, whether or not enforced Page 398 U. S. 230 or otherwise supported by government. It is clear, however, that this is not the Court's meaning. The Court takes the position that custom can acquire the force of law only "by virtue of the persistent practices of state officials." Little in the debate supports this narrow reading of the statute. The statement by Representative Garfield on which the Court relies, ante at 398 U. S. 167 , refers not merely to "permanent and well settled" official practices, but more broadly to "systematic maladministration of [the laws], or a neglect or refusal to enforce" them. In short, under Representative Garfield's theory of the Equal Protection Clause, private customary violations of constitutional rights on the basis of race were denials of equal protection because of the failure of the State to prevent or remedy them. Mere state inaction converted customary private discrimination into a denial of equal protection, which Congress, under §§ 1 and 5, had power to remedy. See also Cong.Globe, 42d Cong., 1st Sess., 333-334 (remarks of Rep. Hoar, a moderate supporter); id. at 375 (remarks of Rep. Lowe, a supporter). Our cases have never explicitly held that state inaction alone in the face of purely private discrimination constitutes a denial of equal protection. But cf. Burton v. Wilmington Parking Authority, supra, at 365 U. S. 725 ; Catlette v. United States, 132 F.2d 902, 907 (C.A.4th Cir.1943); Lynch v. United States, 189 F.2d 476 (C.A. 5th Cir.1951); Henkin, Shelley v. Kraemer: Notes for a Revised Opinion, 110 U.Pa.L.Rev. 473 (1962); see also supra at 189. Nevertheless, the constitutional theory of the men who enacted § 1983 remains relevant for our interpretation of its meaning. Representative Garfield's theory of § 1 of the Fourteenth Amendment and of congressional power under §§ 1 and 5 had strong support in the debate. See Harris, supra, n 26. Recognition of that theory -- and a fortiori of the other principal theory among the bill's supporters, the Page 398 U. S. 231 radical view that the Fourteenth Amendment empowers Congress to assert plenary jurisdiction over state affairs, see ibid. -- only provides further confirmation for the conclusion that "custom" in 1983 means custom of the people of a State, not custom of state officials. III Since this case is being remanded, I think it proper to express my views on the kinds of relief to which petitioner may be entitled if she should prevail on the merits. Section 1983 in effect authorizes the federal courts to protect rights "secured by the Constitution and laws" by invoking any of the remedies known to the arsenal of the law. Standards governing the granting of relief under § 1983 are to be developed by the federal courts in accordance with the purposes of the statute and as a matter of federal common law. See Tenney v. Brandhove, 341 U. S. 367 (1951); Monroe v. Pape, supra; Pierson v. Ray, 386 U. S. 547 (1967); Basista v. Weir, 340 F.2d 74, 85-87 (C.A.3d Cir.1965); cf. Sullivan v. Little Hunting Park, 396 U. S. 229 , 396 U. S. 238 240 (1969); J. I. Case Co. v. Borak, 377 U. S. 426 , 377 U. S. 433 -434 (1964). Of course, where justice requires it, federal district courts are duty-bound to enrich the jurisprudence of § 1983 by looking to the remedies provided by the States wherein they sit. 42 U.S.C. § 1988. But resort to state law as such should be had only in cases where, for some reason, federal remedial law is not and cannot be made adequate to carry out the purposes of the statute. Section 1983 does not in general impose strict liability on all who come within its prohibitions; certain broad immunities are recognized. See Tenney v. Brandhove, supra; Monroe v. Pape, supra, at 365 U. S. 187 -192; Pierson v. Ray, supra, at 386 U. S. 553 -555. In some types of cases where the wrong under § 1983 is closely analogous to a wrong Page 398 U. S. 232 recognized in the law of torts, it is appropriate for the federal court to apply the relevant tort doctrines as to the bearing of particular mental elements on the existence and amount of liability. See, e.g., Pierson v. Ray, supra; Whirl v. Kern, 407 F.2d 781 (C.A. 5th Cir.1969). In other types of cases, however, the common law of torts may be divided on important questions of defenses and relief, or it may be inadequate to carry out the purposes of the statute. Thus, the common law is not an infallible guide for the development of § 1983. In particular, denial of equal protection on the basis of race was the central evil that § 1983 was designed to stamp out. Where that is the basis for recovery, relief should not depend on the vagaries of the general common law, but should be governed by uniform and effective federal standards. The appropriateness of any particular remedy in a given case depends on the circumstances of that case, and especially on the degree of culpability of the defendant. In my view, where a plaintiff shows a voluntary denial of equal protection on the ground of race amounting to a violation of § 1983, he is entitled to recover compensation for actual damages, if any, simply on the basis of the proved violation. The question of compensatory damages is one of allocation of actual loss, and, as between the innocent plaintiff and the defendant who deliberately discriminates on the basis of race, I think it just and faithful to the statutory purposes to impose the loss on the discriminator, even if he was unaware that his discrimination constituted state action denying equal protection. Proof of an evil motive or of a specific intent to deprive a person of a constitutional right is generally not required under § 1983. Monroe v. Pape, supra, at 365 U. S. 183 -187; Whirl v. Kern, supra. And, indeed, in Nixon v. Herndon, 273 U. S. 536 (1927), and Lane v. Wilson, 307 U. S. 268 (1939), this Court upheld complaints seeking Page 398 U. S. 233 $5,000 recoveries from state election officials who merely carried out their official duty to prevent the plaintiffs from voting under discriminatory state statutes which made them ineligible to vote. Of course, there may be cases where it would be proper to give declaratory or injunctive relief without damages. See Williams v. Hot Shoppes, Inc., 110 U.S.App.D.C. 358, 370, 293 F.2d 835, 847 (1961) (Bazelon, J., dissenting). To recover punitive damages, I believe a plaintiff must show more than a bare violation of § 1983. On the other hand, he need not show that the defendant specifically intended to deprive him of a recognized federal right, as is required by the word "willfully" in 18 U.S.C. § 242, see Screws v. United States, supra. Nor need he show actual damages. Basista v. Weir, supra, at 87-88; Tracy v. Robbins, 40 F.R.D. 108, 113 (D.C. S.C.1966). It is sufficient for the plaintiff to show either that the defendant acted "under color of [a] statute, ordinance, regulation, custom, or usage of any State or Territory," with actual knowledge that he was violating a right "secured by the Constitution and laws," or that the defendant acted with reckless disregard of whether he was thus violating such a right. Cf. C. McCormick, Handbook on the Law of Damages § 79 (1935). However, in my view, a proprietor of a place of public accommodation who discriminates on the basis of race after our decision in Peterson v. City of Greenville, supra, and the enactment of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a to 2000h-6, does so with reckless disregard as a matter of law, and therefore may be found liable for punitive damages. [ Footnote 3/34 ] Of course, it is proper for the factfinder to consider the degree of recklessness or actual knowledge and other circumstances in assessing the amount of punitive damages to award in a particular case. Page 398 U. S. 234 It may be argued that it is inequitable to impose punitive damages on a defendant, a restaurateur for example, who knowingly or recklessly violates a constitutional right and § 1983 out of fear that he will lose some of his customers if he does not. That argument is plainly unacceptable. The protection of constitutional rights may not be watered down because some members of the public actively oppose the exercise of constitutional rights by others. Cooper v. Aaron, 358 U. S. 1 (1958). To give any weight at all to that argument would be to encourage popular opposition to compliance with the Constitution. Moreover, the argument is particularly devoid of merit in the context of § 1983, which was enacted by a Congress determined to stamp out widespread violations of constitutional rights at virtually any cost, and which imposed liability even on persons who simply failed to prevent certain violations. See Cong.Globe, 41st Cong., 1st Sess., 804 (remarks of Rep. Poland). If § 1983 is given an interpretation befitting its purposes, the threat of withdrawal of patronage will be largely empty, since no other place of public accommodation in the community will be in a better position to discriminate. The prospect of substantial punitive damages may be the most effective means to persuade all proprietors of places of public accommodation to respect constitutional rights. [ Footnote 3/1 ] I do not agree with the statement on page 398 U. S. 150 of the Court's opinion that the "second element [of § 1983] requires that the plaintiff show that the defendant acted under color of law.'" See 398 U. S. infra. [ Footnote 3/2 ] Section 2046.5 reads as follows: "1. Every person, firm or corporation engaged in any public business, trade or profession of any kind whatsoever in the State of Mississippi, including, but not restricted to, hotels, motels, tourist courts, lodging houses, restaurants, dining room or lunch counters, barber shops, beauty parlors, theatres, moving picture shows, or other places of entertainment and amusement, including public parks and swimming pools, stores of any kind wherein merchandise is offered for sale, is hereby authorized and empowered to choose or select the person or persons he or it desires to do business with, and is further authorized and empowered to refuse to sell to, wait upon or serve any person that the owner, manager or employee of such public place of business does not desire to sell to, wait upon or serve. . . ." "2. Any public place of business may, if it so desires, display a sign posted in said place of business serving notice upon the general public that 'the management reserves the right to refuse to sell to, wait upon or serve any person,' however, the display of such a sign shall not be a prerequisite to exercising the authority conferred by this act." "3. Any person who enters a public place of business in this state, or upon the premises thereof, and is requested or ordered to leave therefrom by the owner, manager or any employee thereof, and after having been so requested or ordered to leave, refuses so to do, shall be guilty of a trespass and upon conviction therefor shall be fined not more than five hundred dollars ($500.00) or imprisoned in jail not more than six (6) months, or both such fine and imprisonment. . . ." [ Footnote 3/3 ] The Court found state action on a different ground. [ Footnote 3/4 ] Miss.Laws 1956, c. 466, Senate Concurrent Resolution No. 125. [ Footnote 3/5 ] E.g., Miss.Laws 1956, cc. 258 260 [now Miss.Code Ann. §§ 7787.5, 2351.5, 2351.7]. [ Footnote 3/6 ] E.g., Miss.Laws 1956, c. 254 [now Miss.Code Ann. § 4065.3]. See Inaugural Address of former Governor James P. Coleman, Miss. House Journal 59, 65-68 (1956). See also Miss.Code Ann. § 4065.4 (enacted 1962). [ Footnote 3/7 ] The 1956 session of the Mississippi Legislature produced many statutes and resolutions, including § 2046.5, dealing with the separation of the races. Under the heading "Segregation" in the index to the General Laws volume for that session, there is a cross-reference to "Races." In addition to § 2046.5, Miss.Laws 1956, c. 257, the following chapters of the General Laws of Mississippi, all enacted during February, March, and April, 1956, are cited under that heading: (1) Chapter 241 (maximum ten-year penalty for incestuous or interracial marriage); (2) Chapter 253 [now Miss.Code Ann. §§ 2049-01 to 2049-08] (act "to prohibit the fomenting and agitation of litigation"); (3) Chapter 254 [now Miss.Code Ann. § 4065.3] ("entire executive branch" of state government "to prohibit by any lawful . . . means, the causing of a mixing or integration of the white and Negro races in public schools, public parks, public waiting rooms, public places of amusement, recreation or assembly"); (4) Chapter 255 [now Miss.Code Ann. § 8666] (standards for admitting foreign lawyers to practice in Mississippi); (5) Chapter 256 [now Miss.Code Ann. § 2090.5] (act "to prohibit any person from creating a disturbance or breach of the peace in any public place of business"); (6) Chapter 258 [now Miss.Code Ann. § 7787.5] (act "to require railroad companies, bus companies and other common carriers of passengers owning, operating or leasing depots, bus stations or terminals to provide separate accommodations [ sic ] for the races traveling in intrastate travel"); (7) Chapter 259 [now Miss.Code Ann. § 2351.5] (act "to require railroad companies, bus companies or other common carriers for hire maintaining and operating waiting rooms for passengers to provide separate toilet facilities for the races traveling in intrastate travel"); (8) Chapter 260 [now Miss.Code Ann. § 2351.7] (act "to require all persons traveling in intrastate travel to use and occupy the waiting rooms marked and provided for such persons; to prohibit persons traveling in intrastate travel from entering and using the waiting rooms not marked and provided for such persons"); (9) Chapter 261 (act "to prohibit the use of profane, vulgar, indecent, offensive, slanderous language over a telephone"); (10) Chapter 273 (separate schools to be maintained for white and black children) [ see Miss.Code Ann. § 6220.5 (unlawful for whites to attend integrated schools)]; (11) Chapter 288 (repeal of compulsory education laws); (12) Chapter 365 [now Miss.Code Ann. §§ 9028-31 to 9028-48] (creation of state sovereignty commission); (13) Chapter 466 (Senate Concurrent Resolution No. 125 "condemning and protesting" Brown v. Board of Education ). In addition to the foregoing enactments of 1956, numerous other statutes, in force in 1956 and not thereafter repealed, manifest Mississippi's segregation policies. See, e.g., Miss.Code Ann. § 2339 (punishment for those guilty of "printing, publishing or circulating . . . matter urging or presenting for public acceptance or general information, arguments or suggestions in favor of social equality or of intermarriage between whites and negroes"). Other provisions purport to require segregation in taxicabs (except for servants) (Miss.Code Ann. § 3499); in the State Insane Hospital (Miss.Code Ann. §§ 6882, 6883); and in schools (Miss.Const., Art. 8, § 207). [ Footnote 3/8 ] Miss.Laws 1954, c. 20, Miss.Code Ann. § 2056. The explicit reference to segregation was omitted from the 1968 reenactment of the conspiracy statute. Miss.Code Ann. § 2056 (Supp. 1968). [ Footnote 3/9 ] E.g., Miss.Code Ann. §§ 2087.5, 2087.7, 2089.5 (enacted 1960); § 2087.9 (enacted 1964). [ Footnote 3/10 ] See generally Bailey v. Patterson, 323 F.2d 201 (C.A. 5th Cir.1963). [ Footnote 3/11 ] Cf. United States v. City of Jackson, 318 F.2d 1, 6-7 (C.A. 5th Cir.1963), involving segregation in railroad and bus terminals, where the Court of Appeals noted that "one of the sophisticated methods for circumventing the law is for local police to eschew 'segregation' laws, using in their place conventional breach of peace or trespass laws as instruments for enforcing segregation, euphemistically termed 'separation.'" See also Lewis v. Greyhound Corp., 199 F. Supp. 210 (D.C. M.D. Ala.1961); Bailey v. Patterson, 199 F. Supp. 595 , 609-622 (D.C.S.D. Miss.1961) (Rives, J., dissenting), vacated and remanded, 369 U. S. 31 (1962). [ Footnote 3/12 ] See Donnell v. State, 48 Miss. 661, 680-681 (1873): "Among those customs which we call the common law, that have come down to us from the remote past, are rules which have a special application to those who sustain a quasi -public relation to the community. The wayfarer and the traveler had a right to demand food and lodging from the innkeeper; the common carrier was bound to accept all passengers and goods offered for transportation, according to his means. Soo, [ sic ] too, all who applied for admission to the public shows and amusements were entitled to admission, and, in each instance, for a refusal, an action on the case lay, unless sufficient reason were shown. The [state civil rights] statute deals with subjects which have always been under legal control." [ Footnote 3/13 ] The state civil rights law of 1873 took the form of an amendment to Miss.Rev.Code §§ 2731, 2732 (1871), which forbade, inter alia, segregation of the races on railroads, stage coaches, and steamboats. None of the provisions of the amended statutes, though apparently never explicitly repealed, appear in the 1880 Mississippi Code or in subsequent codifications of state law. In 1888, the Mississippi Legislature enacted a criminal statute that provided that "all railroads . . . shall provide equal but separate accommodations for the white and colored races," and that all prior statutes in conflict therewith were repealed pro tanto. Miss.Laws 1888, c. 27. [ Footnote 3/14 ] Also see McCabe v. Atchison, Topeka & Santa Fe R. Co., 235 U. S. 151 (1914); Evans v. Abney, 396 U. S. 435 , 396 U. S. 457 -458 (1970) (BRENNAN, J., dissenting); Evans v. Newton, 382 U. S. 296 , 382 U. S. 302 -312 (1966) (opinion of WHITE, J.); Burton v. Wilmington Parking Authority, supra, at 365 U. S. 726 -727 (STEWART, J., concurring). See also Mulkey v. Reitman, supra. [ Footnote 3/15 ] As originally enacted, § 1 of the 1871 Act provided: "That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress; such proceeding to be prosecuted in the several district or circuit courts of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts, under the provisions of the act of the ninth of April, eighteen hundred and sixty-six, entitled 'An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication'; and the other remedial laws of the United States which are in their nature applicable in such cases." Section 1983 presently provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." The language was changed without comment into its present form when § 1 was codified in 1874 as Revised Statutes § 1979. See id.; 1 Revision of U.S. Statutes, Draft 947 (1872). The jurisdictional provisions of the 1871 Act now appear in 28 U.S.C. § 1343. For purposes of this opinion, I assume that the linguistic differences between the original § 1 and present § 1983 are immaterial. See Monroe v. Pape, 365 U. S. 167 , 365 U. S. 212 -213, n. 18 (1961) (opinion of Frankfurter, J.); cf. Jones v. Alfred H. Mayer Co., 392 U. S. 409 , 392 U. S. 422 -423, n. 29 (1968). [ Footnote 3/16 ] The military remedy, designed to become available when the other remedies were inadequate, was created by § 3 of the 1871 Act, now 10 U.S.C. § 333. See generally Comment, Federal Intervention in the States for the Suppression of Domestic Violence: Constitutionality, Statutory Power, and Policy, 1966 Duke L.J. 415. [ Footnote 3/17 ] Numerous other criminal and civil remedies had been created by prior civil rights acts, principally to protect voting rights. See § 6 of the 1866 Act, 14 Stat. 28; §§ 2, 3, 4, 5, 7, 11, 15, 19, 20, and 22 of the 1870 Act, 16 Stat. 140 et seq.; §§ 1, 10, and 11 of the Act of Feb. 28, 1871, 16 Stat. 433, 436, 437. All of these statutes have been repealed, see 28 Stat. 36 (1894); 35 Stat. 1088, 1153 (1909), some after having been declared unconstitutional. See, e.g., United States v. Reese, 92 U. S. 214 (1876) (§§ 3, 4 of 1870 Act held unconstitutional); James v. Bowman, 190 U. S. 127 (1903) (§ 5 of 1870 Act held unconstitutional). [ Footnote 3/18 ] See generally Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich.L.Rev. 1323 (1952). [ Footnote 3/19 ] Guest was an appeal from the dismissal of an indictment for failure to state an offense under the laws of the United States. [ Footnote 3/20 ] See generally Cox, Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 Harv.L.Rev. 91 (1966). [ Footnote 3/21 ] For purposes of this part of the opinion, I put aside petitioner's allegation of a conspiracy. [ Footnote 3/22 ] Mr. Justice Frankfurter made a passing reference to "custom" in his separate opinion in Monroe v. Pape, supra, at 365 U. S. 246 ; see infra at 398 U. S. 216 , n. 25. In the lower courts, the phrase "custom or usage" has not received thorough consideration, and has been given different interpretations. Compare Williams v. Hot Shoppes, Inc., 110 U.S.App.D.C. 358, 363-364, 293 F.2d 835, 840-841 (1961) with Gannon v. Action, 303 F. Supp. 1240 (D.C.E.D.Mo.1969). In the Hot Shoppes case, the court construed "custom or usage" to include a state action requirement; but it did so solely on the basis of doubts about congressional power to reach private interference with Fourteenth Amendment rights. Those doubts have now been completely removed by decisions of this Court. See supra at 398 U. S. 208 -210. In two other cases, Williams v. Howard Johnson's Restaurant, 268 F.2d 845 (C.A.4th Cir.1959), and Williams v. Howard Johnson's, Inc., 323 F.2d 102 (C.A.4th Cir.1963), on subsequent appeal sub nom. Williams v. Lewis, 342 F.2d 727 (C.A.4th Cir.1965) (en banc), the Court of Appeals for the Fourth Circuit held that private custom and usage did not amount to state action. In each case, the court dealt with custom and usage under the first element of § 1983 -- deprivation of a constitutional right -- and not under the second element -- action under color of statute, ordinance, regulation, custom, or usage. Those two decisions were constructions of the Equal Protection Clause, not of § 1983. The same is true of Slack v. Atlantic White Tower System, 181 F. Supp. 124 (D.C. Md.), aff'd, 284 F.2d 746 (C.A.4th Cir.1960), cited by the Court. Moreover, in that case, the court had no occasion to consider the elements of a § 1983 custom, because it took judicial notice of reports showing that, in the defendant's area, there was, in fact, no custom of restaurant segregation in any sense. See 181 F. Supp. at 126. [ Footnote 3/23 ] As presently codified, § 242 begins: "Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. . . ." This language differs from the comparable language of § 1983, 398 U.S. 144 fn3/15|>n. 15, supra, in several respects. For example: "law" precedes "statute" in § 242, but not in § 1983; "or usage" follows "custom" in § 1983, but not in § 242; the entire enumeration "statute . . . usage" is qualified by "of any State or Territory" in § 1983, but not in § 242; § 1983 refers to rights that are "secured," whereas § 242 refers to rights "secured or protected"; § 1983 covers rights secured "by the Constitution and laws " (emphasis added), whereas § 242 covers rights secured or protected "by the Constitution or laws of the United States" (emphasis added); § 242 reaches only acts done "willfully," but § 1983 is not so limited. As originally enacted, § 1983 was modeled on the precursor of § 242, with differences of coverage not material here. See Cong.Globe, 42d Cong., 1st Sess., App. 68 (remarks of Rep. Shellabarger). Apart from the inclusion of the word "willfully" in § 242, see Monroe v. Pape, supra, at 365 U. S. 187 , the linguistic differences mentioned here have not been thought to be substantive. See, e.g.,id. at 365 U. S. 185 ; id. at 365 U. S. 212 -213, n. 18 (opinion of Frankfurter, J.); United States v. Price, supra, at 383 U. S. 794 n. 7. [ Footnote 3/24 ] See 398 U.S. 144 fn3/15|>n. 15 supra. [ Footnote 3/25 ] The legislative history concerning the precise congressional understanding of "custom or usage" is inconclusive. At least four possible interpretations were suggested. Representative Blair, an opponent of the bill, argued that § 1983 operated only against state legislation, and, as such, would be a nullity. See Cong.Globe, 42d Cong., 1st Sess., App. 209; see also id. at App. 268 (remarks of Rep. Sloss, an opponent). Our cases squarely reject any such limited construction of § 1983. See, e.g., Monroe v. Pape, supra. A second view was that § 1983 reached deprivations of constitutional rights under "color of law." See, e.g., id. at App. 68 (remarks of Rep. Shellabarger); id. at 568 (remarks of Sen. Edmunds); but see id. at 697-698 (remarks of Sen. Edmunds). Since Representative Shellabarger and Senator Edmunds were the managers of the bill, their commentary would ordinarily be entitled to great weight; but at no point did either explain what he meant by "color of law." Representative Kerr, an opponent, employed the formula "color of state laws," but predicted that § 1983 would give rise to a flood of litigation involving all types of injury to person or property. See id. at App. 50. A third view was reflected in the comment of Senator Thurman, an opponent, who said in passing that § 1983 "refers to a deprivation under color of law, either statute law or custom or usage' which has become common law." Id. at App. 217. There is little or no further support in the debate for this reading of the statute, though it apparently was adopted without discussion by Mr. Justice Frankfurter, see Monroe v. Pape, supra, at 365 U. S. 246 (opinion of Frankfurter, J.). The precise meaning of Senator Thurman's formula is unclear. He may have been referring to customs that had been expressly recognized and approved by state courts, or he may have had in mind the ancient principle that a general custom as such "is really a part of the common law itself." Louisville & Nashville R. Co. v. Reverman, 243 Ky. 702, 707, 49 S.W.2d 558, 560 (1932). See 1 W. Blackstone, Commentaries **68-74. Moreover, Senator Thurman joined several others in taking a fourth position: that § 1983 reaches private persons. See id. at App. 216-217 (remarks of Sen. Thurman); id. at App. 215 (remarks of Sen. Johnston, an opponent); id. at 429 (remarks of Rep. McHenry, an opponent); id. at 395 (remarks of Rep. Rice, an opponent); cf. id. at 804 (remarks of Rep. Poland, a supporter and conferee). Other speeches during the debate and consideration of the purposes of the statute make it clear that Congress did not intend to reach every private interference with a constitutional right. See infra at 398 U. S. 219 -220. Finally, two members of the House expressed a view compatible with any of the preceding positions: they thought the principal effect of § 1983 was to remove the possible defense that the defendant acted under state authority. See id. at 416 (remarks of Rep. Biggs, an opponent); id. at App. 310 (remarks of Rep. Maynard, a supporter). Section 1983 was patterned after § 2 of the Civil Rights Act of 1866, 14 Stat. 27. See Cong.Globe, 42d Cong., 1st Sess., App. 68 (remarks of Rep. Shellabarger). The legislative history of the latter section is no more enlightening on the precise meaning of "under color of any law, statute, ordinance, regulation, or custom" than are the comments on the similar language in § 1983. See Cong.Globe, 39th Cong., 1st Sess., 1680 (veto message of President Johnson); id. at 1120 (remarks of Rep. Loan, a supporter, and Rep. J. Wilson, a manager); id. at 1778 (remarks of Sen. Johnson, an opponent); id. at 1785 (remarks of Sen. Stewart, a supporter); id. at 475, 500, 1758 (remarks of Sen. Trumbull, a manager). Similar language appeared in § 8 of the Freedmen's Bureau bill, which was also debated at the first session of the 39th Congress. In addition, the word "custom" appeared in § 7 of the bill. See id. at 209. However, the precise language of both sections received virtually no attention during debate. There was, though, some indication that custom was recognized as different from law. See id. at 318 (remarks of Sen. Hendricks, an opponent). See also 398 U.S. 144 fn3/29|>n. 29, infra. [ Footnote 3/26 ] See generally R. Harris, The Quest for Equality 44-50 (1960). [ Footnote 3/27 ] I consider the narrow construction given to § 1985 in Collins v. Hardyman, 341 U. S. 651 (1951), as no longer binding. See supra at 398 U. S. 206 -210. [ Footnote 3/28 ] Section 1986 fits into this legislative scheme by providing a remedy against individuals who share responsibility for conspiratorial wrongs under § 1985 by failing to make reasonable use of their power to prevent the perpetration of such wrongs. [ Footnote 3/29 ] I think this is also an adequate answer to the argument made in the Civil Rights Cases, supra, at 109 U. S. 17 , that a private party differs from a State in that the former cannot, whereas the latter can, deprive a person of a constitutional right in the sense of extinguishing that right. Neither a private person nor a State can extinguish or impair a constitutional right, although a State can certainly violate, infringe, or fail to protect a constitutional right. A private person can violate or infringe a constitutional right when, due to some factual circumstances, his action constitutes state action, or when his wholly private conduct violates some constitutional prohibition of such conduct, e.g., § 1 of the Thirteenth Amendment. Cf. Civil Rights Cases, supra, at 109 U. S. 20 ; Clyatt v. United States, 197 U. S. 207 , 197 U. S. 216 (1905); Bailey v. Alabama, 219 U. S. 219 , 219 U. S. 241 (1911). A private person can also, of course, by wholly private conduct interfere with the exercise or enjoyment of constitutional rights that run only against the States. United States v. Guest, supra, at 383 U. S. 774 -784 (opinion of BRENNAN, J.). Thus, interference can occur even where there has been no violation of the constitutional right by a part having a duty correlative to it. [ Footnote 3/30 ] In Jones v. Alfred H. Mayer Co., supra, at 392 U. S. 423 n. 30, the Court noted that the same session of Congress that passed the Civil Rights Act of 1866 also passed a Freedmen's Bureau bill, § 7 of which extended military jurisdiction over parts of the South where, "in consequence of any State or local law, ordinance, police, or other regulation, custom, or prejudice, any of the civil rights . . . belonging to white persons . . . are refused or denied to [N]egroes . . . on account of race, color, or any previous condition of slavery or involuntary servitude. . . ." See Cong.Globe, 39th Cong., 1st Sess., 209 318. The Court pointed out that, although the bill was vetoed by President Johnson, it "was nonetheless significant for its recognition that the 'right to purchase [property]' was a right that could be 'refused or denied' by 'custom or prejudice' as well as by 'state or local law.'" The Court also observed: "Of course, an "abrogation of civil rights made in consequence of . . . custom, or prejudice' might as easily be perpetrated by private individuals or by unofficial community activity as by state officers armed with statute or ordinance."" [ Footnote 3/31 ] I agree with the Court, for the reasons stated in its opinion, that the relevant custom in this case would be one of segregating the races in dining facilities, rather than one of refusing to serve white persons in the company of Negroes. Of course, I do not agree that the custom must be shown to have been "state-enforced." [ Footnote 3/32 ] Texas v. White was overruled on an unrelated issue in Morgan v. United States, 113 U. S. 476 , 113 U. S. 496 (1885). Thereafter, it was quoted approvingly on the meaning of "State" in McPherson v. Blacker, 146 U. S. 1 , 146 U. S. 25 (1892). [ Footnote 3/33 ] It is only superficially odd that a violation of a constitutional right may be actionable under § 1983 if the violation occurs in one State where there is a custom, but not in another State where there is not. In both cases, it would be just to impose liability on the violator. However, Congress was interested in providing a remedy only against what I have called "major" violations, and it is for that reason that liability may vary from one State to another. Similarly, privately chosen discrimination will constitute state action in some States, but not in others, depending on the public policies of the different States. That result, too, is dictated by sound considerations of principle and policy, though reflected in the Constitution, rather than in a statute. [ Footnote 3/34 ] Moreover, there was evidence below that respondent's attention was expressly called to the Civil Rights Act.

The Supreme Court held that the District Court erred in granting summary judgment on the conspiracy count, as there was a possibility that a policeman was in the store during the incident, which would constitute state action and provide the basis for a violation of the petitioner's Fourteenth Amendment rights. The court also clarified that private persons involved in such a conspiracy could be liable under 42 U.S.C. § 1983.

Lawsuits & Legal Procedures

Mathews v. Eldridge

https://supreme.justia.com/cases/federal/us/424/319/

U.S. Supreme Court Mathews v. Eldridge, 424 U.S. 319 (1976) Mathews v. Eldridge No. 74-204 Argued October 6, 1975 Decided February 24, 1976 424 U.S. 319 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Syllabus In order to establish initial and continued entitlement to disability benefits under the Social Security Act (Act), a worker must demonstrate that, inter alia, he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . . ." The worker bears the continuing burden of showing, by means of "medically acceptable . . . techniques" that his impairment is of such severity that he cannot perform his previous work or any other kind of gainful work. A state agency makes the continuing assessment of the worker's eligibility for benefits, obtaining information from the worker and his sources of medical treatment. The agency may arrange for an independent medical examination to resolve conflicting information. If the agency's tentative assessment of the beneficiary's condition differs from his own, the beneficiary is informed that his benefits may be terminated, is provided a summary of the evidence, and afforded an opportunity to review the agency's evidence. The state agency then makes a final determination, which is reviewed by the Social Security Administration (SSA). If the SSA accepts the agency determination, it gives written notification to the beneficiary of the reasons for the decision and of his right to de novo state agency reconsideration. Upon acceptance by the SSA, benefits are terminated effective two months after the month in which recovery is found to have occurred. If, after reconsideration by the state agency and SSA review, the decision remains adverse to the recipient, he is notified of his right to an evidentiary hearing before an SSA administrative law judge. If an adverse decision results, the recipient may request discretionary review by the SSA Appeals Council, and finally may obtain judicial review. If it is determined after benefits are terminated that the claimant's disability extended beyond the date of cessation initially established, he is entitled to retroactive payments. Retroactive adjustments are also made for overpayments. A few years after respondent was first awarded disability benefits, he received and completed a questionnaire Page 424 U. S. 320 from the monitoring state agency. After considering the information contained therein and obtaining reports from his doctor and an independent medical consultant, the agency wrote respondent that it had tentatively determined that his disability had ceased in May, 1972, and advised him that he might request a reasonable time to furnish additional information. In a reply letter, respondent disputed one characterization of his medical condition and indicated that the agency had enough evidence to establish his disability. The agency then made its final determination reaffirming its tentative decision. This determination was accepted by the SSA, which notified respondent in July that his benefits would end after that month and that he had a right to state agency reconsideration within six months. Instead of requesting such reconsideration, respondent brought this action challenging the constitutionality of the procedures for terminating disability benefits and seeking reinstatement of benefits pending a hearing. The District Court, relying in part on Goldberg v. Kelly, 397 U. S. 254 , held that the termination procedures violated procedural due process and concluded that prior to termination of benefits respondent was entitled to an evidentiary hearing of the type provided welfare beneficiaries under Title IV of the Act. The Court of Appeals affirmed. Petitioner contends, inter alia, that the District Court is barred from considering respondent's action by Weinberger v. Salfi, 422 U. S. 749 , which held that district courts are precluded from exercising jurisdiction over an action seeking a review of a decision of the Secretary of Health, Education, and Welfare regarding benefits under the Act except as provided in 42 U.S.C. § 405(g), which grants jurisdiction only to review a "final" decision of the Secretary made after a hearing to which he was a party. Held: 1. The District Court had jurisdiction over respondent's constitutional claim, since the denial of his request for benefits was a final decision with respect to that claim for purposes of § 405(g) jurisdiction. Pp. 424 U. S. 326 -332. (a) The § 405(g) finality requirement consists of the waivable requirement that the administrative remedies prescribed by the Secretary be exhausted and the nonwaivable requirement that a claim for benefits shall have been presented to the Secretary. Respondent's answers to the questionnaire and his letter to the state agency specifically presented the claim that his benefits should not be terminated because he was still disabled, and thus satisfied the nonwaivable requirement. Pp. 424 U. S. 328 -330. Page 424 U. S. 321 (b) Although respondent concededly did not exhaust the Secretary's internal review procedures, and ordinarily only the Secretary has the power to waive exhaustion, this is a case where the claimant's interest in having a particular issue promptly resolved is so great that deference to the Secretary's judgment is inappropriate. The facts that respondent's constitutional challenge was collateral to his substantive claim of entitlement, and that (contrary to the situation in Salfi ) he colorably claimed that an erroneous termination would damage him in a way not compensable through retroactive payments warrant the conclusion that the denial of his claim to continued benefits was a sufficiently "final decision" with respect to his constitutional claim to satisfy the statutory exhaustion requirement. Pp. 424 U. S. 330 -332. 2. An evidentiary hearing is not required prior to the termination of Social Security disability payments, and the administrative procedures prescribed under the Act fully comport with due process. Pp. 424 U. S. 332 -349. (a) "[D]ue process is flexible and calls for such procedural protections as the particular situation demands," Morrissey v. Brewer, 408 U. S. 471 , 408 U. S. 481 . Resolution of the issue here involving the constitutional sufficiency of administrative procedures prior to the initial termination of benefits and pending review, requires consideration of three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional procedural safeguards; and (3) the Government's interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail. Pp. 424 U. S. 332 -335. (b) The private interest that will be adversely affected by an erroneous termination of benefits is likely to be less in the case of a disabled worker than in the case of a welfare recipient, like the claimants in Goldberg, supra. Eligibility for disability payments is not based on financial need, and, although hardship may be imposed upon the erroneously terminated disability recipient, his need is likely less than the welfare recipient. In view of other forms of government assistance available to the terminated disability recipient, there is less reason than in Goldberg to depart from the ordinary principle that something less than an evidentiary hearing is sufficient prior to adverse administrative action. Pp. 424 U. S. 339 -343. (c) The medical assessment of the worker's condition implicates Page 424 U. S. 322 a more sharply focused and easily documented decision than the typical determination of welfare entitlement. The decision whether to discontinue disability benefits will normally turn upon "routine, standard, and unbiased medical repots by physician specialists," Richardson v. Perales, 402 U. S. 389 , 402 U. S. 40 . In a disability situation, the potential value of an evidentiary hearing is thus substantially less than in the welfare context. Pp. 424 U. S. 343 -345. (d) Written submissions provide the disability recipient with an effective means of communicating his case to the decisionmaker. The detailed questionnaire identifies with particularity the information relevant to the entitlement decision. Information critical to the decision is derived directly from medical sources. Finally, prior to termination of benefits, the disability recipient or his representative is afforded full access to the information relied on by the state agency, is provided the reasons underlying its tentative assessment, and is given an opportunity to submit additional arguments and evidence. Pp. 424 U. S. 345 -346. (e) Requiring an evidentiary hearing upon demand in all cases prior to the termination of disability benefits would entail fiscal and administrative burdens out of proportion to any countervailing benefits. The judicial model of an evidentiary hearing is neither a required, nor even the most effective, method of decisionmaking in all circumstances, and here, where the prescribed procedures not only provide the claimant with an effective process for asserting his claim prior to any administrative action, but also assure a right to an evidentiary hearing, as well as subsequent judicial review before the denial of his claim becomes final, there is no deprivation of procedural due process. Pp. 424 U. S. 347 -349. 493 F.2d 1230, reversed. POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and REHNQUIST, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 424 U. S. 349 . STEVENS, J., took no part in the consideration or decision of the case. Page 424 U. S. 323 MR. JUSTICE POWELL delivered the opinion of the Court. The issue in this case is whether the Due Process Clause of the Fifth Amendment requires that, prior to the termination of Social Security disability benefit payments, the recipient be afforded an opportunity for an evidentiary hearing. I Cash benefits are provided to workers during periods in which they are completely disabled under the disability insurance benefits program created by the 1956 amendments to Title II of the Social Security Act. 70 Stat. 815, 42 U.S.C. § 423. [ Footnote 1 ] Respondent Eldridge was first awarded benefits in June, 1968. In March, 1972, he received a questionnaire from the state agency charged with monitoring his medical condition. Eldridge completed Page 424 U. S. 324 the questionnaire, indicating that his condition had not improved and identifying the medical sources, including physicians, from whom he had received treatment recently. The state agency then obtained reports from his physician and a psychiatric consultant. After considering these reports and other information in his file, the agency informed Eldridge by letter that it had made a tentative determination that his disability had ceased in May, 1972. The letter included a statement of reasons for the proposed termination of benefits, and advised Eldridge that he might request reasonable time in which to obtain and submit additional information pertaining to his condition. In his written response, Eldridge disputed one characterization of his medical condition and indicated that the agency already had enough evidence to establish his disability. [ Footnote 2 ] The state agency then made its final determination that he had ceased to be disabled in May, 1972. This determination was accepted by the Social Security Administration (SSA), which notified Eldridge in July that his benefits would terminate after that month. The notification also advised him of his right to seek reconsideration by the state agency of this initial determination within six months. Instead of requesting reconsideration, Eldridge commenced this action challenging the constitutional validity Page 424 U. S. 325 of the administrative procedures established by the Secretary of Health, Education, and Welfare for assessing whether there exists a continuing disability. He sought an immediate reinstatement of benefits pending a hearing on the issue of his disability. [ Footnote 3 ] 361 F. Supp. 520 (WD Va.1973). The Secretary moved to dismiss on the grounds that Eldridge's benefits had been terminated in accordance with valid administrative regulations and procedures and that he had failed to exhaust available remedies. In support of his contention that due process requires a pre-termination hearing, Eldridge relied exclusively upon this Court's decision in Goldberg v. Kelly, 397 U. S. 254 (1970), which established a right to an "evidentiary hearing" prior to termination of welfare benefits. [ Footnote 4 ] The Secretary contended that Goldberg was not controlling, since eligibility for disability benefits, unlike eligibility for welfare benefits, is not based on financial need, and since issues of credibility and veracity do not play a significant role in the disability entitlement decision, which turns primarily on medical evidence. The District Court concluded that the administrative procedures pursuant to which the Secretary had terminated Eldridge's benefits abridged his right to procedural Page 424 U. S. 326 due process. The court viewed the interest of the disability recipient in uninterrupted benefits as indistinguishable from that of the welfare recipient in Goldberg. It further noted that decisions subsequent to Goldberg demonstrated that the due process requirement of pre-termination hearings is not limited to situations involving the deprivation of vital necessities. See Fuentes v. Shevin, 407 U. S. 67 , 407 U. S. 88 -89 (1972); Bell v. Burson, 402 U. S. 535 , 402 U. S. 539 (1971). Reasoning that disability determinations may involve subjective judgments based on conflicting medical and nonmedical evidence, the District Court held that, prior to termination of benefits, Eldridge had to be afforded an evidentiary hearing of the type required for welfare beneficiaries under Title IV of the Social Security Act. 361 F. Supp. at 528 . [ Footnote 5 ] Relying entirely upon the District Court's opinion, the Court of Appeals for the Fourth Circuit affirmed the injunction barring termination of Eldridge's benefits prior to an evidentiary hearing. 493 F.2d 1230 (1974). [ Footnote 6 ] We reverse. II At the outset, we are confronted by a question as to whether the District Court had jurisdiction over this suit. The Secretary contends that our decision last Term in Weinberger v. Salfi, 422 U. S. 749 (1975), bars the District Court from considering Eldridge's action. Salfi was an action challenging the Social Security Act's Page 424 U. S. 327 "duration of relationship" eligibility requirements for surviving wives and stepchildren of deceased wage earners. We there held that 42 U.S.C. § 405(h) [ Footnote 7 ] precludes federal question jurisdiction in an action challenging denial of claimed benefits. The only avenue for judicial review is 42 U.S.C. § 405(g), which requires exhaustion of the administrative remedies provided under the Act as a jurisdictional prerequisite. Section 405(g) in part provides: "Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. [ Footnote 8 ] " Page 424 U. S. 328 On its face, § 405(g) thus bars judicial review of any denial of a claim of disability benefits until after a "final decision" by the Secretary after a "hearing." It is uncontested that Eldridge could have obtained full administrative review of the termination of his benefits, yet failed even to seek reconsideration of the initial determination. Since the Secretary has not "waived" the finality requirement as he had in Salfi, supra at 422 U. S. 767 , he concludes that Eldridge cannot properly invoke § 405(g) as a basis for jurisdiction. We disagree. Salfi identified several conditions which must be satisfied in order to obtain judicial review under § 405(g). Of these, the requirement that there be a final decision by the Secretary after a hearing was regarded as "central to the requisite grant of subject matter jurisdiction . . ." 422 U.S. at 422 U. S. 764 . [ Footnote 9 ] Implicit in Salfi, however, is the principle that this condition consists of two elements, only one of which is purely "jurisdictional" in the sense that it cannot be "waived" by the Secretary in a particular case. The waivable element is the requirement that the administrative remedies prescribed by the Secretary be exhausted. The nonwaivable element is the requirement that a claim for benefits shall have been presented to the Secretary. Absent such a claim, there can be no "decision" of any type. And some decision by the Secretary is clearly required by the statute. Page 424 U. S. 329 That this second requirement is an essential and distinct precondition for § 405(g) jurisdiction is evident from the different conclusions that we reached in Salfi with respect to the named appellees and the unnamed members of the class. As to the latter, the complaint was found to be jurisdictionally deficient, since it "contain[ed] no allegations that they have even filed an application with the Secretary. . . ." 422 U.S. at 422 U. S. 764 . With respect to the named appellees, however, we concluded that the complaint was sufficient, since it alleged that they had "fully presented their claims for benefits to their district Social Security Office and, upon denial, to the Regional Office for reconsideration.'" Id. at 422 U. S. 764 -765. Eldridge has fulfilled this crucial prerequisite. Through his answers to the state agency questionnaire, and his letter in response to the tentative determination that his disability had ceased, he specifically presented the claim that his benefits should not be terminated because he was still disabled. This claim was denied by the state agency, and its decision was accepted by the SSA. The fact that Eldridge failed to raise with the Secretary his constitutional claim to a pre-termination hearing is not controlling. [ Footnote 10 ] As construed in Salfi, § 405(g) requires only that there be a "final decision" by the Secretary with respect to the claim of entitlement to benefits. Indeed, the named appellees in Salfi did not present their constitutional claim to the Secretary. Weinberger v. Salfi, O.T. 1974, No. 74-214, App. 11, 17-21. The situation here is not identical to Salfi, for, while the Page 424 U. S. 330 Secretary had no power to amend the statute alleged to be unconstitutional in that case, he does have authority to determine the timing and content of the procedures challenged here. 4 2 U.S.C. § 405(a). We do not, however, regard this difference as significant. It is unrealistic to expect that the Secretary would consider substantial changes in the current administrative review system at the behest of a single aid recipient raising a constitutional challenge in an adjudicatory context. The Secretary would not be required even to consider such a challenge. As the nonwaivable jurisdictional element was satisfied, we next consider the waivable element. The question is whether the denial of Eldridge's claim to continued benefits was a sufficiently "final" decision with respect to his constitutional claim to satisfy the statutory exhaustion requirement. Eldridge concedes that he did not exhaust the full set of internal review procedures provided by the Secretary. See 20 CFR §§ 404.910, 404.916, 404.940 (1975). As Salfi recognized, the Secretary may waive the exhaustion requirement if he satisfies himself, at any stage of the administrative process, that no further review is warranted either because the internal needs of the agency are fulfilled or because the relief that is sought is beyond his power to confer. Salfi suggested that, under § 405(g), the power to determine when finality has occurred ordinarily rests with the Secretary, since ultimate responsibility for the integrity of the administrative program is his. But cases may arise where a claimant's interest in having a particular issue resolved promptly is so great that deference to the agency's judgment is inappropriate. This is such a case. Eldridge's constitutional challenge is entirely collateral to his substantive claim of entitlement. Moreover, there Page 424 U. S. 331 is a crucial distinction between the nature of the Constitutional claim asserted here and that raised in Salfi. A claim to a pre-deprivation hearing as a matter of constitutional right rests on the proposition that full relief cannot be obtained at a post-deprivation hearing. See Regional Rail Reorganization Act Cases, 419 U. S. 102 , 419 U. S. 156 (1974). In light of the Court's prior decisions, see, e.g., Goldberg v. Kelly, 397 U. S. 254 (1970); Fuentes v. Shevin, 407 U. S. 67 (1972), Eldridge has raised at least a colorable claim that, because of his physical condition and dependency upon the disability benefits, an erroneous termination would damage him in a way not recompensable through retroactive payments. [ Footnote 11 ] Thus, unlike the situation in Salfi, denying Eldridge's substantive Page 424 U. S. 332 claim "for other reasons" or upholding it "under other provisions" at the post-termination stage, 422 U.S. at 422 U. S. 762 , would not answer his constitutional challenge. We conclude that the denial of Eldridge's request for benefits constitutes a final decision for purposes of § 405(g) jurisdiction over his constitutional claim. We now proceed to the merits of that claim. [ Footnote 12 ] III A Procedural due process imposes constraints on governmental decisions which deprive individuals of "liberty" or "property" interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment. The Secretary does not contend that procedural due process is inapplicable to terminations of Social Security disability benefits. He recognizes, as has been implicit in our prior decisions, e.g., Richardson v. Belcher, 404 U. S. 78 , 404 U. S. 80 -81 (1971); Richardson v. Perales, 402 U. S. 389 , 402 U. S. 401 -402 (1971); Flemming v. Nestor, 363 U. S. 603 , 363 U. S. 611 (1960), that the interest of an individual in continued receipt of these benefits is a statutorily created "property" interest protected by the Fifth Amendment. Cf. Arnett v. Kennedy, 416 U. S. 134 , 416 U. S. 166 (POWELL, J., concurring in part) (1974); Board of Regents v. Roth, 408 U. S. 564 , 408 U. S. 576 -578 (1972); Bell v Burson, 402 U.S. at 402 U. S. 539 ; Goldberg v. Kelly, 397 U.S. at 397 U. S. 261 -262. Rather, the Secretary contends that the existing administrative procedures, detailed below, provide all the process Page 424 U. S. 333 that is constitutionally due before a recipient can be deprived of that interest. This Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest. Wolff v. McDonnell, 418 U. S. 539 , 418 U. S. 557 -558 (1974). See, e.g., Phillips v. Commissioner, 283 U. S. 589 , 283 U. S. 596 -597 (1931). See also Dent v. West Virginia, 129 U. S. 114 , 129 U. S. 124 -125 (1889). The "right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society." Joint Anti-Fascist Comm. v. McGrath, 341 U. S. 123 , 341 U. S. 168 (1951) (Frankfurter, J., concurring). The fundamental requirement of due process is the opportunity to be heard "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U. S. 545 , 380 U. S. 552 (1965). See Grannis v. Ordean, 234 U. S. 385 , 234 U. S. 394 (1914). Eldridge agrees that the review procedures available to a claimant before the initial determination of ineligibility becomes final would be adequate if disability benefits were not terminated until after the evidentiary hearing stage of the administrative process. The dispute centers upon what process is due prior to the initial termination of benefits, pending review. In recent years, this Court increasingly has had occasion to consider the extent to which due process requires an evidentiary hearing prior to the deprivation of some type of property interest even if such a hearing is provided thereafter. In only one case, Goldberg v. Kelly, 397 U.S. at 397 U. S. 26 -271, has the Court held that a hearing closely approximating a judicial trial is necessary. In other cases requiring some type of pre-termination hearing as a matter of constitutional right, the Court has spoken sparingly about the requisite procedures. Sniadach Page 424 U. S. 334 v. Family Finance Corp., 395 U. S. 337 (1969), involving garnishment of wages, was entirely silent on the matter. In Fuentes v. Shevin, 407 U.S. at 407 U. S. 96 -97, the Court said only that, in a replevin suit between two private parties, the initial determination required something more than an ex parte proceeding before a court clerk. Similarly, Bell v. Burson, supra at 402 U. S. 540 , held, in the context of the revocation of a state-granted driver's license, that due process required only that the pre-revocation hearing involve a probable cause determination as to the fault of the licensee, noting that the hearing "need not take the form of a full adjudication of the question of liability." See also North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601 , 419 U. S. 607 (1975). More recently, in Arnett v. Kennedy, supra, we sustained the validity of procedures by which a federal employee could be dismissed for cause. They included notice of the action sought, a copy of the charge, reasonable time for filing a written response, and an opportunity for an oral appearance. Following dismissal, an evidentiary hearing was provided. 416 U.S. at 416 U. S. 142 -146. These decisions underscore the truism that " [d]ue process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances." Cafeteria Workers v. McElroy, 367 U. S. 886 , 367 U. S. 895 (1961). "[D]ue process is flexible, and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U. S. 471 , 408 U. S. 481 (1972). Accordingly, resolution of the issue whether the administrative procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected. Arnett v. Kennedy, supra at 416 U. S. 167 -168 (POWELL, J., concurring in part); Goldberg v. Kelly, supra at 397 U. S. 263 -266; Cafeteria Workers v. McElroy, supra at 367 U. S. 895 . More precisely, our prior decisions Page 424 U. S. 335 indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. See, e.g., Goldberg v. Kelly, supra at 397 U. S. 263 -271. We turn first to a description of the procedures for the termination of Social Security disability benefits, and thereafter consider the factors bearing upon the constitutional adequacy of these procedures. B The disability insurance program is administered jointly by state and federal agencies. State agencies make the initial determination whether a disability exists, when it began, and when it ceased. 42 U.S.C. § 421(a). [ Footnote 13 ] The standards applied and the procedures followed are prescribed by the Secretary, see § 421(b), who has delegated his responsibilities and powers under the Act to the SSA. See 40 Fed.Reg. 4473 (1975). Page 424 U. S. 336 In order to establish initial and continued entitlement to disability benefits, a worker must demonstrate that he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. . . ." 42 U.S.C. § 423(d)(1)(A). To satisfy this test, the worker bears a continuing burden of showing, by means of "medically acceptable clinical and laboratory diagnostic techniques," § 423(d)(3), that he has a physical or mental impairment of such severity that "he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." § 423(d)(2)(A). [ Footnote 14 ] The principal reasons for benefits terminations are that the worker is no longer disabled or has returned to work. As Eldridge's benefits were terminated because he was determined to be no longer disabled, we consider only the sufficiency of the procedures involved in such cases. [ Footnote 15 ] Page 424 U. S. 337 The continuing eligibility investigation is made by a state agency acting through a "team" consisting of a physician and a nonmedical person trained in disability evaluation. The agency periodically communicates with the disabled worker, usually by mail -- in which case he is sent a detailed questionnaire -- or by telephone, and requests information concerning his present condition, including current medical restrictions and sources of treatment, and any additional information that he considers relevant to his continued entitlement to benefits. CM § 6705.1; Disability Insurance State Manual (DISM) § 353.3 (TL No. 137, Mar. 5, 1975). [ Footnote 16 ] Information regarding the recipient's current condition is also obtained from his sources of medical treatment. DISM § 353.4. If there is a conflict between the information provided by the beneficiary and that obtained from medical sources such as his physician, or between two sources of treatment, the agency may arrange for an examination by an independent consulting physician. [ Footnote 17 ] Ibid. Whenever the agency's tentative assessment of the beneficiary's condition differs from his Page 424 U. S. 338 own assessment, the beneficiary is informed that benefits may be terminated, provided a summary of the evidence upon which the proposed determination to terminate is based, and afforded an opportunity to review the medical reports and other evidence in his case file. [ Footnote 18 ] He also may respond in writing and submit additional evidence. Id., § 353.6. The state agency then makes its final determination, which is reviewed by an examiner in the SSA Bureau of Disability Insurance. 42 U.S.C. § 421(c); CM §§ 6701(b), (c). [ Footnote 19 ] If, as is usually the case, the SSA accepts the agency determination, it notifies the recipient in writing, informing him of the reasons for the decision, and of his right to seek de novo reconsideration by the state agency. 20 CFR §§ 404.907, 404.909 (1975). [ Footnote 20 ] Upon acceptance by the SSA, benefits are terminated effective two months after the month in which medical recovery is found to have occurred. 42 U.S.C. § 423(a) (1970 ed., Supp. III). Page 424 U. S. 339 If the recipient seeks reconsideration by the state agency and the determination is adverse, the SSA reviews the reconsideration determination and notices the recipient of the decision. He then has a right to an evidentiary hearing before an SSA administrative law judge. 20 CFR §§ 404.917, 404.927 (1975). The hearing is nonadversary, and the SSA is not represented by counsel. As at all prior and subsequent stages of the administrative process, however, the claimant may be represented by counsel or other spokesmen. § 404.934. If this hearing results in an adverse decision, the claimant is entitled to request discretionary review by the SSA Appeals Council, § 404.945, and finally may obtain judicial review. 42 U.S.C. § 405(g); 20 CFR § 404.951 (1975). [ Footnote 21 ] Should it be determined at any point after termination of benefits, that the claimant's disability extended beyond the date of cessation initially established, the worker is entitled to retroactive payments. 42 U.S.C. § 404. Cf. § 423(b); 20 CFR §§ 404.501, 404.503, 404.504 (1975). If, on the other hand, a beneficiary receives any payments to which he is later determined not to be entitled, the statute authorizes the Secretary to attempt to recoup these funds in specified circumstances. 42 U.S.C. § 404. [ Footnote 22 ] C Despite the elaborate character of the administrative procedures provided by the Secretary, the courts Page 424 U. S. 340 below held them to be constitutionally inadequate, concluding that due process requires an evidentiary hearing prior to termination. In light of the private and governmental interests at stake here and the nature of the existing procedures, we think this was error. Since a recipient whose benefits are terminated is awarded full retroactive relief if he ultimately prevails, his sole interest is in the uninterrupted receipt of this source of income pending final administrative decision on his claim. His potential injury is thus similar in nature to that of the welfare recipient in Goldberg, see 397 U.S. at 397 U. S. 263 -264, the nonprobationary federal employee in Arnett, see 416 U.S. at 416 U. S. 146 , and the wage earner in Sniadach. See 395 U.S. at 395 U. S. 341 -342. [ Footnote 23 ] Only in Goldberg has the Court held that due process requires an evidentiary hearing prior to a temporary deprivation. It was emphasized there that welfare assistance is given to persons on the very margin of subsistence: "The crucial factor in this context -- a factor not present in the case of . . . virtually anyone else whose governmental entitlements are ended -- is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits." 397 U.S. at 397 U. S. 264 (emphasis in original). Eligibility for disability benefits, in contrast, is not based upon financial need. [ Footnote 24 ] Indeed, it is wholly unrelated to Page 424 U. S. 341 the worker's income or support from many other sources, such as earnings of other family members, workmen's compensation awards, [ Footnote 25 ] tort claims awards, sayings, private insurance, public or private pensions, veterans' benefits, food stamps, public assistance, or the "many other important programs, both public and private, which contain provisions for disability payments affecting a substantial portion of the workforce. . . ." Richardson v. Belcher, 404 U.S. at 404 U. S. 85 -87 (Douglas, J., dissenting). See Staff of the House Committee on Ways and Means, Report on the Disability Insurance Program, 93d Cong., 2d Sess., 910, 419-429 (1974) (hereinafter Staff Report). As Goldberg illustrates, the degree of potential deprivation that may be created by a particular decision is a factor to be considered in assessing the validity of any administrative decisionmaking process. Cf. Morrissey v. Brewer, 408 U. S. 471 (1972). The potential deprivation here is generally likely to be less than in Goldberg, although the degree of difference can be overstated. As the District Court emphasized, to remain eligible for benefits, a recipient must be "unable to engage in substantial gainful activity." 42 U.S.C. § 423; 361 F. Supp. at 523. Thus, in contrast to the discharged federal employee in Arnett, there is little possibility that the terminated recipient will be able to find even temporary employment to ameliorate the interim loss. As we recognized last Term in Fusari v. Steinberg, 419 U. S. 379 , 419 U. S. 389 (1975), "the possible length of wrongful deprivation of . . . benefits [also] is an important factor in assessing the impact of official action on the private interests." The Secretary concedes that the delay between Page 424 U. S. 342 a request for a hearing before an administrative law judge and a decision on the claim is currently between 10 and 11 months. Since a terminated recipient must first obtain a reconsideration decision as a prerequisite to invoking his right to an evidentiary hearing, the delay between the actual cutoff of benefits and final decision after a hearing exceeds one year. In view of the torpidity of this administrative review process, cf. id. at 419 U. S. 383 -384, 419 U. S. 386 , and the typically modest resources of the family unit of the physically disabled worker, [ Footnote 26 ] the hardship imposed upon the erroneously terminated disability recipient may be significant. Still, the disabled worker's need is likely to be less than that of a welfare recipient. In addition to the possibility of access to private resources, other forms of government assistance will become available where the termination of disability benefits places a worker or his family below the subsistence level. [ Footnote 27 ] See Arnett v. Kennedy, 416 U.S. Page 424 U. S. 343 at 416 U. S. 169 (POWELL, J., concurring in part); id. at 416 U. S. 201 -202 (WHITE, J., concurring in part and dissenting in part). In view of these potential sources of temporary income, there is less reason here than in Goldberg to depart from the ordinary principle, established by our decisions, that something less than an evidentiary hearing is sufficient prior to adverse administrative action. D An additional factor to be considered here is the fairness and reliability of the existing pre-termination procedures, and the probable value, if any, of additional procedural safeguards. Central to the evaluation of any administrative process is the nature of the relevant inquiry. See Mitchell v. W. T. Grant Co., 416 U. S. 600 , 416 U. S. 617 (1974); Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267, 1281 (1975). In order to remain eligible for benefits, the disabled worker must demonstrate by means of "medically acceptable clinical and laboratory diagnostic techniques," 42 U.S.C. § 423(d)(3), that he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . . ." § 423(d)(1)(A) (emphasis supplied). In short, a medical assessment of the worker's physical or mental condition is required. This is a more sharply focused and easily documented decision than the typical determination of welfare entitlement. In the latter case, a wide variety of information may be deemed relevant, and issues of witness credibility and Page 424 U. S. 344 veracity often are critical to the decisionmaking process. Goldberg noted that, in such circumstances "written submissions are a wholly unsatisfactory basis for decision." 397 U.S. at 397 U. S. 269 . By contrast, the decision whether to discontinue disability benefits will turn, in most cases, upon "routine, standard, and unbiased medical reports by physician specialists," Richardson v. Perales, 402 U.S. at 402 U. S. 404 , concerning a subject whom they have personally examined. [ Footnote 28 ] In Richardson, the Court recognized the "reliability and probative worth of written medical reports," emphasizing that, while there may be "professional disagreement with the medical conclusions" the "specter of questionable credibility and veracity is not present." Id. at 402 U. S. 405 , 403 U. S. 407 . To be sure, credibility and veracity may be a factor in the ultimate disability assessment in some cases. But procedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions. The potential value of an evidentiary hearing, or even oral presentation to the decisionmaker, Page 424 U. S. 345 is substantially less in this context than in Goldberg. The decision in Goldberg also was based on the Court's conclusion that written submissions were an inadequate substitute for oral presentation because they did not provide an effective means for the recipient to communicate his case to the decisionmaker. Written submissions were viewed as an unrealistic option, for most recipients lacked the "educational attainment necessary to write effectively," and could not afford professional assistance. In addition, such submissions would not provide the "flexibility of oral presentations" or "permit the recipient to mold his argument to the issues the decisionmaker appears to regard as important." 397 U.S. at 397 U. S. 269 . In the context of the disability benefits entitlement assessment, the administrative procedures under review here fully answer these objections. The detailed questionnaire which the state agency periodically sends the recipient identifies with particularity the information relevant to the entitlement decision, and the recipient is invited to obtain assistance from the local SSA office in completing the questionnaire. More important, the information critical to the entitlement decision usually is derived from medical sources, such as the treating physician. Such sources are likely to be able to communicate more effectively through written documents than are welfare recipients or the lay witnesses supporting their cause. The conclusions of physicians often are supported by X-rays and the results of clinical or laboratory tests, information typically more amenable to written than to oral presentation. Cf. W. Gellhorn & C. Byse, Administrative Law -- Cases and Comments 860-863 (6th ed.1974). A further safeguard against mistake is the policy of allowing the disability recipient's representative full access Page 424 U. S. 346 to all information relied upon by the state agency. In addition, prior to the cutoff of benefits, the agency informs the recipient of its tentative assessment, the reasons therefor, and provides a summary of the evidence that it considers most relevant. Opportunity is then afforded the recipient to submit additional evidence or arguments, enabling him to challenge directly the accuracy of information in his file, as well as the correctness of the agency's tentative conclusions. These procedures, again as contrasted with those before the Court in Goldberg, enable the recipient to "mold" his argument to respond to the precise issues which the decisionmaker regards as crucial. Despite these carefully structured procedures, amici point to the significant reversal rate for appealed cases as clear evidence that the current process is inadequate. Depending upon the base selected and the line of analysis followed, the relevant reversal rates urged by the contending parties vary from a high of 58.6% for appealed reconsideration decisions to an overall reversal rate of only 3.3%. [ Footnote 29 ] Bare statistics rarely provide a satisfactory measure of the fairness of a decisionmaking process. Their adequacy is especially suspect here, since Page 424 U. S. 347 the administrative review system is operated on an open file basis. A recipient may always submit new evidence, and such submissions may result in additional medical examinations. Such fresh examinations were held in approximately 30% to 40% of the appealed cases in fiscal 1973, either at the reconsideration or evidentiary hearing stage of the administrative process. Staff Report 238. In this context, the value of reversal rate statistics as one means of evaluating the adequacy of the pre-termination process is diminished. Thus, although we view such information as relevant, it is certainly not controlling in this case. E In striking the appropriate due process balance, the final factor to be assessed is the public interest. This includes the administrative burden and other societal costs that would be associated with requiring, as a matter of constitutional right, an evidentiary hearing upon demand in all cases prior to the termination of disability benefits. The most visible burden would be the incremental cost resulting from the increased number of hearings and the expense of providing benefits to ineligible recipients pending decision. No one can predict the extent of the increase, but the fact that full benefits would continue until after such hearings would assure the exhaustion in most cases of this attractive option. Nor would the theoretical right of the Secretary to recover undeserved benefits result, as a practical matter, in any substantial offset to the added outlay of public funds. The parties submit widely varying estimates of the probable additional financial cost. We only need say that experience with the constitutionalizing of government procedures suggests that the ultimate additional cost in terms of money and administrative burden would not be insubstantial. Page 424 U. S. 348 Financial cost alone is not a controlling weight in determining whether due process requires a particular procedural safeguard prior to some administrative decision. But the Government's interest, and hence that of the public, in conserving scarce fiscal and administrative resources is a factor that must be weighed. At some point, the benefit of an additional safeguard to the individual affected by the administrative action and to society in terms of increased assurance that the action is just may be outweighed by the cost. Significantly, the cost of protecting those whom the preliminary administrative process has identified as likely to be found undeserving may, in the end, come out of the pockets of the deserving, since resources available for any particular program of social welfare are not unlimited. See Friendly, supra, 123 U.Pa.L.Rev. at 1276, 1303. But more is implicated in cases of this type than ad hoc weighing of fiscal and administrative burdens against the interests of a particular category of claimants. The ultimate balance involves a determination as to when, under our constitutional system, judicial-type procedures must be imposed upon administrative action to assure fairness. We reiterate the wise admonishment of Mr. Justice Frankfurter that differences in the origin and function of administrative agencies "preclude wholesale transplantation of the rules of procedure, trial, and review which have evolved from the history and experience of courts." FCC v. Pottsville Broadcasting Co., 309 U. S. 134 , 309 U. S. 143 (1940). The judicial model of an evidentiary hearing is neither a required, nor even the most effective, method of decisionmaking in all circumstances. The essence of due process is the requirement that "a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it." Joint Anti-Fascist Comm. v. McGrath, 341 U.S. at 341 U. S. 171 -172 (Frankfurter, Page 424 U. S. 349 J., concurring). All that is necessary is that the procedures be tailored, in light of the decision to be made, to "the capacities and circumstances of those who are to be heard," Goldberg v. Kelly, 397 U.S. at 397 U. S. 268 -269 (footnote omitted), to insure that they are given a meaningful opportunity to present their case. In assessing what process is due in this case, substantial weight must be given to the good faith judgments of the individuals charged by Congress with the administration of social welfare programs that the procedures they have provided assure fair consideration of the entitlement claims of individuals. See Arnett v. Kennedy, 416 U.S. at 416 U. S. 202 (WHITE, J., concurring in part and dissenting in part). This is especially so where, as here, the prescribed procedures not only provide the claimant with an effective process for asserting his claim prior to any administrative action, but also assure a right to an evidentiary hearing, as well as to subsequent judicial review, before the denial of his claim becomes final. Cf. Boddie v. Connecticut, 401 U. S. 371 , 401 U. S. 378 (1971). We conclude that an evidentiary hearing is not required prior to the termination of disability benefits, and that the present administrative procedures fully comport with due process. The judgment of the Court of Appeals is Reversed. MR. JUSTICE STEVENS took no part in the consideration or decision of this case. [ Footnote 1 ] The program is financed by revenues derived from employee and employer payroll taxes. 26 U.S.C. §§ 3101(a), 3111(a); 42 U.S.C. § 401(b). It provides monthly benefits to disabled persons who have worked sufficiently long to have an insured status, and who have had substantial work experience in a specified interval directly preceding the onset of disability. 42 U.S.C. §§ 423(c)(1)(A) and (b). Benefits also are provided to the worker's dependents under specified circumstances. §§ 402(b)(d). When the recipient reaches age 65 his disability benefits are automatically converted to retirement benefits. §§ 416(i)(2)(D), 423(a)(1). In fiscal 1974, approximately 3,700,000 persons received assistance under the program. Social Security Administration, The Year in Review 21 (1974). [ Footnote 2 ] Eldridge originally was disabled due to chronic anxiety and back strain. He subsequently was found to have diabetes. The tentative determination letter indicated that aid would be terminated because available medical evidence indicated that his diabetes was under control, that there existed no limitations on his back movements which would impose severe functional restrictions, and that he no longer suffered emotional problems that would preclude him from all work for which he was qualified. App. 113. In his reply letter, he claimed to have arthritis of the spine, rather than a strained back. [ Footnote 3 ] The District Court ordered reinstatement of Eldridge's benefits pending its final disposition on the merits. [ Footnote 4 ] In Goldberg, the Court held that the pre-termination hearing must include the following elements: (1) "timely and adequate notice detailing the reasons for a proposed termination"; (2) "an effective opportunity [for the recipient] to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally"; (3) retained counsel, if desired; (4) an "impartial" decisionmaker; (5) a decision resting "solely on the legal rules and evidence adduced at the hearing"; (6) a statement of reasons for the decision and the evidence relied on. 397 U.S. at 397 U. S. 266 -271. In this opinion, the term "evidentiary hearing" refers to a hearing generally of the type required in Goldberg. [ Footnote 5 ] The HEW regulations direct that each state plan under the federal categorical assistance programs must provide for pre-termination hearings containing specified procedural safeguards, which include all of the Goldberg requirements. See 45 CFR § 205.10(a) (1975); n 4, supra. [ Footnote 6 ] The Court of Appeals for the Fifth Circuit, simply noting that the issue had been correctly decided by the District Court in this case, reached the same conclusion in Williams v. Weinberger, 494 F.2d 1191 (1974), cert. pending, No. 74-205. [ Footnote 7 ] Title 42 U.S.C. § 405(h) provides in full: "(h) Finality of Secretary's decision." "The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under section 41 of Title 28 to recover on any claim arising under this subchapter." [ Footnote 8 ] Section 405(g) further provides: "Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia. . . . The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. . . ." [ Footnote 9 ] The other two conditions are (1) that the civil action be commenced within 60 days after the mailing of notice of such decision, or within such additional time as the Secretary may permit, and (2) that the action be filed in an appropriate district court. These two requirements specify a statute of limitations and appropriate venue, and are waivable by the parties. Salfi, 422 U.S. at 422 U. S. 763 -764. As in Salfi, no question as to whether Eldridge satisfied these requirements was timely raised below, see Fed.Rules Civ.Proc. 8(c), 12(h)(1), and they need not be considered here. [ Footnote 10 ] If Eldridge had exhausted the full set of available administrative review procedures, failure to have raised his constitutional claim would not bar him from asserting it later in a district court. Cf. Flemming v. Nestor, 363 U. S. 603 , 363 U. S. 607 (1960). [ Footnote 11 ] Decisions in different contexts have emphasized that the nature of the claim being asserted and the consequences of deferment of judicial review are important factors in determining whether a statutory requirement of finality has been satisfied. The role these factors may play is illustrated by the intensely "practical" approach which the Court has adopted, Cohen v. Beneficial Ind. Loan Corp., 337 U. S. 541 , 337 U. S. 546 (1949), when applying the finality requirements of 28 U.S.C. § 1291, which grants jurisdiction to courts of appeals to review all "final decisions" of the district courts, and 28 U.S.C. § 1257, which empowers this Court to review only "final judgments" of state courts. See, e.g., Harris v. Washington, 404 U. S. 55 (1971); Construction Laborers v. Curry, 371 U. S. 542 , 371 U. S. 549 -550 (1963); Mercantile Nat. Bank v. Langdeau, 371 U. S. 555 , 371 U. S. 557 -558 (1963); Cohen v. Beneficial Ind. Loan Corp., supra at 337 U. S. 545 -546. To be sure, certain of the policy considerations implicated in §§ 1257 and 1291 cases are different from those that are relevant here. Compare Construction Laborers, supra at 371 U. S. 550 ; Mercantile Nat. Bank, supra at 371 U. S. 558 , with McKart v. United States, 395 U. S. 185 , 395 U. S. 193 -195 (1969); L. Jaffe, Judicial Control of Administrative Action 424-426 (1965). But the core principle that statutorily created finality requirements should, if possible, be construed so as not to cause crucial collateral claims to be lost and potentially irreparable injuries to be suffered remains applicable. [ Footnote 12 ] Given our conclusion that jurisdiction in the District Court was proper under § 405(g), we find it unnecessary to consider Eldridge's contention that, notwithstanding § 405(h), there was jurisdiction over his claim under the mandamus statute, 28 U.S.C. § 1361, or the Administrative Procedure Act, 5 U.S.C. § 701 et seq. [ Footnote 13 ] In all but six States, the state vocational rehabilitation agency charged with administering the state plan under the Vocational Rehabilitation Act of 1920, 41 Stat. 735, as amended, 29 U.S.C. § 701 et seq. (1970 ed., Supp. III), acts as the "state agency" for purposes of the disability insurance program. Staff of the House Committee on Ways and Means, Report on the Disability Insurance Program, 93d Cong., 2d Sess., 148 (1974). This assignment of responsibility was intended to encourage rehabilitation contacts for disabled workers and to utilize the well established relationships of the local rehabilitation agencies with the medical profession. H.R.Rep. No. 1698, 83d Cong., 2d Sess., 23-24 (1954). [ Footnote 14 ] Work which "exists in the national economy" is, in turn, defined as "work which exists in significant numbers either in the region where such individual lives or in several regions of the country." § 423(d)(2)(A) [ Footnote 15 ] Because the continuing disability investigation concerning whether a claimant has returned to work is usually done directly by the SSA Bureau of Disability Insurance, without any state agency involvement, the administrative procedures prior to the post-termination evidentiary hearing differ from those involved in cases of possible medical recovery. They are similar, however, in the important respect that the process relies principally on written communications and there is no provision for an evidentiary hearing prior to the cutoff of benefits. Due to the nature of the relevant inquiry in certain types of cases, such as those involving self employment and agricultural employment, the SSA office nearest the beneficiary conducts an oral interview of the beneficiary as part of the pre-termination process. SSA Claims Manual (CM) § 6705.2(c). [ Footnote 16 ] Information is also requested concerning the recipient's belief as to whether he can return to work, the nature and extent of his employment during the past year, and any vocational services he is receiving. [ Footnote 17 ] All medical-source evidence used to establish the absence of continuing disability must be in writing, with the source properly identified. DISM § 353.4C. [ Footnote 18 ] The disability recipient is not permitted personally to examine the medical reports contained in his file. This restriction is not significant, since he is entitled to have any representative of his choice, including a lay friend or family member, examine all medical evidence. CM § 7314. See also 20 CFR § 401.3(a)(2) (1975). The Secretary informs us that this curious limitation is currently under review. [ Footnote 19 ] The SSA may not itself revise the state agency's determination in a manner more favorable to the beneficiary. If, however, it believes that the worker is still disabled, or that the disability lasted longer than determined by the state agency, it may return the file to the agency for further consideration in light of the SSA's views. The agency is free to reaffirm its original assessment. [ Footnote 20 ] The reconsideration assessment is initially made by the state agency, but usually not by the same persons who considered the case originally. R. Dixon, Social Security Disability and Mass Justice 32 (1973). Both the recipient and the agency may adduce new evidence. [ Footnote 21 ] Unlike all prior levels of review, which are de novo, the district court is required to treat findings of fact as conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). [ Footnote 22 ] The Secretary may reduce other payments to which the beneficiary is entitled, or seek the payment of a refund, unless the beneficiary is "without fault" and such adjustment or recovery would defeat the purposes of the Act or be "against equity and good conscience." 42 U.S.C. § 404(b). See generally 20 CFR §§ 404.501-404.515 (1975). [ Footnote 23 ] This, of course, assumes that an employee whose wages are garnisheed erroneously is subsequently able to recover his back wages. [ Footnote 24 ] The level of benefits is determined by the worker's average monthly earnings during the period prior to disability, his age, and other factors not directly related to financial need, specified in 42 U.S.C. § 415 (1970 ed., Supp. III). See § 423(a)(2). [ Footnote 25 ] Workmen's compensation benefits are deducted in part in accordance with a statutory formula. 42 U.S.C. § 424a (1970 ed., Supp. III); 20 CFR § 404.408 (1975); see Richardson v. Belcher, 404 U. S. 78 (1971). [ Footnote 26 ] Amici cite statistics compiled by the Secretary which indicate that, in 1965, the mean income of the family unit of a disabled worker was $3,803, while the median income for the unit was 2,836. The mean liquid assets -- i.e., cash, stocks, bonds -- of these family units was $4,862; the median was $940. These statistics do not take into account the family unit's nonliquid assets -- i.e., automobile, real estate, and the like. Brief for AFL-CIO et al. as Amici Curiae App. 4a. See n 29, infra. [ Footnote 27 ] Amici emphasize that, because an identical definition of disability is employed in both the Title II Social Security Program and in the companion welfare system for the disabled, Supplemental Security Income (SSI), compare 42 U.S.C. § 423(d)(1) with § 1382c(a)(3) (1970 ed., Supp. III), the terminated disability benefits recipient will be ineligible for the SSI Program. There exist, however, state and local welfare programs which may supplement the worker's income. In addition, the worker's household unit can qualify for food stamps if it meets the financial need requirements. See 7 U.S.C. §§ 2013(c), 2014(b); 7 CFR § 271 (1975). Finally, in 1974, 480,000 of the approximately 2,000,000 disabled workers receiving Social Security benefits also received SSI benefits. Since financial need is a criterion for eligibility under the SSI program, those disabled workers who are most in need will, in the majority of cases, be receiving SSI benefits when disability insurance aid is terminated. And, under the SSI program, a pre-termination evidentiary hearing is provided, if requested. 42 U.S.C. § 1383(c) (1970 ed., Supp. III); 20 CFR § 416.1336(c) (1975); 40 Fed Reg. 1512 (1975); see Staff Report 346. [ Footnote 28 ] The decision is not purely a question of the accuracy of a medical diagnosis, since the ultimate issue which the state agency must resolve is whether, in light of the particular worker's "age, education, and work experience," he cannot "engage in any . . . substantial gainful work which exists in the national economy. . . ." 42 U.S.C. § 423(d)(2)(A). Yet information concerning each of these worker characteristics is amenable to effective written presentation. The value of an evidentiary hearing, or even a limited oral presentation, to an accurate presentation of those factors to the decisionmaker does not appear substantial. Similarly, resolution of the inquiry as to the types of employment opportunities that exist in the national economy for a physically impaired worker with a particular set of skills would not necessarily be advanced by an evidentiary hearing. Cf. 1 K. Davis, Administrative Law Treatise § 7.06, p. 429 (1958). The statistical information relevant to this judgment is more amenable to written than to oral presentation. [ Footnote 29 ] By focusing solely on the reversal rate for appealed reconsideration determinations, amici overstate the relevant reversal rate. As we indicated last Term in Fusari v. Steinberg, 419 U. S. 379 , 419 U. S. 383 n. 6 (1975), in order fully to assess the reliability and fairness of a system of procedure, one must also consider the overall rate of error for all denials of benefits. Here, that overall rate is 12.2%. Moreover, about 75% of these reversals occur at the reconsideration stage of the administrative process. Since the median period between a request for reconsideration review and decision is only two months, Brief for AFL-CIO et al. as Amici Curiae, App. 4a, the deprivation is significantly less than that concomitant to the lengthier delay before an evidentiary hearing. Netting out these reconsideration reversals, the overall reversal rate falls to 3.3%. See Supplemental and Reply Brief for Petitioner 14. MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL concurs, dissenting. For the reasons stated in my dissenting opinion in Richardson v. Wright, 405 U. S. 208 , 405 U. S. 212 (1972), I agree with the District Court and the Court of Appeals that, prior to termination of benefits, Eldridge must be afforded Page 424 U. S. 350 an evidentiary hearing of the type required for welfare beneficiaries under Title IV of the Social Security Act, 42 U.S.C. § 601 et seq. See Goldberg v. Kelly, 397 U. S. 254 (1970). I would add that the Court's consideration that a discontinuance of disability benefits may cause the recipient to suffer only a limited deprivation is no argument. It is speculative. Moreover, the very legislative determination to provide disability benefits, without any prerequisite determination of need in fact, presumes a need by the recipient which is not this Court's function to denigrate. Indeed, in the present case, it is indicated that, because disability benefits were terminated, there was a foreclosure upon the Eldridge home and the family's furniture was repossessed, forcing Eldridge, his wife, and their children to sleep in one bed. Tr. of Oral Arg. 39, 47-48. Finally, it is also no argument that a worker, who has been placed in the untenable position of having been denied disability benefits may still seek other forms of public assistance.

Here is a summary of the Supreme Court case Mathews v. Eldridge: Issue: Whether the procedural safeguards of the Due Process Clause of the Fifth Amendment require that prior to the termination of Social Security disability benefit payments, the recipient be afforded an opportunity for an evidentiary hearing. Holding: No. The Court held that an evidentiary hearing is not required before the termination of Social Security disability benefits. The current administrative procedures, which include an opportunity for the beneficiary to submit written evidence and to have a de novo review by the state agency and the Social Security Administration, are sufficient to satisfy due process. Reasoning: The Court applied the three-factor balancing test from its prior decision in Goldberg v. Kelly to determine what process is due before the termination of disability benefits. The three factors are: 1. The private interest that will be affected by the official action; 2. The risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and 3. The Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. The Court found that while the private interest in accurate disability payments is great, the current procedures adequately protect against the risk of erroneous deprivation. The Court noted that the decision to terminate benefits is made by an impartial state agency, and the beneficiary has multiple opportunities to submit evidence and challenge the decision. The Court also emphasized the low risk of erroneous deprivation, with only a small percentage of cases being reversed on appeal. As for the government's interest, the Court considered the administrative burden and cost of providing evidentiary hearings for all beneficiaries whose benefits are terminated. The Court concluded that requiring evidentiary hearings would be costly and inefficient, particularly given the low risk of error in the current system. Therefore, the Court held that the current procedures satisfy the requirements of due process and an evidentiary hearing is not necessary prior to the termination of Social Security disability benefits.

Lawsuits & Legal Procedures

Liberty Mutual Insurance Co. v. Wetzel

https://supreme.justia.com/cases/federal/us/424/737/

U.S. Supreme Court Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737 (1976) Liberty Mutual Insurance Co. v. Wetzel No. 74-1245 Argued January 19, 1976 Decided March 23, 1976 424 U.S. 737 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Syllabus Respondents filed a complaint alleging that petitioner's employee insurance benefits and maternity leave regulations discriminated against its women employees in violation of Title VII of the Civil Rights Act of 1964, and seeking injunctive relief, damages, costs, and attorneys' fees. After ruling in respondents' favor on their motion for a partial summary judgment on the issue of petitioner's liability under the Act, the District Court, upon denying petitioner's motion for reconsideration, issued an amended order stating that injunctive relief would be withheld because petitioner had filed an appeal and had asked for a stay of any injunction, and directing that, pursuant to Fed.Rule Civ.Proc. 54(b), final judgment be entered for respondents, there being no just reason for delay. The Court of Appeals, holding that it had jurisdiction of petitioner's appeal under 28 U.S.C. § 1291, affirmed on the merits. Held: 1. The District Court's order was not appealable as a final decision under § 1291. Pp. 424 U. S. 742 -744. (a) Even assuming that the order was a declaratory judgment on the issue of liability, it nevertheless left unresolved and did not finally dispose of any of the respondents' prayers for relief. P. 424 U. S. 742 . (b) The order did not become appealable as a final decision pursuant to § 1291 merely because it made the recital required by Rule 54(b), since that Rule applies only to multiple claim actions in which one or more but less than all of the claims have been finally decided and are found otherwise ready for appeal, and does not apply to a single-claim action such as this one, where the complaint advanced a single legal theory that was applied to only one set of facts. Pp. 424 U. S. 742 -744. (c) The order, apart from its reference to Rule 54(b), constitutes a grant of partial summary judgment limited to the issue of petitioner's liability, is by its terms interlocutory, and, where Page 424 U. S. 738 damages or other relief remain to be resolved, cannot be considered "final" within the meaning of § 1291. P. 424 U. S. 744 . 2. Nor was the order appealable pursuant to 28 U.S.C. § 1292's provisions for interlocutory appeals. Pp. 424 U. S. 744 -745. (a) Even if the order, insofar as it failed to include the requested injunctive relief, could be considered an interlocutory order refusing an injunction within the meaning of § 1292(a)(1), and thus would have allowed respondents then to obtain review in the Court of Appeals, there was no denial of any injunction sought by petitioner, and it could not avail itself of that grant of jurisdiction. Pp. 424 U. S. 744 -745. (b) Even if the order could be considered as an order that the District Court certified for immediate appeal pursuant to § 1292(b) as involving a controlling question of law as to which there was substantial ground for difference of opinion, it does not appear that petitioner applied to the Court of Appeals for permission to appeal within 10 days as required by § 1292(b); moreover, there can be no assurance, had the other requirements of § 1292(b) been met, that the Court of Appeals would have exercised its discretion to entertain the interlocutory appeal. P. 424 U. S. 745 . 511 F.2d 199, vacated and remanded. REHNQUIST, J., delivered the opinion of the Court, in which all Members joined except BLACKMUN, J., who took no part in the consideration or decision of the case. Page 424 U. S. 739 MR. JUSTICE REHNQUIST delivered the opinion of the Court. Respondents filed a complaint in the United States District Court for the Western District of Pennsylvania in which they asserted that petitioner's employee insurance benefits and maternity leave regulations discriminated against women in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. IV). The District Court ruled in favor of respondents on the issue of petitioner's liability under that Act, and petitioner appealed to the Court of Appeals for the Third Circuit. That court held that it had jurisdiction of petitioner's appeal under 28 U.S.C. § 1291, and proceeded to affirm on the merits the judgment of the District Court. We Page 424 U. S. 740 granted certiorari, 421 U.S. 987 (1975), and heard argument on the merits. Though neither party has questioned the jurisdiction of the Court of Appeals to entertain the appeal, we are obligated to do so on our own motion if a question thereto exists. Mansfield, Coldwater & Lake Michigan R. Co. v. Swan, 111 U. S. 379 (1884). Because we conclude that the District Court's order was not appealable to the Court of Appeals, we vacate the judgment of the Court of Appeals with instructions to dismiss petitioner's appeal from the order of the District Court. Respondents' complaint, after alleging jurisdiction and facts deemed pertinent to their claim, prayed for a judgment against petitioner embodying the following relief: "(a) requiring that defendant establish nondiscriminatory hiring, payment, opportunity, and promotional plans and programs;" "(b) enjoining the continuance by defendant of the illegal acts and practices alleged herein;" "(c) requiring that defendant pay over to plaintiffs and to the members of the class the damages sustained by plaintiffs and the members of the class by reason of defendant's illegal acts and practices, including adjusted backpay, with interest, and an additional equal amount as liquidated damages, and exemplary damages;" "(d) requiring that defendant pay to plaintiffs and to the members of the class the costs of this suit and a reasonable attorneys' fee, with interest; and" "(e) such other and further relief as the Court deems appropriate." App. 19. After extensive discovery, respondents moved for partial summary judgment only as to the issue of liability. Fed.Rule Civ.Proc. 56(c). The District Court, on January 9, 1974, finding no issues of material fact in dispute, Page 424 U. S. 741 entered an order to the effect that petitioner's pregnancy-related policies violated Title VII of the Civil Rights Act of 1964. It also ruled that Liberty Mutual's hiring and promotion policies violated Title VII. [ Footnote 1 ] Petitioner thereafter filed a motion for reconsideration, which was denied by the District Court. Its order of February 20, 1974, denying the motion for reconsideration, contains the following concluding language: "In its Order, the court stated it would enjoin the continuance of practices which the court found to be in violation of Title VII. The Plaintiffs were invited to submit the form of the injunction order, and the Defendant has filed Notice of Appeal and asked for stay of any injunctive order. Under these circumstances, the court will withhold the issuance of the injunctive order and amend the Order previously issued under the provisions of Fed.R.Civ.P. 54(b), as follows:" "And now this 20th day of February, 1974, it is directed that final judgment be entered in favor of Plaintiffs that Defendant's policy of requiring female employees to return to work within three months of delivery of a child or be terminated is in violation of the provisions of Title VII of the Civil Rights Act of 1964; that Defendant's policy of denying disability income protection plan benefits to female employees for disabilities related to pregnancies or childbirth are [ sic ] in violation of Title VII of the Civil Rights Act of 1964, and that it is expressly directed that Judgment be entered for the Page 424 U. S. 742 Plaintiffs upon these claims of Plaintiffs' Complaint; there being no just reason for delay." 372 F. Supp. 1146 , 1164. It is obvious from the District Court's order that respondents, although having received a favorable ruling on the issue of petitioner's liability to them, received none of the relief which they expressly prayed for in the portion of their complaint set forth above. They requested an injunction, but did not get one; they requested damages, but were not awarded any; they requested attorneys' fees, but received none. Counsel for respondents when questioned during oral argument in this Court, suggested that at least the District Court's order of February 20 amounted to a declaratory judgment on the issue of liability pursuant to the provisions of 28 U.S.C. § 2201. Had respondents sought only a declaratory judgment, and no other form of relief, we would, of course, have a different case. But even if we accept respondents' contention that the District Court's order was a declaratory judgment on the issue of liability, it nonetheless left unresolved respondents' requests for an injunction, for compensatory and exemplary damages, and for attorneys' fees. It finally disposed of none of respondents' prayers for relief. The District Court and the Court of Appeals apparently took the view that, because the District Court made the recital required by Fed.Rule Civ.Proc. 54(b) that final judgment be entered on the issue of liability, and that there was no just reason for delay, the orders thereby became appealable as a final decision pursuant to 28 U.S.C. § 1291. We cannot agree with this application of the Rule and statute in question. Rule 54(b) [ Footnote 2 ] "does not apply to a single claim Page 424 U. S. 743 action. . . . It is limited expressly to multiple claims actions in which 'one or more but less than all' of the multiple claims have been finally decided and are found otherwise to be ready for appeal." Sears, Roebuck & Co. v. Mackey, 351 U. S. 427 , 351 U. S. 435 (1956). [ Footnote 3 ] Here, however, respondents set forth but a single claim: that petitioner's employee insurance benefits and maternity leave regulations discriminated against its women employees in violation of Title VII of the Civil Rights Act of 1964. They prayed for several different types of relief in the event that they sustained the allegations of their complaint, see Fed.Rule Civ.Proc. 8(a)(3), but their complaint advanced a single legal theory which was applied to only one set of facts. [ Footnote 4 ] Thus, despite the fact that the District Court undoubtedly made the findings required Page 424 U. S. 744 under the Rule, had it been applicable, those findings do not in a case such as this make the order appealable pursuant to 28 U.S.C. § 1291. See Mackey, supra at 351 U. S. 437 -438. We turn to consider whether the District Court's order might have been appealed by petitioner to the Court of Appeals under any other theory. The order, viewed apart from its discussion of Rule 54(b), constitutes a grant of partial summary judgment limited to the issue of petitioner's liability. Such judgments are by their terms interlocutory, see Fed.Rule Civ.Proc. 56(c), and where assessment of damages or awarding of other relief remains to be resolved have never been considered to be "final" within the meaning of 28 U.S.C. § 1291. See, e.g., Borges v. Art Steel Co., 243 F.2d 350 (CA2 1957); Leonidakis v. International Telecoin Corp., 208 F.2d 934 (CA2 1953); Tye v. Hertz Drivurself Stations, 173 F.2d 317 (CA3 1949); Russell v. Barnes Foundation, 136 F.2d 654 (CA3 1943). Thus, the only possible authorization for an appeal from the District Court's order would be pursuant to the provisions of 28 U.S.C. § 1292. If the District Court had granted injunctive relief but had not ruled on respondents' other requests for relief, this interlocutory order would have been appealable under § 1292(a)(1). [ Footnote 5 ] But, as noted above, the court did not issue an injunction. It might be argued that the order of the District Court, insofar as it failed to include the injunctive relief requested by respondents, is an interlocutory Page 424 U. S. 745 order refusing an injunction within the meaning of § 1292(a)(1). But even if this would have allowed respondents to then obtain review in the Court of Appeals, there was no denial of any injunction sought by petitioner, and it could not avail itself of that grant of jurisdiction. Nor was this order appealable pursuant to 28 U.S.C. § 1292(b). [ Footnote 6 ] Although the District Court's findings made with a view to satisfying Rule 54(b) might be viewed as substantial compliance with the certification requirement of that section, there is no showing in this record that petitioner made application to the Court of Appeals within the 10 days therein specified. And that court's holding that its jurisdiction was pursuant to § 1291 makes it clear that it thought itself obliged to consider on the merits petitioner's appeal. There can be no assurance that had the other requirements of § 1292(b) been complied with, the Court of Appeals would have exercised its discretion to entertain the interlocutory appeal. Were we to sustain the procedure followed here, we would condone a practice whereby a district court in virtually any case before it might render an interlocutory decision on the question of liability of the defendant, Page 424 U. S. 746 and the defendant would thereupon be permitted to appeal to the court of appeals without satisfying any of the requirements that Congress carefully set forth. We believe that Congress, in enacting present §§ 1291 and 1292 of Title 28, has been well aware of the dangers of an overly rigid insistence upon a "final decision" for appeal in every case, and has in those sections made ample provision for appeal of orders which are not "final" so as to alleviate any possible hardship. We would twist the fabric of the statute more than it will bear if we were to agree that the District Court's order of February 20, 1974, was appealable to the Court of Appeals. The judgment of the Court of Appeals is therefore vacated, and the case is remanded with instructions to dismiss the petitioner's appeal. It is so ordered. MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case. [ Footnote 1 ] The portion of the District Court's order concerning petitioner's hiring and promotion policies was separately appealed to a different panel of the Court of Appeals. The judgment rendered by the Third Circuit upon that appeal is not before us in this case. See Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, cert. denied, 421 U.S. 1011 (1975). [ Footnote 2 ] "Judgment upon multiple claims or involving multiple parties." "When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." [ Footnote 3 ] Following Mackey, the Rule was amended to insure that orders finally disposing of some but not all of the parties could be appealed pursuant to its provisions. That provision is not implicated in this case, however, to which Mackey's exposition of the Rule remains fully accurate. [ Footnote 4 ] We need not here attempt any definitive resolution of the meaning of what constitutes a claim for relief within the meaning of the Rules. See 6 J. Moore, Federal Practice �� 54.24, 54.33 (2d ed.1975). It is sufficient to recognize that a complaint asserting only one legal right, even if seeking multiple remedies for the alleged violation of that right, states a single claim for relief. [ Footnote 5 ] "The courts of appeals shall have jurisdiction of appeals from:" "(1) Interlocutory orders of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virginia Islands, or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court." [ Footnote 6 ] "When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order."

The Supreme Court ruled that the District Court's order in this case was not a final decision and therefore not appealable under 28 U.S.C. § 1291. The order also did not fall under the provisions for interlocutory appeals in 28 U.S.C. § 1292. As such, the Court of Appeals did not have jurisdiction to hear the appeal.

Lawsuits & Legal Procedures

Aldinger v. Howard

https://supreme.justia.com/cases/federal/us/427/1/

U.S. Supreme Court Aldinger v. Howard, 427 U.S. 1 (1976) Aldinger v. Howard No. 74-6521 Argued March 24, 1976 Decided June 24, 1976 427 U.S. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus After petitioner had been discharged without a hearing by respondent county treasurer from her job in his office, she brought suit against the treasurer, the respondent county, and other county officers in Federal District Court under 42 U.S.C. § 1983, claiming that her discharge violated her federal constitutional rights and seeking injunctive relief and damages. Jurisdiction over the federal claim was asserted under 28 U.S.C. § 1343(3), which gives federal district courts jurisdiction over "any civil action authorized by law to be commenced by any person" to redress the deprivation, under color of state law, of federal constitutional rights, and pendent jurisdiction was alleged to lie over a state law claim against the county. The District Court dismissed the action as to the county on the ground that, since the county was not suable as a "person" under § 1983, there was no independent basis of jurisdiction over it, and that thus the court had no power to exercise pendent jurisdiction over the claim against the county. On an appeal from this dismissal, the Court of Appeals affirmed. Held: A fair reading of the language used in § 1343(3), together with the scope of § 1983, under which counties are excluded from the "person[s] " answerable to the Page 427 U. S. 2 plaintiff "in an action at law [or] suit in equity" to redress the enumerated deprivations, requires a holding that the joinder of a municipal corporation, like the county here, for purposes of asserting a state law claim not within federal jurisdiction, is without the District Court's statutory jurisdiction. While, with respect to litigation where nonfederal questions or claims were bound up with the federal claim upon which the parties were already in federal court, there is nothing in Art. III's grant of judicial power that prevents adjudication of the nonfederal portions of the parties' dispute, it is quite another thing to permit a nonfederal claim, in turn, to be the basis for joining a party over whom no independent federal jurisdiction exists, simply because that claim derives from the "common nucleus of operative fact," giving rise to the dispute between the parties to the federal claim. Mine Workers v. Gibbs, 383 U. S. 715 , distinguished. The addition of a completely new party under such circumstances would run counter to the well established principle that federal courts, as opposed to state trial courts of general jurisdiction, are courts of limited jurisdiction marked out by Congress. Pp. 427 U. S. 6 -19. 513 F.2d 1257, affirmed. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, POWELL, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 427 U. S. 19 . MR. JUSTICE REHNQUIST delivered the opinion of the Court. This case presents the "subtle and complex question with far-reaching implications," alluded to but not answered in Moor v County of Alameda, 411 U. S. 693 , 411 U. S. 715 (1973), and Philbrook v. Glodgett, 421 U. S. 707 , 421 U. S. 720 (1975): whether the doctrine of pendent jurisdiction extends to confer jurisdiction over a party as to whom Page 427 U. S. 3 no independent basis of federal jurisdiction exists. In this action, where jurisdiction over the main, federal claim against various officials of Spokane County, Wash., was grounded in 28 U.S.C. § 1343(3), the Court of Appeals for the Ninth Circuit held that pendent jurisdiction was not available to adjudicate petitioner's state law claims against Spokane County, over which party federal jurisdiction was otherwise nonexistent. While noting that its previous holdings to this effect were left undisturbed by Moor, which arose from that Circuit, the Court of Appeals was "not unaware of the widespread rejection" of its position in almost all other Federal Circuits. 513 F.2d 1257, 1261 (1975). We granted certiorari to resolve the conflict on this important question. 423 U.S. 823 (1975). We affirm. I This case arises at the pleading stage, and the allegations in petitioner's complaint are straightforward. Petitioner was hired in 1971 by respondent Howard, the Spokane County treasurer, for clerical work in that office. Two months later, Howard informed petitioner by letter that, although her job performance was "excellent," she would be dismissed, effective two weeks hence, because she was allegedly "living with [her] boy friend." Howard's action, petitioner alleged, was taken pursuant to a state statute which provides that the appointing county officer "may revoke each appointment at pleasure." [ Footnote 1 ] Though a hearing was requested, none was held before or after the effective date of the discharge. Petitioner's action in the United States District Court for the Eastern District of Washington, as embodied in her second amended complaint, claimed principally under Page 427 U. S. 4 the Civil Rights Act of 1871, 42 U.S.C. § 1983, [ Footnote 2 ] that the discharge violated her substantive constitutional rights under the First, Ninth, and Fourteenth Amendments, and was procedurally defective under the latter's Due Process Clause. An injunction restraining the dismissal and damages for salary loss were sought against Howard, his wife, the named county commissioners, and the county. Jurisdiction over the federal claim was asserted under 28 U.S.C. § 1343(3), [ Footnote 3 ] and pendent jurisdiction was alleged to lie over the "state law claims against the parties." As to the county, the state law Page 427 U. S. 5 claim was laid to rest on state statutes waiving the county's sovereign immunity and providing for vicarious liability arising out of tortious conduct of its officials. 513 F.2d at 1358. The District Court dismissed the action as to the county on the ground that, since it was not suable as a "person" under § 1983, there was no independent basis of jurisdiction over the county, and thus "this court [has no] power to exercise pendent jurisdiction over the claims against Spokane County." From this final judgment, see Fed.Rule Civ.Proc. 54(b), petitioner appealed. The Court of Appeals first rejected petitioner's claim that her § 1983 action against the county fell within the District Court's § 1343(3) jurisdiction, as obviously foreclosed by this Court's decisions in Moor, supra, and City of Kenosha v. Bruno, 412 U. S. 507 (1973). Turning to petitioner's pendent jurisdiction argument, the Court of Appeals noted, 513 F.2d at 1260, that the District Court had made no alternative ruling on the "suitability of this case for the discretionary exercise of pendent jurisdiction" under the second part of the rule enunciated in Mine Workers v. Gibbs, 383 U. S. 715 , 383 U. S. 726 -727 (1966). But since this Court in Moor had expressly left undisturbed the Ninth Circuit's refusal to apply pendent jurisdiction over a nonfederal party, the instant panel felt free to apply that rule as set out in Hymer v. Chai, 407 F.2d 136 (CA9 1969), and Moor v. Madigan, 458 F.2d 1217 (CA9 1972), aff'd in part, rev'd in part, 411 U. S. 693 (1973). This kind of case, the Court of Appeals reasoned, presented the "weakest rationale" for extension of Gibbs to pendent parties: (1) The state claims are pressed against a party who would otherwise not be in federal court; [ Footnote 4 ] (2) diversity cases generally present more Page 427 U. S. 6 attractive opportunities for exercise of pendent party jurisdiction, since all claims therein, by definition, arise from state law; (3) federal courts should be wary of extending court-created doctrines of jurisdiction to reach parties who are expressly excluded by Congress from liability, and hence federal jurisdiction, in the federal statute sought to be applied to the defendant in the main claim; (4) pendent state law claims arising in a civil rights context will "almost inevitably" involve the federal court in difficult and unsettled questions of state law, with the accompanying potential for jury confusion. 513 F.2d at 1261-1262. II The question whether "pendent" federal jurisdiction encompasses not merely the litigation of additional claims between parties with respect to whom there is federal jurisdiction, but also the joining of additional parties with respect to whom there is no independent basis of federal jurisdiction, has been much litigated in other federal courts [ Footnote 5 ] and much discussed by commentators [ Footnote 6 ] since this Court's decision in Gibbs. Gibbs, in turn, is the most recent in a long line of our cases dealing with the relationship between the judicial power of the United States and the actual contours of the cases and controversies to which that power is extended by Art. III. In Osborn v. Bank of the United States , 9 Wheat. 738 Page 427 U. S. 7 (1824), Mr. Chief Justice Marshall, in his opinion for the Court, addressed the argument that the presence in a federal lawsuit of questions which were not dependent on the construction of a law of the United States prevented the federal court from exercising Art. III jurisdiction, even in a case in which the plaintiff had been authorized by Congress to sue in federal court. Noting that "[t]here is scarcely any case, every part of which depends" upon federal law, id. at 22 U. S. 820 , the Chief Justice rejected the contention: "If it be a sufficient foundation for jurisdiction that the title or right set up by the party may be defeated by one construction of the constitution or law of the United States and sustained by the opposite construction, provided the facts necessary to support the action be made out, then all the other questions must be decided as incidental to this, which gives that jurisdiction. Those other questions cannot arrest the proceedings. . . ." "We think, then, that when a question to which the judicial power of the Union is extended by the constitution forms an ingredient of the original cause, it is in the power of congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact or of law may be involved in it." Id. at 22 U. S. 822 -823. This doctrine was later applied in Siler v. Louisville & Nashville R. Co., 213 U. S. 175 (1909), to hold that, where federal jurisdiction is properly based on a colorable federal claim, the court has the "right to decide all the questions in the case, even though it decided the Federal questions adversely to the party raising them, or even if it omitted to decide them at all, but decided the case on local or state questions only." Id. at 213 U. S. 191 . In Moore v. N.Y. Cotton Exchange, 270 U. S. 593 , 270 U. S. 609 -610 (1926), Page 427 U. S. 8 the Court in similar fashion sustained jurisdiction over a defendant's compulsory counterclaim arising out of the same transaction upon which the plaintiff's federal antitrust claim was grounded, although the latter had been dismissed for failure to state a claim, and the former had no independent federal jurisdictional basis. A few years later, in Hurn v. Oursler, 289 U. S. 238 (1933), the Court drew upon the foregoing cases to establish federal jurisdiction to decide a state law claim joined with a federal copyright infringement claim, where both were considered "two distinct grounds in support of a single cause of action," although the federal ground had proved unsuccessful. Id. at 289 U. S. 246 . In Gibbs, the respondent brought an action in federal court against petitioner UMW, asserting parallel claims -- a federal statutory claim and a claim under the common law of Tennessee -- arising out of alleged concerted union efforts to deprive him of contractual and employment relationships with the coal mine's owners. Though the federal claim was ultimately dismissed after trial, and though diversity was absent, the lower courts sustained jurisdiction over the state law claim and affirmed the damages award based thereon. Before reaching the merits (on which the lower courts were reversed), this Court addressed the argument that, under the rule of pendent jurisdiction as set out in Hurn v. Oursler, supra, at 289 U. S. 245 -246, Gibbs had merely stated "two separate and distinct causes of action," as opposed to "two distinct grounds in support of a single cause of action," in which former case the federal court lacked the power to "retain and dispose" of the "non-federal cause of action." The Court stated that, since the Hurn test was formulated before the unification of law and equity by the Federal Rules of Civil Procedure, it was therefore unnecessarily tied to the outmoded concept of a "cause of Page 427 U. S. 9 action" developed under code pleading rules. Recognizing that the Federal Rules themselves cannot expand federal court jurisdiction, the Court nevertheless found in them a sufficient basis to go beyond Hurn's "unnecessarily grudging" approach to parallel claims, and to adopt a more flexible treatment within the contours of Art. III, § 2. Thus, in a federal question case, where the federal claim is of sufficient substance, and the factual relationship between "that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional case,'" pendent jurisdiction extends to the state claim. 383 U.S. at 383 U. S. 725 . The Court, in the second aspect of the Gibbs formulation, went on to enumerate the various factors bearing on a district court's discretionary decision whether the power should be exercised in a given parallel claims case, emphasizing that "pendent jurisdiction is a doctrine of discretion, not of plaintiff's right." Id. at 383 U. S. 726 . These cases, from Osborn to Gibbs, show that, in treating litigation where nonfederal questions or claims were bound up with the federal claim upon which the parties were already in federal court, this Court has found nothing in Art. III's grant of judicial power which prevented adjudication of the nonfederal portions of the parties' dispute. None of them, however, adverted to the separate question, involved in the instant case, of whether a nonfederal claim could, in turn, be the basis for joining a party over whom no independent federal jurisdiction exists, simply because that claim could be derived from the "common nucleus of operative fact" giving rise to the dispute between the parties to the federal claim. But while none of the foregoing line of cases discussed the joining of additional parties, other decisions of this Court have developed a doctrine of "ancillary jurisdiction," Page 427 U. S. 10 and it is in part upon this development -- and its relationship to Gibbs -- that petitioner relies to support "pendent party" jurisdiction here. Under this doctrine, the Court has identified certain considerations which justified the joining of parties with respect to whom there was no independent basis of federal jurisdiction. In Freeman v. Howe , 24 How. 450 (1861), the Court held that the state court had no jurisdiction over a replevin action brought by creditor claimants to property that had already been attached by the federal marshal in a federal diversity action. The claimants argued that a want of state court jurisdiction would leave them without a remedy, since diversity between them and the marshal was lacking. This Court stated that an equitable action in federal court by those claimants, seeking to prevent injustice in the diversity suit, would not have been "an original suit, but ancillary and dependent, supplementary merely to the original suit," and thus maintainable irrespective of diversity of citizenship. Id. at 65 U. S. 460 . A similar approach was taken in Stewart v. Dunham, 115 U. S. 61 (1885), where, after a creditors' suit to set aside an allegedly fraudulent conveyance was removed to federal court on grounds of diversity, other nondiverse creditors were permitted to intervene to assert an identical interest. Since it was merely a matter of form whether the latter appeared as parties or came in later under a final decree to prove their claims before a master, the federal court "could incidentally decree in favor of [the nondiverse] creditors[, and s]uch a proceeding would be ancillary to the jurisdiction acquired between the original parties. . . ." Id. at 115 U. S. 64 . Dunham was, in turn, held controlling in Supreme Tribe of Ben-Hur v. Cauble, 255 U. S. 356 (1921). There, suing in diversity, out-of-state "Class A" members of an Indiana fraternal benefit society had sought a decree adjudicating their common interests in the control and disposition of Page 427 U. S. 11 the society's funds. After successfully defending that action, the society brought a second suit in federal court seeking to protect that judgment as against an identical state court action brought by members of "Class A" who were of Indiana citizenship. Since, under Dunham, "intervention of the Indiana citizens in the [original] suit would not have defeated the jurisdiction already acquired," 255 U.S. at 255 U. S. 366 , the earlier judgment was binding against them, and the federal court had ancillary jurisdiction over the society's suit to enjoin the later state action, irrespective of diversity. The doctrine of ancillary jurisdiction developed in the foregoing cases is bottomed on the notion that, since federal jurisdiction in the principal suit effectively controls the property or fund under dispute, other claimants thereto should be allowed to intervene in order to protect their interests, without regard to jurisdiction. [ Footnote 7 ] As this Court stated in Fulton Bank v. Hozier, 267 U. S. 276 , 267 U. S. 280 (1925): "The general rule is that, when a federal court has properly acquired jurisdiction over a cause, it may entertain, by intervention, dependent or ancillary controversies; but no controversy can be regarded as dependent or ancillary unless it has direct relating Page 427 U. S. 12 to property or assets actually or constructively drawn into the court's possession or control by the principal suit." The decisional bridge between these two relatively discrete lines of cases appears to be this Court's decision in Moore. Since the defendant's nonfederal counterclaim in Moore arose out of the same transaction giving rise to the antitrust dispute between the parties, and federal jurisdiction was sustained over the former, the Court in Hurn, though faced with a plaintiff's assertion of pendent jurisdiction over an additional nonfederal claim, thought the two cases, "in principle, cannot be distinguished." Hurn, 289 U.S. at 289 U. S. 242 . It was Hurn's "unnecessarily grudging" test of pendent jurisdiction, of course, which the Court expanded in Gibbs. On the other hand, because Moore was a suit in equity, the jurisdiction sustained there has been rationalized as falling under the umbrella of ancillary jurisdiction, [ Footnote 8 ] though Moore neither used that term nor cited to Fulton Bank, supra. Petitioner thus suggests that, since Moore, read as an "ancillary" case, adopted a "transactional" test of jurisdiction quite similar to that set out in Gibbs, there is presently no "principled" distinction between the two doctrines. Since, under the Federal Rules, "joinder of claims, parties and remedies is strongly encouraged," Gibbs, 383 U.S. at 383 U. S. 724 , her use of the Rules here is as a matter of jurisdictional power assertedly limited only by whether the claim against the county "derive[s] from a common nucleus of operative fact." Id. at 383 U. S. 725 . Hence, petitioner concludes, based on Gibbs' treatment of pendent claims, and the use of ancillary jurisdiction to Page 427 U. S. 13 bring in additional parties, that her nonfederal claim against a nonfederal defendant falls within pendent jurisdiction since it satisfies Gibbs' test on its face. For purposes of addressing the jurisdictional question in this case, however, we think it quite unnecessary to formulate any general, all-encompassing jurisdictional rule. Given the complexities of the many manifestations of federal jurisdiction, together with the countless factual permutations possible under the Federal Rules, there is little profit in attempting to decide, for example, whether there are any "principled" differences between pendent and ancillary jurisdiction; or, if there are, what effect Gibbs had on such differences. Since it is upon Gibbs' language that the lower federal courts have relied in extending the kind of pendent party jurisdiction urged by petitioner here, we think the better approach is to determine what Gibbs did and did not decide, and to identify what we deem are important differences between the jurisdiction sustained in Gibbs and that asserted here. Gibbs and its lineal ancestor, Osborn, were couched in terms of Art. III's grant of judicial power in "Cases . . . arising under this Constitution, the Laws of the United States, and [its] Treaties," since they (and implicitly the cases which linked them) represented inquiries into the scope of Art. III jurisdiction in litigation where the "common nucleus of operative fact" gave rise to nonfederal questions or claims between the parties. None of them posed the need for a further inquiry into the underlying statutory grant of federal jurisdiction or a flexible analysis of concepts such as "question," "claim," and "cause of action," because Congress had not addressed itself by statute to this matter. In short, Congress had said nothing about the scope of the word "Cases" in Art. III which would offer guidance on the Page 427 U. S. 14 kind of elusive question addressed in Osborn and Gibbs: whether and to what extent jurisdiction extended to a parallel state claim against the existing federal defendant. Thus, it was perfectly consistent with Art. III, and the particular grant of subject matter jurisdiction upon which the federal claim against the defendant in those cases was grounded, to require that defendant to answer as well to a second claim deriving from the "common nucleus" of fact, though it be of state law vintage. This would not be an "unfair" use of federal power by the suing party, he already having placed the defendant properly in federal court for a substantial federal cause of action. Judicial economy would also be served because the plaintiff's claims were "such that he would ordinarily be expected to try them all in one judicial proceeding. . . ." Gibbs, 383 U.S. at 383 U. S. 725 . The situation with respect to the joining of a new party, however, strikes us as being both factually and legally different from the situation facing the Court in Gibbs and its predecessors. From a purely factual point of view, it is one thing to authorize two parties, already present in federal court by virtue of a case over which the court has jurisdiction, to litigate in addition to their federal claim a state law claim over which there is no independent basis of federal jurisdiction. But it is quite another thing to permit a plaintiff, who has asserted a claim against one defendant with respect to which there is federal jurisdiction, to join an entirely different defendant on the basis of a state law claim over which there is no independent basis of federal jurisdiction, simply because his claim against the first defendant and his claim against the second defendant "derive from a common nucleus of operative fact." Ibid. True, the same considerations of judicial economy would be served Page 427 U. S. 15 insofar as plaintiff's claims "are such that he would ordinarily be expected to try them all in one judicial proceeding. . . ." Ibid. But the addition of a completely new party would run counter to the well established principle that federal courts, as opposed to state trial courts of general jurisdiction, are courts of limited jurisdiction marked out by Congress. We think there is much sense in the observation of Judge Sobeloff, writing for the Court of Appeals in Kenrose Mfg. Co. v. Fred Whitaker Co., 512 F.2d 890, 894 (CA4 1972): "The value of efficiency in the disposition of lawsuits by avoiding multiplicity may be readily conceded, but that is not the only consideration a federal court should take into account in assessing the presence or absence of jurisdiction. Especially is this true where, as here, the efficiency plaintiff seeks so avidly is available without question in the state courts." There is also a significant legal difference. In Osborn and Gibbs, Congress was silent on the extent to which the defendant, already properly in federal court under a statute, might be called upon to answer nonfederal questions or claims; the way was thus left open for the Court to fashion its own rules under the general language of Art. III. But the extension of Gibbs to this kind of "pendent party" jurisdiction -- bringing in an additional defendant at the behest of the plaintiff -- presents rather different statutory jurisdictional considerations. Petitioner's contention that she should be entitled to sue Spokane County as a new third party, and then to try a wholly state law claim against the county, all of which would be "pendent" to her federal claim against respondent county treasurer, must be decided not in the context of congressional silence or tacit encouragement, but in Page 427 U. S. 16 quite the opposite context. The question here, which it was not necessary to address in Gibbs or Osborn, is whether, by virtue of the statutory grant of subject matter jurisdiction, upon which petitioner's principal claim against the treasurer rests, Congress has addressed itself to the party as to whom jurisdiction pendent to the principal claim is sought. And it undoubtedly has done so. III Congress has, in specific terms, conferred Art. III jurisdiction on the district courts to decide actions brought to redress deprivations of civil rights. Under the opening language of § 1343, [ Footnote 9 ] those courts "shall have original jurisdiction of any civil action authorized by law to be commenced by any person . . ." (emphasis added). The civil rights action set out in § 1983 [ Footnote 10 ] is, of course, included within the jurisdictional grant of subsection (3) of § 1343. Yet petitioner does not, and indeed could not, contest the fact that, as to § 1983, counties are excluded from the "person[s]" answerable to the plaintiff "in an action at law [or] suit in equity" to redress the enumerated deprivations. [ Footnote 11 ] Petitioner must necessarily argue that, in spite of the language emphasized above, Congress left it open for the federal courts to fashion a jurisdictional doctrine under the general language of Art. III enabling them to circumvent this exclusion as long as the civil rights action and the state law claim arise from a "common nucleus of operative fact." But the question whether jurisdiction over the instant lawsuit extends not only to a related state law claim, but to the defendant against whom that claim is made, turns initially not on the general Page 427 U. S. 17 contours of the language in Art. III, i.e., "Cases . . . arising under," but upon the deductions which may be drawn from congressional statutes as to whether Congress wanted to grant this sort of jurisdiction to federal courts. Parties such as counties, whom Congress excluded from liability in § 1983, and therefore by reference in the grant of jurisdiction under § 1343(3), can argue with a great deal of force that the scope of that "civil action" over which the district courts have been given statutory jurisdiction should not be so broadly read as to bring them back within that power merely because the facts also give rise to an ordinary civil action against them under state law. In short, as against a plaintiff's claim of additional power over a "pendent party," the reach of the statute conferring jurisdiction should be construed in light of the scope of the cause of action as to which federal judicial power has been extended by Congress. Resolution of a claim of pendent party jurisdiction, therefore, calls for careful attention to the relevant statutory language. As we have indicated, we think a fair reading of the language used in § 1343, together with the scope of § 1983, requires a holding that the joinder of a municipal corporation, like the county here, for purposes of asserting a state law claim not within federal diversity jurisdiction, is without the statutory jurisdiction of the district court. [ Footnote 12 ] Page 427 U. S. 18 There are, of course, many variations in the language which Congress has employed to confer jurisdiction upon the federal courts, and we decide here only the issue of so-called "pendent party" jurisdiction with respect to a claim brought under §§ 1343(3) and 1983. Other statutory grants and other alignments of parties and claims might call for a different result. When the grant of jurisdiction to a federal court is exclusive, for example, as in the prosecution of tort claims against the United States under 28 U.S.C. § 1346, the argument of judicial economy and convenience can be coupled with the additional argument that only in a federal court may all of the claims be tried together. [ Footnote 13 ] As we indicated at the outset of this opinion, the question of pendent party jurisdiction is "subtle and complex," and we believe that it would be as unwise as it would be unnecessary to lay down any sweeping pronouncement upon the existence or exercise of such jurisdiction. Two observations suffice for the disposition of the type of case before us. If the new party sought to be joined is not otherwise subject to federal jurisdiction, there is a more serious obstacle to the exercise of pendent jurisdiction than if parties already before the court are required to litigate a state law claim. Before it can be concluded that such jurisdiction exists, a federal court must satisfy itself not only that Art. III permits it, but that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence. Page 427 U. S. 19 We conclude that, in this case, Congress has, by implication, declined to extend federal jurisdiction over a party such as Spokane County. The judgment of the Court of Appeals for the Ninth Circuit is therefore Affirmed. [ Footnote 1 ] Wash.Rev.Code § 36.16.070 (1974). [ Footnote 2 ] "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." [ Footnote 3 ] "The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:" " * * * *" "(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States. . . ." The Court of Appeals also noted that petitioner's complaint alleged that jurisdiction lay under 28 U.S.C. § 1331, and that the amount in controversy exceeded $10,000. This was apparently an attempt to plead a cause of action directly under the Fourteenth Amendment, irrespective of the implementing civil rights legislation. The Court of Appeals, however, stated that petitioner had "consistently chosen to rely upon" 42 U.S.C. § 1983, together with 28 U.S.C. § 1343(3), and pendent jurisdiction as the bases for her action against Spokane County. Thus, neither the District Court nor the Court of Appeals reached the question whether the complaint stated a cause of action over which § 1331 jurisdiction would lie. Petitioner did not raise the question in her petition for certiorari, and it is therefore not before us. [ Footnote 4 ] There is no diversity of citizenship under 28 U.S.C. § 1332 among the parties here, since all are citizens of the State of Washington. [ Footnote 5 ] See, e.g., cases cited in Moor v. County of Alameda, 411 U. S. 693 , 411 U. S. 713 -714, nn. 29-30 (1973). [ Footnote 6 ] See, e.g., 3A J. Moore, Federal Practice 18.07[1.-4] (2d ed.1974); P. Bator, p. Mishkin, D. Shapiro, & H. Wechsler, Hart and Wechsler's The Federal Courts and the Federal System 921-926 (2d ed.1973); C. Wright, Law of Federal Courts § 19 (2d ed.1970); Fortune, Pendent Jurisdiction -- The Problem of "Pendenting Parties," 34 U.Pitt.L.Rev. 1 (1972); Shakman, The New Pendent Jurisdiction of the Federal Courts, 20 Stan.L.Rev. 262 (1968). [ Footnote 7 ] As one commentator has stated: "Once it is agreed that a state court cannot interfere with property in the control of the federal court, the notion of ancillary jurisdiction put forward in Freeman v. Howe cannot be avoided. Unless the federal court has ancillary jurisdiction to hear the claims of all persons to the property, regardless of their citizenship, some persons, with a valid claim to the property, would be deprived of any forum in which to press that claim." C. Wright, Law of Federal Courts § 9 (2d ed.1970). Ben-Hur sets out a corollary to Howe: ancillary jurisdiction extends to subsequent suits brought to effectuate a federal court's judgment determining the rights to such property. [ Footnote 8 ] See Shulman & Jaegerman, Some Jurisdictional Limitations on Federal Procedure, 45 Yale L.J. 393, 413 (1936); 3 J. Moore, Federal Practice � 13.15 (2d ed.1974); C. Wright, Law of Federal Courts § 9 (2d ed.1970). [ Footnote 9 ] See n 3, supra. [ Footnote 10 ] See n 2, supra. [ Footnote 11 ] Monroe v. Pape, 365 U. S. 167 , 365 U. S. 187 -191 (1961); City of Kenosha v. Bruno, 412 U. S. 507 , 412 U. S. 511 -513 (1973). [ Footnote 12 ] The floor debates on the statute which became § 1983, relied upon by our Brother BRENNAN, insofar as any common understanding may be distilled from their diverse strains, indicate a recognition of the authority of United States courts to entertain suits against municipal corporations under their then-existing diversity jurisdiction. It is, of course, a fair inference from this theme that nothing in § 1983 or § 1343 was intended to disturb such jurisdiction, and it seems scarcely necessary to add that nothing we say in this opinion disturbs it in the slightest. All that we hold is that, where the asserted basis of federal jurisdiction over a municipal corporation is not diversity of citizenship, but is a claim of jurisdiction pendent to a suit brought against a municipal officer within § 1343, the refusal of Congress to authorize suits against municipal corporations under the cognate provisions of § 1983 is sufficient to defeat the asserted claim of pendent party jurisdiction. [ Footnote 13 ] See, e.g., Hipp v. United States, 313 F. Supp. 1152 (EDNY 1970). Contra, Williams v. United States, 405 F.2d 951 (CA9 1969). MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR. JUSTICE BLACKMUN join, dissenting. Mine Workers v. Gibbs, 383 U. S. 715 , 383 U. S. 725 -726 (196), held: "Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim 'arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . ,' U.S.Const., Art. III, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional 'case.' The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. . . . The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole." "That power need not be exercised in every case in which it is found to exist. It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff's right. Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise Page 427 U. S. 20 jurisdiction over state claims, even though bound to apply state law to them." (Footnotes omitted.) I Gibbs concerned a state law claim jurisdictionally pendent to one of federal law, but no reason appears why the identical principles should not equally apply to pendent state law claims involving the joinder of additional parties. In either case, the Art. III question concerns only the subject matter, and not the in personam, jurisdiction of the federal courts. In either case, the question of Art. III power in the federal judiciary to exercise subject matter jurisdiction concerns whether the claims asserted are such as "would ordinarily be expected to [be tried] in one judicial proceeding," and the question of discretion addresses "considerations of judicial economy, convenience and fairness to litigants." [ Footnote 2/1 ] To recognize that the addition of parties under the pendent jurisdiction of the federal courts will sometimes alter the balance of "judicial economy, convenience and fairness," or sometimes threaten to embroil federal courts in the resolution of uncertain questions of state law, and thereby make the exercise of this discretionary jurisdiction inappropriate, is only to speak to the question Page 427 U. S. 21 of the proper exercise of judicial discretion in the circumstances, and does not vitiate the Gibbs analysis or its application to the question of pendent party jurisdiction. To fail to recognize the applicability of Gibbs to the situation of pendent parties, as well as claims, would often compel a result aptly described by the Court of Appeals for the Eighth Circuit: "'[I] t would be an unjustifiable waste of judicial and professional time -- indeed, a travesty on sound judicial administration -- to allow plaintiff to try his [federal and state claims against certain codefendants] in Federal court, but to require him to prosecute a claim involving precisely the same facts against [a codefendant joined pursuant only to the pendent state law claim] in a State court.'" Schulman v. Huck Finn, Inc., 472 F.2d 864, 866 (1973) (quoting 350 F. Supp. 853 , 858 (Minn.1972)). In upholding an exercise of pendent party jurisdiction under Gibbs principles in that case, the Court of Appeals reaffirmed, 472 F.2d at 867, an earlier decision of that court by my Brother BLACKMUN, Hatridge v. Aetna Cas. & Surety Co., 415 F.2d 809 (1969). Therein, my Brother BLACKMUN, applying Gibbs principles in finding appropriate the exercise of federal pendent party jurisdiction, set forth an analysis with which I am in complete accord: "[In] appropriate cases, [pendent party jurisdiction] makes good sense; it avoids forum shopping and multiple actions; it tends to reduce costs for litigants; and it avoids the waste of already heavily burdened judicial time." Id. at 817. II The Court today does not disclaim the applicability of Gibbs to the question of federal pendent party jurisdiction. Page 427 U. S. 22 Rather, recognizing sub silentio the absurd results it would create by a disclaimer of the possibility of federal pendent party jurisdiction -- whether under the label of "ancillary" jurisdiction or that of "pendent party," see Moor v. County of Alameda, 411 U. S. 693 , 411 U. S. 714 -715 (1973) -- in a variety of possible contexts under various jurisdictional statutes and the Federal Rules of Civil Procedure, [ Footnote 2/2 ] the Court declines "to lay down any sweeping pronouncement upon the existence or exercise of such jurisdiction." Ante at 427 U. S. 18 . The Court instead reaches its result -- the proclamation of a per se rule forbidding pendent jurisdiction over claims arising under state law against local governmental units when joined with a § 1983 claim even where such claims "derive from a common nucleus of operative fact" -- by purporting to find that, "in this case, Congress has, by implication," expressed its disapproval of federal pendent party jurisdiction "over a party such as Spokane County." Ante at 427 U. S. 19 . That result is demonstrably untenable. The Court seeks to justify its per se rule by analysis of the congressional will as expressed in the federal statutes involved -- 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983. [ Footnote 2/3 ] The test the Court announces is "whether, by Page 427 U. S. 23 virtue of the statutory grant of subject matter jurisdiction, upon which petitioner's principal claim . . . rests, Congress has addressed itself to the party as to whom jurisdiction pendent to the principal claim is sought." Ante at 427 U. S. 16 . At one level of analysis, this test is, of course, meaningless, being capable of application to all cases, because all instances of asserted pendent party jurisdiction will, by definition, involve a party as to whom Congress has impliedly "addressed itself" by not expressly conferring subject matter jurisdiction on the federal courts. But, the Court says, it is drawing "deductions . . . from [the] congressional statutes as to whether Congress wanted to grant this sort of jurisdiction to federal courts," ante at 427 U. S. 17 , and it "conclude[s] that in this case Congress has by implication declined." Ante at 427 U. S. 19 . It is apparent, however, that analysis of the statutory enactments involved, their legislative history, and the congressional policies embodied therein belies the Court's assertion that its purported test for determining the propriety of pendent party jurisdiction yields the result reached today. A The purely jurisdictional statute involved in this case, 28 U.S.C. § 1343(3), in no way speaks to the issue of pendent party jurisdiction in respect to joinder of defendants under pendent state law claims. On its face, that statute speaks only to jurisdiction over civil actions Page 427 U. S. 24 "authorized by law to be commenced by any person," and plainly does not address the question of what parties shall be joined as defendants. Accordingly, the Court necessarily argues its proposition from "the scope of the cause of action," ante at 427 U. S. 17 , created by § 1983. But the legislative history of that enactment plainly gives no support to the Court's argument that Congress, by implication, intended to preclude the exercise of federal jurisdiction over state law claims against local governmental units where such jurisdiction would otherwise lie under application of standard principles. Our precedents, Monroe v. Pape, 365 U. S. 167 (1961), and Moor v. County of Alameda, supra, firmly establish that the sole rationale for construing the "persons" susceptible of liability under § 1983 as excluding local units of government lies in the legislative history of the so-called Sherman Amendment to the Act of April 20, 1871, § 1 of which enacted into law the first version of the present § 1983. [ Footnote 2/4 ] The Senate approved one version of the Amendment proposed by Senator Sherman which would have expressly provided for local governmental liability, [ Footnote 2/5 ] and the House rejected it. [ Footnote 2/6 ] The Conference Committee reported another version, [ Footnote 2/7 ] and the House rejected the Conference Report. [ Footnote 2/8 ] Thereafter, the Senate acceded to the House rejection of the Sherman Amendment, and both Houses substituted in its place § 6 of the 1871 Act, the first version of the present 42 U.S.C. § 1986. [ Footnote 2/9 ] The rejection of the Sherman Amendment, and nothing more, has been the basis upon which we have Page 427 U. S. 25 construed § 1983 liability as not encompassing local governmental units. Monroe v. Pape, supra at 365 U. S. 188 -191; Moor v. County of Alameda, 411 U.S. at 411 U. S. 707 -710. But as those cases recognize, the reason for the House rejection of the Amendment, as stated by Mr. Poland, House Manager of the Conference Committee Report, was that "the House had solemnly decided that, in their judgment, Congress had no constitutional power to impose any obligation upon county and town organizations, the mere instrumentality for the administration of State law." Cong.Globe, 42d Cong., 1st Sess., 804 (1871) (emphasis supplied). See Monroe v. Pape, supra at 365 U. S. 190 ; Moor v. County of Alameda, supra at 411 U. S. 708 . This judgment of the House respecting its lack of constitutional power to "impose . . . liability" " as a matter of federal law, " id. at 411 U. S. 710 n. 27 (emphasis in original), on local governmental units pervades the legislative history of the aborted Sherman Amendment. [ Footnote 2/10 ] In marked contrast in the legislative history of that proposed Amendment, however, is the absence of expression of hostility to federal judicial forums entertaining claims arising under state law. The opponents of the Sherman Amendment were, as the legislative history reveals, fully aware of several existing state laws respecting local government tort liability. [ Footnote 2/11 ] Moreover, the opponents of the proposed Amendment, who consistently objected to the imposition of liability upon local governmental units as a matter of substantive federal law, also consistently expressed their views respecting the entertainment Page 427 U. S. 26 in federal forums of state law claims against local governmental units. "[M]y colleague on this committee says that it is a common practice for the courts of the United States, in the exercise of the judicial powers granted to them in the Constitution, to enforce the performance of judgments against municipalities of this kind, such as counties and cities. I answer him that he, as well as any other intelligent lawyer of this House, well knows that that proposition is true to this extent only, that the Federal courts in the exercise of this grant of judicial powers may, where they have the jurisdiction under the Constitution, compel these municipalities to execute their contracts, and that is all. To execute their contracts; but let it be remembered that no decree of a Federal court has gone to the extent of saying that any one of these divisions should execute its own contracts except in precise compliance with the law of the State, in precise accordance with its own contract and the law upon which it was based, and not in pursuance of any law dictated to it by Congress. In other words, the extent of judicial power hitherto exercised in that direction has been confined to the execution of civil contracts, such as the payment of corporation and municipal bonds issued under State authority, where the courts of the United States had jurisdiction, and then only according to the law of the State recognizing and enforcing fully and kindly, and in all respects within the precise letter of the Constitution, the right of the State to govern itself, to regulate its municipal interests, to say whether a county or State may subscribe to a railroad, may issue or put out bonds and securities in a particular way, how those securities may be made payable and their Page 427 U. S. 27 payment made certain. If any county or city fails to perform its obligations its contracts can be enforced. " Cong.Globe, 42d Cong., 1st ,Sess., 789 (1871) (remarks of Mr. Kerr) (emphasis supplied). "The gentleman from Ohio [Mr. Shellabarger] said this morning that the Supreme Court has decided in favor of this power on the part of Congress. It has done no such thing. Where a State has authorized a city or county to make a contract, and when, under the law of the State, they have made a contract binding themselves, the Supreme Court of the United States has said that they were liable to be sued for the enforcement of that contract. That is all the Supreme Court of the United States have [ sic ] ever decided in regard to the liability of municipal corporations. When the State which created them has authorized them to bind themselves by a contract, and they have done so, the court has very properly said that the courts were open for the enforcement of such contracts, as for enforcing the contracts of other parties. I PRESUME, TOO, THAT WHERE A STATE HAD IMPOSED A DUTY UPON SUCH MUNICIPALITY, AND PROVIDED THEY SHOULD BE LIABLE FOR ANY DAMAGES CAUSED BY FAILURE TO PERFORM SUCH DUTY, THAT AN ACTION WOULD BE ALLOWED TO BE MAINTAINED AGAINST THEM IN THE COURTS OF THE UNITED STATES UNDER THE ORDINARY RESTRICTIONS AS TO JURISDICTION. But the enforcing a liability, existing by their own contract, or by a State law, in the courts, is a very widely different thing from devolving a new duty or liability upon them by the national Government, which has no power either to create or destroy them, Page 427 U. S. 28 and no power or control over them whatever." Id. at 794 (remarks of Mr. Poland) (emphasis supplied). "Congress has never asserted or attempted to assert, so far as I know, any such authority. That amendment claims the power in the General Government to go into the States of this Union and lay such obligations as it may please upon the municipalities, which are the creations of the States alone. Now, sir, that is an exceedingly wide and sweeping power. I am unable to find a proper foundation for it. Though I am not disposed here and now to discuss it very minutely, I wish to say that, thus far, I am unable to see where the authority can rest. I listened with the utmost respect, and with all the attention in my power, to the argument of the gentleman from Ohio, [Mr. Shellabarger,] the chairman of the committee of conference, to see if I could ascertain just where he placed it, and I think I shall do him no wrong when I say that he wholly failed to show the House where the power resides. He did undertake to find some parallel in other action of the judiciary of the United States toward these municipalities, growing out of contracts; but, sir, when a municipality, under the authority given by a State, makes a contract, it thereby lays itself liable to every remedy upon that contract, and it is liable to be sued by its own consent, and with the consent of the State that created it, in any court having jurisdiction of the subject matter of that contract. " " This we all understand very well; but here it is proposed not to carry into effect an obligation which rests upon the municipality, but to create that obligation, and that is the provision I am unable Page 427 U. S. 29 to assent to. " Id. at 795 (remarks of Mr. Blair) (emphasis supplied). ". . . [I]n the first place, I wish to remark that the decisions that have been referred to, those of Knox vs. Lee County and the others, go to this extent only, if I understand rightly their scope: that, where a State imposes a duty upon county officers or State municipal corporations, the exercise of which is necessary to give effect to judgments or decrees of the United States courts, the latter can enforce the performance of that duty. In other words, where, by the laws of a State, the board of supervisors of a county or the common council of a city are authorized to levy a tax and collect funds to pay a judgment, for the purpose of enforcing satisfaction of the judgment, the United States court, by mandamus can compel those State officers, those officers of a municipal corporation, to perform that duty." "But there is no duty imposed by the Constitution of the United States, or usually by State laws, upon a county to protect the people of that county against the commission of the offenses herein enumerated, such as the burning of buildings or any other injury to property or injury to person. Police powers are not conferred upon counties as corporations; they are conferred upon cities that have qualified legislative power. AND SO FAR AS CITIES ARE CONCERNED, WHERE THE EQUAL PROTECTION REQUIRED TO BE AFFORDED BY A STATE IS IMPOSED UPON A CITY BY STATE LAWS, PERHAPS THE UNITED STATES COURTS COULD ENFORCE ITS PERFORMANCE. " Ibid. (remarks of Mr. Burchard) (emphasis supplied). [ Footnote 2/12 ] Page 427 U. S. 30 It is difficult to imagine a clearer recognition by opponents of extension of liability under federal law to a "person" of the difference between the application of federal substantive law to a given party and the entertainment of state law claims respecting that party in federal court, or an instance where the legislative action is more clearly premised upon that distinction. Although the Court purports to be "deduc[ing]" the expressed congressional will as manifested in statutes and their legislative history, today's result is wholly belied by these crystal-clear expressions. B Today's result not only is insupportable under the Court's purported test for ascertaining the propriety of pendent party jurisdiction in the federal courts, but, Page 427 U. S. 31 more importantly, it wholly disregards the congressional intent and policy in enacting the various Civil Rights Acts, including the present § 1983. For, to an extent perhaps unparalleled in our history, the post-Civil War Civil Rights Acts had as a focal point the provision that claims brought under those Acts should be entertained in federal judicial forums. The Civil Rights Acts were enacted in an era of "national feeling born of the Civil War. Nationalism was triumphant; in national administration was sought its vindication." F. Frankfurter & J. Landis, The Business of the Supreme Court 64 (1928). Contemporaneous with the passage of the Civil Rights Acts was the Act of March 3, 1875, which, in conferring general federal question jurisdiction upon the federal courts, thereby made those courts "the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States." Id. at 65; Zwickler v. Koota, 389 U. S. 241 , 389 U. S. 247 (1967). "In thus expanding federal judicial power, Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor's choice of a federal forum for the hearing and decision of his federal constitutional claims." Id. at 389 U. S. 248 . Although there has been disagreement among us upon the question of the precise scope of § 1983, none of us has heretofore denied "the fact that a powerful impulse behind the creation of [§ 1983] was the purpose that it be available in, and be shaped through, original federal tribunals, " or has forgotten " how important providing a federal trial court was among the several purposes of the Ku Klux Act. " Monroe v. Pape, 365 U.S. at 365 U. S. 252 , 365 U. S. 251 (Frankfurter, J., dissenting) (emphasis supplied). [ Footnote 2/13 ] "The predecessor of § 1983 was . . . an important Page 427 U. S. 32 part of the basic alteration in our federal system wrought in the Reconstruction era through federal legislation and constitutional amendment. As a Page 427 U. S. 33 result of he new structure of law that emerged in the post-Civil War era -- and especially of the Fourteenth Amendment, which was its centerpiece -- the role of the Federal Government as a guarantor of basic federal rights against state power was clearly established. . . . Section 1983 opened the federal courts to private citizens, offering a uniquely federal remedy against incursions under the claimed authority of state law upon rights secured by the Constitution and laws of the Nation." Mitchum v. Foster, 407 U. S. 225 , 407 U. S. 238 -239 (1972) (footnotes omitted). An extensive review of the legislative history of § 1983 in Monroe v. Pape, supra at 365 U. S. 173 -180, led this Court to conclude: "It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies." 365 U.S. at 365 U. S. 180 ; id. at 193 (Harlan, J., concurring). Review of that same legislative history in Mitchum v. Foster, supra at 407 U. S. 238 -242, [ Footnote 2/14 ] led us to proclaim it Page 427 U. S. 34 "evident that Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts." " * * * *" "Section 1983 was thus a product of a vast transformation from the concepts of federalism that had prevailed in the late 18th century. . . . The very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal right to protect the people from unconstitutional action under color of state law, 'whether that action be executive, legislative, or judicial.'" 407 U.S. at 407 U. S. 242 . But by the announcement of its per se rule today, the Court undermines past teachings that the availability of a federal forum for claims brought pursuant to § 1983 is crucially important, and, in one fell swoop, erases the legislative Page 427 U. S. 35 intent that those teachings reflect. [ Footnote 2/15 ] After today, a suitor seeking redress in a federal forum under § 1983 and redress for the same wrongs under state law must split his case, and he is remitted to duplicative litigation no matter how expensive, wasteful, and needless. Regardless of the balance of the discretionary factors enunciated in Gibbs; regardless of the clarity of state law respecting the pendent claim against the local governmental unit, cf. Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp.Prob. 216, 232-233 (1948); [ Footnote 2/16 ] regardless of the absolute Page 427 U. S. 36 identity of factual issues between the two claims, see Kates & Kouba, Liability of Public Entities Under Section 1983 of the Civil Rights Act, 45 S.Cal.L.Rev. 131, 162-163 (1972); regardless of the monetary expense and other disadvantages of duplicate litigation, see Fortune, Pendent Jurisdiction -- The Problem of "Pendenting Parties," 34 U.Pitt.L.Rev. 1, 9 (1972); regardless of the waste of judicial time and the "travesty on sound judicial administration," supra at 427 U. S. 21 , the Court, by its per se rule, forces upon a litigant the indefensible choice of either suffering the costs of duplicate litigation or forgoing his right, a right emphatically emphasized in the congressional policy, to a federal forum in which to be heard on his federal claim. To say that the suitor has available a state forum in which conveniently to litigate both his claims, ante at 427 U. S. 15 , [ Footnote 2/17 ] is patently to ignore the real issue, for it is painfully obvious that this does not result in a neutral choice by the suitor among available forums; rather, it imparts a fundamental bias against utilization of the federal forum owing to the deterrent effect imposed by the needless requirement of duplicate litigation if the federal forum is chosen. P. Bator, p. Mishkin, D. Shapiro & H. Wechsler, Hart and Wechsler's The Federal Courts and the Federal System 922-923 (2d ed.1973). Accordingly, rather than Page 427 U. S. 37 paying "due respect to a suitor's choice of a federal forum for the hearing and decision of his federal constitutional claims," Zwickler v. Koota, 389 U.S. at 389 U. S. 248 , the Court today rides roughshod over this congressionally imposed duty and reaches a result that flies in the face of the expressed congressional intent. I dissent. [ Footnote 2/1 ] This has been the holding of the Court of Appeals for the Second Circuit in a series of opinions by Judge Friendly. Almenares v. Wyman, 453 F.2d 1075 (1971); Leather's Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800 (1971); Astor-Honor, Inc. v. Grosset & Dunlap, Inc., 441 F.2d 627 (1971); United States v. Heyward-Robinson Co., 430 F.2d 1077 (1970) (concurring opinion). See also 7 C. Wright & A. Miller, Federal Practice and Procedure § 1659 (1972); Fortune, Pendent Jurisdiction -- The Problem of "Pendenting Parties," 34 U.Pitt.L.Rev. 1 (1972); Note, UMW v. Gibbs and Pendent Jurisdiction, 81 Harv.L.Rev. 657 (1968); Comment, Pendent and Ancillary Jurisdiction: Towards a Synthesis of Two Doctrines, 22 U.C.L.A.L.Rev. 1263 (1975). [ Footnote 2/2 ] As, for example, where a defendant seeks to join under Fed.Rule Civ.Proc. 14 a third-party defendant over whom there is no independent subject matter jurisdiction. The analysis in Gibbs placed emphasis on the fact that the Federal Rules "embody 'the whole tendency of our decisions . . . to require a plaintiff to try his . . . whole case at one time,' . . . and, to that extent, emphasize the basis of pendent jurisdiction." 383 U.S. at 383 U. S. 725 n. 13. The Federal Rules directly encourage the joinder of parties, as well as claims. E.g., Fed.Rules Civ.Proc. 13(h), 14, 19, 20, 22, 24, and 25. [ Footnote 2/3 ] I agree, of course, that Congress may preclude the exercise of pendent party jurisdiction as to particular parties or particular types of claims, and that congressional determination would be binding on this Court. It is worthy of note, however, that Congress has not in the past expressed disapproval of our developments in the law of pendent and ancillary jurisdiction, and "[t]he only congressional enactments on this subject have, in fact, extended, rather than restricted, ancillary jurisdiction in a number of situations." Baker, Toward a Relaxed View of Federal Ancillary and Pendent Jurisdiction, 33 U.Pitt.L.Rev. 759, 763 (1972). [ Footnote 2/4 ] Cong.Globe, 42d Cong., 1st Sess., App. 335 (1871). [ Footnote 2/5 ] Id. at 704-705. [ Footnote 2/6 ] Id. at 725. [ Footnote 2/7 ] Id. at 749. [ Footnote 2/8 ] Id. at 800-801. [ Footnote 2/9 ] Id. at 804. [ Footnote 2/10 ] Id. at 788 (remarks of Mr. Kerr); id. at 791 (remarks of Mr. Willard); id. at 793 (remarks of Mr. Poland); id. at 795 (remarks of Mr. Blair); ibid. (remarks of Mr. Burhard); id. at 799 (remarks of Mr. Farnsworth). [ Footnote 2/11 ] Id. at 792 (Mass.); id. at 799 (N.Y.); id. at 800 (Pa.); ibid. (Ky.). [ Footnote 2/12 ] I can find only one expression of hostility to the federal courts -- and that ambiguous in its context -- in the entire legislative history of the proposed Sherman Amendment: "I care comparatively little about the Sherman amendment, either in its original or modified form. It is too grossly and palpably unconstitutional to receive the sanction of any court that even a Radical President or Senate might organize. The Supreme Court, thank God, has yet a decent respect for constitutional liberty and law, and it will dismiss with the contempt it merits the first case that comes before it seeking to enforce the judgments provided for in this bill, and that will be an end of the Sherman amendment. Therefore, I am not afraid of the practical effect of that piece of narrow-minded, fanatical, and malicious legislation; it overleaps itself. The old English 'hue and cry,' or any other relic of barbarism, cannot save it." "Our written Constitution, its limitations and restrictions, were intended to put an end forever to the exercise of all such legislative and judicial authority by the Federal Government, and leave all these matters to the several States and the people thereof. I care nothing about the minor charges, but I do protest against the continuance and application of the law of July 17, 1862, to the numerous classes of cases provided for in the proposed bill." Id. at 789-790 (remarks of Mr. Beck). [ Footnote 2/13 ] " See the remarks of Mr. Dawes, a member of the Committee which reported the Ku Klux bill, [Cong.Globe, 42d Cong., 1st Sess.] 476:" " The first remedy proposed by this bill is a resort to the courts of the United States. Is that a proper place in which to find redress for any such wrongs? If there be power to call into the courts of the United States an offender against these rights, privileges, and immunities, and hold him to an account there, either civilly or criminally, for their infringement, I submit to the calm and candid judgment of every member of this House that there is no tribunal so fitted, where equal and exact justice would be more likely to be meted out in temper, in moderation, in severity, if need be, but always according to the law and the fact, as that great tribunal of the Constitution." "And see, e.g., the remarks of Mr. Coburn, id. at 459-460:" "Whenever, then, there is a denial of equal protection by the State, the courts of justice of the nation stand with open doors, ready to receive and hear with impartial attention the complaints of those who are denied redress elsewhere. Here may come the weak and poor and downtrodden, with assurance that they shall be heard. Here may come the man smitten with many stripes and ask for redress. Here may come the nation, in her majesty, and demand the trial and punishment of offenders when all, all other tribunals are closed. . . ." " Can these means be made effectual? Can we thus suppress these wrongs? I will say we can but try. The United States courts are further above mere local influence than the county courts; their judges can act with more independence, cannot be put under terror, as local judges can; their sympathies are not so nearly identified with those of the vicinage; the jurors are taken from the State, and not the neighborhood; they will be able to rise above prejudices or bad passions or terror more easily. The marshal, clothed with more power than the sheriff, can make arrests with certainty, and, with the aid of the General Government, can seize offenders in spite of any banded and combined resistance such as may be expected. Thus, at least, these men, who disregard all law, can be brought to trial. Here we stop. The court is to do the rest, acting under all its solemn obligations of duty to country and God. Can we trust it, or are we afraid of our own institutions? Does the grim shadow of the State step into the national court, like a goblin, and terrify us? Does this harmless and helpless ghost drive us from that tribunal -- the State that mocks at justice, the State that licenses outlawry, the State that stands dumb when the lash and the torch and the pistol are lifted every night over the quiet citizen? We believe that we can trust our United States courts, and we propose to do so." Monroe v. Pape, 365 U.S. at 365 U. S. 253 -254, n. 83 (Frankfurter, J., dissenting). [ Footnote 2/14 ] E.g.: "As Representative Lowe stated, the" "records of the [state] tribunals are searched in vain for evidence of effective redress [of federally secured rights]. . . . What less than this [the Civil Rights Act of 1871] will afford an adequate remedy? The Federal Government cannot serve a writ of mandamus upon State Executives or upon State courts to compel them to protect the rights, privileges and immunities of citizens. . . . The case has arisen . . . when the Federal Government must resort to its own agencies to carry its own authority into execution. Hence, this bill throws open the doors of the United States courts to those whose rights under the Constitution are denied or impaired." "Cong.Globe, 42d Cong., 1st Sess., 374-376 (1871)." Mitchum v. Foster, 407 U.S. at 407 U. S. 240 . [ Footnote 2/15 ] See Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp.Prob. 216, 230 (1948): "[I]n [the] instance [of] the rights of action specially conferred by Congress in the Civil Rights Laws . . . , Congress has declared the historic judgment that, within this precious area, often calling for a trial by jury, there is to be no slightest risk of nullification by state process. The danger is unhappily not past. It would be moving in the wrong direction to reduce the jurisdiction in this field -- not because the interest of the state is smaller in such cases, but because its interest is outweighed by other factors of the highest national concern." (Footnote omitted.) [ Footnote 2/16 ] "There is a vice in federal adjudication on state grounds inhering in the fact that federal courts are not the authorized expositors of state law; there is no mechanism by which their errors in such matters can be corrected on appeal by state courts. There is a vice also, as we have recognized by liberal rules of joinder, in forcing plaintiffs who have multiple bases of action to pursue their remedies in pieces and in different courts. It is, however, possible to find a balance for these evils. The balance is achieved if jurisdiction is extended generally to claims that under joinder rules may be asserted in a single action, subject to discretion in the court to dismiss without prejudice claims resting upon state law. When uncertainty obtains as to prevailing local doctrine, when that doctrine is enmeshed in clashing policies that render any legal formulation an intrinsically changing concept, the discretion would be exercised to limit federal adjudication to the federal grounds. When, on the contrary, the issue turns on principles well settled by the state, the federal courts can safely undertake the full adjudication of the case." Id. at 232-233 (footnotes omitted). [ Footnote 2/17 ] The Court today appears to decide sub silentio a hitherto unresolved question by implying that § 1983 claims are not claims exclusively cognizable in federal court, but may also be entertained by state courts. See ante at 427 U. S. 15 , 427 U. S. 18 . This is a conclusion with which I agree.

In Aldinger v. Howard, the Supreme Court held that a federal district court cannot exercise pendent jurisdiction over a claim against a county when the county is not considered a "person" under 42 U.S.C. § 1983 and there is no independent basis for federal jurisdiction. The Court affirmed the lower court's dismissal of the claim against the county, emphasizing the limited jurisdiction of federal courts.

Lawsuits & Legal Procedures

Shaffer v. Heitner

https://supreme.justia.com/cases/federal/us/433/186/

U.S. Supreme Court Shaffer v. Heitner, 433 U.S. 186 (1977) Shaffer v. Heitner No. 75-1812 Argued February 22, 1977 Decided June 24, 1977 433 U.S. 186 APPEAL FROM THE SUPREME COURT OF DELAWARE Syllabus Appellee, a nonresident of Delaware, filed a shareholder's derivative suit in a Delaware Chancery Court, naming as defendants a corporation and its subsidiary, as well as 28 present or former corporate officers or directors, alleging that the individual defendants had violated their duties to the corporation by causing it and its subsidiary to engage in actions (which occurred in Oregon) that resulted in corporate liability for substantial damages in a private antitrust suit and a large fine in a criminal contempt action. Simultaneously, appellee, pursuant to Del.Code Ann., Tit. 10, § 366 (1975), filed a motion for sequestration of the Delaware property of the individual defendants, all nonresidents of Delaware, accompanied by an affidavit identifying the property to be sequestered as stock, options, warrants, and various corporate rights of the defendants. A sequestration order was issued pursuant to which shares and options belonging to 21 defendants (appellants) were "seized" and "stop transfer" orders were placed on the corporate books. Appellants entered a special appearance to quash service of process and to vacate the sequestration order, contending that the ex parte sequestration procedure did not accord them due process; that the property seized was not capable of attachment in Delaware; and that they did not have sufficient contacts with Delaware to sustain jurisdiction of that State's courts under the rule of International Shoe Co. v. Washington, 326 U. S. 310 . In that case, the Court (after noting that the historical basis of in personam jurisdiction was a court's power over the defendant's person, making his presence within the court's territorial jurisdiction a prerequisite to its rendition of a personally binding judgment against him, Pennoyer v. Neff, 95 U. S. 714 ) held that that power was no longer the central concern, and that "due process requires only that, in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice'" (and thus the focus shifted to the relationship among the defendant, the forum, and the litigation, rather than the mutually exclusive sovereignty of the States on which the rules of Pennoyer had rested). The Court of Chancery, rejecting appellants' arguments, upheld the § 366 procedure of compelling the Page 433 U. S. 187 personal appearance of a nonresident defendant to answer and defend a suit brought against him in a court of equity, which is accomplished by the appointment of a sequestrator to seize and hold the property of the nonresident located in Delaware subject to court order, with release of the property being made upon the defendant's entry of a general appearance. The court held that the limitation on the purpose and length of time for which sequestered property is held comported with due process, and that the statutory situs of the stock (under a provision making Delaware the situs of ownership of the capital stock of all corporations existing under the laws of that State) provided a sufficient basis for the exercise of quasi in rem jurisdiction by a Delaware court. The Delaware Supreme Court affirmed, concluding that International Shoe raised no constitutional barrier to the sequestration procedure because "jurisdiction under § 366 remains . . . quasi in rem founded on the presence of capital stock [in Delaware], not on prior contact by defendants with this forum." Held: 1. Whether or not a State can assert jurisdiction over a nonresident must be evaluated according to the minimum contacts standard of International Shoe Co. v. Washington, supra. Pp. 433 U. S. 207 -212. (a) In order to justify an exercise of jurisdiction in rem, the basis for jurisdiction must be sufficient to justify exercising "jurisdiction over the interests of persons in the thing." The presence of property in a State may bear upon the existence of jurisdiction by providing contacts among the forum State, the defendant, and the litigation, as for example, when claims to the property itself are the source of the underlying controversy between the plaintiff and defendant, where it would be unusual for the State where the property is located not to have jurisdiction. Pp. 433 U. S. 207 -208. (b) But where, as in the instant quasi in rem action, the property now serving as the basis for state court jurisdiction is completely unrelated to the plaintiff's cause of action, the presence of the property alone, i.e., absent other ties among the defendant, the State, and the litigation, would not support the State's jurisdiction. Pp. 433 U. S. 208 -209. (c) Though the primary rationale for treating the presence of property alone as a basis for jurisdiction is to prevent a wrongdoer from avoiding payment of his obligations by removal of his assets to a place where he is not subject to an in personam suit, that is an insufficient justification for recognizing jurisdiction without regard to whether the property is in the State for that purpose. Moreover, the availability of attachment procedures and the protection of the Full Faith and Credit Clause also militate against that rationale. Pp. 433 U. S. 209 -210. Page 433 U. S. 188 (d) The fairness standard of International Shoe can be easily applied in the vast majority of cases. P. 433 U. S. 211 . (e) Though jurisdiction based solely on the presence of property in a State has had a long history, "traditional notions of fair play and substantial justice" can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures that do not comport with the basic values of our constitutional heritage. Cf. Sniadach v. Family Finance Corp, 395 U. S. 337 , 395 U. S. 340 ; Wolf v. Colorado, 338 U. S. 25 , 338 U. S. 27 . Pp. 433 U. S. 211 -212. 2. Delaware's assertion of jurisdiction over appellants, based solely as it is on the statutory presence of appellants' property in Delaware, violates the Due Process Clause, which "does not contemplate that a state may make binding a judgment . . . against an individual or corporate defendant with which the state has no contacts, ties, or relations." International Shoe, supra at 433 U. S. 319 . Pp. 433 U. S. 213 -217. (a) Appellants' holdings in the corporation, which are not the subject matter of this litigation and are unrelated to the underlying cause of action, do not provide contacts with Delaware sufficient to support jurisdiction of that State's courts over appellants. P. 433 U. S. 213 . (b) Nor is Delaware state court jurisdiction supported by that State's interest in supervising the management of a Delaware corporation and defining the obligations of its officers and directors, since Delaware bases jurisdiction not on appellants' status as corporate fiduciaries, but on the presence of their property in the State. Moreover, sequestration has been available in any suit against a nonresident, whether against corporate fiduciaries or not. Pp. 433 U. S. 213 -215. (c) Though it may be appropriate for Delaware law to govern the obligations of appellants to the corporation and stockholders, this does not mean that appellants have "purposefully avail[ed themselves] of the privilege of conducting activities within the forum State," Hanson v. Denckla, 357 U. S. 235 , 357 U.S. 253 . Appellants, who were not required to acquire interests in the corporation in order to hold their positions, did not, by acquiring those interests, surrender their right to be brought to judgment in the States in which they had "minimum contacts." Pp. 433 U. S. 215 -216. 361 A.2d 225 , reversed. MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined, and in Parts I-III of which BRENNAN, J., joined. POWELL, J., filed a concurring opinion, post, p. 433 U. S. 217 . STEVENS, J., filed an opinion concurring in the Page 433 U. S. 189 judgment, post, p. 433 U. S. 217 . BRENNAN, J., filed an opinion concurring in part and dissenting in part, post, p. 433 U. S. 219 . REHNQUIST, J., took no part in the consideration or decision of the case. MR. JUSTICE MARSHALL delivered the opinion of the Court. The controversy in this case concerns the constitutionality of a Delaware statute that allows a court of that State to take jurisdiction of a lawsuit by sequestering any property of the defendant that happens to be located in Delaware. Appellants contend that the sequestration statute as applied in this case violates the Due Process Clause of the Fourteenth Amendment both because it permits the state courts to exercise jurisdiction despite the absence of sufficient contacts among the defendants, the litigation, and the State of Delaware and because it authorizes the deprivation of defendants' property without providing adequate procedural safeguards. We find it necessary to consider only the first of these contentions. I Appellee Heitner, a nonresident of Delaware, is the owner of one share of stock in the Greyhound Corp., a business incorporated under the laws of Delaware with its principal place of business in Phoenix, Ariz. On May 22, 1974, he filed a shareholder's derivative suit in the Court of Chancery for New Castle County, Del., in which he named as defendants Greyhound, its wholly owned subsidiary Greyhound Lines, Inc., [ Footnote 1 ] and 28 present or former officers or directors of one or Page 433 U. S. 190 both of the corporations. In essence, Heitner alleged that the individual defendants had violated their duties to Greyhound by causing it and its subsidiary to engage in actions that resulted in the corporation's being held liable for substantial damages in a private antitrust suit [ Footnote 2 ] and a large fine in a criminal contempt action. [ Footnote 3 ] The activities which led to these penalties took place in Oregon. Simultaneously with his complaint, Heitner filed a motion for an order of sequestration of the Delaware property of the individual defendants pursuant to Del.Code Ann., Tit. 10, § 366 (1975). [ Footnote 4 ] This motion was accompanied by a supporting Page 433 U. S. 191 affidavit of counsel which stated that the individual defendants were nonresidents of Delaware. The affidavit identified the property to be sequestered as "common stock, 3% Second Cumulative Preferenced Stock and stock unit credits of the Defendant Greyhound Corporation, a Delaware corporation, as well as all options and all warrants to purchase said stock issued to said individual Defendants and all contractural [ sic ] obligations, all rights, debts or credits due or accrued to or for the benefit of any of the said Defendants under any type of written agreement, contract or other legal instrument of any kind whatever between any of the individual Defendants and said corporation." The requested sequestration order was signed the day the motion was filed. [ Footnote 5 ] Pursuant to that order, the sequestrator [ Footnote 6 ] Page 433 U. S. 192 "seized" approximately 82,000 shares of Greyhound common stock belonging to 19 of the defendants, [ Footnote 7 ] and options belonging to another 2 defendants. [ Footnote 8 ] These seizures were accomplished by placing "stop transfer" orders or their equivalents on the books of the Greyhound Corp. So far as the record shows, none of the certificates representing the seized property was physically present in Delaware. The stock was considered to be in Delaware, and so subject to seizure, by virtue of Del.Code Ann., Tit. 8, § 169 (1975), which makes Delaware the situs of ownership of all stock in Delaware corporations. [ Footnote 9 ] All 28 defendants were notified of the initiation of the suit by certified mail directed to their last known addresses and by publication in a New Castle County newspaper. The 21 defendants whose property was seized (hereafter referred to as appellants) responded by entering a special appearance for Page 433 U. S. 193 the purpose of moving to quash service of process and to vacate the sequestration order. They contended that the ex parte sequestration procedure did not accord them due process of law, and that the property seized was not capable of attachment in Delaware. In addition, appellants asserted that, under the rule of International Shoe Co. v. Washington, 326 U. S. 310 (1945), they did not have sufficient contacts with Delaware to sustain the jurisdiction of that State's courts. The Court of Chancery rejected these arguments in a letter opinion which emphasized the purpose of the Delaware sequestration procedure: "The primary purpose of 'sequestration' as authorized by 10 Del.C. § 366 is not to secure possession of property pending a trial between resident debtors and creditors on the issue of who has the right to retain it. On the contrary, as here employed, 'sequestration' is a process used to compel the personal appearance of a nonresident defendant to answer and defend a suit brought against him in a court of equity. Sands v. Lefcourt Realty Corp., Del.Super., 117 A.2d 365 (1955). It is accomplished by the appointment of a sequestrator by this Court to seize and hold property of the nonresident located in this State subject to further Court order. If the defendant enters a general appearance, the sequestered property is routinely released, unless the plaintiff makes special application to continue its seizure, in which event the plaintiff has the burden of proof and persuasion." App. 75-76. This limitation on the purpose and length of time for which sequestered property is held, the court concluded, rendered inapplicable the due process requirements enunciated in Sniadach v. Family Finance Corp., 395 U. S. 337 (1969); Fuentes v. Shevin, 407 U. S. 67 (1972); and Mitchell v. W. T. Grant Co., 416 U. S. 600 (1974). App. 75-76, 80, 83-85. The court also found no state law or federal constitutional barrier to the sequestrator's reliance on Del.Code Ann., Tit. 8, § 169 Page 433 U. S. 194 (1975). App. 76-79. Finally, the court held that the statutory Delaware situs of the stock provided a sufficient basis for the exercise of quasi in rem jurisdiction by a Delaware court. Id. at 85-87. On appeal, the Delaware Supreme Court affirmed the judgment of the Court of Chancery. Greyhound Corp. v. Heitner, 361 A.2d 225 (1976). Most of the Supreme Court's opinion was devoted to rejecting appellants' contention that the sequestration procedure is inconsistent with the due process analysis developed in the Sniadach line of cases. The court based its rejection of that argument in part on its agreement with the Court of Chancery that the purpose of the sequestration procedure is to compel the appearance of the defendant, a purpose not involved in the Sniadach cases. The court also relied on what it considered the ancient origins of the sequestration procedure and approval of that procedure in the opinions of this Court, [ Footnote 10 ] Delaware's interest in asserting jurisdiction to adjudicate claims of mismanagement of a Delaware corporation, and the safeguards for defendants that it found in the Delaware statute. 361 A.2d at 230-236. Page 433 U. S. 195 Appellants' claim that the Delaware courts did not have jurisdiction to adjudicate this action received much more cursory treatment. The court's analysis of the jurisdictional issue is contained in two paragraphs: "There are significant constitutional questions at issue here, but we say at once that we do not deem the rule of International Shoe to be one of them. . . . The reason, of course, is that jurisdiction under § 366 remains . . . quasi in rem founded on the presence of capital stock here, not on prior contact by defendants with this forum. Under 8 Del. C. § 169 the 'situs of the ownership of the capital stock of all corporations existing under the laws of this State . . . [is] in this State,' and that provides the initial basis for jurisdiction. Delaware may constitutionally establish situs of such shares here, . . . it has done so and the presence thereof provides the foundation for § 366 in this case. . . . On this issue, we agree with the analysis made and the conclusion reached by Judge Stapleton in U.S. Industries, Inc. v. Gregg, D.Del., 348 F. Supp. 1004 (1972). [ Footnote 11 ]" "We hold that seizure of the Greyhound shares is not invalid because plaintiff has failed to meet the prior contacts tests of International Shoe. " Id. at 22. We noted probable jurisdiction. 429 U.S. 813. [ Footnote 12 ] We reverse. Page 433 U. S. 196 II The Delaware courts rejected appellants' jurisdictional challenge by noting that this suit was brought as a quasi in rem proceeding. Since quasi in rem jurisdiction is traditionally based on attachment or seizure of property present in the jurisdiction, not on contacts between the defendant and the State, the courts considered appellants' claimed lack of contacts with Delaware to be unimportant. This categorical analysis assumes the continued soundness of the conceptual structure founded on the century-old case of Pennoyer v. Neff, 95 U. S. 714 (1878). Pennoyer was an ejectment action brought in federal court under the diversity jurisdiction. Pennoyer, the defendant in that action, held the land under a deed purchased in a sheriff's sale conducted to realize on a judgment for attorney's fees obtained against Neff in a previous action by one Mitchell. At the time of Mitchell's suit in an Oregon State court, Neff was a nonresident of Oregon. An Oregon statute allowed service by publication on nonresidents who had property in the State, [ Footnote 13 ] and Mitchell had used that procedure to bring Neff Page 433 U. S. 197 before the court. The United States Circuit Court for the District of Oregon, in which Neff brought his ejectment action, refused to recognize the validity of the judgment against Neff in Mitchell's suit, and accordingly awarded the land to Neff. [ Footnote 14 ] This Court affirmed. Mr. Justice Field's opinion for the Court focused on the territorial limits of the States' judicial powers. Although recognizing that the States are not truly independent sovereigns, Mr. Justice Field found that their jurisdiction was defined by the "principles of public law" that regulate the relationships among independent nations. The first of those principles was "that every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory." The second was "that no State can exercise direct jurisdiction and authority over persons or property without its territory." Id. at 95 U. S. 722 . Thus, "in virtue of the State's jurisdiction over the property of the nonresident situated within its limits," the state courts "can inquire into that nonresident's obligations to its own citizens . . . to the extent necessary to control the disposition of the property." Id. at 95 U. S. 723 . The Court recognized that, if the conclusions of that inquiry were adverse to the nonresident property owner, his interest in the property would be affected. Ibid. Similarly, if the defendant consented to the jurisdiction of the state courts or was personally served within the State, a judgment could affect his interest in property outside the State. But any attempt "directly" to assert extraterritorial jurisdiction over persons or property would offend sister States and exceed the inherent limits of the State's power. A judgment resulting from such an attempt, Mr. Justice Field concluded, was not only unenforceable Page 433 U. S. 198 in other States, [ Footnote 15 ] but was also void in the rendering State because it had been obtained in violation of the Due Process Clause of the Fourteenth Amendment. Id. at 95 U. S. 732 -733. See also e.g., Freeman v. Alderson, 119 U. S. 185 , 119 U. S. 187 -188 (1886). This analysis led to the conclusion that Mitchell's judgment against Neff could not be validly based on the State's power over persons within its borders, because Neff had not been personally served in Oregon, nor had he consensually appeared before the Oregon court. The Court reasoned that, even if Neff had received personal notice of the action, service of process outside the State would have been ineffectual, since the State's power was limited by its territorial boundaries. Moreover, the Court held, the action could not be sustained on the basis of the State's power over property within its borders because that property had not been brought before the court by attachment or any other procedure prior to judgment. [ Footnote 16 ] Since the judgment which authorized the sheriff's sale was therefore invalid, the sale transferred no title. Neff regained his land. From our perspective, the importance of Pennoyer is not its result, but the fact that its principles and corollaries derived from them became the basic elements of the constitutional Page 433 U. S. 199 doctrine governing state court jurisdiction. See, e.g., Hazard, A General Theory of State Court Jurisdiction, 1965 Sup.Ct.Rev. 241 (hereafter Hazard). As we have noted, under Pennoyer, state authority to adjudicate was based on the jurisdiction's power over either persons or property. This fundamental concept is embodied in the very vocabulary which we use to describe judgments. If a court's jurisdiction is based on its authority over the defendant's person, the action and judgment are denominated " in personam, " and can impose a personal obligation on the defendant in favor of the plaintiff. If jurisdiction is based on the court's power over property within its territory, the action is called " in rem " or " quasi in rem. " The effect of a judgment in such a case is limited to the property that supports jurisdiction, and does not impose a personal liability on the property owner, since he is not before the court. [ Footnote 17 ] In Pennoyer's terms, the owner is affected only "indirectly" by an in rem judgment adverse to his interest in the property subject to the court's disposition. By concluding that "[t]he authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established," 95 U.S. at 95 U. S. 720 , Pennoyer sharply limited the availability of in personam jurisdiction over defendants not resident in the forum State. If a nonresident defendant could not be found in a State, he could not be sued there. On the other hand, since the State in which property Page 433 U. S. 200 was located was considered to have exclusive sovereignty over that property, in rem actions could proceed regardless of the owner's location. Indeed, since a State's process could not reach beyond its borders, this Court held after Pennoyer that due process did not require any effort to give a property owner personal notice that his property was involved in an in rem proceeding. See, e.g., Ballard v. Hunter, 204 U. S. 241 (1907); Arndt v. Griggs, 134 U. S. 316 (1890); Huling v. Kaw Valley R. Co., 130 U. S. 559 (1889). The Pennoyer rules generally favored nonresident defendants by making them harder to sue. This advantage was reduced, however, by the ability of a resident plaintiff to satisfy a claim against a nonresident defendant by bringing into court any property of the defendant located in the plaintiff's State. See, e.g., Zammit, Quasi-In-Rem Jurisdiction: Outmoded and Unconstitutional?, 49 St. John's L.Rev. 668, 670 (1975). For example, in the well known case of Harris v. Balk, 198 U. S. 215 (1905), Epstein, a resident of Maryland, had a claim against Balk, a resident of North Carolina. Harris, another North Carolina resident, owed money to Balk. When Harris happened to visit Maryland, Epstein garnished his debt to Balk. Harris did not contest the debt to Balk, and paid it to Epstein's North Carolina attorney. When Balk later sued Harris in North Carolina, this Court held that the Full Faith and Credit Clause, U.S.Const., Art. IV, § 1, required that Harris' payment to Epstein be treated as a discharge of his debt to Balk. This Court reasoned that the debt Harris owed Balk was an intangible form of property belonging to Balk, and that the location of that property traveled with the debtor. By obtaining personal jurisdiction over Harris, Epstein had "arrested" his debt to Balk, 198 U.S. at 198 U. S. 223 , and brought it into the Maryland Court. Under the structure established by Pennoyer, Epstein was then entitled to proceed against that debt to vindicate his claim against Balk, even though Balk himself was not subject to the jurisdiction Page 433 U. S. 201 of a Maryland tribunal. [ Footnote 18 ] See also e.g., Louisville & N. R. Co. v. Deer, 200 U. S. 176 (1906); Steele v. G. D. Searle & Co., 483 F.2d 339 (CA5 1973), cert. denied, 415 U.S. 958 (1974). Pennoyer itself recognized that its rigid categories, even as blurred by the kind of action typified by Harris, could not accommodate some necessary litigation. Accordingly, Mr. Justice Field's opinion carefully noted that cases involving the personal status of the plaintiff, such as divorce actions, could be adjudicated in the plaintiff's home State even though the defendant could not be served within that State. 95 U.S. at 95 U. S. 733 -735. Similarly, the opinion approved the practice of considering a foreign corporation doing business in a State to have consented to being sued in that State. Id. at 95 U. S. 735 -736; See Lafayette Ins. Co. v. French , 18 How. 404 (1856). This Page 433 U. S. 202 basis for in personam jurisdiction over foreign corporations was later supplemented by the doctrine that a corporation doing business in a State could be deemed "present" in the State, and so subject to service of process under the rule of Pennoyer. See, e.g., International Harvester Co. v. Kentucky, 234 U. S. 579 (1914); Philadelphia & Reading R. Co. v. McKibbin, 243 U. S. 264 (1917). See generally Note, Developments in the Law, State-Court Jurisdiction, 73 Harv.L.Rev. 909, 919-923 (1960) (hereafter Developments). The advent of automobiles, with the concomitant increase in the incidence of individuals causing injury in States where they were not subject to in personam actions under Pennoyer, required further moderation of the territorial limits on jurisdictional power. This modification, like the accommodation to the realities of interstate corporate activities, was accomplished by use of a legal fiction that left the conceptual structure established in Pennoyer theoretically unaltered. Cf. Olberding v. Illinois Central R. Co., 346 U. S. 338 , 346 U. S. 340 -341 (1953). The fiction used was that the out-of-state motorist, who it was assumed could be excluded altogether from the State's highways, had, by using those highways, appointed a designated state official as his agent to accept process. See Hess v. Pawloski, 274 U. S. 352 (1927). Since the motorist's "agent" could be personally served within the State, the state courts could obtain in personam jurisdiction over the nonresident driver. The motorists' consent theory was easy to administer, since it required only a finding that the out-of-state driver had used the State's roads. By contrast, both the fictions of implied consent to service on the part of a foreign corporation and of corporate presence required a finding that the corporation was "doing business" in the forum State. Defining the criteria for making that finding and deciding whether they were met absorbed much judicial energy. See, e.g., International Shoe Page 433 U. S. 203 Co. v. Washington, 326 U.S. at 326 U. S. 317 -319. While the essentially quantitative tests which emerged from these cases purported simply to identify circumstances under which presence or consent could be attributed to the corporation, it became clear that they were, in fact, attempting to ascertain "what dealings make it just to subject a foreign corporation to local suit." Hutchinson v. Chase & Gilbert, 45 F.2d 139, 141 (CA2 1930) (L. Hand, J.). In International Shoe, we acknowledged that fact. The question in International Shoe was whether the corporation was subject to the judicial and taxing jurisdiction of Washington. Mr. Chief Justice Stone's opinion for the Court began its analysis of that question by noting that the historical basis of in personam jurisdiction was a court's power over the defendant's person. That power, however, was no longer the central concern: "But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' Milliken v. Meyer, 311 U. S. 457 , 311 U. S. 463 ." 326 U.S. at 326 U. S. 316 . Thus, the inquiry into the State's jurisdiction over a foreign corporation appropriately focused not on whether the corporation was "present," but on whether there have been "such contacts of the corporation with the state of the forum as make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there." Id. at 326 U. S. 317 . Page 433 U. S. 204 Mechanical or quantitative evaluations of the defendant's activities in the forum could not resolve the question of reasonableness: "Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations." Id. at 326 U. S. 319 . [ Footnote 19 ] Thus, the relationship among the defendant, the forum, and the litigation, rather than the mutually exclusive sovereignty of the States on which the rules of Pennoyer rest, became the central concern of the inquiry into personal jurisdiction. [ Footnote 20 ] The immediate effect of this departure from Pennoyer's conceptual apparatus was to increase the ability of the state courts to obtain personal jurisdiction over nonresident defendants. See, e.g., Green, Jurisdictional Reform in California, Page 433 U. S. 205 21 Hastings L.J. 1219, 1231-1233 (1970); Currie, The Growth of the Long Arm: Eight Years of Extended Jurisdiction in Illinois, 1963 U.Ill.L.F. 533; Developments 1000-1008. No equally dramatic change has occurred in the law governing jurisdiction in rem. There have, however, been intimations that the collapse of the in personam wing of Pennoyer has not left that decision unweakened as a foundation for in rem jurisdiction. Well-reasoned lower court opinions have questioned the proposition that the presence of property in a State gives that State jurisdiction to adjudicate rights to the property regardless of the relationship of the underlying dispute and the property owner to the forum. See, e.g., U.S. Industries, Inc. v. Gregg, 540 F.2d 142 (CA3 1976), cert. pending, No. 76-359; Jonnet v. Dollar Savings Bank, 530 F.2d 1123, 1130-1143 (CA3 1976) (Gibbons, J., concurring); Camire v. Scieszka, 116 N.H. 281, 358 A.2d 397 (1976); Bekins v. Huish, 1 Ariz.App. 258, 401 P.2d 743 (1965); Atkinson v. Superior Court, 49 Cal. 2d 338 , 316 P.2d 960 (1957), appeal dismissed and cert. denied sub nom. Columbia Broadcasting System v. Atkinson, 357 U. S. 569 (1958). The overwhelming majority of commentators have also rejected Pennoyer's premise that a proceeding "against" property is not a proceeding against the owners of that property. Accordingly, they urge that the "traditional notions of fair play and substantial justice" that govern a State's power to adjudicate in personam should also govern its power to adjudicate personal rights to property located in the State. See, e.g., Von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv.L.Rev. 1121 (1966) (hereafter Von Mehren & Trautman); Traynor, Is This Conflict Really Necessary?, 37 Texas L.Rev. 657 (1959) (hereafter Traynor); Ehrenzweig, The Transient Rule of Personal Jurisdiction: The "Power" Myth and Forum Conveniens, 65 Yale L.J. 289 (1956); Developments; Hazard. Page 433 U. S. 206 Although this Court has not addressed this argument directly, we have held that property cannot be subjected to a court's judgment unless reasonable and appropriate efforts have been made to give the property owners actual notice of the action. Schroeder v. City of New York, 371 U. S. 208 (1962); Walker v. City of Hutchinson, 352 U. S. 112 (1956); Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 (1950). This conclusion recognizes, contrary to Pennoyer, that an adverse judgment in rem directly affects the property owner by divesting him of his rights in the property before the court. Schroeder v. City of New York, supra at 371 U. S. 213 ; cf. Continental Grain Co. v. Barge FBL-585, 364 U. S. 19 (1960) (separate actions against barge and barge owner are one "civil action" for purpose of transfer under 28 U.S.C. § 1404(a)). Moreover, in Mullane, we held that Fourteenth Amendment rights cannot depend on the classification of an action as in rem or in personam, since that is "a classification for which the standards are so elusive and confused generally, and which, being primarily for state courts to define, may and do vary from state to state." 339 U.S. at 339 U. S. 312 . It is clear, therefore, that the law of state court jurisdiction no longer stands securely on the foundation established in Pennoyer. [ Footnote 21 ] We think that the time is ripe to consider whether the standard of fairness and substantial justice set forth in International Shoe should be held to govern actions in rem as well as in personam. Page 433 U. S. 207 III The case for applying to jurisdiction in rem the same test of "fair play and substantial justice" as governs assertions of jurisdiction in personam is simple and straightforward. It is premised on recognition that "[t]he phrase, judicial jurisdiction over a thing,' is a customary elliptical way of referring to jurisdiction over the interests of persons in a thing." Restatement (Second) of Conflict of Laws § 56, Introductory Note (1971) (hereafter Restatement). [ Footnote 22 ] This recognition leads to the conclusion that, in order to justify an exercise of jurisdiction in rem, the basis for jurisdiction must be sufficient to justify exercising "jurisdiction over the interests of persons in a thing." [ Footnote 23 ] The standard for determining whether an exercise of jurisdiction over the interests of persons is consistent with the Due Process Clause is the minimum contacts standard elucidated in International Shoe. This argument, of course, does not ignore the fact that the presence of property in a State may bear on the existence of jurisdiction by providing contacts among the forum State, the defendant, and the litigation. For example, when claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant, [ Footnote 24 ] it would be unusual for the State where the property is located not to have jurisdiction. In such cases, the defendant's claim to property Page 433 U. S. 208 located in the State would normally [ Footnote 25 ] indicate that he expected to benefit from the State's protection of his interest. [ Footnote 26 ] The State's strong interests in assuring the marketability of property within its borders [ Footnote 27 ] and in providing a procedure for peaceful resolution of disputes about the possession of that property would also support jurisdiction, as would the likelihood that important records and witnesses will be found in the State. [ Footnote 28 ] The presence of property may also favor jurisdiction in cases, such as suits for injury suffered on the land of an absentee owner, where the defendant's ownership of the property is conceded, but the cause of action is otherwise related to rights and duties growing out of that ownership. [ Footnote 29 ] It appears, therefore, that jurisdiction over many types of actions which now are or might be brought in rem would not be affected by a holding that any assertion of state court jurisdiction must satisfy the International Shoe standard. [ Footnote 30 ] For the type of quasi in rem action typified by Harris v. Balk and the present case, however, accepting the proposed analysis would result in significant change. These are cases where Page 433 U. S. 209 the property which now serves as the basis for state court jurisdiction is completely unrelated to the plaintiff's cause of action. Thus, although the presence of the defendant's property in a State might suggest the existence of other ties among the defendant, the State, and the litigation, the presence of the property alone would not support the State's jurisdiction. If those other ties did not exist, cases over which the State is now thought to have jurisdiction could not be brought in that forum. Since acceptance of the International Shoe test would most affect this class of cases, we examine the arguments against adopting that standard as they relate to this category of litigation. [ Footnote 31 ] Before doing so, however, we note that this type of case also presents the clearest illustration of the argument in favor of assessing assertions of jurisdiction by a single standard. For in cases such as Harris and this one, the only role played by the property is to provide the basis for bringing the defendant into court. [ Footnote 32 ] Indeed, the express purpose of the Delaware sequestration procedure is to compel the defendant to enter a personal appearance. [ Footnote 33 ] In such cases, if a direct assertion of personal jurisdiction over the defendant would violate the Constitution, it would seem that an indirect assertion of that jurisdiction should be equally impermissible. Page 433 U. S. 210 The primary rationale for treating the presence of property as a sufficient basis for jurisdiction to adjudicate claims over which the State would not have jurisdiction if International Shoe applied is that a wrongdoer "should not be able to avoid payment of his obligations by the expedient of removing his assets to a place where he is not subject to an in personam suit." Restatement § 66, Comment a. Accord, Developments 955. This justification, however, does not explain why jurisdiction should be recognized without regard to whether the property is present in the State because of an effort to avoid the owner's obligations. Nor does it support jurisdiction to adjudicate the underlying claim. At most, it suggests that a State in which property is located should have jurisdiction to attach that property, by use of proper procedures, [ Footnote 34 ] as security for a judgment being sought in a forum where the litigation can be maintained consistently with International Shoe. See, e.g., Von Mehren & Trautman 1178; Hazard 284-285; Beale, supra, n 18, at 123-124. Moreover, we know of nothing to justify the assumption that a debtor can avoid paying his obligations by removing his property to a State in which his creditor cannot obtain personal jurisdiction over him. [ Footnote 35 ] The Full Faith and Credit Clause, after all, makes the valid in personam judgment of one State enforceable in all other States. [ Footnote 36 ] Page 433 U. S. 211 It might also be suggested that allowing in rem jurisdiction avoids the uncertainty inherent in the International Shoe standard and assures a plaintiff of a forum. [ Footnote 37 ] See Folk & Moyer, supra, n 10, at 749, 767. We believe, however, that the fairness standard of International Shoe can be easily applied in the vast majority of cases. Moreover, when the existence of jurisdiction in a particular forum under International Shoe is unclear, the cost of simplifying the litigation by avoiding the jurisdictional question may be the sacrifice of "fair play and substantial justice." That cost is too high. We are left, then, to consider the significance of the long history of jurisdiction based solely on the presence of property in a State. Although the theory that territorial power is both essential to and sufficient for jurisdiction has been undermined, we have never held that the presence of property in a State does not automatically confer jurisdiction over the owner's interest in that property. [ Footnote 38 ] This history must be Page 433 U. S. 212 considered as supporting the proposition that jurisdiction based solely on the presence of property satisfies the demands of due process, cf. Ownbey v. Morgan, 256 U. S. 94 , 256 U. S. 111 (1921), but it is not decisive. "[T]raditional notions of fair play and substantial justice" can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures that are inconsistent with the basic values of our constitutional heritage. Cf. Sniadach v. Family Finance Corp., 395 U.S. at 395 U. S. 340 ; Wolf v. Colorado, 338 U. S. 25 , 338 U. S. 27 (1949). The fiction that an assertion of jurisdiction over property is anything but an assertion of jurisdiction over the owner of the property supports an ancient form without substantial modern justification. Its continued acceptance would serve only to allow state court jurisdiction that is fundamentally unfair to the defendant. We therefore conclude that all assertions of state court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny. [ Footnote 39 ] Page 433 U. S. 213 IV The Delaware courts based their assertion of jurisdiction in this case solely on the statutory presence of appellants' property in Delaware. Yet that property is not the subject matter of this litigation, nor is the underlying cause of action related to the property. Appellants' holdings in Greyhound do not, therefore, provide contacts with Delaware sufficient to support the jurisdiction of that State's courts over appellants. If it exists, that jurisdiction must have some other foundation. [ Footnote 40 ] Appellee Heitner did not allege, and does not now claim, that appellants have ever set foot in Delaware. Nor does he identify any act related to his cause of action as having taken place in Delaware. Nevertheless, he contends that appellants' positions as directors and officers of a corporation chartered in Delaware [ Footnote 41 ] provide sufficient "contacts, ties, or relations," International Shoe Co. v. Washington, 326 U.S. at Page 433 U. S. 214 326 U. S. 319 , with that State to give its courts jurisdiction over appellants in this stockholder's derivative action. This argument is based primarily on what Heitner asserts to be the strong interest of Delaware in supervising the management of a Delaware corporation. That interest is said to derive from the role of Delaware law in establishing the corporation and defining the obligations owed to it by its officers and directors. In order to protect this interest, appellee concludes, Delaware's courts must have jurisdiction over corporate fiduciaries such as appellants. This argument is undercut by the failure of the Delaware Legislature to assert the state interest appellee finds so compelling. Delaware law bases jurisdiction not on appellants' status as corporate fiduciaries, but rather on the presence of their property in the State. Although the sequestration procedure used here may be most frequently used in derivative suits against officers and directors, Hughes Tool Co. v. Fawcett Publications, Inc., 290 A.2d 693 , 695 (Del.Ch.1972), the authorizing statute evinces no specific concern with such actions. Sequestration can be used in any suit against a nonresident, [ Footnote 42 ] see, e.g., U.S. Industries, Inc. v. Gregg, 540 F.2d 142 (CA3 1976), cert. pending, No. 76-359 (breach of contract); Hughes Tool Co. v. Fawcett Publications, Inc., supra, (same), and reaches corporate fiduciaries only if they happen to own interests in a Delaware corporation, or other property in the State. But as Heitner's failure to secure jurisdiction over seven of the defendants named in his complaint demonstrates, there is no necessary relationship between holding a position as a corporate fiduciary and owning stock or other interests in the corporation. [ Footnote 43 ] If Delaware perceived its interest in securing jurisdiction over corporate fiduciaries Page 433 U. S. 215 to be as great as Heitner suggests, we would expect it to have enacted a statute more clearly designed to protect that interest. Moreover, even if Heitner's assessment of the importance of Delaware's interest is accepted, his argument fails to demonstrate that Delaware is a fair forum for this litigation. The interest appellee has identified may support the application of Delaware law to resolve any controversy over appellants' actions in their capacities as officers and directors. [ Footnote 44 ] But we have rejected the argument that, if a State's law can properly be applied to a dispute, its courts necessarily have jurisdiction over the parties to that dispute. "[The State] does not acquire . . . jurisdiction by being the 'center of gravity' of the controversy, or the most convenient location for litigation. The issue is personal jurisdiction, not choice of law. It is resolved in this case by considering the acts of the [appellants]." Hanson v. Denckla, 357 U. S. 235 , 357 U. S. 254 (1958). [ Footnote 45 ] Appellee suggests that, by accepting positions as officers or directors of a Delaware corporation, appellants performed the acts required by Hanson v. Denckla. He notes that Delaware law provides substantial benefits to corporate officers and directors, [ Footnote 46 ] and that these benefits were, at least in part, Page 433 U. S. 216 the incentive for appellants to assume their positions. It is, he says, "only fair and just" to require appellants, in return for these benefits, to respond in the State of Delaware when they are accused of misusing their power. Brief for Appellee 15. But, like Heitner's first argument, this line of reasoning establishes only that it is appropriate for Delaware law to govern the obligations of appellants to Greyhound and its stockholders. It does not demonstrate that appellants have "purposefully avail[ed themselves] of the privilege of conducting activities within the forum State," Hanson v. Denckla, supra at 357 U.S. 253 , in a way that would justify bringing them before a Delaware tribunal. Appellants have simply had nothing to do with the State of Delaware. Moreover, appellants had no reason to expect to be haled before a Delaware court. Delaware, unlike some States, [ Footnote 47 ] has not enacted a statute that treats acceptance of a directorship as consent to jurisdiction in the State. And "[i]t strains reason . . . to suggest that anyone buying securities in a corporation formed in Delaware 'impliedly consents' to subject himself to Delaware's . . . jurisdiction on any cause of action." Folk & Moyer, supra, n 10, at 785. Appellants, who were not required to acquire interests in Greyhound in order to hold their positions, did not, by acquiring those interests, surrender their right to be brought to judgment only in States with which they had had "minimum contacts." The Due Process Clause "does not contemplate that a state may make binding a judgment . . . against an individual or corporate defendant with which the state has no contacts, ties, or relations." International Shoe Co. v. Washington, 326 U.S. at 326 U. S. 319 . Delaware's assertion of jurisdiction over appellants in this case is inconsistent with that constitutional limitation on Page 433 U. S. 217 state power. The judgment of the Delaware Supreme Court must, therefore, be reversed. It is so ordered. MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. [ Footnote 1 ] Greyhound Lines, Inc., is incorporated in California and has its principal place of business in Phoenix, Ariz. [ Footnote 2 ] A judgment of $13,146,090 plus attorneys' fees was entered against Greyhound in Mt. Hood States, Inc. v. Greyhound Corp., 1972-3 Trade Cas. � 74,824, aff'd, ___ F.2d ___ (CA9 1977); App. 10. [ Footnote 3 ] See United States v. Greyhound Corp., 363 F. Supp. 525 (ND Ill.1973) and 370 F. Supp. 881 (ND Ill.), aff'd, 508 F.2d 529 (CA7 1974). Greyhound was fined $100,000 and Greyhound Lines $500,000. [ Footnote 4 ] Section 366 provides: "(a) If it appears in any complaint filed in the Court of Chancery that the defendant or any one or more of the defendants is a nonresident of the State, the Court may make an order directing such nonresident defendant or defendants to appear by a day certain to be designated. Such order shall be served on such nonresident defendant or defendants by mail or otherwise, if practicable, and shall be published in such manner as the Court directs, not less than once a week for 3 consecutive weeks. The Court may compel the appearance of the defendant by the seizure of all or any part of his property, which property may be sold under the order of the Court to pay the demand of the plaintiff, if the defendant does not appear, or otherwise defaults. Any defendant whose property shall have been so seized and who shall have entered a general appearance in the cause may, upon notice to the plaintiff, petition the Court for an order releasing such property or any part thereof from the seizure. The Court shall release such property unless the plaintiff shall satisfy the Court that, because of other circumstances there is a reasonable possibility that such release may render it substantially less likely that plaintiff will obtain satisfaction of any judgment secured. If such petition shall not be granted, or if no such petition shall be filed, such property shall remain subject to seizure and may be sold to satisfy any judgment entered in the cause. The Court may at any time release such property or any part thereof upon the giving of sufficient security." "(b) The Court may make all necessary rules respecting the form of process, the manner of issuance and return thereof, the release of such property from seizure and for the sale of the property so seized, and may require the plaintiff to give approved security to abide any order of the Court respecting the property." "(c) Any transfer or assignment of the property so seized after the seizure thereof shall be void and after the sale of the property is made and confirmed, the purchaser shall be entitled to and have all the right, title and interest of the defendant in and to the property so seized and sold and such sale and confirmation shall transfer to the purchaser all the right, title and interest of the defendant in and to the property as fully as if the defendant had transferred the same to the purchaser in accordance with law." [ Footnote 5 ] As a condition of the sequestration order, both the plaintiff and the sequestrator were required to file bonds of $1,000 to assure their compliance with the orders of the court. App. 24. Following a technical amendment of the complaint, the original sequestration order was vacated and replaced by an alias sequestration order identical in its terms to the original. [ Footnote 6 ] The sequestrator is appointed by the court to effect the sequestration. is duties appear to consist of serving the sequestration order on the named corporation, receiving from that corporation a list of the property which the order affects, and filing that list with the court. For performing those services in this case, the sequestrator received a fee of $100 under the original sequestration order and $100 under the alias order. [ Footnote 7 ] The closing price of Greyhound stock on the day the sequestration order was issued was $14 8. New York Times, May 23, 1974, p. 62. Thus, the value of the sequestered stock was approximately $1.2 million. [ Footnote 8 ] Debentures, warrants, and stock unit credits belonging to some of the defendants who owned either stock or options were also sequestered. In addition, Greyhound reported that it had an employment contract with one of the defendants calling for payment of $250,000 over a 12-month period. Greyhound refused to furnish any further information on that debt on the ground that, since the sums due constituted wages, their seizure would be unconstitutional. See Sniadach v. Family Finance Corp., 395 U. S. 337 (1969). Heitner did not challenge this refusal. The remaining defendants apparently owned no property subject to the sequestration order. [ Footnote 9 ] Section 169 provides: "For all purposes of title, action, attachment garnishment and jurisdiction of all courts held in this State, but not for the purpose of taxation, the situs of the ownership of the capital stock of all corporations existing under the laws of this State, whether organized under this chapter or otherwise, shall be regarded as in this State." [ Footnote 10 ] The court relied, 361 A.2d at 228, 230-231, on our decision in Ownbey v. Morgan, 256 U. S. 94 (1921), and references to that decision in North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601 , 419 U. S. 610 (1975) (POWELL, J., concurring in judgment); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663 , 416 U. S. 679 n. 14 (1974); Mitchell v. W. T. Grant Co., 416 U. S. 600 , 416 U. S. 613 (1974); Fuentes v. Shevin, 407 U. S. 67 , 407 U. S. 91 n. 23 (1972); Sniadach v. Family Finance Corp., supra at 395 U. S. 339 . The only question before the Court in Ownbey was the constitutionality of a requirement that a defendant whose property has been attached file a bond before entering an appearance. We do not read the recent references to Ownbey as necessarily suggesting that Ownbey is consistent with more recent decisions interpreting the Due Process Clause. Sequestration is the equity counterpart of the process of foreign attachment in suits at law considered in Ownbey. Delaware's sequestration statute was modeled after its attachment statute. See Sands v. Lefcourt Realty Corp., 35 Del.Ch. 340, 344-345, 117 A.2d 365 , 367 (Sup.Ct.1955); Folk & Moyer, Sequestration in Delaware: A Constitutional Analysis, 73 Colum.L.Rev. 749, 751-754 (1973). [ Footnote 11 ] The District Court judgment in U.S. Industries was reversed by the Court of Appeals for the Third Circuit. 540 F.2d 142 (1976), cert. pending, No. 76-359. The Court of Appeals characterized the passage from the Delaware Supreme Court's opinion quoted in text as "cryptic conclusions." Id. at 149. [ Footnote 12 ] Under Delaware law, defendants whose property has been sequestered must enter a general appearance, thus subjecting themselves to in personam liability, before they can defend on the merits. See Greyhound Corp. v. Heitner, 361 A.2d 225 , 235-236 (1976). Thus, if the judgment below were considered not to be an appealable final judgment, 28 U.S.C. § 1257(2), appellants would have the choice of suffering a default judgment or entering a general appearance and defending on the merits. This case is in the same posture as was Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 , 420 U. S. 485 (1975): "The [Delaware] Supreme Court's judgment is plainly final on the federal issue, and is not subject to further review in the state courts. Appellants will be liable for damages if the elements of the state cause of action are proved. They may prevail at trial on nonfederal grounds, it is true, but if the [Delaware] court erroneously upheld the statute, there should be no trial at all." Accordingly, "consistent with the pragmatic approach that we have followed in the past in determining finality," id. at 420 U. S. 486 , we conclude that the judgment below is final within the meaning of § 1257. [ Footnote 13 ] The statute also required that a copy of the summons and complaint be mailed to the defendant if his place of residence was known to the plaintiff or could be determined with reasonable diligence. 95 U.S. at 95 U. S. 718 . Mitchell had averred that he did not know and could not determine Neff's address, so that the publication was the only "notice" given. Id. at 95 U. S. 717 . [ Footnote 14 ] The Federal Circuit Court based its ruling on defects in Mitchell's affidavit in support of the order for service by publication and in the affidavit by which publication was proved. Id. at 95 U. S. 720 . Mr. Justice Field indicated that, if this Court had confined itself to considering those rulings, the judgment would have been reversed. Id. at 95 U. S. 721 . [ Footnote 15 ] The doctrine that one State does not have to recognize the judgment of another State's courts if the latter did not have jurisdiction was firmly established at the time of Pennoyer. See, e.g., 52 U. S. Ketchum, 11 How. 165 (1851); Boswell's Lessee v. Otis , 9 How. 336 (1850); Kibbe v. Kibbe, 1 Kirby 119 (Conn.Super.Ct. 1786). [ Footnote 16 ] Attachment was considered essential to the state court's jurisdiction for two reasons. First, attachment combined with substituted service would provide greater assurance that the defendant would actually receive notice of the action than would publication alone. Second, since the court's jurisdiction depended on the defendant's ownership of property in the State, and could be defeated if the defendant disposed of that property, attachment was necessary to assure that the court had jurisdiction when the proceedings began and continued to have jurisdiction when it entered judgment. 95 U.S. at 95 U. S. 727 -728. [ Footnote 17 ] "A judgment in rem affects the interests of all persons in designated property. A judgment quasi in rem affects the interests of particular persons in designated property. The latter is of two types. In one, the plaintiff is seeking to secure a preexisting claim in the subject property and to extinguish or establish the nonexistence of similar interests of particular persons. In the other, the plaintiff seeks to apply what he concedes to be the property of the defendant to the satisfaction of a claim against him. Restatement, Judgments, 5-9." Hanson v. Denckla, 357 U. S. 235 , 357 U. S. 246 n. 12 (1958). As did the Court in Hanson, we will, for convenience, generally use the term " in rem " in place of " in rem and quasi in rem. " [ Footnote 18 ] The Court in Harris limited its holding to States in which the principal defendant (Balk) could have sued the garnishee (Harris) if he had obtained personal jurisdiction over the garnishee in that State. 198 U.S. at 198 U. S. 222 -223, 198 U. S. 226 . The Court explained: "The importance of the fact of the right of the original creditor to sue his debtor in the foreign State, as affecting the right of the creditor of that creditor to sue the debtor or garnishee, lies in the nature of the attachment proceeding. The plaintiff in such proceeding in the foreign State is able to sue out the attachment and attach the debt due from the garnishee to his (the garnishee's) creditor, because of the fact that the plaintiff is really, in such proceeding, a representative of the creditor of the garnishee, and therefore if such creditor himself had the right to commence suit to recover the debt in the foreign State, his representative has the same right, as representing him, and may garnish or attach the debt, provided the municipal law of the State where the attachment was sued out permits it." Id. at 198 U. S. 226 . The problem with this reasoning is that, unless the plaintiff has obtained a judgment establishing his claim against the principal defendant, see, e.g., Baltimore & O. R. Co. v. Hostetter, 240 U. S. 620 (1916), his right to "represent" the principal defendant in an action against the garnishee is at issue. See Beale, The Exercise of Jurisdiction in Rem to Compel Payment of a Debt, 27 Harv.L.Rev. 107, 118-120 (1913). [ Footnote 19 ] As the language quoted indicates, the International Shoe Court believed that the standard it was setting forth governed actions against natural persons, as well as corporations, and we see no reason to disagree. See also McGee v. International Life Ins. Co., 355 U. S. 220 , 355 U. S. 222 (1957) ( International Shoe culmination of trend toward expanding state jurisdiction over "foreign corporations and other nonresidents"). The differences between individuals and corporations may, of course, lead to the conclusion that a given set of circumstances establishes state jurisdiction over one type of defendant but not over the other. [ Footnote 20 ] Nothing in Hanson v. Denckla, 357 U. S. 235 (1958), is to the contrary. The Hanson Court's statement that restrictions on state jurisdiction "are a consequence of territorial limitations on the power of the respective States," id. at 357 U. S. 251 , simply makes the point that the States are defined by their geographical territory. After making this point, the Court in Hanson determined that the defendant over which personal jurisdiction was claimed had not committed any acts sufficiently connected to the State to justify jurisdiction under the International Shoe standard. [ Footnote 21 ] Cf. Restatement (Second) of Conflict of Laws § 59, Comment a (possible inconsistency between principle of reasonableness which underlies field of judicial jurisdiction and traditional rule of in rem jurisdiction based solely on land in State); § 60, Comment a (same as to jurisdiction based solely on chattel in State); § 68, Comment c (rule of Harris v. Balk "might be thought inconsistent with the basic principle of reasonableness") (1971). [ Footnote 22 ] "All proceedings, like all rights, are really against persons. Whether they are proceedings or rights in rem depends on the number of persons affected." Tyler v. Court of Registration, 175 Mass. 71, 76, 55 N.E. 812, 814 (Holmes, C.J.), appeal dismissed, 179 U. S. 405 (1900). [ Footnote 23 ] It is true that the potential liability of a defendant in an in rem action is limited by the value of the property, but that limitation does not affect the argument. The fairness of subjecting a defendant to state court jurisdiction does not depend on the size of the claim being litigated. Cf. Fuentes v. Shevin, 407 U.S. at 407 U. S. 88 -90; n 32, infra. [ Footnote 24 ] This category includes true in rem actions and the first type of quasi in rem proceedings. See n 17, supra. [ Footnote 25 ] In some circumstances, the presence of property in the forum State will not support the inference suggested in text. Cf., e.g., Restatement § 60, Comments c, d; Traynor 672-673; Note, The Power of a State to Affect Title in a Chattel Atypically Removed to It, 47 Colum.L.Rev. 767 (1947). [ Footnote 26 ] Cf. Hanson v. Denckla, 357 U.S. at 357 U.S. 253 . [ Footnote 27 ] See, e.g., Tyler v. Court of Registration, supra. [ Footnote 28 ] We do not suggest that these illustrations include all the factors that may affect the decision, nor that the factors we have mentioned are necessarily decisive. [ Footnote 29 ] Cf. Dubin v. Philadelphia, 34 Pa.D. & C. 61 (1938). If such an action were brought under the in rem jurisdiction, rather than under a long-arm statute, it would be a quasi in rem action of the second type. See n 17, supra. [ Footnote 30 ] Cf. Smit, The Enduring Utility of In Rem Rules: A Lasting Legacy of Pennoyer v. Neff, 43 Brooklyn L.Rev. 600 (1977). We do not suggest that jurisdictional doctrines other than those discussed in text, such as the particularized rules governing adjudications of status, are inconsistent with the standard of fairness. See, e.g., Traynor 660-661. [ Footnote 31 ] Concentrating on this category of cases is also appropriate because, in the other categories, to the extent that presence of property in the State indicates the existence of sufficient contacts under International Shoe, there is no need to rely on the property as justifying jurisdiction regardless of the existence of those contacts. [ Footnote 32 ] The value of the property seized does serve to limit the extent of possible liability, but that limitation does not provide support for the assertion of jurisdiction. See n 23, supra. In this case, appellants' potential liability under the in rem jurisdiction exceeds $1 million. See nn. 7 8 supra. [ Footnote 33 ] See supra at 433 U. S. 193 , 433 U. S. 194 . This purpose is emphasized by Delaware's refusal to allow any defense on the merits unless the defendant enters a general appearance, thus submitting to full in personam liability. See n 12, supra. [ Footnote 34 ] See North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601 (1975); Mitchell v. W. T. Grant Co, 416 U. S. 600 (1974); Fuentes v. Shevin, 407 U. S. 67 (1972); Sniadach v. Family Finance Corp., 395 U. S. 337 (1969). [ Footnote 35 ] The role of in rem jurisdiction as a means of preventing the evasion of obligations, like the usefulness of that jurisdiction to mitigate the limitations Pennoyer placed on in personam jurisdiction, may once have been more significant. Von Mehren & Trautman 1178. [ Footnote 36 ] Once it has been determined by a court of competent jurisdiction that the defendant is a debtor of the plaintiff, there would seem to be no unfairness in allowing an action to realize on that debt in a State where the defendant has property, whether or not that State would have jurisdiction to determine the existence of the debt as an original matter. Cf. n 18, supra. [ Footnote 37 ] This case does not raise, and we therefore do not consider, the question whether the presence of a defendant's property in a State is a sufficient basis for jurisdiction when no other forum is available to the plaintiff. [ Footnote 38 ] To the contrary, in Pennington v. Fourth Nat. Bank, 243 U. S. 269 , 243 U. S. 271 (1917), we said: "The Fourteenth Amendment did not, in guaranteeing due process of law, abridge the jurisdiction which a State possessed over property within its borders, regardless of the residence or presence of the owner. That jurisdiction extends alike to tangible and to intangible property. Indebtedness due from a resident to a nonresident -- of which bank deposits are an example -- is property within the State. Chicago, Rock Island Pacific Ry. Co. v. Sturm, 174 U. S. 710 . It is, indeed, the species of property which courts of the several States have most frequently applied in satisfaction of the obligations of absent debtors. Harris v. Balk, 198 U. S. 215 . Substituted service on a nonresident by publication furnishes no legal basis for a judgment in personam. Pennoyer v. Neff, 95 U. S. 714 . But garnishment or foreign attachment is a proceeding quasi in rem. Freeman v. Alderson, 119 U. S. 185 , 119 U. S. 187 . The thing belonging to the absent defendant is seized and applied to the satisfaction of his obligation. The Federal Constitution presents no obstacle to the full exercise of this power." See also Huron Holding Corp. v. Lincoln Mine Operating Co., 312 U. S. 183 , 312 U. S. 193 (1941). More recent decisions, however, contain no similar sweeping endorsements of jurisdiction based on property. In Hanson v. Denckla, 357 U.S. at 357 U. S. 246 , we noted that a state court's in rem jurisdiction is "[f]ounded on physical power," and that "[t]he basis of the jurisdiction is the presence of the subject property within the territorial jurisdiction of the forum State." We found in that case, however, that the property which was the basis for the assertion of in rem jurisdiction was not present in the State. We therefore did not have to consider whether the presence of property in the State was sufficient to justify jurisdiction. We also held that the defendant did not have sufficient contact with the State to justify in personam jurisdiction. [ Footnote 39 ] It would not be fruitful for us to reexamine the facts of cases decided on the rationales of Pennoyer and Harris to determine whether jurisdiction might have been sustained under the standard we adopt today. To the extent that prior decisions are inconsistent with this standard, they are overruled. [ Footnote 40 ] Appellants argue that our determination that the minimum contacts standard of International Shoe governs jurisdiction here makes unnecessary any consideration of the existence of such contacts. Brief for Appellants 27; Reply Brief for Appellants 9. They point out that they were never personally served with a summons, that Delaware has no long-arm statute which would authorize such service, and that the Delaware Supreme Court has authoritatively held that the existence of contacts is irrelevant to jurisdiction under Del.Code Ann., Tit. 10, § 366 (1975). As part of its sequestration order, however, the Court of Chancery directed its clerk to send each appellant a copy of the summons and complaint by certified mail. The record indicates that those mailings were made, and contains return receipts from at least 19 of the appellants. None of the appellants has suggested that he did not actually receive the summons which was directed to him in compliance with a Delaware statute designed to provide jurisdiction over nonresidents. In these circumstances, we will assume that the procedures followed would be sufficient to bring appellants before the Delaware courts, if minimum contacts existed. [ Footnote 41 ] On the view we take of the case, we need not consider the significance, if any, of the fact that some appellants hold positions only with a subsidiary of Greyhound which is incorporated in California. [ Footnote 42 ] Sequestration is an equitable procedure available only in equity actions, but a similar procedure may be utilized in actions at law. See n 10, supra. [ Footnote 43 ] Delaware does not require directors to own stock. Del.Code Ann., Tit. 8, § 141(b) (Supp. 1976). [ Footnote 44 ] In general, the law of the State of incorporation is held to govern the liabilities of officers or directors to the corporation and its stockholders. See Restatement § 309. But see Cal.Corp.Code § 2115 (West Supp. 1977). The rationale for the general rule appears to be based more on the need for a uniform and certain standard to govern the internal affairs of a corporation than on the perceived interest of the State of incorporation. Cf. Koster v. Lumbermens Mutual Casualty Co., 330 U. S. 518 , 330 U. S. 527 -528 (1947). [ Footnote 45 ] Mr. Justice Black, although dissenting in Hanson, agreed with the majority that "the question whether the law of a State can be applied to a transaction is different from the question whether the courts of that State have jurisdiction to enter a judgment. . . ." 357 U.S. at 357 U. S. 258 . [ Footnote 46 ] See, e.g., Del.Code Ann., Tit. 8, §§ 143, 145 (1975 ed. and Supp. 1976). [ Footnote 47 ] See, e.g., Conn.Gen.Stat.Rev. § 33-322 (1976); N.C.Gen.Stat. § 55-33 (1975); S.C.Code Ann. § 33-5-70 (1977). MR. JUSTICE POWELL, concurring. I agree that the principles of International Shoe Co. v. Washington, 326 U. S. 310 (1945), should be extended to govern assertions of in rem as well as in personam jurisdiction in a state court. I also agree that neither the statutory presence of appellants' stock in Delaware nor their positions as directors and officers of a Delaware corporation can provide sufficient contacts to support the Delaware courts' assertion of jurisdiction in this case. I would explicitly reserve judgment, however, on whether the ownership of some forms of property whose situs is indisputably and permanently located within a State may, without more, provide the contacts necessary to subject a defendant to jurisdiction within the State to the extent of the value of the property. In the case of real property, in particular, preservation of the common law concept of quasi in rem jurisdiction arguably would avoid the uncertainty of the general International Shoe standard without significant cost to " traditional notions of fair play and substantial justice.'" Id. at 326 U. S. 316 , quoting Milliken v. Meyer, 311 U. S. 457 , 311 U. S. 463 (1940). Subject to the foregoing reservation, I join the opinion of the Court. MR. JUSTICE STEVENS, concurring in the judgment. The Due Process Clause affords protection against "judgments without notice." International Shoe Co. v. Washington, 326 U. S. 310 , 326 U. S. 324 (opinion of Black, J.). Throughout our history, the acceptable exercise of in rem and quasi in rem Page 433 U. S. 218 jurisdiction has included a procedure giving reasonable assurance that actual notice of the particular claim will be conveyed to the defendant. * Thus, publication, notice by registered mail, or extraterritorial personal service has been an essential ingredient of any procedure that serves as a substitute for personal service within the jurisdiction. The requirement of fair notice also, I believe, includes fair warning that a particular activity may subject a person to the jurisdiction of a foreign sovereign. If I visit another State, or acquire real estate or open a bank account in it, I knowingly assume some risk that the State will exercise its power over my property or my person while there. My contact with the State, though minimal, gives rise to predictable risks. Perhaps the same consequences should flow from the purchase of stock of a corporation organized under the laws of a foreign nation, because, to some limited extent, one's property and affairs then become subject to the laws of the nation of domicile of the corporation. As a matter of international law, that suggestion might be acceptable because a foreign investment is sufficiently unusual to make it appropriate to require the investor to study the ramifications of his decision. But a purchase of securities in the domestic market is an entirely different matter. One who purchases shares of stock on the open market can hardly be expected to know that he has thereby become subject to suit in a forum remote from his residence and unrelated to the transaction. As a practical matter, the Delaware sequestration statute creates an unacceptable risk of judgment without notice. Unlike the 49 other States, Delaware treats the place of incorporation as the situs of the stock, even though both the owner and the custodian of the shares are elsewhere. Moreover, Delaware denies the defendant Page 433 U. S. 219 the opportunity to defend the merits of the suit unless he subjects himself to the unlimited jurisdiction of the court. Thus, it coerces a defendant either to submit to personal jurisdiction in a forum which could not otherwise obtain such jurisdiction or to lose the securities which have been attached. If its procedure were upheld, Delaware would, in effect, impose a duty of inquiry on every purchaser of securities in the national market. For unless the purchaser ascertains both the State of incorporation of the company whose shares he is buying, and also the idiosyncrasies of its law, he may be assuming an unknown risk of litigation. I therefore agree with the Court that, on the record before us, no adequate basis for jurisdiction exists, and that the Delaware statute is unconstitutional on its face. How the Court's opinion may be applied in other contexts is not entirely clear to me. I agree with MR. JUSTICE POWELL that it should not be read to invalidate quasi in rem jurisdiction where real estate is involved. I would also not read it as invalidating other long-accepted methods of acquiring jurisdiction over persons with adequate notice of both the particular controversy and the fact that their local activities might subject them to suit. My uncertainty as to the reach of the opinion, and my fear that it purports to decide a great deal more than is necessary to dispose of this case, persuade me merely to concur in the judgment. * "To dispense with personal service, the substitute that is most likely to reach the defendant is the least that ought to be required if substantial justice is to be done." McDonald v. Mabee, 243 U. S. 90 , 243 U. S. 92 . MR. JUSTICE BRENNAN, concurring in part and dissenting in part. I join Parts I-III of the Court's opinion. I fully agree that the minimum contacts analysis developed in International Shoe Co. v. Washington, 326 U. S. 310 (1945), represents a far more sensible construct for the exercise of state court jurisdiction than the patchwork of legal and factual fictions that has been generated from the decision in Pennoyer v. Neff, 95 U. S. 714 (1878). It is precisely because Page 433 U. S. 220 the inquiry into minimum contacts is now of such overriding importance, however, that I must respectfully dissent from 433 U. S. I The primary teaching of Parts I-III of today's decision is that a State, in seeking to assert jurisdiction over a person located outside its borders, may only do so on the basis of minimum contacts among the parties, the contested transaction, and the forum State. The Delaware Supreme Court could not have made plainer, however, that its sequestration statute, Del.Code Ann., Tit. 10, § 366 (1975), does not operate on this basis, but instead is strictly an embodiment of quasi in rem jurisdiction, a jurisdictional predicate no longer constitutionally viable: "[J]urisdiction under § 366 remains . . . quasi in rem founded on the presence of capital stock here, not on prior contact by defendants with this forum." Greyhound Corp. v. Heitner, 361 A.2d 225 , 229 (1976). This state court ruling obviously comports with the understanding of the parties, for the issue of the existence of minimum contacts was never pleaded by appellee, made the subject of discovery, or ruled upon by the Delaware courts. These facts notwithstanding, the Court in 433 U. S. Succinctly stated, once having properly and persuasively decided that the quasi in rem statute that Delaware admits to having enacted is invalid, the Court then proceeds to find that a minimum contacts law that Delaware expressly denies having enacted also could not be constitutionally applied in this case. In my view, a purer example of an advisory opinion is not to be found. True, appellants do not deny having received actual notice of the action in question. Ante at 433 U. S. 213 n. 40. Page 433 U. S. 221 However, notice is but one ingredient of a proper assertion of state court jurisdiction. The other is a statute authorizing the exercise of the State's judicial power along constitutionally permissible grounds -- which henceforth means minimum contacts. As of today, § 366 is not such a law. [ Footnote 2/1 ] Recognizing that today's decision fundamentally alters the relevant jurisdictional ground rules, I certainly would not want to rule out the possibility that Delaware's courts might decide that the legislature's overriding purpose of securing the personal appearance in state courts of defendants would best be served by reinterpreting its statute to permit state jurisdiction on the basis of constitutionally permissible contacts, rather than stock ownership. Were the state courts to take this step, it would then become necessary to address the question of whether minimum contacts exist here. But in the present posture of this case, the Court's decision of this important issue is purely an abstract ruling. My concern with the inappropriateness of the Court's action is highlighted by two other considerations. First, an inquiry into minimum contacts inevitably is highly dependent on creating a proper factual foundation detailing the contacts between the forum State and the controversy in question. Because neither the plaintiff-appellee nor the state courts viewed such an inquiry as germane in this instance, the Court today is unable to draw upon a proper factual record in reaching its conclusion; moreover, its disposition denies appellee the normal opportunity to seek discovery on the contacts issue. Second, it must be remembered that the Court's ruling is a constitutional one, and necessarily Page 433 U. S. 222 will affect the reach of the jurisdictional laws of all 50 States. Ordinarily this would counsel restraint in constitutional pronouncements. Ashwander v. TVA, 297 U. S. 288 , 297 U. S. 345 -348 (1936) (Brandeis, J., concurring). Certainly it should have cautioned the Court against reaching out to decide a question that, as here, has yet to emerge from the state courts ripened for review on the federal issue. II Nonetheless, because the Court rules on the minimum contacts question, I feel impelled to express my view. While evidence derived through discovery might satisfy me that minimum contacts are lacking in a given case, I am convinced that, as a general rule, a state forum has jurisdiction to adjudicate a shareholder derivative action centering on the conduct and policies of the directors and officers of a corporation chartered by that State. Unlike the Court, I therefore would not foreclose Delaware from asserting jurisdiction over appellants were it persuaded to do so on the basis of minimum contacts. It is well settled that a derivative lawsuit, as presented here, does not inure primarily to the benefit of the named plaintiff. Rather, the primary beneficiaries are the corporation and its owners, the shareholders. "The cause of action which such a plaintiff brings before the court is not his own, but the corporation's. . . . Such a plaintiff often may represent an important public and stockholder interest in bringing faithless managers to book." Koster v. Lumbermens Mutual Casualty Co., 330 U. S. 518 , 330 U. S. 522 , 524 (1947). Viewed in this light, the chartering State has an unusually powerful interest in insuring the availability of a convenient forum for litigating claims involving a possible multiplicity of defendant fiduciaries and for vindicating the State's substantive policies regarding the management of its domestic corporations. I believe that our cases fairly establish that Page 433 U. S. 223 the State's valid substantive interests are important considerations in assessing whether it constitutionally may claim jurisdiction over a given cause of action. In this instance, Delaware can point to at least three interrelated public policies that are furthered by its assertion of jurisdiction. First, the State has a substantial interest in providing restitution for its local corporations that allegedly have been victimized by fiduciary misconduct, even if the managerial decisions occurred outside the State. The importance of this general state interest in assuring restitution for its own residents previously found expression in cases that went outside the then-prevailing due process framework to authorize state court jurisdiction over nonresident motorists who injure others within the State. Hess v. Pawloski, 274 U. S. 352 (1927); see Olberding v. Illinois Central R. Co., 346 U. S. 338 , 346 U. S. 341 (1953). More recently, it has led States to seek and to acquire jurisdiction over nonresident tortfeasors whose purely out-of-state activities produce domestic consequences. E.g., Gray v. American Radiator & Standard Sanitary Corp., 22 Ill. 2d 432 , 176 N.E.2d 761 (1961). Second, state courts have legitimately read their jurisdiction expansively when a cause of action centers in an area in which the forum State possesses a manifest regulatory interest. E.g., McGee v. International life Ins. Co., 355 U. S. 220 (1957) (insurance regulation); Travelers Health Assn. v. Virginia, 339 U. S. 643 (1950) (blue sky laws). Only this Term, we reiterated that the conduct of corporate fiduciaries is just such a matter in which the policies and interests of the domestic forum are ordinarily presumed to be paramount. Santa Fe Industries, Inc. v. Green, 430 U. S. 462 , 430 U. S. 478 -480 (1977); see Cort v. Ash, 422 U. S. 66 , 422 U. S. 84 -85 (1975). Finally, a State like Delaware has a recognized, interest in affording a convenient forum for supervising and overseeing the affairs of an entity that is purely the creation of that State's law. For example, even following our decision in Page 433 U. S. 224 International Shoe, New York courts were permitted to exercise complete judicial authority over nonresident beneficiaries of a trust created under state law, even though, unlike appellants here, the beneficiaries personally entered into no association whatsoever with New York. Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 , 339 U. S. 313 (1950); [ Footnote 2/2 ] cf. Hartford Life Ins. Co. v. Ibs, 237 U. S. 662 , 237 U. S. 671 (1915) (litigation concerning management of mortuary fund operated by locally chartered corporation rests in court of that State); Bernheimer v. Converse, 206 U. S. 516 , 206 U. S. 533 (1907) (state courts can oversee liquidation of state-chartered corporation). I, of course, am not suggesting that Delaware's varied interests would justify its acceptance of jurisdiction over any transaction touching upon the affairs of its domestic corporations. But a derivative action which raises allegations of abuses of the basic management of an institution whose existence is created by the State and whose powers and duties are defined by state law fundamentally implicates the public policies of that forum. To be sure, the Court is not blind to these considerations. It notes that the State's interests "may support the application of Delaware law to resolve any controversy over appellants' actions in their capacities as officers and directors." Ante at 433 U. S. 215 . But this, the Court argues, pertains to choice of law, not jurisdiction. I recognize that the jurisdictional and choice of law inquiries are not identical. Hanson v. Denckla, 357 U. S. 235 , 357 U. S. 254 (1958). But I would not compartmentalize thinking in this area quite so rigidly as it seems to me the Court does today, for both inquiries "are Page 433 U. S. 225 often closely related and to a substantial degree depend upon similar considerations." Id. at 357 U. S. 258 (Black, J., dissenting). In either case, an important linchpin is the extent of contacts between the controversy, the parties, and the forum State. While constitutional limitations on the choice of law are by no means settled, see, e.g., Home Ins. Co. v. Dick, 281 U. S. 397 (1930), important considerations certainly include the expectancies of the parties and the fairness of governing the defendants' acts and behavior by rules of conduct created by a given jurisdiction. See, e.g., Restatement (Second) of Conflict of Laws § 6 (1971) (hereafter Restatement). These same factors bear upon the propriety of a State's exercising jurisdiction over a legal dispute. At the minimum, the decision that it is fair to bind a defendant by a State's laws and rules should prove to be highly relevant to the fairness of permitting that same State to accept jurisdiction for adjudicating the controversy. Furthermore, I believe that practical considerations argue in favor of seeking to bridge the distance between the choice of law and jurisdictional inquiries. Even when a court would apply the law of a different forum, [ Footnote 2/3 ] as a general rule, it will feel less knowledgeable and comfortable in interpretation, and less interested in fostering the policies of that foreign jurisdiction, than would the courts established by the State that provides the applicable law. See, e.g., Gulf Oil Co. v. Gilbert, 330 U. S. 501 , 330 U. S. 509 (1947); Restatement § 313, p. 347; Traynor, Is This Conflict Really Necessary?, 37 Texas L.Rev. 657, 664 (1959). Obviously, such choice of law problems cannot entirely be avoided in a diverse legal system such as our own. Nonetheless, when a suitor Page 433 U. S. 226 seeks to lodge a suit in a State with a substantial interest in seeing its own law applied to the transaction in question, we could wisely act to minimize conflicts, confusion, and uncertainty by adopting a liberal view of jurisdiction, unless considerations of fairness or efficiency strongly point in the opposite direction. This case is not one where, in my judgment, this preference for jurisdiction is adequately answered. Certainly nothing said by the Court persuades me that it would be unfair to subject appellants to suit in Delaware. The fact that the record does not reveal whether they "set foot" or committed "act[s] related to [the] cause of action" in Delaware, ante at 433 U. S. 213 , is not decisive, for jurisdiction can be bad strictly on out-of-state acts having foreseeable effects in the forum State. E.g., McGee v. International Life Ins. Co., supra; Gray v. American Radiator & Standard Sanitary Corp., supra; Restatement § 37. I have little difficulty in applying this principle to nonresident fiduciaries whose alleged breaches of trust are said to have substantial damaging effect on the financial posture of a resident corporation. [ Footnote 2/4 ] Further, I cannot understand how the existence of minimum contacts in a constitutional sense is at all affected by Delaware's failure statutorily to express an interest in controlling corporate fiduciaries. Ante at 433 U. S. 214 . To me this simply demonstrates that Delaware Page 433 U. S. 227 did not elect to assert jurisdiction to the extent the Constitution would allow. [ Footnote 2/5 ] Nor would I view as controlling or even especially meaningful Delaware's failure to exact from appellants their consent to be sued. Ante at 433 U. S. 216 . Once we have rejected the jurisdictional framework created in Pennoyer v. Neff, I see no reason to rest jurisdiction on a fictional outgrowth of that system such as the existence of a consent statute, expressed or implied. [ Footnote 2/6 ] I, therefore, would approach the minimum contacts analysis differently than does the Court. Crucial to me is the fact that appellants [ Footnote 2/7 ] voluntarily associated themselves with the Page 433 U. S. 228 State of Delaware, "invoking the benefits and protections of its laws," Hanson v Denckla, 357 U.S. at 357 U.S. 253 ; International Shoe Co. v. Washington, 326 U.S. at 326 U. S. 319 , by entering into a long-term and fragile relationship with one of its domestic corporations. They thereby elected to assume powers and to undertake responsibilities wholly derived from that State's rules and regulations, and to become eligible for those benefits that Delaware law makes available to its corporations' officials. E.g., Del.Code Ann., Tit. 8, § 143 (1975) (interest-free loans); § 145 (1975 ed. and Supp. 1976) (indemnification). While it is possible that countervailing issues of judicial efficiency and the like might clearly favor a different forum, they do not appear on the meager record before us; [ Footnote 2/8 ] and, of course, we are concerned solely with "minimum" contacts, not the "best" contacts. I thus do not believe that it is unfair to insist that appellants make themselves available to suit in a competent forum that Delaware might create for vindication of its important public policies directly pertaining to appellants' fiduciary associations with the State. [ Footnote 2/1 ] Indeed, the Court's decision to proceed to the minimum contacts issue treats Delaware's sequestration statute as if it were the equivalent of Rhode Island's long-arm law, which specifically authorizes its courts to assume jurisdiction to the limit permitted by the Constitution, R.I.Gen.Laws Ann. § 9-33 (1970), thereby necessitating judicial consideration of the frontiers of minimum contacts in every case arising under that statute. [ Footnote 2/2 ] The Mullane Court held: "[T]he interest of each state in providing means to close trusts that exist by the grace of its laws and are administered under the supervision of its courts is so insistent and rooted in custom as to establish beyond doubt the right of its courts to determine the interests of all claimants, resident or nonresident, provided its procedure accords full opportunity to appear and be heard." 339 U.S. at 339 U. S. 313 . [ Footnote 2/3 ] In this case, the record does not inform us whether an actual conflict is likely to arise between Delaware law and that of the likely alternative forum. Pursuant to the general rule, I assume that Delaware law probably would obtain in the foreign court. Restatement § 309. [ Footnote 2/4 ] I recognize, of course, that identifying a corporation as a resident of the chartering State is to build upon a legal fiction. In many respects, however, the law acts as if state chartering of a corporation has meaning. E.g., 28 U.S.C. § 1332(c) (for diversity purposes, a corporation is a citizen of the State of incorporation). And, if anything, the propriety of treating a corporation as a resident of the incorporating State seems to me particularly appropriate in the context of a shareholder derivative suit, for the State realistically may perceive itself as having a direct interest in guaranteeing the enforcement of its corporate laws, in assuring the solvency and fair management of its domestic corporations, and in protecting from fraud those shareholders who placed their faith in that state-created institution. [ Footnote 2/5 ] In fact, it is quite plausible that the Delaware Legislature never felt the need to assert direct jurisdiction over corporate managers precisely because the sequestration statute heretofore has served as a somewhat awkward but effective basis for achieving such personal jurisdiction. See, e.g., Hughes Tool Co. v. Fawcett Publications, Inc., 290 A.2d 693 , 695 (Del.Ch.1972): "Sequestration is most frequently resorted to in suits by stockholders against corporate directors in which recoveries are sought for the benefit of the corporation on the ground of claimed breaches of fiduciary duty on the part of directors." [ Footnote 2/6 ] Admittedly, when one consents to suit in a forum, his expectation is enhanced that he may be haled into that State's courts. To this extent, I agree that consent may have bearing on the fairness of accepting jurisdiction. But whatever is the degree of personal expectation that is necessary to warrant jurisdiction should not depend on the formality of establishing a consent law. Indeed, if one's expectations are to carry such weight, then appellants here might be fairly charged with the understanding that Delaware would decide to protect its substantial interests through its own courts, for they certainly realized that, in the past, the sequestration law has been employed primarily as a means of securing the appearance of corporate officials in the State's courts. 433 U.S. 186 fn2/5|>N. 5, supra. Even in the absence of such a statute, however, the close and special association between a state corporation and its managers should apprise the latter that the State may seek to offer a convenient forum for addressing claims of fiduciary breach of trust. [ Footnote 2/7 ] Whether the directors of the out-of-state subsidiary should be amenable to suit in Delaware may raise additional questions. It may well require further investigation into such factors as the degree of independence in the operations of the two corporations, the interrelationship of the managers of parent and subsidiary in the actual conduct under challenge, and the reasonable expectations of the subsidiary directors that the parent State would take an interest in their behavior. Cf. United States v. First Nat. City Bank, 379 U. S. 378 , 379 U. S. 384 (1965). While the present record is not illuminating on these matters, it appears that all appellants acted largely in concert with respect to the alleged fiduciary misconduct, suggesting that overall jurisdiction might fairly rest in Delaware. [ Footnote 2/8 ] And, of course, if a preferable forum exists elsewhere, a State that is constitutionally entitled to accept jurisdiction nonetheless remains free to arrange for the transfer of the litigation under the doctrine of forum non conveniens. See, e.g., Broderick v. Rosner, 294 U. S. 629 , 294 U. S. 643 (1935); Gulf Oil Co. v. Gilbert, 330 U. S. 501 , 330 U. S. 504 (1947).

Here is a summary of the Supreme Court case Shaffer v. Heitner: The case centers around a nonresident of Delaware who filed a shareholder's derivative suit in a Delaware court against a corporation, its subsidiary, and several corporate officers and directors. The plaintiff simultaneously requested the sequestration of the defendants' Delaware property. The defendants, also nonresidents of Delaware, argued that the ex parte sequestration procedure did not provide them due process and that they did not have sufficient contacts with Delaware for the state's courts to have jurisdiction. The Supreme Court of Delaware upheld the sequestration procedure, but the U.S. Supreme Court disagreed, ruling that the mere presence of property in a state does not establish sufficient contact or connection to allow that state to exercise jurisdiction over a nonresident defendant. The Court held that the state court must have personal jurisdiction over the defendants, which requires that they have certain minimum contacts with the state to satisfy due process. The Court also addressed the issue of consent, suggesting that while consent may impact the fairness of accepting jurisdiction, it should not depend on the formality of establishing a consent law. Additionally, the Court noted that the close association between a state corporation and its managers should indicate to the managers that the state may offer a convenient forum for addressing fiduciary breach of trust claims. Finally, the Court discussed the possibility of transferring the litigation under the doctrine of forum non conveniens if a more preferable forum exists elsewhere.

Lawsuits & Legal Procedures

Owen Equipment and Erection Co. v. Kroger

https://supreme.justia.com/cases/federal/us/437/365/

U.S. Supreme Court Owen Eqpt. & Erection Co. v. Kroger, 437 U.S. 365 (1978) Owen Equipment & Erection Co. v. Kroger No. 77-677 Argued April 18, 1978 Decided June 21, 1978 437 U.S. 365 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Syllabus Respondent, a citizen of Iowa, sued for damages based on the wrongful death of her husband, who was electrocuted when the boom of a steel crane next to which he was walking came too close to a high-tension electric power line. The action was brought in federal court on the basis of diversity of citizenship against a Nebraska corporation (OPPD), whose negligent operation of the power line was alleged to have caused decedent's death. OPPD then filed a third-party complaint against petitioner company which owned and operated the crane, alleging that petitioner's negligence proximately caused the death. Respondent was thereafter granted leave to amend her complaint by naming petitioner, which she alleged to be a Nebraska corporation with its principal place of business in Nebraska, as an additional defendant. OPPD successfully moved for summary judgment, leaving petitioner as the sole defendant. Though, in its answer, petitioner admitted that it was a corporation organized and existing under the laws of Nebraska, during trial it was disclosed that petitioner's principal place of business was in Iowa. Since both parties were thus Iowa citizens, petitioner moved to dismiss on the basis of lack of federal jurisdiction. After the jury had returned a verdict. for respondent, the District Court denied petitioner's motion to dismiss. The Court of Appeals affirmed, holding that, under Mine Workers v. Gibbs, 383 U. S. 715 , the District Court had jurisdictional power, in its discretion, to adjudicate the claim, which arose from the "core of operative facts' giving rise to both [respondent's] claim against OPPD and OPPD's claim against [petitioner]," and that the District Court had properly exercised its discretion because petitioner had concealed its Iowa citizenship from respondent. Held: The District Court had no power to entertain respondent's lawsuit against petitioner as a third-party defendant since diversity jurisdiction was lacking. Gibbs, supra, distinguished. Pp. 437 U. S. 370 -377. (a) A finding that federal and nonfederal claims arise from a "common nucleus of operative fact," the Gibbs test, does not suffice to establish that a federal court has power to hear nonfederal as well as Page 437 U. S. 366 federal claims, since, though the constitutional power to adjudicate the nonfederal claim may exist, it does not follow that statutory authorization has been granted. Aldinger v. Howard, 427 U. S. 1 ; Zahn v. International Paper Co., 414 U. S. 291 . Pp. 437 U. S. 370 -373. (b) Here, the relevant statute, 28 U.S.C. § 1332(a)(1), which confers upon federal courts jurisdiction over civil actions where the amount in controversy exceeds $10,000 and is between citizens of different States, requires complete diversity of citizenship, and it is thus congressionally mandated that diversity jurisdiction is not available when any plaintiff is a citizen of the same State as any defendant, a situation that developed in this case when respondent amended her complaint. Pp. 437 U. S. 373 -374. (c) Under the Court of Appeals' ancillary jurisdiction theory, a plaintiff could defeat the statutory requirement of complete diversity simply by suing only those defendants of diverse citizenship and waiting for them to implead nondiverse defendants. Pp. 437 U. S. 374 -375. (d) In determining whether jurisdiction over a nonfederal claim exists, the context in which that claim is asserted is crucial. Here the nonfederal claim was simply not ancillary to the federal one, as respondent's claim against petitioner was entirely separate from her original claim against OPPD, and petitioner's liability to her did not depend at all upon whether or not OPPD was also liable. Moreover, the nonfederal claim here was asserted by the plaintiff, who voluntarily chose to sue upon a state law claim in federal court, whereas ancillary jurisdiction typically involves claims by a defending party haled into court against his will, or by another person whose rights might be irretrievably lost unless he could assert them in an ongoing action in federal court. Pp. 437 U. S. 375 -376. 558 F.2d 417, reversed. STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and MARSHALL, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. WHITE, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 437 U. S. 377 . Page 437 U. S. 367 MR. JUSTICE STEWART delivered the opinion of the Court. In an action in which federal jurisdiction is based on diversity of citizenship, may the plaintiff assert a claim against a third-party defendant when there is no independent basis for federal jurisdiction over that claim? The Court of Appeals for the Eighth Circuit held in this case that such a claim is within the ancillary jurisdiction of the federal courts. We granted certiorari, 434 U.S. 1008, because this decision conflicts with several recent decisions of other Courts of Appeals. [ Footnote 1 ] I On January 18, 1972, James Kroger was electrocuted when the boom of a steel crane next to which he was walking came too close to a high tension electric power line. The respondent (his widow, who is the administratrix of his estate) filed a wrongful death action in the United States District Court for the District of Nebraska against the Omaha Public Power District (OPPD). Her complaint alleged that OPPD's negligent construction, maintenance, and operation of the power line had caused Kroger's death. Federal jurisdiction was based on diversity of citizenship, since the respondent was a citizen of Iowa and OPPD was a Nebraska corporation. OPPD then filed a third-party complaint pursuant to Fed.Rule Civ.Proc. 14(a) [ Footnote 2 ] against the petitioner, Owen Equipment Page 437 U. S. 368 and Erection Co. (Owen), alleging that the crane was owned and operated by Owen, and that Owen's negligence had been the proximate cause of Kroger's death. [ Footnote 3 ] OPPD later moved for summary judgment on the respondent's complaint against it. While this motion was pending, the respondent was granted leave to file an amended complaint naming Owen as an additional defendant. Thereafter, the District Court granted OPPD's motion for summary judgment in an unreported opinion. [ Footnote 4 ] The case thus went to trial between the respondent and the petitioner alone. The respondent's amended complaint alleged that Owen was "a Nebraska corporation with its principal place of business Page 437 U. S. 369 in Nebraska." Owen's answer admitted that it was "a corporation organized and existing under the laws of the State of Nebraska," and denied every other allegation of the complaint. On the third day of trial, however, it was disclosed that the petitioner's principal place of business was in Iowa, not Nebraska, [ Footnote 5 ] and that the petitioner and the respondent were thus both citizens of Iowa. [ Footnote 6 ] The petitioner then moved to dismiss the complaint for lack of jurisdiction. The District Court reserved decision on the motion, and the jury thereafter returned a verdict in favor of the respondent. In an unreported opinion issued after the trial, the District Court denied the petitioner's motion to dismiss the complaint. The judgment was affirmed on appeal. 558 F.2d 417. The Court of Appeals held that, under this Court's decision in Mine Workers v. Gibbs, 383 U. S. 715 , the District Court had jurisdictional power, in its discretion, to adjudicate the respondent's claim against the petitioner because that claim arose from the "core of operative facts' giving rise to both [respondent's] claim against OPPD and OPPD's claim against Owen." 558 F.2d at 424. It further held that the District Court had properly exercised its discretion in proceeding to decide the case even after summary judgment had been granted to OPPD, because the petitioner had concealed its Iowa citizenship from the respondent. Rehearing en banc was denied by an equally divided court. 558 F.2d 417. Page 437 U. S. 370 II It is undisputed that there was no independent basis of federal jurisdiction over the respondent's state law tort action against the petitioner, since both are citizens of Iowa. And although Fed.Rule Civ.Proc. 14(a) permits a plaintiff to assert a claim against a third-party defendant, see n 2, supra, it does not purport to say whether or not such a claim requires an independent basis of federal jurisdiction. Indeed, it could not determine that question, since it is axiomatic that the Federal Rules of Civil Procedure do not create or withdraw federal jurisdiction. [ Footnote 7 ] In affirming the District Court's judgment, the Court of Appeals relied upon the doctrine of ancillary jurisdiction, whose contours it believed were defined by this Court's holding in Mine Workers v. Gibbs, supra. The Gibbs case differed from this one in that it involved pendent jurisdiction, which concerns the resolution of a plaintiff's federal and state law claims against a single defendant in one action. By contrast, in this case, there was no claim based upon substantive federal law, but rather state law tort claims against two different defendants. Nonetheless, the Court of Appeals was correct in perceiving that Gibbs and this case are two species of the same generic problem: under what circumstances may a federal court hear and decide a state law claim arising between citizens of the same State? [ Footnote 8 ] But we believe that the Court of Appeals failed to understand the scope of the doctrine of the Gibbs case. The plaintiff in Gibbs alleged that the defendant union had violated the common law of Tennessee as well as the federal Page 437 U. S. 371 prohibition of secondary boycotts. This Court held that, although the parties were not of diverse citizenship, the District Court properly entertained the state law claim as pendent to the federal claim. The crucial holding was stated as follows: "Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim 'arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . ,' U.S.Const., Art. III, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional 'case.' . . . The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole." 383 U.S. at 383 U. S. 725 (emphasis in original). [ Footnote 9 ] It is apparent that Gibbs delineated the constitutional limits of federal judicial power. But even if it be assumed that the District Court in the present case had constitutional power to decide the respondent's lawsuit against the petitioner, [ Footnote 10 ] it does not follow that the decision of the Court of Appeals Page 437 U. S. 372 was correct. Constitutional power is merely the first hurdle that must be overcome in determining that a federal court has jurisdiction over a particular controversy. For the jurisdiction of the federal courts is limited not only by the provisions of Art. III of the Constitution, but also by Acts of Congress. Palmore v. United States, 411 U. S. 389 , 411 U. S. 401 ; Lockerty v. Phillips, 319 U. S. 182 , 319 U. S. 187 ; Kline v. Burke Constr. Co., 260 U. S. 226 , 260 U. S. 234 ; Cary v. Curtis , 3 How. 236, 44 U. S. 245 . That statutory law as well as the Constitution may limit a federal court's jurisdiction over nonfederal claims [ Footnote 11 ] is well illustrated by two recent decisions of this Court, Aldinger v. Howard, 427 U. S. 1 , and Zahn v. International Paper Co., 414 U. S. 291 . In Aldinger, the Court held that a Federal District Court lacked jurisdiction over a state law claim against a county, even if that claim was alleged to be pendent to one against county officials under 42 U.S.C. § 1983. In Zahn, the Court held that, in a diversity class action under Fed.Rule Civ.Proc. 23(b)(3), the claim of each member of the plaintiff class must independently satisfy the minimum jurisdictional amount set by 28 U.S.C. § 1332(a), and rejected the argument that jurisdiction existed over those claims that involved $10,000 or less as ancillary to those that involved more. In each case, despite the fact that federal and nonfederal claims arose from a "common nucleus of operative fact," the Court held that the statute conferring jurisdiction over the federal claim did not allow the exercise of jurisdiction over the nonfederal claims. [ Footnote 12 ] Page 437 U. S. 373 The Aldinger and Zahn cases thus make clear that a finding that federal and nonfederal claims arise from a "common nucleus of operative fact," the test of Gibbs, does not end the inquiry into whether a federal court has power to hear the nonfederal claims along with the federal ones. Beyond this constitutional minimum, there must be an examination of the posture in which the nonfederal claim is asserted and of the specific statute that confers jurisdiction over the federal claim, in order to determine whether "Congress in [that statute] has . . . expressly or by implication negated" the exercise of jurisdiction over the particular nonfederal claim. Aldinger v. Howard, supra, at 427 U. S. 18 . III The relevant statute in this case, 28 U.S.C. § 1332(a)(1), confers upon federal courts jurisdiction over "civil actions where the matter in controversy exceeds the sum or value of $10,000 . . . and is between . . . citizens of different States." This statute and its predecessors have consistently been held to require complete diversity of citizenship. [ Footnote 13 ] That is, diversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff. Over the years, Congress has repeatedly reenacted or amended the statute conferring diversity jurisdiction, leaving intact this rule of complete diversity. [ Footnote 14 ] Whatever may have been the original Page 437 U. S. 374 purposes of diversity of citizenship jurisdiction, [ Footnote 15 ] this subsequent history clearly demonstrates a congressional mandate that diversity jurisdiction is not to be available when any plaintiff is a citizen of the same State as any defendant. Cf. Snyder v. Harris, 394 U. S. 332 , 394 U. S. 338 -339. [ Footnote 16 ] Thus, it is clear that the respondent could not originally have brought suit in federal court naming Owen and OPPD as codefendants, since citizens of Iowa would have been on both sides of the litigation. Yet the identical lawsuit resulted when she amended her complaint. Complete diversity was destroyed just as surely as if she had sued Owen initially. In either situation, in the plain language of the statute, the "matter in controversy" could not be "between . . . citizens of different States." It is a fundamental precept that federal courts are courts of limited jurisdiction. The limits upon federal jurisdiction, whether imposed by the Constitution or by Congress, must be neither disregarded nor evaded. Yet under the reasoning of the Court of Appeals in this case, a plaintiff could defeat the statutory requirement of complete diversity by the simple expedient of suing only those defendants who were of diverse citizenship and waiting for them to implead nondiverse defendants. [ Footnote 17 ] If, as the Court of Appeals thought, a "common Page 437 U. S. 375 nucleus of operative fact" were the only requirement for ancillary jurisdiction in a diversity case, there would be no principled reason why the respondent in this case could not have joined her cause of action against Owen in her original complaint as ancillary to her claim against OPPD. Congress' requirement of complete diversity would thus have been evaded completely. It is true, as the Court of Appeal noted, that the exercise of ancillary jurisdiction over nonfederal claims has often been upheld in situations involving impleader, cross-claims or counterclaims. [ Footnote 18 ] But, in determining whether jurisdiction Page 437 U. S. 376 over a nonfederal claim exists, the context in which the nonfederal claim is asserted is crucial. See Aldinger v. Howard, 427 U.S. at 427 U. S. 14 . And the claim here arises in a setting quite different from the kinds of nonfederal claims that have been viewed in other cases as falling within the ancillary jurisdiction of the federal courts. First, the nonfederal claim in this case was simply not ancillary to the federal one in the same sense that, for example, the impleader by a defendant of a third-party defendant always is. A third-party complaint depends at least in part upon the resolution of the primary lawsuit. See n 3, supra. Its relation to the original complaint is thus not mere factual similarity, but logical dependence. Cf. Moore v. New York Cotton Exchange, 270 U. S. 593 , 270 U. S. 610 . The respondent's claim against the petitioner, however, was entirely separate from her original claim against OPPD, since the petitioner's liability to her depended not at all upon whether or not OPPD was also liable. Far from being an ancillary and dependent claim, it was a new and independent one. Second, the nonfederal claim here was asserted by the plaintiff, who voluntarily chose to bring suit upon a state law claim in a federal court. By contrast, ancillary jurisdiction typically involves claims by a defending party haled into court against his will, or by another person whose rights might be irretrievably lost unless he could assert them in an ongoing action in a federal court. [ Footnote 19 ] A plaintiff cannot complain if ancillary jurisdiction does not encompass all of his possible claims in a case such as this one, since it is he who has chosen the federal, rather than the state, forum, and must thus accept its limitations. "[T]he efficiency plaintiff seeks so avidly is available without question in the state courts." Kenrose Mfg. Co. v. Fred Whitaker Co., 512 F.2d 890, 894 (CA4). [ Footnote 20 ] Page 437 U. S. 377 It is not unreasonable to assume that, in generally requiring complete diversity, Congress did not intend to confine the jurisdiction of federal courts so inflexibly that they are unable to protect legal rights or effectively to resolve an entire, logically entwined lawsuit. Those practical needs are the basis of the doctrine of ancillary jurisdiction. But neither the convenience of litigants nor considerations of judicial economy can suffice to justify extension of the doctrine of ancillary jurisdiction to a plaintiff's cause of action against a citizen of the same State in a diversity case. Congress has established the basic rule that diversity jurisdiction exists under 28 U.S.C. § 1332 only when there is complete diversity of citizenship. "The policy of the statute calls for its strict construction." Healy v. Ratta, 292 U. S. 263 , 292 U. S. 270 ; Indianapolis v. Chase Nat. Bank, 314 U. S. 63 , 314 U. S. 76 ; Thomson v. Gaskill, 315 U. S. 442 , 315 U. S. 446 ; Snyder v. Harris, 394 U.S. at 394 U. S. 340 . To allow the requirement of complete diversity to be circumvented as it was in this case would simply flout the congressional command. [ Footnote 21 ] Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. [ Footnote 1 ] Fawvor v. Texaco, Inc., 546 F.2d 636 (CA5); Saalfrank v. O'Daniel, 533 F.2d 325 (CA6); Parker v. W. W. Moore & Sons, 528 F.2d 764 (CA4); Joseph v. Chrysler Corp., 513 F.2d 626 (CA3), aff'g 61 F.R.D. 347 (WD Pa.); Kenrose Mfg. Co. v. Fred Whitaker Co., 512 F.2d 890 (CA4). [ Footnote 2 ] Rule 14(a) provides in relevant part: "At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. . . . The person served with the summons and third-party complaint, hereinafter called the third-party defendant, shall make his defenses to the third-party plaintiff's claim as provided in Rule 12 and his counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in Rule 13. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff, and the third-party defendant thereupon shall assert his defenses as provided in Rule 12 and his counterclaims and cross-claims as provided in Rule 13." [ Footnote 3 ] Under Rule 14(a), a third-party defendant may not be impleaded merely because he may be liable to the plaintiff. See n 2, supra; see also Advisory Committee's Notes on 1946 Amendment to Fed.Rule Civ.Proc. 14, 28 U.S.C.App. pp. 7752-7753. While the third-party complaint in this case alleged merely that Owen's negligence caused Kroger's death, and the basis of Owen's alleged liability to OPPD is nowhere spelled out, OPPD evidently relied upon the state common law right of contribution among joint tortfeasors. See Dairyland Ins. Co. v. Mumert, 212 N.W.2d 436 , 438 (Iowa); Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23 . The petitioner has never challenged the propriety of the third-party complaint as such. [ Footnote 4 ] Judgment was entered pursuant to Fed.Rule Civ.Proc. 54(b), and the Court of Appeals affirmed. Kroger v. Omaha Public Power Dist., 523 F.2d 161 (CA8). [ Footnote 5 ] The problem apparently was one of geography. Although the Missouri River generally marks the boundary between Iowa and Nebraska, Carter Lake, Iowa, where the accident occurred and where Owen had its main office, lies west of the river, adjacent to Omaha, Neb. Apparently the river once avulsed at one of its bends, cutting Carter Lake off from the rest of Iowa. [ Footnote 6 ] Title 28 U.S.C. § 1332(c) provides that, "[f]or the purposes of [diversity jurisdiction] . . . , a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." [ Footnote 7 ] Fed.Rule Civ.Proc. 82; see Snyder v. Harris, 394 U. S. 332 ; Sibbach v. Wilson & Co., 312 U. S. 1 , 312 U. S. 10 . [ Footnote 8 ] No more than in Aldinger v. Howard, 427 U. S. 1 , is it necessary to determine here "whether there are any 'principled' differences between pendent and ancillary jurisdiction; or, if there are, what effect Gibbs had on such differences." Id. at 427 U. S. 13 . [ Footnote 9 ] The Court further noted that, even when such power exists, its exercise remains a matter of discretion based upon "considerations of judicial economy, convenience and fairness to litigants," 383 U.S. at 383 U. S. 726 , and held that the District Court had not abused its discretion in retaining jurisdiction of the state law claim. [ Footnote 10 ] Federal jurisdiction in Gibbs was based upon the existence of a question of federal law. The Court of Appeals in the present case believed that the "common nucleus of operative fact" test also determines the outer boundaries of constitutionally permissible federal jurisdiction when that jurisdiction is based upon diversity of citizenship. We may assume without deciding that the Court of Appeals was correct in this regard. See also n 13, infra. [ Footnote 11 ] As used in this opinion, the term "nonfederal claim" means one as to which there is no independent basis for federal jurisdiction. Conversely, a "federal claim" means one as to which an independent basis for federal jurisdiction exists. [ Footnote 12 ] In Monell v. New York City Dept. of Social Service, 436 U. S. 658 , we have overruled Monroe v. Pape, 365 U. S. 167 , insofar as it held that political subdivisions are never amenable to suit under 42 U.S.C. § 1983 -- the basis of the holding in Aldinger that 28 U.S.C. § 1343(3) does not allow pendent jurisdiction of a state law claim against a county. But Monell in no way qualifies the holding of Aldinger that the jurisdictional questions presented in a case such as this one are statutory, as well as constitutional, a point on which the dissenters in Aldinger agreed with the Court. See 427 U.S. at 427 U. S. 22 n. 3 (BRENNAN, J., joined by MARSHALL and BLACKMUN, JJ., dissenting). [ Footnote 13 ] E.g., 7 U. S. Curtiss, 3 Cranch 267; Coal Co. v. Blatchford , 11 Wall. 172; Indianapolis v. Chase Nat. Bank, 314 U. S. 63 , 314 U. S. 69 ; American Fire & Cas. Co. v. Finn, 341 U. S. 6 , 341 U. S. 17 . It is settled that complete diversity is not a constitutional requirement. State Farm Fire & Cas. Co. v. Tashire, 386 U. S. 523 , 386 U. S. 530 -531. [ Footnote 14 ] The various Acts are enumerated and described in 1 J. Moore, Federal Practice � 0.71[4] (2d ed.1977). [ Footnote 15 ] See C. Wright, Law of Federal Courts § 23 (3d ed.1976), for a discussion of the various theories that have been advanced to explain the constitutional grant of diversity of citizenship jurisdiction. [ Footnote 16 ] Notably, Congress enacted § 1332 as part of the Judicial Code of 1948, 62 Stat. 930, shortly after Rule 14 was amended in 1946. When the Rule was amended, the Advisory Committee noted that, "in any case where the plaintiff could not have joined the third party originally because of jurisdictional limitations such as lack of diversity of citizenship, the majority view is that any attempt by the plaintiff to amend his complaint and assert a claim against the impleaded third party would be unavailing." 28 U.S.C. App., p. 7752. The subsequent reenactment without relevant change of the diversity statute may thus be seen as evidence of congressional approval of that "majority view." [ Footnote 17 ] This is not an unlikely hypothesis, since a defendant in a tort suit such as this one would surely try to limit his liability by impleading any joint tortfeasors for indemnity or contribution. Some commentators have suggested that the possible abuse of third-party practice could be dealt with under 28 U.S.C. § 1359, which forbids collusive attempts to create federal jurisdiction. See, e.g., 3 J. Moore, Federal Practice � 14.27 [1], p. 14-571 (2d ed.1974); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1444, pp. 231-232 (1971); Note, Rule 14 Claims and Ancillary Jurisdiction, 57 Va.L.Rev. 265, 274-275 (1971). The dissenting opinion today also expresses this view. Post at 437 U. S. 383 . But there is nothing necessarily collusive about a plaintiff's selectively suing only those tortfeasors of diverse citizenship, or about the named defendants' desire to implead joint tortfeasors. Nonetheless, the requirement of complete diversity would be eviscerated by such a course of events. [ Footnote 18 ] The ancillary jurisdiction of the federal courts derives originally from cases such as Freeman v. Howe , 24 How. 450, which held that, when federal jurisdiction "effectively controls the property or fund under dispute, other claimants thereto should be allowed to intervene in order to protect their interests, without regard to jurisdiction." Aldinger v. Howard, 427 U.S. at 427 U. S. 11 . More recently, it has been said to include cases that involve multiparty practice, such as compulsory counterclaims, e.g., Moore v. New York Cotton Exchange, 270 U. S. 593 ; impleader, e.g., H. L. Peterson Co. v. Applewhite, 383 F.2d 430, 433 (CA5); Dery v. Wyer, 265 F.2d 804 (CA2); cross-claims, e.g., LASA Per L'lndustria Del Marmo Soc. Per Azioni v. Alexander, 414 F.2d 143 (CA6); Scott v. Fancher, 369 F.2d 842, 844 (CA5); Glen Falls Indemnity Co. v. United States ex rel. Westinghouse Electric Supply Co., 229 F.2d 370, 373-374 (CA9); or intervention as of right, e.g., Phelps v. Oaks, 117 U. S. 236 , 117 U. S. 241 ; Smith Petroleum Service, Inc. v. Monsanto Chemical Co., 420 F.2d 1103, 1113-1115 (CA5). [ Footnote 19 ] See n 18, supra. [ Footnote 20 ] Whether Iowa's statute of limitations would now bar an action by the respondent in an Iowa court is, of course, entirely a matter of state law. See Iowa Code § 614.1 (1977). Compare 558 F.2d at 420, with id. at 432 n. 42 (Bright, J., dissenting); cf. Burnett v. New York Central R. Co., 380 U. S. 424 , 380 U. S. 431 -432, and n. 9. [ Footnote 21 ] Our holding is that the District Court lacked power to entertain the respondent's lawsuit against the petitioner. Thus, the asserted inequity in the respondent's alleged concealment of its citizenship is irrelevant. Federal judicial power does not depend upon "prior action or consent of the parties." American Fire & Cas. Co. v. Finn, 341 U.S. at 341 U. S. 17 -18. MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN joins, dissenting. The Court today states that "[i]t is not unreasonable to assume that, in generally requiring complete diversity, Congress did not intend to confine the jurisdiction of federal courts so Page 437 U. S. 378 inflexibly that they are unable . . . effectively to resolve an entire, logically entwined lawsuit." Ante at 437 U. S. 377 . In spite of this recognition, the majority goes on to hold that in diversity suits federal courts do not have the jurisdictional power to entertain a claim asserted by a plaintiff against a third-party defendant, no matter how entwined it is with the matter already before the court, unless there is an independent basis for jurisdiction over that claim. Because I find no support for such a requirement in either Art. III of the Constitution or in any statutory law, I dissent from the Court's "unnecessarily grudging" [ Footnote 2/1 ] approach. The plaintiff below, Mrs Kroger, chose to bring her lawsuit against the Omaha Public Power District (OPPD) in Federal District Court. No one questions the power of the District Court to entertain this claim, for Mrs. Kroger at the time was a citizen of Iowa, OPPD was a citizen of Nebraska, and the amount in controversy was greater than $10,000; jurisdiction therefore existed under 28 U.S.C. § 1332(a). As permitted by Fed. Rule Civ.Proc. 14(a), OPPD impleaded petitioner Owen Equipment & Erection Co. (Owen). Although OPPD's claim against Owen did not raise a federal question, and although it was alleged that Owen was a citizen of the same State as OPPD, the parties and the court apparently believed that the District Court's ancillary jurisdiction encompassed this claim. Subsequently, Mrs. Kroger asserted a claim against Owen, everyone believing at the time that these two parties were citizens of different States. Because it later came to light that Mrs. Kroger and Owen were, in fact, both citizens of Iowa, the Court concludes that the District Court lacked jurisdiction over the claim. In Mine Workers v. Gibbs, 383 U. S. 715 , 383 U. S. 725 (1966), we held that, once a claim has been stated that is of sufficient substance to confer subject matter jurisdiction on the federal district Page 437 U. S. 379 court, the court has judicial power to consider a nonfederal claim if it and the federal claim [ Footnote 2/2 ] are derived from "a common nucleus of operative fact." Although the specific facts of that case concerned a state claim that was said to be pendent to a federal question claim, the Court's language and reasoning were broad enough to cover the instant factual situation: "[I]f, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole." Ibid. (footnote omitted). In the present case, Mrs. Kroger's claim against Owen and her claim against OPPD derived from a common nucleus of fact; this is necessarily so because, in order for a plaintiff to assert a claim against a third-party defendant, Fed.Rule Civ.Proc. 14(a) requires that it "aris[e] out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. . . ." Furthermore, the substantiality of the claim Mrs. Kroger asserted against OPPD is unquestioned. Accordingly, as far as Art. III of the Constitution is concerned, the District Court had power to entertain Mrs. Kroger's claim against Owen. The majority correctly points out, however, that the analysis cannot stop here. As Aldinger v. Howard, 427 U. S. 1 (1976), teaches, the jurisdictional power of the federal courts may be limited by Congress, as well as by the Constitution. In Aldinger, although the plaintiff's state claim against Spokane County was closely connected with her 42 U.S.C. § 1983 claim against the county treasurer, the Court held that the District Court did not have pendent jurisdiction over the state claim, for, under the Court's precedents at that time, it was thought that Congress had specifically determined not to confer on the federal courts jurisdiction over civil rights Page 437 U. S. 380 claims against cities and counties. That being so, the Court refused to allow "the federal courts to fashion a jurisdictional doctrine under the general language of Art. III enabling them to circumvent this exclusion. . . ." 427 U.S. at 427 U. S. 16 . [ Footnote 2/3 ] In the present case, the only indication of congressional intent that the Court can find is that contained in the diversity jurisdictional statute, 28 U.S.C. § 1332(a), which states that "district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,00 . . . and is between . . . citizens of different States. . . ." Because this statute has been interpreted as requiring complete diversity of citizenship between each plaintiff and each defendant, Strawbridge v. Curtis , 3 Cranch 267 (1806), the Court holds that the District Court did not have ancillary jurisdiction over Mrs. Kroger's claim against Owen. In so holding, the Court unnecessarily expands the scope of the complete diversity requirement while substantially limiting the doctrine of ancillary jurisdiction. The complete diversity requirement, of course, could be viewed as meaning that in a diversity case, a federal district court may adjudicate only those claims that are between parties of different States. Thus, in order for a defendant to implead a third-party defendant, there would have to be diversity of citizenship; the same would also be true for cross-claims between defendants and for a third-party defendant's claim against a plaintiff. Even the majority, however, refuses to read the complete diversity requirement so broadly; it Page 437 U. S. 381 recognizes with seeming approval the exercise of ancillary jurisdiction over nonfederal claims in situations involving impleader, cross-claims, and counterclaims. See ante at 437 U. S. 375 . Given the Court's willingness to recognize ancillary jurisdiction in these contexts, despite the requirements of § 1332(a), I see no justification for the Court's refusal to approve the District Court's exercise of ancillary jurisdiction in the present case. It is significant that a plaintiff who asserts a claim against a third-party defendant is not seeking to add a new party to the lawsuit. In the present case, for example, Owen had already been brought into the suit by OPPD, and, that having been done, Mrs. Kroger merely sought to assert against Owen a claim arising out of the same transaction that was already before the court. Thus, the situation presented here is unlike that in Aldinger, supra, wherein the Court noted: "[I]t is one thing to authorize two parties, already present in federal court by virtue of a case over which the court has jurisdiction, to litigate in addition to their federal claim a state law claim over which there is no independent basis of federal jurisdiction. But it is quite another thing to permit a plaintiff, who has asserted a claim against one defendant with respect to which there is federal jurisdiction, to join an entirely different defendant on the basis of a state law claim over which there is no independent basis of federal jurisdiction, simply because his claim against the first defendant and his claim against the second defendant 'derive from a common nucleus of operative fact.' . . . True, the same considerations of judicial economy would be served insofar as plaintiff's claims 'are such that he would ordinarily be expected to try them all in one judicial proceeding. . . .' [ Gibbs, 383 U.S. at 383 U. S. 725 .] But the addition of a completely new party would run counter to the well established principle that federal courts, as opposed to state trial courts of Page 437 U. S. 382 general jurisdiction, are courts of limited jurisdiction marked out by Congress." 427 U.S. at 427 U. S. 115 . Because in the instant case Mrs. Kroger merely sought to assert a claim against someone already a party to the suit, considerations of judicial economy, convenience, and fairness to the litigants -- the factors relied upon in Gibbs -- support the recognition of ancillary jurisdiction here. Already before the court was the whole question of the cause of Mr. Kroger's death. Mrs. Kroger initially contended that OPPD was responsible; OPPD, in turn, contended that Owen's negligence had been the proximate cause of Mr. Kroger's death. In spite of the fact that the question of Owen's negligence was already before the District Court, the majority requires Mrs. Kroger to bring a separate action in state court in order to assert that very claim. Even if the Iowa statute of limitations will still permit such a suit, see ante at 437 U. S. 376 -377, n. 20, considerations of judicial economy are certainly not served by requiring such duplicative litigation. [ Footnote 2/4 ] The majority, however, brushes aside such considerations of convenience, judicial economy, and fairness because it concludes that recognizing ancillary jurisdiction over a plaintiff's claim against a third-party defendant would permit the plaintiff to circumvent the complete diversity requirement, and thereby "flout the congressional command." Since the plaintiff Page 437 U. S. 383 in such a case does not bring the third-party defendant into the suit, however, there is no occasion for deliberate circumvention of the diversity requirement, absent collusion with the defendant. In the case of such collusion, of which there is absolutely no indication here, [ Footnote 2/5 ] the court can dismiss the action under the authority of 28 U.S.C. § 1359. [ Footnote 2/6 ] In the absence of such collusion, there is no reason to adopt an absolute rule prohibiting the plaintiff from asserting those claims that he may properly assert against the third-party defendant pursuant to Fed.Rule Civ.Proc. 14(a). The plaintiff in such a situation brings suit against the defendant only, with absolutely no assurance that the defendant will decide or be able to implead a particular third-party defendant. Since the plaintiff has no control over the defendant's decision to implead a third party, the fact that he could not have originally sued that party in federal court should be irrelevant. Moreover, the fact that a plaintiff in some cases may be able to foresee the subsequent chain of events leading to the impleader does not seem to me to be sufficient reason to declare that a district court does not have the power to exercise ancillary jurisdiction over the plaintiff's claims against the third-party defendant. [ Footnote 2/7 ] Page 437 U. S. 384 We have previously noted that "[s]ubsequent decisions of this Court indicate that Strawbridge is not to be given an expansive reading." State Farm Fire & Cas. Co. v. Tashire, 386 U. S. 523 , 386 U. S. 531 n. 6 (1967). In light of this teaching, it seems to me appropriate to view § 1332 as requiring complete diversity only between the plaintiff and those parties he actually brings into the suit. Beyond that, I would hold that, in a diversity case, the District Court has power, both constitutional and statutory, to entertain all claims among the parties arising from the same nucleus of operative fact as the plaintiff's original, jurisdiction-conferring claim against the defendant. Accordingly, I dissent from the Court's disposition of the present case. [ Footnote 2/1 ] See Mine Workers v. Gibbs, 383 U. S. 715 , 383 U. S. 725 (1966). [ Footnote 2/2 ] I use the terms "federal claim" and "nonfederal claim" in the same sense that the majority uses them. See ante at 437 U. S. 372 n. 11. [ Footnote 2/3 ] We were careful in Aldinger to point out the limited nature of our holding: "There are, of course, many variations in the language which Congress has employed to confer jurisdiction upon the federal courts, and we decide here only the issue of so-called 'pendent party' jurisdiction with respect to a claim brought under §§ 1343(3) and 1983. Other statutory grants and other alignments of parties and claims might call for a different result." 427 U.S. at 427 U. S. 18 . [ Footnote 2/4 ] It is true that, prior to trial, OPPD was dismissed as a party to the suit, and that, as we indicated in Gibbs, the dismissal prior to trial of the federal claim will generally require the dismissal of the nonfederal claim as well. See 383 U.S. at 383 U. S. 726 . Given the unusual facts of the present case, however -- in particular, the fact that the actual location of Owen's principal place of business was not revealed until the third day of trial -- fairness to the parties would lead me to conclude that the District Court did not abuse its discretion in retaining jurisdiction over Mrs. Kroger's claim against Owen. Under the Court's disposition, of course, it would not matter whether or not the federal claim is tried, for, in either situation, the court would have no jurisdiction over the plaintiff's nonfederal claim against the third-party defendant. [ Footnote 2/5 ] When Mrs. Kroger brought .suit, it was believed that Owen was a citizen of Nebraska, not Iowa. Therefore, had she desired at that time to make Owen a party to the suit, she would have done so directly by naming Owen as a defendant. [ Footnote 2/6 ] Section 1359 states: "A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court." [ Footnote 2/7 ] Under the Gibbs analysis, recognition of the district court's power to hear a plaintiff's nonfederal claim against a third-party defendant in a diversity suit would not mean that the court would be required to entertain such claims in all cases. The district court would have the discretion to dismiss the nonfederal claim if it concluded that the interests of judicial economy, convenience, and fairness would not be served by the retention of the claim in the federal lawsuit. See Gibbs, 383 U.S. at 383 U. S. 726 . Accordingly, the majority's concerns that lead it to conclude that ancillary jurisdiction should not be recognized in the present situation could be met on a case-by-case basis, rather than by the absolute rule it adopts.

In *Owen Equipment & Erection Co. v. Kroger* (1978), the Supreme Court ruled that a federal court cannot hear a plaintiff's nonfederal claim against a third-party defendant in a diversity case when diversity jurisdiction is lacking. The Court distinguished this case from *Mine Workers v. Gibbs*, where a federal court had the jurisdictional power to adjudicate a claim that arose from a "common nucleus of operative facts." The Court emphasized that while the constitutional power to decide a nonfederal claim may exist, statutory authorization is a separate requirement that was not met in this case.

Lawsuits & Legal Procedures

Parklane Hosiery Co., Inc. v. Shore

https://supreme.justia.com/cases/federal/us/439/322/

U.S. Supreme Court Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322 (1979) Parklane Hosiery Co., Inc. v. Shore No. 77-1305 Argued October 30, 1978 Decided January 9, 1979 439 U.S. 322 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus Respondent brought this stockholder's class action in the District Court for damages and other relief against petitioners, a corporation, its officers, directors, and stockholders, who allegedly had issued a materially false and misleading proxy statement in violation of the federal securities laws and Securities and Exchange Commission (SEC) regulations. Before the action came to trial, the SEC sued the same defendants in the District Court alleging that the proxy statement was materially false and misleading in essentially the same respects as respondent had claimed. The District Court, after a nonjury trial, entered a declaratory judgment for the SEC, and the Court of Appeals affirmed. Respondent in this case then moved for partial summary judgment against petitioners, asserting that they were collaterally estopped from relitigating the issues that had been resolved against them in the SEC suit. The District Court denied the motion on the ground that such an application of collateral estoppel would deny petitioners their Seventh Amendment right to a jury trial. The Court of Appeals reversed. Held: 1. Petitioners, who had a "full and fair" opportunity to litigate their claims in the SEC action, are collaterally estopped from relitigating the question of whether the proxy statement was materially false and misleading. Pp. 439 U. S. 326 -333. (a) The mutuality doctrine, under which neither party could use a prior judgment against the other unless both parties were bound by the same judgment, no longer applies. See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313 . Pp. 402 U. S. 326 -328. (b) The offensive use of collateral estoppel (when, as here, the plaintiff seeks to foreclose the defendant from litigating an issue that the defendant has previously litigated unsuccessfully in an action with another party) does not promote judicial economy in the same manner that is promoted by defensive use (when a defendant seeks to prevent a plaintiff from asserting a claim that the plaintiff has previously litigated and lost against another defendant), and such offensive use may also be unfair to a defendant in various ways. Therefore, the general rule should be that, in cases where a plaintiff could easily have joined in the Page 439 U. S. 323 earlier action, or where the application of offensive estoppel would be unfair to a defendant, a trial judge, in the exercise of his discretion, should not allow the use of offensive collateral estoppel. Pp. 439 U. S. 329 -331. (c) In this case, however, the application of offensive collateral estoppel will not reward a private plaintiff who could have joined in the previous action, since the respondent probably could not have joined in the injunctive action brought by the SEC. Nor is there any unfairness to petitioners in such application here, since petitioners had every incentive fully and vigorously to litigate the SEC suit; the judgment in the SEC action was not inconsistent with any prior decision; and in the respondent's action there will be no procedural opportunities available to the petitioners that were unavailable in the SEC action of a kind that might be likely to cause a different result. Pp. 439 U. S. 331 -333. 2. The use of collateral estoppel in this case would not violate petitioners' Seventh Amendment right to a jury trial. Pp. 439 U. S. 333 -337. (a) An equitable determination can have collateral estoppel effect in a subsequent legal action without violating the Seventh Amendment. Katchen v. Landy, 382 U. S. 323 . Pp. 439 U. S. 333 -335. (b) Petitioners' contention that, since the scope of the Seventh Amendment must be determined by reference to the common law as it existed in 1791, at which time collateral estoppel was permitted only where there was mutuality of parties, is without merit, for many procedural devices developed since 1791 that have diminished the civil jury's historic domain have been found not to violate the Seventh Amendment. See, e.g., Galloway v. United States, 319 U. S. 372 , 319 U. S. 388 -393. Pp. 439 U. S. 335 -337. 565 F.2d 815, affirmed. STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. REHNQUIST, J., filed a dissenting opinion, post, p. 439 U. S. 337 . Page 439 U. S. 324 MR. JUSTICE STEWART delivered the opinion of the Court. This case presents the question whether a party who has had issues of fact adjudicated adverse to it in an equitable action may be collaterally estopped from relitigating the same issues before a jury in a subsequent legal action brought against it by a new party. The respondent brought this stockholder's class action against the petitioners in a Federal District Court. The complaint alleged that the petitioners, Parklane Hosiery Co., Inc. (Parklane), and 13 of its officers, directors, and stockholders, had issued a materially false and misleading proxy statement in connection with a merger. [ Footnote 1 ] The proxy statement, according to the complaint, had violated §§ 14(a), 10(b), and 20(a) of the Securities Exchange Act of 1934, 48 Stat. 895, 891, 899, as amended, 15 U.S.C. §§ 78n(a), 78j(b), and 78t(a), as well as various rules and regulations promulgated by the Securities and Exchange Commission (SEC). The complaint sought damages, rescission of the merger, and recovery of costs. Before this action came to trial, the SEC filed suit against the same defendants in the Federal District Court, alleging that the proxy statement that had been issued by Parklane was materially false and misleading in essentially the same respects as those that had been alleged in the respondent's complaint. Injunctive relief was requested. After a 4-day Page 439 U. S. 325 trial, the District Court found that the proxy statement was materially false and misleading in the respects alleged, and entered a declaratory judgment to that effect. SEC v. Parklane Hosiery Co., 422 F. Supp. 477 . The Court of Appeals for the Second Circuit affirmed this judgment. 558 F.2d 1083. The respondent in the present case then moved for partial summary judgment against the petitioners, asserting that the petitioners were collaterally estopped from relitigating the issues that had been resolved against them in the action brought by the SEC. [ Footnote 2 ] The District Court denied the motion on the ground that such an application of collateral estoppel would deny the petitioners their Seventh Amendment right to a jury trial. The Court of Appeals for the Second Circuit reversed, holding that a party who has had issues of fact determined against him after a full and fair opportunity to litigate in a nonjury trial is collaterally estopped from obtaining a subsequent jury trial of these same issues of fact. 565 F.2d 815. The appellate court concluded that "the Seventh Amendment preserves the right to jury trial only with respect to issues of fact, [and] once those issues have been fully and fairly adjudicated in a prior proceeding, nothing remains for trial, either with or without a jury." Id. at 819. Because of an inter-circuit conflict, [ Footnote 3 ] we granted certiorari. 435 U.S. 1006. Page 439 U. S. 326 I The threshold question to be considered is whether, quite apart from the right to a jury trial under the Seventh Amendment, the petitioners can be precluded from relitigating facts resolved adversely to them in a prior equitable proceeding with another party under the general law of collateral estoppel. Specifically, we must determine whether a litigant who was not a party to a prior judgment may nevertheless use that judgment "offensively" to prevent a defendant from relitigating issues resolved in the earlier proceeding. [ Footnote 4 ] A Collateral estoppel, like the related doctrine of res judicata, [ Footnote 5 ] has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313 , 402 U. S. 328 -329. Until relatively recently, however, the scope of collateral estoppel was limited by the doctrine of mutuality of parties. Under this mutuality doctrine, neither party could use a prior judgment Page 439 U. S. 327 as an estoppel against the other unless both parties were bound by the judgment. [ Footnote 6 ] Based on the premise that it is somehow unfair to allow a party to use prior judgment when he himself would not be so bound, [ Footnote 7 ] the mutuality requirement provided a party who had litigated and lost in a previous action an opportunity to relitigate identical issues with new parties. By failing to recognize the obvious difference in position between a party who has never litigated an issue and one who has fully litigated and lost, the mutuality requirement was criticized almost from its inception. [ Footnote 8 ] Recognizing the validity of this criticism, the Court in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, supra, abandoned the mutuality requirement, at least in cases where a patentee seeks to relitigate the validity of a patent after a federal court in a previous lawsuit has already declared it invalid. [ Footnote 9 ] The Page 439 U. S. 328 "broader question" before the Court, however, was "whether it is any longer tenable to afford a litigant more than one full and fair opportunity for judicial resolution of the same issue." 402 U.S. at 402 U. S. 328 . The Court strongly suggested a negative answer to that question: "In any lawsuit where a defendant, because of the mutuality principle, is forced to present a complete defense on the merits to a claim which the plaintiff has fully litigated and lost in a prior action, there is an arguable misallocation of resources. To the extent the defendant in the second suit may not win by asserting, without contradiction, that the plaintiff had fully and fairly, but unsuccessfully, litigated the same claim in the prior suit, the defendant's time and money are diverted from alternative uses -- productive or otherwise to relitigation of a decided issue. And, still assuming that the issue was resolved correctly in the first suit, there is reason to be concerned about the plaintiff's allocation of resources. Permitting repeated litigation of the same issue as long as the supply of unrelated defendants holds out reflects either the aura of the gaming table or 'a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules of procedure.' Kerotest Mfg. Co. v. C-O-Two Co., 342 U. S. 180 , 342 U. S. 185 (1952). Although neither judges, the parties, nor the adversary system performs perfectly in all cases, the requirement of determining whether the party against whom an estoppel is asserted had a full and fair opportunity to litigate is a most significant safeguard." Id. at 402 U. S. 329 . [ Footnote 10 ] Page 439 U. S. 329 B The Blonder-Tongue case involved defensive use of collateral estoppel -- a plaintiff was estopped from asserting a claim that the plaintiff had previously litigated and lost against another defendant. The present case, by contrast, involves offensive use of collateral estoppel -- a plaintiff is seeking to estop a defendant from relitigating the issues which the defendant previously litigated and lost against another plaintiff. In both the offensive and defensive use situations, the party against whom estoppel is asserted has litigated and lost in an earlier action. Nevertheless, several reasons have been advanced why the two situations should be treated differently. [ Footnote 11 ] First, offensive use of collateral estoppel does not promote judicial economy in the same manner as defensive use does. Defensive use of collateral estoppel precludes a plaintiff from relitigating identical issues by merely "switching adversaries." Bernhard v. Bank of America Nat. Trust Savings Assn., 19 Cal. 2d at 813, 122 P.2d at 895. [ Footnote 12 ] Thus, defensive collateral estoppel gives a plaintiff a strong incentive to join Page 439 U. S. 330 all potential defendants in the first action if possible. Offensive use of collateral estoppel, on the other hand, creates precisely the opposite incentive. Since a plaintiff will be able to rely on a previous judgment against a defendant, but will not be bound by that judgment if the defendant wins, the plaintiff has every incentive to adopt a "wait and see" attitude, in the hope that the first action by another plaintiff will result in a favorable judgment. E.g., Nevarov v. Caldwell, 161 Cal. App. 2d 762 , 767-76, 327 P.2d 111, 115; Reardon v. Allen, 88 N.J.Super. 560, 571-572, 213 A.2d 26 , 32. Thus, offensive use of collateral estoppel will likely increase, rather than decrease, the total amount of litigation, since potential plaintiffs will have everything to gain and nothing to lose by not intervening in the first action. [ Footnote 13 ] A second argument against offensive use of collateral estoppel is that it may be unfair to a defendant. If a defendant in the first action is sued for small or nominal damages, he may have little incentive to defend vigorously, particularly if future suits are not foreseeable. The Evergreens v. Nunan, 141 F.2d 927, 929 (CA2); cf. Berner v. British Commonwealth Pac. Airlines, 346 F.2d 532 (CA2) (application of offensive collateral estoppel denied where defendant did not appeal an adverse judgment awarding damages of $35,000 and defendant was later sued for over $7 million). Allowing offensive collateral estoppel may also be unfair to a defendant if the judgment relied upon as a basis for the estoppel is itself inconsistent with one or more previous judgments in favor of the defendant. [ Footnote 14 ] Still another situation where it might be Page 439 U. S. 331 unfair to apply offensive estoppel is where the second action affords the defendant procedural opportunities unavailable in the first action that could readily cause a different result. [ Footnote 15 ] C We have concluded that the preferable approach for dealing with these problems in the federal courts is not to preclude the use of offensive collateral estoppel, but to grant trial courts broad discretion to determine when it should be applied. [ Footnote 16 ] The general rule should be that. in cases where a plaintiff could easily have joined in the earlier action or where, either for the reasons discussed above or for other reasons, the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel. In the present case, however, none of the circumstances that might justify reluctance to allow the offensive use of collateral estoppel is present. The application of offensive collateral Page 439 U. S. 332 estoppel will not here reward a private plaintiff who could have joined in the previous action, since the respondent probably could not have joined in the injunctive action brought by the SEC even had he so desired. [ Footnote 17 ] Similarly, there is no unfairness to the petitioners in applying offensive collateral estoppel in this case. First, in light of the serious allegations made in the SEC's complaint against the petitioners, as well as the foreseeability of subsequent private suits that typically follow a successful Government judgment, the petitioners had every incentive to litigate the SEC lawsuit fully and vigorously. [ Footnote 18 ] Second, the judgment in the SEC action was not inconsistent with any previous decision. Finally, there will in the respondent's action be no procedural opportunities available to the petitioners that were unavailable in the first action of a kind that might be likely to cause a different result. [ Footnote 19 ] We conclude, therefore, that none of the considerations that would justify a refusal to allow the use of offensive collateral estoppel is present in this case. Since the petitioners received a "full and fair" opportunity to litigate their claims in the Page 439 U. S. 333 SEC action, the contemporary law of collateral estoppel leads inescapably to the conclusion that the petitioners are collaterally estopped from relitigating the question of whether the proxy statement was materially false and misleading. The question that remains is whether, notwithstanding the law of collateral estoppel, the use of offensive collateral estoppel in this case would violate the petitioners' Seventh Amendment right to a jury trial. [ Footnote 20 ] A "[T]he thrust of the [Seventh] Amendment was to preserve the right to jury trial as it existed in 1791." Curtis v. Loether, 415 U. S. 189 , 415 U. S. 193 . At common law, a litigant was not entitled to have a jury determine issues that had been previously adjudicated by a chancellor in equity. Hopkins v. Lee , 6 Wheat. 109; Smith v. Kernochen , 7 How.198, 48 U. S. 217 -218; Brady v. Daly, 175 U. S. 148 , 175 U. S. 158 -159; Shapiro & Coquillette, The Fetish of Jury Trial in Civil Cases: A Comment on Rachal v. Hill, 85 Harv.L.Rev. 442, 448-458 (1971). [ Footnote 21 ] Recognition that an equitable determination could have collateral estoppel effect in a subsequent legal action was the major premise of this Court's decision in Beacon Theatres, Inc. v. Westover, 359 U. S. 500 . In that case, the plaintiff sought a declaratory judgment that certain arrangements between it Page 439 U. S. 334 and the defendant were not in violation of the antitrust laws, and asked for an injunction to prevent the defendant from instituting an antitrust action to challenge the arrangements. The defendant denied the allegations and counterclaimed for treble damages under the antitrust laws, requesting a trial by jury of the issues common to both the legal and equitable claims. The Court of Appeals upheld denial of the request, but this Court reversed, stating: "[T]he effect of the action of the District Court could be, as the Court of Appeals believed, 'to limit the petitioner's opportunity fully to try to a jury every issue which has a bearing upon its treble damage suit,' for determination of the issue of clearances by the judge might 'operate either by way of res judicata or collateral estoppel so as to conclude both parties with respect thereto at the subsequent trial of the treble damage claim.'" Id. at 359 U. S. 504 . It is thus clear that the Court in the Beacon Theatres case thought that, if an issue common to both legal and equitable claims was first determined by a judge, relitigation of the issue before a jury might be foreclosed by res judicata or collateral estoppel. To avoid this result, the Court held that, when legal and equitable claims are joined in the same action, the trial judge has only limited discretion in determining the sequence of trial, and "that discretion . . . must, wherever possible, be exercised to preserve jury trial." Id. at 359 U. S. 510 . [ Footnote 22 ] Both the premise of Beacon Theatres and the fact that it enunciated no more than a general prudential rule were confirmed by this Court's decision in Katchen v. Landy, 382 U. S. 323 . In that case, the Court held that a bankruptcy court, sitting as a statutory court of equity, is empowered to adjudicate Page 439 U. S. 335 equitable claims prior to legal claims, even though the factual issues decided in the equity action would have been triable by a jury under the Seventh Amendment if the legal claims had been adjudicated first. The Court stated: "Both Beacon Theatres and Dairy Queen recognize that there might be situations in which the Court could proceed to resolve the equitable claim first, even though the results might be dispositive of the issues involved in the legal claim." Id. at 382 U. S. 339 . Thus, the Court in Katchen v. Landy recognized that an equitable determination can have collateral estoppel effect in subsequent legal action and that this estoppel does not violate the Seventh Amendment. B Despite the strong support to be found both in history and in the recent decisional law of this Court for the proposition that an equitable determination can have collateral estoppel effect in a subsequent legal action, the petitioners argue that application of collateral estoppel in this case would nevertheless violate their Seventh Amendment right to a jury trial. The petitioners contend that, since the scope of the Amendment must be determined by reference to the common law as it existed in 1791, and since the common law permitted collateral estoppel only where there was mutuality of parties, collateral estoppel cannot constitutionally be applied when such mutuality is absent. The petitioners have advanced no persuasive reason, however, why the meaning of the Seventh Amendment should depend on whether or not mutuality of parties is present. A litigant who has lost because of adverse factual findings in an equity action is equally deprived of a jury trial whether he is estopped from relitigating the factual issues against the same party or a new party. In either case, the party against whom estoppel is asserted has litigated questions of fact, and has had the facts determined against him in an earlier proceeding. Page 439 U. S. 336 In either case, there is no further factfinding function for the jury to perform, since the common factual issues have been resolved in the previous action. Cf. Ex parte Peterson, 253 U. S. 300 , 253 U. S. 310 ("No one is entitled in a civil case to trial by jury unless and except so far as there are issues of fact to be determined"). The Seventh Amendment has never been interpreted in the rigid manner advocated by the petitioners. On the contrary, many procedural devices developed since 1791 that have diminished the civil jury's historic domain have been found not to be inconsistent with the Seventh Amendment. See Galloway v. United States, 319 U. S. 372 , 319 U. S. 388 -393 (directed verdict does not violate the Seventh Amendment); Gasoline Products Co. v. Champlin Refining Co., 283 U. S. 494 , 283 U. S. 497 -498 (retrial limited to question of damages does not violate the Seventh Amendment even though there was no practice at common law for setting aside a verdict in part); Fidelity & Deposit Co. v. United States, 187 U. S. 315 , 187 U. S. 319 -321 (summary judgment does not violate the Seventh Amendment). [ Footnote 23 ] The Galloway case is particularly instructive. There the party against whom a directed verdict had been entered argued that the procedure was unconstitutional under the Seventh Amendment. In rejecting this claim, the Court said: "The Amendment did not bind the federal courts to the exact procedural incidents or details of jury trial according Page 439 U. S. 337 to the common law in 1791, any more than it tied them to the common law system of pleading or the specific rules of evidence then prevailing. Nor were 'the rules of the common law' then prevalent, including those relating to the procedure by which the judge regulated the jury's role on questions of fact, crystallized in a fixed and immutable system. . . ." "The more logical conclusion, we think, and the one which both history and the previous decisions here support, is that the Amendment was designed to preserve the basic institution of jury trial in only its most fundamental elements, not the great mass of procedural forms and details, varying even then so widely among common law jurisdictions." 319 U.S. at 319 U. S. 390 , 319 U. S. 392 (footnote omitted). The law of collateral estoppel, like the law in other procedural areas defining the scope of the jury's function, has evolved since 1791. Under the rationale of the Galloway case, these developments are not repugnant to the Seventh Amendment simply for the reason that they did not exist in 1791. Thus, if, as we have held, the law of collateral estoppel forecloses the petitioners from relitigating the factual issues determined against them in the SEC action, nothing in the Seventh Amendment dictates a different result, even though, because of lack of mutuality, there would have been no collateral estoppel in 1791. [ Footnote 24 ] The judgment of the Court of Appeals is Affirmed. [ Footnote 1 ] The amended complaint alleged that the proxy statement that had been issued to the stockholders was false and misleading because it failed to disclose: (1) that the president of Parklane would financially benefit as a result of the company's going private; (2) certain ongoing negotiations that could have resulted in financial benefit to Parklane; and (3) that the appraisal of the fair value of Parklane stock was based on insufficient information to be accurate. [ Footnote 2 ] A private plaintiff in an action under the proxy rules is not entitled to relief simply by demonstrating that the proxy solicitation was materially false and misleading. The plaintiff must also show that he was injured and prove damages. Mills v. Electric Auto-Lite Co., 396 U. S. 375 , 396 U. S. 386 -390. Since the SEC action was limited to a determination of whether the proxy statement contained materially false and misleading information, the respondent conceded that he would still have to prove these other elements of his prima facie case in the private action. The petitioners' right to a jury trial on those remaining issues is not contested. [ Footnote 3 ] The position of the Court of Appeals for the Second Circuit is in conflict with that taken by the Court of Appeals for the Fifth Circuit in Rachal v. Hill, 435 F.2d 59. [ Footnote 4 ] In this context, offensive use of collateral estoppel occurs when the plaintiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party. Defensive use occurs when a defendant seeks to prevent a plaintiff from asserting a claim the plaintiff has previously litigated and lost against another defendant. [ Footnote 5 ] Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, the second action is upon a different cause of action, and the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action. 1B J. Moore, Federal Practice � 0.405[1], pp. 622-624 (2d ed.1974); e.g., Lawlor v. National Screen Serv. Corp., 349 U. S. 322 , 349 U. S. 326 ; Commissioner v. Sunnen, 333 U. S. 591 , 333 U. S. 597 ; Cromwell v. County of Sac, 94 U. S. 351 , 94 U. S. 352 -353. [ Footnote 6 ] E.g., Bigelow v. Old Dominion Copper Co., 225 U. S. 111 , 225 U. S. 127 ("It is a principle of general elementary law that estoppel of a judgment must be mutual"); Buckeye Powder Co. v. E. I. DuPont de Nemours Powder Co., 248 U. S. 55 , 248 U. S. 63 ; Restatement of Judgments § 93 (1942). [ Footnote 7 ] It is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy and therefore has never had an opportunity to be heard. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313 , 402 U. S. 329 ; Hansberry v. Lee, 311 U. S. 32 , 311 U. S. 40 . [ Footnote 8 ] This criticism was summarized in the Court's opinion in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, supra at 402 U. S. 332 -327. The opinion of Justice Traynor for a unanimous California Supreme Court in Bernhard v. Bank of America Nat. Trust & Savings Assn., 19 Cal. 2d 807 , 812, 122 P.2d 892, 895, made the point succinctly: "No satisfactory rationalization has been advanced for the requirement of mutuality. Just why a party who was not bound by a previous action should be precluded from asserting it as res judicata against a party who was bound by it is difficult to comprehend." [ Footnote 9 ] In Triplett v. Lowell, 297 U. S. 638 , the Court had held that a determination of patent invalidity in a prior action did not bar a plaintiff from relitigating the validity of a patent in a subsequent action against a different defendant. This holding of the Triplett case was explicitly overruled in the Blonder-Tongue case. [ Footnote 10 ] The Court also emphasized that relitigation of issues previously adjudicated is particularly wasteful in patent cases because of their staggering expense and typical length. 402 U.S. at 402 U. S. 334 , 402 U. S. 348 . Under the doctrine of mutuality of parties, an alleged infringer might find it cheaper to pay royalties than to challenge a patent that had been declared invalid in a prior suit, since the holder of the patent is entitled to a statutory presumption of validity. Id. at 402 U. S. 338 . [ Footnote 11 ] Various commentators have expressed reservations regarding the application of offensive collateral estoppel. Currie, Mutuality of Estoppel: Limits of the Bernhard Doctrine, 9 Stan.L.Rev. 281 (1957); Semmel, Collateral Estoppel, Mutuality and Joinder of Parties, 68 Colum.L.Rev. 1457 (1968); Note, The Impacts of Defensive and Offensive Assertion of Collateral Estoppel by a Nonparty, 35 Geo.Wash.L.Rev. 1010 (1967). Professor Currie later tempered his reservations. Civil Procedure: The Tempest Brews, 53 Calif.L.Rev. 25 (1965). [ Footnote 12 ] Under the mutuality requirement, a plaintiff could accomplish this result since he would not have been bound by the judgment had the original defendant won. [ Footnote 13 ] The Restatement (Second) of Judgments § 88(3) (Tent.Draft No. 2, Apr. 15, 1975) provides that application of collateral estoppel may be denied if the party asserting it "could have effected joinder in the first action between himself and his present adversary." [ Footnote 14 ] In Professor Currie's familiar example, a railroad collision injures 50 passengers all of whom bring separate actions against the railroad. After the railroad wins the first 25 suits, plaintiff wins in suit 26. Professor Currie argues that offensive use of collateral estoppel should not be applied so as to allow plaintiffs 27 through 50 automatically to recover. Currie, supra, 9 Stan.L.Rev. at 304. See Restatement (Second) of Judgments § 88(4), supra. [ Footnote 15 ] If, for example, the defendant in the first action was forced to defend in an inconvenient forum, and therefore was unable to engage in full scale discovery or call witnesses, application of offensive collateral estoppel may be unwarranted. Indeed, differences in available procedures may sometimes justify not allowing a prior judgment to have estoppel effect in a subsequent action even between the same parties, or where defensive estoppel is asserted against a plaintiff who has litigated and lost. The problem of unfairness is particularly acute in cases of offensive estoppel, however, because the defendant against whom estoppel is asserted typically will not have chosen the forum in the first action. See id. § 88(2) and Comment d. [ Footnote 16 ] This is essentially the approach of id., § 88, which recognizes that "the distinct trend, if not the clear weight of recent authority, is to the effect that there is no intrinsic difference between 'offensive,' as distinct from 'defensive,' issue preclusion, although a stronger showing that the prior opportunity to litigate was adequate may be required in the former situation than the latter." Id., Reporter's Note, at 99. [ Footnote 17 ] SEC v. Everest Management Corp., 475 F.2d 1236, 1240 (CA2) ("[T]he complicating effect of the additional issues and the additional parties outweighs any advantage of a single disposition of the common issues"). Moreover, consolidation of a private action with one brought by the SEC without its consent is prohibited by statute. 15 U.S.C. § 78u(g). [ Footnote 18 ] After a day trial in which the petitioners had every opportunity to present evidence and call witnesses, the District Court held for the SEC. The petitioners then appealed to the Court of Appeals for the Second Circuit, which affirmed the judgment against them. Moreover, the petitioners were already aware of the action brought by the respondent, since it had commenced before the filing of the SEC action. [ Footnote 19 ] It is true, of course, that the petitioners in the present action would be entitled to a jury trial of the issues bearing on whether the proxy statement was materially false and misleading had the SEC action never been brought -- a matter to be discussed in 439 U. S. But the presence or absence of a jury as factfinder is basically neutral, quite unlike, for example, the necessity of defending the first lawsuit in an inconvenient forum. [ Footnote 20 ] The Seventh Amendment provides: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right to jury trial shall be preserved. . . ." [ Footnote 21 ] The authors of this article conclude that the historical sources "indicates that in the late eighteenth and early nineteenth centuries, determinations in equity were thought to have as much force as determinations at law, and that the possible impact on jury trial rights was not viewed with concern. . . . If collateral estoppel is otherwise warranted, the jury trial question should not stand in the way." 85 Harv.L.Rev. at 455-456. This common law rule is adopted in the Restatement of Judgments § 68, Comment j (1942). [ Footnote 22 ] Similarly, in both Dairy Queen, Inc. v. Wood, 369 U. S. 469 , and Meeker v. Ambassador Oil Corp., 375 U. S. 160 , the Court held that legal claims should ordinarily be tried before equitable claims to preserve the right to a jury trial. [ Footnote 23 ] The petitioners' reliance on Dimick v. Schiedt, 293 U. S. 474 , is misplaced. In the Dimick case, the Court held that an increase by the trial judge of the amount of money damages awarded by the jury violated the second clause of the Seventh Amendment, which provides that "no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law." Collateral estoppel does not involve the "reexamination" of any fact decided by a jury. On the contrary, the whole premise of collateral estoppel is that, once an issue has been resolved in a prior proceeding, there is no further factfinding function to be performed. [ Footnote 24 ] In reaching this conclusion, the Court of Appeals went on to state: "Were there any doubt about the [question whether the petitioners were entitled to a jury redetermination of the issues otherwise subject to collateral estoppel], it should in any event be resolved against the defendants in this case for the reason that, although they were fully aware of the pendency of the present suit throughout the non-jury trial of the SEC case, they made no effort to protect their right to a jury trial of the damage claims asserted by plaintiffs, either by seeking to expedite trial of the present action or by requesting Judge Duffy, in the exercise of his discretion pursuant to Rule 39(b), (G), F.R.Civ.P., to order that the issues in the SEC case be tried by a jury or before an advisory jury." 565 F.2d at 821-822. (Footnote omitted.) The Court of Appeals was mistaken in these suggestions. The petitioners did not have a right to a jury trial in the equitable injunctive action brought by the SEC. Moreover, an advisory jury, which might have only delayed and complicated that proceeding, would not, in any event, have been a Seventh Amendment jury. And the petitioners were not in a position to expedite the private action and stay the SEC action. The Securities Exchange Act of 1934 provides for prompt enforcement actions by the SEC unhindered by parallel private actions. 15 U.S.C. § 78u(g). MR. JUSTICE REHNQUIST, dissenting. It is admittedly difficult to be outraged about the treatment accorded by the federal judiciary to petitioners' demand for a jury trial in this lawsuit. Outrage is an emotion all but Page 439 U. S. 338 impossible to generate with respect to a corporate defendant in a securities fraud action, and this case is no exception. But the nagging sense of unfairness as to the way petitioners have been treated, engendered by the imprimatur placed by the Court of Appeals on respondent's "heads I win, tails you lose" theory of this litigation, is not dispelled by this Court's antiseptic analysis of the issues in the case. It may be that, if this Nation were to adopt a new Constitution today, the Seventh Amendment guaranteeing the right of jury trial in civil cases in federal courts would not be included among its provisions. But any present sentiment to that effect cannot obscure or dilute our obligation to enforce the Seventh Amendment, which was included in the Bill of Rights in 1791 and which has not since been repealed in the only manner provided by the Constitution for repeal of its provisions. The right of trial by jury in civil cases at common law is fundamental to our history and jurisprudence. Today, however, the Court reduces this valued right, which Blackstone praised as "the glory of the English law," to a mere "neutral" Page 439 U. S. 339 factor and, in the name of procedural reform, denies the right of jury trial to defendants in a vast number of cases in which defendants heretofore have enjoyed jury trials. Over 35 years ago, Mr. Justice Black lamented the "gradual process of judicial erosion which in one-hundred-fifty years has slowly worn away a major portion of the essential guarantee of the Seventh Amendment." Galloway v. United States, 319 U. S. 372 , 319 U. S. 397 (1943) (dissenting opinion). Regrettably, the erosive process continues apace with today's decision. [ Footnote 2/1 ] I The Seventh Amendment provides: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law." The history of the Seventh Amendment has been amply documented by this Court and by legal scholars, [ Footnote 2/2 ] and it would serve no useful purpose to attempt here to repeat all that has been written on the subject. Nonetheless, the decision of this case turns on the scope and effect of the Seventh Amendment, which, perhaps more than with any other provision of the Constitution, are determined by reference to the historical Page 439 U. S. 340 setting in which the Amendment was adopted. See Colgrove v. Battin, 413 U. S. 149 , 413 U. S. 152 (1973). It therefore is appropriate to pause to review, albeit briefly, the circumstances preceding and attending the adoption of the Seventh Amendment as a guide in ascertaining its application to the case at hand. A It is perhaps easy to forget, now more than 200 years removed from the events, that the right of trial by jury was held in such esteem by the colonists that its deprivation at the hands of the English was one of the important grievances leading to the break with England. See Sources and Documents Illustrating the American Revolution 1764-1788 and the Formation of the Federal Constitution 94 (S. Morison 2d ed.1929); R. Pound, The Development of Constitutional Guarantees of Liberty 69-72 (1957); C. Ubbelohde, The Vice-Admiralty Courts and the American Revolution 208-211 (1960). The extensive use of vice-admiralty courts by colonial administrators to eliminate the colonists' right of jury trial was listed among the specific offensive English acts denounced in the Declaration of Independence. [ Footnote 2/3 ] And after Page 439 U. S. 341 war had broken out, all of the 13 newly formed States restored the institution of civil jury trial to its prior prominence; 10 expressly guaranteed the right in their state constitutions, and the 3 others recognized it by statute or by common practice. [ Footnote 2/4 ] Indeed, "[t]he right to trial by jury was probably the only one universally secured by the first American state constitutions. . . ." L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 281 (1960). [ Footnote 2/5 ] One might justly wonder, then, why no mention of the right of jury trial in civil cases should have found its way into the Constitution that emerged from the Philadelphia Convention in 1787. Article III, § 2, cl. 3, merely provides that "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury." The omission of a clause protective of the civil jury right was not for lack of trying, however. Messrs. Pinckney and Gerry proposed to provide a clause securing the right of jury trial in civil cases, but their efforts failed. [ Footnote 2/6 ] Several reasons Page 439 U. S. 342 have been advanced for this failure. The Federalists argued that the practice of civil juries among the several States varied so much that it was too difficult to draft constitutional language to accommodate the different state practices. See Colgrove v. Battin, supra, at 413 U. S. 153 . [ Footnote 2/7 ] Whatever the reason for the omission, however, it is clear that, even before the delegates had left Philadelphia, plans were under way to attack the proposed Constitution on the ground that it failed to contain a guarantee of civil jury trial in the new federal courts. See R. Rutland, George Mason 91 (1961); Wolfram 662. The virtually complete absence of a bill of rights in the proposed Constitution was the principal focus of the Anti-Federalists' attack on the Constitution, and the lack of a provision for civil juries featured prominently in their arguments. See Parsons v. Bedford , 3 Pet. 433, 28 U. S. 445 (1830). Their pleas struck a responsive chord in the populace, and the price exacted in many States for approval of the Constitution was the appending of a list of recommended amendments, chief among them a clause securing the right of jury trial in civil cases. [ Footnote 2/8 ] Responding to the pressures for a civil jury Page 439 U. S. 343 guarantee generated during the ratification debates, the first Congress under the new Constitution at its first session in 1789 proposed to amend the Constitution by adding the following language: "In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate." 1 Annals of Cong. 435 (1789). That provision, altered in language to what became the Seventh Amendment, was proposed by the Congress in 1789 to the legislatures of the several States and became effective with its ratification by Virginia on December 15, 1791. [ Footnote 2/9 ] The foregoing sketch is meant to suggest what many of those who oppose the use of juries in civil trials seem to ignore. The founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary. [ Footnote 2/10 ] Those who passionately advocated the right to a civil jury trial did not do so because they considered the jury a familiar procedural device that should be continued; the concerns for the institution of jury trial that led to the passages of the Declaration of Independence and to the Seventh Amendment were not animated by a belief that use of juries would lead to more efficient judicial administration. Trial by a jury of laymen, rather than by the sovereign's judges, Page 439 U. S. 344 was important to the founders because juries represent the layman's common sense, the "passionate elements in our nature," and thus keep the administration of law in accord with the wishes and feelings of the community. O. Holmes, Collected Legal Papers 237 (1920). Those who favored juries believed that a jury would reach a result that a judge either could not or would not reach. [ Footnote 2/11 ] It is with these values that underlie the Seventh Amendment in mind that the Court should, but obviously does not, approach the decision of this case. B The Seventh Amendment requires that the right of trial by jury be "preserved." Because the Seventh Amendment demands preservation of the jury trial right, our cases have uniformly held that the content of the right must be judged by historical standards. E.g., Curtis v. Loether, 415 U. S. 189 , 415 U. S. 193 (1974); Colgrove v. Battin, 413 U.S. at 413 U. S. 155 -156; Ross v. Bernhard, 396 U. S. 531 , 396 U. S. 533 (1970); Capital Traction Co. v. Hof, 174 U. S. 1 , 174 U. S. 8 -9 (1899); Parsons v. Bedford, supra at 28 U. S. 446 . Thus, in Baltimore & Carolina Line v. Redman, 295 U. S. 654 , 295 U. S. 657 (1935), the Court stated that "[t]he right of trial by jury thus preserved is the right which existed under the English common law when the Amendment was adopted." Page 439 U. S. 345 And in Dimick v. Shiedt, 293 U. S. 474 , 293 U. S. 476 (1935), the Court held: "In order to ascertain the scope and meaning of the Seventh Amendment, resort must be had to the appropriate rules of the common law established at the time of the adoption of that constitutional provision in 1791. [ Footnote 2/12 ]" If a jury would have been impaneled in a particular kind of case in 1791, then the Seventh Amendment requires a jury trial today, if either party so desires. To be sure, it is the substance of the right of jury trial that is preserved, not the incidental or collateral effects of common law practice in 1791. Walker v. New Mexico & S. P. R. Co., 165 U. S. 593 , 165 U. S. 596 (1897). "The aim of the Amendment, as this Court has held, is to preserve the substance of the common law right of trial by jury, as distinguished from mere matters of form or procedure, and particularly to retain the common law distinction between the province of the court and that of the jury. . . ." Baltimore & Carolina Line v. Redman, supra, at 295 U. S. 657 . Accord, Colgrove v. Battin, supra, at 413 U. S. 156 -157; Gasoline Products Co. v. Champlin Refining Co., 283 U. S. 494 , 283 U. S. 498 (1931); Ex parte Peterson, 253 U. S. 300 , 253 U. S. 309 (1920). "The Amendment did not bind the federal courts to the exact procedural incidents or details of jury trial according to the common law of 1791, any more than it tied them to the common law system of pleading or the specific rules of evidence then prevailing." Galloway v. United States, 319 U.S. at 319 U. S. 390 . To say that the Seventh Amendment does not tie federal courts to the exact procedure of the common law in 1791 does Page 439 U. S. 346 not imply, however, that any nominally "procedural" change can be implemented regardless of its impact on the functions of the jury. For to sanction creation of procedural devices which limit the province of the jury to a greater degree than permitted at common law in 1791 is in direct contravention of the Seventh Amendment. See Neely v. Martin K. Eby Constr. Co., 386 U. S. 317 , 386 U. S. 322 (1967); Galloway v. United States, supra at 319 U. S. 395 ; Dimick v. Schiedt, supra at 293 U. S. 487 ; Ex parte Peterson, supra at 253 U. S. 309 -310. And since we deal here not with the common law qua common law, but with the Constitution, no amount of argument that the device provides for more efficiency or more accuracy or is fairer will save it if the degree of invasion of the jury's province is greater than allowed in 1791. To rule otherwise would effectively permit judicial repeal of the Seventh Amendment, because nearly any change in the province of the jury, no matter how drastic the diminution of its functions, can always be denominated "procedural reform." The guarantees of the Seventh Amendment will prove burdensome in some instances; the civil jury surely was a burden to the English governors who, in its stead, substituted the vice-admiralty court. But, as with other provisions of the Bill of Rights, the onerous nature of the protection is no license for contracting the rights secured by the Amendment. Because "'[m]aintenance of the jury as a factfinding body is of such importance and occupies so firm a place in our history and jurisprudence . . . any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.'" Dimick v. Schiedt, supra at 293 U. S. 486 , quoted in Beacon Theatres, Inc. v. Westover, 359 U. S. 500 , 359 U. S. 501 (1959). C Judged by the foregoing principles, I think it is clear that petitioners were denied their Seventh Amendment right to a Page 439 U. S. 347 jury trial in this case. Neither respondent nor the Court doubts that, at common law as it existed in 1791, petitioners would have been entitled in the private action to have a jury determine whether the proxy statement was false and misleading in the respects alleged. The reason is that, at common law in 1791, collateral estoppel was permitted only where the parties in the first action were identical to, or in privity with, the parties to the subsequent action. [ Footnote 2/13 ] It was not until 1971 that the doctrine of mutuality was abrogated by this Court in certain limited circumstances. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313 . [ Footnote 2/14 ] But developments in the judge-made doctrine of collateral estoppel, however salutary, cannot, consistent with the Seventh Amendment, contract in any material fashion the right to a jury trial that a defendant would have enjoyed in 1791. In the instant case, resort to the doctrine of collateral estoppel does more than merely contract the right to a jury trial: it eliminates the right entirely, and therefore contravenes the Seventh Amendment. The Court responds, however, that, at common law, "a litigant was not entitled to have a jury [in a subsequent action at law between the same parties] determine issues that had been previously adjudicated by a chancellor in equity," and that "petitioners have advanced no persuasive reason . . . why the meaning of the Seventh Amendment should depend on Page 439 U. S. 348 whether or not mutuality of parties is present." Ante at 439 U. S. 333 , 439 U. S. 335 . But that is tantamount to saying that, since a party would not be entitled to a jury trial if he brought an equitable action, there is no persuasive reason why he should receive a jury trial on virtually the same issues if, instead, he chooses to bring his lawsuit in the nature of a legal action. The persuasive reason is that the Seventh Amendment requires that a party's right to jury trial which existed at common law be "preserved" from incursions by the government or the judiciary. Whether this Court believes that use of a jury trial in a particular instance is necessary, or fair, or repetitive, is simply irrelevant. If that view is "rigid," it is the Constitution which commands that rigidity. To hold otherwise is to rewrite the Seventh Amendment so that a party is guaranteed a jury trial in civil cases unless this Court thinks that a jury trial would be inappropriate. No doubt parallel "procedural reforms" could be instituted in the area of criminal jurisprudence, which would accomplish much the same sort of expedition of court calendars and conservation of judicial resources as would the extension of collateral estoppel in civil litigation. Government motions for summary judgment, or for a directed verdict in favor of the prosecution at the close of the evidence, would presumably save countless hours of judges' and jurors' time. It can scarcely be doubted, though, that such "procedural reforms" would not survive constitutional scrutiny under the jury trial guarantee of the Sixth Amendment. Just as the principle of separation of powers was not incorporated by the Framers into the Constitution in order to promote efficiency or dispatch in the business of government, the right to a jury trial was not guaranteed in order to facilitate prompt and accurate decision of lawsuits. The essence of that right lies in its insistence that a body of laymen not permanently attached to the sovereign participate along with the judge in the factfinding Page 439 U. S. 349 necessitated by a lawsuit. And that essence is as much a part of the Seventh Amendment's guarantee in civil cases as it is of the Sixth Amendment's guarantee in criminal prosecutions. Cf. Thiel v. Southern Pacific Co., 328 U. S. 217 , 328 U. S. 220 (1946). Relying on Galloway v. United States, Gasoline Products Co. v. Champlin Refining Co., and Fidelity & Deposit Co. v. United States, 187 U. S. 315 (1902), the Court seems to suggest that the offensive use of collateral estoppel in this case is permissible under the limited principle set forth above that a mere procedural change that does not invade the province of the jury and a defendant's right thereto to a greater extent than authorized by the common law is permissible. But the Court's actions today constitute a far greater infringement of the defendant's rights than it ever before has sanctioned. In Galloway, the Court upheld the modern form of directed verdict against a Seventh Amendment challenge, but it is clear that a similar form of directed verdict existed at common law in 1791. E.g., Beauchamp v. Barret, Peake 148, 170 Eng.Rep. 110 (N.P. 1792); Coupey v. Heley, 2 Esp. 540, 542, 170 Eng.Rep. 448, 449 (C. P. 1797). [ Footnote 2/15 ] The modern form did not materially alter the function of the jury. Similarly, the modern device of summary judgment was found not to violate the Seventh Amendment because, in 1791, a demurrer to the evidence, a procedural device substantially similar to summary judgment, was a common practice. E.g., 8 U. S. United States, 4 Cranch 219, 8 U. S. 221 -222 (1808). [ Footnote 2/16 ] Page 439 U. S. 350 The procedural devices of summary judgment and directed verdict are direct descendants of their common law antecedents. They accomplish nothing more than could have been done at common law, albeit by a more cumbersome procedure. See also Montgomery Ward & Co. v. Duncan, 311 U. S. 243 , 311 U. S. 250 (1940). And while at common law there apparently was no practice of setting aside a verdict in part, [ Footnote 2/17 ] the Court in Gasoline Products permitted a partial retrial of "distinct and separable" issues because the change in procedure would not impair the substance of the right to jury trial. 283 U.S. at 283 U. S. 498 . The parties in Gasoline Products still enjoyed the right to have a jury determine all issues of fact. By contrast, the development of nonmutual estoppel is a substantial departure from the common law, and its use in this case completely deprives petitioners of their right to have a jury determine contested issues of fact. I am simply unwilling to accept the Court's presumption that the complete extinguishment of petitioners' right to trial by jury can be justified as a mere change in "procedural incident or detail." Over 40 years ago, Mr. Justice Sutherland observed in a not dissimilar case: "[T]his court, in a very special sense, is charged with the duty of construing and upholding the Constitution; and, in the discharge of that important duty, it ever must be alert to see that a doubtful precedent be not extended by mere analogy to a different case if the result will be to weaken or subvert what it conceives to be a principle of the fundamental law of the land." Dimick v. Schiedt, 293 U.S. at 293 U. S. 485 . Page 439 U. S. 351 II Even accepting, arguendo, the majority's position that there is no violation of the Seventh Amendment here, I nonetheless would not sanction the use of collateral estoppel in this case. The Court today holds: "The general rule should be that, in cases where a plaintiff could easily have joined in the earlier action or where, either for the reasons discussed above or for other reasons, the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel." Ante at 439 U. S. 331 . In my view, it is "unfair" to apply offensive collateral estoppel where the party who is sought to be estopped has not had an opportunity to have the facts of his case determined by a jury. Since, in this case, petitioners were not entitled to a jury trial in the Securities and Exchange Commission (SEC) lawsuit, [ Footnote 2/18 ] I would not estop them from relitigating the issues determined in the SEC suit before a jury in the private action. I believe that several factors militate in favor of this result. First, the use of offensive collateral estoppel in this case runs counter to the strong federal policy favoring jury trials, even if it does not, as the majority holds, violate the Seventh Amendment. The Court's decision in Beacon Theatres, Inc. v. Westover, 359 U. S. 500 (1969), exemplifies that policy. In Beacon Theatres, the Court held that, where both equitable and legal claims or defenses are presented in a single case, "only under the most imperative circumstances, circumstances which, in view of the flexible procedures of the Federal Rules, we cannot now anticipate, can the right to a jury trial of legal issues be lost through prior determination of equitable claims. " Page 439 U. S. 352 Id. at 359 U. S. 510 -511. [ Footnote 2/19 ] And in Jacob v. New York, 315 U. S. 752 , 315 U. S. 752 -753 (1942), the Court stated: "The right of jury trial in civil cases at common law is a basic and fundamental feature of our system of federal jurisprudence which is protected by the Seventh Amendment. A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, should be jealously guarded by the courts." Accord, Simler v. Conner, 372 U. S. 221 , 372 U. S. 222 (1963); Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U. S. 525 , 356 U. S. 537 -539 (1958) (strong federal policy in favor of juries requires jury trials in diversity cases, regardless of state practice). Today's decision will mean that, in a large number of private cases, defendants will no longer enjoy the right to jury trial. [ Footnote 2/20 ] Neither the Court nor respondent has adverted or cited to any unmanageable problems that have resulted Page 439 U. S. 353 from according defendants jury trials in such cases. I simply see no "imperative circumstances" requiring this wholesale abrogation of jury trials. [ Footnote 2/21 ] Second, I believe that the opportunity for a jury trial in the second action could easily lead to a different result from that obtained in the first action before the court, and therefore that it is unfair to estop petitioners from relitigating the issues before a jury. This is the position adopted in the Restatement (Second) of Judgments, which disapproves of the application of offensive collateral estoppel where the defendant has an opportunity for a jury trial in the second lawsuit that was not available in the first action. [ Footnote 2/22 ] The Court accepts the proposition that it is unfair to apply offensive collateral estoppel "where the second action affords the defendant procedural opportunities unavailable in the first action that could readily cause a different result." Ante at 439 U. S. 331 . Differences in discovery opportunities between the two actions are cited as examples of situations where it would be unfair to permit offensive collateral estoppel. Ante at 439 U. S. 331 n. 15. But, in the Court's view, the fact that petitioners would have been entitled to a jury trial in the present action is not such a "procedural opportunit[y]," because "the presence or absence of a jury as factfinder is basically neutral, quite unlike, for example, the Page 439 U. S. 354 necessity of defending the first lawsuit in an inconvenient forum." Ante at 439 U. S. 332 n. 19 (emphasis added). As is evident from the prior brief discussion of the development of the civil jury trial guarantee in this country, those who drafted the Declaration of Independence and debated so passionately the proposed Constitution during the ratification period, would indeed be astounded to learn that the presence or absence of a jury is merely "neutral," whereas the availability of discovery, a device unmentioned in the Constitution, may be controlling. It is precisely because the Framers believed that they might receive a different result at the hands of a jury of their peers than at the mercy of the sovereign's judges, that the Seventh Amendment was adopted. And I suspect that anyone who litigates cases before juries in the 1970's would be equally amazed to hear of the supposed lack of distinction between trial by court and trial by jury. The Court can cite no authority in support of this curious proposition. The merits of civil juries have been long debated, but I suspect that juries have never been accused of being merely "neutral" factors. [ Footnote 2/23 ] Contrary to the majority's supposition, juries can make a difference, and our cases have, before today at least, recognized this obvious fact. Thus, in Colgrove v. Battin, 413 U.S. at 413 U. S. 157 , we stated that "the purpose of the jury trial in . . . civil cases [is] to assure a fair and equitable resolution of factual issues, Gasoline Products Co. v. Champlin Co., 283 U. S. 494 , 283 U. S. 498 (1931). . . ." And in Byrd v. Blue Ridge Page 439 U. S. 355 Rural Electrical Cooperative, supra at 356 U. S. 537 , the Court conceded that "the nature of the tribunal which tries issues may be important in the enforcement of the parcel of rights making up a cause of action or defense. . . . It may well be that, in the instant personal injury case, the outcome would be substantially affected by whether the issue of immunity is decided by a judge or a jury." See Curtis v. Loether, 415 U.S. at 415 U. S. 198 ; cf. Duncan v. Louisiana, 391 U. S. 145 , 391 U. S. 156 (1968). Jurors bring to a case their common sense and community values; their "very inexperience is an asset, because it secures a fresh perception of each trial, avoiding the stereotypes said to infect the judicial eye." H. Kalven & H. Zeisel, The American Jury 8 (1966). The ultimate irony of today's decision is that its potential for significantly conserving the resources of either the litigants or the judiciary is doubtful, at best. That being the case, I see absolutely no reason to frustrate so cavalierly the important federal policy favoring jury decisions of disputed fact questions. The instant case is an apt example of the minimal savings that will be accomplished by the Court's decision. As the Court admits, even if petitioners are collaterally estopped from relitigating whether the proxy was materially false and misleading, they are still entitled to have a jury determine whether respondent was injured by the alleged misstatements and the amount of damages, if any, sustained by respondent. Ante at 439 U. S. 325 n. 2. Thus, a jury must be impaneled in this case in any event. The time saved by not trying the issue of whether the proxy was materially false and misleading before the jury is likely to be insubstantial. [ Footnote 2/24 ] It is just as probable that today's decision will have the result of coercing defendants to agree to consent orders or settlements Page 439 U. S. 356 in agency enforcement actions in order to preserve their right to jury trial in the private actions. In that event, the Court, for no compelling reason, will have simply added a powerful club to the administrative agencies' arsenals that even Congress was unwilling to provide them. [ Footnote 2/1 ] Because I believe that the use of offensive collateral estoppel in this particular case was improper, it is not necessary for me to decide whether I would approve its use in circumstances where the defendant's right to a jury trial was not impaired. [ Footnote 2/2 ] See, e.g., Colgrove v. Battin, 413 U. S. 149 (1973); Capital Traction Co. v. Hof, 174 U. S. 1 (1899); Parsons v. Bedford , 3 Pet. 433 (1830); Henderson, The Background of the Seventh Amendment, 80 Harv.L.Rev. 289 (1966) (hereinafter Henderson); Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn.L.Rev. 639 (1973) (hereinafter Wolfram). See also United States v. Wonson, 28 F. Cas. 745 (No. 16,750) (CC Mass. 1812) (Story, C.J.). [ Footnote 2/3 ] The Declaration of Independence states: "For depriving us in many cases, of the benefits of Trial by Jury." Just two years earlier, in the Declaration of Rights adopted October 14, 1774, the first Continental Congress had unanimously resolved that "the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law." 1 Journals of the Continental Congress 69 (1904). Holdsworth has written that, of all the new methods adopted to strengthen the administration of the British laws, "the most effective, and therefore the most disliked, was the extension given to the jurisdiction of the reorganized courts of admiralty and vice-admiralty. It was the most effective because it deprived the defendant of the right to be tried by a jury which was almost certain to acquit him." 11 W. Holdsworth, A History of English Law 110 (1966). While the vice-admiralty courts dealt chiefly with criminal offenses, their jurisdiction also was extended to many areas of the civil law. Wolfram 654 n. 47. [ Footnote 2/4 ] Ga.Const., Art. LXI (1777), in 2 The Federal and State Constitutions Colonial Charters, and Other Organic Laws 785 (F. Thorpe ed.1909) (hereinafter Thorpe); Md.Const., Art. III (1776), in 3 Thorpe 1686-1687; Mass.Const., Art. XV (1780), in 3 Thorpe 1891-1892; N.H.Const., Art. XX (1784), in 4 Thorpe 2456; N.J.Const., Art. XXII (1776), in 5 Thorpe 2598; N.Y.Const., Art. XLI (1777), in 5 Thorpe 2637; N.C.Const., Declaration of Rights, Art. XIV (1776), in 5 Thorpe 2788; Pa.Const., Declaration of Rights, Art. XI (1776), in 5 Thorpe 3083; S.C.Const., Art. XLI (1778), in 6 Thorpe 3257; Va.Const., Bill of Rights, § 11 (1776), in 7 Thorpe 3814. See Wolfram 655. [ Footnote 2/5 ] When Congress, in 1787, adopted the Northwest Ordinance for governance of the territories west of the Appalachians, it included a guarantee of trial by jury in civil cases. 2 Thorpe 960-961. [ Footnote 2/6 ] The proposal was to add the following language to Art. III: "And a trial by jury shall be preserved as usual in civil cases." 2 M. Farrand, The Records of the Federal Convention of 1787, p. 628 (1911). The debate regarding this proposal is quoted in Colgrove v. Battin, supra at 413 U. S. 153 -155, n. 8. [ Footnote 2/7 ] The objection of Mr. Gorham of Massachusetts was that "[t]he constitution of Juries is different in different States, and the trial itself is usual in different cases in different States." 2 M. Farrand, supra at 628. Commentators have suggested several additional reasons for the failure of the convention to include a civil jury guarantee. See Henderson 294-295; ("[T]he true reason for omitting a similar provision for civil juries was, at least in part, that the convention members simply wanted to go home"); Wolfram 660-666. [ Footnote 2/8 ] See Henderson 298; Wolfram 667-703. Virginia's recommended jury trial amendment is typical: "That, in controversies respecting property, and in suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people, and [ought] to remain sacred and inviolable." 3 J. Elliot, Debates on the Federal Constitution 658 (2d ed. 1836). [ Footnote 2/9 ] The Judiciary Act of September 24, 1789, which was passed within six months of the organization of the new government and on the day before the first 10 Amendments were proposed to the legislatures of the States by the First Congress, provided for a civil jury trial right. 1 Stat. 77. [ Footnote 2/10 ] Thomas Jefferson stated: "I consider [trial by jury] as the only anchor yet imagined by man by which a government can be held to the principles of its constitution." 3 The Writings of Thomas Jefferson 71 (Washington ed. 1861). [ Footnote 2/11 ] Wolfram 671. Professor Wolfram has written: "[T]he anti-federalists were not arguing for the institution of civil jury trial in the belief that jury trials were short, inexpensive, decorous and productive of the same decisions that judges sitting without juries would produce. The inconveniences of jury trial were accepted precisely because, in important instances, through its ability to disregard substantive rules of law, the jury would reach a result that the judge either could not or would not reach. Those who favored the civil jury were not misguided tinkerers with procedural devices; they were, for the day, libertarians who avowed that important areas of protection for litigants in general, and for debtors in particular, would be placed in grave danger unless it were required that juries sit in civil cases." Id. at 671-672. [ Footnote 2/12 ] The majority suggests that Dimick v. Schiedt is not relevant to the decision in this case because it dealt with the second clause of the Seventh Amendment. Ante at 439 U. S. 336 n. 23. I disagree. There is no intimation in that opinion that the first clause should be treated any differently from the second. The Dimick Court's respect for the guarantees of the Seventh Amendment applies as much to the first clause as to the second. [ Footnote 2/13 ] See Smith v. Kernochen , 7 How.198, 48 U. S. 218 (1849); Hopkins v. Lee , 6 Wheat. 109, 19 U. S. 113 -114 (1821); F. Buller, An Introduction to the Law Relative to Trials at Nisi Prius *232 (7th ed. 1817); T. Peake, A Compendium of the Law of Evidence 38 (2d ed. 1806). [ Footnote 2/14 ] The Court's decision in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation is, on its facts, limited to the defensive use of collateral estoppel in patent cases. Abandonment of mutuality is a recent development. The case of Bernhard v. Bank of America Nat. Trust & Sav. Assn., 19 Cal. 2d 807 , 122 P.2d 892, generally considered the seminal case adopting the new approach, was not decided until 1942. [ Footnote 2/15 ] See Henderson 302-303 ("In the England of 1790, the phrase to direct a verdict' was common. Further, it was commonplace to instruct the jury `that the plaintiff was entitled to recover,' or `the plaintiff must have a verdict'"); Scott, Trial by Jury and the Reform of Civil Procedure, 31 Harv.L.Rev. 669, 686 (1918) (cases cited therein). [ Footnote 2/16 ] To demur, a party would admit the truth of all the facts adduced against him and every adverse inference that could be drawn therefrom, and the court would determine which party should receive judgment on the basis of these admitted facts and inferences. See Slocum v. New York Life Ins. Co., 228 U. S. 364 , 228 U. S. 388 (1913); Gibson v. Hunter, 2 H.Bl. 187, 126 Eng.Rep. 499 (N.P. 1793); Henderson 3305; Scott, supra, 439 U.S. 322 fn2/15|>n. 15, at 683-684. [ Footnote 2/17 ] The Court in Gasoline Products quoted Lord Mansfield, who stated that, when a verdict is correct as to one issue but erroneous as to another " for form's sake, we must set aside the whole verdict. . . .'" Edie v. East India Co., 1 W. Bl. 295, 298 (K.B. 1761), quoted 283 U.S. at 283 U. S. 498 . [ Footnote 2/18 ] I agree with the Court that "petitioners did not have a right to a jury trial in the equitable injunctive action brought by the SEC." Ante at 439 U. S. 338 n. 24. [ Footnote 2/19 ] Meeker v. Ambassador Oil Corp., 375 U. S. 160 (1963) (per curiam), is a case where the doctrine of collateral estoppel yielded to the right to a jury trial. In Meeker, plaintiffs asserted both equitable and legal claims, which presented common issues, and demanded a jury trial. The trial court tried the equitable claim first, and decided that claim, and the common issues, adversely to plaintiffs. As a result, it held that plaintiffs were precluded from relitigating those same issues before a jury on their legal claim. 308 F.2d 875, 884 (CA10 1962). Plaintiffs appealed, alleging a denial of their right to a jury trial, but the Tenth Circuit affirmed the trial court. This Court reversed the Court of Appeals on the basis of Beacon Theatres, Inc. v. Westover, 359 U. S. 500 (1959), and Dairy Queen, Inc. v. Wood, 369 U. S. 469 (1962), even though, unlike those cases, the equitable action in Meeker already had been tried and the common issues determined by the court. Thus, even though the plaintiffs in Meeker had received a "full and fair" opportunity to try the common issues in the prior equitable action, they nonetheless were given the opportunity to retry those issues before a jury. Today's decision is totally inconsistent with Meeker, and the Court fails to explain this inconsistency. [ Footnote 2/20 ] The Court's decision today may well extend to other areas, such as antitrust, labor, employment discrimination, consumer protection, and the like, where a private plaintiff may sue for damages based on the same or similar violations that are the subject of government actions. [ Footnote 2/21 ] This is not to say that Congress cannot commit enforcement of statutorily created rights to an "administrative process or specialized court of equity." Curtis v. Loether, 415 U. S. 189 , 415 U. S. 195 (1974); see Atlas Roofing Co., Inc. v. Occupational Safety & Health Review Comm'n, 430 U. S. 442 (1977); Katchen v. Landy, 382 U. S. 323 (1966); NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937). [ Footnote 2/22 ] Restatement (Second) of Judgments § 88(2), Comment d (Tent. Draft No. 2, Apr. 15, 1975). Citing Rachal v. Hill, 435 F.2d 59 (CA5 1970), cert. denied, 403 U.S. 904 (1971), the Reporter's Note states: "The differences between the procedures available in the first and second actions, while not sufficient to deny issue preclusion between the same parties, may warrant a refusal to carry over preclusion to an action involving another party." Restatement, supra at 100. [ Footnote 2/23 ] See, e.g., Hearings on Recording of Jury Deliberations before the Subcommittee to Investigate the Administration of the Internal Security Act and Other Internal Security Laws of the Senate Committee on the Judiciary, 84th Cong., 1st Sess., 63-81 (1955) (thorough summary of arguments pro and con on jury trials and an extensive bibliography); H. Kalven & H. Zeisel, The American Jury 4 n. 2 (1966) (bibliography); Redish, Seventh Amendment Right to Jury Trial: A Study in the Irrationality of Rational Decision Making, 70 Nw.U.L.Rev. 486, 502-508 (1975) (discussion of arguments for and against juries). [ Footnote 2/24 ] Much of the delay in jury trials is attributed to the jury selection, voir dire, and the charge. See H. Zeisel, H. Kalven, & B. Buchholz, Delay in the Court 79 (1959). None of these delaying factors will be avoided by today's decision.

In Parklane Hosiery Co., Inc. v. Shore, the Supreme Court considered the application of collateral estoppel, a legal principle that prevents relitigation of issues that have already been decided in a previous court case. The case specifically addressed the "offensive" use of collateral estoppel, where a plaintiff seeks to prevent a defendant from litigating an issue they previously lost against another party. The Court held that while mutuality (requiring both parties to be bound by the same judgment) is no longer required for collateral estoppel, offensive use of collateral estoppel should be applied cautiously by trial judges. In cases where a plaintiff could have easily joined the previous action or where its use would be unfair to the defendant, offensive collateral estoppel should not be allowed. In this case, the Court found that the defendants had a full and fair opportunity to litigate their claims in the previous SEC action and were collaterally estopped from relitigating the issue of whether their proxy statement was materially false and misleading. However, Justice Rehnquist, in his dissent, argued that the decision was inconsistent with previous case law and raised concerns about the potential extension of this ruling to other areas of law, such as antitrust and labor disputes.

Lawsuits & Legal Procedures

World-Wide Volkswagen Corp. v. Woodson

https://supreme.justia.com/cases/federal/us/444/286/

U.S. Supreme Court World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) World-Wide Volkswagen Corp. v. Woodson No. 78-1078 Argued October 3, 1979 Decided January 21, 1980 444 U.S. 286 CERTIORARI TO THE SUPREME COURT OF OKLAHOMA Syllabus A products liability action was instituted in an Oklahoma st,ate court by respondents husband and wife to recover for personal injuries sustained in Oklahoma in an accident involving an automobile that had been purchased by them in New York while they were New York residents and that was being driven through Oklahoma at the time of the accident. The defendants included the automobile retailer and its wholesaler (petitioners), New York corporations that did no business in Oklahoma. Petitioners entered special appearances, claiming that Oklahoma's exercise of jurisdiction over them would offend limitations on the State's jurisdiction imposed by the Due Process Clause of the Fourteenth Amendment. The trial court rejected petitioners' claims, and they then sought, but were denied, a writ of prohibition in the Oklahoma Supreme Court to restrain respondent trial judge from exercising in personam jurisdiction over them. Held: Consistently with the Due Process Clause, the Oklahoma trial court may not exercise in personam jurisdiction over petitioners. Pp. 444 U. S. 291 -299. (a) A state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist "minimum contacts" between the defendant and the forum State. International Shoe Co. v. Washington, 326 U. S. 310 . The defendant's contacts with the forum State must be such that maintenance of the suit does not offend traditional notions of fair play and substantial justice, id. at 326 U. S. 316 , and the relationship between the defendant and the forum must be such that it is "reasonable . . . to require the corporation to defend the particular suit which is brought there," id. at 326 U. S. 317 . The Due Process Clause "does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations." Id. at 326 U. S. 319 . Pp. 444 U. S. 291 -294. (b) Here, there is a total absence in the record of those affiliating circumstances that are a necessary predicate to any exercise of state court jurisdiction. Petitioners carry on no activity whatsoever in Oklahoma; they close no sales and perform no services there, avail Page 444 U. S. 287 themselves of none of the benefits of Oklahoma law, and solicit no business there either through salespersons or through advertising reasonably calculated to reach that State. Nor does the record show that they regularly sell cars to Oklahoma residents, or that they indirectly, through others, serve or seek to serve the Oklahoma market. Although it is foreseeable that automobiles sold by petitioners would travel to Oklahoma and that the automobile here might cause injury in Oklahoma, "foreseeability" alone is not a sufficient benchmark for personal jurisdiction under the Due Process Clause. The foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State, but rather is that the defendant's conduct and connection with the forum are such that he should reasonably anticipate being haled into court there. Nor can jurisdiction be supported on the theory that petitioners earn substantial revenue from goods used in Oklahoma. Pp. 444 U. S. 295 -299. 585 P.2d 351 , reversed. WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion, post, p. 444 U. S. 299 . MARSHALL, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 444 U. S. 313 . BLACKMUN, J., filed a dissenting opinion, post, p. 444 U. S. 317 . MR. JUSTICE WHITE delivered the opinion of the Court. The issue before us is whether, consistently with the Due Process Clause of the Fourteenth Amendment, an Oklahoma court may exercise in personam jurisdiction over a nonresident automobile retailer and its wholesale distributor in a products liability action, when the defendants' only connection with Oklahoma is the fact that an automobile sold in New York to New York residents became involved in an accident in Oklahoma. Page 444 U. S. 288 I Respondents Harry and Kay Robinson purchased a new Audi automobile from petitioner Seaway Volkswagen, Inc. (Seaway), in Massena, N.Y. in 1976. The following year, the Robinson family, who resided in New York, left that State for a new home in Arizona. As they passed through the State of Oklahoma, another car struck their Audi in the rear, causing a fire which severely burned Kay Robinson and her two children. [ Footnote 1 ] The Robinsons [ Footnote 2 ] subsequently brought a products liability action in the District Court for Creek County, Okla., claiming that their injuries resulted from defective design and placement of the Audi's gas tank and fuel system. They joined as defendants the automobile's manufacturer, Audi NSU Auto Union Aktiengesellschaft (Audi); its importer, Volkswagen of America, Inc. (Volkswagen); its regional distributor, petitioner World-Wide Volkswagen Corp. (World-Wide); and its retail dealer, petitioner Seaway. Seaway and World-Wide entered special appearances, [ Footnote 3 ] claiming that Oklahoma's exercise of jurisdiction over them would offend the limitations on the State's jurisdiction imposed by the Due Process Clause of the Fourteenth Amendment. [ Footnote 4 ] The facts presented to the District Court showed that World-Wide is incorporated and has its business office in New Page 444 U. S. 289 York. It distributes vehicles, parts, and accessories, under contract with Volkswagen, to retail dealers in New York, New Jersey, and Connecticut. Seaway, one of these retail dealers, is incorporated and has its place of business in New York. Insofar as the record reveals, Seaway and World-Wide are fully independent corporations whose relations with each other and with Volkswagen and Audi are contractual only. Respondents adduced no evidence that either World-Wide or Seaway does any business in Oklahoma, ships or sells any products to or in that State, has an agent to receive process there, or purchases advertisements in any media calculated to reach Oklahoma. In fact, as respondents' counsel conceded at oral argument, Tr. of Oral Arg 32, there was no showing that any automobile sold by World-Wide or Seaway has ever entered Oklahoma, with the single exception of the vehicle involved in the present case. Despite the apparent paucity of contacts between petitioners and Oklahoma, the District Court rejected their constitutional claim and reaffirmed that ruling in denying petitioners' motion for reconsideration. [ Footnote 5 ] Petitioners then sought a writ of prohibition in the Supreme Court of Oklahoma to restrain the District Judge, respondent Charles S. Woodson, from exercising in personam jurisdiction over them. They renewed their contention that, because they had no "minimal contacts," App. 32, with the State of Oklahoma, the actions of the District Judge were in violation of their rights under the Due Process Clause. The Supreme Court of Oklahoma denied the writ, 585 P.2d 351 (1978), [ Footnote 6 ] holding that personal jurisdiction over petitioners was authorized by Oklahoma's "long-arm" statute, Page 444 U. S. 290 Okla.Stat., Tit. 12, § 1701.03(a)(4) (1971). [ Footnote 7 ] Although the court noted that the proper approach was to test jurisdiction against both statutory and constitutional standards, its analysis did not distinguish these questions, probably because § 1701.03(a)(4) has been interpreted as conferring jurisdiction to the limits permitted by the United States Constitution. [ Footnote 8 ] The court's rationale was contained in the following paragraph, 585 P.2d at 354: "In the case before us, the product being sold and distributed by the petitioners is, by its very design and purpose, so mobile that petitioners can foresee its possible use in Oklahoma. This is especially true of the distributor, who has the exclusive right to distribute such automobile in New York, New Jersey and Connecticut. The evidence presented below demonstrated that goods sold and distributed by the petitioners were used in the State of Oklahoma, and, under the facts, we believe it reasonable to infer, given the retail value of the automobile, that the petitioners derive substantial income from automobiles which from time to time are used in the State of Oklahoma. This being the case, we hold that, under the facts presented, the trial court was justified in concluding Page 444 U. S. 291 that the petitioners derive substantial revenue from goods used or consumed in this State." We granted certiorari, 440 U.S. 907 (1979), to consider an important constitutional question with respect to state court jurisdiction and to resolve a conflict between the Supreme Court of Oklahoma and the highest courts of at least four other States. [ Footnote 9 ] We reverse. II The Due Process Clause of the Fourteenth Amendment limits the power of a state court to render a valid personal judgment against a nonresident defendant. Kulko v. California Superior Court, 436 U. S. 84 , 436 U. S. 91 (1978). A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere. Pennoyer v. Neff, 95 U. S. 714 , 95 U. S. 732 -733 (1878). Due process requires that the defendant be given adequate notice of the suit, Mullane v. Central Hanover Trust Co., 339 U. S. 306 , 339 U. S. 313 -314 (1950), and be subject to the personal jurisdiction of the court, International Shoe Co. v. Washington, 326 U. S. 310 (1945). In the present case, it is not contended that notice was inadequate; the only question is whether these particular petitioners were subject to the jurisdiction of the Oklahoma courts. As has long been settled, and as we reaffirm today, a state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist "minimum contacts" between the defendant and the forum State. International Shoe Co. v. Washington, supra at 326 U. S. 316 . The concept of minimum contacts, in turn, can be seen to perform two related, but Page 444 U. S. 292 distinguishable, functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system. The protection against inconvenient litigation is typically described in terms of "reasonableness" or "fairness." We have said that the defendant's contacts with the forum State must be such that maintenance of the suit "does not offend traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, supra at 326 U. S. 316 , quoting Milliken v. Meyer, 311 U. S. 457 , 311 U. S. 463 (1940). The relationship between the defendant and the forum must be such that it is "reasonable . . . to require the corporation to defend the particular suit which is brought there." 326 U.S. at 326 U. S. 317 . Implicit in this emphasis on reasonableness is the understanding that the burden on the defendant, while always a primary concern, will in an appropriate case be considered in light of other relevant factors, including the forum State's interest in adjudicating the dispute, see McGee v. International Life Ins. Co., 355 U. S. 220 , 355 U. S. 223 (1957); the plaintiff's interest in obtaining convenient and effective relief, see Kulko v. California Superior Court, supra at 436 U. S. 92 , at least when that interest is not adequately protected by the plaintiff's power to choose the forum, cf. Shaffer v. Heitner, 433 U. S. 186 , 433 U. S. 211 , n. 37 (1977); the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies, see Kulko v. California Superior Court, supra at 436 U. S. 93 , 436 U. S. 98 . The limits imposed on state jurisdiction by the Due Process Clause, in its role as a guarantor against inconvenient litigation, have been substantially relaxed over the years. As we noted in McGee v. International Life Ins. Co., supra at 355 U. S. 222 -223, Page 444 U. S. 293 this trend is largely attributable to a fundamental transformation in the American economy: "Today many commercial transactions touch two or more States, and may involve parties separated by the full continent. With this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines. At the same time, modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity." The historical developments noted in McGee, of course, have only accelerated in the generation since that case was decided. Nevertheless, we have never accepted the proposition that state lines are irrelevant for jurisdictional purposes, nor could we and remain faithful to the principles of interstate federalism embodied in the Constitution. The economic interdependence of the States was foreseen and desired by the Framers. In the Commerce Clause, they provided that the Nation was to be a common market, a "free trade unit" in which the States are debarred from acting as separable economic entities. H. P. Hood Sons, Inc. v. Du Mond, 336 U. S. 525 , 336 U. S. 538 (1949). But the Framers also intended that the States retain many essential attributes of sovereignty, including, in particular, the sovereign power to try causes in their courts. The sovereignty of each State, in turn, implied a limitation on the sovereignty of all of its sister States -- a limitation express or implicit in both the original scheme of the Constitution and the Fourteenth Amendment. Hence, even while abandoning the shibboleth that "[t]he authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established," Pennoyer v. Neff, supra, at 95 U. S. 720 , we emphasized that the reasonableness of asserting jurisdiction over the defendant must be assessed "in the context of our federal system of government," Page 444 U. S. 294 International Shoe Co. v. Washington, 326 U.S. at 326 U. S. 317 , and stressed that the Due Process Clause ensures not only fairness, but also the "orderly administration of the laws," id. at 326 U. S. 319 . As we noted in Hanson v. Denckla, 357 U. S. 235 , 357 U. S. 250 -251 (1958): "As technological progress has increased the flow of commerce between the States, the need for jurisdiction over nonresidents has undergone a similar increase. At the same time, progress in communications and transportation has made the defense of a suit in a foreign tribunal less burdensome. In response to these changes, the requirements for personal jurisdiction over nonresidents have evolved from the rigid rule of Pennoyer v. Neff, 95 U. S. 714 , to the flexible standard of International Shoe Co. v. Washington, 326 U. S. 310 . But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. [Citation omitted.] Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States." Thus, the Due Process Clause "does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations." International Shoe Co. v. Washington, supra at 326 U. S. 319 . Even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment. Hanson v. Denckla, supra at 357 U. S. 251 , 357 U. S. 254 . Page 444 U. S. 295 III Applying these principles to the case at hand, [ Footnote 10 ] we find in the record before us a total absence of those affiliating circumstances that are a necessary predicate to any exercise of state court jurisdiction. Petitioners carry on no activity whatsoever in Oklahoma. They close no sales and perform no services there. They avail themselves of none of the privileges and benefits of Oklahoma law. They solicit no business there either through salespersons or through advertising reasonably calculated to reach the State. Nor does the record show that they regularly sell cars at wholesale or retail to Oklahoma customers or residents, or that they indirectly, through others, serve or seek to serve the Oklahoma market. In short, respondents seek to base jurisdiction on one, isolated occurrence and whatever inferences can be drawn therefrom: the fortuitous circumstance that a single Audi automobile, sold in New York to New York residents, happened to suffer an accident while passing through Oklahoma. It is argued, however, that, because an automobile is mobile by its very design and purpose, it was "foreseeable" that the Robinsons' Audi would cause injury in Oklahoma. Yet "foreseeability" alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause. In Hanson v. Denckla, supra, it was no doubt foreseeable that the settlor of a Delaware trust would subsequently move to Florida and seek to exercise a power of appointment there; yet we held that Florida courts could not constitutionally Page 444 U. S. 296 exercise jurisdiction over a Delaware trustee that had no other contacts with the forum State. In Kulko v. California Superior Court, 436 U. S. 84 (1978), it was surely "foreseeable" that a divorced wife would move to California from New York, the domicile of the marriage, and that a minor daughter would live with the mother. Yet we held that California could not exercise jurisdiction in a child support action over the former husband, who had remained in New York. If foreseeability were the criterion, a local California tire retailer could be forced to defend in Pennsylvania when a blowout occurs there, see Erlanger Mills, Inc. v. Cohoes Fibre Mills, Inc., 239 F.2d 502, 507 (CA4 1956); a Wisconsin seller of a defective automobile jack could be haled before a distant court for damage caused in New Jersey, Reilly v. Phil Tolkan Pontiac, Inc., 372 F. Supp. 1205 (NJ 1974); or a Florida soft-drink concessionaire could be summoned to Alaska to account for injuries happening there, see Uppgren v. Executive Aviation Services, Inc., 304 F. Supp. 165 , 170-171 (Minn.1969). Every seller of chattels would, in effect, appoint the chattel his agent for service of process. His amenability to suit would travel with the chattel. We recently abandoned the outworn rule of Harris v. Balk, 198 U. S. 215 (1905), that the interest of a creditor in a debt could be extinguished or otherwise affected by any State having transitory jurisdiction over the debtor. Shaffer v. Heitner, 433 U. S. 186 (1977). Having interred the mechanical rule that a creditor's amenability to a quasi in rem action travels with his debtor, we are unwilling to endorse an analogous principle in the present case. [ Footnote 11 ] Page 444 U. S. 297 This is not to say, of course, that foreseeability is wholly irrelevant. But the foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there. See Kulko v. California Superior Court, supra at 436 U. S. 97 -98; Shaffer v. Heitner, 433 U.S. at 433 U. S. 216 ; and see id. at 433 U. S. 217 -219 (STEVENS, J., concurring in judgment). The Due Process Clause, by ensuring the "orderly administration of the laws," International Shoe Co. v. Washington, 326 U.S. at 326 U. S. 319 , gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit. When a corporation "purposefully avails itself of the privilege of conducting activities within the forum State," Hanson v. Denckla, 357 U.S. at 357 U.S. 253 , it has clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the State. Hence if the sale of a product of a manufacturer or distributor such as Audi or Volkswagen is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others. The forum State does not Page 444 U. S. 298 exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State. Cf. Gray v. American Radiator & Standard Sanitary Corp., 22 Ill. 2d 432 , 176 N.E.2d 761 (1961). But there is no such or similar basis for Oklahoma jurisdiction over World-Wide or Seaway in this case. Seaway's sales are made in Massena, N. Y. World-Wide's market, although substantially larger, is limited to dealers in New York, New Jersey, and Connecticut. There is no evidence of record that any automobiles distributed by World-Wide are sold to retail customers outside this tristate area. It is foreseeable that the purchasers of automobiles sold by World-Wide and Seaway may take them to Oklahoma. But the mere "unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State." Hanson v. Denckla, supra, at 357 U.S. 253 . In a variant on the previous argument, it is contended that jurisdiction can be supported by the fact that petitioners earn substantial revenue from goods used in Oklahoma. The Oklahoma Supreme Court so found, 585 P.2d at 354-355, drawing the inference that, because one automobile sold by petitioners had been used in Oklahoma, others might have been used there also. While this inference seems less than compelling on the facts of the instant case, we need not question the court's factual findings in order to reject its reasoning. This argument seems to make the point that the purchase of automobiles in New York, from which the petitioners earn substantial revenue, would not occur but for the fact that the automobiles are capable of use in distant States like Oklahoma. Respondents observe that the very purpose of an automobile is to travel, and that travel of automobiles sold by petitioners is facilitated by an extensive chain of Volkswagen service centers throughout the country, including some in Oklahoma. [ Footnote 12 ] Page 444 U. S. 299 However, financial benefits accruing to the defendant from a collateral relation to the forum State will not support jurisdiction if they do not stem from a constitutionally cognizable contact with that State. See Kulko v. California Superior Court, 436 U.S. at 436 U. S. 94 -95. In our view, whatever marginal revenues petitioners may receive by virtue of the fact that their products are capable of use in Oklahoma is far too attenuated a contact to justify that State's exercise of in personam jurisdiction over them. Because we find that petitioners have no "contacts, ties, or relations" with the State of Oklahoma, International Shoe Co. v. Washington, supra, at 326 U. S. 319 , the judgment of the Supreme Court of Oklahoma is Reversed. [ Footnote 1 ] The driver of the other automobile does not figure in the present litigation . [ Footnote 2 ] Kay Robinson sued on her own behalf. The two children sued through Harry Robinson as their father and next friend. [ Footnote 3 ] Volkswagen also entered a special appearance in the District Court, but, unlike World-Wide and Seaway, did not seek review in the Supreme Court of Oklahoma, and is not a petitioner here. Both Volkswagen and Audi remain as defendants in the litigation pending before the District Court in Oklahoma. [ Footnote 4 ] The papers filed by the petitioners also claimed that the District Court lacked "venue of the subject matter," App. 9, or "venue over the subject matter," id. at 11. [ Footnote 5 ] The District Court's rulings are unreported, and appear at App. 13 and 20. [ Footnote 6 ] Five judges joined in the opinion. Two concurred in the result, without opinion, and one concurred in part and dissented in part, also without opinion. [ Footnote 7 ] This subsection provides: "A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action or claim for relief arising from the persons . . . causing tortious injury in this state by an act or omission outside this state if he regularly does or solicits business or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state. . . ." The State Supreme Court rejected jurisdiction based on § 1701.03(a)(3), which authorizes jurisdiction over any person "causing tortious injury in this state by an act or omission in this state." Something in addition to the infliction of tortious injury was required. [ Footnote 8 ] Fields v. Volkswagen of America, Inc., 555 P.2d 48 (Okla.1976); Carmack v. Chemical Bank New York Trust Co., 536 P.2d 897 (Okla.1975); Hines v. Clendennin, 465 P.2d 460 (Okla.1970). [ Footnote 9 ] Cf. Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 438 P.2d 128 (1968); Granite States Volkswagen, Inc. v. District Court, 177 Colo. 42, 492 P.2d 624 (1972); Pellegrini v. Sachs & Sons, 522 P.2d 704 (Utah 1974); Oliver v. American Motors Corp., 70 Wash. 2d 875 , 425 P.2d 647 (1967). [ Footnote 10 ] Respondents argue, as a threshold matter, that petitioners waived any objections to personal jurisdiction by (1) joining with their special appearances a challenge to the District Court's subject matter jurisdiction, see n 4, supra, and (2) taking depositions on the merits of the case in Oklahoma. The trial court, however, characterized the appearances as "special," and the Oklahoma Supreme Court, rather than finding jurisdiction waived, reached and decided the statutory and constitutional questions. Cf. Kulko v. California Superior Court, 436 U. S. 84 , 436 U. S. 91 , n. 5 (1978). [ Footnote 11 ] Respondents' counsel, at oral argument, see Tr. of Oral Arg.19-22, 29, sought to limit the reach of the foreseeability standard by suggesting that there is something unique about automobiles. It is true that automobiles are uniquely mobile, see Tyson v. Whitaker & Son, Inc., 407 A.2d 1 , 6, and n. 11 (Me.1979) (McKusick, C.J.), that they did play a crucial role in the expansion of personal jurisdiction through the fiction of implied consent, e.g., Hess v. Pawloski, 274 U. S. 352 (1927), and that some of the cases have treated the automobile as a "dangerous instrumentality." But today, under the regime of International Shoe, we see no difference for jurisdictional purposes between an automobile and any other chattel. The "dangerous instrumentality" concept apparently was never used to support personal jurisdiction; and to the extent it has relevance today, it bears not on jurisdiction, but on the possible desirability of imposing substantive principles of tort law such as strict liability. [ Footnote 12 ] As we have noted, petitioners earn no direct revenues from these service centers. See supra at 444 U. S. 289 . MR. JUSTICE BRENNAN, dissenting. * The Court holds that the Due Process Clause of the Fourteenth Amendment bars the States from asserting jurisdiction over the defendants in these two cases. In each case, the Court so decides because it fails to find the "minimum contacts" that have been required since International Shoe Co. v. Washington, 326 U. S. 310 , 326 U. S. 316 (1945). Because I believe that the Court reads International Shoe and its progeny too narrowly, and because I believe that the standards enunciated by those cases may already be obsolete as constitutional boundaries, I dissent. I The Court's opinions focus tightly on the existence of contacts between the forum and the defendant. In so doing, they accord too little weight to the strength of the forum State's interest in the case, and fail to explore whether there Page 444 U. S. 300 would be any actual inconvenience to the defendant. The essential inquiry in locating the constitutional limits on state court jurisdiction over absent defendants is whether the particular exercise of jurisdiction offends " traditional notions of fair play and substantial justice.'" International Shoe, supra at 326 U. S. 316 , quoting Milliken v. Meyer, 311 U. S. 457 , 311 U. S. 463 (1940). The clear focus in International Shoe was on fairness and reasonableness. Kulko v. California Superior Court, 436 U. S. 84 , 436 U. S. 92 (1978). The Court specifically declined to establish a mechanical test based on the quantum of contacts between a State and the defendant: "Whether due process is satisfied must depend, rather, upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations." 326 U.S. at 326 U. S. 319 (emphasis added). The existence of contacts, so long as there were some, was merely one way of giving content to the determination of fairness and reasonableness. Surely International Shoe contemplated that the significance of the contacts necessary to support jurisdiction would diminish if some other consideration helped establish that jurisdiction would be fair and reasonable. The interests of the State and other parties in proceeding with the case in a particular forum are such considerations. McGee v. International Life Ins. Co., 355 U. S. 220 , 355 U. S. 223 (1957), for instance, accorded great importance to a State's "manifest interest in providing effective means of redress" for its citizens. See also Kulko v. California Superior Court, supra at 436 U. S. 92 ; Shaffer v. Heitner, 433 U. S. 186 , 433 U. S. 208 (1977); Mullane v. Central Hanover Trust Co., 339 U. S. 306 , 339 U. S. 313 (1950). Another consideration is the actual burden a defendant Page 444 U. S. 301 must bear in defending the suit in the forum. McGee, supra. Because lesser burdens reduce the unfairness to the defendant, jurisdiction may be justified despite less significant contacts. The burden, of course, must be of constitutional dimension. Due process limits on jurisdiction do not protect a defendant from all inconvenience of travel, McGee, supra at 355 U. S. 224 , and it would not be sensible to make the constitutional rule turn solely on the number of miles the defendant must travel to the courtroom. [ Footnote 2/1 ] Instead, the constitutionally significant "burden" to be analyzed relates to the mobility of the defendant's defense. For instance, if having to travel to a foreign forum would hamper the defense because witnesses or evidence or the defendant himself were immobile, or if there were a disproportionately large number of witnesses or amount of evidence that would have to be transported at the defendant's expense, or if being away from home for the duration of the trial would work some special hardship on the defendant, then the Constitution would require special consideration for the defendant's interests. That considerations other than contacts between the forum and the defendant are relevant necessarily means that the Constitution does not require that trial be held in the State which has the "best contacts" with the defendant. See Shaffer v. Heitner, supra at 433 U. S. 228 (BRENNAN, J., dissenting). The defendant has no constitutional entitlement to the best forum or, for that matter, to any particular forum. Under even the most restrictive view of International Shoe, several States could have jurisdiction over a particular cause of action. We need only determine whether the forum States in these cases satisfy the constitutional minimum. [ Footnote 2/2 ] Page 444 U. S. 302 II In each of these cases, I would find that the forum State has an interest in permitting the litigation to go forward, the litigation is connected to the forum, the defendant is linked to the forum, and the burden of defending is not unreasonable. Accordingly, I would hold that it is neither unfair nor unreasonable to require these defendants to defend in the forum State. A In No. 78-952, a number of considerations suggest that Minnesota is an interested and convenient forum. The action was filed by a bona fide resident of the forum. [ Footnote 2/3 ] Consequently, Minnesota's interests are similar to, even if lesser than, the interests of California in McGee, supra, "in providing a forum for its residents and in regulating the activities of insurance companies" doing business in the State. [ Footnote 2/4 ] Post at 444 U. S. 332 . Moreover, Minnesota has "attempted to assert [its] particularized interest in trying such cases in its courts by . . . enacting a special jurisdictional statute." Kulko, supra at 436 U. S. 98 ; McGee, supra at 355 U. S. 221 , 355 U. S. 224 . As in McGee, a resident forced to travel to a distant State to prosecute an action Page 444 U. S. 303 against someone who has injured him could, for lack of funds, be entirely unable to bring the cause of action. The plaintiff's residence in the State makes the State one of a very few convenient fora for a personal injury case (the others usually being the defendant's home State and the State where the accident occurred). [ Footnote 2/5 ] In addition, the burden on the defendant is slight. As Judge Friendly has recognized, Shaffer emphasizes the importance of identifying the real impact of the lawsuit. O'Connor v. Lee-Hy Paving Corp., 579 F.2d 194, 00 (CA2 1978) (upholding the constitutionality of jurisdiction in a very similar case under New York's law after Shaffer ). Here the real impact is on the defendant's insurer, which is concededly amenable to suit in the forum State. The defendant is carefully protected from financial liability because the action limits the prayer for damages to the insurance policy's liability limit. [ Footnote 2/6 ] The insurer will handle the case for the defendant. The defendant is only a nominal party who need be no more active in the case than the cooperation clause of his policy requires. Because of the ease of airline transportation, he need not lose significantly more time than if the case were at home. Consequently, if the suit went forward Page 444 U. S. 304 in Minnesota, the defendant would bear almost no burden or expense beyond what he would face if the suit were in his home State. The real impact on the named defendant is the same as it is in a direct action against the insurer, which would be constitutionally permissible. Watson v. Employers Liability Assurance Corp., 348 U. S. 66 (1954); Minichiello v. Rosenberg, 410 F.2d 106, 109-110 (CA2 1968). The only distinction is the formal, "analytica[l] prerequisite," post at 444 U. S. 331 , of making the insured a named party. Surely the mere addition of appellant's name to the complaint does not suffice to create a due process violation. [ Footnote 2/7 ] Finally, even were the relevant inquiry whether there are sufficient contacts between the forum and the named defendant, I would find that such contacts exist. The insurer's presence in Minnesota is an advantage to the defendant that may well have been a consideration in his selecting the policy he did. An insurer with offices in many States makes it easier for the insured to make claims or conduct other business that may become necessary while traveling. It is simply not true that "State Farm's decision to do business in Minnesota was completely adventitious as far as Rush was concerned." Post at 444 U. S. 328 -329. By buying a State Farm policy, the defendant availed himself of the benefits he might derive from having an insurance agent in Minnesota who could, among other things, facilitate a suit for appellant against a Minnesota resident. It seems unreasonable to read the Constitution as permitting one to take advantage of his nationwide insurance network but not to be burdened by it. In sum, I would hold that appellant is not deprived of due process by being required to submit to trial in Minnesota, first because Minnesota has a sufficient interest in and connection Page 444 U. S. 305 to this litigation and to the real and nominal defendants, and second because the burden on the nominal defendant is sufficiently slight. B In No. 78-1078, the interest of the forum State and its connection to the litigation is strong. The automobile accident underlying the litigation occurred in Oklahoma. The plaintiffs were hospitalized in Oklahoma when they brought suit. Essential witnesses and evidence were in Oklahoma. See Shaffer v. Heitner, 433 U.S. at 433 U. S. 208 . The State has a legitimate interest in enforcing its laws designed to keep its highway system safe, and the trial can proceed at least as efficiently in Oklahoma as anywhere else. The petitioners are not unconnected with the forum. Although both sell automobiles within limited sales territories, each sold the automobile which, in fact, was driven to Oklahoma, where it was involved in an accident. [ Footnote 2/8 ] It may be true, as the Court suggests, that each sincerely intended to limit its commercial impact to the limited territory, and that each intended to accept the benefits and protection of the laws only of those States within the territory. But obviously these were unrealistic hopes that cannot be treated as an automatic constitutional shield. [ Footnote 2/9 ] Page 444 U. S. 306 An automobile simply is not a stationary item or one designed to be used in one place. An automobile is intended to be moved around. Someone in the business of selling large numbers of automobiles can hardly plead ignorance of their mobility, or pretend that the automobiles stay put after they are sold. It is not merely that a dealer in automobiles foresees that they will move. Ante at 444 U. S. 295 . The dealer actually intends that the purchasers will use the automobiles to travel to distant States where the dealer does not directly "do business." The sale of an automobile does purposefully inject the vehicle into the stream of interstate commerce so that it can travel to distant States. See Kulko, 436 U.S. at 436 U. S. 94 ; Hanson v. Denckla, 357 U. S. 235 , 357 U.S. 253 (1958). This case is similar to Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493 (1971). There we indicated, in the course of denying leave to file an original jurisdiction case, that corporations having no direct contact with Ohio could constitutionally be brought to trial in Ohio because they dumped pollutants into streams outside Ohio's limits which ultimately, through the action of the water, reached Lake Erie and affected Ohio. No corporate acts, only their consequences, occurred in Ohio. The stream of commerce is just as natural a force as a stream of water, and it was equally predictable that the cars petitioners released would reach distant states. [ Footnote 2/10 ] The Court accepts that a State may exercise jurisdiction over a distributor which "serves" that State "indirectly" by "deliver[ing] its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State." Ante at 444 U. S. 297 -298. It is difficult to see why the Constitution should distinguish between a case involving Page 444 U. S. 307 goods which reach a distant State through a chain of distribution and a case involving goods which reach the same State because a consumer, using them as the dealer knew the customer would, took them there. [ Footnote 2/11 ] In each case, the seller purposefully injects the goods into the stream of commerce, and those goods predictably are used in the forum State. [ Footnote 2/12 ] Furthermore, an automobile seller derives substantial benefits from States other than its own. A large part of the value of automobiles is the extensive, nationwide network of highways. Significant portions of that network have been constructed by, and are maintained by, the individual States, including Oklahoma. The States, through their highway programs, contribute in a very direct and important way to the value of petitioners' businesses. Additionally, a network of other related dealerships with their service departments operates throughout the country under the protection of the laws of the various States, including Oklahoma, and enhances the value of petitioners' businesses by facilitating their customers' traveling. Thus, the Court errs in its conclusion, ante at 444 U. S. 299 (emphasis added), that "petitioners have no contacts, ties, or relations'" with Oklahoma. There obviously are contacts, and, given Oklahoma's connection to the litigation, the contacts are sufficiently significant to make it fair and reasonable for the petitioners to submit to Oklahoma's jurisdiction. III It may be that affirmance of the judgments in these cases would approach the outer limits of International Shoe's jurisdictional Page 444 U. S. 308 principle. But that principle, with its almost exclusive focus on the rights of defendants, may be outdated. As MR. JUSTICE MARSHALL wrote in Shaffer v. Heitner, 433 U.S. at 433 U. S. 212 : "'[T]raditional notions of fair play and substantial justice' can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures. . . ." International Shoe inherited its defendant focus from Pennoyer v. Neff, 95 U. S. 714 (1878), and represented the last major step this Court has taken in the long process of liberalizing the doctrine of personal jurisdiction. Though its flexible approach represented a major advance, the structure of our society has changed in many significant ways since International Shoe was decided in 1945. Mr. Justice Black, writing for the Court in McGee v. International Life Ins. Co., 355 U. S. 220 , 355 U. S. 222 (1957), recognized that "a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents." He explained the trend as follows: "In part, this is attributable to the fundamental transformation of our national economy over the years. Today, many commercial transactions touch two or more States, and may involve parties separated by the full continent. With this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines. At the same time, modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity." Id. at 355 U. S. 222 -223. As the Court acknowledges, ante at 444 U. S. 292 -293, both the nationalization of commerce and the ease of transportation and communication have accelerated in the generation since 1957. [ Footnote 2/13 ] Page 444 U. S. 309 The model of society on which the International Shoe Court based its opinion is no longer accurate. Business people, no matter how local their businesses, cannot assume that goods remain in the business' locality. Customers and goods can be anywhere else in the country, usually in a matter of hours and always in a matter of a very few days. In answering the question whether or not it is fair and reasonable to allow a particular forum to hold a trial binding on a particular defendant, the interests of the forum State and other parties loom large in today's world, and surely are entitled to as much weight as are the interests of the defendant. The "orderly administration of the laws" provides a firm basis for according some protection to the interests of plaintiffs and States as well as of defendants. [ Footnote 2/14 ] Certainly, I cannot see how a defendant's right to due process is violated if the defendant suffers no inconvenience. See ante at 444 U. S. 294 . The conclusion I draw is that constitutional concepts of fairness no longer require the extreme concern for defendants that was once necessary. Rather, as I wrote in dissent from Shaffer v. Heitner, supra, at 433 U. S. 220 (emphasis added), minimum Page 444 U. S. 310 contacts must exist "among the parties, the contested transaction, and the forum State." [ Footnote 2/15 ] The contacts between any two of these should not be determinative. "[W]hen a suitor seeks to lodge a suit in a State with a substantial interest in seeing its own law applied to the transaction in question, we could wisely act to minimize conflicts, confusion, and uncertainty by adopting a liberal view of jurisdiction, unless considerations of fairness or efficiency strongly point in the opposite direction. [ Footnote 2/16 ]" 433 U.S. at 433 U. S. 225 -226. Mr. Justice Black, dissenting in Hanson v. Denckla, 357 U.S. at 357 U. S. 258 -250, expressed similar concerns by suggesting that a State should have jurisdiction over a case growing out of a transaction significantly related to that State "unless litigation there would impose such a heavy and disproportionate burden on a nonresident defendant that it would offend what this Court has referred to as 'traditional notions of fair play and substantial justice.' [ Footnote 2/17 ]" Assuming Page 444 U. S. 311 that a State gives a nonresident defendant adequate notice and opportunity to defend, I do not think the Due Process Clause is offended merely because the defendant has to board a plane to get to the site of the trial. The Court's opinion in No. 78-1078 suggests that the defendant ought to be subject to a State's jurisdiction only if he has contacts with the State "such that he should reasonably anticipate being haled into court there." [ Footnote 2/18 ] Ante at 444 U. S. 297 . There is nothing unreasonable or unfair, however, about recognizing commercial reality. Given the tremendous mobility of goods and people, and the inability of businessmen to control where goods are taken by customers (or retailers), I do not think that the defendant should be in complete control of the geographical stretch of his amenability to suit. Jurisdiction is no longer premised on the notion that nonresident defendants have somehow impliedly consented to suit. People should understand that they are held responsible for the consequences of their actions, and that, in our society, most actions have consequences affecting many States. When an action in fact causes injury in another State, the actor should be prepared to answer for it there unless defending in that State would be unfair for some reason other than that a state boundary must be crossed. [ Footnote 2/19 ] In effect, the Court is allowing defendants to assert the sovereign Page 444 U. S. 312 rights of their home States. The expressed fear is that, otherwise, all limits on personal jurisdiction would disappear. But the argument's premise is wrong. I would not abolish limits on jurisdiction or strip state boundaries of all significance, see Hanson, supra at 357 U. S. 260 (Black, J., dissenting); I would still require the plaintiff to demonstrate sufficient contacts among the parties, the forum, and the litigation to make the forum a reasonable State in which to hold the trial. [ Footnote 2/20 ] I would also, however, strip the defendant of an unjustified veto power over certain very appropriate fora -- a power the defendant justifiably enjoyed long ago when communication and travel over long distances were slow and unpredictable and when notions of state sovereignty were impractical and exaggerated. But I repeat that that is not today's world. If a plaintiff can show that his chosen forum State has a sufficient interest in the litigation (or sufficient contacts with the defendant), then the defendant who cannot show some real injury to a constitutionally protected interest, see O'Connor v. Lee-Hy Paving Corp., 579 F.2d at 201, should have no constitutional excuse not to appear. [ Footnote 2/21 ] The plaintiffs in each of these cases brought suit in a forum with which they had significant contacts and which had significant contacts with the litigation. I am not convinced that the defendants would suffer any "heavy and disproportionate burden" in defending the suits. Accordingly, I would hold Page 444 U. S. 313 that the Constitution should not shield the defendants from appearing and defending in the plaintiffs' chosen fora. * [This opinion applies also to No. 7952, Rush et al. v. Savchuk, post, p. 444 U. S. 320 ] [ Footnote 2/1 ] In fact, a courtroom just across the state line from a defendant may often be far more convenient for the defendant than a courtroom in a distant corner of his own State. [ Footnote 2/2 ] The States themselves, of course, remain free to choose whether to extend their jurisdiction to embrace all defendants over whom the Constitution would permit exercise of jurisdiction. [ Footnote 2/3 ] The plaintiff asserted jurisdiction pursuant to Minn.Stat. § 571.41, subd. 2 (1978), which allows garnishment of an insurer's obligation to defend and indemnify its insured. See post at 444 U. S. 322 -323, n. 3, and accompanying text. The Minnesota Supreme Court has interpreted the statute as allowing suit only to the insurance policy's liability limit. The court has held that the statute embodies the rule of Seider v. Roth, 17 N.Y.2d 111, 216 N.E.2d 312 (1966). [ Footnote 2/4 ] To say that these considerations are relevant is a far cry from saying that they are "substituted for . . . contacts with the defendant and the cause of action." Post at 444 U. S. 332 . The forum's interest in the litigation is an independent point of inquiry even under traditional readings of International Shoe's progeny. If there is a shift in focus, it is not away from "the relationship among the defendant, the forum, and the litigation." Post at 444 U. S. 332 (emphasis added). Instead, it is a shift within the same accepted relationship from the connections between the defendant and the forum to those between the forum and the litigation. [ Footnote 2/5 ] In every International Shoe inquiry, the defendant, necessarily, is outside the forum State. Thus, it is inevitable that either the defendant or the plaintiff will be inconvenienced. The problem existing at the time of Pennoyer v. Neff, 95 U. S. 714 (1878), that a resident plaintiff could obtain a binding judgment against an unsuspecting, distant defendant, has virtually disappeared in this age of instant communication and virtually instant travel. [ Footnote 2/6 ] It is true that the insurance contract is not the subject of the litigation. Post at 444 U. S. 329 . But one of the undisputed clauses of the insurance policy is that the insurer will defend this action and pay any damages assessed, up to the policy limit. The very purpose of the contract is to relieve the insured from having to defend himself, and, under the state statute, there could be no suit absent the insurance contract. Thus, in a real sense, the insurance contract is the source of the suit. See Shaffer v. Heitner, 433 U. S. 186 , 433 U. S. 207 (1977). [ Footnote 2/7 ] Were the defendant a real party subject to actual liability, or were there significant noneconomic consequences such as those suggested by the Court's note 20, post at 444 U. S. 331 , a more substantial connection with the forum State might well be constitutionally required. [ Footnote 2/8 ] On the basis of this fact, the state court inferred that the petitioners derived substantial revenue from goods used in Oklahoma. The inference is not without support. Certainly, were use of goods accepted as a relevant contact, a plaintiff would not need to have an exact count of the number of petitioners' cars that are used in Oklahoma. [ Footnote 2/9 ] Moreover, imposing liability in this case would not so undermine certainty as to destroy an automobile dealer's ability to do business. According jurisdiction does not expand liability except in the marginal case where a plaintiff cannot afford to bring an action except in the plaintiff's own State. In addition, these petitioners are represented by insurance companies. They not only could, but did, purchase insurance to protect them should they stand trial and lose the case. The costs of the insurance no doubt are passed on to customers. [ Footnote 2/10 ] One might argue that it was more predictable that the pollutants would reach Ohio than that one of petitioners' cars would reach Oklahoma. The Court's analysis, however, excludes jurisdiction in a contiguous State such as Pennsylvania as surely as in more distant States such as Oklahoma. [ Footnote 2/11 ] For example, I cannot understand the constitutional distinction between selling an item in New Jersey and selling an item in New York expecting it to be used in New Jersey. [ Footnote 2/12 ] The manufacturer in the case cited by the Court, Gray v. American Radiator & Standard Sanitary Corp., 22 Ill. 2d 432 , 176 N.E.2d 761 (1961), had no more control over which States its goods would reach than did the petitioners in this case. [ Footnote 2/13 ] Statistics help illustrate the amazing expansion in mobility since International Shoe. The number of revenue passenger-miles flown on domestic and international flights increased by nearly three orders of magnitude between 1945 (450 million) and 1976 (179 billion). U.S. Department of Commerce, Historical Statistics of the United States, pt. 2, P. 770 (1975); U.S. Department of Commerce, Statistical Abstract of the United States 670 (1978). Automobile vehicle-miles (including passenger cars, buses, and trucks) driven in the United States increased by a relatively modest 500% during the same period, growing from 250 billion in 1945 to 1,409 billion in 1976. Historical Statistics, supra at 718; Statistical Abstract, supra at 647. [ Footnote 2/14 ] The Court has recognized that there are cases where the interests of justice can turn the focus of the jurisdictional inquiry away from the contacts between a defendant and the forum State. For instance, the Court indicated that the requirement of contacts may be greatly relaxed (if indeed any personal contacts would be required) where a plaintiff is suing a nonresident defendant to enforce a judgment procured in another State. Shaffer v. Heitner, 433 U.S. at 433 U. S. 210 -211, nn. 36, 37. [ Footnote 2/15 ] In some cases, the inquiry will resemble the inquiry commonly undertaken in determining which State's law to apply. That it is fair to apply a State's law to a nonresident defendant is clearly relevant in determining whether it is fair to subject the defendant to jurisdiction in that State. Shaffer v. Heitner, supra at 433 U. S. 225 (BRENNAN, J., dissenting); Hanson v. Denckla, 357 U. S. 235 , 357 U. S. 258 (1958) (Black, J., dissenting). See 444 U.S. 286 fn2/19|>n.19, infra. [ Footnote 2/16 ] Such a standard need be no more uncertain than the Court's test "in which few answers will be written 'in black and white. The greys are dominant and even among them the shades are innumerable.' Estin v. Estin, 334 U. S. 541 , 334 U. S. 545 (1948)." Kulko v. California Superior Court, 436 U. S. 84 , 436 U. S. 92 (1978). [ Footnote 2/17 ] This strong emphasis on the State's interest is nothing new. This Court, permitting the forum to exercise jurisdiction over nonresident claimants to a trust largely on the basis of the forum's interest in closing the trust, stated: "[T]he interest of each state in providing means to close trusts that exist by the grace of its laws and are administered under the supervision of its courts is so insistent and rooted in custom as to establish beyond doubt the right of its courts to determine the interests of all claimants, resident or nonresident, provided its procedure accords full opportunity to appear and be heard." Mullane v. Central Hanover Trust Co., 339 U. S. 306 , 339 U. S. 313 (1950). [ Footnote 2/18 ] The Court suggests that this is the critical foreseeability rather than the likelihood that the product will go to the forum State. But the reasoning begs the question. A defendant cannot know if his actions will subject him to jurisdiction in another State until we have declared what the law of jurisdiction is. [ Footnote 2/19 ] One consideration that might create some unfairness would be if the choice of forum also imposed on the defendant an unfavorable substantive law which the defendant could justly have assumed would not apply. See 444 U.S. 286 fn2/15|>n. 15, supra. [ Footnote 2/20 ] For instance, in No. 78-952, if the plaintiff were not a bona fide resident of Minnesota when the suit was filed or if the defendant were subject to financial liability, I might well reach a different result. In No. 78-1078, I might reach a different result if the accident had not occurred in Oklahoma. [ Footnote 2/21 ] Frequently, of course, the defendant will be able to influence the choice of forum through traditional doctrines, such as venue or forum non conveniens, permitting the transfer of litigation. Shaffer v. Heitner, 433 U.S. at 433 U. S. 228 , n. 8 (BRENNAN, J., dissenting). MR. JUSTICE MARSHALL, with whom MR. JUSTICE BLACKMUN joins, dissenting. For over 30 years, the standard by which to measure the constitutionally permissible reach of state court jurisdiction has been well established: "[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U. S. 310 , 326 U. S. 316 (1945), quoting Milliken v. Meyer, 311 U. S. 457 , 311 U. S. 463 (1940). The corollary, that the Due Process Clause forbids the assertion of jurisdiction over a defendant "with which the state has no contacts, ties, or relations," 326 U.S. at 326 U. S. 319 , is equally clear. The concepts of fairness and substantial justice as applied to an evaluation of "the quality and nature of the [defendant's] activity," ibid., are not readily susceptible of further definition, however, and it is not surprising that the constitutional standard is easier to state than to apply. This is a difficult case, and reasonable minds may differ as to whether respondents have alleged a sufficient "relationship among the defendant[s], the forum, and the litigation," Shaffer v. Heitner, 433 U. S. 186 , 433 U. S. 204 (1977), to satisfy the requirements of International Shoe. I am concerned, however, that the majority has reached its result by taking an unnecessarily narrow view of petitioners' forum-related conduct. The majority asserts that "respondents seek to base jurisdiction on one, isolated occurrence and whatever inferences can be drawn therefrom: the fortuitous circumstance that a single Audi automobile, sold in New York to New York Page 444 U. S. 314 residents, happened to suffer an accident while passing through Oklahoma." Ante at 444 U. S. 295 . If that were the case, I would readily agree that the minimum contacts necessary to sustain jurisdiction are not present. But the basis for the assertion of jurisdiction is not the happenstance that an individual over whom petitioners had no control made a unilateral decision to take a chattel with him to a distant State. Rather, jurisdiction is premised on the deliberate and purposeful actions of the defendants themselves in choosing to become part of a nationwide, indeed a global, network for marketing and servicing automobiles. Petitioners are sellers of a product whose utility derives from its mobility. The unique importance of the automobile in today's society, which is discussed in MR. JUSTICE BLACKMUN's dissenting opinion, post at 444 U. S. 318 , needs no further elaboration. Petitioners know that their customers buy cars not only to make short trips, but also to travel long distances. In fact, the nationwide service network with which they are affiliated was designed to facilitate and encourage such travel. Seaway would be unlikely to sell many cars if authorized service were available only in Massena, N.Y. Moreover, local dealers normally derive a substantial portion of their revenues from their service operations, and thereby obtain a further economic benefit from the opportunity to service cars which were sold in other States. It is apparent that petitioners have not attempted to minimize the chance that their activities will have effects in other States; on the contrary, they have chosen to do business in a way that increases that chance, because it is to their economic advantage to do so. To be sure, petitioners could not know in advance that this particular automobile would be driven to Oklahoma. They must have anticipated, however, that a substantial portion of the cars they sold would travel out of New York. Seaway, a local dealer in the second most populous State, and World-Wide, Page 444 U. S. 315 one of only seven regional Audi distributors in the entire country, see Brief for Respondents 2, would scarcely have been surprised to learn that a car sold by then had been driven in Oklahoma on Interstate 44, a heavily traveled transcontinental highway. In the case of the distributor, in particular, the probability that some of the cars it sells will be driven in every one of the contiguous States must amount to a virtual certainty. This knowledge should alert a reasonable businessman to the likelihood that a defect in the product might manifest itself in the forum State -- not because of some unpredictable, aberrant, unilateral action by a single buyer, but in the normal course of the operation of the vehicles for their intended purpose. It is misleading for the majority to characterize the argument in favor of jurisdiction as one of " foreseeability' alone." Ante at 444 U. S. 295 . As economic entities, petitioners reach out from New York, knowingly causing effects in other States and receiving economic advantage both from the ability to cause such effects themselves and from the activities of dealers and distributors in other States. While they did not receive revenue from making direct sales in Oklahoma, they intentionally became part of an interstate economic network, which included dealerships in Oklahoma, for pecuniary gain. In light of this purposeful conduct, I do not believe it can be said that petitioners "had no reason to expect to be haled before a[n Oklahoma] court." Shaffer v. Heitner, supra at 433 U. S. 216 ; see ante at 444 U. S. 297 , and Kulko v. California Superior Court, 436 U. S. 84 , 436 U. S. 97 -98 (1978). The majority apparently acknowledges that, if a product is purchased in the forum State by a consumer, that State may assert jurisdiction over everyone in the chain of distribution. See ante at 444 U. S. 297 -298. With this I agree. But I cannot agree that jurisdiction is necessarily lacking if the product enters the State not through the channels of distribution but in the course of its intended use by the consumer. We have recognized Page 444 U. S. 316 the role played by the automobile in the expansion of our notions of personal jurisdiction. See Shaffer v. Heitner, supra at 433 U. S. 204 ; Hess v. Pawloski, 274 U. S. 352 (1927). Unlike most other chattels, which may find their way into States far from where they were purchased because their owner takes them there, the intended use of the automobile is precisely as a means of traveling from one place to another. In such a case, it is highly artificial to restrict the concept of the "stream of commerce" to the chain of distribution from the manufacturer to the ultimate consumer. I sympathize with the majority's concern that persons ought to be able to structure their conduct so as not to be subject to suit in distant forums. But that may not always be possible. Some activities, by their very nature, may foreclose the option of conducting them in such a way as to avoid subjecting oneself to jurisdiction in multiple forums. This is by no means to say that all sellers of automobiles should be subject to suit everywhere; but a distributor of automobiles to a multistate market and a local automobile dealer who makes himself part of a nationwide network of dealerships can fairly expect that the cars they sell may cause injury in distant States and that they may be called on to defend a resulting lawsuit there. In light of the quality and nature of petitioners' activity, the majority's reliance on Kulko v. California Superior Court, supra, is misplaced. Kulko involved the assertion of state court jurisdiction over a nonresident individual in connection with an action to modify his child custody rights and support obligations. His only contact with the forum State was that he gave his minor child permission to live there with her mother. In holding that the exercise of jurisdiction violated the Due Process Clause, we emphasized that the cause of action, as well as the defendant's actions in relation to the forum State, arose " not from the defendant's commercial transactions in interstate commerce, but rather from his personal, Page 444 U. S. 317 domestic relations," 436 U.S. at 436 U. S. 97 (emphasis supplied), contrasting Kulko's actions with those of the insurance company in McGee v. International Life Ins. Co., 355 U. S. 220 (1957), which were undertaken for commercial benefit.* Manifestly, the "quality and nature" of commercial activity is different, for purposes of the International Shoe test, from actions from which a defendant obtains no economic advantage. Commercial activity is more likely to cause effects in a larger sphere, and the actor derives an economic benefit from the activity that makes it fair to require him to answer for his conduct where its effects are felt. The profits may be used to pay the costs of suit, and, knowing that the activity is likely to have effects in other States, the defendant can readily insure against the costs of those effects, thereby sparing himself much of the inconvenience of defending in a distant forum. Of course, the Constitution forbids the exercise of jurisdiction if the defendant had no judicially cognizable contacts with the forum. But as the majority acknowledges, if such contacts are present, the jurisdictional inquiry requires a balancing of various interests and policies. See ante at 444 U. S. 292 ; Rush v. Savchuk, post at 444 U. S. 332 . I believe such contacts are to be found here, and that, considering all of the interests and policies at stake, requiring petitioners to defend this action in Oklahoma is not beyond the bounds of the Constitution. Accordingly, I dissent. * Similarly, I believe the Court in Hanson v. Denckla, 357 U. S. 235 (1958), was influenced by the fact that trust administration has traditionally been considered a peculiarly local activity. MR JUSTICE BLACKMUN, dissenting. I confess that I am somewhat puzzled why the plaintiffs in this litigation are so insistent that the regional distributor and the retail dealer, the petitioners here, who handled the ill-fated Audi automobile involved in this litigation, be named defendants. It would appear that the manufacturer and the Page 444 U. S. 318 importer, whose subjectability to Oklahoma jurisdiction is not challenged before this Court, ought not to be judgment-proof. It may, of course, ultimately amount to a contest between insurance companies that, once begun, is not easily brought to a termination. Having made this much of an observation, I pursue it no further. For me, a critical factor in the disposition of the litigation is the nature of the instrumentality under consideration. It has been said that we are a nation on wheels. What we are concerned with here is the automobile and its peripatetic character. One need only examine our national network of interstate highways, or make an appearance on one of them, or observe the variety of license plates present not only on those highways but in any metropolitan area, to realize that any automobile is likely to wander far from its place of licensure or from its place of distribution and retail sale. Miles per gallon on the highway (as well as in the city) and mileage per tankful are familiar allegations in manufacturers' advertisements today. To expect that any new automobile will remain in the vicinity of its retail sale -- like the 1914 electric car driven by the proverbial "little old lady" -- is to blink at reality. The automobile is intended for distance, as well as for transportation within a limited area. It therefore seems to me not unreasonable -- and certainly not unconstitutional and beyond the reach of the principles laid down in International Shoe Co. v. Washington, 326 U. S. 310 (1945), and its progeny -- to uphold Oklahoma jurisdiction over this New York distributor and this New York dealer when the accident happened in Oklahoma. I see nothing more unfair for them than for the manufacturer and the importer. All are in the business of providing vehicles that spread out over the highways of our several States. It is not too much to anticipate, at the time of distribution and at the time of retail sale, that this Audi would be in Oklahoma. Moreover, in assessing "minimum contacts," foreseeable use in another State seems to me to be little different from foreseeable resale Page 444 U. S. 319 in another State: yet the Court declares this distinction determinative. Ante at 444 U. S. 297 -299. MR. JUSTICE BRENNAN points out in his dissent, ante at 444 U. S. 307 , that an automobile dealer derives substantial benefits from States other than its own. The same is true of the regional distributor. Oklahoma does its best to provide safe roads. Its police investigate accidents. It regulates driving within the State. It provides aid to the victim, and thereby, it is hoped, lessens damages. Accident reports are prepared and made available. All this contributes to and enhances the business of those engaged professionally in the distribution and sale of automobiles. All this also may benefit defendants in the very lawsuits over which the State asserts jurisdiction. My position need not now take me beyond the automobile and the professional who does business by way of distributing and retailing automobiles. Cases concerning other instrumentalities will be dealt with as they arise, and in their own contexts. I would affirm the judgment of the Supreme Court of Oklahoma. Because the Court reverses that judgment, it will now be about parsing every variant in the myriad of motor vehicle fact situations that present themselves. Some will justify jurisdiction and others will not. All will depend on the "contact" that the Court sees fit to perceive in the individual case.

The Supreme Court ruled that an Oklahoma state court could not exercise personal jurisdiction over a New York automobile retailer and wholesaler in a products liability case, as the defendants had no significant contacts with Oklahoma and did not purposefully avail themselves of the benefits and protections of Oklahoma law.

Lawsuits & Legal Procedures

Piper Aircraft Co. v. Reyno

https://supreme.justia.com/cases/federal/us/454/235/

U.S. Supreme Court Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) Piper Aircraft Co. v. Reyno No. 8048 Argued October 14, 1981 Decided December 8, 1981 454 U.S. 235 ast|>* 454 U.S. 235 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Syllabus Respondent, as representative of the estates of several citizens and residents of Scotland who were killed in an airplane crash in Scotland during a charter flight, instituted wrongful death litigation in a California state court against petitioners, which are the company that manufactured the plane in Pennsylvania and the company that manufactured the plane's propellers in Ohio. At the time of the crash, the plane was registered in Great Britain and was owned and operated by companies organized in the United Kingdom. The pilot and all of the decedents' heirs and next of kin were Scottish subjects and citizens, and the investigation of the accident was conducted by British authorities. Respondent sought to recover from petitioners on the basis of negligence or strict liability (not recognized by Scottish law), and admitted that the action was filed in the United States because its laws regarding liability, capacity to sue, and damages are more favorable to respondent's position than those of Scotland. On petitioners' motion, the action was removed to a Federal District Court in California and was then transferred to the United States District Court for the Middle District of Pennsylvania, pursuant to 28 U.S.C. § 1404(a). The District Court granted petitioners' motion to dismiss the action on the ground of forum non conveniens. Relying on the test set forth in Gulf Oil Corp. v. Gilbert, 330 U. S. 501 , and analyzing the "private interest factors" affecting the litigants' convenience and the "public interest factors" affecting the forum's convenience, as set forth in Gilbert, the District Court concluded that Scotland was the appropriate forum. However, the Court of Appeals reversed, holding that the District Court had abused its discretion in conducting the Gilbert analysis and that, in any event, dismissal is automatically barred where Page 454 U. S. 236 the law of the alternative forum is less favorable to the plaintiff than the law of the forum chosen by the plaintiff. Held: 1. Plaintiffs may not defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the chosen forum. The possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry. Canada Malting Co. v. Paterson Steamships, Ltd., 285 U. S. 413 . Pp. 454 U. S. 247 -255. (a) Under Gilbert, supra, dismissal will ordinarily be appropriate where trial in the plaintiff's chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice. If substantial weight were given to the possibility of an unfavorable change in law, however, dismissal might be barred even where trial in the chosen forum was plainly inconvenient, and the forum non conveniens doctrine would become virtually useless. Such an approach not only would be inconsistent with the purpose of the forum non conveniens doctrine, but also would pose substantial practical problems, requiring that trial courts determine complex problems in conflict of laws and comparative law, and increasing the flow into American courts of litigation by foreign plaintiffs against American manufacturers. Pp. 454 U. S. 248 -252. (b) Nor may an analogy be drawn between forum non conveniens dismissals and transfers between federal courts pursuant to 28 U.S.C. § 1404(a), which was construed in Van Dusen v. Barrack, 376 U. S. 612 , as precluding a transfer if it resulted in a change in the applicable law. The statute was enacted to permit change of venue between federal courts, and although it was drafted in accordance with the doctrine of forum non conveniens, it was intended to be a revision, rather than a codification of the common law. District courts were given more discretion to transfer under § 1404(a) than they had to dismiss on grounds of forum non conveniens. Van Dusen v. Barrack, supra, distinguished. Pp. 454 U. S. 253 -254. 2. The District Court properly decided that the presumption in favor of the plaintiff's forum choice applied with less than maximum force when the plaintiff or (as here) the real parties in interest are foreign. When the plaintiff has chosen the home forum, it is reasonable to assume that the choice is convenient; but when the plaintiff or real parties in interest are foreign, this assumption is much less reasonable, and the plaintiff's choice deserves less deference. Pp. 454 U. S. 255 -256. Page 454 U. S. 237 3. The forum non conveniens determination is committed to the trial court's sound discretion, and may be reversed only when there has been a clear abuse of discretion. Here, the District Court did not abuse its discretion in weighing the private and public interests under the Gilbert analysis, and thereby determining that the trial should be held in Scotland. Pp. 454 U. S. 257 -261. (a) In analyzing the private interest factors, the District Court did not act unreasonably in concluding that fewer evidentiary problems would be posed if the trial were held in Scotland, a large proportion of the relevant evidence being located there. The District Court also correctly concluded that the problems posed by the petitioners' inability to implead potential Scottish third-party defendants -- the pilot's estate, the plane's owners, and the charter company -- supported holding the trial in Scotland. Pp. 454 U. S. 257 -259. (b) The District Court's review of the factors relating to the public interest was also reasonable. Even aside from the question whether Scottish law might be applicable in part, all other public interest factors favor trial in Scotland, which has a very strong interest in this litigation. The accident occurred there, all of the decedents were Scottish, and apart from petitioners, all potential parties are either Scottish or English. As to respondent's argument that American citizens have an interest in ensuring that American manufacturers are deterred from producing defective products and that additional deterrence might be obtained by trial in the United States where they could be sued on the basis of both negligence and strict liability, any incremental deterrence from trial in an American court is likely to be insignificant and is not sufficient to justify the enormous commitment of judicial time and resources that would be required. Pp. 454 U. S. 259 -261. 630 F.2d 149, reversed. MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN and REHNQUIST, JJ., joined, and in Parts I and II of which WHITE, J., joined. WHITE J., filed an opinion concurring in part and dissenting in part, post, p. 454 U. S. 261 . STEVENS, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 454 U. S. 261 . POWELL, J., took no part in the decision of the cases. O'CONNOR, J., took no part in the consideration or decision of the cases. Page 454 U. S. 238 JUSTICE MARSHALL delivered the opinion of the Court. These cases arise out of an air crash that took place in Scotland. Respondent, acting as representative of the estates of several Scottish citizens killed in the accident, brought wrongful death actions against petitioners that were ultimately transferred to the United States District Court for the Middle District of Pennsylvania. Petitioners moved to dismiss on the ground of forum non conveniens. After noting that an alternative forum existed in Scotland, the District Court granted their motions. 479 F. Supp. 727 (1979). The United States Court of Appeals for the Third Circuit reversed. 630 F.2d 149 (1980). The Court of Appeals based its decision, at least in part, on the ground that dismissal is automatically barred where the law of the alternative forum is less favorable to the plaintiff than the law of the forum chosen by the plaintiff. Because we conclude that the possibility of an unfavorable change in law should not, by itself, bar dismissal, and because we conclude that the District Court did not otherwise abuse its discretion, we reverse. I A In July, 1976, a small commercial aircraft crashed in the Scottish highlands during the course of a charter flight from Page 454 U. S. 239 Blackpool to Perth. The pilot and five passengers were killed instantly. The decedents were all Scottish subjects and residents, as are their heirs and next of kin. There were no eyewitnesses to the accident. At the time of the crash, the plane was subject to Scottish air traffic control. The aircraft, a twin-engine Piper Aztec, was manufactured in Pennsylvania by petitioner Piper Aircraft Co. (Piper). The propellers were manufactured in Ohio by petitioner Hartzell Propeller, Inc. (Hartzell). At the time of the crash, the aircraft was registered in Great Britain and was owned and maintained by Air Navigation and Trading Co., Ltd. (Air Navigation). It was operated by McDonald Aviation, Ltd. (McDonald), a Scottish air taxi service. Both Air Navigation and McDonald were organized in the United Kingdom. The wreckage of the plane is now in a hangar in Farnsborough, England. The British Department of Trade investigated the accident shortly after it occurred. A preliminary report found that the plane crashed after developing a spin, and suggested that mechanical failure in the plane or the propeller was responsible. At Hartzell's request, this report was reviewed by a three-member Review Board, which held a 9-day adversary hearing attended by all interested parties. The Review Board found no evidence of defective equipment and indicated that pilot error may have contributed to the accident. The pilot, who had obtained his commercial pilot's license only three months earlier, was flying over high ground at an altitude considerably lower than the minimum height required by his company's operations manual. In July, 1977, a California probate court appointed respondent Gaynell Reyno administratrix of the estates of the five passengers. Reyno is not related to and does not know any of the decedents or their survivors; she was a legal secretary to the attorney who filed this lawsuit. Several days after her appointment, Reyno commenced separate wrongful Page 454 U. S. 240 death actions against Piper and Hartzell in the Superior Court of California, claiming negligence and strict liability. [ Footnote 1 ] Air Navigation, McDonald, and the estate of the pilot are not parties to this litigation. The survivors of the five passengers whose estates are represented by Reyno filed a separate action in the United Kingdom against Air Navigation, McDonald, and the pilot's estate. [ Footnote 2 ] Reyno candidly admits that the action against Piper and Hartzell was filed in the United States because its laws regarding liability, capacity to sue, and damages are more favorable to her position than are those of Scotland. Scottish law does not recognize strict liability in tort. Moreover, it permits wrongful death actions only when brought by a decedent's relatives. The relatives may sue only for "loss of support and society." [ Footnote 3 ] On petitioners' motion, the suit was removed to the United States District Court for the Central District of California. Piper then moved for transfer to the United States District Court for the Middle District of Pennsylvania, pursuant to 28 U.S.C. § 1404(a). [ Footnote 4 ] Hartzell moved to dismiss for lack of personal jurisdiction, or in the alternative, to transfer. [ Footnote 5 ] In December, 1977, the District Court quashed service on Page 454 U. S. 241 Hartzell and transferred the case to the Middle District of Pennsylvania. Respondent then properly served process on Hartzell. B In May, 1978, after the suit had been transferred, both Hartzell and Piper moved to dismiss the action on the ground of forum non conveniens. The District Court granted these motions in October, 1979. It relied on the balancing test set forth by this Court in Gulf Oil Corp. v. Gilbert, 330 U. S. 501 (1947), and its companion case, Koster v. Lumbermens Mut. Cas. Co., 330 U. S. 518 (1947). In those decisions, the Court stated that a plaintiff's choice of forum should rarely be disturbed. However, when an alternative forum has jurisdiction to hear the case, and when trial in the chosen forum would "establish . . . oppressiveness and vexation to a defendant . . . out of all proportion to plaintiff's convenience," or when the "chosen forum [is] inappropriate because of considerations affecting the court's own administrative and legal problems," the court may, in the exercise of its sound discretion, dismiss the case. Koster, supra, at 330 U. S. 524 . To guide trial court discretion, the Court provided a list of "private interest factors" affecting the convenience of the litigants, and a list of "public interest factors" affecting the convenience of the forum. Gilbert, supra, at 330 U. S. 508 -509. [ Footnote 6 ] Page 454 U. S. 242 After describing our decisions in Gilbert. and Koster, the District Court analyzed the facts of these cases. It began by observing that an alternative forum existed in Scotland; Piper and Hartzell had agreed to submit to the jurisdiction of the Scottish courts and to waive any statute of limitations defense that might be available. It then stated that plaintiffs choice of forum was entitled to little weight. The court recognized that a plaintiff's choice ordinarily deserves substantial deference. It noted, however, that Reyno "is a representative of foreign citizens and residents seeking a forum in the United States because of the more liberal rules concerning products liability law," and that "the courts have been less solicitous when the plaintiff is not an American citizen or resident, and particularly when the foreign citizens seek to benefit from the more liberal tort rules provided for the protection of citizens and residents of the United States." 479 F. Supp. at 731. The District Court next examined several factors relating to the private interests of the litigants, and determined that these factors strongly pointed towards Scotland as the appropriate forum. Although evidence concerning the design, manufacture, and testing of the plane and propeller is located in the United States, the connections with Scotland are otherwise "overwhelming." Id. at 732. The real parties in interest are citizens of Scotland, as were all the decedents. Witnesses who could testify regarding the maintenance of the aircraft, the training of the pilot, and the investigation of the accident -- all essential to the defense -- are in Great Britain. Moreover, all witnesses to damages are located in Scotland. Trial would be aided by familiarity with Scottish topography, and by easy access to the wreckage. The District Court reasoned that, because crucial witnesses and evidence were beyond the reach of compulsory process, and because the defendants would not be able to implead potential Scottish third-party defendants, it would be "unfair to make Piper and Hartzell proceed to trial in this forum." Id. Page 454 U. S. 243 at 733. The survivors had brought separate actions in Scotland against the pilot, McDonald, and Air Navigation. "[I]t would be fairer to all parties and less costly if the entire case was presented to one jury with available testimony from all relevant witnesses." Ibid. Although the court recognized that, if trial were held in the United States, Piper and Hartzell could file indemnity or contribution actions against the Scottish defendants, it believed that there was a significant risk of inconsistent verdicts. [ Footnote 7 ] The District Court concluded that the relevant public interests also pointed strongly towards dismissal. The court determined that Pennsylvania law would apply to Piper and Scottish law to Hartzell if the case were tried in the Middle District of Pennsylvania. [ Footnote 8 ] As a result, "trial in this forum would be hopelessly complex and confusing for a jury." Id. at 734. In addition, the court noted that it was unfamiliar with Scottish law and thus would have to rely upon experts from that country. The court also found that the trial would be enormously costly and time-consuming; that it would be unfair to burden citizens with jury duty when the Middle District Page 454 U. S. 244 of Pennsylvania has little connection with the controversy; and that Scotland has a substantial interest in the outcome of the litigation. In opposing the motions to dismiss, respondent contended that dismissal would be unfair because Scottish law was less favorable. The District Court explicitly rejected this claim. It reasoned that the possibility that dismissal might lead to an unfavorable change in the law did not deserve significant weight; any deficiency in the foreign law was a "matter to be dealt with in the foreign forum." Id. at 738. C On appeal, the United States Court of Appeals for the Third Circuit reversed and remanded for trial. The decision to reverse appears to be based on two alternative grounds. First, the Court held that the District Court abused its discretion in conducting the Gilbert analysis. Second, the Court held that dismissal is never appropriate where the law of the alternative forum is less favorable to the plaintiff. The Court of Appeals began its review of the District Court's Gilbert analysis by noting that the plaintiff's choice of forum deserved substantial weight, even though the real parties in interest are nonresidents. It then rejected the District Court's balancing of the private interests. It found that Piper and Hartzell had failed adequately to support their claim that key witnesses would be unavailable if trial were held in the United States: they had never specified the witnesses they would call and the testimony these witnesses would provide. The Court of Appeals gave little weight to the fact that Piper and Hartzell would not be able to implead potential Scottish third-party defendants, reasoning that this difficulty would be "burdensome" but not "unfair," 630 F.2d at 162. [ Footnote 9 ] Finally, the court stated that resolution of the suit Page 454 U. S. 245 would not be significantly aided by familiarity with Scottish topography, or by viewing the wreckage. The Court of Appeals also rejected the District Court's analysis of the public interest factors. It found that the District Court gave undue emphasis to the application of Scottish law: "'the mere fact that the court is called upon to determine and apply foreign law does not present a legal problem of the sort which would justify the dismissal of a case otherwise properly before the court.'" Id. at 163 (quoting Hoffman v. Goberman, 420 F.2d 423, 427 (CA3 1970)). In any event, it believed that Scottish law need not be applied. After conducting its own choice of law analysis, the Court of Appeals determined that American law would govern the actions against both Piper and Hartzell. [ Footnote 10 ] The same choice of law analysis apparently led it to conclude that Pennsylvania and Ohio, rather than Scotland, are the jurisdictions with the greatest policy interests in the dispute, and that all other public interest factors favored trial in the United States. [ Footnote 11 ] Page 454 U. S. 246 In any event, it appears that the Court of Appeals would have reversed even if the District Court had properly balanced the public and private interests. The court stated: "[I]t is apparent that the dismissal would work a change in the applicable law so that the plaintiff's strict liability claim would be eliminated from the case. But . . . a dismissal for forum non conveniens, like a statutory transfer, 'should not, despite its convenience, result in a change in the applicable law.' Only when American law is not applicable, or when the foreign jurisdiction would, as a matter of its own choice of law, give the plaintiff the benefit of the claim to which she is entitled here, would dismissal be justified." 630 F.2d at 163-164 (footnote omitted) (quoting DeMateos v. Texaco, Inc., 562 F.2d 895, 899 (CA3 1977), cert. denied, 435 U.S. 904 (1978)). In other words, the court decided that dismissal is automatically barred if it would lead to a change in the applicable law unfavorable to the plaintiff. We granted certiorari in these cases to consider the questions they raise concerning the proper application of the doctrine of forum non conveniens. 450 U.S. 909 (1981). [ Footnote 12 ] Page 454 U. S. 247 II The Court of Appeals erred in holding that plaintiffs may defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the present forum. The possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry. We expressly rejected the position adopted by the Court of Appeals in our decision in Canada Malting Co. v. Paterson Steamships, Ltd., 285 U. S. 413 (1932). That case arose out of a collision between two vessels in American waters. The Canadian owners of cargo lost in the accident sued the Canadian owners of one of the vessels in Federal District Court. The cargo owners chose an American court in large part because the relevant American liability rules were more favorable than the Canadian rules. The District Court dismissed on grounds of forum non conveniens. The plaintiffs argued that dismissal was inappropriate because Canadian laws were less favorable to them. This Court nonetheless affirmed: "We have no occasion to enquire by what law the rights of the parties are governed, as we are of the opinion Page 454 U. S. 248 that, under any view of that question, it lay within the discretion of the District Court to decline to assume jurisdiction over the controversy. . . . '[T]he court will not take cognizance of the case if justice would be as well done by remitting the parties to their home forum.'" Id. at 285 U. S. 419 -420 (quoting Charter Shipping Co. v. Bowring, Jones & Tidy, Ltd., 281 U. S. 515 , 281 U. S. 517 (1930)). The Court further stated that "[t]here as no basis for the contention that the District Court abused its discretion." 285 U.S. at 285 U. S. 423 . It is true that Canada Malting was decided before Gilbert, and that the doctrine of forum non conveniens was not fully crystallized until our decision in that case. [ Footnote 13 ] However, Gilbert in no way affects the validity of Canada Malting. Indeed, Page 454 U. S. 249 by holding that the central focus of the forum non conveniens inquiry is convenience, Gilbert implicitly recognized that dismissal may not be barred solely because of the possibility of an unfavorable change in law. [ Footnote 14 ] Under Gilbert, dismissal will ordinarily be appropriate where trial in the plaintiff's chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice. [ Footnote 15 ] If substantial weight were given to the possibility of an unfavorable change in law, however, dismissal might be barred even where trial in the chosen forum was plainly inconvenient. The Court of Appeals' decision is inconsistent with this Court's earlier forum non conveniens decisions in another respect. Those decisions have repeatedly emphasized the need to retain flexibility. In Gilbert, the Court refused to identify specific circumstances "which will justify or require either grant or denial of remedy." 330 U.S. at 330 U. S. 508 . Similarly, in Koster, the Court rejected the contention that, where a trial would involve inquiry into the internal affairs of a foreign corporation, dismissal was always appropriate. "That is one, but only one, factor which may show convenience." 330 U.S. at 330 U. S. 527 . And in Williams v. Green Bay & Western R. Co., 326 U. S. 549 , 326 U. S. 557 (1946), we stated that we would not lay down a rigid rule to govern discretion, and that "[e]ach case turns on its facts." If central emphasis were Page 454 U. S. 250 placed on any one factor, the forum non conveniens doctrine would lose much of the very flexibility that makes it so valuable. In fact, if conclusive or substantial weight were given to the possibility of a change in law, the forum non conveniens doctrine would become virtually useless. Jurisdiction and venue requirements are often easily satisfied. As a result, many plaintiffs are able to choose from among several forums. Ordinarily, these plaintiffs will select that forum whose choice of law rules are most advantageous. Thus, if the possibility of an unfavorable change in substantive law is given substantial weight in the forum non conveniens inquiry, dismissal would rarely be proper. Except for the court below, every Federal Court of Appeals that has considered this question after Gilbert has held that dismissal on grounds of forum non conveniens may be granted even though the law applicable in the alternative forum is less favorable to the plaintiff's chance of recovery. See, e.g., Pain v. United Technologies Corp., 205 U.S.App.D.C. 229, 248-249, 637 F.2d 775, 794-795 (1980); Fitzgerald v. Texaco, Inc., 521 F.2d 448, 453 (CA2 1975), cert. denied, 423 U.S. 1052 (1976); Anastasiadis v. S.S. Little John, 346 F.2d 281, 283 (CA5 1965), cert. denied, 384 U.S. 920 (1966). [ Footnote 16 ] Several courts have relied expressly on Canada Malting to hold that the possibility of an unfavorable change of law should not, by itself, bar dismissal. See Fitzgerald Page 454 U. S. 251 v. Texaco, Inc., supra; Anglo-American Grain Co. v. The SIT Mina D'Amico, 169 F. Supp. 908 (ED Va.1959). The Court of Appeals' approach is not only inconsistent with the purpose of the forum non conveniens doctrine, but also poses substantial practical problems. If the possibility of a change in law were given substantial weight, deciding motions to dismiss on the ground of forum non conveniens would become quite difficult. Choice of law analysis would become extremely important, and the courts would frequently be required to interpret the law of foreign jurisdictions. First, the trial court would have to determine what law would apply if the case were tried in the chosen forum, and what law would apply if the case were tried in the alternative forum. It would then have to compare the rights, remedies, and procedures available under the law that would be applied in each forum. Dismissal would be appropriate only if the court concluded that the Law applied by the alternative forum is as favorable to the plaintiff as that of the chosen forum. The doctrine of forum non conveniens, however, is designed in part to help courts avoid conducting complex exercises in comparative law. As we stated in Gilbert, the public interest factors point towards dismissal where the court would be required to "untangle problems in conflict of laws, and in law foreign to itself." 330 U.S. at 330 U. S. 509 . Upholding the decision of the Court of Appeals would result in other practical problems. At least where the foreign plaintiff named an American manufacturer as defendant, [ Footnote 17 ] a court could not dismiss the case on grounds of forum non Page 454 U. S. 252 conveniens where dismissal might lead to an unfavorable change in law. The American courts, which are already extremely attractive to foreign plaintiffs, [ Footnote 18 ] would become even more attractive. The flow of litigation into the United States would increase and further congest already crowded courts. [ Footnote 19 ] Page 454 U. S. 253 The Court of Appeals based its decision, at least in part, on an analogy between dismissals on grounds of forum non conveniens and transfers between federal courts pursuant to § 1404(a). In Van Dusen v. Barrack, 376 U. S. 612 (1964), this Court ruled that a § 1404(a) transfer should not result in a change in the applicable law. Relying on dictum in an earlier Third Circuit opinion interpreting Van Dusen, the court below held that that principle is also applicable to a dismissal on forum non conveniens grounds. 630 F.2d at 164, and n. 51 (citing DeMateos v. Texaco, Inc., 562 F.2d at 899). However, § 1404(a) transfers are different than dismissals on the ground of forum non conveniens. Congress enacted § 1404(a) to permit change of venue between federal courts. Although the statute was drafted in accordance with the doctrine of forum non conveniens, see Revisor's Note, H.R.Rep. No. 308, 80th Cong., 1st Sess., A132 (1947); H.R.Rep. No. 2646, 79th Cong., 2d Sess., A127 (1946), it was intended to be a revision, rather than a codification of the common law. Norwood v. Kirkpatrick, 349 U. S. 29 (1955). District courts were given more discretion to transfer under § 1404(a) than they had to dismiss on grounds of forum non conveniens. Id. at 349 U. S. 31 -32. The reasoning employed in Van Dusen v. Barrack is simply inapplicable to dismissals on grounds of forum non conveniens. That case did not discuss the common law doctrine. Rather, it focused on "the construction and application" of § 1404(a). 376 U.S. at 376 U. S. 613 . [ Footnote 20 ] Emphasizing the remedial Page 454 U. S. 254 purpose of the statute, Barrack concluded that Congress could not have intended a transfer to be accompanied by a change in law. Id. at 376 U. S. 622 . The statute was designed as a "federal housekeeping measure," allowing easy change of venue within a unified federal system. Id. at 376 U. S. 613 . The Court feared that, if a change in venue were accompanied by a change in law, forum-shopping parties would take unfair advantage of the relaxed standards for transfer. The rule was necessary to ensure the just and efficient operation of the statute. [ Footnote 21 ] We do not hold that the possibility of an unfavorable change in law should never be a relevant consideration in a forum non conveniens inquiry. Of course, if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all, the unfavorable change in law may be given substantial weight; the district court may conclude that dismissal would not be in the interests of justice. [ Footnote 22 ] In these cases, however, the remedies that Page 454 U. S. 255 would be provided by the Scottish courts do not fall within this category. Although the relatives of the decedents may not be able to rely on a strict liability theory, and although their potential damages award may be smaller, there is no danger that they will be deprived of any remedy or treated unfairly. III The Court of Appeals also erred in rejecting the District Court's Gilbert analysis. The Court of Appeals stated that more weight should have been given to the plaintiff's choice of forum, and criticized the District Court's analysis of the private and public interests. However, the District Court's decision regarding the deference due plaintiff's choice of forum was appropriate. Furthermore, we do not believe that the District Court abused its discretion in weighing the private and public interests. A The District Court acknowledged that there is ordinarily a strong presumption in favor of the plaintiff's choice of forum, which may be overcome only when the private and public interest factors clearly point towards trial in the alternative forum. It held, however, that the presumption applies with less force when the plaintiff or real parties in interest are foreign. The District Court's distinction between resident or citizen plaintiffs and foreign plaintiffs is fully justified. In Koster, the Court indicated that a plaintiff's choice of forum is entitled to greater deference when the plaintiff has chosen the home forum. 330 U.S. at 330 U. S. 524 . [ Footnote 23 ] When the home forum has Page 454 U. S. 256 been chosen, it is reasonable to assume that this choice is convenient. When the plaintiff is foreign, however, this assumption is much less reasonable. Because the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff's choice deserves less deference. [ Footnote 24 ] Page 454 U. S. 257 The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference. Gilbert, 330 U.S. at 330 U. S. 511 -512; Koster, 330 U.S. at 330 U. S. 531 . Here, the Court of Appeals expressly acknowledged that the standard of review was one of abuse of discretion. In examining the District Court's analysis of the public and private interests, however, the Court of Appeals seems to have lost sight of this rule, and substituted its own judgment for that of the District Court. (1) In analyzing the private interest factors, the District Court stated that the connections with Scotland are "overwhelming." 479 F. Supp. at 732. This characterization may be somewhat exaggerated. Particularly with respect to the question of relative ease of access to sources of proof, the private interests point in both directions. As respondent emphasizes, records concerning the design, manufacture, and testing of the propeller and plane are located in the United States. She would have greater access to sources of proof relevant to her strict liability and negligence theories if trial were held here. [ Footnote 25 ] However, the District Court did not act Page 454 U. S. 258 unreasonably in concluding that fewer evidentiary problems would be posed if the trial were held in Scotland. A large proportion of the relevant evidence is located in Great Britain. The Court of Appeals found that the problems of proof could not be given any weight because Piper and Hartzell failed to describe with specificity the evidence they would not be able to obtain if trial were held in the United States. It suggested that defendants seeking forum non conveniens dismissal must submit affidavits identifying the witnesses they would call and the testimony these witnesses would provide if the trial were held in the alternative forum. Such detail is not necessary. [ Footnote 26 ] Piper and Hartzell have moved for dismissal precisely because many crucial witnesses are located beyond the reach of compulsory process, and thus are difficult to identify or interview. Requiring extensive investigation would defeat the purpose of their motion. Of course, defendants must provide enough information to enable the District Court to balance the parties' interests. Our examination of the record convinces us that sufficient information Page 454 U. S. 259 was provided here. Both Piper and Hartzell submitted affidavits describing the evidentiary problems they would face if the trial were held in the United States. [ Footnote 27 ] The District Court correctly concluded that the problems posed by the inability to implead potential third-party defendants clearly supported holding the trial in Scotland. Joinder of the pilot's estate, Air Navigation, and McDonald is crucial to the presentation of petitioners' defense. If Piper and Hartzell can show that the accident was caused not by a design defect, but rather by the negligence of the pilot, the plane's owners, or the charter company, they will be relieved of all liability. It is true, of course, that, if Hartzell and Piper were found liable after a trial in the United States, they could institute an action for indemnity or contribution against these parties in Scotland. It would be far more convenient, however, to resolve all claims in one trial. The Court of Appeals rejected this argument. Forcing petitioners to rely on actions for indemnity or contributions would be "burdensome," but not "unfair." 630 F.2d at 162. Finding that trial in the plaintiff's chosen forum would be burdensome, however, is sufficient to support dismissal on grounds of forum non conveniens. [ Footnote 28 ] (2) The District Court's review of the factors relating to the public interest was also reasonable. On the basis of its Page 454 U. S. 260 choice of law analysis, it concluded that, if the case were tried in the Middle District of Pennsylvania, Pennsylvania law would apply to Piper and Scottish law to Hartzell. It stated that a trial involving two sets of laws would be confusing to the jury. It also noted its own lack of familiarity with Scottish law. Consideration of these problems was clearly appropriate under Gilbert; in that case, we explicitly held that the need to apply foreign law pointed towards dismissal. [ Footnote 29 ] The Court of Appeals found that the District Court's choice of law analysis was incorrect, and that American law would apply to both Hartzell and Piper. Thus, lack of familiarity with foreign law would not be a problem. Even if the Court of Appeals' conclusion is correct, however, all other public interest factors favored trial in Scotland. Scotland has a very strong interest in this litigation. The accident occurred in its airspace. All of the decedents were Scottish. Apart from Piper and Hartzell, all potential plaintiffs and defendants are either Scottish or English. As we stated in Gilbert, there is "a local interest in having localized controversies decided at home." 330 U.S. at 330 U. S. 509 . Respondent argues that American citizens have an interest in ensuring that American manufacturers are deterred from producing defective products, and that additional deterrence might be obtained if Piper and Hartzell were tried in the United States, where they could be sued on the basis of both negligence and strict liability. However, the incremental deterrence that would be gained if this trial were held in an Page 454 U. S. 261 American court is likely to be insignificant. The American interest in this accident is simply not sufficient to justify the enormous commitment of judicial time and resources that would inevitably be required if the case were to be tried here. IV The Court of Appeals erred in holding that the possibility of an unfavorable change in law bars dismissal on the ground of forum non conveniens. It also erred in rejecting the District Court's Gilbert analysis. The District Court properly decided that the presumption in favor of the respondent's forum choice applied with less than maximum force because the real parties in interest are foreign. It did not act unreasonably in deciding that the private interests pointed towards trial in Scotland. Nor did it act unreasonably in deciding that the public interests favored trial in Scotland. Thus, the judgment of the Court of Appeals is Reversed. JUSTICE POWELL took no part in the decision of these cases. JUSTICE O'CONNOR took no part in the consideration or decision of these cases. * Together with No. 80-883, Hartzell Propeller, Inc. v. Reyno, Personal Representative of the Estates of Fehilly et al., also on certiorari to the same court. [ Footnote 1 ] Avco-Lycoming, Inc., the manufacturer of the plane's engines, was also named as a defendant. It was subsequently dismissed from the suit by stipulation. [ Footnote 2 ] The pilot's estate has also filed suit in the United Kingdom against Air Navigation, McDonald, Piper, and Hartzell. [ Footnote 3 ] See Affidavit of Donald Ian Kerr MacLeod, App. A19 (affidavit submitted to District Court by petitioners describing Scottish law). Suits for damages are governed by The Damages (Scotland) Act 1976. [ Footnote 4 ] Section 1404(a) provides: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." [ Footnote 5 ] The District Court concluded that it could not assert personal jurisdiction over Hartzell consistent with due process. However, it decided not to dismiss Hartzell because the corporation would be amenable to process in Pennsylvania. [ Footnote 6 ] The factors pertaining to the private interests of the litigants included the "relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive." Gilbert, 330 U.S. at 330 U. S. 508 . The public factors bearing on the question included the administrative difficulties flowing from court congestion; the "local interest in having localized controversies decided at home"; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty. Id. at 330 U. S. 509 . [ Footnote 7 ] The District Court explained that inconsistent verdicts might result if petitioners were held liable on the basis of strict liability here, and then required to prove negligence in an indemnity action in Scotland. Moreover, even if the same standard of liability applied, there was a danger that different juries would find different facts and produce inconsistent results. [ Footnote 8 ] Under Klaxon v. Stentor Electric Mfg. Co., 313 U. S. 487 (1941), a court ordinarily must apply the choice of law rules of the State in which it sits. However, where a case is transferred pursuant to 28 U.S.C. § 1404(a), it must apply the choice of law rules of the State from which the case was transferred. Van Dusen v. Barrack, 376 U. S. 612 (1946). Relying on these two cases, the District Court concluded that California choice of law rules would apply to Piper, and Pennsylvania choice of law rules would apply to Hartzell. It further concluded that California applied a "governmental interests" analysis in resolving choice of law problems, and that Pennsylvania employed a "significant contacts" analysis. The court used the "governmental interests" analysis to determine that Pennsylvania liability rules would apply to Piper, and the "significant contacts" analysis to determine that Scottish liability rules would apply to Hartzell. [ Footnote 9 ] The court claimed that the risk of inconsistent verdicts was slight because Pennsylvania and Scotland both adhere to principles of res judicata. [ Footnote 10 ] The Court of Appeals agreed with the District Court that California choice of law rules applied to Piper, and that Pennsylvania choice of law rules applied to Hartzell, see n 8, supra. It did not agree, however, that California used a "governmental interests" analysis and that Pennsylvania used a "significant contacts" analysis. Rather, it believed that both jurisdictions employed the "false conflicts" test. Applying this test, it concluded that Ohio and Pennsylvania had a greater policy interest in the dispute than Scotland, and that American law would apply to both Piper and Hartzell. [ Footnote 11 ] The court's reasoning on this point is somewhat unclear. It states: "We have held that, under the applicable choice of law rules, Pennsylvania and Ohio are the jurisdictions with the greatest policy interest in this dispute. It follows that the other public interest factors that should be considered under the Supreme Court cases of Gilbert and Koster favor trial in this country, rather than Scotland." 630 F.2d at 171. The Court of Appeals concluded as part of its choice of law analysis that the United States had the greatest policy interest in the dispute. See n 10, supra. It apparently believed that this conclusion necessarily implied that the forum non conveniens public interest factors pointed toward trial in the United States. [ Footnote 12 ] We granted certiorari in No. 80 848 to consider the question "[w]hether, in an action in federal district court brought by foreign plaintiffs against American defendants, the plaintiffs may defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied if the case were litigated in the district court is more favorable to them than the law that would be applied by the courts of their own nation." We granted certiorari in No. 80-883 to consider the question whether "a motion to dismiss on grounds of forum non conveniens [should] be denied whenever the law of the alternate forum is less favorable to recovery than that which would be applied by the district court." In this opinion, we begin by considering whether the Court of Appeals properly held that the possibility of an unfavorable change in law automatically bars dismissal. 454 U. S. infra. Since we conclude that the Court of Appeals erred, we then consider its review of the District Court's Gilbert analysis to determine whether dismissal was otherwise appropriate. 454 U. S. infra. We believe that it is necessary to discuss the Gilbert analysis in order to properly dispose of the cases. The questions on which certiorari was granted are sufficiently broad to justify our discussion of the District Court's Gilbert analysis. However, even if the issues we discuss in 454 U. S. our consideration of these issues is not inappropriate. An order limiting the grant of certiorari does not operate as a jurisdictional bar. We may consider questions outside the scope of the limited order when resolution of those questions is necessary for the proper disposition of the case. See Olmstead v. United States, 277 U. S. 438 (1928); McCandless v. Furlaud, 293 U. S. 67 (1934); Redrup v. New York, 386 U. S. 767 (1967). [ Footnote 13 ] The doctrine of forum non conveniens has a long history. It originated in Scotland, see Braucher, The Inconvenient Federal Forum, 60 Harv.L.Rev. 908, 909-911 (1947), and became part of the common law of many States, see id. at 911-912; Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Colum.L.Rev. 1 (1929). The doctrine was also frequently applied in federal admiralty actions. See, e.g., Canada Malting Co. v. Paterson Steamships, Ltd.; see also Bickel, The Doctrine of Forum Non Conveniens As Applied in the Federal Courts in Matters of Admiralty, 35 Cornell L.Q. 12 (1949). In Williams v. Green Bay & Western R. Co., 326 U. S. 549 (1946), the Court first indicated that motions to dismiss on grounds of forum non conveniens could be made in federal diversity actions. The doctrine became firmly established when Gilbert and Koster were decided one year later. In previous forum non conveniens decisions, the Court has left unresolved the question whether, under Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), state or federal law of forum non conveniens applies in a diversity case. Gilbert, 330 U.S. at 330 U. S. 509 ; Koster, 330 U.S. at 330 U. S. 529 ; Williams v. Green Bay & Western R. Co., supra, at 326 U. S. 551 , 326 U. S. 558 -559. The Court did not decide this issue, because the same result would have been reached in each case under federal or state law. The lower courts in these cases reached the same conclusion: Pennsylvania and California law on forum non conveniens dismissals are virtually identical to federal law. See 630 F.2d at 158. Thus, here also, we need not resolve the Erie question. [ Footnote 14 ] See also Williams v. Green Bay & Western R. Co. at 326 U. S. 555 , n. 4 (citing with approval a Scottish case that dismissed an action on the ground of forum non conveniens despite the possibility of an unfavorable change in law). [ Footnote 15 ] In other words, Gilbert held that dismissal may be warranted where a plaintiff choose a particular forum not because it is convenient, but solely in order to harass the defendant or take advantage of favorable law. This is precisely the situation in which the Court of Appeals' rule would bar dismissal. [ Footnote 16 ] Cf. Dahl v. United Technologies Corp., 632 F.2d 1027, 1032 (CA3 1980) (dismissal affirmed where "Norwegian substantive law will predominate the trial of this case and the mere presence of a count pleaded under Connecticut law, but which may have little chance of success, does not warrant a different conclusion"). But see DeMateos v. Texaco, Inc., 562 F.2d 895, 899 (CA3 1977) (dictum) (principle that § 1404(a) transfer should not result in change in law is no less applicable to dismissal on grounds of forum non conveniens ), cert. denied, 435 U.S. 904 (1978). The court below relied on the dictum in DeMateos in reaching its decision. See infra at 454 U. S. 253 -254. [ Footnote 17 ] In fact, the defendant might not even have to be American. A foreign plaintiff seeking damages for an accident that occurred abroad might be able to obtain service of process on a foreign defendant who does business in the United States. Under the Court of Appeals' holding, dismissal would be barred if the law in the alternative forum were less favorable to the plaintiff -- even though none of the parties are American, and even though there is absolutely no nexus between the subject matter of the litigation and the United States. [ Footnote 18 ] First, all but 6 of the 50 American States -- Delaware, Massachusetts, Michigan, North Carolina, Virginia, and Wyoming -- offer strict liability. 1 CCH Prod.Liability Rep. § 4016 (1981). Rules roughly equivalent to American strict liability are effective in France, Belgium, and Luxembourg. West Germany and Japan have a strict liability statute for pharmaceuticals. However, strict liability remains primarily an American innovation. Second, the tort plaintiff may choose, at least potentially, from among 50 jurisdictions if he decides to file suit in the United States. Each of these jurisdictions applies its own set of malleable choice of law rules. Third, jury trials are almost always available in the United States, while they are never provided in civil law jurisdictions. G. Gloss, Comparative Law 12 (1979); J. Merryman, The Civil Law Tradition 121 (1969). Even in the United Kingdom, most civil actions are not tried before a jury. 1 G. Keeton, The United Kingdom: The Development of its Laws and Constitutions 309 (1955). Fourth, unlike most foreign jurisdictions, American courts allow contingent attorney's fees, and do not tax losing parties with their opponents' attorney's fees. R. Schlesinger, Comparative Law: Cases, Text, Materials 275-277 (3d ed.1970); Orban, Product Liability: A Comparative Legal Restatement -- Foreign National Law and the EEC Directive, 8 Ga.J.Int'l & Comp.L. 342, 393 (1978). Fifth, discovery is more extensive in American than in foreign courts. R. Schlesinger, supra, at 307, 310, and n. 33. [ Footnote 19 ] In holding that the possibility of a change in law unfavorable to the plaintiff should not be given substantial weight, we also necessarily hold that the possibility of a change in law favorable to defendant should not be considered. Respondent suggests that Piper and Hartzell filed the motion to dismiss not simply because trial in the United States would be inconvenient, but also because they believe the laws of Scotland are more favorable. She argues that this should be taken into account in the analysis of the private interests. We recognize, of course, that Piper and Hartzell may be engaged in reverse forum-shopping. However, this possibility ordinarily should not enter into a trial court's analysis of the private interests. If the defendant is able to overcome the presumption in favor of plaintiff by showing that trial in the chosen forum would be unnecessarily burdensome, dismissal is appropriate -- regardless of the fact that defendant may also be motivated by a desire to obtain a more favorable forum. Cf. Kloeckner Reederei und Kohlenhandel v. A/S Hakedal, 210 F.2d 754, 757 (CA2) (defendant not entitled to dismissal on grounds of forum non conveniens solely because the law of the original forum is less favorable to him than the law of the alternative forum), cert. dism'd by stipulation, 348 U.S. 801 (1954). [ Footnote 20 ] Barrack at least implicitly recognized that the rule it announced for transfer under § 1404(a) was not the common law rule. It cited several decisions under § 1404(a) in which lower courts had been "strongly inclined to protect plaintiffs against the risk that transfer might be accompanied by a prejudicial change in applicable state laws." 376 U.S. at 376 U. S. 630 , n. 26. These decisions frequently rested on the assumption that a change in law would have been unavoidable under common law forum non conveniens, but could be avoided under § 1404(a). See, e.g., Greve v. Gibraltar Enterprises, Inc., 85 F. Supp. 410 , 414 (NM 1949). [ Footnote 21 ] The United States Court of Appeals for the Second Circuit has expressly rejected the contention that rules governing transfers pursuant to § 1404(a) also govern forum non conveniens dismissals. Schertenleib v. Traum, 589 F.2d 1156 (1978). [ Footnote 22 ] At the outset of any forum non conveniens inquiry, the court must determine whether there exists an alternative forum. Ordinarily, this requirement will be satisfied when the defendant is "amenable to process" in the other jurisdiction. Gilbert, 330 U.S. at 330 U. S. 506 -507. In rare circumstances, however, where the remedy offered by the other forum is clearly unsatisfactory, the other forum may not be an adequate alternative, and the initial requirement may not be satisfied. Thus, for example, dismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute. Cf. Phoenix Canada Oil Co., Ltd. v. Texaco, Inc., 78 F.R.D. 445 (Del.1978) (court refuses to dismiss, where alternative forum is Ecuador, it is unclear whether Ecuadorean tribunal will hear the case, and there is no generally codified Ecuadorean legal remedy for the unjust enrichment and tort claims asserted). [ Footnote 23 ] In Koster, we stated that, "[i]n any balancing of conveniences, a real showing of convenience by a plaintiff who has sued in his home forum will normally outweigh the inconvenience the defendant may have shown." 330 U.S. at 330 U. S. 524 . See also Swift & Co. Packers v. Compania Colombiana del Caribe, 339 U. S. 684 , 339 U. S. 697 (1950) ("suit by a United States citizen against a foreign respondent brings into force considerations very different from those in suits between foreigners"); Canada Malting Co. v. Paterson Steamships, Ltd., 285 U.S. at 285 U. S. 421 ("[t]he rule recognizing an unqualified discretion to decline jurisdiction in suits in admiralty between foreigners appears to be supported by an unbroken line of decisions in the lower federal courts"). As the District Court correctly noted in its opinion, 479 F. Supp. at 731; see also n 10, supra, the lower federal courts have routinely given less weight to a foreign plaintiff's choice of forum. See, e.g., Founding Church of Scientology v. Verlag, 175 U.S.App.D.C. 402, 408, 536 F.2d 429, 435 (1976); Paper Operations Consultants Int'l, Ltd. v. SS Hong Kong Amber, 513 F.2d 667, 672 (CA9 1975); Fitzgerald v. Texaco, Inc., 521 F.2d 448, 451 (CA2 1975), cert. denied, 423 U.S. 1052 (1976); Mobil Tankers Co. v. Mene Grande Oil Co., 363 F.2d 611, 614 (CA3), cert. denied, 385 U.S. 945 (1966); Ionescu v. E. F. Hutton & Co. (France), 465 F. Supp. 139 (SDNY 1979); Michell v. General Motors Corp., 439 F. Supp. 24 , 27 (ND Ohio 1977). A citizen's forum choice should not be given dispositive weight, however. See Pain v. United Technologies Corp., 205 U.S.App.D.C. 229, 252-253, 637 F.2d 775, 796-797 (1980); Mizokami Bros. of Arizona, Inc. v. Baychem Corp., 556 F.2d 975 (CA9 1977), cert. denied, 434 U.S. 1035 (1978). Citizens or residents deserve somewhat more deference than foreign plaintiffs, but dismissal should not be automatically barred when a plaintiff has filed suit in his home forum. As always, if the balance of conveniences suggests that trial in the chosen forum would be unnecessarily burdensome for the defendant or the court, dismissal is proper. [ Footnote 24 ] See Pain v. United Technologies Corp., supra, at 253, 637 F.2d at 797 (citizenship and residence are proxies for convenience); see also Note, Forum Non Conveniens and American Plaintiffs in the Federal Courts, 47 U. Chi.L.Rev. 373, 382 383 (1980). Respondent argues that since plaintiffs will ordinarily file suit in the jurisdiction that offers the most favorable law, establishing a strong presumption in favor of both home and foreign plaintiffs will ensure that defendants will always be held to the highest possible standard of accountability for their purported wrongdoing. However, the deference accorded a plaintiff's choice of forum has never been intended to guarantee that the plaintiff will be able to select the law that will govern the case. See supra at 454 U. S. 247 -250. [ Footnote 25 ] In the future, where similar problems are presented, district courts might dismiss subject to the condition that defendant corporations agree to provide the records relevant to the plaintiff's claims. [ Footnote 26 ] The United States Court of Appeals for the Second Circuit has expressly rejected such a requirement. Fitzgerald v. Texaco, Inc., supra, at 451, n. 3. In other cases, dismissals have been affirmed despite the failure to provide detailed affidavits. See Farmanfarmaian v. Gulf Oil Corp., 437 F. Supp. 910 , 924 (SDNY 1977), aff'd., 588 F.2d 880 (CA2 1978). And in a decision handed down two weeks after the decision in this case, another Third Circuit panel affirmed a dismissal without mentioning such a requirement. See Dahl v. United Technologies Corp., 632 F.2d 1027 (1980). The Court of Appeals apparently relied on an analogy to motions to transfer under 28 U.S.C. § 1404(a). 630 F.2d at 160-161. It cited Marbury-Pattillo Construction Co. v. Bayside Warehouse Co., 490 F.2d 155, 158 (CA5 1974), and Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 148 (CA10 1967), which suggest an affidavit requirement in the § 1404(a) context. As we have explained, however, dismissals on grounds of forum non conveniens and § 1404(a) transfers are not directly comparable. See supra at 454 U. S. 253 -254. [ Footnote 27 ] See Affidavit of Ronald C. Scott, App. to Pet. for Cert. of Hartzell Propeller, Inc., A75; Affidavit of Charles J. McKelvey, App. to Pet. for Cert. of Piper Aircraft Co. 1f. The affidavit provided to the District Court by Piper states that it would call the following witnesses: the relatives of the decedents; the owners and employees of McDonald; the persons responsible for the training and licensing of the pilot; the persons responsible for servicing and maintaining the aircraft; and two or three of its own employees involved in the design and manufacture of the aircraft. [ Footnote 28 ] See Pain v. United Technologies Corp., 205 U.S.App.D.C. at 244, 637 F.2d at 790 (relying on similar argument in approving dismissal of action arising out of helicopter crash that took place in Norway). [ Footnote 29 ] Many forum non conveniens decisions have held that the need to apply foreign law favors dismissal. See, e.g., Calavo Growers of California v. Belgium, 632 F.2d 963, 967 (CA2 1980), cert. denied, 449 U.S. 1084 (1981); Schertenleib v. Traum, 589 F.2d at 1165. Of course, this factor alone is not sufficient to warrant dismissal when a balancing of all relevant factors shows that the plaintiff's chosen forum is appropriate. See, e.g., Founding Church of Scientology v. Verlag, 175 U.S.App.D.C. at 409, 536 F.2d at 436; Burt v. Isthmus Development Co., 218 F.2d 353, 357 (CA5), cert. denied, 349 U.S. 922 (1955). JUSTICE WHITE, concurring in part and dissenting in part. I join Parts I and II of the Court's opinion. However, like JUSTICE BRENNAN and JUSTICE STEVENS, I would not proceed to deal with the issues addressed in 454 U. S. To that extent, I am in dissent. JUSTICE STEVENS, with whom JUSTICE BRENNAN joins, dissenting. In No. 80 848, only one question is presented for review to this Court: "Whether, in an action in federal district court brought by foreign plaintiffs against American defendants, the plaintiffs may defeat a motion to dismiss on the ground of Page 454 U. S. 262 forum non conveniens merely by showing that the substantive law that would be applied if the case were litigated in the district court is more favorable to them than the law that would be applied by the courts of their own nation." Pet. for Cert. in No. 80-848, p. i. In No. 8083, the Court limited its grant of certiorari, see 450 U.S. 909, to the same question: "Must a motion to dismiss on grounds of forum non conveniens be denied whenever the law of the alternate forum is less favorable to recovery than that which would be applied by the district court?" Pet. for Cert. in No. 80-883, p. i. I agree that this question should be answered in the negative. Having decided that question, I would simply remand the case to the Court of Appeals for further consideration of the question whether the District Court correctly decided that Pennsylvania was not a convenient forum in which to litigate a claim against a Pennsylvania company that a plane was defectively designed and manufactured in Pennsylvania.

In Piper Aircraft Co. v. Reyno, the US Supreme Court ruled that plaintiffs cannot prevent a case dismissal on the grounds of forum non conveniens just because the substantive law in the alternative forum is less favorable to them. The Court held that a change in substantive law should not be a decisive factor in the forum non conveniens analysis and that other private and public interest factors should be considered. The case involved a plane crash in Scotland, and the plaintiffs, representatives of the estates of Scottish citizens, filed a wrongful death lawsuit in a California state court against the plane and propeller manufacturers based in the US. The Court considered the convenience of the litigants and the forum, with the District Court concluding that Scotland was the appropriate forum, while the Court of Appeals disagreed, leading to the Supreme Court's review.

Lawsuits & Legal Procedures

Upjohn Co. v. U.S.

https://supreme.justia.com/cases/federal/us/449/383/

U.S. Supreme Court Upjohn Co. v. United States, 449 U.S. 383 (1981) Upjohn Co. v. United States No. 79-886 Argued November 5, 1980 Decided January 13, 1981 449 U.S. 383 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Syllabus When the General Counsel for petitioner pharmaceutical manufacturing corporation (hereafter petitioner) was informed that one of its foreign subsidiaries had made questionable payments to foreign government officials in order to secure government business, an internal investigation of such payments was initiated. As part of this investigation, petitioner's attorneys sent a questionnaire to all foreign managers seeking detailed information concerning such payments, and the responses were returned to the General Counsel. The General Counsel and outside counsel also interviewed the recipients of the questionnaire and other company officers and employees. Subsequently, based on a report voluntarily submitted by petitioner disclosing the questionable payments, the Internal Revenue Service (IRS) began an investigation to determine the tax consequences of such payments and issued a summons pursuant to 26 U.S.C. § 762 demanding production of, inter alia, the questionnaires and the memoranda and notes of the interviews. Petitioner refused to produce the documents on the grounds that they were protected from disclosure by the attorney-client privilege and constituted the work product of attorneys prepared in anticipation of litigation. The United States then filed a petition in Federal District Court seeking enforcement of the summons. That court adopted the Magistrate's recommendation that the summons should be enforced, the Magistrate having concluded, inter alia, that the attorney-client privilege had been waived, and that the Government had made a sufficient showing of necessity to overcome the protection of the work product doctrine. The Court of Appeals rejected the Magistrate's finding of a waiver of the attorney-client privilege, but held that, under the so-called "control group test," the privilege did not apply "[t]o the extent that the communications were made by officers and agents not responsible for directing [petitioner's] actions in response to legal advice . . . for the simple reason that the communications were not the 'client's'.'" The court also held that the work product doctrine did not apply to IRS summonses. Held: 1. The communications by petitioner's employees to counsel are covered by the attorney-client privilege insofar as the responses to the Page 449 U. S. 384 questionnaires and any notes reflecting responses to interview questions are concerned. Pp. 449 U. S. 389 -397. (a) The control group test overlooks the fact that such privilege exists to protect not only the giving of professional advice to those who can act on it, but also the giving of information to the lawyer to enable him to give sound and informed advice. While in the case of the individual client the provider of information and the person who acts on the lawyer's advice are one and the same, in the corporate context, it will frequently be employees beyond the control group (as defined by the Court of Appeals) who will possess the information needed by the corporation's lawyers. Middle-level -- and indeed lower-level -- employees can, by actions within the scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corporate counsel if he is adequately to advise the client with respect to such actual or potential difficulties. Pp. 449 U. S. 390 -392. (b) The control group test thus frustrates the very purpose of the attorney-client privilege by discouraging the communication of relevant information by employees of the client corporation to attorneys seeking to render legal advice to the client. The attorney's advice will also frequently be more significant to noncontrol employees than to those who officially sanction the advice, and the control group test makes it more difficult to convey full and frank legal advice to the employees who will put into effect the client corporation's policy. P. 449 U. S. 392 . (c) The narrow scope given the attorney-client privilege by the Court of Appeals not only makes it difficult for corporate attorneys to formulate sound advice when their client is faced with a specific legal problem, but also threatens to limit the valuable efforts of corporate counsel to ensure their client's compliance with the law. Pp. 449 U. S. 392 -393. (d) Here, the communications at issue were made by petitioner's employees to counsel for petitioner, acting as such, at the direction of corporate superiors in order to secure legal advice from counsel. Information not available from upper-echelon management was needed to supply a basis for legal advice concerning compliance with securities and tax laws, foreign laws, currency regulations, duties to shareholders, and potential litigation in each of these areas. The communications concerned matters within the scope of the employees' corporate duties, and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice. Pp. 449 U. S. 394 -395 2. The work product doctrine applies to IRS summonses. Pp. 449 U. S. 397 -402. (a) The obligation imposed by a tax summons remains subject to the traditional privileges and limitations, and nothing in the language Page 449 U. S. 385 or legislative.history of the IRS summons provisions suggests an intent on the part of Congress to preclude application of the work product doctrine. P. 449 U. S. 398 . (b) The Magistrate applied the wrong standard when he concluded that the Government had made a sufficient showing of necessity to overcome the protections of the work product doctrine. The notes and memoranda sought by the Government constitute work product based on oral statements. If they reveal communications, they are protected by the attorney-client privilege. To the extent they do not reveal communications, they reveal attorneys' mental processes in evaluating the communications. As Federal Rule of Civil Procedure 6, which accords special protection from disclosure to work product revealing an attorney's mental processes, and Hickman v. Taylor, 329 U. S. 495 , make clear, such work product cannot be disclosed simply on a showing of substantial need or inability to obtain the equivalent without undue hardship. P. 449 U. S. 401 . 600 F.2d 1223, reversed and remanded. REHNQUIST, J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined, and in Parts I and III of which BURGER, C.J., joined. BURGER, C.J., filed an opinion concurring in part and concurring in the judgment, post, p. 449 U. S. 402 . Page 449 U. S. 386 JUSTICE REHNQUIST delivered the opinion of the Court. We granted certiorari in this case to address important questions concerning the scope of the attorney-client privilege in the corporate context and the applicability of the work product doctrine in proceedings to enforce tax summonses. 445 U.S. 925. With respect to the privilege question, the parties and various amici have described our task as one of choosing between two "tests" which have gained adherents in the courts of appeals. We are acutely aware, however, that we sit to decide concrete cases, and not abstract propositions of law. We decline to lay down a broad rule or series of rules to govern all conceivable future questions in this area, even were we able to do so. We can and do, however, conclude that the attorney-client privilege protects the communications involved in this case from compelled disclosure, and that the work product doctrine does apply in tax summons enforcement proceedings. I Petitioner Upjohn Co. manufactures and sells pharmaceuticals here and abroad. In January, 1976, independent accountants conducting an audit of one of Upjohn's foreign subsidiaries discovered that the subsidiary made payments to or for the benefit of foreign government officials in order to secure government business. The accountants so informed petitioner Mr. Gerard Thomas, Upjohn's Vice President, Secretary, and General Counsel. Thomas is a member of the Michigan and New York Bars, and has been Upjohn's General Counsel for 20 years. He consulted with outside counsel and R. T. Parfet, Jr., Upjohn's Chairman of the Board. It was decided that the company would conduct an internal investigation of what were termed "questionable payments." As part of this investigation, the attorneys prepared a letter containing a questionnaire which was sent to "All Foreign General and Area Managers" over the Chairman's signature. The letter Page 449 U. S. 387 began by noting recent disclosures that several American companies made "possibly illegal" payments to foreign government officials, and emphasized that the management needed full information concerning any such payments made by Upjohn. The letter indicated that the Chairman had asked Thomas, identified as "the company's General Counsel," "to conduct an investigation for the purpose of determining the nature and magnitude of any payments made by the Upjohn Company or any of its subsidiaries to any employee or official of a foreign government." The questionnaire sought detailed information concerning such payments. Managers were instructed to treat the investigation as "highly confidential" and not to discuss it with anyone other than Upjohn employees who might be helpful in providing the requested information. Responses were to be sent directly to Thomas. Thomas and outside counsel also interviewed the recipients of the questionnaire and some 33 other Upjohn officers or employees as part of the investigation. On March 26, 1976, the company voluntarily submitted a preliminary report to the Securities and Exchange Commission on Form 8-K disclosing certain questionable payments. [ Footnote 1 ] A copy of the report was simultaneously submitted to the Internal Revenue Service, which immediately began an investigation to determine the tax consequences of the payments. Special agents conducting the investigation were given lists by Upjohn of all those interviewed and all who had responded to the questionnaire. On November 23, 1976, the Service issued a summons pursuant to 26 U.S.C. § 7602 demanding production of: "All files relative to the investigation conducted under the supervision of Gerard Thomas to identify payments to employees of foreign governments and any political Page 449 U. S. 388 contributions made by the Upjohn Company or any of its affiliates since January 1, 1971, and to determine whether any funds of the Upjohn Company had been improperly accounted for on the corporate books during the same period." "The records should include but not be limited to written questionnaires sent to managers of the Upjohn Company's foreign affiliates, and memorandums or notes of the interviews conducted in the United States and abroad with officers and employees of the Upjohn Company and its subsidiaries." App. 17a-18a. The company declined to produce the documents specified in the second paragraph on the grounds that they were protected from disclosure by the attorney-client privilege and constituted the work product of attorneys prepared in anticipation of litigation. On August 31, 1977, the United States filed a petition seeking enforcement of the summons under 26 U.S.C. § 7402(b) and 7604(a) in the United States District Court for the Western District of Michigan. That court adopted the recommendation of a Magistrate who concluded that the summons should be enforced. Petitioners appealed to the Court of Appeals for the Sixth Circuit, which rejected the Magistrate's finding of a waiver of the attorney-client privilege, 600 F.2d 1223, 1227, n. 12, but agreed that the privilege did not apply "[t]o the extent that the communications were made by officers and agents not responsible for directing Upjohn's actions in response to legal advice . . . , for the simple reason that the communications were not the 'client's.'" Id. at 1225. The court reasoned that accepting petitioners' claim for a broader application of the privilege would encourage upper-echelon management to ignore unpleasant facts and create too broad a "zone of silence." Noting that Upjohn's counsel had interviewed officials such as the Chairman and President, the Court of Appeals remanded to the District Court so that a determination of who was Page 449 U. S. 389 within the "control group" could be made. In a concluding footnote, the court stated that the work product doctrine "is not applicable to administrative summonses issued under 26 U.S.C. § 7602." Id. at 1228, n. 13. II Federal Rule of Evidence 501 provides that "the privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience." The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. 8 J. Wigmore, Evidence § 2290 (McNaughton rev.1961). Its purpose is to encourage full and frank communication between attorneys and their clients, and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client. As we stated last Term in Trammel v. United States, 445 U. S. 40 , 445 U. S. 51 (1980): "The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out." And in Fisher v. United States, 425 U. S. 391 , 425 U. S. 403 (1976), we recognized the purpose of the privilege to be "to encourage clients to make full disclosure to their attorneys." This rationale for the privilege has long been recognized by the Court, see Hunt v. Blackburn, 128 U. S. 464 , 128 U. S. 470 (1888) (privilege "is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure"). Admittedly complications in the application of the privilege arise when the client is a corporation, which, in theory, is an artificial creature of the Page 449 U. S. 390 law, and not an individual; but this Court has assumed that the privilege applies when the client is a corporation, United States v. Louisville Nashville R. Co., 236 U. S. 318 , 236 U. S. 336 (1915), and the Government does not contest the general proposition. The Court of Appeals, however, considered the application of the privilege in the corporate context to present a "different problem," since the client was an inanimate entity, and "only the senior management, guiding and integrating the several operations, . . . can be said to possess an identity analogous to the corporation as a whole." 600 F.2d at 1226. The first case to articulate the so-called "control group test" adopted by the court below, Philadelphia v. Westinghouse Electric Corp., 210 F. Supp. 483 , 485 (ED Pa.), petition for mandamus and prohibition denied sub nom. General Electric Co. v. Kirkpatrick, 312 F.2d 742 (CA3 1962), cert. denied, 372 U.S. 943 (1963), reflected a similar conceptual approach: "Keeping in mind that the question is, is it the corporation which is seeking the lawyer's advice when the asserted privileged communication is made?, the most satisfactory solution, I think, is that, if the employee making the communication, of whatever rank he may be, is in a position to control or even to take a substantial part in a decision about any action which the corporation may take upon the advice of the attorney, . . . then, in effect, he is (or personifies) the corporation when he makes his disclosure to the lawyer, and the privilege would apply." (Emphasis supplied.) Such a view, we think, overlooks the fact that the privilege exists to protect not only the giving of professional advice to those who can act on it, but also the giving of information to the lawyer to enable him to give sound and informed advice. See Trammel, supra at 445 U. S. 51 ; Fisher, supra at 425 U. S. 403 . The first step in the resolution of any legal problem is ascertaining the factual background and sifting through the facts Page 449 U. S. 391 with an eye to the legally relevant. See ABA Code of Professional Responsibility, Ethical Consideration 4-1: "A lawyer should be fully informed of all the facts of the matter he is handling in order for his client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of his independent professional judgment to separate the relevant and important from the irrelevant and unimportant. The observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to proper representation of the client, but also encourages laymen to seek early legal assistance." See also Hickman v. Taylor, 329 U. S. 495 , 329 U. S. 511 (1947). In the case of the individual client, the provider of information and the person who acts on the lawyer's advice are one and the same. In the corporate context, however, it will frequently be employees beyond the control group as defined by the court below -- "officers and agents . . . responsible for directing [the company's] actions in response to legal advice" -- who will possess the information needed by the corporation's lawyers. Middle-level -- and indeed lower-level employees can, by actions within the scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corporate counsel if he is adequately to advise the client with respect to such actual or potential difficulties. This fact was noted in Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (CA8 1978) (en banc): "In a corporation, it may be necessary to glean information relevant to a legal problem from middle management or non-management personnel as well as from top executives. The attorney dealing with a complex legal problem" "is thus faced with a 'Hobson's choice.' If he interviews employees not having 'the very highest authority,' Page 449 U. S. 392 their communications to him will not be privileged. If, on the other hand, he interviews only those employees with 'the very highest authority,' he may find it extremely difficult, if not impossible, to determine what happened." Id. at 608-609 (quoting Weinschel, Corporate Employee Interviews and the Attorney-Client Privilege, 12 B.C.Ind. & Com.L.Rev. 873, 876 (1971)). The control group test adopted by the court below thus frustrates the very purpose of the privilege by discouraging the communication of relevant information by employees of the client to attorneys seeking to render legal advice to the client corporation. The attorney's advice will also frequently be more significant to noncontrol group members than to those who officially sanction the advice, and the control group test makes it more difficult to convey full and frank legal advice to the employees who will put into effect the client corporation's policy. See, e.g., Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146 , 1164 (SC 1974) ("After the lawyer forms his or her opinion, it is of no immediate benefit to the Chairman of the Board or the President. It must be given to the corporate personnel who will apply it"). The narrow scope given the attorney-client privilege by the court below not only makes it difficult for corporate attorneys to formulate sound advice when their client is faced with a specific legal problem, but also threatens to limit the valuable efforts of corporate counsel to ensure their client's compliance with the law. In light of the vast and complicated array of regulatory legislation confronting the modern corporation, corporations, unlike most individuals, "constantly go to lawyers to find out how to obey the law," Burnham, The Attorney-Client Privilege in the Corporate Arena, 24 Bus.Law. 901, 913 (1969), particularly since compliance with the law in this area is hardly an instinctive matter, see, e.g., United States v. United States Gypsum Co., 438 U. S. 422 , 438 U. S. 440 -441 (1978) ("the behavior proscribed by the [Sherman] Act is Page 449 U. S. 393 often difficult to distinguish from the gray zone of socially acceptable and economically justifiable business conduct"). [ Footnote 2 ] The test adopted by the court below is difficult to apply in practice, though no abstractly formulated and unvarying "test" will necessarily enable courts to decide questions such as this with mathematical precision. But if the purpose of the attorney-client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all. The very terms of the test adopted by the court below suggest the unpredictability of its application. The test restricts the availability of the privilege to those officers who play a "substantial role" in deciding and directing a corporation's legal response. Disparate decisions in cases applying this test illustrate its unpredictability. Compare, e.g., Hogan v. Zletz, 43 F.R.D. 308, 315-316 (ND Okla.1967), aff'd in part sub nom. Natta v. Hogan, 392 F.2d 686 (CA10 1968) (control group includes managers and assistant managers of patent division and research and development department), with Congoleum Industries, Inc. v. GAF Corp., 49 F.R.D. 82, 83-85 (ED Pa.1969), aff'd, 478 F.2d 1398 (CA3 1973) (control group includes only division and corporate vice-presidents, and not two directors of research and vice-president for production and research). Page 449 U. S. 394 The communications at issue were made by Upjohn employees [ Footnote 3 ] to counsel for Upjohn, acting as such, at the direction of corporate superiors in order to secure legal advice from counsel. As the Magistrate found, "Mr. Thomas consulted with the Chairman of the Board and outside counsel, and thereafter conducted a factual investigation to determine the nature and extent of the questionable payments and to be in a position to give leal advice to the company with respect to the payments. " (Emphasis supplied.) 78-1 USTC 9277, pp. 83,598, 83,599. Information, not available from upper-echelon management, was needed to supply a basis for legal advice concerning compliance with securities and tax laws, foreign laws, currency regulations, duties to shareholders, and potential litigation in each of these areas. [ Footnote 4 ] The communications concerned matters within the scope of the employees' corporate duties, and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice. The questionnaire identified Thomas as "the company's General Counsel" and referred in its opening sentence to the possible illegality of payments such as the ones on which information was sought. App. 40a. A statement of policy accompanying the questionnaire clearly indicated the legal implications of the investigation. The policy statement was issued "in order that there be no uncertainty in the future as to the policy with respect to the practices which are the subject of this investigation." Page 449 U. S. 395 It began "Upjohn will comply with all laws and regulations," and stated that commissions or payments "will not be used as a subterfuge for bribes or illegal payments" and that all payments must be "proper and legal." Any future agreements with foreign distributors or agents were to be approved "by a company attorney," and any questions concerning the policy were to be referred "to the company's General Counsel." Id. at 165a-166a. This statement was issued to Upjohn employees worldwide, so that even those interviewees not receiving a questionnaire were aware of the legal implications of the interviews. Pursuant to explicit instructions from the Chairman of the Board, the communications were considered "highly confidential" when made, id. at 39a, 43a, and have been kept confidential by the company. [ Footnote 5 ] Consistent with the underlying purposes of the attorney-client privilege, these communications must be protected against compelled disclosure. The Court of Appeals declined to extend the attorney-client privilege beyond the limits of the control group test for fear that doing so would entail severe burdens on discovery and create a broad "zone of silence" over corporate affairs. Application of the attorney-client privilege to communications such as those involved here, however, puts the adversary in no worse position than if the communications had never taken place. The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney: "[T]he protection of the privilege extends only to communications, and not to facts. A fact is one thing and a communication concerning that fact is an entirely different Page 449 U. S. 396 thing. The client cannot be compelled to answer the question, 'What did you say or write to the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney." Philadelphia v. Westinghouse Electric Corp., 205 F. Supp. 830 , 831 (ED Pa.1962). See also Diversified Industries, 572 F.2d at 611; State ex rel. Dudek v. Circuit Court, 34 Wis.2d 559, 580, 150 N.W.2d 387, 399 (1967) ("the courts have noted that a party cannot conceal a fact merely by revealing it to his lawyer"). Here, the Government was free to question the employees who communicated with Thomas and outside counsel. Upjohn has provided the IRS with a list of such employees, and the IRS has already interviewed some 25 of them. While it would probably be more convenient for the Government to secure the results of petitioner's internal investigation by simply subpoenaing the questionnaires and notes taken by petitioner's attorneys, such considerations of convenience do not overcome the policies served by the attorney-client privilege. As Justice Jackson noted in his concurring opinion in Hickman v. Taylor, 329 U.S. at 329 U. S. 516 : "Discovery was hardly intended to enable a learned profession to perform its functions . . . on wits borrowed from the adversary." Needless to say, we decide only the case before us, and do not undertake to draft a set of rules which should govern challenges to investigatory subpoenas. Any such approach would violate the spirit of Federal Rule of Evidence 501. See S.Rep. No. 93-1277, p. 13 (1974) ("the recognition of a privilege based on a confidential relationship . . . should be determined on a case-by-case basis"); Trammel, 445 U.S. at 445 U. S. 47 ; United States v. Gillock, 445 U. S. 360 , 445 U. S. 367 (1980). While such a "case-by-case" basis may to some slight extent undermine desirable certainty in the boundaries of the attorney-client Page 449 U. S. 397 privilege, it obeys the spirit of the Rules. At the same time, we conclude that the narrow "control group test" sanctioned by the Court of Appeals in this case cannot, consistent with "the principles of the common law as . . . interpreted . . . in the light of reason and experience," Fed.Rule Evid. 501, govern the development of the law in this area. III Our decision that the communications by Upjohn employees to counsel are covered by the attorney-client privilege disposes of the case so far as the responses to the questionnaires and any notes reflecting responses to interview questions are concerned. The summons reaches further, however, and Thomas has testified that his notes and memoranda of interviews go beyond recording responses to his questions. App. 27a-28a, 91a-93a. To the extent that the material subject to the summons is not protected by the attorney-client privilege as disclosing communications between an employee and counsel, we must reach the ruling by the Court of Appeals that the work product doctrine does not apply to summonses issued under 26 U.S.C. § 7602. [ Footnote 6 ] The Government concedes, wisely, that the Court of Appeals erred and that the work product doctrine does apply to IRS summonses. Brief for Respondents 16, 48. This doctrine was announced by the Court over 30 years ago in Hickman v. Taylor, 329 U. S. 495 (1947). In that case, the Court rejected "an attempt, without purported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party's counsel in the course of his legal duties." Id. at 329 U. S. 510 . The Court noted that "it is essential that a lawyer work with Page 449 U. S. 398 a certain degree of privacy," and reasoned that, if discovery of the material sought were permitted, "much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served." Id. at 329 U. S. 511 . The "strong public policy" underlying the work product doctrine was reaffirmed recently in United States v. Nobles, 422 U. S. 225 , 422 U. S. 236 -240 (1975), and has been substantially incorporated in Federal Rule of Civil Procedure 26(b)(3). [ Footnote 7 ] As we stated last Term, the obligation imposed by a tax summons remains "subject to the traditional privileges and limitations." United States v. Euge, 444 U. S. 707 , 444 U. S. 714 (1980). Nothing in the language of the IRS summons provisions or their legislative history suggests an intent on the part of Congress to preclude application of the work product doctrine. Rule 26(b)(3) codifies the work product doctrine, and the Federal Rules of Civil Procedure are made applicable Page 449 U. S. 399 to summons enforcement proceedings by Rule 81(a)(3). See Donaldson v. United States, 400 U. S. 517 , 400 U. S. 528 (1971). While conceding the applicability of the work product doctrine, the Government asserts that it has made a sufficient showing of necessity to overcome its protections. The Magistrate apparently so found, 78-1 USTC � 9277, p. 83,605. The Government relies on the following language in Hickman: "We do not mean to say that all written materials obtained or prepared by an adversary's counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and nonprivileged facts remain hidden in an attorney's file, and where production of those facts is essential to the preparation of one's case, discovery may properly be had. . . . And production might be justified where the witnesses are no longer available or can be reached only with difficulty." 329 U.S. at 329 U. S. 511 . The Government stresses that interviewees are scattered across the globe, and that Upjohn has forbidden its employees to answer questions it considers irrelevant. The above-quoted language from Hickman, however, did not apply to "oral statements made by witnesses . . . whether presently in the form of [the attorney's] mental impressions or memoranda." Id. at 329 U. S. 512 . As to such material, the Court did "not believe that any showing of necessity can be made under the circumstances of this case so as to justify production. . . . If there should be a rare situation justifying production of these matters, petitioner's case is not of that type." Id. at 329 U. S. 512 -513. See also Nobles, supra at 422 U. S. 252 -253 (WHITE, J., concurring). Forcing an attorney to disclose notes and memoranda of witnesses' oral statements is particularly disfavored, because it tends to reveal the attorney's mental processes, 329 U.S. at 329 U. S. 513 ("what he saw fit to write down regarding witnesses' remarks"); id. at 329 U. S. 516 -517 ("the statement would be his [the Page 449 U. S. 400 attorney's] language, permeated with his inferences") (Jackson, J., concurring). [ Footnote 8 ] Rule 26 accords special protection to work product revealing the attorney's mental processes. The Rule permits disclosure of documents and tangible things constituting attorney work product upon a showing of substantial need and inability to obtain the equivalent without undue hardship. This was the standard applied by the Magistrate, 78-1 USTC � 9277, p. 83,604. Rule 26 goes on, however, to state that, "[i]n ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation." Although this language does not specifically refer to memoranda based on oral statements of witnesses, the Hickman court stressed the danger that compelled disclosure of such memoranda would reveal the attorney's mental processes. It is clear that this is the sort of material the draftsmen of the Rule had in mind as deserving special protection. See Notes of Advisory Committee on 1970 Amendment to Rules, 28 U.S.C.App. p. 442 ("The subdivision . . . goes on to protect against disclosure the mental impressions, conclusions, opinions, or legal theories . . . of an attorney or other representative of a party. The Hickman opinion drew special attention to the need for protecting an attorney against discovery of memoranda prepared from recollection of oral interviews. The courts have steadfastly safeguarded against disclosure of lawyers' mental impressions and legal theories. . . ."). Page 449 U. S. 401 Based on the foregoing, some courts have concluded that no showing of necessity can overcome protection of work product which is based on oral statements from witnesses. See, e.g., In re Grand Jury Proceedings, 473 F.2d 840, 848 (CA8 1973) (personal recollections, notes, and memoranda pertaining to conversation with witnesses); In re Grand Jury Investigation, 412 F. Supp. 943 , 949 (ED Pa.1976) (notes of conversation with witness "are so much a product of the lawyer's thinking and so little probative of the witness's actual words that they are absolutely protected from disclosure"). Those courts declining to adopt an absolute rule have nonetheless recognized that such material is entitled to special protection. See, e.g., In re Grand Jury Investigation, 599 F.2d 1224, 1231 (CA3 1979) ("special considerations . . . must shape any ruling on the discoverability of interview memoranda . . . ; such documents will be discoverable only in a rare situation'"); cf. In re Grand Jury Subpoena, 599 F.2d 504, 511-512 (CA2 1979). We do not decide the issue at this time. It is clear that the Magistrate applied the wrong standard when he concluded that the Government had made a sufficient showing of necessity to overcome the protections of the work product doctrine. The Magistrate applied the "substantial need" and "without undue hardship" standard articulated in the first part of Rule 26(b)(3). The notes and memoranda sought by the Government here, however, are work product based on oral statements. If they reveal communications, they are, in this case, protected by the attorney-client privilege. To the extent they do not reveal communications, they reveal the attorneys' mental processes in evaluating the communications. As Rule 26 and Hickman make clear, such work product cannot be disclosed simply on a showing of substantial need and inability to obtain the equivalent without undue hardship. While we are not prepared at this juncture to say that such material is always protected by the work product rule, we Page 449 U. S. 402 think a far stronger showing of necessity and unavailability by other means than was made by the Government or applied by the Magistrate in this case would be necessary to compel disclosure. Since the Court of Appeals thought that the work product protection was never applicable in an enforcement proceeding such as this, and since the Magistrate whose recommendations the District Court adopted applied too lenient a standard of protection, we think the best procedure with respect to this aspect of the case would be to reverse the judgment of the Court of Appeals for the Sixth Circuit and remand the case to it for such further proceedings in connection with the work product claim as are consistent with this opinion. Accordingly, the judgment of the Court of Appeals is reversed, and the case remanded for further proceedings. It is so ordered. [ Footnote 1 ] On July 28, 1976, the company filed an amendment to this report disclosing further payments. [ Footnote 2 ] The Government argues that the risk of civil or criminal liability suffices to ensure that corporations will seek legal advice in the absence of the protection of the privilege. This response ignores the fact that the depth and quality of any investigations to ensure compliance with the law would suffer, even were they undertaken. The response also proves too much, since it applies to all communications covered by the privilege: an individual trying to comply with the law or faced with a legal problem also has strong incentive to disclose information to his lawyer, yet the common law has recognized the value of the privilege in further facilitating communications. [ Footnote 3 ] Seven of the eighty-six employees interviewed by counsel had terminated their employment with Upjohn at the time of the interview. App. 33a-38a. Petitioners argue that the privilege should nonetheless apply to communications by these former employees concerning activities during their period of employment. Neither the District Court nor the Court of Appeals had occasion to address this issue, and we decline to decide it without the benefit of treatment below. [ Footnote 4 ] See id. at 26a-27a, 103a, 123a-124a. See also In re Grand Jury Investigation, 599 F.2d 1224, 1229 (CA3 1979); In re Grand Jury Subpoena, 599 F.2d 504, 511 (CA2 1979). [ Footnote 5 ] See Magistrate's opinion, 71 USTC � 9277, p. 83,599: "The responses to the questionnaires and the notes of the interviews have been treated as confidential material, and have not been disclosed to anyone except Mr. Thomas and outside counsel." [ Footnote 6 ] The following discussion will also be relevant to counsel's notes and memoranda of interviews with the seven former employees should it be determined that the attorney-client privilege does not apply to them. See n 3, supra. [ Footnote 7 ] This provides, in pertinent part: "[A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." [ Footnote 8 ] Thomas described his notes of the interviews as containing "what I considered to be the important questions, the substance of the responses to them, my beliefs as to the importance of these, my beliefs as to how they related to the inquiry, my thoughts as to how they related to other questions. In some instances, they might even suggest other questions that I would have to ask or things that I needed to find elsewhere." 78-1 USTC � 9277, p. 83,599. CHIEF JUSTICE BURGER, concurring in part and concurring in the judgment. I join in Parts I and III of the opinion of the Court and in the judgment. As to Part II, I agree fully with the Court's rejection of the so-called "control group" test, its reasons for doing so, and its ultimate holding that the communications at issue are privileged. As the Court states, however, "if the purpose of the attorney-client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected." Ante at 449 U. S. 393 . For this very reason, I believe that we should articulate a standard that will govern similar cases and afford guidance to corporations, counsel advising them, and federal courts. The Court properly relies on a variety of factors in concluding that the communications now before us are privileged. See ante at 449 U. S. 394 -395. Because of the great importance of the issue, in my view, the Court should make clear now that, as a Page 449 U. S. 403 general rule, a communication is privileged at least when, as here, an employee or former employee speaks at the direction of the management with an attorney regarding conduct or proposed conduct within the scope of employment. The attorney must be one authorized by the management to inquire into the subject, and must be seeking information to assist counsel in performing any of the following functions: (a) evaluating whether the employee's conduct has bound or would bind the corporation; (b) assessing the legal consequences, if any, of that conduct; or (c) formulating appropriate legal responses to actions that have been or may be taken by others with regard to that conduct. See, e.g., Diversified Industries, Inc. v. Meredith, 572 F.2d 596, 609 (CA8 1978) (en banc); Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 491-492 (CA7 1970), aff'd by an equally divided Court, 400 U. S. 348 (1971); Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146 , 1163-1165 (SC 1974). Other communications between employees and corporate counsel may indeed be privileged -- as the petitioners and several amici have suggested in their proposed formulations * -- but the need for certainty does not compel us now to prescribe all the details of the privilege in this case. Nevertheless, to say we should not reach all facets of the privilege does not mean that we should neglect our duty to provide guidance in a case that squarely presents the question in a traditional adversary context. Indeed, because Federal Rule of Evidence 501 provides that the law of privileges "shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience," this Court has a special duty to clarify aspects of the law of privileges properly Page 449 U. S. 404 before us. Simply asserting that this failure "may to some slight extent undermine desirable certainty," ante at 449 U. S. 396 , neither minimizes the consequences of continuing uncertainty and confusion nor harmonizes the inherent dissonance of acknowledging that uncertainty while declining to clarify it within the frame of issues presented. * See Brief for Petitioners 21-23, and n. 25; Brief for American Bar Association as Amicus Curiae 5-6, and n. 2; Brief for American College of Trial Lawyers and 33 Law Firms as Amici Curiae 10, and n. 5.

In Upjohn Co. v. United States, the Supreme Court held that communications between a corporation's employees and its counsel are protected by attorney-client privilege if they are made to assist counsel in providing legal advice to the company. The Court rejected the "control group test," which limited the privilege to communications involving high-level executives, and instead focused on the purpose of the privilege, which includes protecting the giving of information to lawyers to enable them to provide informed legal advice. The Court also addressed the work product doctrine, which was not applicable to IRS summonses, and provided guidance on determining when a communication is privileged. Justice Brennan, in a concurring opinion, emphasized the need for clarity and certainty in the law of privileges, particularly in the context of corporate counsel.

Lawsuits & Legal Procedures

Insurance Corp. of Ireland v. Compagnie des Bauxites

https://supreme.justia.com/cases/federal/us/456/694/

U.S. Supreme Court Ins. Co. of Ireland v. Compagnie Des Bauxites, 456 U.S. 694 (1982) Insurance Corporation of Ireland, Ltd. v. Compagnie des Bauxites de Guinee No. 81-440 Argued March 23, 1982 Decided June 1, 1982 456 U.S. 694 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Syllabus Federal Rule of Civil Procedure 37(b)(2)(A) provides that a district court, as a sanction for failure to comply with discovery orders, may enter "[a]n order that the matters regarding which the [discovery] order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order." Asserting diversity jurisdiction, respondent, a Delaware corporation with its principal place of business in the Republic of Guinea, filed suit against various insurance companies in the United States District Court for the Western District of Pennsylvania to recover on a business interruption policy. When certain of the defendants (a group of foreign insurance companies, including petitioners) raised the defense of lack of personal jurisdiction, respondent attempted to use discovery in order to establish jurisdictional facts. After petitioners repeatedly failed to comply with the court's orders for production of the requested information, the court warned them that, unless they complied by a specified date, it would assume, pursuant to Rule 37(b)(2)(A), that it had personal jurisdiction. When petitioners again failed to comply, the court imposed the sanction, and the Court of Appeals affirmed, concluding that imposition of the sanction fell within the trial court's discretion under Rule 37(b)(2)(A) and that the sanction did not violate petitioners' due process rights. Held: 1. Rule 37(b)(2)(A) may be applied to support a finding of personal jurisdiction without violating due process. Unlike subject matter jurisdiction, which is an Art. III as well as a statutory requirement, the requirement that a court have personal jurisdiction flows from the Due Process Clause and protects an individual liberty interest. Because it protects an individual interest, it may be intentionally waived, or, for various reasons, a defendant may be estopped from raising the issue. Due process is violated by a rule establishing legal consequences of a failure to produce evidence only if the defendant's behavior will not support the presumption that "the refusal to produce evidence material to the administration of due process was but an admission of the want of merit in Page 456 U. S. 695 the asserted defense." Hammond Packing Co. v. Arkansas, 212 U. S. 322 , 212 U. S. 351 . A proper application of Rule 37(b)(2)(A) will, as a matter of law, support such a presumption. Pp. 456 U. S. 701 -707. 2. The District Court did not abuse its discretion in applying Rule 37(b)(2)(A) in this case. The record establishes that imposition of the sanction here satisfied the Rule's requirements that the sanction be both "just" and specifically related to the particular "claim" that was at issue in the discovery order. Pp. 456 U.S. 707 -709. 651 F.2d 877, affirmed. WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. POWELL, J., filed an opinion concurring in the judgment, post, p. 456 U. S. 709 . JUSTICE WHITE delivered the opinion of the Court. Rule 37(b), Federal Rules of Civil Procedure, provides that a district court may impose sanctions for failure to comply with discovery orders. Included among the available sanctions is: "An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order." Rule 37(b)(2)(A). The question presented by this case is whether this Rule is applicable to facts that form the basis for personal jurisdiction over a defendant. May a district court, as a sanction for failure to comply with a discovery order directed at establishing jurisdictional facts, proceed on the basis that personal jurisdiction over the recalcitrant party has been established? Page 456 U. S. 696 Petitioners urge that such an application of the Rule would violate due process: if a court does not have jurisdiction over a party, then it may not create that jurisdiction by judicial fiat. [ Footnote 1 ] They contend also that, until a court has jurisdiction over a party, that party need not comply with orders of the court; failure to comply, therefore, cannot provide the ground for a sanction. In our view, petitioners are attempting to create a logical conundrum out of a fairly straightforward matter. I Respondent Compagnie des Bauxites de Guinee (CBG) is a Delaware corporation, 49% of which is owned by the Republic of Guinea and 51% is owned by Halco (Mining) Inc. CBG's principal place of business is in the Republic of Guinea, where it operates bauxite mines and processing facilities. Halco, which operates in Pennsylvania, has contracted to perform certain administrative services for CBG. These include the procurement of insurance. In 1973, Halco instructed an insurance broker, Marsh & McLennan, to obtain $20 million worth of business interruption insurance to cover CBG's operations in Guinea. The first half of this coverage was provided by the Insurance Company of North America (INA). The second half, or what is referred to as the "excess" insurance, was provided by a group of 21 foreign insurance companies, [ Footnote 2 ] 14 of which are petitioners in this action (the excess insurers). [ Footnote 3 ] Page 456 U. S. 697 Marsh & McLennan requested Bland Payne to obtain the excess insurance in the London insurance market. Pursuant to normal business practice, "[i]n late January and in February, 1974, Bland Payne presented to the excess insurer [petitioners] a placing slip in the amount of $10,000,000, in excess of the first $10,000,000. [Petitioners] initialed said placing slip, effective February 12, 1974, indicating the part of said $10,000,000 each was willing to insure. [ Footnote 4 ]" Finding 27 of the District Court, 2 App. 347a. Once the offering was fully subscribed, Bland Payne issued a cover note indicating the amount of the coverage and specifying the percentage of the coverage that each excess insurer had agreed to insure. No separate policy was issued; the excess insurers adopted the INA policy "as far as applicable." Sometime after February 12, CBG allegedly experienced mechanical problems in its Guinea operation, resulting in a business interruption loss in excess of $10 million. Contending that the loss was covered under its policies, CBG brought suit when the insurers refused to indemnify CBG for the loss. Whatever the mechanical problems experienced by CBG, they were perhaps minor compared to the legal difficulties encountered in the courts. Page 456 U. S. 698 In December, 1975, CBG filed a two-count suit in the Western District of Pennsylvania, asserting jurisdiction based on diversity of citizenship. The first count was against INA; the second against the excess insurers. INA did not challenge personal or subject matter jurisdiction of the District Court. The answer of the excess insurers, however, raised a number of defenses, including lack of in personam jurisdiction. Subsequently, this alleged lack of personal jurisdiction became the basis of a motion for summary judgment filed by the excess insurers. [ Footnote 5 ] The issue in this case requires an account of respondent's attempt to use discovery in order to demonstrate the court's personal jurisdiction over the excess insurers. Respondent's first discovery request -- asking for "[c]opies of all business interruption insurance policies issued by Defendant during the period from January 1, 1972, to December 31, 1975" -- was served on each defendant in August, 1976. In January, 1977, the excess insurers objected, on grounds of burdensomeness, to producing such policies. Several months later, respondent filed a motion to compel petitioners to produce the requested documents. In June, 1978, the court orally overruled petitioners' objections. This was followed by a second discovery request in which respondent narrowed the files it was seeking to policies which "were delivered in . . . Pennsylvania . . . or covered a risk located in . . . Pennsylvania." Petitioners now objected that these documents were not in their custody or control; rather, they were kept by the brokers in London. The court ordered petitioners to request the information from the brokers, limiting the request to policies covering the period from 1971 to date. That was in July, 1978; petitioners were given 90 days to produce the information. On November 8, petitioners Page 456 U. S. 699 were given an additional 30 days to complete discovery. On November 24, petitioners filed an affidavit offering to make their records, allegedly some 4 million files, available at their offices in London for inspection by respondent. Respondent countered with a motion to compel production of the previously requested documents. On December 21, 1978, the court, noting that no conscientious effort had yet been made to produce the requested information and that no objection had been entered to the discovery order in July, gave petitioners 60 more days to produce the requested information. The District Judge also issued the following warning: [I]f you don't get it to him in 60 days, I am going to enter an order saying that, because you failed to give the information as requested, that I am going to assume, under Rule of Civil Procedure 37(b), subsection 2(A), that there is jurisdiction. 1 App. 115a. A few moments later, he restated the warning as follows: "I will assume that jurisdiction is here with this court unless you produce statistics and other information in that regard that would indicate otherwise" Id. at 116a. On April 19, 1979, the court, after concluding that the requested material had not been produced, imposed the threatened sanction, finding that, "for the purpose of this litigation, the Excess Insurers are subject to the in personam jurisdiction of this Court due to their business contacts with Pennsylvania." Id. at 201a. Independently of the sanction, the District Court found two other grounds for holding that it had personal jurisdiction over petitioners. First, on the record established, it found that petitioners had sufficient business contacts with Pennsylvania to fall within the Pennsylvania long-arm statute. Second, in adopting the terms of the INA contract with CBG -- a Pennsylvania insurance contract -- the excess insurers implicitly agreed to submit to the jurisdiction of the court. [ Footnote 6 ] Page 456 U. S. 700 Except with respect to three excess insurers, the Court of Appeals for the Third Circuit affirmed the jurisdictional holding, relying entirely upon the validity of the sanction. [ Footnote 7 ] Compagnie des Bauxites de Guinea v. Insurance Co. of North America, 651 F.2d 877 (1981). That court specifically found that the discovery orders of the District Court did not constitute an abuse of discretion, and that imposition of the sanction fell within the limits of trial court discretion under Rule 37(b): "The purpose and scope of the ordered discovery were directly related to the issue of jurisdiction, and the rule 37 sanction was tailored to establish as admitted those jurisdictional facts that, because of the insurers' failure to comply with discovery orders, CBG was unable to adduce through discovery." 651 F.2d at 885. Furthermore, it held that the sanction did not violate petitioners' due process rights, because it was no broader than "reasonably necessary" under the circumstances. Because the decision below directly conflicts with the decision of the Court of Appeals for the Fifth Circuit in Familia de Boom v. Arosa Mercantil, S.A., 629 F.2d 1134 (1980), we granted certiorari. 454 U.S. 963 (1981). [ Footnote 8 ] Page 456 U. S. 701 II In McDonald v. Mabee, 243 U. S. 90 (1917), another case involving an alleged lack of personal jurisdiction, Justice Holmes wrote for the Court, "great caution should be used not to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact." Id. at 243 U. S. 91 . Petitioners' basic submission is that to apply Rule 37(b)(2) to jurisdictional facts is to allow fiction to get the better of fact, and that it is impermissible to use a fiction to establish judicial power where, as a matter of fact, it does not exist. In our view, this represents a fundamental misunderstanding of the nature of personal jurisdiction. The validity of an order of a federal court depends upon that court's having jurisdiction over both the subject matter and the parties. Stoll v. Gottlieb, 305 U. S. 165 , 305 U. S. 171 -172 (1938); Thompson v. Whitman , 18 Wall. 457, 85 U. S. 465 (1874). The concepts of subject matter and personal jurisdiction, however, serve different purposes, and these different purposes affect the legal character of the two requirements. Petitioners fail to recognize the distinction between the two concepts -- speaking instead in general terms of "jurisdiction" -- although their argument's strength comes from conceiving of jurisdiction only as subject matter jurisdiction. Federal courts are courts of limited jurisdiction. The character of the controversies over which federal judicial authority may extend are delineated in Art. III, § 2, cl. 1. Jurisdiction of the lower federal courts is further limited to those subjects encompassed within a statutory grant of jurisdiction. Again, this reflects the constitutional source of federal judicial power: apart from this Court, that power only Page 456 U. S. 702 exists "in such inferior Courts as the Congress may from time to time ordain and establish." Art. III, § 1 Subject matter jurisdiction, then, is an Art. III, as well as a statutory, requirement; it functions as a restriction on federal power, and contributes to the characterization of the federal sovereign. Certain legal consequences directly follow from this. For example, no action of the parties can confer subject matter jurisdiction upon a federal court. Thus, the consent of the parties is irrelevant, California v. LaRue, 409 U. S. 109 (1972), principles of estoppel do not apply, American Fire & Casualty Co. v. Finn, 341 U. S. 6 , 341 U. S. 17 -18 (1951), and a party does not waive the requirement by failing to challenge jurisdiction early in the proceedings. Similarly, a court, including an appellate court, will raise lack of subject matter jurisdiction on its own motion. "[T]he rule, springing from the nature and limits of the judicial power of the United States, is inflexible and without exception, which requires this court, of its own motion, to deny its jurisdiction and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record." Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 , 111 U. S. 382 (1884). [ Footnote 9 ] None of this is true with respect to personal jurisdiction. The requirement that a court have personal jurisdiction flows not from Art. III, but from the Due Process Clause: the personal jurisdiction requirement recognizes and protects an individual liberty interest. It represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty. [ Footnote 10 ] Thus, the test for personal jurisdiction Page 456 U. S. 703 requires that "the maintenance of the suit . . . not offend traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U. S. 310 , 326 U. S. 316 (1945), quoting Milliken v. Meyer, 311 U. S. 457 , 311 U. S. 463 (1940). Because the requirement of personal jurisdiction represents first of all an individual right, it can, like other such rights, be waived. In McDonald v. Mabee, supra, the Court indicated that, regardless of the power of the State to serve process, an individual may submit to the jurisdiction of the court by appearance. A variety of legal arrangements have been taken to represent express or implied consent to the personal jurisdiction of the court. In National Equipment Rental, Ltd. v. Szukhent, 375 U. S. 311 , 375 U. S. 316 (1964), we Page 456 U. S. 704 stated that "parties to a contract may agree in advance to submit to the jurisdiction of a given court," and, in Petrowski v. Hawkeye-Security Co., 350 U. S. 495 (1956), the Court upheld the personal jurisdiction of a District Court on the basis of a stipulation entered into by the defendant. In addition, lower federal courts have found such consent implicit in agreements to arbitrate. See Victory Transport Inc. v. Comisaria General de Abastecimientos y Transportes, 336 F.2d 354 (CA2 1964); 2 J. Moore & J. Lucas, Moore's Federal Practice � 4.02[3], n. 22 (1982), and cases listed there. Furthermore, the Court has upheld state procedures which find constructive consent to the personal jurisdiction of the state court in the voluntary use of certain state procedures. See Adam v. Saenger, 303 U. S. 59 , 303 U. S. 67 -68 (1938) ("There is nothing in the Fourteenth Amendment to prevent a state from adopting a procedure by which a judgment in personam may be rendered in a cross-action against a plaintiff in its courts. . . . It is the price which the state may exact as the condition of opening its courts to the plaintiff "); Chicago Life Ins. Co. v. Cherry, 244 U. S. 25 , 244 U. S. 29 -30 (1917) ("[W]hat acts of the defendant shall be deemed a submission to [a court's] power is a matter upon which States may differ"). Finally, unlike subject matter jurisdiction, which even an appellate court may review sua sponte, under Rule 12(h), Federal Rules of Civil Procedure, "[a] defense of lack of jurisdiction over the person . . . is waived" if not timely raised in the answer or a responsive pleading. In sum, the requirement of personal jurisdiction may be intentionally waived, or, for various reasons, a defendant may be estopped from raising the issue. These characteristics portray it for what it is -- a legal right protecting the individual. The plaintiff's demonstration of certain historical facts may make clear to the court that it has personal jurisdiction over the defendant as a matter of law -- i.e., certain factual showings will have legal consequences -- but this is not the only way in which the personal jurisdiction of the court may arise. The actions of the defendant may amount to a legal submission Page 456 U. S. 705 to the jurisdiction of the court, whether voluntary or not. The expression of legal rights is often subject to certain procedural rules: the failure to follow those rules may well result in a curtailment of the rights. Thus, the failure to enter a timely objection to personal jurisdiction constitutes, under Rule 12(h)(1), a waiver of the objection. A sanction under Rule 37(b)(2)(A) consisting of a finding of personal jurisdiction has precisely the same effect. As a general proposition, the Rule 37 sanction applied to a finding of personal jurisdiction creates no more of a due process problem than the Rule 12 waiver. Although "a court cannot conclude all persons interested by its mere assertion of its own power," Chicago Life Ins. Co. v. Cherry, supra, at 244 U. S. 29 , not all rules that establish legal consequences to a party's own behavior are "mere assertions" of power. Rule 37(b)(2)(A) itself embodies the standard established in Hammond Packing Co. v. Arkansas, 212 U. S. 322 (1909), for the due process limits on such rules. [ Footnote 11 ] There the Court held that it did not violate due process for a state court to strike the answer and render a default judgment against a defendant who failed to comply with a pretrial discovery order. Such a rule was permissible as an expression of "the undoubted right of the lawmaking power to create a presumption of fact as to the bad faith and untruth of an answer begotten from the suppression or failure to produce the proof ordered. . . . [T]he preservation of due process was secured by the presumption that the refusal to produce evidence material to the administration of due process was but an admission of the want of merit in the asserted defense." Id. at 212 U. S. 350 -351. Page 456 U. S. 706 The situation in Hammond was specifically distinguished from that in Hovey v. Elliott, 167 U. S. 409 (1897), in which the Court held that it did violate due process for a court to take similar action as "punishment" for failure to obey an order to pay into the registry of the court a certain sum of money. Due process is violated only if the behavior of the defendant will not support the Hammond Packing presumption. A proper application of Rule 37(b)(2) will, as a matter of law, support such a presumption. See Societe Internationale v. Rogers, 357 U. S. 197 , 357 U. S. 209 -213 (1958). If there is no abuse of discretion in the application of the Rule 37 sanction, as we find to be the case here ( see 456 U. S. then the sanction is nothing more than the invocation of a legal presumption, or what is the same thing, the finding of a constructive waiver. Petitioners argue that a sanction consisting of a finding of personal jurisdiction differs from all other instances in which a sanction is imposed, including the default judgment in Hammond Packing, because a party need not obey the orders of a court until it is established that the court has personal jurisdiction over that party. If there is no obligation to obey a judicial order, a sanction cannot be applied for the failure to comply. Until the court has established personal jurisdiction, moreover, any assertion of judicial power over the party violates due process. This argument again assumes that there is something unique about the requirement of personal jurisdiction which prevents it from being established or waived like other rights. A defendant is always free to ignore the judicial proceedings, risk a default judgment, and then challenge that judgment on jurisdictional grounds in a collateral proceeding. See Baldwin v. Traveling Men's Assn., 283 U. S. 522 , 283 U. S. 525 (1931). By submitting to the jurisdiction of the court for the limited purpose of challenging jurisdiction, the defendant agrees to abide by that court's determination on the issue of jurisdiction: that decision will be res judicata on that issue in any further proceedings. Id. at 283 U. S. 524 ; American Surety Co. Page 456 U. S. 707 v. Baldwin, 287 U. S. 156 , 287 U. S. 166 (1932). As demonstrated above, the manner in which the court determines whether it has personal jurisdiction may include a variety of legal rules and presumptions, as well as straightforward factfinding. A particular rule may offend the due process standard of Hammond Packing, but the mere use of procedural rules does not, in itself, violate the defendant's due process rights. III Even if Rule 37(b)(2) may be applied to support a finding of personal jurisdiction, the question remains as to whether it was properly applied under the circumstances of this case. Because the District Court's decision to invoke the sanction was accompanied by a detailed explanation of the reasons for that order, and because that decision was upheld as a proper exercise of the District Court's discretion by the Court of Appeals, this issue need not detain us for long. What was said in National Hockey League v. Metropolitan Hockey Club, Inc., 427 U. S. 639 , 427 U. S. 642 (1976), is fully applicable here: "The question, of course, is not whether this Court, or whether the Court of Appeals, would, as an original matter, have [applied the sanction]; it is whether the District Court abused its discretion in so doing." (Citations omitted.) For the reasons that follow, we hold that it did not. Rule 37(b)(2) contains two standards -- one general and one specific -- that limit a district court's discretion. First, any sanction must be "just"; second, the sanction must be specifically related to the particular "claim" which was at issue in the order to provide discovery. While the latter requirement reflects the rule of Hammond Packing, supra, the former represents the general due process restrictions on the court's discretion. In holding that the sanction in this case was "just," we rely specifically on the following. First, the initial discovery request was made in July, 1977. Despite repeated orders from the court to provide the requested material, on December 21, 1978, the District Court was able to state that the petitioners Page 456 U. S. 708 "haven't even made any effort to get this information up to this point." 1 App. 112a. The court then warned petitioners of a possible sanction. Confronted with continued delay and an obvious disregard of its orders, the trial court's invoking of its powers under Rule 37 was clearly appropriate. Second, petitioners repeatedly agreed to comply with the discovery orders within specified time periods. In each instance, petitioners failed to comply with their agreements. Third, respondent's allegation that the court had personal jurisdiction over petitioners was not a frivolous claim, and its attempt to use discovery to substantiate this claim was not, therefore, itself a misuse of judicial process. The substantiality of the jurisdictional allegation is demonstrated by the fact that the District Court found, as an alternative ground for its jurisdiction, that petitioners had sufficient contacts with Pennsylvania to fall within the State's long-arm statute. Supra at 456 U. S. 699 . Fourth, petitioners had ample warning that a continued failure to comply with the discovery orders would lead to the imposition of this sanction. Furthermore, the proposed sanction made it clear that, even if there was not compliance with the discovery order, this sanction would not be applied if petitioners were to "produce statistics and other information" that would indicate an absence of personal jurisdiction. 1 App. 116a. In effect, the District Court simply placed the burden of proof upon petitioners on the issue of personal jurisdiction. [ Footnote 12 ] Petitioners failed to comply with the discovery order; they also failed to make any attempt to meet this burden of proof. This course of behavior, coupled with the ample warnings, demonstrates the "justice" of the trial court's order. Neither can there be any doubt that this sanction satisfies the second requirement. CBG was seeking through discovery Page 456 U. S. 709 to respond to petitioners' contention that the District Court did not have personal jurisdiction. Having put the issue in question, petitioners did not have the option of blocking the reasonable attempt of CBG to meet its burden of proof. It surely did not have this option once the court had overruled petitioners' objections. Because of petitioners' failure to comply with the discovery orders, CBG was unable to establish the full extent of the contacts between petitioners and Pennsylvania, the critical issue in proving personal jurisdiction. Petitioners' failure to supply the requested information as to its contacts with Pennsylvania supports "the presumption that the refusal to produce evidence . . . was but an admission of the want of merit in the asserted defense." Hammond Packing, 212 U.S. at 212 U. S. 351 . The sanction took as established the facts -- contacts with Pennsylvania -- that CBG was seeking to establish through discovery. That a particular legal consequence -- personal jurisdiction of the court over the defendants -- follows from this does not in any way affect the appropriateness of the sanction. IV Because the application of a legal presumption to the issue of personal jurisdiction does not, in itself, violate the Due Process Clause, and because there was no abuse of the discretion granted a district court under Rule 37(b)(2), we affirm the judgment of the Court of Appeals. So ordered. [ Footnote 1 ] The petition with which we deal in this case was filed as a cross-petition in response to the petition for certiorari filed in No. 81-290, Compagnie des Bauxites de Guinee v. Insurance Corp. of Ireland, Ltd. We granted the cross-petition, limiting the grant to the question of the validity of the Rule 37(b)(2) sanction. 454 U.S. 963 (1981). We shall refer to the cross-petitioners as "petitioners" and to the cross-respondent as "respondent." [ Footnote 2 ] The District Court described these excess insurers as follows: "Of the 21 Excess Insurers, five are English companies representing English domestic interests but insuring risks throughout the world, particularly in Pennsylvania. Seven are English companies which represent non English parents, or affiliates. The United States, Japan and Israel are the nationalities of two each of the Excess Insurer Defendants. Switzerland and the Republic of Ireland are the nationalities of one each of the Excess Insurer Defendants. The remaining Excess Insurer Defendant is a Belgium Company which represents the United States parent." App. 196a. [ Footnote 3 ] Four of the excess insurers did not contest personal jurisdiction in the District Court. Id. at 105a. The Court of Appeals directed the dismissal of the complaint with respect to three others. Compagnie des Bauxites de Guinee v. Insurance Co. of North America, 651 F.2d 877, 886 (1981). CBG challenges the latter action in its petition for certiorari in No. 81-290. [ Footnote 4 ] One of the excess insurers, L'Union Atlantique S.A. d'Assurances, does business in Brussels, and was sent a separate placing slip. [ Footnote 5 ] The motion for summary judgment was filed on May 20, 1977. In it, 17 of the excess insurers alleged a lack of in personam jurisdiction and all 21 excess insurers sought dismissal on the ground of forum non conveniens. The District Court denied the motion on April 19, 1979. [ Footnote 6 ] On March 22, 1979, the excess insurers instituted a suit against CBG in England, attacking the validity of the insurance contract. In its April 19 decision, the District Court found that "the commencement of the separate action in England [was] oppressive, unfair, and an act of bad faith under all of the circumstances." 1 App. 203a. It,therefore enjoined the continuation of that suit. This aspect of the District Court decision was reversed by the Court of Appeals. Respondent seeks certiorari review of that decision ( see n 1, supra ). [ Footnote 7 ] It reversed as to three of the excess insurers on the grounds that they had complied with the discovery orders and that their contacts with Pennsylvania were not sufficient to justify exercise of the Pennsylvania long-arm statute. It also held that the District Court had abused its discretion in enjoining the action in England. Judge Gibbons dissented on the propriety of the sanction, arguing that the District Court had abused its discretion. He also expressed some doubt that a Rule 37 sanction could ever be used as the source of personal jurisdiction. 651 F.2d at 892, n. 4. [ Footnote 8 ] In Familia de Boom, the Fifth Circuit held that a sanction under Rule 37(b)(2) is valid only if the court has personal jurisdiction over the party that has refused compliance with a court order. Personal jurisdiction must, it held, appear from the record independently of the sanction. The Courts of Appeals for the Fourth and Eighth Circuits, on the other hand, have agreed with the Third Circuit on the appropriateness of a sanction on the issue of personal jurisdiction. Lekkas v. Liberian MIV Caledonia, 443 F.2d 10, 11 (CA4 1971); English v. 21st Phoenix Corp., 590 F.2d 723 (CA8 1979). [ Footnote 9 ] A party that has had an opportunity to litigate the question of subject matter jurisdiction may not, however, reopen that question in a collateral attack upon an adverse judgment. It has long been the rule that principles of res judicata apply to jurisdictional determinations -- both subject matter and personal. See Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371 (1940); Stoll v. Gottlieb, 305 U. S. 165 (1938). [ Footnote 10 ] It is true that we have stated that the requirement of personal jurisdiction, as applied to state courts, reflects an element of federalism and the character of state sovereignty vis-a-vis other States. For example, in World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286 , 444 U. S. 291 -292 (1980), we stated: "[A] state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist 'minimum contacts' between the defendant and the forum State. The concept of minimum contacts, in turn, can be seen to perform two related, but distinguishable, functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system." (Citation omitted.) Contrary to the suggestion of JUSTICE POWELL, post at 713-714, our holding today does not alter the requirement that there be "minimum contacts" between the nonresident defendant and the forum State. Rather, our holding deals with how the facts needed to show those "minimum contacts" can be established when a defendant fails to comply with court-ordered discovery. The restriction on state sovereign power described in World-Wide Volkswagen Corp., however, must be seen as ultimately a function of the individual liberty interest preserved by the Due Process Clause. That Clause is the only source of the personal jurisdiction requirement, and the Clause itself makes no mention of federalism concerns. Furthermore, if the federalism concept operated as an independent restriction on the sovereign power of the court, it would not be possible to waive the personal jurisdiction requirement: individual actions cannot change the powers of sovereignty, although the individual can subject himself to powers from which he may otherwise be protected. [ Footnote 11 ] The Advisory Committee Notes to the Rule specifically stated that "the provisions of the rule find support in [ Hammond Packing Co. v. Arkansas, 212 U. S. 322 (1909)]." Final Report of Advisory Committee on Rules for Civil Procedure 25 (1937). See also Societe Internationale v. Rogers, 357 U. S. 197 , 357 U. S. 209 (1958). [ Footnote 12 ] Counsel for petitioners agreed to this characterization of the sanction at oral argument. Tr. of Oral Arg. 47-48. JUSTICE POWELL, concurring in the judgment. The Court rests today's decision on a constitutional distinction between "subject matter" and " in personam " jurisdiction. Under this distinction, subject matter jurisdiction defines an Art. III limitation on the power of federal courts. By contrast, the Court characterizes the limits on in personam jurisdiction solely in terms of waivable personal rights and notions of "fair play." Having done so, it determines Page 456 U. S. 710 that fundamental questions of judicial power do not arise in this case concerning the personal jurisdiction of a federal district court. In my view, the Court's broadly theoretical decision misapprehends the issues actually presented for decision. Federal courts are courts of limited jurisdiction. Their personal jurisdiction, no less than their subject matter jurisdiction, is subject both to constitutional and to statutory definition. When the applicable limitations on federal jurisdiction are identified, it becomes apparent that the Court's theory could require a sweeping, but largely unexplicated, revision of jurisdictional doctrine. This revision could encompass not only the personal jurisdiction of federal courts but "sovereign" limitations on state jurisdiction as identified in World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286 , 444 U. S. 291 -293 (1980). Fair resolution of this case does not require the Court's broad holding. Accordingly, although I concur in the Court's judgment, I cannot join its opinion. I This lawsuit began when the respondent Compagnie des Bauxites brought a contract action against the petitioner insurance companies in the United States District Court for the Western District of Pennsylvania. Alleging diversity jurisdiction, respondent averred that the District Court had personal jurisdiction of the petitioners, all foreign corporations, under the long-arm statute of the State of Pennsylvania. See Compagnie des Bauxites de Guinea v. Insurance Co. of North America, 651 F.2d 877, 880-881 (CA3 1981). Petitioners, however, denied that they were subject to the court's personal jurisdiction under that or any other statute. Viewing the question largely as one of fact, the court ordered discovery to resolve the dispute. Meantime, while respondent unsuccessfully sought compliance with its discovery requests, petitioners brought a parallel action in England's High Court of Justice, Queens Bench Page 456 U. S. 711 Division. It was at this juncture that the current issues arose. Seeking to enjoin the English proceedings, respondent sought an injunction in the District Court. Petitioners protested that they were not subject to that court's personal jurisdiction, and thus that they lay beyond its injunctive powers. But the District Court disagreed. As a jurisdictional prerequisite to its entry of the injunction, the court upheld its personal jurisdiction over petitioners. [ Footnote 2/1 ] It characterized its finding of jurisdiction partly as a sanction for petitioners' noncompliance with its discovery orders under Federal Rule of Civil Procedure 37(b). [ Footnote 2/2 ] Rule 37(b) is not, however, a jurisdictional provision. As recognized by the Court of Appeals, the governing jurisdictional statute remains the long-arm statute of the State of Pennsylvania. See 651 F.2d at 881. In my view, the Court fails to make clear the implications of this central fact: that the District Court in this case relied on state law to obtain personal jurisdiction. As courts of limited jurisdiction, the federal district courts possess no warrant to create jurisdictional law of their own. Under the Rules of Decision Act, 28 U.S.C. § 1652, they must apply state law "except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide. . . ." See generally Erie R. Co. v. Tompkins, 304 U. S. 64 (1938). Thus, in the absence of a federal rule or statute establishing a federal basis for the assertion of personal jurisdiction, the personal jurisdiction of the district courts is determined in diversity cases by the law of the forum State. See, e.g., Intermeat, Inc. v. American Poultry Co., 575 F.2d 1017 (CA2 1978); Wilkerson v. Fortuna Corp., Page 456 U. S. 712 554 F.2d 745 (CA5), cert. denied, 434 U.S. 939 (1977); Poyner v. Erma Werke Gmbh, 618 F.2d 1186, 1187 (CA6 1980); Lakeside Bridge & Steel Co. v. Mountain State Constr. Co., 597 F.2d 596 (CA7 1979), cert. denied, 445 U. S. 907 (1980); Lakota Girl Scout Council, Inc. v. Havey Fundraising Management, Inc., 519 F.2d 634 (CA8 1975); Arrowsmith v. United Press International, 320 F.2d 219, 226 (CA2 1963); Forsythe v. Overmyer, 576 F.2d 779, 782 (CA9), cert. denied, 439 U.S. 864 (1978); Quarles v. Fuqua Industries, Inc., 504 F.2d 1358 (CA10 1974). [ Footnote 2/3 ] As a result of the District Court's dependence on the law of Pennsylvania to establish personal jurisdiction -- a dependence mandated by Congress under 28 U.S.C. § 1652 -- its jurisdiction in this case normally would be subject to the same due process limitations as a state court. See, e.g., Forsythe v. Overmyer, supra, at 782; Washington v. Norton Mfg., Inc., 588 F.2d 441, 445 (CA5 1979); Fisons Ltd. v. United States, 458 F.2d 1241, 1250 (CA7 1972). [ Footnote 2/4 ] Thus, the question arises how today's decision is related to cases restricting the personal jurisdiction of the States. Before today, our decisions had established that "minimum contacts" represented a constitutional prerequisite to the exercise of in personam jurisdiction over an unconsenting defendant. See, e.g., World-Wide Volkswagen Corp. v. Woodson, Page 456 U. S. 713 444 U.S. at 444 U. S. 291 -293; Hanson v. Denckla, 357 U. S. 235 , 357 U. S. 251 (1958); International Shoe Co. v. Washington, 326 U. S. 310 , 326 U. S. 316 (1945). In the absence of a showing of minimum contacts, a finding of personal jurisdiction over an unconsenting defendant, even as a sanction, therefore would appear to transgress previously established constitutional limitations. The cases cannot be reconciled by a simple distinction between the constitutional limits on state and federal courts. Because of the District Court's reliance on the Pennsylvania long-arm statute -- the applicable jurisdictional provision under the Rules of Decisions Act -- the relevant constitutional limits would not be those imposed directly on federal courts by the Due Process Clause of the Fifth Amendment, but those applicable to state jurisdictional law under the Fourteenth. The Court's decision apparently must be understood as related to our state jurisdictional cases in one of two ways. Both involve legal theories that fail to justify the doctrine adopted by the Court in this case. A Under traditional principles, the due process question in this case is whether "minimum contacts" exist between petitioners and the forum State that would justify the State in exercising personal jurisdiction. See, e.g., World-Wide Volkswagen Corp. v. Woodson, supra, at 444 U. S. 291 -293; Shaffer v. Heitner, 433 U. S. 186 , 433 U. S. 216 (1977); Hanson v. Denckla, supra, at 357 U. S. 251 . By finding that the establishment of minimum contacts is not a prerequisite to the exercise of jurisdiction to impose sanctions under Federal Rule of Civil Procedure 37, the Court may be understood as finding that "minimum contacts" no longer are a constitutional requirement for the exercise by a state court of personal jurisdiction over an unconsenting defendant. [ Footnote 2/5 ] Whenever the Court's notions Page 456 U. S. 714 of fairness are not offended, jurisdiction apparently may be upheld. Before today, of course, our cases had linked minimum contacts and fair play as jointly defining the "sovereign" limits on state assertions of personal jurisdiction over unconsenting defendants. See World-Wide Volkswagen Corp. v. Woodson, supra, at 444 U. S. 292 -293; see Hanson v. Denckla, supra, at 357 U. S. 251 . The Court appears to abandon the rationale of these cases in a footnote. See ante at 456 U. S. 702 -703, n. 10. But it does not address the implications of its action. By eschewing reliance on the concept of minimum contacts as a "sovereign" limitation on the power of States -- for, again, it is the State's long-arm statute that is invoked to obtain personal jurisdiction in the District Court -- the Court today effects a potentially substantial change of law. For the first time, it defines personal jurisdiction solely by reference to abstract notions of fair play. And, astonishingly to me, it does so in a case in which this rationale for decision was neither argued nor briefed by the parties. B Alternatively, it is possible to read the Court opinion not as affecting state jurisdiction, but simply as asserting that Rule 37 of the Federal Rules of Civil Procedure represents a congressionally approved basis for the exercise of personal jurisdiction by a federal district court. On this view, Rule 37 vests the federal district courts with authority to take jurisdiction over persons not in compliance with discovery orders. This of course would be a more limited holding. Yet the Court does not cast its decision in these terms. And it provides no support for such an interpretation, either in the language or in the history of the Federal Rules. Page 456 U. S. 715 In the absence of such support, I could not join the Court in embracing such a construction of the Rules of Civil Procedure. [ Footnote 2/6 ] There is nothing in Rule 37 to suggest that it is intended to confer a grant of personal jurisdiction. Indeed, the clear language of Rule 82 seems to establish that Rule 37 should not be construed as a jurisdictional grant: "These rules shall not be construed to extend . . . the jurisdiction of the United States district courts or the venue of actions therein." Moreover, assuming that minimum contacts remain a constitutional predicate for the exercise of a State's in personam jurisdiction over an unconsenting defendant, constitutional questions would arise if Rule 37 were read to permit a plaintiff in a diversity action to subject a defendant to a "fishing expedition" in a foreign jurisdiction. A plaintiff is not entitled to discovery to establish essentially speculative allegations necessary to personal jurisdiction. Nor would the use of Rule 37 sanctions to enforce discovery orders constitute a mere abuse of discretion in such a case. [ Footnote 2/7 ] For me, at least, such a use of discovery would raise serious questions as to the constitutional, as well as the statutory, authority of a federal court -- in a diversity case -- to exercise personal jurisdiction Page 456 U. S. 716 absent some showing of minimum contacts between the unconsenting defendant and the forum State. II In this case, the facts alone -- unaided by broad jurisdictional theories -- more than amply demonstrate that the District Court possessed personal jurisdiction to impose sanctions under Rule 37, and otherwise to adjudicate this case. I would decide the case on this narrow basis. As recognized both by the District Court and the Court of Appeals, the respondent adduced substantial support for its jurisdictional assertions. By affidavit and other evidence, it made a prima facie showing of "minimum contacts." See 651 F.2d at 881-882, 886, and n. 9. In the view of the District Court, the evidence adduced actually was sufficient to sustain a finding of personal jurisdiction independently of the Rule 37 sanction. App. to Pet. for Cert. 51a, 53a. [ Footnote 2/8 ] Where the plaintiff has made a prima facie showing of minimum contacts, I have little difficulty in holding that its showing was sufficient to warrant the District Court's entry of discovery orders. And where a defendant then fails to comply with those orders, I agree that the prima facie showing may be held adequate to sustain the court's finding that minimum contacts exist, either under Rule 37 or under a theory of "presumption" or "waiver." Finding that the decision of the Court of Appeals should be affirmed on this ground, I concur in the judgment of the Court. [ Footnote 2/1 ] A district court must have personal jurisdiction over a party before it can enjoin its actions. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100 , 395 U. S. 111 -112 (1969). [ Footnote 2/2 ] The court also found that petitioners, in fact, had undertaken sufficient business activity in the State to bring them within the reach of the Pennsylvania long-arm statute. See App. to Pet. for Cert. 51a, 53a. [ Footnote 2/3 ] As Judge Friendly explained in the leading case of Arrowsmith v. United Press International, 320 F.2d at 226: "State statutes determining what foreign corporations may be sued, for what, and by whom, are not mere whimsy; like most legislation they represent a balancing of various considerations -- for example, affording a forum for wrongs connected with the state and conveniencing resident plaintiffs, while avoiding the discouragement of activity within the state by foreign corporations. We see nothing in the concept of diversity jurisdiction that should lead us to read into the governing statutes a Congressional mandate, unexpressed by Congress itself, to disregard the balance thus struck by the states." [ Footnote 2/4 ] It is not contended that there is any federal basis for the exercise of personal jurisdiction by the District Court. [ Footnote 2/5 ] The Court refers to the respondent's prima facie showing of "minimum contacts" only as one factor indicating that the District Court did not abuse its discretion in entering a finding of personal jurisdiction as a sanction under Rule 37(b). See ante at 456 U. S. 708 . Generally it views the requirement of personal jurisdiction as a right that may be "established or waived like other rights." Ante at 456 U. S. 706 . [ Footnote 2/6 ] Jurisdiction over the person generally is dealt with by Rule 4, governing the methods of service through which personal jurisdiction may be obtained. Although Rule 4 deals expressly only with service of process, not with the underlying jurisdictional prerequisites, jurisdiction may not be obtained unless process is served in compliance with applicable law. See, e.g., Intermeat, Inc. v. American Poultry Co., 575 F.2d 1017 (CA2 1978); Washington v. Norton Mfg., Inc., 588 F.2d 441, 445 (CA5 1979); D. Currie, Federal Courts 858 (2d ed.1975). For this reason, Rule 4 frequently has been characterized as a jurisdictional provision. See, e.g., 374 U.S. 869 (1963) (statement of Black and Douglas, JJ., dissenting from adoption of amendments to the Federal Rules of Civil Procedure); Currie, supra, at 858; Foster, Long-Arm Jurisdiction in Federal Courts, 1969 Wis.L.Rev. 9, 11. As applicable here, Rule 4 relies expressly on state law. See Fed.Rules Civ.Proc. 4(d)(7) and (e). [ Footnote 2/7 ] Compare the Court's view. Ante at 456 U.S. 707 . [ Footnote 2/8 ] The Court of Appeals deemed it unnecessary to review this alternative basis for the District Court's finding of jurisdiction. See 651 F.2d at 886, and n. 9.

In *Insurance Corporation of Ireland, Ltd. v. Compagnie des Bauxites de Guinee*, the Supreme Court held that Federal Rule of Civil Procedure 37(b)(2)(A) can be applied to establish personal jurisdiction without violating due process. The case involved a Delaware corporation suing insurance companies in Pennsylvania to recover on a business interruption policy. The defendants, a group of foreign insurance companies, argued a lack of personal jurisdiction, but the court found that their repeated failure to comply with discovery orders justified imposing sanctions under Rule 37(b)(2)(A), assuming personal jurisdiction. The Supreme Court affirmed, stating that personal jurisdiction is a waivable right and that due process is only violated if a defendant's behavior doesn't support the presumption that their refusal to produce evidence admits the lack of merit in their defense.

Lawsuits & Legal Procedures

Allstate Insurance Co. v. Hague

https://supreme.justia.com/cases/federal/us/449/302/

U.S. Supreme Court Allstate Ins. Co. v. Hague, 449 U.S. 302 (1980) Allstate Ins. Co. v. Hague No. 79938 Argued October 6, 1980 Decided January 13, 1981 449 U.S. 302 CERTIORARI TO THE SUPREME COURT OF MINNESOTA Syllabus Respondent's husband died of injuries suffered when a motorcycle on which he was a passenger was struck by an automobile. The accident occurred in Wisconsin near the Minnesota border. The operators of both vehicles were Wisconsin residents, as was the decedent, who, however, had been employed in Minnesota and had commuted daily to work from Wisconsin. Neither vehicle operator carried valid insurance, but the decedent held a policy issued by petitioner covering three automobiles owned by him and containing an uninsured motorist clause insuring him against loss incurred from accidents with uninsured motorists, but limiting such coverage to $15,000 for each automobile. After the accident, respondent moved to and became a resident of Minnesota, and was subsequently appointed in that State as personal representative of her husband's estate. She then brought an action in a Minnesota court seeking a declaration under Minnesota law that the $15,000 uninsured motorist coverage on each of her late husband's three automobiles could be "stacked" to provide total coverage of $45,000. Petitioner defended on the ground that whether the three uninsured motorist coverages could be stacked should be determined by Wisconsin law, since the insurance policy was delivered in Wisconsin, the accident occurred there, and all persons involved were Wisconsin residents at the time of the accident. The trial court, interpreting Wisconsin law to disallow stacking, concluded that Minnesota's choice of law rules required the application of Minnesota law permitting stacking, and granted summary judgment for respondent. The Minnesota Supreme Court affirmed. Held: The judgment is affirmed. Pp. 449 U. S. 307 -320; 449 U. S. 322 -331. 289 N.W.2d 43 , affirmed. JUSTICE BRENNAN, joined by JUSTICE WHITE, JUSTICE MARSHALL, and JUSTICE BLACKMUN, concluded that Minnesota has a significant aggregation of contacts with the parties and the occurrence, creating state interests, such that application of its law is neither arbitrary nor fundamentally unfair, and, accordingly, the choice of law by the Minnesota Supreme Court does not violate the Due Process Clause of the Fourteenth Amendment or the Full Faith and Credit Clause. Pp. 449 U. S. 307 -320. Page 449 U. S. 303 (a) Respondent's decedent was a member of Minnesota's workforce. The State of employment has police power responsibilities towards nonresident employees that are analogous to those it has towards residents, as such employees use state services and amenities and may call upon state facilities in appropriate circumstances. Also, the State's interest in its commuting nonresident employees, such as respondent's decedent, reflects a state concern for the safety and wellbeing of its workforce and the concomitant effect on Minnesota employers. That the decedent was not killed while commuting to work or while in Minnesota does not dictate a different result, since vindication of the rights of the estate of a Minnesota employee is an important state concern. Nor does the decedent's residence in Wisconsin constitutionally mandate application of Wisconsin law to the exclusion of forum law. Employment status is not a sufficiently less important status than residence, when combined with the decedent's daily commute across state lines and the other Minnesota contacts present, to prohibit the choice of law result in this case on constitutional grounds. Pp. 449 U. S. 313 -317. (b) Petitioner was at all times present and doing business in Minnesota. By virtue of such presence, petitioner can hardly claim unfamiliarity with the laws of the host jurisdiction and surprise that the state courts might apply forum law to litigation in which the company is involved. Moreover, such presence gave Minnesota an interest in regulating the company's insurance obligations insofar as they affected both a Minnesota resident and court-appointed representative (respondent) and a longstanding member of Minnesota's workforce (respondent's decedent). Pp. 449 U. S. 317 -318. (c) Respondent became a Minnesota resident prior to institution of the instant litigation. Such residence and subsequent appointment in Minnesota as personal representative of her late husband's estate constitute a Minnesota contact which gives Minnesota an interest in respondent's recovery. Pp. 449 U. S. 318 -319. JUSTICE STEVENS concluded: 1. The Full Faith and Credit Clause did not require Minnesota, the forum State, to apply Wisconsin law to the contract interpretation question presented. Although the Minnesota courts' decision to apply Minnesota law was unsound as a matter of conflicts law, no threat to Wisconsin's sovereignty ensued from allowing the substantive question as to the meaning of the insurance contract to be determined by the law of another State. Pp. 449 U. S. 322 -326. 2. The Due Process Clause of the Fourteenth Amendment did not prevent Minnesota from applying its own law. Neither the "stacking" rule itself nor Minnesota's application of it to these litigants raised any Page 449 U. S. 304 serious question of fairness. Nor did the Minnesota courts' decision to apply this rule violate due process because that decision frustrated the contracting parties' reasonable expectations. The decision was consistent with due process because it did not result unfairness to either litigant, not because Minnesota had an interest in the plaintiff as resident or the decedent as employee. Pp. 449 U. S. 326 -331. BRENNAN, J., announced the judgment of the Court and delivered an opinion, in which WHITE, MARSHALL, and BLACKMUN, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, post, p. 449 U. S. 320 . POWELL, J., filed a dissenting opinion, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 449 U. S. 332 . STEWART, J., took no part in the consideration or decision of the case. JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion, in which JUSTICE WHITE, JUSTICE MARSHALL, and JUSTICE BLACKMUN joined. This Court granted certiorari to determine whether the Due Process Clause of the Fourteenth Amendment [ Footnote 1 ] or the Full Faith and Credit Clause of Art. IV, § 1, [ Footnote 2 ] of the United States Constitution bars the Minnesota Supreme Court's choice of substantive Minnesota law to govern the effect of a provision in an insurance policy issued to respondent's decedent. 44 U.S. 1070 (1980). Page 449 U. S. 305 I Respondent's late husband, Ralph Hague, died of injuries suffered when a motorcycle on which he was a passenger was struck from behind by an automobile. The accident occurred in Pierce County, Wis., which is immediately across the Minnesota border from Red Wing, Minn. The operators of both vehicles were Wisconsin residents, as was the decedent, who, at the time of the accident, resided with respondent in Hager City, Wis., which is one and one-half miles from Red Wing. Mr. Hague had been employed in Red Wing for the 15 years immediately preceding his death and had commuted daily from Wisconsin to his place of employment. Neither the operator of the motorcycle nor the operator of the automobile carried valid insurance. However, the decedent held a policy issued by petitioner Allstate Insurance Co. covering three automobiles owned by him and containing an uninsured motorist clause insuring him against loss incurred from accidents with uninsured motorists. The uninsured motorist coverage was limited to §15,000 for each automobile. [ Footnote 3 ] After the accident, but prior to the initiation of this lawsuit, respondent moved to Red Wing. Subsequently, she married a Minnesota resident and established residence with her new husband in Savage, Minn. At approximately the same time, a Minnesota Registrar of Probate appointed respondent personal representative of her deceased husband's estate. Following her appointment, she brought this action in Minnesota District Court seeking a declaration under Minnesota law that the $15,000 uninsured motorist coverage on each of her late husband's three automobiles could be "stacked" to provide total coverage of $45,000. Petitioner defended on the ground that whether the three uninsured motorist Page 449 U. S. 306 coverages could be stacked should be determined by Wisconsin law, since the insurance policy was delivered in Wisconsin, the accident occurred in Wisconsin, and all persons involved were Wisconsin residents at the time of the accident. The Minnesota District Court disagreed. Interpreting Wisconsin law to disallow stacking, the court concluded that Minnesota's choice of law rules required the application of Minnesota law permitting stacking. The court refused to apply Wisconsin law as "inimical to the public policy of Minnesota," and granted summary judgment for respondent. [ Footnote 4 ] The Minnesota Supreme Court, sitting en banc, affirmed the District Court. [ Footnote 5 ] The court, also interpreting Wisconsin law to prohibit stacking, [ Footnote 6 ] applied Minnesota law after analyzing the relevant Minnesota contacts and interests within the analytical framework developed by Professor Leflar. [ Footnote 7 ] See Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L.Rev. 267 (1966). The state court, therefore, examined the conflict of laws issue in terms of (1) predictability of result, (2) maintenance of interstate order, (3) simplification of the judicial task, (4) advancement of the forum's governmental interests, and (5) application of the better rule of law. Although stating that the Minnesota contacts might not be, "in themselves, sufficient to mandate application of [Minnesota] law," [ Footnote 8 ] 289 N.W.2d 43 , 49 Page 449 U. S. 307 (1978), under the first four factors, the court concluded that the fifth factor -- application of the better rule of law -- favored selection of Minnesota law. The court emphasized that a majority of States allow stacking, and that legal decisions allowing stacking "are fairly recent and well considered in light of current uses of automobiles." Ibid. In addition, the court found the Minnesota rule superior to Wisconsin's "because it requires the cost of accidents with uninsured motorists to be spread more broadly through insurance premiums than does the Wisconsin rule." Ibid. Finally, after rehearing en banc, [ Footnote 9 ] the court buttressed its initial opinion by indicating "that contracts of insurance on motor vehicles are in a class by themselves," since an insurance company "knows the automobile is a movable item which will be driven from state to state." 289 N.W.2d at 50 (1979). From this premise, the court concluded that application of Minnesota law was "not so arbitrary and unreasonable as to violate due process." Ibid. II It is not for this Court to say whether the choice of law analysis suggested by Professor Leflar is to be preferred or whether we would make the same choice of law decision if sitting as the Minnesota Supreme Court. Our sole function is to determine whether the Minnesota Supreme Court's choice of its own substantive law in this case exceeded federal constitutional limitations. Implicit in this inquiry is the recognition, long accepted by this Court, that a set of facts giving rise to a lawsuit, or a particular issue within a lawsuit, may justify, in constitutional terms, application of the law of more than one jurisdiction. See, e.g., Watson v. Employers Liability Assurance Corp., 348 U. S. 66 , 348 U. S. 72 -73 (1954); n. 11, infra. See generally Clay v. Sun Insurance Office, Ltd. , 377 U.S. Page 449 U. S. 308 179, 377 U. S. 181 -182 (1964) (hereinafter cited as Clay II ). As a result, the forum State may have to select one law from among the laws of several jurisdictions having some contact with the controversy. In deciding constitutional choice of law questions, whether under the Due Process Clause or the Full Faith and Credit Clause, [ Footnote 10 ] this Court has traditionally examined the contacts of the State, whose law was applied, with the parties and with the occurrence or transaction giving rise to the litigation. See Clay II, supra at 377 U. S. 183 . In order to ensure that the choice of law is neither arbitrary nor fundamentally unfair, see Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U. S. 532 , 294 U. S. 542 (1935), the Court has invalidated the choice of law of a State which has had no significant contact or significant aggregation of contacts, creating state interests, with the parties and the occurrence or transaction. [ Footnote 11 ] Page 449 U. S. 309 Two instructive examples of such invalidation are Home Ins. Co. v. Dick, 281 U. S. 397 (1930), and John Hancock Mutual Life Ins. Co. v. Yates, 299 U. S. 178 (1936). In both cases, the selection of forum law rested exclusively on the presence of one nonsignificant forum contact. Home Ins. Co. v. Dick involved interpretation of an insurance policy which had been issued in Mexico, by a Mexican insurer, to a Mexican citizen, covering a Mexican risk. The policy was subsequently assigned to Mr. Dick, who was domiciled in Mexico and "physically present and acting in Mexico," 281 U.S. at 281 U. S. 408 , although he remained a nominal permanent resident of Texas. The policy restricted coverage to losses occurring in certain Mexican waters and, indeed, the loss occurred in those waters. Dick brought suit Page 449 U. S. 310 in Texas against a New York reinsurer. Neither the Mexican insurer nor the New York reinsurer had any connection to Texas. [ Footnote 12 ] The Court held that application of Texas law to void the insurance contract's limitation' of actions clause violated due process. [ Footnote 13 ] The relationship of the forum State to the parties and the transaction was similarly attenuated in John Hancock Mutual Life Ins. Co. v. Yates. There, the insurer, a Massachusetts corporation, issued a contract of insurance on the life of a New York resident. The contract was applied for, issued, and delivered in New York, where the insured and his spouse resided. After the insured died in New York, his spouse moved to Georgia and brought suit on the policy in Georgia. Under Georgia law, the jury was permitted to take into account oral modifications when deciding whether an insurance policy application contained material misrepresentations. Under New York law, however, such misrepresentations were to be evaluated solely on the basis of the written application. The Georgia court applied Georgia law. This Court reversed, finding application of Georgia law to be unconstitutional. Dick and Yates stand for the proposition that, if a State has only an insignificant contact with the parties and the Page 449 U. S. 311 occurrence or transaction, application of its law is unconstitutional. [ Footnote 14 ] Dick concluded that nominal residence -- standing alone -- was inadequate; Yates held that a post-occurrence change of residence to the forum State -- standing alone -- was insufficient to justify application of forum law. Although instructive as extreme examples of selection of forum law, neither Dick nor Yates governs this case. For, in contrast to those decisions, here, the Minnesota contacts with the parties and the occurrence are obviously significant. Thus, this case is like Alaska Packers, Cardillo v. Liberty Mutual Ins. Co., 330 U. S. 469 (1947), and Clay II -- cases where this Court sustained choice of law decisions based on the contacts of the State, whose law was applied, with the parties and occurrence. In Alaska Packers, the Court upheld California's application of its Workmen's Compensation Act, where the most significant contact of the worker with California was his execution of an employment contract in California. The worker, a nonresident alien from Mexico, was hired in California for seasonal work in a salmon canning factory in Alaska. As part of the employment contract, the employer, who was doing business in California, agreed to transport the worker to Alaska and to return him to California when the work was completed. Even though the employee contracted to be bound by the Alaska Workmen's Compensation Law and was injured in Alaska, he sought an award under the California Workmen's Compensation Act. The Court held that the choice of California law was not "so arbitrary or unreasonable as to amount to a denial of due process," 294 U.S. at 249 U. S. 542 , because "[w]ithout a remedy in California, [he] would be remediless," ibid., and because of California's interest that the worker not become a public charge, ibid. [ Footnote 15 ] Page 449 U. S. 312 In Cardillo v. Liberty Mutual Ins. Co., supra, a District of Columbia resident, employed by a District of Columbia employer and assigned by the employer for the three years prior to his death to work in Virginia, was killed in an automobile crash in Virginia in the course of his daily commute home from work. The Court found the District's contacts with the parties and the occurrence sufficient to satisfy constitutional requirements, based on the employee's residence in the District, his commute between home and the Virginia workplace, and his status as an employee of a company "engaged in electrical construction work in the District of Columbia and surrounding areas." Id. at 330 U. S. 471 . [ Footnote 16 ] Similarly, Clay II upheld the constitutionality of the application of forum law. There, a policy of insurance had issued in Illinois to an Illinois resident. Subsequently the insured moved to Florida and suffered a property loss in Florida. Relying explicitly on the nationwide coverage of the policy and the presence of the insurance company in Florida and implicitly on the plaintiff's Florida residence and the occurrence of the property loss in Florida, the Court sustained the Florida court's choice of Florida law. The lesson from Dick and Yates, which found insufficient forum contacts to apply forum law, and from Alaska Packers, Cardillo, and Clay II, which found adequate contacts to sustain the choice of forum law, [ Footnote 17 ] is that for a State's substantive Page 449 U. S. 313 law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair. Application of this principle to the facts of this case persuades us that the Minnesota Supreme Court's choice of its own law did not offend the Federal Constitution. III Minnesota has three contacts with the parties and the occurrence giving rise to the litigation. In the aggregate, these contacts permit selection by the Minnesota Supreme Court of Minnesota law allowing the stacking of Mr. Hague's uninsured motorist coverages. First, and, for our purposes, a very important contact, Mr. Hague was a member of Minnesota's workforce, having been employed by a Red Wing, Minn., enterprise for the 15 Page 449 U. S. 314 years preceding his death. While employment status may implicate a state interest less substantial than does resident status, that interest is nevertheless important. The State of employment has police power responsibilities towards the nonresident employee that are analogous, if somewhat less profound, than towards residents. Thus, such employees use state services and amenities and may call upon state facilities in appropriate circumstances. In addition, Mr. Hague commuted to work in Minnesota, a contact which was important in Cardillo v. Liberty Mutual Ins. Co., 330 U.S. at 330 U. S. 475 -476 (daily commute between residence in District of Columbia and workplace in Virginia), and was presumably covered by his uninsured motorist coverage during the commute. [ Footnote 18 ] The State's interest in its commuting nonresident employees reflects a state concern for the safety and wellbeing of its workforce and the concomitant effect on Minnesota employers. That Mr. Hague was not killed while commuting to work or while in Minnesota does not dictate a different result. To hold that the Minnesota Supreme Court's choice of Minnesota law violated the Constitution for that reason would require too narrow a view of Minnesota's relationship with the parties and the occurrence giving rise to the litigation. An automobile accident need not occur within a particular jurisdiction for that jurisdiction to be connected to the occurrence. [ Footnote 19 ] Page 449 U. S. 315 Similarly, the occurrence of a crash fatal to a Minnesota employee in another State is a Minnesota contact. [ Footnote 20 ] If Mr. Hague had only been injured and missed work for a few weeks, the effect on the Minnesota employer would have been palpable, and Minnesota's interest in having its employee made whole would be evident. Mr. Hague's death affects Minnesota's interest still more acutely, even though Mr. Hague will not return to the Minnesota workforce. Minnesota's workforce is surely affected by the level of protection the State extends to it, either directly or indirectly. Vindication of the rights of the estate of a Minnesota employee, therefore, is an important state concern. Mr. Hague's residence in Wisconsin does not -- as Allstate seems to argue -- constitutionally mandate application of Wisconsin law to the exclusion of forum law. [ Footnote 21 ] If, in the instant Page 449 U. S. 316 case, the accident had occurred in Minnesota between Mr. Hague and an uninsured Minnesota motorist, if the insurance contract had been executed in Minnesota covering a Minnesota registered company automobile which Mr.Hague was permitted to drive, and if a Wisconsin court sought to apply Wisconsin law, certainly Mr. Hague's residence in Wisconsin, his commute between Wisconsin and Minnesota, and the insurer's presence in Wisconsin should be adequate to apply Wisconsin's law. [ Footnote 22 ] See generally Cardillo v. Liberty Page 449 U. S. 317 Mutual Ins. Co., supra; Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U. S. 532 (1935); Home Ins. Co. v. Dick, 281 U.S. at 281 U. S. 408 , n. 5. Employment status is not a sufficiently less important status than residence, see generally Carroll v. Lanza, 349 U. S. 408 (1955); Alaska Packers Assn. v. Industrial Accident Comm'n, supra, when combined with Mr. Hague's daily commute across state lines and the other Minnesota contacts present, to prohibit the choice of law result in this case on constitutional grounds. Second, Allstate was at all times present and doing business in Minnesota. [ Footnote 23 ] By virtue of its presence, Allstate can hardly claim unfamiliarity with the laws of the host jurisdiction and surprise that the state courts might apply forum law to litigation Page 449 U. S. 318 in which the company is involved. "Particularly since the company was licensed to do business in [the forum], it must have known it might be sued there, and that [the forum] courts would feel bound by [forum] law. [ Footnote 24 ]" Clay v. Sun Insurance Office, Ltd., 363 U. S. 207 , 363 U. S. 221 (1960) (Black, J., dissenting). [ Footnote 25 ] Moreover, Allstate's presence in Minnesota gave Minnesota an interest in regulating the company's insurance obligations insofar as they affected both a Minnesota resident and court-appointed representative -- respondent -- and a longstanding member of Minnesota's workforce -- Mr. Hague. See Hoopeston Canning Co. v. Cullen, 318 U. S. 313 , 318 U. S. 316 (1943). Third, respondent became a Minnesota resident prior to institution of this litigation. The stipulated facts reveal that she first settled in Red Wing, Minn., the town in which Page 449 U. S. 319 her late husband had worked. [ Footnote 26 ] She subsequently moved to Savage, Minn., after marrying a Minnesota resident who operated an automobile service station in Bloomington, Minn. Her move to Savage occurred "almost concurrently," 289 N.W.2d at 45, with the initiation of the instant case. [ Footnote 27 ] There is no suggestion that Mrs. Hague moved to Minnesota in anticipation of this litigation or for the purpose of finding a legal climate especially hospitable to her claim. [ Footnote 28 ] The stipulated facts, sparse as they are, negate any such inference. While John Hancock Mutual Life Ins. Co. v. Yates, 299 U. S. 178 (1936), held that a post-occurrence change of residence to the forum State was insufficient, in and of itself, to confer power on the forum State to choose its law, that case did not hold that such a change of residence was irrelevant. Here, of course, respondent's bona fide residence in Minnesota was not the sole contact Minnesota had with this litigation. And in connection with her residence in Minnesota, respondent was appointed personal representative of Mr. Hague's estate by the Registrar of Probate for the County of Goodhue, Minn. Respondent's residence and subsequent appointment in Minnesota as personal representative of her late husband's estate constitute a Minnesota contact which gives Minnesota an interest in respondent's recovery, an interest which the court below identified as full compensation for "resident accident victims" to keep them "off welfare rolls" and able "to meet financial obligations." 289 N.W.2d at 49. Page 449 U. S. 320 In sum, Minnesota had a significant aggregation [ Footnote 29 ] of contacts with the parties and the occurrence, creating state interests, such that application of its law was neither arbitrary nor fundamentally unfair. Accordingly, the choice of Minnesota law by the Minnesota Supreme Court did not violate the Due Process Clause or the Full Faith and Credit Clause. Affirmed. JUSTICE STEWART took no part in the consideration or decision of this case. [ Footnote 1 ] The Due Process Clause of the Fourteenth Amendment provides that no State "shall . . . deprive any person of life, liberty, or property, without due process of law. . . ." [ Footnote 2 ] The Full Faith and Credit Clause, Art. IV, §1, provides: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof." [ Footnote 3 ] Ralph Hague paid a separate premium for each automobile including an additional separate premium for each uninsured motorist coverage. [ Footnote 4 ] App. C to Pet. for Cert. A-29. [ Footnote 5 ] 289 N.W.2d 43 (1978) . [ Footnote 6 ] Respondent has suggested that this case presents a "false conflict." The court below rejected this contention and applied Minnesota law. Even though the Minnesota Supreme Court's choice of Minnesota law followed a discussion of whether this case presents a false conflict, the fact is that the court chose to apply Minnesota law. Thus, the only question before this Court is whether that choice was constitutional. [ Footnote 7 ] Minnesota had previously adopted the conceptual model developed by Professor Leflar in Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408 (1973). [ Footnote 8 ] The court apparently was referring to sufficiency as a matter of choice of law, and not as a matter of constitutional limitation on its choice of law decision . [ Footnote 9 ] 289 N.W.2d at 50 (1979). [ Footnote 10 ] This Court has taken a similar approach in deciding choice of law cases under both the Due Process Clause and the Full Faith and Credit Clause. In each instance, the Court has examined the relevant contacts and resulting interests of the State whose law was applied. See, e.g., Nevada v. Hall, 440 U. S. 410 , 440 U. S. 424 (1979). Although at one time the Court required a more exacting standard under the Full Faith and Credit Clause than under the Due Process Clause for evaluating the constitutionality of choice of law decisions, see Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U. S. 532 , 294 U. S. 549 -550 (1935) (interest of State whose law was applied was no less than interest of State whose law was rejected), the Court has since abandoned the weighing of interests requirement. Carroll v. Lanza, 349 U. S. 408 (1955); see Nevada v. Hall, supra; Weintraub, Due Process and Full Faith and Credit Limitations on a State's Choice of Law, 44 Iowa L.Rev. 449 (1959). Different considerations are, of course, at issue when full faith and credit is to be accorded to acts, records, and proceedings outside the choice of law area, such as in the case of sister state court judgments. [ Footnote 11 ] Prior to the advent of interest analysis in the state courts as the "dominant mode of analysis in modern choice of law theory," Silberman, Shaffer v. Heitner: The End of an Era, 53 N.Y.U.L.Rev. 33, 80, n. 259 (1978); cf. Richards v. United States, 369 U. S. 1 , 369 U. S. 11 -13, and nn. 26-27 (1962) (discussing trend toward interest analysis in state courts), the prevailing choice of law methodology focused on the jurisdiction where a particular event occurred. See, e.g., Restatement of Conflict of Laws (1934). For example, in cases characterized as contract cases, the law of the place of contracting controlled the determination of such issues as capacity, fraud, consideration, duty, performance, and the like. Id. § 332; see Beale, What Law Governs the Validity of a Contract, 23 Harv.L.Rev. 260, 270-271 (1910). In the tort context, the law of the place of the wrong usually governed traditional choice of law analysis. Restatement, supra, § 378; see Richards v. United States, supra at 369 U. S. 11 -12. Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U. S. 143 (1934), can, perhaps, best be explained as an example of that period. In that case, the Court struck down application by the Mississippi courts of Mississippi law which voided the limitations provision in a fidelity bond written in Tennessee between a Connecticut insurer and Delta, both of which were doing business in Tennessee and Mississippi. By its terms, the bond covered misapplication of funds "by any employee in any position, anywhere. . . .'" Id. at 293 U. S. 145 . After Delta discovered defalcations by one of its Mississippi-based employees, a lawsuit was commenced in Mississippi. That case, however, has scant relevance for today. It implied a choice of law analysis which, for all intents and purposes, gave an isolated event -- the writing of the bond in Tennessee -- controlling constitutional significance, even though there might have been contacts with another State (there Mississippi) which would make application of its law neither unfair nor unexpected. See Martin, Personal Jurisdiction and Choice of Law, 78 Mich.L.Rev. 872, 874, and n. 11 (1980). [ Footnote 12 ] Dick sought to obtain quasi-in-rem jurisdiction by garnishing the reinsurance obligation of the New York reinsurer. The reinsurer had never transacted business in Texas, but it "was cited by publication, in accordance with a Texas statute; attorneys were appointed for it by the trial court; and they filed on its behalf an answer which denied liability." 281 U.S. at 281 U. S. 402 . There would be no jurisdiction in the Texas courts to entertain such a lawsuit today. See Rush v. Savchuk, 444 U. S. 320 (1980); Shaffer v. Heitner, 433 U. S. 186 (1977); Silberman, supra at 62-65. [ Footnote 13 ] The Court noted that the result might have been different if there had been some connection to Texas upon "which the State could properly lay hold as the basis of the regulations there imposed." 281 U.S. at 281 U. S. 408 , n. 5; see Watson v. Employers Liability Assurance Corp., 348 U. S. 66 , 348 U. S. 71 (1954). [ Footnote 14 ] See generally Weintraub, supra, n. 10, at 455-457. [ Footnote 15 ] The Court found no violation of the Full Faith and Credit Clause, since California's interest was considered to be no less than Alaska's, 294 U.S. at 294 U. S. 547 -548, 294 U. S. 549 -550, even though the injury occurred in Alaska while the employee was performing his contract obligations there. While Alaska Packers balanced the interests of California and Alaska to determine the full faith and credit issue, such balancing is no longer required. See Nevada v. Hall, 440 U.S. at 440 U. S. 424 ; n 10, supra. [ Footnote 16 ] The precise question raised was whether the Virginia Compensation Commission "had sole jurisdiction over the claim." 330 U.S. at 330 U. S. 472 -473. In finding that application of the District's law did not violate either due process or full faith and credit requirements, the Court in effect treated the question as a constitutional choice of law issue. [ Footnote 17 ] The Court has upheld choice of law decisions challenged on constitutional grounds in numerous other decisions. See Nevada v. Hall, supra (upholding California's application of California law to automobile accident in California between two California residents and a Nevada official driving car owned by State of Nevada while engaged in official business in California); Carroll v. Lanza, 349 U. S. 408 (1955) (upholding Arkansas' choice of Arkansas law where Missouri employee executed employment contract with Missouri employer and was injured on job in Arkansas but was removed immediately to a Missouri hospital); Watson v. Employers Liability Assurance Corp., 348 U. S. 66 (1954) (allowing application of Louisiana direct action statute by Louisiana resident against insurer even though policy was written and delivered in another State, where plaintiff was injured in Louisiana); Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U. S. 493 (1939) (holding Full Faith and Credit Clause not violated where California applied own Workmen's Compensation Act in case of injury suffered by Massachusetts employee temporarily in California in course of employment). Thus, Nevada v. Hall, supra, and Watson v. Employers Liability Assurance Corp., supra, upheld application of forum law where the relevant contacts consisted of plaintiff's residence and the place of the injury. Pacific Employers Ins. Co. v. Industrial Accident Comm'n, supra, and Carroll v. Lanza, supra, relied on the place of the injury arising from the respective employee's temporary presence in the forum State in connection with his employment. [ Footnote 18 ] The policy issued to Mr. Hague provided that Allstate would pay to the insured, or his legal representative, damages "sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of [an] uninsured automobile. . . ." No suggestion has been made that Mr. Hague's uninsured motorist protection is unavailable because he was not killed while driving one of his insured automobiles. [ Footnote 19 ] Numerous cases have applied the law of a jurisdiction other than the situs of the injury where there existed some other link between that jurisdiction and the occurrence. See, e.g., Cardillo v. Liberty Mutual Ins. Co., 330 U. S. 469 (1947); Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U. S. 532 (1935); Rosenthal v. Warren, 475 F.2d 438 (CA2), cert. denied, 414 U.S. 856 (1973); Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1966); Tooker v. Lopez, 24 N.Y.2d 569, 249 N.E.2d 394 (1969); Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279 (1963). [ Footnote 20 ] The injury or death of a resident of State A in State B is a contact of State A with the occurrence in State B. See cases cited in n 19, supra. [ Footnote 21 ] Petitioner's statement that the instant dispute involves the interpretation of insurance contracts which were "underwritten, applied for, and paid for by Wisconsin residents and issued covering cars garaged in Wisconsin," Brief for Petitioner 6, is simply another way of stating that Mr. Hague was a Wisconsin resident. Respondent could have replied that the insurance contract was underwritten, applied for and paid for by a Minnesota worker, and issued covering cars that were driven to work in Minnesota and garaged there for a substantial portion of the day. The former statement is hardly more significant than the latter, since the accident, in any event, did not involve any of the automobiles which were covered under Mr. Hague's policy. Recovery is sought pursuant to the uninsured motorist coverage. In addition, petitioner's statement that the contracts were "underwritten . . . by Wisconsin residents" is not supported by the stipulated facts if petitioner means to include itself within that phrase. Indeed, the policy, which is part of the record, recites that Allstate signed the policy in Northbrook, Ill. Under some versions of the hoary rule of lex loci contracts, and depending on the precise sequence of events, a sequence which is unclear from the record before us, the law of Illinois arguably might apply to govern contract construction, even though Illinois would have less contact with the parties and the occurrence than either Wisconsin or Minnesota. No party sought application of Illinois law on that basis in the court below. [ Footnote 22 ] Of course, Allstate could not be certain that Wisconsin law would necessarily govern any accident which occurred in Wisconsin, whether brought in the Wisconsin courts or elsewhere. Such an expectation would give controlling significance to the wooden lex loci delicti doctrine. While the place of the accident is a factor to be considered in choice of law analysis, to apply blindly the traditional, but now largely abandoned, doctrine, Silberman, supra, n 11, at 80, n. 259; see n 11, supra, would fail to distinguish between the relative importance of various legal issues involved in a lawsuit, as well as the relationship of other jurisdictions to the parties and the occurrence or transaction. If, for example, Mr. Hague had been a Wisconsin resident and employee who was injured in Wisconsin and was then taken by ambulance to a hospital in Red Wing, Minn., where he languished for several weeks before dying, Minnesota's interest in ensuring that its medical creditors were paid would be obvious. Moreover, under such circumstances, the accident itself might be reasonably characterized as a bi-state occurrence beginning in Wisconsin and ending in Minnesota. Thus, reliance by the insurer that Wisconsin law would necessarily govern any accident that occurred in Wisconsin, or that the law of another jurisdiction would necessarily govern any accident that did not occur in Wisconsin, would be unwarranted. See n. 11 supra; cf. Rosenthal v. Warren, supra, (Massachusetts hospital could not have purchased insurance with expectation that Massachusetts law would govern damages recovery as to New York patient who died in hospital and whose widow brought suit in New York). If the law of a jurisdiction other than Wisconsin did govern, there was a substantial likelihood, with respect to uninsured motorist coverage, that stacking would be allowed. Stacking was the rule in most States at the time the policy was issued. Indeed, the Wisconsin Supreme Court, in Nelson v. Employers Mutual Casualty Co., 63 Wis.2d 558, 563-566, and nn. 2, 3, 217 N.W.2d 670 , 672, 674, and nn. 2, 3 (1974), identified 29 States, including Minnesota, whose law it interpreted to allow stacking, and only 9 States whose law it interpreted to prohibit stacking. Clearly then, Allstate could not have expected that an anti-stacking rule would govern any particular accident in which the insured might be involved, and thus cannot claim unfair surprise from the Minnesota Supreme Court's choice of forum law. [ Footnote 23 ] The Court has recognized that examination of a State's contacts may result in divergent conclusions for jurisdiction and choice of law purposes. See Kulko v. California Superior Court, 436 U. S. 84 , 436 U. S. 98 (1978) (no jurisdiction in California but California law "arguably might" apply); Shaffer v. Heitner, 433 U.S. at 433 U. S. 215 (no jurisdiction in Delaware, although Delaware interest "may support the application of Delaware law"); cf. Hanson v. Denckla, 357 U. S. 235 , 357 U. S. 254 , and n. 27 (1958) (no jurisdiction in Florida; the "issue is personal jurisdiction, not choice of law," an issue which the Court found no need to decide). Nevertheless, "both inquiries are often closely related, and to a substantial degree depend upon, similar considerations.'" Shaffner, 433 U.S. at 433 U. S. 224 -225 (BRENNAN, J., concurring in part and dissenting in part). Here, of course, jurisdiction in the Minnesota courts is unquestioned, a factor not without significance in assessing the constitutionality of Minnesota's choice of its own substantive law. Cf. id. at 433 U. S. 225 ("the decision that it is fair to bind a defendant by a State's laws and rules should prove to be highly relevant to the fairness of permitting that same State to accept jurisdiction for adjudicating the controversy"). [ Footnote 24 ] There is no element of unfair surprise or frustration of legitimate expectations as a result of Minnesota's choice of its law. Because Allstate was doing business in Minnesota and was undoubtedly aware that Mr. Hague was a Minnesota employee, it had to have anticipated that Minnesota law might apply to an accident in which Mr. Hague was involved. See Clay II, 377 U. S. 179 , 377 U. S. 182 (1964); Watson v. Employers Liability Assurance Corp., 348 U.S. at 348 U. S. 72 -73; Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U.S. at 294 U. S. 538 -543; cf. Home Ins. Co. v. Dick, 281 U.S. at 281 U. S. 404 (neither insurer nor reinsurer present in forum State). Indeed, Allstate specifically anticipated that Mr. Hague might suffer an accident either in Minnesota or elsewhere in the United States, outside of Wisconsin, since the policy it issued offered continental coverage. Cf. id. at 281 U. S. 403 (coverage limited to losses occurring in certain Mexican waters which were outside of jurisdiction whose law was applied). At the same time, Allstate did not seek to control construction of the contract, since the policy contained no choice of law clause dictating application of Wisconsin law. See Clay II, supra at 377 U. S. 182 (nationwide coverage of policy and lack of choice of law clause). [ Footnote 25 ] Justice Black's dissent in the first Clay decision, a decision which vacated and remanded a lower court determination to obtain an authoritative construction of state law that might moot the constitutional question, subsequently commanded majority support in the second Clay decision. Clay II, supra at 377 U. S. 180 -183. [ Footnote 26 ] The stipulated facts do not reveal the date on which Mrs. Hague first moved to Red Wing. [ Footnote 27 ] These proceedings began on May 28, 1976. Mrs. Hague was remarried on June 19, 1976. [ Footnote 28 ] The dissent suggests that considering respondent's post-occurrence change of residence as one of the Minnesota contacts will encourage forum shopping. Post at 449 U. S. 337 . This overlooks the fact that her change of residence was bona fide, and not motivated by litigation considerations. [ Footnote 29 ] We express no view whether the first two contacts, either together or separately, would have sufficed to sustain the choice of Minnesota law made by the Minnesota Supreme Court. JUSTICE STEVENS, concurring in the judgment. As I view this unusual case -- in which neither precedent nor constitutional language provides sure guidance -- two separate questions must be answered. First, does the Full Faith and Credit Clause [ Footnote 2/1 ] require Minnesota, the forum State, to apply Wisconsin law? Second, does the Due Process Clause [ Footnote 2/2 ] of the Fourteenth Amendment prevent Minnesota from applying its own law? The first inquiry implicates the federal interest in ensuring that Minnesota respect the sovereignty of the State of Wisconsin; the second implicates the litigants' interest in a fair adjudication of their rights. [ Footnote 2/3 ] Page 449 U. S. 321 I realize that both this Court's analysis of choice of law questions [ Footnote 2/4 ] and scholarly criticism of those decisions [ Footnote 2/5 ] have treated these two inquiries as though they were indistinguishable. [ Footnote 2/6 ] Page 449 U. S. 322 Nevertheless, I am persuaded that the two constitutional provisions protect different interests, and that proper analysis requires separate consideration of each, I The Full Faith and Credit Clause is one of several provisions in the Federal Constitution designed to transform the several States from independent sovereignties into a single, unified Nation. See Thomas v. Washington Gas Light Co., 448 U. S. 261 , 448 U. S. 271 -272 (1980) (plurality opinion); Milwaukee County v. M. E. White Co., 296 U. S. 268 , 296 U. S. 276 -277 (1935). [ Footnote 2/7 ] The Full Faith and Credit Clause implements this design by directing that a State, when acting as the forum for litigation having multistate aspects or implications, respect the legitimate interests of other States and avoid infringement upon their sovereignty. The Clause does not, however, rigidly Page 449 U. S. 323 require the forum State to apply foreign law whenever another State has a valid interest in the litigation. See Nevada v. Hall, 440 U. S. 410 , 440 U. S. 424 (1979); Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U. S. 532 , 294 U. S. 546 -548 (1935); Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U. S. 493 , 306 U. S. 501 -502 (1939). [ Footnote 2/8 ] On the contrary, in view of the fact that the forum State is also a sovereign in its own right, in appropriate cases, it may attach paramount importance to its own legitimate interests. [ Footnote 2/9 ] Accordingly, the fact that a choice of law decision may be unsound as a matter of conflicts law does not necessarily implicate the federal concerns embodied in the Full Faith and Credit Clause. Rather, in my opinion, the Clause should not invalidate a state court's choice of forum law unless that choice threatens the federal interest in national unity by unjustifiably infringing upon the legitimate interests of another State. [ Footnote 2/10 ] Page 449 U. S. 324 In this case, I think the Minnesota courts' decision to apply Minnesota law was plainly unsound as a matter of normal conflicts law. Both the execution of the insurance contract and the accident giving rise to the litigation took place in Wisconsin. Moreover, when both of those events occurred, the plaintiff, the decedent, and the operators of both vehicles were all residents of Wisconsin. Nevertheless, I do not believe that any threat to national unity or Wisconsin's sovereignty ensues from allowing the substantive question presented by this case to be determined by the law of another State. The question on the merits is one of interpreting the meaning of the insurance contract. Neither the contract itself nor anything else in the record reflects any express understanding of the parties with respect to what law would be applied or with respect to whether the separate uninsured motorist coverage for each of the decedent's three cars could be "stacked." Since the policy provided coverage for accidents that might occur in other States, it was obvious to the parties at the time of contracting that it might give rise to the application of the law of States other than Wisconsin. Therefore, while Wisconsin may have an interest in ensuring that contracts formed in Wisconsin in reliance upon Wisconsin law are interpreted in accordance with that law, that interest is not implicated in this case. [ Footnote 2/11 ] Page 449 U. S. 325 Petitioner has filed to establish that Minnesota's refusal to apply Wisconsin law poses any direct [ Footnote 2/12 ] or indirect threat to Wisconsin's sovereignty. [ Footnote 2/13 ] In the absence of any such Page 449 U. S. 326 threat, I find it unnecessary to evaluate the forum State's interest in the litigation in order to reach the conclusion that the Full Faith and Credit Clause does not require the Minnesota courts to apply Wisconsin law to the question of contract interpretation presented in this case. II It may be assumed that a choice of law decision would violate the Due Process Clause if it were totally arbitrary or if it were fundamentally unfair to either litigant. I question whether a judge's decision to apply the law of his own State could ever be described as wholly irrational. For judges are presumably familiar with their own state law, and may find it difficult and time consuming to discover and apply correctly the law of another State. [ Footnote 2/14 ] The forum State's interest in the fair and efficient administration of justice is therefore sufficient, in my judgment, to attach a presumption of validity to a forum State's decision to apply its own law to a dispute over which it has jurisdiction. The forum State's interest in the efficient operation of its judicial system is clearly not sufficient, however, to justify the application of a rule of law that is fundamentally unfair to one of the litigants. Arguably, a litigant could demonstrate such unfairness in a variety of ways. Concern about the fairness of the forum's choice of its own rule might arise Page 449 U. S. 327 if that rule favored residents over nonresidents, if it represented a dramatic departure from the rule that obtains in most American jurisdictions, or if the rule itself was unfair on its face or as applied. [ Footnote 2/15 ] The application of an otherwise acceptable rule of law may result in unfairness to the litigants if, in engaging in the activity which is the subject of the litigation, they could not reasonably have anticipated that their actions would later be judged by this rule of law. A choice of law decision that frustrates the justifiable expectations of the parties can be fundamentally unfair. This desire to prevent unfair surprise to a litigant has been the central concern in this Court's review of choice of law decisions under the Due Process Clause. [ Footnote 2/16 ] Neither the "stacking" rule itself nor Minnesota's application of that rule to these litigants raises any serious question of fairness. As the plurality observes, "[s]tacking was Page 449 U. S. 328 the rule in most States at the time the policy was issued." Ante at 449 U. S. 316 , n. 22. [ Footnote 2/17 ] Moreover, the rule is consistent with the economics of a contractual relationship in which the policyholder paid three separate premiums for insurance coverage for three automobiles, including a separate premium for each uninsured motorist coverage. [ Footnote 2/18 ] Nor am I persuaded that the decision of the Minnesota courts to apply the "stacking" rule in this case can be said to violate due process because that decision frustrates the reasonable expectations of the contracting parties. Contracting parties can, of course, make their expectations explicit by providing in their contract either that the law of a particular jurisdiction shall govern questions of contract interpretation [ Footnote 2/19 ] or that a particular substantive rule, for instance "stacking," shall or shall not apply. [ Footnote 2/20 ] In the absence Page 449 U. S. 329 of such express provisions, the contract nonetheless may implicitly reveal the expectations of the parties. For example, if a liability insurance policy issued by a resident of a particular State provides coverage only with respect to accidents within that State, it is reasonable to infer that the contracting parties expected that their obligations under the policy would be governed by that State's law. [ Footnote 2/21 ] In this case, no express indication of the parties' expectations is available. The insurance policy provided coverage for accidents throughout the United States; thus, at the time of contracting, the parties certainly could have anticipated that the law of States other than Wisconsin would govern particular claims arising under the policy. [ Footnote 2/22 ] By virtue of doing business Page 449 U. S. 330 in Minnesota, Allstate was aware that it could be sued in the Minnesota courts; Allstate also presumably was aware that Minnesota law, as well as the law of most States, permitted "stacking." Nothing in the record requires that a different inference be drawn. Therefore, the decision of the Minnesota courts to apply the law of the forum in this case does not frustrate the reasonable expectations of the contracting parties, and I can find no fundamental unfairness in that decision requiring the attention of this Court. [ Footnote 2/23 ] Page 449 U. S. 331 In terms of fundamental fairness, it seems to me that two factors relied upon by the plurality -- the plaintiff's post-accident move to Minnesota and the decedent's Minnesota employment -- are either irrelevant to or possibly even tend to undermine the plurality's conclusion. When the expectations of the parties at the time of contracting are the central due process concern, as they are in this case, an unanticipated post-accident occurrence is clearly irrelevant for due process purposes. The fact that the plaintiff became a resident of the forum State after the accident surely cannot justify a ruling in her favor that would not be made if the plaintiff were a nonresident. Similarly, while the fact that the decedent regularly drove into Minnesota might be relevant to the expectations of the contracting parties, [ Footnote 2/24 ] the fact that he did so because he was employed in Minnesota adds nothing to the due process analysis. The choice of law decision of the Minnesota courts is consistent with due process because it does not result in unfairness to either litigant, not because Minnesota now has an interest in the plaintiff as resident or formerly had an interest in the decedent as employee. III Although I regard the Minnesota courts' decision to apply forum law as unsound as a matter of conflicts law, and there Page 449 U. S. 332 is little in this record other than the presumption in favor of the forum's own law to support that decision, I concur in the plurality's judgment. It is not this Court's function to establish and impose upon state courts a federal choice of law rule, nor is it our function to ensure that state courts correctly apply whatever choice of law rules they have themselves adopted. [ Footnote 2/25 ] Our authority may be exercised in the choice of law area only to prevent a violation of the Full Faith and Credit or the Due Process Clause. For the reasons stated above, I find no such violation in this case. [ Footnote 2/1 ] Article IV, § 1, provides: "Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." [ Footnote 2/2 ] Section 1 of the Fourteenth Amendment provides, in part: "No State shall . . . deprive any person of life, liberty, or property, without due process of law. . . ." [ Footnote 2/3 ] The two questions presented by the choice of law issue arise only after it is assumed or established that the defendant's contacts with the forum State are sufficient to support personal jurisdiction. Although the choice of law concerns -- respect for another sovereign and fairness to the litigants -- are similar to the two functions performed by the jurisdictional inquiry, they are not identical. In World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286 , 444 U. S. 291 -292 (1980), we stated: "The concept of minimum contacts, in turn, can be seen to perform two related, but distinguishable, functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system." See also Reese, Legislative Jurisdiction, 78 Colum.L.Rev. 1587, 1589-1590 (1978). While it has been suggested that this same minimum contacts analysis be used to define the constitutional limitations on choice of law, see, e.g., Martin, Personal Jurisdiction and Choice of Law, 78 Mich.L.Rev. 872 (1980), the Court has made it clear over the years that the personal jurisdiction and choice of law inquiries are not the same. See Kulko v. California Superior Court, 436 U. S. 84 , 436 U. S. 98 (1978); Shaffer v. Heitner, 433 U. S. 186 , 433 U. S. 215 (1977); id. at 433 U. S. 224 -226 (BRENNAN, J., dissenting in part); Hanson v. Denckla, 357 U. S. 235 , 357 U.S. 253 -254 (1958); id. at 357 U. S. 258 (Black, J., dissenting). [ Footnote 2/4 ] Although the Court has struck down a state court's choice of forum law on both due process, see, e.g., Home Ins. Co. v. Dick, 281 U. S. 397 (1930), and full faith and credit grounds, see, e.g., John Hancock Mutual Life Ins. Co. v. Yates, 299 U. S. 178 (1936), no clear analytical distinction between the two constitutional provisions has emerged. The Full Faith and Credit Clause, of course, was inapplicable in Home Ins. Co. because the law of a foreign nation, rather than of a sister State, was at issue; a similarly clear explanation for the Court's reliance upon the Full Faith and Credit Clause in John Hancock Mutual Life Ins. cannot be found. Indeed, John Hancock Mutual Life Ins. is probably best understood as a due process case. See Reese, supra at 1589, and n. 17; Weintraub, Due Process and Full Faith and Credit Limitations on a State's Choice of Law, 44 Iowa L.Rev. 449, 457-458 (1959). [ Footnote 2/5 ] See R. Leflar, American Conflicts Law § 5, p. 7, § 55, pp. 106-107 (3d ed.1977). The Court's frequent failure to distinguish between the two Clauses in the choice of law context may underlie the suggestions of various commentators that either the Full Faith and Credit Clause or the Due Process Clause be recognized as the single appropriate source for constitutional limitations on choice of law. Compare Martin, Constitutional Limitations on Choice of Law, 61 Cornell L.Rev. 185 (1976) (full faith and credit), with Reese, supra, (due process); see also Kirgis, The Roles of Due Process and Full Faith and Credit in Choice of Law, 62 Cornell L.Rev. 94 (1976). [ Footnote 2/6 ] Even when the Court has explicitly considered both provisions in a single case, the requirements of the Due Process and Full Faith and Credit Clauses have been measured by essentially the same standard. For example, in Watson v. Employers Liability Assurance Corp., 348 U. S. 66 (1954), the Court separately considered the due process and full faith and credit questions. See id. at 348 U. S. 70 -73. However, in concluding that the Full Faith and Credit Clause did not bar the Louisiana courts from applying Louisiana law in that case, the Court substantially relied upon its preceding analysis of the requirements of due process. Id. at 348 U. S. 73 . By way of contrast, in Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U. S. 532 , 294 U. S. 544 -550 (1935), the Court's full faith and credit analysis differed significantly from its due process analysis. However, as noted in the plurality opinion, ante at 449 U.S. 308 , n. 10, the Court has since abandoned the full faith and credit standard represented by Alaska Packers. [ Footnote 2/7 ] See also Sumner, The Full Faith and Credit Clause -- Its History and Purpose, 34 Or.L.Rev. 224, 242 (1955); Weintraub, supra at 477; R. Leflar, supra, § 73, P. 143. [ Footnote 2/8 ] As the Court observed in Alaska Packers, supra, an overly rigid application of the Full Faith and Credit Clause would produce anomalous results: "A rigid and literal enforcement of the full faith and credit clause, without regard to the statute of the forum, would lead to the absurd result that, wherever the conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be in its own." 294 U.S. at 294 U. S. 547 . [ Footnote 2/9 ] For example, it is well established that "the Full Faith and Credit Clause does not require a State to apply another State's law in violation of its own legitimate public policy." . Nevada v. Hall, 440 U. S. 410 , 440 U. S. 422 (1979) (footnote omitted). [ Footnote 2/10 ] The kind of state action the Full Faith and Credit Clause was designed to prevent has been described in a variety of ways by this Court. In Carroll v. Lanza, 349 U. S. 408 , 349 U. S. 413 (1955), the Court indicated that the Clause would be invoked to restrain "any policy of hostility to the public Acts" of another State. In Nevada v. Hall, supra at 440 U. S. 424 , n. 24, we approved action which "pose[d] no substantial threat to our constitutional system of cooperative federalism." And in Thomas v. Washington Gas Light Co., 448 U. S. 261 , 448 U. S. 272 (1980), the plurality opinion described the purpose of the Full Faith and Credit Clause as the prevention of "parochial entrenchment on the interests of other State." [ Footnote 2/11 ] While the justifiable expectations of the litigants are a major concern for purposes of due process scrutiny of choice of law decisions, see 449 U. S. infra, the decision in John Hancock Mutual Life Ins. Co. v. Yates, 299 U. S. 178 (1936), suggests that this concern may also implicate state interests cognizable under the Full Faith and Credit Clause. In John Hancock Mutual Life Ins., the Court struck down on full faith and credit grounds a Georgia court's choice of Georgia law over a conflicting New York statute in a suit on a New York life insurance contract brought after the insured's death in New York. Central to the decision in that case was the Court's apparent concern that application of Georgia law would result in unfair surprise to one of the contracting parties. The Court found that the New York statute was "a rule of substantive law which became a term of the contract, as much so as the amount of the premium to be paid or the time for its payment." Id. at 299 U. S. 182 (footnote omitted). This statute "determine[d] the substantive rights of the parties as fully as if a provision to that effect had been embodied in writing in the policy." Id. at 299 U. S. 182 -183. The insurer had no reason to expect that the New York statute would not control all claims arising under the life insurance policy. The parties to a life insurance contract normally would not expect the place of death to have any bearing upon the proper construction of the policy; by way of contrast, in the case of a liability policy, the place of the tort might well be relevant. For that reason, in a life insurance contract relationship, it is likely that neither party would expect the law of any State other than the place of contracting to have any relevance in possible subsequent litigation. See generally C. Carnahan, Conflict of Laws and Life Insurance Contracts § 15, pp. 51-52, § 47, pp. 264-265, 267-268, § 60, pp. 325-327 (2d ed.1958) . Paul Freund has aptly characterized John Hancock Mutual Life Ins. as perhaps this Court's "most ambitious application of the full faith and credit clause." Freund, Chief Justice Stone and the Conflict of Laws, 59 Harv.L.Rev. 1210, 1233 (1946). Like Bradford Electric Light Co. v. Clapper, 286 U. S. 145 (1932), on which the Court relied, see 299 U.S. at 299 U. S. 183 , John Hancock Mutual Life Ins. was one of a series of constitutional decisions in the 1930's that have been limited by subsequent cases. See Carroll v. Lanza, 349 U.S. at 349 U. S. 412 ; Thomas v. Washington Gas Light Co., supra at 448 U. S. 272 -273, n. 18 (plurality opinion). See also Traynor, Is This Conflict Really Necessary?, 37 Texas L.Rev. 657, 675 (1959). [ Footnote 2/12 ] Compare Nevada v. Hall, supra, in which the Court permitted a California court to disregard Nevada's statutory limitation on damages available against the State. The Court found this direct intrusion upon Nevada's sovereignty justified because the Nevada statute was "obnoxious" to California's public policy. Id. at 424. [ Footnote 2/13 ] It is clear that a litigant challenging the forum's application of its own law to a lawsuit properly brought in its courts bears the burden of establishing that this choice of law infringes upon interests protected by the Full Faith and Credit Clause. See Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U.S. at 294 U. S. 547 -548. It is equally clear that a state court's decision to apply its own law cannot violate the Full Faith and Credit Clause where the application of forum law does not impinge at all upon the interests of other States. Cf. Reese, supra, n. 3, at 1601. [ Footnote 2/14 ] This task can be particularly difficult for a trial judge who does not have ready access to a law library containing the statutes and decisions of all 50 States. If that judge is able to apply law with which he is thoroughly familiar or can easily discover, substantial savings can accrue to the State's judicial system. Moreover, an erroneous interpretation of the governing rule is less likely when the judge is applying a familiar rule. Cf. Shaffer v. Heitner, 433 U.S. at 433 U. S. 225 -226 (BRENNAN, J., dissenting in part) (such concerns indicate that a State's ability to apply its own law to a transaction should be relevant for purposes of evaluating its power to exercise jurisdiction over the parties to that transaction). [ Footnote 2/15 ] Discrimination against nonresidents would be constitutionally suspect even if the Due Process Clause were not a check upon a State's choice of law decisions. See Currie & Schreter, Unconstitutional Discrimination in the Conflict of Laws: Equal Protection, 28 U.Chi.L.Rev. 1 (1960); Currie & Schreter, Unconstitutional Discrimination in the Conflict of Laws: Privileges and Immunities, 69 Yale L.J. 1323 (1980); Note, Unconstitutional Discrimination in Choice of Law, 77 Colum.L.Rev. 272 (1977). Moreover, both discriminatory and substantively unfair rules of law may be detected and remedied without any special choice of law analysis; familiar constitutional principles are available to deal with both varieties of unfairness. See, e.g., Martin, supra, 449 U.S. 302 fn2/5|>n. 5, at 199. [ Footnote 2/16 ] Upon careful analysis, most of the decisions of this Court that struck down on due process grounds a state court's choice of forum law can be explained as attempts to prevent a State with a minimal contact with the litigation from materially enlarging the contractual obligations of one of the parties where that party had no reason to anticipate the possibility of such enlargement. See, e.g., Home Ins. Co. v. Dick, 281 U. S. 397 (1930); Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U. S. 143 (1934); cf. John Hancock Mutual Life Ins. Co. v. Yates, 299 U. S. 178 (1936) (similar concern under Full Faith and Credit Clause, see 449 U.S. 302 fn2/11|>n. 11, supra ). See generally Weintraub, supra, 449 U.S. 302 fn2/4|>n. 4, at 457-460. [ Footnote 2/17 ] See also Nelson v. Employers Mutual Casualty Co., 63 Wis.2d 558, 563-566, and nn. 2, 3, 217 N.W.2d 670 , 672-674, and nn. 2, 3 (1974), discussed ante at 449 U. S. 316 -317, n. 22. [ Footnote 2/18 ] The "stacking" rule provides that all of the uninsured motorist coverage purchased by an insured party may be aggregated, or "stacked," to create a fund available to provide a recovery for a single accident. [ Footnote 2/19 ] For example, in Home Ins. Co. v. Dick, supra at 281 U. S. 403 , and n. 1, the insurance policy was subject, by its express terms, to Mexican law. [ Footnote 2/20 ] Home Ins. Co., supra, again provides a useful example. In that case, the insurance policy expressly provided a l-year limitations period for claims arising thereunder. Id. at 281 U. S. 403 . Similarly, the insurance policy at issue in Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., supra at 292 U. S. 146 , also prescribed a specific limitations period. While such express provisions are obviously relevant, they are not always dispositive. In Clay v. Sun Insurance Office, Ltd., 377 U. S. 179 (1964), the Court allowed the lower court's choice of forum law to override an express contractual limitations period. The Court emphasized the fact that the insurer had issued the insurance policy with the knowledge that it would cover the insured property wherever it was taken. Id. at 377 U. S. 181 -182. The Court also noted that the insurer had not attempted to provide in the policy that the law of another State would control. Id. at 377 U. S. 182 . In Watson v. Employers Liability Assurance Corp., 348 U.S. at 348 U. S. 68 , the insurance policy expressly provided that an injured party could not maintain a direct action against the insurer until after the insured's liability had been determined. The Court found that neither the Due Process Clause nor the Full Faith and Credit Clause prevented the Louisiana courts from applying forum law to permit a direct action against the insurer prior to determination of the insured's liability. As in Clay, the Court noted that the policy provided coverage for injuries anywhere in the United States. 348 U.S. at 348 U. S. 71 -72. An additional, although unarticulated, factor in Watson was the fact that the litigant urging that forum law be applied was not a party to the insurance contract. While contracting parties may be able to provide in advance that a particular rule of law will govern disputes between them, their expectations are clearly entitled to less weight when the rights of third-party litigants are at issue. [ Footnote 2/21 ] In Home Ins. Co., supra, the insurance policy was issued in Mexico by a Mexican corporation and covered the insured vessel only in certain Mexican waters. Id. at 281 U. S. 403 . [ Footnote 2/22 ] In Clay v. Sun Insurance Office, Ltd., supra at 377 U. S. 182 , and Watson v. Employers Liability Assurance Corp., supra at 348 U. S. 71 -72, the Court considered it significant, in upholding the lower courts' choice of forum law, that the insurance policies provided coverage throughout the United States. See 449 U.S. 302 fn2/20|>n. 20, supra. Of course, in both Clay and Watson, the loss to which the insurance applied actually occurred in the forum State, whereas the accident in this case occurred in Wisconsin, not Minnesota. However, as the dissent recognizes, post at 449 U. S. 336 -337, because the question on the merits is one of contract interpretation, rather than tort liability, the actual site of the accident is not dispositive with respect to the due process inquiry. More relevant is the fact that the parties, at the time of contracting, anticipated that an accident covered by the policy could occur in a "stacking" State. The fact that this particular accident did not occur in Minnesota does not undercut the expectations formed by the parties at the time of contracting. In Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., supra, the Court struck down a state court's choice of forum law despite the fact that the insurance contract's coverage was not limited by state boundaries. While Hartford Accident may indeed have "scant relevance for today," ante at 449 U. S. 309 , n. 11, it is nonetheless consistent with a due process analysis based upon fundamental fairness to the parties. One of the statutes applied by the Mississippi courts in Hartford Accident was offensively broad, providing that "[a]ll contracts of insurance on property, lives or interests in this state shall be deemed to be made therein." 292 U.S. at 292 U. S. 148 . No similar statute is involved in this case. In addition, the Mississippi courts applied the law of the forum to override an express contractual provision, and thus frustrated the expectations of the contracting parties. In the present case, the insurance contract contains no similar declaration of the intent of the parties. [ Footnote 2/23 ] Comparison of this case with Home Ins. Co. v. Dick, 281 U. S. 397 (1930), confirms my conclusion that the application of Minnesota law in this case does not offend the Due Process Clause. In Home Ins. Co., the contract expressly provided that a particular limitations period would govern claims arising under the insurance contract, and that Mexican law was to be applied in interpreting the contract; in addition, the contract was limited in effect to certain Mexican waters. The parties could hardly have made their expectations with respect to the applicable law more plain. In this case, by way of contrast, nothing in the contract suggests that Wisconsin law should be applied or that Minnesota's "stacking" rule should not be applied. In this case, unlike Home Ins. Co., the court's choice of forum law results in no unfair surprise to the insurer. [ Footnote 2/24 ] Even this factor may not be of substantial significance. At the time of contracting, the parties were aware that the insurance policy was effective throughout the United States, and that the law of any State, including Minnesota, might be applicable to particular claims. The fact that the decedent regularly drove to Minnesota, for whatever purpose, is relevant only to the extent that it affected the parties' evaluation, at the time of contracting, of the likelihood that Minnesota law would actually be applied at some point in the future. However, because the applicability of Minnesota law was perceived as possible at the time of contracting, it does not seem especially significant for due process purposes that the parties may also have considered it likely that Minnesota law would be applied. This factor merely reinforces the expectation revealed by the policy's national coverage. [ Footnote 2/25 ] In Kryger v. Wilson, 24 U. S. 171 , 24 U. S. 176 (1916), after rejecting a due process challenge to a state court's choice of law, the Court stated: "The most that the plaintiff in error can say is that the state court made a mistaken application of doctrines of the conflict of laws in deciding that the cancellation of a land contact is governed by the law of the situs, instead of the place of making and performance. But that, being purely a question of local common law, is a matter with which this court is not concerned." JUSTICE POWELL, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST Join, dissenting. My disagreement with the plurality is narrow. I accept with few reservations 449 U. S. which sets forth the basic principles that guide us in reviewing state choice of law decisions under the Constitution. The Court should invalidate a forum State's decision to apply its own law only when there are no significant contacts between the State and the litigation. This modest check on state power is mandated by the Due Process Clause of the Fourteenth Amendment and the Full Faith and Credit Clause of Art. IV, § 1. I do not believe, however, that the plurality adequately analyzes the policies such review must serve. In consequence, it has found significant what appear to me to be trivial contacts between the forum State and the litigation. Page 449 U. S. 333 I At least since Carroll v. Lanza, 349 U. S. 408 (1955), the Court has recognized that both the Due Process and the Full Faith and Credit Clauses are satisfied if the forum has such significant contacts with the litigation that it has a legitimate state interest in applying its own law. The significance of asserted contacts must be evaluated in light of the constitutional policies that oversight by this Court should serve. Two enduring policies emerge from our cases. First, the contacts between the forum State and the litigation should not be so "slight and casual" that it would be fundamentally unfair to a litigant for the forum to apply its own State's law. Clay v. Sun Ins. Office, Ltd., 377 U. S. 179 , 377 U. S. 182 (1964). The touchstone here is the reasonable expectation of the parties. See Weintraub, Due Process and Full Faith and Credit Limitations on a State's Choice of Law, 44 Iowa L.Rev. 449, 445-457 (1959) (Weintraub). Thus, in Clay, the insurer sold a policy to Clay " with knowledge that he could take his property anywhere in the world he saw fit without losing the protection of his insurance.'" 377 U.S. at 182, quoting Clay v. Sun Ins. Office, Ltd., 363 U. S. 207 , 363 U. S. 221 (1960) (Black, J., dissenting). When the insured moved to Florida with the knowledge of the insurer, and a loss occurred in that State, this Court found no unfairness in Florida's applying its own rule of decision to permit recovery on the policy. The insurer "must have known it might be sued there." Ibid. See also Watson v. Employers Liability Assurance Corp., 348 U. S. 66 (1954). [ Footnote 3/1 ] Page 449 U. S. 334 Second, the forum State must have a legitimate interest in the outcome of the litigation before it. Pacific Ins. Co. v. Industrial Accident Comm'n, 306 U. S. 493 (1939). The Full Faith and Credit Clause addresses the accommodation of sovereign power among the various States. Under limited circumstances, it requires one State to give effect to the statutory law of another State. Nevada v. Hall, 440 U. S. 410 , 440 U. S. 423 (1979). To be sure, a forum State need not give effect to another State's law if that law is in "violation of its own legitimate public policy." Id. at 440 U. S. 422 . Nonetheless, for a forum State to further its legitimate public policy by applying its own law to a controversy, there must be some connection between the facts giving rise to the litigation and the scope of the State's lawmaking jurisdiction. Both the Due Process and Full Faith and Credit Clauses ensure that the States do not "reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system." World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286 , 444 U. S. 292 (1980) (addressing Fourteenth Amendment limitation on state court jurisdiction). As the Court stated in Pacific Ins. Co., supra: "[T]he full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state." Id. at 306 U. S. 502 (emphasis added). The State has a legitimate interest in applying a rule of decision to the litigation only if the facts to which the rule will be applied have created effects within the State, toward which the State's public policy is directed. To assess the sufficiency of asserted contacts between the forum and the litigation, the court must determine if the contacts form a reasonable link between the litigation and a state policy. In short, examination of contacts addresses whether "the state Page 449 U. S. 335 has an interest in the application of its policy in this instance." Currie, The Constitution and the Choice of Law: Governmental Interests and the Judicial Function, in B. Currie Selected Essays on the Conflict of Laws 188, 189 (1963) (Currie). If it does, the Constitution is satisfied. John Hancock Mut. Life Ins. Co. v. Yates, 299 U. S. 178 (1936), illustrates this principle. A life insurance policy was executed in New York, on a New York insured with a New York beneficiary. The insured died in New York; his beneficiary moved to Georgia and sued to recover on the policy. The insurance company defended on the ground that the insured, in the application for the policy, had made materially false statements that rendered it void under New York law. This Court reversed the Georgia court's application of its contrary rule that all questions of the policy's validity must be determined by the jury. The Court found a violation of the Full Faith and Credit Clause, because, "[i]n respect to the accrual of the right asserted under the contract . . . , there was no occurrence, nothing done, to which the law of Georgia could apply." Id. at 299 U. S. 182 . In other words, the Court determined that Georgia had no legitimate interest in applying its own law to the legal issue of liability. Georgia's contacts with the contract of insurance were nonexistent. [ Footnote 3/2 ] See Home Ins. Co. v. Dick, 281 U. S. 397 , 281 U. S. 408 (1930). In summary, the significance of the contacts between a forum State and the litigation must be assessed in light of Page 449 U. S. 336 these two important constitutional policies. [ Footnote 3/3 ] A contact, or a pattern of contacts, satisfies the Constitution when it protects the litigants from being unfairly surprised if the forum State applies its own law, and when the application of the forum's law reasonably can be understood to further a legitimate public policy of the forum State. II Recognition of the complexity of the constitutional inquiry requires that this Court apply these principles with restraint. Applying these principles to the facts of this case, I do not believe, however, that Minnesota had sufficient contacts with the "persons and events" in this litigation to apply its rule permitting stacking. I would agree that no reasonable expectations of the parties were frustrated. The risk insured by petitioner was not geographically limited. See Clay v. Sun Ins. Office, Ltd., 377 U.S. at 377 U. S. 182 . The close proximity of Hager City, Wis., to Minnesota, and the fact that Hague commuted daily to Red Wing, Minn., for many years, should have led the insurer to realize that there was a reasonable probability that the risk would materialize in Minnesota. Under our precedents, it is plain that Minnesota could have applied its own law to an accident occurring within its borders. See ante at 449 U. S. 318 , n. 24. The fact that the accident did not, in fact, occur in Minnesota is not controlling, because the expectations of the litigants before the cause of Page 449 U. S. 337 action accrues provide the pertinent perspective. See Weintraub 455; n. 1, supra. The more doubtful question in this case is whether application of Minnesota's substantive law reasonably furthers a legitimate state interest. The plurality attempts to give substance to the tenuous contacts between Minnesota and this litigation. Upon examination, however, these contacts are either trivial or irrelevant to the furthering of any public policy of Minnesota. First, the post-accident residence of the plaintiff beneficiary is constitutionally irrelevant to the choice of law question. John Hancock Mut. Life Ins. Co. v. Yates, supra. The plurality today insists that Yates only held that a post-occurrence move to the forum State could not, "in and of itself," confer power on the forum to apply its own law, but did not establish that such a change of residence was irrelevant. Ante at 449 U. S. 319 . What the Yates Court held, however, was that "there was no occurrence, nothing done, to which the law of Georgia could apply." 299 U.S. at 299 U. S. 182 (emphasis added). Any possible ambiguity in the Court's view of the significance of a post-occurrence change of residence is dispelled by Home Ins. Co. v. Dick, supra, cited by the Yates Court, where it was held squarely that Dick's post-accident move to the forum State was "without significance." 281 U.S. at 281 U. S. 408 . This rule is sound. If a plaintiff could choose the substantive rules to be applied to an action by moving to a hospitable forum, the invitation to forum shopping would be irresistible. Moreover, it would permit the defendant's reasonable expectations at the time the cause of action accrues to be frustrated, because it would permit the choice of law question to turn on a post-accrual circumstance. Finally, post-accrual residence has nothing to do with facts to which the forum State proposes to apply its rule; it is unrelated to the substantive legal issues presented by the litigation. Second, the plurality finds it significant that the insurer does business in the forum State. Ante at 449 U. S. 317 -318. The State Page 449 U. S. 338 does have a legitimate interest in regulating the practices of such an insurer. But this argument proves too much. The insurer here does business in all 50 States. The forum State has no interest in regulating that conduct of the insurer unrelated to property, persons, or contracts executed within the forum State. [ Footnote 3/4 ] See Hoopeston Canning Co. v. Cullen, 318 U. S. 313 , 318 U. S. 319 (1943). The plurality recognizes this flaw, and attempts to bolster the significance of the local presence of the insurer by combining it with the other factors deemed significant: the presence of the plaintiff and the fact that the deceased worked in the forum State. This merely restates the basic question in the case. Third, the plurality emphasizes particularly that the insured worked in the forum State. [ Footnote 3/5 ] Ante at 449 U. S. 313 -317. The fact that the insured was a nonresident employee in the forum Page 449 U. S. 339 State provides a significant contact for the furtherance of some local policies. See, e.g., Pacific Ins. Co. v. Industrial Accident Comm'n, 306 U. S. 493 (1939) (forum State's interest in compensating workers for employment-related injuries occurring within the State); Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U. S. 532 , 294 U. S. 549 (1935) (forum State's interest in compensating the employment-related injuries of a worker hired in the State). The insured's place of employment is not, however, significant in this case. Neither the nature of the insurance policy, the events related to the accident, nor the immediate question of stacking coverage is in any way affected or implicated by the insured's employment status. The plurality's opinion is understandably vague in explaining how trebling the benefits to be paid to the estate of a nonresident employee furthers any substantial state interest relating to employment. Minnesota does not wish its workers to die in automobile accidents, but permitting stacking will not further this interest. The substantive issue here is solely one of compensation, and whether the compensation provided by this policy is increased or not will have no relation to the State's employment policies or police power. See 449 U.S. 302 fn3/5|>n. 5, supra. Neither taken separately nor in the aggregate do the contacts asserted by the plurality today indicate that Minnesota's application of its substantive rule in this case will further any legitimate state interest. [ Footnote 3/6 ] The plurality focuses Page 449 U. S. 340 only on physical contacts vel non, and, in doing, so pays scant attention to the more fundamental reasons why our precedents require reasonable policy-related contacts in choice of law cases. Therefore, I dissent. [ Footnote 3/1 ] Home Ins. Co. v. Dick, 281 U. S. 397 (1930), is a case where the reasonable expectations of a litigant were frustrated. The insurance contract confined the risk to Mexico, where the loss occurred and where both the insurer and the insured resided until the claim accrued. This Court found a violation of the Due Process Clause when Texas, the forum State, applied a local rule to allow the insured to gain a recovery unavailable under Mexican law. Because of the geographic limitation on the risk, and because there were no contacts with the forum State until the claim accrued, the insurer could have had no reasonable expectation that Texas law would be applied to interpret its obligations under the contract. See Weintraub 455. [ Footnote 3/2 ] "It is manifest that Georgia had no interest in the application to this case of any policy to be found in its laws. When the contract was entered into, and at all times until the insured died, the parties and the transaction were beyond the legitimate reach of whatever policy Georgia may have had. Any interest asserted by Georgia must relate to the circumstance that the action is tried there, and must arise not from any policy directed to the business of life insurance but from some policy having to do with the business of the courts. This was apparently recognized even by the Georgia court; hence the disingenuous characterization of the matter as one of 'procedure,' rather than of 'substance.'" Currie 236. See also id. at 232-233. [ Footnote 3/3 ] The plurality today apparently recognizes that the significance of the contacts must be evaluated in light of the policies our review serves. It acknowledges that the sufficiency of the same contacts sometimes will differ in jurisdiction and choice of law questions. Ante at 449 U. S. 317 , n. 23. The plurality, however, pursues the rationale for the requirement of sufficient contacts in choice of law cases no further than to observe that the forum's application of its own law must be "neither arbitrary nor fundamentally unfair." Ante at 449 U. S. 313 . But this general prohibition does not distinguish questions of choice of law from those of jurisdiction, or from much of the jurisprudence of the Fourteenth Amendment. [ Footnote 3/4 ] The petitioner in John Hancock Mut. Life Ins. Co. v. Yates, 299 U. S. 178 (1936), did business in Georgia, the forum State, at the time of that case. See The Insurance Almanac 715 (1935). Also, Georgia extensively regulated insurance practices within the State at that time. See Ga.Code § 56-101 et seq. (1933). This Court did not hint in Yates that this fact was of the slightest significance to the choice of law question, although it would have been crucial for the exercise of in personam jurisdiction. [ Footnote 3/5 ] The plurality exacts double service from this fact, by finding a separate contact in that the insured commuted daily to his job. Ante at 449 U. S. 314 -315. This is merely a repetition of the facts that the insured lived in Wisconsin and worked in Minnesota. The State does have an interest in the safety of motorists who use its roads. This interest is not limited to employees, but extends to all nonresident motorists on its highways. This safety interest, however, cannot encompass, either in logic or in any practical sense, the determination whether a nonresident's estate can stack benefit coverage in a policy written in another State regarding an accident that occurred on another State's roads. Cardillo v. Liberty Mutual Ins. Co., 330 U. S. 469 (1947), hardly establishes commutation as an independent contact; the case merely approved the application of a forum State's law to an industrial accident occurring in a neighboring State when the employer and the employee both resided in the forum State. [ Footnote 3/6 ] The opinion of JUSTICE STEVENS concurring in the judgment supports my view that the forum State's application of its own law to this case cannot be justified by the existence of relevant minimum contacts. As JUSTICE STEVENS observes, the principal factors relied on by the plurality are "either irrelevant to or possibly even tend to undermine the [plurality's] conclusion." Ante at 449 U. S. 331 . The interesting analysis he proposes to uphold the State's judgment is, however, difficult to reconcile with our prior decisions, and may create more problems than it solves. For example, it seems questionable to measure the interest of a State in a controversy by the degree of conscious reliance on that State's law by private parties to a contract. Ante at 449 U. S. 324 . Moreover, scrutinizing the strength of the interests of a nonforum State may draw this Court back into the discredited practice of weighing the relative interests of various States in a particular controversy. See ante at 449 U.S. 308 , n. 10 (plurality opinion).

In Allstate Ins. Co. v. Hague, the US Supreme Court decided that Minnesota's choice to apply its own law, allowing stacking of uninsured motorist coverage, was valid as the state had significant connections to the case and its application was neither arbitrary nor unfair. Minnesota's interest in its non-resident employees and their safety, as well as the fact that the insurance company conducted business in multiple states, were key factors. Justices disagreed on the rationale, but upheld Minnesota's judgment.

Lawsuits & Legal Procedures

Helicopteros Nacionales v. Hall

https://supreme.justia.com/cases/federal/us/466/408/

U.S. Supreme Court Helicopteros Nacionales v. Hall, 466 U.S. 408 (1984) Helicopteros Nacionales de Columbia v. Hall No. 82-1127 Argued November 8, 1983 Decided April 24, 1984 466 U.S. 408 CERTIORARI TO THE SUPREME COURT OF TEXAS Syllabus Petitioner, a Colombian corporation, entered into a contract to provide helicopter transportation for a Peruvian consortium, the alter ego of a joint venture that had its headquarters in Houston, Tex., during the consortium's construction of a pipeline in Peru for a Peruvian state-owned oil company. Petitioner has no place of business in Texas, and never has been licensed to do business there. Its only contacts with the State consisted of sending its chief executive officer to Houston to negotiate the contract with the consortium, accepting into its New York bank account checks drawn by the consortium on a Texas bank, purchasing helicopters, equipment, and training services from a Texas manufacturer, and sending personnel to that manufacturer's facilities for training. After a helicopter owned by petitioner crashed in Peru, resulting in the death of respondents' decedents -- United States citizens who were employed by the consortium -- respondents instituted wrongful death actions in a Texas state court against the consortium, the Texas manufacturer, and petitioner. Denying petitioner's motion to dismiss the actions for lack of in personam jurisdiction over it, the trial court entered judgment against petitioner on a jury verdict in favor of respondents. The Texas Court of Civil Appeals reversed, holding that in personam jurisdiction over petitioner was lacking, but in turn was reversed by the Texas Supreme Court. Held: Petitioner's contacts with Texas were insufficient to satisfy the requirements of the Due Process Clause of the Fourteenth Amendment, and hence to allow the Texas court to assert in personam jurisdiction over petitioner. The one trip to Houston by petitioner's chief executive officer for the purpose of negotiating the transportation services contract cannot be regarded as a contact of a "continuous and systematic" nature, and thus cannot support an assertion of general jurisdiction. Similarly, petitioner's acceptance of checks drawn on a Texas bank is of negligible significance for purposes of determining whether petitioner had sufficient contacts in Texas. Nor were petitioner's purchases of helicopters and equipment from the Texas manufacturer and the related training trips a sufficient basis for the Texas court's assertion of jurisdiction. Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U. S. 516 . Mere purchases, even if occurring at regular intervals, are not enough to warrant Page 466 U. S. 409 a State's assertion of in personam jurisdiction over a nonresident corporation in a cause of action not related to the purchases. And the fact that petitioner sent personnel to Texas for training in connection with the purchases did not enhance the nature of petitioner's contacts with Texas. Pp. 466 U. S. 413 -419. 638 S.W.2d 870 , reversed. BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, MARSHALL, POWELL, REHNQUIST STEVENS, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, post, p. 466 U. S. 419 . JUSTICE BLACKMUN delivered the opinion of the Court. We granted certiorari in this case, 460 U.S. 1021 (1983), to decide whether the Supreme Court of Texas correctly ruled that the contacts of a foreign corporation with the State of Texas were sufficient to allow a Texas state court to assert jurisdiction over the corporation in a cause of action not arising out of or related to the corporation's activities within the State. I Petitioner Helicopteros Nacionales de Colombia, S. A. (Helicol), is a Colombian corporation with its principal place of business in the city of Bogota in that country. It is engaged in the business of providing helicopter transportation for oil and construction companies in South America. On Page 466 U. S. 410 January 26, 1976, a helicopter owned by Helicol crashed in Peru. Four United States citizens were among those who lost their lives in the accident. Respondents are the survivors and representatives of the four decedents. At the time of the crash, respondents' decedents were employed by Consorcio, a Peruvian consortium, and were working on a pipeline in Peru. Consorcio is the alter ego of a joint venture named Williams-Sedco-Horn (WSH). [ Footnote 1 ] The venture had its headquarters in Houston, Tex. Consorcio had been formed to enable the venturers to enter into a contract with Petro Peru, the Peruvian state-owned oil company. Consorcio was to construct a pipeline for Petro Peru running from the interior of Peru westward to the Pacific Ocean. Peruvian law forbade construction of the pipeline by any non-Peruvian entity. Consorcio/WSH [ Footnote 2 ] needed helicopters to move personnel, materials, and equipment into and out of the construction area. In 1974, upon request of Consorcio/WSH, the chief executive officer of Helicol, Francisco Restrepo, flew to the United States and conferred in Houston with representatives of the three joint venturers. At that meeting, there was a discussion of prices, availability, working conditions, fuel, supplies, and housing. Restrepo represented that Helicol could have the first helicopter on the job in 15 days. The Consorcio/WSH representatives decided to accept the contract proposed by Restrepo. Helicol began performing before the agreement was formally signed in Peru on November 11, 1974. [ Footnote 3 ] The contract was written in Spanish on Page 466 U. S. 411 official government stationery and provided that the residence of all the parties would be Lima, Peru. It further stated that controversies arising out of the contract would be submitted to the jurisdiction of Peruvian courts. In addition, it provided that Consorcio/WSH would make payments to Helicol's account with the Bank of America in New York City. App. 12a. Aside from the negotiation session in Houston between Restrepo and the representatives of Consorcio/WSH, Helicol had other contacts with Texas. During the years 1970-1977, it purchased helicopters (approximately 80% of its fleet), spare parts, and accessories for more than $4 million from Bell Helicopter Company in Fort Worth. In that period, Helicol sent prospective pilots to Fort Worth for training and to ferry the aircraft to South America. It also sent management and maintenance personnel to visit Bell Helicopter in Fort Worth during the same period in order to receive "plant familiarization" and for technical consultation. Helicol received into its New York City and Panama City, Fla., bank accounts over $5 million in payments from Consorcio/WSH drawn upon First City National Bank of Houston. Beyond the foregoing, there have been no other business contacts between Helicol and the State of Texas. Helicol never has been authorized to do business in Texas, and never has had an agent for the service of process within the State. It never has performed helicopter operations in Texas or sold any product that reached Texas, never solicited business in Texas, never signed any contract in Texas, never had any employee based there, and never recruited an employee in Texas. In addition, Helicol never has owned real or personal property in Texas, and never has maintained an office or establishment there. Helicol has maintained no records in Texas, and has no shareholders in that State. [ Footnote 4 ] None of the Page 466 U. S. 412 respondents or their decedents were domiciled in Texas, Tr. of Oral Arg. 17, 18, [ Footnote 5 ] but all of the decedents were hired in Houston by Consorcio/WSH to work on the Petro Peru pipeline project. Respondents instituted wrongful death actions in the District Court of Harris County, Tex., against Consorcio/WSH, Bell Helicopter Company, and Helicol. Helicol filed special appearances and moved to dismiss the actions for lack of in personam jurisdiction over it. The motion was denied. After a consolidated jury trial, judgment was entered against Helicol on a jury verdict of $1,141,200 in favor of respondents. [ Footnote 6 ] App. 174a. The Texas Court of Civil Appeals, Houston, First District, reversed the judgment of the District Court, holding that in personam jurisdiction over Helicol was lacking. 616 S.W.2d 247 (1981). The Supreme Court of Texas, with three justices dissenting, initially affirmed the judgment of the Court of Civil Appeals. App. to Pet. for Cert. 46a-62a. Seven months later, however, on motion for rehearing, the court withdrew its prior opinions and, again with three justices dissenting, reversed the judgment of the intermediate court. 638 S.W.2d 870 (1982). In ruling that the Texas courts had Page 466 U. S. 413 in personam jurisdiction, the Texas Supreme Court first held that the State's long-arm statute reaches as far as the Due Process Clause of the Fourteenth Amendment permits. Id. at 872. [ Footnote 7 ] Thus, the only question remaining for the court to decide was whether it was consistent with the Due Process Clause for Texas courts to assert in personam jurisdiction over Helicol. Ibid. II The Due Process Clause of the Fourteenth Amendment operates to limit the power of a State to assert in personam Page 466 U. S. 414 jurisdiction over a nonresident defendant. Pennoyer v. Neff, 95 U. S. 714 (1878). Due process requirements are satisfied when in personam jurisdiction is asserted over a nonresident corporate defendant that has "certain minimum contacts with [the forum] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U. S. 310 , 326 U. S. 316 (1945), quoting Milliken v. Meyer, 311 U. S. 457 , 311 U. S. 463 (1940). When a controversy is related to or "arises out of" a defendant's contacts with the forum, the Court has said that a "relationship among the defendant, the forum, and the litigation" is the essential foundation of in personam jurisdiction. Shaffer v. Heitner, 433 U. S. 186 , 433 U. S. 204 (1977). [ Footnote 8 ] Even when the cause of action does not arise out of or relate to the foreign corporation's activities in the forum State, [ Footnote 9 ] due process is not offended by a State's subjecting the corporation to its in personam jurisdiction when there are sufficient contacts between the State and the foreign corporation. Perkins v. Benguet Consolidated Mining Co., 342 U. S. 437 (1952); see Keeton v. Hustler Magazine, Inc., 465 U. S. 770 , 465 U. S. 779 -780 (1984). In Perkins, the Court addressed a situation in which state courts had asserted general jurisdiction over a defendant foreign corporation. During the Japanese Page 466 U. S. 415 occupation of the Philippine Islands, the president and general manager of a Philippine mining corporation maintained an office in Ohio from which he conducted activities on behalf of the company. He kept company files and held directors' meetings in the office, carried on correspondence relating to the business, distributed salary checks drawn on two active Ohio bank accounts, engaged an Ohio bank to act as transfer agent, and supervised policies dealing with the rehabilitation of the corporation's properties in the Philippines. In short, the foreign corporation, through its president, "ha[d] been carrying on in Ohio a continuous and systematic, but limited, part of its general business," and the exercise of general jurisdiction over the Philippine corporation by an Ohio court was "reasonable and just." 342 U.S. at 342 U. S. 438 , 445. All parties to the present case concede that respondents' claims against Helicol did not "arise out of," and are not related to, Helicol's activities within Texas. [ Footnote 10 ] We thus must Page 466 U. S. 416 explore the nature of Helicol's contacts with the State of Texas to determine whether they constitute the kind of continuous and systematic general business contacts the Court found to exist in Perkins. We hold that they do not. It is undisputed that Helicol does not have a place of business in Texas, and never has been licensed to do business in the State. Basically, Helicol's contacts with Texas consisted of sending its chief executive officer to Houston for a contract-negotiation session; accepting into its New York bank account checks drawn on a Houston bank; purchasing helicopters, equipment, and training services from Bell Helicopter for substantial sums; and sending personnel to Bell's facilities in Fort Worth for training. The one trip to Houston by Helicol's chief executive officer for the purpose of negotiating the transportation services contract with Consorcio/WSH cannot be described or regarded as a contact of a "continuous and systematic" nature, as Perkins described it, see also International Shoe Co. v. Washington, 326 U.S. at 326 U. S. 320 , and thus cannot support an assertion of in personam jurisdiction over Helicol by a Texas court. Similarly, Helicol's acceptance from Consorcio/WSH of checks drawn on a Texas bank is of negligible significance for purposes of determining whether Helicol had sufficient contacts in Texas. There is no indication that Helicol ever requested that the checks be drawn on a Texas bank or that there was any negotiation between Helicol and Consorcio/WSH with respect to the location or identity of the bank on which checks would be drawn. Common sense and everyday experience suggest that, absent unusual circumstances, [ Footnote 11 ] the bank on which a check is drawn is generally of little Page 466 U. S. 417 consequence to the payee, and is a matter left to the discretion of the drawer. Such unilateral activity of another party or a third person is not an appropriate consideration when determining whether a defendant has sufficient contacts with a forum State to justify an assertion of jurisdiction. See Kulko v. California Superior Court, 436 U. S. 84 , 436 U. S. 93 (1978) (arbitrary to subject one parent to suit in any State where other parent chooses to spend time while having custody of child pursuant to separation agreement); Hanson v. Denckla, 357 U. S. 235 , 357 U.S. 253 (1958) ("The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State"); see also Lilly, Jurisdiction Over Domestic and Alien Defendants, 69 Va.L.Rev. 85, 99 (1983). The Texas Supreme Court focused on the purchases and the related training trips in finding contacts sufficient to support an assertion of jurisdiction. We do not agree with that assessment, for the Court's opinion in Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U. S. 516 (1923) (Brandeis, J., for a unanimous tribunal), makes clear that purchases and related trips, standing alone, are not a sufficient basis for a State's assertion of jurisdiction. The defendant in Rosenberg was a small retailer in Tulsa, Okla., who dealt in men's clothing and furnishings. It never had applied for a license to do business in New York, nor had it at any time authorized suit to be brought against it there. It never had an established place of business in New York, and never regularly carried on business in that State. Its only connection with New York was that it purchased from New York wholesalers a large portion of the merchandise sold in its Tulsa store. The purchases sometimes were made by correspondence and sometimes through visits to New York by an officer of the defendant. The Court concluded: "Visits on such business, even if occurring at regular intervals, would not warrant the inference that the corporation was present within the jurisdiction of [New York]." Id. at 518. Page 466 U. S. 418 This Court in International Shoe acknowledged, and did not repudiate, its holding in Rosenberg. See 326 U.S. at 326 U. S. 318 . In accordance with Rosenberg, we hold that mere purchases, even if occurring at regular intervals, are not enough to warrant a State's assertion of in personam jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions. [ Footnote 12 ] Nor can we conclude that the fact that Helicol sent personnel into Texas for training in connection with the purchase of helicopters and equipment in that State in any way enhanced the nature of Helicol's contacts with Texas. The training was a part of the package of goods and services purchased by Helicol from Bell Helicopter. The brief presence of Helicol employees in Texas for the purpose of attending the training sessions is no more a significant contact than were the trips to New York made by the buyer for the retail store in Rosenberg. See also Kulko v. California Superior Court, 436 U.S. at 436 U. S. 93 (basing California jurisdiction on 3-day and 1-day stopovers in that State "would make a mockery of " due process limitations on assertion of personal jurisdiction). III We hold that Helicol's contacts with the State of Texas were insufficient to satisfy the requirements of the Due Process Page 466 U. S. 419 Clause of the Fourteenth Amendment. [ Footnote 13 ] Accordingly, we reverse the judgment of the Supreme Court of Texas. It is so ordered. [ Footnote 1 ] The participants in the joint venture were Williams International Sudamericana, Ltd., a Delaware corporation; Sedco Construction Corporation, a Texas corporation; and Horn International, Inc., a Texas corporation. [ Footnote 2 ] Throughout the record in this case, the entity is referred to both as Consorcio and as WSH. We refer to it hereinafter as Consorcio/WSH. [ Footnote 3 ] Respondents acknowledge that the contract was executed in Peru, and not in the United States. Tr. of Oral Arg. 22-23. See App. 79a; Brief for Respondents 3. [ Footnote 4 ] The Colombian national airline, Aerovias Nacionales de Colombia, owns approximately 94% of Helicol's capital stock. The remainder is held by Aerovias Corporacion de Viajes and four South American individuals. See Brief for Petitioner 2, n. 2. [ Footnote 5 ] Respondents' lack of residential or other contacts with Texas of itself does not defeat otherwise proper jurisdiction. Keeton v. Hustler Magazine, Inc., 465 U. S. 770 , 465 U. S. 780 (1984); Calder v. Jones, 465 U. S. 783 , 465 U. S. 788 (1984). We mention respondents' lack of contacts merely to show that nothing in the nature of the relationship between respondents and Helicol could possibly enhance Helicol's contacts with Texas. The harm suffered by respondents did not occur in Texas. Nor is it alleged that any negligence on the part of Helicol took place in Texas. [ Footnote 6 ] Defendants Consorcio WSH and Bell Helicopter Company were granted directed verdicts with respect to respondents' claims against them. Bell Helicopter was granted a directed verdict on Helicol's cross-claim against it. App. 167a. Consorcio/WSH, as cross-plaintiff in a claim against Helicol, obtained a judgment in the amount of $70,000. Id. at 174a. [ Footnote 7 ] The State's long-arm statute is Tex.Rev.Civ.Stat.Ann., Art. 2031b (Vernon 1964 and Supp.1982-1983). It reads in relevant part: "Sec. 3. Any foreign corporation . . . that engages in business in this State, irrespective of any Statute or law respecting designation or maintenance of resident agents, and does not maintain a place of regular business in this State or a designated agent upon whom service may be made upon causes of action arising out of such business done in this State, the act or acts of engaging in such business within this State shall be deemed equivalent to an appointment by such foreign corporation . . . of the Secretary of State of Texas as agent upon whom service of process may be made in any action, suit or proceedings arising out of such business done in this State, wherein such corporation . . . is a party or is to be made a party." "Sec. 4. For the purpose of this Act, and without including other acts that may constitute doing business, any foreign corporation . . . shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State, or the committing of any tort in whole or in part in this State. The act of recruiting Texas residents, directly or through an intermediary located in Texas, for employment inside or outside of Texas shall be deemed doing business in this State." The last sentence of § 4 was added by 1979 Tex.Gen.Laws, ch. 245, § 1, and became effective August 27, 1979. The Supreme Court of Texas, in its principal opinion, relied upon rulings in U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760 (Tex.1977); Hoppenfeld v. Crook, 498 S.W.2d 52 (Tex.Civ.App.1973); and O'Brien v. Lanpar Co., 399 S.W.2d 340 (Tex.1966). It is not within our province, of course, to determine whether the Texas Supreme Court correctly interpreted the State's long-arm statute. We therefore accept that court's holding that the limits of the Texas statute are coextensive with those of the Due Process Clause. [ Footnote 8 ] It has been said that, when a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant's contacts with the forum, the State is exercising "specific jurisdiction" over the defendant. See Von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv.L.Rev. 1121, 1144-1164 (1966). [ Footnote 9 ] When a State exercises personal jurisdiction over a defendant in a suit not arising out of or related to the defendant's contacts with the forum, the State has been said to be exercising "general jurisdiction" over the defendant. See Brilmayer, How Contacts Count: Due Process Limitations on State Court Jurisdiction, 1980 S.Ct.Rev. 77, 80-81; Von Mehren & Trautman, 79 Harv.L.Rev. at 1136-1144; Calder v. Jones, 465 U.S. at 465 U. S. 786 . [ Footnote 10 ] See Brief for Respondents 14; Tr. of Oral Arg. 26-27, 30-31. Because the parties have not argued any relationship between the cause of action and Helicol's contacts with the State of Texas, we, contrary to the dissent's implication, post at 466 U. S. 419 -420, assert no "view" with respect to that issue. The dissent suggests that we have erred in drawing no distinction between controversies that "relate to" a defendant's contacts with a forum and those that "arise out of" such contacts. Post at 466 U. S. 420 . This criticism is somewhat puzzling, for the dissent goes on to urge that, for purposes of determining the constitutional validity of an assertion of specific jurisdiction, there really should be no distinction between the two. Post at 466 U. S. 427 -428. We do not address the validity or consequences of such a distinction, because the issue has not been presented in this case. Respondents have made no argument that their cause of action either arose out of or is related to Helicol's contacts with the State of Texas. Absent any briefing on the issue, we decline to reach the questions (1) whether the terms "arising out of" and "related to" describe different connections between a cause of action and a defendant's contacts with a forum, and (2) what sort of tie between a cause of action and a defendant's contacts with a forum is necessary to a determination that either connection exists. Nor do we reach the question whether, if the two types of relationship differ, a forum's exercise of personal jurisdiction in a situation where the cause of action "relates to," but does not "arise out of," the defendant's contacts with the forum should be analyzed as an assertion of specific jurisdiction. [ Footnote 11 ] For example, if the financial health and continued ability of the bank to honor the draft are questionable, the payee might request that the check be drawn on an account at some other institution. [ Footnote 12 ] This Court in International Shoe cited Rosenberg for the proposition that "the commission of some single or occasional acts of the corporate agent in a state sufficient to impose an obligation or liability on the corporation has not been thought to confer upon the state authority to enforce it." 326 U.S. at 326 U. S. 318 . Arguably, therefore, Rosenberg also stands for the proposition that mere purchases are not a sufficient basis for either general or specific jurisdiction. Because the case before us is one in which there has been an assertion of general jurisdiction over a foreign defendant, we need not decide the continuing validity of Rosenberg with respect to an assertion of specific jurisdiction, i.e., where the cause of action arises out of or relates to the purchases by the defendant in the forum State. [ Footnote 13 ] As an alternative to traditional minimum contacts analysis, respondents suggest that the Court hold that the State of Texas had personal jurisdiction over Helicol under a doctrine of "jurisdiction by necessity." See Shaffer v. Heitner, 433 U. S. 186 , 433 U. S. 211 , n. 37 (1977). We conclude, however, that respondents failed to carry their burden of showing that all three defendants could not be sued together in a single forum. It is not clear from the record, for example, whether suit could have been brought against all three defendants in either Colombia or Peru. We decline to consider adoption of a doctrine of jurisdiction by necessity -- a potentially far-reaching modification of existing law -- in the absence of a more complete record. JUSTICE BRENNAN, dissenting. Decisions applying the Due Process Clause of the Fourteenth Amendment to determine whether a State may constitutionally assert in personam jurisdiction over a particular defendant for a particular cause of action most often turn on a weighing of facts. See, e.g., Kulko v. California Superior Court, 436 U. S. 84 , 436 U. S. 92 (1978); id. at 436 U. S. 101 -102 (BRENNAN, J., dissenting). To a large extent, today's decision follows the usual pattern. Based on essentially undisputed facts, the Court concludes that petitioner Helicol's contacts with the State of Texas were insufficient to allow the Texas state courts constitutionally to assert "general jurisdiction" over all claims filed against this foreign corporation. Although my independent weighing of the facts leads me to a different conclusion, see infra at 466 U. S. 423 -424, the Court's holding on this issue is neither implausible nor unexpected. What is troubling about the Court's opinion, however, are the implications that might be drawn from the way in which the Court approaches the constitutional issue it addresses. First, the Court limits its discussion to an assertion of general jurisdiction of the Texas courts because, in its view, the Page 466 U. S. 420 underlying cause of action does "not aris[e] out of or relat[e] to the corporation's activities within the State." Ante at 466 U. S. 409 . Then, the Court relies on a 1923 decision in Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U. S. 516 , without considering whether that case retains any validity after our more recent pronouncements concerning the permissible reach of a State's jurisdiction. By posing and deciding the question presented in this manner, I fear that the Court is saying more than it realizes about constitutional limitations on the potential reach of in personam jurisdiction. In particular, by relying on a precedent whose premises have long been discarded, and by refusing to consider any distinction between controversies that "relate to" a defendant's contacts with the forum and causes of action that "arise out of" such contacts, the Court may be placing severe limitations on the type and amount of contacts that will satisfy the constitutional minimum. In contrast, I believe that the undisputed contacts in this case between petitioner Helicol and the State of Texas are sufficiently important, and sufficiently related to the underlying cause of action, to make it fair and reasonable for the State to assert personal jurisdiction over Helicol for the wrongful death actions filed by the respondents. Given that Helicol has purposefully availed itself of the benefits and obligations of the forum, and given the direct relationship between the underlying cause of action and Helicol's contacts with the forum, maintenance of this suit in the Texas courts "does not offend [the] traditional notions of fair play and substantial justice,'" International Shoe Co. v. Washington, 326 U. S. 310 , 326 U. S. 316 (1945) (quoting Milliken v. Meyer, 311 U. S. 457 , 311 U. S. 463 (1940)), that are the touchstone of jurisdictional analysis under the Due Process Clause. I therefore dissent. I The Court expressly limits its decision in this case to "an assertion of general jurisdiction over a foreign defendant." Page 466 U. S. 421 Ante at 466 U. S. 418 , n. 12. See ante at 466 U. S. 415 , and n. 10. Having framed the question in this way, the Court is obliged to address our prior holdings in Perkins v. Benguet Consolidated Mining Co., 342 U. S. 437 (1952), and Rosenberg Bros. & Co. v. Curtis Brown Co., supra. In Perkins, the Court considered a State's assertion of general jurisdiction over a foreign corporation that "ha[d] been carrying on . . . a continuous and systematic, but limited, part of its general business" in the forum. 342 U.S. at 342 U. S. 438 . Under the circumstances of that case, we held that such contacts were constitutionally sufficient "to make it reasonable and just to subject the corporation to the jurisdiction" of that State. Id. at 342 U. S. 445 (citing International Shoe, supra, at 326 U. S. 317 -320). Nothing in Perkins suggests, however, that such "continuous and systematic" contacts are a necessary minimum before a State may constitutionally assert general jurisdiction over a foreign corporation. The Court therefore looks for guidance to our 1923 decision in Rosenberg, supra, which until today was of dubious validity given the subsequent expansion of personal jurisdiction that began with International Shoe, supra, in 1945. In Rosenberg, the Court held that a company's purchases within a State, even when combined with related trips to the State by company officials, would not allow the courts of that State to assert general jurisdiction over all claims against the nonresident corporate defendant making those purchases. [ Footnote 2/1 ] Page 466 U. S. 422 Reasoning by analogy, the Court in this case concludes that Helicol's contacts with the State of Texas are no more significant than the purchases made by the defendant in Rosenberg. The Court makes no attempt, however, to ascertain whether the narrow view of in personam jurisdiction adopted by the Court in Rosenberg comports with "the fundamental transformation of our national economy" that has occurred since 1923. McGee v. International Life Ins. Co., 355 U. S. 220 , 355 U. S. 222 -223 (1957). See also World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286 , 444 U. S. 292 -293 (1980); id. at 444 U. S. 308 -309 (BRENNAN, J., dissenting); Hanson v. Denckla, 357 U. S. 235 , 357 U. S. 250 -251 (1958); id. at 357 U. S. 260 (Black, J., dissenting). This failure, in my view, is fatal to the Court's analysis. The vast expansion of our national economy during the past several decades has provided the primary rationale for expanding the permissible reach of a State's jurisdiction under the Due Process Clause. By broadening the type and amount of business opportunities available to participants in interstate and foreign commerce, our economy has increased the frequency with which foreign corporations actively pursue commercial transactions throughout the various States. In turn, it has become both necessary and, in my view, desirable to allow the States more leeway in bringing the activities of these nonresident corporations within the scope of their respective jurisdictions. This is neither a unique nor a novel idea. As the Court first noted in 1957: "[M]any commercial transactions touch two or more States, and may involve parties separated by the full continent. With this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines. At the Page 466 U. S. 423 same time, modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity." McGee, supra, at 355 U. S. 222 -223. See also World-Wide Volkswagen, supra, at 444 U. S. 293 (reaffirming that "[t]he historical developments noted in McGee . . . have only accelerated in the generation since that case was decided"); Hanson v. Denckla, supra, at 357 U. S. 250 -251. Moreover, this "trend . . . toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents," McGee, supra, at 355 U. S. 222 , is entirely consistent with the "traditional notions of fair play and substantial justice," International Shoe, 326 U.S. at 326 U. S. 316 , that control our inquiry under the Due Process Clause. As active participants in interstate and foreign commerce take advantage of the economic benefits and opportunities offered by the various States, it is only fair and reasonable to subject them to the obligations that may be imposed by those jurisdictions. And chief among the obligations that a nonresident corporation should expect to fulfill is amenability to suit in any forum that is significantly affected by the corporation's commercial activities. As a foreign corporation that has actively and purposefully engaged in numerous and frequent commercial transactions in the State of Texas, Helicol clearly falls within the category of nonresident defendants that may be subject to that forum's general jurisdiction. Helicol not only purchased helicopters and other equipment in the State for many years, but also sent pilots and management personnel into Texas to be trained in the use of this equipment and to consult with the seller on technical matters. [ Footnote 2/2 ] Moreover, negotiations for the Page 466 U. S. 424 contract under which Helicol provided transportation services to the joint venture that employed the respondents' decedents also took place in the State of Texas. Taken together, these contacts demonstrate that Helicol obtained numerous benefits from its transaction of business in Texas. In turn, it is eminently fair and reasonable to expect Helicol to face the obligations that attach to its participation in such commercial transactions. Accordingly, on the basis of continuous commercial contacts with the forum, I would conclude that the Due Process Clause allows the State of Texas to assert general jurisdiction over petitioner Helicol. II The Court also fails to distinguish the legal principles that controlled our prior decisions in Perkins and Rosenberg. In particular, the contacts between petitioner Helicol and the State of Texas, unlike the contacts between the defendant and the forum in each of those cases, are significantly related to the cause of action alleged in the original suit filed by the respondents. Accordingly, in my view, it is both fair and reasonable for the Texas courts to assert specific jurisdiction over Helicol in this case. By asserting that the present case does not implicate the specific jurisdiction of the Texas courts, see ante at 466 U. S. 415 , and nn. 10 and 12, the Court necessarily removes its decision Page 466 U. S. 425 from the reality of the actual facts presented for our consideration. [ Footnote 2/3 ] Moreover, the Court refuses to consider any distinction between contacts that are "related to" the underlying cause of action and contacts that "give rise" to the underlying cause of action. In my view, however, there is a substantial difference between these two standards for asserting specific jurisdiction. Thus, although I agree that the respondents' cause of action did not formally "arise out of" specific activities initiated by Helicol in the State of Texas, I believe that the wrongful death claim filed by the respondents is significantly related to the undisputed contacts between Helicol and the forum. On that basis, I would conclude that the Due Process Clause allows the Texas courts to assert specific jurisdiction over this particular action. The wrongful death actions filed by the respondents were premised on a fatal helicopter crash that occurred in Peru. Helicol was joined as a defendant in the lawsuits because it provided transportation services, including the particular helicopter and pilot involved in the crash, to the joint venture Page 466 U. S. 426 that employed the decedents. Specifically, the respondent Hall claimed in her original complaint that "Helicol is . . . legally responsible for its own negligence through its pilot employee." App. 6a. Viewed in light of these allegations, the contacts between Helicol and the State of Texas are directly and significantly related to the underlying claim filed by the respondents. The negotiations that took place in Texas led to the contract in which Helicol agreed to provide the precise transportation services that were being used at the time of the crash. Moreover, the helicopter involved in the crash was purchased by Helicol in Texas, and the pilot whose negligence was alleged to have caused the crash was actually trained in Texas. See Tr. Of Oral Arg. 5, 22. This is simply not a case, therefore, in which a state court has asserted jurisdiction over a nonresident defendant on the basis of wholly unrelated contacts with the forum. Rather, the contacts between Helicol and the forum are directly related to the negligence that was alleged in the respondent Hall's original complaint. [ Footnote 2/4 ] Because Helicol should have expected to be amenable to suit in the Texas courts for claims directly related to these contacts, it is fair and reasonable to allow the assertion of jurisdiction in this case. Despite this substantial relationship between the contacts and the cause of action, the Court declines to consider whether the courts of Texas may assert specific jurisdiction over this suit. Apparently, this simply reflects a narrow interpretation of the question presented for review. See ante at 466 U. S. 415 -416, n. 10. It is nonetheless possible that the Court's opinion may be read to imply that the specific jurisdiction of the Texas courts is inapplicable because the cause of action Page 466 U. S. 427 did not formally "arise out of" the contacts between Helicol and the forum. In my view, however, such a rule would place unjustifiable limits on the bases under which Texas may assert its jurisdictional power. [ Footnote 2/5 ] Limiting the specific jurisdiction of a forum to cases in which the cause of action formally arose out of the defendant's contacts with the State would subject constitutional standards under the Due Process Clause to the vagaries of the substantive law or pleading requirements of each State. For example, the complaint filed against Helicol in this case alleged negligence based on pilot error. Even though the pilot was trained in Texas, the Court assumes that the Texas courts may not assert jurisdiction over the suit because the cause of action "did not arise out of,' and [is] not related to," that training. See ante at 466 U. S. 415 . If, however, the applicable substantive law required that negligent training of the pilot was a necessary element of a cause of action for pilot error, or if the respondents had simply added an allegation of negligence in the training provided for the Helicol pilot, then presumably the Court would concede that the specific jurisdiction of the Texas courts was applicable. Our interpretation of the Due Process Clause has never been so dependent upon the applicable substantive law or the State's formal pleading requirements. At least since International Shoe Co. v. Washington, 326 U. S. 310 (1945), the principal focus when determining whether a forum may constitutionally assert jurisdiction over a nonresident defendant has been on fairness and reasonableness to the defendant. To this extent, a court's specific jurisdiction should be applicable whenever the cause of action arises out of or relates to the contacts between the defendant and the forum. It is eminently Page 466 U. S. 428 fair and reasonable, in my view, to subject a defendant to suit in a forum with which it has significant contacts directly related to the underlying cause of action. Because Helicol's contacts with the State of Texas meet this standard, I would affirm the judgment of the Supreme Court of Texas. [ Footnote 2/1 ] The Court leaves open the question whether the decision in Rosenberg was intended to address any constitutional limits on an assertion of "specific jurisdiction." Ante at 466 U. S. 418 , n. 12 (citing International Shoe, 326 U.S. at 326 U. S. 318 ). If anything is clear from Justice Brandeis' opinion for the Court in Rosenberg, however, it is that the Court was concerned only with general jurisdiction over the corporate defendant. See 260 U.S. at 260 U. S. 517 ("The sole question for decision is whether . . . defendant was doing business within the State of New York in such manner and to such extent as to warrant the inference that it was present there"); id. at 260 U. S. 518 (the corporation's contacts with the forum "would not warrant the inference that the corporation was present within the jurisdiction of the State"); ante at 466 U. S. 417 . The Court's resuscitation of Rosenberg, therefore, should have no bearing upon any forum's assertion of jurisdiction over claims that arise out of or relate to a defendant's contacts with the State. [ Footnote 2/2 ] Although the Court takes note of these contacts, it concludes that they did not "enhanc[e] the nature of Helicol's contacts with Texas [because the] training was a part of the package of goods and services purchased by Helicol." Ante at 466 U. S. 418 . Presumably, the Court's statement simply recognizes that participation in today's interdependent markets often necessitates the use of complicated purchase contracts that provide for numerous contacts between representatives of the buyer and seller, as well as training for related personnel. Ironically, however, while relying on these modern-day realities to denigrate the significance of Helicol's contacts with the forum, the Court refuses to acknowledge that these same realities require a concomitant expansion in a forum's jurisdictional reach. See supra at 466 U. S. 421 -423. As a result, when deciding that the balance in this case must be struck against jurisdiction, the Court loses sight of the ultimate inquiry -- whether it is fair and reasonable to subject a nonresident corporate defendant to the jurisdiction of a State when that defendant has purposefully availed itself of the benefits and obligations of that particular forum. Cf. Hanson v. Denckla, 357 U. S. 235 , 357 U.S. 253 (1958). [ Footnote 2/3 ] Nor do I agree with the Court that the respondents have conceded that their claims are not related to Helicol's activities within the State of Texas. Although parts of their written and oral arguments before the Court proceed on the assumption that no such relationship exists, other portions suggest just the opposite: "If it is the concern of the Solicitor General [appearing for the United States as amicus curiae ] that a holding for Respondents here will cause foreign companies to refrain from purchasing in the United States for fear of exposure to general jurisdiction on unrelated causes of action, such concern is not well founded." "Respondents' cause is not dependent on a ruling that mere purchases in a state, together with incidental training for operating and maintaining the merchandise purchased, can constitute the ties, contacts and relations necessary to justify jurisdiction over an unrelated cause of action. However, regular purchases and training coupled with other contacts, ties and relations may form the basis for jurisdiction." Brief for Respondents 13-14. Thus, while the respondents' position before this Court is admittedly less than clear, I believe it is preferable to address the specific jurisdiction of the Texas courts because Helicol's contacts with Texas are in fact related to the underlying cause of action. [ Footnote 2/4 ] The jury specifically found that "the pilot failed to keep the helicopter under proper control," that "the helicopter was flown into a treetop fog condition, whereby the vision of the pilot was impaired," that "such flying was negligence," and that "such negligence . . . was a proximate cause of the crash." See App. 167a-168a. On the basis of these findings, Helicol was ordered to pay over $1 million in damages to the respondents. [ Footnote 2/5 ] Compare Von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv.L.Rev. 1121, 1144-1163 (1966), with Brilmayer, How Contacts Count: Due Process Limitations on State Court Jurisdiction, 1980 S.Ct.Rev. 77, 80-88. See also Lilly, Jurisdiction Over Domestic and Alien Defendants, 69 Va.L.Rev. 85, 100-101, and n. 66 (1983).

Here is a summary of the case: The U.S. Supreme Court ruled that a Texas court could not exercise personal jurisdiction over a Colombian corporation, Helicopteros Nacionales, in a wrongful death lawsuit filed by the families of American citizens who died in a helicopter crash in Peru. The Court found that the corporation's limited contacts with Texas, including negotiating a contract, accepting payments, and purchasing helicopters and equipment from a Texas-based company, were insufficient to establish jurisdiction without violating the Due Process Clause of the Fourteenth Amendment. The Court held that the corporation's connections to Texas were not "continuous and systematic," and the lawsuit was not directly related to the corporation's activities in the state. This case sets a precedent for determining when a state court can assert jurisdiction over a foreign corporation.

Lawsuits & Legal Procedures

Cooper v. Federal Reserve Bank of Richmond

https://supreme.justia.com/cases/federal/us/467/867/

U.S. Supreme Court Cooper v. FRB of Richmond, 467 U.S. 867 (1984) Cooper v. Federal Reserve Bank of Richmond No. 83-185 Argued March 19, 1984 Decided June 25, 1984 467 U.S. 867 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Syllabus The Equal Employment Opportunity Commission brought an action in Federal District Court against respondent Federal Reserve Bank, alleging that one of respondent's branches (the Bank) violated § 703(a) of Title VII of the Civil Rights Act of 1964 by engaging in employment discrimination based on race during a specified time period. Subsequently, four of the Bank's employees (the Cooper petitioners) were allowed to intervene as plaintiffs, and they alleged that the Bank's employment practices violated 42 U.S.C. § 1981, as well as Title VII, and that they could adequately represent a class of black employees against whom the Bank had discriminated. The District Court then certified the class pursuant to Federal Rules of Civil Procedure 23(b)(2) and (3), and ordered that notice be given to the class members. Among the recipients of the notice were the Baxter petitioners. At the trial, both the Cooper petitioners and the Baxter petitioners testified, and the District Court held that the Bank had engaged in a pattern and practice of racial discrimination with respect to employees in certain specified pay grades, but not with respect to employees above those grades, and found that the Bank had discriminated against two of the Cooper petitioners, but not against the others. Thereafter, the Baxter petitioners moved to intervene, but the District Court denied the motion on the ground, as to one petitioner, that since she was a member of the class to which relief had been ordered, her rights would be protected in the later relief stage of the proceedings, and, as to the other petitioners, on the ground that they were employed in jobs above the specified grades for which relief would be granted. These latter Baxter petitioners then filed a separate action against the Bank in the District Court, alleging that each of them had been denied a promotion because of their race in violation of 42 U.S.C. § 1981. The District Court denied the Bank's motion to dismiss but certified its order for interlocutory appeal, which was then consolidated with the Bank's pending appeal in the class action. The Court of Appeals reversed on the merits in the class action, holding that there was insufficient evidence to establish a pattern or practice of racial discrimination in the specified grades, and that none of the Cooper petitioners had been discriminated against. The court further held that, under Page 467 U. S. 868 the doctrine of res judicata, the judgment in the class action precluded the Baxter petitioners from maintaining their individual claims against the Bank. Held: The Baxter petitioners are not precluded from maintaining their separate action against the Bank. While the Court of Appeals was correct in generally concluding that the Baxter petitioners, as members of the class represented in the class action, were bound by the adverse judgment in that action, the court erred on the preclusive effect it attached to that judgment. The judgment bars the class members from bringing another class action against the Bank alleging a pattern or practice of racial discrimination for the same time period, and precludes the class members in any other litigation with the Bank from relitigating the question whether the Bank engaged in such a pattern or practice of racial discrimination during that same time period. But the judgment is not dispositive of the individual claims of the Baxter petitioners. Assuming that they establish a prima facie case of discrimination, the Bank will be required to articulate a legitimate reason for each of the challenged employment decisions, and, if it meets that burden, the ultimate question regarding motivation in the Baxter petitioners' individual cases will be resolved by the District Court. Permitting the Baxter petitioners to bring a separate action will not frustrate the purposes of Rule 23. To deny such permission would be tantamount to requiring that every class member be permitted to intervene to litigate the merits of his individual claim. Moreover, whether the issues framed by the named parties should be expanded to encompass the individual claims of additional class members is a matter that should be decided in the first instance by the District Court. Nothing in Rule 23 requires that the District Court make a finding with respect to each and every matter on which there is testimony in a class action. Rule 23's purpose in providing a mechanism for the expeditious decision of common questions might be defeated by an attempt to decide a host of individual claims before any common question relating to liability has been resolved adversely to the defendant. Pp. 467 U. S. 874 -881. 698 F.2d 633, reversed and remanded. STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, REHNQUIST, and O'CONNOR, JJ., joined. MARSHALL, J., concurred in the judgment. POWELL, J., took no part in the decision of the case. Page 467 U. S. 869 JUSTICE STEVENS delivered the opinion of the Court. The question to be decided is whether a judgment in a class action determining that an employer did not engage in a general pattern or practice of racial discrimination against the certified class of employees precludes a class member from maintaining a subsequent civil action alleging an individual claim of racial discrimination against the employer. I On March 22, 1977, the Equal Employment Opportunity Commission commenced a civil action against respondent, the Federal Reserve Bank of Richmond. [ Footnote 1 ] Respondent operates a branch in Charlotte, N.C. (the Bank), where, during the years 1974-1978, it employed about 350-450 employees in several departments. The EEOC complaint alleged that the Bank was violating § 703(a) of Title VII of the Civil Rights Act of 1964 by engaging in "policies and practices" that included "failing and refusing to promote blacks because of race." App. 9a. Six months after the EEOC filed its complaint, four individual employees [ Footnote 2 ] were allowed to intervene as plaintiffs. In Page 467 U. S. 870 their "complaint in intervention," these plaintiffs alleged that the Bank's employment practices violated 42 U.S.C. § 1981, as well as Title VII; that each of them was the victim of employment discrimination based on race; and that they could adequately represent a class of black employees against whom the Bank had discriminated because of their race. In due course, the District Court entered an order conditionally certifying the following class pursuant to Federal Rules of Civil Procedure 23(b)(2) and (3): "All black persons who have been employed by the defendant at its Charlotte Branch Office at any time since January 3, 1974 [6 months prior to the first charge filed by the intervenors with EEOC], who have been discriminated against in promotion, wages, job assignments and terms and conditions of employment because of their race. [ Footnote 3 ]" After certifying the class, the District Court ordered that notice be published in the Charlotte newspapers and mailed to each individual member of the class. The notice described the status of the litigation, and plainly stated that members of the class "will be bound by the judgment or other determination" if they did not exclude themselves by sending a written notice to the Clerk. [ Footnote 4 ] Among the recipients of the Page 467 U. S. 871 notice were Phyllis Baxter and five other individuals employed by the Bank. [ Footnote 5 ] It is undisputed that these individuals -- the Baxter petitioners -- are members of the class represented by the intervening plaintiffs, and that they made no attempt to exclude themselves from the class. At the trial, the intervening plaintiffs, as well as the Baxter petitioners, testified. The District Court found that the Bank had engaged in a pattern and practice of discrimination from 1974 through 1978 by failing to afford black employees opportunities for advancement and assignment equal to Page 467 U. S. 872 opportunities afforded white employees in pay grades 4 and 5. Except as so specified, however, the District Court found that "there does not appear to be a pattern and practice of discrimination pervasive enough for the court to order relief." App. to Pet. for Cert. 193a-194a. With respect to the claims of the four intervening plaintiffs, the court found that the Bank had discriminated against Cooper and Russell, but not against Moore and Hannah. Finally, the court somewhat cryptically stated that, although it had an opinion about "the entitlement to relief of some of the class members who testified at trial," it would defer decision of such matters to a further proceeding. Id. at 194a. Thereafter, on March 24, 1981, the Baxter petitioners moved to intervene, alleging that each had been denied a promotion for discriminatory reasons. With respect to Emma Ruffin, the court denied the motion because she was a member of the class for which relief had been ordered, and therefore her rights would be protected in the Stage II proceedings to be held on the question of relief. With respect to the other five Baxter petitioners, the court also denied the motion, but for a different reason. It held that, because all of them were employed in jobs above the grade 5 category, they were not entitled to any benefit from the court's ruling with respect to discrimination in grades 4 and 5. The District Court stated: "The court has found no proof of any classwide discrimination above grade 5 and, therefore, they are not entitled to participate in any Stage II proceedings in this case." Id. at 287a. The court added that it could "see no reason why, if any of the would-be intervenors are actively interested in pursuing their claims, they cannot file a Section 1981 suit next week. . . ." Id. at 288a. A few days later the Baxter petitioners filed a separate action against the Bank alleging that each of them had been denied a promotion because of their race in violation of 42 U.S.C. § 1981. The Bank moved to dismiss the complaint on the ground that each of them was a member of the class Page 467 U. S. 873 that had been certified in the Cooper litigation, that each was employed in a grade other than 4 or 5, and that they were bound by the determination that there was no proof of any classwide discrimination above grade 5. The District Court denied the motion to dismiss, but certified its order for interlocutory appeal under 28 U.S.C. § 1292(b). The Bank's interlocutory appeal from the order was then consolidated with the Bank's pending appeal in the Cooper litigation. The United States Court of Appeals for the Fourth Circuit reversed the District Court's judgment on the merits in the Cooper litigation, concluding that (1) there was insufficient evidence to establish a pattern or practice of racial discrimination in grades 4 and 5, and (2) two of the intervening plaintiffs had not been discriminated against on account of race. EEOC v. Federal Reserve Bank of Richmond, 698 F.2d 633 (1983). The court further held that, under the doctrine of res judicata, the judgment in the Cooper class action precluded the Baxter petitioners from maintaining their individual race discrimination claims against the Bank. The court thus reversed the order denying the Bank's motion to dismiss in the Baxter action, and remanded for dismissal of the Baxter complaint. We granted certiorari to review that judgment, 464 U.S. 932 (1983), [ Footnote 6 ] and we now reverse. II Claims of two types were adjudicated in the Cooper litigation. First, the individual claims of each of the four intervening plaintiffs have been finally decided in the Bank's favor. [ Footnote 7 ] Those individual decisions do not, of course, foreclose any other individual claims. Second, the class claim that the Bank followed "policies and practices" of discriminating Page 467 U. S. 874 against its employees has also been decided. [ Footnote 8 ] It is that decision on which the Court of Appeals based its res judicata analysis. There is of course no dispute that, under elementary principles of prior adjudication, a judgment in a properly entertained class action is binding on class members in any subsequent litigation. See, e.g., Supreme Tribe of Ben-Hur v. Cauble, 255 U. S. 356 (1921); Restatement of Judgments § 86 (1942); Restatement (Second) of Judgments § 41(1)(e) (1982); see also Fed.Rule Civ.Proc. 23(c)(3); see generally Moore & Cohn, Federal Class Actions -- Jurisdiction and Effect of Judgment, 32 Ill.L.Rev. 555 (1938). Basic principles of res judicata (merger and bar or claim preclusion) and collateral estoppel (issue preclusion) apply. A judgment in favor of the plaintiff class extinguishes their claim, which merges into the judgment granting relief. A judgment in favor of the defendant extinguishes the claim, barring a subsequent action on that claim. A judgment in favor of either side is conclusive in a subsequent action between them on any issue actually litigated and determined, if its determination was essential to that judgment. III A plaintiff bringing a civil action for a violation of 703(a) of Title VII of the Civil Rights Act of 1964, 78 Stat. 255, as amended, 42 U.S.C. § 2000e-2(a), has the initial burden of establishing a prima facie case that his employer discriminated against him on account of his race, color, religion, sex, or national origin. A plaintiff meets this initial burden by offering evidence adequate to create an inference that he was denied an employment opportunity on the basis of a discriminatory criterion enumerated in Title VII. Page 467 U. S. 875 A plaintiff alleging one instance of discrimination establishes a prima facie case justifying an inference of individual racial discrimination by showing that he (1) belongs to a racial minority, (2) applied and was qualified for a vacant position the employer was attempting to fill, (3) was rejected for the position, and (4) after his rejection, the position remained open and the employer continued to seek applicants of the plaintiff's qualifications. McDonnell Douglas Corp. v. Green, 411 U. S. 792 , 411 U. S. 802 (1973). Once these facts are established, the employer must produce "evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 , 450 U. S. 254 (1981). At that point, the presumption of discrimination "drops from the case," id. at 450 U. S. 255 , n. 10, and the district court is in a position to decide the ultimate question in such a suit: whether the particular employment decision at issue was made on the basis of race. United States Postal Service Board of Governors v. Aikens, 460 U. S. 711 , 460 U. S. 714 -715 (1983); Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 450 U. S. 253 . The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff regarding the particular employment decision "remains at all times with the plaintiff," ibid., and in the final analysis, the trier of fact "must decide which party's explanation of the employer's motivation it believes." United States Postal Service Board of Governors v. Aikens, 460 U.S. at 460 U. S. 716 . In Franks v. Bowman Transportation Co, 424 U. S. 747 (1976), the plaintiff, on behalf of himself and all others similarly situated, alleged that the employer had engaged in a pervasive pattern of racial discrimination in various company policies, including the hiring, transfer, and discharge of employees. In that class action, we held that demonstrating the existence of a discriminatory pattern or practice established a presumption that the individual class members had been discriminated against on account of race. Id. at 424 U. S. 772 . Proving Page 467 U. S. 876 isolated or sporadic discriminatory acts by the employer is insufficient to establish a prima facie case of a pattern or practice of discrimination; rather, it must be established by a preponderance of the evidence that "racial discrimination was the company's standard operating procedure -- the regular, rather than the unusual, practice." Teamsters v. United States, 431 U. S. 324 , 431 U. S. 336 (1977) (footnote omitted). [ Footnote 9 ] While a finding of a pattern or practice of discrimination itself justifies an award of prospective relief to the class, additional proceedings are ordinarily required to determine the scope of individual relief for the members of the class. Id. at 431 U. S. 361 . The crucial difference between an individual's claim of discrimination and a class action alleging a general pattern or practice of discrimination is manifest. The inquiry regarding an individual's claim is the reason for a particular employment decision, while "at the liability stage of a pattern-or-practice trial, the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking." Id. at 431 U. S. 360 , n. 46. See generally Furnco Construction Corp. v. Waters, 438 U. S. 567 , 438 U. S. 575 , n. 7 (1978). This distinction was critical to our holding in General Telephone Co. of Southwest v. Falcon, 457 U. S. 147 (1982), that an individual employee's claim that he was denied a promotion on racial grounds did not necessarily make him an adequate representative of a class composed of persons who had allegedly been refused employment for discriminatory reasons. We explained: "Conceptually, there is a wide gap between (a) an individual's claim that he has been denied a promotion on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have Page 467 U. S. 877 suffered the same injury as that individual, such that the individual's claim and the class claims will share common questions of law or fact and that the individual's claim will be typical of the class claims. For respondent to bridge that gap, he must prove much more than the validity of his own claim. Even though evidence that he was passed over for promotion when several less deserving whites were advanced may support the conclusion that respondent was denied the promotion because of his national origin, such evidence would not necessarily justify the additional inferences (1) that this discriminatory treatment is typical of petitioner's promotion practices, (2) that petitioner's promotion practices are motivated by a policy of ethnic discrimination that pervades petitioner's Irving division, or (3) that this policy of ethnic discrimination is reflected in petitioner's other employment practices, such as hiring, in the same way it is manifested in the promotion practices." Id. at 457 U. S. 157 -158. After analyzing the particulars of the plaintiff's claim in that case, we pointed out that, if "one allegation of specific discriminatory treatment were sufficient to support an across-the-board attack, every Title VII case would be a potential companywide class action." Id. at 457 U. S. 159 . We further observed: "In this regard, it is noteworthy that Title VII prohibits discriminatory employment practices, not an abstract policy of discrimination. The mere fact that an aggrieved private plaintiff is a member of an identifiable class of persons of the same race or national origin is insufficient to establish his standing to litigate on their behalf all possible claims of discrimination against a common employer." Id. at 457 U. S. 159 , n. 15. Falcon thus holds that the existence of a valid individual claim does not necessarily warrant the conclusion that the individual plaintiff may successfully maintain a class action. It Page 467 U. S. 878 is equally clear that a class plaintiff's attempt to prove the existence of a companywide policy, or even a consistent practice within a given department, may fail even though discrimination against one or two individuals has been proved. The facts of this case illustrate the point. The District Court found that two of the intervening plaintiffs, Cooper and Russell, had both established that they were the victims of racial discrimination but, as the Court of Appeals noted, they were employed in grades higher than grade 5, and therefore their testimony provided no support for the conclusion that there was a practice of discrimination in grades 4 and 5. [ Footnote 10 ] Given the burden of establishing a prima facie case of a pattern or practice of discrimination, it was entirely consistent for the District Court simultaneously to conclude that Cooper and Russell had valid individual claims, even though it had expressly found no proof of any classwide discrimination above grade 5. It could not be more plain that the rejection of a claim of classwide discrimination does not warrant the conclusion that no member of the class could have a valid individual claim. "A racially balanced workforce cannot immunize an employer from liability for specific acts of discrimination." Furnco Construction Corp. v. Waters, 438 U.S. at 438 U. S. 579 . The analysis of the merits of the Cooper litigation by the Court of Appeals is entirely consistent with this conclusion. In essence, the Court of Appeals held that the statistical Page 467 U. S. 879 evidence, buttressed by expert testimony and anecdotal evidence by three individual employees in grades 4 and 5, was not sufficient to support the finding of a pattern of bankwide discrimination within those grades. It is true that the Court of Appeals was unpersuaded by the anecdotal evidence; it is equally clear, however, that it did not regard two or three instances of discrimination as sufficient to establish a general policy. [ Footnote 11 ] It quite properly recognized that a "court must be wary of a claim that the true color of a forest is better revealed by reptiles hidden in the weeds than by the foliage of Page 467 U. S. 880 countless freestanding trees." NAACP v. Claiborne Hardware Co., 458 U. S. 886 , 458 U. S. 934 (1982). Conversely, a piece of fruit may well be bruised without being rotten to the core. The Court of Appeals was correct in generally concluding that the Baxter petitioners, as members of the class represented by the intervening plaintiffs in the Cooper litigation, are bound by the adverse judgment in that case. The court erred, however, in the preclusive effect it attached to that prior adjudication. That judgment (1) bars the class members from bringing another class action against the Bank alleging a pattern or practice of discrimination for the relevant time period and (2) precludes the class members in any other litigation with the Bank from relitigating the question whether the Bank engaged in a pattern and practice of discrimination against black employees during the relevant time period. The judgment is not, however, dispositive of the individual claims the Baxter petitioners have alleged in their separate action. Assuming they establish a prima facie case of discrimination under McDonnell Douglas, the Bank will be required to articulate a legitimate reason for each of the challenged decisions, and if it meets that burden, the ultimate questions regarding motivation in their individual cases will be resolved by the District Court. Moreover, the prior adjudication may well prove beneficial to the Bank in the Baxter action: the determination in the Cooper action that the Bank had not engaged in a general pattern or practice of discrimination would be relevant on the issue of pretext. See McDonnell Douglas, 411 U.S. at 411 U. S. 804 -805. The Bank argues that permitting the Baxter petitioners to bring separate actions would frustrate the purposes of Rule 23. We think the converse is true. The class action device was intended to establish a procedure for the adjudication of common questions of law or fact. If the Bank's theory were adopted, it would be tantamount to requiring that every member of the class be permitted to intervene to litigate the merits of his individual claim. Page 467 U. S. 881 It is also suggested that the District Court had a duty to decide the merits of the individual claims of class members, at least insofar as the individual claimants became witnesses in the joint proceeding and subjected their individual employment histories to scrutiny at trial. [ Footnote 12 ] Unless these claims are decided in the main proceeding, the Bank argues that the duplicative litigation that Rule 23 was designed to avoid will be encouraged, and that defendants will be subjected to the risks of liability without the offsetting benefit of a favorable termination of exposure through a final judgment. This argument fails to differentiate between what the District Court might have done and what it actually did. The District Court did actually adjudicate the individual claims of Cooper and the other intervening plaintiffs, as well as the class claims, but it pointedly refused to decide the individual claims of the Baxter petitioners. Whether the issues framed by the named parties before the court should be expanded to encompass the individual claims of additional class members is a matter of judicial administration that should be decided in the first instance by the District Court. Nothing in Rule 23 requires as a matter of law that the District Court make a finding with respect to each and every matter on which there is testimony in the class action. Indeed, Rule 23 is carefully drafted to provide a mechanism for the expeditious decision of common questions. Its purposes might well be defeated by an attempt to decide a host of individual claims before any common question relating to liability has been resolved adversely to the defendant. We do not find the District Court's denial of the Baxter petitioners' motion for leave to intervene in the Cooper litigation, or its decision not to make findings regarding the Baxter petitioners' testimony in the Cooper litigation, to be inconsistent with Rule 23. Page 467 U. S. 882 The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE MARSHALL concurs in the judgment. JUSTICE POWELL took no part in the decision of this case. [ Footnote 1 ] The Bank is organized pursuant to a federal statute, 12 U.S.C. § 341, that enables it to sue and be sued, to appoint its own employees, and to define their duties. [ Footnote 2 ] Sylvia Cooper, Constance Russell, Helen Moore, and Elmore Hannah, Jr., sometimes referred to by the District Court as the "intervening plaintiffs" and by the parties as the "Cooper petitioners." In our order granting certiorari, we declined to review two questions that were presented by these parties. 464 U.S. 932 (1983). [ Footnote 3 ] App. to Pet. for Cert. 200a (brackets in original). Certification was also sought for a class of female employees, but the District Court concluded that the evidence did not warrant the certification of a class with respect to the claims of sex discrimination. Id. at 200a, n. 1. [ Footnote 4 ] The actual text of the critical paragraphs of the notice read as follows: "3. The class of persons who are entitled to participate in this action as members of the class represented by the plaintiff-intervenors, for whom relief may be sought in this action by the plaintiff-intervenors and who will be bound by the determination in this action is defined to include: all black persons who were employed by the Federal Reserve Bank of Richmond at its Charlotte Branch Office at any time since January 3, 1974." "4. If you fit in the definition of the class in paragraph 3, you are a class member. As a class member, you are entitled to pursue in this action any claim of racial discrimination in employment that you may have against the defendant. You need to do nothing further at this time to remain a member of the class. However, if you so desire, you may exclude yourself from the class by notifying the Clerk, United States District Court, as provided in paragraph 6 below." "5. If you decide to remain in this action, you should be advised that: the court will include you in the class in this action unless you request to be excluded from the class in writing; the judgment in this case, whether favorable or unfavorable to the plaintiff and the plaintiff-intervenors, will include all members of the class; all class members will be bound by the judgment or other determination of this action; and if you do not request exclusion, you may appear at the hearings and trial of this action through the attorney of your choice." "6. If you desire to exclude yourself from this action, you will not be bound by any judgment or other determination in this action and you will not be able to depend on this action to toll any statutes of limitations on any individual claims you may have against the defendant. You may exclude yourself from this action by notifying the Clerk in writing that you do not desire to participate in this action. The Clerk's address is: Clerk, United States District Court, Post Office Box 1266, Charlotte, North Carolina 28232." App. 35a-37a. [ Footnote 5 ] In addition to Baxter, they were Brenda Gilliam, Glenda Knott, Emma Ruffin, Alfred Harrison, and Sherri McCorkle. All of these individuals, sometimes referred to as the "Baxter petitioners," stipulated that they received the notice. See id. at 95a. [ Footnote 6 ] As noted, n 2, supra, our limited grant of certiorari does not encompass the questions raised by the Cooper petitioners concerning the Court of Appeals' disposition of the merits of their case. [ Footnote 7 ] Two of those claims were rejected by the District Court and two by the Court of Appeals; all four of those determinations are now equally final. [ Footnote 8 ] The District Court rejected all of the class claims except that pertaining to grades 4 and 5; the claim on behalf of that subclass was rejected by the Court of Appeals. Again, that distinction between subclasses is no longer significant, for the entire class claim has now been decided. [ Footnote 9 ] Although Teamsters involved an action litigated on the merits by the Government as plaintiff under § 707(a) of the Act, it is plain that the elements of a prima facie pattern-or-practice case are the same in a private class action. See Teamsters v. United States, 431 U.S. at 431 U. S. 358 -360. [ Footnote 10 ] The Court of Appeals wrote: "In denying the motion, the District Court stated that all intervenors 'in grades higher than grade 5' were not members of the class in whose favor the District Court had found 'classwide discrimination.' By this test, Cooper, Moore, Russell, Baxter, Gilliam, Knott and McCorkle were not members of the class in which discrimination was found, and their testimony could not have been included within the District Court's term 'oral testimony of class members,' complaining of promotion out of either pay grade 4 or pay grade 5; only the testimony of Ruffin and Harrison met that qualifying standard." EEOC v. Federal Reserve Bank of Richmond, 698 F.2d 633, 644 (1983). [ Footnote 11 ] It wrote: "The claim here is a pattern or practice of intentional discrimination against an entire group by treating it less favorably because of race. That is the typical disparate treatment case. This case should accordingly be properly treated as such. However, the result reached by us would not be substantially different whether the class action be considered as a disparate impact or a disparate treatment case." Id. at 639. "This case accordingly presents quite a contrast with Teamsters, where the 'oral testimony of class members' demonstrated 40 cases of specific instances of discrimination in support of the statistical evidence offered by plaintiffs, or with that in our own case of Chisholm v. United States Postal Service, 665 F.2d 482, 495 (4th Cir.1981), where there were 20 'class members' testifying of individual discrimination. Here all we have is the testimony of but two class members testifying of individual discrimination in promotion out of either pay grade 4 or pay grade 5 on which a finding of discriminatory practices can be rested. This is even less of a presentation of oral testimony in support of a pattern of discrimination than that found wanting in Ste. Marie v. Eastern R. Ass'n., 650 F.2d 395, 405-06 (2d Cir.1981), where the Court declared that the small number of incidents of discrimination in promotion over a period of years in that case 'would be insufficient to support the inference of a routine or regular practice of discrimination . . . ,' or, in Goff v. Continental Oil Co., 678 F.2d 593, 597 (5th Cir.1982), where the Court held that" "even if all three witnesses' accounts of racial discrimination were true, this evidence would not have been enough to prove a pattern or practice of company-wide discrimination by Conoco." "It follows that these two incidents of failure to promote Ruffin or Harrison, even if regarded as discriminatory, (which we assume only arguendo ), would not support the District Court's finding of a pattern of class discrimination in promotions out of grades 4 and 5." Id. at 643-644 (footnotes omitted). [ Footnote 12 ] We find the Bank's contention that the District Court actually found against the Baxter petitioners on the basis of the testimony in the Cooper action wholly without merit.

The Supreme Court ruled that the Baxter petitioners could pursue their separate legal action against the Federal Reserve Bank of Richmond, as they were not precluded by the doctrine of res judicata due to not being members of the class in which discrimination was found. The Court of Appeals had previously held that the judgment in the class action prevented the Baxter petitioners from bringing individual claims.

Lawsuits & Legal Procedures

Burger King Corp. v. Rudzewicz

https://supreme.justia.com/cases/federal/us/471/462/

U.S. Supreme Court Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) Burger King Corp. v. Rudzewicz No. 83-2097 Argued January 8, 1985 Decided May 20, 1985 471 U.S. 462 APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT Syllabus Appellant is a Florida corporation whose principal offices are in Miami. It conducts most of its restaurant business through a franchise operation, under which franchisees are licensed to use appellant's trademarks and service marks in leased standardized restaurant facilities for a period of 20 years. The governing contracts provide that the franchise relationship is established in Miami and governed by Florida law, and call for payment of all required monthly fees and forwarding of all relevant notices to the Miami headquarters. The Miami headquarters sets policy and works directly with the franchisees in attempting to resolve major problems. Day-to-day monitoring of franchisees, however, is conducted through district offices that, in turn, report to the Miami headquarters. Appellee is a Michigan resident who, along with another Michigan resident, entered into a 20-year franchise contract with appellant to operate a restaurant in Michigan. Subsequently, when the restaurant's patronage declined, the franchisees fell behind in their monthly payments. After extended negotiations among the franchisees, the Michigan district office, and the Miami headquarters proved unsuccessful in solving the problem, headquarters terminated the franchise and ordered the franchisees to vacate the premises. They refused, and continued to operate the restaurant. Appellant then brought a diversity action in Federal District Court in Florida, alleging that the franchisees had breached their franchise obligations and requesting damages and injunctive relief. The franchisees claimed that, because they were Michigan residents and because appellant's claim did not "arise" within Florida, the District Court lacked personal jurisdiction over them. But the court held that the franchisees were subject to personal jurisdiction pursuant to Florida's long-arm statute, which extends jurisdiction to any person, whether or not a citizen or resident of the State, who breaches a contract in the State by failing to perform acts that the contract requires to be performed there. Thereafter, the court entered judgment against the franchisees on the merits. The Court of Appeals reversed, holding that "[j]urisdiction under these circumstances would offend the fundamental fairness which is the touchstone of due process." Held: The District Court's exercise of jurisdiction pursuant to Florida's long-arm statute did not violate the Due Process Clause of the Fourteenth Amendment. Pp. 471 U. S. 471 -487. Page 471 U. S. 463 (a) A forum may assert specific jurisdiction over a nonresident defendant where an alleged injury arises out of or relates to actions by the defendant himself that are purposeful directed toward forum residents, and where jurisdiction would not otherwise offend "fair play and substantial justice." Jurisdiction in these circumstances may not be avoided merely because the defendant did not physically enter the forum. Pp. 471 U. S. 471 -478. (b) An individual's contract with an out-of-state party cannot alone automatically establish sufficient minimum contacts in the other party's home forum. Instead, the prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing, must be evaluated to determine whether a defendant purposefully established minimum contacts within the forum. Pp. 471 U. S. 478 -479. (c) Here, appellee established a substantial and continuing relationship with appellant's Miami headquarters, and received fair notice from the contract documents and the course of dealings that he might be subject to suit in Florida. The District Court found that appellee is an "experienced and sophisticated" businessman who did not act under economic duress or disadvantage imposed by appellant, and appellee has pointed to no other factors that would establish the unconstitutionality of Florida's assertion of jurisdiction. Pp. 471 U. S. 479 -487. 724 F.2d 1505, reversed and remanded. BRENNAN, J., delivered the opinion of the Court, in which BURGER, C.J., and MARSHALL, BLACKMUN, REHNQUIST, and O'CONNOR, JJ., joined. STEVENS, J., filed a dissenting opinion, in which WHITE, J., joined, post, p. 471 U. S. 487 . POWELL, J., took no part in the consideration or decision of the case. JUSTICE BRENNAN delivered the opinion of the Court. The State of Florida's long-arm statute extends jurisdiction to "[a]ny person, whether or not a citizen or resident of this state," who, inter alia, "[b]reach[es] a contract in this state by failing to perform acts required by the contract to be performed in this state," so long as the cause of action Page 471 U. S. 464 arises from the alleged contractual breach. Fla.Stat. § 48.193 (1)(g) (Supp.1984). The United States District Court for the Southern District of Florida, sitting in diversity, relied on this provision in exercising personal jurisdiction over a Michigan resident who allegedly had breached a franchise agreement with a Florida corporation by failing to make required payments in Florida. The question presented is whether this exercise of long-arm jurisdiction offended "traditional conception[s] of fair play and substantial justice" embodied in the Due Process Clause of the Fourteenth Amendment. International Shoe Co. v. Washington, 326 U. S. 310 , 320 (1945). I A Burger King Corporation is a Florida corporation whose principal offices are in Miami. It is one of the world's largest restaurant organizations, with over 3,000 outlets in the 50 States, the Commonwealth of Puerto Rico, and 8 foreign nations. Burger King conducts approximately 80% of its business through a franchise operation that the company styles the "Burger King System" -- "a comprehensive restaurant format and operating system for the sale of uniform and quality food products." App. 46. [ Footnote 1 ] Burger King licenses its franchisees to use its trademarks and service marks for a period of 20 years, and leases standardized restaurant facilities to them for the same term. In addition, franchisees acquire a variety of proprietary information concerning the "standards, specifications, procedures and methods for operating Page 471 U. S. 465 a Burger King Restaurant." Id. at 52. They also receive market research and advertising assistance; ongoing training in restaurant management; [ Footnote 2 ] and accounting, cost-control, and inventory-control guidance. By permitting franchisees to tap into Burger King's established national reputation and to benefit from proven procedures for dispensing standardized fare, this system enables them to go into the restaurant business with significantly lowered barriers to entry. [ Footnote 3 ] In exchange for these benefits, franchisees pay Burger King an initial $40,000 franchise fee and commit themselves to payment of monthly royalties, advertising and sales promotion fees, and rent computed in part from monthly gross sales. Franchisees also agree to submit to the national organization's exacting regulation of virtually every conceivable aspect of their operations. [ Footnote 4 ] Burger King imposes these standards and undertakes its rigid regulation out of conviction that "[u]niformity of service, appearance, and quality of product is essential to the preservation of the Burger King image and the benefits accruing therefrom to both Franchisee and Franchisor." Id. at 31. Burger King oversees its franchise system through a two-tiered administrative structure. The governing contracts Page 471 U. S. 466 provide that the franchise relationship is established in Miami and governed by Florida law, and call for payment of all required fees and forwarding of all relevant notices to the Miami headquarters. [ Footnote 5 ] The Miami headquarters sets policy and works directly with its franchisees in attempting to resolve major problems. See nn. 7 9 infra. Day-to-day monitoring of franchisees, however, is conducted through a network of 10 district offices which, in turn, report to the Miami headquarters. The instant litigation grows out of Burger King's termination of one of its franchisees, and is aptly described by the franchisee as "a divorce proceeding among commercial partners." 5 Record 4. The appellee John Rudzewicz, a Michigan citizen and resident, is the senior partner in a Detroit accounting firm. In 1978, he was approached by Brian MacShara, the son of a business acquaintance, who suggested that they jointly apply to Burger King for a franchise in the Detroit area. MacShara proposed to serve as the manager of the restaurant if Rudzewicz would put up the investment capital; in exchange, the two would evenly share the profits. Believing that MacShara's idea offered attractive investment and tax-deferral opportunities, Rudzewicz agreed to the venture. 6 id. at 438-439, 444, 460. Rudzewicz and MacShara jointly applied for a franchise to Burger King's Birmingham, Michigan, district office in the autumn of 1978. Their application was forwarded to Burger King's Miami headquarters, which entered into a preliminary agreement with them in February, 1979. During the ensuing four months, it was agreed that Rudzewicz and MacShara would assume operation of an existing facility in Drayton Plains, Michigan. MacShara attended the prescribed management courses in Miami during this period, see n. 2 supra, and the franchisees purchased $165,000 worth of restaurant equipment from Burger King's Davmor Industries division in Page 471 U. S. 467 Miami. Even before the final agreements were signed, however, the parties began to disagree over site-development fees, building design, computation of monthly rent, and whether the franchisees would be able to assign their liabilities to a corporation they had formed. [ Footnote 6 ] During these disputes, Rudzewicz and MacShara negotiated both with the Birmingham district office and with the Miami headquarters. [ Footnote 7 ] With some misgivings, Rudzewicz and MacShara finally obtained limited concessions from the Miami headquarters, [ Footnote 8 ] signed the final agreements, and commenced operations in June, 1979. By signing the final agreements, Rudzewicz obligated himself personally to payments exceeding $1 million over the 20-year franchise relationship. Page 471 U. S. 468 The Drayton Plains facility apparently enjoyed steady business during the summer of 1979, but patronage declined after a recession began later that year. Rudzewicz and MacShara soon fell far behind in their monthly payments to Miami. Headquarters sent notices of default, and an extended period of negotiations began among the franchisees, the Birmingham district office, and the Miami headquarters. After several Burger King officials in Miami had engaged in prolonged but ultimately unsuccessful negotiations with the franchisees by mail and by telephone, [ Footnote 9 ] headquarters terminated the franchise and ordered Rudzewicz and MacShara to vacate the premises. They refused, and continued to occupy and operate the facility as a Burger King restaurant. B Burger King commenced the instant action in the United States District Court for the Southern District of Florida in May, 1981, invoking that court's diversity jurisdiction pursuant to 28 U.S.C. § 1332(a) and its original jurisdiction over federal trademark disputes pursuant to § 1338(a). [ Footnote 10 ] Burger King alleged that Rudzewicz and MacShara had breached their franchise obligations "within [the jurisdiction of] this district court" by failing to make the required payments "at plaintiff's place of business in Miami, Dade County, Florida," � 6, App. 121, and also charged that they were tortiously infringing Page 471 U. S. 469 its trademarks and service marks through their continued, unauthorized operation as a Burger King restaurant, �� 35-53, App. 130-135. Burger King sought damages, injunctive relief, and costs and attorney's fees. Rudzewicz and MacShara entered special appearances and argued, inter alia, that, because they were Michigan residents, and because Burger King's claim did not "arise" within the Southern District of Florida, the District Court lacked personal jurisdiction over them. The District Court denied their motions after a hearing, holding that, pursuant to Florida's long-arm statute, "a nonresident Burger King franchisee is subject to the personal jurisdiction of this Court in actions arising out of its franchise agreements." Id. at 138. Rudzewicz and MacShara then filed an answer and a counterclaim seeking damages for alleged violations by Burger King of Michigan's Franchise Investment Law, Mich.Comp.Laws § 445.1501 et seq. (1979). After a 3-day bench trial, the court again concluded that it had "jurisdiction over the subject matter and the parties to this cause." App. 159. Finding that Rudzewicz and MacShara had breached their franchise agreements with Burger King and had infringed Burger King's trademarks and service marks, the court entered judgment against them, jointly and severally, for $228,875 in contract damages. The court also ordered them "to immediately close Burger King Restaurant Number 775 from continued operation or to immediately give the keys and possession of said restaurant to Burger King Corporation," id. at 163, found that they had failed to prove any of the required elements of their counterclaim, and awarded costs and attorney's fees to Burger King. Rudzewicz appealed to the Court of Appeals for the Eleventh Circuit. [ Footnote 11 ] A divided panel of that Circuit reversed the Page 471 U. S. 470 judgment, concluding that the District Court could not properly exercise personal jurisdiction over Rudzewicz pursuant to Fla.Stat. § 48.193(1)(g) (Supp.1984) because "the circumstances of the Drayton Plains franchise and the negotiations which led to it left Rudzewicz bereft of reasonable notice and financially unprepared for the prospect of franchise litigation in Florida." Burger King Corp. v. MacShara, 724 F.2d 1505, 1513 (1984). Accordingly, the panel majority concluded that "[j]urisdiction under these circumstances would offend the fundamental fairness which is the touchstone of due process." Ibid. . Burger King appealed the Eleventh Circuit's judgment to this Court pursuant to 28 U.S.C. § 1254(2), and we postponed probable jurisdiction. 469 U.S. 814 (1984). Because it is unclear whether the Eleventh Circuit actually held that Fla.Stat. § 48.193(1)(g) (Supp.1984) itself is unconstitutional as applied to the circumstances of this case, we conclude that jurisdiction by appeal does not properly lie, and therefore dismiss the appeal. [ Footnote 12 ] Treating the jurisdictional Page 471 U. S. 471 statement as a petition for a writ of certiorari, see 28 U.S.C. § 2103, we grant the petition, and now reverse. II A The Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a Page 471 U. S. 472 forum with which he has established no meaningful "contacts, ties, or relations." International Shoe Co. v. Washington, 326 U.S. at 326 U. S. 319 . [ Footnote 13 ] By requiring that individuals have "fair warning that a particular activity may subject [them] to the jurisdiction of foreign sovereign," Shaffer v. Heitner, 433 U. S. 186 , 433 U. S. 218 (1977) (STEVENS, J., concurring in judgment), the Due Process Clause "gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit," World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286 , 444 U. S. 297 (1980). Where a forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there, [ Footnote 14 ] this "fair warning" requirement is satisfied if the defendant has "purposefully directed" his activities at residents of the forum, Keeton v. Hustler Magazine, Inc., 465 U. S. 770 , 465 U. S. 774 (1984), and the litigation results from alleged injuries that "arise out of or relate to" those activities, Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U. S. 408 , 466 U. S. 414 Page 471 U. S. 473 (1984). [ Footnote 15 ] Thus "[t]he forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State" and those products subsequently injure forum consumers. World-Wide Volkswagen Corp. v. Woodson, supra, at 444 U. S. 297 -298. Similarly, a publisher who distributes magazines in a distant State may fairly be held accountable in that forum for damages resulting there from an allegedly defamatory story. Keeton v. Hustler Magazine, Inc., supra; see also Calder v. Jones, 465 U. S. 783 (1984) (suit against author and editor). And with respect to interstate contractual obligations, we have emphasized that parties who "reach out beyond one state and create continuing relationships and obligations with citizens of another state" are subject to regulation and sanctions in the other State for the consequences of their activities. Travelers Health Assn. v. Virginia, 339 U. S. 643 , 339 U. S. 647 (1950). See also McGee v. International Life Insurance Co., 355 U. S. 220 , 355 U. S. 222 -223 (1957). We have noted several reasons why a forum legitimately may exercise personal jurisdiction over a nonresident who "purposefully directs" his activities toward forum residents. A State generally has a "manifest interest" in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors. Id. at 355 U. S. 223 ; see also Keeton v. Hustler Magazine, Inc., supra, at 465 U. S. 776 . Moreover, where individuals "purposefully derive benefit" from their interstate activities, Kulko v. California Superior Court , Page 471 U. S. 474 436 U. S. 84 , 436 U. S. 96 (1978), it may well be unfair to allow them to escape having to account in other States for consequences that arise proximately from such activities; the Due Process Clause may not readily be wielded as a territorial shield to avoid interstate obligations that have been voluntarily assumed. And because "modern transportation and communications have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity," it usually will not be unfair to subject him to the burdens of litigating in another forum for disputes relating to such activity. McGee v. International Life Insurance Co., supra, at 355 U. S. 223 . Notwithstanding these considerations, the constitutional touchstone remains whether the defendant purposefully established "minimum contacts" in the forum State. International Shoe Co. v. Washington, supra, at 326 U. S. 316 . Although it has been argued that foreseeability of causing injury in another State should be sufficient to establish such contacts there when policy considerations so require, [ Footnote 16 ] the Court has consistently held that this kind of foreseeability is not a "sufficient benchmark" for exercising personal jurisdiction. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 444 U. S. 295 . Instead, "the foreseeability that is critical to due process analysis . . . is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." Id. at 444 U. S. 297 . In defining when it is that a potential defendant should "reasonably anticipate" out-of-state litigation, the Court frequently has drawn from the reasoning of Hanson v. Denckla, 357 U. S. 235 , 357 U.S. 253 (1958): "The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application Page 471 U. S. 475 of that rule will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." This "purposeful availment" requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of "random," "fortuitous," or "attenuated" contacts, Keeton v. Hustler Magazine, Inc., 465 U.S. at 465 U. S. 774 ; World-Wide Volkswagen Corp. v. Woodson, supra, at 444 U. S. 299 , or of the "unilateral activity of another party or a third person," Helicopteros Nacionales de Colombia, S.A. v. Hall, supra, at 466 U. S. 417 . [ Footnote 17 ] Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself that create a "substantial connection" with the forum State. McGee v. International Life Insurance Co., supra, at 355 U. S. 223 ; see also Kulko v. California Superior Court, supra, at 436 U. S. 94 n. 7. [ Footnote 18 ] Thus where the defendant "deliberately" has Page 471 U. S. 476 engaged in significant activities within a State, Keeton v. Hustler Magazine, Inc., supra, at 465 U. S. 781 , or has created "continuing obligations" between himself and residents of the forum, Travelers Health Assn. v. Virginia, 339 U.S. at 339 U. S. 648 , he manifestly has availed himself of the privilege of conducting business there, and, because his activities are shielded by "the benefits and protections" of the forum's laws, it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well. Jurisdiction in these circumstances may not be avoided merely because the defendant did not physically enter the forum State. Although territorial presence frequently will enhance a potential defendant's affiliation with a State and reinforce the reasonable foreseeability of suit there, it is an inescapable fact of modern commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines, thus obviating the need for physical presence within a State in which business is conducted. So long as a commercial actor's efforts are "purposefully directed" toward residents of another State, we have consistently rejected the notion that an absence of physical contacts can defeat personal jurisdiction there. Keeton v. Hustler Magazine, Inc., supra, at 465 U. S. 774 -775; see also Calder v. Jones, 465 U.S. at 465 U. S. 788 -790; McGee v. International Life Insurance Co., 355 U.S. at 355 U. S. 222 -223. Cf. Hoopeston Canning Co. v. Cullen, 318 U. S. 313 , 318 U. S. 317 (1943) Once it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with "fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. at 326 U. S. 320 . Thus, Page 471 U. S. 477 courts in "appropriate case[s]" may evaluate "the burden on the defendant," "the forum State's interest in adjudicating the dispute," "the plaintiff's interest in obtaining convenient and effective relief," "the interstate judicial system's interest in obtaining the most efficient resolution of controversies," and the "shared interest of the several States in furthering fundamental substantive social policies." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 444 U. S. 292 . These considerations sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required. See, e.g., Keeton v. Hustler Magazine, Inc., supra, at 465 U. S. 780 ; Calder v. Jones, supra, at 465 U. S. 788 -789; McGee v. International Life Insurance Co., supra, at 355 U. S. 223 -224. On the other hand, where a defendant who purposefully has directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable. Most such considerations usually may be accommodated through means short of finding jurisdiction unconstitutional. For example, the potential clash of the forum's law with the "fundamental substantive social policies" of another State may be accommodated through application of the forum's choice-of-law rules. [ Footnote 19 ] Similarly, a defendant claiming substantial inconvenience may seek a change of venue. [ Footnote 20 ] Nevertheless, minimum requirements inherent in the concept of "fair play and substantial Page 471 U. S. 478 justice" may defeat the reasonableness of jurisdiction even if the defendant has purposefully engaged in forum activities. World-Wide Volkswagen Corp. v. Woodson, supra, at 444 U. S. 292 ; see also Restatement (Second) of Conflict of Laws §§ 36-37 (1971). As we previously have noted, jurisdictional rules may not be employed in such a way as to make litigation "so gravely difficult and inconvenient" that a party unfairly is at a "severe disadvantage" in comparison to his opponent. The Bremen v. Zapata Off-Shore Co., 407 U. S. 1 , 407 U. S. 18 (1972) ( re forum-selection provisions); McGee v. International Life Insurance Co., supra, at 355 U. S. 223 -224. B (1) Applying these principles to the case at hand, we believe there is substantial record evidence supporting the District Court's conclusion that the assertion of personal jurisdiction over Rudzewicz in Florida for the alleged breach of his franchise agreement did not offend due process. At the outset, we note a continued division among lower courts respecting whether and to what extent a contract can constitute a "contact" for purposes of due process analysis. [ Footnote 21 ] If the question is whether an individual's contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party's home forum, we believe the answer clearly is that it cannot. The Court long ago rejected the notion that personal jurisdiction might turn on "mechanical" tests, International Shoe Co. v. Washington, supra, at 326 U. S. 319 , or on "conceptualistic . . . theories of the place of contracting or of performance," Hoopeston Canning Co. v. Cullen, Page 471 U. S. 479 318 U.S. at 318 U. S. 316 . Instead, we have emphasized the need for a "highly realistic" approach that recognizes that a "contract" is "ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction." Id. at 318 U. S. 316 -317. It is these factors -- prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing -- that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum. In this case, no physical ties to Florida can be attributed to Rudzewicz other than MacShara's brief training course in Miami. [ Footnote 22 ] Rudzewicz did not maintain offices in Florida and, for all that appears from the record, has never even visited there. Yet this franchise dispute grew directly out of "a contract which had a substantial connection with that State." McGee v. International Life Insurance Co., 355 U.S. at 355 U. S. 223 (emphasis added). Eschewing the option of operating an independent local enterprise, Rudzewicz deliberately "reach[ed] out beyond" Michigan and negotiated with a Florida corporation for the purchase of a long-term franchise and Page 471 U. S. 480 the manifold benefits that would derive from affiliation with a nationwide organization. Travelers Health Assn. v. Virginia, 339 U.S. at 339 U. S. 647 . Upon approval, he entered into a carefully structured 20-year relationship that envisioned continuing and wide-reaching contacts with Burger King in Florida. In light of Rudzewicz' voluntary acceptance of the long-term and exacting regulation of his business from Burger King's Miami headquarters, the "quality and nature" of his relationship to the company in Florida can in no sense be viewed as "random," "fortuitous," or "attenuated." Hanson v. Denckla, 357 U.S. at 357 U.S. 253 ; Keeton v. Hustler Magazine, Inc., 465 U.S. at 465 U. S. 774 ; World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 444 U. S. 299 . Rudzewicz' refusal to make the contractually required payments in Miami, and his continued use of Burger King's trademarks and confidential business information after his termination, caused foreseeable injuries to the corporation in Florida. For these reasons it was, at the very least, presumptively reasonable for Rudzewicz to be called to account there for such injuries. The Court of Appeals concluded, however, that, in light of the supervision emanating from Burger King's district office in Birmingham, Rudzewicz reasonably believed that "the Michigan office was, for all intents and purposes, the embodiment of Burger King," and that he therefore had no "reason to anticipate a Burger King suit outside of Michigan." 724 F.2d at 1511. See also post at 471 U. S. 488 -489 (STEVENS, J., dissenting). This reasoning overlooks substantial record evidence indicating that Rudzewicz most certainly knew that he was affiliating himself with an enterprise based primarily in Florida. The contract documents themselves emphasize that Burger King's operations are conducted and supervised from the Miami headquarters, that all relevant notices and payments must be sent there, and that the agreements were made in and enforced from Miami. See n 5, supra. Moreover, the parties' actual course of dealing repeatedly confirmed that decisionmaking authority was vested in the Miami headquarters, Page 471 U. S. 481 and that the district office served largely as an intermediate link between the headquarters and the franchisees. When problems arose over building design, site-development fees, rent computation, and the defaulted payments, Rudzewicz and MacShara learned that the Michigan office was powerless to resolve their disputes, and could only channel their communications to Miami. Throughout these disputes, the Miami headquarters and the Michigan franchisees carried on a continuous course of direct communications by mail and by telephone, and it was the Miami headquarters that made the key negotiating decisions out of which the instant litigation arose. See nn. 7 9 supra. Moreover, we believe the Court of Appeals gave insufficient weight to provisions in the various franchise documents providing that all disputes would be governed by Florida law. The franchise agreement, for example, stated: "This Agreement shall become valid when executed and accepted by BKC at Miami, Florida; it shall be deemed made and entered into in the State of Florida and shall be governed and construed under and in accordance with the laws of the State of Florida. The choice of law designation does not require that all suits concerning this Agreement be filed in Florida." App. 72. See also n 5, supra. The Court of Appeals reasoned that choice-of-law provisions are irrelevant to the question of personal jurisdiction, relying on Hanson v. Denckla for the proposition that "the center of gravity for choice-of-law purposes does not necessarily confer the sovereign prerogative to assert jurisdiction." 724 F.2d at 1511-1512, n. 10, citing 357 U.S. at 357 U. S. 254 . This reasoning misperceives the import of the quoted proposition. The Court in Hanson and subsequent cases has emphasized that choice-of-law analysis -- which focuses on all elements of a transaction, and not simply on the defendant's conduct -- is distinct from minimum-contacts jurisdictional analysis -- which focuses at the threshold Page 471 U. S. 482 solely on the defendant's purposeful connection to the forum. [ Footnote 23 ] Nothing in our cases, however, suggests that a choice-of-law provision should be ignored in considering whether a defendant has "purposefully invoked the benefits and protections of a State's laws" for jurisdictional purposes. Although such a provision, standing alone, would be insufficient to confer jurisdiction, we believe that, when combined with the 20-year interdependent relationship Rudzewicz established with Burger King's Miami headquarters, it reinforced his deliberate affiliation with the forum State and the reasonable foreseeability of possible litigation there. As Judge Johnson argued in his dissent below, Rudzewicz "purposefully availed himself of the benefits and protections of Florida's laws" by entering into contracts expressly providing that those laws would govern franchise disputes. 724 F.2d at 1513. [ Footnote 24 ] (2) Nor has Rudzewicz pointed to other factors that can be said persuasively to outweigh the considerations discussed above, and to establish the unconstitutionality of Florida's assertion of jurisdiction. We cannot conclude that Florida had no "legitimate interest in holding [Rudzewicz] answerable Page 471 U. S. 483 on a claim related to" the contacts he had established in that State. Keeton v. Hustler Magazine, Inc., 465 U.S. at 465 U. S. 776 ; see also McGee v. International Life Insurance Co., 355 U.S. at 465 U. S. 223 (noting that State frequently will have a "manifest interest in providing effective means of redress for its residents"). [ Footnote 25 ] Moreover, although Rudzewicz has argued at some length that Michigan's Franchise Investment Law, Mich.Comp.Laws § 445.1501 et seq. (1979), governs many aspects of this franchise relationship, he has not demonstrated how Michigan's acknowledged interest might possibly render jurisdiction in Florida unconstitutional. [ Footnote 26 ] Finally, the Court of Appeals' assertion that the Florida litigation "severely impaired [Rudzewicz'] ability to call Michigan witnesses who might be essential to his defense and counterclaim," 724 F.2d at 1512-1513, is wholly without support in the record. [ Footnote 27 ] And even to the extent that it is inconvenient Page 471 U. S. 484 for a party who has minimum contacts with a forum to litigate there, such considerations most frequently can be accommodated through a change of venue. See n 20, supra. Although the Court has suggested that inconvenience may at some point become so substantial as to achieve constitutional magnitude, McGee v. International Life Insurance Co., supra, at 355 U. S. 223 , this is not such a case. The Court of Appeals also concluded, however, that the parties' dealings involved "a characteristic disparity of bargaining power" and "elements of surprise," and that Rudzewicz "lacked fair notice" of the potential for litigation in Florida because the contractual provisions suggesting to the contrary were merely "boilerplate declarations in a lengthy printed contract." 724 F.2d at 1511-1512, and n. 10. See also post at 471 U. S. 489 -490 (STEVENS, J., dissenting). Rudzewicz presented many of these arguments to the District Court, contending that Burger King was guilty of misrepresentation, fraud, and duress; that it gave insufficient notice in its dealings with him; and that the contract was one of adhesion. See 4 Record 687-691. After a 3-day bench trial, the District Court found that Burger King had made no misrepresentations, that Rudzewicz and MacShara "were and are experienced and sophisticated businessmen," and that "at no time" did they "ac[t] under economic duress or disadvantage imposed by" Burger King. App. 157-158. See also 7 Record 648-649. Federal Rule of Civil Procedure 52(a) requires that "[f]indings of fact shall not be set aside unless clearly erroneous," and neither Rudzewicz nor the Court of Appeals has pointed to record evidence that would support a "definite and firm conviction" that the District Court's findings are mistaken. United States v. United States Gypsum Co., 333 U. S. 364 , 333 U. S. 395 (1948). See also Page 471 U. S. 485 Anderson v. Bessemer City, 470 U. S. 564 , 470 U. S. 573 -576 (1985). To the contrary, Rudzewicz was represented by counsel throughout these complex transactions and, as Judge Johnson observed in dissent below, was himself an experienced accountant "who for five months conducted negotiations with Burger King over the terms of the franchise and lease agreements, and who obligated himself personally to contracts requiring over time payments that exceeded $1 million." 724 F.2d at 1514. Rudzewicz was able to secure a modest reduction in rent and other concessions from Miami headquarters, see nn. 8 9 supra; moreover, to the extent that Burger King's terms were inflexible, Rudzewicz presumably decided that the advantages of affiliating with a national organization provided sufficient commercial benefits to offset the detriments. III Notwithstanding these considerations, the Court of Appeals apparently believed that it was necessary to reject jurisdiction in this case as a prophylactic measure, reasoning that an affirmance of the District Court's judgment would result in the exercise of jurisdiction over "out-of-state consumers to collect payments due on modest personal purchases" and would "sow the seeds of default judgments against franchisees owing smaller debts." 724 F.2d at 1511. We share the Court of Appeals' broader concerns, and therefore reject any talismanic jurisdictional formulas; "the Page 471 U. S. 486 facts of each case must [always] be weighed" in determining whether personal jurisdiction would comport with "fair play and substantial justice." [ Footnote 28 ] Kulko v. California Superior Court, 436 U.S. at 436 U. S. 92 . [ Footnote 29 ] The "quality and nature" of an interstate transaction may sometimes be so "random," "fortuitous," or "attenuated" [ Footnote 30 ] that it cannot fairly be said that the potential defendant "should reasonably anticipate being haled into court" in another jurisdiction. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 444 U. S. 297 ; see also n 18, supra. We also have emphasized that jurisdiction may not be grounded on a contract whose terms have been obtained through "fraud, undue influence, or overweening bargaining power," and whose application would render litigation "so gravely difficult and inconvenient that [a party] will for all practical purposes be deprived of his day in court." The Bremen v. Zapata Off-Shore Co., 407 U.S. at 407 U. S. 12 , 407 U. S. 18 . Cf. Fuentes v. Shevin, 407 U. S. 67 , 407 U. S. 94 -96 (1972); National Equipment Rental, Ltd. v. Szukhent, 375 U. S. 311 , 375 U. S. 329 (1964) (Black, J., dissenting) (jurisdictional rules may not be employed against small consumers so as to "crippl[e] their defense"). Just as the Due Process Clause allows flexibility in ensuring that commercial actors are not effectively "judgment proof" for the consequences of obligations they voluntarily assume in other States, McGee v. International Life Insurance Co., 355 U.S. at 355 U. S. 223 , so too does it prevent rules that would unfairly enable them to obtain default judgments against unwitting customers. Cf. United States v. Rumely, 345 U. S. 41 , 345 U. S. 44 (1953) (courts must not be " blind'" to what "`[a]ll others can see and understand'"). Page 471 U. S. 487 For the reasons set forth above, however, these dangers are not present in the instant case. Because Rudzewicz established a substantial and continuing relationship with Burger King's Miami headquarters, received fair notice from the contract documents and the course of dealing that he might be subject to suit in Florida, and has failed to demonstrate how jurisdiction in that forum would otherwise be fundamentally unfair, we conclude that the District Court's exercise of jurisdiction pursuant to Fla.Stat. § 48.193(1)(g) (Supp.1984) did not offend due process. The judgment of the Court of Appeals is accordingly reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE POWELL took no part in the consideration or decision of this case. [ Footnote 1 ] Burger King's standard Franchise Agreement further defines this system as "a restaurant format and operating system, including a recognized design, decor, color scheme and style of building, uniform standards, specifications and procedures of operation, quality and uniformity of products and services offered, and procedures for inventory and management control. . . ." App. 43. [ Footnote 2 ] Mandatory training seminars are conducted at Burger King University in Miami and at Whopper College Regional Training Centers around the country. See id. at 39; 6 Record 540-541. [ Footnote 3 ] See App. 43-44. See generally H. Brown, Franchising Realities and Remedies 6-7, 16-17 (2d ed.1978). [ Footnote 4 ] See, e.g., App. 24-25, 26 (range, "quality, appearance, size, taste, and processing" of menu items), 31 ("standards of service and cleanliness"), 32 (hours of operation), 47 ("official mandatory restaurant operating standards, specifications and procedures"), 48-50 (building layout, displays, equipment, vending machines, service, hours of operation, uniforms, advertising, and promotion), 53 (employee training), 55-56 (accounting and auditing requirements), 59 (insurance requirements). Burger King also imposes extensive standards governing franchisee liability, assignments, defaults, and termination. See id. at 61-74. [ Footnote 5 ] See id. at 10-11, 37, 43, 72-73, 113. See infra at 471 U. S. 481 . [ Footnote 6 ] The latter two matters were the major areas of disagreement. Notwithstanding that Burger King's franchise offering advised that minimum rent would be based on a percentage of "approximated capitalized site acquisition and construction costs," id. at 23, Rudzewicz assumed that rent would be a function solely of renovation costs, and he thereby underestimated the minimum monthly rent by more than $2,000. The District Court found Rudzewicz' interpretation "incredible." 7 Record 649. With respect to assignment, Rudzewicz and MacShara had formed RMBK Corp. with the intent of assigning to it all of their interest and liabilities in the franchise. Consistent with the contract documents, however, Burger King insisted that the two remain personally liable for their franchise obligations. See App. 62, 109. Although the franchisees contended that Burger King officials had given them oral assurances concerning assignment, the District Court found that, pursuant to the parol evidence rule, any such assurances "even if they had been made and were misleading, were joined and merged" into the final agreement. 7 Record 648. [ Footnote 7 ] Although Rudzewicz and MacShara dealt with the Birmingham district office on a regular basis, they communicated directly with the Miami headquarters in forming the contracts; moreover, they learned that the district office had "very little" decisionmaking authority, and accordingly turned directly to headquarters in seeking to resolve their disputes. 5 id. at 292. See generally App. 5-6; 5 Record 167-168, 174-179, 182-184, 198-199, 217-218, 264-265, 292-294; 6 id. at 314-316, 363, 373, 416, 463, 496. [ Footnote 8 ] They were able to secure a $10,439 reduction in rent for the third year. App. 82; 5 Record 222-223; 6 id. at 500. [ Footnote 9 ] Miami's policy was to "deal directly" with franchisees when they began to encounter financial difficulties, and to involve district office personnel only when necessary. 5 id. at 95. In the instant case, for example, the Miami office handled all credit problems, ordered cost-cutting measures, negotiated for a partial refinancing of the franchisees' debts, communicated directly with the franchisees in attempting to resolve the dispute, and was responsible for all termination matters. See 2 id. at 59-69; 5 id. at 84-89, 94-95, 97-98, 100-103, 116-128, 151-152, 158, 163; 6 id. at 395-397, 436-438, 510-511, 524-525. [ Footnote 10 ] Rudzewicz and MacShara were served in Michigan with summonses and copies of the complaint pursuant to Federal Rule of Civil Procedure 4. 2 id. at 102-103. [ Footnote 11 ] MacShara did not appeal his judgment. See Burger King Corp. v. MacShara, 724 F.2d 1505, 1506, n. 1 (CA11 1984). In addition, Rudzewicz entered into a compromise with Burger King and waived his right to appeal the District Court's finding of trademark infringement and its entry of injunctive relief. See 4 Record 804-816. Accordingly, we need not address the extent to which the tortious act provisions of Florida's long-arm statute, see Fla.Stat. § 48.193(1)(b) (Supp.1984), may constitutionally extend to out-of-state trademark infringement. Cf. Calder v. Jones, 465 U. S. 783 , 465 U. S. 788 -789 (1984) (tortious out-of-state conduct); Keeton v. Hustler Magazine, Inc., 465 U. S. 770 , 465 U. S. 776 (1984) (same). [ Footnote 12 ] The District Court had found both that Rudzewicz fell within the reach of Florida's long-arm statute, and that the exercise of jurisdiction was constitutional. The Court of Appeals did not consider the statutory question, however, because, as Burger King acknowledged at argument, that court "accepted the parties' stipulation" that § 48.193 reached Rudzewicz "in lieu of [making] a determination of what Florida law provides." Tr. of Oral Arg. 12. Burger King contends that an appeal is proper "on the basis of the Circuit Court's holding that, given that stipulation, the statute was unconstitutional as applied." Id. at 13 (emphasis added). We disagree. Our "overriding policy, historically encouraged by Congress, of minimizing the mandatory docket of this Court in the interests of sound judicial administration," Gonzalez v. Automatic Employees Credit Union, 419 U. S. 90 , 419 U. S. 98 (1974) (construing 28 U.S.C. § 1253), would be threatened if litigants could obtain an appeal through the expedient of stipulating to a particular construction of state law where state law might, in fact, be in harmony with the Federal Constitution. Jurisdiction under 28 U.S.C. § 1254(2) is properly invoked only where a court of appeals squarely has "held" that a state statute is unconstitutional on its face or as applied; jurisdiction does not lie if the decision might rest on other grounds. Public Service Comm'n v. Batesville Telephone Co., 284 U. S. 6 , 284 U. S. 7 (1931) (per curiam). Consistent with "our practice of strict construction" of § 1254(2), Fornaris v. Ridge Tool Co., 400 U. S. 41 , 400 U. S. 42 , n. 1 (1970) (per curiam), we believe that an appeal cannot lie where a court of appeals' judgment rests solely on the stipulated applicability of state law. Rather, it must be reasonably clear that the court independently concluded that the challenged statute governs the case, and held the statute itself unconstitutional as so applied. The Court of Appeals did neither in this case, concluding simply that "[j]urisdiction under these circumstances would offend the fundamental fairness which is the touchstone of due process." 724 F.2d at 1513. Of course, if it were clear under Florida law that § 48.193(1)(g) governed every transaction falling within its literal terms, there could be no objection to a stipulation that merely recognized this established construction. But the Florida Supreme Court has not ruled on the breadth of § 48.193 (1)(g), and several state appellate courts have held that the provision extends only to the limits of the Due Process Clause. See, e.g., Scordilis v. Drobnicki, 443 So. 2d 411, 412-414 (Fla.App.1984); Lakewood Pipe of Texas, Inc. v. Rubaii, 379 So. 2d 475, 477 (Fla.App.1979), appeal dism'd, 383 So. 2d 1201 (Fla.1980); Osborn v. University Society, Inc., 378 So. 2d 873, 874 (Fla.App.1979). If § 48.193(1)(g) is construed and applied in accordance with due process limitations as a matter of state law, then an appeal is improper, because the statute cannot be "invalid as repugnant to the Constitution . . . of the United States," 28 U.S.C. § 1254(2), since its boundaries are defined by, rather than being in excess of, the Due Process Clause. See, e.g., Calder v. Jones, supra, at 465 U. S. 787 -788, n. 7; Kulko v. California Superior Court, 436 U. S. 84 , 436 U. S. 90 , and n. 4 (1978). [ Footnote 13 ] Although this protection operates to restrict state power, it "must be seen as ultimately a function of the individual liberty interest preserved by the Due Process Clause," rather than as a function "of federalism concerns." Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U. S. 694 , 456 U. S. 702 -703, n. 10 (1982). [ Footnote 14 ] We have noted that, because the personal jurisdiction requirement is a waivable right, there are a "variety of legal arrangements" by which a litigant may give "express or implied consent to the personal jurisdiction of the court." Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, supra, at 456 U. S. 703 . For example, particularly in the commercial context, parties frequently stipulate in advance to submit their controversies for resolution within a particular jurisdiction. See National Equipment Rental, Ltd. v. Szukhent, 375 U. S. 311 (1964). Where such forum-selection provisions have been obtained through "freely negotiated" agreements and are not "unreasonable and unjust," The Bremen v. Zapata Off-Shore Co., 407 U. S. 1 , 407 U. S. 15 (1972), their enforcement does not offend due process. [ Footnote 15 ] "Specific" jurisdiction contrasts with "general" jurisdiction, pursuant to which "a State exercises personal jurisdiction over a defendant in a suit not arising out of or related to the defendant's contacts with the forum." Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. at 466 U. S. 414 , n. 9; see also Perkins v. Benguet Consolidated Mining Co., 342 U. S. 437 (1952). [ Footnote 16 ] See, e.g., World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286 , 444 U. S. 299 (1980) (BRENNAN, J., dissenting); Shaffer v. Heitner, 433 U. S. 186 , 433 U. S. 219 (1977) (BRENNAN, J., concurring in part and dissenting in part). [ Footnote 17 ] Applying this principle, the Court has held that the Due Process Clause forbids the exercise of personal jurisdiction over an out-of-state automobile distributor whose only tie to the forum resulted from a customer's decision to drive there, World-Wide Volkswagen Corp. v. Woodson, supra; over a divorced husband sued for child support payments whose only affiliation with the forum was created by his former spouse's decision to settle there, Kulko v. California Superior Court, 436 U. S. 84 (1978); and over a trustee whose only connection with the forum resulted from the settlor's decision to exercise her power of appointment there, Hanson v. Denckla, 357 U. S. 235 (1958). In such instances, the defendant has had no "clear notice that it is subject to suit" in the forum, and thus no opportunity to "alleviate the risk of burdensome litigation" there. World-Wide Volkswagen Corp. v. Woodson, supra, at 444 U. S. 297 . [ Footnote 18 ] So long as it creates a "substantial connection" with the forum, even a single act can support jurisdiction. McGee v. International Life Insurance Co., 355 U.S. at 355 U. S. 223 . The Court has noted, however, that "some single or occasional acts" related to the forum may not be sufficient to establish jurisdiction if "their nature and quality and the circumstances of their commission" create only an "attenuated" affiliation with the forum. International Shoe Co. v. Washington, 326 U. S. 310 , 326 U. S. 318 (1945); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 444 U. S. 299 . This distinction derives from the belief that, with respect to this category of "isolated" acts, id. at 444 U. S. 297 , the reasonable foreseeability of litigation in the forum is substantially diminished. [ Footnote 19 ] See Allstate Insurance Co. v. Hague, 449 U. S. 302 , 449 U. S. 307 -313 (1981) (opinion of BRENNAN, J.). See generally Restatement (Second) of Conflict of Laws §§ 6, 9 (1971). [ Footnote 20 ] See, e.g., 28 U.S.C. § 1404(a) ("For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought"). This provision embodies in an expanded version the common law doctrine of forum non conveniens, under which a court in appropriate circumstances may decline to exercise its jurisdiction in the interest of the "easy, expeditious and inexpensive" resolution of a controversy in another forum. See Gulf Oil Corp. v. Gilbert, 330 U. S. 501 , 330 U. S. 508 -509 (1947). [ Footnote 21 ] See, e.g., Lakeside Bridge & Steel Co. v. Mountain State Construction Co., 445 U. S. 907 , 909-910 (1980) (WHITE, J., dissenting from denial of certiorari) (collecting cases); Brewer, Jurisdiction in Single Contract Cases, 6 U.Ark.Little Rock L.J. 1, 7-11, 13 (1983); Note, Long-Arm Jurisdiction in Commercial Litigation: When is a Contract a Contact?, 61 B.U.L.Rev. 375, 384-388 (1981). [ Footnote 22 ] The Eleventh Circuit held that MacShara's presence in Florida was irrelevant to the question of Rudzewicz' minimum contacts with that forum, reasoning that "Rudzewicz and MacShara never formed a partnership" and "signed the agreements in their individual capacities." 724 F.2d at 1513, n. 14. The two did jointly form a corporation through which they were seeking to conduct the franchise, however. See n 6, supra. They were required to decide which one of them would travel to Florida to satisfy the training requirements so that they could commence business, and Rudzewicz participated in the decision that MacShara would go there. We have previously noted that, when commercial activities are "carried on in behalf of" an out-of-state party those activities may sometimes be ascribed to the party, International Shoe Co. v. Washington, 326 U. S. 310 , 326 U. S. 320 (1945), at least where he is a "primary participan[t]" in the enterprise and has acted purposefully in directing those activities, Calder v. Jones, 465 U.S. at 465 U. S. 790 . Because MacShara's matriculation at Burger King University is not pivotal to the disposition of this case, we need not resolve the permissible bounds of such attribution. [ Footnote 23 ] Hanson v. Denckla, 357 U.S. at 357 U.S. 253 -254. See also Keeton v. Hustler Magazine, Inc., 465 U.S. at 465 U. S. 778 ; Kulko v. California Superior Court, 436 U.S. at 436 U. S. 98 ; Shaffer v. Heitner, 433 U.S. at 433 U. S. 215 . [ Footnote 24 ] In addition, the franchise agreement's disclaimer that the "choice of law designation does not require that all suits concerning this Agreement be filed in Florida," App. 72 (emphasis added), reasonably should have suggested to Rudzewicz that, by negative implication, such suits could be filed there. The lease also provided for binding arbitration in Miami of certain condemnation disputes, id. at 113, and Rudzewicz conceded the validity of this provision at oral argument, Tr. of Oral Arg. 37. Although it does not govern the instant dispute, this provision also should have made it apparent to the franchisees that they were dealing directly with the Miami headquarters, and that the Birmingham district office was not, "for all intents and purposes, the embodiment of Burger King." 724 F.2d at 1511. [ Footnote 25 ] Complaining that "when Burger King is the plaintiff, you won't have it your way,' because it sues all franchisees in Miami," Brief for Appellee 19, Rudzewicz contends that Florida's interest in providing a convenient forum is negligible, given the company's size and ability to conduct litigation anywhere in the country. We disagree. Absent compelling considerations, cf. McGee v. International Life Insurance Co., 355 U.S. at 355 U. S. 223 , a defendant who has purposefully derived commercial benefit from his affiliations in a forum may not defeat jurisdiction there simply because of his adversary's greater net wealth. [ Footnote 26 ] Rudzewicz has failed to show how the District Court's exercise of jurisdiction in this case might have been at all inconsistent with Michigan's interests. To the contrary, the court found that Burger King had fully complied with Michigan law, App. 159, and there is nothing in Michigan's franchise Act suggesting that Michigan would attempt to assert exclusive jurisdiction to resolve franchise disputes affecting its residents. In any event, minimum-contacts analysis presupposes that two or more States may be interested in the outcome of a dispute, and the process of resolving potentially conflicting "fundamental substantive social policies," World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 444 U. S. 292 , can usually be accommodated through choice-of-law rules, rather than through outright preclusion of jurisdiction in one forum. See n 19, supra. [ Footnote 27 ] The only arguable instance of trial inconvenience occurred when Rudzewicz had difficulty in authenticating some corporate records; the court offered him as much time as would be necessary to secure the requisite authentication from the Birmingham district office, and Burger King ultimately stipulated to their authenticity rather than delay the trial. See 7 Record 574-575, 578-579, 582, 598-599. [ Footnote 28 ] We do not mean to suggest that the jurisdictional outcome will always be the same in franchise cases. Some franchises may be primarily intrastate in character or involve different decisionmaking structures, such that a franchisee should not reasonably anticipate out-of-state litigation. Moreover, commentators have argued that franchise relationships may sometimes involve unfair business practices in their inception and operation. See H. Brown, Franchising Realities and Remedies 4-5 (2d ed.1978). For these reasons, we reject Burger King's suggestion for "a general rule, or at least a presumption, that participation in an interstate franchise relationship" represents consent to the jurisdiction of the franchisor's principal place of business. Brief for Appellant 46. [ Footnote 29 ] This approach does, of course, preclude clear-cut jurisdictional rules. But any inquiry into "fair play and substantial justice" necessarily requires determinations "in which few answers will be written in black and white. The greys are dominant, and, even among them, the shades are innumerable.'" Kulko v. California Superior Court, 436 U.S. at 436 U. S. 92 . [ Footnote 30 ] Hanson v. Denckla, 357 U.S. at 357 U.S. 253 ; Keeton v. Hustler Magazine, Inc., 465 U.S. at 465 U. S. 774 ; World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 444 U. S. 299 . JUSTICE STEVENS, with whom JUSTICE WHITE joins, dissenting. In my opinion, there is a significant element of unfairness in requiring a franchisee to defend a case of this kind in the forum chosen by the franchisor. It is undisputed that appellee maintained no place of business in Florida, that he had no employees in that State, and that he was not licensed to do business there. Appellee did not prepare his French fries, shakes, and hamburgers in Michigan, and then deliver them into the stream of commerce "with the expectation that they [would] be purchased by consumers in" Florida. Ante at 471 U. S. 473 . To the contrary, appellee did business only in Michigan, his business, property, and payroll taxes were payable in that State, and he sold all of his products there. Throughout the business relationship, appellee's principal contacts with appellant were with its Michigan office. Notwithstanding its disclaimer, ante at 471 U. S. 478 , the Court seems ultimately to rely on nothing more than standard boilerplate language contained in various documents, ante at 471 U. S. 481 , Page 471 U. S. 488 to establish that appellee " purposefully availed himself of the benefits and protections of Florida's laws.'" Ante at 471 U. S. 482 . Such superficial analysis creates a potential for unfairness not only in negotiations between franchisors and their franchisees but, more significantly, in the resolution of the disputes that inevitably arise from time to time in such relationships. Judge Vance's opinion for the Court of Appeals for the Eleventh Circuit adequately explains why I would affirm the judgment of that court. I particularly find the following more persuasive than what this Court has written today: "Nothing in the course of negotiations gave Rudzewicz reason to anticipate a Burger King suit outside of Michigan. The only face-to-face or even oral contact Rudzewicz had with Burger King throughout months of protracted negotiations was with representatives of the Michigan office. Burger King had the Michigan office interview Rudzewicz and MacShara, appraise their application, discuss price terms, recommend the site which the defendants finally agreed to, and attend the final closing ceremony. There is no evidence that Rudzewicz ever negotiated with anyone in Miami or even sent mail there during negotiations. He maintained no staff in the state of Florida, and as far as the record reveals, he has never even visited the state." "The contracts contemplated the startup of a local Michigan restaurant whose profits would derive solely from food sales made to customers in Drayton Plains. The sale, which involved the use of an intangible trademark in Michigan and occupancy of a Burger King facility there, required no performance in the state of Florida. Under the contract, the local Michigan district office was responsible for providing all of the services due Rudzewicz, including advertising and management consultation. Supervision, moreover, emanated from that office alone. To Rudzewicz, the Michigan office was for all intents and purposes the embodiment Page 471 U. S. 489 of Burger King. He had reason to believe that his working relationship with Burger King began and ended in Michigan, not at the distant and anonymous Florida headquarters. . . ." "Given that the office in Rudzewicz' home state conducted all of the negotiations and wholly supervised the contract, we believe that he had reason to assume that the state of the supervisory office would be the same state in which Burger King would file suit. Rudzewicz lacked fair notice that the distant corporate headquarters which insulated itself from direct dealings with him would later seek to assert jurisdiction over him in the courts of its own home state. . . ." "Just as Rudzewicz lacked notice of the possibility of suit in Florida, he was financially unprepared to meet its added costs. The franchise relationship in particular is fraught with potential for financial surprise. The device of the franchise gives local retailers the access to national trademark recognition which enables them to compete with better-financed, more efficient chain stores. This national affiliation, however, does not alter the fact that the typical franchise store is a local concern serving at best a neighborhood or community. Neither the revenues of a local business nor the geographical range of its market prepares the average franchise owner for the cost of distant litigation. . . ." "The particular distribution of bargaining power in the franchise relationship further impairs the franchisee's financial preparedness. In a franchise contract, 'the franchisor normally occupies [the] dominant role.' . . ." "We discern a characteristic disparity of bargaining power in the facts of this case. There is no indication that Rudzewicz had any latitude to negotiate a reduced rent or franchise fee in exchange for the added risk of suit in Florida. He signed a standard form contract whose terms were nonnegotiable and which appeared Page 471 U. S. 490 in some respects to vary from the more favorable terms agreed to in earlier discussions. In fact, the final contract required a minimum monthly rent computed on a base far in excess of that discussed in oral negotiations. Burger King resisted price concessions, only to sue Rudzewicz far from home. In doing so, it severely impaired his ability to call Michigan witnesses who might be essential to his defense and counterclaim." "In sum, we hold that the circumstances of the Drayton Plains franchise and the negotiations which led to it left Rudzewicz bereft of reasonable notice and financially unprepared for the prospect of franchise litigation in Florida. Jurisdiction under these circumstances would offend the fundamental fairness which is the touchstone of due process." 724 F.2d 1505, 1511-1513 (1984) (footnotes omitted). Accordingly, I respectfully dissent.

The Supreme Court ruled that a Florida court could exercise personal jurisdiction over a Michigan resident who had entered into a franchise contract with a Florida-based company, Burger King, without violating the Due Process Clause of the Fourteenth Amendment. The Court found that the franchisee had established a substantial and continuing relationship with the Florida corporation and should have reasonably anticipated being sued there. This decision set a precedent for specific jurisdiction, where a forum can assert jurisdiction over a nonresident defendant if the alleged injury arises from their purposeful actions directed at the forum.

Lawsuits & Legal Procedures

Anderson v. Liberty Lobby, Inc.

https://supreme.justia.com/cases/federal/us/477/242/

U.S. Supreme Court Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) Anderson v. Liberty Lobby, Inc. No. 84-1602 Argued December 3, 1985 Decided June 25, 1986 477 U.S. 242 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Syllabus In New York Times Co. v. Sullivan, 376 U. S. 254 , it was held that, in a libel suit brought by a public official (extended by later cases to public figures), the First Amendment requires the plaintiff to show that, in publishing the alleged defamatory statement, the defendant acted with actual malice. It was further held that such actual malice must be shown with "convincing clarity." Respondents, a nonprofit corporation described as a "citizens' lobby" and its founder, filed a libel action in Federal District Court against petitioners, alleging that certain statements in a magazine published by petitioners were false and derogatory. Following discovery, petitioners moved for summary judgment pursuant to Federal Rule of Civil Procedure 56, asserting that, because respondents were public figures, they were required to prove their case under the New York Times standards, and that summary judgment was proper because actual malice was absent as a matter of law in view of an affidavit by the author of the articles in question that they had been thoroughly researched and that the facts were obtained from numerous sources. Opposing the motion, respondents claimed that an issue of actual malice was presented because the author had relied on patently unreliable sources in preparing the articles. After holding that New York Times applied because respondents were limited-purpose public figures, the District Court entered summary judgment for petitioners on the ground that the author's investigation and research and his reliance on numerous sources precluded a finding of actual malice. Reversing as to certain of the allegedly defamatory statements, the Court of Appeals held that the requirement that actual malice be proved by clear and convincing evidence need not be considered at the summary judgment stage, and that, with respect to those statements, summary judgment had been improperly granted, because a jury could reasonably have concluded that the allegations were defamatory, false, and made with actual malice. Held: The Court of Appeals did not apply the correct standard in reviewing the District Court's grant of summary judgment. Pp. 477 U. S. 247 -257. (a) Summary judgment will not lie if the dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. At the summary judgment stage, the trial judge's function is not himself to weigh the evidence and Page 477 U. S. 243 determine the truth of the matter, but to determine whether there is a genuine issue for trial. There is no such issue unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. In essence, the inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury, or whether it is so one-sided that one party must prevail as a matter of law. Pp. 477 U. S. 247 -252. (b) A trial court ruling on a motion for summary judgment in a case such as this must be guided by the New York Times "clear and convincing" evidentiary standard in determining whether a genuine issue of actual malice exists, that is, whether the evidence is such that a reasonable jury might find that actual malice had been shown with convincing clarity. Pp. 477 U. S. 252 -256. (c) A plaintiff may not defeat a defendant's properly supported motion for summary judgment in a libel case such as this one without offering any concrete evidence from which a reasonable jury could return a verdict in his favor, and by merely asserting that the jury might disbelieve the defendant's denial of actual malice. The movant has the burden of showing that there is no genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict. Pp. 477 U. S. 256 -257. 241 U.S.App.D.C. 246, 746 F.2d 1563, vacated and remanded. WHITE, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, post, p. 477 U. S. 257 . REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 477 U. S. 268 . Page 477 U. S. 244 JUSTICE WHITE delivered the opinion of the Court. In New York Times Co. v. Sullivan, 376 U. S. 254 , 376 U. S. 279 -280 (1964), we held that, in a libel suit brought by a public official, the First Amendment requires the plaintiff to show that, in publishing the defamatory statement, the defendant acted with actual malice -- "with knowledge that it was false, or with reckless disregard of whether it was false or not." We held further that such actual malice must be shown with "convincing clarity." Id. at 376 U. S. 285 -286. See also Gertz v. Robert Welch, Inc., 418 U. S. 323 , 418 U. S. 342 (1974). These New York Times requirements we have since extended to libel suits brought by public figures as well. See, e.g., Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967). This case presents the question whether the clear-and-convincing-evidence requirement must be considered by a court ruling on a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure in a case to which New York Times applies. The United States Court of Appeals for the District of Columbia Circuit held that that requirement need not be considered at the summary judgment stage. 241 U.S.App.D.C. 246, 746 F.2d 1563 (1984). We granted certiorari, 471 U.S. 1134 (1985), because that holding was in conflict with decisions of several other Courts of Appeals, which had held that the New York Times requirement of clear and convincing evidence must be considered on a motion for summary judgment. [ Footnote 1 ] We now reverse. I Respondent Liberty Lobby, Inc., is a not-for-profit corporation and self-described "citizens' lobby." Respondent Willis Carto is its founder and treasurer. In October, 1981, Page 477 U. S. 245 The Investigator magazine published two articles: "The Private World of Willis Carto" and "Yockey: Profile of an American Hitler." These articles were introduced by a third, shorter article entitled "America's Neo-Nazi Underground: Did Mein Kampf Spawn Yockey's Imperium, a Book Revived by Carto's Liberty Lobby?" These articles portrayed respondents as neo-Nazi, anti-Semitic, racist, and Fascist. Respondents filed this diversity libel action in the United States District Court for the District of Columbia, alleging that some 28 statements and 2 illustrations in the 3 articles were false and derogatory. Named as defendants in the action were petitioner Jack Anderson, the publisher of The Investigator, petitioner Bill Adkins, president and chief executive officer of the Investigator Publishing Co., and petitioner Investigator Publishing Co. itself. Following discovery, petitioners moved for summary judgment pursuant to Rule 56. In their motion, petitioners asserted that, because respondents are public figures, they were required to prove their case under the standards set forth in New York Times. Petitioners also asserted that summary judgment was proper because actual malice was absent as a matter of law. In support of this latter assertion, petitioners submitted the affidavit of Charles Bermant, an employee of petitioners and the author of the two longer articles. [ Footnote 2 ] In this affidavit, Bermant stated that he had spent a substantial amount of time researching and writing the articles, and that his facts were obtained from a wide variety of sources. He also stated that he had at all times believed, and still believed, that the facts contained in the articles were truthful and accurate. Attached to this affidavit was an appendix in which Bermant detailed the sources for each of the statements alleged by respondents to be libelous. Page 477 U. S. 246 Respondents opposed the motion for summary judgment, asserting that there were numerous inaccuracies in the articles and claiming that an issue of actual malice was presented by virtue of the fact that, in preparing the articles, Bermant had relied on several sources that respondents asserted were patently unreliable. Generally, respondents charged that petitioners had failed adequately to verify their information before publishing. Respondents also presented evidence that William McGaw, an editor of The Investigator, had told petitioner Adkins before publication that the articles were "terrible" and "ridiculous." In ruling on the motion for summary judgment, the District Court first held that respondents were limited-purpose public figures, and that New York Times therefore applied. [ Footnote 3 ] The District Court then held that Bermant's thorough investigation and research and his reliance on numerous sources precluded a finding of actual malice. Thus, the District Court granted the motion and entered judgment in favor of petitioners. On appeal, the Court of Appeals affirmed as to 21 and reversed as to 9 of the allegedly defamatory statements. Although it noted that respondents did not challenge the District Court's ruling that they were limited-purpose public Page 477 U. S. 247 figures, and that they were thus required to prove their case under New York Times, the Court of Appeals nevertheless held that, for the purposes of summary judgment, the requirement that actual malice be proved by clear and convincing evidence, rather than by a preponderance of the evidence, was irrelevant: to defeat summary judgment, respondents did not have to show that a jury could find actual malice with "convincing clarity." The court based this conclusion on a perception that to impose the greater evidentiary burden at summary judgment "would change the threshold summary judgment inquiry from a search for a minimum of facts supporting the plaintiff's case to an evaluation of the weight of those facts and (it would seem) of the weight of at least the defendant's uncontroverted facts as well." 241 U.S.App.D.C. at 253, 746 F.2d at 1570. The court then held, with respect to nine of the statements, that summary judgment had been improperly granted because "a jury could reasonably conclude that the . . . allegations were defamatory, false, and made with actual malice." Id. at 260, 746 F.2d at 1577. II A Our inquiry is whether the Court of Appeals erred in holding that the heightened evidentiary requirements that apply to proof of actual malice in this New York Times case need not be considered for the purposes of a motion for summary judgment. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported Page 477 U. S. 248 motion for summary judgment; the requirement is that there be no genuine issue of material fact. As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted. See generally 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2725, pp. 93-95 (1983). This materiality inquiry is independent of and separate from the question of the incorporation of the evidentiary standard into the summary judgment determination. That is, while the materiality determination rests on the substantive law, it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs. Any proof or evidentiary requirements imposed by the substantive law are not germane to this inquiry, since materiality is only a criterion for categorizing factual disputes in their relation to the legal elements of the claim, and not a criterion for evaluating the evidentiary underpinnings of those disputes. More important for present purposes, summary judgment will not lie if the dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. In First National Bank of Arizona v. Cities Service Co., 391 U. S. 253 (1968), we affirmed a grant of summary judgment for an antitrust defendant where the issue was whether there was a genuine factual dispute as to the existence of a conspiracy. We noted Rule 56(e)'s provision that a party opposing a properly supported motion for summary judgment "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." We observed further that "[i]t is true that the issue of material fact required by Rule 56(c) to be present to entitle a party to proceed to Page 477 U. S. 249 trial is not required to be resolved conclusively in favor of the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." 391 U.S. at 391 U. S. 288 -289. We went on to hold that, in the face of the defendant's properly supported motion for summary judgment, the plaintiff could not rest on his allegations of a conspiracy to get to a jury without "any significant probative evidence tending to support the complaint." Id. at 391 U. S. 290 . Again, in Adickes v. S. H. Kress & Co., 398 U. S. 144 (1970), the Court emphasized that the availability of summary judgment turned on whether a proper jury question was presented. There, one of the issues was whether there was a conspiracy between private persons and law enforcement officers. The District Court granted summary judgment for the defendants, stating that there was no evidence from which reasonably minded jurors might draw an inference of conspiracy. We reversed, pointing out that the moving parties' submissions had not foreclosed the possibility of the existence of certain facts from which "it would be open to a jury . . . to infer from the circumstances" that there had been a meeting of the minds. Id. at 398 U. S. 158 -159. Our prior decisions may not have uniformly recited the same language in describing genuine factual issues under Rule 56, but it is clear enough from our recent cases that at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. As Adickes, supra, and Cities Service, supra, indicate, there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Cities Service, supra, at 391 U. S. 288 -289. If the evidence is merely colorable, Dombrowski v. Eastland, 387 U. S. 82 (1967) (per curiam), or is not significantly probative, Page 477 U. S. 250 Cities Service, supra, at 391 U. S. 290 , summary judgment may be granted. That this is the proper focus of the inquiry is strongly suggested by the Rule itself. Rule 56(e) provides that, when a properly supported motion for summary judgment is made, [ Footnote 4 ] the adverse party "must set forth specific facts showing that there is a genuine issue for trial." [ Footnote 5 ] And, as we noted above, Rule 56(c) provides that the trial judge shall then grant summary judgment if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law. There is no requirement that the trial judge make findings of fact. [ Footnote 6 ] The inquiry performed is the threshold inquiry of determining whether there is the need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party. Petitioners suggest, and we agree, that this standard mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict. Brady v. Southern R. Co., 320 U. S. 476 , 320 U. S. 479 -480 (1943). If reasonable minds could differ as to the import of the evidence, however, Page 477 U. S. 251 a verdict should not be directed. Wilkerson v. McCarthy, 336 U. S. 53 , 336 U. S. 62 (1949). As the Court long ago said in Improvement Co. v. Munson , 14 Wall. 442, 81 U. S. 448 (1872), and has several times repeated: "Nor are judges any longer required to submit a question to a jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict in favor of that party. Formerly it was held that, if there was what is called a scintilla of evidence in support of a case, the judge was bound to leave it to the jury, but recent decisions of high authority have established a more reasonable rule, that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." (Footnotes omitted.) See also 89 U. S. Fant, 22 Wall. 116, 89 U. S. 120 -121 (1875); Coughran v. Bigelow, 164 U. S. 301 , 164 U. S. 307 (1896); Pennsylvania R. Co. v. Chamberlain, 288 U. S. 333 , 288 U. S. 343 (1933). The Court has said that summary judgment should be granted where the evidence is such that it "would require a directed verdict for the moving party." Sartor v. Arkansas Gas Corp., 321 U. S. 620 , 321 U. S. 624 (1944). And we have noted that the "genuine issue" summary judgment standard is "very close" to the "reasonable jury" directed verdict standard: "The primary difference between the two motions is procedural; summary judgment motions are usually made before trial and decided on documentary evidence, while directed verdict motions are made at trial and decided on the evidence that has been admitted." Bill Johnson's Restaurants, Inc. v. NLRB, 461 U. S. 731 , 461 U. S. 745 , n. 11 (1983). In essence, though, the inquiry under each is the same: whether the evidence presents a sufficient disagreement to require submission Page 477 U. S. 252 to a jury, or whether it is so one-sided that one party must prevail as a matter of law. B Progressing to the specific issue in this case, we are convinced that the inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits. If the defendant in a run-of-the-mill civil case moves for summary judgment or for a directed verdict based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict -- "whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Munson, supra, at 81 U. S. 448 . In terms of the nature of the inquiry, this is no different from the consideration of a motion for acquittal in a criminal case, where the beyond-a-reasonable-doubt standard applies and where the trial judge asks whether a reasonable jury could find guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 , 443 U. S. 318 -319 (1979). Similarly, where the First Amendment mandates a "clear and convincing" standard, the trial judge, in disposing of a directed verdict motion, should consider whether a reasonable factfinder could conclude, for example, that the plaintiff had shown actual malice with convincing clarity. Page 477 U. S. 253 The case for the proposition that a higher burden of proof should have a corresponding effect on the judge when deciding whether to send the case to the jury was well made by the Court of Appeals for the Second Circuit in United States v. Taylor, 464 F.2d 240 (1972), which overruled United States v. Feinberg, 140 F.2d 592 (1944), a case holding that the standard of evidence necessary for a judge to send a case to the jury is the same in both civil and criminal cases, even though the standard that the jury must apply in a criminal case is more demanding than in civil proceedings. Speaking through Judge Friendly, the Second Circuit said: "It would seem at first blush -- and we think also at second -- that more 'facts in evidence' are needed for the judge to allow [reasonable jurors to pass on a claim] when the proponent is required to establish [the claim] not merely by a preponderance of the evidence but . . . beyond a reasonable doubt." 464 F.2d at 242. The court could not find a "satisfying explanation in the Feinberg opinion why the judge should not place this higher burden on the prosecution in criminal proceedings before sending the case to the jury." Ibid. The Taylor court also pointed out that almost all the Circuits had adopted something like Judge Prettyman's formulation in Curley v. United States, 160 F.2d 229, 232-233 (1947): "The true rule, therefore, is that a trial judge, in passing upon a motion for directed verdict of acquittal, must determine whether, upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes that, upon the evidence, there must be such a doubt in a reasonable mind, he must grant the motion; or, to state it another way, if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond reasonable doubt, the motion must be granted. If he concludes that either of the Page 477 U. S. 254 two results, a reasonable doubt or no reasonable doubt, is fairly possible, he must let the jury decide the matter." This view is equally applicable to a civil case to which the "clear and convincing" standard applies. Indeed, the Taylor court thought that it was implicit in this Court's adoption of the clear-and-convincing-evidence standard for certain kinds of cases that there was a "concomitant duty on the judge to consider the applicable burden when deciding whether to send a case to the jury." 464 F.2d at 243. Although the court thought that this higher standard would not produce different results in many cases, it could not say that it would never do so. Just as the "convincing clarity" requirement is relevant in ruling on a motion for directed verdict, it is relevant in ruling on a motion for summary judgment. When determining if a genuine factual issue as to actual malice exists in a libel suit brought by a public figure, a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability under New York Times. For example, there is no genuine issue if the evidence presented in the opposing affidavits is of insufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear and convincing evidence. Thus, in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden. This conclusion is mandated by the nature of this determination. The question here is whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of evidence required by the governing law or that he did not. Whether a jury could reasonably find for either party, however, cannot be defined except by the criteria governing what evidence would enable the jury to find for either the plaintiff or the defendant: it makes no sense to say that a jury could reasonably find for either party without some Page 477 U. S. 255 benchmark as to what standards govern its deliberations and within what boundaries its ultimate decision must fall, and these standards and boundaries are in fact provided by the applicable evidentiary standards. Our holding that the clear-and-convincing standard of proof should be taken into account in ruling on summary judgment motions does not denigrate the role of the jury. It by no means authorizes trial on affidavits. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Adickes, 398 U.S. at 398 U. S. 158 -159. Neither do we suggest that the trial courts should act other than with caution in granting summary judgment, or that the trial court may not deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial. Kennedy v. Silas Mason Co., 334 U. S. 249 (1948). In sum, we conclude that the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case. This is true at both the directed verdict and summary judgment stages. Consequently, where the New York Times "clear and convincing" evidence requirement applies, the trial judge's summary judgment inquiry as to whether a genuine issue exists will be whether the evidence presented is such that a jury applying that evidentiary standard could reasonably find for either the plaintiff or the defendant. Thus, where the factual dispute concerns actual malice, clearly a material issue in a New York Times case, the appropriate summary judgment question will be whether the evidence in the record could support a reasonable jury finding Page 477 U. S. 256 either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not. [ Footnote 7 ] III Respondents argue, however, that, whatever may be true of the applicability of the "clear and convincing" standard at the summary judgment or directed verdict stage, the defendant should seldom, if ever, be granted summary judgment where his state of mind is at issue and the jury might disbelieve him or his witnesses as to this issue. They rely on Poller v. Columbia Broadcasting Co., 368 U. S. 464 (1962), for this proposition. We do not understand Poller, however, to hold that a plaintiff may defeat a defendant's properly supported motion for summary judgment in a conspiracy or libel case, for example, without offering any concrete evidence from which a reasonable juror could return a verdict in his favor, and by merely asserting that the jury might, and legally could, disbelieve the defendant's denial of a conspiracy or of legal malice. The movant has the burden of showing that there is no genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of producing, in turn, evidence that would support a jury verdict. Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial. Based on that Rule, Cities Service, 391 U.S. at 391 U. S. 290 , held that the plaintiff could not defeat the properly supported summary judgment motion of a defendant charged with a conspiracy without offering "any significant probative evidence tending to support the complaint." As we have recently said, "discredited testimony Page 477 U. S. 257 is not [normally] considered a sufficient basis for drawing a contrary conclusion." Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485 , 466 U. S. 512 (1984). Instead, the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment. This is true even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff has had a full opportunity to conduct discovery. We repeat, however, that the plaintiff, to survive the defendant's motion, need only present evidence from which a jury might return a verdict in his favor. If he does so, there is a genuine issue of fact that requires a trial. IV In sum, a court ruling on a motion for summary judgment must be guided by the New York Times "clear and convincing" evidentiary standard in determining whether a genuine issue of actual malice exists -- that is, whether the evidence presented is such that a reasonable jury might find that actual malice had been shown with convincing clarity. Because the Court of Appeals did not apply the correct standard in reviewing the District Court's grant of summary judgment, we vacate its decision and remand the case for further proceedings consistent with this opinion. It is so ordered. [ Footnote 1 ] See, e.g., Rebozo v. Washington Post Co., 637 F.2d 375, 381 (CA5), cert. denied, 454 U.S. 964 (1981); Yiamouyiannis v. Consumers Union of United States, Inc., 619 F.2d 932, 940 (CA2), cert. denied, 449 U.S. 839 (1980); Carson v. Allied News Co., 529 F.2d 206, 210 (CA7 1976). [ Footnote 2 ] The short, introductory article was written by petitioner Anderson, and relied exclusively on the information obtained by Bermant. [ Footnote 3 ] In Gertz v. Robert Welch, Inc., 418 U. S. 323 , 418 U. S. 351 (1974), this Court summarized who will be considered to be a public figure to whom the New York Times standards will apply: "[The public figure] designation may rest on either of two alternative bases. In some instances, an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy, and thereby becomes a public figure for a limited range of issues. In either case, such persons assume special prominence in the resolution of public questions." The District Court found that respondents, as political lobbyists, are the second type of political figure described by the Gertz court -- a limited-purpose public figure. See also Waldbaum v. Fairchild Publications Inc., 201 U.S.App.D.C. 301, 306, 627 F.2d 1287, 1292, cert. denied. 449 U.S. 898 (1980). [ Footnote 4 ] Our analysis here does not address the question of the initial burden of production of evidence, placed by Rule 56 on the party moving for summary judgment. See Celotex Corp. v. Catrett, post, p. 477 U. S. 317 . Respondents have not raised this issue here, and, for the purposes of our discussion, we assume that the moving party has met initially the requisite evidentiary burden. [ Footnote 5 ] This requirement in turn is qualified by Rule 56(f)'s provision that summary judgment be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition. In our analysis here, we assume that both parties have had ample opportunity for discovery. [ Footnote 6 ] In many cases, however, findings are extremely helpful to a reviewing court. [ Footnote 7 ] Our statement in Hutchinson v. Proxmire, 443 U. S. 111 , 443 U. S. 120 , n. 9 (1979), that proof of actual malice "does not readily lend itself to summary disposition" was simply an acknowledgment of our general reluctance "to grant special procedural protections to defendants in libel and defamation actions in addition to the constitutional protections embodied in the substantive laws." Calder v. Jones, 465 U. S. 783 , 465 U. S. 790 -791 (1984). JUSTICE BRENNAN, dissenting. The Court today holds that "whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case," ante at 477 U. S. 255 . [ Footnote 2/1 ] In my view, the Court's analysis is deeply flawed, Page 477 U. S. 258 and rests on a shaky foundation of unconnected and unsupported observations, assertions, and conclusions. Moreover, I am unable to divine from the Court's opinion how these evidentiary standards are to be considered, or what a trial judge is actually supposed to do in ruling on a motion for summary judgment. Accordingly, I respectfully dissent. To support its holding that, in ruling on a motion for summary judgment, a trial court must consider substantive evidentiary burdens, the Court appropriately begins with the language of Rule 56(c), which states that summary judgment shall be granted if it appears that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Court then purports to restate this Rule, and asserts that "summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Ante at 477 U. S. 248 . No direct authority is cited for the proposition that, in order to determine whether a dispute is "genuine" for Rule 56 purposes, a judge must ask if a "reasonable" jury could find for the nonmoving party. Instead, the Court quotes from First National Bank of Arizona v. Cities Service Co. , 391 U.S. Page 477 U. S. 259 253, 391 U. S. 288 -289 (1968), to the effect that a summary judgment motion will be defeated if "sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial," ante at 477 U. S. 249 , and that a plaintiff may not, in defending against a motion for summary judgment, rest on mere allegations or denials of his pleadings. After citing Adickes v. S. H. Kress & Co., 398 U. S. 144 (1970), for the unstartling proposition that "the availability of summary judgment turn[s] on whether a proper jury question [is] presented," ante at 477 U. S. 249 , the Court then reasserts, again with no direct authority, that, in determining whether a jury question is presented, the inquiry is whether there are factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Ante at 477 U. S. 250 . The Court maintains that this summary judgment inquiry "mirrors" that which applies in the context of a motion for directed verdict under Federal Rule of Civil Procedure 50(a): "whether the evidence presents a sufficient disagreement to require submission to a jury, or whether it is so one-sided that one party must prevail as a matter of law." Ante at 477 U. S. 251 -252. Having thus decided that a "genuine" dispute is one which is not "one-sided," and one which could "reasonably" be resolved by a "fair-minded" jury in favor of either party, ibid., the Court then concludes: "Whether a jury could reasonably find for either party, however, cannot be defined except by the criteria governing what evidence would enable the jury to find for either the plaintiff or the defendant: it makes no sense to say that a jury could reasonably find for either party without some benchmark as to what standards govern its deliberations and within what boundaries its ultimate decision must fall, and these standards and boundaries are, in fact, provided by the applicable evidentiary standards." Ante at 477 U. S. 254 -255. Page 477 U. S. 260 As far as I can discern, this conclusion, which is at the heart of the case, has been reached without the benefit of any support in the case law. Although, as noted above, the Court cites Adickes and Cities Service, those cases simply do not stand for the proposition that, in ruling on a summary judgment motion, the trial court is to inquire into the "one-sidedness" of the evidence presented by the parties. Cities Service involved the propriety of a grant of summary judgment in favor of a defendant alleged to have conspired to violate the antitrust laws. The issue in the case was whether, on the basis of the facts in the record, a jury could infer that the defendant had entered into a conspiracy to boycott. No direct evidence of the conspiracy was produced. In agreeing with the lower courts that the circumstantial evidence presented by the plaintiff was insufficient to take the case to the jury, we observed that there was "one fact" that petitioner had produced to support the existence of the illegal agreement, and that that single fact could not support petitioner's theory of liability. Critically, we observed that "[t]he case at hand presents peculiar difficulties because the issue of fact crucial to petitioner's case is also an issue of law, namely the existence of a conspiracy." 391 U.S. at 391 U. S. 289 . In other words, Cities Service is, at heart, about whether certain facts can support inferences that are, as a matter of antitrust law, sufficient to support a particular theory of liability under the Sherman Act. Just this Term, in discussing summary judgment in the context of suits brought under the antitrust laws, we characterized both Cities Service and Monsanto Co. v. Spray-Rite Service Corp., 465 U. S. 752 (1984), as cases in which " antitrust law limit[ed] the range of permissible inferences from ambiguous evidence. . . ." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U. S. 574 , 475 U. S. 588 (1986) (emphasis added). Cities Service thus provides no authority for the conclusion that Rule 56 requires a trial court to consider whether direct evidence produced by the parties is "one-sided." To the contrary, in Matsushita, the most recent Page 477 U. S. 261 case to cite and discuss Cities Service, we stated that the requirement that a dispute be "genuine" means simply that there must be more than "some metaphysical doubt as to the material facts." 475 U.S. at 475 U. S. 586 . [ Footnote 2/2 ] Nor does Adickes, also relied on by the Court, suggest in any way that the appropriate summary judgment inquiry is whether the evidence overwhelmingly supports one party. Adickes, like Cities Service, presented the question of whether a grant of summary judgment in favor of a defendant on a conspiracy count was appropriate. The plaintiff, a Page 477 U. S. 262 white schoolteacher, maintained that employees of defendant Kress conspired with the police to deny her rights protected by the Fourteenth Amendment by refusing to serve her in one of its lunchrooms simply because she was white and accompanied by a number of black schoolchildren. She maintained, among other things, that Kress arranged with the police to have her arrested for vagrancy when she left the defendant's premises. In support of its motion for summary judgment, Kress submitted statements from a deposition of one of its employees asserting that he had not communicated or agreed with the police to deny plaintiff service or to have her arrested, and explaining that the store had taken the challenged action not because of the race of the plaintiff, but because it was fearful of the reaction of some of its customers if it served a racially mixed group. Kress also submitted affidavits from the Chief of Police and the arresting officers denying that the store manager had requested that petitioner be arrested, and noted that, in the plaintiff's own deposition, she conceded that she had no knowledge of any communication between the police and any Kress employee, and was relying on circumstantial evidence to support her allegations. In opposing defendant's motion for summary judgment, plaintiff stated that defendant, in its moving papers, failed to dispute an allegation in the complaint, a statement at her deposition, and an unsworn statement by a Kress employee, all to the effect that there was a policeman in the store at the time of the refusal to serve, and that it was this policeman who subsequently made the arrest. Plaintiff argued that this sequence of events "created a substantial enough possibility of a conspiracy to allow her to proceed to trial. . . ." 398 U.S. at 398 U. S. 157 . We agreed, and therefore reversed the lower courts, reasoning that Kress "did not carry its burden because of its failure to foreclose the possibility that there was a policeman in the Kress store while petitioner was awaiting service, and that this policeman reached an understanding with some Page 477 U. S. 263 Kress employee that petitioner not be served." Ibid. Despite the fact that none of the materials relied on by plaintiff met the requirements of Rule 56(e), we stated nonetheless that Kress failed to meet its initial burden of showing that there was no genuine dispute of a material fact. Specifically, we held that, because Kress failed to negate plaintiff's materials suggesting that a policeman was in fact in the store at the time of the refusal to serve, "it would be open to a jury . . . to infer from the circumstances that the policeman and a Kress employee had a 'meeting of the minds,' and thus reached an understanding that petitioner should be refused service." Id. at 398 U. S. 158 . In Adickes, we held that a jury might permissibly infer a conspiracy from the mere presence of a policeman in a restaurant. We never reached, and did not consider, whether the evidence was "one-sided," and, had we done so, we clearly would have had to affirm, rather than reverse, the lower courts, since, in that case, there was no admissible evidence submitted by petitioner, and a significant amount of evidence presented by the defendant tending to rebut the existence of a conspiracy. The question we did reach was simply whether, as a matter of conspiracy law, a jury would be entitled, again, as a matter of law, to infer from the presence of a policeman in a restaurant the making of an agreement between that policeman and an employee. Because we held that a jury was entitled so to infer, and because the defendant had not carried its initial burden of production of demonstrating that there was no evidence that there was not a policeman in the lunchroom, we concluded that summary judgment was inappropriate. Accordingly, it is surprising to find the case cited by the majority for the proposition that "there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Ante at 477 U. S. 249 . There was, of course, no admissible evidence in Adickes favoring the nonmoving plaintiff; there was only an Page 477 U. S. 264 unrebutted assertion that a Kress employee and a policeman were in the same room at the time of the alleged constitutional violation. Like Cities Service, Adickes suggests that, on a defendant's motion for summary judgment, a trial court must consider whether, as a matter of the substantive law of the plaintiff's cause of action, a jury will be permitted to draw inferences supporting the plaintiff's legal theory. In Cities Service, we found, in effect, that the plaintiff had failed to make out a prima facie case; in Adickes, we held that the moving defendant had failed to rebut the plaintiff's prima facie case. In neither case is there any intimation that a trial court should inquire whether plaintiff's evidence is "significantly probative," as opposed to "merely colorable," or, again, "one-sided." Nor is there in either case any suggestion that, once a nonmoving plaintiff has made out a prima facie case based on evidence satisfying Rule 56(e) that there is any showing that a defendant can make to prevail on a motion for summary judgment. Yet this is what the Court appears to hold, relying, in part, on these two cases. [ Footnote 2/3 ] As explained above, and as explained also by JUSTICE REHNQUIST in his dissent, see post at 477 U. S. 271 , I cannot agree that the authority cited by the Court supports its position. In my view, the Court's result is the product of an exercise Page 477 U. S. 265 akin to the child's game of "telephone," in which a message is repeated from one person to another and then another; after some time, the message bears little resemblance to what was originally spoken. In the present case, the Court purports to restate the summary judgment test, but, with each repetition, the original understanding is increasingly distorted. But my concern is not only that the Court's decision is unsupported; after all, unsupported views may nonetheless be supportable. I am more troubled by the fact that the Court's opinion sends conflicting signals to trial courts and reviewing courts which must deal with summary judgment motions on a day-to-day basis. This case is about a trial court's responsibility when considering a motion for summary judgment, but in my view, the Court, while instructing the trial judge to "consider" heightened evidentiary standards, fails to explain what that means. In other words, how does a judge assess how one-sided evidence is, or what a "fair-minded" jury could "reasonably" decide? The Court provides conflicting clues to these mysteries, which I fear can lead only to increased confusion in the district and appellate courts. The Court's opinion is replete with boilerplate language to the effect that trial courts are not to weigh evidence when deciding summary judgment motions: "[I]t is clear enough from our recent cases that, at the summary judgment stage, the judge's function is not himself to weigh the evidence and determine the truth of the matter. . . ." Ante at 477 U. S. 249 . "Our holding . . . does not denigrate the role of the jury. . . . Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Ante at 477 U. S. 255 . Page 477 U. S. 266 But the Court's opinion is also full of language which could surely be understood as an invitation -- if not an instruction -- to trial courts to assess and weigh evidence much as a juror would: "When determining if a genuine factual issue . . . exists . . a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability. . . . For example, there is no genuine issue if the evidence presented in the opposing affidavits is of insufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear and convincing evidence." Ante at 477 U. S. 254 (emphasis added). "[T]he inquiry . . . [is] whether the evidence presents a sufficient disagreement to require submission to a jury, or whether it is so one-sided that one party must prevail as a matter of law." Ante at 477 U. S. 251 -252 (emphasis added). "[T]he judge must ask himself . . . whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Ante at 477 U. S. 252 . I simply cannot square the direction that the judge "is not himself to weigh the evidence" with the direction that the judge also bear in mind the "quantum" of proof required and consider whether the evidence is of sufficient "caliber or quantity" to meet that "quantum." I would have thought that a determination of the "caliber and quantity," i.e., the importance and value, of the evidence in light of the "quantum," i.e., amount "required," could only be performed by weighing the evidence. If, in fact, this is what the Court would, under today's decision, require of district courts, then I am fearful that this new rule -- for this surely would be a brand new procedure -- will transform what is meant to provide an expedited "summary" Page 477 U. S. 267 procedure into a full-blown paper trial on the merits. It is hard for me to imagine that a responsible counsel, aware that the judge will be assessing the "quantum" of the evidence he is presenting, will risk either moving for or responding to a summary judgment motion without coming forth with all of the evidence he can muster in support of his client's case. Moreover, if the judge on motion for summary judgment really is to weigh the evidence, then, in my view, grave concerns are raised concerning the constitutional right of civil litigants to a jury trial. It may well be, as JUSTICE REHNQUIST suggests, see post at 477 U. S. 270 -271, that the Court's decision today will be of little practical effect. I, for one, cannot imagine a case in which a judge might plausibly hold that the evidence on motion for summary judgment was sufficient to enable a plaintiff bearing a mere preponderance burden to get to the jury -- i.e., that a prima facie case had been made out -- but insufficient for a plaintiff bearing a clear-and-convincing burden to withstand a defendant's summary judgment motion. Imagine a suit for breach of contract. If, for example, the defendant moves for summary judgment and produces one purported eyewitness who states that he was present at the time the parties discussed the possibility of an agreement, and unequivocally denies that the parties ever agreed to enter into a contract, while the plaintiff produces one purported eyewitness who asserts that the parties did in fact come to terms, presumably that case would go to the jury. But if the defendant produced not one, but 100 eyewitnesses, while the plaintiff stuck with his single witness, would that case, under the Court's holding, still go to the jury? After all, although the plaintiff's burden in this hypothetical contract action is to prove his case by a mere preponderance of the evidence, the judge, so the Court tells us, is to "ask himself . . . whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Ante at 477 U. S. 252 . Is there, in this hypothetical example, "a sufficient disagreement to require submission Page 477 U. S. 268 to a jury," or is the evidence "so one-sided that one party must prevail as a matter of law"? Ante at 477 U. S. 251 -252. Would the result change if the plaintiff's one witness were now shown to be a convicted perjurer? Would the result change if, instead of a garden variety contract claim, the plaintiff sued on a fraud theory, thus requiring him to prove his case by clear and convincing evidence? It seems to me that the Court's decision today unpersuasively answers the question presented, and in doing so raises a host of difficult and troubling questions for which there may well be no adequate solutions. What is particularly unfair is that the mess we make is not, at least in the first instance, our own to deal with; it is the district courts and courts of appeals that must struggle to clean up after us. In my view, if a plaintiff presents evidence which either directly or by permissible inference (and these inferences are a product of the substantive law of the underlying claim) supports all of the elements he needs to prove in order to prevail on his legal claim, the plaintiff has made out a prima facie case, and a defendant's motion for summary judgment must fail, regardless of the burden of proof that the plaintiff must meet. In other words, whether evidence is "clear and convincing," or proves a point by a mere preponderance, is for the factfinder to determine. As I read the case law, this is how it has been, and because of my concern that today's decision may erode the constitutionally enshrined role of the jury, and also undermine the usefulness of summary judgment procedure, this is how I believe it should remain. [ Footnote 2/1 ] The Court's holding today is not, of course, confined in its application to First Amendment cases. Although this case arises in the context of litigation involving libel and the press, the Court's holding is that, "in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden." Ante at 477 U. S. 254 . Accordingly, I simply do not understand why JUSTICE REHNQUIST, dissenting, feels it appropriate to cite Calder v. Jones, 465 U. S. 783 (1984), and to remind the Court that we have consistently refused to extend special procedural protections to defendants in libel and defamation suits. The Court today does nothing of the kind. It changes summary judgment procedure for all litigants, regardless of the substantive nature of the underlying litigation. Moreover, the Court's holding is not limited to those cases in which the evidentiary standard is "heightened," i.e., those in which a plaintiff must prove his case by more than a mere preponderance of the evidence. Presumably, if a district court ruling on a motion for summary judgment in a libel case is to consider the "quantum and quality" of proof necessary to support liability under New York Times, ante at 477 U. S. 254 , and then ask whether the evidence presented is of "sufficient caliber or quantity" to support that quantum and quality, the court must ask the same questions in a garden variety action where the plaintiff need prevail only by a mere preponderance of the evidence. In other words, today's decision, by its terms, applies to all summary judgment motions, irrespective of the burden of proof required and the subject matter of the suit. [ Footnote 2/2 ] Writing in dissent in Matsushita, JUSTICE WHITE stated that he agreed with the summary judgment test employed by the Court, namely, that "[w]here the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" 475 U.S. at 475 U. S. 599 . Whether the shift, announced today, from looking to a "reasonable," rather than a "rational," jury is intended to be of any significance, there are other aspects of the Matsushita dissent which I find difficult to square with the Court's holding in the present case. The Matsushita dissenters argued: ". . . [T]he Court summarizes Monsanto Co. v. Spray-Rite Service Corp., supra, as holding that 'courts should not permit factfinders to infer conspiracies when such inferences are implausible. . . .'" Ante at 477 U. S. 593 . Such language suggests that a judge hearing a defendant's motion for summary judgment in an antitrust case should go beyond the traditional summary judgment inquiry and decide for himself whether the weight of the evidence favors the plaintiff. Cities Service and Monsanto do not stand for any such proposition. Each of those cases simply held that a particular piece of evidence, standing alone, was insufficiently probative to justify sending a case to the jury. These holdings in no way undermine the doctrine that all evidence must be construed in the light most favorable to the party opposing summary judgment. "If the Court intends to give every judge hearing a motion for summary judgment in an antitrust case the job of determining if the evidence makes the inference of conspiracy more probable than not, it is overturning settled law. If the Court does not intend such a pronouncement, it should refrain from using unnecessarily broad and confusing language." Id. at 475 U. S. 600 -601 (footnote omitted). In my view, these words are as applicable and relevant to the Court's opinion today as they were to the opinion of the Court in Matsushita. [ Footnote 2/3 ] I am also baffled by the other cases cited by the majority to support its holding. For example, the Court asserts that "[i]f . . . evidence is merely colorable, Dombrowski v. Eastland, 387 U. S. 82 (1967) (per curiam), . . . summary judgment may be granted." Ante at 477 U. S. 249 -250. In Dombrowski, we reversed a judgment granting summary judgment to the counsel to the Internal Security Subcommittee of the Judiciary Committee of the United States Senate because there was "controverted evidence in the record . . . which affords more than merely colorable substance" to the petitioners' allegations. 387 U.S. at 387 U. S. 84 . Dombrowski simply cannot be read to mean that summary judgment may be granted if evidence is merely colorable; what the case actually says is that summary judgment will be denied if evidence is " controverted, " because when evidence is controverted, assertions become colorable for purposes of motions for summary judgment law. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting. The Court, apparently moved by concerns for intellectual tidiness, mistakenly decides that the "clear and convincing evidence" standard governing finders of fact in libel cases must be applied by trial courts in deciding a motion for summary judgment in such a case. The Court refers to this as a "substantive standard," but I think is is actually a procedural Page 477 U. S. 269 requirement engrafted onto Rule 56, contrary to our statement in Calder v. Jones, 465 U. S. 783 (1984), that "[w]e have already declined in other contexts to grant special procedural protections to defendants in libel and defamation actions in addition to the constitutional protections embodied in the substantive laws." Id. at 465 U. S. 790 -791. The Court, I believe, makes an even greater mistake in failing to apply its newly announced rule to the facts of this case. Instead of thus illustrating how the rule works, it contents itself with abstractions and paraphrases of abstractions, so that its opinion sounds much like a treatise about cooking by someone who has never cooked before, and has no intention of starting now. There is a large class of cases in which the higher standard imposed by the Court today would seem to have no effect at all. Suppose, for example, on motion for summary judgment in a hypothetical libel case, the plaintiff concedes that his only proof of malice is the testimony of witness A. Witness A testifies at his deposition that the reporter who wrote the story in question told him that she, the reporter, had done absolutely no checking on the story, and had real doubts about whether or not it was correct as to the plaintiff. The defendant's examination of witness A brings out that he has a prior conviction for perjury. May the Court grant the defendant's motion for summary judgment on the ground that the plaintiff has failed to produce sufficient proof of malice? Surely not, if the Court means what it says when it states: "Credibility determinations . . . are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Ante at 477 U. S. 255 . The case proceeds to trial, and, at the close of the plaintiff's evidence, the defendant moves for a directed verdict on the Page 477 U. S. 270 ground that the plaintiff has failed to produce sufficient evidence of malice. The only evidence of malice produced by the plaintiff is the same testimony of witness A, who is duly impeached by the defendant for the prior perjury conviction. In addition, the trial judge has now had an opportunity to observe the demeanor of witness A, and has noticed that he fidgets when answering critical questions, his eyes shift from the floor to the ceiling, and he manifests all other indicia traditionally attributed to perjurers. May the trial court, at this stage, grant a directed verdict? Again, surely not; we are still dealing with "credibility determinations. " The defendant now puts on its testimony, and produces three witnesses who were present at the time when witness A alleges that the reporter said she had not checked the story and had grave doubts about its accuracy as to plaintiff. Witness A concedes that these three people were present at the meeting, and that the statement of the reporter took place in the presence of all these witnesses. Each witness categorically denies that the reporter made the claimed statement to witness A. May the trial court now grant a directed verdict at the close of all the evidence? Certainly the plaintiff's case is appreciably weakened by the testimony of three disinterested witnesses, and one would hope that a properly charged jury would quickly return a verdict for the defendant. But as long as credibility is exclusively for the jury, it seems the Court's analysis would still require this case to be decided by that body. Thus, in the case that I have posed, it would seem to make no difference whether the standard of proof which the plaintiff had to meet in order to prevail was the preponderance of the evidence, clear and convincing evidence, or proof beyond a reasonable doubt. But if the application of the standards makes no difference in the case that I hypothesize, one may fairly ask in what sort of case does the difference in standards Page 477 U. S. 271 make a difference in outcome? Cases may be posed dealing with evidence that is essentially documentary, rather than testimonial; but the Court has held in a related context involving Federal Rule of Civil Procedure 52(a) that inferences from documentary evidence are as much the prerogative of the finder of fact as inferences as to the credibility of witnesses. Anderson v. Bessemer City, 470 U. S. 564 , 470 U. S. 574 (1985). The Court affords the lower courts no guidance whatsoever as to what, if any, difference the abstract standards that it propounds would make in a particular case. There may be more merit than the Court is willing to admit to Judge Learned Hand's observation in United States v. Feinberg, 140 F.2d 592, 594 (CA2), cert. denied, 322 U.S. 726 (1944), that "[w]hile at times it may be practicable" to "distinguish between the evidence which should satisfy reasonable men and the evidence which should satisfy reasonable men beyond a reasonable doubt[,] . . . in the long run, the line between them is too thin for day-to-day use." The Court apparently approves the overruling of the Feinberg case in the Court of Appeals by Judge Friendly's opinion in United States v. Taylor, 464 F.2d 240 (1972). But even if the Court is entirely correct in its judgment on this point, Judge Hand's statement seems applicable to this case, because the criminal case differs from the libel case in that the standard in the former is proof "beyond a reasonable doubt," which is presumably easier to distinguish from the normal "preponderance of the evidence" standard than is the intermediate standard of "clear and convincing evidence." More important for purposes of analyzing the present case, there is no exact analog in the criminal process to the motion for summary judgment in a civil case. Perhaps the closest comparable device for screening out unmeritorious cases in the criminal area is the grand jury proceeding, though the comparison is obviously not on all fours. The standard for allowing a criminal case to proceed to trial is not whether the government has produced prima facie evidence of guilt beyond Page 477 U. S. 272 a reasonable doubt for every element of the offense, but only whether it has established probable cause. See United States v. Mechanik, 475 U. S. 66 , 475 U. S. 70 (1986). Thus, in a criminal case, the standard used prior to trial is much more lenient than the "clear beyond a reasonable doubt" standard which must be employed by the finder of fact. The three differentiated burdens of proof in civil and criminal cases, vague and impressionistic though they necessarily are, probably do make some difference when considered by the finder of fact, whether it be a jury or a judge in a bench trial. Yet it is not a logical or analytical message that the terms convey, but instead almost a state of mind; we have previously said: "Candor suggests that, to a degree, efforts to analyze what lay jurors understand concerning the differences among these three tests . . . may well be largely an academic exercise. . . . Indeed, the ultimate truth as to how the standards of proof affect decisionmaking may well be unknowable, given that factfinding is a process shared by countless thousands of individuals throughout the country. We probably can assume no more than that the difference between a preponderance of the evidence and proof beyond a reasonable doubt probably is better understood than either of them in relation to the intermediate standard of clear and convincing evidence." Addington v. Texas, 441 U. S. 418 , 441 U. S. 424 -425 (1979) (emphasis added). The Court's decision to engraft the standard of proof applicable to a factfinder onto the law governing the procedural motion for a summary judgment (a motion that has always been regarded as raising a question of law, rather than a question of fact, see, e.g., La Riviere v. EEOC, 682 F.2d 1275, 1277-1278 (CA9 1982) (Wallace, J.)), will do great mischief, with little corresponding benefit. The primary effect of the Court's opinion today will likely be to cause the decisions of trial judges on summary judgment motions in libel cases to be Page 477 U. S. 273 more erratic and inconsistent than before. This is largely because the Court has created a standard that is different from the standard traditionally applied in summary judgment motions without even hinting as to how its new standard will be applied to particular cases.

In the case of Anderson v. Liberty Lobby, Inc., the U.S. Supreme Court held that the Court of Appeals applied the incorrect standard when reviewing a district court's grant of summary judgment in a libel case involving public figures. The Court clarified that summary judgment is inappropriate if there is a "genuine" dispute about a material fact, meaning that a reasonable jury could return a verdict for the non-moving party. The Court also emphasized the distinct burdens of proof in civil and criminal cases and cautioned against conflating them. It criticized the Court of Appeals' decision to apply the standard of proof for a fact-finder to the procedural motion of summary judgment, predicting it would lead to erratic and inconsistent decisions by trial judges.

Lawsuits & Legal Procedures

Celotex Corp. v. Catrett

https://supreme.justia.com/cases/federal/us/477/317/

U.S. Supreme Court Celotex Corp. v. Catrett, 477 U.S. 317 (1986) Celotex Corp. v. Catrett No. 85-198 Argued April 1, 1986 Decided June 25, 1986 477 U.S. 317 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Syllabus In September, 1980, respondent administratrix filed this wrongful death action in Federal District Court, alleging that her husband's death in 1979 resulted from his exposure to asbestos products manufactured or distributed by the defendants, who included petitioner corporation. In September, 1981, petitioner filed a motion for summary judgment, asserting that, during discovery, respondent failed to produce any evidence to support her allegation that the decedent had been exposed to petitioner's products. In response, respondent produced documents tending to show such exposure, but petitioner argued that the documents were inadmissible hearsay, and thus could not be considered in opposition to the summary judgment motion. In July, 1982, the court granted the motion because there was no showing of exposure to petitioner's products, but the Court of Appeals reversed, holding that summary judgment in petitioner's favor was precluded because of petitioner's failure to support its motion with evidence tending to negate such exposure, as required by Federal Rule of Civil Procedure 56(e) and the decision in Adickes v. S. H. Kress & Co., 398 U. S. 144 . Held: 1. The Court of Appeals' position is inconsistent with the standard for summary judgment set forth in Rule 56(c), which provides that summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Pp. 477 U. S. 322 -326. (a) The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to Page 477 U. S. 318 make a sufficient showing on an essential element of its case with respect to which it has the burden of proof. Pp. 477 U. S. 322 -323. (b) There is no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim. On the contrary, Rule 56(c), which refers to the affidavits, "if any," suggests the absence of such a requirement, and Rules 56(a) and (b) provide that claimants and defending parties may move for summary judgment "with or without supporting affidavits." Rule 56(e), which relates to the form and use of affidavits and other materials, does not require that the moving party's motion always be supported by affidavits to show initially the absence of a genuine issue for trial. Adickes v. S. H. Kress & Co., supra, explained. Pp. 477 U. S. 323 -326. (c) No serious claim can be made that respondent was "railroaded" by a premature motion for summary judgment, since the motion was not filed until one year after the action was commenced, and since the parties had conducted discovery. Moreover, any potential problem with such premature motions can be adequately dealt with under Rule 56(f). P. 477 U. S. 326 . 2. The questions whether an adequate showing of exposure to petitioner's products was in fact made by respondent in opposition to the motion, and whether such a showing, if reduced to admissible evidence, would be sufficient to carry respondent's burden of proof at trial, should be determined by the Court of Appeals in the first instance. Pp. 477 U. S. 326 -327. 244 U.S.App.D.C. 160, 756 F.2d 181, reversed and remanded. REHNQUIST, J., delivered the opinion of the Court, in which WHITE, MARSHALL, POWELL, and O'CONNOR, JJ., joined. WHITE, J., filed a concurring opinion, post, p. 477 U. S. 328 . BRENNAN, J., filed a dissenting opinion, in which BURGER, C.J., and BLACKMUN, J., joined, post, p. 477 U. S. 329 . STEVENS, J., filed a dissenting opinion, post, p. 477 U. S. 337 . Page 477 U. S. 319 JUSTICE REHNQUIST delivered the opinion of the Court. The United States District Court for the District of Columbia granted the motion of petitioner Celotex Corporation for summary judgment against respondent Catrett because the latter was unable to produce evidence in support of her allegation in her wrongful death complaint that the decedent had been exposed to petitioner's asbestos products. A divided panel of the Court of Appeals for the District of Columbia Circuit reversed, however, holding that petitioner's failure to support its motion with evidence tending to negate such exposure precluded the entry of summary judgment in its favor. Catrett v. Johns-Manville Sales Corp., 244 U.S.App.D.C. 160, 756 F.2d 181 (1985). This view conflicted with that of the Third Circuit in In re Japanese Electronic Products, 723 F.2d 238 (1983), rev'd on other grounds sub nom. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U. S. 574 (1986). [ Footnote 1 ] We granted certiorari to resolve the conflict, 474 U.S. 944 (1985), and now reverse the decision of the District of Columbia Circuit. Respondent commenced this lawsuit in September, 1980, alleging that the death in 1979 of her husband, Louis H. Catrett, resulted from his exposure to products containing asbestos manufactured or distributed by 15 named corporations. Respondent's complaint sounded in negligence, breach of warranty, and strict liability. Two of the defendants filed motions challenging the District Court's in personam jurisdiction, and the remaining 13, including petitioner, filed motions for summary judgment. Petitioner's motion, which was first filed in September, 1981, argued that summary judgment was proper because respondent had "failed to produce evidence that any [Celotex] product . . . was the proximate cause of the injuries alleged within the jurisdictional Page 477 U. S. 320 limits of [the District] Court." In particular, petitioner noted that respondent had failed to identify, in answering interrogatories specifically requesting such information, any witnesses who could testify about the decedent's exposure to petitioner's asbestos products. In response to petitioner's summary judgment motion, respondent then produced three documents which she claimed "demonstrate that there is a genuine material factual dispute" as to whether the decedent had ever been exposed to petitioner's asbestos products. The three documents included a transcript of a deposition of the decedent, a letter from an official of one of the decedent's former employers whom petitioner planned to call as a trial witness, and a letter from an insurance company to respondent's attorney, all tending to establish that the decedent had been exposed to petitioner's asbestos products in Chicago during 1970-1971. Petitioner, in turn, argued that the three documents were inadmissible hearsay, and thus could not be considered in opposition to the summary judgment motion. In July, 1982, almost two years after the commencement of the lawsuit, the District Court granted all of the motions filed by the various defendants. The court explained that it was granting petitioner's summary judgment motion because "there [was] no showing that the plaintiff was exposed to the defendant Celotex's product in the District of Columbia or elsewhere within the statutory period." App. 217. [ Footnote 2 ] Respondent Page 477 U. S. 321 appealed only the grant of summary judgment in favor of petitioner, and a divided panel of the District of Columbia Circuit reversed. The majority of the Court of Appeals held that petitioner's summary judgment motion was rendered "fatally defective" by the fact that petitioner "made no effort to adduce any evidence, in the form of affidavits or otherwise, to support its motion." 244 U.S.App.D.C. at 163, 756 F.2d at 184 (emphasis in original). According to the majority, Rule 56(e) of the Federal Rules of Civil Procedure, [ Footnote 3 ] and this Court's decision in Adickes v. S. H. Kress & Co., 398 U. S. 144 , 398 U. S. 159 (1970), establish that "the party opposing the motion for summary judgment bears the burden of responding only after the moving party has met its burden of coming forward with proof of the absence of any genuine issues of material fact." 244 U.S.App.D.C. at 163, 756 Page 477 U. S. 322 F.2d at 184 (emphasis in original; footnote omitted). The majority therefore declined to consider petitioner's argument that none of the evidence produced by respondent in opposition to the motion for summary judgment would have been admissible at trial. Ibid. The dissenting judge argued that "[t]he majority errs in supposing that a party seeking summary judgment must always make an affirmative evidentiary showing, even in cases where there is not a triable, factual dispute." Id. at 167, 756 F.2d at 188 (Bork, J., dissenting). According to the dissenting judge, the majority's decision "undermines the traditional authority of trial judges to grant summary judgment in meritless cases." Id. at 166, 756 F.2d at 187. We think that the position taken by the majority of the Court of Appeals is inconsistent with the standard for summary judgment set forth in Rule 56(c) of the Federal Rules of Civil Procedure. [ Footnote 4 ] Under Rule 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, Page 477 U. S. 323 there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. "[T]h[e] standard [for granting summary judgment] mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a). . . ." Anderson v. Liberty Lobby, Inc., ante at 477 U. S. 250 . Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. But unlike the Court of Appeals, we find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim. On the contrary, Rule 56(c), which refers to "the affidavits, if any " (emphasis added), suggests the absence of such a requirement. And if there were any doubt about the meaning of Rule 56(c) in this regard, such doubt is clearly removed by Rules 56(a) and (b), which provide that claimants and defendants, respectively, may move for summary judgment " with or without supporting affidavits " (emphasis added). The import of these subsections is that, regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied. One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported Page 477 U. S. 324 claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose. [ Footnote 5 ] Respondent argues, however, that Rule 56(e), by its terms, places on the nonmoving party the burden of coming forward with rebuttal affidavits, or other specified kinds of materials, only in response to a motion for summary judgment "made and supported as provided in this rule." According to respondent's argument, since petitioner did not "support" its motion with affidavits, summary judgment was improper in this case. But as we have already explained, a motion for summary judgment may be made pursuant to Rule 56 "with or without supporting affidavits." In cases like the instant one, where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the "pleadings, depositions, answers to interrogatories, and admissions on file." Such a motion, whether or not accompanied by affidavits, will be "made and supported as provided in this rule," and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial." We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment. Obviously, Rule 56 does not require the nonmoving party to depose her own witnesses. Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the showing to which we have referred. Page 477 U. S. 325 The Court of Appeals in this case felt itself constrained, however, by language in our decision in Adickes v. S. H. Kress & Co., 398 U. S. 144 (1970). There we held that summary judgment had been improperly entered in favor of the defendant restaurant in an action brought under 42 U.S.C. § 1983. In the course of its opinion, the Adickes Court said that "both the commentary on and the background of the 1963 amendment conclusively show that it was not intended to modify the burden of the moving party . . . to show initially the absence of a genuine issue concerning any material fact." Id. at 398 U. S. 159 . We think that this statement is accurate in a literal sense, since we fully agree with the Adickes Court that the 1963 amendment to Rule 56(e) was not designed to modify the burden of making the showing generally required by Rule 56(c). It also appears to us that, on the basis of the showing before the Court in Adickes, the motion for summary judgment in that case should have been denied. But we do not think the Adickes language quoted above should be construed to mean that the burden is on the party moving for summary judgment to produce evidence showing the absence of a genuine issue of material fact, even with respect to an issue on which the nonmoving party bears the burden of proof. Instead, as we have explained, the burden on the moving party may be discharged by "showing" -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case. The last two sentences of Rule 56(e) were added, as this Court indicated in Adickes, to disapprove a line of cases allowing a party opposing summary judgment to resist a properly made motion by reference only to its pleadings. While the Adickes Court was undoubtedly correct in concluding that these two sentences were not intended to reduce the burden of the moving party, it is also obvious that they were not adopted to add to that burden. Yet that is exactly the result which the reasoning of the Court of Appeals would produce; in effect, an amendment to Rule 56(e) designed to Page 477 U. S. 326 facilitate the granting of motions for summary judgment would be interpreted to make it more difficult to grant such motions. Nothing in the two sentences themselves requires this result, for the reasons we have previously indicated, and we now put to rest any inference that they do so. Our conclusion is bolstered by the fact that district courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence. See 244 U.S.App.D.C. at 167-168, 756 F.2d at 189 (Bork, J., dissenting); 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2720, pp. 28-29 (1983). It would surely defy common sense to hold that the District Court could have entered summary judgment sua sponte in favor of petitioner in the instant case, but that petitioner's filing of a motion requesting such a disposition precluded the District Court from ordering it. Respondent commenced this action in September, 1980, and petitioner's motion was filed in September, 1981. The parties had conducted discovery, and no serious claim can be made that respondent was in any sense "railroaded" by a premature motion for summary judgment. Any potential problem with such premature motions can be adequately dealt with under Rule 56(f), [ Footnote 6 ] which allows a summary judgment motion to be denied, or the hearing on the motion to be continued, if the nonmoving party has not had an opportunity to make full discovery. In this Court, respondent's brief and oral argument have been devoted as much to the proposition that an adequate showing of exposure to petitioner's asbestos products was Page 477 U. S. 327 made as to the proposition that no such showing should have been required. But the Court of Appeals declined to address either the adequacy of the showing made by respondent in opposition to petitioner's motion for summary judgment or the question whether such a showing, if reduced to admissible evidence, would be sufficient to carry respondent's burden of proof at trial. We think the Court of Appeals, with its superior knowledge of local law, is better suited than we are to make these determinations in the first instance. The Federal Rules of Civil Procedure have for almost 50 years authorized motions for summary judgment upon proper showings of the lack of a genuine, triable issue of material fact. Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed "to secure the just, speedy and inexpensive determination of every action." Fed.Rule Civ.Proc. l; see Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 467 (1984). Before the shift to "notice pleading" accomplished by the Federal Rules, motions to dismiss a complaint or to strike a defense were the principal tools by which factually insufficient claims or defenses could be isolated and prevented from going to trial, with the attendant unwarranted consumption of public and private resources. But with the advent of "notice pleading," the motion to dismiss seldom fulfills this function any more, and its place has been taken by the motion for summary judgment. Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis. Page 477 U. S. 328 The judgment of the Court of Appeals is accordingly reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. [ Footnote 1 ] Since our grant of certiorari in this case, the Fifth Circuit has rendered a decision squarely rejecting the position adopted here by the District of Columbia Circuit. See Fontenot v. Upjohn Co., 780 F.2d 1190 (1986). [ Footnote 2 ] JUSTICE STEVENS, in dissent, argues that the District Court granted summary judgment only because respondent presented no evidence that the decedent was exposed to Celotex asbestos products in the District of Columbia. See post at 477 U. S. 338 -339. According to JUSTICE STEVENS, we should affirm the decision of the Court of Appeals, reversing the District Court, on the "narrower ground" that respondent "made an adequate showing" that the decedent was exposed to Celotex asbestos products in Chicago during 1970-1971. See ibid. JUSTICE STEVENS' position is factually incorrect. The District Court expressly stated that respondent had made no showing of exposure to Celotex asbestos products "in the District of Columbia or elsewhere. " App. 217 (emphasis added). Unlike JUSTICE STEVENS, we assume that the District Court meant what it said. The majority of the Court of Appeals addressed the very issue raised by JUSTICE STEVENS, and decided that "[t]he District Court's grant of summary judgment must therefore have been based on its conclusion that there was 'no showing that the plaintiff was exposed to defendant Celotex's product in the District of Columbia or elsewhere within the statutory period.'" Catrett v. Johns-Manville Sales Corp., 244 U.S.App.D.C. 160, 162, n. 3, 756 F.2d 181, 183, n. 3 (1985) (emphasis in original). In other words, no judge involved in this case to date shares JUSTICE STEVENS' view of the District Court's decision. [ Footnote 3 ] Rule 56(e) provides: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." [ Footnote 4 ] Rule 56(c) provides: "The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages." [ Footnote 5 ] See Louis, Federal Summary Judgment Doctrine: A Critical Analysis, 83 Yale L.J. 745, 752 (1974); Currie, Thoughts on Directed Verdicts and Summary Judgments, 45 U.Chi.L.Rev. 72, 79 (1977). [ Footnote 6 ] Rule 56(f) provides: "Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just." JUSTICE WHITE, concurring. I agree that the Court of Appeals was wrong in holding that the moving defendant must always support his motion with evidence or affidavits showing the absence of a genuine dispute about a material fact. I also agree that the movant may rely on depositions, answers to interrogatories, and the like, to demonstrate that the plaintiff has no evidence to prove his case, and hence that there can be no factual dispute. But the movant must discharge the burden the Rules place upon him: it is not enough to move for summary judgment without supporting the motion in any way or with a conclusory assertion that the plaintiff has no evidence to prove his case. A plaintiff need not initiate any discovery or reveal his witnesses or evidence unless required to do so under the discovery Rules or by court order. Of course, he must respond if required to do so; but he need not also depose his witnesses or obtain their affidavits to defeat a summary judgment motion asserting only that he has failed to produce any support for his case. It is the defendant's task to negate, if he can, the claimed basis for the suit. Petitioner Celotex does not dispute that, if respondent has named a witness to support her claim, summary judgment should not be granted without Celotex somehow showing that the named witness' possible testimony raises no genuine issue of material fact. Tr. of Oral Arg. 43, 45. It asserts, however, that respondent has failed on request to produce any basis for her case. Respondent, on the other hand, does not contend that she was not obligated to reveal her witnesses and evidence, but insists that she has revealed enough to defeat the motion for summary judgment. Because the Court of Appeals found it unnecessary to address this aspect Page 477 U. S. 329 of the case, I agree that the case should be remanded for further proceedings. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE and JUSTICE BLACKMUN join, dissenting. This case requires the Court to determine whether Celotex satisfied its initial burden of production in moving for summary judgment on the ground that the plaintiff lacked evidence to establish an essential element of her case at trial. I do not disagree with the Court's legal analysis. The Court clearly rejects the ruling of the Court of Appeals that the defendant must provide affirmative evidence disproving the plaintiff's case. Beyond this, however, the Court has not clearly explained what is required of a moving party seeking summary judgment on the ground that the nonmoving party cannot prove its case. [ Footnote 2/1 ] This lack of clarity is unfortunate: district courts must routinely decide summary judgment motions, and the Court's opinion will very likely create confusion. For this reason, even if I agreed with the Court's result, I would have written separately to explain more clearly the law in this area. However, because I believe that Celotex did not meet its burden of production under Federal Rule of Civil Procedure 56, I respectfully dissent from the Court's judgment. Page 477 U. S. 330 I Summary judgment is appropriate where the court is satisfied "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.Rule Civ.Proc. 56(c). The burden of establishing the nonexistence of a "genuine issue" is on the party moving for summary judgment. 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2727, p. 121 (2d ed.1983) (hereinafter Wright) (citing cases); 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice � 56.15[3] (2d ed.1985) (hereinafter Moore) (citing cases). See also ante at 477 U. S. 323 ; ante at 477 U. S. 328 (WHITE, J., concurring). This burden has two distinct components: an initial burden of production, which shifts to the nonmoving party if satisfied by the moving party; and an ultimate burden of persuasion, which always remains on the moving party. See 10A Wright § 2727. The court need not decide whether the moving party has satisfied its ultimate burden of persuasion [ Footnote 2/2 ] unless and until the court finds that the moving party has discharged its initial Page 477 U. S. 331 burden of production. Adickes v. S. H. Kress & Co., 398 U. S. 144 , 398 U. S. 157 -161 (1970); 1963 Advisory Committee's Notes on Fed.Rule Civ.Proc. 56(e), 28 U.S.C.App. p. 626. The burden of production imposed by Rule 56 requires the moving party to make a prima facie showing that it is entitled to summary judgment. 10A Wright § 2727. The manner in which this showing can be made depends upon which party will bear the burden of persuasion on the challenged claim at trial. If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence -- using any of the materials specified in Rule 56(c) -- that would entitle it to a directed verdict if not controverted at trial. Ibid. Such an affirmative showing shifts the burden of production to the party opposing the motion, and requires that party either to produce evidentiary materials that demonstrate the existence of a "genuine issue" for trial or to submit an affidavit requesting additional time for discovery. Ibid.; Fed.Rules Civ.Proc. 56(e), (f). If the burden of persuasion at trial would be on the nonmoving party, the party moving for summary judgment may satisfy Rule 56's burden of production in either of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party's claim. Second, the moving party may demonstrate to the court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim. See 10A Wright § 2727, pp. 130-131; Louis, Federal Summary Judgment Doctrine: A Critical Analysis, 83 Yale L.J. 745, 750 (1974) (hereinafter Louis). If the nonmoving party cannot muster sufficient evidence to make out its claim, a trial would be useless, and the moving party is entitled to summary judgment as a matter of law. Anderson v. Liberty Lobby, Inc., ante at 477 U. S. 249 . Where the moving party adopts this second option and seeks summary judgment on the ground that the nonmoving party -- who will bear the burden of persuasion at trial -- has Page 477 U. S. 332 no evidence, the mechanics of discharging Rule 56's burden of production are somewhat trickier. Plainly, a conclusory assertion that the nonmoving party has no evidence is insufficient. See ante at 477 U. S. 328 (WHITE, J., concurring). Such a "burden" of production is no burden at all, and would simply permit summary judgment procedure to be converted into a tool for harassment. See Louis 750-751. Rather, as the Court confirms, a party who moves for summary judgment on the ground that the nonmoving party has no evidence must affirmatively show the absence of evidence in the record. Ante at 477 U. S. 323 . This may require the moving party to depose the nonmoving party's witnesses or to establish the inadequacy of documentary evidence. If there is literally no evidence in the record, the moving party may demonstrate this by reviewing for the court the admissions, interrogatories, and other exchanges between the parties that are in the record. Either way, however, the moving party must affirmatively demonstrate that there is no evidence in the record to support a judgment for the nonmoving party. If the moving party has not fully discharged this initial burden of production, its motion for summary judgment must be denied, and the court need not consider whether the moving party has met its ultimate burden of persuasion. Accordingly, the nonmoving party may defeat a motion for summary judgment that asserts that the nonmoving party has no evidence by calling the court's attention to supporting evidence already in the record that was overlooked or ignored by the moving party. In that event, the moving party must respond by making an attempt to demonstrate the inadequacy of this evidence, for it is only by attacking all the record evidence allegedly supporting the nonmoving party that a party seeking summary judgment satisfies Rule 56's burden of production. [ Footnote 2/3 ] Thus, if the record disclosed that the moving Page 477 U. S. 333 party had overlooked a witness who would provide relevant testimony for the nonmoving party at trial, the court could not find that the moving party had discharged its initial burden of production unless the moving party sought to demonstrate the inadequacy of this witness' testimony. Absent such a demonstration, summary judgment would have to be denied on the ground that the moving party had failed to meet its burden of production under Rule 56. The result in Adickes v. S. H. Kress & Co., supra, is fully consistent with these principles. In that case, petitioner was refused service in respondent's lunchroom, and then was arrested for vagrancy by a local policeman as she left. Petitioner brought an action under 42 U.S.C. § 1983, claiming that the refusal of service and subsequent arrest were the product of a conspiracy between respondent and the police; as proof of this conspiracy, petitioner's complaint alleged that the arresting officer was in respondent's store at the time service was refused. Respondent subsequently moved for summary judgment on the ground that there was no actual evidence in the record from which a jury could draw an inference of conspiracy. In response, petitioner pointed to a statement from her own deposition and an unsworn statement by a Kress employee, both already in the record and both ignored by respondent, that the policeman who arrested petitioner was in the store at the time she was refused service. We agreed that "[i]f a policeman were present, . . . it would be open to a jury, in light of the sequence that fol Page 477 U. S. 334 lowed, to infer from the circumstances that the policeman and Kress employee had a 'meeting of the minds,' and thus reached an understanding that petitioner should be refused service." 398 U.S. at 398 U. S. 158 . Consequently, we held that it was error to grant summary judgment "on the basis of this record," because respondent had "failed to fulfill its initial burden" of demonstrating that there was no evidence that there was a policeman in the store. Id. at 398 U. S. 157 -158. The opinion in Adickes has sometimes been read to hold that summary judgment was inappropriate because the respondent had not submitted affirmative evidence to negate the possibility that there was a policeman in the store. See Brief for Respondent 20, n. 30 (citing cases). The Court of Appeals apparently read Adickes this way, and therefore required Celotex to submit evidence establishing that plaintiff's decedent had not been exposed to Celotex asbestos. I agree with the Court that this reading of Adickes was erroneous, and that Celotex could seek summary judgment on the ground that plaintiff could not prove exposure to Celotex asbestos at trial. However, Celotex was still required to satisfy its initial burden of production. II I do not read the Court's opinion to say anything inconsistent with or different than the preceding discussion. My disagreement with the Court concerns the application of these principles to the facts of this case. Defendant Celotex sought summary judgment on the ground that plaintiff had "failed to produce" any evidence that her decedent had ever been exposed to Celotex asbestos. [ Footnote 2/4 ] App. 170. Celotex supported this motion with a Page 477 U. S. 335 two-page "Statement of Material Facts as to Which There is No Genuine Issue" and a three-page "Memorandum of Points and Authorities" which asserted that the plaintiff had failed to identify any evidence in responding to two sets of interrogatories propounded by Celotex, and that therefore the record was "totally devoid" of evidence to support plaintiff's claim. See id. at 171-176. Approximately three months earlier, Celotex had filed an essentially identical motion. Plaintiff responded to this earlier motion by producing three pieces of evidence which she claimed "[a]t the very least . . . demonstrate that there is a genuine factual dispute for trial," id. at 143: (1) a letter from an insurance representative of another defendant describing asbestos products to which plaintiff's decedent had been exposed, id. at 160; (2) a letter from T. R. Hoff, a former supervisor of decedent, describing asbestos products to which decedent had been exposed, id. at 162; and (3) a copy of decedent's deposition from earlier workmen's compensation proceedings, id. at 164. Plaintiff also apparently indicated Page 477 U. S. 336 at that time that she intended to call Mr. Hoff as a witness at trial. Tr. of Oral Arg. 6-7, 27-29. Celotex subsequently withdrew its first motion for summary judgment. See App. 167. [ Footnote 2/5 ] However, as a result of this motion, when Celotex filed its second summary judgment motion, the record did contain evidence -- including at least one witness -- supporting plaintiff's claim. Indeed, counsel for Celotex admitted to this Court at oral argument that Celotex was aware of this evidence and of plaintiff's intention to call Mr. Hoff as a witness at trial when the second summary judgment motion was filed. Tr. of Oral Arg. 5-7. Moreover, plaintiff's response to Celotex' second motion pointed to this evidence -- noting that it had already been provided to counsel for Celotex in connection with the first motion -- and argued that Celotex had failed to "meet its burden of proving that there is no genuine factual dispute for trial." App. 188. On these facts, there is simply no question that Celotex failed to discharge its initial burden of production. Having chosen to base its motion on the argument that there was no evidence in the record to support plaintiff's claim, Celotex was not free to ignore supporting evidence that the record clearly contained. Rather, Celotex was required, as an initial matter, to attack the adequacy of this evidence. Celotex' failure to fulfill this simple requirement constituted a failure to discharge its initial burden of production under Rule 56, and thereby rendered summary judgment improper. [ Footnote 2/6 ] Page 477 U. S. 337 This case is indistinguishable from Adickes. Here, as there, the defendant moved for summary judgment on the ground that the record contained no evidence to support an essential element of the plaintiff's claim. Here, as there, the plaintiff responded by drawing the court's attention to evidence that was already in the record and that had been ignored by the moving party. Consequently, here, as there, summary judgment should be denied on the ground that the moving party failed to satisfy its initial burden of production. [ Footnote 2/7 ] [ Footnote 2/1 ] It is also unclear what the Court of Appeals is supposed to do in this case on remand. JUSTICE WHITE -- who has provided the Court's fifth vote -- plainly believes that the Court of Appeals should reevaluate whether the defendant met its initial burden of production. However, the decision to reverse, rather than to vacate the judgment below, implies that the Court of Appeals should assume that Celotex has met its initial burden of production and ask only whether the plaintiff responded adequately, and, if so, whether the defendant has met its ultimate burden of persuasion that no genuine issue exists for trial. Absent some clearer expression from the Court to the contrary, JUSTICE WHITE's understanding would seem to be controlling. Cf. Marks v. United States, 430 U. S. 188 , 430 U. S. 193 (1977). [ Footnote 2/2 ] The burden of persuasion imposed on a moving party by Rule 56 is a stringent one. 6 Moore � 56.15[3], p. 56-466; 10A Wright § 2727, p. 124. Summary judgment should not be granted unless it is clear that a trial is unnecessary, Anderson v. Liberty Lobby, Inc., ante at 477 U. S. 255 , and any doubt as to the existence of a genuine issue for trial should be resolved against the moving party, Adickes v. S. H. Kress & Co., 398 U. S. 144 , 398 U. S. 158 -159 (1970). In determining whether a moving party has met its burden of persuasion, the court is obliged to take account of the entire setting of the case, and must consider all papers of record as well as any materials prepared for the motion. 10A Wright § 2721, p. 44; see, e.g., Stepanischen v. Merchants Despatch Transportation Corp., 722 F.2d 922, 930 (CA1 1983); Higgenbotham v. Ochsner Foundation Hospital, 607 F.2d 653, 656 (CA5 1979). As explained by the Court of Appeals for the Third Circuit in In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238 (1983), rev'd on other grounds sub nom. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U. S. 574 (1986), "[i]f . . . there is any evidence in the record from any source from which a reasonable inference in the [nonmoving party's] favor may be drawn, the moving party simply cannot obtain a summary judgment. . . ." 723 F.2d at 258. [ Footnote 2/3 ] Once the moving party has attacked whatever record evidence -- if any -- the nonmoving party purports to rely upon, the burden of production shifts to the nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving party's papers, (2) produce additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f). See 10A Wright § 2727, pp. 138-143. Summary judgment should be granted if the nonmoving party fails to respond in one or more of these ways, or if, after the nonmoving party responds, the court determines that the moving party has met its ultimate burden of persuading the court that there is no genuine issue of material fact for trial. See, e.g., First National Bank of Arizona v. Cities Service Co., 391 U. S. 253 , 391 U. S. 289 (1968). [ Footnote 2/4 ] JUSTICE STEVENS asserts that the District Court granted summary judgment on the ground that the plaintiff had failed to show exposure in the District of Columbia. He contends that the judgment of the Court of Appeals reversing the District Court's judgment should be affirmed on the "narrow ground" that it was "palpably erroneous" to grant summary judgment on this basis. Post at 477 U. S. 339 (dissenting). The Court replies that what the District Court said was that plaintiff had failed to show exposure in the District of Columbia "or elsewhere." Ante at 477 U. S. 320 , n. 2. In my view, it does not really matter which reading is correct in this case. For, contrary to JUSTICE STEVENS' claim, deciding this case on the ground that Celotex failed to meet its burden of production under Rule 56 does not involve an "abstract exercise in Rule construction." Post at 477 U. S. 339 (STEVENS, J., dissenting). To the contrary, the principles governing a movant's burden of proof are straightforward and well established, and deciding the case on this basis does not require a new construction of Rule 56 at all; it simply entails applying established law to the particular facts of this case. The choice to reverse because of "palpable erro[r]" with respect to the burden of a moving party under Rule 56 is thus no more "abstract" than the choice to reverse because of such error with respect to the elements of a tort claim. Indeed, given that the issue of the moving party's burden under Rule 56 was the basis of the Court of Appeals' decision, the question upon which certiorari was granted, and the issue briefed by the parties and argued to the Court, it would seem to be the preferable ground for deciding the case. [ Footnote 2/5 ] Celotex apparently withdrew this motion because, contrary to the assertion made in the first summary judgment motion, its second set of interrogatories had not been served on the plaintiff. [ Footnote 2/6 ] If the plaintiff had answered Celotex' second set of interrogatories with the evidence in her response to the first summary judgment motion, and Celotex had ignored those interrogatories and based its second summary judgment motion on the first set of interrogatories only, Celotex obviously could not claim to have discharged its Rule 56 burden of production. This result should not be different simply because the evidence plaintiff relied upon to support her claim was acquired by Celotex other than in plaintiff's answers to interrogatories. [ Footnote 2/7 ] Although JUSTICE WHITE agrees that, "if [plaintiff] has named a witness to support her claim, summary judgment should not be granted without Celotex somehow showing that the named witness' possible testimony raises no genuine issue of material fact," he would remand "[b]ecause the Court of Appeals found it unnecessary to address this aspect of the case." Ante at 477 U. S. 328 -329 (concurring). However, Celotex has admitted that plaintiff had disclosed her intent to call Mr. Hoff as a witness at trial before Celotex filed its second motion for summary judgment. Tr. of Oral Arg. 6-7. Under the circumstances, then, remanding is a waste of time. JUSTICE STEVENS, dissenting. As the Court points out, ante at 477 U. S. 319 -320, petitioner's motion for summary judgment was based on the proposition that respondent could not prevail unless she proved that her deceased husband had been exposed to petitioner's products "within the jurisdictional limits" of the District of Columbia. [ Footnote 3/1 ] Page 477 U. S. 338 Respondent made an adequate showing -- albeit possibly not in admissible form [ Footnote 3/2 ] -- that her husband had been exposed to petitioner's product in Illinois. [ Footnote 3/3 ] Although the basis of the motion and the argument had been the lack of exposure in the District of Columbia, the District Court stated at the end of the argument: "The Court will grant the defendant Celotex's motion for summary judgment, there being no showing that the plaintiff was exposed to the defendant Celotex's product in the District of Columbia or elsewhere within the statutory period. App. 217 (emphasis added). The District Court offered no additional explanation and no written opinion. The Court of Appeals reversed on the basis that Celotex had not met its burden; the court noted the incongruity of the District Court's opinion in the context of the motion and argument, but did not rest on that basis because of the 'or elsewhere' language. [ Footnote 3/4 ]" Taken in the context of the motion for summary judgment on the basis of no exposure in the District of Columbia, the Page 477 U. S. 339 District Court's decision to grant summary judgment was palpably erroneous. The court's bench reference to "or elsewhere" neither validated that decision nor raised the complex question addressed by this Court today. In light of the District Court's plain error, therefore, it is perfectly clear that, even after this Court's abstract exercise in Rule construction, we should nonetheless affirm the reversal of summary judgment on that narrow ground. [ Footnote 3/5 ] I respectfully dissent. [ Footnote 3/1 ] See Motion of Defendant Celotex Corporation for Summary Judgment, App. 170 ("Defendant Celotex Corporation, pursuant to Rule 56 (b) of the Federal Rules of Civil Procedure, moves this Court for an Order granting Summary Judgment on the ground that plaintiff has failed to produce evidence that any product designed, manufactured or distributed by Celotex Corporation was the proximate cause of the injuries alleged within the jurisdictional limits of this Court ") (emphasis added); Memorandum of Points and Authorities in Support of Motion of Defendant Celotex Corporation for Summary Judgment, id. at 175 (Plaintiff "must demonstrate some link between a Celotex Corporation product claimed to be the cause of the decedent's illness and the decedent himself. The record is totally devoid of any such evidence within the jurisdictional confines of this Court ") (emphasis added); Transcript of Argument in Support of Motion of Defendant Celotex Corporation for Summary Judgment, id. at 211 ("Our position is . . . there has been no product identification of any Celotex products . . . that have been used in the District of Columbia to which the decedent was exposed") (emphasis added). [ Footnote 3/2 ] But cf. ante at 477 U. S. 324 ("We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment"). [ Footnote 3/3 ] See App. 160 (letter from Aetna Life Insurance Co.) (referring to the "asbestos that Mr. Catrett came into contact with while working for Anning-Johnson Company" and noting that the "manufacturer of this product" was purchased by Celotex); id. at 162 (lettter from Anning-Johnson Co.) (confirming that Catrett worked for the company and supervised the installation of asbestos produced by the company that Celotex ultimately purchased); id. at 164, 164c (deposition of Catrett) (description of his work with asbestos "in Chicago"). [ Footnote 3/4 ] See Catrett v. Johns-Manville Sales Corp., 756 F.2d 181, 185, n. 14 (1985) ("[T]he discussion at the time the motion was granted actually spoke to venue. It was only the phrase or elsewhere,' appearing with no prior discussion, in the judge's oral ruling at the close of argument that made the grant of summary judgment even conceivably proper"). [ Footnote 3/5 ] Cf. 477 U.S. 317 fn3/2|>n. 2, supra. The Court's statement that the case should be remanded because the Court of Appeals has a "superior knowledge of local law," ante at 477 U. S. 327 , is bewildering because there is no question of local law to be decided. Cf. Bishop v. Wood, 426 U. S. 341 , 426 U. S. 345 -347 (1976). The Court's decision to remand when a sufficient ground for affirmance is available does reveal, however, the Court's increasing tendency to adopt a presumption of reversal. See, e.g., New York v. P. J. Video, Inc., 475 U. S. 868 , 475 U. S. 884 (1986) (MARSHALL, J., dissenting); Icicle Seafoods, Inc. v. Worthinston, 475 U. S. 709 , 475 U. S. 715 (1986) (STEVENS, J., dissenting); City of Los Angeles v. Heller, 475 U. S. 796 , 475 U. S. 800 (1986) (STEVENS, J., dissenting); Pennsylvania v. Goldhammer, 474 U. S. 28 , 474 U. S. 81 (1985) (STEVENS, J., dissenting). As a matter of efficient judicial administration and of respect for the state and federal courts, I believe the presumption should be precisely the opposite.

Here is a summary of the Supreme Court case Celotex Corp. v. Catrett: The case revolves around a wrongful death action filed by the respondent, alleging that her husband's death was caused by exposure to asbestos products manufactured or distributed by the defendants, including Celotex Corporation. The respondent failed to provide evidence of her husband's exposure to Celotex's products during discovery. Despite the respondent's later production of documents suggesting such exposure, the court granted Celotex's motion for summary judgment due to a lack of evidence. The Supreme Court's key holding is that the Court of Appeals' decision to reverse the summary judgment was inconsistent with Federal Rule of Civil Procedure 56(c). According to Rule 56(c), summary judgment is appropriate when there is no genuine dispute over material facts, and the moving party is entitled to judgment as a matter of law. The Court clarified that the moving party is not required to support its motion with evidence negating the opponent's claim but instead carries the burden of showing the absence of a genuine issue of material fact. In this case, Celotex met its burden by pointing out the respondent's lack of evidence to support her allegation of product exposure, an essential element of her case. The Court concluded that the respondent's failure to establish this critical element rendered all other facts immaterial, warranting summary judgment in favor of Celotex.